Exhibit 4.7
SUBORDINATION AGREEMENT
dated as of June 26, 2002
- among -
TELEPHONE AND DATA SYSTEMS, INC. AND THE OTHER
SUBORDINATED CREDITORS
as Subordinated Creditors
UNITED STATES CELLULAR CORPORATION
as a Debtor
- and -
TORONTO DOMINION (TEXAS), INC.
as Administrative Agent for the Senior Creditors
TABLE OF CONTENTS
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PAGE
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I. DEFINITIONS
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1.1. Definitions in Senior Credit Agreement...................2
1.2. Certain Terms............................................2
1.3. General Provisions Relating to Definitions...............9
II. DEBT SUBORDINATION ARRANGEMENTS
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2.1. Agreement to Subordinate; Addition of Subordinated
Creditors and Subordinated Debt....................10
2.2. Limitations on Subordinated Debt Payments...............11
2.3. Permitted Sub Debt Payments, etc........................11
2.4. Payment Blockage Periods................................12
2.5. Bankruptcy or Insolvency Proceedings....................13
2.6. Certain Other Bankruptcy Matters; etc...................14
2.7. Delivery of Prohibited Payments or Distributions on
Account of Subordinated Debt.......................16
2.8. Subrogation.............................................17
III. LIMITATIONS ON CERTAIN ENFORCEMENT ACTIONS AND OTHER NEGATIVE COVENANTS
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3.1. Prohibitions on Commencement of Certain
Enforcement Actions................................17
3.2. Limitations on Remedies Under Subordinated Debt
Documents..........................................18
3.3. Limitation on Liens Securing Subordinated Debt..........18
IV. WAIVERS AND CONSENTS
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4.1. Waivers of Notice; etc..................................19
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PAGE
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V. ADDITIONAL REPRESENTATIONS AND OTHER
COVENANTS
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5.1. Information Regarding Subordinated Debt.................21
5.2. Additional Representations and Covenants of
Subordinated Creditors.............................21
5.3. No Other Subordination..................................22
5.4. Legend; etc.............................................22
5.5. Consent to Credit Agreement.............................22
5.6. No Impairment...........................................22
VI. MISCELLANEOUS
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6.1. Effectiveness of Agreement..............................23
6.2. Amendments, Waivers; etc................................23
6.3. Further Assurances......................................23
6.4. Specific Performance; Remedies Cumulative...............24
6.5. Severability............................................24
6.6. Continuing Agreement....................................24
6.7. Successors and Assigns..................................24
6.8. Notices.................................................24
6.9. Loan Document; etc......................................25
6.10. Choice of Law...........................................25
6.11. Waiver of Jury Trial....................................25
6.12. Survival................................................25
6.13. Termination.............................................26
6.14. Indemnification.........................................26
6.15. Expenses of Enforcement.................................26
6.16. Obligations Joint and Several; No Third Parties
Benefited..........................................26
6.17. Counterparts............................................26
6.18. Headings................................................27
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LIST OF SCHEDULES
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Schedule A List of Debtors
Schedule B Permitted Sub Debt Payments
Schedule C List of Subordinated Creditors
Schedule D List of Subordinated Debt
Schedule E List of Subordinated Debt Documents
Schedule F List of Notice Addresses
LIST OF EXHIBITS
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Exhibit A Form of Subordinated Creditor Supplement
Exhibit B Form of Subordinated Debt Supplement
SUBORDINATION AGREEMENT
-----------------------
This SUBORDINATION AGREEMENT is entered into as of June 26, 2002 by and
among: (A) TELEPHONE AND DATA SYSTEMS, INC., a Delaware corporation, as a
"Subordinated Creditor" hereunder; (B) each of the other SUBORDINATED CREDITORS
(as defined below); (C) UNITED STATES CELLULAR CORPORATION, a Delaware
corporation (hereinafter, together with its successors in title and assigns,
called the "Borrower"), as a "Debtor" hereunder, and (D) TORONTO DOMINION
(TEXAS), INC., not in its individual capacity, but in its capacity as
Administrative Agent (as defined below) for the Senior Creditors (as defined
below).
PRELIMINARY STATEMENTS
----------------------
(1) Upon the terms and subject to the conditions contained in the
Revolving Credit Agreement, dated as of June 26, 2002, among the Borrower, the
Senior Lenders (as defined below) party thereto on and as of the date hereof,
Toronto Dominion (Texas), Inc., as Administrative Agent for the Senior Creditors
(as defined below), Wachovia Bank, National Association, as syndication agent,
Citibank, N.A. and LaSalle Bank National Association, each as co-documentation
agents (as amended and in effect from time to time, the "Senior Credit
Agreement"), the Senior Lenders agreed to make Extensions of Credit to the
Borrower.
(2) This Agreement contains terms and provisions of subordination that
are required by the Senior Creditors in connection with financing arrangements
governed by the Senior Credit Agreement, and it is a condition precedent to the
making of the initial Extensions of Credit under the Senior Credit Agreement
that the Subordinated Creditors and the Borrower shall have entered into this
Agreement and shall have agreed to become bound by the terms of subordination
and other provisions contained herein.
(3) The Subordinated Creditors and the Borrower have agreed with the
Administrative Agent, acting for and on behalf of all of the Senior Creditors,
to execute and deliver this Agreement and to become bound by the terms of
subordination and other provisions set forth herein.
NOW, THEREFORE, in consideration of these premises, the Subordinated
Creditors and the Borrower hereby agree with the Administrative Agent, acting
for and on behalf of all of the Senior Creditors, as follows:
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ARTICLE I
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DEFINITIONS
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SECTION 1.1. Definitions in Senior Credit Agreement. Unless otherwise
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defined herein, terms defined in the Senior Credit Agreement (as in effect on
the date hereof) are used herein as therein defined.
SECTION 1.2. Certain Terms. The following terms, when used in this
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Agreement, including the introductory paragraph and the Preliminary Statements
hereto, shall, except where the context otherwise requires, have the following
meanings:
"Administrative Agent" means Toronto Dominion (Texas), Inc., not in its
----------------------
individual capacity, but in its capacity as administrative agent for the Senior
Creditors under the Senior Credit Agreement and the other Senior Loan Documents,
and any successor to such administrative agent.
"Agreement" means this Subordination Agreement, as amended and in
-----------
effect from time to time.
"Affiliate" means any Person that would be considered to be an
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affiliate of another Person under Rule 144(a) of the Rules and Regulations of
the Securities and Exchange Commission, as in effect on the date hereof, if such
other Person were issuing securities. For purposes of this Agreement, none of
the Subsidiaries of the Borrower shall be deemed to be an Affiliate of the
Borrower or of any other Subsidiaries of the Borrower.
"Bankruptcy or Insolvency Proceeding" means, in relation or with
----------------------------------------
respect to any Debtor or any other Person, (a) any insolvency or bankruptcy case
or proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding, relative to such Person or to its creditors, as such, or to
its Property, (b) any liquidation, dissolution, reorganization or winding up of
such Person, whether voluntary or involuntary, partial or complete, and whether
or not involving receivership, insolvency or bankruptcy, or (c) any assignment
for the benefit of creditors of such Person, or any other marshalling of
Property or liabilities of such Person.
"Borrower" has the meaning specified in the introductory paragraph
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hereto.
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"Capital Stock" means (a) in the case of any corporation, any corporate
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capital stock of any class or series, (b) in the case of any association or
business entity, any shares, interests, participations, rights or other
equivalents (howsoever designated) of corporate capital stock, and (c) in the
case of any partnership or limited liability company, partnership or membership
interests (whether general or limited).
"Debtors" means, collectively, the Borrower, each (if any) of the
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Subsidiaries of the Borrower identified on Schedule A attached hereto, and each
(if any) of the other Subsidiaries of the Borrower which is an obligor of any
kind with respect to any Subordinated Debt.
"Enforcement Action" means, in relation to or with respect to any
---------------------
Debtor or any other Person, any of the following:
(a) the acceleration of the maturity of all or any part of any Funded
Debt of such Person;
(b) the commencement or pursuit of any action at law or other legal
proceeding against such Person to collect all or any part of any Funded Debt of
such Person, or the enforcement of any other rights or remedies against such
Person under or with respect to all or any part of any Funded Debt of such
Person, whether by action at law, suit in equity, arbitration proceedings or any
other similar proceedings;
(c) the realization, foreclosure or other enforcement of any Liens of
any kind on all or any part of any Property of such Person, or the obtaining of
payment of any Funded Debt of such Person through exercise of any rights of
set-off, counterclaim or cross-claim; or
(d) the commencement or initiation of any Bankruptcy or Insolvency
Proceeding against such Person, or the joining with any other creditor or
creditors of such Person to commence or initiate any Bankruptcy or Insolvency
Proceeding against such Person.
"Equity Interests" includes Capital Stock and all warrants, options or
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other rights to purchase or otherwise acquire Capital Stock.
"Event of Default" has the meaning specified for that term in the
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Senior Credit Agreement.
"Extension of Credit" means the making of any advance or loan or the
----------------------
extension of any other credit or financial accommodation of any kind or
character.
