REA PROJECT DESIGNATION:
OKLAHOMA 545-A PARADISE
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TELEPHONE LOAN CONTRACT
DATED AS OF NOVEMBER 7, 1958
BETWEEN
XXXXXX TELEPHONE COMPANY, INC.
AND
UNITED STATES OF AMERICA
DEPARTMENT OF AGRICULTURE
RURAL ELECTRIFICATION ADMINISTRATION
AGREEMENT, made as of November 7, 1958, pursuant to the Rural
Electrification Act of 1936, as amended (7 U.S.C. 901 et seq.) (hereinafter
called the "Act"), between XXXXXX TELEPHONE COMPANY, INC. (hereinafter called
the "Borrower"), a corporation existing under the laws of the State of
Oklahoma, 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 owns and operates telephone facilities
(hereinafter called the "Existing Facilities"), serving approximately 215
subscribers located in the Counties of Lincoln, Logan, Oklahoma and Xxxxx, in
the State of Oklahoma; and
WHEREAS, it is intended that the Government shall lend and the Borrower
shall borrow an amount not in excess of $215,000 to finance the improvement
and operation of the Existing Facilities and the construction and operation
of additional telephone facilities to serve approximately 175 subscribers in
addition to those now being served (the improvements and additional telephone
facilities so financed being hereinafter collectively called the "Project",
and the Existing Facilities, as improved and added to by the Project or
otherwise, being hereinafter called the "System"); and
WHEREAS, it is contemplated that the amount of such loan may be
increased from time to time for purposes permitted by the provisions of the
Act, as from time to time amended, and upon the terms and conditions
contained in this agreement, as from time to time amended (such loan and any
such increases in the amount thereof being hereinafter collectively called
the "Loan"); and
WHEREAS, the Administrator, in determining to enter into this agreement,
has relied upon the representation of the Borrower to him that it is willing
to furnish adequate telephone service to the widest practicable number of
persons in rural areas whom it is possible to serve, and the Borrower has
agreed to do so as hereinafter provided;
NOW, THEREFORE, for and in consideration of the mutual agreements herein
contained, the Borrower and the Government agree as follows:
ARTICLE I
LOAN, NOTES AND SECURITY
SECTION 1.1 AMOUNT AND PURPOSE. For the purpose of furnishing or
improving telephone service in rural areas, the Government shall lend and the
Borrower shall borrow an amount not in excess of $215,000, to finance
pursuant to the provisions of the Act, the construction of the Project and
the operation of the System, the Project to be located in the Counties of
Lincoln, Logan, Oklahoma and Xxxxx, and in counties contiguous thereto, all
in the State of Oklahoma.
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SECTION 1.2 NOTES. The debt created by the Loan shall be evidenced by
notes (such notes and any notes executed and delivered to refund, or in
substitution for, such notes being hereinafter collectively called the
"Notes") to be executed by the Borrower, payable to the order of the
Government. The Notes shall bear interest at rates prescribed by applicable
Federal statutes, and shall otherwise be in form and substance satisfactory
to the Administrator. Interest shall accrue on the principal of 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 charged against such Note.
SECTION 1.3 LOAN CLOSING. The Administrator and the Borrower 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 herein provided for is thus agreed upon, the
Administrator shall cause such one or more of the Notes as 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 by the Government hereunder in order to enable the Borrower to
perform its obligations hereunder, 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 the
accrued and unpaid interest on each of the Notes.
SECTION 1.4 SECURITY. The Notes shall be secured by a mortgage made by
the Borrower to the Government, in form and substance satisfactory to the
Administrator and covering all the property of the Borrower now owned or
hereafter acquired (such mortgage being hereinafter called the "Mortgage"),
as supplemented by such supplemental mortgages made by the Borrower to the
Government by such chattel mortgages, and supplemental or additional chattel
mortgages, made by the Borrower to the Government, 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
effectuate the intention of these presents that the Mortgage shall cover all
property of the Mortgagor, whether nor owned or hereafter acquired (any such
supplemental mortgage, chattel mortgage, supplemental or additional chattel
mortgage, and any such other action, as the case may be, being hereinafter
called a "supplemental mortgage").
