Exhibit 4.1


 


CUSIP Number: Deal
# 429067AA9


Revolving Credit CUSIP #429067AB7


Term Loan B CUSIP #429067AC5


Term Loan C CUSIP #429067AD3


 


EXECUTION VERSION


 




 





$160,000,000


 


THIRD AMENDED AND RESTATED CREDIT AGREEMENT 


 


dated as of December 30, 2005,


 


by and among 


 


HICKORY TECH CORPORATION, 


 


as Borrower, 


 


the Lenders referred to herein, 


 


and


 


WACHOVIA BANK, NATIONAL ASSOCIATION,


as Administrative Agent and Issuing Lender, 


 


COBANK,


as
Syndication Agent,


 


and


 


U.S. BANK,
NATIONAL ASSOCIATION,


as Documentation Agent


 


WACHOVIA CAPITAL MARKETS, LLC 


as Lead Arranger and Bookrunner 




 





 





















 


Table
of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I
  DEFINITIONS

  	
  1

  
	
  SECTION
  1.1

  	
  Definitions

  	
  1

  
	
  SECTION
  1.2 

  	
  Other
  Definitions and Provisions

  	
  20

  
	
  SECTION
  1.3

  	
  Accounting
  Terms

  	
  20

  
	
  SECTION
  1.4 

  	
  UCC
  Terms

  	
  21

  
	
  SECTION
  1.5 

  	
  Rounding

  	
  21

  
	
  SECTION
  1.6 

  	
  References
  to Agreement and Laws

  	
  21

  
	
  SECTION
  1.7 

  	
  Times
  of Day

  	
  21

  
	
  SECTION
  1.8 

  	
  Letter
  of Credit Amounts

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE II REVOLVING
  CREDIT FACILITY

  	
  21

  
	
  SECTION
  2.1 

  	
  Revolving
  Credit Loans

  	
  21

  
	
  SECTION
  2.2 

  	
  Procedure
  for Advances of Revolving Credit Loans

  	
  22

  
	
  SECTION
  2.3 

  	
  Repayment
  of Revolving Credit Loans

  	
  22

  
	
  SECTION
  2.4 

  	
  Intentionally
  Omitted

  	
  24

  
	
  SECTION
  2.5

  	
  Permanent
  Reduction of the Revolving Credit Commitment

  	
  24

  
	
  SECTION
  2.6 

  	
  Termination
  of Revolving Credit Facility

  	
  25

  
	
  SECTION
  2.7 

  	
  Use
  of Proceeds

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE III LETTER OF
  CREDIT FACILITY

  	
  25

  
	
  SECTION
  3.1 

  	
  L/C
  Commitment

  	
  25

  
	
  SECTION
  3.2 

  	
  Procedure
  for Issuance of Letters of Credit

  	
  26

  
	
  SECTION
  3.3 

  	
  Commissions
  and Other Charges

  	
  26

  
	
  SECTION
  3.4 

  	
  L/C
  Participations

  	
  26

  
	
  SECTION
  3.5 

  	
  Reimbursement
  Obligation of the Borrower

  	
  27

  
	
  SECTION
  3.6 

  	
  Obligations
  Absolute

  	
  28

  
	
  SECTION
  3.7 

  	
  Effect
  of Application

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV TERM LOAN
  FACILITY

  	
  29

  
	
  SECTION
  4.1

  	
  Term
  Loans

  	
  29

  
	
  SECTION
  4.2

  	
  Procedure
  for Advance of Term Loans

  	
  29

  
	
  SECTION
  4.3

  	
  Repayment
  of Term Loans

  	
  29

  
	
  SECTION
  4.4

  	
  Incremental
  Term Loans

  	
  30

  
	
  SECTION
  4.5

  	
  Prepayments
  of Term Loans and Incremental Term Loans

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE V GENERAL LOAN
  PROVISIONS

  	
  34

  
	
  SECTION
  5.1 

  	
  Interest

  	
  34

  
	
  SECTION
  5.2  

  	
  Notice
  and Manner of Conversion or Continuation of Loans

  	
  38

  
	
  SECTION
  5.3 

  	
  Conversion
  of Term Loan Interest Rate

  	
  38

  
	
  SECTION
  5.4 

  	
  Fees

  	
  39

  
	
  SECTION
  5.5 

  	
  Manner
  of Payment; Evidence of Indebtedness

  	
  40

  
	
  SECTION
  5.6 

  	
  Crediting
  of Payments and Proceeds

  	
  41

  
	
  SECTION 5.7 

  	
  Adjustments

  	
  42

  



 


i





















 


	
  SECTION
  5.8

  	
  Nature of Obligations of Lenders Regarding
  Extensions of Credit; Assumption by the Administrative Agent

  	
  42

  
	
  SECTION 5.9 

  	
  Changed
  Circumstances

  	
  43

  
	
  SECTION 5.10 

  	
  Indemnity

  	
  45

  
	
  SECTION 5.11 

  	
  Capital Requirements

  	
  46

  
	
  SECTION 5.12 

  	
  Taxes

  	
  46

  
	
  SECTION 5.13 

  	
  Mitigation Obligations;
  Replacement of Lenders

  	
  48

  
	
  SECTION 5.14 

  	
  Security

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI CLOSING;
  CONDITIONS OF CLOSING AND BORROWING

  	
  49

  
	
  SECTION
  6.1 

  	
  Closing

  	
  49

  
	
  SECTION
  6.2 

  	
  Conditions
  to Closing and Initial Extensions of Credit

  	
  49

  
	
  SECTION
  6.3 

  	
  Conditions
  to All Extensions of Credit

  	
  55

  
	
  SECTION
  6.4 

  	
  Post-Closing
  Agreements

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII
  REPRESENTATIONS AND WARRANTIES OF THE BORROWER

  	
  56

  
	
  SECTION
  7.1 

  	
  Representations
  and Warranties

  	
  56

  
	
  SECTION 7.2 

  	
  Survival of
  Representations and Warranties, Etc

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII FINANCIAL
  INFORMATION AND NOTICES

  	
  65

  
	
  SECTION 8.1 

  	
  Financial Statements and
  Projections

  	
  65

  
	
  SECTION 8.2 

  	
  FCC and PUC Matters

  	
  66

  
	
  SECTION 8.3 

  	
  Officer’s Compliance
  Certificate

  	
  66

  
	
  SECTION 8.4 

  	
  Accountants’ Certificate

  	
  66

  
	
  SECTION 8.5 

  	
  Other Reports

  	
  67

  
	
  SECTION 8.6 

  	
  Notice of Litigation and
  Other Matters

  	
  67

  
	
  SECTION 8.7 

  	
  Accuracy of Information

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX AFFIRMATIVE COVENANTS

  	
  68

  
	
  SECTION 9.1  

  	
  Preservation of Corporate
  Existence and Related Matters

  	
  68

  
	
  SECTION 9.2 

  	
  Maintenance of Property

  	
  68

  
	
  SECTION 9.3 

  	
  Insurance

  	
  68

  
	
  SECTION 9.4 

  	
  Accounting Methods and
  Financial Records

  	
  68

  
	
  SECTION 9.5 

  	
  Payment and Performance of
  Obligations

  	
  69

  
	
  SECTION 9.6 

  	
  Compliance With Laws and
  Approvals

  	
  69

  
	
  SECTION 9.7 

  	
  Environmental Laws

  	
  69

  
	
  SECTION 9.8 

  	
  Compliance with ERISA

  	
  69

  
	
  SECTION 9.9 

  	
  Compliance With Agreements

  	
  70

  
	
  SECTION 9.10 

  	
  Conduct of Business

  	
  70

  
	
  SECTION 9.11 

  	
  Visits and Inspections

  	
  70

  
	
  SECTION 9.12 

  	
  Additional Subsidiaries

  	
  70

  
	
  SECTION 9.13 

  	
  Further Assurances

  	
  71

  
	
  SECTION 9.14 

  	
  CoBank Participation
  Certificates

  	
  71

  
	
  SECTION 9.15 

  	
  RTFC Eligibility

  	
  71

  
	
  SECTION 9.16 

  	
  Interest Rate Contracts

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE X FINANCIAL
  COVENANTS

  	
  72

  
	
  SECTION
  10.1 

  	
  Maximum
  Leverage Ratio

  	
  72

  



 


ii





















 


	
  SECTION 10.2 

  	
  [Reserved.]

  	
  72

  
	
  SECTION
  10.3 

  	
  Interest
  Coverage Ratio

  	
  72

  
	
  SECTION
  10.4 

  	
  Maximum
  Capital Expenditure

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI NEGATIVE
  COVENANTS

  	
  73

  
	
  SECTION 11.1 

  	
  Limitations on Debt

  	
  73

  
	
  SECTION
  11.2 

  	
  Limitations
  on Liens

  	
  74

  
	
  SECTION
  11.3

  	
  Limitations
  on Loans, Advances, Investments and Acquisitions

  	
  75

  
	
  SECTION 11.4 

  	
  Limitations on Mergers and
  Liquidation

  	
  77

  
	
  SECTION 11.5 

  	
  Limitations on Sale of
  Assets

  	
  77

  
	
  SECTION 11.6 

  	
  Limitations on Dividends
  and Distributions

  	
  78

  
	
  SECTION 11.7  

  	
  Limitations on Exchange
  and Issuance of Capital Stock

  	
  78

  
	
  SECTION 11.8 

  	
  Transactions with
  Affiliates

  	
  79

  
	
  SECTION 11.9 

  	
  Certain Accounting Changes

  	
  79

  
	
  SECTION 11.10

  	
  Amendments; Payments and
  Prepayments of Subordinated Debt

  	
  79

  
	
  SECTION 11.11 

  	
  Restrictive
  Agreements

  	
  79

  
	
  SECTION 11.12 

  	
  Nature of Business

  	
  80

  
	
  SECTION 11.13 

  	
  Impairment of Security
  Interests

  	
  80

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII DEFAULT AND
  REMEDIES

  	
  80

  
	
  SECTION
  12.1 

  	
  Events
  of Default

  	
  80

  
	
  SECTION
  12.2 

  	
  Remedies

  	
  83

  
	
  SECTION
  12.3 

  	
  Rights
  and Remedies Cumulative; Non-Waiver; etc

  	
  83

  
	
  SECTION
  12.4 

  	
  Administrative
  Agent May File Proofs of Claim

  	
  84

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII THE
  ADMINISTRATIVE AGENT

  	
  84

  
	
  SECTION 13.1

  	
  Appointment and Authority

  	
  84

  
	
  SECTION 13.2 

  	
  Rights as a Lender

  	
  85

  
	
  SECTION 13.3 

  	
  Exculpatory Provisions

  	
  85

  
	
  SECTION 13.4 

  	
  Reliance by the
  Administrative Agent

  	
  86

  
	
  SECTION 13.5 

  	
  Delegation of Duties

  	
  86

  
	
  SECTION 13.6 

  	
  Resignation of
  Administrative Agent

  	
  86

  
	
  SECTION 13.7  

  	
  Non-Reliance on
  Administrative Agent and Other Lenders

  	
  87

  
	
  SECTION 13.8 

  	
  No Other Duties, etc

  	
  87

  
	
  SECTION
  13.9 

  	
  Collateral
  and Guaranty Matters

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV MISCELLANEOUS

  	
  88

  
	
  SECTION 14.1 

  	
  Notices

  	
  88

  
	
  SECTION 14.2 

  	
  Expenses; Indemnity

  	
  89

  
	
  SECTION 14.3 

  	
  Set-off

  	
  91

  
	
  SECTION 14.4 

  	
  Governing Law

  	
  91

  
	
  SECTION 14.5 

  	
  Intentionally Omitted

  	
  92

  
	
  SECTION 14.6 

  	
  Binding Arbitration;
  Waiver of Jury Trial

  	
  92

  
	
  SECTION 14.7 

  	
  Reversal of Payments

  	
  93

  
	
  SECTION 14.8 

  	
  Injunctive Relief;
  Punitive Damage

  	
  94

  
	
  SECTION
  14.9 

  	
  Accounting
  Matters

  	
  94

  



 


iii





















 


	
  SECTION 14.10 

  	
  Successors and Assigns;
  Participations

  	
  94

  
	
  SECTION
  14.11 

  	
  Amendments,
  Waivers and Consents

  	
  97

  
	
  SECTION
  14.12 

  	
  Confidentiality

  	
  98

  
	
  SECTION
  14.13 

  	
  Performance
  of Duties

  	
  99

  
	
  SECTION
  14.14 

  	
  All
  Powers Coupled with Interest

  	
  99

  
	
  SECTION
  14.15 

  	
  Survival
  of Indemnities

  	
  99

  
	
  SECTION
  14.16 

  	
  Titles
  and Captions

  	
  99

  
	
  SECTION
  14.17 

  	
  Severability
  of Provisions

  	
  99

  
	
  SECTION
  14.18 

  	
  Counterparts

  	
  100

  
	
  SECTION
  14.19 

  	
  Term
  of Agreement

  	
  100

  
	
  SECTION 14.20  

  	
  Inconsistencies with Other
  Documents; Independent Effect of Covenants

  	
  100

  
	
  SECTION 14.21 

  	
  Integration

  	
  100

  
	
  SECTION
  14.22 

  	
  Advice
  of Counsel, No Strict Construction

  	
  100

  
	
  SECTION
  14.23 

  	
  USA
  Patriot Act

  	
  101

  
	
  SECTION 14.24 

  	
  Amendment and Restatement;
  No Novation

  	
  101

  



 


iv





















 


	
  EXHIBITS

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit
  A-1

  	
  -

  	
  Form of
  Third Amended and Restated Revolving Credit Note

  	
   

  
	
  Exhibit
  A-2

  	
  -

  	
  Form of
  Term Loan B Note

  	
   

  
	
  Exhibit
  A-3

  	
  -

  	
  Form of
  Amended and Restated Term Loan C Note

  	
   

  
	
  Exhibit
  A-4

  	
  -

  	
  Form of
  Incremental Term Loan 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 Assumption

  	
   

  
	
  Exhibit G

  	
  -

  	
  Form of
  Notice of Account Designation

  	
   

  
	
  Exhibit H

  	
   

  	
  Form of
  Collateral Agreement

  	
   

  
	
  Exhibit I

  	
   

  	
  Form of
  Guaranty Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  1.1(a)

  	
  -

  	
  Revolving
  Credit Commitments

  	
   

  
	
  Schedule
  1.1(b)

  	
  -

  	
  Term Loan
  C Commitment

  	
   

  
	
  Schedule
  1.1(c)

  	
  -

  	
  Existing
  Letters of Credit

  	
   

  
	
  Schedule
  7.1(a)

  	
  -

  	
  Jurisdictions
  of Organization and Qualification

  	
   

  
	
  Schedule
  7.1(b)

  	
  -

  	
  Subsidiaries
  and Capitalization

  	
   

  
	
  Schedule
  7.1(i)

  	
  -

  	
  ERISA
  Plans

  	
   

  
	
  Schedule
  7.1(l)

  	
  -

  	
  Material
  Contracts

  	
   

  
	
  Schedule
  7.1(m)

  	
  -

  	
  Labor and
  Collective Bargaining Agreements

  	
   

  
	
  Schedule
  7.1(q)

  	
  -

  	
  Real
  Property

  	
   

  
	
  Schedule
  7.1(s)

  	
  -

  	
  Debt and
  Guaranty Obligations

  	
   

  
	
  Schedule
  7.1(t)

  	
  -

  	
  Litigation

  	
   

  
	
  Schedule
  7.1(w)

  	
   

  	
  Network
  Agreements, FCC Licenses and PUC Authorizations

  	
   

  
	
  Schedule
  11.2

  	
  -

  	
  Existing
  Liens

  	
   

  
	
  Schedule
  11.3

  	
  -

  	
  Existing
  Loans, Advances and Investments

  	
   

  



 


v





















 


THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 30th day of December, 2005 by and among HICKORY TECH CORPORATION, a
Minnesota corporation (the “Borrower”), the Lenders who are or may
become a party to this Agreement, and WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association, as Administrative Agent for the Lenders. 


STATEMENT OF PURPOSE


 


The Borrower, certain financial institutions (the “Prior Lenders”)
and Wachovia (formerly known as First Union, National Bank), as administrative
agent therefor, are party to that certain Second Amended and Restated Credit
Agreement dated as of September 21, 2000 (as amended, restated, supplemented 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
$125,000,000 revolving credit facility and a $100,000,000 term loan facility.


 


The Borrower has requested, and, subject to the terms and conditions
hereof, the Administrative Agent and the Lenders have agreed to refinance the
existing indebtedness under the Prior Credit Agreement on the terms and
conditions of this Agreement.


 


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: 


 


“Administrative Agent” means Wachovia in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 13.6. 


 


“Administrative Agent’s Office” means the office of the
Administrative Agent specified in or determined in accordance with the
provisions of Section 14.1. 


 


“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. 


 


“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 One Hundred Sixty Million Dollars ($160,000,000). 


 





















 


“Agreement” means this Third Amended and Restated Credit
Agreement, as further amended, restated, supplemented or otherwise modified
from time to time. 


 


“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
5.1(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. 


 


“Approved Fund” means any Person (other than a natural Person),
including, without limitation, any special purpose entity, that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business; provided,
that such Approved Fund must be administered, managed or underwritten by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender. 


 


“Arbitration Rules” shall have the meaning assigned thereto in Section
14.6(a). 


 


“Assignment and Assumption” means an assignment and assumption
entered into by a Lender and an Eligible Assignee (with the consent of any
party whose consent is required by Section 14.10), and accepted by the
Administrative Agent, in substantially the form of Exhibit F or any
other form approved by the Administrative Agent. 


 


“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 5.1(a). 


 


“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)


 


2





















 


and
that is also a day for trading by and between banks in Dollar deposits in the
London interbank market. 


 


“Calculation Date” shall have the meaning assigned thereto in Section
5.1(c). 


 


“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, as determined in accordance
with GAAP; provided that for purposes of this definition, (a) the
purchase price of assets that are purchased simultaneously with the trade-in or
exchange of existing assets of a similar type and nature or with the
application of Net Cash Proceeds from the sale or disposition of assets (to the
extent permitted hereunder) or from any payment under an insurance policy or in
connection with a condemnation policy shall be included in Capital Expenditures
only to the extent of the gross amount of such purchase price less the
credit granted by the seller of such assets for the assets being traded in at
such time or the amount of such Net Cash Proceeds, as the case may be and (b)
Permitted Acquisitions shall be excluded from Capital Expenditures. 


 


“Capital Lease” means 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
12.1(i). 


 


“Closing Date” means the date of this Agreement or such later
Business Day upon which each condition described in Section 6.2 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
9.14. 


 


“Code” means the Internal Revenue Code of 1986, and the rules
and regulations thereunder, each as amended, supplemented or otherwise modified
from time to time. 


 


“Collateral” means the collateral security for the Obligations
or the Guaranteed Obligations pledged or granted pursuant to the Security
Documents. 


 


“Collateral Agreement” means the Amended and Restated Collateral
Agreement of even date herewith executed by the Borrower and the Guarantors
named therein in favor of the Administrative Agent for the benefit of itself
and the Lenders, substantially in the form of Exhibit H, as amended,
restated, supplemented, or modified from time to time. 


 


“Commitment” means, as to any Lender the sum of such Lender’s
Revolving Credit Commitment, its Term Loan B Commitment, its Term Loan C
Commitment and its Incremental Term Loan Commitment, each as applicable and as
set forth opposite such Lender’s name on 


 


3





















 


Schedule
1.1.(a), Schedule 1.1(b) or the Register, as applicable, 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 of all the Lenders. 


 


“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. 


 


“Credit Facility” means the collective reference to the
Revolving Credit Facility, the L/C Facility, the Term Loan Facility and the
Incremental Term Loan Facility. 