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"Funded Debt" means, in relation to any Person: (a) all indebtedness
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for borrowed money of such Person; (b) all obligations of such Person incurred
as the deferred purchase price of Property (other, in any event, than (i)
obligations incurred as the deferred purchase price of services, (ii) trade
payables entered into in the ordinary course of business of such Person pursuant
to ordinary terms, and (iii) ordinary course purchase price adjustments); (c)
all reimbursement and other payment obligations of such Person with respect to
letters of credit, bankers' acceptances, surety bonds and other similar
documents; (d) all obligations of such Person evidenced by promissory notes,
bonds, debentures or other similar Instruments, including all obligations of
such Person so evidenced incurred in connection with the acquisition of Property
or any business; (e) all Capitalized Lease obligations of such Person and all
indebtedness created under any conditional sale or other title retention
agreements or sales of accounts receivable; (f) all non-recourse indebtedness of
such Person of the kind described in clause (a) through clause (e) secured by
Liens on Property of the obligor; and (g) all guaranty obligations of such
Person in respect of indebtedness of the kind described in clause (a) through
clause (f) above. For all purposes of this Agreement, the term "Funded Debt"
shall also mean and include, with respect to any Person, the contractual and
other similar obligations of such Person with respect to any Monetization
Transaction, except as and to the extent that such contractual and other similar
obligations of such Person are not required to be treated as funded debt, long
term debt or the like by Generally Accepted Accounting Principles.
"Instrument" means any contract, agreement, indenture, mortgage or
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other document or writing (whether a formal agreement, letter or otherwise)
under which any obligation is evidenced, assumed or undertaken, or any right to
any Lien is granted or perfected.
"Parent Affiliated Companies" means, collectively, (a) the Parent
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Company, and (b) all Subsidiaries and Affiliates of the Parent Company, other
than the Borrower and the Borrower's Subsidiaries.
"Parent Company" means Telephone and Data Systems, Inc., a Delaware
-----------------
corporation.
"Payment Blockage Notice" has the meaning specified in Section 2.4(a).
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"Payment Blockage Period" means, in relation to any Payment Blockage
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Notice, the period beginning on the date on which such Payment Blockage Notice
shall be received by the Parent Company (as provided in Section 2.4(a)) and
ending on the date determined pursuant to Section 2.4(b).
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"payment in full" and "paid in full" mean payment in full in cash.
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"payment or distribution on account of Subordinated Debt" means any
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payment or distribution of any kind or character, whether in cash or other
Property, or any combination thereof, and whether voluntary or involuntary, (a)
on account of any principal of (or premium, if any), interest on, or other
amounts owing in respect of all or any part of any Subordinated Debt, or (b) on
account of any purchase, repurchase, redemption, retirement, prepayment,
defeasance or other acquisition for value of any Subordinated Debt. For purposes
of this Agreement, "payments or distributions on account of Subordinated Debt"
shall in any event include: (i) all payments payable on account of Subordinated
Debt by virtue of the provisions of, or any security for, any Instrument
governing any other Funded Debt of the Borrower or any of its Subsidiaries which
is subordinate in right of payment to any Subordinated Debt; (ii) all payments
on account of Subordinated Debt made through exercise of any rights of set-off,
counterclaim or cross-claim; and (iii) all payments on account of Subordinated
Debt made through realization, foreclosure or other enforcement of any Liens of
any kind.
"Permitted Equity Interests" means any Equity Interests of the Borrower
----------------------------
on account of or with respect to which none of the Borrower or its Subsidiaries
has any obligation of any kind to (a) declare or pay any dividends or make other
distributions at any time on or prior to May 31, 2008, except dividends or other
distributions to be paid in Permitted Equity Interests of the Borrower, (b) make
any redemption, repurchase, retirement or acquisition, whether through the
Borrower or any of its Subsidiaries or otherwise, at any time on or prior to May
31, 2008, except (in any such case) with Permitted Equity Interests of the
Borrower, (c) make any return of capital to the holder thereof at any time on or
prior to May 31, 2008, except with Permitted Equity Interests of the Borrower,
or (d) make any other distributions of any kind at any time on or prior to May
31, 2008, except distributions to be made in Permitted Equity Interests of the
Borrower.
"Permitted Interest Payments" has the meaning specified in Section
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2.3(a).
"Permitted Sub Debt Payments" means, collectively, (a) Permitted
--------------------------------
Interest Payments, and (b) the other specific payments or distributions
identified and described in Schedule B attached hereto (as amended or
supplemented from time to time).
"Property" means any interest in any kind of property or asset, whether
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real, personal or mixed, and whether tangible or intangible.
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"Senior Agents" has the meaning specified in the Senior Credit
---------------
Agreement for the term "Agents".
"Senior Compliance Event of Default" means any Event of Default other
--------------------------------------
than a Senior Payment Event of Default.
"Senior Credit Agreement" has the meaning specified in the Preliminary
--------------------------
Statements hereto.
"Senior Creditors" means, collectively, (a) all of the Senior Lenders,
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and (b) all of the Senior Agents. For purposes of this Agreement, the term
"Senior Creditors" shall in any event include any and all lawful holders from
time to time of all or any part of the Senior Debt.
"Senior Debt" means, collectively, all Funded Debt of the Borrower or
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of any of its Subsidiaries, contingent or otherwise, now or hereafter existing,
under or with respect to:
(a) the unpaid principal of any and all Senior Extensions of Credit
made or to be made or otherwise extended to the Borrower or to any of its
Subsidiaries under the Senior Debt Documents;
(b) interest (including interest accruing at the contract rate after
the commencement of any Bankruptcy or Insolvency Proceedings in relation to the
Borrower or any of its Subsidiaries, whether or not such interest accrues after
the commencement of such proceedings for purposes of any applicable insolvency
laws or is an allowed claim in such proceedings) on Senior Extensions of Credit
described in clause (a) or on any other Funded Debt described in this clause (b)
or in clause (c) of this definition, and fees, costs, expenses, indemnities,
reimbursements and other amounts owing under any Senior Debt Documents (whether
or not any such fees, costs, expenses or other amounts are incurred or otherwise
accrue after the commencement of any Bankruptcy or Insolvency Proceedings in
relation to the Borrower or any of its Subsidiaries, and whether or not all or
any portion of any claims with respect thereto are allowed claims in any such
proceedings); and
(c) claims by any of the Senior Creditors against the Borrower or any
of its Subsidiaries under any guaranties by the Borrower or by any of its
Subsidiaries of any Funded Debt described in clause (a) or (b) of this
definition (whether or not any of such claims are made against the Borrower or
any of its Subsidiaries after the commencement of any Bankruptcy or Insolvency
Proceedings with respect to any of such Persons, and whether or not all or any
portion of such claims are allowed claims in any such proceedings).
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"Senior Debt Documents" means, collectively, (a) the Senior Credit
------------------------
Agreement and all of the other Senior Loan Documents, (b) all other Instruments
pursuant to which any Funded Debt owing to the Senior Creditors under the Senior
Credit Agreement or any other Senior Loan Documents shall be deferred, extended,
renewed, replaced, refunded or refinanced, in whole or in part, and without
limitation as to parties, maturities, amounts, interest rates or other
provisions, and (c) all other Instruments executed in connection with or
evidencing, governing, guarantying or securing any Funded Debt under any
Instruments referred to in clause (a) or (b) of this definition; in each case
(with respect to any Instruments referred to in clause (a), (b) or (c)), as
modified, amended or supplemented from time to time.
"Senior Extensions of Credit" means, collectively:
-----------------------------
(a) any and all Extensions of Credit made or to be made or otherwise
extended by Senior Creditors under or in respect of Senior Debt Documents at any
time and from time to time on, prior to or after the date hereof to the Borrower
or to any of its Subsidiaries; and
(b) any and all Extensions of Credit replacing, refunding or
refinancing, in whole or in part, whether directly or indirectly, and without
limitation as to parties, maturities, amounts, interest rates or other
provisions, any or all of the Senior Debt described in clause (a), clause (b) or
clause (c) of that defined term.
"Senior Lenders" has the meaning specified in the Senior Credit
-----------------
Agreement for the term "Lenders".
"Senior Loan Documents" has the meaning specified in the Senior Credit
-----------------------
Agreement for the term "Loan Documents".
"Senior Payment Event of Default" means any Event of Default resulting
---------------------------------
from any default by the Borrower in the payment or prepayment of any principal,
interest or any other sum that has become due and payable under the Senior
Credit Agreement or any of the other Senior Debt Documents.
"Subordinated Creditors" means, collectively, (a) the Parent Company,
------------------------
(b) each of the other Parent Affiliated Companies identified in Schedule C
attached hereto (as amended or supplemented from time to time), and (c) each of
the other Parent Affiliated Companies that, at any time after the date hereof,
shall execute and deliver to the Administrative Agent a Subordinated Creditor
Supplement and thereby become a party hereto and bound hereby as a "Subordinated
Creditor" hereunder.
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"Subordinated Creditor Supplement" means any supplement to this
-------------------------------------
Agreement, in or substantially in the form of Exhibit A attached hereto, by
which any Parent Affiliated Company shall become a party to and bound by this
Agreement as a "Subordinated Creditor" hereunder and additional Subordinated
Debt and Subordinated Debt Documents shall be made subject to this Agreement.
