EXHIBIT 4.32
T.L.C.A. - Additional REA Loan (Prior REA Loans) - 7/91.
REA Project Designation:
SOUTH DAKOTA 515-T8 XXXXX
TELEPHONE LOAN
CONTRACT AMENDMENT
Dated as of September 25, 1991
between
DAKOTA COOPERATIVE TELECOMMUNICATIONS, INC.
and
UNITED STATES OF AMERICA
No. E
=======
T.L.C.A. - Additional REA Loan (Prior REA Loans) - 7/91.
AGREEMENT, made as of September 25, 1991, pursuant to the Rural
Electrification Act of 1936, as amended (7 U.S.C. 901, ET. SEQ.), between
DAKOTA COOPERATIVE TELECOMMUNICATIONS, INC. (hereinafter called the
"Borrower"), a corporation existing under the laws of the State of South
Dakota, and UNITED STATES OF AMERICA (hereinafter called the "Government"),
acting through the Administrator of the Rural Electrification
Administration (hereinafter called the "Administrator").
WHEREAS, the Borrower and the Government have heretofore entered
into a certain telephone loan contract, amending telephone loan contract,
consolidating telephone loan contract, or consolidating and amending
telephone loan contract, dated as of September 5, 1952, (such agreement, as
it may have been amended, being hereinafter called the "Loan Contract");
and
WHEREAS, it is intended by this agreement to amend the Loan
Contract by increasing the amount of the loan therein provided for through
a loan from the Government to the Borrower of not to exceed $7,855,000
(hereinafter called the "Loan Increase"), and in certain other respects;
NOW, THEREFORE, for and in consideration of the mutual agreements
herein contained, the Borrower and the Government agree as follows:
SECTION 1. The definition of "Project" in the Loan Contract is
amended by changing to 4,144 the number of subscribers to be served thereby
(aside from those served by "Existing Facilities", if any, as defined in
the Loan Contract).
SECTION 2. Section 1.1 of the Loan Contract is amended by
(1) increasing the maximum amount which the Government shall lend and the
Borrower shall borrow, by the amount of the Loan Increase, and (2) adding
the following to the counties listed in said section:
NONE.
SECTION 3. The provisions set forth in Exhibit I hereto, and by
this reference made a part hereof, shall amend and supersede all provisions
of the Loan Contract inconsistent therewith. If the Loan Contract does not
include "System" as a defined term, any reference to "System" in this
agreement, including Exhibit I, shall be read as "Project". If the Loan
Contract does not include "Project" as a defined term, any reference to
"Project" in this agreement, including Exhibit I, shall be read as
"System".
T.L.C.A. - Additional REA Loan (Prior REA Loans) - 7/91.
SECTION 4. The date for the Forecast Period referred to in
section 9(A) of Exhibit I shall be December 31, 1994, and the ratio
referred to in (B) of said section 9 shall be 1.12.
SECTION 5 (A). Notwithstanding anything contained in this
agreement or the Loan Contract, the Government shall be under no obligation
to advance to the Borrower any portion of the Loan Increase, unless and
until the Borrower, in addition to complying with all other conditions of
the Loan Contract and this agreement which are precedent to the advance of
loan funds, shall have delivered to the Administrator, in form and
substance satisfactory to him, evidence that:
(1) the Borrower has authorized, executed, recorded and filed a
security instrument in form and substance satisfactory to the
Administrator; and
(2) Dakota Telecom, Inc. (hereinafter called "DTI"), has entered
into a billing and management agreement with the Borrower by which the
Borrower will provide DTI with the services of qualified service
technicians for the installation and maintenance of DTI's equipment,
and qualified management and office personnel to initiate service
order requests and to do all phases of billing, collections, and
accounting related to billing; which agreement is in form and
substance satisfactory to the Administrator.
SECTION 5 (B). The first advance of funds on account of the
Government loan increase shall be limited to:
(1) an amount to be determined by the Administrator for the cost
of preloan engineering services (as such term is defined at 7 C.F.R.
