EXHIBIT 10.51
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THE CHILLICOTHE TELEPHONE COMPANY
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SECOND WAIVER AGREEMENT
Dated as of August 14, 2002
re
NOTE PURCHASE AGREEMENT
Dated as of June 1, 1998
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Re: $12,000,000 6.62% Senior Notes
Due June 1, 2018
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SECOND WAIVER AGREEMENT
THIS SECOND WAIVER AGREEMENT dated as of August ___, 2002 (the or this
"Waiver") is between THE CHILLICOTHE TELEPHONE Company, an Ohio corporation (the
"Company"), and each of the institutions which is a signatory to this Waiver
(collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered into the
Note Purchase Agreement dated as of June 1, 1998 (the "Note Purchase
Agreement"). The Company has heretofore issued the $12,000,000 6.62% Senior
Notes due June 1, 2018 (the "Notes") dated June 23, 1998, pursuant to the Note
Purchase Agreement. The Noteholders are the holders of 100% of the outstanding
principal amount of the Notes.
B. The Company and the Noteholders have also entered into a Waiver
Agreement dated as of August 8, 2002 (the "First Waiver"), pursuant to which the
Noteholders waived compliance by the Company with the provisions of Section 5(i)
of the Note Purchase Agreement through the Expiration Date (the "First Waiver
Expiration Date") set forth therein.
C. The Company has requested that the Noteholders waive compliance with a
certain provision of the Note Purchase Agreement in connection with the
Company's issuance of an aggregate of $30,000,000 senior unsecured notes (the
"New Note Issuance") pursuant to a Note Purchase Agreement dated as of August 1,
2002, and the Company and the Noteholders now desire to waive said provision of
the Note Purchase Agreement as of the date hereof (the "Effective Date") in the
respect, but only in the respect, hereinafter set forth.
D. The Company has also requested that the Noteholders agree to modify the
First Waiver Expiration Date, and the Company and the Noteholders now desire to
modify said First Waiver Expiration Date in the respect hereinafter set forth.
E. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreement unless herein defined or the
context shall otherwise require.
F. All requirements of law have been fully complied with and all other acts
and things necessary to make this Waiver a valid, legal and binding instrument
according to its terms for the purposes herein expressed have been done or
performed.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of the Waiver set forth in SS.2.1 hereof, and in
consideration of good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the Company and the Noteholders do hereby agree as
follows:
SECTION 1. WAIVER AND CONSENT; MODIFICATION OF FIRST WAIVER EXPIRATION DATE
Section 1.1. Upon and by virtue of this Waiver becoming effective as herein
contemplated, the failure of the Company to comply with the provisions of
Section 5(a) of the Note Purchase Agreement as a result of the New Note
Issuance, which non-compliance would otherwise constitute an Event of Default
under the Note Purchase Agreement, shall be deemed to have been waived by the
Noteholders during the period from and including the Effective Date through and
until, but not including, the Expiration Date (as defined below), and the
Noteholders consent to the New Note Issuance, but solely to the extent the New
Note Issuance would otherwise have resulted in a violation of Section 5(a) of
the Note Purchase Agreement. The term "Expiration Date" shall mean the earlier
of (a) September 15, 2002 or (b) the date upon which the Company enters into a
Second Amendment to the Note Purchase Agreement pursuant to which Section 5(a)
of the Note Purchase Agreement is amended and/or restated such that the Company
would not have been in violation thereof as a result of the New Note Issuance.
The Company understands and agrees that the waiver and consent contained in
this SS.1.1 pertains only to the Default and Event of Default herein described
and to the extent so described and not to any other Default or Event of Default
which may exist under, or any other matters arising in connection with, the Note
Purchase Agreement or to any rights which the Noteholders have arising by virtue
of any such other actions or matters.
Section 1.2. The Company and the Noteholders hereby agree that the term
"Expiration Date" as set forth in the First Waiver shall be deemed amended and
restated to read as follows: "The term "Expiration Date" shall mean the earlier
of (a) September 15, 2002 or (b) the date upon which the Company enters into a
Second Amendment to the Note Purchase Agreement pursuant to which Section 5(i)
of the Note Purchase Agreement is amended and/or restated such that the Company
is no longer in violation thereof."
SECTION 2. MISCELLANEOUS.
Section 2.1. This Waiver shall become effective and binding upon the
Company and the Noteholders on the Effective Date upon the Company's and the
Noteholders' acceptance in the space below.
Section 2.2. This Waiver shall be construed in connection with and as part
of the Note Purchase Agreement, and except as modified and expressly amended by
this Waiver, all terms, conditions and covenants contained in the Note Purchase
Agreement and the Notes are hereby ratified and shall be and remain in full
force and effect.
Section 2.3. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Waiver may refer to the Note Purchase Agreement without making specific
reference to this Waiver but nevertheless all such references shall include this
Waiver unless the context otherwise requires.
Section 2.4. The descriptive headings of the various Sections or parts of
this Waiver are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
Section 2.5. This Waiver shall be governed by and construed in accordance
with Ohio law.
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Section 2.6. The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and this Waiver may
be executed in any number of counterparts, each executed counterpart
constituting an original, but all together only one agreement.
THE CHILLICOTHE TELEPHONE COMPANY
By /s/ Thomas McKell
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Its President
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Accepted and Agreed to:
AMERICAN UNITED LIFE INSURANCE COMPANY
By /s/ Christopher D. Pahlke
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Christopher D. Pahlke
Vice President
THE STATE LIFE INSURANCE COMPANY
BY, AMERICAN UNITED LIFE INSURANCE COMPANY,
ITS AGENT
By /s/ Christopher D. Pahlke
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Christopher D. Pahlke
Vice President
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