Exhibit 10.5
CCI ILLINOIS BORROWER GROUP GUARANTEE
CCI ILLINOIS BORROWER GROUP GUARANTEE (as amended, supplemented or
otherwise modified from time to time, this "Guarantee"), dated as of April 14,
2004, made by Consolidated Communications Illinois Holdings, Inc. ("CCI Illinois
Holdings"), Consolidated Communications, Inc. (the "CCI Borrower") and by each
of the Subsidiaries of the CCI Borrower that are signatories hereto or which
become parties hereto pursuant to Section 18, in accordance with Section 5.16 of
the Credit Agreement dated as of April 14, 2004 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement") among CCI Illinois Holdings, the CCI Borrower, Consolidated
Communications Acquisition Texas, Inc. (the "TXU Borrower"), Homebase
Acquisition, LLC ("Homebase"), Consolidated Communications Texas Holdings, Inc.
("CCI Texas Holdings") and the Lenders, Citicorp North America, Inc., as
administrative agent (in such capacity, the "Administrative Agent"), Credit
Suisse First Boston and Deutsche Bank Securities Inc. as co-syndication agents,
Credit Suisse First Boston and Citigroup Global Markets Inc. as joint lead
arrangers and joint bookrunners and CoBank, ACB, as documentation agent.
W I T N E S S E T H :
WHEREAS, pursuant to the terms of the Credit Agreement, the Lenders
severally agreed to make certain extensions of credit to the Borrowers;
WHEREAS, the CCI Borrower is a direct Wholly Owned Subsidiary of CCI
Illinois Holdings and each Subsidiary Guarantor that is a party hereto is a
direct or indirect Subsidiary of the CCI Borrower (CCI Illinois Holdings, the
CCI Borrower and each Subsidiary Guarantor that is a party hereto being
collectively referred to as the "CCI Borrower Group" and each member of the CCI
Borrower Group being referred to individually as a "Guarantor");
WHEREAS, it is a condition precedent to the making of Loans and the
issuance of, and participation in, Letters of Credit under the Credit Agreement,
that each member of the CCI Borrower Group shall have executed and delivered
this Guarantee; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of Loans
by the Borrowers and the issuance of, and participation in, Letters of Credit
for the account of the Borrowers under the Credit Agreement, and desires to
execute this Guarantee in order to satisfy the condition precedent described in
the preceding paragraph and to induce the Lenders to maintain and make Loans to
the Borrowers and issue Letters of Credit for the account of the Borrowers;
NOW, THEREFORE, in consideration of the premises and to induce the Lenders
to enter into the Credit Agreement and to make their respective extensions of
credit to the Borrowers under the Credit Agreement, the Guarantors hereby agree
with and for the benefit of the Agents and the Lenders as follows:
1. Defined Terms. As used in this Guarantee, terms defined in the Credit
Agreement or in the preamble or recitals hereto are used herein as therein
defined, and the following terms shall have the following meaning:
"CCI Borrower Obligations" shall mean (a) the unpaid principal of
and interest on (including interest accruing after the maturity of the
Loans made to the CCI Borrower and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the CCI Borrower, whether
or not a claim for post-
filing or post-petition interest is allowed in such proceeding) the Loans
made to or LC Disbursements made pursuant to Letters of Credit issued for
the account of the CCI Borrower and all other obligations and liabilities
of any member of the CCI Borrower Group to any Agent, the Joint Lead
Arrangers, the Joint Bookrunners, the Documentation Agent, the Issuing
Bank, the Swingline Lender or to any Lender, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the Credit
Agreement, any other Loan Document or any other document made, delivered
or given in connection therewith, whether on account of principal,
interest, fees, indemnities, costs or expenses (including, without
limitation, all reasonable fees, charges and disbursements of counsel), or
otherwise, and (b) the due and punctual payment and performance by the CCI
Borrower under each Hedging Agreement relating to the Loans entered into
with any counterparty that was a Lender or an Affiliate of a Lender at the
time such Hedging Agreement was entered into and each Hedging Agreement
set forth on Schedule 3.21(a) of the Credit Agreement.
"Guaranteed Obligations" means with respect to each Guarantor, its
obligations pursuant to this Guarantee with respect to the CCI Borrower
Obligations and the TXU Borrower Obligations.