 


“Current Management Group” shall have the meaning set forth in Section
12.1(i). 


 


“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, (g) all obligations of any such Person to redeem, repurchase,
exchange, defease or otherwise make payments in respect of capital stock or
other securities or partnership interests of such Person, and (h) all net
payment 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 4.5(b)). 


 


“Default” means any of the events specified in Section 12.1
which with the passage of time, the giving of notice or any other condition,
would constitute an Event of Default. 


 


“Defaulting Lender” means any Lender that (a) has failed to fund
any portion of the Revolving Credit Loans, the Term Loan B, the Term Loan C or
participations in L/C Obligations required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless such amount is the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding. 


 


4





















 


“Disputes” shall have the meaning set forth in Section 14.6.



 


“Dollars” or “$” means, unless otherwise qualified, dollars in
lawful currency of the United States. 


 


“Domestic Subsidiary” means any Subsidiary organized under the
laws of any political subdivision 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, 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.


 


“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a
Lender, (c) an Approved Fund, and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent, (ii) in the case of any
assignment of a Revolving Credit Commitment, the Issuing Lender, and (iii)
unless a Default or Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed); provided
that notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries. 


 


“Employee Benefit Plan” means any employee benefit plan within
the meaning of Section 3(3) of ERISA which (a) is maintained for employees of
any Loan Party or any ERISA Affiliate or (b) has at any time within the
preceding six years been maintained for the employees of any Loan Party or any
current or former ERISA Affiliate. 


 


“Engagement Letter” means that certain engagement letter dated
July 22, 2005 among the Borrower, Wachovia and Wachovia Capital Markets, LLC. 


 


“Enventis” means Enventis Telecom, Inc., a Minnesota corporation
and a Wholly Owned subsidiary of Minnesota Power Enterprises, Inc. 


 


“Enventis Acquisition” means the acquisition by the Borrower of
the issued and outstanding capital stock of Enventis. 


 


5





















 


“Enventis Purchase Agreement” means that certain Stock Purchase
Agreement dated as of November 9, 2005 between Allete, Inc., as “Parent”,
Minnesota Power Enterprises, Inc., as “Shareholder” and the Borrower, as
“Purchaser.” 


 


“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 proceedings 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, foreign, state,
provincial and local laws, statutes, ordinances, codes, rules, standards and
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. 


 


“ERISA Affiliate” means any Person who together with any Loan
Party 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
Board of Governors of the Federal Reserve System (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
12.1, provided that any requirement for passage of time, giving of notice,
or any other condition, has been satisfied. 


 


“Excess Proceeds” shall have the meaning assigned thereto in Section
4.5(b)(v). 


 


“Existing Interest Rate Contracts” shall mean the collective
reference to (a) that certain interest rate agreement of the Borrower dated as
of June 13, 2003 in the amount of $60,000,000 which matures on June 23, 2008
and (b) that certain interest rate agreement of the Borrower dated as of June
17, 2005 in the amount of $10,000,000 which matures on June 23, 2008. 


 


6





















 


“Existing Letters of Credit” shall mean all letters of credit
issued under the Prior Credit Agreement and outstanding on the Closing Date and
set forth on Schedule 1.1(c) attached hereto. 


 


“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
Revolving Credit Loans made by such Lender then outstanding, (ii) such Lender’s
Revolving Credit Commitment Percentage of the L/C Obligations then outstanding,
(iii) the aggregate principal amount of all Term Loans made by such Lender then
outstanding, and (iv) the aggregate principal amount of all Incremental Term
Loans made by such Lender 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. 


 


“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.  Rates for weekends or
holidays shall be the same as the rate for the most immediate preceding Business
Day.   


 


“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 11.6(b).


 


“Foreign Subsidiary” means any Subsidiary that is not a Domestic
Subsidiary. 


 


“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 14.9) and consistent with the prior
financial practice of the Borrower and its Subsidiaries. 


 


7





















 


“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. 


 


“Guaranteed Obligations” shall have the meaning assigned thereto
in the Guaranty Agreement. 


 


“Guarantor” means the collective reference to each Person
executing the Guaranty Agreement. 


 


“Guaranty Agreement” means the Amended and Restated Guaranty
Agreement of even date herewith executed by the Guarantors in favor of the
Administrative Agent for the ratable benefit of itself and the Lenders, substantially
in the form of Exhibit I as amended, restated, supplemented or otherwise
modified from time to time. 


 


“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. 


 


8





















 


“Hedging Agreement” means any agreement with respect to any
Interest Rate Contract, forward rate agreement, commodity swap, forward foreign
exchange agreement, currency swap agreement, cross-currency rate swap
agreement, currency option agreement or other agreement or arrangement designed
to alter the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices, all as amended, restated, supplemented or otherwise
modified from time to time. 


 


“Incremental Term Lender” means any Lender holding any portion
of the Incremental Term Loan Commitment. 


 


“Incremental Term Loan” shall mean any incremental term loan
made to the Borrower pursuant to Section 4.4. 


 


“Incremental Term Loan Agreement” shall mean each agreement
executed pursuant to Section 4.4 by the Borrower and one or more
existing Lenders or New Term Lenders not theretofore Lenders, as applicable,
and acknowledged by the Administrative Agent and the Borrower, providing for an
Incremental Term Loan hereunder; it being understood and agreed that any New
Term Lender not theretofore a Lender shall be, as of the relevant Incremental
Term Loan Effective Date, a party hereto as a Lender and have the rights and
obligations of a Lender hereunder, and such agreement shall set forth the
Incremental Term Loan Commitment of such Lender. 


 


“Incremental Term Loan Commitment” shall mean (a) as to any
Lender, the obligation of such Lender to make Incremental Term Loans, as
applicable, to the Borrower in an aggregate principal amount not to exceed the
amount described in the relevant Incremental Term Loan Agreement and as set
forth opposite such Lender’s name in the Register, as such amount may be
increased, reduced or otherwise modified at any time or from time to time
pursuant to the terms hereof and (b) as to all Lenders, the aggregate
obligations of all Lenders to make the Incremental Term Loans, as such amount
may be increased, reduced or otherwise modified at any time or from time to
time.  The Incremental Term Loan
Commitment of all Lenders as of the Closing Date shall be $0. 


 


“Incremental Term Loan Effective Date” shall mean, with respect to
any Incremental Term Loan, the date, which shall be a Business Day, on or
before the applicable Incremental Term Loan Maturity Date, but no earlier than
thirty (30) days after the date of delivery of the applicable Incremental Term
Loan Notification, on which each of the applicable Lenders shall make such
Incremental Term Loan to the Borrower pursuant to Section 4.4. 


 


“Incremental Term Loan Facility” shall mean the incremental term
loan facility established pursuant to Section 4.4. 


 


“Incremental Term Loan Maturity Date” with respect to any
Incremental Term Loan, shall have the meaning set forth in the applicable
Incremental Term Loan Notification, or such earlier date as payment of the
remaining outstanding principal amount of such Incremental Term Loan or of all
remaining outstanding Obligations (excluding Hedging Obligations) shall be due
(whether by acceleration or otherwise) in accordance with this Agreement. 


 


9





















 


“Incremental Term Loan Note” shall mean a promissory note made
by the Borrower in favor of a Lender evidencing the portion of the Incremental
Term Loans made by such Lender, substantially in the form of Exhibit A-4,
as such promissory note may be amended, modified, restated, supplemented, extended,
renewed or replaced from time to time. 


 


“Incremental
Term Loan Notification” shall have the meaning assigned thereto in Section
4.4.


 


“Incremental Term Loan Percentage” means, as to any Lender
making an Incremental Term Loan, (a) prior to making the Incremental Term
Loans, the ratio of (i) the Incremental Term Loan Commitment of such Lender to
(ii) the Incremental Term Loan Commitments of all Lenders making the
Incremental Term Loans and (b) after the Incremental Term Loans are made, the
ratio of

(i) the outstanding principal balance of the Incremental Term Loan of such
Lender to (ii) the aggregate outstanding principal balance of the Incremental
Term Loans of all Term Loan Lenders. 


 


“Insurance Proceeds” shall have the meaning assigned thereto in Section
4.5(b)(iv). 


 


“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),
calculated on a Consolidated basis, without duplication, in accordance with
GAAP.  


 


“Interest Rate Contract” means any interest rate swap agreement,
interest rate cap agreement, interest rate floor agreement, interest rate
collar agreement, interest rate option or any other agreement regarding the
hedging of interest rate risk exposure executed in connection with hedging the
interest rate exposure of any Person and any confirming letter executed
pursuant to such agreement, all as amended, restated, supplemented or otherwise
modified from time to time. 


 


“ISP98” 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 Wachovia, in its capacity as issuer of
any Letter of Credit, or any successor thereto. 


 


“Joinder Agreement” means, collectively, each joinder agreement
executed in favor of the Administrative Agent for the ratable benefit of itself
and the Lenders, in form and substance reasonably satisfactory to the
Administrative Agent. 


 


10





















 


“L/C Commitment” means the lesser of (a) Ten Million Dollars
($10,000,000) and (b) the Revolving Credit 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. 


 


“L/C Participants” means the collective reference to all the
Revolving Credit Lenders other than the Issuing Lender. 


 


“Lenders” 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, each Person that hereafter
becomes a party to this Agreement as a Lender pursuant to Section 14.10
and any New Term Lenders. 


 


“Lending Office” means, with respect to any Lender, the office
of such Lender maintaining such Lender’s Revolving Credit Commitment
Percentage, Term Loan B Commitment Percentage, Term Loan C Commitment
Percentage or Incremental Term Loan Percentage, as applicable, of the
Extensions of Credit. 


 


“Letters of Credit” shall have the meaning assigned thereto in Section
3.1. 


 


“Leverage Ratio” shall have the meaning assigned thereto in Section
10.1. 


 


“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
$500,000 for a period equal to the applicable LIBOR Interest Period which
appears on the Telerate Page 3750 at approximately 11:00 a.m. (London time) two
(2) Business Days prior to the first day of the applicable LIBOR Interest
Period (rounded upward, if necessary to the nearest 1/100th of 1%).  If, for any reason, such rate does not appear
on Telerate Page 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 $500,000 would be offered by first class
banks in the London interbank market to the Administrative Agent at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of the applicable LIBOR Interest Period for a period equal to such LIBOR
Interest Period. Each calculation by the Administrative Agent of LIBOR shall be
conclusive and binding for all purposes, absent manifest error. 


 


“LIBOR Interest Period” shall have the meaning assigned thereto
in Section 5.1(b). 


 


“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

  	
   

  



 


11





















 


“LIBOR Rate Loan” means any Loan bearing interest at a rate
based upon the LIBOR Rate as provided in Section 5.1(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. 


 


“Loan Documents” means, collectively, this Agreement, the Notes,
the Applications, the Security Documents, all Incremental Term Loan
Notifications 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 (excluding any Hedging
Agreement), all as may be amended, restated or otherwise modified. 


 


“Loans” means the collective reference to the Revolving Credit
Loans, the Term Loans and, as applicable, the Incremental Term Loans, and
“Loan” means any of such Loans.   


 


“Loan Parties” means, collectively, the Borrower and each of its
Subsidiaries who are executing the Guaranty Agreement; “Loan Party” means any
one of such Persons. 


 


“Make-Whole Premium” means the excess, if any, of (i) the
present value of the amount of interest that would have accrued during the
applicable Term Interest Period on that portion of the Term Loan C to be
prepaid or converted over (ii) the present value of the amount of
interest RTFC would earn if that portion of the Term Loan C to be prepaid or
converted was reinvested for the remainder of the applicable Term Interest
Period in U.S. Treasury obligations with a maturity comparable to the remaining
term of the applicable Term Interest Period. 
For purposes of calculating the present value in (i) and (ii) above, the
discount rate will be the rate of interest accruing on the U.S. Treasury
obligations in (ii) above. 


 


“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, 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. 


 


“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. 


 


“Mortgages” means the collective reference to the mortgages
executed by the Borrower or any of its Subsidiaries in favor of the
Administrative Agent, for the benefit of itself and the Lenders, encumbering
certain real property of the Borrower identified on Schedule 7.1(q). 


 


12





















 


“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, sales
commissions and reasonable attorney’s 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 legal
and other fees and expenses of collection actually incurred. 


 


“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. 


 


“New Term Lender” shall have the meaning assigned thereto in Section
4.4(b). 


 


“Notes” means the collective reference to the Revolving Credit
Notes, the Term Notes and the Incremental Term Loan Notes, 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
5.2.


 


“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, (c) all existing or future payment and other obligations
owing by the Borrower under any Hedging Agreement (which such Hedging


 


13





















 


Agreement
is permitted hereunder) with any Person that is a Lender hereunder or an
Affiliate of a Lender at the time such Hedging Agreement is executed (all such
obligations with respect to any such Hedging Agreement, “Hedging Obligations”)
and (d) 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 under or in respect of this Agreement, any Note, any Letter of Credit
or any of the other Loan Documents, whether or not evidenced by any note, and
whether or not for the payment of money. 


 


“OFAC” means the U.S. Department of the Treasury’s Office of
Foreign Assets Control. 


 


“Officer’s
Compliance Certificate” shall have the meaning assigned thereto in Section
8.3.


 


“Other Taxes” shall
have the meaning assigned thereto in Section 5.12(b). 


 


“PBGC” means the
Pension Benefit Guaranty Corporation or any successor agency. 


 


“Participation Certificates” shall have the meaning assigned
thereto in Section 9.14. 


 


“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 Acquisitions” mean any acquisition by the Borrower
permitted by Section 11.3(c). 


 


“Permitted Liens” means those Liens permitted by Section 11.2.



 


“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. 


 


“Prime Rate” means, at any time, the rate of interest per annum
publicly announced from time to time by Wachovia 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 such prime
rate occurs.  The parties hereto
acknowledge that the rate announced publicly by Wachovia 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. 


 


“Prior Lenders” shall have the meaning assigned thereto in the
preamble hereto. 


 


“Proposed Issuance” means any issuance of common capital stock
of the Borrower; provided that (a) such capital stock is not, by its
terms (or by the terms of any security into which 


 


14





















 


it
is convertible, or for which it is exchangeable, in any such case at the option
of the holder of such capital stock), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder of such capital stock, in
whole or in part and (b) such capital stock does not, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in any such case at the option of the holder of such capital
stock), or upon the happening of any event, require the payment of any cash dividends
or other distributions. 


 


“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
14.10(c). 


 


“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. 


 


“Related Parties” means, with respect to any Person, such
Person’s Affiliates and the directors, officers, employees, agents and advisors
of such Person and of such Person’s Affiliates. 


 


“Required Lenders” means, at any date, (i) any combination of
Lenders the sum of whose Term Loan B Commitment Percentage and Incremental Term
Loan Percentage, if any, aggregate more than fifty percent (50%) of the sum of
the Term Loan B Commitment plus the Incremental Term Loan Commitment and
(ii) any combination of Lenders the sum of whose Revolving Credit Commitment
Percentage plus Term Loan C Commitment Percentage aggregate more than
fifty percent (50%) of the sum of the Revolving Credit Commitment plus
the Term Loan C Commitment; or, if the Credit Facility has been terminated
pursuant to Section 12.2, any combination of Lenders holding more than
fifty percent (50%) of the aggregate Extensions of Credit; provided that
the applicable Commitment Percentage of, and the portion of the Extensions of
Credit, as applicable, held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders. 


 


“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 Commitment” means (a) as to any Revolving
Credit Lender, the obligation of such Revolving Credit Lender to make Revolving
Credit Loans to the account of the Borrower hereunder in an aggregate principal
amount at any time outstanding not to exceed the amount set forth opposite such
Revolving Credit Lender’s name on Schedule 1.1(a) as such amount may be
reduced or modified at any time or from time to time pursuant to the terms
hereof and (b) as to all Revolving Credit Lenders, the aggregate commitment of
all Revolving Credit Lenders to make Revolving Credit Loans, as such amount may
be reduced at any time or from time to time pursuant to the terms hereof.  The Revolving Credit Commitment of all
Revolving Credit Lenders on the Closing Date shall be $30,000,000. 


 


15





















 


“Revolving Credit Commitment Percentage” means, as to any
Revolving Credit Lender at any time, the ratio of (a) the amount of the
Revolving Credit Commitment of such Revolving Credit Lender to (b) the
Revolving Credit Commitments of all Revolving Credit Lenders. 


 


“Revolving Credit Facility” means the revolving credit facility
established pursuant to Article II hereof. 


 


“Revolving Credit Lender” means any Lender holding any portion
of the Revolving Credit Commitment.   


 


“Revolving Credit Loans” means any revolving loan made to the
Borrower pursuant to Section 2.1, and all such revolving loans
collectively as the context requires. 


 


“Revolving Credit Notes” means the collective reference to the
Revolving Credit Notes made by the Borrower payable to the order of each
Revolving Credit Lender, substantially in the form of Exhibit A-1
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; “Revolving
Credit Note” means any of such Revolving Credit Notes. 


 


“Revolving
Credit Maturity Date” means the earliest of the dates referred to in Section
2.6.


 


“RSA” shall mean any “rural service area” as defined and
modified by the FCC for the purpose of licensing Telecommunications Systems. 


 


“RTFC” means Rural Telephone Finance Cooperative in its capacity
as a Lender hereunder. 


 


“RTFC Fixed Rate” means a rate per annum equal to RTFC’s rate as
available pursuant to RTFC policies and procedures in effect at the time for
fixed rate elections on a term loan made by RTFC with a 10% SCC to term loan
ratio requirement and for the Term Interest Period selected. 


 


“RTFC Patronage” means a patronage capital refund made by RTFC
to the Borrower pursuant to RTFC policies and procedures in effect from time to
time based on the percentage that the Borrower’s interest payments on the Term
Loan C during any period have contributed to RTFC’s net margins for such
period.  RTFC Patronage Distributions do
not include amortization payments made by RTFC from time to time in respect of
its SCCs. 


 


“RTFC Variable Rate” means a rate per annum equal to RTFC’s
monthly quoted long-term variable interest rate per annum in effect from time
to time as available pursuant to RTFC policies and procedures in effect from
time to time for loans made by RTFC with a 10% SCC to loan ratio requirement. 


 


“Sanctioned Entity” shall mean (a) an agency of the government
of, (b) an organization directly or indirectly controlled by, or (c) a person
resident in a country that is subject to a 


 


16





















 


sanctions
program identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/sanctions/index.html, or as
otherwise published from time to time as such program may be applicable to such
agency, organization or person. 


 


“Sanctioned Person” shall mean a person named on the list of
Specially Designated Nationals or Blocked Persons maintained by OFAC available
at http://www.treas.gov/offices/enforcement/ofac/sdn/index.html, or as
otherwise published from time to time. 


 


“SCC” means a non-interest bearing, amortizing subordinated
capital certificate of RTFC. 


 


“Security Documents” means the collective reference to the
Collateral Agreement, the Guaranty Agreement, the Mortgages and each other
agreement or writing pursuant to which the Borrower or any Subsidiary thereof
purports to pledge or grant a security interest in any property or assets
securing the Obligations or any such Person purports to guaranty the payment
and/or performance of the Obligations.  


 


“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. 


 


“Stock Repurchases” shall have the meaning assigned thereto in Section
11.6(b). 


 


“Subordinated Debt” means the collective reference to any Debt
of the Borrower or any Subsidiary subordinated in right and time of payment to
the Obligations and containing such other terms and conditions, in each case as
are satisfactory to the Required Lenders. 


 


“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. 


 


17





















 


“Taxes” shall have the meaning assigned thereto in Section
5.12(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. 


 


“Term Interest Period” shall have the meaning assigned thereto
in Section 5.1(b)(ii). 


 


“Term Loan B” shall mean, collectively, the amounts advanced by
the Term Loan Lenders to the Borrower under the Term Loan B Commitment pursuant
to Section 4.1(a). 


