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EXHIBIT 10.1
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CREDIT AGREEMENT
DATED AS OF MAY 4, 2001
By and Among
CT COMMUNICATIONS, INC.
and
the Subsidiary Borrowers referred to herein,
as Borrowers,
and
COBANK, ACB,
as Administrative Agent and a Lender,
and
the other Lenders referred to herein
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TABLE OF CONTENTS
SECTION 1 AMOUNTS AND TERMS OF LOANS..............................................................................1
1.1 Loans...........................................................................................1
(A) Term Loans.............................................................................1
(B) Revolving Loans........................................................................2
(C) Notes..................................................................................2
(D) Advances...............................................................................2
1.2 Interest........................................................................................2
(A) Interest Options.......................................................................2
(B) Applicable Margins.....................................................................2
(C) Interest Periods.......................................................................3
(D) Calculation and Payment................................................................3
(E) Default Rate of Interest...............................................................4
(F) Excess Interest........................................................................4
(G) Selection, Conversion or Continuation of Loans; LIBOR Availability.....................4
1.3 Notice of Borrowing, Conversion or Continuation of Loans........................................5
1.4 Fees and Expenses...............................................................................5
(A) Revolving Loan Commitment Fee..........................................................5
(B) Certain Other Fees.....................................................................5
(C) Breakage Fees..........................................................................5
(D) Expenses and Attorneys Fees............................................................6
1.5 Payments........................................................................................6
1.6 Repayments and Reduction of Loans and Commitments...............................................7
(A) Scheduled Repayments and Reductions of Term Loans and Revolving Loan Commitment........7
(B) Reductions Resulting From Mandatory Repayments.........................................7
(C) Voluntary Reduction of Revolving Loan Commitment.......................................7
(D) Mandatory Repayments...................................................................8
1.7 Voluntary Prepayments and Other Mandatory Repayments............................................8
(A) Voluntary Prepayment of Loans..........................................................8
(B) Repayments from Insurance Proceeds.....................................................8
(C) Repayments from Asset Dispositions.....................................................8
(D) Repayment Upon Failure to Obtain PUC Approval..........................................8
1.8 Application of Repayments; Payment of Breakage Fees, Etc........................................9
1.9 Loan Accounts...................................................................................9
1.10 Changes in LIBOR Rate Availability..............................................................9
1.11 Capital Adequacy and Other Adjustments.........................................................10
1.12 Optional Prepayment/Replacement of Lender in Respect of Increased Costs........................10
1.13 Taxes..........................................................................................11
(A) No Deductions.........................................................................11
(B) Foreign Lenders.......................................................................12
1.14 Changes in Tax Laws............................................................................12
1.15 Term of This Agreement.........................................................................13
SECTION 2 AFFIRMATIVE COVENANTS..................................................................................13
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2.1 Compliance With Laws...........................................................................13
2.2 Maintenance of Books and Records; Insurance....................................................13
2.3 Inspection; Lender Meeting.....................................................................14
2.4 Legal Existence, Etc...........................................................................14
2.5 Use of Proceeds................................................................................14
2.6 Further Assurances.............................................................................14
2.7 CoBank Patronage Capital.......................................................................14
2.8 Additional Subsidiaries........................................................................15
2.9 Utilities Commission Approval..................................................................15
SECTION 3 NEGATIVE COVENANTS.....................................................................................15
3.1 Indebtedness...................................................................................15
3.2 Liens and Related Matters......................................................................16
(A) No Liens..............................................................................16
(B) No Negative Pledges...................................................................16
3.3 Investments....................................................................................16
3.4 Contingent Obligations.........................................................................18
3.5 Restricted Junior Payments.....................................................................18
3.6 Restriction on Fundamental Changes.............................................................19
3.7 Limitations on Exchange and Issuance of Capital Stock..........................................19
3.8 Disposal of Assets or Subsidiary Stock.........................................................20
3.9 Transactions with Affiliates...................................................................20
3.10 Conduct of Business............................................................................20
3.11 Fiscal Year....................................................................................20
3.12 Amendments: Payments and Prepayments of Subordinated Debt......................................21
SECTION 4 FINANCIAL COVENANTS AND REPORTING......................................................................21
4.1 Total Leverage Ratio...........................................................................21
4.2 Indebtedness to Total Capitalization Ratio.....................................................21
4.3 Financial Statements and Other Reports.........................................................21
(A) Quarterly Financials..................................................................21
(B) Year-End Financials...................................................................21
(C) Borrower Compliance Certificate.......................................................22
(D) Accountants' Reliance Letter..........................................................22
(E) Accountants' Reports..................................................................22
(F) Projections...........................................................................22
(G) SEC Filings and Press Releases........................................................23
(H) Events of Default, Etc................................................................23
(I) Litigation............................................................................23
(J) Supplemented Schedules; Notice of Corporate Changes...................................23
(K) Regulatory and Other Notices..........................................................23
(L) Other Information.....................................................................24
4.4 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement.............24
SECTION 5 REPRESENTATIONS AND WARRANTIES.........................................................................24
5.1 Disclosure.....................................................................................24
5.2 No Material Adverse Effect.....................................................................24
5.3 Organization, Powers, Authorization and Good Standing..........................................25
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(A) Organization and Powers...............................................................25
(B) Authorization; Binding Obligation.....................................................25
(C) Qualification.........................................................................25
5.4 Compliance of Agreement, Loan Documents and Borrowings with Applicable Law.....................25
5.5 Compliance with Law; Governmental Approvals....................................................25
5.6 Tax Returns and Payments.......................................................................26
5.7 Environmental Matters..........................................................................26
5.8 Financial Statements...........................................................................26
5.9 Intellectual Property..........................................................................26
5.10 Litigation, Investigations, Audits, Etc........................................................27
5.11 Employee Labor Matters.........................................................................27
5.12 Employee Benefit Plans.........................................................................27
5.13 Communications Regulatory Matters..............................................................27
5.14 Solvency.......................................................................................28
5.15 Investment Company Act; Public Utility Holding Act.............................................28
5.16 Certain Agreements and Material Contracts......................................................28
5.17 Capitalization.................................................................................28
5.18 Title to Properties............................................................................29
SECTION 6 EVENTS OF DEFAULT AND RIGHTS AND REMEDIES..............................................................30
6.1 Event of Default...............................................................................30
(A) Payment...............................................................................30
(B) Default in Other Agreements...........................................................30
(C) Breach of Certain Provisions..........................................................30
(D) Breach of Warranty....................................................................30
(E) Other Defaults Under Loan Documents...................................................30
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc..................................30
(G) Voluntary Bankruptcy; Appointment of Receiver; Etc....................................31
(H) Governmental Liens....................................................................31
(I) Judgment and Attachments..............................................................31
(J) Dissolution...........................................................................31
(K) Solvency..............................................................................31
(L) Injunction............................................................................31
(M) ERISA; Pension Plans..................................................................32
(N) Environmental Matters.................................................................32
(O) Invalidity of Loan Documents..........................................................32
(P) Damage; Strike; Casualty..............................................................32
(Q) Licenses and Permits..................................................................32
(R) Material Adverse Effect...............................................................32
(S) Certain Material Contracts............................................................33
(T) Hedging Agreement.....................................................................33
6.2 Suspension of Commitments......................................................................33
6.3 Acceleration...................................................................................33
6.4 Rights of Collection...........................................................................33
6.5 Consents.......................................................................................33
6.6 Performance by Administrative Agent............................................................34
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6.7 Set Off and Sharing of Payments................................................................34
6.8 Application of Payments........................................................................34
6.9 Adjustments....................................................................................35
SECTION 7 CONDITIONS TO LOANS....................................................................................35
7.1 Conditions to Initial Loan.....................................................................35
(A) Executed Loan and Other Documents.....................................................35
(B) Closing Certificates; Opinions........................................................35
(C) Consents..............................................................................36
(D) Financial Matters.....................................................................37
(E) Miscellaneous.........................................................................37
7.2 Conditions to All Loans........................................................................37
SECTION 8 ASSIGNMENT AND PARTICIPATION...........................................................................38
8.1 Assignments and Participations in Loans and Notes..............................................38
8.2 Administrative Agent...........................................................................40
(A) Appointment...........................................................................40
(B) Nature of Duties......................................................................40
(C) Rights, Exculpation, Etc..............................................................41
(D) Reliance..............................................................................41
(E) Indemnification.......................................................................41
(F) Administrative Agent Individually.....................................................42
(G) Notice of Default.....................................................................42
(H) Successor Administrative Agent........................................................43
(I) Dissemination of Information..........................................................43
8.3 Amendments, Consents and Waivers for Certain Actions...........................................43
8.4 Disbursement of Funds..........................................................................43
8.5 Disbursements of Advances; Payments............................................................44
(A) Pro Rata Treatment; Application.......................................................44
(B) Availability of Lender's Pro Rata Share...............................................44
(C) Return of Payments....................................................................44
SECTION 9 MISCELLANEOUS..........................................................................................45
9.1 Indemnities....................................................................................45
9.2 Amendments and Waivers.........................................................................45
9.3 Notices........................................................................................46
9.4 Failure or Indulgence Not Waiver; Remedies Cumulative..........................................46
9.5 Marshaling; Payments Set Aside.................................................................46
9.6 Severability...................................................................................47
9.7 Lenders' Obligations Several; Independent Nature of Lenders' Rights............................47
9.8 Headings.......................................................................................47
9.9 Governing Law..................................................................................47
9.10 Successors and Assigns.........................................................................47
9.11 No Fiduciary Relationship......................................................................47
9.12 Construction...................................................................................47
9.13 Confidentiality................................................................................47
9.14 Consent to Jurisdiction and Service of Process.................................................48
9.15 Waiver of Jury Trial...........................................................................48
9.16 Survival of Warranties and Certain Agreements..................................................49
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9.17 Entire Agreement...............................................................................49
9.18 Counterparts; Effectiveness....................................................................49
9.19 CT as Agent for Borrowers......................................................................49
9.20 Liability Unconditional........................................................................50
SECTION 10 DEFINITIONS...........................................................................................50
10.1 Certain Defined Terms..........................................................................50
10.2 Other Definitional Provisions..................................................................61
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SCHEDULES
Schedule 3.1 Certain Indebtedness
Schedule 3.3 Investments
Schedule 3.9 Transactions with Affiliates
Schedule 5.4 Governmental Approvals
Schedule 5.5 Compliance with Law
Schedule 5.6 Tax Returns and Payments
Schedule 5.10 Litigation, Etc.
Schedule 5.11 Employee Labor Matters
Schedule 5.13(A) License Information
Schedule 5.16 Certain Agreements and Material Contracts
Schedule 5.17 Capitalization
Schedule 10.1(B) Service Areas
EXHIBITS
Exhibit 1.3 Form of Notice of Borrowing/Conversion/Continuation
Exhibit 4.3(C) Form of Compliance Certificate
Exhibit 10.1(A) Form of Term Loan Promissory Note
Exhibit 10.1(B) Form of Revolving Loan Promissory Note
Exhibit 10.1(C) Form of Joinder Agreement
Exhibit 10.1(D) Form of Lender Addition Agreement
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INDEX OF DEFINED TERMS
Defined Term Defined in Section
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Accounting Changes ss.4.4
Adjustment Date ss.10.1
Administrative Agent ss.10.1
Affected Lender ss.1.12
Affiliate ss.10.1
Agreement ss.10.1
Annual Operating Cash Flow ss.10.1
Applicable Commitment Fee Percentage ss.10.1
Applicable Law ss.10.1
Asset Disposition ss.10.1
Bankruptcy Code ss.10.1
Base Rate ss.10.1
Base Rate Loan ss.10.1
Benefited Lender ss.6.9
Borrower(s) Preamble
Breakage Fee ss.1.4(C)
Business Day ss.10.1
Calculation Period ss.10.1
Cash Equivalents ss.10.1
Certificate of Exemption ss.1.13(B)
Closing Date ss.10.1
CoBank Preamble
Communications Act ss.10.1
Communications System ss.10.1
Compliance Certificate ss.4.3(C)
Contingent Obligation ss.10.1
Convertible/Redeemable Equity ss.3.7
CT Trust ss.3.3(E)
Default ss.10.1
Environmental Laws ss.10.1
Event of Default ss.6.1
Facilities ss.10.1
FCC ss.10.1
FDPA ss.2.2
Federal Funds Rate ss.10.1
Foreign Lender ss.1.13(B)
Funding Date ss.7.2
GAAP ss.10.1
Governmental Approvals ss.10.1
Governmental Authority ss.10.1
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Indebtedness ss.10.1
Indebtedness to Capitalization Ratio ss.10.1
Indemnitees ss.9.1
Intellectual Property Rights ss.5.9
Interest Period ss.1.2(C)
Investment ss.10.1
IRC ss.10.1
Lender(s) ss.10.1
Lender Addition Agreement ss.10.1
Letter of Non-Exemption ss.1.13(B)
LIBOR ss.10.1
LIBOR Loans ss.10.1
LIBOR Margin ss.10.1
Licenses ss.10.1
Lien ss.10.1
Loan(s) ss.10.1
Loan Commitment(s) ss.10.1
Loan Documents ss.10.1
Material Adverse Effect ss.10.1
Material Contracts ss.10.1
Net Proceeds ss.10.1
Note(s) ss.10.1
Notice of Borrowing/Conversion/Continuation ss.1.3
Obligations ss.10.1
Operating Cash Flow ss.10.1
PCS System ss.10.1
Permitted Acquisition ss.3.3(D)
Permitted Encumbrances ss.10.1
Person ss.10.1
Prime Rate ss.10.1
Prior Indebtedness Recitals
Pro Rata Share ss.10.1
Projections ss.10.1
PUC ss.10.1
Quoted Rate ss.10.1
Quoted Rate Loan ss.10.1
Quoted Rate Period ss.1.2(A)
Replacement Lender ss.1.12(A)
Requisite Lenders ss.10.1
Restricted Junior Payment ss.10.1
Revolving Loan(s) ss.10.1
Revolving Loan Commitment ss.10.1
Revolving Loan Expiration Date ss.10.1
Revolving Loan Facility ss.10.1
Revolving Note(s) ss.10.1
SEC ss.4.3(G)
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Statement ss.4.3(B)
Subscribers ss.10.1
Subsidiary ss.10.1
Subsidiary Borrowers Preamble
Tax Liabilities ss.1.13(A)
Term Loan(s) ss.10.1
Term Loan Availability Expiration Date ss.10.1
Term Loan Commitment ss.10.1
Term Loan Facility ss.10.1
Term Loan Maturity Date ss.10.1
Term Note(s) ss.10.1
Total Capitalization ss.10.1
Total Lender Loan Commitment ss.10.1
Total Leverage Ratio ss.10.1
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") is entered into as of May 4,
2001, among CT COMMUNICATIONS, INC., a North Carolina corporation ("CT") and
each of the Subsidiaries of CT listed on the signature pages hereto and each
additional Subsidiary of CT which hereafter becomes a Borrower pursuant to
Section 2.8 (collectively, the "Subsidiary Borrowers" and together with CT,
"Borrowers"), COBANK, ACB (in its individual capacity ("CoBank")), as a Lender
and in its capacity as Administrative Agent, and such other Lenders as may
become a party to this Agreement. Capitalized terms used and not otherwise
defined herein shall have the meanings given to them in Section 10.1 of this
Agreement.
R E C I T A L S:
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WHEREAS, Borrowers desire that Lenders extend a term loan facility and
revolving credit facility to Borrowers available to refinance existing
indebtedness of Borrowers under that certain Credit Agreement, dated as of
December 22, 1998, among Borrowers, the lenders named therein and First Union
National Bank, as Administrative Agent (the "Prior Indebtedness"), to finance
the acquisition of certain equipment for the Communications System operated by
Borrowers, to finance certain costs associated with the Facilities, and to
provide funds for other general corporate purposes of Borrowers, including,
without limitation, their working capital needs; and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
SECTION 1
AMOUNTS AND TERMS OF LOANS
1.1 Loans. Subject to the terms and conditions of this Agreement and in
reliance upon the representations, warranties and covenants of Borrowers
contained herein and in the other Loan Documents:
(A) Term Loans. Each Lender, severally and not jointly, agrees
to lend to Borrowers, on a joint and several basis, as requested by CT, on
behalf of Borrowers, during the period commencing on the date all conditions
precedent set forth in Subsections 7.1 and 7.2 are satisfied or waived as
provided herein and ending on the Term Loan Availability Revolving Loan
Expiration Date, its Pro Rata Share of each Term Loan; provided that no Lender
shall be required at any time to lend more than its respective Pro Rata Share of
the Term Loan Commitment. Amounts borrowed under this Subsection 1.1(A) that are
repaid may not be reborrowed.
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Credit Agreement/CT Communications
(B) Revolving Loans. Each Lender, severally and not jointly,
agrees to lend to Borrowers, during the period commencing on the date the entire
Term Loan Commitment has been advanced and all conditions precedent set forth in
Subsections 7.1 and 7.2 are satisfied or waived as provided herein and ending on
the Business Day immediately preceding the Revolving Loan Expiration Date, its
Pro Rata Share of each Revolving Loan; provided that no Lender shall be required
at any time to lend more than its respective Pro Rata Share of the Revolving
Loan Commitment. Within the limits of the Revolving Loan Commitment and this
Subsection 1.1(B), amounts borrowed under this Subsection 1.1(B) may be prepaid
and reborrowed at any time prior to the Revolving Loan Expiration Date.
(C) Notes. Borrowers shall execute and deliver to each Lender
a Term Note, dated the Closing Date, in the principal amount of such Lender's
Pro Rata Share of the Term Loan Commitment, and a Revolving Note, dated the
Closing Date, in the principal amount of such Lender's Pro Rata Share of the
Revolving Loan Commitment.
(D) Advances. Loans will be made available by wire transfer of
immediately available funds. Wire transfers will be made to such account or
accounts as may be authorized by CT, on behalf of Borrowers.
1.2 Interest.
(A) Interest Options. From the date each Loan is made, based
upon CT's election, on behalf of Borrowers, at such time and from time to time
thereafter (as provided in Subsection 1.3 and subject to the conditions set
forth in such Subsection and Subsection 1.2 (C)), each Loan shall accrue
interest as follows:
(1) as a Base Rate Loan, at the Base Rate;
(2) as a LIBOR Loan, for the applicable Interest
Period (as defined in Subsection 1.2 (C)), at the sum of LIBOR plus the LIBOR
Margin applicable on the first day of the applicable Interest Period.
(3) if a Term Loan, as a Quoted Rate Loan for the
applicable Quoted Rate Period (as hereinafter defined), at the Quoted Rate.
The Quoted Rate may be fixed for such period as may be agreeable to
CoBank in its sole discretion (each, a "Quoted Rate Period"); provided; however,
the period during which the Quoted Rate applies shall not extend beyond the Term
Loan Maturity Date and may only expire on a Business Day.
Except as otherwise provided in Subsection 6.6, interest on all other
Obligations shall accrue at the Base Rate.
(B) Applicable Margins. The applicable LIBOR Margin for the
Revolving Loans and the Term Loans shall be for each Calculation Period the
applicable per annum percentage set forth in the pricing table below opposite
the Total Leverage Ratio of Borrowers, on a consolidated
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basis.
PRICING TABLE
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Total
Leverage Ratio LIBOR Margin
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greater than or equal to 2.50:1 1.750%
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greater than or equal to 2.00:1 but less than 2.50:1 1.500%
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less than 2.00:1 1.250%
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(C) Interest Periods. Each LIBOR Loan may be obtained for a
one (1), two (2), three (3) or six (6) month period (each such period being an
"Interest Period"). With respect to all LIBOR Loans and Quoted Rate Loans:
(i) the Interest Period or Quoted Rate Period will
commence on the date that the LIBOR Loan is made or the date on which
any portion of the Base Rate Loan or Quoted Rate Loan is converted into
a LIBOR Loan or Quoted Rate Loan, or, in the case of immediately
successive Interest Periods or Quoted Rate Period, each successive
Interest Period or Quoted Rate Period shall commence on the day on
which the immediately preceding Interest Period or Quoted Rate Period
expires;
(ii) if the Interest Period would otherwise expire on
a day that is not a Business Day, then it will expire on the next
Business Day, provided, that if any Interest Period would otherwise
expire on a day that is not a Business Day and such day is a day of a
calendar month after which no further Business Day occurs in such
month, such Interest Period shall expire on the Business Day next
preceding such day;
(iii) any Interest Period that begins on the last
Business Day of a calendar month or on a day for which there is no
numerically corresponding day in the last calendar month in such
Interest Period shall end on the last Business Day of the last calendar
month in such Interest Period; and
(iv) no Interest Period or Quoted Rate Period shall
be selected for any Loan if, in order to make repayments required
pursuant to Subsection 1.6(A), repayment of all or any portion of such
Loan prior to the expiration of such Interest Period or Quoted Rate
Period would be necessary.
(D) Calculation and Payment. Interest on all LIBOR Loans and
Quoted Rate Loans shall be calculated daily on the basis of a three hundred
sixty (360) day year for the actual number of days elapsed. The interest on the
Base Rate Loans and all other Obligations and the amount of any fees set forth
in Subsection 1.4 shall be calculated daily on the basis of a three
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Credit Agreement/CT Communications
hundred sixty-five or -six (365-6) day year for the actual number of days
elapsed. The date of funding or conversion to a Base Rate Loan and the first day
of an Interest Period with respect to a LIBOR Loan and the first day of any
Quoted Rate Period with respect to a Quoted Rate Loan shall be included in the
calculation of interest. The date of payment of any Loan and the last day of an
Interest Period with respect to a LIBOR Loan and the last day of any Quoted Rate
Period with respect to a Quoted Rate Loan shall be excluded from the calculation
of interest; provided, if a Loan is repaid on the same day that it is made, one
(1) day's interest shall be charged.
Interest accruing on the Base Rate Loans and the Quoted Rate
Loans is payable in arrears on each of the following dates or events: (i) the
last day of each calendar quarter, (ii) the prepayment of such Loan (or portion
thereof) and (iii) the Term Loan Maturity Date or the Revolving Loan Expiration
Date, as applicable, whether by acceleration or otherwise. Interest accruing on
each LIBOR Loan is payable in arrears on each of the following dates or events:
(i) the last day of each applicable Interest Period, (ii) if the Interest Period
is longer than three (3) months, on each three-month anniversary of the
commencement date of such Interest Period, (iii) the prepayment of such Loan (or
portion thereof) and (iv) the Term Loan Maturity Date or the Revolving Loan
Expiration Date, as applicable, whether by acceleration or otherwise. In the
case of the prepayment of a portion of a Loan, accrued interest is payable only
on the portion of the Loan being repaid.
(E) Default Rate of Interest. At the election of
Administrative Agent or Requisite Lenders, after the occurrence of an Event of
Default and for so long as it continues, all Loans and other Obligations shall
bear interest at variable rates that are two percent (2.000%) in excess of the
rates otherwise in effect with respect to such Loans and other Obligations.
(F) Excess Interest. Under no circumstances will the rate of
interest chargeable be in excess of the maximum amount permitted by law. If any
such excess interest is charged and paid in error, then the excess amount will
be promptly refunded.
(G) Selection, Conversion or Continuation of Loans; LIBOR
Availability. Provided that no Default or Event of Default has occurred and is
then continuing, CT, on behalf of Borrowers, shall have the option to (i) select
all or any part of a new borrowing to be a LIBOR Loan or a Quoted Rate Loan in a
principal amount equal to $2,000,000 or any whole multiple of $500,000 in excess
thereof, or a Base Rate Loan in a principal amount equal to $1,000,000 or any
whole multiple of $250,000 in excess thereof, (ii) convert at any time all or
any portion of a Base Rate Loan in a principal amount equal to $2,000,000 or any
whole multiple of $500,000 in excess thereof into one or more LIBOR Loans or
Quoted Rate Loans, (iii) upon the expiration of any Interest Period or Quoted
Rate Period, convert all or any part of any LIBOR Loan or Quoted Rate Loan into
a Base Rate Loan, and (iv) upon the expiration of its Interest Period or Quoted
Rate Period, continue any LIBOR Loan or Quoted Rate Loan in a principal amount
of $2,000,000 or any whole multiple of $500,000 in excess thereof into one or
more LIBOR Loans or Quoted Rate Loans for such new Interest Period(s) or Quoted
Rate Period as selected by CT, on behalf of Borrowers, subject to the other
provisions herein. Each LIBOR Loan must be made under either the Term Loan
Facility or the Revolving Loan Facility, but may not be made under both
concurrently. During any period in which any Default or Event of Default is
continuing, as the Interest Periods for LIBOR Loans and the Quoted Rate Periods
for the Quoted Rate Loans then in effect expire, such Loans shall be converted
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Credit Agreement/CT Communications
into Base Rate Loans and the LIBOR option and Quoted Rate Option will not be
available to Borrowers until all Events of Default are cured or waived.
Notwithstanding the foregoing, there may be no more than a total of eight (8)
Loans outstanding under the Facilities at any one time (including, as a single
Loan, all amounts under a single Facility accruing interest at the Base Rate).
1.3 Notice of Borrowing, Conversion or Continuation of Loans. Whenever
Borrowers desire to request a Loan pursuant to Subsection 1.1 or to convert or
continue Loans pursuant to Subsection 1.2(G), CT, on behalf of Borrowers, shall
give Administrative Agent irrevocable prior written notice in the form attached
hereto as Exhibit 1.3 (a "Notice of Borrowing/Conversion/Continuation"), (i) if
requesting a borrowing of, conversion to or continuation of the Base Rate Loan
(or any portion thereof), not later than 11:00 a.m. (Denver time), two (2)
Business Days before the proposed borrowing, conversion or continuation is to be
effective or (ii), if requesting a borrowing of, a conversion to or a
continuation of a LIBOR or Quoted Rate Loan, not later than 11:00 a.m. (Denver
time), three (3) Business Days before the proposed borrowing, conversion or
continuation is to be effective. Each Notice of
Borrowing/Conversion/Continuation shall specify (a) the Loan (or portion
thereof) to be converted or continued and, with respect to any LIBOR Loan or
Quoted Rate Loan to be converted or continued, the last day of the current
Interest Period or Quoted Rate Period therefor, (b) the effective date of such
borrowing, conversion or continuation (which shall be a Business Day), (c) the
principal amount of such Loan to be borrowed, converted or continued, (d) the
Interest Period or Quoted Rate Period to be applicable to any new LIBOR Loan or
Quoted Rate Loan, and (e) the Facility under which such borrowing, conversion or
continuation is to be made. In the event Borrowers fail to elect a LIBOR Loan or
Quoted Rate Loan upon any advance hereunder or upon the termination of any
Interest Period or Quoted Rate Period, Borrowers shall be deemed to have elected
to have the amount of such advance constitute a Base Rate Loan.
