Exhibit 10.43
THE PAYMENT OF THIS NOTE IS SUBORDINATE TO THE PAYMENT OF ALL SENIOR DEBT AS
DEFINED IN THAT CERTAIN SUBORDINATION AGREEMENT, DATED AS OF MARCH 27, 1997
AMONG SCANA COMMUNICATIONS, INC., ITC HOLDING COMPANY, INC. AND FIRST UNION BANK
OF NORTH CAROLINA, AS ADMINISTRATIVE AGENT FOR THE BENEFIT OF ITSELF, COBANK,
ACB, AS DOCUMENTATION AGENT, AND THE LENDERS IDENTIFIED THEREIN.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER THE SECURITIES LAWS OF ANY STATE. THIS NOTE MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, OR HYPOTHECATED WITHOUT THE PRIOR WRITTEN CONSENT OF THE
MAKER.
PROMISSORY NOTE
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$9,964,091.00 March 27, 1997
FOR VALUE RECEIVED, ITC Holding Company, Inc., a Delaware corporation
("ITC" or the "Maker"), promises to pay to the order of SCANA Communications,
Inc., a South Carolina corporation, or permitted assigns ("SCANA" or the
"Holder"), at 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other
place as the Holder of this Note may from time to time designate, the principal
amount of NINE MILLION, NINE HUNDRED SIXTY-FOUR THOUSAND, NINETY-ONE DOLLARS
($9,964,091.00), together with interest on the unpaid principal amount hereof
(computed on the basis of a 360-day year and applied to the actual number of
days elapsed in each interest calculation period) at the rate of eleven percent
(11%) per annum. Payments of principal shall be made semiannually commencing
September 30, 1997, in equal semiannual installments of Nine Hundred Ninety-six
Thousand, Four Hundred Nine Dollars and Ten Cents ($996,409.10), together with
interest accrued thereon (payable in arrears), with a final installment thereof
being due on March 31, 2002, when the full remaining balance of principal,
together with interest accrued thereon, shall be payable.
Interest and principal shall be payable in lawful money of the United
States of America. Any payment on this Note coming due on a Saturday, a Sunday,
or a day that is a legal holiday in the place at which a payment is to be made
hereunder shall be made on the next succeeding day that is a business day in
such place, and any such extension of the time of payment shall be included in
the computation of interest hereunder.
The unpaid principal amount of this Note may be prepaid in whole or in
part at any time or times without premium or penalty. Each prepayment shall be
applied first to the payment of all interest and other amounts accrued hereunder
on the date of any such prepayment, and the balance of any such prepayment shall
be applied to installments of principal payable hereunder in the inverse order
of maturity. No prepayment shall entitle any person to be subrogated to the
rights of the Holder unless and until this Note has been paid in full.
This Note evidences partial payment of the purchase price payable
under a Sale and Purchase Agreement dated as of March 11, 1997 among SCANA
Corporation ("SCANA Corporation"), SCANA Communications, Inc., and ITC (the
"Sale and Purchase Agreement"). This Note may not be sold, assigned,
transferred, pledged, or hypothecated, except that (i) SCANA may assign this
Note to SCANA Corporation or any wholly owned subsidiary of SCANA Corporation
upon written notice to ITC and (ii) with SCANA's prior written consent, which
shall not be unreasonably withheld or delayed, ITC may assign all of its
obligations and liabilities under this Note to any entity in which, at the time
of such assignment, ITC owns, directly or indirectly, a majority of the
outstanding equity interests upon execution of an Assignment and Assumption
Agreement in the form of Exhibit A attached hereto and delivery of a copy
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thereof to the Holder, whereupon ITC shall have no further obligation or
liability whatsoever hereunder and the assignee specified in such Assignment and
Assumption Agreement, as so executed, shall be the Maker for all purposes of
this Note.
This Note is subject to the terms of a Subordination Agreement, dated
March 27, 1997, among ITC, SCANA and First Union National Bank of North
Carolina, as Administrative Agent; provided, however, that the terms of such
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Subordination Agreement shall not apply to this Note, and such Subordination
Agreement shall be of no further force and effect, after the obligations and
liabilities under this Note have been assigned by ITC to a person which is not a
Borrower (as defined in the Credit Agreement dated as of January 29, 1996 by and
among ITC and certain of its subsidiaries, the Lenders party thereto and First
Union National Bank of North Carolina) in the manner set forth in the
immediately preceding paragraph.