 


“Term Loan B Commitment” means (a) as to any Term Loan Lender,
the obligation of such Lender to make a Term Loan B in an aggregate principal
amount not to exceed the amount set forth opposite such Term Loan Lender’s name
on the Register, as such amount may be reduced or modified at any time or from
time to time pursuant to the terms hereof and (b) as to all Term Loan Lenders,
the aggregate commitment to make the Term Loan B.  The Term Loan B Commitment of all Term Loan
Lenders as of the Closing Date shall be $110,000,000. 


 


“Term Loan B Commitment Percentage” means, as to any Term Loan
Lender, (a) prior to making the Term Loan B, the ratio of (i) the Term Loan B
Commitment of such Term Loan Lender to (ii) the sum of the Term Loan B
Commitments of all Term Loan Lenders and (b) after the Term Loan B is made, the
ratio of (i) the outstanding principal balance of the Term Loan B of such Term
Loan Lender to (ii) the aggregate outstanding principal balance of the Term
Loan B of all Term Loan Lenders. 


 


“Term Loan B Maturity Date” means the first to occur of (a) June
30, 2012 or (b) the date of termination by the Administrative Agent on behalf
of the Lenders pursuant to Section 12.2(a). 


 


“Term Loan C” shall mean, collectively, the amounts advanced by
the Term Loan Lenders to the Borrower under the Term Loan C Commitment pursuant
to Section 4.1(b). 


 


“Term Loan C Commitment” means (a) as to any Term Loan Lender,
the obligation of such Lender to make a Term Loan C in an aggregate principal
amount not to exceed the amount set forth opposite such Term Loan Lender’s name
on Schedule 1.1(b), as such amount may be reduced or modified at any
time or from time to time pursuant to the terms hereof and (b) as to all Term
Loan Lenders, the aggregate commitment to make the Term Loan C.  The Term Loan C Commitment of all Term Loan
Lenders as of the Closing Date shall be $20,000,000. 


 


“Term Loan C Commitment Percentage” means, as to any Term Loan
Lender, (a) prior to making the Term Loan C, the ratio of (i) the Term Loan C
Commitment of such Term Loan Lender to (ii) the sum of the Term Loan C
Commitments of all Term Loan Lenders and (b) after the Term Loan C is made, the
ratio of (i) the outstanding principal balance of the Term Loan C of such Term
Loan Lender to (ii) the aggregate outstanding principal balance of the Term
Loan C of all Term Loan Lenders. 


 


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“Term Loan C Maturity Date” means the first to occur of (a) June
30, 2013 or (b) the date of termination by the Administrative Agent on behalf
of the Lenders pursuant to Section 12.2(a). 


 


“Term Loan Facility” means the term loan facility established
pursuant to Article IV. 


 


“Term Loan Lender” means any Lender holding any portion of the
Term Loan B Commitment or the Term Loan C Commitment, as applicable.


 


“Term Loans” shall mean, collectively, the amounts advanced by
the Term Loan Lenders to the Borrower under each of the Term Loan B Commitment
and the Term Loan C Commitment. 


 


“Term Notes” means the collective reference to (a) the Term Loan
B Notes made by the Borrower payable to the order of each of the Term Loan
Lenders with a Term Loan B Commitment, substantially in the form of Exhibit
A-2 hereto, and (b) the Term Loan C Notes made by the Borrower payable to
the order of each of the Term Loan Lenders with a Term Loan C Commitment,
substantially in the form of Exhibit A-3 hereto, in each case,
evidencing the Debt incurred by the Borrower pursuant to the respective Term
Loan Facility, and any amendments, modifications and supplements thereto, any
substitute therefor, and any replacement, restatements, renewals or extensions
thereof, in whole or in part. 


 


“Termination
Event” means except for any such event or condition that could not
reasonably be expected to have a Material Adverse Effect:  (a) a “Reportable Event” described in Section
4043 of ERISA for which the notice requirement has not been waived by the PBGC,
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, if the
plan assets are not sufficient to pay all plan liabilities, 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
imposition of a Lien pursuant to Section 412 of the Code or Section 302 of
ERISA, or (g) partial or complete withdrawal of the Borrower or any ERISA
Affiliate from a Multiemployer Plan if withdrawal liability is asserted by such
plan, 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. 


 


“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. 


 


19





















 


“Uniform Customs” means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), effective January, 1994, International
Chamber of Commerce Publication No. 500. 


 


“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. 


 


“Wachovia” means Wachovia Bank, National Association, a national
banking association, and its successors. 


 


“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
or other shares required by Applicable Law to be owned by a Person other than
the Borrower). 


 


SECTION 1.2       Other
Definitions and Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:  (a) the
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined, (b) whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms, (c) the
words “include”, “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”, (d) the word “will” shall be construed to have
the same meaning and effect as the word “shall”, (e) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (f) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (g) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (h) all
references herein to Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles and Sections of, and Exhibits and Schedules to, this
Agreement, (i) the words “asset” and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract
rights, (j) the term “documents” includes any and all instruments,
documents, agreements, certificates, notices, reports, financial statements and
other writings, however evidenced, whether in physical or electronic form, (k)
in the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including;” the words “to” and
“until” each mean “to but excluding;” and the word “through” means “to and
including”, and (l) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document. 


 


SECTION 1.3       Accounting
Terms. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including 


 


20





















 


financial
ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the audited financial statements required by Section
8.1(b), except as otherwise specifically prescribed herein. 


 


SECTION 1.4       UCC
Terms. Terms defined in the UCC in effect on the Closing
Date and not otherwise defined herein shall, unless the context otherwise
indicates, have the meanings provided by those definitions.  Subject to the foregoing, the term “UCC”
refers, as of any date of determination, to the UCC then in effect. 


 


SECTION 1.5       Rounding. Any financial
ratios required to be maintained by the Borrower pursuant to this Agreement
shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by
which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number). 


 


SECTION 1.6       References
to Agreement and Laws. Unless otherwise expressly provided herein,
(a) references to formation documents, governing documents, agreements
(including the Loan Documents) and other contractual instruments shall be
deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are
not prohibited by any Loan Document; and (b) references to any Applicable Law
shall include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Applicable Law. 


 


SECTION 1.7       Times
of Day. Unless otherwise specified, all references herein
to times of day shall be references to Eastern time (daylight or standard, as
applicable). 


 


SECTION 1.8       Letter
of Credit Amounts. Unless otherwise specified, all references
herein to the amount of a letter of credit (including, without limitation, any
Letter of Credit) at any time shall be deemed to mean the maximum amount of
such Letter of Credit after giving effect to all increases thereof contemplated
by such Letter of Credit or the Application therefor, whether or not such
maximum amount is in effect at such time (as such amount may be reduced by (i)
any permanent reduction of such Letter of Credit or (ii) any amount which is
drawn, reimbursed and no longer available under such Letter of Credit). 


 


ARTICLE II 


 


REVOLVING
CREDIT FACILITY 


 


SECTION 2.1       Revolving
Credit Loans. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations and warranties set forth
herein, each Revolving Credit Lender severally agrees to make Revolving Credit
Loans to the Borrower from time to time from the Closing Date through, but not
including, the Revolving Credit Maturity Date as requested by the Borrower in
accordance with the terms of Section 2.2; provided, that (a) 


 


21





















 


the
aggregate principal amount of all outstanding Revolving Credit Loans (after
giving effect to any amount requested) shall not exceed the Revolving Credit
Commitment less the sum of all outstanding L/C Obligations and (b) the
principal amount of outstanding Revolving Credit Loans from any Revolving
Credit Lender to the Borrower shall not at any time exceed such Lender’s
Revolving Credit Commitment less such Lender’s Revolving Credit
Commitment Percentage of the L/C Obligations. Each Revolving Credit Loan by a
Revolving Credit Lender shall be in a principal amount equal to such Lender’s
Revolving Credit Commitment Percentage of the aggregate principal amount of
Revolving Credit Loans requested on such occasion.  Subject to the terms and conditions hereof,
the Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder
until the Revolving Credit Maturity Date. 


 


SECTION 2.2       Procedure
for Advances of Revolving Credit 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. (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 (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, and (C) in the case
of a LIBOR Rate Loan, the duration of the LIBOR Interest Period applicable
thereto.  A Notice of Borrowing received
after 11:00 a.m. shall be deemed received on the next Business Day.  The Administrative Agent shall promptly
notify the Revolving Credit Lenders of each Notice of Borrowing. 


 


(b)           Disbursement
of Revolving Credit Loans. Not later than 2:00 p.m. on the proposed
borrowing date, (i) each Revolving Credit 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 Revolving Credit Commitment Percentage of the Revolving Credit
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 as
may be otherwise agreed upon by the Borrower and the Administrative Agent from
time to time.  Subject to Section 5.7
hereof, the Administrative Agent shall not be obligated to disburse the portion
of the proceeds of any Revolving Credit Loan requested pursuant to this Section
2.2 to the extent that any Revolving Credit Lender has not made available
to the Administrative Agent its Revolving Credit Commitment Percentage of such
Loan.  


 


SECTION 2.3       Repayment
of Revolving Credit Loans.


 


22





















 


(a)           Repayment on
Termination Date. The Borrower shall repay the outstanding principal amount
of all Revolving Credit Loans in full on the Revolving Credit Maturity Date,
together, with all accrued but unpaid interest thereon and all other unpaid
Obligations with respect to the Revolving Credit Facility. 


 


(b)           Mandatory
Repayments of Revolving Credit Loans. 


 


(i)            Excess
Loans. If at any time the outstanding principal amount of all Revolving
Credit Loans exceeds the Revolving Credit 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 Revolving Credit Lenders, Revolving Credit Loans in an amount
equal to such excess with each such repayment applied first to the
principal amount of outstanding Revolving Credit 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 12.2(b). Each such
repayment shall be accompanied by any amount required to be paid pursuant to Section
5.10 hereof.


 


(ii)           RTFC Patronage
Distributions. The Borrower shall, on the date of receipt of any Net Cash
Proceeds from any RTFC Patronage Distribution, prepay an aggregate principal
amount of the Revolving Credit Loans equal to 100% of such Net Cash Proceeds. 


 


(iii)          SCC Amortization
Payments. The Borrower shall, on each date of receipt of any Net Cash
Proceeds in respect of any amortization payments made by RTFC on any SCCs,
prepay an aggregate principal amount of the Revolving Credit Loans equal to
100% of the amount of such Net Cash Proceeds. 


 


(iv)          Commitment
Reductions. Each permanent reduction permitted or required pursuant to Section
2.5 or this Section 2.3 shall be accompanied by a payment of
principal sufficient to reduce the aggregate outstanding Revolving Credit Loans
and L/C Obligations, as applicable, after such reduction to the Revolving
Credit Commitment as so reduced and if the Revolving Credit 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 12.2(b). Any reduction of the Revolving Credit
Commitment to zero shall be accompanied by payment of all outstanding Revolving
Credit Loans (and furnishing of cash collateral satisfactory to the
Administrative Agent for all L/C Obligations) and, shall result in the termination
of the Revolving Credit Commitment and Revolving Credit Facility.  Such cash collateral shall be applied in
accordance with Section 12.2(b). If the reduction of the Revolving
Credit Commitment requires the repayment of any LIBOR Rate Loan, such repayment
shall be accompanied by any amount required to be paid pursuant to Section
5.10 hereof.


 


23





















 


(c)           Optional
Repayments. The Borrower may at any time and from time to time repay the
Revolving Credit 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 Revolving
Credit 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 5.10 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 LIBOR Interest Period
applicable thereto unless such repayment is accompanied by any amount required
to be paid pursuant to Section 5.10 hereof. 


 


(e)           Hedging
Agreements. No repayment or prepayment pursuant to this Section 2.3
shall affect any of the Borrower’s obligations under any Hedging Agreement. 


 


(f)            Prepayment
of Excess Proceeds.  In the event
proceeds remain after the prepayments of Term Loans pursuant to Section
4.5(b), the amount of such excess proceeds shall be used on the date of the
required prepayment under Section 4.5(b) to prepay the outstanding
principal amount of the Revolving Credit Loans, without a corresponding
reduction of the Revolving Credit Commitments. 


 


SECTION 2.4       Intentionally Omitted. 


 


SECTION 2.5       Permanent Reduction of the Revolving Credit 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 Revolving Credit Commitment at any time or (ii) portions
of the Revolving Credit Commitment, from time to time, in an aggregate
principal amount not less than $2,500,000. The amount of each partial permanent
reduction shall permanently reduce the Revolving Credit Lenders’ Revolving
Credit Commitments pro  rata in accordance with their respective
Revolving Credit Commitment Percentages. 



 


(b)           Corresponding
Payment. Each permanent reduction permitted or required pursuant to this
Section shall be accompanied by a payment of principal sufficient to reduce the
aggregate outstanding Revolving Credit Loans and L/C Obligations, as
applicable, after such reduction to the Revolving Credit Commitment as so
reduced and if the Revolving Credit Commitment as so reduced is less than the
aggregate amount of all outstanding Letters of Credit, the Borrower shall be
required to deposit cash collateral in a cash collateral account opened by 


 


24





















 


the
Administrative Agent in an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. 
Such cash collateral shall be applied in accordance with Section
12.2(b). Any reduction of the Revolving Credit Commitment to zero shall be
accompanied by payment of all outstanding Revolving Credit Loans (and
furnishing of cash collateral satisfactory to the Administrative Agent for all
L/C Obligations) and shall result in the termination of the Revolving Credit
Commitment and the Revolving Credit Facility. 
Such cash collateral shall be applied in accordance with Section
12.2(b). If the reduction of the Revolving Credit Commitment requires the
repayment of any LIBOR Rate Loan, such repayment shall be accompanied by any
amount required to be paid pursuant to Section 5.10 hereof. 


 


SECTION 2.6       Termination
of Revolving Credit Facility. The Revolving Credit
Facility shall terminate on the earliest of (a) December 30, 2011 (b) the date
of termination by the Borrower pursuant to Section 2.5(a), and (c) the
date of termination by the Administrative Agent on behalf of the Lenders pursuant
to Section 12.2(a). 


 


SECTION 2.7       Use
of Proceeds. The Borrower shall use the proceeds of the
Extensions of Credit (a) to finance the Enventis Acquisition, (b) to refinance
the Debt outstanding under the Prior Credit Agreement, (c) to pay to RTFC the
cash consideration for the SCCs and (d) 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 Revolving Credit Maturity 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, (a) the L/C Obligations would exceed the L/C
Commitment or (b) the aggregate principal amount of outstanding Revolving
Credit Loans, plus the aggregate amount of L/C Obligations would exceed the
Revolving Credit Commitment.  Each Letter
of Credit shall (i) be denominated in Dollars in a minimum amount of
$1,000,000, or in such other amount as agreed to by the Administrative Agent,
(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 no more than one (1) year
from the issuance thereof, which date shall be no later than five (5) business
days prior to the Revolving Credit Maturity Date and (iv) be subject to the
Uniform Customs and/or ISPA 98, as set forth in the Application or as to be
determined by the Issuing Lender 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 


 


25





















 


include
extensions or modifications of any Existing Letters of Credit, unless the
context otherwise requires. The Existing Letters of Credit shall be, from and
after the Closing Date, Letters of Credit hereunder. 


 


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 VI 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 amount of such Letter of Credit
multiplied by the Applicable Margin with respect to LIBOR Rate Loans
(determined on a per annum basis).  Such
commission shall be payable quarterly in arrears on the last Business Day of
each calendar quarter and on the Revolving Credit Maturity Date. The
Administrative Agent shall, promptly following its receipt thereof, distribute
to the Issuing Lender and the L/C Participants all commissions received
pursuant to this Section 3.3(a) in accordance with their respective
Revolving Credit Commitment Percentages. 


 


(b)           In
addition to the foregoing commission, the Borrower shall pay to the
Administrative Agent, for the account of the Issuing Lender, an issuance fee
with respect to each Letter of Credit in an amount equal to one-eighth percent
(.125%) per annum multiplied by the amount of each Letter of Credit, payable
quarterly in arrears on the last Business Day of each calendar quarter and on
the Revolving Credit Maturity Date. 


 


(c)           In
addition to the foregoing fees and commissions, the Borrower shall pay or
reimburse the Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the Issuing Lender in issuing, effecting payment
under, amending or otherwise administering any Letter of Credit. 


 


SECTION 3.4       L/C
Participations.


 


26





















 


(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 Revolving Credit
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 through
a Revolving Credit Loan or otherwise 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 Revolving Credit 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 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. on any Business Day, such payment shall be due that Business Day,
and (B) after 1:00 p.m. 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 Revolving Credit
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. In the event of any
drawing under any Letter of Credit, the Borrower agrees to reimburse (either
with the proceeds of a Revolving Credit Loan as provided for in this Section
3.5 or with funds from other sources), 


 


27





















 


in
same day funds, 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 amounts referred
to in Section 3.3(c) incurred by the Issuing Lender in connection with
such payment.  Unless the Borrower shall
immediately notify the Issuing Lender that the Borrower intends to reimburse
the Issuing Lender for such drawing from other sources or funds, the Borrower
shall be deemed to have timely given a Notice of Borrowing to the Administrative
Agent requesting that the Revolving Credit Lenders make a Revolving Credit Loan
bearing interest at the Base Rate on such date in the amount of (a) such draft
so paid and (b) any amounts referred to in Section 3.3(c) incurred by
the Issuing Lender in connection with such payment, and the Revolving Credit
Lenders shall make a Revolving Credit Loan bearing interest at the Base Rate 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. Each
Revolving Credit Lender acknowledges and agrees that its obligation to fund a
Revolving Credit Loan in accordance with this Section 3.5 to reimburse
the Issuing Lender for any draft paid under a Letter of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, non-satisfaction of the conditions set forth in Section
2.2(a) or Article VI. If the Borrower has elected to pay the amount of such
drawing with funds from other sources and shall fail to reimburse the Issuing
Lender as provided above, the unreimbursed amount of such drawing shall bear
interest at the rate which would be payable on any outstanding Base Rate Loans
which were then overdue from the date such amounts become payable (whether at
stated maturity, by acceleration or otherwise) until payment in full. 


 


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, as determined by a court of competent jurisdiction by final
nonappealable judgment.  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 shall be binding
on the Borrower and shall not result in any liability of the Issuing Lender or
any L/C Participant 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. 


 


28





















 


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. 


 


ARTICLE IV 


 


TERM LOAN
FACILITY 


 


SECTION 4.1       Term
Loans. 


 


(a)           Subject
to the terms and conditions of this Agreement, each Term Loan Lender with a
Term Loan B Commitment severally agrees to make a Term Loan B to the Borrower on
the Closing Date.  The Term Loan B shall
be funded by each such Term Loan Lender in a principal amount equal to such
Lender’s Term Loan B Commitment Percentage of the aggregate principal amount of
the Term Loan B made on the Closing Date, which aggregate principal amount
shall equal the total Term Loan B Commitment. 


 


(b)           Subject
to the terms and conditions of this Agreement, each Term Loan Lender with a
Term Loan C Commitment severally agrees to make a Term Loan C to the Borrower
on the Closing Date.  The Term Loan C
shall be funded by each such Term Loan Lender in a principal amount calculated
as set forth in Section 6.2(i) of this Agreement. 