1.4 Fees and Expenses.
(A) Revolving Loan Commitment Fee. From the Closing Date,
Borrowers shall pay Administrative Agent, for the benefit of all Lenders (based
upon its respective Pro Rata Shares of the Revolving Loan Commitment), a fee in
an amount equal to (i) the Revolving Loan Commitment less the average daily
outstanding balance of Revolving Loans during the preceding calendar quarter
multiplied by (ii) the Applicable Commitment Fee Percentage. Such fee is to be
paid quarterly in arrears on the last day of each calendar quarter for such
calendar quarter (or portion thereof), with the final such payment due on the
Revolving Loan Expiration Date.
(B) Certain Other Fees. Borrowers shall pay the fees specified
in each of those certain letters, dated March 5, 2001 and March 9, 2001, by and
between CT, on behalf of Borrowers, and Administrative Agent, at such times and
to such entities as specified in such letter agreement.
(C) Breakage Fees. Upon any repayment or payment of a LIBOR
Loan or a Quoted Rate Loan on any day that is not the last day of the Interest
Period or Quoted Rate Period applicable thereto (regardless of the source of
such repayment or prepayment and whether voluntary, mandatory, by acceleration
or otherwise), Borrowers shall pay Administrative Agent, for the benefit of all
affected Lenders, an amount (the "Breakage Fee") equal to the amount of any
losses, expenses and liabilities (including any loss (including interest paid)
sustained by each such affected Lender in
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connection with the re-employment of such funds) that any such affected Lender
may sustain as a result of the payment of such LIBOR Loan or Quoted Rate Loan on
such day.
(D) Expenses and Attorneys Fees. Borrowers agree to pay
promptly all reasonable fees, costs and expenses (including those of attorneys)
reasonably incurred by Administrative Agent in connection with (i) any matters
contemplated by or arising out of the Loan Documents, and (ii) the continued
administration of the Loan Documents, including any such fees, costs and
expenses incurred in connection with any amendments, modifications and waivers
and any tax (excluding any tax imposed on net income or franchise taxes imposed
in lieu of net income taxes) payable in connection with any Loan Documents. In
addition to fees due under Subsection 1.4(B), Borrowers shall also reimburse on
demand Administrative Agent for its out-of-pocket expenses (including reasonable
attorneys' fees and expenses and reasonable syndication costs and expenses)
incurred in connection with the transactions contemplated herein. Borrowers
agree to pay promptly all reasonable fees, costs and expenses incurred by
Administrative Agent and Lenders in connection with any reasonable action to
enforce any Loan Document or to collect any payments due from Borrowers under
any Loan Document. All fees, costs and expenses for which Borrowers are
responsible under this Subsection 1.4(D) shall be deemed part of the Obligations
when incurred, payable upon demand and in accordance with the second paragraph
of Subsection 1.5.
1.5 Payments. All payments by Borrowers of the Obligations shall be
made in same day funds and delivered to Administrative Agent, for the benefit of
Administrative Agent and Lenders, as applicable, by wire transfer to the
following account or such other place as Administrative Agent may from time to
time designate:
CoBank, ACB
Greenwood Village, Colorado
ABA Number ▇▇▇▇-▇▇▇▇-▇
Reference: CoBank for the benefit of CT Communications, Inc.
Borrowers shall receive credit on the day of receipt for funds received by
Administrative Agent by 11:00 a.m. (Denver time) on any Business Day. Funds
received on any Business Day after such time shall be deemed to have been paid
on the next Business Day. Whenever any payment to be made hereunder shall be
stated to be due on a day that is not a Business Day, the payment shall be due
on the next succeeding Business Day and such extension of time shall be included
in the computation of the amount of interest and fees due hereunder.
Borrowers hereby authorize Lenders to make (but Lenders shall not be
obligated to make) a Base Rate Loan under the Revolving Loan Facility, on the
basis of their respective Pro Rata Shares of the Revolving Loan Facility, for
the payment of interest, commitment fees and Breakage Fees. Prior to an Event of
Default, other unpaid fees, costs and expenses (including those of attorneys)
reimbursable pursuant to Subsections 1.4(A), 1.4(B) and 1.4(D) or elsewhere in
any Loan Document may be debited as a Base Rate Loan under the Revolving Loan
Facility after fifteen (15) days notice unless such fees, costs and expenses are
paid prior to the expiration of said fifteen day notice period. After the
occurrence of an Event of Default, any such other unpaid fees, costs and
expenses may be debited to the Base Rate Loan under the Revolving Loan Facility
without notice.
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To the extent Borrowers or any guarantor makes a payment or payments to
Administrative Agent for the ratable benefit of Lenders or for the benefit of
Administrative Agent in its individual capacity, which payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then, to the extent of such payment or proceeds repaid, the Obligations or part
thereof intended to be satisfied shall be revived and continued in full force
and effect as if such payment or proceeds had not been received by
Administrative Agent.
1.6 Repayments and Reduction of Loans and Commitments.
(A) Scheduled Repayments and Reductions of Term Loans and
Revolving Loan Commitment.
(1) Term Loan. Commencing on March 31, 2005,
Borrowers shall repay the aggregate outstanding principal balance of the Term
Loans on the last day of each calendar quarter during the period set forth below
in the amount set forth opposite such period:
Quarterly Payment
Dates of Repayment Amount
------------------ -----------------
March 31, 2005 through and $1,250,000.00, or such lesser amount, if any
including December 31, 2014 as may be required to repay the aggregate
outstanding principal balance of the Term Loans
(2) Revolving Loan Commitment. On the date set forth
in clause (iii) of the definition of Revolving Loan Expiration Date, the
Revolving Loan Commitment shall be permanently reduced in an amount equal to the
amount of the Revolving Loan Commitment as of such date.
(B) Reductions Resulting From Mandatory Repayments. The
Revolving Loan Commitment shall be permanently reduced to the extent and in the
amount that Borrowers are required, pursuant to Section 1.8, to apply mandatory
repayments to be made pursuant to Subsection 1.7 (B), (C) or (D) to the
Revolving Loan Facility (whether or not any Revolving Loans are then outstanding
and available to be repaid). All reductions provided for in this Subsection
1.6(B) shall be in addition to (and shall not serve to reduce the amount or date
of) the scheduled reduction provided for in Section 1.6(A) and the voluntary
reductions provided for in Subsection 1.6(C) and, accordingly, may result in the
termination of the Revolving Loan Commitment prior to the date set forth in
clause (iii) of the definition of Revolving Loan Expiration Date.
(C) Voluntary Reduction of Revolving Loan Commitment.
Borrowers shall have the right, upon at least three Business Days' notice to
Administrative Agent, to permanently reduce the then unused portion of the
Revolving Loan Commitment. Each reduction shall be in a minimum amount of at
least $2,000,000, or any whole multiple of $1,000,000 in excess thereof, and
shall be applied as to each Lender based upon its Pro Rata Share.
Notwithstanding the foregoing, no reduction shall be permitted if, after giving
effect thereto and to any prepayment made therewith, the
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aggregate principal balance of the Loans then outstanding would exceed the
Revolving Loan Commitment as so reduced.
(D) Mandatory Repayments. On the date of each Revolving Loan
Commitment reduction provided for in this Subsection 1.6, Borrowers shall repay
Revolving Loans in an amount at least sufficient to reduce the aggregate
principal balance of Revolving Loans then outstanding to the amount of the
Revolving Loan Commitment as so reduced. If at any time the aggregate
outstanding amount of Revolving Loans exceeds the Revolving Loan Commitment,
Borrowers shall repay Revolving Loans in an amount at least sufficient to reduce
the aggregate principal balance of Revolving Loans then outstanding to the
amount of the Revolving Loan Commitment, and until such repayment is made,
Lenders shall not be obligated to make Loans. Any repayments pursuant to this
Subsection 1.6(D) shall be applied in accordance with Subsection 1.8, and shall
be accompanied by accrued interest on the amount repaid and any amount required
pursuant to Subsection 1.4(C).
1.7 Voluntary Prepayments and Other Mandatory Repayments.
(A) Voluntary Prepayment of Loans. Subject to the provisions
of Section 1.8, at any time, with one day's notice, Borrowers may prepay any
Base Rate Loan, in whole or in part, without penalty. Subject to the provisions
of Section 1.8, payment of the Breakage Fee pursuant to Subsection 1.4(C) and
the notice requirement in the following sentence, at any time Borrowers may
prepay any LIBOR Loan or Quoted Rate Loan, in whole or in part. Notice of any
prepayment of a LIBOR Loan or Quoted Rate Loan shall be given not later than
11:00 a.m. (Denver time) on the third Business Day preceding the date of
prepayment. All prepayment notices shall be irrevocable. All prepayments shall
be accompanied by accrued interest on the amount prepaid and any amount required
pursuant to Subsection 1.4(C).
(B) Repayments from Insurance Proceeds. If an Event of Default
has occurred and is continuing, or is anticipated to occur within the next
twelve (12) months based upon the Borrowers' Projections provided to
Administrative Agent pursuant to Section 4.3(F) after taking into account the
proposed use of all Net Proceeds received by Borrowers during any fiscal year in
excess of $1,000,000 which are insurance proceeds from any Asset Disposition
(and Borrowers hereby covenant to cause such Net Proceeds to be used as so
proposed), Borrowers shall repay the Loans in an amount equal to the extent that
such proceeds are not reinvested in equipment or other assets that are used or
useful in the business of Borrowers within 180 days of receipt by Borrowers of
such proceeds. All such repayments shall be applied in accordance with
Subsection 1.8.
(C) Repayments from Asset Dispositions. Immediately upon
receipt by any Borrower of Net Proceeds other than insurance proceeds from any
Asset Disposition, Borrowers shall repay the Loans in an amount equal to such
Net Proceeds. All such repayments shall be applied in accordance with Subsection
1.8.
(D) Repayment Upon Failure to Obtain PUC Approval. Unless
Borrowers have received all necessary approvals, authorizations and consents of
the North Carolina Utilities Commission with respect to the execution and
delivery of this Agreement and the other Loan Documents no later than April 30,
2003, Borrowers shall immediately repay the entire outstanding principal balance
of all Loans then outstanding together with accrued and unpaid interest therein
and
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any amount required pursuant to Subsection 1.4(C).
1.8 Application of Repayments; Payment of Breakage Fees, Etc. All
repayments made pursuant to Subsection 1.7(A) shall be applied first to Loans
outstanding under the Revolving Loan Facility and then to Loans outstanding
under the Term Loan Facility. All repayments made pursuant to Subsections
1.7(B), (C) and (D) shall be applied first to Loans outstanding under the Term
Loan Facility and thereafter, to Loans outstanding under the Revolving Loan
Facility. All repayments made pursuant to Subsections 1.6 and 1.7 shall first be
applied to such of the applicable type of Loans as CT, on behalf of Borrowers,
shall direct in writing and, in the absence of such direction, shall first be
applied to the Base Rate Loan and then to such LIBOR Loans or Quoted Rate Loans
as Borrowers and Administrative Agent shall agree. All repayments required or
permitted hereunder shall be accompanied by payment of all applicable Breakage
Fees and accrued interest on the amount repaid. All repayments applied to Loans
outstanding under the Term Loan Facility shall be applied to principal
installments in the inverse order of maturity.
1.9 Loan Accounts. Administrative Agent will maintain loan account
records for (i) all Loans, interest charges and payments thereof, (ii) the
charging and payment of all fees, costs and expenses and (iii) all other debits
and credits pursuant to this Agreement. Absent manifest error, the balance in
the loan accounts shall be presumptive evidence of the amounts due and owing to
Lenders, provided that any failure by Administrative Agent to maintain such
records shall not limit or affect Borrowers' obligation to pay. During the
continuance of an Event of Default, Borrowers irrevocably waive the right to
direct the application of any and all payments and Borrowers hereby irrevocably
agree that Administrative Agent shall have the continuing exclusive right to
apply and reapply payments to any amounts due hereunder in any manner it deems
appropriate.
1.10 Changes in LIBOR Rate Availability. If with respect to any
proposed Interest Period, Administrative Agent or any Lender (after consultation
with Administrative Agent) determines that deposits in dollars (in the
applicable amount) are not being offered to each Lender in the relevant market
for such Interest Period, Administrative Agent shall forthwith give notice
thereof to Borrowers and Lenders, whereupon and until Administrative Agent
notifies Borrowers that the circumstances giving rise to such situation no
longer exist, the obligations of any affected Lender to make its portion of such
type of LIBOR Loan shall be suspended; provided, however, that nothing in the
Section 1.10 shall affect any obligations of any affected Lender with respect to
any previously outstanding LIBOR Loan.
If the introduction of, or any change in, any Applicable Law or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, shall make it unlawful or
impossible for one or more Lenders to honor its obligations hereunder to make or
maintain any LIBOR Loan, such Lender shall promptly give notice thereof to
Administrative Agent, and Administrative Agent shall promptly give notice
thereof to CT, on behalf of Borrowers and all other Lenders. Thereafter, until
Administrative Agent notifies CT, on behalf of Borrowers that such circumstances
no longer exist, (i) the obligations of the affected Lenders to make LIBOR Loans
and the right of Borrowers to convert any Loan or continue any Loan as a LIBOR
Loan shall be suspended with respect to the affected Lenders
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and (ii) if any Lender may not lawfully continue to maintain a LIBOR Loan to the
end of the then current Interest Period applicable thereto, the portion of such
Loan held by the affected Lender shall immediately be converted to the Base Rate
Loan.
1.11 Capital Adequacy and Other Adjustments.
(A) If the introduction of or the interpretation of any law,
rule, or regulation would increase the reserve requirement or otherwise increase
the cost to any Lender of making or maintaining a LIBOR Loan, then
Administrative Agent, on behalf of all affected Lenders, shall submit a
certificate to CT, on behalf of Borrowers, setting forth the amount and
demonstrating the calculation of such increased cost. Any affected Lender shall
use its best efforts to provide notice to Administrative Agent within 90 days
after the effective date of such law or interpretation and Administrative Agent
shall use its best efforts to submit a certificate to CT promptly thereafter;
provided, failure by either Administrative Agent or any affected Lender to
provide such notice shall not affect Borrower's obligations or impose any
liability on such Lender or Administrative Agent hereunder. Borrowers shall pay
the amount of such increased cost to Administrative Agent for the benefit of the
affected Lenders within fifteen (15) days after receipt of such certificate.
Such certificate shall, absent manifest error, be final, conclusive and binding
for all purposes. There is no limitation on the number of times such a
certificate may be submitted.
(B) In the event that any Lender shall have determined that
the adoption after the date hereof of any law, treaty, governmental (or
quasi-governmental) rule, regulation, guideline or order regarding capital
adequacy, reserve requirements or similar requirements or compliance by any
Lender or any corporation controlling such Lender with any request or directive
regarding capital adequacy, reserve requirements or similar requirements
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) from any central bank or governmental agency or
body having jurisdiction does or shall have the effect of increasing the amount
of capital, reserves or other funds required to be maintained by such Lender or
any corporation controlling such Lender and thereby reducing the rate of return
on such Lender's or such corporation's capital as a consequence of its
obligations hereunder, then Borrowers shall from time to time within fifteen
(15) days after notice and demand from such Lender (together with the
certificate referred to in the next sentence and with a copy to Administrative
Agent) pay to Administrative Agent, for the account of such Lender, additional
amounts sufficient to compensate such Lender for such reduction. A certificate
as to the amount of such cost and showing the basis of the computation of such
cost submitted by such Lender to CT, on behalf of Borrowers, and Administrative
Agent shall, absent manifest error, be final, conclusive and binding for all
purposes. There is no limitation on the number of times such a certificate may
be submitted.
1.12 Optional Prepayment/Replacement of Lender in Respect of Increased
Costs. Within fifteen (15) days after receipt by CT, on behalf of Borrowers, of
written notice and demand from any Lender (an "Affected Lender") for payment of
additional costs as provided in Subsection 1.11, CT, on behalf of Borrowers,
may, at its option, notify Administrative Agent and such Affected Lender of its
intention to do one of the following:
(A) Borrowers may obtain, at Borrowers' expense, a replacement
Lender ("Replacement Lender") for such Affected Lender, which Replacement Lender
shall be reasonably
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satisfactory to Administrative Agent. In the event Borrowers obtain a
Replacement Lender within ninety (90) days following notice of its intention to
do so, the Affected Lender shall sell and assign its Loans and its obligations
under the Loan Commitments to such Replacement Lender, provided that Borrowers
have reimbursed such Affected Lender for its increased costs for which it is
entitled to reimbursement under this Agreement through the date of such sale and
assignment; or
(B) Borrowers may prepay in full all outstanding Obligations
owed to such Affected Lender and terminate such Affected Lender's Pro Rata Share
of the Loan Commitments, in which case the Loan Commitments will be permanently
reduced by the amount of such Pro Rata Share. Borrowers shall, within ninety
(90) days following notice of their intention to do so, prepay in full all
outstanding Obligations owed to such Affected Lender (including all applicable
Breakage Fees and such Affected Lender's increased costs for which it is
entitled to reimbursement under this Agreement through the date of such
prepayment), and terminate such Affected Lender's obligations under the Loan
Commitments. Any such prepayment pursuant to this Subsection 1.12(B) shall be
applied in accordance with Subsection 1.8 and shall be accompanied by payment of
all applicable Breakage Fees and accrued interest on the amount repaid.
1.13 Taxes.
(A) No Deductions. Any and all payments or reimbursements made
hereunder or under the Notes shall be made free and clear of and without
deduction for any and all taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto (all such taxes, levies,
imposts, deductions, charges or withholdings and all liabilities with respect
thereto excluding such taxes imposed on net income, herein "Tax Liabilities"),
excluding, however, taxes imposed on the net income of a Lender or
Administrative Agent. If Borrowers shall be required by law to deduct any such
amounts from or in respect of any sum payable hereunder to any Lender or
Administrative Agent, then, except as provided in Subsection 1.13(B), the sum
payable hereunder shall be increased as may be necessary so that, after making
all required deductions, such Lender or Administrative Agent receives an amount
equal to the sum it would have received had no such deductions been made.
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(B) Foreign Lenders. Each Lender organized under the laws of a
jurisdiction outside the United States (a "Foreign Lender") as to which payments
to be made under this Agreement or under the Notes are exempt from United States
withholding tax or are subject to United States withholding tax at a reduced
rate under an applicable statute or tax treaty shall provide to Borrowers and
Administrative Agent (1) a properly completed and executed Internal Revenue
Service Form 4224 or Form 1001 or other applicable form, certificate or document
prescribed by the Internal Revenue Service of the United States certifying as to
such Foreign Lender's entitlement to such exemption or reduced rate of
withholding with respect to payments to be made to such Foreign Lender under
this Agreement and under the Notes (a "Certificate of Exemption") or (2) a
letter from any such Foreign Lender stating that it is not entitled to any such
exemption or reduced rate of withholding (a "Letter of Non-Exemption"). Prior to
becoming a Lender under this Agreement and within fifteen (15) days after a
reasonable written request of CT, on behalf of Borrowers, or Administrative
Agent from time to time thereafter, each Foreign Lender that becomes a Lender
under this Agreement shall provide a Certificate of Exemption or a Letter of
Non-Exemption to CT, on behalf of Borrowers and Administrative Agent.
If a Foreign Lender is entitled to an exemption with respect
to payments to be made to such Foreign Lender under this Agreement (or to a
reduced rate of withholding) and does not provide a Certificate of Exemption to
CT, on behalf of Borrowers, and Administrative Agent within the time periods set
forth in the preceding paragraph, Borrowers shall withhold taxes from payments
to such Foreign Lender at the applicable statutory rates and Borrowers shall not
be required to pay any additional amounts as a result of such withholding,
provided that all such withholding shall cease or be reduced, as appropriate,
upon delivery by such Foreign Lender of a Certificate of Exemption to CT, on
behalf of Borrowers, and Administrative Agent.
1.14 Changes in Tax Laws. In the event that, subsequent to the Closing
Date, (i) any changes in any existing law, regulation, treaty or directive or in
the interpretation or application thereof, (ii) any new law, regulation, treaty
or directive enacted or any interpretation or application thereof, or (iii)
compliance by Administrative Agent or any Lender with any request or directive
(whether or not having the force of law) from any Governmental Authority:
(i) does or shall subject Administrative Agent or any Lender
to any tax of any kind whatsoever with respect to this Agreement, the
other Loan Documents or any Loans made hereunder, or change the basis
of taxation of payments to Administrative Agent or such Lender of
principal, fees, interest or any other amount payable hereunder (except
for net income taxes, or franchise taxes imposed in lieu of net income
taxes, imposed generally by federal, state or local taxing authorities
with respect to interest or commitment or other fees payable hereunder
or changes in the rate of tax on the overall net income of
Administrative Agent or such Lender); or
(ii) does or shall impose on Administrative Agent or any
Lender any other condition or increased cost in connection with the
transactions contemplated hereby or participations herein; and the
result of any of the foregoing is to increase the cost to any
Administrative Agent or any such Lender of making or continuing any
Loan, or to reduce any amount receivable hereunder, then, in any such
case, Borrowers shall promptly pay to Administrative Agent or such
Lender, upon its demand, any additional amounts necessary to
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compensate Administrative Agent or such Lender, on an after-tax basis,
for such additional cost or reduced amount receivable, as determined by
Administrative Agent or such Lender with respect to this Agreement or
the other Loan Documents. If Administrative Agent or such Lender
becomes entitled to claim any additional amounts pursuant to this
Subsection 1.14, it shall promptly notify CT, on behalf of Borrowers of
the event by reason of which Administrative Agent or such Lender has
become so entitled. A certificate as to any additional amounts payable
pursuant to the foregoing sentence submitted by Administrative Agent or
such Lender to CT, on behalf of Borrowers and Administrative Agent
shall, absent manifest error, be final, conclusive and binding for all
purposes. There is no limitation on the number of times such a
certificate may be submitted.
1.15 Term of This Agreement. All of the Obligations shall become due
and payable as otherwise set forth herein, but in any event, all of the
remaining Obligations shall become due and payable on the Term Loan Maturity
Date. This Agreement shall remain in effect through and including, and shall
terminate immediately after, the date on which all Obligations shall have been
indefeasibly and irrevocably paid and satisfied in full.
SECTION 2
AFFIRMATIVE COVENANTS
Borrowers covenant and agree that so long as this Agreement is in
effect and until payment in full of all Obligations, unless Requisite Lenders
shall otherwise give their prior written consent, Borrowers shall and shall
cause their Subsidiaries to, perform and comply with all covenants in this
Section 2.
2.1 Compliance With Laws. Each Borrower will (i) comply with and will
cause its Subsidiaries to comply with the requirements of all Applicable Laws
(including laws, rules, regulations and orders relating to taxes, employer and
employee contributions, securities, employee retirement and welfare benefits,
environmental protection matters and employee health and safety) as now in
effect and which may be imposed in the future in all jurisdictions in which such
Borrower or any of its Subsidiaries is now or hereafter doing business, other
than those laws, rules, regulations and orders the noncompliance with which
could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect, and (ii) obtain and maintain and will
cause its Subsidiaries to obtain and maintain all licenses, qualifications and
permits (including the Licenses) now held or hereafter required to be held by
such Borrower or any of its Subsidiaries, the loss, suspension or revocation of
which or which the failure to obtain or renew could reasonably be expected to
have a Material Adverse Effect. This Subsection 2.1 shall not preclude a
Borrower or any of its Subsidiaries from contesting any taxes or other payments,
if they are being diligently contested in good faith and if adequate reserves
therefor are maintained in conformity with GAAP.
2.2 Maintenance of Books and Records; Insurance. Each Borrower will and
will cause its Subsidiaries to keep adequate records and books of account, in
which complete entries will be made in accordance with GAAP consistently
applied, reflecting all financial transactions. Each Borrower will and will
cause its Subsidiaries to maintain or cause to be maintained in good repair,
working order and condition all material properties used in the business of the
Borrower and its Subsidiaries,
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and will make or cause to be made all appropriate repairs, renewals and
replacements thereof. Each Borrower will and will cause its Subsidiaries to
maintain or cause to be maintained, with financially sound and reputable
insurers, public liability, property loss and damage and business interruption
insurance with respect to its business and properties and the business and
properties of its Subsidiaries against loss and damage of the kinds and in
amounts, with such deductibles and otherwise on such terms and conditions, as
customarily carried or maintained by corporations of established reputation
engaged in the communications industry.
2.3 Inspection; Lender Meeting. Each Borrower will and will cause its
Subsidiaries to permit any authorized representatives of any Lender (i) to visit
and inspect any of the properties of such Borrower and its Subsidiaries,
including its financial and accounting records, and to make copies and take
extracts therefrom, and (ii) to discuss its affairs, finances and business with
its officers, employees and certified public accountants, at such reasonable
times during normal business hours and as often as may be reasonably requested.
Without in any way limiting the foregoing, each Borrower will and will cause its
Subsidiaries to participate and will cause its key management personnel to
participate in a meeting with Administrative Agent and Lenders at least once
during each year, which meeting shall be held at such time and such place as may
be reasonably requested by Administrative Agent. The Administrative Agent and
any Lender requesting any information with respect to a Borrower of a Subsidiary
will cooperate with the Borrowers and the Subsidiaries in meeting any applicable
requirements of Regulation FD of the Securities and Exchange Commission or any
successor regulation, as the same may be modified or amended, with respect to
the release of such information.
2.4 Legal Existence, Etc. Each Borrower will and will cause its
Subsidiaries to at all times preserve and keep in full force and effect its or
their legal existence and good standing and all rights and franchises material
to its or their business; provided, however, that nothing herein shall prevent
any Subsidiary of a Borrower from discontinuing its legal existence or any such
rights and franchises, or from merging with another Subsidiary of a Borrower, if
such action would not result in a Material Adverse Effect.