"TXU Borrower Group" means CCI Texas Holdings, the TXU Borrower and
each Subsidiary Guarantor that is not a member of the CCI Borrower Group.
"TXU Borrower Obligations" shall mean (a) the unpaid principal of
and interest on (including interest accruing after the maturity of the
Loans made to the TXU Borrower and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the TXU Borrower, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans made to or LC Disbursements made pursuant to
Letters of Credit issued for the account of the TXU Borrower and all other
obligations and liabilities of any member of the TXU Borrower Group to any
Agent, the Joint Lead Arrangers, the Joint Bookrunners, the Documentation
Agent, the Issuing Bank, the Swingline Lender or to any Lender, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, any other Loan Document or any
other document made, delivered or given in connection therewith, whether
on account of principal, interest, fees, indemnities, costs or expenses
(including, without limitation, all reasonable fees, charges and
disbursements of counsel), or otherwise, and (b) the due and punctual
payment and performance by each member of the CCI Borrower Group (other
than the CCI Borrower) and each member of the TXU Borrower Group under
each Hedging Agreement relating to the Loans entered into with any
counterparty that was a Lender or an Affiliate of a Lender at the time
such Hedging Agreement was entered into.
2. Guarantee. (a) Each Guarantor other than the CCI Borrower, hereby,
jointly and severally, unconditionally and irrevocably, guarantees to the
Administrative Agent, for the benefit of the Agents and the Lenders and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the CCI Borrower when due (the "CCI
Guarantee") (whether at the stated maturity, by acceleration or otherwise) of
the CCI Borrower Obligations, and each such Guarantor further agrees, jointly
and severally, to pay any and all reasonable expenses (including, without
limitation, all reasonable fees and disbursements of counsel) which may be paid
or incurred by the Administrative Agent or the Collateral Agent in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the CCI Borrower Obligations and/or enforcing any
rights with respect to, or collecting against, the Guarantors under the CCI
Guarantee.
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(b) Each Guarantor hereby, jointly and severally, unconditionally
and irrevocably, guarantees to the Administrative Agent, for the benefit of the
Administrative Agent, the Agents and the Lenders and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by the TXU Borrower Group when due (the "TXU Guarantee")
(whether at the stated maturity, by acceleration or otherwise) of the TXU
Borrower Obligations, and each such Guarantor further agrees to pay any and all
reasonable expenses (including, without limitation, all reasonable fees and
disbursements of counsel) which may be paid or incurred by the Administrative
Agent or the Collateral Agent in enforcing, or obtaining advice of counsel in
respect of, any rights with respect to, or collecting, any or all of the TXU
Borrower Obligations and/or enforcing any rights with respect to, or collecting
against, the Guarantors under the TXU Guarantee.
(c) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder shall in no
event exceed the amount which can be guaranteed by such Guarantor under
applicable federal and state laws relating to the insolvency of debtors, after
giving effect to all other contingent and fixed liabilities of such Guarantor
and after giving effect to any collections from or payments made by or on behalf
of any other Guarantor in support of the obligations of such Guarantor under its
Guarantee or pursuant to Section 2(g).
(d) Each Guarantor agrees that the Guaranteed Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing this Guarantee or affecting the rights of the
Administrative Agent or any Lender hereunder.
(e) No payment or payments made by the CCI Borrower, the Guarantors,
any other guarantor or any other Person or received or collected by the
Administrative Agent or any Lender from the CCI Borrower, the Guarantors, any
other guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Guaranteed Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment or payments other than
payments made by such Guarantor in respect of the Guaranteed Obligations or
payments received or collected from such Guarantor in respect of the Guaranteed
Obligations, remain liable for the Guaranteed Obligations up to the maximum
liability of such Guarantor hereunder until the Guaranteed Obligations are paid
in full, the Commitments are terminated and either no Letters of Credit are
outstanding or each outstanding Letter of Credit has been cash collateralized.
(f) Each Guarantor agrees that whenever, at any time, or from time
to time, it shall make any payment to the Administrative Agent or any Lender on
account of its liability hereunder, it will notify the Administrative Agent in
writing that such payment is made under this Guarantee for such purpose.