ARTICLE II
ADVANCES AND DISPOSITION OF FUNDS
SECTION 2.1 PREREQUISITES TO ADVANCES. The Government shall be under
no obligation to advance any funds on account of the Loan from time to time
unless and until the Borrower shall have delivered to the Administrator, in
form and substance satisfactory to him, the following:
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(a) one or more of the Notes, the Mortgage, and such supplemental
mortgages as may be required pursuant to section 1.4 hereof, all duly
executed and accompanied by proof of the due recordation and filing of the
Mortgage and any supplemental mortgage in such places as may be required by
law in order fully to perfect and maintain the lien of the Mortgage and any
supplemental mortgage;
(b) evidence of appropriate corporate action authorizing the
execution and delivery of the Notes, the Mortgage, and any supplemental
mortgage and amendment to this agreement;
(c) evidence that the Borrower has duly registered when and where
required by law with all State, Federal and other public authorities and
regulatory bodies and obtained therefrom all authorizations, certificates,
permits, and approvals to the extent required by law in order to enable the
Borrower to enter into this agreement, to execute and deliver the Notes,
the Mortgage, and any supplemental mortgage and amendment to this
agreement, to construct and operate the System, and to perform all other
acts to be performed by it hereunder;
(d) evidence that the Borrower has duly adopted a tariff which does
not include mileage or zone charges for rural multi-party service and which
will provide revenues sufficient to meet all necessary expenditures,
including all interest and principal payments under the Notes;
(e) evidence that there has been no substantial adverse change in
the Borrower's financial condition or plant since the date of the last
financial statement submitted by the Borrower to the Administrator;
(f) evidence that the Borrower is not involved in or threatened with
any litigation which may substantially and adversely affect the Borrower's
financial condition and that there are no liens or clouds on title except
the lien of the Mortgage and any supplemental mortgage, on any of its
property;
(g) evidence that the Borrower has duly adopted articles of
incorporation and bylaws in form and substance adequate to enable the
Borrower to perform all acts to be performed by it hereunder;
(h) such opinions as the Administrator may require, by counsel (who
may be a member of the Borrower's legal staff, if any, or any attorney
regularly employed by the Borrower) selected by the Borrower and approved
by the Administrator;
(i) evidence that the Borrower has good and marketable title to the
Existing Facilities, and holds such franchises, permits, leases, easements,
rights, privileges, licenses or right-of-way instruments, reasonably
adequate in form and substance, as may be required
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by law for the continued maintenance and operation of the Existing
Facilities, and every part thereof, in their present location;
(j) evidence of the payment by the Borrower of outstanding
indebtedness in the approximate amount of $3,300, owed to Xxxxx County Bank
of Perkins, Oklahoma, and the discharge of all liens, if any, in connection
therewith; and
(k) evidence that the Borrower has obtained signed applications for
service from prospective subscribers, and confirmation of the desire of
existing subscribers to continue service at proposed rates which are
satisfactory to the Administrator, the total number of such prospective and
existing subscribers being at least 70 percent of the five year loan
subscribers in each proposed exchange area.
SECTION 2.2 REQUISITIONS. The Borrower shall from time to time
submit to the Administrator requisitions, on forms furnished by the
Administrator, requesting the Government to make advances on account of the
Loan. Each requisition shall be accompanied by the following:
(a) evidence that the construction of the Project effected to the
date of the requisition complies with the provisions hereof;
(b) a certificate signed by a duly authorized officer or employee of
the Borrower, which shall specify all payments not previously accounted for
theretofore made by the Borrower from funds in the Special Construction
Account provided for in section 2.4 hereof;
(c) a statement, on a form to be furnished by the Administrator,
setting forth the purposes for which it is intended the requested advance
will be used by the Borrower; and
(d) such additional information, opinions, documents and proofs
relating to the construction of the Project, the expenditure of loan funds,
and the Government's security for the Loan, as may reasonably be requested
by the Administrator.