Part 1753.15); and
(2) an amount to be determined by the Administrator for the
cost, incurred subsequent to March 7, 1991, of construction which has
been approved by the Government.
SECTION 5 (C). The Government shall be under no obligation to
make any further advances on account of the Loan Increase unless and until
the Borrower has submitted evidence to the Administrator, in form and
substance satisfactory to him, that all indebtedness incurred for the
interim construction referred to in the above subsection (B) has been paid
in full and all associated liens, if any, have been duly discharged of
record.
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T.L.C.A. - Additional REA Loan (Prior REA Loans) - 7/91.
SECTION 6. The Notes, as defined in Exhibit I, which evidence
the debt created by the Loan Increase shall bear interest at the rate of
five (5.0) per centum per annum.
SECTION 7. This agreement may be simultaneously executed and
delivered in two or more counterparts, each of which so executed and
delivered shall be deemed to be an original, and all shall constitute but
one and the same instrument.
IN WITNESS WHEREOF the Borrower has caused this agreement to be
signed in its corporate name and its corporate seal to be hereunto affixed
and attested by its officers thereunto duly authorized and the Government
has caused this agreement to be duly executed all as of the day and year
first above written.
DAKOTA COOPERATIVE
TELECOMMUNICATIONS, INC.
(Seal) by /s/ Xxxx X. Xxxx
President
Attest: /s/ Xxxx Xxxxxxxx
Secretary
UNITED STATES OF AMERICA
by /s/ Xxxxxxx X. Xxxx
Acting Administrator
of
Rural Electrification Administration
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T.L.C.A. - REA Loans - 7/91
EXHIBIT I
1. DEFINITIONS.
Each term defined in the Loan Contract and in the agreement
("Underlying Agreement") of which this Exhibit I is a part shall have the
same meaning when used in this Exhibit I. As used in this Exhibit I, "this
Agreement" shall mean the Underlying Agreement together with this
Exhibit I; Outstanding Notes shall mean the mortgage note or notes payable
to the order of the Government, or to another lender and guaranteed by the
Government, executed and delivered by the Borrower pursuant to the Loan
Contract and which are presently outstanding.
2. NOTES.
The debt created by the Loan shall be evidenced by the
Outstanding Notes, by any notes to be executed by the Borrower payable to
the order of the Government, or to another lender and guaranteed by the
Government, on account of a loan made or guaranteed by the Government
pursuant to the Underlying Agreement, and by additional notes to be
executed by the Borrower payable to the order of the Government, or to
another lender and guaranteed by the Government (the Outstanding Notes,
other notes payable to the order of the Government, or to another lender
and guaranteed by the Government, and any notes executed and delivered to
refund, or in substitution for, such notes being hereinafter collectively
called the "Notes").
The Notes with respect to any portion of the Loan shall bear interest at
the rate specified in the loan agreement relating thereto. The Notes shall
otherwise be in form and substance satisfactory to the Administrator.
Interest shall accrue on each Note only in respect of amounts which shall
have been advanced to the Borrower from time to time on account of the
Loan, and which shall have been charged against such Note and shall remain
unpaid.
3. LOAN CLOSING.
The parties may from time to time determine by agreement the
amount required to enable the Borrower to perform its obligations
hereunder. If any reduction in the maximum amount of the Loan is thus
agreed upon, the Administrator shall cause such one or more of the Notes as
T.L.C.A. - REA Loans - 7/91
may be agreed upon to be appropriately credited with an amount equal to
such reduction, and the principal amount of such Note or Notes shall, for
the purposes of this Agreement, be deemed to be correspondingly reduced.
When the Administrator and the Borrower shall agree that no further funds
are required to be advanced on account of the Loan in order to enable the
Borrower to perform its obligations hereunder to the Government, the
Administrator shall execute and deliver to the Borrower a loan closing
certificate (hereinafter called the "loan closing certificate") which
shall, among other things, specify the date of the closing of the Loan and
the amount of the unpaid principal of and accrued interest on each of the
Notes as appropriate.
