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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Date of Report (Date of earliest event reported): June 15, 1999
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HICKORY TECH CORPORATION
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(Exact name of registrant as specified in its charter)
Minnesota 0-13721 41-1524393
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification Number)
221 East Hickory Street, P.O. Box 3248, Mankato, MN 56002-3248
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(Address of principal executive (Zip code)
offices)
Registrant's telephone number including area code (800) 326-5789
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ITEM 2. ACQUISITION OF ASSETS.
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On June 1, 1999, Hickory Tech Corporation (the "Company") completed the
acquisition of the cellular telephone license, operations, cellular
towers/equipment and other related assets of a portion of the Minneapolis/St.
Paul, Minnesota MSA (Metropolitan Statistical Area) from McElroy Electronics
Corporation (McElroy) of Massachusetts.
Under terms of the agreement, the Company acquired a contiguous ring around the
Minneapolis/St. Paul area, encompassing approximately 200,000 POPs ("population
served"). The service area acquired covers a portion of six Minnesota counties
(Chisago, Wright, Carver, Scott, Dakota and Anoka) and one Wisconsin county (St.
Croix).
As consideration for the acquisition, the Company paid approximately $41.5
million, consisting of $37.5 million paid in cash and $4.0 million
forgiveness of a loan from the Company to McElroy associated with the network
buildout. The Company financed the acquisition through borrowings under an
amended and restated $90 million revolving loan agreement with a group of
banks headed by First Union. The Company had no affiliation with McElroy
prior to negotiations regarding the acquisition. The acquisition has been
accounted for under the purchase method of accounting.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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(a) Financial Statements of Business Acquired
The Company intends to file the required financial statements for
McElroy within the period provided for under Item 7(a)(4) of Form 8-K.
(b) Proforma Financial Information
The Company intends to file the required proforma financial information
within the period provided for under Item 7(a)(4) of Form 8-K.
(c) Exhibits
2.1 Purchase and Sale Agreement among McElroy Electronics
Corporation and the Company as of December 22, 1998.
10.1 Amended and Restated Credit Agreement among the Company, as
borrower, the financial institutions whose name appear as
lenders on the signature pages thereof and First Union
National Bank as administrative agent for the lenders, dated
as of May 28, 1999.
99.1 Press Release dated February 25, 1999, announcing the
completion of the McElroy acquisition.
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SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, hereto duly authorized.
Date: June 15, 1999
HICKORY TECH CORPORATION
By /s/ Robert D. Alton, Jr.
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Robert D. Alton, Jr.
Chief Executive Officer
By /s/ David A. Christensen
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David A. Christensen
Chief Financial Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION OF EXHIBIT PAGE NUMBER
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<S> <C> <C>
2.1 Purchase and Sale Agreement among McElroy 5
Electronics Corporation and the Company
10.1 Amended and Restated Credit Agreement 38
99.1 Press Release announcing the completion of the 123
McElroy acquisition.
</TABLE>
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Exhibit 2.1
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is entered into this
22nd day of December, 1998 (the "Effective Date"), by and among (i) McElroy
Electronics Corporation, a Massachusetts corporation, as seller ("Seller"); and
(ii) Minnesota Southern Wireless Company, a Minnesota corporation, as buyer
("Buyer"), and Hickory Tech Corporation, a Minnesota corporation, as guarantor
of the obligations of Buyer hereunder ("Guarantor"). Seller, Buyer, and
Guarantor are sometimes referred to herein each individually as a "party" and
collectively as the "parties."
RECITALS
A. Seller holds a one hundred percent (100%) interest in the Radio Station
Authorization granted by the Federal Communications Commission ("FCC") (the "FCC
Authorization") for Cellular Radiotelephone Service ("CRS") Station KNKR320
(Frequency Block A2, Market No. 15 [A2]), in a portion of the Minneapolis-St.
Paul Metropolitan Statistical Area designated as "unserved area," which area is
more particularly described on the map attached hereto as EXHIBIT A as "McElroy
1988 Authorized CGSA" and "McElroy Pending CGSA" (the "Market"), and in related
assets and obligations (together with the FCC Authorization, and as further
defined in Section 1 below, the "System Assets") used to operate or useful in
the operation of the Cellular System serving the market (the "System"). The
System Assets are more particularly described in SCHEDULE 1 attached hereto.
B. Seller has determined to sell to Buyer all of its interest in the System
Assets, and Buyer has determined to purchase from Seller all of its interest in
the System Assets, subject to FCC approval of the Assignment Application, as
defined in Section 8.1.1 below, for assignment of the FCC Authorization to Buyer
(the "FCC Approval"), and the other terms and conditions of this Agreement as
set forth below. Seller has obtained FCC approval of the Major Modification
Application as defined in Section 6.7 below. A copy of the amended FCC filing
for major modification depicting the Cellular Geographic Service Area of CRS
Station KNKR320 to be covered by the composite 32 dBu contours is attached
hereto as EXHIBIT A-1. Seller has agreed to proceed diligently with the
construction of the System from the Effective Date through the time of closing,
to assure completion of the System prior to November 6, 1999.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows:
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1. PURCHASE AND SALE. Subject to the terms and conditions hereof, Seller
agrees to sell, transfer, convey, assign and deliver to Buyer, and Buyer agrees
to purchase, acquire, accept and assume from Seller, Seller's interest in and
selected obligations under the System Assets, in accordance with the "Bill of
Sale, Assignment and Assumption" attached hereto as EXHIBIT B, which will be
executed by the parties as of the Closing Date, as defined in Section 2 below.
The System Assets include, but are not necessarily limited to, the assets
identified on SCHEDULE 1 attached hereto. The obligations relating thereto,
which Buyer has agreed to assume (the "Permitted Encumbrances"), are identified
on SCHEDULE 2 attached hereto.
2. CLOSING.
2.1 CLOSING DATE. Unless the contingencies specified in Section 6 and
Section 7 below have not been satisfied, the closing of the transactions
contemplated by this Agreement (the "Close" or "Closing") shall occur at the
offices of Hickory Tech Corporation at 221 East Hickory Street, Mankato,
Minnesota 56001 on the date that is five (5) business days after the date that
the FCC Approval becomes a Final Order, as described in Section 6.3 below, or at
such other time and place as the parties shall mutually agree. The date at which
the Closing occurs is referred to herein as the "Closing Date."
2.2 DOCUMENTS DELIVERED BY SELLER. On or before 10:00 a.m. Eastern
Time on the Closing Date, Seller shall deliver to Buyer the following:
i. A fully executed (in counterpart, if
applicable) Bill of Sale, Assignment and Assumption (in form
of EXHIBIT B) transferring Seller's interest in the System
Assets to Buyer;
ii. Updated EXHIBIT E-1, Litigation Disclosure
(Seller);
iii. Updated EXHIBIT F, List of Contracts;
iv. Updated EXHIBIT M, Build-out Plan;
v. Certificate of Authority (in form of EXHIBIT
N-1);
vi. Updated SCHEDULE 1, System Assets;
vii. Updated SCHEDULE 2, Permitted Encumbrances;
viii. Updated SCHEDULE 3, Divisional Financial
Statements;
ix. Updated SCHEDULE 4, Employee List;
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x. Written opinions of Seller's corporate counsel,
the LLC's (as defined below) corporate counsel and Seller's
and the LLC's Federal Communications Commission counsel (in
forms of EXHIBITS G-1, G-2 and G-3), pursuant to Section 6.5
below;
xi. Purchase Price Allocation made pursuant to
Internal Revenue Code Section 1060 on IRS Form 8594;
xii. Evidence of maturity of FCC Approval to a
Final Order;
xiii. Seller's written confirmation that the
Escrow Agent has disbursed the funds escrowed under the
terms of the Escrow Agreement;
xiv. A Certificate of Good Standing issued by the
Secretary of State of the State of Massachusetts, indicating
that the corporate status of Seller is in good standing, and
evidence satisfactory to Buyer that Seller is qualified to
do business in the State of Minnesota;
xv. Original contracts, leases, agreements and
other documentation relating to the System and the System
Assets, as then exists in operation or under construction;
xvi. A fully executed non-competition agreement in
the form of EXHIBIT ___ ___ ___ ___ ___ K hereto; and
xvii. Such other items and instruments as are
required by this Agreement and may be necessary to
accomplish the Closing in accordance with this Agreement.
Seller is delivering to Buyer the following documents concurrently with the
execution of this Agreement:
i. An executed original of the Multiple Advance
Promissory Note (in form of EXHIBIT I) in the original
amount of $6,000,000, pursuant to which the Seller's build
out obligations will be financed;
ii. Seller's original executed counterpart of the
Security Agreement (in form of EXHIBIT J-1 ) and Financing
Statements, securing the advances made under the Promissory
Note and perfecting the security interest granted therein;
and
iii. Seller's original executed counterpart of the
Escrow Agreement (in form of EXHIBIT C), pursuant to which
the Deposit (as defined below) will be held in escrow.
Seller will deliver to Buyer the following documents concurrently with the
assignment of Seller's rights and obligations under this Agreement to the LLC
pursuant to Section 12.2 below:
i. A copy of an executed bill of sale, assignment
and assumption assigning Seller's rights and obligations
with respect to the System Assets and under this Agreement
to the LLC (in form of EXHIBIT O);
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ii. An executed original of the pledge agreement
(in form of EXHIBIT J-2) and corresponding financing
statements, pursuant to which Seller will pledge its
membership interests in the LLC to Buyer;
iii. An executed original of a security agreement
(in form of EXHIBIT J-3) and financing statements, pursuant
to which the LLC will secure the Promissory Note; and
iv. An executed original of a guaranty (in form of
EXHIBIT P), pursuant to which Seller will guaranty the LLC's
obligations under this Agreement.
2.3 CLOSING DOCUMENTS DELIVERED BY BUYER. On or before 10:00 a.m.
Eastern Time on the Closing Date, Buyer shall deliver to Seller the following:
i. The Final Payment, as defined in and in
accordance with Section 3.2 below, together with evidence
that the Escrow Agent has disbursed the funds escrowed under
the terms of the Escrow Agreement;
ii. Buyer's original executed counterpart of the
Bill of Sale, Assignment and Assumption (in form of EXHIBIT
B) accepting Seller's interest in the System Assets and
assuming the Permitted Encumbrances;
iii. A written opinion of Buyer's counsel (in the
form of EXHIBIT H) pursuant to Section 7.5 below;
iv. Updated EXHIBIT E-2, Litigation Disclosure
(Buyer), reflecting any changes or modifications from the
Effective Date to the Closing Date;
v. Purchase Price Allocation made pursuant to
Internal Revenue Code Section 1060 on IRS Form 8594;
vi. Certificates of Good Standing issued by the
Secretary of State of the State of Minnesota, evidencing
that the corporate status of both the Buyer and Guarantor
are in good standing as of the Closing Date;
vii. A fully executed original of the Guaranty (in
form of EXHIBIT L);
viii. Certificate of Authority (in form of EXHIBIT
N-2); and
viii. Such other funds and other items and
instruments as are required by this Agreement and may be
necessary to accomplish the Closing in accordance with this
Agreement.
Buyer is also delivering the following document concurrently with the execution
of this Agreement:
i. Buyer's original executed counterpart of the
Escrow Agreement (in form of EXHIBIT C), signed by both
Buyer and the Escrow Agent.
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3. PURCHASE PRICE. In consideration of the sale, transfer, conveyance,
assignment and delivery of the System Assets at the Closing, Buyer shall pay to
Seller Thirty-Seven Million Five Hundred Thousand and 00/100 Dollars
($37,500,000.00), PLUS the balance of the Loan (including principal and any
accrued interest thereon) outstanding on the Closing Date for the build-out of
the System as contemplated in Section 8.2.2 below (the "Purchase Price"), all
payable as follows:
3.1 DEPOSIT.
A total of Two Million Eight Hundred Twelve Thousand Five Hundred and
00/100 Dollars ($2,812,500.00) (including all interest accrued thereon, the
"Deposit"), to be paid on the Effective Date by a wire transfer of immediately
available funds, to Norwest Bank Minnesota, N.A. or another mutually acceptable
third party ("Escrow Agent"), to be held in escrow in an interest bearing
account by Escrow Agent pursuant to the terms of an escrow agreement in the form
attached hereto as EXHIBIT C (the "Escrow Agreement"), to be applied (principal
and accrued interest) against the Purchase Price at Closing. The Escrow
Agreement will outline the conditions of escrow more specifically, but, in
general, the escrow deposit will be forfeitable only if Buyer fails to close
this transaction with Seller due to conditions under the control of Buyer. By
way of example only, if Buyer does not achieve a financing arrangement, and as a
result the Closing does not take place in accordance with Section 2 above, then
the Deposit shall be forfeited to Seller. If, however, Closing does not take
place due to conditions not under the control of Buyer, then the Deposit shall
be refundable to Buyer. For instance, if the FCC does not provide or denies the
necessary consent to the assignment of the FCC Authorization or Seller does not
receive other necessary approvals, and as a result the Closing does not take
place by September 30, 1999, then (except where such delay or denial results
from an adverse finding as to the character qualifications of Buyer or other
circumstances within the control of Buyer, in which case the Deposit shall be
forfeited to Seller) the Deposit shall be refunded to Buyer.
3.2 FINAL PAYMENT.
3.2.1. The Purchase Price, (i) MINUS the Deposit, and (ii) MINUS the
balance of the Loan (including principal and any interest accrued thereon)
outstanding on the Closing Date for the build-out of the System contemplated
under Section 8.2.2. below (the "Final Payment"), to be paid at the Closing Date
by Buyer by a wire
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transfer of immediately available funds, to an account or accounts identified
in writing by Seller at least five (5) business days prior to the Closing
Date.
3.3 PURCHASE PRICE ALLOCATION.
On or before the Closing Date, Seller and Buyer shall cooperate in the
preparation of a jointly-prepared IRS Form 8594 (the "Purchase Price Allocation
Schedule") allocating the Purchase Price (including, for purposes of this
Section 3.3, any other consideration paid by Buyer and any assumed liabilities)
among the purchased System Assets in accordance with Section 1060 of the
Internal Revenue Code. Each party agrees to file the IRS Form 8594, and all
federal, state, local and foreign tax returns, in accordance with the Purchase
Price Allocation Schedule.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby makes the
following representations and warranties to Buyer, each of which is true in all
material respects as of the Effective Date and will be true in all material
respects as of the Closing Date.
4.1 ORGANIZATION IN GOOD STANDING. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Massachusetts, and has the full power and authority to carry on its business as
it is now being conducted and to execute and deliver this Agreement and any
other agreements or documents executed in connection herewith and to consummate
the transactions contemplated hereby.
4.2 AUTHORIZATION, EXECUTION AND DELIVERY OF AGREEMENT. The execution,
delivery and performance of this Agreement and all other agreements and
transactions contemplated hereby do not violate the articles of organization or
bylaws of Seller, as such corporate documents have been from time to time
amended as of the Effective Date. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereunder
will not: (a) (i) conflict with or result in a breach of the terms, conditions
or provisions of, (ii) constitute a default under, (iii) give any third party
the right to accelerate any obligation under, or (iv) result in a violation of,
any law, statute, ordinance, rule or regulation applicable to Seller or the
System Assets, or any agreement, mortgage, indenture, judgment or decree to
which the Seller or any of the System Assets are subject (whether upon giving of
notice or lapse of time or both) where the result of any such conflict, breach,
default, acceleration or violation will have a material adverse effect on the
System Assets (for purposes of this Agreement, a material adverse effect is
deemed to result from an occurrence or event that would cause loss or liability
to the System in excess of $25,000 for
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each occurrence, or $100,000 when aggregated with the losses and liabilities
caused by all other acts or occurrences constituting a breach hereunder, or
which would cost in excess of $25,000 to remedy or correct, or $100,000 when
aggregated with the costs to remedy or correct all other acts or occurrences
constituting a breach hereunder) or (b) result in the creation of a lien,
security interest, charge or encumbrance upon the System Assets. As used in
this Agreement, "System Assets" means all rights, plans and assets (both
tangible and intangible) related to the System, including, but not limited
to, the FCC Authorization and all other governmental or regulatory
authorizations, permits, licenses and applications necessary or appropriate
to own and operate the System, and any customer accounts, contract rights,
equipment, facilities, real property and good will associated therewith.
4.3 TITLE. Seller is the exclusive owner of, and has good and
marketable title to (either fee or leasehold interest), all of the System
Assets, and none of the System Assets is subject to a contract of sale or to
security interests, mortgages, encumbrances, liens or charges of any kind or
character ("Liens") that will not be discharged at Closing. Any and all contract
rights, leases and other intangible assets are valid and enforceable by Seller
in accordance with their terms (except insofar as such enforcement may be
limited by applicable principles of bankruptcy, insolvency and other principles
relating to or limiting the rights of contracting parties generally).
4.4 CONSENTS. No provision of any material contract, lease, trust
agreement, mortgage, indenture or other agreement or instrument to which Seller
is a party or is subject or by which any of its System Assets is bound, requires
the consent or authorization of any other person or non-governmental entity as a
condition precedent to the consummation of the transaction contemplated by this
Agreement, unless such consent is obtained by closing.
4.5 GOVERNMENTAL CONSENTS. Except for the FCC Approval and expiration
or termination of the Hart-Scott-Rodino waiting period following proper
notification, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration, or filing with, any governmental
authority is required to be obtained in connection with the transfer of the
System Assets contemplated by this Agreement.
4.6 LICENSES, CERTIFICATES AND PERMITS.
4.6.1. Seller has all cellular licenses and authorizations from the
FCC to operate the System (I.E., the FCC Authorization). The FCC Authorization
is disclosed on EXHIBIT D, which also contains a true and complete copy of the
public notice of grant of the FCC Authorization, which FCC Authorization is in
full force
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and effect. It is understood that (i) any Common Carrier Fixed Point-to-Point
Microwave Radio Service ("PPMRS") licenses necessary to the build-out and
operation of the System will be licensed to Buyer, and prior to the Closing
Seller in turn will lease from Buyer, at no charge, sufficient capacity
pursuant to such licenses to enable Seller to backhaul signals from the cell
sites to the switch, and (ii) in the event Closing does not occur, then Buyer
will assign the PPMRS licenses to Seller at no cost, subject to and
conditioned upon prior receipt of all required FCC and other regulatory
approvals, all of which will be pursued diligently by both Buyer and Seller.
There are no pending modifications, amendments or revocation proceedings
which would adversely affect the operation of the System. All fees due and
payable to governmental authorities pursuant to the FCC Authorization have
been paid. No event has occurred which, with the giving of notice or the
lapse of time or both, would constitute grounds for revocation of the FCC
Authorization. Seller is in compliance in all material respects with and is
not in default under the terms of the FCC Authorization. There is no
condition, event or occurrence existing, or, to Seller's actual knowledge, no
proceeding threatened or being conducted, which would cause the termination,
suspension or cancellation of the FCC Authorization. All actions taken by
Seller in connection with the System have been and are being conducted in all
material respects to protect the FCC Authorization. The initial application,
as amended, for the FCC Authorization neither contains an untrue statement of
material fact nor omits to state a material fact necessary to make the
statements contained therein not misleading.
4.6.2. Seller is in full compliance with any applicable Federal law,
any applicable state or local law or ordinance, and any applicable state public
utilities commission rules and regulations, except where failure to comply will
not have a material adverse effect on the System Assets.
4.6.3. To Seller's actual knowledge, no actions have been taken
by any entity or person, including Seller, which could reasonably be expected
to lead to the revocation of any licenses, certificates, permits,
authorizations, franchises or rights of Seller granted by governmental
regulatory or administrative agencies or authorities, prior to expiration
thereof.
4.7 FCC AND OTHER GOVERNMENTAL REPORTS AND APPLICATIONS. All material
reports and applications required to be filed with the FCC and all other
governmental or administrative authorities by Seller with respect to the System
have been filed and are accurate and complete in all material respects.
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4.8 LITIGATION. Except as set forth on attached EXHIBIT E-1, there is
no action, suit, proceeding, investigation or inquiry at law or in equity in or
before any federal, state or local court or governmental or regulatory authority
or private arbitration tribunal pending or threatened against Seller which
individually or in the aggregate would have a material adverse effect on the
transactions contemplated by this Agreement.
4.9 CONTRACTS. EXHIBIT F attached hereto lists all insurance policies
owned by or covering the System Assets for risks of the System. All such
policies are in full force and effect, and all premiums on such policies due
prior to the date hereof have been paid. Seller has not received notice that any
such insurance is in default, will be canceled or not be renewed. Also set forth
on EXHIBIT F hereto is a true and complete list of all material agreements
(including volume purchase agreements), contracts (including vendor contracts),
commitments, letters of engagement and arrangements, written or oral, to which
Seller is a party, including, without limitation, all such documents with
respect to the System Assets or by which the System Assets are bound
(collectively, "Contracts"). All Contracts are either valid, binding and
enforceable in accordance with their respective terms (except insofar as such
enforcement may be limited by applicable principles of bankruptcy, insolvency
and other principles relating to or limiting the rights of contracting parties
generally) or are immediately terminable by Seller without any penalty, charge
or claim. Seller is not in material default under any Contract, nor has any
event occurred which, after the giving of notice or the passage of time or both,
would constitute a material default by Seller under any Contract. Buyer shall
assume all obligations and liabilities of Seller under all Contracts listed on
SCHEDULE 2 hereto to the extent such obligations and liabilities pertain to
periods after the Closing.
4.10 NO FINDER'S FEES. Seller has not retained any broker, finder or
agent, or agreed to pay any brokerage fee, finder's fee or commission with
respect to the transactions contemplated by this Agreement. If a broker or
finder claims that it represented Seller and that it is entitled to a commission
or finder's fee, then Seller shall indemnify, protect, defend and hold harmless
Buyer from all loss, claim, expense and liability arising out of such claim,
including reasonable attorney's fees.
4.11 OPERATION OF SYSTEM. Seller will not, following the execution of
this Agreement, operate the System other than in the ordinary course of business
and consistent with the build-out of the System, and Seller will not take any
action that will negatively impact the beneficial business relationships with
customers, suppliers or others
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having business dealings with Seller relating to the System. Seller agrees it
will not (other than in the ordinary course of business or in connection with
the build-out of the System): (a) make any business decisions which could
adversely affect the System or the System Assets; (b) sell, transfer or
assign any of the System Assets or permit the creation of any encumbrance on
any System Asset; (c) permit the amendment or cancellation of any Contract
which affects the System; (d) enter into any contract or commitment or incur
any indebtedness or other liability or obligation of any kind relating to the
System, if such contract, commitment, indebtedness, liability or obligation,
by its terms, will materially affect the System and will survive the Closing;
or (e) take or omit to take any action that would cause Seller to be in
breach of any of its representations or warranties in this Agreement. Seller
will deliver to Buyer copies of its monthly Divisional Financial Statements
(defined below) regarding the System as reasonably requested by Buyer between
the Effective Date and the Closing Date.
4.12 NO OPTIONS ON ASSETS. There is no contract, option or any other
right of another binding upon or which at any time in the future may become
binding upon Seller to sell, transfer, assign, pledge, charge, mortgage or in
any other way dispose of or encumber the System or any of the System Assets.
4.13 FINANCIAL STATEMENTS. The unaudited financial statements of the
System (the "Divisional Financial Statements") for the eleven (11) month period
ended November 30, 1998 (the "Interim Date") (copies of which are attached
hereto as SCHEDULE 3):
(i) are in accordance with the books and accounts
of Seller as at the Interim Date;
(ii) are true and correct in all material respects
and present fairly the financial position of the System as
at the Interim Date;
(iii) have been prepared in accordance with
generally accepted accounting principles consistently
applied with previous years' calculations; and
(iv) present fairly all of the assets and
liabilities related to the System as at the Interim Date.
4.14 INTELLECTUAL PROPERTY. Except as disclosed on SCHEDULE 2 hereof,
the Seller is the sole and exclusive owner of, with all right, title and
interest in and to (free and clear of any liens), its intellectual property
pertaining to the System, and has such rights (and is not contractually
obligated to pay any compensation to any third party in respect thereof) to the
use thereof or the material covered thereby as are necessary to construct and
operate the
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System. There is not and has not been any unauthorized use, infringement or
misappropriation of any of intellectual property by any principal or employee
of Seller or, to Seller's knowledge, any other person in connection with the
System.
4.15 CONTRACTS. The contracts listed in EXHIBIT F (the "Contracts")
are the only contracts and agreements, whether written or oral, by which Seller
is bound pertaining to the System. The Contracts represent the entire agreement
of Seller and the respective parties to the Contracts (other than RFP's and
proposals which are referred to in such agreements). Seller is not in default
under any Contract, and there exists no condition, event or act that, with the
giving of notice or lapse of time or both, would constitute such a default or
breach by Seller; and Seller has no knowledge of a default by any other party to
any of the Contracts. The Contracts are in good standing and in full force and
effect without amendment thereto except as described in EXHIBIT F, and, except
as disclosed in SCHEDULE 2, Seller is entitled to all benefits thereunder, and
Seller has performed all obligations required to be performed by it under the
Contracts.
4.16 EQUIPMENT. SCHEDULE 1 sets forth a complete list of the equipment
used in the System. All such equipment is owned by Seller free and clear of all
liens, except as disclosed in SCHEDULE 2, and such equipment comprises the only
equipment used by the Seller to carry on the business of the System prior to the
Effective Date. All such equipment has been properly maintained and is in good
working order for the purposes of on-going operation, subject to ordinary wear
and tear for machinery and equipment of comparable age.
4.17 ACCESS TO INFORMATION. Seller understands that Buyer is a
publicly traded company and that Buyer is under an SEC requirement to conduct
and obtain an audit of the System prior to Closing, performed in accordance with
generally accepted accounting principles. Between the Effective Date and the
Closing Date, Seller will (i) afford Buyer and its authorized representatives
reasonable access, during ordinary business hours and upon two (2) business
days' notice, to all books, records, offices and other facilities and properties
of Seller pertinent to the System and permit Buyer and its authorized
representatives to make such inspections thereof as they may reasonably request,
(ii) make available to Buyer during ordinary business hours and upon five (5)
business days' notice, all senior management personnel of Seller responsible for
the management of the System for the purpose of obtaining information regarding
the System, and (iii) furnish Buyer with such financial and operating data and
other information
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with respect to the financial statements, business and properties of Seller
pertinent to the System as Buyer may from time to time reasonably request;
provided, however, that any such investigation shall be conducted in such a
manner as not to interfere unreasonably with the operation of the business of
Seller. Any information provided to Buyer pursuant to this Agreement shall be
held by Buyer in the strictest confidence. No investigation pursuant to this
Section 4.17 shall affect any representation or warranty of Seller herein or
the conditions to the obligations of Buyer hereunder.
4.18 TAXES. All tax returns, including those covering, without
limitation, income and sales taxes, and any other federal, state or local taxes,
filed by Seller were in all material respects true, complete and correct and
prepared in accordance with the requirements of the income tax or other tax laws
applicable to Seller. Seller has paid or will have paid prior to the due date on
such tax returns (or has validly contested or will validly contest in a manner
in compliance with the procedures established therefor) all taxes shown to be
due on such tax returns, and has filed all related tax returns required to be
filed. Seller has no liability, obligation or commitment for the payment of
income taxes, corporation taxes or any other taxes or duties of whatever nature
or kind, or interest or penalties with respect thereto arising before the
Closing Date or arising as a result of the transactions contemplated by this
Agreement, except such as are disclosed in the Divisional Financial Statements
or such taxes or duties not yet due as have arisen since the Interim Date in the
usual and ordinary course of business and for which adequate provision in the
accounts of Seller has been made. Seller is not in arrears with respect to any
required withholdings or installment payments of any tax or duty of any kind in
respect of the System, and Seller has not filed any waiver or extension of the
statute of limitations on assessment of tax for a taxation year of Seller under
the IRS Code or any other legislation imposing tax on Seller. There are no
pending audits by any federal, state, local or foreign taxing authority of any
payment, return or report made or filed by the Seller (nor has there been any
claimed failure to pay or report any kind of tax which may be assessed by any
such taxing authority against the Seller). The representations and warranties
set forth in this Section are made only to the extent that taxes are or may
become liens on the System Assets or for which Buyer is or may be liable in the
capacity of transferee of the System Assets.