2.5 Use of Proceeds. Each Borrower will use the proceeds of the Loans
solely for the purposes described in the recital paragraphs to this Agreement.
No part of any Loan will be used to purchase any margin securities or otherwise
in violation of the regulations of the Federal Reserve System.
2.6 Further Assurances. Each Borrower will, from time to time, do,
execute and deliver all such additional and further acts, documents and
instruments as any Administrative Agent or any Lender reasonably requests to
consummate the transactions contemplated hereby and to vest completely in and
assure Administrative Agent and Lenders of their respective rights under this
Agreement and the other Loan Documents.
2.7 CoBank Patronage Capital. So long as CoBank is a Lender hereunder,
CT, on behalf of Borrowers, will acquire non-voting participation certificates
in CoBank in such amounts and at such times as CoBank may require in accordance
with CoBank's Bylaws and Capital Plan (as each may be amended from time to
time), except that the maximum amount of participation certificates that CT, on
behalf of Borrowers, may be required to purchase in CoBank in connection with
the Loans
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may not exceed the maximum amount permitted by the Bylaws at the time this
Agreement is entered into. The rights and obligations of the parties with
respect to such participation certificates and any distributions made on account
thereof or on account of Borrowers' patronage with CoBank shall be governed by
CoBank's Bylaws. Borrowers hereby consent and agree that the amount of any
distributions with respect to its patronage with CoBank that are made in
qualified written notices of allocation (as defined in 26 U.S.C. ss. 1388) and
that are received by CT, on behalf of Borrowers, from CoBank, will be taken into
account by Borrowers at the stated dollar amounts whether the distribution is
evidenced by a participation certificate or other form of written notice that
such distribution has been made and recorded in the name of CT, on behalf of
Borrowers, on the records of CoBank. CoBank's Pro Rata Share of the Loans and
other Obligations due to CoBank shall be secured by a statutory first lien on
all equity which Borrowers may now own or hereafter acquire in CoBank. Such
equity shall not, however, constitute security for the Obligations due to any
other Lender. CoBank shall not be obligated to set off or otherwise apply such
equities to Borrowers' obligations to CoBank.
2.8 Additional Subsidiaries. At such time as any Subsidiary of CT or
any other Borrower is created or acquired after the Closing Date, CT shall cause
to be executed and delivered to Administrative Agent (i) a Joinder Agreement
such that such Subsidiary shall become a Borrower hereunder and (ii) favorable
legal opinions addressed to the Administrative Agent and Lenders in form and
substance satisfactory thereto with respect to such Joinder Agreement and such
other documents and closing certificates as consistent with Section 7 as may be
reasonably requested by the Administrative Agent.
2.9 Utilities Commission Approval. No later than 30 days after receipt
by any Borrower, such Borrower shall provide to Administrative Agent copies of
all approvals, authorizations, consents and other communications between such
Borrower and the North Carolina Utilities Commission with respect to this
Agreement and the Loans.
SECTION 3
NEGATIVE COVENANTS
Each Borrower covenants and agrees that so long as this Agreement is in
effect and until payment in full of all Obligations, unless Requisite Lenders
shall otherwise give their prior written consent, each Borrower shall perform
and comply with all covenants in this Section 3.
3.1 Indebtedness. Each Borrower will not and will not permit its
Subsidiaries directly or indirectly to create, incur, assume, guaranty or
otherwise become or remain liable with respect to any Indebtedness other than:
(A) the Obligations;
(B) Indebtedness incurred in connection with a Hedging
Agreement with a Lender or with another financial institution acceptable to
Requisite Lenders in their sole discretion;
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(C) Contingent Obligations permitted by Section 3.4;
(D) Indebtedness under purchase money security agreements and
capital leases in an amount not to exceed $5,000,000 in the aggregate at any one
time;
(E) Indebtedness which is expressly subordinate in right of
payment to the Obligations hereunder on terms and conditions satisfactory to
Requisite Lenders in their sole discretion;
(F) Indebtedness among the Borrowers;
(G) Unsecured Indebtedness, so long as no Default or Event of
Default exists before such Indebtedness is incurred and no violation of Section
4.1 or Section 4.2 hereof will result after giving effect to such Indebtedness
and such Indebtedness must have a final maturity beyond the Term Loan Maturity
Date and an average life exceeding the average life of the Term Loans;
(H) Unsecured Indebtedness of CT to First Charter National
Bank in an amount not to exceed $5,000,000 for the purpose of providing
overdraft protection to CT on its demand deposit accounts with First Charter
National Bank; and
(I) Indebtedness described on Schedule 3.1 hereto.
provided, that none of the Indebtedness permitted to be incurred by this Section
shall restrict, limit or otherwise encumber (by covenant or otherwise) the
ability of any Subsidiary of any Borrower to make any payment to any such
Borrower or any other Subsidiary (in the form of dividends, intercompany
advances or otherwise) for the purpose of enabling such Borrower to pay the
Obligations.
3.2 Liens and Related Matters.
(A) No Liens. Each Borrower will not and will not permit its
Subsidiaries directly or indirectly to create, incur, assume or permit to exist
any Lien on or with respect to any property or asset (including any document or
instrument with respect to goods or accounts receivable) of Borrower or its
Subsidiaries, whether now owned or hereafter acquired, or any income or profits
therefrom, except Permitted Encumbrances.
(B) No Negative Pledges. Each Borrower will not and will not
permit its Subsidiaries directly or indirectly to enter into or assume any
agreement (other than the Loan Documents) prohibiting the creation or assumption
of any Lien upon its or their properties or assets, whether now owned or
hereafter acquired or which has any covenant more restrictive than any in
Sections 2, 3 or 4.
3.3 Investments. Borrower will not and will not permit its Subsidiaries
directly or indirectly
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to make or own any Investment in any Person except:
(A) Borrower and its Subsidiaries may make and own Investments
in Cash Equivalents; provided that neither Borrower nor any of its Subsidiaries
shall incur any obligation to any Person which could subject such Cash
Equivalents (other than deposit accounts in which no more than $20,000 is held
overnight or a deposit with First Union Bank as described on Schedule 3.3) to
set off rights;
(B) obligations of or equities in CoBank, as set forth in
Subsection 2.7;
(C) Investments not otherwise permitted by this Section 3.3 in
another Borrower or Subsidiary thereof (including without limitation the
creation or capitalization of any Subsidiary), and the other existing loans,
advances and Investments not otherwise permitted by this Section 3.3 described
on Schedule 3.3;
(D) Investments by any Borrower or any Subsidiary thereof in
the form of acquisitions of all or substantially all of the business or a line
of business (whether by the acquisition of capital stock, assets or any
combination thereof) which are consummated in accordance with the following
requirements of this Section 3.3(D) (any such acquisition, a "Permitted
Acquisition"): (i) the acquired Person shall be engaged in and substantially all
of the acquired assets shall be utilized in a similar line of business as any
Borrower or Subsidiary as described in Section 3.11 or as otherwise approved in
writing by the Requisite Lenders, (ii) no Default or Event of Default shall have
occurred and be continuing or be created by the relevant Permitted Acquisition,
and (iii) for any single Permitted Acquisition, or series of related Permitted
Acquisitions having an aggregate consideration equal to or in excess of
$10,000,000, and at all times after the aggregate consideration paid for all
Permitted Acquisitions since the Closing Date (including the proposed Permitted
Acquisition) equals or exceeds $20,000,000, (A) the Borrowers shall deliver a
certificate to the Administrative Agent and the Requisite Lenders, in form and
substance reasonably satisfactory to the Administrative Agent, demonstrating pro
forma compliance with the financial covenants set forth in Section 4.1 and
Section 4.2 and the other terms of the Loan Documents prior to the closing of
such Permitted Acquisition, (B) a description of the relevant Permitted
Acquisition in reasonable detail and the corresponding documentation shall be
furnished by the Borrowers to the Lenders at least ten (10) Business Days prior
to the closing date thereof (to be followed by any changed pages and fully
executed copies promptly after the creation thereof) and (C) the Borrowers shall
have received the prior written approval of the Requisite Lenders;
(E) loans, advances and any other investments by any Borrower
or any Subsidiary thereof in any other Person in an aggregate amount not to
exceed (i) Five Million Dollars ($5,000,000) during any fiscal year of
Borrowers; provided, however, that any portion of such $5,000,000 not used in
any such fiscal year of Borrowers may be applied to the next succeeding fiscal
year or years on a cumulative basis, and (ii) Twenty Million Dollars
($20,000,000) since the Closing Date; provided further that the dollar
limitations set forth in the foregoing clauses (i) and (ii) shall not apply to
any loan, advance or other investment made by CT Communications Northeast Trust
("CT Trust") utilizing the proceeds of sales of assets of CT Trust as of the
date hereof, which assets are identified on Schedule 3.3 hereto, or any
subsequent loan, advance or other investment thereof;
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(F) loans, advances and any other Investments by any Borrower
or any Subsidiary thereof in WaveTel, LLC or in any other entity which may
replace or be used in connection with WaveTel, LLC whose principal business
purpose is to provide wireless broadband services through the use of MDS
spectrum in an aggregate amount not to exceed (i) Ten Million Dollars
($10,000,000) during any fiscal year of Borrowers; provided, however, that any
portion of such $10,000,000 not used in any such fiscal year of Borrowers may be
applied to the next succeeding fiscal year or years on a cumulative basis, and
(ii) Twenty Million Dollars ($20,000,000) since the Closing Date;
(G) Investments in the form of deposits for utilities,
security deposits, deposits for leases, and similar prepaid expenses incurred in
the ordinary course of business;
(H) loans or advances to employees of any Borrower or any
Subsidiary thereof made in the ordinary course of business that do not in the
aggregate exceed $1,000,000 at any time outstanding; and
(I) Investments in the form of trade accounts created in the
ordinary course of business.
3.4 Contingent Obligations. Each Borrower will not and will not permit
its Subsidiaries directly or indirectly to create or become or be liable with
respect to any Contingent Obligation except those:
(A) Contingent Obligations in favor of Administrative Agent
for the benefit of Administrative Agent and Lenders;
(B) resulting from endorsement of negotiable instruments for
collection in the ordinary course of business;
(C) arising with respect to customary indemnification
obligations incurred in connection with permitted Asset Dispositions;
(D) incurred in the ordinary course of business with respect
to surety and appeal bonds, performance and return-of-money bonds and other
similar obligations not exceeding at any time outstanding $2,500,000 in
aggregate liability;
(E) Contingent Obligations with respect to Indebtedness
permitted pursuant to Section 3.1; and
(F) Other Contingent Obligations which, in the aggregate, if
called upon could not reasonably be expected to have a Material Adverse Effect.
3.5 Restricted Junior Payments. Each Borrower will not and will not
permit its Subsidiaries to directly or indirectly declare, order, pay, make or
set apart any sum for any Restricted Junior Payment; provided, however, that:
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Credit Agreement/CT Communications
(A) any Borrower or any Subsidiary thereof may pay dividends
in shares of its own capital stock;
(B) any Subsidiary may pay dividends or make distribution to
any Borrower;
(C) CT may pay cash dividends to its equity holders; provided
that (i) such dividends shall not exceed in any fiscal year one hundred percent
(100%) of CT's consolidated net income, determined in accordance with GAAP, for
the immediately preceding fiscal year and (ii) the Borrowers shall have
delivered to the Administrative Agent evidence reasonably satisfactory thereto
demonstrating compliance with Section 4.1 and Section 4.2 hereof both before and
after giving effect to such dividend payment; and
(D) CT may redeem all or any portion of its 4.5% Preferred
Stock in an amount not to exceed One Hundred Thousand Dollars ($100,000) and its
5% Preferred Stock in an amount not to exceed $400,000 Thousand Dollars
($400,000);
(E) CT may purchase up to up to 1,000,000 shares of its
outstanding shares of common stock at an aggregate purchase price not to exceed
$15,500,000; and
(F) any Borrower or any Subsidiary thereof may redeem equity
securities in an amount not to exceed One Million Dollars ($1,000,000) over the
term of this Agreement issued pursuant to incentive stock option plans of any
Borrower or any Subsidiary from employees upon the termination of the employment
of such employees, so long as any such redemption is made in accordance with the
terms and conditions of such incentive stock option plans.
3.6 Restriction on Fundamental Changes. Each Borrower will not and will
not permit its Subsidiaries directly or indirectly to: (i) enter into any
transaction of merger or consolidation, except any Subsidiary of such Borrower
may be merged with or into any Borrower or any wholly-owned Subsidiary of any
Borrower, provided that such Borrower or such wholly-owned Subsidiary of such
Borrower is the surviving entity; (ii) liquidate, wind-up or dissolve itself (or
suffer any liquidation or dissolution); or (iii) acquire by purchase or
otherwise all or any substantial part of the business or assets of any other
Person, except as permitted under Section 3.3(D). Notwithstanding the foregoing,
any Subsidiary may engage in any of the transactions prohibited by (ii) of this
Section 3.6, if the transaction does not have a Material Adverse Effect.
3.7 Limitations on Exchange and Issuance of Capital Stock. Issue, sell
or otherwise dispose of any class or series of capital stock that, by its terms
or by the terms of any security into which it is convertible or exchangeable,
is, or upon the happening of an event or passage of time would be, (a)
convertible or exchangeable into Indebtedness (other than Indebtedness permitted
under Section 3.1(F)) or (b) required to be redeemed or repurchased, including
at the option of the holder, in whole or in part, for cash or property other
than capital stock, or has, or upon the happening of an event or passage of time
would have, a cash redemption or similar payment due (any such capital stock
"Convertible/Redeemable Equity"); provided that the foregoing restriction shall
not apply to any Convertible/Redeemable Equity which cannot under any
circumstances be converted, exchanged, redeemed or repurchased at any time prior
to one year after the Term Loan Maturity Date.
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Credit Agreement/CT Communications
3.8 Disposal of Assets or Subsidiary Stock. Each Borrower will not and
will not permit its Subsidiaries directly or indirectly to: convey, sell, lease,
sublease, transfer or otherwise dispose of, or grant any Person an option to
acquire, in one transaction or a series of transactions, any of its property,
business or assets, or the capital stock of or other equity interests in any
such Subsidiary whether now owned or hereafter acquired, except for (i) bona
fide sales of inventory to customers for fair value in the ordinary course of
business and dispositions of obsolete equipment not used or useful in the
business, (ii) fair market value sales of Cash Equivalents, (iii) the transfer,
sale, lease, assignment or other disposition of assets to any Borrower or any
wholly-owned Subsidiary of any Borrower, (iv) the sale or discount without
recourse of accounts receivable arising in the ordinary course of business in
connection with the compromise or collection thereof, (v) the lease or sublease
of property in the ordinary course of business, and (vi) all other dispositions
of assets if all of the following conditions are met: (a) the aggregate market
value of assets sold in any one transaction or series of related transaction for
any calendar year does not exceed $1,000,000 for Borrower and its Subsidiaries;
(b) the consideration received is at least equal to the fair market value of
such assets; (c) the sole consideration received is cash; (d) after giving
effect to the sale or other disposition of such assets, Borrower, on a
consolidated basis with its Subsidiaries, is in compliance on a pro forma basis
with the covenants set forth in Section 4 recomputed for the most recently ended
month for which information is available; and (e) no Default or Event of Default
then exists or shall result from such sale or other disposition.
3.9 Transactions with Affiliates. Each Borrower will not and will not
permit its Subsidiaries directly or indirectly to enter into or permit to exist
any transaction (including the purchase, sale, lease or exchange of any property
or the rendering of any service) with any Affiliate, other than a Borrower, or
with any director, officer or employee of any Borrower or any Affiliate, except
(i) as set forth on Schedule 3.9; (ii) transactions in the ordinary course of
and pursuant to the reasonable requirements of the business of such Borrower or
such Subsidiary and upon fair and reasonable terms which are fully disclosed to
Lenders and are no less favorable to such Borrower or such Subsidiary than would
be obtained in a comparable arm's length transaction with a Person that is not
an Affiliate; or (iii) payment of compensation to directors, officers and
employees in the ordinary course of business for services actually rendered in
their capacities as directors, officers and employees, provided such
compensation is reasonable and comparable with compensation paid by companies of
like nature and similarly situated. Notwithstanding the foregoing, upon the
election of Administrative Agent or Requisite Lenders no payments may be made
with respect to any items set forth in clauses (i) and (ii) of the preceding
sentence upon the occurrence and during the continuation of a Default or Event
of Default.
3.10 Conduct of Business. Each Borrower will not and will not permit
its Subsidiaries directly or indirectly to engage in any business other than
businesses of owning, constructing, managing and operating in Communications
Systems.
3.11 Fiscal Year. Each Borrower will not and will not permit its
Subsidiaries to change its or their fiscal year from a fiscal year ending on
December 31 of each year.
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3.12 Amendments: Payments and Prepayments of Subordinated Debt. Amend
or modify (or permit the modification or amendment of) any of the terms or
provisions of any Indebtedness permitted under Section 3.1(E), or cancel or
forgive, make any voluntary or optional payment or prepayment on, or redeem or
acquire for value (including without limitation by way of depositing with any
trustee with respect thereto money or securities before due for the purpose of
paying when due) any such Indebtedness.
SECTION 4
FINANCIAL COVENANTS AND REPORTING
Each Borrower covenants and agrees that so long as this Agreement is in
effect and until payment in full of all Obligations, unless Requisite Lenders
shall otherwise give their prior written consent, such Borrower shall perform
and comply with, and shall cause its Subsidiaries to perform and comply with,
all covenants in this Section 4. For purposes of this Section 4, all covenants
calculated for Borrowers shall be calculated on a consolidated basis for CT and
its Subsidiaries.
4.1 Total Leverage Ratio. Commencing on the Closing Date, CT shall
maintain at all times, measured on a consolidated basis at each fiscal quarter
end set forth below and maintained through the next measurement date, a Total
Leverage Ratio less than or equal to 3.5:1.0.
4.2 Indebtedness to Total Capitalization Ratio.CT shall maintain at all
times on a consolidated basis, an Indebtedness to Total Capitalization Ratio not
exceeding 0.60:1.
4.3 Financial Statements and Other Reports.CT will and will cause its
Subsidiaries to maintain a system of accounting established and administered in
accordance with sound business practices to permit preparation of financial
statements in conformity with GAAP (it being understood that quarterly financial
statements are not required to have footnote disclosures). CT will deliver each
of the financial statements and other reports described below to Administrative
Agent (and each Lender in the case of the financial statements and other reports
described in Subsections 4.3(A), (B), (C), (D), (E), (F), (G) and (H)).
(A) Quarterly Financials. As soon as available and in any
event within forty-five (45) days after the end of each of the first three
fiscal quarters, CT will deliver consolidated and consolidating balance sheets
of CT and its Subsidiaries, as at the end of such fiscal quarter, and the
related consolidated and consolidating statements of income, stockholders'
equity and cash flow for such fiscal quarter and for the period from the
beginning of the then current fiscal year of CT to the end of such quarter.
(B) Year-End Financials. As soon as available and in any event
within ninety (90) days after the end of each fiscal year of CT, CT will deliver
(i) consolidated and consolidating balance sheets of CT and its Subsidiaries, as
at the end of such year, and the related consolidated and consolidating
statements of income, stockholders' equity and cash flow for such fiscal year
and (ii) a report with respect to the financial statements from a firm of
certified public accountants selected by
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CT and reasonably acceptable to Administrative Agent, which report shall be
prepared in accordance with Statement of Auditing Standards No. 58 (the
"Statement"), as amended, entitled "Reports on Audited Financial Statements" and
such report shall be "Unqualified" (as such term is defined in such Statement).
(C) Borrower Compliance Certificate. Together with each
delivery of financial statements of CT and its Subsidiaries pursuant to
Subsections 4.3(A) and 4.3(B), Borrowers will deliver a fully and properly
completed compliance certificate in substantially the same form as Exhibit
4.3(C) (each, a "Compliance Certificate") signed by the chief executive officer
or chief financial officer of CT.
(D) Accountants' Reliance Letter. Together with each delivery
of consolidated and consolidating financial statements of CT and its
Subsidiaries pursuant to Subsection 4.3(B), CT will deliver a copy of a letter
addressed to CT's certified public accountants informing such accountants that a
primary intent of CT for the professional services such accountants provided to
CT in preparing their audit report was to benefit or influence Lenders and their
successors or assigns, and identifying Lenders as parties that CT intends to
rely on such professional services provided to CT by such accountants.
(E) Accountants' Reports. Promptly upon receipt thereof, CT
will deliver copies of all significant reports submitted by CT's firm of
certified public accountants in connection with each annual, interim or special
audit or review of any type of the financial statements or related internal
control systems of CT made by such accountants, including any comment letter
submitted by such accountants to management in connection with their services.
(F) Projections. As soon as available and in any event prior
to CT's fiscal years, CT will deliver Projections of CT and its Subsidiaries on
a consolidated basis for the next succeeding fiscal year, quarter by quarter.
Together with each delivery of consolidated and consolidating financial
statements of CT and its Subsidiaries pursuant to Subsections 4.3(A) and 4.3(B),
CT will deliver a schedule comparing the actual performance of CT and its
Subsidiaries for such fiscal quarter and for the portion of the fiscal year then
ended against the Projections for the then-current fiscal year delivered
pursuant to this Subsection 4.3(F). Promptly after becoming aware thereof, CT
will notify Administrative Agent of any material amendment to or deviation from
such Projections.
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(G) SEC Filings and Press Releases. Promptly upon their
becoming available, CT will deliver copies of (i) all financial statements,
reports, notices and proxy statements sent or made available by CT or its
Subsidiaries to its or their security holders, (ii) all regular and periodic
reports and all registration statements and prospectuses, if any, filed by CT or
any of its Subsidiaries with any securities exchange or with the Securities and
Exchange Commission (the "SEC") or any governmental or private regulatory
authority, and (iii) all press releases and other statements made available by
CT or any of its Subsidiaries to the public concerning developments in the
business of any such Person. If filed in compliance with the rules of the SEC
and if delivered to the Administrative Agent and to each Lender within the times
provided in Sections 4.3 (A) and (B), copies of regular reports to the SEC on
Form 10-K and 10-Q shall satisfy the delivery requirements of Section 4.3 (A)
and (B), so long as such regular reports include the information required
herein.
(H) Events of Default, Etc. Promptly upon any officer of any
Borrower obtaining knowledge of any of the following events or conditions, CT
shall deliver copies of all notices given or received by such Borrower or any of
its Subsidiaries with respect to any such event or condition and a certificate
of CT's chief executive officer specifying the nature and period of existence of
such event or condition and what action such Borrower has taken, is taking and
proposes to take with respect thereto: (i) any condition or event that
constitutes an Event of Default or Default; (ii) any notice that any Person has
given to any Borrower or any of its Subsidiaries or any other action taken with
respect to a claimed default or event or condition of the type referred to in
Subsection 6.1(B); or (iii) any event or condition that could reasonably be
expected to have a Material Adverse Effect.
(I) Litigation. Promptly upon any officer of any Borrower
obtaining knowledge of (i) the institution of any action, suit, proceeding,
governmental investigation or arbitration against or affecting any Borrower or
any of its Subsidiaries not previously disclosed by such Borrower to
Administrative Agent or (ii) any material development in any action, suit,
proceeding, governmental investigation or arbitration at any time pending
against or affecting any Borrower or any of its Subsidiaries which, in each
case, could reasonably be expected to have a Material Adverse Effect, CT will
give notice thereof to Administrative Agent and provide such other information
as may be reasonably available to CT to enable Administrative Agent and its
counsel to evaluate such matter.
(J) Supplemented Schedules; Notice of Corporate Changes.
Annually, concurrently with Borrowers' delivery of the Projections required by
Subsection 4.3(F), CT shall supplement in writing and deliver revisions of the
Schedules annexed to this Agreement to the extent necessary to disclose new or
changed facts or circumstances after the Closing Date; provided that subsequent
disclosures shall not constitute a cure or waiver of any Default or Event of
Default resulting from the matters disclosed.
(K) Regulatory and Other Notices. Within fifteen (15) days
after filing, receipt or becoming aware thereof, copies of any filings or
communications sent to or notices and other communications received by any
Borrower or any of its Subsidiaries from any Governmental Authority, including
the FCC, any applicable PUC and the SEC, relating to any noncompliance by such
Borrower or any of its Subsidiaries with any law or with respect to any matter
or proceeding the effect of which could reasonably be expected to have a
Material Adverse Effect or which could reasonably be expected to result in a
material adverse amendment, change or termination of any License.
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(L) Other Information. With reasonable promptness, CT will
deliver such other information and data with respect to Borrowers or any of
their Subsidiaries as from time to time may be reasonably requested by
Administrative Agent.
4.4 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement. For purposes of this Agreement, all accounting terms not
otherwise defined herein shall have the meanings assigned to such terms in
conformity with GAAP. Except as otherwise expressly provided, financial
statements and other information furnished to Administrative Agent or the
Lenders pursuant to this Agreement shall be prepared in accordance with GAAP as
in effect at the time of such preparation. No "Accounting Changes" (as defined
below) shall affect financial covenants, standards or terms in this Agreement;
provided that CT shall prepare footnotes to each Compliance Certificate and the
financial statements required to be delivered hereunder that show the
differences between the financial statements delivered (which reflect such
Accounting Changes) and the basis for calculating financial covenant compliance
(without reflecting such Accounting Changes). "Accounting Changes" means: (i)
changes in accounting principles required by GAAP and implemented by Borrowers;
(ii) changes in accounting principles recommended by Borrowers' certified public
accountants and implemented by Borrowers; and (iii) changes in the method of
determining carrying value of Borrowers' or any of their Subsidiaries' assets,
liabilities or equity accounts. All such adjustments resulting from expenditures
made subsequent to the Closing Date (including, but not limited to,
capitalization of costs and expenses or payment of pre-Closing Date liabilities)
shall be treated as expenses in the period the expenditures are made.
SECTION 5
REPRESENTATIONS AND WARRANTIES
In order to induce Administrative Agent and Lenders to enter into this
Agreement and to make Loans, each Borrower represents and warrants to
Administrative Agent and each Lender on the Closing Date and on the date of each
request for a Loan that the following statements are true, correct and complete:
5.1 Disclosure. No information furnished by or on behalf of Borrowers
or any of their Subsidiaries contained in this Agreement, the financial
statements referred to in Subsection 5.8 or any other document, certificate,
opinion or written statement furnished to any Administrative Agent or any Lender
for use in connection with the Loan Documents or the transactions contemplated
thereunder contains any untrue statement of a material fact or omitted, omits or
will omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. No Borrower is aware of any facts which it has not
disclosed in writing to the Administrative Agent having a Material Adverse
Effect, or insofar as Borrower can now foresee, that could reasonably be
expected to have a Material Adverse Effect.