4. SECURITY.
The Notes shall be secured by a security instrument (hereinafter
called the "Mortgage"), in form and substance satisfactory to the
Administrator, which shall cover all the property of the Borrower now owned
or hereinafter acquired and which shall confirm, fully convey and preserve
or renew the lien of any mortgage, supplemental mortgage, chattel mortgage,
supplemental chattel mortgage, deed of trust or supplemental deed of trust
heretofore given by the Borrower to secure any notes heretofore executed
and delivered by the Borrower to the Government.
The Notes shall also be secured by such supplemental mortgages, deeds of
trust, supplemental deeds of trust, chattel mortgages or additional chattel
mortgages and by such other action on the part of the Borrower as may be
required to confirm, fully convey, preserve or renew the lien of the
Mortgage as security for the Notes and to effectuate the intention of these
presents that the Mortgage shall cover all property of the Borrower,
whether now owned or hereinafter acquired (any such supplemental mortgage,
supplemental deed of trust, supplemental or additional chattel mortgage,
and any such other action, as the case may be, being hereinafter called
a "supplemental mortgage").
5. REQUISITIONS AND ADVANCES.
Loan funds shall be advanced to the Borrower only if the Borrower
has (1) complied with section 2.1 of the Loan Contract (or such other
section thereof as is headed "Prerequisites to Advances") and all other
conditions precedent to the advance of Loan funds, and (2) furnished the
Administrator with a requisition and accompanying documents complying with
section 2.2 of the Loan Contract (or such other section thereof as is
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T.L.C.A. - REA Loans - 7/91
headed "Requisitions"). Within a reasonable time thereafter, the
Government as requested by the Borrower shall advance Loan funds to the
Borrower sufficient in the aggregate for such of the purposes in the
statement accompanying the requisition as the Administrator shall approve.
The Administrator may at any time, as a condition to making any advance on
account of the Loan, require compliance by the Borrower with any one or
more of the covenants, terms or conditions of the Loan Contract and any
amendment thereto to be performed by the Borrower. The Government shall be
under no obligation to make advances on account of a loan after the date of
the closing of such loan as specified in a loan closing certificate.
6. SPECIAL CONSTRUCTION ACCOUNT.
The Borrower shall promptly deposit all moneys advanced to it by
the Government hereunder in a special construction account (hereinafter
called "Special Construction Account") in a bank, institution or other
depository, which shall meet the requirements specified in section 4.3 of
the Loan Contract (or such other section thereof as is headed "Deposit of
Funds"), and shall hold such moneys in trust for the Government until
disbursed. Any Special Construction Account shall be designated by the
corporate name of the Borrower, followed by the words "Trustee, REA
Construction Fund Account".
All loan funds in any Special Construction Account shall be used solely for
the purposes specified in section 1.1 of the Loan Contract, as amended by
this Agreement and any subsequent amendment.
If the Borrower is required to obtain equity funds by the terms of the Loan
Contract, as amended by this Agreement or any subsequent amendment, the
Borrower shall also deposit all such equity funds in the Special
Construction Account on the same terms and conditions and for the same
purposes as funds advanced on account of the Loan.
Equity funds may be withdrawn from the Special Construction Account only
upon approval by the Administrator of requisitions therefor submitted by
the Borrower in accordance with the requirements applicable to the
requisitioning of loan funds, as set forth in section 2.2 of the Loan
Contract (or such other section of the Loan Contract as is headed
"Requisitions") except that to the extent equity funds (if required to be
obtained) are expressly required to be used for other purposes under the
Loan Contract, as amended by this Agreement and any subsequent amendment,
they shall be used for such other purposes.
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Until the aggregate amount of withdrawals from the Special Construction
Account shall equal or exceed the amount of the equity funds, they shall be
deemed to have been made from equity funds and not from funds advanced by
the Government to the Borrower.
The Borrower shall expend each advance on account of the Loan or equity
funds, if any, only for such of the purposes specified in the statement of
purposes accompanying the requisition for such advance or equity funds, if
any, as shall have been approved by the Administrator.