4.19 ENVIRONMENTAL COMPLIANCE. Except as disclosed in the SCHEDULE 2:
(i) Seller has no actual knowledge, without
independent investigation or inquiry, that Seller's leased
premises used for the System ("Leased Premises") are in
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violation of any Environmental Laws (defined below) or
environmental permits as a result of actions or events not
occasioned by Seller (see items (ii) and (iii) below);
(ii) Seller as tenant of its Leased Premises has
not released or emitted into the natural environment or
discharged or disposed of, at or on, or otherwise acquiesced
or participated in the discharge of, at or on, the Leased
Premises or any adjoining properties any Hazardous
Substances in violation of Environmental Laws;
(iii) There are no Hazardous Substances brought in
or produced by Seller existing at, in, on, below or within
the Leased Premises, or at, in, on, below or within any
adjoining properties with respect to which the Seller has
any duty under Environmental Laws (except in compliance with
Environmental Laws);
(iv) Seller is not aware of any notices of
non-compliance, complaints, summons, legal actions, charges,
work orders, control orders, stop orders, remedial and waste
removal or other orders relating to the natural environment
currently existing against Seller and pertinent to the
System under Environmental Laws and made by any court,
governmental authority or third party, and there is no
judicial, governmental or third party complaint, action or
investigation, and there are no facts of which Seller has
notice which could give rise to any such complaint, action
or investigation, in respect of the existence on the Leased
Premises of Hazardous Substances brought on or introduced by
Seller (except in compliance with Environmental Laws);
(v) All environmental permits required in order to
conduct the business of the System and the operations
pertaining to the System or conducted on the Leased Premises
by Seller have been obtained, are valid and in full force
and effect and are being complied with;
(vi) Seller has never been convicted of any
offence under Environmental Laws or been found liable in any
proceeding to pay any fine or judgment to any person or
governmental authority or been required to conduct any
clean-up or remediation of the Leased Premises or any
adjoining properties, in each case as a result of a release
by Seller of any Hazardous Substances from the Leased
Premises into the environment or the creation of a nuisance;
(vii) Any polychlorinated biphenysis ("PCBs") in
use, in storage or existing on the Leased Premises and
introduced by Seller are being used, have been stored or
exist in such concentration or quantities as, in each case,
to comply with all Environmental Laws; and
(viii) Seller is not aware of any asbestos or
asbestos containing materials in or on the Leased Premises.
For the purposes of this Section 4.19: "Hazardous Substances" means any
contaminant, pollutant or dangerous substance which may cause, immediately, or
at some future time, material harm or degradation to the environment or material
risk to human life, health and safety, including, without limitation, any
pollutant, contaminant, waste, hazardous waste, toxic substance or dangerous
good which is defined or identified in any Environmental Laws or
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which is present in the environment in such quantity or concentration as to
contravene any Environmental Laws; and "Environmental Laws" means all
statutes, regulations, municipal by-laws, codes, ordinances, decrees, rules,
protocols, orders, judicial or administrative or ministerial or regulatory
judgments, orders, decisions and rulings, guidelines and policies applicable
to Seller and the Leased Premises relating to the protection of the natural
environment, health and safety matters or conditions, Hazardous Substances,
including but not limited to storage, transportation, treatment and disposal
of Hazardous Substances, employee and product safety, releases of pollutants,
contaminants, chemical or industrial, toxic or Hazardous Substances into the
environment or any building or structure or otherwise relating to the
manufacture, processing, distributing, using, treating, storing, transporting
or handling of Hazardous Substances.
4.20 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Seller in this Agreement and in the documents and instruments
to be delivered by Seller pursuant to this Agreement will survive the Closing
without limitation until the second anniversary of the Closing Date, except that
all such representations and warranties with respect to any federal, state or
local taxes, or copyright matter will survive until the expiration of the
applicable statute of limitations (including any extensions) for such federal,
state or local taxes or copyright matter, respectively. The representations and
warranties of Buyer in this Agreement and in the documents and instruments to be
delivered by Buyer pursuant to this Agreement will survive the Closing without
limitation until the second anniversary of the Closing Date. The period of
survival of the representations and warranties prescribed by this Section 4.20
is referred to as the "Survival Period." The liabilities of the parties under
their respective representations and warranties will expire as of the expiration
of the applicable Survival Period; provided, however, that such expiration will
not include, extend or apply to any representation or warranty, the breach of
which has been asserted in written notice to the other party before such
expiration indicating the facts or conditions existing that, with the passage of
time or otherwise, can reasonably be expected to result in a breach (and
describing such potential breach in reasonable detail).
5. REPRESENTATIONS AND WARRANTIES OF BUYER AND GUARANTOR. Each of Buyer
and Guarantor hereby makes the following representations and warranties to
Seller, each of which is true in all material respects as of the Effective Date
and will be true in all material respects as of the Closing Date.
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5.1 ORGANIZATION IN GOOD STANDING. Each of Buyer and Guarantor is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Minnesota, and each has the full power and authority to carry on
its business as it is now being conducted and to execute and deliver this
Agreement and any other agreements or documents executed in connection herewith
and to consummate the transactions contemplated hereby.
5.2 AUTHORIZATION, EXECUTION AND DELIVERY OF AGREEMENT. The execution,
delivery and performance by each of Buyer and Guarantor of this Agreement and
all other agreements and transactions contemplated hereby have been duly
authorized by Buyer and Guarantor, respectively, and do not violate the articles
of incorporation or bylaws of either, as such have been amended from time to
time as of the Effective Date, and this Agreement constitutes a legal, valid and
binding obligation of Buyer and Guarantor, respectively, enforceable against
them in accordance with its terms except to the extent that such enforcement may
be limited by applicable bankruptcy, insolvency and other principles relating to
or limiting the rights of contracting parties generally.
5.3 NO FINDER'S FEES. Neither Buyer nor Guarantor has retained any
broker, finder or agent, or agreed to pay any brokerage fee, finder's fee or
commission with respect to the transactions contemplated by this Agreement. If a
broker or finder claims that it represented Buyer or Guarantor and that it is
entitled to a commission or finder's fee, then Buyer and Guarantor, jointly and
severally, shall indemnify, protect, defend and hold harmless Seller from all
loss, claim, expense and liability arising out of such claim, including
reasonable attorneys fees.
5.4 CONSENTS. No provision of any material contract, lease, trust
agreement, mortgage, indenture or other agreement or instrument to which Buyer
or Guarantor is a party or is subject, requires the consent or authorization of
any other person or non-governmental entity as a condition precedent to the
consummation of the transactions contemplated by this Agreement.
6. BUYER'S CONTINGENCIES. Buyer's obligation to purchase the System
Assets is subject to the satisfaction of the following conditions or Buyer's
written waiver of such conditions on or before the Closing Date. Buyer may waive
in writing any or all of such conditions in its sole and absolute discretion.
6.1 SELLERS' PERFORMANCE. Seller's performance of its obligations
described in this Agreement, on or before the times and in the manner described
herein, in all material respects. Buyer shall notify Seller of any breach
hereunder, and Seller shall have thirty (30) days after receiving such notice to
cure such breach, which period shall be
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extended for up to an additional thirty (30) days as long as Seller is
diligently pursuing cure, provided that in no event shall the Drop Dead Date
(as defined in Section 9.1.1 below) be extended pursuant hereto.
6.2 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Seller under this Agreement shall be true and correct in all material
respects on and as of the Closing Date as if made on and as of the Closing Date,
except with respect to changes to the representations and warranties of Seller
under Section 4.9 ("Contracts") above that are made by Seller in the ordinary
course of business. Buyer shall notify Seller of any breach hereunder, and
Seller shall have thirty (30) days after receiving such notice to cure such
breach, which period shall be extended for up to an additional thirty (30) days
as long as Seller is diligently pursuing cure, provided that in no event shall
the Drop Dead Date (as defined in Section 9.1.1 below) be extended pursuant
hereto.
6.3 FINAL ORDER. The FCC's grant of the FCC File No. 02909-CL-MP-97
Major Modification Application and the FCC's grant of the FCC Approval
(including, without limitation, the grant of waivers of Sections 22.137(d)(3)(i)
and 22.943(b)(i) of the FCC's Rules, provided the FCC Approval, by its terms,
expressly requires grant of such waivers) shall have each become a Final Order
of the FCC. For purposes of this Agreement, the term "Final Order" shall mean
action by the FCC as to which (i) no request for stay by the FCC of the transfer
is pending, no such stay is in effect, and any deadline for filing any such
request designated by statute or regulation has passed; (ii) no petition for
rehearing or reconsideration of the action is pending before the FCC, and the
time for filing any such petition has passed; (iii) the FCC does not have the
action under reconsideration on its own motion and the time for such
reconsideration has passed; and (iv) no appeal to a court, or request for stay
by a court, of the FCC's action is pending or in effect, and any deadline for
filing any such appeal or request as designated by statute or rule has passed.
6.4 LITIGATION. Except as disclosed on EXHIBIT E-2, there shall be no
injunction, decree or order issued or known by Buyer or Seller to be threatened
by any court, governmental agency or authority, or any litigation pending, known
by Buyer or Seller to be threatened or instituted, challenging or seeking to
prohibit or enjoin any of the transactions contemplated by this Agreement or
which would have a material adverse effect on Buyer's rights under the FCC
Authorization or this Agreement; provided, however, that any such threatened
matter shall be a contingency to Buyer's obligation to Close only if the threat
(i) could reasonably be expected to result in a proceeding or litigation that
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has a reasonable likelihood of success, (ii) has occurred within three (3)
months prior to Closing, and (iii) if successful, could reasonably be expected
to result in a material diminution in the value of the System Assets.
6.5 OPINION OF COUNSEL FOR SELLER AND THE LLC. Buyer shall have
received the written opinions of corporate and FCC counsel for Seller and the
LLC (as defined in Section 12.2 below), reasonably satisfactory to Buyer, dated
as of the Closing Date, substantially in the forms of attached EXHIBITS G-1, G-2
and G-3.
6.6 NO TERMINATION OF AGREEMENT. This Agreement shall not have been
terminated by any party in accordance with the terms hereof.
6.7 GRANT OF MAJOR MODIFICATION APPLICATION; BUILD OUT. On November 6,
1998, the FCC granted the major modification Application filed by Seller on June
10, 1998 (FCC File No. 02909-CL-MP-97) (the "Major Modification Application").
From the Effective Date through the Closing, Seller shall diligently proceed
with the construction of the System to assure completion of the System by
November 6, 1999, in accordance with the provisions of Section 8.2 below.
7. SELLER'S CONTINGENCIES. Seller's obligation to sell the System
Assets to Buyer is subject to the satisfaction of the following conditions or
Seller's written waiver of such conditions on or before the Closing Date. Seller
may waive in writing any or all of such conditions in its sole and absolute
discretion.
7.1 BUYER'S PERFORMANCE. Buyer's performance of its obligations
described in this Agreement, on or before the times and in the manner described
herein, in all material respects. Seller shall notify Buyer of any breach
hereunder, and Buyer shall have thirty (30) days after receiving such notice to
cure such breach, which period shall be extended for up to an additional thirty
(30) days as long as Buyer is diligently pursuing cure, provided that in no
event shall the Drop Dead Date (as defined in Section 9.1.1 below) be extended
pursuant hereto.
7.2 PAYMENT. Payment to Seller of the Deposit and the Final Payment in
accordance with Sections 3.1 and 3.2 above.
7.3 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Buyer under this Agreement shall be true and correct in all material respects
on and as of the Closing Date as if made on and as of the Closing Date. Seller
shall notify Buyer of any breach hereunder, and Buyer shall have thirty (30)
days after receiving such notice to cure such breach, which period shall be
extended for up to an additional thirty (30) days as long as Buyer
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is diligently pursuing cure, provided that in no event shall the Drop Dead
Date (as defined in Section 9.1.1 below) be extended pursuant hereto.
7.4 LITIGATION. There shall be no injunction, decree or order issued
or known by Buyer or Seller to be threatened by any court, governmental agency
or authority, or any litigation pending, known by Buyer or Seller(s) to be
threatened or instituted, challenging or seeking to prohibit or enjoin any of
the transactions contemplated by this Agreement or which would have a material
adverse effect on Seller's rights under this Agreement; provided, however, that
any such threatened matter shall be a contingency to Seller's obligation to
Close only if the threat (i) could reasonably be expected to result in a
proceeding or litigation that has a reasonable likelihood of success and (ii)
has occurred within three (3) months prior to Closing.
7.5 OPINION OF COUNSEL FOR BUYER. Seller shall have received the
written opinion of counsel for Buyer, reasonably satisfactory to Seller, dated
as of the Closing Date, in the form of attached EXHIBIT H.
7.6 NO TERMINATION OF AGREEMENT. This Agreement shall not have been
terminated by any party in accordance with the terms hereof.
8. COVENANTS OF SELLER AND BUYER.
8.1 ASSIGNMENT APPLICATION AND OTHER GOVERNMENTAL REPORTS AND
APPLICATIONS.
8.1.1 Seller and Buyer will cooperate with the other to prepare
and file the application for the assignment of the FCC Authorization to Buyer
(the "Assignment Application") as soon as possible after the Effective Date,
but in no event later than six (6) business days after the Effective Date.
8.1.2. Seller and Buyer will cooperate with the other to
prepare and file with the Federal Trade Commission and the Department of
Justice any required Hart-Scott-Rodino Notification and Report Forms for the
consummation of this transaction as soon as possible after the Effective
Date, but in no event later than twenty-two (22) business days after the
Effective Date.
8.1.3. Seller and Buyer will each provide the other party with
such assistance as may reasonably be requested in connection with the
preparation of any tax return, audit, or other examination by any taxing
authority or judicial or administrative proceeding relating to liability for
taxes, will each retain and provide to the other party all records and other
information that may be relevant to any such tax return, audit or
examination, proceeding or determination and will each provide the other
party with any final determination of any such audit or examination,
proceeding or
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determination that affects any amount required to be shown on any tax return
of the other party for any period. Without limiting the generality of the
foregoing, each of Buyer and Seller will retain, until the expiration of the
applicable statutes of limitation (including any extensions thereof), copies
of all tax returns supporting work schedules and other records relating to
tax periods or portions thereof ending on or prior to the Closing Date.
8.2 DESIGN, CONSTRUCTION, MANAGEMENT, OPERATION AND SWITCHING OF THE
SYSTEM PRIOR TO CLOSING. Except as otherwise stated in this Agreement, prior to
the Closing Date, Seller will retain all rights and obligations related to
managing, operating, switching, designing and constructing the System.
8.2.1. The System shall be constructed under Seller's overall
supervision and control, consistent with the requirements of the FCC's
policies that control of the System remain vested with Seller prior to
receipt of the FCC approval of the assignment of the FCC Authorization to
Buyer. Seller will exercise all commercially reasonable efforts to meet
applicable construction and operational deadlines specified in the rules and
regulations of the FCC so that substantially all of the commercially
significant highway and population centers within the Cellular Geographic
Service Area of CRS Station KNKR320 are covered by the composite 32 dBu
contours of said station prior to expiration of the FCC File No.
02909-CL-MP-97 construction permit, in accordance with EXHIBIT A-1 hereto, as
the CGSA is calculated under the formula method specified in Section
22.911(a)(1) of the FCC's rules, 47 C.F.R. ss.22.911(a)(1). Seller will
continue with the construction of the System and endeavor to complete the
System substantially in accordance with the build-out plan attached hereto as
EXHIBIT M (the "Build-out Plan"). To the extent that any aspect of the
construction of the System is not fully specified in the Build-out Plan or
that Seller finds it necessary to diverge from the specifications set forth
in the Build-out Plan in any significant respect, then, prior to performing
such construction, Seller will notify Buyer and, if requested, consult with
Buyer and implement the suggestions, proposals and recommendations of Buyer,
provided that the same are consistent with sound engineering practice. As
specified in the Build-out Plan, Seller will continue to utilize Buyer's
switch located in Mankato, Minnesota in the Minnesota 10 RSA and will, to the
extent feasible, use Nortel equipment for the cellular base stations. Seller
and Buyer will cooperate to enable Seller to purchase equipment for the
System from Nortel in a manner that maximizes the amount of discount on the
purchase of such equipment. This will be accomplished either by a direct
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purchase of equipment by Seller from Nortel or another vendor(s) or by a
purchase by Buyer from Nortel or another vendor(s) with a subsequent invoice
by Buyer to Seller, all in compliance with the FCC's control requirements.
8.2.2. Buyer shall serve as the unpaid construction manager
during the period from the Effective Date through either (i) the Closing Date
or (ii) the termination of this Agreement, subject to Seller's overall
supervision and control, taking into account, however, the proposals of Buyer
and Buyer's direct financial support. In this regard, Buyer shall assist
Seller with the purchase of certain equipment, as provided above, and manage
the installation and testing of equipment and facilities for the System. As
construction manager, Buyer shall be expected to carry out its
responsibilities in a professional and workman like manner consistent with
standards generally applicable to construction managers in the cellular radio
industry. Buyer shall provide Seller with bi-weekly progress reports and
shall notify Seller promptly of any problems which might prevent realization
of the system coverage and performance objectives described below in this
paragraph by the date specified therein. Seller shall have the right to
terminate Buyer as construction manager, upon fifteen (15) days prior notice,
(i) in the event of Buyer's gross negligence or intentional misconduct in its
role as construction manager, or (ii) if, for reasons within the reasonable
control of Buyer as construction manager exercising commercially reasonable
efforts, Buyer fails to comply substantially with the Build-out Plan and the
cellular station sites referred to in EXHIBIT M are not field tested and
ready for operation within 30 days following the dates set forth in the
deployment schedule included in EXHIBIT M. In the event of any termination as
described in the preceding sentence, Buyer shall cooperate in effecting a
smooth transition of its construction duties to another manager or to Seller,
as the case may be, and remain obligated to proceed to Closing in accordance
with the terms of this Agreement. In the event Seller terminates Buyer for
any other reason, then Buyer shall cooperate in effecting a smooth transition
of its construction duties to another manger or to Seller, as the case may
be, but Buyer may, at its option, terminate this Agreement, with return of
the Deposit to Buyer.
8.2.3. Buyer will advance funds to Seller for the buildout of the
System (including engineering design, consulting, towers, equipment and any
incidental costs in connection therewith, including sales and use taxes) from
the Effective Date through either (i) the Closing Date or (ii) the termination
of this Agreement, in the form of a loan on an as needed basis (the "Loan") that
is secured by the System Assets (other than the FCC Authorization). Buyer shall
advance funds under the Loan, at Buyer's option, either to Seller or directly to
a third-party vendor,
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contractor or agent, as specified in Section 8.2.3 below. The Loan shall not
bear interest from the Effective Date through June 30, 1999. Thereafter, the
Loan shall bear interest at the prime lending rate as announced from time to
time by Norwest Bank Minnesota, N.A. or its successors in interest. At
Closing, the entire principal balance of the Loan and any interest accrued
thereon shall be disposed of as described in Section 3.2 above. In the event
the parties do not proceed to Closing, then Seller shall repay the Loan in
full within forty (40) days after the date on which its is determined that
Closing will not occur (the "Termination Date"), and the outstanding balance
of the Loan as of the Termination Date shall bear interest from the
Termination Date through the date of repayment at the prime lending rate as
announced from time to time by Norwest Bank Minnesota, N.A. or its successors
in interest. The Loan shall be evidenced by a promissory note and secured by
a security agreement encumbering the System Assets and a pledge of the
membership interests of the LLC (as defined in Section 12.2 below) as the
holder of the FCC Authorization, in the form of EXHIBITS I, J-1, and J-2,
respectively, each of which shall be executed and delivered on the Effective
Date.
8.2.4. The following procedures shall apply to the build-out of
the System, which at all times and in all respects shall be subject to the
overall supervision and control of Seller, and advances of funds under the
Loan. FIRST, and from time to time, Buyer will provide to Seller's designated
representative a proposed purchase order (a "Proposal") for equipment,
services and other items pertaining to the build-out of the System. Seller
shall approve each Proposal or state its reasonable objections thereto within
two (2) business days of its receipt of same. Each Proposal that is approved
becomes a "Purchase Order." It is anticipated, but not required, that each
Purchase Order will include all items pertinent to the completion of
construction and installation of one or more cell sites, in accordance with
EXHIBIT M. Each Purchase Order will state a maximum price to be paid for all
items shown thereon. Buyer shall procure all such items at the lowest
possible cost, not to exceed the maximum shown in the Purchase Order, and any
savings that Buyer is able to implement shall be for the benefit of the
System. SECOND, Buyer (a) will place an order for all System hardware
included in each Purchase Order and make suitable arrangements for any
services and other items covered thereby and will confirm same in writing to
Seller, all within five (5) business days after receipt of each Purchase
Order, and (b) will notify Seller when all equipment covered by the Purchase
Order has been delivered to the site. THIRD, Buyer will exercise all
commercially reasonable diligence to install and test such equipment and
construct the cell site, and will notify Seller when the equipment at each
site has been installed and fully tested and the site is
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operational and ready to be placed into service (a "Completion Notice"). In
the event that any cell site will not be operational and ready to be placed
into service within thirty (30) days after the deployment date for such site
set forth in EXHIBIT M, then Buyer must notify Seller of such fact and
describe the reasons for the delay and the actions proposed to be taken to
expedite completion of the site, with an estimated completion date, as soon
as Buyer determines that a delay will occur. FOURTH, upon the receipt of a
Completion Notice (or on such earlier date as necessary to make timely
payments to all vendors), Seller will submit to Buyer a request for advance
under the Loan (a "Loan Request"). FIFTH, upon receipt of a Loan Request,
Buyer shall advance funds under the Loan as requested in the Loan Request, at
Buyer's option, either to Seller or to a third party vendor, contractor or
agent.
8.2.5. Seller and Buyer each acknowledges that the Build-out
Plan sets forth a system design and description that meets its satisfaction
in all respects. Furthermore, neither Seller nor Buyer makes any
representation or warranty to the other regarding the fitness of the System,
as constructed prior to Closing, for any particular purpose. Buyer
acknowledges that Seller, in order to implement the system design set forth
in the Build-out Plan in certain respects, will require the consents and
other agreements of other carriers and other third parties (for example,
securing consent for a 32 dBu contour extension). Obtaining such consents and
agreements may not be within Seller's control, and Seller may be required to
modify the System design in accordance with its inability to obtain certain
consents or agreements (subject to Seller's prior notification of Buyer and
implementation of Buyer's recommendations that are consistent with sound
engineering practice as provided above), in all events with the goal of
preserving as much as possible of the originally proposed coverage as
described in the Build-out Plan. To the extent that Seller does not complete
the construction of the System substantially in accordance with the Build-out
Plan and such failure is the result of the actions or inactions of Seller (as
opposed to the actions or inactions of Buyer, as Seller's construction
manager, or other actions or events beyond the reasonable control of Seller),
then (i) Seller agrees to appoint one of three engineers recommended by Buyer
to devise a plan to correct such failure, which shall include estimates of
costs associated therewith, and (ii) prior to Closing, and as a condition
thereof, a portion of the Purchase Price in an amount consistent with such
estimates shall be escrowed with the Escrow Agent and used to correct such
failure in accordance with the aforesaid plan (with any amounts left over to
be paid to, and any shortfalls to be paid by, Seller). Seller's inability to
implement fully the System (including coverage contours) as described in the
Build-out
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Plan because of actions or events beyond the reasonable control of Seller
will not result in any breach by Seller or liability of Seller under this
Agreement or constitute a failure of conditions precedent for Buyer to
proceed to Closing.
8.3 MANAGEMENT OF THE SYSTEM AFTER BUILD-OUT. In the event the Closing
has not occurred prior to June 30, 1999 and the "Group A Sites," as shown on
EXHIBIT M, have been constructed, field tested and ready for operation by that
date (unless failure to achieve such complete construction of the Group A Sites
is the result of the actions or inactions of Seller), Seller and Buyer agree to
enter into good faith negotiations for Seller to retain Buyer as compensated
manager of the System commencing June 30, 1999.
8.4 SELLER'S EMPLOYEES. All employees employed by Seller in connection
with the construction or operation of the System who are not principals in
Seller are disclosed in SCHEDULE 4 hereto. Seller will cooperate with Buyer in
allowing Buyer to enter into employment arrangements with such employees
immediately following the Closing.
9. PERMITTED TERMINATION OF AGREEMENT.
9.1 BY BUYER. Buyer shall have the right at any time on or before the
Closing Date unilaterally to terminate this Agreement without having any
liability to the Seller hereunder except with respect to obligations that
survive the termination of this Agreement, if:
9.1.1. The Closing has not occurred on or before September 30,
1999 (the "Drop Dead Date"); provided however, that the right to terminate
this Agreement under this Section 9.1.1 shall not be available to Buyer (i)
if the failure to Close by said date is the result of a material breach of
this Agreement by Buyer or (ii) while Buyer is in material breach of this
Agreement; or
9.1.2. Any of the representations or warranties of Seller
contained in this Agreement are incorrect in any material respect; or
9.1.3 Any of the contingencies contained in Section 6 of this
Agreement are not fulfilled, or cannot be fulfilled, on or before the Closing
Date; or
9.1.4 Seller is in material breach of this Agreement, which
material breach remains uncured by Seller thirty (30) days after receiving
written notice thereof from Buyer, which period shall be extended for up to
an additional thirty (30) days as long as Seller is diligently pursuing cure.
27
<PAGE>
9.2 BY SELLER. Seller shall have the right at any time on or before
the Closing Date unilaterally to terminate this Agreement without creating any
liability to Buyer hereunder except with respect to obligations that survive the
termination of this Agreement, if:
9.2.1. The Closing has not occurred on or before September 30,
1999 (the Drop Dead Date); provided, however, that the right to terminate
this Agreement under this Section 9.2.1 shall not be available (i) if the
failure to Close by said date is the result of a material breach of this
Agreement by Seller or (ii) while Seller is in material breach of this
Agreement; or
9.2.2 Any of the representations or warranties of Buyer or
Guarantor contained in this Agreement are incorrect in any material respect;
or
9.2.3. Any of the contingencies contained in Section 7 of this
Agreement are not fulfilled, or cannot be fulfilled, on or before the Closing
Date; or
9.2.4 Buyer or Guarantor is in material breach of this
Agreement, which material breach remains uncured by Buyer or Guarantor thirty
(30) days after receiving written notice thereof from Seller, which period
shall be extended for up to an additional thirty (30) days as long as Buyer
or Guarantor is diligently pursuing cure; or
9.3 EFFECT. Upon such termination in accordance with Sections 9.1 or
9.2, this Agreement shall be of no further force and effect except with respect
to the provisions of this Agreement that survive the termination hereof. Such
termination shall not be the basis for any liability of the terminating party.
In the event of such termination, all documents delivered by any party hereto
shall be returned to such party.
9.4 EXTENSION OF DROP-DEAD DATE. In the event that Closing is not
expected to occur by September 30, 1999, then (i) in the event that the FCC has
granted the FCC Approval and the parties are awaiting the grant to be by Final
Order, the Drop Dead Date will automatically be extended to permit the parties
to receive the Final Order and proceed to Closing under this Agreement, and (ii)
in the event that the FCC Approval has not been granted but Buyer and Seller
both have been advised by the Chief of the FCC's Commercial Wireless Division or
any senior attorney in said Division that the FCC Approval is imminent, the Drop
Dead Date will automatically be extended from September 30, 1999 until October
31, 1999. If the FCC Approval has been granted by October 31, 1999, then the
Drop Dead Date will automatically be extended further to permit the parties to
receive the Final Order and proceed to Closing under this
28
<PAGE>
Agreement. Additionally, Buyer shall have the unilateral option, by notifying
Seller no later than September 1, 1999, to extend the Drop Dead Date for one
additional three month period (I.E., until December 31, 1999) for any reason.
10. INDEMNIFICATION.
10.1 Each party ("Indemnitor") shall defend, indemnify, and
hold harmless the other party ("Indemnitee"), and the Indemnitee's directors,
officers, employees, agents, successors, assigns, heirs, and legal
representatives, from and against any and all damages, costs, expenses
(including reasonable attorneys' fees), claims, actions, liabilities, or
losses of any nature whatsoever (collectively the "Liabilities") to which the
Indemnitee may become subject as a result of (i) the breach of any of the
Indemnitor's covenants, (ii) the untruth or inaccuracy of any of the
Indemnitor's representations or warranties set forth herein, or (iii) the
injury or death of any individual, or the loss or damage to real or tangible
personal property, resulting from the acts or omissions of the Indemnitor or
its agents or employees. Indemnitor further agrees to indemnify, defend and
hold harmless Indemnitee against any and all debts, liabilities, choses in
action, or claims of any nature, absolute or contingent, resulting from any
such breach, untruth or inaccuracy, or acts or omissions, which may be
incurred to cure, compromise or defend such Liabilities, together with all
expenses, including, without limitation, court costs and reasonable legal and
other professional fees. It is understood that prior to seeking any remedy
under this Section 10, the Indemnitee shall notify the Indemnitor of the
breach, untruth, inaccuracy, acts or omissions that are the subject of
indemnification (to the extent the same is capable of being cured and such
cure would eradicate any actual or potential loss, liability or damage to the
Indemnitor), and that the Indemnitor shall have thirty (30) days after
receiving such notice to cure or correct such breach, untruth, inaccuracy,
acts or omissions, which period shall be extended for up to an additional
thirty (30) days as long as Indemnitor is diligently pursuing cure. This
Section 10 shall survive delivery by Buyer of the consideration to be given
by it hereunder, any cancellation or termination of this Agreement, including
without limitation any termination under Section 9 above, and the Closing
hereunder.
10.2 The parties each acknowledge and agree that no indemnification
claim for damages shall be made by any party under this Section 10 unless and
until the potential damage claim(s) by such party totals an aggregate of Twenty
Five Thousand Dollars ($25,000) or more.