SECTION 2.3 ADVANCES. The Government, upon receipt of a
requisition and accompanying documents complying with the provisions of
section 2.2 hereof shall, within a reasonable time thereafter, if the
Borrower has complied with the provisions of section 2.1 hereof and all other
conditions precedent to the advance of funds on account of the Loan, make an
advance to the Borrower sufficient for such of the purposes specified in the
statement of purposes 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 and conditions of this agreement to be
performed by the Borrower. Advances made by the Government pursuant to this
section 2.3 shall be charged by the Government against any one or more of the
Notes in such manner and in such amounts as the Administrator and the
Borrower shall agree. The Government shall be under no
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obligation to make advances on account of the Loan after the date of the
closing of the Loan specified in the loan closing certificate.
SECTION 2.4 SPECIAL CONSTRUCTION ACCOUNT. The Borrower shall hold
all moneys advanced to it by the Government hereunder in trust for the
Government and shall deposit such moneys promptly after the receipt thereof
in a bank or banks which shall meet the requirements specified in section 4.3
hereof. Any account (herein called "Special Construction Account") in which
any such moneys shall be deposited shall be designated by the corporate name
of the Borrower following by the words "Trustee, REA Construction Fund
Account." All loans funds in any Special Construction Account shall be used
solely for the purposes specified in section 1.1 hereof.
The Borrower shall expend each advance on account of the Loan or
equity funds only for such of the purposes specified in the statement of
purposes accompanying the requisition for such advance as shall have been
approved by the Administrator.
SECTION 2.5 UNEXPECTED LOAN FUNDS. Any funds advanced on account
of the Loan remaining unexpended in any Special Construction Account upon the
closing of the Loan shall be forthwith remitted by the Borrower to the
Government and a credit in respect thereof allowed against such Note or Notes
as shall be agreed upon by the Administrator and the Borrower.
SECTION 2.6 COMPLIANCE WITH RESTRICTIONS ON USE OF MATERIALS. No
advances will be made on account of the Loan for the construction of any part
of the Project with respect to which the Borrower shall have failed to submit
to the Government satisfactory evidence that the Borrower has obtained from
the appropriate agency or agencies of the Government all necessary orders or
approvals with respect to the use of the materials required for the
construction of such part of the Project. No construction shall be
undertaken except in accordance with authorizations or regulations of any
such agency or agencies having jurisdiction in the premises.
SECTION 2.7 TERMINATION OF ADVANCES.
(a) If, within one year from the date hereof, the Borrower has not
complied with all conditions precedent to the first advance of funds on
account of the Loan, including the submission of a requisition therefor
in compliance with section 2.2 hereof, the Administrator may, at any time
or times thereafter, request the Borrower in writing to advise the
Administrator whether the Borrower will be able to comply with such
conditions and, if so, to submit evidence to the Administrator, within
thirty days, of the Borrower's need for additional time for compliance with
such conditions. Upon consideration of such evidence, if any, and all
other relevant circumstances, the Administrator may, in his discretion, by
written notice to the Borrower, terminate any obligation of the Government
to advance any funds on account of the Loan to the Borrower, and such
action by the Administrator shall be conclusive.
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(b) If, within three years from the date hereof, or, in case this
agreement is amended to provide for an increase int he amount of the Loan,
then within three years from the date of the latest such amendment, the
Borrower has not complied with all conditions precedent to the advance of
the maximum amount of the Loan, including the submission of requisitions
therefor in compliance with section 2.2 hereof, the Administrator may, at
any time or times thereafter, request the Borrower in writing to advise the
Administrator whether the Borrower will require any further advances on
account of the Loan and, if so, to submit evidence to the Administrator,
within thirty days, of the Borrower's need for additional time for
compliance with such conditions. Upon consideration of such evidence, if
any, and all other relevant circumstances, the Administrator may, in his
discretion, by written notice to the Borrower, terminate any obligation of
the Government to advance funds on account of the Loan not previously
advanced to the Borrower, and such action by the Administrator must be
conclusive.
ARTICLE III
CONSTRUCTION
SECTION 3.1 LABOR AND MATERIALS CONTRACT. The Borrower shall
cause the Project to be constructed under labor and materials contract by a
responsible contractor or contractors selected by the Borrower and approved
by the Administrator, except to the extent that the Administrator may in
writing authorize other methods of construction. The Borrower shall keep
accurate and detailed records of all costs and expenses in connection with
construction of the Project.