 


SECTION 4.2       Procedure
for Advance of Term Loans. The Borrower shall give
the Administrative Agent an irrevocable Notice of Borrowing prior to 11:00 a.m.
on the Closing Date requesting that the Term Loan Lenders make the Term Loan B
as a Base Rate Loan (provided that the Borrower may request, no later than
three (3) Business Days prior to the Closing Date, that the Term Loan Lenders
make the Term Loan B as a LIBOR Rate Loan if the Borrower has delivered to the
Administrative Agent a letter in form and substance reasonably satisfactory to
the Administrative Agent indemnifying the Term Loan Lenders in the manner set forth
in Section 5.10 of this Agreement) and the Term Loan C as a RTFC
Variable Rate Loan, as applicable, on such date. Upon receipt of such Notice of
Borrowing from the Borrower, the Administrative Agent shall promptly notify
each Term Loan Lender thereof.  Not later
than 2:00 p.m. on the Closing Date, each Term Loan Lender will make available
to the Administrative Agent for the account of the Borrower, at the office of
the Administrative Agent in immediately available funds, the amount of such
Term Loan B and Term Loan C, as applicable, to be made by such Term Loan Lender
on the Closing Date. The Borrower hereby irrevocably authorizes the
Administrative Agent to disburse the proceeds of the Term Loans in immediately
available funds by wire transfer to such Person or Persons as may be designated
by the Borrower in writing.


 


SECTION 4.3       Repayment
of Term Loans. The Borrower shall repay the aggregate outstanding
principal amount of each of the Term Loan B and Term Loan C in consecutive
quarterly installments on the last Business Day of each of March, June,
September, and December commencing March 31, 2006 as set forth below, except as
the amounts of individual installments may be adjusted pursuant to Section
4.5 hereof: 


 


29





















 


	
  PAYMENT DATE

  	
   

  	
  TERM LOAN B -

  PRINCIPAL

  INSTALLMENT

  	
   

  	
  TERM LOAN C –

  PRINCIPAL

  INSTALLMENT

  	
   

  
	
   

  	
   

  	
  ($)

  	
   

  	
  ($)

  	
   

  
	
  3/31/2006

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  6/30/2006

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  9/30/2006

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  12/31/2006

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  3/31/2007

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  6/30/2007

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  9/30/2007

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  12/31/2007

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  3/31/2008

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  6/30/2008

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  9/30/2008

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  12/31/2008

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  3/31/2009

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  6/30/2009

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  9/30/2009

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  12/31/2009

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  3/31/2010

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  6/30/2010

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  9/30/2010

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  12/31/2010

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  3/31/2011

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  6/30/2011

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  9/30/2011

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  12/31/2011

  	
   

  	
  275,000

  	
   

  	
  50,000

  	
   

  
	
  3/31/2012

  	
   

  	
  51,700,000

  	
   

  	
  50,000

  	
   

  
	
  6/30/2012

  	
   

  	
  51,700,000

  	
   

  	
  50,000

  	
   

  
	
  9/30/2012

  	
   

  	
   

  	
   

  	
  50,000

  	
   

  
	
  12/31/2012

  	
   

  	
   

  	
   

  	
  50,000

  	
   

  
	
  3/31/2013

  	
   

  	
   

  	
   

  	
  9,300,000

  	
   

  
	
  6/30/2013

  	
   

  	
   

  	
   

  	
  9,300,000

  	
   

  



 


If not sooner paid, the Term
Loan B shall be paid in full, together with accrued interest thereon and all
other Obligations with respect to the Term Loan B, on the Term Loan B Maturity
Date. If not sooner paid, the Term Loan C shall be paid in full, together with
accrued interest thereon and all other Obligations with respect to the Term
Loan C, on the Term Loan C Maturity Date


 


SECTION 4.4       Incremental Term Loans. 


 


(a)           Subject to the
conditions set forth below, at any time prior to the Term Loan B Maturity Date,
the Borrower shall have the right, upon not less than thirty (30) days’ prior
written notice (an “Incremental Term Loan Notification”) to the
Administrative Agent (which 


 


30





















 


shall promptly advise each
Lender of its receipt and the contents thereof) to request up to three (3)
Incremental Term Loans in a total aggregate principal amount of up to
$30,000,000 during the term of this Agreement. 
Such Incremental Term Loan Notification shall specify the applicable
Incremental Term Loan Effective Date.


 


(b)           Each
existing Lender shall have the right, but not the obligation, to commit to a pro
rata portion of each Incremental Term Loan.  The Borrower may also solicit commitments
from third party banks and financial institutions, reasonably acceptable to the
Administrative Agent, to participate in each Incremental Term Loan (each such
other bank or financial institution, a “New Term Lender”); provided,
however, that all allocations of the Incremental Term Loan Commitment shall be
subject to the Administrative Agent’s reasonable determination.  The failure by any existing Lender to respond
to an Incremental Term Loan Notification within ten (10) days of such Lender’s
receipt thereof shall be deemed to be a refusal of such request by such
existing Lender. 


 


(c)           The
following terms and conditions shall apply to each Incremental Term Loan:   


 


(i)            such
Incremental Term Loan shall constitute an Obligation and shall be secured and
guaranteed with the other Obligations on a pari  passu basis; 


 


(ii)           the
principal amount of each such Incremental Term Loan shall not be less than
$2,000,000, or if less, shall be the remaining amount permitted pursuant to
clause (a) above; 


 


(iii)          each Incremental
Term Loan will mature and amortize in a manner reasonably acceptable to the
Administrative Agent, the Lenders making such Incremental Term Loan and the
Borrower, but shall not in any event be permitted to have a shorter average
life than the Term Loan B or a maturity date earlier than the Term Loan B
Maturity Date; 


 


(iv)          the
Borrower shall execute and deliver an Incremental Term Loan Note to each Lender
making an Incremental Term Loan to reflect such Lender’s Incremental Term Loan;



 


(v)           the
Administrative Agent and the Lenders shall have received a Officer’s Compliance
Certificate of the chief financial officer of the Borrower demonstrating that,
as of the applicable Incremental Term Loan Effective Date and after giving
effect thereto (including the use of proceeds thereof) and to any Incremental
Term Loans made or to be made in connection therewith, the Borrower is in pro
forma compliance with each of the financial covenants set forth in Article
X; 


 


(vi)          no Default
or Event of Default shall have occurred and be continuing as of the applicable
Incremental Term Loan Effective Date or after giving effect to the making of
any such Incremental Term Loan (including the use of proceeds thereof);  


 


(vii)         the Borrower and
each Lender making an Incremental Term Loan shall execute and deliver one or
more Incremental Term Loan Agreements to the Administrative Agent, for
acknowledgment by the Administrative Agent and the Borrower and shall be in
form and substance reasonably satisfactory to the Administrative Agent and the
Borrower; 


 


31





















 


(viii)                        the
Applicable Margin and pricing grid, if applicable, for any proposed Incremental
Term Loan shall be determined on the applicable Incremental Term Loan Effective
Date; provided that the all-in-yield, after giving effect to any
offering of such proposed Incremental Term Loan at a discount from par or any
fees paid to the Lenders in connection with such proposed Incremental Term
Loan, shall not exceed the all-in-yield (as reasonably determined by the
Administrative Agent) with respect to the Term Loan B or any existing
Incremental Term Loan;


 


(ix)                                the
terms and conditions applicable to such Incremental Term Loan shall, except to
the extent otherwise provided in this Section 4.4, be substantially
similar to the terms and conditions applicable to the Term Loan B and any prior
Incremental Term Loan; and


 


(x)                                   the
Administrative Agent shall have received any documents or information,
including, without limitation, resolutions and opinions of counsel, in
connection with such Incremental Term Loan as and to the extent it may
reasonably request.


 


(d)                                 Upon
the execution, delivery, acceptance and recording of the applicable Incremental
Term Loan Agreement, from and after the applicable Incremental Term Loan
Effective Date, each Lender making an Incremental Term Loan shall have an
Incremental Term Loan Commitment as set forth in the Register and all the
rights and obligations of a Lender with such an Incremental Term Loan
Commitment hereunder.  The applicable
Lenders shall make the Incremental Term Loan to the Borrower on the applicable
Incremental Term Loan Effective Date in an amount equal to the Incremental Term
Loan Commitment of each such Lender with respect to such Incremental Term Loan
pursuant to clause (ii) above.


 


SECTION 4.5                     Prepayments of Term Loans and
Incremental Term Loans.


 


(a)                                  Optional
Prepayment of Term Loans and Incremental Term Loans.


 


(i)                                     Optional
Prepayment of Term Loan B and Incremental Term Loans. The Borrower shall
have the right at any time and from time to time to repay the Term Loan B, and,
if applicable, any Incremental Term Loans, in whole or in part, upon delivery
to the Administrative Agent of a Notice of Prepayment at least three (3)
Business Days prior to repayment with respect to LIBOR Rate Loans and one (1)
Business Day prior to repayment with respect to Base Rate Loans, specifying the
date and amount of repayment, whether the repayment is of the Term Loan B or
any Incremental Term Loan, if applicable, and whether the repayment if of LIBOR
Rate Loans, Base Rate Loans, or a combination thereof, and, if a combination
thereof, the amount allocable to each. 
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 pursuant to this Section
4.5(a)(i) shall be in an aggregate amount of $1,000,000 and shall be
applied as follows: first, to reduce, in direct order, the next four
scheduled principal installments of the Term Loan B set forth in Section 4.3
and any Incremental Term Loans, as applicable (on a pro  rata
basis among such Loans), following the date of such prepayment and second,
to reduce, in the inverse order of maturity, the remaining scheduled principal
installments of the Term Loan B set forth in Section 4.3 and any
Incremental Term Loan, as applicable, (on a pro  rata basis


 


32





















 


among such
Loans).  Each repayment shall be
accompanied by any amount required to be paid pursuant to Section 5.10
hereof. Any portion of the Term Loan B or Incremental Term Loan prepaid
pursuant to this Section 4.5(a)(i) may not be reborrowed.


 


(ii)                                  Optional
Prepayment of Term Loan C.  The
Borrower shall have the right at any time and from time to time, upon delivery
to the Administrative Agent of a Notice of Prepayment at least three (3)
Business Days prior to any repayment, to prepay the Term Loan C, in whole or in
part, which prepayment shall be subject to the provisions of Section 5.10.
Each optional prepayment of the Term Loan C hereunder shall be in an aggregate principal
amount of at least $1,000,000 and shall be applied as follows: first, to
reduce, in direct order, the next four scheduled principal installments of the
Term Loan C set forth in Section 4.3 following the date of such
prepayment and second, to reduce, in the inverse order of maturity, the
remaining scheduled principal installments of the Term Loan C set forth in Section
4.3. Each repayment shall be accompanied by any amount required to be paid
pursuant to Section 5.10 hereof. Any portion of the Term Loan C prepaid
pursuant to this Section 4.5(a)(ii) may not be reborrowed.


 


(b)                                 Mandatory
Prepayment of Term Loans and Incremental Term Loans.


 


(i)                                     Debt
Proceeds.  The Borrower shall prepay
the Term Loans and, if applicable, any Incremental Term Loans, in the manner
set forth in Section 4.5(b)(v) below in amounts equal to one hundred
percent (100%) of the aggregate Net Cash Proceeds from any incurrence of Debt
(other than Debt permitted under Section 11.1) by the Borrower or any of
its Subsidiaries.  Such prepayment shall
be made within three (3) Business Days after the date of receipt of Net Cash
Proceeds of any such transaction.


 


(ii)                                  Equity
Proceeds.  The Borrower shall prepay
the Term Loans and, if applicable, any Incremental Term Loans, in the manner set
forth in Section 4.5(b)(v) below in an amount equal to fifty percent
(50%) of the aggregate Net Cash Proceeds from any offering of equity securities
by the Borrower or any of its Subsidiaries; provided that so long as no
Event of Default has occurred and is continuing, no prepayments shall be
required from the Net Cash Proceeds from the Proposed Issuance which are used
to finance or refinance a Permitted Acquisition; provided further that
such Net Cash Proceeds are so applied to finance or refinance a Permitted
Acquisition within sixty (60) days following the Borrower’s receipt of the Net
Cash Proceeds of the Proposed Issuance. 
Such prepayment shall be made within three (3) Business Days after the
date of receipt of Net Cash Proceeds of any such transaction.


 


(iii)                               Asset
Sale Proceeds.  No later than two
hundred seventy (270) days following the receipt by the Borrower or any of its
Subsidiaries of any Net Cash Proceeds which have not been reinvested as of such
date in similar assets, the Borrower shall prepay the Term Loans and any
Incremental Term Loans in the manner set forth in Section 4.5(b)(v)
below in an amount equal to one hundred percent (100%) of the aggregate Net
Cash Proceeds from the sale or other disposition or series of related sales or
other dispositions of assets by the Borrower or any of its Subsidiaries
permitted pursuant to Section 11.5(e).


 


33





















 


(iv)                              Insurance
Proceeds.  No later than one hundred
twenty (120) days following the date of receipt by the Borrower or any of its
Subsidiaries of any Net Cash Proceeds under any of the insurance policies
maintained pursuant to Section 9.3 (“Insurance Proceeds”) which
have not been reinvested as of such date in similar assets, the Borrower shall
prepay the Term Loans and, if applicable, any Incremental Term Loans in the
manner set forth in Section 4.5(b)(v) below in an amount equal to one
hundred percent (100%) of the aggregate amount of such Insurance Proceeds
received by the Borrower or any of its Subsidiaries. Notwithstanding any of the
foregoing to the contrary, upon and during the continuance of an Event of
Default and upon notice from the Administrative Agent, all Insurance Proceeds
received by the Borrower and its Subsidiaries shall be applied to prepay the
Term Loans and, if applicable, any Incremental Term Loans, such prepayments to
be made within three (3) Business Days after the Borrower’s or any such
Subsidiary’s receipt of such Insurance Proceeds.


 


(v)                                 Notice;
Manner of Payment.  Upon the occurrence
of any event triggering the prepayment requirement under Sections 4.5(b)(i)
through 4.5(b)(iv), the Borrower shall promptly deliver a Notice of
Prepayment to the Administrative Agent and upon receipt of such notice, the
Administrative Agent shall promptly so notify the Lenders. Each prepayment
under this Section 4.5(b) shall be applied as follows: first, to
reduce in inverse order of maturity the remaining scheduled principal
installments of the Term Loans pursuant to Section 4.3 and any
Incremental Term Loans (on a pro rata basis among such Loans) and (ii) second,
to the extent of any excess (the “Excess Proceeds”), to repay the
Revolving Loans pursuant to Section 2.3(f).


 


Amounts
prepaid under either of the Term Loans pursuant to this Section may not be
reborrowed.  Each prepayment shall be
accompanied by any amount required to be paid pursuant to Section 5.10
hereof.


 


ARTICLE V


 


GENERAL LOAN PROVISIONS 


 


SECTION
5.1                     Interest.


 


(a)                                  Interest
Rate Options.  Subject to the
provisions of this Section 5.1, at the election of the Borrower, (i)
Revolving Credit Loans and the Term Loan B shall bear interest at the Base Rate
or the LIBOR Rate plus, in each case, the Applicable Margin as set forth
in Section 5.1(c) below; provided that (A) the LIBOR Rate shall not
be available for Revolving Credit Loans until three (3) Business Days after the
Closing Date and (B) the LIBOR Rate shall not be available for the Term Loan B
until three (3) Business Days after the Closing Date unless the Borrower has
delivered to the Administrative Agent a letter in form and substance
satisfactory to the Administrative Agent indemnifying the Term Loan Lenders in
the manner set forth in Section 5.10 of this Agreement and (ii) the Term
Loan C shall bear interest at the RTFC Variable Rate or the RTFC Fixed Rate; provided
that the RTFC Fixed Rate shall not be available until five (5) days after the
Closing Date plus, in each case the Applicable Margin as set forth
below.  The Borrower shall select the
rate of interest and LIBOR Interest Period or Term Interest Period, if


 


34





















 


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 5.2. Each Revolving Credit Loan, Term Loan B or portion thereof
bearing interest based on the Base Rate shall be a “Base Rate Loan”, and each
Revolving Credit Loan, Term Loan B or portion thereof bearing interest based on
the LIBOR Rate shall be a “LIBOR Rate Loan.” Any Revolving Credit Loan, any
Term Loan B 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.  The portion of the Term Loan C
bearing interest based on the RTFC Variable Rate shall be a “RTFC Variable Rate
Loan”, and the portion thereof bearing interest based on the RTFC Fixed Rate
shall be a “RTFC Fixed Rate Loan.” Any portion of the Term Loan C as to which
the Borrower has not duly specified an interest rate as provided herein shall
be deemed a RTFC Variable Rate Loan.


 


(b)                                 (i)                                     LIBOR
Interest Periods.  In connection with
each LIBOR Rate Loan, the Borrower, by giving notice at the times described in Section
5.1(a), shall elect an interest period (each, a “LIBOR Interest Period”)
to be applicable to such Loan, which LIBOR 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:


 


(A)                              the
LIBOR Interest Period shall commence on the date of advance of or conversion to
any LIBOR Rate Loan and, in the case of immediately successive LIBOR Interest
Periods, each successive LIBOR Interest Period shall commence on the date on
which the next preceding LIBOR Interest Period expires;


 


(B)                                if
any LIBOR Interest Period would otherwise expire on a day that is not a
Business Day, such LIBOR Interest Period shall expire on the next succeeding
Business Day; provided, that if any LIBOR 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 LIBOR Interest Period shall expire on the next preceding Business
Day;


 


(C)                                any
LIBOR 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 LIBOR Interest
Period) shall end on the last Business Day of the relevant calendar month at
the end of such LIBOR Interest Period;


 


(D)                               no
LIBOR Interest Period shall extend beyond the Revolving Credit Maturity Date,
the Term Loan B Maturity Date, or if pursuant to Section 5.3(c) the Term
Loan C becomes a LIBOR Rate Loan, the Term Loan C Maturity Date, each as
applicable, and LIBOR Interest Periods shall be selected by the Borrower so as
to permit the Borrower to make mandatory reductions of the Revolving Credit
Commitment pursuant to Section 2.5(b) without payment of any amounts pursuant
to Section 5.10;


 


(E)                                 there
shall be no more than eight (8) LIBOR Interest Periods outstanding at any time;
and


 


35





















 


(F)                                 notwithstanding
anything to the contrary, the initial LIBOR Interest Periods immediately
following the Closing Date may, with the consent of the Administrative Agent,
be for periods shorter than the periods specified above to the extent necessary
to permit the Borrower to match such LIBOR Interest Periods to its Existing
Interest Rate Contracts.


 


(ii)                                  Term
Interest Periods.  In connection with
each RTFC Fixed Rate Loan, the Borrower, by giving notice at the times
described in Section 5.1(a), shall elect an interest period (each, a “Term
Interest Period”) to be applicable to the Term Loan C, which Term Interest
Period shall, in the case of a RTFC Fixed Rate Loan, be a period of one (1),
two (2), three (3), four (4), five (5), six (6) or seven (7) years; provided
that:


 


(A)                              the
Term Interest Period shall commence on the date of advance of the Term Loan C; provided,
however that the Term Interest Period for any conversion of any RTFC Variable
Rate Loan to a RTFC Fixed Rate Loan and, in the case of immediately successive
Term Interest Periods, each successive Term Interest Period shall commence on
the date on which the next preceding Term Interest Period expires;


 


(B)                                if
any Term Interest Period would otherwise expire on a day that is not a Business
Day, such Term Interest Period shall expire on the next succeeding Business
Day; provided, that if any Term Interest Period with respect to a RTFC
Fixed 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 Term Interest Period shall expire on the next preceding Business Day;


 


(C)                                any
Term Interest Period with respect to a RTFC Fixed 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 Term
Interest Period) shall end on the last Business Day of the relevant calendar
month at the end of such Term Interest Period; and


 


(D)                               no
Term Interest Period shall extend beyond the Term Loan C Maturity Date.