11. CONFIDENTIALITY, PUBLICITY AND EXCLUSIVITY.
29
<PAGE>
11.1 CONFIDENTIALITY. From the Effective Date of this Agreement until
the Closing Date, and thereafter, it may be necessary for the parties mutually
to exchange certain information, data and material of a proprietary or
confidential nature, whether related to marketing, technical, financial and
other matters ("Confidential Information"). To be treated as Confidential
Information, information disclosed in writing shall be marked as confidential or
proprietary, and the disclosing party shall indicate the confidential nature of
the verbal information at the time of disclosure. All Confidential Information,
including, without limitation, this Agreement, shall: (i) be received and
retained in the strictest confidence by the parties and will be deemed to be
proprietary information of the disclosing party, and the recipient(s) agree(s)
that it (or they) will not disclose it to third parties other than in connection
with the transactions contemplated by this Agreement and further will treat such
information, data or material as proprietary using the same degree of care that
it (or they) would normally use in protecting it (or their) own proprietary
information; and (ii) be used by the parties hereto solely for the purpose of
implementing this Agreement. The provisions of this Section 11.1 shall not apply
to any Confidential Information which: (i) is known by the receiving party prior
to the date hereof, and is not subject to or in violation of any obligation of
confidentiality; (ii) is or becomes public knowledge other than by default of
the receiving party; or (iii) is obtained by the receiving party from a bona
fide third party having free right of disposal of such information.
11.2 PUBLICITY. Any party may announce the fact that this Agreement
has been entered into and, upon Closing, may announce that this transaction has
occurred. However, none of the parties hereto shall make any press release or
public announcement of the terms of this Agreement, without the prior written
consent of the non-disclosing parties. If any party is obligated by law or
regulation to make a disclosure, all parties hereto will use their best efforts
to cause a mutually agreeable disclosure to be issued.
11.3 EXCLUSIVITY. Seller hereby agrees not to enter into any
discussions, agreement(s) or other commitment(s) to transfer the System Assets
with any person or entity other than Buyer during the period commencing on the
Effective Date and ending upon the earlier to occur of the Closing Date or the
termination of this Agreement.
11.4 SURVIVAL. Sections 11.1 and 11.2 shall survive any cancellation
or termination of this Agreement, including without limitation any termination
under Section 9 above, and the Closing hereunder, for a period of two (2) years,
and shall otherwise lapse as of the Closing Date.
30
<PAGE>
12. PARTIES IN INTEREST; ASSIGNMENT.
12.1 GENERAL RULE. No party shall have the right to assign or
otherwise transfer its rights and obligations under this Agreement to any other
person or entity without the prior written consent of the other party hereto.
Any prohibited assignment shall be null and void. Subject to the foregoing, all
covenants and agreements contained in this Agreement by or on behalf of any of
the parties hereto shall bind and inure to the benefit of their respective
heirs, executors, successors and assigns, whether so expressed or not.
12.2 LLC FORMATION. Notwithstanding the foregoing, the parties
contemplate that Seller, prior to the Effective Date and prior to the Closing
Date, has created a wholly-owned limited liability company, to be organized in
the State of Minnesota (the "LLC"), to which Seller, on the Effective Date and
immediately after the execution of this Agreement, will transfer and assign the
FCC Authorization and the other System Assets. As a result of such transfer and
assignment, Seller will assign all of its rights and obligations under this
Agreement to the LLC, which shall accept and assume such rights and obligations
and become the "Seller" under this Agreement. Such transfer, assignment and
assumption described in the preceding two sentences shall be effected pursuant
to a bill of sale, assignment and assumption substantially in the form attached
hereto as EXHIBIT O. Also on the Effective Date, Seller will execute and deliver
to Buyer a guaranty in the form of EXHIBIT P attached hereto (the "Seller
Guaranty"), pursuant to which Seller will guaranty the performance by the LLC of
all of its obligations under this Agreement arising after the Effective Date. It
is further understood that Seller may dissolve the LLC after Closing, and that,
concurrently therewith, the LLC will reassign its rights under this Agreement to
Seller. No consent by either Seller or Buyer will be required for any of the
aforesaid transfers or assignments.
13. DISPUTE RESOLUTION. All disputes and claims under this Agreement
shall be resolved by binding arbitration in accordance with the Commercial Rules
of the American Arbitration Association then in effect. The party not prevailing
in the arbitration proceeding shall bear all costs associated with the
arbitration, including, without limitation, reasonable attorneys' fees of the
prevailing party.
14. CLOSING AND POST-CLOSING COVENANTS.
14.1 ADJUSTMENTS. Operation of the System and the income and expenses
attributable thereto up through the close of business on the day before the
Closing Date shall be for the account of Seller, and thereafter for the
31
<PAGE>
account of Buyer. The prorations and adjustments hereunder shall be made and
paid insofar as feasible on the Closing Date, with a final settlement sixty
(60) days after the Closing Date.
14.2 ACCOUNTS RECEIVABLE. Buyer shall promptly pay to Seller any
accounts receivable (including but not limited to customer and roaming revenues)
collected by Buyer after Closing that are attributable to periods prior to the
Closing Date. Similarly, Seller shall promptly pay to Buyer any accounts
receivable collected by Seller after Closing that pertain to periods after the
Closing Date.
15. MISCELLANEOUS PROVISIONS.
15.1 NOTICES. Except as otherwise provided in this Agreement, all
notices or other communications hereunder shall be deemed to have been duly
given when made in writing by an authorized representative of a party and
delivered to an authorized representative of the other party or parties either
1) in person or by facsimile transmission, 2) by an overnight courier,
messenger, or similar delivery service, or 3) by deposit into the United States
Mail, certified or registered mail, postage prepaid, and addressed as follows:
If to Seller to: McElroy Electronics Corporation
27-33 Fredonian Street
Shirley, Massachusetts 01464
Attention: John C. McElroy
Telephone: (978) 425-4055
Fax: (978) 425-6116
with a copy to: Gurman, Blask & Freedman, Chartered
1400 16th Street, N.W., Suite 500
Washington, D.C. 20036
Attention: Doane F. Kiechel
Telephone: (202) 328-8200
Fax: (202) 462-1784
If to Buyer to: Minnesota Southern Wireless Company
1650 Madison Avenue
Mankato, Minnesota 56002-3248
Attention: F. Ernest Lombard
Telephone: (888) 386-6430
Fax: (507) 386-3612
with a copy to: Blethen, Gage & Krause, PLLP
127 South Second Street
Mankato, Minnesota 56002-3049
Attention: Michael C. Karp
Telephone: (507) 345-1166
Fax: (507) 345-8003
32
<PAGE>
If to Guarantor to: Hickory Tech Corporation
221 E. Hickory Street
Mankato, Minnesota 56002-3248
Attention: David A Christensen
Telephone: (507) 387-1713
Fax: (507) 625-9191
with a copy to: Blethen, Gage & Krause, PLLP
127 South Second Street
Mankato, Minnesota 56002-3049
Attention: Michael C. Karp
Telephone: (507) 345-1166
Fax: (507) 345-8003
The address or fax number of a party to which notices or communications are to
be sent may be changed by written notice given by such party to the other party
pursuant to this Section 15.1. All notices or other communications shall be
effective upon delivery or attempted delivery as aforesaid.
15.2 CONSTRUCTION. The section headings in this Agreement are inserted
as a matter of convenience only and shall not affect the construction or the
terms of this Agreement in any way. Whenever required by the context of this
Agreement, the singular shall include the plural and the masculine shall include
the feminine and vice versa. This Agreement shall not be construed as if it had
been prepared by one of the parties, but rather as all the parties had prepared
the same. All exhibits referred to in this Agreement are attached and
incorporated by this reference.
15.3 THIRD PARTY RIGHTS. Nothing in this Agreement shall be deemed to
create any right with respect to any person or entity not a party to this
Agreement.
15.4 TIME IS OF THE ESSENCE. The parties hereby acknowledge and agree
that time is strictly of the essence with respect to each and every term,
condition, obligation and provision hereof.
15.5 SPECIFIC PERFORMANCE. Each party represents and warrants that,
because of the unique nature of the transactions contemplated by this Agreement,
the failure of any party to carry out its obligations to perform this Agreement
would cause irreparable injury. The parties accordingly agree that, in addition
to any other remedies available to a party, any such failure by any party to
perform this Agreement shall be subject to the remedy of specific performance.
33
<PAGE>
15.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as otherwise
expressly provided, all covenants, representations and warranties contained in
this Agreement shall survive for a period of two (2) years after the later to
occur of (i) any termination of this Agreement, including without limitation any
termination under Section 9 above, and (ii) the Closing hereunder, and shall
survive and continue notwithstanding any investigations by or on behalf of Buyer
or Seller at any time.
15.7 ENTIRE AGREEMENT. This Agreement (including all exhibits attached
hereto) is the final expression of, and contains the entire agreement between,
the parties with respect to the subject matter hereof and supersedes all prior
understandings with respect thereto. This Agreement may not be modified,
changed, supplemented, superseded, canceled or terminated, except by written
instrument signed by each and every party hereto, except as otherwise expressly
permitted herein.
15.8 PARTIAL INVALIDITY. If any term or provision of this Agreement or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is determined invalid or unenforceable, shall not be affected thereby, and
each such term and provision of this Agreement shall be valid, and shall be
enforced to the fullest extent permitted by law.
15.9 WAIVERS. No waiver of any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision contained herein. No extension of
time for performance of any other obligation or act shall be deemed an extension
of time for performance of any other obligation or act.
15.10 EXPENSES. Whether or not the Closing occurs, each party to this
Agreement shall pay any and all fees and expenses that such party may incur in
connection with the negotiation, execution or closing of the transactions
contemplated by this Agreement, including the preparation, filing and
prosecution of its portion of the applications and other materials required
under this Agreement, provided that (i) Seller and Buyer shall each be
responsible for and shall pay fifty percent (50%) of any charges, fees or taxes
(including any transfer taxes but in all instances excluding income and capital
gains taxes) incurred in connection with or arising out of the Closing, and (ii)
Buyer shall be responsible for the filing fee for any Hart-Scott-Rodino filing.
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<PAGE>
15.11 FURTHER ASSURANCES. Each party hereto agrees to cooperate with
the others in obtaining the FCC Approval, and to take all such actions and
execute, acknowledge and deliver any and all additional papers, documents and
other assurances, as are reasonably necessary in connection with the performance
of its obligations hereunder and to carry out the intent of the parties.
15.12 SURVIVAL. In addition to those Sections or subsections of this
Agreement that expressly contain a survival provision, the parties agree that
where the context of any provision indicates an intent that such provision shall
survive any cancellation or termination of this Agreement and the Closing
hereunder, then it shall survive.
15.13 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be
deemed or construed by the parties to create a fiduciary relationship between
Buyer/Guarantor and Seller, a relationship of principal and agent between
Buyer/Guarantor and Seller, or a joint venture or any other association between
Buyer/Guarantor and Seller.
15.14 AUTHORITY. Each party hereby covenants and warrants that the
person or persons signing on its behalf is or are authorized to do so.
15.15 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first above written.
Seller:
MCELROY ELECTRONICS CORPORATION,
a Massachusetts Corporation
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
Buyer:
MINNESOTA SOUTHERN WIRELESS COMPANY,
a Minnesota Corporation
By:
------------------------------------
Name:
----------------------------------
35
<PAGE>
Its:
-----------------------------------
Guarantor:
HICKORY TECH CORPORATION,
a Minnesota Corporation
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
36
<PAGE>
<TABLE>
<CAPTION>
LIST OF SCHEDULES AND EXHIBITS
------------------------------
<S> <C>
SCHEDULE 1 - List of System Assets
- ---------
SCHEDULE 2 - List of Permitted Encumbrances
- ---------
SCHEDULE 3 - Divisional Financial Statements
- ---------
SCHEDULE 4 - Seller's Employees
- ---------
EXHIBIT A - Map of the Market
- ---------
EXHIBIT A-1 - Application for Major Modification
- -----------
EXHIBIT B - Form of Bill of Sale, Assignment and Assumption (Seller and Buyer)
- ---------
EXHIBIT C - Form of Escrow Agreement
- ---------
EXHIBIT D - Copy of FCC Authorization
- ---------
EXHIBIT E-1 - Litigation Disclosure (Seller)
- -----------
EXHIBIT E-2 - Litigation Disclosure (Buyer)
- -----------
EXHIBIT F - List of Contracts
- ---------
EXHIBIT G-1 - Form of Opinion of Corporate Counsel for Seller
- -----------
EXHIBIT G-2 - Form of Opinion of Corporate Counsel for the LLC
- -----------
EXHIBIT G-3 - Form of Opinion of FCC Counsel for Seller and the LLC
- -----------
EXHIBIT H - Form of Opinion of Counsel for Buyer and Guarantor
- ---------
EXHIBIT I - Form of Promissory Note
- ---------
EXHIBIT J-1 - Form of Security Agreement (Seller to Buyer)
- -----------
EXHIBIT J-2 - Form of Pledge Agreement (Seller to Buyer)
- -----------
EXHIBIT J-3 - Form of Security Agreement (LLC to Buyer)
- -----------
EXHIBIT K - Form of Non-competition agreement
- ---------
EXHIBIT L - Form of Guarantor Guaranty
- ---------
EXHIBIT M - Build-out Plan
- ---------
EXHIBIT N-1 - Certificate of Authority (Seller)
- -----------
EXHIBIT N-2 - Certificate of Authority (Buyer)
- -----------
EXHIBIT O - Form of Bill of Sale, Assignment and Assumption (Seller and LLC)
- ---------
EXHIBIT P - Form of Seller Guaranty
- ---------
</TABLE>
The above mentioned schedules and exhibits have been omitted. The Company agrees
to furnish supplementally a copy of any omitted schedule to the Commission upon
request.
37
<PAGE>
Exhibit 10.1
- -------------------------------------------------------------------------------
$90,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of May 28, 1999,
by and among
HICKORY TECH CORPORATION ,
as Borrower,
the Lenders referred to herein,
and
FIRST UNION NATIONAL BANK,
as Administrative Agent
FIRST UNION CAPITAL MARKETS CORP.
acted as Lead Arranger
- -------------------------------------------------------------------------------
38
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Credit EDGAR
Agreement Filing
Page Page
------------ --------
<S> <C> <C>
ARTICLE I DEFINITIONS 1 43
SECTION 1.1 Definitions 1 43
SECTION 1.2 General 14 56
SECTION 1.3 Other Definitions and Provisions 15 57
ARTICLE II REVOLVING CREDIT FACILITY 15 57
SECTION 2.1 Revolving Credit Loans 15 57
SECTION 2.2 Procedure for Advances of Loans 15 57
SECTION 2.3 Repayment of Loans 16 58
SECTION 2.4 Notes. 17 59
SECTION 2.5 Permanent Reduction of the Aggregate Commitment 18 60
SECTION 2.6 Termination of Credit Facility 19 61
SECTION 2.7 Use of Proceeds 19 61
ARTICLE III LETTER OF CREDIT FACILITY 19 61
SECTION 3.1 L/C Commitment 19 61
SECTION 3.2 Procedure for Issuance of Letters of Credit 20 62
SECTION 3.3 Commissions and Other Charges 20 62
SECTION 3.4 L/C Participations 21 63
SECTION 3.5 Reimbursement Obligation of the Borrower 22 64
SECTION 3.6 Obligations Absolute 22 64
SECTION 3.7 Effect of Application 23 65
ARTICLE IV GENERAL LOAN PROVISIONS 23 65
SECTION 4.1 Interest 23 65
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans 25 67
SECTION 4.3 Fees 26 68
SECTION 4.4 Manner of Payment 26 68
SECTION 4.5 Crediting of Payments and Proceeds 27 69
SECTION 4.6 Adjustments 27 69
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of Credit;
Assumption by the Administrative Agent 27 69
SECTION 4.8 Changed Circumstances 28 70
SECTION 4.9 Indemnity 30 72
SECTION 4.10 Capital Requirements 30 72
SECTION 4.11 Taxes 31 73
39
<PAGE>
<S> <C> <C>
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING 32 74
SECTION 5.1 Closing 32 74
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit 32 74
SECTION 5.3 Conditions to All Loans and Letters of Credit 36 78
SECTION 5.4 Conditions to Funding the McElroy Acquisition 36 78
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWER 37 79
SECTION 6.1 Representations and Warranties 37 79
SECTION 6.2 Survival of Representations and Warranties, Etc 45 87
ARTICLE VII FINANCIAL INFORMATION AND NOTICES 45 87
SECTION 7.1 Financial Statements and Projections 45 87
SECTION 7.2 FCC and PUC Matters. 46 88
SECTION 7.3 Officer's Compliance Certificate 47 89
SECTION 7.4 Accountants' Certificate 47 89
SECTION 7.5 Other Reports 47 89
SECTION 7.6 Notice of Litigation and Other Matters 47 89
SECTION 7.7 Accuracy of Information 48 90
ARTICLE VIII AFFIRMATIVE COVENANTS 49 91
SECTION 8.1 Preservation of Corporate Existence and Related Matters 49 91
SECTION 8.2 Maintenance of Property 49 91
SECTION 8.3 Insurance 49 91
SECTION 8.4 Accounting Methods and Financial Records 49 91
SECTION 8.5 Payment and Performance of Obligations 49 91
SECTION 8.6 Compliance With Laws and Approvals 50 92
SECTION 8.7 Environmental Laws 50 92
SECTION 8.8 Compliance with ERISA 50 92
SECTION 8.9 Compliance With Agreements 50 92
SECTION 8.10 Conduct of Business 51 93
SECTION 8.11 Visits and Inspections 51 93
SECTION 8.12 Year 2000 Compatibility 51 93
SECTION 8.13 Further Assurances 51 93
ARTICLE IX FINANCIAL COVENANTS 51 93
SECTION 9.1. Maximum Leverage Ratio 52 94
SECTION 9.2 Total Capitalization Ratio. 52 94
SECTION 9.3. Fixed Charge Coverage Ratio 52 94
ARTICLE X NEGATIVE COVENANTS 52 94
SECTION 10.1 Limitations on Debt 52 94
SECTION 10.2 Limitations on Liens 53 95
SECTION 10.3 Limitations on Loans, Advances, Investments and Acquisitions 54 96
40
<PAGE>
<S> <C> <C>
SECTION 10.4 Limitations on Mergers and Liquidation 55 97
SECTION 10.5 Limitations on Sale of Assets 55 97
SECTION 10.6 Limitations on Dividends and Distributions 56 98
SECTION 10.7 Limitations on Exchange and Issuance of Capital Stock 56 98
SECTION 10.8 Transactions with Affiliates. 56 98
SECTION 10.9 Certain Accounting Changes 57 99
SECTION 10.10 Amendments; Payments and Prepayments 57 99
SECTION 10.11 Restrictive Agreements 57 99
ARTICLE XI DEFAULT AND REMEDIES 57 99
SECTION 11.1 Events of Default 57 99
SECTION 11.2 Remedies 60 102
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc 61 103
ARTICLE XII THE ADMINISTRATIVE AGENT 61 103
SECTION 12.1 Appointment 61 103
SECTION 12.2 Delegation of Duties 62 104
SECTION 12.3 Exculpatory Provisions 62 104
SECTION 12.4 Reliance by the Administrative Agent 62 104
SECTION 12.5 Notice of Default 63 105
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders 63 105
SECTION 12.7 Indemnification 64 106
SECTION 12.8 The Administrative Agent in Its Individual Capacity 64 106
SECTION 12.9 Resignation of the Administrative Agent; Successor Administrative Agent 64 106
ARTICLE XIII MISCELLANEOUS 65 107
SECTION 13.1 Notices 65 107
SECTION 13.2 Expenses; Indemnity 66 108
SECTION 13.3 Set-off 66 108
SECTION 13.4 Governing Law 67 109
SECTION 13.5 Consent to Jurisdiction 67 109
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial 67 109
SECTION 13.7 Reversal of Payments 68 110
SECTION 13.8 Injunctive Relief; Punitive Damages 69 111
SECTION 13.9 Accounting Matters 69 111
SECTION 13.10 Successors and Assigns; Participations 70 112
SECTION 13.11 Amendments, Waivers and Consents 74 116
SECTION 13.12 Performance of Duties 74 116
SECTION 13.13 All Powers Coupled with Interest 74 116
SECTION 13.14 Survival of Indemnities 74 116
SECTION 13.15 Titles and Captions 74 116
SECTION 13.16 Severability of Provisions 75 117
41
<PAGE>
<S> <C> <C>
SECTION 13.17 Counterparts 75 117
SECTION 13.18 Term of Agreement 75 117
SECTION 13.19 Inconsistencies with Other Documents; Independent Effect of Covenants 75 117
</TABLE>
42
<PAGE>
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Prepayment
Exhibit D - Form of Notice of Conversion/Continuation
Exhibit E - Form of Officer's Compliance Certificate
Exhibit F - Form of Assignment and Acceptance
Exhibit G - Form of Notice of Account Designation
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(l) - Material Contracts
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(s) - Debt and Guaranty Obligations
Schedule 6.1(t) - Litigation
Schedule 6.1(w) - Network Agreements, FCC Licenses and PUC Authorizations
Schedule 10.2 - Existing Liens
Schedule 10.3 - Existing Loans, Advances and Investments
The above mentioned exhibits and schedules have been omitted. The Company agrees
to furnish supplementally a copy of any omitted schedule to the Commission upon
request.
43
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 28th day of May, 1999 by
and among HICKORY TECH CORPORATION, a Minnesota corporation (the "Borrower"),
the Lenders who are or may become a party to this Agreement, and FIRST UNION
NATIONAL BANK, a national banking association, as Administrative Agent for the
Lenders.
STATEMENT OF PURPOSE
The Borrower, certain financial institutions (the "Prior Lenders") and
First Union, as administrative agent therefor, are a party to that certain loan
agreement dated as of April 29, 1998 (as amended, restated or otherwise modified
prior to the date hereof, the "Prior Credit Agreement") under the terms of which
the Prior Lenders provided the Borrower with a $45,000,000 revolving credit
facility. The Borrower, the Lenders (including certain of the Prior Lenders) and
the Administrative Agent now desire to amend and restate the provisions of the
Prior Credit Agreement to (a) provide for an increase the aggregate commitment
of such revolving credit facility and (b) extend the maturity date of such
revolving credit facility, in each case, pursuant to the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. The following terms when used in this Agreement shall
have the meanings assigned to them below:
"ACQUISITION AGREEMENT" means that certain Purchase and Sale Agreement
dated December 22, 1998 by and between McElroy Electronics Corporation, as
seller and Minnesota Southern Wireless Company, a Wholly-Owned Subsidiary of the
Borrower, as buyer.
"AFFILIATE" means, with respect to any Person, any other Person (other than
a Subsidiary) which directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such first
Person or any of its Subsidiaries. The term "control" means (a) the power to
vote ten percent (10%) or more of the securities or other equity interests of a
Person having ordinary voting power, or (b) the possession, directly or
indirectly, of any other power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"ADMINISTRATIVE AGENT" means First Union in its capacity as Administrative
Agent hereunder, and any successor thereto appointed pursuant to Section 12.9.
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"ADMINISTRATIVE AGENT'S OFFICE" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1.
"AGGREGATE COMMITMENT" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any time or
from time to time pursuant to the terms hereof. On the Closing Date, the
Aggregate Commitment shall be Ninety Million Dollars and No/100 ($90,000,000).
"AGREEMENT" means this Amended and Restated Credit Agreement, as further
amended, restated or otherwise modified.
"APPLICABLE LAW" means all applicable provisions of constitutions, laws,
statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.
"APPLICABLE MARGIN" shall have the meaning assigned thereto in Section
4.1(c).
"APPLICATION" means an application, in the form specified by the Issuing
Lender from time to time, requesting the Issuing Lender to issue a Letter of
Credit.
"ARBITRATION RULES" shall have the meaning assigned thereto in Section
13.6(a).
"ASSIGNMENT AND ACCEPTANCE" shall have the meaning assigned thereto in
Section 13.10.
"AUTHORIZATIONS" means all applications, filings, reports, documents,
recordings and registrations with, and all validations, exemptions, franchises,
waivers, approvals, orders or authorizations, consents, licenses, certificates
and permits from, a Governmental Authority.
"AVAILABLE COMMITMENT" means, as to any Lender at any time, an amount equal
to the excess, if any, of (a) such Lender's Commitment LESS (b) such Lender's
Extensions of Credit.
"BASE RATE" means, at any time, the higher of (a) the Prime Rate or (b) the
Federal Funds Rate PLUS 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime Rate
or the Federal Funds Rate.
"BASE RATE LOAN" means any Loan bearing interest at a rate based upon the
Base Rate as provided in Section 4.1(a).
"BENEFITED LENDER" shall have the meaning assigned thereto in Section 4.6.
"BORROWER" means Hickory Tech Corporation in its capacity as borrower
hereunder.
"BUSINESS DAY" means (a) for all purposes other than as set forth in clause
(b) below, any day (other than a Saturday, Sunday or legal holiday) on which
banks in Charlotte, North Carolina and New York, New York, are open for the
conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
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"CAPITAL ASSET" means, with respect to the Borrower and its Subsidiaries,
any asset that should, in accordance with GAAP, be classified and accounted for
as a capital asset on a Consolidated balance sheet of the Borrower and its
Subsidiaries.
"CAPITAL EXPENDITURES" means, with respect to the Borrower and its
Subsidiaries for any period, the aggregate cost of all Capital Assets acquired
by any such Person during such period, determined in accordance with GAAP.
"CAPITAL LEASE" means, with respect to the Borrower and its Subsidiaries,
any lease of any property by the Borrower or any of its Subsidiaries, as lessee,
that should, in accordance with GAAP, be classified and accounted for as a
capital lease on a Consolidated balance sheet of the Borrower and its
Subsidiaries.
"CHANGE IN CONTROL" shall have the meaning assigned thereto in Section
11.1(i).
"CLOSING DATE" means the date of this Agreement or such later Business Day
upon which each condition described in Section 5.2 shall be satisfied or waived
in all respects in a manner acceptable to the Administrative Agent, in its sole
discretion.
"COBANK" shall have the meaning assigned thereto in Section 8.14.
"CODE" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended, supplemented or otherwise modified.
"COMMITMENT" means, as to any Lender, the obligation of such Lender to make
Loans to and issue or participate in Letters of Credit issued for the account of
the Borrower hereunder in an aggregate principal or face amount at any time
outstanding not to exceed the amount set forth opposite such Lender's name on
Schedule 1 hereto, as the same may be reduced or modified at any time or from
time to time pursuant to the terms hereof.
"COMMITMENT PERCENTAGE" means, as to any Lender at any time, the ratio of
(a) the amount of the Commitment of such Lender to (b) the Aggregate Commitment.
"CONSOLIDATED" means, when used with reference to financial statements or
financial statement items of the Borrower and its Subsidiaries, such statements
or items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
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"CREDIT FACILITY" means the collective reference to the Revolving Credit
Facility and the L/C Facility.
"DEBT" means, with respect to the Borrower and its Subsidiaries at any date
and without duplication, the sum of the following calculated in accordance with
GAAP: (a) all liabilities, obligations and indebtedness for borrowed money
including but not limited to obligations evidenced by bonds, debentures, notes
or other similar instruments of any such Person, (b) all obligations to pay the
deferred purchase price of property or services of any such Person, except trade
payables arising in the ordinary course of business not more than ninety (90)
days past due, (c) all obligations of any such Person as lessee under Capital
Leases, (d) all Debt of any other Person secured by a Lien on any asset of any
such Person, (e) all Guaranty Obligations of any such Person, (f) all
obligations, contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn, including without limitation
any Reimbursement Obligation, and banker's acceptances issued for the account of
any such Person and (g) all obligations incurred by any such Person pursuant to
Hedging Agreements.
"DEBT SERVICE" means, with respect to the Borrower and its Subsidiaries for
any period, the sum of the following, each calculated for such period on a
Consolidated basis without duplication in accordance with GAAP: (a) Interest
Expense plus (b) all scheduled principal payments or similar amounts required to
be paid with respect to Total Debt (other than mandatory prepayments required
pursuant to Section 2.3).
"DEFAULT" means any of the events specified in Section 11.1 which with the
passage of time, the giving of notice or any other condition, would constitute
an Event of Default.
"DOLLARS" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"EBITDA" means, with respect to the Borrower and its Subsidiaries for any
period, the sum of the following, calculated on a Consolidated basis without
duplication, in accordance with GAAP: (a) Net Income for such period PLUS (b)
the sum of the following, to the extent deducted in determining Net Income (i)
Interest Expense, (ii) income, franchise and excess profit taxes paid or
payable, (iii) depreciation, amortization and other similar non-cash charges and
(iv) extraordinary losses (for purposes hereof, such extraordinary losses to
include any losses attributable to the sale or other disposition of any (A)
Wholly-Owned Subsidiary, (B) Investment Ownership Interest or (C) any other
asset) LESS (c) any extraordinary gains (for purposes hereof, any extraordinary
gains to include any gains attributable to the sale or other disposition of any
(A) Wholly-Owned Subsidiary, (B) Investment Ownership Interest or (C) any other
asset), to the extent added in determining Net Income. For any Permitted
Acquisition or sale by the Borrower or any Subsidiary during any period of
calculation, the EBITDA shall be adjusted in a manner reasonably satisfactory to
the Administrative Agent to give effect to such Permitted Acquisition or sale,
as if such Permitted Acquisition or sale occurred on the first day of the
period.