5.2 No Material Adverse Effect. Since December 31, 2000, there has been
no event or change in facts or circumstance affecting Borrowers or any of their
Subsidiaries which individually or in the aggregate have had or could reasonably
be expected to have a Material Adverse Effect and that have not been disclosed
herein or in the attached Schedules.
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5.3 Organization, Powers, Authorization and Good Standing.
(A) Organization and Powers. Each Borrower and its
Subsidiaries is a limited liability company, corporation or partnership duly
organized, validly existing and in good standing under the laws of its
jurisdiction or incorporation. Each Borrower and its Subsidiaries has all
requisite legal power and authority to own and operate its properties, to carry
on its business as now conducted and proposed to be conducted, to enter into
each Loan Document to which it is a party and to carry out its respective
obligations with respect thereto.
(B) Authorization; Binding Obligation. Each Borrower and its
Subsidiaries has taken all necessary corporate and other action to authorize the
execution, delivery and performance of this Agreement and each of the other Loan
Documents to which it is a party. This Agreement is, and the other Loan
Documents when executed and delivered will be, the legally valid and binding
obligations of the applicable parties thereto (other than Administrative Agent
and the Lenders), each enforceable against each of such parties, as applicable,
in accordance with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar state
or federal debt or relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and general principles of equity.
(C) Qualification. Each Borrower and its Subsidiaries is duly
qualified and authorized to do business and in good standing in each
jurisdiction where the nature of its business and operations requires such
qualification and authorization, except where the failure to be so qualified,
authorized and in good standing could not reasonably be expected to have a
Material Adverse Effect.
5.4 Compliance of Agreement, Loan Documents and Borrowings with
Applicable Law. The execution, delivery and performance by Borrowers and their
Subsidiaries of the Loan Documents to which each is a party, the borrowings
hereunder and the transactions contemplated hereby and thereby do not and will
not, by the passage of time, the giving of notice or otherwise, (i) except as
set forth on Schedule 5.4 hereto, require any Governmental Approval or violate
any Applicable Law relating to any Borrower or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute a default under the articles
of incorporation, bylaws or other organizational documents of any Borrower or
any of its Subsidiaries or any Material Contract to which such Person is a party
or by which any of its properties may be bound or any Governmental Approval
relating to such Person or (iii) result in or require the creation or imposition
of any Lien upon or with respect to any property now owned or hereafter acquired
by such Person.
5.5 Compliance with Law; Governmental Approvals. Except as set forth on
Schedule 5.5 hereto, each Borrower and its Subsidiaries (i) has all material
Governmental Approvals required by any Applicable Law for it to conduct its
business, except for such Governmental Approvals for which the failure to obtain
could not reasonably be expected to have a Material Adverse Effect and (ii) is
in material compliance with each Governmental Approval applicable to it and in
compliance with all other Applicable Laws relating to it or any of its
respective properties the violation of which could reasonably be expected to
have a Material Adverse Effect. Each such Governmental Approval is in full force
and effect, is final and not subject to review on appeal and is not the subject
of any
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pending or threatened attack by direct or collateral proceeding.
5.6 Tax Returns and Payments. Each Borrower and its Subsidiaries has
duly filed or caused to be filed, except as set forth on Schedule 5.6, all
federal, state, local and other tax returns required by Applicable Law to be
filed except where the failure to file could not reasonably be expected to have
a Material Adverse Effect, and has paid, or made adequate provision for the
payment of, all federal, state, local and other taxes, assessments and
governmental charges or levies upon it and its property, income, profits and
assets which are due and payable, except where the payment of such tax is being
diligently contested in good faith and adequate reserves therefor have been
established in compliance with GAAP or where the failure to pay, or to make
adequate provision for the payment of such taxes, assessments, charges and
levies could not reasonably be expected to have a Material Adverse Effect. The
charges, accruals and reserves on the books of each Borrower and its
Subsidiaries in respect of federal, state, local and other taxes for all fiscal
years and portions thereof are in the judgment of such Borrower adequate, and
neither such Borrower nor any of its Subsidiaries anticipates any additional
material taxes or assessments for any of such years.
5.7 Environmental Matters. Each Borrower and its Subsidiaries is in
compliance in all material respects with all applicable Environmental Laws, and
there is no contamination at, under or about the properties or operations of any
Borrower or their Subsidiaries, which interfere in any material respect with the
continued operation of such properties or impair in any material respect the
fair saleable value thereof or with such operations, except for any such
violations or contamination as could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
5.8 Financial Statements. All financial statements concerning each
Borrower and its Subsidiaries which have been or will hereafter be furnished to
Administrative Agent or any Lender pursuant to this Agreement have been or will
be prepared in accordance with GAAP consistently applied (except as disclosed
therein) and do or will present fairly the financial condition of the Persons
covered thereby as of the date thereof and the results of their operations for
the periods covered thereby and do and will disclose all material liabilities
and Contingent Obligations of each Borrower or its Subsidiaries as at the dates
thereof, except that any unaudited financial statements are or shall be subject
to changes resulting from normal year end adjustments and items that are or will
be disclosed in footnotes to the audited statements. No Borrower nor any of its
Subsidiaries has outstanding, as of the Closing Date, and after giving effect to
the initial Loans hereunder on the Closing Date, any Indebtedness for borrowed
money or Contingent Obligations other than (i) the Loans, (ii) the Indebtedness
permitted under Subsection 3.1, and (iii) the Contingent Obligations permitted
under Subsection 3.4.
5.9 Intellectual Property. Each Borrower and its Subsidiaries owns, or
possesses through valid licensing arrangements, the right to use all patents,
copyrights, trademarks, trade names, service marks, technology know-how and
processes used in or necessary for the conduct of its business as currently or
anticipated to be conducted (collectively, the "Intellectual Property Rights")
without infringing upon any validly asserted rights of others, except for any
Intellectual Property Rights the absence of which could not reasonably be
expected to have a Material Adverse Effect. No event has occurred which permits,
or after notice or lapse of time or both would permit, the revocation or
termination of any such rights. Neither Borrower nor any of its Subsidiaries has
been
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threatened with any litigation regarding Intellectual Property Rights that would
present a material impediment to the business of any such Person.
5.10 Litigation, Investigations, Audits, Etc. Except as set forth on
Schedule 5.10, there is no action, suit, proceeding or investigation pending
against, or, to the knowledge of Borrower, threatened against or in any other
manner relating adversely to, any Borrower or any of its Subsidiaries or any of
their respective properties, including the Licenses, in any court or before any
arbitrator of any kind or before or by any Governmental Authority (including the
FCC) which could reasonably be expected to have a Material Adverse Effect. None
of the actions, suits, proceedings or investigations disclosed on Schedule 5.10
(i) calls into question the validity of this Agreement or any other Loan
Document, or (ii) individually or collectively involves the possibility of any
judgment or liability not fully covered by insurance which, if determined
adversely to such Borrower or any of its Subsidiaries, could reasonably be
expected to have a Material Adverse Effect. Neither any Borrower nor any of its
Subsidiaries is the subject of any review or audit by the Internal Revenue
Service or any investigation by any Governmental Authority concerning the
violation or possible violation of any law.
5.11 Employee Labor Matters. Except as set forth on Schedule 5.11, (i)
no Borrower, its material Subsidiaries nor any of their respective employees is
subject to any collective bargaining agreement, (ii) no petition for
certification or union election is pending with respect to the employees of any
such Person and no union or collective bargaining unit has sought such
certification or recognition with respect to the employees of any such Person
and (iii) there are no strikes, slowdowns, work stoppages or controversies
pending or, to the best knowledge of any Borrower after due inquiry, threatened
between any such Person and its respective employees, other than employee
grievances arising in the ordinary course of business which could not reasonably
be expected to have, either individually or in the aggregate, a Material Adverse
Effect.
5.12 Employee Benefit Plans. Each Borrower and its Subsidiaries are in
compliance in all material respects with the applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended (ERISA), and the
regulations and published interpretations thereunder, the failure to comply with
which could reasonably be expected to have a Material Adverse Effect.
5.13 Communications Regulatory Matters.
(A) Schedule 5.13(A) sets forth a true and complete list of
the following information for each License issued to each Borrower or its
material Subsidiaries: the name of the licensee, the type of service, the
expiration date and the geographic area covered by such License.
(B) The Licenses are valid and in full force and effect
without conditions except for such conditions as are generally applicable to
holders of such Licenses. No event has occurred and is continuing which could
reasonably be expected to (i) result in the imposition of a forfeiture or the
revocation, termination or adverse modification of any such License or (ii)
adversely affect any rights of any Borrower or its Subsidiaries or any other
holder thereunder, except, in each case, where such results could not reasonably
be expected to have a Material Adverse Effect. No Borrower has any reason to
believe and has no knowledge that any License will not be renewed in the
ordinary course. No Borrower nor any of its Subsidiaries is a party to any
investigation, notice of violation,
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order or complaint issued by or before the FCC, and there are no proceedings
pending by or before the FCC which could in any manner threaten or adversely
affect the validity of any License.
(C) All of the properties, equipment and systems owned, leased
or managed by each Borrower or its Subsidiaries that are material to the
operations of CT on a consolidated basis are, and (to the best knowledge of such
Borrower) all such property, equipment and systems to be acquired or added in
connection with any contemplated system expansion or construction will be, in
good repair, working order and condition (reasonable wear and tear excepted) and
are and will be in material compliance with all terms and conditions of the
Licenses and all standards or rules imposed by any Governmental Authority or as
imposed under any agreements with telephone companies and customers.
(D) Each Borrower and its Subsidiaries has paid all franchise,
license or other fees and charges which have become due pursuant to any
Governmental Approval in respect of its business except where the failure to
make such payments could not reasonably be expected to have a Material Adverse
Effect and has made appropriate provision to the extent required by GAAP for any
such fees and charges which have accrued.
5.14 Solvency. Each Borrower and its Subsidiaries: (i) owns and will
own assets the present fair saleable value of which are (a) greater than the
total amount of liabilities (including contingent liabilities) of such Borrower
or its Subsidiaries and (b) greater than the amount that will be required to pay
the probable liabilities of its then existing debts and liabilities as they
become absolute and matured considering all financing alternatives and potential
asset sales reasonably available to such Borrower or such Subsidiary; (ii) has
capital that is not unreasonably small in relation to its business as presently
conducted or after giving effect to any contemplated transaction; and (iii) does
not intend to incur and does not believe that it will incur debts and
liabilities beyond its ability to pay such debts and liabilities as they become
due.
5.15 Investment Company Act; Public Utility Holding Act. Each Borrower
and its Subsidiaries is not an investment company" as that term is defined in
and is not otherwise subject to regulation under, the Investment Company Act of
1940, as amended. Each Borrower and its Subsidiaries is not a "holding company"
as that term is defined in, and is not otherwise subject to regulation under,
the Public Utility Holding Company Act of 1935, as amended.
5.16 Certain Agreements and Material Contracts. Schedule 5.16 sets
forth a complete and accurate list of all loan agreements, indentures,
guarantees, capital leases and other similar credit or reimbursement agreements
and all Material Contracts of each Borrower and its Subsidiaries. Each Borrower
and its Subsidiaries has performed all of its obligations under such agreements
and Material Contracts and, to the best knowledge of such Borrower, each other
party thereto is in compliance with each such agreement or Material Contract, in
each case except where the failure to conform could not reasonably be expected
to have a Material Adverse Effect. Each such agreement or Material Contract is
in full force and effect in accordance with the terms thereof. Each Borrower has
made available a true and complete copy of each such agreement or Material
Contract listed on Schedule 5.16 for inspection by Administrative Agent.
5.17 Capitalization. The outstanding capital stock or other ownership
interests of CT is
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publicly held. The outstanding capital stock or other ownership interests of
each other Borrower and its Subsidiaries is described on Schedule 5.17. All such
capital stock or other ownership interests in such other Borrowers is owned
beneficially and of record as shown on Schedule 5.17.
5.18 Title to Properties. Each Borrower and its Subsidiaries has such
title or leasehold interest in and to the real property owned or leased by it as
is necessary or desirable to the conduct of its business and valid and legal
title or leasehold interest in and to all of its personal property, including
those reflected on the balance sheets of such Borrower delivered pursuant to
Subsection 5.8, except those which have been disposed of by such Borrower
subsequent to such date which dispositions have been in the ordinary course of
business or as otherwise expressly permitted hereunder and except for those to
which the failure to have such title or leasehold interest could not reasonably
be expected to have a Material Adverse Effect.
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SECTION 6
EVENTS OF DEFAULT AND RIGHTS AND REMEDIES
6.1 Event of Default."Event of Default" shall mean the occurrence or
existence of any one or more of the following:
(A) Payment. Failure to repay any outstanding principal amount
of the Loans at the time required pursuant to this Agreement, or failure to pay,
within five (5) days after the due date, any interest on any Loan or any other
amount due under this Agreement or any of the other Loan Documents; or
(B) Default in Other Agreements. (i) Failure of any Borrower
or any of its Subsidiaries to pay when due or within any applicable grace period
any principal or interest on Indebtedness (other than the Loans) or any
Contingent Obligation or (ii) any other breach or default of any Borrower or any
of its Subsidiaries with respect to any Indebtedness (other than the Loans) or
any Contingent Obligation, if the effect of such failure to pay, breach or
default is to cause or to permit the holder or holders then to cause such
Indebtedness or Contingent Obligation having an aggregate principal amount for
such Borrower and its Subsidiaries in excess of $1,000,000 to become or be
declared due prior to its stated maturity; or
(C) Breach of Certain Provisions. Failure of any Borrower or
any of its Subsidiaries to perform or comply with any term or condition
contained in that portion of Subsection 2.2 relating to such Borrower's or any
of its Subsidiaries' obligation to maintain insurance, Subsection 2.4, Section 3
or Section 4 (excluding Section 4.3 (except for the first sentence thereof and
Subsection 4.3(H))); or
(D) Breach of Warranty. Any representation, warranty,
certification or other statement made by any Borrower or any of its Subsidiaries
in any Loan Document or in any statement or certificate at any time given by
such Borrower or any of its Subsidiaries in writing pursuant to or in connection
with any of the Loan Documents is false in any material respect on the date made
or deemed made; or
(E) Other Defaults Under Loan Documents. Any Borrower or any
of its Subsidiaries, or any other party (other than a Lender) breaches or
defaults in the performance of or compliance with any term contained in this
Agreement or the other Loan Documents and such default is not remedied or waived
within fifteen (15) days after receipt by such Borrower, any such Subsidiary, or
such other party of notice from Administrative Agent or Requisite Lenders of
such default (other than occurrences described in other provisions of this
Subsection 6.1 for which a different grace or cure period is specified or which
constitute immediate Events of Default); or
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i)
A court enters a decree or order for relief with respect to any Borrower or any
of its Subsidiaries in an involuntary case under the Bankruptcy Code, which
decree or order is not stayed or other similar relief is not granted under any
applicable federal or state law within forty-five (45) days; or (ii) the
continuance
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of any of the following events for forty-five (45) days unless dismissed, bonded
or discharged: (a) an involuntary case is commenced against any Borrower or any
of its Subsidiaries, under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect; or (b) a decree or order of a court for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over any Borrower or any of its
Subsidiaries, or over all or a substantial part of its property, is entered; or
(c) an interim receiver, trustee or other custodian is appointed without the
consent of any Borrower or any of its Subsidiaries, for all or a substantial
part of the property of such Borrower or any of its Subsidiaries; or
(G) Voluntary Bankruptcy; Appointment of Receiver; Etc. Any
Borrower or any of its Subsidiaries (i) commences a voluntary case under the
Bankruptcy Code, files a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding up or composition
for adjustment of debts of such Borrower or any of its Subsidiaries, or consents
to, or fails to contest in a timely and appropriate manner, the entry of an
order for relief in an involuntary case, the conversion of an involuntary case
to a voluntary case under any such law, or the appointment of or taking
possession by a receiver, trustee or other custodian of all or a substantial
part of the property of such Borrower or any of its Subsidiaries; or (ii) makes
any assignment for the benefit of creditors; or (iii) the Board of Directors of
any Borrower or any of its Subsidiaries adopts any resolution or otherwise
authorizes action to approve any of the actions referred to in this Subsection
6.1(G); or
(H) Governmental Liens. Any Lien, levy or assessment (other
than Permitted Encumbrances) is filed or recorded with respect to or otherwise
imposed upon all or any material part of the assets of any Borrower or any of
its Subsidiaries by the United States or any department or instrumentality
thereof or by any state, county, municipality or other Governmental Authority,
in each case, except where the Borrower or Subsidiary is not material to the
operations of CT on a consolidated basis; or
(I) Judgment and Attachments. Any money judgment, writ or
warrant of attachment or similar process (other than those described in
Subsection 6.1(H)) involving an amount in any individual case or in the
aggregate for any Borrower and its Subsidiaries at any time in excess of
$500,000 (in either case not adequately covered by insurance as to which the
insurance company has acknowledged coverage) is entered or filed against such
Borrower or any of its Subsidiaries or any of their respective assets and
remains undischarged, unvacated, unbonded or unstayed for a period of thirty
(30) days or in any event later than five (5) Business Days prior to the date of
any proposed sale thereunder; or
(J) Dissolution. Any order, judgment or decree is entered
against any Borrower or any of its Subsidiaries decreeing the dissolution or
split up of such Borrower or any of its Subsidiaries and such order remains
undischarged or unstayed for a period in excess of fifteen (15) days, in each
case; or
(K) Solvency. Any Borrower or any of its Subsidiaries ceases
to be solvent or such Borrower or any of its Subsidiaries admits in writing its
present or prospective inability to pay its debts as they become due; or
(L) Injunction. Any Borrower or any of its Subsidiaries is
enjoined, restrained or
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in any way prevented by the order of any court or any Governmental Authority
from conducting all or any material part of its business and such order
continues for more than sixty (60) days, in each case, except where such
Borrower or Subsidiary is not material to the operations of CT on a consolidated
basis; or
(M) ERISA; Pension Plans. (i) Any Borrower or any of its
Subsidiaries fails to make full payment when due of all amounts which, under the
provisions of any employee benefit plans or any applicable provisions of the
IRC, any such Person is required to pay as contributions thereto and such
failure results in or could reasonably be expected to have a Material Adverse
Effect; or (ii) an accumulated funding deficiency occurs or exists, whether or
not waived, with respect to any such employee benefit plans; or (iii) any
employee benefit plan of any Borrower or any of its Subsidiaries loses its
status as a qualified plan under the IRC and such loss results in or could
reasonably be expected to have a Material Adverse Effect; or
(N) Environmental Matters. Any Borrower or any of its
Subsidiaries fails to: (i) obtain or maintain any operating licenses or permits
required by environmental authorities; (ii) begin, continue or complete any
remediation activities as required by any environmental authorities; (iii) store
or dispose of any hazardous materials in accordance with applicable
environmental laws and regulations; or (iv) comply with any other environmental
laws, if in any such case such failure could reasonably be expected to have a
Material Adverse Effect; or
(O) Invalidity of Loan Documents. Any of the Loan Documents
for any reason, other than a partial or full release in accordance with the
terms thereof, ceases to be in full force and effect or is declared to be null
and void, or any Borrower or any of its Subsidiaries denies that it has any
further liability under any Loan Documents to which it is party, or gives notice
to such effect; or
(P) Damage; Strike; Casualty. Any strike, lockout, labor
dispute, embargo, condemnation, act of God or public enemy, or other casualty
which causes, for more than fifteen (15) consecutive days, the cessation or
substantial curtailment of revenue producing activities at any facility of any
Borrower or any of its Subsidiaries if any such event or circumstance results in
or could reasonably be expected to have a Material Adverse Effect; or
(Q) Licenses and Permits. (i) The loss, suspension or
revocation of, or failure to renew, any license or permit now held or hereafter
acquired by any Borrower or any of its Subsidiaries, if such loss, suspension,
revocation or failure to renew could reasonably be expected to have a Material
Adverse Effect; or (ii) one or more of the Licenses shall be terminated,
revoked, substantially adversely modified or fail to be renewed at its stated
expiration, if such termination, revocation, modification or non-renewal could
reasonably be expected to have a Material Adverse Effect; or
(R) Material Adverse Effect. Any event not referred to
elsewhere in this Subsection 6.1 shall occur which results in a Material Adverse
Effect; or
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(S) Certain Material Contracts. Any material breach or default
or any termination (other than on the stated or optional expiration date of such
contract in accordance with its terms shall have occurred under any of the
Material Contracts by any of the parties thereto (other than Borrower), unless,
but only as long as, the existence of any such default is being contested by
such Borrower or such Subsidiary in good faith by appropriate proceedings and
adequate reserves in respect thereof have been established on the books of such
Borrower or such Subsidiary to the extent required by GAAP; or
(T) Hedging Agreement. Any termination payment shall be due by
any Borrower under any Hedging Agreement relating to any Loan under this
Agreement and such amount is not paid within thirty (30) Business Days of the
due date thereof.
6.2 Suspension of Commitments. Upon the occurrence of any Default or
Event of Default, Administrative Agent and each Lender, without notice or
demand, may immediately cease making additional Loans and cause its obligation
to lend its Pro Rata Share of each Loan Commitment to be suspended; provided
that, in the case of a Default, if the subject condition or event is waived,
cured or removed by Requisite Lenders within any applicable grace or cure
period, any suspended portion of the Loan Commitments shall be reinstated.
6.3 Acceleration. Upon the occurrence of any Event of Default described
in the foregoing Subsections 6.1(F) or 6.1(G), the unpaid principal amount of
and accrued interest and fees on the Loans and all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest, notice of intent to accelerate, notice of acceleration or other
requirements of any kind, all of which are hereby expressly waived by Borrowers,
and the obligations of Administrative Agent and Lenders to make Loans shall
thereupon terminate. Upon the occurrence and during the continuance of any other
Event of Default, Administrative Agent may, and upon written demand by Requisite
Lenders shall, by written notice to CT, on behalf of Borrowers, declare all or
any portion of the Loans and all or some of the other Obligations to be, and the
same shall forthwith become, immediately due and payable together with accrued
interest thereon, and upon such acceleration the obligations of Administrative
Agent and Lenders to make Loans shall thereupon terminate.
6.4 Rights of Collection. Upon the occurrence of any Event of Default
(after giving effect to any grace periods provided above) and at any time
thereafter and unless and until such Event of Default is waived by Requisite
Lenders, Administrative Agent may exercise on behalf of Lenders all of their
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of Borrowers' Obligations.
6.5 Consents. Borrowers acknowledge that certain transactions
contemplated by this Agreement and the other Loan Documents and certain actions
which may be taken by Administrative Agent or Lenders in the exercise of their
respective rights under this Agreement and the other Loan Documents may require
the consent of a Governmental Authority. If counsel to Administrative Agent
reasonably determines that the consent of a Governmental Authority is required
in connection with the execution, delivery and performance of any of the
aforesaid Loan Documents or any Loan Documents delivered to Administrative Agent
or Lenders in connection therewith or as a result of any action which may be
taken pursuant thereto, then Borrowers, at
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Borrowers' sole cost and expense, agrees to use their reasonable efforts, and to
cause their Subsidiaries to use their reasonable best efforts, to secure such
consent and to cooperate with Administrative Agent and Lenders in any action
commenced by Administrative Agent or any Lender to secure such consent.
6.6 Performance by Administrative Agent. If Borrowers shall fail to
perform any covenant, duty or agreement contained in any of the Loan Documents,
Administrative Agent may perform or attempt to perform such covenant, duty or
agreement on behalf of Borrowers after the expiration of any cure or grace
periods set forth herein, subject to Applicable Law. In such event, Borrowers
shall, at the request of Administrative Agent, promptly pay any amount
reasonably expended by Administrative Agent in such performance or attempted
performance to Administrative Agent, together with interest thereon at the
highest rate of interest in effect upon the occurrence of an Event of Default as
specified in Subsection 1.2(E) from the date of such expenditure until paid.
Notwithstanding the foregoing, it is expressly agreed that Administrative Agent
shall not have any liability or responsibility for the performance of any
obligation of Borrowers under this Agreement or any other Loan Document.
6.7 Set Off and Sharing of Payments. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, during the continuance of any Event of Default, each Lender is hereby
authorized by Borrowers at any time or from time to time, with reasonably prompt
subsequent notice to CT, on behalf of Borrowers (any prior or contemporaneous
notice being hereby expressly waived) to set off and to appropriate and to apply
any and all (A) balances held by such Lender at any of its offices for the
account of Borrowers or any of their Subsidiaries (regardless of whether such
balances are then due to Borrowers or any of their Subsidiaries), and (B) except
as provided in Subsection 8.2(J), other property at any time held or owing by
such Lender to or for the credit or for the account of Borrowers or any of their
Subsidiaries, against and on account of any of the Obligations; provided, that
no Lender shall exercise any such right without the prior written consent of
Administrative Agent. Any Lender exercising a right to set off shall, to the
extent the amount of any such set off exceeds its Pro Rata Share of the amount
set off, purchase for cash (and the other Lenders shall sell) interests in each
such other Lender's Pro Rata Share of the Obligations as would be necessary to
cause such Lender to share such excess with each other Lender in accordance with
their respective Pro Rata Shares. Borrowers agree, to the fullest extent
permitted by law, that any Lender may exercise its right to set off with respect
to amounts in excess of its Pro Rata Share of the Obligations and upon doing so
shall deliver such excess to Administrative Agent for the benefit of all Lenders
in accordance with their Pro Rata Shares; provided, that CoBank may exercise its
rights against any equity of CoBank held by Borrowers without complying with
this sentence.