"Subordinated Debt" means, collectively:
-------------------
(a) all Funded Debt of the Borrower or of any of its Subsidiaries
identified in Schedule D attached hereto (as amended or supplemented from time
to time);
(b) all other Funded Debt of the Borrower or of any of its Subsidiaries
from time to time identified and described in any Subordinated Creditor
Supplement or any Subordinated Debt Supplement which at any time after the date
hereof shall be executed by any Subordinated Creditor and delivered to the
Administrative Agent;
(c) interest (including all (if any) interest accruing after the
commencement of any Bankruptcy or Insolvency Proceedings in relation to the
Borrower or any of its Subsidiaries) payable on or with respect to any Funded
Debt described in clause (a), (b), (c), (d) or (e) of this definition, and all
fees, costs, expenses, indemnities, reimbursements and other amounts owing in
respect of any such Funded Debt;
(d) all obligations of the Borrower or any of its Subsidiaries,
contingent or otherwise, to purchase, repurchase, redeem, retire, prepay,
defease or otherwise acquire any or all of the Funded Debt of the Borrower or of
any of its Subsidiaries described in clause (a), (b), (c) or (e) of this
definition; and
(e) all Funded Debt under or with respect to guaranties by the Borrower
or by any of its Subsidiaries of any Funded Debt described in any of clause (a),
(b), (c) or (d) of this definition.
"Subordinated Debt Documents" means, collectively:
---------------------------
a) all Instruments from time to time identified and described in
Schedule E attached hereto (as amended and supplemented from time to time);
(b) all other Instruments from time to time identified and described in
any Subordinated Creditor Supplement or any Subordinated Debt Supplement
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which at any time after the date hereof shall be executed by any Subordinated
Creditor and delivered to the Administrative Agent;
(c) each (if any) Instrument pursuant to which any Subordinated Debt of
the Borrower or of any of its Subsidiaries to each or any of the Subordinated
Creditors, whether now or hereafter existing, is or will be evidenced, governed,
guaranteed or secured;
(d) each Instrument pursuant to which any Subordinated Debt to any of
the Subordinated Creditors shall be deferred, extended, renewed, replaced,
refunded or refinanced, in whole or in part; and
(e) each other Instrument executed in connection with or otherwise
evidencing, governing, guarantying or securing any Subordinated Debt of any
kind, including, without limitation, any Subordinated Debt under any Instrument
referred to in clause (a), (b), (c) or (d) of this definition; in each case
(with respect to any Instrument referred to in clause (a), (b), (c), (d) or (e)
of this definition), as modified, amended or supplemented from time to time.
"Subordinated Debt Supplement" means any supplement to this Agreement,
-------------------------------
in or substantially in the form of Exhibit B attached hereto, by which any
Subordinated Debt and Subordinated Debt Documents shall be made subject to this
Agreement and thereby become "Subordinated Debt" and "Subordinated Debt
Documents" hereunder.
SECTION 1.3. General Provisions Relating to Definitions. Terms for
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which meanings are defined in this Agreement shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The term "including" means including, without limiting the generality of any
description preceding such term. Each reference herein to any Person shall
include a reference to such Person's successors in title and assigns or (as the
case may be) his successors, assigns, heirs, executors, administrators and other
legal representatives. References to any Instrument defined in this Agreement
refer, unless otherwise provided herein, to such Instrument as originally
executed, or, if subsequently varied, replaced or supplemented from time to
time, as so varied, replaced or supplemented and in effect at the relevant time
of reference thereto.
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ARTICLE II
FUNDED DEBT SUBORDINATION ARRANGEMENTS
SECTION 2.1. Agreement to Subordinate; Addition of Subordinated
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Creditors and Subordinated Debt.
--------------------------------
(a) Each of the Subordinated Creditors severally agrees with and for
the benefit of each of the Senior Creditors that all Subordinated Debt (whether
now existing or from time to time after the date hereof, incurred, assumed,
created or arising) owing to it is hereby expressly subordinated and made junior
in right of payment, to the extent and in the manner hereinafter provided in
this Article II, to the prior payment in full of all Senior Debt (whether now
existing or from time to time after the date hereof, incurred, assumed, created
or arising).
(b) Any Parent Affiliated Company which has not previously become a
party to and bound by this Agreement as a "Subordinated Creditor" hereunder may
at any time become a Subordinated Creditor under this Agreement by executing and
delivering to the Administrative Agent a properly completed Subordinated
Creditor Supplement. Upon execution and delivery of a Subordinated Creditor
Supplement by any Parent Affiliated Company, (i) such Parent Affiliated Company
shall
automatically (without any other action on the part of any party hereto) become
a Subordinated Creditor hereunder for all purposes of this Agreement, (ii) the
Funded Debt identified and described in such Subordinated Creditor Supplement
shall automatically (without any other action on the part of any party hereto)
become Subordinated Debt for all purposes of this Agreement, and (iii) all
related Subordinated Debt Documents identified and described therein shall
automatically (without any other action on the part of any party hereto) become
Subordinated Debt Documents for all purposes of this Agreement.
(c) Any Funded Debt not previously designated as Subordinated Debt
under this Agreement shall automatically become Subordinated Debt under this
Agreement upon the due execution by the Subordinated Creditor to whom such
Funded Debt is owed and delivery to the Administrative Agent of a properly
completed Subordinated Debt Supplement identifying and describing such Funded
Debt and all Subordinated Debt Documents pursuant to which such Subordinated
Debt is evidenced or governed. Upon execution and delivery of a Subordinated
Debt Supplement with respect to any Funded Debt, such Funded Debt and all
related Subordinated Debt Documents described therein shall automatically
(without any other action on the part of any party
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hereto) become Subordinated Debt and Subordinated Debt Documents for all
purposes of this Agreement.
SECTION 2.2. Limitations on Subordinated Debt Payments. Except as and
------------------------------------------
to the extent otherwise expressly permitted or provided by Sections 2.3 and 2.5
hereof, neither the Borrower nor any of its Subsidiaries shall at any time make
any payments or distributions of any kind on account of Subordinated Debt,
whether in cash, securities or other Property or by way of conversion, exchange
or set-off or otherwise, and the Subordinated Creditors shall not at any time
demand, receive or accept from the Borrower or from any of its Subsidiaries, any
payments or distributions on account of Subordinated Debt.
SECTION 2.3. Permitted Sub Debt Payments; etc.
---------------------------------
(a) So long as no Payment Blockage Period shall be continuing at the
time of payment, the Borrower and its Subsidiaries shall be permitted to pay to
Subordinated Creditors, and Subordinated Creditors shall be entitled to receive
and apply, interest that has accrued on Subordinated Debt at the applicable
contract rates of interest set forth in the applicable Subordinated Debt
Documents (as in effect on the date such documents shall become Subordinated
Debt Documents) (all such permitted payments of interest being herein called
"Permitted Interest Payments"). No prepayments of interest which has not yet
accrued under applicable Subordinated Debt Documents shall be permitted by this
Agreement, and no such prepayments of such interest shall constitute "Permitted
Interest Payments" for purposes of this Agreement.
(b) So long as no Payment Blockage Period shall be continuing, the
Borrower and its Subsidiaries shall be permitted to pay to Subordinated
Creditors, and Subordinated Creditors shall be entitled to receive and apply,
the other Permitted Sub Debt Payments identified and described in Schedule B
attached hereto (as amended and supplemented from time to time).
(c) So long as no Bankruptcy or Insolvency Proceeding shall be
continuing with respect to the Borrower or any of its Subsidiaries, Subordinated
Creditors shall be entitled at any time and from time to time to convert all or
any part of any Subordinated Debt into, or (as the case may be) to exchange all
or any part of any Subordinated Debt for, Permitted Equity Interests of the
Borrower.
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(d) Except as otherwise expressly permitted by paragraph (a), paragraph
(b) or paragraph (c) of this Section 2.3 or by Section 2.5 hereof, or as
otherwise expressly consented to in writing by the Administrative Agent in any
particular instance, the limitations on the making of payments or distributions
on account of Subordinated Debt set forth in Section 2.2 shall be absolute,
unconditional and irrevocable at all times and in all circumstances.
SECTION 2.4. Payment Blockage Periods.
-------------------------
(a) The Administrative Agent may, while any Event of Default is
continuing, give to each Subordinated Creditor a written notice ("Payment
Blockage Notice") of such Event of Default and the imposition of a Payment
Blockage Period pursuant to this Section 2.4.
(b) With respect to each Payment Blockage Notice identifying any one or
more Senior Payment Events of Default, a Payment Blockage Period shall commence
on the date on which the Subordinated Creditors shall receive from the
Administrative Agent such Payment Blockage Notice and shall terminate on the
earlier to occur of: (i) the date on which each of the Senior Payment Events of
Default identified in such Payment Blockage Notice shall have been cured or
waived or shall otherwise have ceased to exist; or (ii) the date on which such
Payment Blockage Period shall be terminated by written notice to the
Subordinated Creditors from the Administrative Agent. So long as any Senior
Payment Event of Default shall be continuing, any number of Payment Blockage
Notices identifying Senior Payment Events of Default may be given and any number
of Payment Blockage Periods may be commenced by the Administrative Agent
pursuant to this paragraph (b).