(g) In order to provide for just and equitable contribution among
the Guarantors, the Guarantors that are obligors under the CCI Guarantee agree,
inter se, that in the event any payment or distribution is made by any Guarantor
other than CCI Illinois Holdings (a "CCI Funding Guarantor") under the CCI
Guarantee, such CCI Funding Guarantor shall be entitled to a contribution from
all other Guarantors that are obligors under the CCI Guarantee in a pro rata
amount based on the Adjusted Net Assets of each such Guarantor (including the
CCI Funding Guarantor) for all payments, damages and expenses incurred by that
CCI Funding Guarantor in discharging the CCI Borrower Obligations or any other
Guarantor's obligations with respect to the CCI Guarantee. In order to provide
for just and equitable contribution among the Guarantors, the Guarantors agree,
inter se, that in the event any payment or distribution is made by any Guarantor
(a "TXU Funding Guarantor") under the TXU Guarantee, such TXU Funding Guarantor
shall be entitled to a contribution from all other Guarantors in a pro rata
amount based on the Adjusted Net Assets of each Guarantor (including the TXU
Funding Guarantor) for all payments,
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damages and expenses incurred by that TXU Funding Guarantor in discharging the
TXU Borrower Obligations or any other Guarantor's obligations with respect to
the Guarantee. "Adjusted Net Assets" of any Guarantor at any date shall mean the
lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date and after giving effect
to any collection from any other Subsidiary of the Guarantor in respect of the
obligations of the CCI Guarantee or the TXU Guarantee), but excluding
liabilities under the CCI Guarantee or the TXU Guarantee, of such Guarantor at
such date and (y) the present fair salable value of the assets of such Guarantor
at such date exceeds the amount that will be required to pay the probable
liability of such Guarantor on its debts (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date and after giving
effect to any collection from any other Guarantor in respect of the obligations
of such Guarantor under the CCI Guarantee or the TXU Guarantee), excluding debt
in respect of the CCI Guarantee or the TXU Guarantee of such Guarantor, as they
become absolute and matured.
3. Right of Set-Off. Upon the occurrence and during the continuance of any
Event of Default, each Guarantor hereby irrevocably authorizes each Lender at
any time and from time to time without notice to such Guarantor or any other
guarantor, any such notice being expressly waived by each Guarantor, to set-off
and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender to or for the credit or the account of the Guarantor, or
any part thereof in such amounts as such Lender may elect, against and on
account of the obligations and liabilities of such Guarantor to such Lender
hereunder or under the Credit Agreement or the other Loan Documents, as such
Lender may elect, whether or not the Administrative Agent or any Lender has made
any demand for payment and although such obligations, liabilities and claims may
be contingent or unmatured. Each Lender agrees to notify such Guarantor promptly
of any such set-off and the application made by such Lender; provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this paragraph are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which such Lender may have.
4. Deferral of Subrogation. Notwithstanding any payment or payments made
by any of the Guarantors hereunder or any set-off or application of funds of any
of the Guarantors by any Lender, no Guarantor shall be entitled to be subrogated
to any of the rights of the Agents or any Lender against any Loan Party or any
collateral security or guarantee or right of offset held by any Lender for the
payment of the Guaranteed Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from any Loan Party in
respect of payments made by such Guarantor hereunder, and any such rights of
subrogation and reimbursement of the Guarantors are hereby waived, in each case,
until all amounts owing to the Agents and the Lenders on account of the
Guaranteed Obligations are paid in full, the Commitments are terminated and
either no Letters of Credit are outstanding or each outstanding Letter of Credit
has been cash collateralized ("Discharge of the Obligations"); provided,
however, that following the Discharge of Obligations, each Guarantor shall be
entitled to enforce any and all rights at law or in equity to subrogation that
may otherwise be available to such Guarantor.