SECTION 3.2 COMMENCEMENT AND COMPLETION. The Project shall be
constructed in accordance with the approved plans and specifications
hereinafter provided for, the provisions of this agreement and all contracts
and subcontracts made pursuant hereto. Construction of the Project or any
portion thereof shall be commenced promptly after the Government shall have
notified the Borrower of approval to commence such construction, and the
Borrower shall cause such construction to be prosecuted diligently and to be
completed in such manner that the System shall be free and clear of all liens
and lawful claims for liens except the liens of the Mortgage and any
supplemental mortgage.
SECTION 3.3. BIDDING. The Borrower shall invite bids for
construction of outside plant and buildings, for installation of station
equipment, an for purchase and installation, or either, of central office
equipment, included in the Project, unless otherwise authorized in writing by
the Administrator. The Borrower shall open all bids publicly at the time and
place which shall have been specified in the notice to bidders, after
reasonable prior written notification of such time and place has been given
by the Borrower to the Administrator. The Borrower shall award each contract
to the lowest responsible bidder, unless all bids are rejected.
SECTION 3.4 INSPECTION BY ADMINISTRATOR. The Administrator may
inspect the construction and equipment of the Project, and shall have the
right to examine and test all work and
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materials, and the Borrower shall provide reasonable facilities therefor for
the use of the Administrator and his agents. The Administrator may reject any
defective material or workmanship and require that any such material shall be
replaced with proper material and that any such workmanship shall be
corrected, to the end that all material and workmanship shall conform with
the approved plans and specifications hereinafter provided for.
SECTION 3.5 CERTIFICATE AND MAPS. The Borrower shall, at the
request of the Administrator, furnish to the Government: (a) such
certificates of the approved engineer and of the officers and employees of
the Borrower as the Administrator shall reasonably require with respect to
construction of the Project, or any portion thereof, and the cost thereof;
(b) a complete inventory by construction units, in sufficient detail to
reflect accurately all construction costs, and a description of the Project,
or any portion thereof; and (c) a map or maps, in the same form as contained
in the approved plans and specifications hereinafter provided fork, corrected
to show actual locations and classification of all exchanges, lines and other
properties of the Borrower except those, if any, not directly connected with
the Project.
ARTICLE IV
PARTICULAR COVENANTS
SECTION 4.1 APPOINTS BY BORROWER. The Borrower shall designate (a) one
or more engineers who shall perform the engineering services involved in the
construction of the Project or the several portions thereof, and execute all
certificates and other instruments pertaining to engineering details required
hereunder to be delivered to the Government; and (b) a person (who may be
regularly employed by the Borrower) who, subject to the general policies
fixed by the board of directors for the conduct of the Borrower's business,
shall have active charge of the management and operations of the Borrower
(hereinafter called the "Manager"). Persons so designated by the Borrower
shall be subject to the approval of the Administrator; provided that if any
such person is disapproved by the Administrator, the Administrator shall
notify the Borrower in writing of the reasons why the designated persons is
deemed not qualified to perform the proposed duties properly; and provided
further that the Administrator's approval shall not be required for a person
designated as the Manager by the Borrower if, for each of the five years
immediately preceding such designation, the Borrower has owned and operated
the Existing Facilities and has not had a deficit in net income as determined
in accordance with methods of accounting prescribed by the state regulatory
body having jurisdiction over the Borrower, or in the absence of such
regulatory body or such prescription, by the Federal Communications Commission
(a) a contract or contracts with one or more approved engineers for
all necessary engineering services in connection with the construction of
the Project;
(b) plans and specifications for the construction of each portion of
the Project, identified by the signatures of the approved engineer for such
portion or portions, and of a duly authorized and responsible officer or
employee of the Borrower;
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(c) a contract or contracts for the construction of outside plant
and buildings, for installation of station equipment, and for purchase and
installation, or either, of central office equipment, included in the
Project, together with any contractor's or subcontractor's bond relating
thereto;
(d) a contract or contracts for such toll traffic and operator
assistance services, to be furnished by connection companies, as may be
necessary for the proposed operation of the System; provided, however, that
the Administrator's approval shall not be required for any such contract or
contracts, submitted to the Administrator which, in form and substance
conform with contracts in general use in the telephone industry;
(e) a contract or contracts for the purchase by the Borrower of
materials, equipment and supplies for use in connection with the Project;
(f) a contract or contracts for the joint use of facilities of other
companies, as may be necessary for the construction or proper operation of
the System; and
(g) 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.