7. UNEXPENDED LOAN FUNDS.
Any funds advanced on account of the Loan remaining in any
Special Construction Account upon the closing of such loan shall be
forthwith remitted to the Government. A credit in the amount of such
remittance shall be allowed against such one or more of the Notes as shall
be agreed upon by the Administrator and the Borrower.
8. LOAN RECISSIONS.
The Borrower may request recission of all or part of the
unadvanced portion of the Loan at any time. The Administrator shall comply
with such request if the Borrower demonstrates, to the satisfaction of the
Administrator, that (1) the purposes intended to be financed by the
unadvanced Loan funds have been completed, (2) sufficient funds are
available from non-governmental sources to complete such purposes, or
(3) the Loan funds being rescinded are no longer required to extend or
improve telephone service in rural areas. The Administrator shall not
initiate recission of the advanced portion of the Loan unless all of the
purposes for which telephone loans have been made to the Borrower under the
Act have been accomplished with Loan funds provided under the Act. Loan
funds that have been rescinded are no longer available to the Borrower.
9. TARIFF.
(A) The Borrower shall, during the period ending on the date
specified in the Underlying Agreement (the "Forecast Period"), (1) use its
diligent best efforts to obtain all regulatory body approvals, necessary to
place in effect and thereafter to maintain in effect a tariff which
(i) provides for such grades of service as the Administrator shall approve,
(ii) does not include mileage or zone charges for the lowest grade of
service provided in each central office area, and (iii) is designed to
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produce net income or margins, before interest but after taxes in such
amounts that, when divided by the amount of interest requirements on all of
the Borrower's outstanding and proposed loans, produces a ratio of at least
1.0, and (2) place such tariff into effect as soon as permitted by
applicable laws and regulations. The Borrower shall use its diligent best
efforts to obtain all necessary regulatory body approvals of such revisions
of its tariff as may be necessary from time to time to satisfy the
requirements of this provision.
(B) The Borrower shall continue to comply with the requirements
of this provision after the Forecast Period except that the required ratio
shall be changed to that specified in the Underlying Agreement.
(C) The Borrower shall provide the Administrator with evidence,
in form and substance satisfactory to him, that the Borrower is in full
compliance with this section whenever the Administrator shall request.
10. EVIDENCE OF TARIFF.
The Borrower shall deliver, when requested by, and in form and
substance satisfactory to, the Administrator, evidence that the Borrower
has duly adopted a tariff which (1) will provide for such grades of service
as the Administrator may approve, (2) does not include mileage or zone
charges for the lowest grade of service provided in each central office
area, and (3) is designed to produce net income or margins, before interest
but after taxes, at least equal to one hundred percent of the interest
requirements on all of the Borrower's outstanding and proposed loans.
11. CHANGES IN CERTAIN SECTIONS OF THE LOAN CONTRACT.
(A) Section 3.3 of the Loan Contract is amended by inserting the
words "for installation of station equipment" following the words "outside
plant and buildings" in said section.
(B) If the words "net income" appear in section 4.1 of the Loan
Contract, then the words "or net margins" shall be inserted immediately
thereafter.
(C) Section 4.2(A)(c) of the Loan Contract is amended by
inserting the words "for installation of station equipment" following the
words "outside plant and buildings" in said section.
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(D) Section 4.2(A) of the Loan Contract is amended by deleting
therefrom subsection (f) relating to contracts for the joint use of
facilities of other companies and relettering the remaining subsections
accordingly.
12. PARTICULAR COVENANTS.
(A) SUBMISSION OF CONTRACTS WITH THIRD PARTIES. The Borrower
shall submit, when requested by the Administrator and subject to the
Administrator's approval:
(1) a contract or contracts for the purchase, lease, or other
acquisition of land for use in connection with the construction or
operation of the System; and
(2) a contract or contracts for extended area service to be
provided by or for other companies, as may be necessary for the
proper operation of the System;
(B) DEPOSIT OF FUNDS. The Borrower shall not deposit or allow
to remain on deposit any of its funds, regardless of the source thereof, in
any bank, institution or other depository which is not fully insured by the
Federal government. The Borrower shall inform the Administrator of the
names of the banks, institutions or other depositories which it has
selected for deposit of its funds.