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"ELIGIBLE ASSIGNEE" means, with respect to any assignment of the rights,
interest and obligations of a Lender hereunder, a Person that is at the time of
such assignment (a) a commercial bank organized under the laws of the United
States or any state thereof, having combined capital and surplus in excess of
$500,000,000, (b) a commercial bank organized under the laws of any other
country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender), (e) the successor
(whether by transfer of assets, merger or otherwise) to all or substantially all
of the commercial lending business of the assigning Lender, (f) a
special-purpose investment fund which is organized for the specific purpose of
making, acquiring participations in or investing in loans of the type made
pursuant to this Agreement, or (g) any other Person that has been approved in
writing as an Eligible Assignee by the Borrower and the Administrative Agent.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the meaning
of Section 3(3) of ERISA which (a) is maintained for employees of the Borrower
or any ERISA Affiliate or (b) has at any time within the preceding six years
been maintained for the employees of the Borrower or any current or former ERISA
Affiliate.
"ENVIRONMENTAL CLAIMS" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations (other than
internal reports prepared by any Person in the ordinary course of business and
not in response to any third party action or request of any kind) or proceeds
relating in any way to any actual or alleged violation of or liability under any
Environmental Law or relating to any permit issued, or any approval given, under
any such Environmental Law, including, without limitation, any and all claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages, contribution, indemnification cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to human health or the environment.
"ENVIRONMENTAL LAWS" means any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to
the protection of human health or the environment, including, but not limited
to, requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and the
rules and regulations thereunder, each as amended, supplemented or otherwise
modified.
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"ERISA AFFILIATE" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City.
"EVENT OF DEFAULT" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"EXTENSIONS OF CREDIT" means, as to any Lender at any time (a) an amount
equal to the sum of (i) the aggregate principal amount of all Loans made by such
Lender then outstanding and (ii) such Lender's Commitment Percentage of the L/C
Obligations then outstanding or (b) the making of any Loan or participation in
any Letter of Credit by any Lender, as the context requires.
"FCC" means the Federal Communications Commission and any successor
governmental agency performing functions similar to those performed by the
Federal Communications Commission on the date hereof.
"FCC LICENSE" means any cellular, mobile telecommunications, specialized
mobile radio, microwave or other license, permit, consent, certificate of
compliance, franchise, approval, waiver or authorization granted or issued by
the FCC.
"FDIC" means the Federal Deposit Insurance Corporation, or any successor
thereto.
"FEE LETTER" means that certain fee letter dated March 25, 1999 among the
Borrower, First Union and First Union Capital Markets Corp.
"FEDERAL FUNDS RATE" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"FIRST UNION" means First Union National Bank, a national banking
association, and its successors.
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"FISCAL YEAR" means the fiscal year of the Borrower and its
Subsidiaries ending on December 31.
"FIXED CHARGES" means, with respect to the Borrower and its
Subsidiaries, as of any date, the sum of the following, each calculated on a
Consolidated basis without duplication in accordance with GAAP for the period of
four consecutive fiscal quarters ending on or immediately prior to such date:
(a) Debt Service PLUS (b) Capital Expenditures, PLUS (c) income, and excess
profit taxes paid or payable PLUS (d) dividends paid or payable by the Borrower
pursuant to Section 10.6(c).
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries throughout the period indicated
(subject to Section 13.9) and consistent with the prior financial practice of
the Borrower and its Subsidiaries.
"GOVERNMENTAL APPROVALS" means all Authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any nation, province, state or political
subdivision thereof, 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.
"GUARANTY OBLIGATION" means, with respect to the Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); PROVIDED, that the term Guaranty
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
"HAZARDOUS MATERIALS" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Applicable Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Environmental or Common Law, (d) the discharge or emission or release of
which requires a permit or license under any Environmental Law or other
Governmental Approval, (e) which are deemed to constitute a nuisance or a
trespass or which pose a health or safety hazard to Persons or neighboring
properties, (f) which consist of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance, or (g) which
contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived
substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
"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 the Borrower under this Agreement, and any
confirming letter executed pursuant to such hedging agreement, all as amended,
restated, supplemented or otherwise modified from time to time.
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"INTEREST EXPENSE" means, with respect to the Borrower and its
Subsidiaries for any period, aggregate interest expense thereof with respect to
Total Debt (and, to the extent not included therein, interest expense
attributable to Capital Leases, the commitment fees payable hereunder and any
fees and charges with respect to any other Debt, and any fees, charges and other
net obligations payable with respect to any Hedging Agreements).
"INTEREST PERIOD" shall have the meaning assigned thereto in Section
4.1(b).
"ISPA98" means the International Standby Practices (1998 Revision,
effective January 1, 1999), International Chamber of Commerce Publication No.
590.
"INVESTMENT OWNERSHIP INTERESTS" means, with regard to any Person that
is not directly or indirectly a Wholly-Owned Subsidiary of the Borrower, any
shares of stock of any class or any other equity ownership interest of such
Person that is owned by the Borrower and/or one or more of its Subsidiaries.
"ISSUING LENDER" means First Union, in its capacity as issuer of any
Letter of Credit, or any successor thereto.
"L/C COMMITMENT" means the lesser of (a) Ten Million Dollars
($10,000,000) and (b) the Aggregate Commitment.
"L/C FACILITY" means the letter of credit facility established pursuant
to Article III hereof.
"L/C OBLIGATIONS" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
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"L/C PARTICIPANTS" means the collective reference to all the Lenders
other than the Issuing Lender.
"LENDER" means each Person executing this Agreement as a Lender
(including, without limitation, the Issuing Lender unless the context otherwise
requires) set forth on the signature pages hereto and each Person that hereafter
becomes a party to this Agreement as a Lender pursuant to Section 13.10.
"LENDING OFFICE" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"LETTERS OF CREDIT" shall have the meaning assigned thereto in
Section 3.1.
"LEVERAGE RATIO" shall have the meaning assigned thereto in Section
9.1.
"LIBOR" means the rate of interest per annum determined on the basis
of the rate for deposits in Dollars in minimum amounts of at least $5,000,000
for a period equal to the applicable Interest Period which appears on the Dow
Jones Market Screen 3750 at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of the applicable Interest Period. If,
for any reason, such rate does not appear on Dow Jones Market Screen 3750,
then "LIBOR" shall be determined by the Administrative Agent to be the
arithmetic average of the rate per annum at which deposits in Dollars in
minimum amounts of at least $5,000,000 would be offered by first class banks
in the London interbank market to the Administrative Agent approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period. Each
calculation by the Administrative Agent of LIBOR shall be conclusive and
binding for all purposes, absent manifest error.
"LIBOR RATE" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
------------------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR RATE LOAN" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 4.1(a).
"LIEN" means, with respect to any asset, any mortgage, lien pledge,
charge, security interest, hypothecation or encumbrance of any kind in respect
of such asset. For the purposes of this Agreement, a Person shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
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"LOANS" means any revolving credit loans made to the Borrower pursuant
to Section 2.1, and "Loan" means any of such Loans.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Applications, any Hedging Agreement with any Lender (which such Hedging
Agreement is permitted hereunder), and each other document, instrument and
agreement executed and delivered by the Borrower, its Subsidiaries or their
counsel in connection with this Agreement or otherwise referred to herein, all
as may be amended, restated or otherwise modified.
"MATERIAL ADVERSE EFFECT" means, with respect to the Borrower or any of
its Subsidiaries, a material adverse effect (a) on the properties, business,
prospects, operations or condition (financial or otherwise) of the Borrower and
its Subsidiaries, taken as whole (b) on the ability of the Borrower to perform
its obligations under the Senior Notes, any Loan Document or Material Contracts,
in each case, to which it is a party, or (c) on the validity or enforceability
of any Loan Document or the Senior Notes.
"MATERIAL CONTRACT" means (a) any contract or other agreement, written
or oral, of the Borrower or any of its Subsidiaries involving monetary liability
of or to any such Person in an amount in excess of $1,000,000 per annum, or (b)
any other contract or agreement, written or oral, of the Borrower or any of its
Subsidiaries the failure to comply with which could reasonably be expected to
have a Material Adverse Effect.
"MCELROY ACQUISITION" means the acquisition by Minnesota Southern
Wireless Company, a Wholly-Owned Subsidiary of the Borrower, of a cellular
license and related assets from McElroy Electronics Corporation pursuant to the
terms of the Acquisition Agreement.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, or has accrued an obligation to make
contributions within the preceding six years.
"NET CASH PROCEEDS" means, as applicable, (a) with respect to any sale
or other disposition of assets, the gross cash proceeds received by the Borrower
or any of its Subsidiaries from such sale LESS the sum (i) all income and excess
profit taxes assessed by a Governmental Authority as a result of such sale and
any other reasonable fees and expenses actually incurred in connection therewith
and (ii) the principal amount of, premium, if any, and interest on any Debt
secured by a Lien on the asset (or a portion thereof) sold, which Debt is
required to be repaid in connection with such sale, (b) with respect to any
offering of capital stock or issuance of Debt, the gross cash proceeds received
by the Borrower or any of its Subsidiaries therefrom LESS all reasonable legal,
underwriting and other fees and expenses actually incurred in connection
therewith, and (c) with respect to any payment under an insurance policy or in
connection with a condemnation proceeding, the amount of cash proceeds received
by the Borrower or its Subsidiaries from an insurance company or Governmental
Authority, as applicable, net of all reasonable expenses of collection actually
incurred.
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"NET INCOME" means, with respect to the Borrower and its Subsidiaries
for any period, calculated on a Consolidated basis without duplication, in
accordance with GAAP, the net income (or loss) thereof for such period.
"NETWORK AGREEMENT" means an agreement pursuant to which the Borrower
or any Subsidiary connects one or more of its Telecommunications Systems to one
or more Telecommunications Systems operated by any other Person, excluding any
roaming agreements to which the Borrower is a party.
"NOTES" means the collective reference to the revolving credit notes
made by the Borrower payable to the order of each lender, substantially in the
form of EXHIBIT A hereto, evidencing the Revolving Credit Facility, and any
amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part
and "Note" means any of such Notes.
"NOTICE OF ACCOUNT DESIGNATION" shall have the meaning assigned thereto
in Section 2.2(b).
"NOTICE OF BORROWING" shall have the meaning assigned thereto in
Section 2.2(a).
"NOTICE OF CONVERSION/CONTINUATION" shall have the meaning assigned
thereto in Section 4.2.
"NOTICE OF PREPAYMENT" shall have the meaning assigned thereto in
Section 2.3(c).
"OBLIGATIONS" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans,
(b) the L/C Obligations, and (c) all other fees and commissions (including
attorney's fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by the Borrower to
the Lenders or the Administrative Agent, of every kind, nature and
description, direct or indirect, absolute or contingent, due or to become
due, contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any note, and whether or not for the payment of money under or
in respect of this Agreement, any Note, any Letter of Credit or any of the
other Loan Documents.
"OFFICER'S COMPLIANCE CERTIFICATE" shall have the meaning assigned
thereto in Section 7.3
"OTHER TAXES" shall have the meaning assigned thereto in Section
4.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor agency.
"PARTICIPATION CERTIFICATES" shall have the meaning assigned thereto
in Section 8.14.
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"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA
or Section 412 of the Code and which (a) is maintained for employees of the
Borrower or any ERISA Affiliates or (b) has at any time within the preceding
six years been maintained for the employees of the Borrower or any of their
current or former ERISA Affiliates.
"PERMITTED LIENS" means those Liens permitted by Section 10.2.
"PERSON" means an individual, corporation, limited liability
company, partnership, association, trust, business trust, joint venture,
joint stock company, pool, syndicate, sole proprietorship, unincorporated
organization, Governmental Authority or any other form of entity or group
thereof.
"PERMITTED ACQUISITIONS" mean any acquisition by the Borrower
permitted by Section 10.3(c).
"PRIME RATE" means, at any time, the rate of interest per annum
publicly announced from time to time by First Union as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of business on the
day such change in the Prime Rate occurs. The parties hereto acknowledge that
the rate announced publicly by First Union as its Prime Rate is an index or base
rate and shall not necessarily be its lowest or best rate charged to its
customers or other banks.
"PUC" means any state regulatory agency or body that exercises
jurisdiction over the rates or services or the ownership, construction or
operation of any Telecommunications Systems.
"REGISTER" shall have the meaning assigned thereto in Section 13.10(d).
"REIMBURSEMENT OBLIGATION" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"REQUIRED LENDERS" means, at any date, any combination of holders of
at least fifty-one percent (51%) of the aggregate unpaid principal amount of
the Notes, or if no amounts are outstanding under the Notes, any combination
of Lenders whose Commitment Percentages aggregate at least fifty-one percent
(51%).
"RESPONSIBLE OFFICER" means any of the following: the chief
executive officer or chief financial officer of the Borrower or any other
officer of the Borrower reasonably acceptable to the Administrative Agent.
"REVOLVING CREDIT FACILITY" means the revolving credit facility
established pursuant to Article II hereof.
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"RSA" shall mean any "rural service area" as defined and modified by
the FCC for the purpose of licensing Telecommunications Systems.
"SENIOR NOTES" means those certain 7.11% senior notes due April 1, 2012
issued by the Borrower pursuant to that certain Note Purchase Agreement dated
April 1, 1997.
"SOLVENT" means, as to the Borrower and its Subsidiaries on a
particular date, that any such Person (a) has capital sufficient to carry on its
business and transactions and all business and transactions in which it is about
to engage and is able to pay its debts as they mature, (b) owns property having
a value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
"STOCKHOLDERS' EQUITY" means Consolidated stockholders' equity as
determined in accordance with GAAP, including without limitation the sum of
common stock, additional paid-in-capital and retained earnings.
"SUBSIDIARY" means as to any Person, any corporation, partnership,
limited liability company or other entity of which more than fifty percent (50%)
of the outstanding capital stock or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity is at
the time, directly or indirectly, owned by or the management is otherwise
controlled by such Person (irrespective of whether, at the time, capital stock
or other ownership interests of any other class or classes of such corporation,
partnership, limited liability company or other entity shall have or might have
voting power by reason of the happening of any contingency). Unless otherwise
qualified references to "Subsidiary" or "Subsidiaries" herein shall refer to
those of the Borrower.
"TAXES" shall have the meaning assigned thereto in Section 4.11(a).
"TELECOMMUNICATIONS SYSTEMS" means any local exchange and long distance
telephone systems (including without limitation any network of digital or analog
facilities), any cellular and personal communications systems, any cable
television distribution system, and any other telecommunications systems owned,
leased, operated or managed by the Borrower or any Subsidiary.
"TERMINATION DATE" means the earliest of the dates referred to in
Section 2.6.
"TERMINATION EVENT" means: (a) a "Reportable Event" described in
Section 4043 of ERISA, or (b) the withdrawal of the Borrower or any ERISA
Affiliate from a Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, or (c) the termination of a
Pension Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA, or (d) the institution of proceedings to terminate, or the appointment of
a trustee with respect to, any Pension Plan by the PBGC, or (e) any other event
or condition which would constitute grounds under Section 4042(a) of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan, or (f) the partial or complete withdrawal of the Borrower or any ERISA
Affiliate from a Multiemployer Plan, or (g) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA, or (h) any event or condition
which results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"TOTAL CAPITALIZATION" means at any date with respect to the Borrower
and its Subsidiaries at any date of determination, Total Debt PLUS Stockholders'
Equity, determined on a Consolidated basis in accordance with GAAP.
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"TOTAL DEBT" means, with respect to the Borrower and its Subsidiaries,
at any date of determination and without duplication, all outstanding Debt
thereof on a Consolidated basis.
"UNIFORM CUSTOMS" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), effective January, 1994.
"UCC" means the Uniform Commercial Code as in effect in the State of
North Carolina, as amended, restated or otherwise modified from time to time.
"UNITED STATES" means the United States of America.
"WHOLLY-OWNED" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary are,
directly or indirectly, owned or controlled by the Borrower and/or one or more
of its Wholly-Owned Subsidiaries (except for directors' qualifying shares
required by Applicable Law to be owned by a Person other than the Borrower).
SECTION 1.2 GENERAL. Unless otherwise
specified, a reference in this Agreement to a particular article, section,
subsection, Schedule or Exhibit is a reference to that article, section,
subsection, Schedule or Exhibit of this Agreement. Wherever from the context
it appears appropriate, each term stated in either the singular or plural
shall include the singular and plural, and pronouns stated in the masculine,
feminine or neuter gender shall include the masculine, the feminine and the
neuter. Any reference herein to "Charlotte time" shall refer to the
applicable time of day in Charlotte, North Carolina.
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS.
(a) USE OF CAPITALIZED TERMS. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
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(b) MISCELLANEOUS. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 REVOLVING CREDIT LOANS.
Subject to the terms and conditions of this Agreement, each Lender severally
agrees to make Loans to the Borrower from time to time from the Closing Date
through the Termination Date as requested by the Borrower in accordance with
the terms of Section 2.2; PROVIDED, that (a) the aggregate principal amount
of all outstanding Loans (after giving effect to any amount requested) shall
not exceed the Aggregate Commitment LESS the sum of all outstanding L/C
Obligations and (b) the principal amount of outstanding Loans from any Lender
to the Borrower shall not at any time exceed such Lender's Commitment LESS
such Lender's Commitment Percentage of the L/C Obligations. Each Loan by a
Lender shall be in a principal amount equal to such Lender's Commitment
Percentage of the aggregate principal amount of Loans requested on such
occasion. Subject to the terms and conditions hereof, the Borrower may
borrow, repay and reborrow Loans hereunder until the Termination Date.
SECTION 2.2 PROCEDURE FOR ADVANCES OF LOANS.
(a) REQUESTS FOR BORROWING. The Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached hereto as EXHIBIT B
(a "Notice of Borrowing") not later than 11:00 a.m. (Charlotte time) (i) at
least one (1) Business Day before each Base Rate Loan and (ii) at least three
(3) Business Days before each LIBOR Rate Loan, of its intention to borrow,
specifying (A) the date of such borrowing, which shall be a Business Day, (B)
the amount of such borrowing, which shall be in an amount equal to the amount of
the Aggregate Commitment then available to the Borrower, or if less, (x) with
respect to Base Rate Loans in an aggregate principal amount of $250,000 or a
whole multiple of $100,000 in excess thereof and (y) with respect to LIBOR Rate
Loans in an aggregate principal amount of $500,000 or a whole multiple of
$500,000 in excess thereof, (C) whether the Loans are to be LIBOR Rate Loans or
Base Rate Loans, and (E) in the case of a LIBOR Rate Loan, the duration of the
Interest Period applicable thereto. Notices received after 11:00 a.m. (Charlotte
time) shall be deemed received on the next Business Day. The Administrative
Agent shall promptly notify the Lenders of each Notice of Borrowing.
(b) DISBURSEMENT OF LOANS. Not later than 2:00 p.m. (Charlotte time)
on the proposed borrowing date, (i) each Lender will make available to the
Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the Administrative
Agent, such Lender's Commitment Percentage of the Loans to be made on such
borrowing date. The Borrower hereby irrevocably authorizes the Administrative
Agent to disburse the proceeds of each borrowing requested pursuant to this
Section 2.2 in immediately available funds by crediting or wiring such
proceeds to the deposit account of the Borrower identified in the most recent
notice substantially in the form of EXHIBIT G hereto (a "Notice of Account
Designation") delivered by the Borrower to the Administrative Agent or may be
otherwise agreed upon by the Borrower and the Administrative Agent from time
to time. Subject to Section 4.7 hereof, the Administrative Agent shall not be
obligated to disburse the portion of the proceeds of any Loan requested
pursuant to this Section 2.2 to the extent that any Lender has not made
available to the Administrative Agent its Commitment Percentage of such Loan.
SECTION 2.3 REPAYMENT OF LOANS.
(a) REPAYMENT ON TERMINATION DATE. The Borrower shall repay the
outstanding principal amount of all Loans in full on the Termination Date,
together, with all accrued but unpaid interest thereon and all other unpaid
Obligations.
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(b) MANDATORY REPAYMENTS.
(i) EXCESS LOANS. If at any time the outstanding
principal amount of all Loans exceeds the Aggregate Commitment
less the sum of all outstanding L/C Obligations, the Borrower
shall repay immediately upon notice from the Administrative
Agent, by payment to the Administrative Agent for the account
of the Lenders, Extensions of Credit in an amount equal to
such excess with each such repayment applied FIRST to the
principal amount of outstanding Loans and second, with respect
to any Letters of Credit then outstanding, to the deposit of
cash collateral into a cash collateral account opened by the
Administrative Agent and administered thereby in accordance
with Section 11.2(b). Each such repayment shall be accompanied
by any amount required to be paid pursuant to Section 4.9
hereof.
(ii) COMMITMENT REDUCTIONS. Each permanent reduction
permitted or required pursuant to Section 2.5 shall be
accompanied by a payment of principal sufficient to reduce the
aggregate outstanding Extensions of Credit of the Lenders
after such reduction to the Aggregate Commitment as so reduced
and if the Aggregate Commitment as so reduced is less than the
aggregate amount of all outstanding Letters of Credit, the
Borrower shall be required to deposit an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of
Credit in a cash collateral account opened by the
Administrative Agent and administered thereby in accordance
with Section 11.2(b). Any reduction of the Aggregate
Commitment to zero shall be accompanied by payment of all
outstanding Obligations (and furnishing of cash collateral
satisfactory to the Administrative Agent for all L/C
Obligations) and, shall result in the termination of the
Commitments and Credit Facility. Such cash collateral shall be
applied in accordance with Section 11.2(b). If the reduction
of the Aggregate Commitment requires the repayment of any
LIBOR Rate Loan, such repayment shall be accompanied by any
amount required to be paid pursuant to Section 4.9 hereof.
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(c) OPTIONAL REPAYMENTS. The Borrower may at any time and from
time to time repay the Loans, in whole or in part, upon at
least three (3) Business Days' irrevocable notice to the
Administrative Agent with respect to LIBOR Rate Loans and one
(1) Business Day irrevocable notice with respect to Base Rate
Loans, in the form attached hereto as EXHIBIT C (a "Notice of
Prepayment") specifying the date and amount of repayment and
whether the repayment is of LIBOR Rate Loans, Base Rate Loans,
or a combination thereof, and, if of a combination thereof,
the amount allocable to each. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Lender. If any
such notice is given, the amount specified in such notice
shall be due and payable on the date set forth in such notice.
Partial repayments shall be in an aggregate amount of $250,000
or a whole multiple of $100,000 in excess thereof with respect
to Base Rate Loans and $500,000 or a whole multiple of
$500,000 in excess thereof with respect to LIBOR Rate Loans.
Each such repayment shall be accompanied by any amount
required to be paid pursuant to Section 4.9 hereof.
(d) LIMITATION ON REPAYMENT OF LIBOR RATE LOANS. The Borrower may not
repay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such repayment is accompanied by any amount
required to be paid pursuant to Section 4.9 hereof.
SECTION 2.4 NOTES. Each Lender's Loans
and the obligation of the Borrower to repay such Loans shall be evidenced by
a separate Note executed by the Borrower payable to the order of such Lender
representing the Borrower's obligation to pay such Lender's Commitment or, if
less, the aggregate unpaid principal amount of all Loans made and to be made
by such Lender to the Borrower hereunder, PLUS interest and all other fees,
charges and other amounts due thereon. Each Note shall be dated the date
hereof and shall bear interest on the unpaid principal amount thereof at the
applicable interest rate per annum specified in Section 4.1.
SECTION 2.5 PERMANENT REDUCTION OF THE AGGREGATE
COMMITMENT.
(a) OPTIONAL. The Borrower shall have the right at any time and from
time to time, upon at least five (5) Business Days prior written notice to the
Administrative Agent, to permanently reduce, without premium or penalty, (i) the
entire Aggregate Commitment at any time or (ii) portions of the Aggregate
Commitment, from time to time, in an aggregate principal amount not less than
$5,000,000.
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(b) MANDATORY
(i) DEBT PROCEEDS. The Aggregate Commitment
shall be permanently reduced in amounts equal to one hundred
percent (100%) of the aggregate Net Cash Proceeds during the
term of this Agreement from the incurrence of any Debt by the
Borrower or any of its Subsidiaries not permitted by Section
10.1 (but which incurrence has been consented to by the
Required Lenders); PROVIDED that such Net Cash Proceeds have
not been utilized to fund Permitted Acquisitions within 120
days following the Borrower's or the applicable Subsidiary's
receipt thereof. Such reduction shall be made no later than
the 120th day following such receipt of such Net Cash
Proceeds.
(ii) EQUITY PROCEEDS. The Aggregate
Commitment shall be permanently reduced in amounts equal to
one hundred percent (100%) of the aggregate Net Cash Proceeds
from any offering of equity securities by the Borrower or any
of its Subsidiaries; PROVIDED that (i) such Net Cash Proceeds
have not been utilized to fund Permitted Acquisitions within
120 days following the Borrower's or the applicable
Subsidiary's receipt thereof and (ii) any such Net Cash
Proceeds not to exceed $50,000,000 during the term hereof
shall be excluded from this commitment reduction and
prepayment requirement to the extent that the Senior Notes do
not require any prepayment with such Net Cash Proceeds. Such
reduction shall be made no later than the 120th day following
such receipt of such Net Cash Proceeds.
(iii) ASSET SALE PROCEEDS. The Aggregate
Commitment shall be permanently reduced in amounts equal to
one hundred percent (100%) of the aggregate Net Cash Proceeds
from the sale or other disposition of assets by the Borrower
or any of its Subsidiaries pursuant to Section 10.5(e) hereof;
PROVIDED that such Net Cash Proceeds have not been utilized to
fund the acquisition of similar assets within 120 days
following the Borrower's or the applicable Subsidiary's
receipt thereof. Such reduction shall be made no later than
the 120th day following such receipt of such Net Cash
Proceeds.
(iv) INSURANCE PROCEEDS. The Aggregate
Commitment shall be permanently reduced in amounts equal to
one hundred percent (100%) of the aggregate amount of
insurance Net Cash Proceeds received by the Borrower or any of
its Subsidiaries pursuant to insurance policies required by
Section 8.3 that have not been utilized to fund the
acquisition of similar assets within 120 days following the
Borrower's or the applicable Subsidiary's receipt thereof.
Such reduction shall be made no later than the 120th day
following such receipt of such Net Cash Proceeds.
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Notwithstanding any of the foregoing clauses (i) through (iv)
of this Section 2.5(b) to the contrary, upon notice from the
Administrative Agent during the occurrence and continuance of
an Event of Default, all such Net Cash Proceeds, regardless of
investment or other uses, received by the Borrower and its
Subsidiaries shall be applied to reduce the Aggregate
Commitment, such reduction to be made the next Business Day
after the Borrower's receipt of such Net Cash Proceeds.
SECTION 2.6 TERMINATION OF CREDIT FACILITY.
The Credit Facility shall terminate on the earliest of (a) May 28, 2004, (b)
the date of termination by the Borrower pursuant to Section 2.5(a), and (b)
the date of termination by the Administrative Agent on behalf of the Lenders
pursuant to Section 11.2(a).
SECTION 2.7 USE OF PROCEEDS. The Borrower
shall use the proceeds of the Extensions of Credit (a) to finance the McElroy
Acquisition, (b) to refinance and terminate certain existing Debt, and (c)
for working capital and general corporate requirements of the Borrower and
its Subsidiaries, including the financing of Permitted Acquisitions and the
payment of certain fees and expenses incurred in connection with the
transactions contemplated hereunder.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C COMMITMENT. Subject to the
terms and conditions hereof, the Issuing Lender, in reliance on the
agreements of the other Lenders set forth in Section 3.4(a), agrees to issue
standby letters of credit ("Letters of Credit") for the account of the
Borrower on any Business Day from the Closing Date through but not including
the Termination Date in such form as may be approved from time to time by the
Issuing Lender; PROVIDED, that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, the L/C
Obligations would exceed (a) the L/C Commitment or (b) the Available
Commitment of any Lender. Each Letter of Credit shall (i) be denominated in
Dollars in a minimum amount of $1,000,000, (ii) be a standby letter of credit
issued to support obligations of the Borrower or any of its Subsidiaries,
contingent or otherwise, incurred in the ordinary course of business, (iii)
expire on a date satisfactory to the Issuing Lender, which date shall be no
later than the Termination Date and (iv) be subject to the Uniform Customs
and/or ISPA98, as applicable, in the Issuing Lender's sole discretion and, to
the extent not inconsistent therewith, the laws of the State of North
Carolina. The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
Applicable Law. References herein to "issue" and derivations thereof with
respect to Letters of Credit shall also include extensions or modifications
of any existing Letters of Credit, unless the context otherwise requires.
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SECTION 3.2 PROCEDURE FOR ISSUANCE OF
LETTERS OF CREDIT. The Borrower may from time to time request that the
Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender
at the Administrative Agent's Office an Application therefor, completed to
the satisfaction of the Issuing Lender, and such other certificates,
documents and other papers and information as the Issuing Lender may request.