SECTION 4.3 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 which is not insured by the Federal Deposit Insurance
Corporation, or the successor thereof. The Borrower shall inform the
Administrator of the names of the banks which it has selected for deposit of
its funds.
SECTION 4.4 EASEMENTS AND PERMITS. The Borrower shall submit to
the Government, when requested by the Administrator, evidence satisfactory to
the Administrator that the Borrower has obtained such easements from
landowners and releases from lienor and such franchises, authorizations,
permits, licenses, certificates of convenience and necessity, approvals, and
orders from public bodies and others, reasonably adequate in form and
substance, as may be required by law for the construction of the Project and
the operation of the System. If requested so to do by the Administrator, the
Borrower shall cause such easements and releases to be recorded in
appropriate offices of record. Except with the consent of the Administrator,
none of the funds advanced on account of the Loan shall be used by the
Borrower to pay for easements obtained from landowners, or for releases of
liens affecting easements.
SECTION 4.5 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, xxx in writing authorize deviations therefrom):
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(a) furnish service to all applicants for service included in the
Project, without payment by such applicants of any extra charge as a
contribution to the cost of construction of facilities to provide such
service; and
(b) 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 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 at least those other
unserved rural applicants for service in its telephone service area who
meet either of the following conditions: *(1) service to such applicant
will not reduce the overall density of the Systems below ___ subscribers
per route mile of pole line, underground cable and radio link, or (2) the
cost of constructing the required line extension for such applicant will
not exceed seven times the estimated annual exchange revenue 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 ahead 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.
The furnishing of service to applicants for service under the conditions
provided in this section is of the essence of the Borrower's obligations
under this agreement, and the failure or neglect of the Borrower to perform
such obligation shall be deemed to be an event of default hereunder.
SECTION 4.6 MORTGAGES COVENANTS. The Borrower shall perform all
covenants by it to be performed under the Mortgage and any supplemental
mortgage.
SECTION 4.7 REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants as follows:
(a) it is a corporation duly organized, existing and in good standing
under the laws of the State specified in the introductory paragraph of this
agreement and has corporate power to enter into this agreement and perform
every act required to be performed by it hereunder;
(b) all proceedings prerequisite to the valid execution of this
agreement by it have been duly taken and all required authorizations
therefor have been secured;
(c) it has not entered into any contract (not heretofore fully
performed) for the construction of any portion of the Project, or for
engineering or for other services pertaining to the construction or
operation of the System, unless such contract has (i) been approved by
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the Administrator; (2) will be submitted for the approval of the
Administrator; or (3) the effectiveness thereof has been made subject
to the approval of the Administrator;
(d) the capital structure of the Borrower is as shown in a certified
copy of its articles of incorporation last submitted to the Administrator;
the Borrower has issued and outstanding only such numbers and classes of
shares of its capital stock and such bonds and other evidences of
indebtedness, if any, as shown in the statement thereof last submitted to
the Administrator; and the Borrower has not entered into any agreement for
the issuance of any other shares of its capital stock, or of bonds or other
evidences if indebtedness; and
(e) 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.
SECTION 4.8 FEES AND COMMISSIONS. No fee or commission has been or
shall be paid and no agreement therefor has been or shall be entered into by
the Borrower or any of its officers, employees, agents, or representatives in
order to obtain the Loan.