 


(c)                                  Applicable
Margin.  The Applicable Margin
provided for in Section 5.1(a) with respect to any Loan (the “Applicable
Margin”) shall be based upon the table set forth below (or, with respect to
Incremental Term Loans, as set forth in the Incremental Term Loan Notification)
and shall be determined and adjusted quarterly on the date (each a “Calculation
Date”) ten (10) Business Days after the date by which the Borrower is
required to provide an Officer’s Compliance Certificate for the most recently
ended fiscal quarter of the Borrower; provided, however, that (a)
from the Closing Date until the first date thereafter by which the Borrower is
required to provide an Officer’s Compliance Certificate as required by Section
8.3 for the most recently ended fiscal quarter of the Borrower, the
Applicable Margin shall be based on Pricing Level I and (b) if the Borrower
fails to provide the Officer’s Compliance Certificate as required by Section
8.3 for the most recently ended fiscal quarter of the Borrower preceding
the applicable Calculation Date, the Applicable Margin from such Calculation
Date shall be based on Pricing Level I (as shown below) until such time as an
appropriate Officer’s Compliance


 


36





















 


Certificate is
provided, at which time the Pricing Level shall be determined by reference to
the Leverage Ratio as of the last day of the most recently ended fiscal quarter
of the Borrower preceding such Calculation Date, such adjustment to occur ten
(10) Business Days after the receipt of such certificate.  The Applicable Margin shall be effective from
one Calculation Date until the next Calculation Date.  Any adjustment in the Applicable Margin shall
be applicable to all Extensions of Credit then existing or subsequently made or
issued. 


 


	
  Pricing

  Level

  	
   

  	
  Leverage Ratio

  	
   

  	
  Revolver/Term 

  Loan B 

  LIBOR

  	
   

  	
  Revolver/Term 

  Loan B 

  Base Rate

  	
   

  	
  Term 

  Loan C

  	
   

  
	
  I

  	
   

  	
  Greater
  than or equal to 3.00 to 1.00

  	
   

  	
  1.750

  	
  %

  	
  0.750

  	
  %

  	
  0.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  Greater
  than or equal to 2.00 to 1.00, but less than 3.00 to 1.00

  	
   

  	
  1.500

  	
  %

  	
  0.500

  	
  %

  	
  0.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  Less
  than 2.00 to 1.00

  	
   

  	
  1.250

  	
  %

  	
  0.250

  	
  %

  	
  0.00

  	
  %

  



 


(d)                                 Default
Rate.  Subject to Section 12.3,
(i) immediately upon the occurrence and during the continuance of an Event of
Default under Section 12.1(a), (b), (j) or (k), or (ii) at the
discretion of the Administrative Agent or as directed by the Required Lenders,
upon the occurrence and during the continuance of any other Event of Default,
(i) the Borrower shall no longer have the option to request LIBOR Rate Loans or
Letter of Credit, (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 LIBOR Interest
Period and thereafter at a rate equal to two percent (2%) in excess of the rate
then applicable to Base Rate Loans, (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, (iv) all outstanding RTFC Variable
Rate Loans shall bear interest at a rate per annum equal to two percent (2%) in
excess of the rate then applicable to RTFC Variable Rate Loans and (v) all
outstanding RTFC Fixed Rate Loans shall bear interest at a rate per annum equal
to two percent (2%) in excess of the rate then applicable to RTFC Fixed Rate
Loan.  Interest shall continue to accrue
on the Obligations 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, RTFC Variable Rate Loan and RTFC Fixed Rate Loan shall be
payable in arrears on the last Business Day of each calendar quarter commencing
December 31, 2005; and interest on each LIBOR Rate Loan shall be payable on the
last day of each LIBOR Interest Period applicable thereto, and if such LIBOR
Interest Period extends over three (3) months, in addition to such date, at the
end of each three (3) month interval during such LIBOR Interest Period.  Other than calculations made in respect of
interest at the Base Rate and the RTFC Variable Rate (which shall be made on
the basis of actual number of days elapsed in a 365/366 day year), (i) 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
and (ii) the RTFC Fixed Rate shall be computed on the basis of a 360 day year
with thirty (30) day months.


 


37





















 


(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
5.2                     Notice
and Manner of Conversion or Continuation of Loans.  Provided that no Default or Event of Default
has occurred and is then continuing, the Borrower shall have the option to (a)
convert at any time following the third Business Day after the Closing Date 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 LIBOR 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. 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 LIBOR 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 LIBOR 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
5.3                     Conversion
of Term Loan Interest Rate.


 


(a)                                  Optional
Conversion.  Provided that no Default
or Event of Default has occurred and is then continuing, the Borrower may, on
any Business Day, (i) convert a RTFC Variable Rate Loan into a RTFC Fixed Rate
Loan or convert a RTFC Fixed Rate Loan of one Term Interest Period into a RTFC
Fixed Rate Loan of another Term Interest Period, or (ii) convert a RTFC Fixed
Rate Loan into a RTFC Variable Rate Term Loan; provided that


 


(A)                              any
conversion of a RTFC Fixed Rate Loan into a RTFC Variable Rate Term Loan, in
each case, shall be made only on the last day of a Term Interest Period for
such RTFC Fixed Rate Loan; and


 


38





















 


(B)                                any
conversion of a RTFC Variable Rate Loan into a RTFC Fixed Rate Loan shall be
made only if no Default or Event of Default shall have occurred and be
continuing and shall be in an amount not less than $250,000 and additional
increments of $250,000 in excess thereof.


 


Whenever the
Borrower desires to convert or continue the interest rate applicable to the
Term Loan C, as provided above, the Borrower shall give the Administrative Agent
irrevocable prior written notice in the form attached as Exhibit D not
later than 11:00 a.m. on (x) the fifth (5th) Business
Day prior to the date upon which those conversions permitted in subsection
(a)(i) above are to be effective or (y) the Business Day immediately preceding
the date on which those conversions permitted in subsection (a)(ii) above are
to be effective, in each case specifying (i) the portion of the Term Loan C to
be converted or continued, and, in the case of any RTFC Fixed Rate Loan to be
converted or continued, the last day of the Term Interest Period therefor, (B)
the effective date of such conversion or continuation (which shall be a
Business Day), (C) the principal amount of the portion of the Term Loan C to be
converted or continued, and (D) the Term Interest Period to be applicable to
such converted or continued RTFC Fixed Rate Loan. The Administrative Agent
shall promptly notify the Term Loan Lenders of such Notice of
Conversion/Continuation.


 


(b)                                 Mandatory
Conversion.


 


(i)                                     If
the Borrower shall fail to select the duration of any Term Interest Period for
any RTFC Fixed Rate Loan, the Administrative Agent will forthwith so notify the
Borrower and the Term Loan Lenders, whereupon each such RTFC Fixed Rate Loan
will automatically, on the last day of the then existing Term Interest Period
therefor, convert to a RTFC Variable Rate Term Loan.


 


(ii)                                  Upon
the occurrence and during the continuance of any Default, (A) each RTFC Fixed
Rate Loan will automatically, on the last day of the then existing Term
Interest Period therefor, convert to a RTFC Variable Rate Loan, and (B) the
obligation of the Term Loan Lenders to convert all or any portion of the Term
Loan C into a RTFC Fixed Rate Loan shall be suspended.


 


(c)                                  Conversion
of Term Loan C to LIBOR Rate.  If
RTFC ceases to be the sole Term Loan Lender with a Term Loan C Commitment, then
the RTFC Fixed Rate and the RTFC Variable Rate shall no longer be available and
the interest rate applicable to all outstanding RTFC Fixed Rate Loans and RTFC
Variable Rate Loans shall immediately be converted to LIBOR Rate Loans with the
interest rate and interest period applicable thereto to be determined in
accordance with Section 5.1(b).


 


SECTION
5.4                     Fees.


 


(a)                                  Commitment
Fee.  Commencing on the Closing Date,
the Borrower shall pay to the Administrative Agent, for the account of the
Revolving Credit Lenders, a non-refundable commitment fee at a rate per annum
equal to 0.35% on the average daily unused portion of the Revolving Credit
Commitment.  The commitment fee shall be
payable in arrears on the last


 


39





















 


Business Day
of each calendar quarter during the term of this Agreement commencing December
31, 2005, and on the Revolving Credit Maturity Date.  Such commitment fee shall be distributed by
the Administrative Agent to the Revolving Credit Lenders pro  rata
in accordance with such Lenders’ respective Revolving Credit Commitment
Percentages.


 


(b)                                 Administrative
Agent’s and Other Fees.  To
compensate the Administrative Agent for structuring and syndicating the Loans
and for its obligations hereunder and the other Lenders obligations hereunder,
the Borrower agrees to pay to the Administrative Agent, the fees set forth in
the Engagement Letter.


 


SECTION
5.5                     Manner
of Payment; Evidence of Indebtedness.


 


(a)                                  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. 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 Revolving Credit Commitment Percentages, Term
Loan B Commitment Percentages, Term Loan C Commitment Percentages or
Incremental Term Loan Percentages, as applicable, (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. on such day
shall be deemed a payment on such date for the purposes of Section 12.1,
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. 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 Revolving Credit
Commitment Percentage, Term Loan B Commitment Percentage, Term Loan C
Commitment Percentage or Incremental Term Loan Commitment Percentage, as
applicable (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
5.9, 5.10, 5.11, 5.12 or 14.2 shall be paid
to the Administrative Agent for the account of the applicable Lender.  Subject to Section 5.1(b)(ii), if 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.


 


(b)                                 Evidence
of Indebtedness.


 


(i)                                     The
Extensions of Credit made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent


 


40





















 


in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Extensions of Credit made by the Lenders to the Borrower
and the interest and payments thereon. 
Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. 
In the event of any conflict between the accounts and records maintained
by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error. 
Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Revolving Credit Note and/or Term Note, as applicable,
which shall evidence such Lender’s Revolving Credit Loans, Term Loan B and/or
Term Loan C, as applicable, in addition to such accounts or records. Each
Lender may attach schedules to its Notes and endorse thereon the date, amount
and maturity of its Loans and payments with respect thereto.


 


(ii)                                  Participations.
 In addition to the accounts and records
referred to in subsection (a), each Lender and the Administrative Agent shall
maintain in accordance with its usual practice accounts or records evidencing
the purchases and sales by such Lender of participations in Letters of
Credit.  In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.


 


SECTION
5.6                     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 12.2, all
payments received by the Lenders upon the Obligations and all net proceeds from
the enforcement of the Obligations shall be applied:


 


First,
to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts, including reasonable attorney fees, payable to the
Administrative Agent in its capacity as such and the Issuing Lender in its
capacity as such (ratably among the Administrative Agent and the Issuing Lender
in proportion to the respective amounts described in this clause First
payable to them);


 


Second,
to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders,
including reasonable attorney fees (ratably among the Lenders in proportion to
the respective amounts described in this clause Second payable to them);


 


Third,
to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and Reimbursement Obligations and any Hedging Obligations
(including any termination payments and any accrued and unpaid interest
thereon) (ratably among the Lenders in proportion to the respective amounts
described in this clause Third payable to them);


 


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Fourth,
to payment of that portion of the Obligations constituting unpaid principal of
the Loans and Reimbursement Obligations (ratably among the Lenders in
proportion to the respective amounts described in this clause Fourth
held by them);


 


Fifth,
to the Administrative Agent for the account of the Issuing Lender, to cash
collateralize any L/C Obligations then outstanding; and


 


Last,
the balance, if any, after all of the Obligations have been indefeasibly paid
in full, to the Borrower or as otherwise required by Law.


 


SECTION
5.7                     Adjustments.
 If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or other obligations hereunder
resulting in such Lender’s receiving payment of a proportion of the aggregate
amount of its Loans and accrued interest thereon or other such obligations
(other than pursuant to Sections 5.9, 5.10, 5.12 or 14.2
hereof) greater than its pro  rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans and such other obligations of the other Lenders, or
make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them; provided that


 


(a)                                  if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and


 


(b)                                 the
provisions of this paragraph shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in Letters of Credit to any assignee or participant, other than to the Borrower
or any Subsidiary thereof (as to which the provisions of this paragraph shall
apply).


 


Each Loan
Party consents to the foregoing and agrees, to the extent it may effectively do
so under Applicable Law, that any Lender acquiring a participation pursuant to
the foregoing arrangements may exercise against each Loan Party rights of
setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of each Loan Party in the amount of such
participation.


 


SECTION
5.8                     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


 


42





















 


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 4.2, 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 Revolving Credit Commitment
Percentage, Term Loan B Commitment Percentage, Term Loan C Commitment
Percentage or Incremental Term Loan Percentage, as applicable, 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 Revolving Credit
Commitment Percentage, Term Loan B Commitment Percentage, Term Loan C
Commitment Percentage or Incremental Term Loan Percentage, as applicable, 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
Revolving Credit Commitment Percentage, Term Loan B Commitment Percentage, Term
Loan C Commitment Percentage or Incremental Term Loan Percentage, as
applicable, 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
Revolving Credit Commitment Percentage, Term Loan B Commitment Percentage, Term
Loan C Commitment Percentage or Incremental Term Loan Percentage, as
applicable, of any Loan available shall not relieve it or any other Lender of
its obligation, if any, hereunder to make its Revolving Credit Commitment
Percentage, Term Loan B Commitment Percentage, Term Loan C Commitment
Percentage or Incremental Term Loan Percentage, as applicable, of such Loan
available on such borrowing date, but no Lender shall be responsible for the
failure of any other Lender to make its Revolving Credit Commitment Percentage,
Term Loan B Commitment Percentage, Term Loan C Commitment Percentage or
Incremental Term Loan Percentage, as applicable, of such Loan available on the
borrowing date.


 


SECTION 5.9                     Changed Circumstances.


 


(a)                                  Circumstances
Affecting LIBOR Rate Availability.  If
with respect to any LIBOR 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 Telerate Page 3750 or offered to the Administrative Agent or such
Lender for such LIBOR 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 the then current
LIBOR Interest Period applicable to such LIBOR


 


43





















 


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 LIBOR 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 LIBOR 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 LIBOR 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:


 


(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 making,
converting into or maintaining any LIBOR Rate Loan (or of maintaining its
obligation to make such a Loan) or issuing, participating in or maintaining any
Letter of Credit or to reduce the yield or amount of


 


44





















 


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 5.8(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; provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Lender pursuant to this Section for any increased costs incurred or reductions
suffered more than nine (9) months prior to the date that such Lender or the
Issuing Lender, as the case may be, notifies the Borrower of the circumstances
giving rise to such increased costs or reductions and of such Lender’s or the
Issuing Lender’s intention to claim compensation therefor (except that, if the
circumstances giving rise to such increased costs or reductions is retroactive,
then the nine-month period referred to above shall be extended to include the
period of retroactive effect thereof).


 


SECTION 5.10              Indemnity.


 


(a)                                  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


 


(i)                                     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,


 


(ii)                                  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


 


(iii)                               due
to any payment, prepayment or conversion of any LIBOR Rate Loan on a date other
than the last day of the LIBOR Interest Period. 
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.


 


45





















 


(b)                                 The
Borrower hereby indemnifies RTFC against any loss or expense which may arise or
be attributable to RTFC’s obtaining, liquidating or employing commercial paper,
or other funds acquired to effect, fund or maintain the Term Loan C


 


(i)                                     as
a consequence of any failure by the Borrower to make any payment when due of
any amount due hereunder in connection with the Term Loan C,


 


(ii)                                  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


 


(iii)                               due
to any payment, prepayment or conversion of any RTFC Variable Rate Loan or RTFC
Fixed Rate Loan on a date other than the last day of the applicable Term
Interest Period and, in such event, shall pay, for the account of RTFC, the
applicable Make-Whole Premium, if any.  A
certificate of RTFC setting forth the basis for determining such amount, or
amounts, necessary to compensate RTFC shall be forwarded to the Borrower
through the Administrative Agent and shall be conclusively presumed to be
correct save manifest error.


 


SECTION 5.11              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 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; provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Lender pursuant to this Section for any increased costs incurred or reductions
suffered more than nine (9) months prior to the date that such Lender or the
Issuing Lender, as the case may be, notifies the Borrower of the circumstances
giving rise to such increased costs or reductions and of such Lender’s or the
Issuing Lender’s intention to claim compensation therefor (except that, if the
circumstances giving rise to such increased costs or reductions is retroactive,
then the nine-month period referred to above shall be extended to include the
period of retroactive effect thereof)..


 


SECTION 5.12              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


 


46





















 


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 5.12) 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 timely 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 5.12(d).


 


(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 5.12) 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
14.1, 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 Assumption, as applicable, (i) two United States Internal
Revenue Service Forms W-8ECI or Forms 8BEN, 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


 


47





















 


Revenue
Service Form W-8BEN or W-8ECI 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 W-8BEN or W-8ECI,
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
W-8BEN or W-8ECI 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-8BEN or W-8ECI, establishing
an exemption from United States backup withholding tax.


 


(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 5.12 shall survive the payment in
full of the Obligations and the termination of the Commitments.


 


SECTION
5.13              Mitigation
Obligations; Replacement of Lenders.


 


(a)                                  Designation
of a Different Lending Office.  If
any Lender requests compensation under Section 5.9(c) or 5.11, or
requires the Borrower to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
5.12, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
5.9(c), 5.11 or 5.12, as the case may be, in the future and (ii)
would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


(b)                                 Replacement
of Lenders.  If any Lender requests
compensation under Section 5.9(c) or 5.11, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 5.12, or if
any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 14.10), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that


 


48





















 


(A)                              the
Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 14.10,


 


(B)                                such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in Letters of Credit, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder
and under the other Loan Documents (including any amounts under Section 5.10)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts),


 


(C)                                in
the case of any such assignment resulting from a claim for compensation under Section
5.9(c) or 5.11 or payments required to be made pursuant to Section
5.12, such assignment will result in a reduction in such compensation or
payments thereafter, and


 


(D)                               such
assignment does not conflict with Applicable Law.


 


A Lender shall
not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling
the Borrower to require such assignment and delegation cease to apply.


 


SECTION
5.14              Security.
 The Obligations of the Borrower and the
Guaranteed Obligations of the Guarantors shall be secured as provided in the
Security Documents.


 


ARTICLE VI


 


CLOSING; CONDITIONS OF CLOSING AND BORROWING 


 


SECTION
6.1                     Closing.
 The closing shall take place at the offices
of Kennedy, Covington, Lobdell & Hickman, L.L.P. at 10:00 a.m. on December
30, 2005, or on such other date as the parties hereto shall mutually agree.


 


SECTION
6.2                     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, a
Revolving Credit Note in favor of each Revolving Credit Lender requesting a
Revolving Credit Note, a Term Note in favor of each Term Lender requesting a
Term Note, the Security Documents, together with any other applicable Loan
Documents 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 hereunder or thereunder.


 


(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 Loan Parties


 


49





















 


contained in
this Agreement and the other Loan Documents are true, correct and complete;
that the Loan Parties are 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 Loan Parties have satisfied each of
the closing conditions.


 


(ii)                                  Certificate
of Secretary of the Loan Parties.  The Administrative Agent shall have received a
certificate of the secretary or assistant secretary of each of the Loan Parties
certifying as to the incumbency and genuineness of the signature of each
officer of such Loan Party executing the 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 such Loan Party and all amendments thereto,
certified as of a recent date by the appropriate Governmental Authority in its
jurisdiction of incorporation, (B) the bylaws of such Loan Party as in effect
on the date of such certifications, (C) the resolutions duly adopted by the
board of directors of such Loan Parties 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, and (D) each certificate required
to be delivered pursuant to Section 6.2(b)(iii).


 


(iii)                               Certificates
of Good Standing.  The Administrative
Agent shall have received certificates as of a recent date of the good standing
of each of the Loan Parties under the laws of its jurisdiction of organization
and to the extent requested by the Administrative Agent each other jurisdiction
where any such Loan Party is qualified to do business.


 


(iv)                              Opinions
of Counsel.  The Administrative Agent
shall have received favorable opinions of counsel to the Loan Parties addressed
to the Administrative Agent and the Lenders with respect to the Loan Parties,
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 5.12(e) hereof.