(C) EASEMENTS AND PERMITS - EQUITY FUNDS. If the Borrower is
required to obtain equity funds by the terms of the Loan Contract, as
amended by this Agreement or any subsequent amendment, none of such funds
shall be used by the Borrower to pay for easements obtained from landowners,
or for releases of lien affecting easements.
(D) AREA COVERAGE. The Borrower shall furnish adequate
telephone service to the widest practicable number of rural users in the
Borrower's telephone service area, as such area is shown on the map which
is a part of the Borrower's application for the Loan, and which map, as
revised by agreement between the Borrower and the Administrator, is
incorporated herein by reference thereto. In the performance of this
obligation, the Borrower shall (except to the extent that the
Administrator, upon request of the Borrower, may in writing authorize
deviations therefrom):
(1) furnish service to all applicants for service included
in the Project, without payment by such applicants of any extra charge
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as a contribution to the cost of construction of facilities to provide
such service; and
(2) take all action that may be required to enable it to
extend service, with the use of such funds as may from time to time be
available to it, either from surplus earnings, increased equity capital,
additional loans made by lenders other than the Government or otherwise
as the Borrower may elect, and without payment to the Borrower of any
extra charge as a contribution to construction of facilities to provide
such service, to every other unserved rural applicant for service in
its telephone service area if the cost of constructing the required
line extension for such applicant will not exceed seven times the
estimated annual local service revenues from such applicant. Such
service shall be furnished pursuant to terms and conditions set forth
in the Borrower's tariff, as duly filed with or approved by regulatory
bodies having jurisdiction in the premises, or in the absence of any
such regulatory body, as adopted by the Borrower, provided that the
Borrower shall not file with or submit for approval of appropriate
regulatory bodies or adopt any proposed tariff, or continue in effect
any existing tariff not required to be continued by any regulatory
body, unless under such tariff the Borrower will be obligated to serve
unserved rural applicants as provided herein.
(E) MORTGAGE COVENANTS. The Borrower shall perform all
covenants by it to be performed under the Mortgage and any supplemental
mortgage.
(F) REPRESENTATIONS AND WARRANTIES. The Borrower confirms as of
the date of this Agreement the representations and warranties set forth in
section 4.7 of the Loan Contract (or for such other section thereof as is
headed "Representations and Warranties"), and represents and warrants that
every statement contained in this Agreement and in every other document,
statement, certificate and opinion submitted to the Government by it or in
its behalf is true and correct.
(G) EQUAL OPPORTUNITY CLAUSE. The Borrower hereby agrees that
it will incorporate or cause to be incorporated into any contract for
construction work, or modification thereof, as defined in Executive Order
11246 of September 24, 1965 or in the rules and regulations of the Secretary
of Labor, which is paid for in whole or in part with funds obtained from the
Government or borrowed on the credit of the Federal Government pursuant to a
grant, contract, loan, insurance or guarantee, or undertaken pursuant to any
program involving such grant, contract, loan, insurance or guarantee, the
following equal opportunity clause:
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During the performance of this contract, the Contractor agrees as
follows:
(1) The Contractor will not discriminate against any
employee or applicant for employment because of race, color, religion,
sex or national origin. The Contractor will take affirmative action
to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex
or national origin. Such action shall include, but not be limited to
the following: employment, upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates
of pay or other forms of compensation; and selection for training,
including apprenticeship. The Contractor agrees to post in
conspicuous places, available to employees and applicants for
employment, notices to be provided setting forth the provisions of
this nondiscrimination clause.
(2) The Contractor will, in all solicitations or
advertisements for employees placed by or on behalf of the Contractor,
state that all qualified applicants will receive consideration for
employment without regard to race, color, religion, sex or national
origin.