Upon receipt of any Application, the Issuing Lender shall process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall, subject to Section 3.1 and Article V hereof, promptly
issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three
(3) Business Days after its receipt of the Application therefor and all such
other certificates, documents and other papers and information relating
thereto) by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by the Issuing Lender and the Borrower.
The Issuing Lender shall promptly furnish to the Borrower a copy of such
Letter of Credit and promptly notify each Lender of the issuance and upon
request by any Lender, furnish to each Lender a copy of such Letter of Credit
and the amount of such Lender's L/C Participation therein.
SECTION 3.3 COMMISSIONS AND OTHER CHARGES.
(a) The Borrower shall pay to the Administrative Agent, for the account
of the Issuing Lender and the L/C Participants, a letter of credit commission
with respect to each Letter of Credit in an amount equal to the product of (i)
the daily average amount available to be drawn under such Letter of Credit for
the applicable fiscal quarter TIMES (ii) a percentage equal to the Applicable
Margin with respect to LIBOR Rate Loans under the Revolving Credit Facility in
effect on the applicable payment table per annum on the face amount of such
Letter of Credit. Such commission shall be payable quarterly in arrears on the
last Business Day of each calendar quarter and on the Termination Date.
(b) In addition to the foregoing commission, the Borrower shall pay the
Issuing Lender an issuance fee of one-fourth percent (1/4%) per annum on the
face amount of each Letter of Credit, payable quarterly in arrears on the last
Business Day of each calendar quarter and on the Termination Date.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all
commissions received by the Administrative Agent in accordance with their
respective Commitment Percentages.
SECTION 3.4 L/C PARTICIPATIONS.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce the Issuing Lender to issue Letters
of Credit hereunder, each L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own
account and risk an undivided interest equal to such L/C Participant's
Commitment Percentage in the Issuing Lender's obligations and rights under
each Letter of Credit issued hereunder and the amount of each draft paid by
the Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with the Issuing Lender that, if a draft is paid under any
Letter of Credit for which the Issuing Lender is not reimbursed in full by
the Borrower in accordance with the terms of this Agreement, such L/C
Participant shall pay to the Issuing Lender upon demand at the Issuing
Lender's address for notices specified herein an amount equal to such L/C
Participant's Commitment Percentage of the amount of such draft, or any part
thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of
any unreimbursed portion of any payment made by the Issuing Lender under any
Letter of Credit, the Issuing Lender shall notify each L/C Participant of the
amount and due date of such required payment and such L/C Participant shall
pay to the Issuing Lender the amount specified on the applicable due date. If
any such amount is paid to the Issuing Lender after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demand, in
addition to such amount, the product of (i) such amount, TIMES (ii) the daily
average
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Federal Funds Rate as determined by the Administrative Agent during the
period from and including the date such payment is due to the date on which
such payment is immediately available to the Issuing Lender, TIMES (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. A certificate of the Issuing
Lender with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error. With respect to payment to the
Issuing Lender of the unreimbursed amounts described in this Section 3.4(b),
if the L/C Participants receive notice that any such payment is due (A) prior
to 1:00 p.m. (Charlotte time) on any Business Day, such payment shall be due
that Business Day, and (B) after 1:00 p.m. (Charlotte time) on any Business
Day, such payment shall be due on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Commitment Percentage of such payment in accordance with this Section 3.4, the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Participant its pro rata
share thereof; PROVIDED, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE
BORROWER. The Borrower agrees to reimburse the Issuing Lender on each date on
which the Issuing Lender notifies the Borrower of the date and amount of a
draft paid under any Letter of Credit for the amount of (a) such draft so
paid and (b) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment. Each such payment shall
be made to the Issuing Lender at its address for notices specified herein in
lawful money of the United States and in immediately available funds.
Interest shall be payable on any and all amounts remaining unpaid by the
Borrower under this Article III from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in
full at the rate which would be payable on any outstanding Base Rate Loans
which were then overdue. If the Borrower fails to timely reimburse the
Issuing Lender on the date the Borrower receives the notice referred to in
this Section 3.5, the Borrower shall be deemed to have timely given a Notice
of Borrowing hereunder to the Administrative Agent requesting the Lenders to
make a Base Rate Loan on such date in an amount equal to the amount of such
drawing and, regardless of whether or not the conditions precedent specified
in Article V have been satisfied, the Lenders shall make Base Rate Loans in
such amount, the proceeds of which shall be applied to reimburse the Issuing
Lender for the amount of the related drawing and costs and expenses.
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SECTION 3.6 OBLIGATIONS ABSOLUTE. The
Borrower's obligations under this Article III (including without limitation
the Reimbursement Obligation) shall be absolute and unconditional under any
and all circumstances and irrespective of any set-off, counterclaim or
defense to payment which the Borrower may have or have had against the
Issuing Lender or any beneficiary of a Letter of Credit. The Borrower also
agrees with the Issuing Lender that the Issuing Lender shall not be
responsible for, and the Borrower's Reimbursement Obligation under Section
3.5 shall not be affected by, among other things, the validity or genuineness
of documents or of any endorsements thereon, even though such documents shall
in fact prove to be invalid, fraudulent or forged, or any dispute between or
among the Borrower and any beneficiary of any Letter of Credit or any other
party to which such Letter of Credit may be transferred or any claims
whatsoever of a Borrower against any beneficiary of such Letter of Credit or
any such transferee. The Issuing Lender shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by the Issuing Lender's gross
negligence or willful misconduct. The Borrower agrees that any action taken
or omitted by the Issuing Lender under or in connection with any Letter of
Credit or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards of care
specified in the Uniform Customs and, to the extent not inconsistent
therewith, the UCC shall be binding on the Borrower and shall not result in
any liability of the Issuing Lender to the Borrower. The responsibility of
the Issuing Lender to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with
such Letter of Credit.
SECTION 3.7 EFFECT OF APPLICATION. To the
extent that any provision of any Application related to any Letter of Credit
is inconsistent with the provisions of this Article III, the provisions of
this Article III shall apply.
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ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 INTEREST.
(a) INTEREST RATE OPTIONS. Subject to the provisions of this Section
4.1, at the election of the Borrower, the aggregate principal balance of the
Notes or any portion thereof shall bear interest at the Base Rate or the LIBOR
Rate PLUS, in each case, the Applicable Margin as set forth below; PROVIDED that
the LIBOR Rate shall not be available until three (3) Business Days after the
Closing Date. The Borrower shall select the rate of interest and Interest
Period, if any, applicable to any Loan at the time a Notice of Borrowing is
given pursuant to Section 2.2 or at the time a Notice of Conversion/Continuation
is given pursuant to Section 4.2. Each Loan or portion thereof bearing interest
based on the Base Rate shall be a "Base Rate Loan", each Loan or portion thereof
bearing interest based on the LIBOR Rate shall be a "LIBOR Rate Loan." Any Loan
or any portion thereof as to which the Borrower has not duly specified an
interest rate as provided herein shall be deemed a Base Rate Loan.
(b) INTEREST PERIODS. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in Section 4.1(a), shall elect
an interest period (each, an "Interest Period") to be applicable to such Loan,
which Interest Period shall be a period of one (1), two (2), three (3), or six
(6) months with respect to each LIBOR Rate Loan; PROVIDED that:
(i) the Interest Period shall commence on
the date of advance of or conversion to any LIBOR Rate Loan and, in the
case of immediately successive Interest Periods, each successive Interest
Period shall commence on the date on which the next preceding Interest Period
expires;
(ii) if any Interest Period would otherwise
expire on a day that is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; PROVIDED, that if any Interest
Period with respect to a LIBOR Rate Loan would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day;
(iii) any Interest Period with respect to a
LIBOR Rate Loan 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 calendar
month at the end of such Interest Period) shall end on the last Business Day
of the relevant calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond
the Termination Date and Interest Periods shall be selected by the Borrower
so as to permit the Borrower to make mandatory reductions of the Aggregate
Commitment pursuant to Section 2.5(b) without payment of any amounts pursuant
to Section 4.9; and
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(v) there shall be no more than five (5) Interest
Periods outstanding at any time.
(c) APPLICABLE MARGIN. The Applicable Margin provided for in Section
4.1(a) with respect to the Loans (the "Applicable Margin") shall (i) on the
Closing Date equal the percentages set forth in the certificate delivered
pursuant to Section 5.2(d)(ii) for each fiscal quarter thereafter be determined
by reference to the Leverage Ratio as of the end of the fiscal quarter
immediately preceding the delivery of the applicable Officer's Compliance
Certificate as follows:
<TABLE>
<CAPTION>
Ratio Base LIBOR
----- ---- -----
<S> <C> <C>
Greater than or equal to 3.00 0.250% 1.500%
Less than 3.00 to 1.00, but greater than or equal to 2.50 0.125% 1.375%
Less than 2.50, but greater than or equal to 2.00 to 1.00 0.000% 1.250%
Less than 2.00 to 1.00 0.000% 1.000%
</TABLE>
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on the tenth (10th) Business Day after receipt by the
Administrative Agent of quarterly financial statements for the Borrower and its
Subsidiaries and the accompanying Officer's Compliance Certificate setting forth
the Leverage Ratio of the Borrower and its Subsidiaries as of the most recent
fiscal quarter end. Subject to Section 4.1(d), in the event the Borrower fails
to deliver such financial statements and certificate within the time required by
Section 7.1 and 7.3 hereof, the Applicable Margin shall be the highest
Applicable Margin set forth above until the delivery of such financial
statements and certificate.
(d) DEFAULT RATE. Subject to Section 11.3, at the discretion of the
Administrative Agent and Required Lenders, upon the occurrence and during the
continuance of an Event of Default, (i) the Borrower shall no longer have the
option to request LIBOR Rate Loans, (ii) all outstanding LIBOR Rate Loans shall
bear interest at a rate per annum two percent (2%) in excess of the rate then
applicable to LIBOR Rate Loans, as applicable, until the end of the applicable
Interest Period and thereafter at a rate equal to two percent (2%) in excess of
the rate then applicable to Base Rate Loans, and (iii) all outstanding Base Rate
Loans shall bear interest at a rate per annum equal to two percent (2%) in
excess of the rate then applicable to Base Rate Loans. Interest shall continue
to accrue on the Notes after the filing by or against the Borrower of any
petition seeking any relief in bankruptcy or under any act or law pertaining to
insolvency or debtor relief, whether state, federal or foreign.
(e) INTEREST PAYMENT AND COMPUTATION. Interest on each Base Rate Loan
shall be payable in arrears on the last Business Day of each calendar quarter
commencing June 30, 1999; and interest on each LIBOR Rate Loan shall be payable
on the last day of each Interest Period applicable thereto, and if such Interest
Period extends over three (3) months, in addition to such date at the end of
each three (3) month interval during such Interest Period. All interest rates,
fees and commissions provided hereunder shall be computed on the basis of a
360-day year and assessed for the actual number of days elapsed.
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(f) MAXIMUM RATE. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option (i) promptly refund to the Borrower any interest received by
Lenders in excess of the maximum lawful rate or (ii) shall apply such excess to
the principal balance of the Obligations. It is the intent hereof that the
Borrower not pay or contract to pay, and that neither the Administrative Agent
nor any Lender receive or contract to receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be paid by the Borrower
under Applicable Law.
SECTION 4.2 NOTICE AND MANNER OF
CONVERSION OR CONTINUATION OF LOANS. Provided that no Event of Default has
occurred and is then continuing, the Borrower shall have the option to (a)
convert at any time all or any portion of its outstanding Base Rate Loans in
a principal amount equal to $500,000 or any whole multiple of $500,000 in
excess thereof into one or more LIBOR Rate Loans and (b) upon the expiration
of any Interest Period, (i) convert all or any part of its outstanding LIBOR
Rate Loans in a principal amount equal to $250,000 or a whole multiple of
$100,000 in excess thereof into Base Rate Loans or (ii) continue such LIBOR
Rate Loans as LIBOR Rate Loans. Whenever the Borrower desires to convert or
continue Loans as provided above, the Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached as EXHIBIT D (a
"Notice of Conversion/Continuation") not later than 11:00 a.m. (Charlotte
time) three (3) Business Days before the day on which a proposed conversion
or continuation of such Loan is to be effective specifying (A) the Loans to
be converted or continued, and, in the case of any LIBOR Rate Loan to be
converted or continued, the last day of the Interest Period therefor, (B) the
effective date of such conversion or continuation (which shall be a Business
Day), (C) the principal amount of such Loans to be converted or continued,
and (D) the Interest Period to be applicable to such converted or continued
LIBOR Rate Loan. The Administrative Agent shall promptly notify the Lenders
of such Notice of Conversion/Continuation.
SECTION 4.3 FEES.
(a) COMMITMENT FEE. Commencing on the Closing Date, the Borrower
shall pay to the Administrative Agent, for the account of the Lenders, a
non-refundable commitment fee at a rate per annum equal to 0.375% on the
average daily unused portion of the Aggregate Commitment. The commitment fee
shall be payable in arrears on the last Business Day of each calendar quarter
during the term of this Agreement commencing June 30, 1999, and on the
Termination Date. Such commitment fee shall be distributed by the
Administrative Agent to the Lenders PRO RATA in accordance with the Lenders'
respective Commitment Percentages.
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(b) FACILITY FEES. The Borrower shall pay (i) to the Administrative
Agent, for the account of the Lenders, the upfront fees payable pursuant to the
Fee Letter and (ii) to First Union Capital Markets Corp., the arrangement and
underwriting fees in the amounts set forth in the Fee Letter.
SECTION 4.4 MANNER OF PAYMENT. Each
payment by the Borrower on account of the principal of or interest on the
Loans or of any fee, commission or other amounts (including the Reimbursement
Obligation) payable to the Lenders under this Agreement or any Note shall be
made not later than 1:00 p.m. (Charlotte time) on the date specified for
payment under this Agreement to the Administrative Agent at the
Administrative Agent's Office for the account of the Lenders (other than as
set forth below) PRO RATA in accordance with their respective Commitment
Percentages (except as specified below), in Dollars, in immediately available
funds and shall be made without any set-off, counterclaim or deduction
whatsoever. Any payment received after such time but before 2:00 p.m.
(Charlotte time) on such day shall be deemed a payment on such date for the
purposes of Section 11.1, but for all other purposes shall be deemed to have
been made on the next succeeding Business Day. Any payment received after
2:00 p.m. (Charlotte time) shall be deemed to have been made on the next
succeeding Business Day for all purposes. Upon receipt by the Administrative
Agent of each such payment, the Administrative Agent shall distribute to each
Lender at its address for notices set forth herein its pro rata share of such
payment in accordance with such Lender's Commitment Percentage (except as
specified below) and shall wire advice of the amount of such credit to each
Lender. Each payment to the Administrative Agent of the Issuing Lender's fees
or L/C Participants' commissions shall be made in like manner, but for the
account of the Issuing Lender or the L/C Participants, as the case may be.
Each payment to the Administrative Agent of Administrative Agent's fees or
expenses shall be made for the account of the Administrative Agent and any
amount payable to any Lender under Sections 4.8, 4.9, 4.10, 4.11 or 13.2
shall be paid to the Administrative Agent for the account of the applicable
Lender. Subject to Section 4.1(b)(ii) in any payment under this Agreement or
any Note shall be specified to be made upon a day which is not a Business
Day, it shall be made on the next succeeding day which is a Business Day and
such extension of time shall in such case be included in computing any
interest if payable along with such payment.
SECTION 4.5 CREDITING OF PAYMENTS AND
PROCEEDS. In the event that the Borrower shall fail to pay any of the
Obligations when due and the Obligations have been accelerated pursuant to
Section 11.2, all payments received by the Lenders upon the Notes and the
other Obligations and all net proceeds from the enforcement of the
Obligations shall be applied first to all expenses then due and payable by
the Borrower hereunder, then to all indemnity obligations then due and
payable by the Borrower hereunder, then to all Administrative Agent's and
Issuing Lender's fees then due and payable, then to all commitment and other
fees and commissions then due and payable, then to accrued and unpaid
interest on the Notes and the Reimbursement Obligation (PRO RATA in
accordance with all such amounts due), then to the principal amount of the
Notes and Reimbursement Obligation and then to the cash collateral account
described in Section 11.2(b) hereof to the extent of any L/C Obligations then
outstanding, in that order.
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SECTION 4.6 ADJUSTMENTS. If any Lender (a
"Benefited Lender") shall at any time receive any payment of all or part of
its Extensions of Credit, or interest thereon, or any other Obligations, or
if any Lender shall at any time receive any collateral in respect to its
Extensions of Credit, or interest thereon, or any other Obligations (whether
voluntarily or involuntarily, by set-off or otherwise), in any such case, in
a greater proportion than any such payment to and collateral received by any
other Lender, if any, in respect of such other Lender's Extensions of Credit,
or interest thereon, or any other Obligations such Benefited Lender shall
purchase for cash from the other Lenders such portion of each such other
Lender's Extensions of Credit, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
PROVIDED, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned to the extent of such
recovery, but without interest. The Borrower agrees that each Lender so
purchasing a portion of another Lender's Extensions of Credit may exercise
all rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
SECTION 4.7 NATURE OF OBLIGATIONS OF
LENDERS REGARDING EXTENSIONS OF CREDIT; ASSUMPTION BY THE ADMINISTRATIVE
AGENT. The obligations of the Lenders under this Agreement to make the Loans
and issue or participate in Letters of Credit are several and are not joint
or joint and several. Unless the Administrative Agent shall have received
notice from a Lender prior to a proposed borrowing date that such Lender will
not make available to the Administrative Agent such Lender's ratable portion
of the amount to be borrowed on such date (which notice shall not release
such Lender of its obligations hereunder), the Administrative Agent may
assume that such Lender has made such portion available to the Administrative
Agent on the proposed borrowing date in accordance with Section 2.2(b) and
the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If such amount
is made available to the Administrative Agent on a date after such borrowing
date, such Lender shall pay to the Administrative Agent on demand an amount,
until paid, equal to the product of (a) the amount of such Lender's
Commitment Percentage of such borrowing, TIMES (b) the daily average Federal
Funds Rate during such period as determined by the Administrative Agent,
TIMES (c) a fraction the numerator of which is the number of days that elapse
from and including such borrowing date to the date on which such Lender's
Commitment Percentage of such borrowing shall have become immediately
available to the Administrative Agent and the denominator of which is 360. A
certificate of the Administrative Agent with respect to any amounts owing
under this Section shall be conclusive, absent manifest error. If such
Lender's Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three (3) Business Days of such
borrowing date, the Administrative Agent shall be entitled to recover such
amount made available by the Administrative Agent with interest thereon at
the rate per annum applicable to Base Rate Loans hereunder, on demand, from
the Borrower. The failure of any Lender to make its Commitment Percentage of
any Loan available shall not relieve it or any other Lender of its
obligation, if any, hereunder to make its Commitment Percentage of such Loan
available on such borrowing date, but no Lender shall be responsible for the
failure of any other Lender to make its Commitment Percentage of such Loan
available on the borrowing date.
SECTION 4.8 CHANGED CIRCUMSTANCES.
(a) CIRCUMSTANCES AFFECTING LIBOR RATE AVAILABILITY. If with respect
to any Interest Period the Administrative Agent or any Lender (after
consultation with Administrative Agent) shall determine that, by reason of
circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars, in the applicable amounts are not being quoted via
Dow Jones Market Screen 3750 or offered to the Administrative Agent or such
Lender for such Interest Period, then the Administrative Agent shall
forthwith give notice thereof to the Borrower. Thereafter, until the
Administrative Agent notifies the Borrower that such circumstances no longer
exist, the obligation of the Lenders to make LIBOR Rate Loans and the right
of the Borrower to convert any Loan to or continue any Loan as a LIBOR Rate
Loan shall be suspended, and the Borrower shall repay in full (or cause to be
repaid in full) the then outstanding principal amount of each such LIBOR Rate
Loans together with accrued interest thereon, on the last day of
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the then current Interest Period applicable to such LIBOR Rate Loan or
convert the then outstanding principal amount of each such LIBOR Rate Loan to
a Base Rate Loan as of the last day of such Interest Period.
(b) LAWS AFFECTING LIBOR RATE AVAILABILITY. If, after the date hereof,
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 (or any of its Lending Offices) 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 any of the Lenders (or any of their respective
Lending Offices) to honor its obligations hereunder to make or maintain any
LIBOR Rate Loan, such Lender shall promptly give notice thereof to the
Administrative Agent and the Administrative Agent shall promptly give notice to
the Borrower and the other Lenders. Thereafter, until the Administrative Agent
notifies the Borrower that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans and the right of the
Borrower to convert any Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter the Borrower may select only Base Rate Loans hereunder,
and (ii) if any of the Lenders may not lawfully continue to maintain a LIBOR
Rate Loan to the end of the then current Interest Period applicable thereto as a
LIBOR Rate Loan, the applicable LIBOR Rate Loan shall immediately be converted
to a Base Rate Loan for the remainder of such Interest Period.
(c) INCREASED COSTS. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or 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 of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Governmental
Authority, central bank or comparable agency:
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(i) shall subject any of the Lenders (or any of
their respective Lending Offices) to any tax, duty or other charge with
respect to any Note, Letter of Credit or Application or shall change the
basis of taxation of payments to any of the Lenders (or any of their
respective Lending Offices) of the principal of or interest on any Note,
Letter of Credit or Application or any other amounts due under this Agreement
in respect thereof (except for changes in the rate of tax on the overall net
income of any of the Lenders or any of their respective Lending Offices
imposed by the jurisdiction in which such Lender is organized or is or should
be qualified to do business or such Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System), special deposit, insurance or
capital or similar requirement against assets of, deposits with or for the
account of, or credit extended by any of the Lenders (or any of their
respective Lending Offices) or shall impose on any of the Lenders (or any of
their respective Lending Offices) or the foreign exchange and interbank
markets any other condition affecting any Note; and the result of any of the
foregoing is to increase the costs to any of the Lenders of maintaining any
LIBOR Rate Loan or issuing or participating in Letters of Credit or to reduce
the yield or amount of any sum received or receivable by any of the Lenders
under this Agreement or under the Notes in respect of a LIBOR Rate Loan or
Letter of Credit or Application, then such Lender shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify the
Borrower of such fact and demand compensation therefor and, within fifteen
(15) days after such notice by the Administrative Agent, the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or Lenders for such increased cost or reduction. The Administrative
Agent will promptly notify the Borrower of any event of which it has
knowledge which will entitle such Lender to compensation pursuant to this
Section 4.8(c); PROVIDED, that the Administrative Agent shall incur no
liability whatsoever to the Lenders or the Borrower in the event it fails to
do so. The amount of such compensation shall be determined, in the applicable
Lender's sole discretion, based upon the assumption that such Lender funded
its Commitment Percentage of the LIBOR Rate Loans in the London interbank
market and using any reasonable attribution or averaging methods which such
Lender deems appropriate and practical. A certificate of such Lender setting
forth the basis for determining such amount or amounts necessary to
compensate such Lender shall be forwarded to the Borrower through the
Administrative Agent and shall be conclusively presumed to be correct save
for manifest error.
SECTION 4.9 INDEMNITY. The Borrower hereby
indemnifies each of the Lenders against any loss or expense which may arise
or be attributable to each Lender's obtaining, liquidating or employing
deposits or other funds acquired to effect, fund or maintain any Loan (a) as
a consequence of any failure by the Borrower to make any payment when due of
any amount due hereunder in connection with a LIBOR Rate Loan, (b) due to any
failure of the Borrower to borrow on a date specified therefor in a Notice of
Borrowing or Notice of Continuation/Conversion or (c) due to any payment,
prepayment or conversion of any LIBOR Rate Loan on a date other than the last
day of the Interest Period therefor. The amount of such loss or expense shall
be determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Commitment Percentage of the LIBOR
Rate Loans in the London interbank market, and using any reasonable
attribution or averaging methods which such Lender deems appropriate and
practical. A certificate of such Lender setting forth the basis for
determining such amount or amounts necessary to compensate such Lender shall
be forwarded to the Borrower through the Administrative Agent and shall be
conclusively presumed to be correct save for manifest error.
SECTION 4.10 CAPITAL REQUIREMENTS. If either (a)
the introduction of, or any change in, or in the interpretation of, any
Applicable Law or (b) compliance with any guideline or request from any
central bank or comparable agency or other Governmental Authority (whether or
not having the force of law), has or would have the effect of reducing the
rate of return on the capital of, or has affected or would affect the amount
of capital required to be maintained by, any Lender or any corporation
controlling such Lender as a consequence of, or with reference to the
Commitments and other commitments of this type, below the rate which the
Lender or such other corporation could have achieved but for such
introduction, change or compliance, then within five (5) Business Days after
written demand by any such Lender, the Borrower shall pay to such Lender from
time to time as specified by such
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Lender additional amounts sufficient to compensate such Lender or other
corporation for such reduction. A certificate as to such amounts submitted to
the Borrower and the Administrative Agent by such Lender, shall, in the
absence of manifest error, be presumed to be correct and binding for all
purposes.
SECTION 4.11 TAXES.
(a) PAYMENTS FREE AND CLEAR. Any and all payments by the Borrower
hereunder or under the Notes or the Letters of Credit shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of each Lender and the Administrative Agent,
income and franchise taxes imposed by the jurisdiction under the laws of which
such Lender or the Administrative Agent (as the case may be) is organized or is
or should be qualified to do business or any political subdivision thereof and
(ii) in the case of each Lender, income and franchise taxes imposed by the
jurisdiction of such Lender's Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder or under any Note or in respect of any
Letter of Credit to any Lender or the Administrative Agent, (A) the sum payable
shall be increased as may be necessary so that after making all required
deductions or withholdings (including deductions or withholdings applicable to
additional sums payable under this Section 4.11) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the amount
such party would have received had no such deductions or withholdings been made,
(B) the Borrower shall make such deductions or withholdings, (C) the Borrower
shall pay the full amount deducted to the relevant taxing authority or other
authority in accordance with Applicable Law, and (D) the Borrower shall deliver
to the Administrative Agent evidence of such payment to the relevant
Governmental Authority or other authority in the manner provided in Section
4.11(d).
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(b) STAMP AND OTHER TAXES. In addition, the Borrower shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit, the other Loan Documents, or the perfection of any
rights or security interest in respect thereof (hereinafter referred to as
"Other Taxes").
(c) INDEMNITY. The Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.11) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) EVIDENCE OF PAYMENT. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) DELIVERY OF TAX FORMS. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall deliver to
the Borrower, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance, as
applicable, (i) two United States Internal Revenue Service Forms 4224 or Forms
1001, as applicable (or successor forms) properly completed and certifying in
each case that such Lender is entitled to a complete exemption from withholding
or deduction for or on account of any United States federal income taxes, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form,
as the case may be, to establish an exemption from United States backup
withholding taxes. Each such Lender further agrees to deliver to the Borrower,
with a copy to the Administrative Agent, a Form 1001 or 4224 and Form W-8 or
W-9, or successor applicable forms or manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, certifying in the case of a Form
1001 or 4224 that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes (unless in any such case an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders such forms inapplicable or
the exemption to which such forms relate unavailable and such Lender notifies
the Borrower and the Administrative Agent that it is not entitled to receive
payments without deduction or withholding of United States federal income taxes)
and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax.
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(f) SURVIVAL. Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 4.11 shall survive the payment in full of the
Obligations and the termination of the Commitments.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 CLOSING. The closing shall take place
at the offices of Kennedy, Covington, Lobdell & Hickman, L.L.P. at 10:00 a.m.
on May 28, 1999, or on such other date as the parties hereto shall mutually
agree.
SECTION 5.2 CONDITIONS TO CLOSING AND INITIAL
EXTENSIONS OF CREDIT. The obligation of the Lenders to close this Agreement
and to make the initial Loan or issue the initial Letter of Credit is subject
to the satisfaction of each of the following conditions:
(a) EXECUTED LOAN DOCUMENTS. This Agreement and the Notes shall have
been duly authorized, executed and delivered to the Administrative Agent by the
parties thereto, shall be in full force and effect and no default shall exist
thereunder, and the Borrower shall have delivered original counterparts thereof
to the Administrative Agent.
(B) CLOSING CERTIFICATES; ETC.
(i) OFFICER'S CERTIFICATE OF THE BORROWER. The
Administrative Agent shall have received a certificate from a Responsible
Officer, in form and substance satisfactory to the Administrative Agent, to
the effect that all representations and warranties of the Borrower contained
in this Agreement and the other Loan Documents are true, correct and
complete; that the Borrower is not 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; and that the Borrower has
satisfied each of the closing conditions.
(ii) CERTIFICATE OF SECRETARY OF THE BORROWER. The
Administrative Agent shall have received a certificate of the secretary or
assistant secretary of the Borrower certifying as to the incumbency and
genuineness of the signature of each officer of the Borrower executing Loan
Documents to which it is a party and certifying that attached thereto is a
correct and complete copy of (A) the articles of incorporation of the
Borrower and all amendments thereto, certified as of a recent date by the
appropriate Governmental Authority in its jurisdiction of incorporation, (B)
the bylaws of the Borrower as in effect on the date of such certifications,
(C) the resolutions duly adopted by the Board of Directors of the Borrower
authorizing the borrowings contemplated hereunder and the execution, delivery
and performance of this Agreement and the other Loan Documents to which it is
a party, (D) a composite copy of the agreement governing the Senior Notes and
(E) each certificate required to be delivered pursuant to Section 5.2(b)(iii).