6.8 Application of Payments. Subsequent to the acceleration of the
Loans pursuant to Subsection 6.3, all payments received by the Lenders on the
Obligations and on the proceeds from the enforcement of the Obligations shall be
distributed pro rata among the Loans and shall be further applied among
Administrative Agent and the Lenders as follows: First, to all Administrative
Agent's fees and expenses then due and payable, then to all other expenses then
due and payable by Borrowers hereunder, then to all indemnitee obligations then
due and payable by Borrowers hereunder, then to all commitment and other fees
and commissions then due and payable by Borrowers, then to accrued and unpaid
interest on the Loans (pro rata) in accordance with all such
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amounts due on the Loans), and then to the principal amount of the Loans (pro
rata among all Loans), in that order.
6.9 Adjustments. If any Lender (a "Benefitted Lender") shall at any
time receive any payment of all or part of its Loans, or interest thereon in a
greater proportion than any such payment received by any other Lender, if any,
in respect of such other Lender's Loans, or interest thereon, such Benefitted
Lender shall, to the extent permitted by Applicable Law, purchase for cash from
the other Lenders such portion of each such other Lender's Loans as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits ratably with each Lender; provided, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned
to the extent of such recovery, but without interest. Borrowers agree that each
Lender so purchasing a portion of another Lender's Loans may exercise all rights
of payment (including rights of set-off) with respect to such portion as fully
as if such Lender were the direct holder of such portion. This Subsection 6.9
shall not apply to any action taken by CoBank with respect to equity in it held
by Borrowers.
SECTION 7
CONDITIONS TO LOANS
The obligations of Lenders to make Loans are subject to satisfaction of
all of the applicable conditions set forth below.
7.1 Conditions to Initial Loan. The obligations of Lenders to make the
initial Loan are, in addition to the conditions precedent specified in
Subsection 7.2, subject to the satisfaction of each of the following conditions:
(A) Executed Loan and Other Documents. (i) This Agreement,
(ii) the Notes, and (iii) all other documents and instruments contemplated by
such agreements, shall have been duly authorized and executed by Borrowers, or
other Person, as applicable, in form and substance satisfactory to
Administrative Agent, and Borrowers, or such other Person, as applicable, shall
have delivered original counterparts thereof to Administrative Agent.
(B) Closing Certificates; Opinions.
(1) Officer's Certificate. Administrative Agent shall
have received a certificate from the chief executive officer or chief financial
officer of CT, in form and substance reasonably satisfactory to Administrative
Agent, to the effect that all representations and warranties of each Borrower
contained in this Agreement and the other Loan Documents are true, correct and
complete; that no Borrower nor any of its Subsidiaries is in violation of any of
the covenants contained in this Agreement and the other Loan Documents; that,
after giving effect to the transactions contemplated by this Agreement, no
Default or Event of Default has occurred and is continuing; that each Borrower
has satisfied each of the closing conditions to be satisfied hereby; and that
each Borrower has filed all required tax returns and owes no delinquent taxes,
except where the payment of such tax is being diligently contested in good faith
and adequate reserves therefor have been established in compliance with GAAP.
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(2) Certificate of Secretary of Borrowers.
Administrative Agent shall have received a certificate of the secretary or
assistant secretary of each Borrower certifying that attached thereto is a true
and complete copy of the articles of incorporation or organization of such
Borrower, and all amendments thereto, certified as of a recent date by the
Secretary of State of the state of incorporation or organization; that attached
thereto is a true and complete copy of the bylaws, operating agreement or other
governing agreement of such Borrower as in effect on the date of such
certification; that attached thereto is a true and complete copy of resolution
or consent of the governing body of such Borrower, authorizing the borrowings
contemplated hereunder and the execution, delivery and performance of this
Agreement and the other Loan Documents; and as to the incumbency and genuineness
of the signature of each officer of such Borrower executing Loan Documents.
(3) Certificates of Good Standing. Administrative
Agent shall have received certificates as of a recent date of the good standing
of each Borrower under the laws of its jurisdiction of organization and such
other jurisdictions as are requested by Administrative Agent.
(4) Opinions of Counsel. Administrative Agent shall
have received favorable opinions of counsel to Borrowers addressed to
Administrative Agent and Lenders with respect to Borrowers, the Loan Documents
and regulatory matters (including, without limitation, the Licenses) reasonably
satisfactory in form and substance to Administrative Agent.
(5) Lien Searches. Borrowers shall have delivered to
Administrative Agent the results of a Lien search of all filings made against
each Borrower or any of its Subsidiaries, under the Uniform Commercial Code as
in effect in any jurisdiction in which any of its assets are located, indicating
among other things that Borrower's assets are free and clear of any Lien, except
for Permitted Encumbrances.
(C) Consents.
(1) Governmental and Third Party Approvals. Borrowers
shall have delivered to Administrative Agent all necessary approvals,
authorizations and consents, if any, of all Persons, Governmental Authorities,
including the FCC and all applicable PUCs (except that, subject to Section
1.7(D), Borrowers shall have until April 30, 2003 to obtain the approval of the
North Carolina Utilities Commission), and courts having jurisdiction with
respect to the execution and delivery of this Agreement and the other Loan
Documents, and all such approvals shall be in form and substance satisfactory to
Administrative Agent.
(2) Permits and Licenses. Administrative Agent shall
have received copies of all material permits and licenses, including the
Licenses, required under Applicable Laws for the conduct of Borrowers' or any of
its Subsidiaries' businesses.
(3) No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before any Governmental Authority to enjoin, restrain or prohibit,
or to obtain substantial damages in respect of, or which is related to or arises
out of this Agreement or the other Loan Documents or the consummation of the
transactions
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contemplated hereby or thereby, or which, as determined by Administrative Agent
in its reasonable discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement and such other Loan Documents.
(D) Financial Matters.
(1) Financial Statements. Administrative Agent and
each Lender shall have received recent annual and interim financial statements
and other financial information with respect to Borrower and its Subsidiaries
prepared in accordance with GAAP.
(2) Fees, Expenses, Taxes, Etc. There shall have been
paid by Borrowers to Administrative Agent, for the benefit of Administrative
Agent and Lenders, as applicable, the fees set forth or referenced in Subsection
1.4 and any other accrued and unpaid fees or commissions due hereunder
(including legal fees and expenses), and to any other Person such amount as may
be due thereto in connection with the transactions contemplated hereby.
(E) Miscellaneous.
(1) Repayment of Existing Indebtedness.
Administrative Agent shall have received evidence, in form and substance
reasonably satisfactory to Administrative Agent, that all Indebtedness,
including the Prior Indebtedness, incurred prior to the initial Loan hereunder
has been fully paid, satisfied and discharged, other than as permitted under
Section 3.1 hereof.
(2) Proceedings and Documents. All opinions,
certificates and other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be reasonably satisfactory in
form and substance to Administrative Agent. Administrative Agent shall have
received copies of all other instruments and other evidence as Administrative
Agent may reasonably request, in form and substance reasonably satisfactory to
Administrative Agent, with respect to the transactions contemplated by this
Agreement and the taking of all actions in connection therewith.
7.2 Conditions to All Loans. The several obligations of Lenders to make
Loans, including the initial Loan, on any date (each such date a "Funding Date")
are subject to the further conditions precedent set forth below.
(A) Administrative Agent shall have received, in accordance
with the provisions of Subsection 1.3, a notice requesting an advance of a Loan.
(B) The representations and warranties contained in Section 5
of this Agreement and elsewhere herein and in the Loan Documents shall be (and
each request by CT for a Loan shall constitute a representation and warranty by
Borrowers that such representations and warranties are) true, correct and
complete in all material respects on and as of such Funding Date to the same
extent as though made on and as of that date, except for any representation or
warranty limited by its terms to a specific date and taking into account any
amendments to the Schedules or Exhibits as a result of any disclosures made in
writing by Borrowers to Administrative Agent after the Closing Date and approved
by Requisite Lenders in writing.
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(C) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated that would constitute
an Event of Default or a Default.
(D) With respect to any Lender, no order, judgment or decree
of any court, arbitrator or Governmental Authority shall purport to enjoin or
restrain such Lender from making any Loan.
(E) Since December 31, 2000, there shall not have occurred any
event or condition that has had or could reasonably be expected to have a
Material Adverse Effect.
(F) All Loan Documents shall be in full force and effect.
(G) Borrower shall have delivered to Administrative Agent such
other documents, certificates and opinions as Administrative Agent reasonably
request.
SECTION 8
ASSIGNMENT AND PARTICIPATION
8.1 Assignments and Participations in Loans and Notes. Each Lender
(including CoBank) may assign, subject to the terms of a Lender Addition
Agreement, its rights and delegate its obligations under this Agreement to one
or more Persons; provided that, (a) such Lender shall first obtain the written
consent of Administrative Agent and, if no Default or Event of Default shall
have occurred and be continuing, Borrowers, which consents shall not be
unreasonably withheld or delayed; (b) the Pro Rata Share of a Loan Commitment
being assigned shall in no event be less than the lesser of (i) $5,000,000
(which may be aggregated where several Lenders are simultaneously assigning to
the same Person) and (ii) the entire amount of the Pro Rata Share of such Loan
Commitment of the assigning Lender; and (c) upon the consummation of each such
assignment the assigning Lender shall pay Administrative Agent a non-refundable
administrative fee of $2,000; provided, that in connection with an assignment
from a Lender to an Affiliate of such Lender or to another Lender, written
consent of Borrowers shall not be required and no administrative fee shall be
payable. From and after the effective date specified in a duly executed,
delivered and accepted Lender Addition Agreement, which effective date shall be
at least five (5) Business Days after the execution thereof (unless
Administrative Agent shall otherwise agree), (A) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Lender Addition Agreement, shall have the
rights and obligations of the assigning Lender hereunder with respect thereto
and (B) the assigning Lender shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Lender Addition Agreement,
relinquish its rights (other than rights under the provisions of this Agreement
and the other Loan Documents relating to indemnification or payment of fees,
costs and expenses, to the extent such rights relate to the time prior to the
effective date of such Lender Addition Agreement) and be released from its
obligations under this Agreement other than obligations to the extent relating
to the time prior to the effective date of such Lender Addition Agreement (and,
in the case of a Lender Addition Agreement covering all or the remaining portion
of such assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto). The terms and provisions of each
Lender Addition Agreement shall, upon the effectiveness thereof be incorporated
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into and made a part of this Agreement, and the covenants, agreements and
obligations of each Lender set forth therein shall be deemed made to and for the
benefit of Administrative Agent and the other parties hereto as if set forth at
length herein. Upon its receipt of a duly completed Lender Addition Agreement
executed by an assigning Lender and an assignee, and Borrowers (if required),
together with any Note subject to such assignment and the processing fee
referred to above, Administrative Agent will accept such Lender Addition
Agreement and give notice thereof to CT, on behalf of Borrowers, and the other
Lenders. In the event of an assignment pursuant to this Subsection 8.1,
Borrowers shall, upon surrender of the assigning Lender's Note, issue a new Note
to reflect the interests of the assigning Lender and the Person to which
interests are to be assigned.
Each Lender (including Administrative Agent) may sell participations in
all or any part of its Pro Rata Share of each Loan Commitment to one or more
Persons; provided that such Lender shall first obtain the prior written consent
of Administrative Agent; and provided, further, that such Lender's obligations
under this Agreement shall remain unchanged; Borrowers, Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement; all
amounts payable by Borrowers hereunder shall be determined as if that Lender had
not sold such participation; and the holder of any such participation shall not
be entitled to require such Lender to take or omit to take any action hereunder
except action directly affecting (i) any reduction, modification or forgiveness
in the principal amount, interest rate or fees payable with respect to any Loan;
(ii) any extension of the Revolving Loan Expiration Date or the Term Loan
Maturity Date, or any change of any date fixed for any payment of any of the
Obligations; and (iii) any consent to the assignment, delegation or other
transfer by Borrowers or any of their Subsidiaries of any of its rights and
obligations under any Loan Document. Borrowers hereby acknowledge and agree that
any participation will give rise to a direct obligation of Borrowers to the
participant, and the participant shall for purposes of Subsections 1.11, 1.13,
1.14, 6.7 and 9.1 be considered to be a "Lender."
Except as otherwise provided in this Subsection 8.1, no Lender shall,
as between Borrowers and such Lender, be relieved of any of its obligations
hereunder as a result of any sale, assignment, transfer or negotiation of, or
granting of a participation in, all or any part of the Loans, the Notes or other
Obligations owed to such Lender. Each Lender may furnish any information
concerning Borrowers and their Subsidiaries in the possession of that Lender
from time to time to assignees and participants (including prospective assignees
and participants), subject to the provisions of Subsection 9.13.
Nothing in this Agreement shall be construed to prohibit any Lender
from pledging or assigning all or any portion of its rights and interest
hereunder or under any Note as collateral security for any loan or financing or
in connection with any securitization or other similar transaction or to any
Federal Reserve Bank as security for borrowings therefrom; provided, that no
such pledge or assignment shall release a Lender from any of its obligations
hereunder.
Notwithstanding anything contained in this Agreement to the contrary,
so long as Requisite Lenders shall remain capable of making LIBOR Loans, no
Person shall become a "Lender" hereunder unless such Person shall also be
capable of making LIBOR Loans.
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CoBank reserves the right to assign or sell participations in all or
any part of its Pro Rata Share of each Loan Commitment on a non-patronage basis.
8.2 Administrative Agent.
(A) Appointment. Each Lender hereby irrevocably appoints and
authorizes CoBank, as Administrative Agent to act as Administrative Agent
hereunder and under any other Loan Document with such powers as are specifically
delegated to Administrative Agent by the terms of this Agreement and any other
Loan Document, together with such other powers as are reasonably incidental
thereto. Administrative Agent is authorized and empowered to amend, modify or
waive any provisions of this Agreement or the other Loan Documents on behalf of
Lenders subject to the requirement that the consent of certain Lenders be
obtained in certain instances as provided in Subsections 8.3 and 9.2. CoBank
hereby agrees to act as Administrative Agent on the express conditions contained
in this Subsection 8.2. The provisions of this Subsection 8.2 are solely for the
benefit of Administrative Agent and Lenders, and Borrowers shall have no rights
as a third party beneficiaries of any of the provisions hereof. In performing
its functions and duties under this Agreement, Administrative Agent shall act
solely as agent of Lenders and do not assume and shall not be deemed to have
assumed any obligation toward or relationship of agency or trust with or for
Borrowers. Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through Administrative Agent or
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any Administrative Agent or attorneys-in-fact that it selects with reasonable
care.
(B) Nature of Duties. The duties of Administrative Agent shall
be mechanical and administrative in nature. Administrative Agent shall not have
by reason of this Agreement a fiduciary relationship in respect of any Lender.
Nothing in this Agreement or any of the Loan Documents, express or implied, is
intended to or shall be construed to impose upon Administrative Agent any
obligations in respect of this Agreement or any of the Loan Documents except as
expressly set forth herein or therein. Each Lender expressly acknowledges that
neither Administrative Agent, nor any of its respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representation
or warranty to it and that no act by Administrative Agent now or hereafter
taken, including any review of the affairs of Borrowers, shall be deemed to
constitute any representation or warranty by Administrative Agent to any Lender.
Each Lender represents to Administrative Agent that (i) it has, independently
and without reliance upon Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
properties, financial and other condition and creditworthiness of Borrowers and
made its own decision to enter into this Agreement and extend credit to
Borrowers hereunder, and (ii) it will, independently and without reliance upon
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action
hereunder and under the other Loan Documents and to make such investigation as
it deems necessary to inform itself as to the business, prospects, operations,
properties, financial and other condition and creditworthiness of Borrowers.
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to provide any Lender with any credit or other
information with respect thereto (other than as expressly required herein). If
Administrative Agent seeks the consent or approval of
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any Lenders to the taking or refraining from taking of any action hereunder,
then Administrative Agent shall send notice thereof to each Lender.
Administrative Agent shall promptly notify each Lender any time that Requisite
Lenders have instructed Administrative Agent to act or refrain from acting
pursuant hereto.
(C) Rights, Exculpation, Etc. Neither Administrative Agent nor
any of its officers, directors, employees, Administrative Agent or
attorneys-in-fact shall be liable to any Lender for any action taken or omitted
by them hereunder or under any of the Loan Documents, or in connection herewith
or therewith, except that each such entity shall be liable with respect to its
own gross negligence or willful misconduct. Administrative Agent shall not be
liable for any apportionment or distribution of payments made by it in good
faith and if any such apportionment or distribution is subsequently determined
to have been made in error the sole recourse of any Lender to whom payment was
due but not made, shall be to recover from other Lenders any payment in excess
of the amount to which they are determined to be entitled (and such other
Lenders hereby agree to return to such Lender any such erroneous payments
received by them). In performing its functions and duties hereunder,
Administrative Agent shall exercise the same care which it would in dealing with
loans for its own account, but Administrative Agent shall not be responsible to
any Lender for any recitals, statements, representations or warranties herein or
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or any of the Loan Documents or
the transactions contemplated thereby, or for the financial condition of
Borrowers. Administrative Agent may at any time request instructions from
Lenders with respect to any actions or approvals which by the terms of this
Agreement or of any of the Loan Documents Administrative Agent is permitted or
required to take or to grant, and if such instructions are promptly requested,
Administrative Agent shall be absolutely entitled to refrain from taking any
action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from any action or withholding any
approval under any of the Loan Documents (i) if such action or omission would,
in the reasonable opinion of Administrative Agent, violate any Applicable Law or
any provision of this agreement or any other Loan Document, or (ii) until it
shall have received such instructions from Requisite Lenders or all of the
Lenders, as applicable. Without limiting the foregoing, no Lender shall have any
right of action whatsoever against Administrative Agent as a result of
Administrative Agent acting or refraining from acting under this Agreement, the
Notes, or any of the other Loan Documents in accordance with the instructions of
Requisite Lenders.
(D) Reliance. Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any written or oral notices,
statements, certificates, orders or other documents or any telephone message or
other communication (including any writing, telex, telecopy or telegram)
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person, and with respect to all matters pertaining to
this Agreement or any of the Loan Documents and its duties hereunder or
thereunder, upon advice of counsel selected by it in connection with the
preparation, negotiation, execution, delivery, administration, amendment,
modification, waiver or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Loan Documents.
(E) Indemnification. Lenders will reimburse and indemnify
Administrative Agent and its officers, directors, employees, Administrative
Agent, attorneys-in-fact and Affiliates, on
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demand for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, attorneys'
fees and expenses), advances or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against Administrative Agent
(i) in any way relating to or arising out of this Agreement or any of the Loan
Documents or any action taken or omitted by Administrative Agent under this
Agreement or any of the Loan Documents, and (ii) in connection with the
preparation, negotiation, execution, delivery, administration, amendment,
modification, waiver or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Loan Documents in
proportion to each Lender's Pro Rata Share; provided, that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, advances or disbursements
resulting from Administrative Agent's gross negligence or willful misconduct. If
any indemnity furnished to Administrative Agent for any purpose shall, in the
opinion of Administrative Agent, be insufficient or become impaired,
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The obligations of Lenders under this Subsection 8.2(E) shall survive
the payment in full of the Obligations and the termination of this Agreement.
(F) Administrative Agent Individually. With respect to its
obligations under the Loan Commitments, the Loans made by it, and the Notes
issued to it, Administrative Agent shall have and may exercise the same rights
and powers hereunder and is subject to the same obligations and liabilities as
and to the extent set forth herein for any other Lender. The terms "Lenders" or
"Requisite Lenders" or any similar terms shall, unless the context clearly
otherwise indicates, include Administrative Agent in its individual capacity as
a Lender or one of the Requisite Lenders. Administrative Agent may lend money
to, and generally engage in any kind of banking, trust or other business with,
Borrowers or any of their Subsidiaries as if it were not acting as an
Administrative Agent pursuant hereto.
(G) Notice of Default. Administrative Agent shall not be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any of the Loan
Documents or the financial condition of Borrowers or any of their Subsidiaries,
or the existence or possible existence of any Default or Event of Default. No
Administrative Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless Administrative Agent shall
have received written notice from Borrowers or a Lender referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that Administrative Agent receives
such a notice, Administrative Agent will give notice thereof to Lenders as soon
as reasonably practicable; provided, that if any such notice has also been
furnished to Lenders, Administrative Agent shall have no obligation to notify
Lenders with respect thereto. Administrative Agent shall (subject to this
Subsection 8.2) take such action with respect to such Default or Event of
Default as shall reasonably be directed by the Requisite Lenders; provided,
further, that, unless and until Administrative Agent shall have received such
directions, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable and in the best interests of
Lenders.
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(H) Successor Administrative Agent.
(1) Resignation. Administrative Agent may resign from
the performance of all its agency functions and duties hereunder at any time by
giving at least thirty (30) Business Days' prior written notice to CT, on behalf
of Borrowers, and Lenders. Such resignation shall take effect upon the
acceptance by a successor Administrative Agent of appointment pursuant to clause
(2) below or as otherwise provided below.
(2) Appointment of Successor. Upon any such notice of
resignation pursuant to clause (1) above, Requisite Lenders shall, upon receipt,
if no Event of Default or Default shall have occurred and be continuing, of
Borrowers' prior consent which shall not be unreasonably withheld, appoint a
successor Administrative Agent from among Lenders. If a successor Administrative
Agent shall not have been so appointed within the thirty (30) Business Day
period, referred to in clause (1) above, the retiring Administrative Agent, upon
notice to CT, on behalf of Borrowers, shall then appoint a successor
Administrative Agent from among Lenders who shall serve as Administrative Agent
until such time, if any, as Requisite Lenders, upon receipt of Borrowers' prior
written consent which shall not be unreasonably withheld, appoint a successor
Administrative Agent as provided above.
(3) Successor Administrative Agent. Upon the
acceptance of any appointment as Administrative Agent under the Loan Documents
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under the Loan
Document. After any retiring Administrative Agent's resignation as
Administrative Agent under the Loan Documents, the provisions of this Subsection
8.2 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under the Loan Documents.
(I) Dissemination of Information. Administrative Agent will
use its best efforts to provide Lenders with any information received by
Administrative Agent from Borrowers which is required to be provided to a Lender
hereunder, provided that Administrative Agent shall not be liable to Lenders for
any failure to do so, except to the extent that such failure is attributable to
Administrative Agent's gross negligence or willful misconduct.
8.3 Amendments, Consents and Waivers for Certain Actions.
(A) Except as otherwise provided in this Agreement (including
this Subsection 8.3 and Subsection 9.2), any Lender Addition Agreement or any
other Loan Document, the consent of Requisite Lenders and Borrowers will be
required to amend, modify, terminate, or waive any provision of this Agreement
or any of the other Loan Documents.
(B) In the event Administrative Agent requests the consent of
a Lender and does not receive a written consent or denial thereof within ten
(10) Business Days after such Lender's receipt of such request, then such Lender
will be deemed to have denied the giving of such consent.
8.4 Disbursement of Funds. Administrative Agent shall advise each
Lender by telephone or
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telecopy of the amount of such Lender's Pro Rata Share of any Loan requested by
CT, on behalf of Borrowers, no later than 11:00 a.m. (Denver time) on the
Funding Date applicable thereto, and each such Lender shall pay Administrative
Agent such Lender's Pro Rata Share of such requested Loan, in same day funds, by
wire transfer to Administrative Agent's account by no later than 1:00 p.m.
(Denver time) on such Funding Date. If any Lender fails to pay the amount of its
Pro Rata Share forthwith upon Administrative Agent's demand, Administrative
Agent shall promptly notify CT, on behalf of Borrowers, and Administrative Agent
shall disburse to CT, on behalf of Borrowers, by wire transfer of immediately
available funds, that portion of such Loan as to which Administrative Agent has
received funds. In such event, Administrative Agent may, on behalf of any Lender
not timely paying Administrative Agent, disburse funds to CT, on behalf of
Borrowers, for Loans requested, subject to the provisions of Subsection 8.5(B).
Each such Lender shall reimburse Administrative Agent on demand for all funds
disbursed on its behalf by Administrative Agent. Nothing in this Subsection 8.4
or elsewhere in this Agreement or the other Loan Documents, including the
provisions of Subsection 8.5, shall be deemed to require Administrative Agent to
advance funds on behalf of any Lender or to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that
Administrative Agent or Borrowers may have against any Lender as a result of any
default by such Lender hereunder.
8.5 Disbursements of Advances; Payments.
(A) Pro Rata Treatment; Application. Upon receipt by
Administrative Agent of each payment from Borrowers hereunder, other than as
described in the succeeding sentence, Administrative Agent shall promptly (but
in no event later than 11:00 a.m. (Denver time) on the next succeeding Business
Day) wire transfer in immediately available funds to each Lender's account its
Pro Rata Share of such payment in accordance with such Lender's Pro Rata Share.
Each payment to Administrative Agent of its fees shall be made in like manner,
but for the account of Administrative Agent.
(B) Availability of Lender's Pro Rata Share.
(1) Unless Administrative Agent has been notified by
a Lender prior to a Funding Date of such Lender's intention not to fund its Pro
Rata Share of the Loan amount requested by CT, on behalf of Borrowers,
Administrative Agent may assume that such Lender will make such amount available
to Administrative Agent on the Funding Date. If such amount is not, in fact,
made available to Administrative Agent by such Lender when due, and
Administrative Agent disburses funds to CT, on behalf of Borrowers, on behalf of
such Lender, Administrative Agent will be entitled to recover such amount on
demand from CT, without set-off, counterclaim or deduction of any kind, with
interest thereon at the rate per annum then applicable to such Loan.
(2) Nothing contained in this Subsection 8.5(B) will
be deemed to relieve a Lender of its obligation to fulfill its commitments or to
prejudice any rights Administrative Agent or Borrowers may have against such
Lender as a result of any default by such Lender under this Agreement.
(C) Return of Payments.
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(1) If Administrative Agent pays an amount to a
Lender under this Agreement in the belief or expectation that a related payment
has been or will be received by Administrative Agent from Borrowers and such
related payment is not received by Administrative Agent, then Administrative
Agent will be entitled to recover such amount from such Lender without set-off,
counterclaim or deduction of any kind.
(2) If Administrative Agent determines at any time
that any amount received by Administrative Agent under this Agreement must be
returned to Borrowers or paid to any other Person pursuant to any solvency law
or otherwise, then, notwithstanding any other term or condition of this
Agreement, Administrative Agent will not be required to distribute any portion
thereof to any Lender. In addition, each Lender will repay to Administrative
Agent on demand any portion of such amount that Administrative Agent has
distributed to such Lender, together with interest at such rate, if any, as
Administrative Agent is required to pay to Borrower or such other Person,
without set-off, counterclaim or deduction of any kind.
