Exhibit 4.4(c)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of May 11, 1998
(the "Agreement"), is entered into between Telephone and Data Systems, Inc., an
Iowa corporation ("TDS Iowa") and Telephone and Data Systems, Inc., a Delaware
corporation ("TDS Delaware").
W I T N E S S E T H:
WHEREAS, TDS Iowa, BankBoston N.A. (formerly known as The First
National Bank of Boston), as Agent and Arranger, LaSalle National Bank and
Toronto Dominion (Texas), Inc., as Co-Agents, and the financial institutions
named therein (individually, a "Bank" and collectively, the "Banks") are parties
to a Revolving Credit Agreement, dated as of June 7, 1996, as amended on June 2,
1997 (the "Credit Agreement"), relating to the borrowing, repaying and
reborrowing from time to time by TDS Iowa of loans up to a maximum aggregate
principal amount outstanding at any one time equal to the aggregate amount of
the Banks' commitments (the "Loans"); and
WHEREAS, capitalized terms herein, not otherwise defined, shall have
the same meanings given them in the Credit Agreement; and
WHEREAS, Section 6.3(b) of the Credit Agreement provides that an
agreement may be entered into by TDS Iowa, to evidence the succession of another
corporation to the capacity of Borrower under the Credit Agreement and the
assumption by such successor corporation of the covenants, conditions and
obligations of TDS Iowa; and
WHEREAS, TDS Iowa and TDS Delaware are entering into this Agreement to
recognize the merger (the "Merger") of TDS Iowa with and into TDS Delaware, with
TDS Delaware as the surviving corporation; and
WHEREAS, the Merger will be consummated for the sole purpose of
reincorporating TDS Iowa from Iowa to Delaware, and will not result in any
change in its name, business, management, assets or liabilities; and
WHEREAS, all things necessary to make this Agreement a valid agreement
of TDS Iowa and TDS Delaware have been done.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of the parties hereto, the parties hereto agree as follows:
Section 1. SUCCESSION OF TDS IOWA BY TDS DELAWARE
Subject to the effectiveness of the Merger:
(a) TDS Delaware, as successor to TDS Iowa, hereby expressly assumes
the due and punctual payment of the principal of and interest on all of the
Loans and the due and punctual performance and observance of all of the
covenants, conditions and other obligations of the Credit Agreement and the
Notes to be performed or observed by TDS Iowa as Borrower; and
(b) TDS Delaware shall succeed to, and be substituted for, and may
exercise every right and power of, TDS Iowa under the Credit Agreement with the
same effect as if TDS Delaware had been originally named as the Borrower
therein.
Section 2. REPRESENTATIONS AND WARRANTIES.
TDS Iowa and TDS Delaware hereby jointly and severally represent and
warrant to the Banks and the Agent that, as of the date hereof and immediately
prior to and after giving effect to the Merger:
(a) Representations and Warranties in Credit Agreement. The
representations and warranties of the Borrower contained in the Credit
Agreement, (i) were true and correct in all material respects when made, and
(ii) except to the extent such representations and warranties by their terms are
made solely as of a prior date or by their terms relate specifically to the
Borrower's status as an Iowa corporation, continue to be true and correct in all
material respects.
(b) Authority, Etc. The execution and delivery by each of TDS Iowa and
TDS Delaware of this Assignment and Assumption Agreement, and the performance by
TDS Delaware, as the Borrower under the Credit Agreement after giving effect to
the Merger, of all of its agreements and obligations under the Credit Agreement
(i) are within the corporate authority of TDS Iowa and TDS Delaware,
respectively, (ii) have been duly authorized by all necessary corporate
proceedings by TDS Iowa and TDS Delaware, respectively, (iii) do not conflict
with or result in any breach or contravention of any provision of law, statute,
rule or regulation to which either TDS Iowa or TDS Delaware is subject, or any
judgment, order, writ, injunction, license or permit applicable to TDS Iowa or
TDS Delaware, and (iv) do not conflict with any provision of the corporate
charter or by-laws of, or any agreement or other instrument binding upon, TDS
Iowa or TDS Delaware.
(c) Enforceability of Obligations. The Credit
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Agreement constitutes the legal, valid and binding obligation of TDS Iowa as of
the date hereof and immediately prior to the Merger, and of TDS Delaware
immediately after giving effect to the Merger, in each case enforceable in
accordance with its terms against TDS Iowa or TDS Delaware, in their respective
capacities as the Borrower under the Credit Agreement, subject to the
qualifications as to enforceability set forth in Section 4.1(c) of the Credit
Agreement.
(d) Absence of Defaults. No Default or Event of Default exists under
the Credit Agreement.
Section 3. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT
(a) On and after the date of this Agreement, each reference in the
Credit Agreement to "hereunder," "hereof," or "herein" shall mean and be a
reference to the Credit Agreement as supplemented by this Agreement.
(b) The Credit Agreement shall remain in full force and effect and is
hereby ratified and confirmed.
(c) All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Credit Agreement.
(d) This Agreement shall be effective at the time the Merger is
effective, subject to no Default or Event of Default existing under the Credit
Agreement at such time.
Section 4. GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the jurisdiction which govern the Credit Agreement
and its construction.
Section 5. COUNTERPARTS AND METHOD OF EXECUTION
This Agreement may be executed in several counterparts, all of which
together shall constitute one agreement binding on all parties hereto,
notwithstanding that all parties have not signed the same counterpart.
Section 6. SECTION TITLES
Section titles are for descriptive purposes only and shall not control
or alter the meaning of this Agreement as set forth in the text.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective seals to be affixed hereunto and duly
attested all as of the day and year first above written.
TELEPHONE AND DATA SYSTEMS, INC.,
an Iowa Corporation
[Corporate Seal]
By: /s/ XXXXX X. XXXXXXX, XX.
----------------------------------
XxXxx X. Xxxxxxx, Xx.
President
Attest:
/s/ XXXXXXX X. XXXX
-----------------------------
Xxxxxxx X. Xxxx
Secretary
TELEPHONE AND DATA SYSTEMS, INC.,
a Delaware Corporation
[Corporate Seal]
By: /s/ XXXXX X. XXXXXXX, XX.
----------------------------------
XxXxx X. Xxxxxxx, Xx.
President
Attest:
/s/ XXXXXXX X. XXXX
-----------------------------
Xxxxxxx X. Xxxx
Secretary
Accepted and Acknowledged:
BANKBOSTON, N.A., as Agent
for the Banks referred to herein
By: /s/ XXXXX X. XXXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
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