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(iii) CERTIFICATES OF GOOD STANDING. The Administrative
Agent shall have received certificates as of a recent date of the good
standing of the Borrower under the laws of its jurisdiction of organization
and to the extent requested by the Administrative Agent each other
jurisdiction where the Borrower is qualified to do business.
(iv) OPINIONS OF COUNSEL. The Administrative Agent
shall have received favorable opinions of counsel to the Borrower addressed
to the Administrative Agent and the Lenders with respect to the Borrower, the
Loan Documents and FCC and PUC matters.
(v) TAX FORMS. The Administrative Agent shall have
received copies of the United States Internal Revenue Service forms required
by Section 4.11(e) hereof.
(vi) INSURANCE CERTIFICATE. The Administrative Agent
shall have received certificates of insurance evidencing procurement and
maintenance of insurance policies required pursuant to Section 8.3.
(c) CONSENTS; DEFAULTS.
(i) GOVERNMENTAL AND THIRD PARTY APPROVALS. The
Borrower shall have obtained all necessary approvals, Authorizations and
consents of any Person and of all Governmental Authorities and courts having
jurisdiction with respect to the Acquisition and Extensions of Credit.
(ii) 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 contemplated hereby or thereby, or which, in
the Administrative Agent's reasonable discretion, would make it inadvisable
to consummate the transactions contemplated by this Agreement and such other
Loan Documents.
(iii) NO EVENT OF DEFAULT. No Default or Event of Default
shall have occurred and be continuing.
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(d) FINANCIAL MATTERS.
(i) FINANCIAL STATEMENTS. The Administrative Agent
shall have received (i) the most recent audited Consolidated financial
statements of the Borrower and its Subsidiaries and (ii) the Borrower's
annual report on Form 10-K and quarterly report on Form 10-Q, in each case as
filed with the Securities and Exchange Commission, all in form and substance
satisfactory to the Administrative Agent.
(ii) FINANCIAL CONDITION CERTIFICATE. The Borrower
shall have delivered to the Administrative Agent a certificate, in form and
substance satisfactory to the Administrative Agent, and certified as accurate
by a Responsible Officer, that (A) the Borrower and each of its Subsidiaries
are each Solvent, (B) the Borrower's payables are current and not past due,
(C) attached thereto are calculations evidencing compliance on a pro forma
basis with the covenants contained in Article IX hereof, (D) attached thereto
are the financial projections previously delivered to the Administrative
Agent representing the good faith opinions of the Borrower and senior
management thereof as to the projected results contained therein and (E)
attached thereto is a calculation of the Applicable Margin pursuant to
Section 4.1(c).
(iii) PAYMENT AT CLOSING; FEE LETTERS. The Borrower
shall have paid the fees set forth or referenced in Section 4.3 and any other
accrued and unpaid fees or commissions due hereunder (including, without
limitation, legal fees and expenses) to the Administrative Agent and Lenders,
and to any other Person such amount as may be due thereto in connection with
the transactions contemplated hereby, including all taxes, fees and other
charges in connection with the execution, delivery, recording, filing and
registration of any of the Loan Documents. The Administrative Agent shall
have received duly authorized and executed copies of the Fee Letter.
(e) MISCELLANEOUS.
(i) NOTICE OF BORROWING. The Administrative Agent
shall have received a Notice of Borrowing from the Borrower in accordance
with Section 2.2(a), and a Notice of Account Designation specifying the
account or accounts to which the proceeds of any Loans made after the Closing
Date are to be disbursed.
(ii) PROCEEDINGS AND DOCUMENTS. All opinions,
certificates and other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be satisfactory in form and
substance to the Lenders. The Lenders shall have received copies of all other
instruments and other evidence as the Lender may reasonably request, in form
and substance satisfactory to the Lenders, with respect to the transactions
contemplated by this Agreement and the taking of all actions in connection
therewith.
(iii) DUE DILIGENCE. The Administrative Agent and
Lenders shall have completed their customary legal and business due diligence
review of the Borrower, its Subsidiaries and the Acquisition.
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(iv) TERMINATION OF OUTSTANDING COMMITMENTS. The
Borrower and its Subsidiaries shall have terminated all existing lines of
credit.
(v) SYSTEM DOCUMENTS. If requested by the
Administrative Agent, the Borrower shall deliver to the Administrative Agent
copies of all FCC Licenses, PUC Authorizations, Network Agreements in
existence as of the date of this Agreement.
(vi) MODIFICATION OF SENIOR NOTES. The Administrative
Agent shall have received (i) a copy of all agreements governing the Senior
Notes certified as true and correct by a Responsible Officer thereof of the
Borrower and (ii) copies of all acknowledgements or consents required
pursuant to such Senior Notes in order to permit the transactions
contemplated hereby.
(f) REFINANCING. On the Closing Date, (i) all extensions of credit
under the Prior Credit Agreement ("Existing Extensions of Credit") made by any
Prior Lender who is not a Lender hereunder shall be repaid in full and the
commitments and other obligations and rights (except as expressly set forth in
the Prior Credit Agreement) of such Prior Lender shall be terminated, (ii) all
outstanding Existing Extensions of Credit shall be deemed Extensions of Credit
hereunder and the Administrative Agent shall make such transfers of funds as are
necessary in order that the outstanding balance of such Extensions of Credits,
together with any Extensions of Credit funded on the Closing Date, reflect the
Commitments of the Lenders hereunder, (iii) there shall have been paid in cash
in full all accrued but unpaid interest due on the Existing Extensions of Credit
to but excluding the Closing Date, (iv) there shall have been paid in cash in
full all accrued but unpaid fees under the Prior Credit Agreement due to but
excluding the Closing Date and all other amounts, costs and expenses then owing
to any of the Prior Lenders and/or First Union, as administrative agent under
the Prior Agreement and (v) all outstanding promissory notes issued by the
Borrower to the Prior Lenders under the Prior Credit Agreement shall be deemed
canceled and the originally executed copies thereof shall be promptly returned
to the Administrative Agent who shall forward such notes to the Borrower.
SECTION 5.3 CONDITIONS TO ALL LOANS AND LETTERS OF
CREDIT. The obligations of the Lenders to make any Loan or issue any Letter
of Credit is subject to the satisfaction of the following conditions
precedent on the relevant borrowing or issue date, as applicable:
(a) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in Article VI shall be true and correct
on and as of such borrowing or issuance date with the same effect as if made on
and as of such date; except for any representation and warranty made as of an
earlier date, which representation and warranty shall remain true and correct as
of such earlier date.
(b) NO EXISTING DEFAULT. No Default or Event of Default shall
have occurred and be continuing hereunder (i) on the borrowing date with respect
to such Loan or after giving effect to the Loans to be made on such date or (ii)
on the issue date with respect to such Letter of Credit or after giving effect
to the issuance of such Letters of Credit on such date.
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(c) OFFICER'S COMPLIANCE CERTIFICATE; ADDITIONAL DOCUMENTS. The
Administrative Agent shall have received the current Officer's Compliance
Certificate and each additional document, instrument or other item of
information reasonably requested by it.
SECTION 5.4 CONDITIONS TO FUNDING THE MCELROY
ACQUISITION. The obligation of the Lenders to fund the McElroy Acquisition
is subject to the satisfaction of the following conditions precedent (in
addition to those set forth in Sections 5.2 and 5.3) on the funding date:
(a) ACQUISITION AGREEMENT. The Administrative Agent shall have
received, at least ten (10) days prior to the date of funding of the
Acquisition, an executed copy of the Acquisition Agreement, together with all
exhibits and schedules thereto, certified as true and correct by a
Responsible Officer of the Borrower.
(b) REPRESENTATIONS AND WARRANTIES. All representations and
warranties set forth in the Acquisition Agreement shall be true and correct
as of such borrowing or issue date, no default shall exist thereunder and all
conditions thereto satisfied to the reasonable satisfaction of the
Administrative Agent.
(c) APPLICABLE CONSENTS. The Administrative Agent shall have
received a copy of any FCC Consent and any other Governmental Approval
required in connection with the McElroy Acquisition.
(d) CONSUMMATION. The transactions contemplated by the
Acquisition Agreement shall be consummated within ten (10) Business Days of
the Closing Date under this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 6.1 REPRESENTATIONS AND WARRANTIES. To
induce the Administrative Agent and Lenders to enter into this Agreement and
to induce the Lenders to make the Loans or issue or participate in the
Letters of Credit, the Borrower hereby represents and warrants to the
Administrative Agent and Lenders:
(a) ORGANIZATION; POWER; QUALIFICATION. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification and authorization. The
jurisdictions in which the Borrower and its Subsidiaries are organized and
qualified to do business as of the Closing Date are described on SCHEDULE
6.1(a).
(b) OWNERSHIP. Each Subsidiary of the Borrower as of the Closing
Date is listed on SCHEDULE 6.1(b). As of the Closing Date, the capitalization
of the Borrower and its Subsidiaries consists of the number of shares,
authorized, issued and outstanding, of such classes and series, with or
without par value, described on SCHEDULE 6.1(b). All outstanding shares have
been duly authorized and validly issued and are fully paid and nonassessable.
The shareholders of the Subsidiaries of the Borrower and the number of shares
owned by each as of the Closing Date are described on SCHEDULE 6.1(b). As of
the Closing Date, there are no outstanding stock purchase warrants,
subscriptions, options, securities, instruments or other rights of any type
or nature whatsoever, which are convertible into, exchangeable for or
otherwise provide for or permit the issuance of capital stock of the Borrower
or its Subsidiaries, except as described on SCHEDULE 6.1(b).
(c) AUTHORIZATION OF AGREEMENT, LOAN DOCUMENTS AND BORROWING. Each
of the Borrower and its Subsidiaries has the right, power and authority and
has taken all necessary corporate and other action to authorize the
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execution, delivery and performance of this Agreement and each of the other
Loan Documents to which it is a party in accordance with their respective
terms. This Agreement and each of the other Loan Documents have been duly
executed and delivered by the duly authorized officers of the Borrower and
each of its Subsidiaries party thereto, and each such document constitutes
the legal, valid and binding obligation of the Borrower or its Subsidiary
party thereto, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time
in effect which affect the enforcement of creditors' rights in general and
the availability of equitable remedies.
(d) COMPLIANCE OF AGREEMENT, LOAN DOCUMENTS AND BORROWING WITH LAWS,
ETC. The execution, delivery and performance by the Borrower and its
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the Extensions of Credit hereunder and
the transactions contemplated hereby do not and will not, by the passage of
time, the giving of notice or otherwise, (i) require any Governmental Approval
or violate any Applicable Law relating to the 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
the Borrower or any of its Subsidiaries or any indenture, agreement or other
instrument 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 (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 other than Liens arising
under the Loan Documents, or (iv) require any consent or authorization of,
filing with, or other act in respect of, an arbitrator or Governmental Authority
and no consent of any other Person is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement (other than
those consents that have been obtained).
(e) COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. Each of the
Borrower and its Subsidiaries (i) has all Governmental Approvals required by
any Applicable Law for it to conduct its business, each of which is in full
force and effect, is final and not subject to review on appeal and is not the
subject of any pending or, to the best of its knowledge, threatened attack by
direct or collateral proceeding, (ii) is in 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, and (iii) has timely
filed all material reports, documents and other materials required to be
filed by it under all Applicable Laws with any Governmental Authority and has
retained all material records and documents required to be retained by it
under Applicable Law.
(f) TAX RETURNS AND PAYMENTS. Each of the Borrower and its
Subsidiaries has duly filed or caused to be filed all federal, state, local
and other tax returns required by Applicable Law to be filed, 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. Such returns
accurately reflect in all material respects all liability for taxes of the
Borrower and its Subsidiaries for the periods covered thereby. There is no
ongoing audit or examination or, to the knowledge of the Borrower, other
investigation by any Governmental Authority of the tax liability of the
Borrower and its Subsidiaries. No Governmental Authority has asserted any
Lien or other claim against the Borrower or any Subsidiary thereof with
respect to unpaid taxes which has not been discharged or resolved. The
charges, accruals and reserves on the books of the Borrower and any of its
Subsidiaries in respect of federal, state, local and other taxes for all
Fiscal Years and portions thereof since the organization of the Borrower and
any of its Subsidiaries are in the judgment of the Borrower adequate, and the
Borrower does not anticipate any additional taxes or assessments for any of
such years.
(g) INTELLECTUAL PROPERTY MATTERS. Each of the Borrower and its
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, service mark, service mark rights
trade names, trade name rights, copyrights and rights with respect to the
foregoing which are required to conduct its business. 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, and neither the Borrower nor any
Subsidiary thereof is liable to any Person for infringement under Applicable Law
with respect to any such rights as a result of its business operations.
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(h) ENVIRONMENTAL MATTERS.
(i) The properties owned, leased or operated by the
Borrower and its Subsidiaries now or in the past do not contain, and to the
knowledge of the Borrower or any such Subsidiary have not previously
contained, any Hazardous Materials in amounts or concentrations which (A)
constitute or constituted a violation of applicable Environmental Laws or (B)
could give rise to liability under applicable Environmental Laws;
(ii) The Borrower, each Subsidiary and such properties
and all operations conducted in connection therewith are in compliance, and
have been in compliance, with all applicable Environmental Laws, and there is
no contamination at, under or about such properties or such operations which
could interfere with the continued operation of such properties or impair the
fair saleable value thereof;
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(iii) Neither the Borrower nor any Subsidiary thereof has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters, Hazardous
Materials, or compliance with Environmental Laws, nor does the Borrower or
any Subsidiary thereof have knowledge or reason to believe that any such
notice will be received or is being threatened;
(iv) Hazardous Materials have not been transported or
disposed of to or from the properties owned, leased or operated by the
Borrower and its Subsidiaries in violation of, or in a manner or to a
location which could give rise to liability under, Environmental Laws, nor
have any Hazardous Materials been generated, treated, stored or disposed of
at, on or under any of such properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Laws;
(v) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the Borrower,
threatened, under any Environmental Law to which the Borrower or any
Subsidiary thereof is or will be named as a potentially responsible party
with respect to such properties or operations conducted in connection
therewith, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
the Borrower, any Subsidiary or such properties or such operations; and
(vi) There has been no release, or to the best of the
Borrower's knowledge, threat of release, of Hazardous Materials at or from
properties owned, leased or operated by the Borrower or any Subsidiary, now
or in the past, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws.
(i) ERISA.
(i) As of the Closing Date, neither the Borrower nor
any ERISA Affiliate maintains or contributes to, or has any obligation under,
any Employee Benefit Plans other than those identified on SCHEDULE 6.1(i);
(ii) the Borrower and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Employee Benefit
Plans except for any required amendments for which the remedial amendment
period as defined in Section 401(b) of the Code has not yet expired. Each
Employee Benefit Plan that is intended to be qualified under Section 401(a)
of the Code has been determined by the Internal Revenue Service to be so
qualified, and each trust related to such plan has been determined to be
exempt under Section 501(a) of the Code. No liability has been incurred by
the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes
or penalties with respect to any Employee Benefit Plan or any Multiemployer
Plan;
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(iii) No Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code) been
incurred (without regard to any waiver granted under Section 412 of the
Code), nor has any funding waiver from the Internal Revenue Service been
received or requested with respect to any Pension Plan, nor has the Borrower
or any ERISA Affiliate failed to make any contributions or to pay any amounts
due and owing as required by Section 412 of the Code, Section 302 of ERISA or
the terms of any Pension Plan prior to the due dates of such contributions
under Section 412 of the Code or Section 302 of ERISA, nor has there been any
event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of
ERISA with respect to any Pension Plan;
(iv) Neither the Borrower nor any ERISA Affiliate has:
(A) engaged in a nonexempt prohibited transaction described in Section 406 of
the ERISA or Section 4975 of the Code, (B) incurred any liability to the PBGC
which remains outstanding other than the payment of premiums and there are no
premium payments which are due and unpaid, (C) failed to make a required
contribution or payment to a Multiemployer Plan, or (D) failed to make a
required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably
expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation
is existing or, to the best knowledge of the Borrower after due inquiry,
threatened concerning or involving any (A) employee welfare benefit plan (as
defined in Section 3(1) of ERISA) currently maintained or contributed to by
the Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer
Plan.
(j) MARGIN STOCK. Neither the Borrower nor any Subsidiary thereof is
engaged principally or as one of its activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used in Regulation U of the Board of Governors of the
Federal Reserve System). No part of the proceeds of any of the Loans or Letters
of Credit will be used for purchasing or carrying margin stock or for any
purpose which violates, or which would be inconsistent with, the provisions of
Regulation T, U or X of such Board of Governors.
(k) GOVERNMENT REGULATION. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company" (as each such term is defined or used in the Investment Company Act of
1940, as amended) and neither the Borrower nor any Subsidiary thereof is, or
after giving effect to any Extension of Credit will be, subject to regulation
under the Public Utility Holding Company Act of 1935 or the Interstate Commerce
Act, each as amended, or any other Applicable Law which limits its ability to
incur or consummate the transactions contemplated hereby.
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(l) MATERIAL CONTRACTS. SCHEDULE 6.1(l) sets forth a complete and
accurate list of all Material Contracts of the Borrower and its Subsidiaries in
effect as of the Closing Date not listed on any other Schedule hereto; other
than as set forth in SCHEDULE 6.1(l), each such Material Contract is, and after
giving effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof. The Borrower and its Subsidiaries have delivered to the Administrative
Agent a true and complete copy of each Material Contract required to be listed
on SCHEDULE 6.1(l) or any other Schedule hereto.
(m) EMPLOYEE RELATIONS. Each of the Borrower and its Subsidiaries
has a stable work force in place and is not, as of the Closing Date, party to
any collective bargaining agreement nor has any labor union been recognized
as the representative of its employees except as set forth on SCHEDULE
6.1(m). The Borrower knows of no pending, threatened or contemplated strikes,
work stoppage or other collective labor disputes involving its employees or
those of its Subsidiaries.
(n) BURDENSOME PROVISIONS. Neither the Borrower nor any Subsidiary
thereof is a party to any indenture, agreement, lease or other instrument, or
subject to any corporate or partnership restriction, Governmental Approval or
Applicable Law which is so unusual or burdensome as in the foreseeable future
could be reasonably expected to have a Material Adverse Effect. The Borrower and
its Subsidiaries do not presently anticipate that future expenditures needed to
meet the provisions of any statutes, orders, rules or regulations of a
Governmental Authority will be so burdensome as to have a Material Adverse
Effect. Other than certain promissory notes of Mid-Communications, Inc. payable
to Rural Utilities Service and Rural Telephone Bank in an aggregate principal
amount not to exceed $1,300,000, as set forth in the Borrower's financial
statements delivered pursuant to Section 5.2(d), no Subsidiary is party to any
agreement or instrument or otherwise subject to any restriction or encumbrance
that restricts or limits its ability to make dividend payments or other
distributions in respect of its capital stock to the Borrower or any Subsidiary
or to transfer any of its assets or properties to the Borrower or any other
Subsidiary in each case other than existing under or by reason of the Loan
Documents or Applicable Law.
(o) FINANCIAL STATEMENTS. The (i) Consolidated balance sheets of the
Borrower and its Subsidiaries as of December 31, 1998 and the related statements
of income and retained earnings and cash flows for the Fiscal Years then ended,
copies of which have been furnished to the Administrative Agent and each Lender,
are complete and correct and fairly present the assets, liabilities and
financial position of the Borrower and its Subsidiaries as at such dates, and
the results of the operations and changes of financial position for the periods
then ended and (ii) unaudited Consolidated balance sheet of the Borrower and its
Subsidiaries as of March 31, 1999, and related unaudited interim statements of
revenue and retained earnings. All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP.
The Borrower and its Subsidiaries have no Debt, obligation or other unusual
forward or long-term commitment which is not fairly reflected in the foregoing
financial statements or in the notes thereto.
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(p) SOLVENCY. As of the Closing Date and after giving effect to
each Extension of Credit made hereunder, the Borrower and each of its
Subsidiaries will be Solvent.
(q) TITLES TO PROPERTIES. Each of the Borrower and its
Subsidiaries has such title to the real property owned by it as is necessary
or desirable to the conduct of its business and valid and legal title to all
of its personal property and assets, including, but not limited to, those
reflected on the balance sheets of the Borrower and its Subsidiaries
delivered pursuant to Section 6.1(o), except those which have been disposed
of by the Borrower or its Subsidiaries subsequent to such date which
dispositions have been in the ordinary course of business or as otherwise
expressly permitted hereunder.
(r) LIENS. None of the properties and assets of the Borrower or any
Subsidiary thereof is subject to any Lien, except Liens permitted pursuant to
Section 10.2. No financing statement under the Uniform Commercial Code of any
state which names the Borrower or any Subsidiary thereof or any of their
respective trade names or divisions as debtor and which has not been terminated,
has been filed in any state or other jurisdiction and neither the Borrower nor
any Subsidiary thereof has signed any such financing statement or any security
agreement authorizing any secured party thereunder to file any such financing
statement, except to perfect those Liens permitted by Section 10.2 hereof.
(s) DEBT AND GUARANTY OBLIGATIONS. SCHEDULE 6.1(s) is a complete and
correct listing of all Debt and Guaranty Obligations of the Borrower and its
Subsidiaries as of the Closing Date in excess of $500,000. The Borrower and its
Subsidiaries have performed and are in compliance with all of the terms of such
Debt and Guaranty Obligations and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which with
notice or lapse of time or both would constitute such a default or event of
default on the part of the Borrower or its Subsidiaries exists with respect to
any such Debt or Guaranty Obligation.
(t) LITIGATION. As of the Closing Date, there are no actions, suits
or proceedings pending nor, to the knowledge of the Borrower, threatened
against or in any other way relating adversely to or affecting the Borrower
or any Subsidiary thereof or any of their respective properties in any court
or before any arbitrator of any kind or before or by any Governmental
Authority, except, in each case, as set forth on SCHEDULE 6.1(t).
(u) ABSENCE OF DEFAULTS. No event has occurred or is continuing
which constitutes a Default or an Event of Default, or which constitutes, or
which with the passage of time or giving of notice or both would constitute,
a default or event of default by the Borrower or any Subsidiary thereof under
any Material Contract or judgment, decree or order to which the Borrower or
its Subsidiaries is a party or by which the Borrower or its Subsidiaries or
any of their respective properties may be bound or which would require the
Borrower or its Subsidiaries to make any payment thereunder prior to the
scheduled maturity date therefor.
(v) ACCURACY AND COMPLETENESS OF INFORMATION. All written
information, reports and other papers and data produced by or on behalf of
the Borrower or any Subsidiary thereof and furnished to the Lenders were, at
the time the same were so furnished, complete and correct in all respects to
the extent necessary to give the recipient a true and accurate knowledge of
the subject matter. No document furnished or written statement made to the
Administrative Agent or the Lenders by the Borrower or any Subsidiary thereof
in connection with the negotiation, preparation or execution of this
Agreement or any of the Loan Documents contains or will contain any untrue
statement of a fact material to the creditworthiness of the Borrower or its
Subsidiaries or omits or will omit to state a fact necessary in order to make
the statements contained therein not misleading. The Borrower is not aware of
any facts which it has not disclosed in writing to the Administrative Agent
having a Material Adverse Effect, or insofar as the Borrower can now foresee,
could reasonably be expected to have a Material Adverse Effect.
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(w) REGULATORY MATTERS.
(i) NETWORK AGREEMENTS, ETC. Each Network Agreement which
qualifies as a Material Contract hereunder, to which the Borrower or any
Subsidiary is a party is set forth on Part 1 of SCHEDULE 6.1(w) hereto. Except
for Network Agreements so designated on Part 1 of such Schedule, neither the
Borrower nor any Subsidiary is a party to (i) any management or similar
agreements with respect to the FCC Licenses held by any such Person or (ii) any
agreement pursuant to which any such Person has agreed to share with others any
portion of the revenues derived from any such FCC Licenses, or pursuant to which
such FCC Licenses shall be subject to any right on the part of any other Person
to require the Borrower or any Subsidiary to sell any such FCC Licenses. The
terms of all Network Agreements to which the Borrower or any Subsidiary is a
party, and the operation of each Cellular Communications System pursuant
thereto, comply with the Communications Act of 1934, as amended, and all rules,
regulations and policies of the FCC, any PUC and of any other Governmental
Authority. Each Network Agreement has been duly executed and delivered by the
respective parties thereto, is in full force and effect and neither the Borrower
nor any Subsidiary is in default of any of the provisions thereof.
(ii) LICENSE INFORMATION. To the extent requested by the
Administrative Agent, Part 2 of SCHEDULE 6.1(w) hereto sets forth, as of the
date hereof (or as of the dates specified on such Schedule with respect to
particular information), a true and complete list of the following information
for each FCC License or PUC Authorization issued to the Borrower or any
Subsidiary:
(1) for each FCC License issued to the Borrower or any
Subsidiary, the call sign, the name of the licensee, the transmitter
location, the type of service, the frequency or frequencies authorized,
the site name or location and the expiration dates; and
(2) for each PUC Authorization issued to the Borrower or any
Subsidiary, the geographic area covered by such Authorization, the
services that may be provided thereunder and the expiration date, if
any.
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(iii) CONDITION OF SYSTEMS. All of the material properties,
equipment and systems owned, leased or managed by the Borrower or any
Subsidiary, and constituting part of the Telecommunications Systems are, and all
such property, equipment and systems to be a acquired or added in connection
with any contemplated system expansion or construction will be in compliance
with all terms and conditions of their respective FCC Licenses and PUC
Authorizations, and other Applicable Laws.
(iv) FEES. The Borrower and each Subsidiary has paid all
franchise, license or other fees and charges which have become due in respect of
the Telecommunications Systems and has made appropriate provision as is required
by GAAP for any such fees and charges which have accrued, except for such fees
an charges being contested in good faith by appropriate proceedings.
(v) LICENSE COMPLIANCE. Except as specifically set forth in
Part 2 of SCHEDULE 6.1(w) hereto, the Borrower and its Subsidiaries have secured
all material FCC Licenses, and, if applicable, any PUC and any other
Governmental Authority exercising jurisdiction over the Telecommunications
Systems of any such Person (or the construction of delivery systems therefor)
required for the conduct of the business and operations of such business as
currently conducted.
(vi) The FCC Licenses and PUC Authorizations specified on Part
2 of SCHEDULE 6.1(w) hereto are valid and in full force and effect without
conditions except for such conditions as are generally applicable to holders of
FCC Licenses and such Authorizations. No event has occurred and is continuing
which could (i) result in the imposition of a forfeiture or the revocation,
termination or adverse modification of any FCC License or PUC Authorization
specified in Part 2 of SCHEDULE 6.1(w) hereto or (ii) materially and adversely
affect any rights of the Borrower or any Subsidiary; neither the Borrower nor
any Subsidiary has reason to believe and has knowledge that the FCC Licenses and
PUC Authorizations specified in Part 2 of SCHEDULE 6.1(w) hereto will not be
renewed in the ordinary course; and the Borrower and its Subsidiaries have
sufficient time, materials, equipment, contract rights and other required
resources to complete, in a timely fashion and in full, construction of any
Cellular Communications System in compliance with all Applicable Laws.
(x) NO MATERIAL ADVERSE CHANGE. Since December 31, 1998, there has
been no material adverse change in the properties, business, operations,
prospects, or condition (financial or otherwise) of the Borrower and its
Subsidiaries and no event has occurred or condition arisen that could
reasonably be expected to have a Material Adverse Effect.
SECTION 6.2 SURVIVAL OF REPRESENTATIONS AND
WARRANTIES, ETC. All representations and warranties set forth in this Article
VI and all representations and warranties contained in any certificate, or
any of the Loan Documents (including but not limited to any such
representation or warranty made in or in connection with any amendment
thereto) shall constitute representations and warranties made under this
Agreement. All representations and warranties made under this Agreement shall
be made or deemed to be made on and as of the Closing Date, shall survive the
Closing Date, pursuant to Section 5.3 and 5.4, and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on
behalf of the Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 13.11 hereof, the Borrower will furnish or cause to be furnished to
the Administrative Agent at the Administrative Agent's Office at the address set
forth in Section 13.1, and to the
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Lenders at their respective addresses as set forth on Schedule 1, or such
other office as may be designated by the Administrative Agent and Lenders
from time to time:
SECTION 7.1 FINANCIAL STATEMENTS AND PROJECTIONS.