SECTION 9
MISCELLANEOUS
9.1 Indemnities. Borrowers agree to indemnify, pay, and hold
Administrative Agent and each Lender and their respective officers, directors,
employees, Administrative Agent, and attorneys (the "Indemnitees") harmless from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits and claims of any kind or nature whatsoever that may
be imposed on, incurred by, or asserted against the Indemnitee as a result of
its being a party to this Agreement; provided, that Borrowers shall have no
obligation to an Indemnitee hereunder with respect to liabilities arising from
the gross negligence or willful misconduct of that Indemnitee as determined by a
court of competent jurisdiction. This Subsection 9.1 and all indemnification
provisions contained within any other Loan Document shall survive the
termination of this Agreement.
9.2 Amendments and Waivers. Except as otherwise provided herein, no
amendment, modification, termination or waiver of any provision of this
Agreement, the Notes or any of the other Loan Documents, or consent to any
departure by Borrowers therefrom, shall in any event be effective unless the
same shall be in writing and signed by Borrowers and Requisite Lenders (or
Administrative Agent, if expressly set forth herein, in any Note or in any other
Loan Document); provided, that except to the extent permitted by any applicable
Lender Addition Agreement, no amendment, modification, termination or waiver
shall, unless in writing and signed by all Lenders, do any of the following: (i)
increase any Lender's Pro Rata Share of either Loan Commitment; (ii) reduce the
principal of, rate of interest on or fees payable with respect to any Loan;
(iii) extend the Revolving Loan Expiration Date or Term Loan Maturity Date or
extend the date on which any Obligation is to be paid; (iv) change the aggregate
unpaid principal amount of the Loans; (v) change the percentage of Lenders which
shall be required for Lenders or any of them to take any action hereunder; (vi)
amend or waive this Subsection 9.2 or the definitions of the terms used in this
Subsection 9.2 insofar as the definitions affect the substance of this
Subsection 9.2; and (vii) consent to the assignment, delegation or other
transfer by Borrowers or their Subsidiaries of any of its rights and obligations
under any Loan Document; provided, further, that no amendment, modification,
termination or waiver affecting the rights or duties of Administrative Agent
under any Loan
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Document shall in any event be effective, unless in writing and signed by
Administrative Agent, in addition to Lenders required hereinabove to take such
action. Each amendment, modification, termination or waiver shall be effective
only in the specific instance and for the specific purpose for which it was
given. No amendment, modification, termination or waiver of any provision of any
Note shall be effective without the written concurrence of the holder of that
Note. No notice to or demand on Borrowers in any case shall entitle Borrowers to
any other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this Subsection 9.2 shall be binding upon each holder of the Notes at the
time outstanding, each future holder of the Notes, and, if signed by Borrowers,
on Borrowers.
9.3 Notices. Any required notice or other communication shall be in
writing addressed to the respective party as set forth below and may be
personally delivered, telecopied, sent by overnight courier service or U.S. mail
and shall be deemed to have been given: (i) if delivered in person, when
delivered; (ii) if delivered by telecopy, on the date of transmission if
transmitted on a Business Day before 2:00 p.m. (Denver time) and otherwise on
the Business Day next succeeding the date of transmission; (c) if delivered by
overnight courier, two (2) days after delivery to the courier properly
addressed; or (d) if delivered by U.S. mail, four (4) Business Days after
deposit with postage prepaid and properly addressed.
Notices shall be addressed as follows:
If to Borrowers: CT Communications, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Post Office Box 227
Concord, North Carolina 28026-0227
Attn: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Administrative
Agent or a Lender: To the address set forth on the signature page
hereto or in the applicable Lender Addition
Agreement.
9.4 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure
or delay on the part of Administrative Agent or any Lender to exercise, nor any
partial exercise of, any power, right or privilege hereunder or under any other
Loan Documents shall impair such power, right, or privilege or be construed to
be a waiver of any Default or Event of Default. All rights and remedies existing
hereunder or under any other Loan Document are cumulative to and not exclusive
of any rights or remedies otherwise available.
9.5 Marshaling; Payments Set Aside. Neither Administrative Agent nor
any Lender shall be under any obligation to marshal any assets in payment of any
or all of the Obligations. To the extent that Borrowers make payment(s) or
Administrative Agent or any Lender exercises its right of set-off, and such
payment(s) or the proceeds of such enforcement or set-off is subsequently
invalidated, declared to be fraudulent or preferential, set aside, or required
to be repaid by anyone, then to the extent of such recovery, the Obligations or
part thereof originally intended to be satisfied, and all rights and remedies
therefor, shall be revived and continued in full force and effect as if such
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payment had not been made or such enforcement or set-off had not occurred.
9.6 Severability. The invalidity, illegality, or unenforceability in
any jurisdiction of any provision under the Loan Documents shall not affect or
impair the remaining provisions in the Loan Documents.
9.7 Lenders' Obligations Several; Independent Nature of Lenders'
Rights. The obligation of each Lender hereunder is several and not joint and no
Lender shall be responsible for the obligation or commitment of any other Lender
hereunder. In the event that any Lender at any time should fail to make a Loan
as herein provided, the Lenders, or any of them, at their sole option, may make
the Loan that was to have been made by the Lender so failing to make such Loan.
Nothing contained in any Loan Document and no action taken by Administrative
Agent or any Lender pursuant hereto or thereto shall be deemed to constitute
Lenders to be a partnership, an association, a joint venture or any other kind
of entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt.
9.8 Headings. Section and Subsection headings are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purposes or be given substantive effect.
9.9 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
COLORADO WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE OR
PERMIT APPLICATION OF THE LAWS OF ANY OTHER STATE OR JURISDICTION.
9.10 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns except that Borrowers may not assign its rights or obligations hereunder
without the written consent of all Lenders.
9.11 No Fiduciary Relationship. No provision in the Loan Documents and
no course of dealing between the parties shall be deemed to create any fiduciary
duty owing to Borrowers by Administrative Agent or any Lender.
9.12 Construction. Administrative Agent, each Lender and Borrowers
acknowledge that each of them has had the benefit of legal counsel of its own
choice and has been afforded an opportunity to review the Loan Documents with
its legal counsel and that the Loan Documents shall be constructed as if jointly
drafted by Administrative Agent, each Lender and Borrowers.
9.13 Confidentiality. Administrative Agent and Lenders agree to hold
any confidential information that they may receive from Borrowers or any of
their Subsidiaries pursuant to this Agreement in confidence, except for
disclosure: (i) on a confidential basis, as necessary or appropriate, to
directors, officers, employees, agents or legal counsel, independent public
accountants and other professional advisors of Administrative Agent or Lenders;
(ii) to regulatory officials having jurisdiction over Administrative Agent or
Lenders; (iii) as required by Applicable Law or legal process or (iv) in
connection with any legal proceeding between Administrative Agent
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or Lenders and Borrowers (provided that, in the event Administrative Agent or
Lenders are so required to disclose such confidential information pursuant to
clauses (iii) or (iv) of this Subsection 9.13, Administrative Agent or Lenders
shall promptly notify Borrowers, so that Borrowers or any of their Subsidiaries
may seek, at its sole cost and expense, a protective order or other appropriate
remedy); and (v) to another Person in connection with a disposition or proposed
disposition to that Person of all or part of that Lender's interests hereunder
or a participation interest in its Pro Rata Share, provided that such disclosure
is made subject to an appropriate confidentiality agreement on terms
substantially similar to this Subsection 9.13. For purposes of the foregoing,
"confidential information" shall mean all information respecting Borrowers or
any of their Subsidiaries, other than (A) information previously filed by
Borrowers or any of their Subsidiaries with any Governmental Authority and
available to the public, (B) information previously published in any public
medium from a source other than, directly or indirectly, Lenders and (C)
information obtained by Administrative Agent or Lenders from a source
independent of Borrowers or their Subsidiaries.
9.14 Consent to Jurisdiction and Service of Process. (A) BORROWERS
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL COURT OR COLORADO STATE COURT IN THE STATE OF COLORADO HAVING
SUBJECT MATTER JURISDICTION OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS. BORROWERS HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE
AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT, PERSONAL JURISDICTION OF ANY SUCH COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY AGENT OR ANY
LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION.
(B) BORROWERS HEREBY AGREES THAT SERVICE OF THE SUMMONS AND
COMPLAINT AND ALL OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING BY REGISTERED MAIL A COPY OF SUCH PROCESS
TO BORROWERS AT THE ADDRESS TO WHICH NOTICES TO BORROWERS ARE THEN TO BE SENT
PURSUANT TO SUBSECTION 9.3 AND THAT PERSONAL SERVICE OF PROCESS SHALL NOT BE
REQUIRED. NOTHING HEREIN SHALL BE CONSTRUED TO PROHIBIT SERVICE OF PROCESS BY
ANY OTHER METHOD PERMITTED BY LAW.
9.15 Waiver of Jury Trial. BORROWERS, ADMINISTRATIVE AGENT AND EACH
LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER
LOAN DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION AND ANY LENDER/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY
AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER
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Credit Agreement/CT Communications
OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. BORROWERS,
ADMINISTRATIVE AGENT AND EACH LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWERS, ADMINISTRATIVE
AGENT AND EACH LENDER FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THE LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED
AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. BORROWERS, ADMINISTRATIVE AGENT
AND EACH LENDER ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH
MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF ADMINISTRATIVE AGENT AND LENDER.
9.16 Survival of Warranties and Certain Agreements. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement, the making of the Loans, and the execution and
delivery of the Notes. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of Borrowers set forth in Subsections 1.4
(D), 1.11, 9.1, 9.14 and 9.15 shall survive the payment of the Loans and the
termination of this Agreement.
9.17 Entire Agreement. This Agreement, the Notes and the other Loan
Documents referred to herein embody the final, entire agreement among the
parties hereto and supersede any and all prior commitments, agreements,
representations, understandings, whether oral or written, relating to the
subject matter hereof and may not be contradicted or varied by evidence of
prior, contemporaneous or subsequent oral agreements or discussions of the
parties hereto.
9.18 Counterparts; Effectiveness. This Agreement and any amendments,
waivers, consents or supplements 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 an original, but all of which
counterparts together shall constitute but one and the same instrument. This
Agreement shall become effective upon the execution of a counterpart hereof by
each of the parties hereto.
9.19 CT as Agent for Borrowers. The Borrowers hereby irrevocably
appoint and authorize CT (i) to provide the Administrative Agent with all
notices with respect to Loans obtained for the benefit of any Borrower and all
other notices and instructions under this Agreement and (ii) to take such action
on behalf of the Borrowers as CT deems appropriate on its behalf to obtain Loans
and to exercise such other powers as are reasonably incidental thereto to carry
out the purposes of this Agreement.
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9.20 Liability Unconditional. Each Borrower hereby agrees that such
Borrower is jointly and severally liable for the full and prompt payment
(whether at stated maturity, by acceleration or otherwise) and performance of,
all Obligations owed or hereafter owing to the Administrative Agent and the
Lenders by each other Borrower. Each Borrower agrees that its liability shall be
absolute and unconditional, irrespective of, and unaffected by,
(A) the genuineness, validity, regularity, enforceability or
any future amendment of, or change in, this Agreement, any other Loan Document
or any other agreement, document or instrument to which any Borrower is or may
become a party;
(B) the absence of any action to enforce this Agreement or any
other Loan Document or the waiver or consent by the Administrative Agent or the
Lenders with respect to any of the provisions thereof;
(C) the insolvency of any Borrower; or
(D) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being agreed by each Borrower that its obligations as confirmed under this
Section 9.20 shall not be discharged until the payment and performance, in full,
of the Obligations has occurred. Each Borrower expressly waives all rights it
may have now or in the future under any statute, or at common law, or at law or
in equity, or otherwise, to compel the Administrative Agent or any Lender to
marshal assets or to proceed in respect of the Obligations guaranteed hereunder
against any other Borrower, any other party or against any security for the
payment and performance of the Obligations before proceeding against, or as a
condition to proceeding against, such Borrower. It is agreed among each
Borrower, the Administrative Agent and the Lenders that the foregoing waivers
are of the essence of the transaction contemplated by this Agreement and the
other Loan Documents and that, but for the provisions of this Section 9.20 and
such waivers, each Lender would decline to enter into this Agreement.
SECTION 10
DEFINITIONS
10.1 Certain Defined Terms. The terms defined below are used in this
Agreement as so defined. Terms defined in the preamble and recitals to this
Agreement are used in this Agreement as so defined.
"Adjustment Date" means each date which is the fifth Business Day after
the receipt by Administrative Agent of (i) each Compliance Certificate delivered
by Borrowers pursuant to Subsection 4.3(C) and (ii) in the case a decrease in an
applicable margin is warranted, a written notice from Borrowers to decrease such
margin.
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Credit Agreement/CT Communications
"Administrative Agent" means CoBank in its capacity as administrative
agent for Lenders under this Agreement and each of the other Loan Documents and
any successor in such capacity appointed pursuant to Section 8.2.
"Affiliate" means any Person: (i) directly or indirectly controlling,
controlled by, or under common control with, any Borrower or any of its
Subsidiaries; (ii) directly or indirectly owning or holding five percent (5%) or
more of any equity interest in any Borrower or any of its Subsidiaries; or (iii)
five percent (5%) or more of whose voting stock or other equity interest is
directly or indirectly owned or held by any Borrower or any of its Subsidiaries.
For purposes of this definition, "control" (including with correlative meanings,
the terms "controlling," "controlled by" and "under common control with") means
the possession directly or indirectly of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities or by contract or otherwise.
"Agreement" means this Credit Agreement (including all schedules and
exhibits hereto), as amended and supplemented from time to time as permitted
herein.
"Annual Operating Cash Flow" means, as of any date, Operating Cash Flow
for the four (4) most recently completed fiscal quarters.
"Applicable Commitment Fee Percentage" means, from time to time, a per
annum percentage equal to (i) 0.375% per annum, if the Total Leverage Ratio of
Borrowers is less than 2.50:1 and (ii) 0.50% per annum, if the Total Leverage
Ratio of Borrowers is greater than or equal to 2.50:1.
"Applicable Law"? shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental bodies
or regulatory agencies applicable to such Person, including the Licenses, the
Communications Act and all Environmental Laws, and all orders, decisions,
judgments and decrees of all courts and arbitrators in proceedings or actions to
which the Person in question is a party or by which it is bound.
"Asset Disposition" means the disposition, whether by sale, lease,
transfer, loss, damage, destruction, condemnation or otherwise, by any Borrower
or any of its Subsidiaries, of any of the following: (i) any of the capital
stock or the ownership interests of any of its Subsidiaries (other than to
another Subsidiary) or (ii) any or all of its assets, other than bona fide sales
of inventory to customers for fair value in the ordinary course of business,
dispositions of obsolete equipment not used or useful in the business of such
Borrower and sales of Cash Equivalents and other investments permitted under
Section 3.3(C) and set forth on Schedule 3.3 hereto for fair value; but shall
not include dispositions of assets for which all of the following conditions are
met: (a) the aggregate market value of assets sold in any one transaction or
series of related transaction for any calendar year does not exceed $1,000,000
for all Borrowers and their Subsidiaries; (b) the consideration received is at
least equal to the fair market value of such assets; (c) the sole consideration
received is cash; (d) after giving effect to the sale or other disposition of
such assets, Borrowers, on a consolidated basis with their Subsidiaries, are in
compliance on a pro forma basis with the covenants set forth in Section 4
recomputed for the most recently ended month for which information is available;
and (e) no Default or Event of Default then exists or shall result from such
sale or other disposition.
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"Bankruptcy Code" means Title 11 of the United States Code entitled
?Bankruptcy,? as amended from time to time or any applicable bankruptcy,
insolvency or other similar federal or state law now or hereafter in effect and
all rules and regulations promulgated thereunder.
"Base Rate" means a variable rate of interest per annum equal, on any
day, to the higher of (i) the Prime Rate or (ii) the sum of Federal Funds Rate
plus 0.50%.
"Base Rate Loans" means, at any time, the aggregate amount of all Loans
then bearing interest at the rate determined by reference to the Base Rate.
"Business Day" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of Colorado, or is a day on which
banking institutions located in such state are closed or which the Federal
Reserve Banks are closed, and (ii) with respect to all notices, determinations,
findings and payments in connection with LIBOR Loans, any day that is a Business
Day described in clause (i) above and that is also a day for trading by and
between banks in U.S. dollar deposits in the applicable interbank LIBOR market.
"Calculation Period" means each period commencing on each Adjustment
Date and ending on the day preceding each subsequent Adjustment Date.
"Cash Equivalents" means: (i) marketable direct obligations issued or
unconditionally guarantied by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one (1) year from the date of acquisition thereof;
(ii) commercial paper maturing no more than one (1) year from the date issued
and, at the time of acquisition, having a rating of at least A-1 from Standard &
Poor's Rating Service or at least P-1 from ▇▇▇▇▇'▇ Investors Service, Inc.;
(iii) certificates of deposit or bankers' acceptances maturing within one (1)
year from the date of issuance thereof issued by, or overnight reverse
repurchase agreements from, any commercial bank organized under the laws of the
United States of America or any state thereof or the District of Columbia having
combined capital and surplus of not less than $500,000,000; and (iv) time
deposits maturing no more than thirty (30) days from the date of creation
thereof with commercial banks having membership in the Federal Deposit Insurance
Corporation in amounts at any one such institution not exceeding the lesser of
$100,000 or the maximum amount of insurance applicable to the aggregate amount
of Borrowers' deposits at such institution.
"Closing Date" means the date of this Agreement.
"Communications Act" shall mean the Communications Act of 1934, as
amended and any similar or successor federal statute, and the rules and
regulations of the FCC thereunder, all as the same may be in effect from time to
time.
"Communications System" ?means a land-line telephone system, a
competitive local exchange carrier system, a cable television system (both
land-line and wireless), an internet service provider system, cellular mobile
radio telephone system, a PCS System or other telecommunications-related
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system and other businesses reasonably related thereto, and shall include a
microwave system or a paging system operated in connection with (and in the same
general service area as) any of the foregoing systems; provided, at such time as
WaveTel, LLC or any other entity whose principal business purpose is to provide
wireless broadband services through the use of MDS spectrum becomes a
"Subsidiary" hereunder, such business shall be included within the definition of
"Communications System" herein.
"Contingent Obligation," as applied to any Person, means any direct or
indirect liability of that Person: (i) with respect to any indebtedness, lease,
dividend or other obligation of another Person if the primary purpose or intent
of the Person incurring such liability, or the primary effect thereof, is to
provide assurance to the obligee of such liability that such liability will be
paid or discharged, or that any agreements relating thereto will be complied
with, or that the holders of such liability will be protected (in whole or in
part) against loss with respect thereto; (ii) with respect to any letter of
credit issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings; or (iii) under any foreign
exchange contract, currency swap agreement, interest rate swap agreement or
other similar agreement or arrangement designed to alter the risks of that
Person arising from fluctuations in currency values or interest rates.
Contingent Obligations shall also include (a) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the obligation of another, (b) the obligation to make take-or-pay or
similar payments if required regardless of nonperformance by any other party or
parties to an agreement, and (c) any liability of such Person for the
obligations of another through any agreement to purchase, repurchase or
otherwise acquire such obligation or any property constituting security
therefor, to provide funds for the payment or discharge of such obligation or to
maintain the solvency, financial condition or any balance sheet item or level of
income of another. The amount of any Contingent Obligation shall be equal to the
amount of the obligation so guaranteed or otherwise supported or, if not a fixed
and determined amount, the maximum amount so guaranteed.
"Environmental Laws" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder relating to the pollution or protection of the
environment, including those relating to releases, discharges, emissions,
spills, leaching, or disposals of hazardous substances (including petroleum,
crude oil or any fraction or derivative thereof, or other hydrocarbons) to air,
water, land or ground water, to the withdrawal or use of ground water, to the
use, handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances (including petroleum, crude oil or any fraction thereof, or other
hydrocarbons), pollutants or contaminants, to exposure to toxic, hazardous or
other controlled, prohibited, or regulated substances, including, without
limitation, any such provisions under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss.9601 et seq.)
and the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.
ss.6901 et seq.).
"Facilities" means, collectively, the Revolving Loan Facility and the
Term Loan Facility.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
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"Federal Funds Rate" shall mean, for any day, the rate of interest per
annum (rounded upward, if necessary, to the nearest whole multiple of 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, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided that (i) if such day 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 and (ii) if no such rate is so
published on the next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Administrative Agent on such day on such
transactions as determined by Administrative Agent.
"GAAP" means generally accepted accounting principles as set forth in
statements from Auditing Standards No. 69, as amended, entitled "The Meaning of
"Present Fairly in Conformance with Generally Accepted Accounting Principles in
the Independent Auditors Reports" issued by the Auditing Standards Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board that are applicable
to the circumstances as of the date of determination.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities, including all Licenses.
"Governmental Authority" means any nation, province, or state or any
political subdivision of any of the foregoing, and any government or any Person
exercising executive, legislative, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing, including the FCC and any PUC.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of any Borrower, and any confirming letter
executed pursuant to such hedging agreement, all as amended, restated or
otherwise modified.
"Indebtedness," as applied to any Person, means, without duplication:
(i) all indebtedness for borrowed money; (ii) that portion of obligations with
respect to capital leases or other capitalized agreements that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii)
notes payable and drafts accepted representing extensions of credit whether or
not representing obligations for borrowed money; (iv) any obligation owed for
all or any part of the deferred purchase price of property or services, except
trade payables arising in the ordinary course of business not more than ninety
(90) days past due; (v) all indebtedness secured by any Lien on any property or
asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person, but only to the extent of the fair value of such property
or asset; (vi) fixed rate hedging obligations that are due (after giving effect
to any period of grace or notice requirement applicable thereto) and remain
unpaid; (vii) obligations with respect to principal under Contingent Obligations
for the repayment of money or the
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deferred purchase price of property, whether or not then due and payable
(calculated as the amount of such principal); and (viii) obligations under
partnership, organizational or other agreements to fund capital contributions or
other equity calls with respect to any Person or Investment, or to redeem,
repurchase or otherwise make payments in respect to capital stock or other
securities of such Person.
"Indebtedness to Total Capitalization Ratio" means the ratio delivered
by dividing (i) Indebtedness by Total Capitalization.
"Investment" means (i) any direct or indirect purchase or other
acquisition by Borrowers or any of their Subsidiaries of any beneficial interest
in, including stock, partnership interest or other equity securities of, any
other Person, other than trade associations and similar organizations purchased
or acquired in the ordinary course of business; and (ii) any direct or indirect
loan, advance, guarantee, assumption of liability or other obligation of
liability, or capital contribution by Borrowers or any of their Subsidiaries to
any other Person, including all indebtedness and accounts receivable from that
other Person that are not current assets or did not arise from sales to that
other Person in the ordinary course of business. The amount of any Investment
shall be the original cost of such Investment plus the cost of all additions
thereto, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment.
"IRC" means the Internal Revenue Code of 1986, as amended from time to
time, and all rules and regulations promulgated thereunder.
"Joinder Agreement" shall mean a Joinder Agreement substantially in the
form of Exhibit 10.1(C) and delivered by an additional Subsidiary of any
Borrower in accordance with the provisions of Section 2.8.
"Lender" or "Lenders" means one or more of the banks identified as
Lenders in the first paragraph of this Agreement and their successors and
permitted assigns pursuant to Subsection 8.1.
"Lender Addition Agreement" means an agreement among Administrative
Agent, a Lender and such Lender's assignee regarding their respective rights and
obligations with respect to assignments of the Loans, the Loan Commitments and
other interests under this Agreement and the other Loan Documents, substantially
in the form of Exhibit 10.1(D).
"LIBOR" means for each applicable Interest Period, a fixed annual rate
equal to: (a) the rate of interest determined by Administrative Agent at which
deposits in U.S. dollars for the relevant Interest Period are offered based on
information presented by the Telerate Service as quoted by the British Bankers
Association as of 11:00 a.m. (London time) on the day which is two (2) Business
Days prior to the first day of such Interest Period, provided, that in the event
British Bankers Association ceases to provide such quotations (as determined by
Administrative Agent), then Administrative Agent will notify CT, on behalf of
Borrowers and CT, on behalf of Borrowers, will agree upon a substitute basis for
obtaining such quotations, divided by (b) a number equal to 1.0 minus the
aggregate (but without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on the day which is two (2) Business
Days prior to the beginning of such Interest Period for Eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in
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Regulation D of such Board) which are required to be maintained by a member bank
of the Federal Reserve System (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of the Board
of Governors of the Federal Reserve System or other Governmental Authority
having jurisdiction with respect thereto, as now and from time to time in
effect); such rate to be rounded upward to the next whole multiple of
one-sixteenth of one percent (0.0625%).
"LIBOR Loans" means Loans accruing interest at rates determined by
reference to the LIBOR.
"LIBOR Margin" means the applicable percent per annum determined in
accordance with Subsection 1.2(B).
"Licenses" shall mean any land-line telephone, cellular telephone,
microwave, personal communications or other telecommunications or similar
license, authorization, waiver, certificate of compliance, franchise, approval
or permit, whether for the acquisition, construction or operation of any
Communications System, granted or issued by the FCC or any applicable PUC and
held by Borrowers or any of their Subsidiaries, all of which are listed as of
the Closing Date on Schedule 5.13(A).
"Lien" means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind, whether voluntary or involuntary (including any
conditional sale or other title retention agreement and any lease in the nature
thereof), and any agreement to give any lien, mortgage, pledge, security
interest, charge or encumbrance.
"Loan" or "Loans" means an advance or advances under the Revolving Loan
Commitment or the Term Loan Commitment.
"Loan Commitment" and "Loan Commitments" mean, individually, each of
the Revolving Loan Commitment and the Term Loan Commitment, and collectively,
the Revolving Loan Commitment and the Term Loan Commitment, as each such
commitment is reduced from time to time as provided in this Agreement.
"Loan Documents" means this Agreement, the Notes, any Hedging Agreement
with Lender (which Hedging Agreement is permitted hereunder) and all other
instruments, documents and agreements executed and delivered concurrently
herewith or at any time hereafter to or for the benefit of Administrative Agent
or any Lender in connection with the Loans and other transactions contemplated
by this Agreement, all as amended, supplemented or modified from time to time.