 


(vi)                              Insurance
Certificate.  The Administrative
Agent shall have received certificates of insurance evidencing procurement and
maintenance of insurance policies required pursuant to the Security Documents.


 


(c)                                  Enventis
Acquisition.


 


(i)                                     All
regulatory and third-party approvals necessary for the consummation of the
Enventis Acquisition shall have been obtained and remain in effect;


 


(ii)                                  The
Enventis Acquisition shall have been consummated in all material respects in
accordance with the terms and conditions of the Enventis Purchase Agreement and
no provision of the Enventis Purchase Agreement shall have been amended or
waived by any party thereto without the prior written consent of the
Administrative Agent;


 


(iii)                               The
Administrative Agent shall have received legal opinion(s) of Dorsey &
Whitney, LLP, counsel to the Loan Parties, addressed to the Administrative
Agent and the Lenders and dated as of the Closing Date, which shall be in form
and substance reasonably


 


50





















 


acceptable to
the Administrative Agent, as to the due authorization, execution, delivery and
enforceability of the Enventis Purchase Agreement and such other matters as
reasonably requested by the Administrative Agent;


 


(iv)                              The
Administrative Agent shall have received an Officer’s Compliance Certificate
dated as of the Closing Date and executed by a Responsible Officer of the Borrower
which demonstrates that, after giving pro  forma effect to the
Enventis Acquisition and the transactions contemplated by this Agreement, (A)
EBITDA of the Borrower and its Subsidiaries for the twelve (12) consecutive
calendar month period ending September 30, 2005 is not less than $38,000,000; (provided
that for purposes of this Section 6.2(c)(iv) only, EBITDA of Enventis shall be
calculated based upon an annualization of the information contained in the
interim unaudited financial statements of Enventis and its Subsidiaries for the
month of November, 2005 described in Section 6.2(c)(v)) and (B) the Leverage
Ratio for such period is less than or equal to 3.75 to 1.00, in each case as if
the Enventis Acquisition and the transactions contemplated by this Agreement
had occurred on such date;


 


(v)                                 The
Administrative Agent shall have received, in form and substance reasonably
satisfactory to the Administrative Agent, (A) the financial audit of Enventis
and its Subsidiaries for fiscal year 2004, (B) the unaudited financial
statements of Enventis and its Subsidiaries for the fiscal quarter ended
September 30, 2005 and (C) the unaudited financial statements of Enventis and
its Subsidiaries for the months of October, 2005 and November, 2005;


 


(vi)                              The
Administrative Agent shall have received evidence, in form and substance
satisfactory to the Administrative Agent, that (i) any and all outstanding Debt
of Enventis and its Subsidiaries shall have been repaid in full and all
security interests and liens associated therewith shall have been terminated or
(ii) the entire amount necessary to pay in full and discharge such outstanding
Debt of Enventis and its Subsidiaries and all instruments and documents
necessary to terminate such liens and security interests is being held in
escrow upon terms and conditions acceptable to the Administrative Agent such
that such Debt shall be paid in full and discharged and such liens and security
interests terminated within two (2) Business Days following the Closing Date;


 


(vii)                           The
Administrative Agent shall have completed its legal and business due diligence
review of Enventis and the Enventis Acquisition and shall be satisfied with the
results thereof; and


 


(viii)                        The
Borrower shall have provided to the Administrative Agent copies of such
additional documents and information relating to the Enventis Acquisition and
the Enventis Purchase Agreement as the Administrative Agent shall reasonably
request, each in form and substance satisfactory to the Administrative Agent,
including, without limitation, certain employment agreements between Enventis
and its employees and certain non-competition agreements in favor of Enventis.


 


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(d)                                 Collateral.


 


(i)                                     Filings
and Recordings.  All filings and recordations
that are necessary to perfect the Liens of the Lenders in the collateral
described in the Security Documents shall have been forwarded for filing in all
appropriate locations and the Administrative Agent shall have received evidence
satisfactory to the Administrative Agent that upon such filings and
recordations such Liens will constitute valid and perfected first priority
Liens therein.


 


(ii)                                  Pledged
Collateral.  The Administrative Agent
shall have received (A) with respect to all Subsidiaries other than Enventis,
original stock certificates or other certificates evidencing the Pledged Stock
(as defined in the Collateral Agreement) or other ownership interests pledged
pursuant to the Collateral Agreement, together with an undated stock power for
each such certificate duly executed in blank by the registered owner thereof,
(B) with respect to Enventis, the Administrative Agent shall have received
either (i) original stock certificates or other certificates evidencing the
Pledged Stock (as defined in the Collateral Agreement) or other ownership
interests pledged pursuant to the Collateral Agreement, together with an
undated stock power for each such certificate duly executed in blank by the
registered owner thereof or (ii) evidence in form and substance acceptable to
the Administrative Agent that the foregoing stock certificates and stock powers
described in clause (i) are being held in escrow upon terms and conditions
acceptable to the Administrative Agent such that such stock certificates and stock
powers shall be released from escrow within two (2) Business Days following the
Closing Date, and (C) each original promissory note pledged pursuant to the
Collateral Agreement.


 


(iii)                               Lien
Search.  The Administrative Agent
shall have received the results of a Lien search (including a search as to
judgments, pending litigation and tax matters) made against the Borrower under
the Uniform Commercial Code (or applicable judicial docket) as in effect in any
state in which any of its assets are located, indicating among other things
that its assets are free and clear of any Lien except for Permitted Liens
hereunder.


 


(iv)                              Hazard
and Liability Insurance.  The
Administrative Agent shall have received certificates of insurance, evidence of
payment of all insurance premiums for the current policy year of each (naming
the Administrative Agent as loss payee (and mortgagee, as applicable) on all
certificates for property hazard insurance and as additional insured on all
certificates for liability insurance), and, if requested by the Administrative
Agent, copies (certified by a Responsible Officer) of insurance policies in the
form required under the Security Documents and otherwise in form and substance
reasonably satisfactory to the Administrative Agent.


 


(e)                                  Consents;
Defaults.


 


(i)                                     Governmental
and Third Party Approvals.  The Loan
Parties shall have received all material governmental, shareholder and third
party consents and approvals necessary (or any other material consents as
determined in the reasonable discretion of the Administrative Agent) in
connection with the transactions contemplated by this Agreement and the other
Loan Documents and the other transactions contemplated hereby and all
applicable waiting periods shall have expired without any action being taken by
any Person that could reasonably be expected to restrain, prevent or impose any
material adverse conditions on any of the Loan Parties or such other
transactions or that could seek or threaten any of the foregoing, and no law


 


52





















 


or regulation
shall be applicable which in the reasonable judgment of the Administrative
Agent could reasonably be expected to have such effect.


 


(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.


 


(f)                                    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 most
recent annual report on Form 10-K and most recent 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; provided that with respect to each Guarantor and the
application of the Guaranteed Obligations hereunder, this representation is
subject to the proviso set forth in Section 2.2 of the Guaranty
Agreement, (B) each of the Loan Party’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 X hereof, (D)  the financial projections previously
delivered to the Administrative Agent represent the good faith estimates
(utilizing reasonable assumptions) of the financial condition and operations of
the Borrower and its Subsidiaries and (E) attached thereto is a calculation of
the Applicable Margin pursuant to Section 5.1(c).


 


(iii)                               Payment
at Closing; Engagement Letter.  The
Borrower shall have paid the fees set forth or referenced in Section 5.4
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 Engagement Letter.


 


(g)                                 Mortgages.
 The Borrower shall have provided to the
Administrative Agent, for the benefit of itself and the other Lenders,
Mortgages on each of the properties identified as such on Schedule 7.1(q),
and the following related documentation:


 


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(i)                                     Title
Opinion.  A favorable opinion of
local counsel to the Loan Parties in form and substances satisfactory to the
Administrative Agent and opining to the recordation of the Mortgage, the
Lenders’ first priority Lien resulting from such recordation, and showing no
Liens prior to Lenders’ Liens other than for ad valorem taxes not yet due and
payable.


 


(ii)                                  Matters
Relating to Flood Hazard Properties.  A certification from the National Research
Center, or any successor agency thereto, regarding each parcel of real property
securing any portion of the Obligations identifying whether such property lies
within any flood plain. If such property does lie within a flood plain, then
the Borrower shall procure flood insurance for such property.


 


(iii)                               Other
Real Property Information.  Such other
certificates, documents and information as are reasonably requested by the
Lenders, including, without limitation, engineering and structural reports,
permanent certificates of occupancy and evidence of zoning compliance, each in
form and substance satisfactory to the Administrative Agent.


 


(h)                                 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 Section 4.2, 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 and its Subsidiaries.


 


(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.


 


(i)                                     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 (other than Existing
Extensions of Credit consisting of the existing balance of the term loan) shall
have been paid in cash in full,


 


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(iii) the
outstanding balance of all Existing Extensions of Credit with respect to the
term loan under the Prior Credit Agreement shall be deemed to be converted into
a Term Loan C under this Agreement (the “Term Loan C Conversion Amount”)
and each Term Loan Lender with a Term Loan C Commitment shall fund in cash the
difference between (A) such Lenders’ Term Loan C Commitment Percentage of the
aggregate amount of the Term Loan C on the Closing Date and (B) the amount of
such Lenders’ Existing Extension of Credit with respect to the term loan under
the Prior Credit Agreement, the aggregate amount of such funding, together with
the aggregate Term Loan C Conversion Amount shall equal the total Term Loan C
Commitment, (iv) there shall have been paid in cash in full all accrued but
unpaid interest due on the Existing Extensions of Credit to the Closing Date,
(v) there shall have been paid in cash in full all accrued but unpaid fees
under the Prior Credit Agreement due to the Closing Date and all other amounts,
costs and expenses then owing to any of the Prior Lenders and/or Wachovia, as
administrative agent under the Prior Agreement and (vi) 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
6.3                     Conditions
to All Extensions of Credit.  The
obligations of the Lenders to make any Extensions of Credit (including the
initial Extension of Credit, but excluding any conversion or continuation of an
existing Loan that does not increase the aggregate amount of the outstanding
Extensions of Credit) and/or the Issuing Lender to issue or extend any Letter
of Credit are subject to the satisfaction of the following conditions precedent
on the relevant borrowing, continuation, conversion, issuance or extension
date:


 


(a)                                  Continuation
of Representations and Warranties.  The
representations and warranties contained in Article VII shall be true and
correct on and as of such borrowing, continuation, conversion, issuance or
extension 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 (i) on the borrowing,
continuation, conversion, issuance or extension date with respect to such Loan
or after giving effect to the Loans to be made, continued or converted on such
date or (ii) on the issuance or extension date with respect to such Letter of
Credit or after giving effect to the issuance or extension of such Letter of
Credit on such date.


 


(c)                                  Notices.
 The Administrative Agent shall have
received a Notice of Borrowing or Notice of Continuation/Conversion, as
applicable, from the Borrower in accordance with Section 2.2(a), Section
4.2 or Section 5.2.


 


(d)                                 Additional
Documents.  The Administrative Agent
shall have received each additional document, instrument, legal opinion (with
respect to any Incremental Term Loan) or other item reasonably requested by it.


 


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SECTION
6.4                     Post-Closing
Agreements.


 


(a)                                  Within
sixty (60) days of the Closing Date, as such date may be extended by the
Administrative Agent in its sole discretion, the Administrative Agent shall
have received deposit account control agreements executed by the applicable
Loan Party, the depositary bank and the Administrative Agent with respect to
all Deposit Accounts, other than Excluded Deposit Accounts (in each case as
defined in the Collateral Agreement), of the Loan Parties.


 


(b)                                 Within
sixty (60) days of the Closing Date, as such date may be extended by the
Administrative Agent in its sole discretion, the Administrative Agent shall
have received releases of all liens and encumbrances on the assets of
Mid-Communications, Inc. in favor of Rural Electrification Administration.


 


(c)                                  Within
seven (7) days of the Closing Date, as such date may be extended by the
Administrative Agent in its sole discretion, the Administrative Agent shall
have received releases of all liens and encumbrances on the assets of Enventis
in favor of GE Commercial Distribution Finance Corporation and Deutsche
Financial Services Corporation.


 


ARTICLE VII


 


REPRESENTATIONS AND WARRANTIES OF THE
BORROWER 


 


SECTION
7.1                     Representations
and Warranties.  To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the
Lenders to make the Extensions of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and Lenders, both before and after giving
effect to the transactions contemplated hereunder, that:


 


(a)                                  Organization;
Power; Qualification.  Each of the
Borrower and its Subsidiaries (i) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
formation, (ii) 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 (iii)
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 except where the failure to obtain such
qualification or authorization could not reasonably be expected to have a
Material Adverse Effect.  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
7.1(a).


 


(b)                                 Ownership.
 Each Subsidiary of the Borrower as of
the Closing Date is listed on Schedule 7.1(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 7.1(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 7.1(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


 


56





















 


issuance of
capital stock of the Borrower or its Subsidiaries, except as described on Schedule
7.1(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 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 (A) the articles of incorporation, bylaws or other
organizational documents of the Borrower or any of its Subsidiaries, (B) any
indenture, agreement or other instrument to which such Person is a party or by
which any of its properties may be bound except where such conflict, breach or
default could not reasonably be expected to have a Material Adverse Effect or (C)
any Governmental Approval relating to such Person except where such conflict,
breach or default could not reasonably be expected to have a Material Adverse
Effect, (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, except where failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


57





















 


(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, except
any taxes, assessments and governmental charges or levies which the Borrower or
any Subsidiary is contesting in good faith and with respect to which adequate
reserves have been established and maintained in accordance with GAAP. 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.


 


(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, except
for any such noncompliance or contamination that could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect;


 


(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


 


58





















 


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, except where such violation or liability could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect;


 


(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, except where such violation or liability could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.


 


(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 7.1(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 except for such plans that have not yet received
determination letters but for which the remedial amendment period for
submitting a determination letter has not yet expired.  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;


 


(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


 


59





















 


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, directly or indirectly,
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.


 


(l)                                     Material
Contracts.  Schedule 7.1(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 7.1(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


 


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copy of each
Material Contract required to be listed on Schedule 7.1(l) or any other
Schedule hereto. Neither the Borrower nor any Subsidiary (nor, to the knowledge
of the Borrower, any other party thereto) is in breach of or in default under
any Material Contract in any material respect.


 


(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
7.1(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.  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, 2004 and
the related statements of income and retained earnings and cash flows for the
Fiscal Years then ended, 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 September 30, 2005, and
related unaudited interim statements of revenue and retained earnings, copies
of which have been furnished to the Administrative Agent and each Lender.  All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with
GAAP, subject to year-end audit adjustments and the absence of footnotes in the
case of the financial statements described in clause (ii) of this Section
7.1(o).  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.


 


(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; provided that with respect to each
Guarantor and the application of the Guaranteed Obligations hereunder, this
representation is subject to the proviso set forth in Section 2 of the
Guaranty Agreement.


 


(q)                                 Titles
to Properties.  Each of the Borrower
and its Subsidiaries has such title to the real property listed on Schedule
7.1(q) 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


 


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limited to,
those reflected on the balance sheets of the Borrower and its Subsidiaries
delivered pursuant to Section 7.1(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 11.2. 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
11.2 hereof.


 


(s)                                  Debt
and Guaranty Obligations.  Schedule
7.1(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 which could reasonably be expected to have a Material Adverse Effect,
except, in each case, as set forth on Schedule 7.1(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


 


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contained
therein not misleading in light of the circumstances under which they were
made.  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.


 


(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
7.1(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 7.1(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.


 


(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.


 


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(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 7.1(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 7.1(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 7.1(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
7.1(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, 2004, 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.


 


(y)                                 Insurance.
 The properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in locations where
the Borrower or the applicable Subsidiary operates.


 


(z)                                   OFAC.
 None of the Borrower, any Subsidiary of
the Borrower or any Affiliate of the Borrower: (i) is a Sanctioned Person, (ii)
has a substantial portion of its assets in Sanctioned Entities, or (iii)
derives a substantial portion of its operating income from investments in, or
transactions with Sanctioned Persons or Sanctioned Entities.  The proceeds of any Loan will not be used and
have not been used to fund any operations in, finance any investments or
activities in, or make any payments to, a Sanctioned Person or a Sanctioned
Entity.


 


SECTION
7.2                     Survival
of Representations and Warranties, Etc.  All representations and warranties set forth
in this Article VII and all representations and warranties


 


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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, shall be reasserted as
provided in Section 6.3, 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 VIII


 


FINANCIAL
INFORMATION AND NOTICES


 


Until all the
Obligations (other than contingent indemnification obligations not yet due and
payable) have been paid and satisfied in full and the Commitments terminated,
unless consent has been obtained in the manner set forth in Section 14.11
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 14.1, and to the Lenders at their respective addresses
as set forth on the Register, or such other office as may be designated by the
Administrative Agent and Lenders from time to time:


 


SECTION
8.1                     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 and a report
containing management’s discussion and analysis of such financial statements
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
the absence of footnotes and 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


 


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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
ninety (90) days after the end of each Fiscal Year, a business plan of the
Borrower and its Subsidiaries for the ensuing four (4) fiscal quarters, such
plan 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
8.2                     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 7.1(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).


 


SECTION
8.3                     Officer’s
Compliance Certificate.  At each
time financial statements are delivered pursuant to Sections 8.1 (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
8.4                     Accountants’
Certificate.  At each time
financial statements are delivered pursuant to Section 8.1(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 X hereof as at the end of each respective
period.


 


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SECTION 8.5                     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


 


(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 8.6                     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 7.1
inaccurate in any respect.


 


SECTION 8.7                     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 VIII or any
other provision of this Agreement, shall, at the time the same is so furnished,
comply with Section 7.1(v).


 


ARTICLE IX


 


AFFIRMATIVE COVENANTS


 


Until all of the Obligations (other than contingent indemnification
obligations not yet due and payable) have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
provided for in Section 14.11, the Borrower will, and will cause
each of its Subsidiaries to:


 


SECTION 9.1                     Preservation of Corporate
Existence and Related Matters. Except as permitted by Section 11.4,
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, except where a failure to obtain
such qualification or authorization could not reasonably be expected to have a
Material Adverse Effect.


 


SECTION 9.2                     Maintenance of Property.
In addition to the requirements of any of the Security Documents, 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 9.3                     Insurance. In addition
to the requirements set forth in the Security Documents, 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 as are required by any Security Documents
(including, without limitation, hazard and business interruption insurance),
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 9.4                     Accounting Methods and
Financial Records. Maintain a system of accounting, and keep such
books, records and accounts (which shall be true and complete in


 


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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.


 


SECTION 9.5                     Payment and Performance of
Obligations. Pay and perform all Obligations under this Agreement and
the other Loan Documents, and pay or perform (a) all material taxes,
assessments and other governmental charges that may be levied or assessed upon
it or any of its property, and (b) all other material 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 9.5 in good faith so long as adequate
reserves are maintained with respect thereto in accordance with GAAP.


 


SECTION 9.6                     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, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.


 


SECTION 9.7                     Environmental Laws. In
addition to and without limiting the generality of Section 9.6, (a) comply
with, and use all commercially reasonable efforts to ensure such compliance by
all tenants and subtenants with all applicable Environmental Laws and obtain
and comply with and maintain, and use all commercially reasonable efforts to
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 except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect, (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 except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect, 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 9.8                     Compliance with ERISA.
In addition to and without limiting the generality of Section 9.6, (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


 


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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.


 


SECTION 9.9                     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, except where the failure
to so comply with respect to such leases, agreements and other instruments
could not reasonably be expected to have a Material Adverse Effect; provided,
that the Borrower or such Subsidiary may contest any such lease, agreement or
other instrument, including without limitation, any Material Contract, in good
faith through applicable proceedings so long as adequate reserves are
maintained in accordance with GAAP.