(3) The Contractor will send to each labor union or
representative of workers with which he has a collective bargaining
agreement or other contract or understanding, a notice to be provided
advising the said labor union or workers' representative of the
Contractor's commitments under this section, and shall post copies of
the notice in conspicuous places available to employees and applicants
for employment.
(4) The Contractor will comply with all provisions of
Executive Order 11246 of September 24, 1965, and of the rules,
regulations and relevant orders of the Secretary of Labor.
(5) The Contractor will furnish all information and reports
required by Executive Order 11246 of September 24, 1965, and by the
rules, regulations and orders of the Secretary of Labor, or pursuant
thereto, and will permit access to his books, records, and accounts by
the administering agency and the Secretary of Labor for purposes of
investigation to ascertain compliance with such rules, regulations and
orders.
(6) In the event of the Contractor's noncompliance with the
nondiscrimination clauses of this contract or with any of the said
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rules, regulations or orders, this contract may be canceled,
terminated or suspended in whole or in part and the Contractor may be
declared ineligible for further Government contracts or federally
assisted construction contracts in accordance with procedures
authorized in Executive Order 11246 of September 24, 1965, and such
other sanctions may be imposed and remedies invoked as provided in
said Executive Order 11246 of September 24, 1965, or by rule,
regulation or order of the Secretary of Labor, or as otherwise provided
by law.
(7) The Contractor will include the portion of the sentence
immediately preceding paragraph (1) and the provisions of paragraphs
(1) through (7) in every subcontract or purchase order unless exempted
by rules, regulations or orders of the Secretary of Labor issued
pursuant to section 204 of Executive Order 11246 of September 24, 1965,
so that such provisions will be binding upon each subcontractor or
vendor. The Contractor will take such action with respect to any
subcontract or purchase order as the administering agency may direct as
a means of enforcing such provisions, including sanctions for
noncompliance: Provided, however, that in the event a contractor
becomes involved in, or is threatened with, litigation with a
subcontractor or vendor as a result of such direction by the
administering agency, the Contractor may request the United States to
enter into such litigation to protect the interests of the United
States.
The Borrower further agrees that it will be bound by the above equal
opportunity clause with respect to its own employment practices when it
participates in federally assisted construction work: Provided, that if
the Borrower so participating is a State or local government, the above
equal opportunity clause is not applicable to any agency, instrumentality
or subdivision of such government which does not participate in work on or
under the contract.
The Borrower agrees that it will assist and cooperate actively with the
administering agency and the Secretary of Labor in obtaining the compliance
of contractors and subcontractors with the equal opportunity clause and the
rules, regulations and relevant orders of the Secretary of Labor, that it
will furnish the administering agency and the Secretary of Labor such
information as they may require for the supervision of such compliance, and
that it will otherwise assist the administering agency in the discharge of
the administering agency's primary responsibility for securing compliance.
The Borrower further agrees that it will refrain from entering into any
contract or contract modification subject to Executive Order 11246 of
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September 24, 1965, with a contractor debarred from, or who has not
demonstrated eligibility for, Government contracts and federally assisted
construction contracts pursuant to Executive Order 11246 of September 24,
1965 and will carry out such sanctions and penalties for violation of the
equal opportunity clause as may be imposed upon contractors and
subcontractors by the administering agency or the Secretary of Labor
pursuant to Part II, Subpart D of Executive Order 11246 of September 24,
1965.
In addition, the Borrower agrees that if it fails or refuses to comply with
these undertakings, the administering agency may take any or all of the
following actions: cancel, terminate or suspend in whole or in part this
contract; refrain from extending any further assistance to the Borrower
under the program with respect to which the failure or refusal occurred
until satisfactory assurance of further compliance has been received from
such Borrower; and refer the case to the Department of Justice for
appropriate legal proceedings.
(H) COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS. The Borrower
shall, with respect to all facilities which may be part of the System,
comply with all applicable water and air pollution control standards and
other environmental requirements imposed by Federal or state statutes,
regulations, licenses or permits.