SECTION 4.9 "BUY AMERICAN" CLAUSE. The Borrower shall use or cause
to be used in connection with the expenditures of funds advanced on account
of the Loan only such unmanufactured articles, materials, and supplies as
have been mined or produced in the United States, and only such manufactured
articles, materials, and supplies as have been manufactured in the United
States substantially all from articles, materials, or supplies mined,
produced, or manufactured, as the case may be, in the United States, except
to the extent the Administrator shall determine that such use shall be
impracticable or that the cost thereof shall be unreasonable.
SECTION 4.10 NON-DISCRIMINATION CLAUSE. The Borrowers, in the
performance of this agreement, shall not discriminate against any employee or
applicant for employment in regard to hire, tenure, terms or conditions of
employment because of race, creed, color or national origin. The Borrower
shall include in every contract involving the employment of persons hereafter
negotiated or renegotiated with any third party or parties a provision
obligating such party or parties not to discriminate in performing the work
required by such contract against any employee or applicant for employment in
regard to hire, tenure, terms or conditions of employment because of race,
creed color or national origin.
SECTION 4.11 EVIDENCE OF FEASIBILITY. The Borrower shall, whenever
requested so to do by the Administrator, submit evidence satisfactory to the
Administrator of the economic and engineering feasibility of each portion of
the System designated by the Administrator.
SECTION 4.12 PROOF OF TITLE. No funds shall be advanced on account
of the Loan to finance the acquisition of any real property by the Borrower,
or any constructions thereon, until the Borrower shall have submitted
evidence satisfactory to the Administrator that it has acquired or will
acquire good and marketable title to such real property.
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SECTION 4.13 COMMENCEMENT OF OPERATION. The Borrower shall not
operate any portion of the Project until the Borrower shall have furnished
evidence that (a) such portion of the Project has been properly constructed
and is ready to be operated, (b) there are sufficient subscribers ready to
take service to permit the economical operation of such portion of the
Project, and (c) the Borrower has complied with the provisions of the
Mortgage concerning insurance in respect of such portion of the Project.
SECTION 4.14 OPERATING AND MAINTENANCE PROCEDURES. The Borrower
shall, subject to applicable laws and rules, regulations and orders of
regulatory bodies, operate and maintain the System in accordance with
standards of operation and maintenance generally accepted for corporations of
the size and character of the Borrower.
SECTION 4.15 RESTRICTIONS ON USE OF LOAN FUNDS IN PARADISE
EXCHANGE AREA. The Borrower shall not use any of the funds on account of the
Loan for the operation, rehabilitation, improvement or expansion of telephone
facilities within the Paradise exchange area.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1 EVENTS OF DEFAULT. The happening of any of the
following events (hereinafter called "events of default") shall constitute a
default by the Borrower hereunder:
(a) any failure to perform, or any violation of, any term, covenant,
promise, condition, or agreement on the part of the Borrower to be
performed hereunder at the time and in the manner herein provided;
(b) any breach of any warranty or any material or substantial
inaccuracy in any representation on the part of the Borrower; or
(c) any event of default which is specified in the Mortgage or any
supplemental mortgage.
SECTION 5.2 REMEDIES UPON DEFAULT. Upon the happening of any
event of default, as specified in section 5.1 hereof, the Government or the
holder or holders of any one or more of the Notes, as their respective
interests may appear, may exercise either one or both of the following
rights, privileges, powers, and remedies, to the extent that the exercise
thereof is not prohibited by law:
(a) refuse to make any advance or any further advances on account of
the Loan, but any advance thereafter made by the Government shall not
constitute a waiver of such default; and
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(b) declare all unpaid principal of and all interest accrued on any
or all of the Notes held by such holder or holders (which may include the
Government) to be due and payable immediately and upon such declaration all
such principal and interest shall become due and payable immediately,
anything herein or in any other agreement to which the Borrower shall be a
party, or in the Notes or in the Mortgage or any supplemental mortgage to
the contrary notwithstanding.
SECTION 5.3 REMEDIES CUMULATIVE. Every right, privilege, power or
remedy herein or in the Notes or in the Mortgage or in any supplemental
mortgage conferred upon or reserved to the government or any holder or
holders of the Notes shall be cumulative and shall be in addition to every
other right, privilege, power, and remedy now or hereafter existing at law or
in equity or by statute. The pursuit of any right, privilege, power, or
remedy shall not be construed as an election.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 MEMBERS OF CONGRESS. No member of or delegate to the
Congress of the United States shall be admitted to any share or part of this
agreement or to any benefit to arise herefrom other than the receiving of
telephone service through the System on the same terms accorded others served
through the System.