The occurrence of any one or more of the following shall
constitute an event of default ("Event of Default") hereunder:
(1) Failure to pay, when due, the principal, any interest, or any other
sum payable hereunder, and continuance of such failure for ten
business days after written notice of such failure to pay shall have
been received by Maker from Holder;
(2) Failure of the Maker generally to pay its debts as such debts become
due, the admission by the Maker in writing of its inability to pay its
debts as such debts become due, or the making by the Maker of any
general assignment for the benefit of creditors;
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(3) Commencement by the Maker of any case, proceeding, or other action
seeking reorganization, arrangement, adjustment, liquidation,
dissolution, or composition of it or its debts under any law relating
to bankruptcy, insolvency, or reorganization, or relief of debtors, or
seeking appointment of a receiver, trustee, custodian, or other
similar official for it or for all or any substantial part of its
property;
(4) Commencement of any case, proceeding, or other action against the
Maker seeking to have any order for relief entered against such Maker
as debtor, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution, or composition of such Maker or its debts
under any law relating to bankruptcy, insolvency, reorganization, or
relief of debtors, or seeking appointment of a receiver, trustee,
custodian, or other similar official for such Maker or for all or any
substantial part of the property of the Maker, and (i) the Maker
shall, by any act or omission, indicate its consent to, approval of,
or acquiescence in such case, proceeding, or action, or (ii) such
case, proceeding, or action results in the entry of an order for
relief which is not fully stayed within seven business days after the
entry thereof, or (iii) such case, proceeding, or action remains
undismissed for a period of fifteen days or more;
(5) Any representation or warranty of Maker made in the Sale and Purchase
Agreement shall prove to have been incorrect or misleading or breached
in any material respect on or as of any date on which it was made; or
(6) Maker shall at any time fail to observe, satisfy or perform in any
material respect any of its material covenants or agreements contained
in the Sale and Purchase Agreement and such default shall continue
unremedied for a period of 30 days after written notice of the
existence of such fault shall have been received by Maker from Holder.
Upon the occurrence of any such Event of Default hereunder, the
entire principal amount hereof, and all accrued and unpaid interest thereon, at
the option of the Holder and upon written notice to the Maker may be accelerated
and become immediately due and payable, and in addition thereto, and not in
substitution therefor, the Holder shall be entitled to exercise any one or more
of the rights and remedies provided by applicable law. Failure to exercise said
option or to pursue such other remedies shall not constitute a waiver of such
option or such other remedies or of the right to exercise any of the same in the
event of any subsequent Event of Default hereunder.
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The Maker promises to pay all reasonable costs and expenses (including
without limitation reasonable attorneys' fees and disbursements) incurred in
connection with the collection hereof.
No single or partial exercise by the Holder of any right hereunder
shall preclude any other or further exercise thereof or the exercise of any
other rights. No delay or omission on the part of the Holder in exercising any
right hereunder shall operate as a waiver of such right or of any other right
under this Note.
This Note and all agreements between the Maker and the Holder relating
hereto are hereby expressly limited so that in no contingency or event
whatsoever, whether by reason of acceleration or otherwise, shall the amount
paid or agreed to be paid to the Holder for the use, forbearance, or detention
of money hereunder exceed the maximum amount permissible under applicable law.
If from any circumstance whatsoever fulfillment of any provision hereof, at the
time performance of such provision shall be due, shall involve transcending the
limit of validity prescribed by law, then, ipso facto, the obligation to be
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fulfilled shall be reduced to the limit of such validity, and if from any such
circumstance the Holder shall ever receive interest, or anything that might be
deemed interest under applicable law, which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied to the
reduction of the principal amount owing on account of this Note and not to the
payment of interest, or if such excessive interest exceeds the unpaid balance of
principal of this Note, such excess shall be refunded to the Maker. All sums
paid or agreed to be paid to the Holder for the use, forbearance or detention of
the indebtedness of the Maker to the Holder shall, to the extent permitted by
applicable law, be deemed to be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full so that the
actual rate of interest on account of such indebtedness is uniform throughout
the term thereof. The terms and provisions of this paragraph shall control and
supersede every other provision of this Note and all other agreements between
the Maker and the Holder.
Whenever used herein, the words "Maker" and "Holder" shall be deemed
to include their respective permitted successors and assigns.
This Note shall be governed by and construed under and in accordance
with the laws of South Carolina (but not including the choice of law rules
thereof).
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IN WITNESS WHEREOF, the undersigned has duly executed this Note, or
has caused this Note to be duly executed on its behalf, as of the day and year
first hereinabove set forth.
ITC HOLDING COMPANY, INC.
By: /s/Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President
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