5. Amendments, etc., with Respect to the Guaranteed Obligations; Waiver of
Rights. Each Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, (a) any demand for payment of any of the
Guaranteed Obligations made by the Administrative Agent, the Collateral Agent or
any Lender may be rescinded by such party and any of the Guaranteed Obligations
continued, (b) the Guaranteed Obligations, or the liability of any other Person
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by
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any Agent or any Lender, (c) the Credit Agreement, the other Loan Documents, any
Letter of Credit, any Hedging Agreement under which there are Guaranteed
Obligations and any other collateral security document or other guarantee or
document in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as any Agent and/or any Lender may deem
advisable from time to time, or (d) any collateral security, guarantee or right
of offset at any time held by any Agent or any Lender for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. No Agent
nor any Lender shall have any obligation to protect, secure, perfect or insure
any Lien at any time held by it as security for the Guaranteed Obligations or
for this Guarantee or any property subject thereto. When making any demand
hereunder against any particular Guarantor, the Administrative Agent or any
Lender may, but shall be under no obligation to, make a similar demand on any
other Guarantor or guarantor, and any failure by the Administrative Agent or any
Lender to make any such demand or to collect any payments from any such other
Guarantor or guarantor or any release of any such other Guarantor or guarantor,
shall not relieve such Guarantor in respect of which a demand or collection is
not made or any of the Guarantors not so released of their several obligations
or liabilities hereunder, and shall not impair or affect the rights and
remedies, express or implied, or as a matter of law, of the Administrative Agent
or any Lender against any of the Guarantors. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Guarantee or acceptance of this Guarantee; the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee; and all dealings between the Borrowers or any of the
Guarantors and the Administrative Agent or any Lender shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Guarantee. Each Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Borrowers or any of
the Guarantors with respect to the Guaranteed Obligations. Each Guarantor
understands and agrees that this Guarantee shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity, regularity or enforceability of the Credit Agreement, the Notes, any
other Loan Document, the Letters of Credit, any Hedging Agreements under which
there are Guaranteed Obligations, any of the Guaranteed Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
any Loan Party or any other person against the Administrative Agent or any
Lender, or (c) any other circumstance whatsoever (with or without notice to or
knowledge of such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of any Loan Party, in bankruptcy or
in any other instance. When pursuing its rights and remedies hereunder against
any Guarantor, the Administrative Agent and/or any Lender may, but shall be
under no obligation to, pursue such rights and remedies as it may have against
Homebase or any member of the TXU Borrower Group or any other person or against
any collateral security or guarantee for the Guaranteed Obligations or any right
of offset with respect thereto, and any failure by the Administrative Agent or
any Lender to pursue such other rights or remedies or to collect any payments
from any Loan Party or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of any Loan Party or any such other person or any such collateral
security, guarantee or right of offset, shall not relieve such Guarantor of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent or any Lender against such Guarantor. This Guarantee shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon each Guarantor and the successors and assigns thereof, and shall
inure to the benefit of the Administrative Agent and the Lenders, and their
respective successors, indorsees, transferees and assigns, until all the
Guaranteed Obligations and the obligations of each Guarantor under this
Guarantee shall have been satisfied by payment in full, either no Letters of
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Credit are outstanding or each outstanding Letter of Credit has been cash
collateralized and the Commitments shall be terminated, notwithstanding that
from time to time during the term of the Credit Agreement the Borrowers may be
free from any Guaranteed Obligations.
7. Reinstatement. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
the Guaranteed Obligations is rescinded or must otherwise be restored or
returned by the Administrative Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Loan Party, or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, any Loan Party or any substantial part of
its property, or otherwise, all as though such payments had not been made.
8. Payments. Each Guarantor hereby guarantees that payments hereunder will
be paid in Dollars to the Administrative Agent without set-off or counterclaim
at the office of the Administrative Agent identified in Section 9.01 of the
Credit Agreement, or at such other office as the Administrative Agent may notify
to the Guarantor in accordance with Section 15.
9. Representations and Warranties. Upon the date of execution of a
counterpart hereof by any Guarantor, each Guarantor that is a Subsidiary
Guarantor executing such counterpart on such date makes the representations and
warranties as to itself in Article III of the Credit Agreement (as to itself) as
if such Article III were herein.
10. Covenants. Each Guarantor hereby covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date of this
Guarantee until the Guaranteed Obligations are paid in full and the Commitments
are terminated and either no Letter of Credit is outstanding or each outstanding
Letter of Credit has been cash collateralized, each Guarantor will comply with
Articles V and VI of the Credit Agreement to the extent such provisions apply to
such Guarantor.