"Material Adverse Effect" means (i) a material adverse effect upon the
business, operations, properties, assets or condition (financial or otherwise)
of Borrowers and their Subsidiaries, on a consolidated basis, or (ii) the
impairment of the ability of Borrowers and their Subsidiaries, on a consolidated
basis, to perform their obligations under the Loan Documents or of
Administrative Agent or any Lender to enforce any Loan Document or collect any
of the Obligations. In determining whether any individual event could reasonably
be expected to have a Material Adverse Effect, notwithstanding that such event
does not of itself have such effect, a Material Adverse Effect
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Credit Agreement/CT Communications
shall be deemed to have occurred if the cumulative effect of such event and all
other then existing events could reasonably be expected to have a Material
Adverse Effect.
"Material Contracts" means (a) any contract or any other agreement,
written or oral, of any Borrower or any of its Subsidiaries involving monetary
liability of or to any such Person in an amount in excess of $750,000 per annum
and (b) any other contract or agreement, written or oral, of any Borrower or any
of its Subsidiaries the failure to comply with which could reasonably be
expected to have a Material Adverse Effect; provided, however, that any contract
or agreement which is terminable by a party other than any Borrower or any of
its Subsidiaries without cause upon notice of ninety-five (95) days or less
shall not be considered a Material Contract.
"Net Proceeds" means cash proceeds received by any Borrower or any of
its Subsidiaries from any Asset Disposition (including insurance proceeds,
awards of condemnation, and payments under notes or other debt securities
received in connection with any Asset Disposition), net of (i) the costs of such
sale, lease, transfer or other disposition (including taxes attributable to such
sale, lease or transfer) and (ii) amounts applied to repayment of Indebtedness
(other than the Obligations) secured by a Lien on the asset or property
disposed.
"Note" or "Notes" means one or more of the Revolving Notes and the Term
Notes.
"Obligations" means all obligations, liabilities and indebtedness of
every nature of Borrowers from time to time owed to Administrative Agent or any
Lender under the Loan Documents including the principal amount of all debts,
claims and indebtedness, accrued and unpaid interest and all fees, costs and
expenses thereunder, whether primary, secondary, direct, contingent, fixed or
otherwise, heretofore, now and/or from time to time hereafter owing, due or
payable whether before or after the filing of a proceeding under the Bankruptcy
Code by or against Borrowers or any of their Subsidiaries.
"Operating Cash Flow" means the sum of (i) pre-tax income or deficit,
as the case may be (excluding extraordinary gains, the write up of any asset and
interest income), (ii) total interest expense (including non-cash interest),
(iii) depreciation and amortization expense and other similar non-cash expenses
and (iv) taxes, federal or state, imposed upon income. For any period of
calculation, Operating Cash Flow shall be adjusted to give effect to any
acquisition, sale or other disposition of any operation or business (or any
portion thereof) during the period of calculation as if such acquisition, sale
or other disposition occurred on the first day of such period of calculation.
"PCS System" shall mean any broadband personal communications services
telecommunications system operating on radio spectrum at 1900 MHZ or a License
to operate such a system.
"Permitted Encumbrances" means the following:
(1) Liens for taxes, assessments or other governmental charges
(excluding any Lien imposed pursuant to any provisions of Environmental Laws)
not yet due and payable or as to which the period of grace (not to exceed thirty
(30) days), if any, related thereto has not expired unless the same are being
diligently contested in good faith and by appropriate proceedings and then
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Credit Agreement/CT Communications
only if and to the extent that adequate reserves therefor are maintained in
accordance with GAAP;
(2) statutory Liens of landlords, carriers, warehousemen,
mechanics, materialmen and other similar liens imposed by law, which are
incurred in the ordinary course of business for sums not more than thirty (30)
days delinquent or which are being contested in good faith;
(3) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security (other than any Lien imposed by the Employee
Retirement Income Security Act of 1974 or any rule or regulation promulgated
thereunder), or to secure the performance of tenders, statutory obligations,
surety, stay, customs and appeal bonds, bids, leases, government contracts,
trade contracts, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(4) deposits, in an aggregate amount not to exceed $500,000,
made in the ordinary course of business to secure liability to insurance
carriers;
(5) any attachment or judgment Lien not constituting an Event
of Default under Subsection 6.1(I);
(6) easements, rights of way, restrictions and other similar
charges or encumbrances which in the aggregate are not substantial in amount and
which do not, in any case, materially detract from the value of such property or
impair the use thereof in the ordinary conduct of the business of Borrower or
any of its Subsidiaries;
(7) Liens in favor of Administrative Agent, for the benefit of
Administrative Agent and Lenders;
(8) Liens in favor of CoBank as set forth in Subsection 2.7;
(9) Liens securing purchase money security agreements and
capital leases permitted under Section 3.1(D), provided that such Liens are
created substantially simultaneously with the acquisition or lease of the
related asset, do not encumber any property other than the items purchased with
the proceeds of such Indebtedness or leased pursuant to such Indebtedness and
such Liens do not secure any amounts other than amounts necessary to purchase or
lease such items;
(10) Liens securing subordinated Indebtedness to the extent
permitted under Section 3.1(E), provided that such Liens are expressly
subordinate to any Lien in favor of Administrative Agent, for the benefit of
Administrative Agent and Lenders, granted hereunder on terms satisfactory to
Requisite Lenders in their sole discretion;
(11) Liens in connection with the Indebtedness permitted by
Subsection 3.1(F);
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Credit Agreement/CT Communications
(12) the claims of customers of Borrowers on deposits made by
such customers in connection with the purchase of goods or services from
Borrowers; and
(13) the Lien in favor of First Union National Bank in cash or
other collateral in an amount not to exceed $500,000 in the aggregate to secure
the Indebtedness permitted pursuant to Subsection 3.1(I).
"Person" means and includes natural persons, corporations, limited
liability companies, limited partnerships, limited liability partnerships,
general partnerships, joint stock companies, joint ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof and their respective permitted successors and
assigns (or in the case of a governmental person, the successor functional
equivalent of such Person).
"Prime Rate" means, a variable rate of interest per annum equal, on any
day, to the rate of interest published on such day in the Eastern Edition of The
Wall Street Journal as the average prime lending rate for 75% of the United
States' 30 largest commercial banks, or if the Eastern Edition of The Wall
Street Journal or such rate is not published on such day, such rate as last
published in the Eastern Edition of The Wall Street Journal. In the event the
Eastern Edition of The Wall Street Journal ceases to publish such rate or an
equivalent, the term "Prime Rate" shall be determined by reference to such other
regularly published prime rate based upon any averaging of such 30 banks, as
Administrative Agent shall determine, or if no such published average prime rate
is available, then the term "Prime Rate" shall mean a variable rate of interest
per annum as determined by Administrative Agent equal to the highest of the
"prime rate," "reference rate," "base rate" ?or other similar rate announced
from time to time by any of Bankers Trust Company and Citibank as selected by
Administrative Agent (with the understanding that any such rate may merely be a
reference rate and may not necessarily represent the lowest or best rate
actually charged to any customer by such bank).
"Pro Rata Share" means (i) with respect to matters relating to a
particular Loan Commitment, the percentage obtained by dividing (a) the
commitment of a Lender under such Loan Commitment by (b) all commitments of all
Lenders under such Loan Commitment and (ii) with respect to all other matters,
including, without limitation, for purposes of the definition of "Requisite
Lenders," the percentage obtained by dividing (a) the aggregate Total Lender
Loan Commitments of a Lender by (b) the aggregate Total Lender Loan Commitments
of all Lenders, in either case as such percentage may be adjusted by assignments
permitted pursuant to Subsection 8.1; provided, however, if any Loan Commitment
is terminated pursuant to the terms hereof, in lieu of commitments, the
calculation of clauses (i) and (ii) above, as they relate to or include such
Loan Commitment, shall be based on the aggregate amount of such Lender's
outstanding loans related to such Loan Commitment and the aggregate amount of
all outstanding loans related to such Loan Commitment.
"Projections" means, for Borrowers and their Subsidiaries, forecasted;
(i) balance sheets; (ii) profit and loss statements; and (iii) cash flow
statements, all prepared on a consistent basis with Borrowers' or such
Subsidiaries' ?historical financial statements, together with appropriate
supporting details and a statement of underlying assumptions. The Projections
represent and will represent as of
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Credit Agreement/CT Communications
the date thereof the good faith estimate of Borrowers and their senior
management concerning the most probable course of its business.
"PUC" means any state, provincial or other local regulatory agency or
body that exercises jurisdiction over the rates or services or the ownership,
construction or operation of any Wireless System or long distance
telecommunications systems or over Persons who own, construct or operate a
Wireless System or long distance telecommunications systems, in each case by
reason of the nature or type of the business subject to regulation and not
pursuant to laws and regulations of general applicability to Persons conducting
business in any such jurisdiction.
"Quoted Rate" means a fixed annual interest rate to be quoted by CoBank
in its sole and absolute discretion.
"Quoted Rate Loans" means at any time, the aggregate amount of all
Loans then bearing interest at the Quoted Rate.
"Requisite Lenders" means at least two Lenders who have in the
aggregate Pro Rata Shares greater than sixty-six and two-thirds percent
(66.667%).
"Restricted Junior Payment" means: (i) any dividend or other
distribution, direct or indirect, on account of any equity interest in any
Borrower or any of its Subsidiaries, including any membership interest and any
shares of any class of stock of any Borrower or any of its Subsidiaries now or
hereafter outstanding, except a dividend payable solely in shares of a class of
stock to the holders of that class; (ii) any redemption, conversion, exchange,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any equity interest in any Borrower or any of its
Subsidiaries, (iii) any payment or prepayment of interest on, principal of,
premium, if any, redemption, conversion, exchange, purchase, retirement,
defeasance, sinking fund or similar payment with respect to, any Indebtedness
subject to subordination provisions for the benefit of Administrative Agent and
Lenders; and (iv) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire any equity interest in
any Borrower or any of its Subsidiaries.
"Revolving Loan" or "Revolving Loans" means an advance or advances
under the Revolving Loan Commitment.
"Revolving Loan Commitment" means, initially, $90,000,000, as such
amount is reduced from time to time as provided in this Agreement.
"Revolving Loan Expiration Date" means the earlier of (i) the
suspension (subject to reinstatement) of the Lenders' obligations to make Loans
pursuant to Subsection 6.2, (ii) the acceleration of the Obligations pursuant to
Subsection 6.3 or (iii) March 31, 2006.
"Revolving Loan Facility" means, the revolving loan credit facility
extended to Borrowers pursuant to Section 1.1(B).
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"Revolving Note" or "Revolving Notes" means one or more of the notes of
Borrower substantially in the form of Exhibit 10.1(B), or any combination
thereof, and any replacements, restatements, renewals or extensions of any such
notes, in whole or in part.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which more than fifty
percent (50%) of the total voting power of shares of stock (or equivalent
ownership or controlling interest) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; provided, however, notwithstanding the definition of "Subsidiary"
provided herein, for a period of up to two (2) years after the Closing Date,
such definition shall not be deemed to include WaveTel, LLC, or any other entity
which may replace or be used in connection with WaveTel, LLC whose principal
business purpose is to provide wireless broadband services through the use of
MDS spectrum.
"Term Loan" or "Term Loans" means an advance or advances under the Term
Loan Commitment.
"Term Loan Availability Revolving Loan Expiration Date" means the
earlier of (i) June 29, 2001, (ii) the suspension (subject to reinstatement) of
the Lenders' obligations to make Loans pursuant to Subsection 6.2 or (iii) the
acceleration of the Obligations pursuant to Section 6.3.
"Term Loan Commitment" means, initially, $50,000,000, as such amount is
reduced from time to time as provided in this Agreement.
"Term Loan Facility" means, the term loan credit facility extended to
Borrower pursuant to Section 1.1(A).
"Term Loan Maturity Date" means the earlier of (i) the acceleration of
the Obligations pursuant to Section 6.3 or (ii) December 31, 2014.
"Term Note" or "Term Notes" means one or more of the notes of Borrower
substantially in the form of Exhibit 10.1(A), or any combination thereof, and
any replacements, restatements, renewals or extensions of any such notes, in
whole or in part.
"Total Lender Loan Commitment" means the aggregate commitments of any
Lender with respect to the Revolving Loan Commitment and the Term Loan
Commitment.
"Total Capitalization" means (i) Indebtedness plus (ii) the difference
between total assets less total liabilities (determined in accordance with GAAP
consistently applied).
"Total Leverage Ratio" means, for any period, the ratio derived by
dividing all Indebtedness by Annual Operating Cash Flow, each as of the last day
of the applicable period.
10.2 Other Definitional Provisions. References to "Sections,"
"Subsections," "Exhibits" and "Schedules" shall be to Sections, Subsections,
Exhibits and Schedules, respectively, of this
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Credit Agreement/CT Communications
Agreement unless otherwise specifically provided. Any of the terms defined in
Subsection 10.1 may, unless the context otherwise requires, be used in the
singular or the plural depending on the reference. In this Agreement, "hereof,"?
"herein," "hereto," "hereunder" and the like mean and refer to this Agreement as
a whole and not merely to the specific section, paragraph or clause in which the
respective word appears; words importing any gender include the other gender;
references to "writing" include printing, typing, lithography and other means of
reproducing words in a tangible visible form; the words "including," "includes"?
and "include" shall be deemed to be followed by the words "without limitation";
references to agreements and other contractual instruments shall be deemed to
include subsequent amendments, assignments, and other modifications thereto, but
only to the extent such amendments, assignments and other modifications are not
prohibited by the terms of this Agreement or any other Loan Document; references
to Persons include their respective permitted successors and assigns or, in the
case of governmental Persons, Persons succeeding to the relevant functions of
such Persons; and all references to statutes and related regulations shall
include any amendments of same and any successor statutes and regulations.
[Signatures begin on following page]
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Credit Agreement/CT Communications
Witness the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
[CORPORATE SEAL] CT COMMUNICATIONS, INC., as Borrower
By:_________________________________
Name:__________________________
Title:_________________________
[CORPORATE SEAL] CTC LONG DISTANCE SERVICES, INC.,
as Borrower
By:_________________________________
Name:__________________________
Title:_________________________
[CORPORATE SEAL] CT WIRELESS CABLE, INC., as Borrower
By:_________________________________
Name:__________________________
Title:_________________________
[CORPORATE SEAL] CT CELLULAR, INC., as Borrower
By:_________________________________
Name:__________________________
Title:_________________________
[CORPORATE SEAL] CAROLINA PERSONAL
COMMUNICATIONS, INC., as Borrower
By:_________________________________
Name:__________________________
Title:_________________________
[CORPORATE SEAL] THE CONCORD TELEPHONE
COMPANY, as Borrower
By:_________________________________
Name:__________________________
Title:_________________________
[Signatures continued on following page.]
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Credit Agreement/CT Communications
[Signatures continued from previous page.]
[CORPORATE SEAL] CTC INTERNET SERVICES, INC., as
Borrower
By:_________________________________
Name:__________________________
Title:_________________________
[CORPORATE SEAL] CTC EXCHANGE SERVICES, INC., as
Borrower
By:_________________________________
Name:__________________________
Title:_________________________
[CORPORATE SEAL] CT GLOBAL TELECOMMUNICATIONS,
INC., as Borrower
By:_________________________________
Name:__________________________
Title:_________________________
[CORPORATE SEAL] CT COMMUNICATIONS NORTHEAST
TRUST, as Borrower
By:_________________________________
Name:__________________________
Title:_________________________
[CORPORATE SEAL] CT COMMUNICATIONS NORTHEAST,
INC., as Borrower
By:_________________________________
Name:__________________________
Title:_________________________
[Signatures continued on following page.]
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Credit Agreement/CT Communications
[Signatures continued from previous page.]
Commitment to make Term Loans: COBANK, ACB, as Administrative Agent
$50,000,000 and a Lender
Pro Rata Share of Term Loan By:________________________________
Commitment: 100.0000000% Name:
Title:
Commitment to make Revolving Loans:
$90,000,000 Address: CoBank, ACB
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Pro Rata Share of Revolving Loan ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Commitment: 100.0000000% Attention: Communications and
Energy Banking Group
Total Lender Loan Commitment:$50,000,000 Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Pro Rata Share of Term Loan Commitment and
Revolving Loan Commitment: 100.0000000%
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Credit Agreement/CT Communications
EXHIBIT 1.3
CT COMMUNICATIONS, INC.
FORM OF
NOTICE OF BORROWING/CONVERSION/CONTINUATION
CoBank, ACB, as Administrative Agent
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Communications and Energy Banking Group
Ladies and Gentlemen:
Pursuant to the Credit Agreement, dated as of May 4, 2001 (as such loan
agreement may hereafter be amended, modified or supplemented, the "Credit
Agreement") among CT Communications, Inc. ("CT") and certain subsidiaries of CT
(collectively, "Borrowers"), CoBank, ACB, as Administrative Agent
("Administrative Agent") and the other parties thereto, Borrowers, acting by and
through CT, hereby requests that Administrative Agent take the actions indicated
below. Capitalized terms used but not defined herein have the meanings given to
them in the Credit Agreement.
Note: The following requirements apply to all requests:
- Requests must be made no later than 11:00 a.m. (Denver time)
on a Business Day.
- In the case of a borrowing of or conversion to or continuation
of the Base Rate Loan, requests must be made at least two (2)
Business Days in advance of the proposed borrowing, conversion
or continuation date.
- In the case of a borrowing of or conversion to or continuation
of a LIBOR Loan or Quoted Rate Loan, requests must be made at
least three (3) Business Days in advance of the proposed
borrowing, conversion or continuation date.
- Base Rate Loans must be in a minimum amount of $1,000,000 and
whole multiples of $250,000 in excess of $1,000,000.
- LIBOR Loans and Quoted Rate Loans must be in a minimum amount
of $2,000,000 and whole multiples of $500,000 in excess of
$2,000,000.
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Credit Agreement/CT Communications
- No more than a combined total of eight (8) Loans under the
Facilities may be outstanding at any one time (including, as a
single Loan, all amounts under a single Facility accruing
interest at the Base Rate).
___ REQUEST FOR BORROWING:
Borrower hereby requests an advance under the Facility checked below:
___ Term Loan Facility
In connection with such request, Borrower hereby certifies as
follows:
(a) The Term Loan Commitment is $50,000,000; and
(b) The aggregate principal amount of Term Loans
advanced (not including this requested Loan)
is $_____________; and
(c) Therefore, the remaining Term Loan
Commitment is $_______________. [(a) minus
(b)]
___ Revolving Loan Facility
In connection with such request, Borrower hereby certifies as
follows:
(a) The Revolving Loan Commitment is
$90,000,000; and
(b) The aggregate principal balance of Revolving
Loans outstanding (not including this
requested Loan) is $_____________; and
(c) Therefore, the remaining Revolving Loan
Commitment, is $_______________. [(a) minus
(b)]
Borrower hereby requests under such Facility an advance of
$_____________________, to be made on [insert date] ____________ and to
bear interest pursuant to the interest rate option(s) checked below [check
all applicable]:
___ A Base Rate Loan in the principal amount of $_____________
___ LIBOR Loan option in the principal amount of $_______, for an
Interest Period of [check one:]
__1 month __2 months __3 months __6 months
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Credit Agreement/CT Communications
___ A Quoted Rate Loan in the principal amount of $______ for a
Quoted Rate Period of ____________ [Term Loan Facility Only].
___ REQUEST FOR CONVERSION:
Borrower hereby requests that the following Loan(s) be converted to new
interest rate option(s) as indicated:
Description of Loan(s) to be Converted [check one]:
___ On [insert date] _________, convert $________________ of the
Base Rate Loan under the ____________ [Term/Revolving]
Loan Facility
___ Upon expiration of its current Interest Period, convert the
LIBOR Loan under the ___________ [Term/Revolving] Loan
Facility in the principal amount of $_______________, the
Interest Period for which expires on [insert date]:
_____________
Description of New Loan(s) [check all applicable]:
___ to a Base Rate Loan in the principal amount of $_____________
___ to a LIBOR Loan in the principal amount of $________________,
for an Interest Period of [check one]:
__1 month __2 months __3 months __6 months
___ to a Quoted Rate Loan in the principal amount of
$___________________, for a Quoted Rate Period of ___________
[Term Loan Facility only]
___ REQUEST FOR CONTINUATION:
Borrower hereby requests that the interest rate option(s) applicable to
the following loan(s) be continued as indicated:
Upon expiration of its current Interest Period, continue the LIBOR Loan
under the ___________ [Term/Revolving] Loan Facility in the principal
amount of $____________, the current Interest Period for which expires on
[insert date] _______ for a new Interest Period of:
__1 month __2 months __3 months __6 months
The undersigned hereby certifies that, both before and after giving effect
to the borrowing, conversion or continuation request above (i) all of the
representations and warranties contained in the Credit Agreement and the other
Loan Documents, together with all supplemental disclosures delivered to
Administrative Agent prior to the date hereof, are true, correct and complete in
all
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Credit Agreement/CT Communications
material respects as of the date hereof, (ii) no Default or Event of Default has
occurred and is continuing on the date hereof, (iii) since December 31, 2000,
there has not occurred any event or condition that has had or could reasonably
be expected to have a Material Adverse Effect and (iv) the undersigned is
authorized to execute and deliver this Notice on behalf of CT.
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Credit Agreement/CT Communications
CT COMMUNICATIONS, INC.
By: ___________________________________
Title: ____________________________
Date: _________________________________
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Credit Agreement/CT Communications
EXHIBIT 4.3(C)
FORM OF
COMPLIANCE CERTIFICATE
THIS COMPLIANCE CERTIFICATE is given by __________________, the [chief
executive officer/chief financial officer] of CT Communications, Inc. ("CT")
pursuant to Subsection 4.3(C) of that certain Credit Agreement, dated as of May
4, 2001 (as such agreement may hereafter be amended, modified or supplemented,
the "Credit Agreement"), among CT, certain Subsidiaries of CT (collectively with
CT, "Borrowers"), CoBank, ACB, as Administrative Agent, and the Lenders (as
defined therein) and the other parties referenced therein. Capitalized terms
used herein and not otherwise defined herein shall have the meanings ascribed to
them in the Credit Agreement.
I hereby certify as follows:
1. I am the [chief executive officer/chief financial officer] of CT,
and as such possess the knowledge and authority to certify to the matters set
forth in this Compliance Certificate, and hereby certify that the matters set
forth below are true and accurate to the best of my present knowledge,
information and belief after due inquiry;
2. Attached hereto as Annex A are the [audited/unaudited]
[annual/quarterly] financial statements of Borrowers, for the fiscal
[year/quarter] ended ______________, as required by Subsection 4.9[(A)/(B)] of
the Credit Agreement. Such financial statements were prepared in accordance with
GAAP consistently applied (except as expressly provided in the Credit
Agreement), fairly present the condition of Borrowers during the periods covered
thereby and as of the dates thereof, and are in a format that demonstrates any
accounting or formatting changes that may be required by various jurisdictions
in which the business of Borrowers is conducted (to the extent not inconsistent
with GAAP);
3. As of the date of such financial statements, Borrowers are in
compliance with the covenants set forth in Section 4 of the Credit Agreement.
Attached hereto as Annex B are calculations which demonstrate the compliance by
Borrowers with such covenants; and
4. I have reviewed the activities of Borrowers, and consulted with
appropriate representatives of Borrowers during the fiscal [year/quarter] ended
______________, and reviewed the Credit Agreement and the other Loan Documents.
As of the date of this Compliance Certificate, there is no condition, event or
act which constitutes a Default or an Event of Default under the Credit
Agreement, except as disclosed on Annex C hereto.
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IN WITNESS WHEREOF, I have executed this Compliance Certificate as of
_____________, _____.
_________________________________________________
[chief executive officer/chief financial officer]
CT Communications, Inc.
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ANNEX A
Annual (audited) or Quarterly (unaudited)
Financial Statements
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Credit Agreement/CT Communications
ANNEX B
Financial Covenant Compliance Worksheet
COVENANT 4.1
Total Leverage Ratio
As of the fiscal quarter ended ______________, __________.
(A) Indebtedness $
(B) Annual Operating Cash Flow = Operating Cash Flow (the
sum of 1 through 4) for the most recently completed
four (4) fiscal quarters
1. Pre-tax income or deficit (excluding extraordinary
gains, write up of any asset and interest income),
plus $
2. Total interest expense (including non-cash
interest), plus $
3. Depreciation and amortization expense and other
similar non-cash expense, plus $
4. Taxes, federal or state, imposed on income $
Sum of 1 through 4 $
Total Leverage Ratio = (A) / (B) = :1.0
-----
Compliance: Yes No
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Credit Agreement/CT Communications
COVENANT 4.2
Indebtedness to Total Capitalization Ratio
As of the fiscal quarter ended ________________, _________.
(A) Indebtedness $_________________
(B) Total Capitalization $_________________
Indebtedness to Total Capitalization Ratio = (A) / B) = ______:1.0
Compliance: Yes No
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Credit Agreement/CT Communications
EXHIBIT 10.1(A)
FORM OF
TERM NOTE
$________________ __________ __, 200_
FOR VALUE RECEIVED, the undersigned, __________________________
("Borrower"), hereby unconditionally promises to pay to the order of
________________ ("Lender"), at the office of Administrative Agent (as defined
below) at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at
such other place as the holder of this Term Note may from time to time designate
in writing, in lawful money of the United States of America and in immediately
available funds, the principal sum of ___________________________________ UNITED
STATES DOLLARS (US $_____________), or, if less, the aggregate unpaid principal
amount of all advances made to Borrower by Lender pursuant to subsection 1.1(A)
of the Credit Agreement described below, at such times as are specified therein.
This Term Note is payable in installments on the dates and in the
amounts set forth in the Credit Agreement.
This Term Note is one of the Notes referred to in, was executed and
delivered pursuant to, and evidences indebtedness of Borrower incurred under,
that certain Credit Agreement, dated as of May 4, 2001, by and among CT
Communications, Inc. ("CT"), certain Subsidiaries of CT, CoBank, ACB, in its
capacity as Administrative Agent for the Lenders ("Administrative Agent"), and
each of the Lenders party thereto from time to time (as the same may be amended,
restated, supplemented or otherwise modified and in effect from time to time,
the "Credit Agreement"), to which reference is hereby made for a statement of
the terms and conditions under which the indebtedness evidenced hereby was made
and is to be repaid and for a statement of Administrative Agents' and Lender's
remedies upon the occurrence of an Event of Default, including, without
limitation, the remedy of acceleration. Capitalized terms used herein but not
otherwise specifically defined shall have the meanings ascribed to such terms in
the Credit Agreement.