(c) With respect to each Payment Blockage Notice identifying any one or
more Senior Compliance Events of Default, a Payment Blockage Period shall
commence on the date on which the Subordinated Creditors shall receive from the
Administrative Agent such Payment Blockage Notice and shall terminate on the
earlier to occur of: (i) the date 179 days after the commencement of such
Payment Blockage Period (or such earlier date as may be required by the next
sentence); (ii) the date on which each of the Senior Compliance Events of
Default identified in such Payment Blockage Notice shall have been cured or
waived or shall otherwise have ceased to exist; or (iii) the date on which such
Payment Blockage Period shall be terminated by written notice to the
Subordinated Creditors from the Administrative Agent. So long as any Senior
Compliance Event of Default shall be continuing, any number of Payment Blockage
Notices identifying Senior Compliance Events of Default may be given and any
number of Payment Blockage Periods may be commenced by the
-13-
Administrative Agent pursuant to this paragraph (c), but the aggregate duration
of all Payment Blockage Periods commenced by the Administrative Agent pursuant
to this paragraph (c) during any period of 365 consecutive days shall not exceed
179 days. Notwithstanding any other provision of this paragraph (c), no Senior
Compliance Event of Default which existed or was continuing on the date of the
commencement of any Payment Blockage Period pursuant to this paragraph (c) shall
be, or be made, the basis for the commencement of a second Payment Blockage
Period pursuant to this paragraph (c).
SECTION 2.5. Bankruptcy or Insolvency Proceedings. Each of the
----------------------------------------
Subordinated Creditors and Debtors hereby agrees with the Senior Creditors that,
in the event of any Bankruptcy or Insolvency Proceeding with respect to any of
the Debtors:
(a) the Senior Creditors shall first be entitled to receive payment in
full of all Senior Debt before the Subordinated Creditors shall be entitled to
receive any payment or distribution on account of Subordinated Debt from such
Debtor;
(b) the Senior Creditors shall be entitled to receive from such Debtor
(until payment in full of all Senior Debt) all payments and distributions on
account of Subordinated Debt which would otherwise be payable or deliverable to
the Subordinated Creditors, including, without limitation, all cash, securities,
Equity Interests and other Property distributed, divided or applied by way of
dividend or payment, and any securities or Equity Interests issued, on account
of the Subordinated Debt, and, to that end, all such payments and distributions
from such Debtor that otherwise would be payable or deliverable upon or with
respect to any Subordinated Debt shall instead be paid or delivered forthwith
directly to the Administrative Agent, for the benefit of the Senior Creditors,
in the same form as so received (with any necessary endorsement or assignment)
for application to the payment of Senior Debt until all Senior Debt shall have
been paid in full, and the Administrative Agent shall be entitled to hold all
such securities, Equity Interests and other Property as collateral for the
Senior Debt, to sell, assign, transfer or dispose of such securities, Equity
Interests and other Property as the Administrative Agent shall deem appropriate,
and to apply all proceeds from the sale, assignment, transfer or disposition of
such securities, Equity Interests and other Property to the Senior Debt;
(c) if any Subordinated Creditor shall fail to file a proper proof of
claim in the form required by applicable law against such Debtor prior to the
date thirty (30) days before the expiration of the time to file such claim, then
the
-14-
Administrative Agent is authorized, but shall have no obligation, to file such
claim in the name of and on behalf of such Subordinated Creditor; and
(d) the Subordinated Creditors shall duly and promptly take such action
as the Administrative Agent may reasonably request to collect Subordinated Debt
from such Debtor, and to collect and receive any and all payments or
distributions on account of such Subordinated Debt.
SECTION 2.6. Certain Other Bankruptcy Matters; etc.
-----------------------------------------
(a) In order to carry out and to give full effect to the express
intentions of each of the parties hereto as set out in Section 2.5, and in order
better to ensure the performance by the Subordinated Creditors of the covenants
of the Subordinated Creditors with the Administrative Agent, for the benefit of
the Senior Creditors, contained in Section 2.5, each of the Subordinated
Creditors hereby absolutely and irrevocably
constitutes and appoints the Administrative Agent its true and lawful agent and
attorney-in-fact, with full power of substitution, in the name and on behalf of
such Subordinated Creditor or in the name of the Administrative Agent or any of
the Senior Creditors or in the name of the Administrative Agent's substitute
agents or attorneys, to do, in any Bankruptcy or Insolvency Proceeding with
respect to any Debtor, if all of the Senior Debt shall not have been paid in
full at the time, all or any of the following:
(i) to enforce all or any of the claims comprising all or any
part of any Subordinated Debt of such Debtor by filing claims, proofs of claim,
suit or otherwise;
(ii) to enforce all or any of the Liens on any Property of
such Debtor;
(iii) to give or withhold the consent of such Subordinated
Creditor to the use by such Debtor of any Property of such Debtor;
(iv) to give or withhold the consent of such Subordinated
Creditor to the sale, transfer or other disposition by such Debtor of any
Property of such Debtor;
(v) to collect or receive all or any of the Property of any
Debtor distributed, divided or applied by way of dividend or payment on account
of all or any part of any Subordinated Debt of such Debtor and to apply the
same, or the proceeds of any realization upon the same that the Administrative
Agent in its sole and absolute discretion shall elect to effect, to all or any
part of the Senior Debt until all of the Senior Debt shall have been paid in
full;
-15-
(vi) to execute, deliver or otherwise perfect any Instrument
and to execute and do all of such other assurances, acts and things which the
Administrative Agent or any of the Administrative Agent's substitute agents or
attorneys may deem proper in or for the purpose of exercising all or any of the
powers and authorities granted to the Administrative Agent by each of the
Subordinated Creditors pursuant to this paragraph (a);
(vii) to cast all ballots and vote all claims in respect of
the Subordinated Debt of such Debtor and to negotiate, accept or reject on
behalf of the Subordinated Creditors any plan of partial or complete
liquidation, reorganization, arrangement, composition or extension proposed in
connection with any Bankruptcy or Insolvency Proceeding
with respect to such Debtor, all in such manner and on such terms and conditions
as the Administrative Agent shall in its sole and absolute discretion determine
to be in the best interests of the Senior Creditors; and
(viii) generally, to take, in connection with any such
Bankruptcy or Insolvency Proceeding with respect to such Debtor and in relation
to all or any part of any Subordinated Debt of such Debtor, any action which the
Subordinated Creditors would, but for the terms of this Agreement, be otherwise
entitled to take in or for the purpose of exercising all or any of the powers,
authorities or rights specified in the foregoing provisions of this paragraph
(a).
(b) Each of the Subordinated Creditors hereby ratifies and confirms and
agrees to ratify and confirm whatever the Administrative Agent (or any of the
Administrative Agent's substitute agents) or attorneys shall do or purport to do
in good faith in the exercise, at any time and from time to time prior to (but
not after) the payment in full of all Senior Debt, of the power of attorney
granted to the Administrative Agent by such Subordinated Creditor pursuant to
Section 2.5(a), which power of attorney, being coupled with an interest, is
irrevocable.
(c) Each of the Subordinated Creditors severally covenants and agrees
with the Administrative Agent that, in any Bankruptcy or Insolvency Proceeding
with respect to any of the Debtors, if all of the Senior Debt shall not have
been paid in full at the time:
(i) such Subordinated Creditor shall, for all purposes of such
Bankruptcy or Insolvency Proceeding, be deemed to have given its consent to and
approval for (A) the use by any of the Debtors of any Property of any of the
Debtors, and (B) the sale, transfer or other disposition by the Debtors or any
of them of any Property of any of the Debtors, in each such case, if and to the
-16-
extent that any such use, sale, transfer or other disposition shall be consented
to or otherwise approved by the Administrative Agent;
(ii) if any payments or distributions made to the
Administrative Agent on account of any Senior Debt, whether before or after the
commencement of any Bankruptcy or Insolvency Proceeding with respect to the
Borrower or any of its Subsidiaries, shall be avoided as a fraudulent transfer
or fraudulent conveyance under any applicable law, then, for purposes of
determining whether and when all of the Senior Debt shall have been paid in
full, the Administrative Agent shall
be deemed never to have received the payments or distributions so avoided; and
(iii) during such Bankruptcy or Insolvency Proceeding, until
all Senior Debt shall be paid in full, the Administrative Agent shall (as
between the Administrative Agent and the Subordinated Creditors) have the
exclusive right to collect, foreclose upon, sell, transfer, liquidate or
otherwise dispose of, or exercise any other Enforcement Action with respect to,
all or any part of the Property of any of the Debtors in the manner deemed
appropriate by the Administrative Agent, without regard to the rights of any of
the Subordinated Creditors, and each of the Subordinated Creditors hereby agrees
not to hinder, delay or otherwise interfere with any Enforcement Action by the
Administrative Agent with respect to any of the Debtors, any of their Property
or any part thereof.
SECTION 2.7. Delivery of Prohibited Payments or Distributions on
--------------------------------------------------------
Account of Subordinated Debt. If any payment or distribution on account of
-------------------------------
Subordinated Debt shall at any time be collected or received by any of the
Subordinated Creditors, by way of set-off or otherwise, and such collection or
receipt shall not be expressly permitted by this Article II at the time of such
collection or receipt, then such payment or distribution shall be paid over or
delivered forthwith to the Administrative Agent for application to Senior Debt.
Payments or distributions on account of Subordinated Debt paid or delivered to
the Administrative Agent in compliance with this Article II that are in the form
of cash shall be used to pay Senior Debt. Any such payments or distributions
that are not in the form of cash shall be held by the Administrative Agent as
security for the payment of Senior Debt. The Administrative Agent shall be
entitled to sell, assign, transfer or dispose of such Property as the
Administrative Agent deems appropriate. Cash proceeds of any such non-cash
payments or distributions on account of Subordinated Debt shall, when such cash
proceeds are received by the Administrative Agent, be used to pay Senior Debt.
