Exhibit 10.1
I N T E R E S T R A T
E
S W A P A G R E E M E N
T
Dated as of February 26, 2008
CoBank, ACB (“CoBank”) and New Ulm
Telecom, Inc. (“Company”)
have entered and/or anticipate entering into one or more
transactions (each a “Swap Transaction”). The parties
agree that each Swap Transaction will be governed by the terms and
conditions set forth in this document (which includes the schedule
attached hereto (the “Schedule”)) and in the documents
(each a “Confirmation”) exchanged between the parties
confirming such Swap Transactions. Each Confirmation constitutes a
supplement to and forms part of this document and will be read and
construed as one with this document, so that this document and all
the Confirmations constitute a single agreement between the parties
(collectively referred to as this “Agreement”). The
parties acknowledge that all Swap Transactions are entered into in
reliance on the fact that this document and all Confirmations will
form a single agreement between the parties, it being understood
that the parties would not otherwise enter into any Swap
Transactions. Accordingly, the parties agree as follows:
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(a)
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Definitions. The terms
defined in Section 12 hereof, in the Schedule and in each
Confirmation will have the meanings therein specified for the
purpose of this Agreement.
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(b)
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Inconsistency. In the
event of any inconsistency between the provisions of any
Confirmation and this document, such Confirmation will prevail for
the purpose of the relevant Swap Transaction.
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(a)
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Obligations and Conditions .
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(i)
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Each party will make each payment specified in each
Confirmation as being payable by it.
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(ii)
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Payments under this Agreement will be made not later
than the due date for value on that date in the place of the
account specified in the relevant Confirmation or otherwise
pursuant to this Agreement. All payments will be made in U.S.
dollars and in freely transferable funds.
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(iii)
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Each obligation of each party to pay any amount due
under Section 2(a)(i) is subject to the condition precedent that no
Event of Default or Potential Event of Default with respect to the
other party has occurred and is continuing.
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(b)
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Change of Account. Either party may change its account by giving notice to the
other party at least five days prior to the due date for payment
for which such change applies.
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(c)
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Netting. If on any date
amounts would otherwise be payable in respect of the same Swap
Transaction by each party to the other, then, on such date, each
party’s obligation to make payment of any such amount will be
automatically satisfied and discharged and, if the aggregate amount
that would otherwise have been payable by one party exceeds the
aggregate amount that would otherwise have been payable by the
other party, replaced by an obligation upon the party by whom the
larger aggregate amount would have been payable to pay to the other
party the excess of the larger aggregate amount over the smaller
aggregate amount.
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(d)
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Default Interest. A
party that defaults in the payment of any amount due under this
Agreement will be required to pay interest (before as well as after
judgment) on such amount to the other party on demand for the
period from (and including) the original due date for payment to
(but excluding) the date of actual payment, at the Default Rate.
Such interest will be calculated on the basis of daily compounding
and on the actual number of days elapsed in a year consisting of
360 days.
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1
Each party represents to the other party (which
representations and warranties will be deemed to be repeated on
each date on which a Swap Transaction is entered into)
that:
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(a)
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Basic Representations .
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(i)
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Powers. It has the
power to execute and deliver this Agreement and to perform its
obligations hereunder, and has taken all necessary action to
authorize such execution, delivery, and performance;
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(ii)
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No Violation or Conflict . Such execution, delivery, and performance do not violate or
conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or
other agency of government applicable to it or any of its assets,
or any contractual restriction binding on or affecting it or any of
its assets;
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(iii)
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Consents. All consents
that are required to have been obtained by it with respect to this
Agreement have been obtained and are in full force and effect and
all conditions of any such consents have been complied with;
and
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(iv)
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Obligations Binding. Its obligations under this Agreement constitute its legal,
valid, and binding obligations, enforceable in accordance with
their respective terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting
creditors’ rights generally).
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(b)
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Absence of Certain Events. No Event of Default or Potential Event of Default with respect
to it has occurred and is continuing and no such event or
circumstance would occur as a result of its entering into or
performing its obligations under this Agreement.
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(a)
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Documents . Each party
agrees to deliver to the other party any document specified in Part
1 of the Schedule or in any Confirmation by the date specified
therein (or if no date is specified, as soon as
practicable).
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(b)
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Covenants . So long as
it has any obligations under Section 2 hereof, the Company shall
continue to observe and perform the covenants contained in any loan
agreements between CoBank and the Company w
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