Borrower promises to pay interest on the outstanding unpaid principal
amount hereof from the date hereof until payment in full at the rate from time
to time applicable to the Term Loans as determined in accordance with the Credit
Agreement; provided, however, that upon the occurrence and during the
continuance of an Event of Default, Borrower promises to pay interest on the
outstanding principal balance of this Term Note at the rate of interest
applicable following the occurrence of an Event of Default as determined in
accordance with the Credit Agreement.
Interest on this Term Note shall be payable, at the times and from the
dates specified in the Credit Agreement, on the date of any prepayment hereof,
at maturity, whether due by acceleration or otherwise, and as otherwise provided
in the Credit Agreement. From and after the date when the principal balance
hereof becomes due and payable, whether by acceleration or otherwise, interest
hereon shall be payable on demand. In no contingency or event whatsoever shall
interest charged hereunder, however such interest may be characterized or
computed, exceed the highest rate permissible under any law which a court of
competent jurisdiction shall, in a final determination,
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Credit Agreement/CT Communications
deem applicable hereto. In the event that such a court determines that Lender
has received interest hereunder in excess of the highest rate applicable hereto,
such excess shall be applied in accordance with the terms of the Credit
Agreement.
This Term Note may be prepaid in whole or in part at any time subject
to the terms of the Credit Agreement.
Except for any notices expressly required by the Loan Documents and as
otherwise required by applicable law, Borrower hereby waives demand, presentment
and protest and notice of demand, presentment, protest and nonpayment.
Borrower further agrees, subject only to any limitation imposed by
applicable law, to pay all expenses, including attorneys' fees and legal
expenses, incurred by Lender in endeavoring to collect any amounts payable
hereunder which are not paid when due, whether by acceleration or otherwise.
THIS TERM NOTE SHALL BE GOVERNED BY, AND INTERPRETED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS
THAT REQUIRE OR PERMIT APPLICATION OF THE LAWS OF ANY OTHER STATE OR
JURISDICTION) AND DECISIONS OF THE STATE OF COLORADO. Whenever possible each
provision of this Term Note shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Term Note
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Term Note. Whenever in this Term Note reference is made to Administrative Agent,
Agents, Lender or Borrower, such reference shall be deemed to include, as
applicable, a reference to their respective permitted successors and assigns and
in the case of Lender, any financial institution to which it has sold or
assigned all or any part of its interest in the Term Loans or in its commitment
to make the Term Loans as permitted by the Credit Agreement. The provisions of
this Term Note shall be binding upon and shall inure to the benefit of such
permitted successors and assigns. Borrower's successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for Borrower.
[NAME OF BORROWER]
By: ____________________________
Name: ______________________
Title: _____________________
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Credit Agreement/CT Communications
EXHIBIT 10.1(B)
FORM OF
REVOLVING NOTE
$________________ __________ __, 200_
FOR VALUE RECEIVED, the undersigned, _______________________
("Borrower"), hereby unconditionally promises to pay to the order of
_________________________ ("Lender"), at the office of Administrative Agent (as
defined below) at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
or at such other place as the holder of this Revolving Note may from time to
time designate in writing, in lawful money of the United States of America and
in immediately available funds, the principal sum of __________________________
UNITED STATES DOLLARS (US $_____________), or, if less, the aggregate unpaid
principal amount of all advances made to Borrower by Lender pursuant to
subsection 1.1(B) of the Credit Agreement described below, at such times as are
specified therein.
This Revolving Note is one of the Notes referred to in, was executed
and delivered pursuant to, and evidences indebtedness of Borrower incurred
under, that certain Credit Agreement, dated as of May 4, 2001, by and among CT
Communications, Inc. ("CT"), certain subsidiaries of CT, CoBank, ACB, in its
capacity as Administrative Agent for the Lenders ("Administrative Agent"), and
each of the Lenders party thereto from time to time (as the same may be amended,
restated, supplemented or otherwise modified and in effect from time to time,
the "Credit Agreement"), to which reference is hereby made for a statement of
the terms and conditions under which the indebtedness evidenced hereby was made
and is to be repaid and for a statement of Administrative Agents' and Lender's
remedies upon the occurrence of an Event of Default, including, without
limitation, the remedy of acceleration. Capitalized terms used herein but not
otherwise specifically defined shall have the meanings ascribed to such terms in
the Credit Agreement.
Borrower promises to pay interest on the outstanding unpaid principal
amount hereof from the date hereof until payment in full at the rate from time
to time applicable to the Revolving Loans as determined in accordance with the
Credit Agreement; provided, however, that upon the occurrence and during the
continuance of an Event of Default, Borrower promises to pay interest on the
outstanding principal balance of this Revolving Note at the rate of interest
applicable following the occurrence of an Event of Default as determined in
accordance with the Credit Agreement.
Interest on this Revolving Note shall be payable, at the times and from
the dates specified in the Credit Agreement, on the date of any prepayment
hereof, at maturity, whether due by acceleration or otherwise, and as otherwise
provided in the Credit Agreement. From and after the date when the principal
balance hereof becomes due and payable, whether by acceleration or otherwise,
interest hereon shall be payable on demand. In no contingency or event
whatsoever shall interest charged hereunder, however such interest may be
characterized or computed, exceed the highest rate permissible under any law
which a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that Lender has
received interest hereunder in excess of the highest rate applicable hereto,
such excess shall be applied in accordance with the terms of the Credit
Agreement.
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Credit Agreement/CT Communications
Except for any notices expressly required by the Loan Documents and as
otherwise required by applicable law, Borrower hereby waives demand, presentment
and protest and notice of demand, presentment, protest and nonpayment.
Borrower further agrees, subject only to any limitation imposed by
applicable law, to pay all expenses, including attorneys' fees and legal
expenses, incurred by Lender in endeavoring to collect any amounts payable
hereunder which are not paid when due, whether by acceleration or otherwise.
THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND INTERPRETED AND ENFORCED
IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS
THAT REQUIRE OR PERMIT APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION) AND
DECISIONS OF THE STATE OF COLORADO. Whenever possible each provision of this
Revolving Note shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Revolving Note shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Revolving Note. Whenever in this Revolving Note reference is made to
Administrative Agent, Agents, Lender or Borrower, such reference shall be deemed
to include, as applicable, a reference to their respective permitted successors
and assigns and in the case of Lender, any financial institution to which it has
sold or assigned all or any part of its interest in the Revolving Loans or in
its commitment to make the Revolving Loans as permitted by the Credit Agreement.
The provisions of this Revolving Note shall be binding upon and shall inure to
the benefit of such permitted successors and assigns. Borrower's successors and
assigns shall include, without limitation, a receiver, trustee or debtor in
possession of or for Borrower.
[NAME OF BORROWER]
By: ____________________________
Name: ______________________
Title: _____________________
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Credit Agreement/CT Communications
EXHIBIT 10.1(C)
FORM OF
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement"), dated as of _____________,
20__, is by and between _____________________, a ___________________ (the
"Subsidiary"), and CoBANK, ACB, in its capacity as Administrative Agent under
that certain Credit Agreement (as it may be amended, modified, extended or
restated from time to time, the "Credit Agreement"), dated as of May 4, 2001 by
and among CT COMMUNICATIONS, INC., and certain of its Subsidiaries, as
Borrowers, the Lenders and CoBank, ACB, as Administrative Agent. All of the
defined terms in the Credit Agreement are incorporated herein by reference.
The Borrowers are required by Section 2.8 of the Credit Agreement to
cause the Subsidiary to become a "Borrower" thereunder.
Accordingly, the Subsidiary hereby agrees as follows with the
Administrative Agent, for the benefit of the Lenders:
1. The Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Subsidiary will be deemed to be a party to the
Credit Agreement and a "Borrower" for all purposes of the Credit Agreement and
the other Loan Documents, and shall have all of the obligations of a Borrower
thereunder as if it had executed the Credit Agreement and the other Loan
Documents. The Subsidiary hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Loan
Documents, including without limitation (i) all of the representations and
warranties of the Borrowers set forth in Section 5 of the Credit Agreement and
(ii) all of the affirmative and negative covenants set forth in Sections 2, 3
and 4 of the Credit Agreement. Without limiting the generality of the foregoing
terms of this paragraph 1, the Subsidiary hereby jointly and severally together
with the other Borrowers, guarantees to each Lender and the Administrative Agent
as provided in the Credit Agreement the prompt payment and performance of the
Obligations of the Borrowers in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof and agrees that if any
of such Obligations are not paid or performed in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Subsidiary will, jointly and severally
together with the other Borrowers, promptly pay and perform 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 Obligations of the Borrowers, the same will
be promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
in accordance with the terms of such extension or renewal.
2. The Subsidiary acknowledges and confirms that it has received a copy
of the Credit Agreement and the schedules and exhibits thereto. The information
on the schedules to the Credit Agreement are hereby amended to provide the
information shown on the attached Schedule A.
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Credit Agreement/CT Communications
3. CT, on behalf of the Borrowers, confirms that all of the Borrowers'
obligations under the Credit Agreement are, and upon the Subsidiary becoming a
Borrower, shall continue to be, in full force and effect. The parties hereto
confirm and agree that immediately upon the Subsidiary becoming a Borrower the
term "Obligations," as used in the Credit Agreement, shall include all
obligations of such Subsidiary under the Credit Agreement and under each other
Loan Documents.
4. The Subsidiary hereby agrees that upon becoming a Borrower it will
assume all Obligations of a Borrower as set forth in the Credit Agreement.
5. CT, on behalf of each of the Borrowers, and the Subsidiary agree
that at any time and from time to time, upon the written request of the
Administrative Agent, each will execute and deliver such further documents and
do such further acts and things as the Administrative Agent may reasonably
request in order to effect the purposes of this Agreement.
6. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
7. This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of Colorado.
[Signatures appear on the following page.]
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Credit Agreement/CT Communications
IN WITNESS WHEREOF, CT, on behalf of each of the Borrowers. and the
Subsidiary have caused this Agreement to be duly executed by its authorized
officer, and the Administrative Agent, for the benefit of the Lenders, has
caused the same to be accepted by its authorized officer, as of the day and year
first above written.
CT COMMUNICATIONS, INC., on behalf of the
Borrowers
By: _____________________________________
Name: _______________________________
Title: ______________________________
[SUBSIDIARY]
By: _____________________________________
Name: _______________________________
Title: ______________________________
Acknowledged and accepted:
CoBANK, ACB, as Administrative Agent
By: _____________________________________
Name: _______________________________
Title: ______________________________
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Credit Agreement/CT Communications
SCHEDULE A
to
Joinder Agreement
Schedules to Credit Agreement
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Credit Agreement/CT Communications
EXHIBIT 10.1(D)
Form of
Lender Addition Agreement
This Lender Addition Agreement ("Agreement") is made as of
______________ ___, ____, between ______________________ ("Assigning Lender")
and _________________________ ("Additional Lender"). All capitalized terms used
in this Agreement and not otherwise defined herein will have the respective
meanings set forth in the Credit Agreement (as hereinafter defined).
Recitals
WHEREAS, Administrative Agent, Assigning Lender, certain other
financial institutions, and CT Communications, Inc., on behalf of itself and its
subsidiaries which are a party thereto (collectively, "Borrower"), have entered
into a certain Credit Agreement, dated as of May 4, 2001 (as amended from time
to time, the "Credit Agreement") pursuant to which Assigning Lender has agreed
to make certain Loans to Borrower; and
WHEREAS, Assigning Lender desires to assign to Additional Lender all or
a portion of its interest in the Loans and the Collateral and to delegate to
Additional Lender all or a portion of its Loan Commitments and other duties with
respect to such Loans and the Collateral; and
WHEREAS, Additional Lender desires to become a Lender under the Credit
Agreement and to accept such assignment and delegation from Assigning Lender;
and
WHEREAS, Additional Lender desires to appoint Administrative Agent to
serve as agent for Additional Lender under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Assigning Lender, Administrative
Agent and Additional Lender agree as follows:
SECTION 1
Assignment, Delegation, and Acceptance
1.1 Assignment
A. Assigning Lender hereby transfers and assigns to Additional Lender,
without recourse and without representations or warranties of any kind (except
as set forth in Sections 1.1(B) and 3.2 of this Agreement), such percentage of
Assigning Lender's right, title and interest in the Loans, Credit Agreement and
the Loan Documents as will result in Additional Lender having, as of the
Effective Date (as hereinafter defined) of this Agreement, its Pro Rata Share
(as set forth in Schedule A of this Agreement, attached hereto and made a part
hereof) thereof. All fees payable to Assigning Lender under the Credit Agreement
accrued prior to the Effective Date are for the account of
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Credit Agreement/CT Communications
Assigning Lender. Interest accrued but unpaid prior to the Effective Date shall
be for the account of Assigning Lender. Each of Assigning Lender and the
Additional Lender hereby agrees that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
B. Assigning Lender hereby represents and warrants to Additional Lender
that it has not previously assigned or transferred the Assigned Amount (as
hereinafter defined). The Assigned Amount is free and clear of all liens,
charges or encumbrances created by, through or under Assigning Lender.
1.2 Delegation
Assigning Lender hereby delegates to Additional Lender all or a portion
of its Loan Commitments and its other duties and obligations as a Lender under
the Credit Agreement and the Loan Documents equivalent to Additional Lender's
Pro Rata Share.
1.3 Acceptance by Additional Lender
By its execution of this Agreement, Additional Lender accepts such
assignment and delegation and agrees to be a Lender under the Loans and to be
bound by the terms and conditions thereof.
1.4 Effective Date
Subject to compliance with Section 8.1 of the Credit Agreement, such
assignment and delegation will be effective and Additional Lender will become a
Lender under the Credit Agreement and the Loan Documents as of ______________
___, ____, ("Effective Date") [upon Administrative Agent's and if applicable,
Borrower's acceptance hereof].
SECTION 2
Initial Payment and Delivery of Term Notes
2.1 Payment of the Assigned Amount
Additional Lender will pay to Assigning Lender, in immediately
available funds, not later than 12:00 p.m. New York time on the Effective Date,
an amount equal to its Pro Rata Share of the then outstanding principal amount
of the Loans ("Assigned Amount") as set forth on Schedule "A" hereof.
2.2 Execution and Delivery of Notes
Following payment by Additional Lender under Section 2.1 hereof,
Assigning Lender will deliver the old Note(s) to Administrative Agent for
redelivery to Borrower and Borrower will execute and deliver to Administrative
Agent, for delivery to Assigning Lender and Additional
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Credit Agreement/CT Communications
Lender, new Note(s) evidencing Additional Lender's and Assigning Lender's
respective Pro Rata Shares in the Loans after giving effect to the assignment
described in Section 1 of this Agreement. Each new Note will be issued in the
aggregate maximum principal amount of the Loan Commitments of the Lender to whom
such Note is issued.
SECTION 3
Additional Lender's and Assigning Lender's Representations,
Warranties and Covenants
3.1 Additional Lender hereby represents, warrants and covenants the
following to Assigning Lender and Administrative Agent:
A. This Agreement is a legal, valid and binding agreement of Additional
Lender, enforceable according to its terms;
B. The execution and performance by Additional Lender of its duties and
obligations under this Agreement, the Credit Agreement and the Loan Documents
will not require any registration with, notice to, or consent or approval by any
federal, state, or local governmental or regulatory body;
C. Additional Lender is familiar with transactions of the kind and
scope reflected in the Credit Agreement and the Loan Documents and in this
Agreement;
D. Additional Lender has made its own independent investigation and
appraisal of the financial condition and affairs of Borrower, has conducted its
own evaluation of the Loans, the Credit Agreement and the Loan Documents, and
Borrower's creditworthiness, has made its decision to become a Lender to
Borrower under the Credit Agreement with respect to the Loans independently and
without reliance upon Assigning Lender or Administrative Agent, and will
continue to do so;
E. Additional Lender is entering into this Agreement in the ordinary
course of its business, and is acquiring its interest in the Loans for its own
account and not with a view to or for sale in connection with any subsequent
distribution; provided, however, that at all times the distribution of
Additional Lender's property shall, subject to the terms of the Credit
Agreement, be and remain within its control. No assignment or participation by
Additional Lender granted pursuant to Section 8.1 of the Credit Agreement will
require Assigning Lender, Administrative Agent or Borrower to file any
registration statement with the Securities and Exchange Commission or to apply
to qualify under the blue sky laws of any state;
F. Additional Lender has no loans to, written or oral agreements with,
or equity or other ownership interest in Borrower or its Affiliates. Additional
Lender will not, and will not permit any party to which it may grant any
assignment or participation under Section 8.1 of the Credit Agreement to, enter
into any written or oral agreement with, or acquire any equity or other
ownership interest in, Borrower or its Affiliates without the prior written
consent of Administrative Agent; and
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Credit Agreement/CT Communications
G. Additional Lender is capable of making LIBOR Loans under the Credit
Agreement.
3.2 Assigning Lender's Representations and Warranties
Assigning Lender hereby represents and warrants the following to
Additional Lender and Agent:
A. This Agreement is a legal, valid and binding agreement of Assigning
Lender, enforceable according to its terms;
B. The execution and performance by Assigning Lender of its duties and
obligations under this Agreement, the Credit Agreement and the Loan Documents
will not require any registration with, notice to or consent or approval by any
federal, state or local governmental or regulatory body;
C. Assigning Lender has full power and authority, and has taken all
action necessary to execute and deliver this Agreement and to fulfill the
obligations hereunder and to consummate the transactions contemplated hereby;
and
D. Assigning Lender has not previously assigned or transferred the
interests being assigned hereby, and such interest are free and clear of any
adverse claim, lien, encumbrance, security interest, restriction on transfer,
purchase option, call or similar right of a third party or other defect in title
created by, through or under Assigning Lender.
SECTION 4
Limitations of Liability
Except as provided in Sections 1.1(B) and 3.2, neither Assigning Lender
nor Administrative Agent makes any representations or warranties of any kind,
nor assumes any responsibility or liability whatsoever, with regard to (i) the
Credit Agreement, the Loan Documents or the Loans, (ii) the validity,
genuineness, enforceability, or collectibility of any of them, or (iii) the
solvency, financial condition or statements of Borrower or any other party to
the Loan Documents. Neither Assigning Lender nor Administrative Agent has or
will have any duty, either initially or on a continuing basis, to make any
investigation, evaluation, or appraisal on behalf of Additional Lender, nor will
Assigning Lender or Administrative Agent have any responsibility or liability
with respect to the accuracy or completeness of any information provided to
Additional Lender which has been provided to Assigning Lender or Administrative
Agent by Borrower or by any third party. Nothing in the Agreement or in the
Credit Agreement and the Loan Documents shall impose upon Assigning Lender or
Administrative Agent any fiduciary relationship in respect of Additional Lender.
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Credit Agreement/CT Communications
SECTION 5
Failure to Enforce
5.1 Not a Waiver
No failure or delay on the part of Administrative Agent or Assigning
Lender in the exercise of any power, right, or privilege hereunder or under the
Credit Agreement or any Loan Document will impair such power, right, or
privilege or be construed to be a waiver of any default or acquiescence therein.
No single or partial exercise of any such power, right, or privilege will
preclude further exercise thereof or of any other right, power, or privilege.
5.2 Remedies Cumulative
All rights and remedies existing under this Agreement are cumulative
with, and not exclusive of, any rights or remedies otherwise available.
SECTION 6
Notices
Unless otherwise specifically provided herein, any notice or other
communication required or permitted to be given will be in writing and addressed
to the respective party as set forth below its signature hereunder, or to such
other address as the party may designate in writing to the other.
SECTION 7
Survival of Indemnities and Continuing Effect
This Agreement will continue in full force and effect as to Additional
Lender so long as any amounts of principal, interest, or fees are owed to
Additional Lender or the Loan Commitments remain outstanding; provided, however,
that Additional Lender's obligation to indemnify Administrative Agent and
Additional Lender's obligations of confidentiality hereunder and under the
Credit Agreement will continue notwithstanding any termination of this Agreement
or the Credit Agreement.
SECTION 8
Amendments and Waivers
No amendment, modification, termination, or waiver of any provision of
this Agreement will be effective without the written concurrence of Assigning
Lender, Administrative Agent and Additional Lender.
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Credit Agreement/CT Communications
SECTION 9
Severability
Whenever possible, each provision of this Agreement will be interpreted
in such manner as to be effective and valid under applicable law. In the event
any provision of this Agreement is or is held to be invalid, illegal or
unenforceable under applicable law, such provision will be ineffective only to
the extent of such invalidity, illegality or unenforceability, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. In addition, in the event any provision of or obligation under this
Agreement is or is held to be invalid, illegal, or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations in any other jurisdictions will not in any way be
affected or impaired thereby.
SECTION 10
Section Titles
Section and Subsection titles in this Agreement are included for
convenience of reference only, do not constitute a part of this Agreement for
any other purpose, and have no substantive effect.
SECTION 11
Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
SECTION 12
Applicable Law
THIS AGREEMENT WILL BE CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF COLORADO, WITHOUT GIVING EFFECT TO ANY
CONFLICTS OF LAWS PROVISIONS THAT REQUIRE OR PERMIT APPLICATION OF THE LAWS OF
ANY OTHER STATE OR JURISDICTION
SECTION 13
Withholding Taxes
If Additional Lender is, as of the Effective Date, or thereafter
becomes a foreign corporation or a U.S. branch of a foreign corporation,
Additional Lender will execute and deliver to Administrative Agent, for delivery
to Borrower, within 30 days after the Effective Date and by January 15th of each
year, a United States Internal Revenue Service Form 1001 or 4224, or any
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Credit Agreement/CT Communications
successor form, as appropriate, properly completed and claiming complete
exemption from withholding and deduction of United States federal taxes and
Additional Lender will execute and deliver to Administrative Agent, promptly
upon the expiration of any such form, a new form of like kind. Additional Lender
represents and warrants that, as of the Effective Date, it is entitled to
receive payments of principal and interest hereunder without deduction for or on
account of any taxes imposed by the United States of America or any political
subdivision thereof. In the event that after delivering such form, Additional
Lender ceases to be exempt from withholding and/or deduction of such taxes,
Administrative Agent may withhold and/or deduct the applicable amount from any
payments of principal or interest to which Additional Lender otherwise would be
entitled. Additional Lender will indemnify Administrative Agent from and against
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, or expenses that result from Additional Lender's failure to
fulfill its obligations under the terms of this Section 13.
SECTION 14
Counterparts
This Agreement and any amendments, waivers, consents, or supplements
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which, when so executed and delivered, will be
deemed an original and all of which shall together constitute one and the same
instrument.
SECTION 15
Consent of Borrower and Agent
This Agreement is conditioned upon the consent of Borrower and
Administrative Agent pursuant to Section 8.1 of the Credit Agreement (unless
consent is not required pursuant to such Section 8.1). The execution of this
Agreement by Borrower and Administrative Agent is evidence of such consent.
Pursuant to Section 8.1 of the Credit Agreement, Borrower has agreed to execute
and deliver (1) to Additional Lender, in substitution for its existing Notes,
new Notes payable to the order of Additional Lender to evidence the assignment
and assumption provided for herein and (2) to Assigning Lender, in substitution
for its existing Notes, new Notes payable to the order of Assigning Lender to
evidence the assignment and assumption provided for herein. The Assigning Lender
further agrees to pay a non-refundable administrative fee of $2,000 in
connection with the assignment herein (if applicable), as provided in Section
8.1(C) of the Credit Agreement.
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Credit Agreement/CT Communications
Witness the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
_______________________________________
(as Additional Lender) (as Assigning Lender)
By: ________________________________ By: ___________________________________
Its: _______________________________ Its: __________________________________
Notice Address: Notice Address:
_______________________________________
_______________________________________
_______________________________________
Attn: ______________________________ Attn: _________________________________
Telephone: _________________________ Telephone: ____________________________
Fax: _______________________________ Fax: __________________________________
Account Information Account Information:
[BANK] [BANK]
ABA: _______________________________ ABA: __________________________________
Attn: ______________________________ Attn: _________________________________
Acct.#: ____________________________ Acct.#: _______________________________
Reference: _________________________ Reference: ____________________________
COBANK, ACB, CT COMMUNICATIONS, INC.
as Administrative Agent as Borrower, on behalf of itself and
the other Borrowers
By: ________________________________ By: ___________________________________
Its: _______________________________ Its: __________________________________
Notice Address: Notice Address:
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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Credit Agreement/CT Communications
Schedule A to Lender Addition Agreement
This Schedule amends the Credit Agreement to the extent necessary to reflect the
assignment by Assigning Lender to Additional Lender of its right, title, and
interest in the Loans and the Credit Agreement and Loan Documents equivalent to
Additional Lender's Pro Rata Share and the reduction of Assigning Lender's Loan
Commitments. All capitalized terms used in this Schedule and not so defined
herein shall have the respective meanings set forth in the Lender Addition
Agreement to which this Schedule is attached, or, if not so defined therein, in
the Credit Agreement. All percentages set forth on this Schedule A shall be
carried to the seventh decimal.
1. Loans and Loan Commitments Assigned to Additional Lender
Revolving Loan Commitments - $____________
Pro Rata Share - ___________%
Term Loan Commitments - $____________
Pro Rata Share - ___________%
All fees payable to Assigning Lender under the Credit Agreement accrued
prior to the Effective Date are for the account of Assigning Lender and
such fees accruing from the including the date hereof are for the pro
rata account of Additional Lender.
2. Loans and Loan Commitments Retained by Assigning Lender
Revolving Loan Commitments - $___________
Pro Rata Share - __________%
Term Loan Commitments - $___________
Pro Rata Share - ___________%
3. Loans Outstanding on the Effective Date
Loans - $___________
Assigned Amount - $___________
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Credit Agreement/CT Communications
4. Interest Rate to Additional Lender
As set forth in the Credit Agreement, pro rata based on Additional
Lender's Pro Rata Share of the Loans. Interest accrued prior to the
Effective Date shall be for the account of Assigning Lender.