-17-
SECTION 2.8. Subrogation. Upon payment in full of all Senior Debt, the
------------
Subordinated Creditors shall be immediately subrogated to the rights of the
Senior Creditors (to the extent of payments and distributions previously made to
or for the account of the Senior Creditors pursuant to the provisions of this
Article II), to receive payments and distributions of Property of the Borrower
or of any of its Subsidiaries applicable to Senior Debt until all amounts owing
on Subordinated Debt shall be paid in full. No payments or distributions
applicable to Senior Debt which the Subordinated Creditors shall receive
by reason of their being subrogated to the rights of the Senior Creditors
pursuant to the provisions of this Section 2.8 shall, as between the Borrower or
any of its Subsidiaries, any of their creditors other than the Senior Creditors,
and the Subordinated Creditors, be deemed to be a payment by such Person to or
for the account of any Subordinated Debt; and, for the purposes of such
subrogation, no payments or distributions to the Senior Creditors of any
Property to which the Subordinated Creditors would be entitled except for the
provisions of this Agreement, and no payment over pursuant to provisions of this
Agreement, to the Senior Creditors by the Subordinated Creditors, shall, as
between the Borrower or any of its Subsidiaries, any of their creditors other
than the Senior Creditors, and the Subordinated Creditors, be deemed to be a
payment by such Person to or for the account of any Senior Debt, it being
understood that the provisions of this Agreement are intended solely for the
purpose of defining the relative rights of the Subordinated Creditors, on the
one hand, and the Senior Creditors, on the other hand, and nothing contained in
this Section 2.8 or elsewhere in this Agreement, is intended to or shall impair,
as between the Borrower or any of its Subsidiaries and the Subordinated
Creditors, the obligations of the Borrower and its Subsidiaries, which are
absolute and unconditional, to pay to the Subordinated Creditors, subject always
to the rights of the Senior Creditors, the Subordinated Debt as and when the
same shall become due and payable in accordance with its terms.
ARTICLE III
LIMITATIONS ON CERTAIN ENFORCEMENT
ACTIONS AND OTHER NEGATIVE COVENANTS
------------------------------------
SECTION 3.1. Prohibitions on Commencement of Certain Enforcement
--------------------------------------------------------
Actions. Until all of the Senior Debt shall have been paid in full, the
--------
Subordinated Creditors shall not at any time commence or institute, or join with
any other Person or Persons in commencing or instituting, any Enforcement Action
of any kind against the Borrower or any of the Borrower's Subsidiaries or
against any of the Property of the Borrower or any of its Subsidiaries, whether
with respect to any Subordinated Debt or otherwise.
-18-
SECTION 3.2. Limitations on Remedies Under Subordinated Debt Documents.
----------------------------------------------------------
Notwithstanding any contrary provision of any Subordinated Debt Document, the
occurrence or continuation of any Default or Event of Default of any kind
whatsoever under or with respect to any of the Senior Debt Documents shall not
constitute a "default" or an "event of default" under any of the Subordinated
Debt Documents.
SECTION 3.3. Limitations on Liens Securing Subordinated Debt.
-------------------------------------------------------
(a) The Borrower shall not at any time grant, or cause or permit any of
its Subsidiaries at any time to grant, to any of the Subordinated Creditors, and
the Subordinated Creditors shall not at any time acquire, demand, receive or
accept from the Borrower or from any of its Subsidiaries, any Liens on any
Property of any kind as security for any Subordinated Debt, unless (i) such
Liens shall at all times be junior in priority to Liens securing Senior Debt,
and (ii) at no time shall such Liens attach to any Property except Property
subject to Liens which secure the Senior Debt on terms and conditions
satisfactory to the Administrative Agent
(b) Liens on Property securing all or any part of the Senior Debt shall
at all times have priority in every respect over, and shall in all respects and
at all times be senior and superior to, all Liens (if any) on such Property
securing all or any part of the Subordinated Debt. The priorities specified in
this paragraph (b) for the Liens described herein shall be applicable (i)
whether or not any such Liens shall have been duly and properly created or
perfected, whether or not any such Liens shall be legal, valid, binding or
enforceable, and whether or not any such Liens shall or may be subject to
avoidance, or shall be avoided, as a fraudulent transfer or fraudulent
conveyance, in any case whether before or after the commencement of any
Bankruptcy or Insolvency Proceedings with respect to any Debtor, (ii) whether or
not any such Liens shall be acquired or created consensually or by attachment,
levy, execution, distraint or otherwise, and (iii) irrespective of (A) the time,
order or method of creation, attachment or perfection of any such Liens, (B) the
time or order of filing or recording of financing statements or other
Instruments pertaining to any such Liens, or (C) the possession of any of such
Property subject to any such Liens.
(c) Until all of the Senior Debt shall have been paid in full, the
Subordinated Creditors shall not at any time commence or institute, or join any
other Person or Persons in commencing or instituting, any Enforcement Action of
any kind with respect to any Liens securing all or any part of the Subordinated
Debt.
-19-
(d) Any Liens acquired in violation of paragraph (a) of this Section
3.3 shall be null and void ab initio, and none of the Subordinated Creditors
shall have any rights, remedies, claims, benefits or priorities, as secured
party or otherwise, in relation to any Property subject to any such Liens.
ARTICLE IV
WAIVERS AND CONSENTS
--------------------
SECTION 4.1. Waivers of Notice; etc. The obligations of each of the
------------------------
Subordinated Creditors and Debtors under this Agreement, and the subordination
arrangements and covenants contained herein, shall not be to any extent or in
any way or manner whatsoever impaired or otherwise affected by any of the
following, whether or not any of the Subordinated Creditors or Debtors shall
have had any notice or knowledge of any thereof:
(a) the dissolution, termination of existence, bankruptcy, liquidation,
insolvency, appointment of a receiver for all or any part of the Property of,
assignment for the benefit of creditors by, or the commencement of any
Bankruptcy or Insolvency Proceeding by or against, the Borrower or any of its
Subsidiaries;
(b) the absorption, merger or consolidation of, or the effectuation of
any other change whatsoever in the name, membership, constitution or place of
formation of, the Borrower or any of its Subsidiaries;
(c) any extension or postponement of the time for the payment of any
Senior Debt, the acceptance of any partial payment thereon, any and all other
indulgences whatsoever by the Senior Creditors in respect of any Senior Debt,
the taking, addition, substitution or release, in whole or in part, at any time
or times, of any collateral or Liens securing any Senior Debt, or the addition,
substitution or release, in whole or in part, of any Person or Persons primarily
or secondarily liable in respect of any Senior Debt;
(d) any action or delay in acting or failure to act on the part of any
Senior Creditor under any Senior Debt Document or in respect of any Senior Debt
or Liens securing any Senior Debt or otherwise, including (i) any action by any
Senior Creditor to enforce any of its rights, remedies or claims in respect of
Liens securing any Senior Debt, (ii) any failure by any Senior Creditor strictly
or diligently to assert any rights or to pursue any remedies or claims against
any of the Debtors or any other Person or Persons under any of the Senior Debt
Documents or provided by statute or at law or in equity, (iii) any failure by
-20-
any Senior Creditor to perfect or to preserve the perfection or priority of any
of its Liens securing any Senior Debt, or (iv) any failure or refusal by any
Senior Creditor to foreclose or to realize upon any Liens securing any Senior
Debt or to take any action to enforce any of its rights, remedies or claims
under any Senior Debt Document;
(e) any modification or amendment of, or any supplement or addition to,
any of the Senior Debt Documents;
(f) any waiver, consent or other action or acquiescence by any of the
Senior Creditors in respect of any default by the Borrower or by any of its
Subsidiaries in its performance or observance of or compliance with any term,
covenant or condition contained in any Senior Debt Document;
(g) any Senior Debt or any Senior Debt Document or any provision
thereof or any Liens securing any Senior Debt shall at any time or for any
reason whatsoever cease to be in full force or effect or shall be declared null
and void or illegal, invalid, unenforceable or inadmissible in evidence, or any
Senior Debt or any payments or distributions on account of Senior Debt or any
Liens securing Senior Debt shall be subject to avoidance, or shall be avoided,
as a fraudulent transfer or fraudulent conveyance, in any case whether prior to
or after the commencement of any Bankruptcy or Insolvency Proceedings by or
against the Borrower or any of its Subsidiaries;
(h) any Subordinated Debt or any Subordinated Debt Document or any
provision thereof or any Liens securing any Subordinated Debt shall at any time
or for any reason whatsoever cease to be in full force or effect or shall be
declared null and void or illegal, invalid, unenforceable or inadmissible in
evidence, or any Subordinated Debt or any payments or distributions on account
of Subordinated Debt or any Liens securing any Subordinated Debt shall be
subject to avoidance, or shall be avoided, as a fraudulent transfer or
fraudulent conveyance, in any case whether prior to or after the commencement of
Bankruptcy or Insolvency Proceedings by or against the Borrower or any of its
Subsidiaries;
(i) the existence or creation at any time or times on or after the date
of this Agreement of any claim, defense, right of set-off or counterclaim of any
nature whatsoever of any Subordinated Creditor against the Borrower or any of
its Subsidiaries or against any of the Senior Creditors; or
(j) the existence of any other condition or circumstance or the
occurrence of any other event that might otherwise constitute a legal or
-21-
equitable discharge of or a suretyship defense to the performance by any
Subordinated Creditor of any of its obligations or other liabilities hereunder.