(a) QUARTERLY FINANCIAL STATEMENTS. As soon as practicable and in any
event within forty-five (45) days after the end of each of the first three
fiscal quarters of any Fiscal Year, an unaudited Consolidated and consolidating
balance sheet of the Borrower and its Subsidiaries as of the close of such
fiscal quarter and unaudited Consolidated and consolidating statements of
income, retained earnings and cash flows for the fiscal quarter then ended and
that portion of the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures
for the preceding Fiscal Year and prepared by the Borrower in accordance with
GAAP and, if applicable, containing disclosure of the effect on the financial
position or results of operations of any change in the application of accounting
principles and practices during the period, and certified by the chief financial
officer of the Borrower to present fairly in all material respects the financial
condition of the Borrower and its Subsidiaries as of their respective dates and
the results of operations of the Borrower and its Subsidiaries for the
respective periods then ended, subject to normal year end adjustments.
(b) ANNUAL FINANCIAL STATEMENTS. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of the Borrower and its Subsidiaries as of the close
of such Fiscal Year and audited Consolidated statements of income, retained
earnings and cash flows for the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by an
independent certified public accounting firm acceptable to the Administrative
Agent in accordance with GAAP and, if applicable, containing disclosure of the
effect on the financial position or results of operation of any change in the
application of accounting principles and practices during the year, and
accompanied by a report thereon by such certified public accountants that is not
qualified with respect to scope limitations imposed by the Borrower or any of
its Subsidiaries or with respect to accounting principles followed by the
Borrower or any of its Subsidiaries not in accordance with GAAP.
(c) ANNUAL BUSINESS PLAN AND FINANCIAL PROJECTIONS. As soon as
practicable and in any event within forty-five (45) days prior to the beginning
of each Fiscal Year, a business plan of the Borrower and its Subsidiaries for
the ensuing four (4) fiscal quarters, such plan to be prepared in accordance
with GAAP and to include, on a quarterly basis, the following: a quarterly
operating and capital budget, a projected income statement, statement of cash
flows and balance sheet and a report containing management's discussion and
analysis of such projections, accompanied by a certificate from the chief
financial officer of the Borrower to the effect that, to the best of such
officer's knowledge, such projections are good faith estimates of the financial
condition and operations of the Borrower and its Subsidiaries for such four (4)
quarter period.
SECTION 7.2 FCC AND PUC MATTERS. As soon as
available and in any event within 45 days after the end of each fiscal
quarter of the Borrower, an updated SCHEDULE 6.1(w) hereto accompanied by a
report identifying any Network Agreement previously scheduled, FCC License or
PUC Authorization terminated, lost, surrendered or cancelled during such
period, and within 10 Business Days of the receipt by the Borrower or any
Subsidiary of notice that any Network Agreement previously scheduled, FCC
License or PUC Authorization has been terminated, lost or cancelled, copies
of any such notice accompanied by a report describing the measures undertaken
by the Borrower and its Subsidiaries to prevent such termination, loss or
cancellation (and the anticipated impact, if any, that such termination, loss
or cancellation will have upon the business of the Borrower and its
Subsidiaries).
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SECTION 7.3 OFFICER'S COMPLIANCE CERTIFICATE. At
each time financial statements are delivered pursuant to Sections 7.1(a) or
(b) and at such other times as the Administrative Agent shall reasonably
request, a certificate of the chief financial officer or the treasurer of the
Borrower in the form of Exhibit E attached hereto (an "Officer's Compliance
Certificate").
SECTION 7.4 ACCOUNTANTS' CERTIFICATE. At each time
financial statements are delivered pursuant to Section 7.1(b), a certificate
of the independent public accountants certifying such financial statements
addressed to the Administrative Agent for the benefit of the Lenders:
(a) stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of any
Default or Event of Default or, if such is not the case, specifying such Default
or Event of Default and its nature and period of existence; and
(b) including the calculations prepared by such accountants required to
establish whether or not the Borrower and its Subsidiaries are in compliance
with the financial covenants set forth in Article IX hereof as at the end of
each respective period.
SECTION 7.5 OTHER REPORTS.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or its Board of Directors by its independent public
accountants in connection with their auditing function, including, without
limitation, any management report and any management responses thereto; and
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(b) Such other information regarding the operations, business affairs
and financial condition of the Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
SECTION 7.6 NOTICE OF LITIGATION AND OTHER MATTERS.
Prompt (but in no event later than ten (10) days after an officer of the
Borrower obtains knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceedings in any court or
before any arbitrator against or involving the Borrower or any Subsidiary
thereof or any of their respective properties, assets or businesses;
(b) any notice of any violation received by the Borrower or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws;
(c) any labor controversy that has resulted in, or threatens to result
in, a strike or other work action against the Borrower or any Subsidiary
thereof;
(d) any attachment, judgment, lien, levy or order exceeding $500,000
that may be assessed against or threatened against the Borrower or any
Subsidiary thereof;
(e) any Default or Event of Default, or any event which constitutes or
which with the passage of time or giving of notice or both would constitute a
default or event of default under any Material Contract to which the Borrower or
any of its Subsidiaries is a party or by which the Borrower or any Subsidiary
thereof or any of their respective properties may be bound;
(f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by the
Borrower or any ERISA Affiliate of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan, (iii) all
notices received by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA and (iv) the Borrower obtaining knowledge or
reason to know that the Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA; and
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(g) any event which makes any of the representations set forth in
Section 6.1 inaccurate in any respect.
SECTION 7.7 ACCURACY OF INFORMATION. All written
information, reports, statements and other papers and data furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender (other than
financial forecasts) whether pursuant to this Article VII or any other
provision of this Agreement, shall, at the time the same is so furnished,
comply with Section 6.1(v).
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
provided for in Section 13.11, the Borrower will, and will cause each of its
Subsidiaries to:
SECTION 8.1 PRESERVATION OF CORPORATE EXISTENCE AND
RELATED MATTERS. Except as permitted by Section 10.4, preserve and maintain
its separate corporate existence and all rights, franchises, licenses and
privileges necessary to the conduct of its business, and qualify and remain
qualified as a foreign corporation and authorized to do business in each
jurisdiction where the nature and scope of its activities require it to so
qualify under Applicable Law.
SECTION 8.2 MAINTENANCE OF PROPERTY. Protect and
preserve all properties useful in and material to its business, including
copyrights, patents, trade names and trademarks; maintain in good working
order and condition all buildings, equipment and other tangible real and
personal property; and from time to time make or cause to be made all
renewals, replacements and additions to such property necessary for the
conduct of its business, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
SECTION 8.3 INSURANCE. Maintain insurance with
financially sound and reputable insurance companies against such risks and in
such amounts as are customarily maintained by similar businesses and as may
be required by Applicable Law, and on the Closing Date and from time to time
thereafter deliver to the Administrative Agent upon its request a detailed
list of the insurance then in effect, stating the names of the insurance
companies, the amounts and rates of the insurance, the dates of the
expiration thereof and the properties and risks covered thereby.
SECTION 8.4 ACCOUNTING METHODS AND FINANCIAL
RECORDS. Maintain a system of accounting, and keep such books, records and
accounts (which shall be true and complete in all material respects) as may
be required or as may be necessary to permit the preparation of financial
statements in accordance with GAAP and in compliance with the regulations of
any Governmental Authority having jurisdiction over it or any of its
properties.
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SECTION 8.5 PAYMENT AND PERFORMANCE OF OBLIGATIONS.
Pay and perform all Obligations under this Agreement and the other Loan
Documents, and pay or perform (a) all taxes, assessments and other
governmental charges that may be levied or assessed upon it or any of its
property, and (b) all other indebtedness, obligations and liabilities in
accordance with customary trade practices; PROVIDED, that the Borrower or
such Subsidiary may contest any item described in clauses (a) or (b) of this
Section 8.5 in good faith so long as adequate reserves are maintained with
respect thereto in accordance with GAAP.
SECTION 8.6 COMPLIANCE WITH LAWS AND APPROVALS.
Observe and remain in compliance with all Applicable Laws and maintain in
full force and effect all Governmental Approvals, in each case applicable to
the conduct of its business.
SECTION 8.7 ENVIRONMENTAL LAWS. In addition to and
without limiting the generality of Section 8.6, (a) comply with, and ensure
such compliance by all tenants and subtenants with all applicable
Environmental Laws and obtain and comply with and maintain, and ensure that
all tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply with all lawful orders
and directives of any Governmental Authority regarding Environmental Laws,
and (c) defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
Administrative Agents, officers and directors, from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the presence of
Hazardous Materials, or the violation of, noncompliance with or liability
under any Environmental Laws applicable to the operations of the Borrower or
such Subsidiary, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent that any of
the foregoing directly result from the gross negligence or willful misconduct
of the party seeking indemnification therefor.
SECTION 8.8 COMPLIANCE WITH ERISA. In addition to
and without limiting the generality of Section 8.6, (a) comply with all
applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans, (b)
not take any action or fail to take action the result of which could be a
liability to the PBGC or to a Multiemployer Plan, (c) not participate in any
prohibited transaction that could result in any civil penalty under ERISA or
tax under the Code, (d) operate each Employee Benefit Plan in such a manner
that will not incur any tax liability under Section 4980B of the Code or any
liability to any qualified beneficiary as defined in Section 4980B of the
Code and (e) furnish to the Administrative Agent upon the Administrative
Agent's request such additional information about any Employee Benefit Plan
as may be reasonably requested by the Administrative Agent.
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SECTION 8.9 COMPLIANCE WITH AGREEMENTS. Comply in
all respects with each term, condition and provision of all leases,
agreements and other instruments entered into in the conduct of its business
including, without limitation, any Material Contract; PROVIDED, that the
Borrower or such Subsidiary may contest any such lease, agreement or other
instrument in good faith through applicable proceedings so long as adequate
reserves are maintained in accordance with GAAP.
SECTION 8.10 CONDUCT OF BUSINESS. Engage only in
businesses in which engaged as of the date of the Prior Credit Agreement,
businesses acquired pursuant to the Acquisition and businesses reasonably
related thereto and in furtherance thereof.
SECTION 8.11 VISITS AND INSPECTIONS. Permit
representatives of the Administrative Agent or any Lender, from time to time,
to visit and inspect its properties; inspect, audit and make extracts from
its books, records and files, including, but not limited to, management
letters prepared by independent accountants; and discuss with its principal
officers, and its independent accountants, its business, assets, liabilities,
financial condition, results of operations and business prospects.
SECTION 8.12 YEAR 2000 COMPATIBILITY. Take all
actions reasonably necessary to assure that Borrower's computer based systems
are able to operate and effectively process data which includes dates on and
after January 1, 2000. At the request of the Administrative Agent, the
Borrower shall provide reasonable assurances satisfactory to the
Administrative Agent of the Borrower's Year 2000 compatibility.
SECTION 8.13 FURTHER ASSURANCES. Make, execute and
deliver all such additional and further acts, things, deeds and instruments
as the Administrative Agent or any Lender may reasonably require to document
and consummate the transactions contemplated hereby and to vest completely in
and insure the Administrative Agent and the Lenders their respective rights
under this Agreement and the other Loan Documents.
SECTION 8.14 COBANK PARTICIPATION CERTIFICATES. The
Borrower shall, at all times during which CoBank, ACB ("CoBank") is a Lender
hereunder, acquire and maintain non-voting participation certificates in
CoBank (the "Participation Certificates") in such amounts and at such times
as CoBank may from time to time require in accordance with its bylaws and
capital plan (as each may be amended from time to time); provided, however,
that the maximum amount of Participation Certificates that the Borrower may
be required to purchase may not exceed the maximum amount permitted by
CoBank's bylaws as in effect on the date hereof. The rights and obligations
of the parties with respect to the Participation Certificates and any other
patronage or other distributions shall be governed by CoBank's bylaws.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full
and the Commitments terminated, unless consent has been obtained in the
manner set forth in Section 13.11 hereof, the Borrower and its Subsidiaries
on a Consolidated basis will not:
SECTION 9.1. MAXIMUM LEVERAGE RATIO. As of any date
of determination during the applicable period set forth below, permit the
ratio (the "LEVERAGE RATIO") of (a) Total Debt as of the fiscal quarter
ending on or immediately prior to such date of determination to (b) EBITDA
for the four consecutive fiscal quarter period ending on such fiscal quarter
end, to exceed the corresponding ratio set forth below:
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<TABLE>
<CAPTION>
Period Percentage
------ ----------
<S> <C>
Closing Date through June 30, 2000 3.50 to 1.00
Thereafter 3.00 to 1.00
</TABLE>
SECTION 9.2 TOTAL CAPITALIZATION RATIO. As of any
date of determination during the applicable period set forth below, permit
the percentage of (a) Stockholders' Equity as of the fiscal quarter ending on
or immediately prior to such date to (b) Total Capitalization as of such
fiscal quarter end to be less than the corresponding percentages as set forth
below:
<TABLE>
<CAPTION>
Period Percentage
------ ----------
<S> <C>
Closing Date through December 31, 2000 30%
Thereafter 35%
</TABLE>
SECTION 9.3. FIXED CHARGE COVERAGE RATIO. As of any
date of determination during the applicable period set forth below, permit
the ratio of (a) EBITDA for any Fiscal Year to (b) Fixed Charges for such
Fiscal Year, to be less than the corresponding ratio set forth below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Fiscal Year 2000 1.00 to 1.00
Fiscal Year 2001 and thereafter 1.05 to 1.00
</TABLE>
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full
and the Commitments terminated, unless consent has been obtained in the
manner set forth in Section 13.11 hereof, the Borrower will not and will not
permit any of its Subsidiaries to:
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SECTION 10.1 LIMITATIONS ON DEBT. Create, incur,
assume or suffer to exist any Debt except:
(a) the Obligations;
(b) Debt incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions (including interest rate) reasonably
satisfactory to the Administrative Agent;
(c) Debt existing on the Closing Date and not otherwise permitted
under this Section 10.1, as set forth on SCHEDULE 6.1(s) and the renewal and
refinancing (but not the increase at the aggregate principal amount thereof)
thereof;
(d) (i) Debt incurred in connection with Capitalized Leases, (ii)
purchase money Debt, (iii) Debt consisting of Guaranty Obligations, and (iv) any
other Debt, in an aggregate principal amount for all Debt referred to in this
Section 10.1(d) not to exceed $10,000,000 on any date of determination;
(e) the Senior Notes in an aggregate outstanding principal amount not
to exceed $40,000,000.
SECTION 10.2 LIMITATIONS ON LIENS. Create, incur,
assume or suffer to exist, any Lien on or with respect to any of its assets
or properties (including without limitation shares of capital stock or other
ownership interests), real or personal, whether now owned or hereafter
acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related thereto has not expired or which are
being contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP;
(b) statutory Liens in favor of CoBank on all equity evidenced by the
Participation Certificates which the Borrower may now own or hereafter acquire
or be allocated in CoBank.
(c) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings and statutory liens of landlords with regard to any
leased property;
(d) Liens consisting of deposits or pledges made in the ordinary
course of business in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation or
obligations (not to exceed $500,000) under customer service contracts;
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(e) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, detract from the value of such property or impair the use thereof
in the ordinary conduct of business;
(f) Liens not otherwise permitted by this Section 10.2 and in
existence on the Closing Date and described on SCHEDULE 10.2; and
(g) Liens securing purchase money Debt permitted under Section
10.1(d); PROVIDED that (i) such Liens shall be created substantially
simultaneously with the acquisition of the related asset, (ii) such Liens do
not at any time encumber any property other than the property financed by
such Debt, (iii) the amount of Debt secured thereby is not increased and (iv)
the principal amount of Debt secured by any such Lien shall at no time exceed
one hundred percent (100%) of the original purchase price of such property at
the time it was acquired.
SECTION 10.3 LIMITATIONS ON LOANS, ADVANCES,
INVESTMENTS AND ACQUISITIONS. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any capital stock, interests in any partnership or
joint venture (including without limitation the creation or capitalization of
any Subsidiary), evidence of Debt or other obligation or security,
substantially all or a portion of the business or assets of any other Person
or any other investment or interest whatsoever in any other Person, or make
or permit to exist, directly or indirectly, any loans, advances or extensions
of credit to, or any investment in cash or by delivery of property in, any
Person except:
(a) investments existing on the Closing Date in Subsidiaries and the
other existing loans, advances and investments not otherwise permitted by this
Section 10.3 described on SCHEDULE 10.3;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within 120 days from the date of acquisition thereof, (ii) commercial
paper maturing no more than 120 days from the date of creation thereof and
currently having the highest rating obtainable from either Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc. or Moody's
Investors Service, Inc., (iii) certificates of deposit maturing no more than 120
days from the date of creation thereof issued by commercial banks incorporated
under the laws of the United States of America, each having combined capital,
surplus and undivided profits of not less than $500,000,000 and having a rating
of "A" or better by a nationally recognized rating agency; PROVIDED, that the
aggregate amount invested in such certificates of deposit shall not at any time
exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for
any one such bank, or (iv) time deposits maturing no more than 30 days from the
date of creation thereof with commercial banks or savings banks or savings and
loan associations each having membership either in the FDIC or the deposits of
which are insured by the FDIC and in amounts not exceeding the maximum amounts
of insurance thereunder;
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(c) investments by the Borrower or any Subsidiary in the form of (i)
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)
of any other Person or (ii) investments in Subsidiaries, so long as such
acquisition or investment has been previously approved in writing by the
Required Lenders; PROVIDED, HOWEVER, that the Borrower or any Subsidiary shall
be permitted to make any one or more individual acquisitions or a series of
related acquisitions (or for any such investment) with a total consideration (or
investment amount) of up to $15,000,000 per any such acquisition or series of
related acquisitions (or any such investment) without the approval of the
Required Lenders so long as (i) no Default or Event of Default shall have
occurred and be continuing or shall be created thereby, (ii) the Borrower shall
have delivered to the Administrative Agent financial projections in form and
substance reasonably satisfactory to the Administrative Agent, evidencing
compliance, on a PRO FORMA basis, with the covenants contained in Articles IX
and X and (iii) the total consideration for such acquisitions (or investment)
does not exceed in the aggregate $35,000,000 during the term of this Agreement
(excluding total consideration not to exceed $38,000,000 for the McElroy
Acquisition paid on the closing date thereof, not including up to $6,000,000
paid by the buyer for tower construction).
(d) investments in Participation Certificates of CoBank to the extent
required by Section 8.14.
SECTION 10.4 LIMITATIONS ON MERGERS AND LIQUIDATION.
Merge, consolidate or enter into any similar combination with any other
Person or liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution) except:
(a) any Wholly-Owned Subsidiary of the Borrower may merge with any
other Wholly-Owned Subsidiary of the Borrower or into the Borrower, as long as
the Borrower is the surviving corporation;
(b) any Wholly-Owned Subsidiary may merge into the Person such
Wholly-Owned Subsidiary was formed to acquire in connection with an acquisition
permitted by Section 10.3(c); and
(c) any Wholly-Owned Subsidiary of the Borrower may wind-up into the
Borrower or any other Wholly-Owned Subsidiary of the Borrower.
PROVIDED that prior to any merger permitted under this Section 10.4, the
Borrower shall deliver to the Administrative Agent evidence reasonably
satisfactory thereto demonstrating compliance with Articles IX and X of this
Agreement, both before and after giving effect to such merger.
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SECTION 10.5 LIMITATIONS ON SALE OF ASSETS.
Convey, sell, lease, assign, transfer or otherwise dispose of any of its
property, business or assets (including, without limitation, the sale of any
receivables and leasehold interests and any sale-leaseback or similar
transaction), whether now owned or hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of obsolete assets no longer used or usable in the
business of the Borrower or any of its Subsidiaries;
(c) the transfer of assets to the Borrower or any Wholly-Owned
Subsidiary of the Borrower pursuant to any transaction permitted by Section
10.4;
(d) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof; and
(e) any other sale of assets; PROVIDED that (i) after giving
effect to such asset sale, EBITDA attributable to all assets sold or to be
sold (A) during the then-current Fiscal Year does not exceed ten percent
(10%) of total EBITDA for the period of twelve (12) consecutive months ending
on the month end immediately preceding the date of such proposed sale, and
(B) during the term of this Agreement, does not exceed, twenty percent (20%)
of total EBITDA for the period of four (4) consecutive fiscal quarters ending
on the quarter end immediately preceding the date of such proposed sale and
(ii) if applicable, the Net Cash Proceeds thereof are applied to the Loans in
accordance with Section 2.3.
SECTION 10.6 LIMITATIONS ON DIVIDENDS AND
DISTRIBUTIONS. Declare or pay any dividends upon any of its capital stock;
purchase, redeem, retire or otherwise acquire, directly or indirectly, any
shares of its capital stock, or make any distribution of cash, property or
assets among the holders of shares of its capital stock, or make any change
in its capital structure; PROVIDED that:
(a) the Borrower or any Subsidiary may pay dividends in shares of
its own capital stock;
(b) the Borrower may pay cash dividends to its equityholders;
PROVIDED that (i) such dividends shall not exceed in any Fiscal Year one
hundred percent (100%) of Net Income for the immediately preceding Fiscal
Year AND (ii) the Borrower shall have delivered to the Administrative Agent
evidence reasonably satisfactory thereto demonstrating compliance with
Article IX and X hereof both before and after giving effect to such dividend
payment; and
(c) any Subsidiary may pay cash dividends to the Borrower.
SECTION 10.7 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 Debt or (b)
required to be redeemed or repurchased, including at the option of the
holder, in whole or in part, or has, or upon the happening of an event or
passage of time would have, a redemption or similar payment due.
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SECTION 10.8 TRANSACTIONS WITH AFFILIATES.
Directly or indirectly (a) make any loan or advance to, or purchase or
assume any note or other obligation to or from, any of its officers,
directors, shareholders or other Affiliates, or to or from any member of the
immediate family of any of its officers, directors, shareholders or other
Affiliates, or subcontract any operations to any of its Affiliates or (b)
enter into, or be a party to, any other transaction not described in clause
(a) of this Section with any of its Affiliates, except pursuant to the
reasonable requirements of its business and upon fair and reasonable terms
that are fully disclosed to and approved in writing by the Required Lenders
prior to the consummation thereof and are no less favorable to it than it
would obtain in a comparable arm's length transaction with a Person not its
Affiliate.
SECTION 10.9 CERTAIN ACCOUNTING CHANGES.
Change its Fiscal Year end, or make any change in its accounting treatment
and reporting practices except as required by GAAP.
SECTION 10.10 AMENDMENTS; PAYMENTS AND
PREPAYMENTS. Amend or modify (or permit the modification or amendment of) any
of the terms or provisions of any permitted Debt or the Senior Notes, 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 permitted Debt or the Senior
Notes.
SECTION 10.11 RESTRICTIVE AGREEMENTS. (a) Enter
into any Debt which contains any negative pledge on assets or any covenants
more restrictive than the provisions of Articles VIII, IX and X hereof, or
which restricts, limits or otherwise encumbers its ability to incur Liens on
or with respect to any of its assets or properties other than the assets or
properties securing such Debt or (b) enter into any agreement which shall
restrict, limit or otherwise encumber (by covenant or otherwise) the ability
of any Subsidiary of the Borrower to make any payment to the Borrower (in the
form of dividends, intercompany advances or otherwise) for the purpose of
enabling the Borrower to pay the Obligations.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 EVENTS OF DEFAULT. Each of the
following shall constitute an Event of Default, whatever the reason for such
event and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment or order of any court or any
order, rule or regulation of any Governmental Authority or otherwise:
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(a) DEFAULT IN PAYMENT OF PRINCIPAL OF LOANS AND REIMBURSEMENT
OBLIGATIONS. The Borrower shall default in any payment of principal of any Loan,
Note or Reimbursement Obligation when and as due (whether at maturity, by reason
of acceleration or otherwise).
(b) OTHER PAYMENT DEFAULT. The Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation.
(c) MISREPRESENTATION. Any representation or warranty made or deemed to
be made by the Borrower or any of its Subsidiaries under this Agreement, any
Loan Document or any amendment hereto or thereto, shall at any time prove to
have been incorrect or misleading in any material respect when made or deemed
made.
(d) DEFAULT IN PERFORMANCE OF CERTAIN COVENANTS. The Borrower shall
default in the performance or observance of any covenant or agreement contained
in Section 5.4(a), Sections 7.1 through 7.5 or Articles IX or X of this
Agreement.
(e) DEFAULT IN PERFORMANCE OF OTHER COVENANTS AND CONDITIONS. The
Borrower or any Subsidiary thereof shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this Section
11.1) or any other Loan Document and such default shall continue for a period of
thirty (30) days after written notice thereof has been given to the Borrower by
the Administrative Agent.
(f) HEDGING AGREEMENT. Any termination payment shall be due by the
Borrower under any Hedging Agreement to which any Lender is a party and such
amount is not paid within thirty (30) Business Days of the due date thereof.
(g) DEBT CROSS-DEFAULT. The Borrower or any of its Subsidiaries shall
(i) default in the payment of any Debt (other than the Notes or any
Reimbursement Obligation) or interest thereon or other Obligation, the aggregate
outstanding amount of which Debt is in excess of $1,000,000 beyond the period of
grace if any, provided in the instrument or agreement under which such Debt was
created, or (ii) default in the observance or performance of any other agreement
or condition relating to any Debt (other than the Notes or any Reimbursement
Obligation) the aggregate outstanding amount of which Debt is in excess of
$1,000,000 or contained in any instrument or agreement evidencing, securing or
relating thereto or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or holders of such Debt (or a trustee or agent on behalf of such holder
or holders) to cause, with the giving of notice if required, any such Debt to
become due prior to its stated maturity (any applicable grace period having
expired).
(h) OTHER CROSS-DEFAULTS. The Borrower or any of its Subsidiaries shall
default in the payment when due, or in the performance or observance, of any
obligation or condition of any Material Contract unless, but only as long as,
the existence of any such default is being contested by the Borrower or such
Subsidiary in good faith by appropriate proceedings and adequate reserves in
respect thereof have been established on the books of the Borrower or such
Subsidiary to the extent required by GAAP.
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(i) CHANGE IN CONTROL. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended)
other than the Current Management Group shall obtain ownership or control in one
or more series of transactions of more than twenty percent (20%) of the common
stock or twenty percent (20%) of the voting power of the Borrower entitled to
vote in the election of members of the board of directors of the Borrower or
there shall have occurred under any indenture or other instrument evidencing any
Debt in excess of $1,000,000 any "change in control" (as defined in such
indenture or other evidence of Debt) obligating the Borrower to repurchase,
redeem or repay all or any part of the Debt or capital stock provided for
therein (any such event, a "Change in Control"). As used herein, "Current
Management Group" means any group referred to above which includes, and is under
the general direction and authority of, at least two of Robert Alton, David
Christensen, John Finke, Mary Jacobs, Bruce Malmgren, F. Ernest Lombard and Jon
Anderson so long as such individuals continue to be employed in a managerial
capacity by the Borrower.
(j) VOLUNTARY BANKRUPTCY PROCEEDING. The Borrower or any Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy laws
(as now or hereafter in effect), (ii) file a petition seeking to take advantage
of any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii) consent
to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign, (v) admit in writing its inability to pay its debts as they
become due, (vi) make a general assignment for the benefit of creditors, or
(vii) take any corporate action for the purpose of authorizing any of the
foregoing.
(k) INVOLUNTARY BANKRUPTCY PROCEEDING. A case or other proceeding shall
be commenced against the Borrower or any Subsidiary thereof in any court of
competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as
now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like for the Borrower or any Subsidiary thereof or for all or any
substantial part of their respective assets, domestic or foreign, and such case
or proceeding shall continue without dismissal or stay for a period of sixty
(60) consecutive days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(l) FAILURE OF AGREEMENTS. Any provision of this Agreement or of any
other Loan Document shall for any reason cease to be valid and binding on the
Borrower or Subsidiary party thereto or any such Person shall so state in
writing, or this Agreement or any other Loan Document shall for any reason cease
to create a valid and perfected first priority Lien on, or security interest in,
any of the collateral purported to be covered thereby, in each case other than
in accordance with the express terms hereof or thereof.
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(m) TERMINATION EVENT. The occurrence of any of the following
events: (i) the Borrower or any ERISA Affiliate fails to make full payment
when due of all amounts which, under the provisions of any Pension Plan or
Section 412 of the Code, the Borrower or any ERISA Affiliate is required to
pay as contributions thereto, (ii) an accumulated funding deficiency in
excess of $1,000,000 occurs or exists, whether or not waived, with respect to
any Pension Plan, (iii) a Termination Event or (iv) the Borrower or any ERISA
Affiliate as employers under one or more Multiemployer Plan makes a complete
or partial withdrawal from any such Multiemployer Plan and the plan sponsor
of such Multiemployer Plans notifies such withdrawing employer that such
employer has incurred a withdrawal liability requiring payments in an amount
exceeding $1,000,000.
(n) JUDGMENT. A judgment or order for the payment of money which causes
the aggregate amount of all such judgments to exceed $1,000,000 in any Fiscal
Year shall be entered against the Borrower or any of its Subsidiaries by any
court and such judgment or order shall continue without discharge or stay for a
period of thirty (30) days.
(o) LOSS OF LICENSE; MATERIAL ADVERSE CHANGE. Any FCC License or PUC
Authorization or other Governmental Approval of the Borrower or any of its
Subsidiaries shall be revoked, canceled, suspended, otherwise terminated, or
fail to be renewed, which in any such case could be expected (in the reasonable
judgment of the Lenders) to have a Material Adverse Effect.