SECTION 6.2 FALSE CLAIMS STATUTES. The Borrower and each of the
officers signing this agreement respectively acknowledge that they have
received copies of sections 286, 287, 641, 1001 and 1361 of Xxxxx 00, Xxxxxx
Xxxxxx Code, Crimes and Criminal Procedure.
SECTION 6.3 DEFINITIONS. Whenever the following terms are used in
this agreement, unless the context indicates another or different meaning or
intent, they shall be construed to have meanings as follows:
(a) "Administrator" means the Administrator of the Rural
Electrification Administration or his duly authorized representative or any
other person or authority in whom may be vested the duties and functions
relating to loans for telephone service in rural areas made pursuant to the
act which the Administrator is now or may hereafter be authorized by law to
perform;
(b) "plans and specifications" means the plans and specifications for
the Project originally approved by the Administrator and shall include such
changes and modifications thereof as may from time to time be agreed upon
by the Borrower and the Government;
(c) "note" includes "bond"; and
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(d) "construction" includes "acquisition", and the word "construct"
includes the word "acquire".
SECTION 6.4 APPROVALS IN WRITING. No counsel, engineer, manager
or other person, or instruments, or act of the Borrower, who or which shall
be subject to the approval of the Administrator, shall be deemed to be
approved unless and until the Administrator shall have given such approval in
writing.
SECTION 6.5 WAIVER. The Administrator, in his absolute discretion
and upon such terms and conditions as he may determine, may waive the
performance or doing of any one or more of the acts to be performed or things
to be done by the Borrower, and any provision hereof may be modified or
amended by mutual consent of the Borrower and the Administrator. The
Borrower shall not claim any modification, amendment, rescission, release, or
annulment of any part hereof except pursuant to a written instrument
subscribed by the Administrator. The approval by or on behalf of the
Administrator of any advance of funds on account of the Loan shall constitute
a finding of sufficient performance by the Borrower of all acts prerequisite
to such advance, or a waiver thereof; provided, however, that any such
waiver shall be effective only with reference to such advance and shall not
preclude the Administrator from requiring full performance of the acts so
waived as a prerequisite to any subsequent advance.
SECTION 6.6 NON-ASSIGNABILITY. The Borrower shall not assign this
agreement or any part hereof or any moneys due or to become due hereunder.
SECTION 6.7 DESCRIPTIVE HEADINGS; SEPARABILITY. The descriptive
headings of the various articles and sections hereof were formulated and
inserted for convenience only and shall not be deemed to affect the meaning
or construction of any of the provisions hereof. The invalidity of any one
or more phrases, clauses, sentences, paragraphs, or provisions of this
agreement shall not affect any remaining portion or portions hereof.
SECTION 6.8 NOTICES. All demands, notices, approvals,
designations, or directions permitted or required to be made upon or given to
the Borrower hereunder shall be mailed to the Borrower at Stillwater,
Oklahoma or such other address as the Borrower shall designate in writing to
the Administrator. All notices, designations, or communications permitted or
required to be given or sent to the Government or the Administrator hereunder
shall be mailed to the Administrator at Washington 25, D.C., or such other
address as the Administrator shall designate in writing to the Borrower.
SECTION 6.9 DURATION OF AGREEMENT. Except where otherwise
required by the context, all provisions of this agreement 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
this agreement shall be deemed to have been fully performed.
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SECTION 6.10 COUNTERPARTS. 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.
XXXXXX TELEPHONE COMPANY, INC.
By: /s/ X.X. XXXXXX
-------------------------------------
ATTEST:
/s/ XXXX XXXXXX
-------------------------------------
Secretary
UNITED STATES OF AMERICA
By: /s/ XXXXX X. XXXXXXX
-------------------------------------
Acting Administrator
of
Rural Electrification Administration
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