11. Severability. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12. Section Headings. The section headings used in this Guarantee are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
13. No Waiver; Cumulative Remedies. Neither the Administrative Agent nor
any Lender shall by any act (except by a written instrument pursuant to Section
14 hereof), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any default or event of
default under any Loan Document or in any breach of any of the terms and
conditions hereof. No failure to exercise, nor any delay in exercising, on the
part of the Administrative Agent or any Lender, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Administrative Agent or any Lender of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent or such Lender would otherwise have on any
future occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
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14. Integration; Waivers and Amendments; Successors and Assigns; Governing
Law. This Guarantee represents the entire agreement of each Guarantor with
respect to the subject matter hereof and there are no promises or
representations by the Administrative Agent or any Lender relative to the
subject matter hereof not reflected herein or in the other Loan Documents. None
of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
each Guarantor and the Administrative Agent; provided that any provision of this
Guarantee may be waived by the Administrative Agent in accordance with the
Credit Agreement in a letter or agreement executed by the Administrative Agent
or by telex or facsimile transmission from the Administrative Agent. This
Guarantee shall be binding upon the successors and assigns of each Guarantor and
shall inure to the benefit of the Administrative Agent and the Lenders and their
respective successors and assigns. THIS GUARANTEE SHALL BE GOVERNED BY, AND BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. Notices. All notices, requests, demands and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to any Guarantor, to it at:
c/o Consolidated Communications, Inc.
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Providence Equity
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Spectrum Equity
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King & Spalding LLP
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(b) if to the Administrative Agent, to it at:
Citicorp North America, Inc.
▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇.▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
All notices and other communications given to any party hereto in
accordance with the provisions of this Guarantee shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy or by certified or registered mail, in each case delivered,
sent or mailed (properly addressed) to such party as provided in this Section 15
or in accordance with the latest unrevoked direction from such party given in
accordance with this Section 15.
16. Counterparts. This Guarantee may be executed by one or more of the
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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17. Authority of Administrative Agent. Each Guarantor acknowledges that
the rights and responsibilities of the Administrative Agent under this Guarantee
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, right, request, judgment
or other right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the Administrative Agent and the Lenders, be
governed by the Credit Agreement and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the
Administrative Agent and each Guarantor, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and no Guarantor shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.
18. Additional Guarantors. Each Subsidiary of the CCI Borrower that is
required to become a party to this Agreement pursuant to Section 5.16 of the
Credit Agreement shall become a Guarantor for all purposes of this Agreement
upon execution and delivery by such Subsidiary of a Guarantee Agreement in the
form of Annex I to this Agreement
19. Submission to Jurisdiction; Waivers. (a) Each Guarantor hereby
irrevocably and unconditionally submits, for itself and its assets, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Guarantee, or for recognition or enforcement of any judgment, and hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by Law, in such federal court. Each Guarantor agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law. Nothing in this Guarantee shall affect any right that any
Lender may otherwise have to bring any action or proceeding relating to this
Guarantee against any Guarantor or its properties in the courts of any
jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any New York State or federal court. Each Guarantor hereby
irrevocably waives, to the fullest extent permitted by Law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each Guarantor irrevocably consents to service of process in the
manner provided for notices in Section 15. Nothing in this Agreement will affect
the right of the Agents, any Lender or the Issuing Bank to serve process in any
other manner permitted by Law.
(d) Each Guarantor and the Administrative Agent, on behalf of the
Lenders, hereby waive, to the fullest extent permitted by applicable law, any
right they may have to a trial by jury in respect of any litigation directly or
indirectly arising out of, under or in connection with this Guarantee. Each of
the Guarantors and the Administrative Agent, on behalf of the Lenders, (a)
certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this
Guarantee by, among other things, the mutual waivers and certifications in this
Section 19.