 


SECTION 9.10              Conduct of Business. Engage
only in businesses in which engaged as of the date of the Prior Credit
Agreement, and businesses reasonably related thereto and in furtherance
thereof.


 


SECTION 9.11              Visits and Inspections. Permit
representatives of the Administrative Agent or any Lender, from time to time
(and so long as no Default or Event of Default shall have occurred and be
continuing, upon reasonable notice and during business hours), 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 9.12              Additional Subsidiaries. (a) Additional
Domestic Subsidiaries.  Within thirty
(30) days after the acquisition or creation of any Domestic Subsidiary of the
Borrower, cause to be executed and delivered to the Administrative Agent (i) a
duly executed Joinder Agreement, whereby the Borrower shall pledge the stock of
such Domestic Subsidiary and such new Domestic Subsidiary shall become a
Guarantor under the Guaranty Agreement and Grantor under the Collateral
Agreement, (ii) upon request of the Administrative Agent, favorable legal
opinions addressed to the Administrative Agent and Lenders in form and
substance satisfactory thereto with respect to such Joinder Agreement and (iii) such
other documents and closing certificates as may be reasonably requested by the
Administrative Agent which provide that such Domestic Subsidiary shall become a
Guarantor bound by all of the terms, covenants and agreements contained in the
Loan Documents and that the assets of such Domestic Subsidiary shall become
Collateral for the Guaranteed Obligations.


 


(b)                                 Additional
Foreign Subsidiaries.  Within thirty
(30) days after the acquisition or creation of any first tier Foreign
Subsidiary of the Borrower, cause to be executed and delivered to the
Administrative Agent (i) a duly executed Joinder Agreement, whereby the
Borrower shall pledge sixty-five (65%) of the total outstanding capital stock
of such Foreign Subsidiary, (ii) upon request of the Administrative Agent,
favorable legal opinions addressed to the Administrative Agent and Lenders in
form and substance satisfactory thereto with respect to such Joinder Agreement
and (iii) such other documents and closing certificates as may be


 


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reasonably
requested by the Administrative Agent which provide that such Foreign
Subsidiary shall be bound by all of the terms, covenants and agreements
contained in the Loan Documents, provided that if any Foreign Subsidiary
guarantees any Debt of the Borrower or any of its Subsidiaries, the Borrower
and its Subsidiaries shall cause such Foreign Subsidiary to (A) become a
Guarantor by delivering to the Administrative Agent a duly executed supplement
to the applicable Guaranty Agreement or such other document as the
Administrative Agent shall reasonably deem appropriate for such purpose, (B) to
the extent not already required to be delivered under this subsection (b),
grant a security interest in all Collateral owned by such Foreign Subsidiary by
delivering to the Administrative Agent a duly executed supplement to each
Security Document or such other document as the Administrative Agent shall
reasonably deem appropriate for such purpose and comply with the terms of each
Security Document and (C) deliver to the Administrative Agent such other
documents and closing certificates consistent with subsection (a) above
or otherwise as may be reasonably requested by the Administrative Agent, all in
form, content and scope reasonably satisfactory to the Administrative Agent.
Notwithstanding anything in the immediately preceding proviso to the contrary,
the requirements of such proviso shall not apply to any Foreign Subsidiary to
the extent that such requirements would (a) be prohibited by applicable
law or (b) cause materially adverse tax implications for any Borrower or
any Domestic Subsidiary under Section 956 of the Code.


 


SECTION 9.13              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 9.14              CoBank Participation Certificates.  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.


 


SECTION 9.15              RTFC Eligibility.  Maintain the Borrower’s eligibility to borrow
from RTFC, consistent with RTFC’s written policies set forth in its
constitutive documents with respect to borrowing eligibility in effect on the
date of this Agreement.


 


SECTION 9.16              Interest Rate Contracts.  Maintain Interest Rate Contracts with respect
to interest rate exposure under this Agreement with durations of at least three
(3) years and an aggregate notional principal amount thereunder equal to
at least fifty percent (50%) of the sum of the Term Loan B Commitment plus
the Term Loan C Commitment, and otherwise in form and substance reasonably
satisfactory to the Administrative Agent. 
The Existing Interest Rate Contracts shall be deemed to satisfy the
requirements of this Section 9.16; provided that, upon the
termination or expiration thereof, the Borrower extends or replaces such
Existing


 


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Interest Rate
Contracts with Interest Rate Contracts which contain terms and conditions that
satisfy the first sentence of this Section 9.16.


ARTICLE X


 


FINANCIAL COVENANTS 


 


Until all of the Obligations (other than contingent indemnification
obligations not yet due and payable) have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11 hereof, the Borrower and its Subsidiaries on
a Consolidated basis will not:


 


SECTION 10.1              Maximum Leverage Ratio. As of
the date of any fiscal quarter end during the applicable period set forth
below, permit the ratio (the “Leverage Ratio”) of (a) Total Debt as
of such fiscal quarter end to (b) EBITDA for the four consecutive fiscal
quarter period ending on such fiscal quarter end, to exceed the corresponding
ratio set forth below:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  Closing Date
  through 9/30/2007

  	
   

  	
  4.25 to 1.00

  	
   

  
	
  10/01/2007
  through 9/30/2008

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  10/01/2008
  through 9/30/2009

  	
   

  	
  3.75 to 1.00

  	
   

  
	
  10/01/2009
  through 9/30/2010

  	
   

  	
  3.50 to 1.00

  	
   

  
	
  10/01/2010
  and thereafter

  	
   

  	
  3.25 to 1.00

  	
   

  



 


SECTION 10.2              [Reserved.]


 


SECTION 10.3              Interest Coverage Ratio.  As of any fiscal quarter end, permit the
ratio of (a) EBITDA for the four consecutive fiscal quarter periods ending
on such fiscal quarter end to (b) Interest Expense as of such fiscal
quarter end to be less than 2.50 to 1.00.


 


SECTION 10.4              Maximum Capital Expenditure.
In any Fiscal Year, permit Capital Expenditures to exceed the amounts set forth
below:


 


	
  Fiscal Year

  	
   

  	
  Amount

  	
   

  
	
  2006

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  2007

  	
   

  	
  $

  	
  23,500,000

  	
   

  
	
  2008 and
  thereafter

  	
   

  	
  $

  	
  22,000,000

  	
   

  



 


provided
that the maximum amount of Capital Expenditures permitted by this Section 10.4
in any Fiscal Year shall be increased by the amount of Capital Expenditures
that were permitted to be made under this Section 10.4 in the
immediately preceding Fiscal Year (without giving effect to any carryover
amount from prior Fiscal Years) over the amount of Capital Expenditures
actually made during such preceding Fiscal Year.  Notwithstanding anything to the contrary in
this Section 10.4, if, as of any fiscal quarter end, the Leverage
Ratio is less than 3.00 to 1.00, the


 


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amount of
Capital Expenditures shall not be limited provided that such Leverage Ratio
remains less than 3.00 to 1.00 both before and after giving effect to such
Capital Expenditure.


ARTICLE XI


 


NEGATIVE COVENANTS


 


Until all of the Obligations (other than contingent indemnification
obligations not yet due and payable) have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11 hereof, the Borrower will not and will not
permit any of its Subsidiaries to:


 


SECTION 11.1              Limitations on Debt.  Create, incur, assume or suffer to exist any
Debt except:


 


(a)                                  the
Obligations (excluding any Hedging Obligations permitted pursuant to Section 11.1(b));


 


(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 11.1,
as set forth on Schedule 7.1(s) and the renewal and refinancing
(but not the increase of the aggregate principal amount thereof) thereof; and


 


(d)                                 (i) Debt
incurred in connection with Capitalized Leases, (ii) Debt consisting of
Guaranty Obligations (provided that the Guaranty Obligations permitted by Section 11.1(g) shall
not be included in the calculation of the permitted maximum amount under this Section 11.1(d)),
and (iii) any other Debt, in an aggregate principal amount for all Debt
referred to in this Section 11.1(d) not to exceed $10,000,000 on
any date of determination.


 


(e)                                  Debt
of the Borrower to any Guarantor and Debt of any Guarantor to the Borrower or
any other Guarantor;


 


(f)                                    Debt
of a Person existing at the time such Person became a Subsidiary or assets were
acquired from such Person, to the extent such Debt was not incurred in
connection with or in contemplation of, such Person becoming a Subsidiary or
the acquisition of such assets, not to exceed in the aggregate at any time
outstanding $20,000,000; and


 


(g)                                 Debt
consisting of either (i) purchase money Debt of Enventis incurred after
the Closing Date to GE Commercial Distribution Finance Corporation or an
affiliated entity for wholesale inventory financing upon terms and conditions
acceptable to the Administrative Agent in an aggregate amount not to exceed
$13,000,000 on any date of determination (the “GE  Financing”) or (ii) until
such time as the GE Financing is established, Guaranty Obligations of the
Borrower in favor of Cisco Systems, Inc. (“Cisco”) on account of
trade payables of Enventis to Cisco arising in the ordinary course of business
in connection with such inventory financing.


 


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SECTION 11.2              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 (i) 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 and (ii) to secure
the performance of tenders, statutory obligations, surety bonds (other than
appeal bonds), bids, leases, government contracts, performance and return of
money bonds and other similar obligations incurred in the ordinary course of
business (exclusive of obligations in respect of the payment for borrowed
money); provided that the security for such obligations is limited
solely to such deposits or to the pledge of the specific goods which are
related to the particular project or contract which is the subject of such
bond, bid, or lease;


 


(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 11.2 and in existence on
the Closing Date and described on Schedule 11.2;


 


(g)                                 Liens
securing purchase money Debt permitted under Section 11.1(d) and Section 11.1(g) or
obligations under trade payables in the ordinary course of business not more
than ninety (90) days past due owing by Enventis to Cisco pursuant to the
arrangements decribed in Section 11.1(g); 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 and with respect to the purchase
money Debt referred to in Section 11.1(g), the related accounts
receivable resulting from the sale of such


 


74





















 


asset by the
Borrower, (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;


 


(h)                                 Liens
in favor of the Administrative Agent for the benefit of the Administrative
Agent and the Lenders under the Loan Documents;


 


(i)                                     Liens
existing on any asset of any Person at the time such Person becomes a
Subsidiary or is merged or consolidated with or into a Subsidiary which (i) were
not created in contemplation of or in connection with such event and (ii) do
not extend to or cover any other property or assets of Borrower or any
Subsidiary, so long as any Debt related to any such Liens are permitted under Section 11.1(f);


 


(j)                                     (i) Liens
of a collecting bank arising in the ordinary course of business under Section 4-208
of the UCC in effect in the relevant jurisdiction and (ii) provided that
such depositary bank has executed and delivered a deposit account control
agreement with respect to such deposit account to the extent required pursuant
to the Collateral Agreement, Liens of any depositary bank in connection with
statutory, common law and contractual rights of set-off and recoupment with
respect to any deposit account of the Borrower or any Subsidiary thereof;


 


(k)                                  Liens
securing judgments for the payment of money not constituting an Event of
Default under Section 12.1(n) or securing appeal or other surety
bonds related to such judgments; and


 


(l)                                     Liens
not otherwise permitted hereunder securing obligations not at any time
exceeding in the aggregate $1,000,000.


 


SECTION 11.3              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 11.3
described on Schedule 11.3;


 


(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


 


75





















 


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;


 


(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 X and XI 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; provided  further
that such acquired Subsidiary comply with Section 9.12 hereof;


 


(d)                                 investments
in Participation Certificates of CoBank to the extent required by Section 9.14;


 


(e)                                  investments
in SCCs of RTFC of not more than 10% of the Term Loan C Commitment;


 


(f)                                    Hedging
Agreements permitted pursuant to Section 11.1;


 


(g)                                 investments
in the form of loans and advances to employees in the ordinary course of
business, including, without limitation, in connection with the purchase or
retention of capital by such employees in the ordinary course of business,
which, in the aggregate do not at any time exceed $250,000;


 


(h)                                 investments
comprised of notes payable, stock or other securities issued by account debtors
to the Borrower or any Guarantor pursuant to negotiated agreements with respect
to the settlement of such account debtor’s accounts in the ordinary course of business;
provided that the aggregate amount of such accounts so settled by the
Borrower and such Guarantor does not exceed $2,500,000 in the aggregate on any
date of determination;


 


(i)                                     investments
not otherwise permitted pursuant to this Section 11.3 in an amount
not to exceed $1,000,000; and


 


76





















 


(j)                                     investments
consisting of promissory notes acquired by the Borrower in connection with the
sale of assets permitted under Section 11.5(b); provided
that at least seventy-five percent (75%) of the total consideration received by
the Borrower for each such sale of assets shall be paid in cash to the Borrower
and an amount not to exceed twenty-five percent (25%) of the total
consideration received by the Borrower for each such sale of assets may be paid
by promissory note payable to the Borrower; provided further that each
such promissory in the original principal amount of $10,000 or more shall be
pledged to the Administrative Agent in accordance with the terms of the
Collateral Agreement within ten (10) Business Days after such sale.


 


SECTION 11.4              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 11.3(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 11.4, the
Borrower shall deliver to the Administrative Agent evidence reasonably
satisfactory thereto demonstrating compliance with Articles X and XI of this
Agreement, both before and after giving effect to such merger.


 


SECTION 11.5              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 11.4;


 


(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;


 


(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


 


77





















 


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 4.5(b);


 


(f)                                    the
disposition of any Hedging Agreement;


 


(g)                                 leases
and licenses of property or assets by the Borrower or any Subsidiary thereof in
the ordinary course of business (so long as such lease or license does not
create a Capitalized Lease Obligation not otherwise permitted pursuant to Section 11.2);
and


 


(h)                                 disposition
by the Borrower or any Subsidiary thereof of investments permitted pursuant to Section 11.3
to the extent the proceeds of such disposition are reinvested in other
investments permitted pursuant to Section 11.3.


 


SECTION 11.6              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 (i) pay cash dividends to its equity holders and (ii) purchase,
redeem or otherwise acquire shares of its capital stock (“Stock Repurchases”);
provided that (A) the aggregate amount of such dividends and Stock
Repurchases shall not exceed in any Fiscal Year one hundred percent (100%) of
Net Income for the immediately preceding Fiscal Year, (B) the Borrower
shall have delivered to the Administrative Agent evidence reasonably
satisfactory to the Administrative Agent demonstrating compliance with Articles
X and XI hereof both before and after giving effect to such dividend
payment or Stock Repurchase, (C) each Stock Repurchase shall have been
duly authorized by the Borrower’s board of directors, and (D) in no event
shall Stock Repurchases exceed $2,500,000 in the aggregate in any Fiscal Year;
and


 


(c)                                  any
Subsidiary may pay cash dividends to the Borrower.


 


SECTION 11.7              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 11.8                                      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 other than: 


 


(A)                              transactions
permitted by Section 11.3, 11.4, 11.6 and 11.7;


 


(B)                                transactions
existing on the Closing Date and described on Schedule 11.8;


 


(C)                                compensation
and reimbursement of reasonable expenses of officers and directors consistent
with past practice of the Borrower and its Subsidiaries; and


 


(D)                               other
transactions in the ordinary course of business on terms as favorable as would
be obtained by it on a comparable arms-length transaction with an independent,
unrelated third party as determined in good faith by the board of directors of
the Borrower.


 


SECTION 11.9                                      Certain
Accounting Changes. Change its Fiscal Year end, or make any change in
its accounting treatment and reporting practices except as required by GAAP or (b) amend,
modify or change its articles of incorporation (or corporate charter or other
similar organizational documents) or amend, modify or change its bylaws (or
other similar documents) in any manner adverse in any respect to the rights or
interests of the Lenders.


 


SECTION 11.10                               Amendments; Payments
and Prepayments of Subordinated Debt.


 


(a)                                  Amend
or modify (or permit the modification or amendment of) any of the terms or
provisions of any Subordinated Debt in any respect which would materially
adversely affect the rights or interests of the Administrative Agent and
Lenders hereunder.


 


(b)                                 Cancel,
forgive, make any payment or prepayment on, or redeem or acquire for value
(including, without limitation, (i) by way of depositing with any trustee
with respect thereto money or securities before due for the purpose of paying
when due and (ii) at the maturity thereof) any Subordinated Debt, except
refinancings, refundings, renewals, extensions or exchange of any Subordinated
Indebtedness permitted by Section 11.1.


 


SECTION 11.11                               Restrictive
Agreements.  (a) Enter into
any Debt which contains any negative pledge on assets or any covenants more
restrictive than the provisions of Articles IX, X and XI 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.


 


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SECTION 11.12                               Nature of Business.
Alter in any material respect the character or conduct of the business
conducted by the Borrower and its Subsidiaries as of the Closing Date.


 


SECTION 11.13                               Impairment of Security
Interests. Take or omit to take any action, which might or would have
the result of materially impairing the Liens in favor of the Administrative
Agent with respect to the Collateral or grant to any Person (other than the
Administrative Agent for the benefit of itself and the Lenders pursuant to the
Security Documents) any interest whatsoever in the Collateral, except for Liens
permitted under Section 11.2 and asset sales permitted under Section 11.5.


 


ARTICLE XII


 


DEFAULT AND REMEDIES 


 


SECTION 12.1                                      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:


 


(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 and such default shall continue for a period of three (3) Business
Days.


 


(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 6.4,
Sections 10.1 through 10.4 or Articles X or XI 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 12.1) 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.


 


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(g)                                 Debt
Cross-Default. The Borrower or any of its Subsidiaries shall (i) default
in the payment of any Debt (other than the Loans or any Reimbursement
Obligation) or interest thereon, 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 Loans 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 (i) 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 or (ii) any Security Document.


 


(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, Jay Knauf, Lane Nordquist, 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.


 


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(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.


 


(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.


 


(p)                                 Environmental.
Any one or more Environmental Claims shall have been asserted against the
Borrower or any Loan Party; the Borrower and any Loan Party would be reasonably
likely to incur liability as a result thereof; and such liability would be
reasonably likely, individually or in the aggregate, to have a Material Adverse
Effect.


 


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SECTION 12.2                                      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. Terminate the Commitments and 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 12.1(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.


 


(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 subsection (a), 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 12.3                                      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


 


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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.


 


SECTION 12.4                                      Administrative
Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to any Loan
Party, the Administrative Agent (irrespective of whether the principal of any
Loan or L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent
shall have made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise:


 


(a)                                  to file and prove a claim for the
whole amount of the principal and interest owing and unpaid in respect of the
Loans, L/C Obligations and all other Obligations that are owing and unpaid and
to file such other documents as may be necessary or advisable in order to have
the claims of the Lenders and the Administrative Agent (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Lenders and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders and the Administrative Agent under Sections
3.3, 5.4 and 14.2) allowed in such judicial proceeding; and


 


(b)                                 to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Lender to make such payments
to the Administrative Agent and, in the event that the Administrative Agent
shall consent to the making of such payments directly to the Lenders, to pay to
the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections
3.3, 5.4 and 14.2.


 


Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding.


 


ARTICLE XIII


 


THE ADMINISTRATIVE AGENT 


 


SECTION 13.1                                      Appointment
and Authority. Each of the Lenders and the Issuing Lender hereby
irrevocably appoints Wachovia to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the


 


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Administrative
Agent, the Lenders and the Issuing Lender, and neither the Borrower nor any
Subsidiary thereof shall have rights as a third party beneficiary of any of such
provisions.


 


SECTION 13.2                                      Rights as a
Lender. The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent and
the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or
unless the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Borrower or any Subsidiary or other Affiliate thereof as
if such Person were not the Administrative Agent hereunder and without any duty
to account therefor to the Lenders.


 


SECTION 13.3                                      Exculpatory
Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents.  Without limiting the
generality of the foregoing, the Administrative Agent:


 


(a)                                  shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;


 


(b)                                 shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or Applicable Law; and


 


(c)                                  shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


 


The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Section 14.11 and Section 12.2)
or (ii) in the absence of its own gross negligence or willful misconduct
as determined by a court of competent jurisdiction by final nonappealable
judgment.  The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the Issuing Lender.


