AMENDMENT AGREEMENT Dated as of August 14, 2002 re
THE CHILLICOTHE TELEPHONE COMPANY
Dated as of August 14, 2002
NOTE PURCHASE AGREEMENT
Dated as of November 1, 1993
Re: $10,000,000 6.47% Senior Notes
Due November 1, 2005
THIS AMENDMENT AGREEMENT dated as of August 14, 2002 (the or this
"Amendment") is between THE CHILLICOTHE TELEPHONE COMPANY, an Ohio corporation
(the "Company"), and each of the institutions which is a signatory to this
Amendment (collectively, the "Noteholders").
A. The Company and each of the Noteholders have heretofore entered into the
Note Purchase Agreement dated as of November 1, as amended by the Amendment
dated as of January 1, 1997 (the "Note Purchase Agreement"). The Company has
heretofore issued the $10,000,000 6.47% Senior Notes due November 1, 2005 (the
"Notes") pursuant to the Note Purchase Agreement. The Noteholders are the
holders of 100% of the outstanding principal amount of the Notes.
B. The Company has requested that the Noteholders amend certain provisions
of the Note Purchase Agreement in connection with the Company's issuance of an
aggregate of $30,000,000 senior unsecured notes pursuant to a note purchase
agreement, notes and related documents (the "New Note Issuance").
C. The Company and the Noteholders now desire to amend certain provisions
of the Note Purchase Agreement as of the date set forth above (the "Effective
Date") in the respect, but only in the respect, hereinafter set forth.
D. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreement unless herein defined or the
context shall otherwise require.
E. All requirements of law have been fully complied with and all other acts
and things necessary to make this Amendment a valid, legal and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of the Amendment set forth in SS.3.1 hereof, and
in consideration of good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the Company and the Noteholders do hereby agree
SECTION 1. AMENDMENT.
Section 5(a) of the Note Purchase Agreement is hereby amended by adding the
following at the end of the section:
"; provided that, from July 1, 2002 through and including November 1, 2002
the Funded Debt permitted under this subparagraph (iii) shall not exceed 60% of
Consolidated Total Capitalization."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to execute and deliver this Amendment (which
representations shall survive the execution and delivery of this Amendment), the
Company represents and warrants to the Noteholders that:
(a) this Amendment has been duly authorized, executed and delivered by it
and this Amendment constitutes the legal, valid and binding obligation, contract
and agreement of the Company enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles relating to
or limiting creditors' rights generally;
(b) the Note Agreement, as amended by this Amendment, constitute the legal,
valid and binding obligations, contracts and agreements of the Company
enforceable against it in accordance with their respective terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws or equitable principles relating to or limiting creditors'
(c) the execution, delivery and performance by the Company of this
Amendment (i) has been duly authorized by all requisite corporate action and, if
required, shareholder action, (ii) does not require the consent or approval of
any governmental or regulatory body or agency, and (iii) will not (A) violate
(1) any provision of law, statute, rule or regulation or its certificate of
incorporation or bylaws, (2) any order of any court or any rule, regulation or
order of any other agency or government binding upon it, or (3) any provision of
any material indenture, agreement or other instrument to which it is a party or
by which its properties or assets are or may be bound, including, including,
without limitation the New Note Issuance, or (B) result in a breach or
constitute (alone or with due notice or lapse of time or both) a default under
any indenture, agreement or other instrument referred to in clause (iii)(A)(3)
of this Section 2.1(c); and
(d) as of the date hereof and after giving effect to this Amendment, no
Default or Event of Default has occurred which is continuing.
SECTION 3. MISCELLANEOUS.
Section 3.1. This Amendment shall become effective and binding upon the
Company and the Noteholders on the Effective Date upon the Company's and the
Noteholders' acceptance in the space below.
Section 3.2. This Amendment shall be construed in connection with and as
part of the Note Purchase Agreement, and except as modified and expressly
amended by this Amendment, all terms, conditions and covenants contained in the
Note Purchase Agreement and the Notes are hereby ratified and shall be and
remain in full force and effect.
Section 3.3. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Amendment may refer to the Note Purchase Agreement without making specific
reference to this Amendment but nevertheless all such references shall include
this Amendment unless the context otherwise requires.
Section 3.4. The descriptive headings of the various Sections or parts of
this Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
Section 3.5. This Amendment shall be governed by and construed in
accordance with Minnesota law.
[The remainder of this page is intentionally blank]
Section 2.6. The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and this Amendment
may be executed in any number of counterparts, each executed counterpart
constituting an original, but all together only one agreement.
THE CHILLICOTHE TELEPHONE COMPANY
By /s/ Thomas McKell
Accepted and Agreed to:
NORTHERN LIFE INSURANCE COMPANY
RELIASTAR LIFE INSURANCE COMPANY
BY: ING INVESTMENT MANAGEMENT LLC,
By /s/ Christopher P. Lynns
Its Vice President