Each of the Subordinated Creditors hereby absolutely, unconditionally and
irrevocably assents to and waives notice of any and all matters hereinbefore
specified in clauses (a) through (j). This Agreement shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
of any Senior Debt previously made by any Debtor to any of the Senior Creditors
is rescinded or must otherwise be returned by any of the Senior Creditors in
connection with any Bankruptcy or Insolvency Proceedings with respect to any of
the Debtors or otherwise, all as though such payment of Senior Debt had not been
made.
ARTICLE V
ADDITIONAL REPRESENTATIONS AND OTHER COVENANTS
----------------------------------------------
SECTION 5.1. Information Regarding Subordinated Debt. Each of the
-------------------------------------------
Borrower and the Subordinated Creditors shall furnish to the Administrative
Agent from time to time all such information regarding Subordinated Debt as the
Administrative Agent may from time to time reasonably request.
SECTION 5.2. Additional Representations and Covenants of Subordinated
---------------------------------------------------------
Creditors.
----------
(a) No part of the Subordinated Debt is evidenced by any Instrument or
other writing a true and complete copy which has not previously been furnished
to the Administrative Agent. The Subordinated Creditors are the lawful owners of
the Subordinated Debt, and no part thereof has been assigned to or subordinated
or subjected to any Liens in favor of any Person or Persons, except in
compliance with the provisions of paragraph (b) of this Section 5.2.
(b) Until all of the Senior Debt shall have been paid in full, none of
the Subordinated Creditors shall sell, assign, pledge, encumber or otherwise
transfer any Subordinated Debt or any rights or interests in any Subordinated
Debt or any Subordinated Debt Documents, unless, prior to and in connection with
any such transfer, the purchaser, assignee or other transferee thereof shall
have agreed in writing to become a party to and bound by this Agreement as a
Subordinated Creditor hereunder.
(c) No part of the Subordinated Debt is secured by any Liens on
Property of any kind of the Borrower or any of its Subsidiaries
-22-
SECTION 5.3. No Other Subordination. Each Subordinated Creditor
-------------------------
represents that the Subordinated Debt is not subordinated to any obligations
other than the Senior Debt and covenants that it will not subordinate the
Subordinated Debt to any other obligations except with the prior written consent
of the Administrative Agent.
SECTION 5.4. Legend; etc. Each of the Debtors and the Subordinated
-------------
Creditors covenants to cause each Instrument or certificate representing or
evidencing any of the Subordinated Debt to have affixed upon it a legend
substantially as follows:
-----------------------------------------------------------------
"THIS SUBORDINATED NOTE IS SUBORDINATED AND MADE JUNIOR IN
RIGHT OF PAYMENT, AND MADE SUBJECT TO RESTRICTIONS AND
LIMITATIONS ON ENFORCEMENT (INCLUDING ACCELERATION) AND
RESTRICTION AND LIMITATIONS ON SALE, ASSIGNMENT, ENCUMBRANCE
AND OTHER TRANSFERS, ALL UPON THE TERMS, IN THE MANNER, AND TO
THE EXTENT SET FORTH IN THE SUBORDINATION AGREEMENT, DATED AS
OF JUNE 26, 2002, AS FROM TIME TO TIME IN EFFECT, AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER SUBORDINATED
CREDITORS FROM TIME TO TIME PARTY THERETO, UNITED STATES
CELLULAR CORPORATION, AND TORONTO DOMINION (TEXAS), INC., AS
ADMINISTRATIVE AGENT."
-----------------------------------------------------------------
The Parent Company and the Debtors shall cause any financial statement
describing or listing or otherwise reflecting the existence of any Funded Debt
included in the Subordinated Debt to indicate clearly
the subordinated character thereof, to the extent appropriate under Generally
Accepted Accounting Principles.
SECTION 5.5. Consent to Credit Agreement. Each Subordinated Creditor
----------------------------
acknowledges receipt from the Parent Company of a correct and complete copy of
the Senior Credit Agreement as in effect as of the date such Subordinated
Creditor became a party to this Agreement, and consents to all of the provisions
of the Senior Credit Agreement as in effect as of such date.
SECTION 5.6. No Impairment. No right of the Senior Creditors under this
--------------
Agreement shall at any time be prejudiced or impaired by any conduct on the part
of any Debtor or any Subordinated Creditor, including any noncompliance by any
Debtor or any Subordinated Creditor with the terms of
-23-
this Agreement, or by any conduct, in good faith, by any Senior Creditor,
regardless of any knowledge thereof which any Senior Creditor may have or
otherwise be charged with.
ARTICLE VI
MISCELLANEOUS
-------------
SECTION 6.1. Effectiveness of Agreement. This Agreement shall be
-----------------------------
effective as to, and shall be enforceable by the Administrative Agent against,
each Subordinated Creditor from and after the execution and delivery by such
Subordinated Creditor of a counterpart of this Agreement or a Subordinated
Creditor Supplement. The agreements and obligations of each Subordinated
Creditor under this Agreement are separate and independent from and in addition
to the agreements and obligations of each of the other Subordinated Creditors
and shall be enforceable by the Administrative Agent against each Subordinated
Creditor notwithstanding (a) the failure of any other Parent Affiliated Company
to execute and deliver a counterpart of this Agreement or a Subordinated
Creditor Supplement, (b) the invalidity, unenforceability or inadmissibility in
evidence of this Agreement against any one or more of the other Subordinated
Creditors, (c) the release by the Administrative Agent of all or any of the
other Subordinated Creditors from all or any part of their obligations under
this Agreement, or (d) any waiver, termination or cancellation by the
Administrative Agent of, or any consent by the Administrative Agent to any
departure from, any of the agreements or obligations of any other Subordinated
Creditor hereunder on any occasion or occasions, or any failure by the
Administrative Agent to enforce any of the agreements or obligations of any
other Subordinated Creditor hereunder on any occasion or occasions.
SECTION 6.2. Amendments, Waivers; etc. The provisions of this Agreement
-------------------------
may from time to time be amended if such amendment is in writing and consented
to by each of the parties hereto. No failure or delay on the part of any Person
in exercising any power or right under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. The remedies herein provided are cumulative and not exclusive of
any other remedies provided at law or in equity. No waiver or approval by a
Person under this Agreement shall, except as may be otherwise stated in such
waiver or approval, be applicable to any subsequent transactions.
SECTION 6.3. Further Assurances. The Subordinated Creditors shall
--------------------
execute and deliver all such further Instruments, and take all such further
-24-
action, as may be reasonably necessary or appropriate, or as the Administrative
Agent may reasonably request, in order to carry out the intent and purpose of
this Agreement. The Administrative Agent shall execute and deliver all such
further Instruments, and take all such further action, as may be reasonably
necessary or appropriate, or as the Subordinated Creditors may reasonably
request, in order to carry out the intent and purposes of this Agreement.
SECTION 6.4. Specific Performance; Remedies Cumulative. Each of the
---------------------------------------------
Subordinated Creditors and Debtors (a) acknowledges that a remedy at law for any
breach or attempted breach of this Agreement may be inadequate, (b) agrees that
the Administrative Agent and the other Senior Creditors shall be entitled to
specific performance, and (c) agrees to waive any requirement for obtaining or
posting any bond in connection with seeking or obtaining any such injunctive or
equitable relief. The rights and remedies of each of the Administrative Agent
and the other Senior Creditors provided herein are cumulative, and not exclusive
of any of the rights and remedies which may be granted or provided by applicable
law or by any of the other Senior Debt Documents.
SECTION 6.5. Severability. 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 of this Agreement or affecting the
validity or enforceability of any such provision in any other jurisdiction.
SECTION 6.6. Continuing Agreement. This Agreement shall in all respects
---------------------
be a continuing agreement, and this Agreement and the agreements and obligations
of each of the Subordinated Creditors hereunder shall remain in full force and
effect until all Senior Debt shall be paid in full.
SECTION 6.7. Successors and Assigns. This Agreement shall be binding
-----------------------
upon, and shall inure to the benefit of, each of the Administrative Agent and
the other Senior Creditors, the Subordinated Creditors and the Borrower and
their respective successors in title and permitted assigns.
SECTION 6.8. Notices. All notices and other communications provided to
--------
a party hereunder shall (except as otherwise specifically provided herein) be in
writing and shall be delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, or sent by telecopy and confirmed
by delivery via courier or postal service and shall be addressed or delivered to
it at its address designated for notices set forth on Schedule F attached hereto
(as amended or supplemented from time to time) or at such other address as may
-25-
be designated by such party in a notice to the other parties. Any such notice
shall be deemed to have been duly received and to have become effective (a) if
telecopied, or delivered by hand to a responsible officer of the party to which
it is directed, at the time of the receipt thereof by such officer and (b) if
sent by registered or certified first-class mail, postage prepaid, three days
after the date mailed.
SECTION 6.9. Loan Document; etc. This Agreement constitutes a "Loan
---------------------
Document" for all purposes of the Senior Credit Agreement and the other Senior
Loan Documents. This Agreement, constitutes the entire agreement among the
Senior Creditors and the Subordinated Creditors with respect to the subject
matter hereof and supersedes any prior or contemporaneous agreements,
representations, warranties or understandings, whether oral, written or implied,
as to the subject matter of this Agreement.