 


The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document


 


85





















 


delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article VI or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


 


SECTION 13.4                                      Reliance by
the Administrative Agent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon
any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying
thereon.  In determining compliance with
any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
the Issuing Lender, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the Issuing Lender unless the Administrative
Agent shall have received notice to the contrary from such Lender or the
Issuing Lender prior to the making of such Loan or the issuance of such Letter
of Credit.  The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


 


SECTION 13.5                                      Delegation of
Duties. The Administrative Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document
by or through any one or more sub-agents appointed by the Administrative Agent.
The Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective
Related Parties.  The exculpatory
provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative
Agent.


 


SECTION 13.6                                      Resignation of
Administrative Agent.


 


(a)                                  The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the Issuing Lender and the Borrower. 
Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States.  If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the Issuing Lender, appoint a successor Administrative Agent
meeting the qualifications set forth above provided that if the Administrative
Agent shall notify


 


86





















 


the Borrower
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the Issuing Lender under any of the Loan Documents,
the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the Issuing Lender directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this paragraph. Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of
its duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this paragraph). The fees
payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 14.2 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.


 


(b)                                 Any
resignation by Wachovia as Administrative Agent pursuant to this Section shall
also constitute its resignation as Issuing Lender.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring Issuing Lender, (b) the retiring Issuing Lender
shall be discharged from all of its respective duties and obligations hereunder
or under the other Loan Documents, and (c) the successor Issuing Lender
shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or make other arrangement
satisfactory to the retiring Issuing Lender to effectively assume the
obligations of the retiring Issuing Lender with respect to such Letters of
Credit.


 


SECTION 13.7                                      Non-Reliance on
Administrative Agent and Other Lenders. Each Lender and the Issuing
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.  Each Lender and the Issuing Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.


 


SECTION 13.8                                      No Other
Duties, etc. Anything herein to the contrary notwithstanding, none of
the syndication agents, documentation agents, co-agents, book


 


87





















 


manager, lead
manager, arranger, lead arranger or co-arranger listed on the cover page or
signature pages hereof shall have any powers, duties or responsibilities
under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the Issuing
Lender hereunder.


 


SECTION 13.9                                      Collateral and
Guaranty Matters. The Lenders irrevocably authorize the Administrative
Agent, at its option and in its discretion,


 


(a)                                  to
release any Lien on any Collateral granted to or held by the Administrative
Agent, for the ratable benefit of itself and the Lenders, under any Loan
Document (i) upon repayment of the outstanding principal of and all
accrued interest on the Loans, payment of all outstanding fees and expenses
hereunder, the termination of the Lenders’ Commitments and the expiration or
termination of all Letters of Credit, (ii) that is sold or to be sold as
part of or in connection with any sale permitted hereunder or under any other
Loan Document, or (iii) subject to Section 14.11, if approved,
authorized or ratified in writing by the Required Lenders;


 


(b)                                 to
subordinate any Lien on any Collateral granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such Collateral that
is permitted by Section 11.2(f); and


 


(c)                                  to
release any Guarantor from its obligations under the Guaranty Agreement if such
Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.


 


Upon request
by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its
interest in particular types or items of property, or to release any Guarantor
from its obligations under the Guaranty Agreement pursuant to this Section.


 


ARTICLE XIV


 


MISCELLANEOUS


 


SECTION 14.1                                      Notices.


 


(a)                                  Method
of Communication. Except as otherwise provided in this Agreement, all
notices and communications hereunder shall be in writing (for purposes hereof,
the term “writing” shall include information in electronic format such as
electronic mail and internet web pages), or by telephone subsequently confirmed
in writing.  Any notice shall be
effective if delivered by hand delivery or sent via electronic mail, posting on
an internet web page, 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 electronic mail, posting on an internet web page, or 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.


 


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(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:
  The Office of the Chief Financial Officer,

  
	
   

  	
   

  	
  David A.
  Christensen

  
	
   

  	
  Telephone
  No.: (507) 387-1713

  
	
   

  	
  Telecopy
  No.:   (507) 625-9191

  
	
   

  	
   

  
	
  If to
  Wachovia as

  	
   

  	
  Wachovia
  Bank, National Association

  
	
  Administrative
  Agent:

  	
   

  	
  Charlotte
  Plaza, CP-15

  
	
   

  	
   

  	
  201 South
  College Street

  
	
   

  	
   

  	
  Charlotte,
  North Carolina 28288-0680

  
	
   

  	
   

  	
  Attention:
  Syndication Agency Services

  
	
   

  	
   

  	
  Telephone
  No.: (704) 374-2698

  
	
   

  	
   

  	
  Telecopy
  No.: (704) 383-0288

  
	
   

  	
   

  
	
  If to any
  Lender:

  	
  To the Address
  set forth on the Register

  



 


(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 14.2                                      Expenses;
Indemnity.


 


(a)                                  Costs
and Expenses. The Borrower and any other Loan Party, jointly and severally,
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent), in connection with
the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Lender in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the Issuing Lender (including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Lender or the Issuing Lender), in connection with the enforcement or protection
of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection
with the Loans made or Letters of Credit issued hereunder, including all such


 


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out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.


 


(b)                                 Indemnification
by the Borrower. The Borrower shall indemnify the Administrative Agent (and
any sub-agent thereof), each Lender and the Issuing Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims
(including, without limitation, any Environmental Claims or civil penalties or
fines assessed by OFAC), damages, liabilities and related expenses (including
the fees, charges and disbursements of any counsel for any Indemnitee),
incurred by any Indemnitee or asserted against any Indemnitee by any third
party or by the Borrower or any other Loan Party arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations
hereunder or thereunder or the consummation of the transactions contemplated
hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing
Lender to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Claim related in any
way to the Borrower or any of its Subsidiaries, (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto, or (v) any claim
(including, without limitation, any Environmental Claims or civil penalties or
fines assessed by OFAC), 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 Loans, this Agreement, any other Loan Document, or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby, including without limitation, reasonable
attorneys and consultant’s fees, provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by the Borrower or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if the Borrower or such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.


 


(c)                                  Reimbursement
by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under clause (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the
Issuing Lender or any Related Party of any of the foregoing, each Lender
severally agrees to pay to the Administrative Agent (or any such sub-agent),
the Issuing Lender or such Related Party, as the case may be, such Lender’s
Applicable Margin (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by


 


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or asserted
against the Administrative Agent (or any such sub-agent) or the Issuing Lender
in its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or Issuing Lender
in connection with such capacity. The obligations of the Lenders under this
clause (c) are subject to the provisions of Section 5.8.


 


(d)                                 Waiver
of Consequential Damages, Etc.  To
the fullest extent permitted by Applicable Law, the Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred
to in clause (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed
by it through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.


 


(e)                                  Payments.
All amounts due under this Section shall be payable promptly after demand
therefor.


 


SECTION 14.3                                      Set-off.
If an Event of Default shall have occurred and be continuing, each Lender, the
Issuing Lender and each of their respective Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by Applicable
Law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the
Issuing Lender or any such Affiliate to or for the credit or the account of the
Borrower or any other Loan Party against any and all of the obligations of the
Borrower or such Loan Party now or hereafter existing under this Agreement or
any other Loan Document to such Lender or the Issuing Lender, irrespective of
whether or not such Lender or the Issuing Lender shall have made any demand
under this Agreement or any other Loan Document and although such obligations
of the Borrower or such Loan Party may be contingent or unmatured or are owed to
a branch or office of such Lender or the Issuing Lender different from the
branch or office holding such deposit or obligated on such indebtedness.  The rights of each Lender, the Issuing Lender
and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender,
the Issuing Lender or their respective Affiliates may have.  Each Lender and Issuing Lender agrees to
notify the Borrower and the Administrative Agent promptly after any such setoff
and application; provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


SECTION 14.4                                      Governing Law.


 


(a)                                  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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(b)                                 Submission
to Jurisdiction. The Borrower and each other Loan Party irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the state and federal courts located in Mecklenburg County,
North Carolina, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any other Loan
Document, or for recognition or enforcement of any judgment, and each of the
parties hereto irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
North Carolina State court or, to the fullest extent permitted by Applicable
Law, in such Federal court.  Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.  Nothing in this Agreement or in any other
Loan Document shall affect any right that the Administrative Agent, any Lender
or the Issuing Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against the Borrower or
any other Loan Party or its properties in the courts of any jurisdiction.


 


(c)                                  Waiver
of Venue. The Borrower and each other Loan Party irrevocably and
unconditionally waives, to the fullest extent permitted by Applicable Law, any
objection that it may now or hereafter have to the laying of venue of any
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by Applicable Law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.


 


(d)                                 Service
of Process. Each party hereto irrevocably consents to service of process in
the manner provided for notices in Section 14.1. Nothing in this
Agreement will affect the right of any party hereto to serve process in any
other manner permitted by Applicable Law.


 


SECTION 14.5                                      Intentionally
Omitted.


 


SECTION 14.6                                      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 this Agreement or any other Loan
Document (“Disputes”), between or among parties hereto and to the other
Loan Documents 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 (the “AAA”) and the
Federal Arbitration Act.  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


 


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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 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 selected from the Commercial
Financial Dispute Arbitration Panel of the AAA. 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. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND


(B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


(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, as applicable:  (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, including a proceeding to confirm the 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 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 14.7                                        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


 


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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.


 


SECTION 14.8                                        Injunctive
Relief; Punitive Damage.


 


(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 14.9                                        Accounting
Matters. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and
either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance with GAAP prior to
such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


 


SECTION 14.10                                 Successors and
Assigns; Participations.


 


(a)                                  Successors
and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither the Borrower nor
any other Loan Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of paragraph (b) of this Section, (ii) by
way of participation in accordance with the provisions of paragraph (d) of
this Section or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of paragraph (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null and
void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto,


 


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their
respective successors and assigns permitted hereby, Participants to the extent
provided in paragraph (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)                                 Assignments
by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that


 


(i)                                     except
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the applicable Commitment
is not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date) shall not be less than $5,000,000, in the
case of any assignment in respect of the Revolving Credit Facility, or
$1,000,000, in the case of any assignment in respect of the Term Loan Facility,
unless (A) such assignment is made to an existing Lender, to an Affiliate
thereof, or (with respect to any Term Loan) to an Approved Fund, in which case
no minimum amount shall apply, or (B) each of the Administrative Agent
and, so long as no Default or Event of Default has occurred and is continuing,
the Borrower otherwise consent (each such consent not to be unreasonably
withheld or delayed);


 


(ii)                                  each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loan or the Commitment assigned, except that this clause (ii) shall
not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Facilities on a non-pro  rata basis;


 


(iii)                               any
assignment of a Revolving Credit Commitment must be approved by the
Administrative Agent and the Issuing Lender unless the Person that is the
proposed assignee is itself a Lender with a Revolving Credit Commitment
(whether or not the proposed assignee would otherwise qualify as an Eligible Assignee);
and


 


(iv)                              the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500 for each assignment, and
the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.


 


Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and


 


95





















 


obligations of
a Lender under this Agreement, and the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto)
but shall continue to be entitled to the benefits of Sections 5.9, 5.10,
5.12 and 14.2 with respect to facts and circumstances occurring
prior to the effective date of such assignment. 
Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (d) of this Section.


 


(c)                                  Register.
The Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at one of its offices in Charlotte, North Carolina, a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.


 


(d)                                 Participations.
Any Lender may at any time, without the consent of, or notice to, the Borrower
or the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) 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.


 


Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver or modification described
in Section 14.11 that directly affects such Participant.  Subject to paragraph (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 5.9, 5.10 and


5.12
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 14.2
as though it were a Lender, provided such Participant agrees to be subject to Section 5.7
as though it were a Lender.


 


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(e)                                  Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Sections
5.9 and 5.12 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior
written consent.


 


(f)                                    Certain
Pledges. Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.


 


SECTION 14.11                                 Amendments, Waivers
and Consents. Except as set forth below or as specifically provided in
any Loan Document, any term, covenant, agreement or condition of this Agreement
or any of the other Loan Documents 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)                                  waive
any condition set forth in Section 6.2 without the written consent
of each Lender;


 


(b)                                 extend
or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 12.2) or the amount of Loans of any
Lender without the written consent of such Lender;


 


(c)                                  postpone
any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the
Lenders (or any of them) hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;


 


(d)                                 reduce
the principal of, or the rate of interest specified herein on, any Loan or
Reimbursement Obligation, or (subject to clause (iv) of the second proviso
to this Section) any fees or other amounts payable hereunder or under any other
Loan Document, or change the manner of computation of any financial ratio
(including any change in any applicable defined term) used in determining the
Applicable Margin that would result in a reduction of any interest rate on any
Loan or any fee payable hereunder without the written consent of each Lender
directly affected thereby; provided that only the consent of the
Required Lenders shall be necessary (i) to waive any obligation of the
Borrower to pay interest at the rate set forth in Section 5.1(d) during
the continuance of an Event of Default, or (ii) to amend any financial
covenant hereunder (or any defined term used therein) even if the effect of
such amendment would be to reduce the rate of interest on any Loan or L/C
Obligation or to reduce any fee payable hereunder;


 


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(e)                                  change
Section 5.5 or Section 5.6 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent
of each Lender;


 


(f)                                    change
Section 4.5(b)(v) in a manner that would alter the order of
application of amounts prepaid pursuant thereto without the written consent of
each Lender;


 


(g)                                 change
any provision of this Section or the definition of “Required Lenders” or
any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender;


 


(h)                                 release
all of the Guarantors or release Guarantors comprising substantially all of the
credit support for the Obligations, in either case, from the Guaranty Agreement
(other than as authorized in Section 13.9), without the written
consent of each Lender;


 


(i)                                     release
all or a material portion of the Collateral or release any Security Document
(other than as authorized in Section 13.9 or as otherwise
specifically permitted or contemplated in this Agreement or the applicable
Security Document) without the written consent of each Lender;


 


provided
further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender in addition to the Lenders required
above, affect the rights or duties of the Issuing Lender under this Agreement
or any Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; and (iii) the Engagement Letter may be amended,
or rights or privileges thereunder waived, in a writing executed only by the
parties thereto.  Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that
the Commitment of such Lender may not be increased or extended without the
consent of such Lender.


 


SECTION 14.12                                 Confidentiality.  Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such Information
and instructed to keep such Information confidential), (b) to the extent
requested by, or required to be disclosed to, any rating agency, or regulatory
or similar authority (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent
required by Applicable Laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies under this Agreement or under any other Loan Document
(or any Hedging Agreement with a Lender or the Administrative Agent) or any
action or proceeding relating to this Agreement or any other Loan Document (or
any Hedging Agreement with a Lender or the Administrative Agent) or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions


 


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substantially
the same as those of this Section, to (i) any purchasing Lender, proposed
purchasing Lender, Participant or proposed Participant, or (ii) any actual
or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the
consent of the Borrower, (h) to Gold Sheets and other similar bank
trade publications, such information to consist of deal terms and other
information customarily found in such publications, or (i) to the extent
such Information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes available to the Administrative
Agent or any Lender on a nonconfidential basis from a source other than the
Borrower or (j) to governmental regulatory authorities in connection with any
regulatory examination of the Administrative Agent or any Lender or in
accordance with the Administrative Agent’s or any Lender’s regulatory
compliance policy if the Administrative Agent or such Lender deems necessary
for the mitigation of claims by those authorities against the Administrative
Agent or such Lender or any of its subsidiaries or affiliates. For purposes of
this Section, “Information” means all information received from any Loan
Party relating to any Loan Party or any of their respective businesses, other
than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by any Loan Party.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


SECTION 14.13                                 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 14.14                                 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 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 14.15                                 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 XIV 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 14.16                                 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 14.17                                 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


 


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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 14.18                                 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 14.19                                 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 indefeasibly and
irrevocably paid and satisfied in full.  The
Administrative Agent is hereby permitted to release all Liens on the Collateral
in favor of the Administrative Agent, for the ratable benefit of itself and the
Lenders, upon repayment of the outstanding principal of and all accrued
interest on the Loans, payment of all outstanding fees and expenses hereunder
and the termination of the Lender’s Commitments.  No termination of this Agreement shall affect
the rights and obligations of the parties hereto arising prior to such
termination or in respect of any provision of this Agreement which survives
such termination.


 


SECTION 14.20                                 Inconsistencies
with Other Documents; Independent Effect of Covenants.


 


(a)                                  The
Borrower expressly acknowledges and agrees that each covenant contained in
Articles IX, X, or XI 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 IX, X, or XI 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 IX, X, or XI.


 


SECTION 14.21                                 Integration.
This Agreement, together with the other Loan Documents, comprises the complete
and integrated agreement of the parties on the subject matter hereof and
thereof and supersedes all prior agreements, written or oral, on such subject
matter. In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall control;
provided that the inclusion of supplemental rights or remedies in favor
of the Administrative Agent or the Lenders in any other Loan Document shall not
be deemed a conflict with this Agreement. 
Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.


 


SECTION 14.22                               Advice of Counsel, No
Strict Construction. Each of the parties represents to each other party
hereto that it has discussed this Agreement with its counsel.  The parties hereto have participated jointly
in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of
any provisions of this Agreement.


 


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SECTION 14.23                                 USA Patriot Act.
The Administrative Agent and each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to
obtain, verify and record information that identifies the Borrower and
Guarantors, which information includes the name and address of the Borrower and
Guarantor and other information that will allow such Lender to identify the
Borrower or Guarantor in accordance with the Act.


 


SECTION 14.24                               Amendment and
Restatement; No Novation. This Agreement constitutes an amendment and
restatement of the Prior Credit Agreement, as amended, effective from and after
the Closing Date.  The execution and delivery
of this Agreement shall not constitute a novation of any indebtedness or other
obligations owing to the Lenders or the Administrative Agent under the Prior
Credit Agreement based on facts or events occurring or existing prior to the
execution and delivery of this Agreement. 
On the Closing Date, the credit facilities described in the Prior Credit
Agreement, as amended, shall be amended, supplemented, modified and restated in
their entirety by the facilities described herein, and all loans and other obligations
of the Borrower outstanding as of such date under the Prior Credit Agreement,
as amended, shall be deemed to be loans and obligations outstanding under the
corresponding facilities described herein, without any further action by any
Person, except that the Administrative Agent shall make such transfers of funds
as are necessary in order that the outstanding balance of such Loans, together
with any Loans funded on the Closing Date, reflect the Commitments of the
Lenders hereunder.


 


[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:

  	
   /s/
  David A. Christensen

  	
   

  
	
   

  	
  Name: David A. Christensen

  
	
   

  	
  Title: Senior Vice President, CFO,
  Treasurer and Secretary

  



 


[Third Amended and Restated Credit Agreement]


 





















 


	
   

  	
  WACHOVIA BANK, NATIONAL

  
	
   

  	
  ASSOCIATION, as Administrative Agent and

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Franklin M. Wessinger

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Franklin M. Wessinger

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
					



 





















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Keith Kubota

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Keith Kubota

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 





















 


	
   

  	
  GENERAL ELECTRIC CAPITAL

  
	
   

  	
  CORPORATION, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Karl Kieff

  	
   

  
	
   

  	
   

  	
  Name: Karl Kieff

  
	
   

  	
   

  	
  Title: Duly Authorized Signatory

  



 





















 


	
   

  	
  COBANK, ACB, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Roger Opp

  	
   

  
	
   

  	
   

  	
  Name: Roger Opp

  
	
   

  	
   

  	
  Title: Vice President

  



 





















 


	
   

  	
  RURAL TELEPHONE FINANCE

  
	
   

  	
  CORPORATIVE, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Robinson C. Reed

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robin C.
  Reed

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary-Treasurer