20. Release of Guarantors. In the event that all of the Equity Interests
of one or more Guarantors that are Subsidiary Guarantors is sold or otherwise
disposed of or liquidated in compliance with the requirements of the Credit
Agreement (or such sale or other disposition has been approved in writing in
accordance with Section 9.08 of the Credit Agreement), such Guarantor shall upon
consummation of such
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sale or other disposition (except to the extent that such sale or disposition is
to the Borrowers or any of their Subsidiaries) be released from this Guarantee
automatically and without further action and this Guarantee shall, as to each
such Guarantor or Guarantors, terminate and have no further force or effect (it
being understood and agreed that the sale of one or more persons (other than
Homebase, any Intermediate Holdco, CCI Illinois Holdings or the CCI Borrower)
that own, directly or indirectly, all of the Equity Interests of any Guarantor
shall be deemed to be a sale of such Guarantor for purposes of this Section 20).
-10-
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to
be duly executed and delivered by its duly authorized officer as of the day and
year first above written.
CONSOLIDATED COMMUNICATIONS ILLINOIS
HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
CONSOLIDATED COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
CONSOLIDATED COMMUNICATIONS MARKET RESPONSE,
INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
CONSOLIDATED COMMUNICATIONS PUBLIC SERVICES,
INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
CONSOLIDATED COMMUNICATIONS OPERATOR
SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
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CONSOLIDATED COMMUNICATIONS MOBILE SERVICES,
INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
CONSOLIDATED COMMUNICATIONS BUSINESS
SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
CONSOLIDATED COMMUNICATIONS NETWORK
SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
-12-
Accepted and agreed to:
CITICORP NORTH AMERICA, INC,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
-13-
SUPPLEMENTAL SUBSIDIARY GUARANTEE AGREEMENT
Reference is made to the CCI Illinois Borrower Group Guarantee Agreement
dated as of April 14, 2004 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "CCI Illinois Guarantee Agreement")
among Citicorp North America, Inc., as Administrative Agent (the "Administrative
Agent"), and each of the Guarantors (such term and each other capitalized term
used but not defined herein having the meaning given it in the CCI Illinois
Guarantee Agreement).
W I T N E S S E T H :
WHEREAS, pursuant to Section 5.16 of the Credit Agreement, each 90%
Subsidiary that is a Subsidiary of the CCI Borrower that was not in existence on
the date of the Credit Agreement is required to become a Guarantor under the CCI
Illinois Guarantee Agreement by executing a Subsidiary Guarantee Agreement. The
undersigned Subsidiary (the "New Guarantor") is executing this supplemental
subsidiary guarantee agreement (the "Supplemental Subsidiary Guarantee
Agreement") to the CCI Illinois Guarantee Agreement in order to induce the
Lenders to make additional Revolving Loans and as consideration for the Loans
previously made.
NOW, THEREFORE, the Administrative Agent and the New Guarantor hereby
agree as follows:
1. Guarantee. In accordance with Section 5.16 of the Credit Agreement, the
New Guarantor by its signature below becomes a Guarantor under the CCI Illinois
Guarantee Agreement with the same force and effect as if originally named
therein as a Guarantor.
2. Representations and Warranties. The New Guarantor hereby (a) agrees to
all the terms and provisions of the Credit Agreement and the other Loan
Documents applicable to it as a Guarantor thereunder and (b) makes the
representations and warranties in the Credit Agreement applicable to it. Each
reference to a Guarantor in the Credit Agreement shall be deemed to include the
New Guarantor.
3. Severability. Any provision of this Supplemental Subsidiary Guarantee
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
4. Counterparts. This Supplemental Subsidiary Guarantee Agreement may be
executed in counterparts, each of which shall constitute an original. Delivery
of an executed signature page to this Supplemental Subsidiary Guarantee
Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Supplemental Subsidiary Guarantee
Agreement.
5. No Waiver. Except as expressly supplemented hereby, the CCI Illinois
Guarantee Agreement shall remain in full force and effect.
6. Notices. All notices, requests and demands to or upon the New
Guarantor, any Agent or any Lender shall be governed by the terms of Section 15
of the CCI Illinois Guarantee Agreement.
7. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
[Signature Pages Follow]
-14-
IN WITNESS WHEREOF, the undersigned has caused this Supplemental
Subsidiary Guarantee Agreement to be duly executed and delivered by its duly
authorized officer as of the day and year first above written.
[NEW GUARANTOR]
By: _______________________________________
Name:
Title:
Address for Notices:
CITICORP NORTH AMERICA, INC.,
as Administrative Agent
By: _______________________________________
Name:
Title:
-15-