SECTION 6.10. CHOICE OF LAW. THIS AGREEMENT IS A CONTRACT UNDER THE
--------------
LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW
Section 5-1401).
SECTION 6.11. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
---------------------
WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT
OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EACH SUBORDINATED CREDITOR (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY SENIOR CREDITOR HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH SEMIOR CREDITOR WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
SECTION 6.12. Survival. The agreements and obligations of each party
---------
hereto under Sections 6.10, 6.11, 6.14 and 6.15 hereof shall survive the
termination of this Agreement and the payment in full of all Senior Debt. The
representations and warranties made by the Debtors or (as the case may be) by
the Subordinated Creditors in this Agreement shall survive the execution and
delivery of this Agreement.
-26-
SECTION 6.13. Termination. This Agreement and all of the covenants and
------------
other obligations of each of the parties hereto shall, except as otherwise
expressly provided by Section 6.12, terminate upon, and be of no further force
or effect whatsoever after, the payment in full of all of the Senior Debt.
SECTION 6.14. Indemnification. Each party hereto (each, an
----------------
"indemnifying party") agrees to indemnify and hold harmless each of the other
parties hereto from and against any and all losses, damages, claims and
liabilities which such other parties shall sustain or incur and which shall
arise directly out of or which shall be directly caused by any breach by the
indemnifying party of any of its covenants or agreements hereunder.
SECTION 6.15. Expenses of Enforcement. Each Subordinated Creditor
-------------------------
hereby agrees to pay to the Administrative Agent, on demand by the
Administrative Agent, all reasonable out-of-pocket costs and expenses
(including, but not limited to, court costs and expenses and reasonable fees and
disbursements of attorneys) at any time or from time to time incurred or
sustained by the Administrative Agent or any of the other Senior Creditors in
connection with its enforcement of any of its claims or remedies against such
Subordinated Creditor under this Agreement.
SECTION 6.16. Obligations Several; No Third Parties Benefited.
------------------------------------------------
(a) The agreements and obligations of each of the Subordinated
Creditors under this Agreement are several and not joint. No Subordinated
Creditor shall be responsible for the failure of any other Subordinated Creditor
to perform its obligations hereunder.
(b) This Agreement is made and entered into for the sole protection and
legal benefit of each of the Administrative Agent and the other Senior Creditors
and its successors in title and assigns. It is not the intention of the parties
hereto to confer any third-party beneficiary rights, and this Agreement shall
not be construed so as to confer any such rights upon any other Person or
Persons not party hereto. Neither the Borrower nor any of its Subsidiaries nor
any other Person or Persons (other than a party hereto) shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement.
SECTION 6.17. Counterparts. This Agreement may be executed in any
-------------
number of counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed and delivered, shall be an
original, but all of which shall together constitute one and the same
Instrument. A set of counterparts executed by all of the parties hereto shall be
-27-
lodged with the Borrower and the Administrative Agent. Delivery by facsimile by
any of the parties hereto of an executed counterpart hereof, of any amendment or
waiver hereto or any Subordinated Creditor Supplement or Subordinated Debt
Supplement, shall be as effective as an original executed document and shall be
considered a representation that such original executed document, as the case
may be, will be delivered.
SECTION 6.18. Headings. The descriptive headings in this Agreement are
---------
inserted for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement or any provision hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
***Signature Pages Follow***
-28-
IN WITNESS WHEREOF, the parties hereto have caused this SUBORDINATION
AGREEMENT to be executed by their duly authorized officers as of the day and in
the year first above written.
THE SUBORDINATED CREDITORS
--------------------------
TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: V.P. and Treasurer
Signature Page to Subordination Agreement
***Signature Page Follows***
-29-
THE BORROWER:
------------
UNITED STATES CELLULAR CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President - Finance
(Chief Financial Officer)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President of Financial Services
THE ADMINISTRATIVE AGENT
------------------------
TORONTO DOMINION (TEXAS), INC., as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page to Subordination Agreement
SCHEDULE A
----------
SCHEDULE A TO THE SUBORDINATION AGREEMENT, DATED AS OF
JUNE 26, 2002, AMONG TELEPHONE AND DATA SYSTEMS, INC.,
THE OTHER SUBORDINATED CREDITORS, UNITED STATES
CELLULAR CORPORATION, AS A DEBTOR, AND TORONTO
DOMINION (TEXAS), INC., AS ADMINISTRATIVE AGENT
---------------------------------------------------------------------
LIST OF DEBTORS
---------------
A. BORROWER
--------
United States Cellular Corporation
B. CERTAIN SUBSIDIARIES OF UNITED STATES CELLULAR CORPORATION
-----------------------------------------------------------------------
None.
-----
SCHEDULE B
----------
SCHEDULE B TO THE SUBORDINATION AGREEMENT, DATED AS
OF JUNE 26, 2002, AMONG TELEPHONE AND DATA SYSTEMS,
INC., THE OTHER SUBORDINATED CREDITORS, UNITED STATES
CELLULAR CORPORATION, AS A DEBTOR, AND TORONTO
DOMINION (TEXAS), INC., AS ADMINISTRATIVE AGENT
---------------------------------------------------------------------
PERMITTED SUB DEBT PAYMENTS
---------------------------
None, except that the Borrower shall be entitled to refinance, and to
repay in its entirety exclusively out of the proceeds of such refinancing, its
promissory note in the original principal amount of $105,000,000 payable to the
Parent Company; provided, however, that all Funded Debt issued or incurred by
the Borrower in order to refinance such note shall be at all times subordinated
to the Senior Debt:
(a) on terms and conditions at least as favorable to the Senior
Creditors as the terms and conditions set forth in this Agreement; or
(b) if the Funded Debt issued or incurred by the Borrower to refinance
such note is public subordinated indebtedness, then on market terms for public
subordinated indebtedness at the time such Funded Debt is issued or incurred.
SCHEDULE C
----------
SCHEDULE C TO THE SUBORDINATION AGREEMENT, DATED AS OF
JUNE 26, 2002, AMONG TELEPHONE AND DATA SYSTEMS, INC.,
THE OTHER SUBORDINATED CREDITORS, UNITED STATES
CELLULAR CORPORATION, AS A DEBTOR, AND TORONTO
DOMINION (TEXAS), INC., AS ADMINISTRATIVE AGENT
---------------------------------------------------------------------
LIST OF SUBORDINATED CREDITORS
------------------------------
Telephone and Data Systems, Inc.
SCHEDULE D
----------
SCHEDULE D TO THE SUBORDINATION AGREEMENT, DATED AS OF
JUNE 26, 2002, AMONG TELEPHONE AND DATA SYSTEMS, INC.,
THE OTHER SUBORDINATED CREDITORS, UNITED STATES CELLULAR
CORPORATION, AS A DEBTOR, AND TORONTO
DOMINION (TEXAS), INC., AS ADMINISTRATIVE AGENT
---------------------------------------------------------------------
SUBORDINATED DEBT
-----------------
Outstanding Principal Maturity Date
Name of Debtor Amount of Funded Debt (if any)
-------------- ---------------------- -------------
SCHEDULE E
----------
SCHEDULE E TO THE SUBORDINATION AGREEMENT, DATED AS OF
JUNE 26, 2002, AMONG TELEPHONE AND DATA SYSTEMS, INC.,
THE OTHER SUBORDINATED CREDITORS, UNITED STATES
CELLULAR CORPORATION, AS A DEBTOR, AND TORONTO
DOMINION (TEXAS), INC., AS ADMINISTRATIVE AGENT
---------------------------------------------------------------------
SUBORDINATED DEBT DOCUMENTS
---------------------------
Name of Debtor Name and Description of Instrument
-------------- ----------------------------------
SCHEDULE F
----------
SCHEDULE F TO THE SUBORDINATION AGREEMENT, DATED AS OF
JUNE 26, 2002, AMONG TELEPHONE AND DATA SYSTEMS, INC.,
THE OTHER SUBORDINATED CREDITORS, UNITED STATES
CELLULAR CORPORATION, AS A DEBTOR, AND TORONTO
DOMINION (TEXAS), INC., AS ADMINISTRATIVE AGENT
---------------------------------------------------------------------
ADDRESSES FOR NOTICES
---------------------
1.1. Address of Subordinated Creditors.
----------------------------------
Telephone and Data Systems, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
With a Copy To (which shall not itself constitute notice):
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
Bank One Plaza
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Secretary of Telephone and Data
Systems, Inc.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
1.2. Address of Debtors.
-------------------
United States Cellular Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Executive Vice President-Finance
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
With a Copy To (which shall not itself constitute notice):
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
Bank One Plaza
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary of the Borrower
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
-and-
Telephone and Data Systems, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Treasurer
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
-and-
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
Bank One Plaza
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Secretary of Telephone and Data
Systems, Inc.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
1.3. Address of Administrative Agent.
--------------------------------
Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy To (which shall not itself constitute notice):
▇▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
---------
FORM OF
-------
SUBORDINATED CREDITOR SUPPLEMENT
--------------------------------
THIS SUBORDINATED CREDITOR SUPPLEMENT (this "Supplement"), dated as of
_____________, is made by the undersigned. Unless otherwise defined herein,
capitalized terms used herein and defined in the Subordination Agreement
referred to below are used herein as so defined.