(I) HISTORIC PRESERVATION. The Borrower shall not use any
portion of the Loan, without the prior written approval of the
Administrator, for any project, activity or program that can result in
changes in the character or use of any prehistoric or historic district,
site, building, structure or object included in, or eligible for inclusion
in, the National Register of Historic Places maintained by the Secretary of
the Interior pursuant to the National Historic Preservation Act, as amended.
(J) HISTORIC LANDMARKS. The Borrower shall not use any portion
of the Loan, without the prior written approval of the Administrator, for
any project, activity or program that may directly and adversely affect any
property that the Secretary of the Interior has designated a National
Historic Landmark pursuant to the National Historic Preservation Act, as
amended.
(K) ELECTRONIC FUNDS TRANSFER. Except as otherwise prescribed
by the Administrator, the Borrower shall make payment of all principal of
and interest on the Notes which payment in the aggregate exceeds $10,000,
by Electronic Funds Transfer utilizing the Fedwire Deposit System through
the United States Department of the Treasury account (021030004) at the
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Federal Reserve Bank of New York, all in the manner prescribed by REA
Bulletin 20-9:320-12.
(L) UNIFORM RELOCATION AND ACQUISITION ACT. The Borrower hereby
covenants that it shall, in acquiring real property, comply with the
provisions of the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (the "Uniform Act"), as amended by the
Uniform Relocation Act Amendments of 1987, and 49 C.F.R. Part 24,
referenced by 7 C.F.R. Part 21, to the extent the Uniform Act is applicable
to such acquisition.
(M) FLOOD INSURANCE. The Borrower shall not, without the prior
written approval of the Administrator, use any portion of the Loan to
finance, in whole or in part, the acquisition, construction, repair or
improvement of any building or any machinery, equipment, fixtures or
furnishings contained or to be contained therein in any area identified by
the Director of the Federal Emergency Management Agency (the "Director of
FEMA") pursuant to the Flood Disaster Protection Act of 1973, as amended
(the "Flood Insurance Act") as an area having special flood hazards unless
and until the Borrower has submitted evidence satisfactory to the
Administrator, or the Administrator has otherwise determined: (i) the
Director of FEMA has made flood insurance available, pursuant to the Flood
Insurance Act, in the area in which the acquisition, construction, repair
or improvement is proposed to occur; and (ii) the Borrower has obtained
flood insurance coverage with respect to such building, machinery,
equipment, fixtures or furnishings as may then be required pursuant to the
Flood Insurance Act.
(N) NONDUPLICATION OF FACILITIES. If the Borrower provides
telephone service in any state in which there is no state regulatory body
with authority to regulate telephone service and to require certificates of
convenience and necessity to the Borrower, the Borrower shall not use any
portion of the Loan for the construction of telephone facilities to furnish
or improve service to persons located in such state receiving the telephone
service from any other telephone company at the time the Borrower proposes
to furnish or improve service to such persons, except that the Borrower may
provide or improve service to persons receiving service through facilities
acquired or to be acquired by the Borrower, and except to the extent the
Administrator, on the basis of evidence submitted to him by the Borrower,
shall have determined that service by the Borrower to such persons will not
result in duplication of lines, facilities or systems providing reasonably
adequate service.
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(O) DELETION OF PROVISIONS RELATING TO THE LEVEL OF GENERAL
FUNDS. If the Loan Contract contains provisions in section 2.8, or
elsewhere, relating to the level of the Borrower's general funds, such
provisions are deleted.
(P) DELETION OF PROVISIONS RELATING TO CONSTRUCTION SCHEDULES.
If the Loan Contract contains provisions in section 2.9, or elsewhere,
relating to the Borrower's construction schedules, such provisions are
deleted.