SECTION 11.2 REMEDIES. Upon the occurrence of
an Event of Default, with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower:
(a) ACCELERATION; Termination of Facilities. Declare the principal of
and interest on the Loans, the Notes and the Reimbursement Obligations at the
time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents
(other than any Hedging Agreement) (including, without limitation, all L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and all other
Obligations (other than obligations owing under any Hedging Agreement), to be
forthwith due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind, all of
which are expressly waived, anything in this Agreement or the other Loan
Documents to the contrary notwithstanding, and terminate the Credit Facility and
any right of the Borrower to request borrowings or Letters of Credit thereunder;
PROVIDED, that upon the occurrence of an Event of Default specified in Section
11.1(j) or (k), the Credit Facility shall be automatically terminated and all
Obligations (other than obligations owing under any Hedging Agreement) shall
automatically become due and payable.
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(b) LETTERS OF CREDIT. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, require the Borrower at such
time to deposit in a cash collateral account opened by the Administrative Agent
an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations. After all such Letters of Credit shall have expired or been
fully drawn upon, the Reimbursement Obligation shall have been satisfied and all
other Obligations shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrower.
(c) RIGHTS OF COLLECTION. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE;
NON-WAIVER; ETC. The enumeration of the rights and remedies of the
Administrative Agent and the Lenders set forth in this Agreement is not
intended to be exhaustive and the exercise by the Administrative Agent and
the Lenders of any right or remedy shall not preclude the exercise of any
other rights or remedies, all of which shall be cumulative, and shall be in
addition to any other right or remedy given hereunder or under the Loan
Documents or that may now or hereafter exist in law or in equity or by suit
or otherwise. No delay or failure to take action on the part of the
Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or
shall be construed to be a waiver of any Event of Default. No course of
dealing between the Borrower, the Administrative Agent and the Lenders or
their respective agents or employees shall be effective to change, modify or
discharge any provision of this Agreement or any of the other Loan Documents
or to constitute a waiver of any Event of Default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 APPOINTMENT. Each of the
Lenders hereby irrevocably designates and appoints First Union as
Administrative Agent of such Lender under this Agreement and the other Loan
Documents for the term hereof and each such Lender irrevocably authorizes
First Union as Administrative Agent for such Lender, to take such action on
its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this
Agreement and such other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement or such other Loan Documents, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein and therein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or the
other Loan Documents or otherwise exist against the Administrative Agent. Any
reference to the Administrative Agent in this article XII shall be deemed to
refer to the Administrative Agent solely in its capacity as Administrative
Agent and not in its capacity as a Lender.
SECTION 12.2 DELEGATION OF DUTIES. The
Administrative Agent may execute any of its respective duties under this
Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by the Administrative Agent with reasonable care.
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SECTION 12.3 EXCULPATORY PROVISIONS. Neither
the Administrative Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact, Subsidiaries or Affiliates shall be (a) liable for
any action lawfully taken or omitted to be taken by it or such Person under
or in connection with this Agreement or the other Loan Documents (except for
actions occasioned solely by its or such Person's own gross negligence or
willful misconduct), or (b) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by the
Borrower or any of its Subsidiaries or any officer thereof contained in this
Agreement or the other Loan Documents or in any certificate, report,
statement or other document referred to or provided for in, or received by
the Administrative Agent under or in connection with, this Agreement or the
other Loan Documents or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Loan Documents
or for any failure of the Borrower or any of its Subsidiaries to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records
of the Borrower or any of its Subsidiaries.
SECTION 12.4 RELIANCE BY THE ADMINISTRATIVE
AGENT. The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless such Note shall have been transferred in
accordance with Section 13.10 hereof. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement and
the other Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders (or, when expressly required hereby or by
the relevant other Loan Document, all the Lenders) as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of taking
or continuing to take any such action except for its own gross negligence or
willful misconduct. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and
the Notes in accordance with a request of the Required Lenders (or, when
expressly required hereby, all the Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
SECTION 12.5 NOTICE OF DEFAULT. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless it has
received notice from a Lender or the Borrower 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 the Administrative Agent receives such
a notice, it shall promptly give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
PROVIDED that unless and until the Administrative Agent shall have received
such directions, the 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 in the best interests
of the Lenders, except to the extent that other provisions of this Agreement
expressly require that any such action be taken or not be taken only with the
consent and authorization or the request of the Lenders or Required Lenders,
as applicable.
SECTION 12.6 NON-RELIANCE ON THE ADMINISTRATIVE
AGENT AND OTHER LENDERS. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its respective officers, directors,
employees, agents, attorneys-in-fact, Subsidiaries or Affiliates has made any
representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Borrower
or any of its Subsidiaries, shall be deemed to constitute any representation
or warranty by the Administrative Agent to any Lender. Each Lender represents
to the Administrative Agent that it has, independently and without reliance
upon the 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, operations, property,
financial and other condition and
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creditworthiness of the Borrower and its Subsidiaries and made its own
decision to make its Loans and issue or participate in Letter of Credit
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower and its Subsidiaries. Except
for notices, reports and other documents expressly required to be furnished
to the Lenders by the Administrative Agent hereunder or by the other Loan
Documents, the Administrative Agent shall not have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of the Borrower or any of its Subsidiaries which may come
into the possession of the Administrative Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates.
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SECTION 12.7 INDEMNIFICATION. The Lenders agree to
indemnify the Administrative Agent in its capacity as such and (to the extent
not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to the respective amounts of their
Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the
Notes or any Reimbursement Obligation) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of
this Agreement or the other Loan Documents, or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or
in connection with any of the foregoing; PROVIDED that no Lender shall be
liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Administrative Agent's bad faith,
gross negligence or willful misconduct. The agreements in this Section 12.7
shall survive the payment of the Notes, any Reimbursement Obligation and all
other amounts payable hereunder and the termination of this Agreement.
SECTION 12.8 THE ADMINISTRATIVE AGENT IN ITS
INDIVIDUAL CAPACITY. The Administrative Agent and its respective Subsidiaries
and Affiliates may make loans to, accept deposits from and generally engage
in any kind of business with the Borrower as though the Administrative Agent
were not an Administrative Agent hereunder. With respect to any Loans made or
renewed by it and any Note issued to it and with respect to any Letter of
Credit issued by it or participated in by it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
SECTION 12.9 RESIGNATION OF THE ADMINISTRATIVE
AGENT; SUCCESSOR ADMINISTRATIVE AGENT. Subject to the appointment and
acceptance of a successor as provided below, the Administrative Agent may
resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Administrative Agent, which successor shall have minimum
capital and surplus of at least $500,000,000. If no successor Administrative
Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) days after the Administrative
Agent's giving of notice of resignation, then the Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent, which
successor shall have minimum capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 12.9 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as Administrative Agent.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NOTICES.
(a) METHOD OF COMMUNICATION. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) ADDRESSES FOR NOTICES. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to the Borrower: Hickory Tech Corporation
221 East Hickory Street
P.O. Box 3248
Mankato, MN 56002-3248
Attention: David A. Christensen
Telephone No.: (507) 387-3355
Telecopy No.: (507) 625-9191
If to First Union as First Union National Bank
Administrative Agent: One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina 28288-0608
Attention: Syndication Agency Services
Telephone No.: (704) 374-2698
Telecopy No.: (704) 383-0288
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If to any Lender: To the Address set forth on SCHEDULE 1 hereto
(c) ADMINISTRATIVE AGENT'S OFFICE. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed and
Letters of Credit issued.
SECTION 13.2 EXPENSES; INDEMNITY. The Borrower
will (a) pay all out-of-pocket expenses of the Administrative Agent in
connection with (i) the preparation, execution and delivery of this Agreement
and each other Loan Document, whenever the same shall be executed and
delivered, including without limitation all out-of-pocket syndication and due
diligence expenses and reasonable fees and disbursements of counsel for the
Administrative Agent and (ii) the preparation, execution and delivery of any
waiver, amendment or consent by the Administrative Agent or the Lenders
relating to this Agreement or any other Loan Document, including without
limitation reasonable fees and disbursements of counsel for the
Administrative Agent, (b) pay all reasonable out-of-pocket expenses of the
Administrative Agent and each Lender actually incurred in connection with the
administration and enforcement of any rights and remedies of the
Administrative Agent and Lenders under the Credit Facility, including
consulting with appraisers, accountants, engineers, attorneys and other
Persons concerning the nature, scope or value of any right or remedy of the
Administrative Agent or any Lender hereunder or under any other Loan Document
or any factual matters in connection therewith, which expenses shall include
without limitation the reasonable fees and disbursements of such Persons, and
(c) defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
Administrative Agents, officers and directors, from and against any losses,
penalties, fines, liabilities, settlements, damages, costs and expenses,
suffered by any such Person in connection with any claim, investigation,
litigation or other proceeding (whether or not the Administrative Agent or
any Lender is a party thereto) and the prosecution and defense thereof,
arising out of or in any way connected with the Agreement, any other Loan
Document or the Loans, including without limitation reasonable attorney's and
consultant's fees, except to the extent that any of the foregoing directly
result from the gross negligence or willful misconduct of the party seeking
indemnification therefor.
SECTION 13.3 SET-OFF. In addition to any rights
now or hereafter granted under Applicable Law and not by way of limitation
of any such rights, upon and after the occurrence of any Event of Default and
during the continuance thereof, the Lenders and any assignee or participant
of a Lender in accordance with Section 13.10 are hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or
to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and to apply any and all deposits (general or special,
time or demand, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Lenders, or any such assignee
or participant to or for the credit or the account of the Borrower against
and on account of the Obligations irrespective of whether or not (a) the
Lenders shall have made any demand under this Agreement or any of the other
Loan Documents or (b) the Administrative Agent shall have declared any or all
of the Obligations to be due and payable as permitted by Section 11.2 and
although such Obligations shall be contingent or unmatured. Notwithstanding
the preceding sentence, each Lender agrees to notify the Borrower and the
Administrative Agent after any such set-off and application, provided that
the failure to give such notice shall not affect the validity of such set-off
and application.
SECTION 13.4 GOVERNING LAW. This Agreement, the
Notes and the other Loan Documents, unless otherwise expressly set forth
therein, shall be governed by, construed and enforced in accordance with the
laws of the State of North Carolina, without reference to the conflicts or
choice of law principles thereof.
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SECTION 13.5 CONSENT TO JURISDICTION. The
Borrower hereby irrevocably consents to the personal jurisdiction of the
state and federal courts located in Mecklenburg County, North Carolina, in
any action, claim or other proceeding arising out of any dispute in
connection with this Agreement, the Notes and the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such
rights and obligations. The Borrower hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by the Administrative Agent or any Lender in connection
with this Agreement, the Notes or the other Loan Documents, any rights or
obligations hereunder or thereunder, or the performance of such rights and
obligations, on behalf of itself or its property, in the manner specified in
Section 13.1. Nothing in this Section 13.5 shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Administrative Agent
or any Lender to bring any action or proceeding against the Borrower or its
properties in the courts of any other jurisdictions.
SECTION 13.6 BINDING ARBITRATION; WAIVER OF JURY
TRIAL.
(a) BINDING ARBITRATION. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to the Notes or any other
Loan Documents ("Disputes"), between or among parties to the Notes or any other
Loan Document shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of that
party to demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, claims brought as class actions, claims arising from
Loan Documents executed in the future, disputes as to whether a matter is
subject to arbitration, or claims concerning any aspect of the past, present or
future relationships arising out of or connected with the Loan Documents.
Arbitration shall be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association and Title 9 of the U.S. Code. All arbitration hearings shall be
conducted in Charlotte, North Carolina. The expedited procedures set forth in
Rule 51, ET SEQ. of the Arbitration Rules shall be applicable to claims of less
than $1,000,000. All applicable statutes of limitations shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding anything foregoing to the contrary, any
arbitration proceeding demanded hereunder shall begin within ninety (90) days
after such demand thereof and shall be concluded within one-hundred and twenty
(120) days after such demand. These time limitations may not be extended unless
a party hereto shows cause for extension and then such extension shall not
exceed a total of sixty (60) days. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys. The single arbitrator
selected for expedited procedure shall be a retired judge from the highest court
of general jurisdiction, state or federal, of the state where the hearing will
be conducted. The parties hereto do not waive any applicable Federal or state
substantive law except as provided herein. Notwithstanding the foregoing, this
paragraph shall not apply to any Hedging Agreement that is a Loan Document.
(b) JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
ADMINISTRATIVE AGENT, EACH LENDER AND THE BORROWER HEREBY IRREVOCABLY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR
OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) PRESERVATION OF CERTAIN REMEDIES. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the other Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies: (i) all rights to foreclose against any real or personal property or
other security by exercising a power of sale granted in the Loan Documents or
under applicable law or by judicial foreclosure and sale, (ii) all rights of
self help including peaceful occupation of property and collection of rents, set
off, and peaceful possession of property, (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and in filing an involuntary bankruptcy
proceeding, and (iv) when applicable, a
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judgment by confession of judgment. Preservation of these remedies does not
limit the power of an arbitrator to grant similar remedies that may be
requested by a party in a Dispute.
SECTION 13.7 REVERSAL OF PAYMENTS. To the extent
the Borrower makes a payment or payments to the Administrative Agent for the
ratable benefit of the Lenders or the Administrative Agent receives any
payment or proceeds of the collateral which payments or proceeds 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 the Administrative Agent.
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SECTION 13.8 INJUNCTIVE RELIEF.
(a) The Borrower recognizes that, in the event the Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrower agrees that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrower (on behalf
of itself and its Subsidiaries) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
SECTION 13.9 ACCOUNTING MATTERS. All financial
and accounting calculations, measurements and computations made for any
purpose relating to this Agreement, including, without limitation, all
computations utilized by the Borrower or any Subsidiary thereof to determine
compliance with any covenant contained herein, shall, except as otherwise
expressly contemplated hereby or unless there is an express written direction
by the Administrative Agent to the contrary agreed to by the Borrower, be
performed in accordance with GAAP as in effect on the Closing Date. In the
event that changes in GAAP shall be mandated by the Financial Accounting
Standards Board, or any similar accounting body of comparable standing, or
shall be recommended by the Borrower's certified public accountants, to the
extent that such changes would modify such accounting terms or the
interpretation or computation thereof, such changes shall be followed in
defining such accounting terms only from and after the date the Borrower and
the Required Lenders shall have amended this Agreement to the extent
necessary to reflect any such changes in the financial covenants and other
terms and conditions of this Agreement.
SECTION 13.10 SUCCESSORS AND ASSIGNS; PARTICIPATIONS.
(a) BENEFIT OF AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and the Lenders,
all future holders of the Notes, and their respective successors and assigns,
except that the Borrower shall not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) ASSIGNMENT BY LENDERS. Each Lender may, with the consent of the
Administrative Agent, which consent shall not be unreasonably withheld, assign
to one or more Eligible Assignees all or a portion of its interests, rights and
obligations under this Agreement (including, without limitation, all or a
portion of the Extensions of Credit at the time owing to it and the Notes held
by it); PROVIDED that:
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(i) each such assignment shall be of a constant,
and not a varying, percentage of all the assigning Lender's rights and
obligations under this Agreement;
(ii) if less than all of the assigning Lender's
Commitment is to be assigned, the Commitment so assigned shall not be less
than $5,000,000;
(iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in the form of
Exhibit F attached hereto (an "Assignment and Acceptance"), together with any
Note or Notes subject to such assignment;
(iv) such assignment shall not, without the consent
of the Borrower, require the Borrower to file a registration statement with
the Securities and Exchange Commission or apply to or qualify the Loans or
the Notes under the blue sky laws of any state; and
(v) the assigning Lender shall pay to the
Administrative Agent an assignment fee of $3,000 upon the execution by such
Lender of the Assignment and Acceptance; provided that no such fee shall be
payable upon any assignment by a Lender to an Affiliate thereof.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) RIGHTS AND DUTIES UPON ASSIGNMENT. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
set forth in such Assignment and Acceptance.
(d) REGISTER. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Extensions of
Credit with respect to each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders may treat each person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
or Lender at any reasonable time and from time to time upon reasonable prior
notice.
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(e) ISSUANCE OF NEW NOTES. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of EXHIBIT F:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein
in the Register;
(iii) give prompt notice thereof to the Lenders
and the Borrower; and
(iv) promptly deliver a copy of such
Assignment and Acceptance to the Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Eligible Assignee in
amounts equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes delivered to the assigning Lender. Each surrendered Note
or Notes shall be canceled and returned to the Borrower.
(f) PARTICIPATIONS. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Extensions of Credit and the Notes held by it); PROVIDED that:
(i) each such participation shall be in an
amount not less than $5,000,000;
(ii) such Lender's obligations under this
Agreement (including, without limitation, its Commitment) shall remain
unchanged;
(iii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations;
(iv) such Lender shall remain the holder of
the Notes held by it for all purposes of this Agreement;
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(v) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement;
(vi) such Lender shall not permit such
participant the right to approve any waivers, amendments or other
modifications to this Agreement or any other Loan Document other than
waivers, amendments or modifications which would reduce the principal of or
the interest rate on any Loan or Reimbursement Obligation, extend the term or
increase the amount of the Commitment, reduce the amount of any fees to which
such participant is entitled, extend any scheduled payment date for principal
of any Loan or, except as expressly contemplated hereby or thereby, release
substantially all of the Collateral; and
(vii) any such disposition shall not, without
the consent of the Borrower, require the Borrower to file a registration
statement with the Securities and Exchange Commission to apply to qualify the
Loans or the Notes under the blue sky law of any state.
(g) SPC DESIGNATION. Notwithstanding the above provisions of Section
13.10, U.S. Bank National Association ("US Bank"), pursuant to a designation
agreement mutually agreed to and executed by US Bank (in such capacity, the
"Granting Lender"), the Administrative Agent and the Borrower, may grant to a
special purpose funding vehicle (an "SPC") organized by the Granting Lender, the
option to fund on behalf of such Granting Lender all of any part of any Loan
that such Granting Lender would otherwise be obligated to make pursuant to this
Agreement; provided that (i) the SPC shall have no commitment to make any such
Loan, but if an SPC elects not to exercise such option or otherwise fails to
provide all or any part of such Loan, the Granting Lender shall be obligated to
make such Loan pursuant to the terms hereof, (ii) any rights of any such SPC
shall be derivative of the rights of the Granting Lender and (iii) each SPC
shall be subject to all of the restrictions upon the Granting Lender herein
contained. The making of a Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Loan were made by the
Granting Lender. Each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding senior indebtedness of any
SPC, it will not institute against, or join any other person in instituting
against, such SPC, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any State
thereof, PROVIDED THAT the Granting Lender for each SPC hereby agrees to
indemnify, save and hold harmless each other party hereto for any loss, cost,
damage and expense (including attorney's fees and expenses) arising out of their
inability to institute any such proceeding against its SPC. In addition,
notwithstanding anything to the contrary contained in this Section 13.10, any
SPC may with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying any assignment fee therefor,
assign all or a portion of its interests in any Loans made thereby to its
Granting Lender or to any financial institutions providing liquidity and/or
credit facilities to or for the account of such SPC to fund the Loans made by
such SPC or to support the securities (if any) issued by such SPC to fund such
Loans (but nothing contained herein shall be construed in derogation of the
obligation of the Granting Lender to make Loans hereunder).
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Notwithstanding any grant or assignment referred to in this Section 13.10(g),
(i) such Granting Lender's obligations under this Agreement (including, without
limitation, its Commitment) shall remain unchanged; (ii) such Granting Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations; (iii) such Granting Lender shall remain the holder of the
Notes held by it for all purposes of this Agreement; (iv) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Granting Lender in connection with such Granting Lender's
rights and obligations under this Agreement; (v) such Granting Lender shall not
permit such grantee or assignee the right to approve any waivers, amendments or
other modifications to this Agreement or any other Loan Document, and (vi) any
such disposition shall not, without the consent of the Borrower, require the
Borrower to file a registration statement with the Securities and Exchange
Commission to apply to qualify the Loans or the Notes under the blue sky law of
any state.
(h) DISCLOSURE OF INFORMATION; CONFIDENTIALITY. The Administrative
Agent and the Lenders shall hold all non-public information with respect to the
Borrower obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information; provided, that the
Administrative Agent may disclose information relating to this Agreement to Gold
Sheets and other similar bank trade publications, such information to consist of
deal terms and other information customarily found in such publications and
provided further, that the Administrative Agent and Lenders may disclose any
such information to the extent such disclosure is required by law or requested
by any regulatory authority. Any Lender may, in connection with any assignment,
proposed assignment, participation or proposed participation pursuant to this
Section 13.10, disclose to the assignee, participant, proposed assignee or
proposed participant, any information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; provided, that prior to any such
disclosure, each such assignee, proposed assignee, participant or proposed
participant shall agree with the Borrower or such Lender to preserve the
confidentiality of any confidential information relating to the Borrower
received from such Lender.
(i) CERTAIN PLEDGES OR ASSIGNMENTS. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
SECTION 13.11 AMENDMENTS, WAIVERS AND CONSENTS. Except as
set forth below, any term, covenant, agreement or condition of this Agreement
or any of the other Loan Documents (other than any Hedging Agreement, the
terms and conditions of which may be amended, modified or waived by the
parties thereto) may be amended or waived by the Lenders, and any consent
given by the Lenders, if, but only if, such amendment, waiver or consent is
in writing signed by the Required Lenders (or by the Administrative Agent
with the consent of the Required Lenders) and delivered to the Administrative
Agent and, in the case of an amendment, signed by the Borrower; PROVIDED,
that no amendment, waiver or consent shall (a) increase the amount or extend
the time of the obligation of the Lenders to make Loans or issue or
participate in Letters of Credit (including without limitation pursuant to
Section 2.7), (b) extend the originally scheduled time or times of payment of
the principal of any Loan or Reimbursement Obligation or the time or times of
payment of interest on any Loan or Reimbursement Obligation, (c) reduce the
rate of interest or fees payable on any Loan or Reimbursement Obligation, (d)
reduce the principal amount of any Loan or Reimbursement Obligation, (e)
permit any subordination of the principal or interest on any Loan or
Reimbursement Obligation, or (f) amend the provisions of this Section 13.11
or the definition of Required Lenders, without the prior written consent of
each Lender. In addition, no amendment, waiver or consent to the provisions
of (a) Article XII shall be made without the written consent of the
Administrative Agent and (b) Article III without the written consent of the
Issuing Lender.
SECTION 13.12 PERFORMANCE OF DUTIES. The Borrower's
obligations under this Agreement and each of the Loan Documents shall be
performed by the Borrower at its sole cost and expense.
SECTION 13.13 ALL POWERS COUPLED WITH INTEREST. All
powers of attorney and other authorizations granted to the Lenders, the
Administrative Agent and any Persons designated by the Administrative Agent
or any Lender pursuant to any provisions of this Agreement or any of the
other Loan Documents
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shall be deemed coupled with an interest and shall be irrevocable so long as
any of the Obligations remain unpaid or unsatisfied or the Credit Facility
has not been terminated.
SECTION 13.14 SURVIVAL OF INDEMNITIES. Notwithstanding
any termination of this Agreement, the indemnities to which the
Administrative Agent and the Lenders are entitled under the provisions of
this Article XIII and any other provision of this Agreement and the Loan
Documents shall continue in full force and effect and shall protect the
Administrative Agent and the Lenders against events arising after such
termination as well as before.
SECTION 13.15 TITLES AND CAPTIONS. Titles and captions
of Articles, Sections and subsections in this Agreement are for convenience
only, and neither limit nor amplify the provisions of this Agreement.
SECTION 13.16 SEVERABILITY OF PROVISIONS. Any provision
of this Agreement or any other Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability
without invalidating the remainder of such provision or the remaining
provisions hereof or thereof or affecting the validity or enforceability of
such provision in any other jurisdiction.
SECTION 13.17 COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and shall be binding upon all parties, their successors and
assigns, and all of which taken together shall constitute one and the same
agreement.
SECTION 13.18 TERM OF AGREEMENT. This Agreement shall
remain in effect from the Closing Date through and including the date upon
which all Obligations shall have been paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination.
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SECTION 13.19 INDEPENDENT EFFECT OF COVENANTS.
The Borrower expressly acknowledges and agrees that each covenant contained
in Articles VII, IX or X hereof shall be given independent effect.
Accordingly, the Borrower shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VIII, IX or X
if, before or after giving effect to such transaction or act, the Borrower
shall or would be in breach of any other covenant contained in Articles VIII,
IX or X.
[Signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed under seal by their duly authorized officers, all as
of the day and year first written above.
[CORPORATE SEAL] HICKORY TECH CORPORATION, as Borrower
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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COBANK, as Lender
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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U.S. BANK NATIONAL ASSOCIATION,
as Lender
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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<TABLE>
<CAPTION>
- --------------------------------------------- ----------------------- ------------------
LENDER COMMITMENT COMMITMENT
PERCENTAGE
- --------------------------------------------- ----------------------- ------------------
<S> <C> <C>
First Union National Bank
One First Union Center, TW-10
301 South College Street 38.8888888889% $35,000,000
Charlotte, North Carolina 28288-0608
Attention: Syndication Agency Services
Telephone No.: (704) 374-2698
Fax No.: (704) 383-0288
- --------------------------------------------- ----------------------- ------------------
U.S. Bank National Association
1420 5th Avenue, 10th Floor
Seattle, Washington 98101 27.777777778% $25,000,000
Attention: Andy McDonald
Telephone No.: (206) 344-3650
Fax No.: (206) 344-2331
- --------------------------------------------- ----------------------- ------------------
CoBank
5500 South Quebec Street
Englewood, CO 80111 33.3333333333% $30,000,000
Attention: Fred Matthes
Telephone No.: (800) 872-8841 (ext. 4351)
Fax No.: (303) 224-2578
- --------------------------------------------- ----------------------- ------------------
</TABLE>
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Exhibit 99.1
PRESS RELEASE
HICKORY TECH CORPORATION COMPLETES CELLULAR ACQUISITION
IN MINNEAPOLIS/ST. PAUL AREA
Mankato, MN--Hickory Tech Corporation (HTC) today announced the completion of
the purchase of cellular property in the Minneapolis/St. Paul, Minnesota area.
The territory involved is basically a ring around the Mpls./St. Paul MSA
(Metropolitan Statistical Area). It covers a portion of six Minnesota counties
(Chisago, Wright, Carver, Scott, Dakota and Anoka) and one Wisconsin county (St.
Croix). The territory covers approximately 200,000 people.
THE SECOND MAJOR CELLULAR ACQUISITION IN A YEAR
On May 4, 1998, HTC announced its acquisition of RSA 10 covering seven counties
and approximately 230,000 people in South Central Minnesota. This service,
marketed as CrystalONE Digital and as Cellular One, operates in the counties of
Blue Earth, Faribault, Freeborn, LeSueur, Rice, Steele and Waseca.
Thirteen months later, on June 1, 1999, HTC closed on its second major cellular
transaction. Robert D. Alton, HTC's President, CEO and Chairman of the Board
said, "Wireless communications is one of the fastest growing segments of our
Company. We are pleased to add new territory with potential for further
development." Mr. Alton also said, "The link into the metropolitan Twin Cities
market is a strategic one for HTC, serving a variety of growth initiatives for
us. We already have a telecommunications company operating today in the metro
area (Collins) and another moving in that direction (the competitive local
exchange carrier, Crystal Communications), so this acquisition gives us valuable
network links through that market."
DETAILS OF THE TRANSACTION
On June 1, 1999, HTC acquired cellular property from McElroy Electronics
Corporation of Massachusetts for cash, in a transaction totaling $41.5 million
(see December 22, 1998 Press Release). At this time the property has ten digital
cell sites operational, and will add seven more by November 1, 1999. The
property uses TDMA signaling and operates as an "A" side carrier (same as AT&T
Wireless). HTC expanded its bank syndicated revolving credit facility to fund
this corporate development.
HTC STRENGTHENS ITS POSITION IN WIRELESS
ROBERT D. ALTON SAID "WHEN THIS NEW PROPERTY BECOMES FULLY OPERATIONAL, WIRELESS
COMMUNICATIONS WILL REPRESENT CLOSE TO 20% OF HTC REVENUES." F. ERNEST LOMBARD,
HTC VICE
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PRESIDENT, AND THE PRESIDENT OF CRYSTAL COMMUNICATIONS SAID, "WIRELESS WILL
PLAY AN IMPORTANT ROLE IN CRYSTAL'S EXPANSION, BOTH AS A MOBILE
COMMUNICATIONS TOOL AND A COMPETITIVE ALTERNATIVE TO WIRELINE COMMUNICATIONS
SERVICES."
Hickory Tech Corporation is a diversified communications holding company with
headquarters in Mankato, Minnesota. HTC is in its 101st year of operations with
roots in the rural local exchange business. From this base, it has expanded into
billing and business solutions, competitive local exchange carrier service, and
communications and data products distribution, all oriented around the telephone
industry. The NASDAQ symbol is HTCO. The internet home page address is:
HTTP://WWW. HICKORYTECH.COM. HTC revenues in 1998 were $94.5 million.
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