RECITALS:
--------
A. Reference is made to the Subordination Agreement (the "Subordination
Agreement"), dated as of June 26, 2002, by and among Telephone and Data Systems,
Inc., as a Subordinated Creditor, the other Subordinated Creditors party
thereto, United States Cellular Corporation, as a Debtor, and Toronto Dominion
(Texas), Inc., as Administrative Agent for the Senior Creditors.
B. Pursuant to Section 2.1(b) of the Subordination Agreement, the
undersigned intends to become a "Subordinated Creditor" for all purposes of the
Subordination Agreement and executes and delivers this Supplement in order to
become a "Subordinated Creditor" for all purposes of the Subordination
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Subordinated Creditor. By executing and delivering this Supplement,
the undersigned hereby becomes a party to the Subordination Agreement as a
"Subordinated Creditor" thereunder for all purposes of the Subordination
Agreement, and hereby covenants and agrees to be bound by and comply with all
terms and conditions thereunder.
2. Subordinated Debt and Subordinated Debt Documents. By executing and
delivering this Supplement, the undersigned hereby also attaches a Supplement to
Schedule D to the Subordination Agreement and Supplement to Schedule E to the
Subordination Agreement and agrees that (a) the "Subordinated Debt" owing to the
undersigned identified and described in such Supplement to Schedule
D shall be and become "Subordinated Debt" for all purposes of the Subordination
Agreement, and (b) the "Subordinated Debt Documents" to which the undersigned is
a party identified and described in such Supplement to Schedule E shall be and
become "Subordinated Debt Documents" for all purposes of the Subordination
Agreement.
3. Attachment to Subordination Agreement. The undersigned hereby agrees
that this Supplement, together with the attached Supplement to Schedule D and
Supplement to Schedule E, will be attached to the Subordination Agreement and
deemed to amend such existing Schedules.
4. Representations and Warranties. The undersigned hereby makes each of
the representations and warranties contained in Sections 5.2 and 5.3 of the
Subordination Agreement on the date hereof, after giving effect to this
Supplement.
5. Counterparts. This Supplement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be an original, but all of which
shall together constitute one and the same Instrument. A set of counterparts
executed by all of the parties hereto shall be lodged with the Borrower and the
Administrative Agent. Delivery by facsimile by any of the parties hereto of an
executed counterpart hereof shall be effective as an original executed document
and shall be considered a representation that an original executed counterpart
hereof will be delivered.
6. GOVERNING LAW. THIS SUPPLEMENT IS A CONTRACT UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW Section 5-1401).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
***Signature Page Follows***
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
duly executed and delivered as of the date first above written.
[NAME OF SUBORDINATED CREDITOR], as Subordinated Creditor
By:______________________________________________________
Name:
Title:
Agreed to and Accepted:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:_________________________________________
Name:
Title:
Signature Page to Subordinated Creditor Supplement
SUBORDINATED CREDITOR SUPPLEMENT
Dated as of ______________, ____
-------------------------------------------------------------
SUPPLEMENT TO SCHEDULE D TO THE SUBORDINATION
AGREEMENT, DATED AS OF JUNE 26, 2002, AMONG TELEPHONE
AND DATA SYSTEMS, INC., THE OTHER SUBORDINATED
CREDITORS, UNITED STATES CELLULAR CORPORATION, AS A
DEBTOR, AND TORONTO DOMINION (TEXAS), INC., AS
ADMINISTRATIVE AGENT
---------------------------------------------------------------------
SUBORDINATED DEBT
-----------------
Outstanding Principal Maturity Date
Name of Debtor Amount of Funded Debt (if any)
-------------- --------------------- -------------
SUBORDINATED CREDITOR SUPPLEMENT
dated as of ________________, ____
-------------------------------------------------------------------------
SUPPLEMENT TO SCHEDULE E TO THE SUBORDINATION
AGREEMENT, DATED AS OF JUNE 26, 2002, AMONG TELEPHONE
AND DATA SYSTEMS, INC., THE OTHER SUBORDINATED
CREDITORS, UNITED STATES CELLULAR CORPORATION, AS A
DEBTOR, AND TORONTO DOMINION (TEXAS), INC., AS
ADMINISTRATIVE AGENT
---------------------------------------------------------------------
SUBORDINATED DEBT DOCUMENTS
---------------------------
Name of Debtor Name and Description of Instrument
-------------- ----------------------------------
EXHIBIT B
---------
FORM OF
-------
SUBORDINATED DEBT SUPPLEMENT
----------------------------
THIS SUBORDINATED DEBT SUPPLEMENT (this "Supplement"), dated as of
_____________, is made by the undersigned Subordinated Creditor. Unless
otherwise defined herein, capitalized terms used herein and defined in the
Subordination Agreement referred to below are used herein as so defined.
RECITALS:
--------
A. Reference is made to the Subordination Agreement (the "Subordination
Agreement"), dated as of June 26, 2002, by and among Telephone and Data Systems,
Inc., as a Subordinated Creditor, the other Subordinated Creditors party
thereto, United States Cellular Corporation, as a Debtor, and Toronto Dominion
(Texas), Inc., as Administrative Agent for the Senior Creditors.
B. Pursuant to Section 2.1(c) of the Subordination Agreement, the
undersigned Subordinated Creditor intends that the "Subordinated Debt" and the
"Subordinated Debt Documents" identified and described on the Schedules attached
hereto shall be and become part of the "Subordinated Debt" and "Subordinated
Debt Documents" for all purposes of the Subordination Agreement and delivers
this Supplement so that such "Subordinated Debt" and "Subordinated Debt
Documents" shall be and become part of the "Subordinated Debt" and "Subordinated
Debt Documents" for all purposes of the Subordination Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Subordinated Debt and Subordinated Debt Documents. By executing and
delivering this Supplement, the undersigned Subordinated Creditor hereby
attaches a Supplement to Schedule D to the Subordination Agreement and
Supplement to Schedule E to the Subordination Agreement and agrees that (a) the
"Subordinated Debt" owing to the undersigned Subordinated Creditor identified
and described on such Supplement to Schedule D shall be and become "Subordinated
Debt" for all purposes of the Subordination Agreement and, (b) the "Subordinated
Debt Documents" to which
the undersigned Subordinated Creditor is a party identified in such Supplement
to Schedule E shall be and become "Subordinated Debt Documents" for all purposes
of the Subordination Agreement.
2. Attachment to Subordination Agreement. The undersigned Subordinated
Creditor hereby agrees that this Supplement, together with the attached
Supplement to Schedule D and Supplement to Schedule E, will be attached to the
Subordination Agreement and deemed to amend such existing Schedules.
3. Representations and Warranties. The undersigned Subordinated
Creditor hereby certifies that each of the representations and warranties
contained in Sections 5.2 and 5.3 of the Subordination Agreement were true as of
the date as of which they were made and are true at and as of the date hereof.
4. Counterparts. This Supplement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be an original, but all of which
shall together constitute one and the same Instrument. A set of counterparts
executed by all of the parties hereto shall be lodged with the Borrower and the
Administrative Agent. Delivery by facsimile by any of the parties hereto of an
executed counterpart hereof shall be effective as an original executed document
and shall be considered a representation that an original executed counterpart
hereof will be delivered.
5. GOVERNING LAW. THIS SUPPLEMENT IS A CONTRACT UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW Section 5-1401).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
***Signature Page Follows***
IN WITNESS WHEREOF, the undersigned Subordinated Creditor has caused
this Supplement to be duly executed and delivered as of the date first above
written.
[NAME OF SUBORDINATED CREDITOR], as Subordinated Creditor
By:______________________________________________________
Name:
Title:
Agreed to and Accepted:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:_________________________________________
Name:
Title:
Signature Page to Subordinated Debt Supplement
SUBORDINATED DEBT SUPPLEMENT
dated as of ______________, ____
---------------------------------------------------------------------
SUPPLEMENT TO SCHEDULE D TO THE SUBORDINATION
AGREEMENT, DATED AS OF JUNE 26, 2002, AMONG TELEPHONE
AND DATA SYSTEMS, INC., THE OTHER SUBORDINATED
CREDITORS, UNITED STATES CELLULAR CORPORATION, AS A
DEBTOR, AND TORONTO DOMINION (TEXAS), INC., AS
ADMINISTRATIVE AGENT
---------------------------------------------------------------------
SUBORDINATED DEBT
-----------------
Outstanding Principal Maturity Date
Name of Debtor Amount of Funded Debt (if any)
-------------- --------------------- --------------
SUBORDINATED DEBT SUPPLEMENT
dated as of ________________, ____
---------------------------------------------------------------------
SUPPLEMENT TO SCHEDULE E TO THE SUBORDINATION
AGREEMENT, DATED AS OF JUNE 26, 2002, AMONG TELEPHONE
AND DATA SYSTEMS, INC., THE OTHER SUBORDINATED
CREDITORS, UNITED STATES CELLULAR CORPORATION, AS A
DEBTOR, AND TORONTO DOMINION (TEXAS), INC., AS
ADMINISTRATIVE AGENT
---------------------------------------------------------------------
SUBORDINATED DEBT DOCUMENTS
---------------------------
Name of Debtor Name and Description of Instrument
-------------- ----------------------------------