13. RECEIPT OF CERTAIN CRIMINAL SECTIONS OF U.S. CODE.
The Borrower and each of the officers signing this Agreement
respectively acknowledge that they are familiar with the provisions of
sections 201, 286, 287, 641, 666, 1001, 1361 and 1366 of Xxxxx 00, Xxxxxx
Xxxxxx Code, Crimes and Criminal Procedure.
14. DURATION OF AGREEMENT.
Except where otherwise required by the context, all provisions of
the Loan Contract, as amended by this Agreement and any subsequent
amendment, shall continue in full force and effect until all amounts owing
by the Borrower to the Government on account of the Loan shall have been
paid and upon such payment the Loan Contract, as so amended, shall be
deemed to have been fully performed.
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15. SPECIAL PROVISIONS RELATING TO THE BORROWER.
The following special provisions, in addition to all other
provisions of this Exhibit I, shall apply to the Borrower:
(A) COUNTERSIGNATURE. Subject to the provisions of subparagraph
(B) below and section 5.2(c) of the Loan Contract (or subsection (c) of
such other section of the Loan Contract as is headed "Remedies upon
Default"), moneys in any Special Construction Account may be withdrawn only
upon checks, drafts or orders signed on behalf of the Borrower and
countersigned by an executive officer thereof.
(B) SUPERVISOR: APPOINTMENT AND POWERS. If the construction of
the Project or any section or sections thereof, shall not proceed in
accordance with the terms of the Loan Contract, as amended by this
Agreement or any subsequent amendment to the Loan Contract, or if default
shall be made in the payment of any installment of or on account of
interest on or principal of any Note when and as the same shall be required
to be made and such default shall continue for thirty (30) days, the
Administrator may appoint a supervisor (hereinafter called the
"Supervisor") for the System, or such section or sections thereof as the
Administrator shall designate, as the representative of the Government and
notify the Borrower of such appointment and the duration thereof. The
Supervisor shall take such steps as he deems necessary to assure
construction or operation of the Project in accordance with the terms
hereof, or such portion or portions thereof as may be designated by the
Administrator, or to assure performance of any other obligations of the
Borrower pursuant to the provisions of the Loan Contract, as amended by
this Agreement and any subsequent amendment, or of the Notes, and shall
have power to operate the System and other property of the Borrower
necessary to the operation of the System, and do all things reasonably
incident to the exercise of the powers herein granted, including, without
limitation, directing the conservation of any funds of the Borrower, the
collection of all debts due it, the payment of all expenses of the Borrower
from any of its funds, the termination of the employment of such employees
of the Borrower as he shall determine upon and the employment of such
persons, on such terms and conditions as he may designate, as he shall
deem necessary to assist him in carrying out his functions. The salaries,
fees, disbursements and the expenses of the Supervisor and of any employee
appointed by him shall be paid by the Borrower; provided, however, that the
salaries, fees, disbursements and expenses of any Supervisor who shall be
an employee of the Government, and of any assistants who shall be employees
of the Government, shall not be payable by the Borrower unless and to the
extent that the Administrator, upon written notification to the Borrower,
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(Cooperatives, etc.)
shall so require. So long as the appointment of the Supervisor shall be in
effect, all checks, drafts and orders drawn on any bank, institution or
other depository account maintained by the Borrower shall be countersigned
by the Supervisor, except that, if the proper officers or employees of the
Borrower shall refuse to sign any such check, draft or order, the Supervisor
shall have full power and authority to sign such check, draft or order for
the Borrower without the requirement of any other signature thereon, if such
check, draft or order is required to carry out the obligations of the
Borrower hereunder. The Borrower hereby constitutes the Administrator its
agent for the purpose of notifying any bank, institution or other depository
in which any account of the Borrower shall be maintained of the appointment
of a Supervisor and of the provisions hereunder with respect thereto, and
agrees that such notice shall include a direction to any such bank,
institution or other depository with respect to the signing or
countersigning of the checks, drafts or orders drawn on any such account as
in this section provided. The Borrower shall comply with all reasonable
instructions of the Supervisor incident to carrying out the obligations of
the Borrower hereunder or the performance of the functions of the
Supervisor.
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