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EXHIBIT 4.13
LOAN NO. T0310
COBANK, ACB
FIRST AMENDMENT AND SUPPLEMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
STATE OF LOUISIANA )
)
PARISH OF CALCASIEU )
STATE OF GEORGIA )
)
COUNTY OF XXXX )
BEFORE the respective undersigned Notaries Public, and in the presence
of the respective undersigned competent witnesses, personally came and appeared
the parties listed below, who, after being duly sworn, did state:
THIS FIRST AMENDMENT AND SUPPLEMENT TO AMENDED AND RESTATED LOAN
AGREEMENT (this "First Amendment") is made and entered into as of July 1, 1996,
by and between COBANK, ACB ("CoBank") and CTC FINANCIAL, INC., a Louisiana
corporation (the "Borrower"), and amends that certain Amended and Restated Loan
Agreement, dated as of May 15, 1996, between CoBank and the Borrower (the
"Original Loan Agreement").
SECTION 1. Terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Original Loan Agreement.
SECTION 2. Section 1 of the Original Loan Agreement is hereby amended
and supplemented by deleting such Section in its entirety and substituting in
lieu thereof the following Section:
"SECTION 1. THE LOAN. On the terms and conditions set forth in
this Agreement, and subject to Section 11, CoBank agrees to make a loan
(the "Original Loan") to the Borrower, by means of one or more advances,
during the period commencing on September 27, 199 and ending but not
including May 31, 1996, or such later date as CoBank may in its sole
discretion authorize in writing, in an aggregate principal amount not to
exceed $17,00,000. Further, on the terms and conditions set forth in
this Agreement, and subject to Section 11, CoBank agrees to make a loan
(the "Additional Loan") to the Borrower, by means of a single advance in
a principal amount not to exceed $15,000,000 (the Original
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Loan No. T0310
Loan and the Additional Loan, collectively, the "Loan"). Under the
Loan, amounts borrowed and later repaid or prepaid may not be
reborrowed."
SECTION 3. Section 2 of the Original Loan Agreement is hereby amended
and supplemented by deleting such Section in its entirety and substituting in
lieu thereof the following Section:
"SECTION 2. PURPOSES AND USE OF PROCEEDS. The proceeds of the
Original Loan advanced prior to May 15, 1996 shall be, and have been,
reloaned by the Borrower to Mississippi One Cellular Telephone Company
("Mississippi One") to be applied by Mississippi One solely (a) to the
repayment, in an amount equal to $1,700,000, of the outstanding
principal balance of the indebtedness of Mississippi One to Cameron
Telephone Company ("Cameron Telephone"), which Mississippi One assumed
from Mercury, Inc. ("Mercury"); (b) to pay the fees and costs associated
with the Loan and the initial closing thereof; and (c) for capital
expenditures and working capital. The proceeds of the Original Loan
advanced on and after May 15, 1996 shall be, and have been, reloaned by
the Borrower to Mississippi One to be applied by Mississippi One solely
to finance the acquisition of the assets of West Alabama Cellular
Telephone Company, Inc. ("West Alabama") pursuant to the terms of that
certain Asset Purchase Agreement, dated as of March , 1996, by and
between Mississippi One and West Alabama (the "West Alabama Acquisition
Agreement"), related acquisition costs and costs and fees associated
with closing the Original. The proceeds of the Additional Loan shall be
reloaned by the Borrower to Mississippi One to be applied by Mississippi
One solely to finance a portion of the acquisition of the assets of
Northland Cellular Corporation ("Northland Cellular"), pursuant to the
terms of that certain Asset Purchase Agreement, dated as of April 9,
1996, by and among [MISSISSIPPI ONE] and Northland Cellular, Pricellular
Corporation and Pricellular Wireless Corporation (the "Northland
Cellular Acquisition Agreement"), related acquisition costs and costs
and fees associated with closing the Additional Loan. The Borrower
agrees that the proceeds of the Loan shall be used only for the purposes
set forth in this Section 2."
SECTION 4. Section 3 of the Original Loan Agreement is hereby amended
and supplemented by deleting such Section in its entirety and substituting in
lieu thereof the following Section:
"SECTION 3. AVAILABILITY. Subject to Section 11, advances under
the Original Loan will be made on any day on which CoBank is open for
business (a "Business Day"), except any day on which Federal Reserve
Banks are closed, within two Business Days of receipt by CoBank of a
written or telephonic request
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Loan Agreement/CTC Financial
Loan No. T0310
of an authorized employee of the Borrower. Further, subject to Section
11, the Additional Loan will be made on the closing date under the
Northland Cellular Acquisition Agreement (the "Funding Date"), which
shall be a Business Day and shall occur on or before July 31, 1996.
Unless otherwise agreed, all advances will be made available by wire
transfer of immediately available funds to such account or accounts as
the Borrower may designate from time to time on forms supplied by
CoBank. In making advances upon telephonic requests, CoBank shall be
entitled to rely on (and shall incur no liability to the Borrower in
acting upon) any request made by a person identifying himself or herself
as one of the persons authorized by the Borrower to request advances
hereunder, so long as the funds are wired to an account previously
designated by the Borrower."
SECTION 5. Section 4(B) of the Original Loan Agreement is hereby
amended and supplemented by deleting the reference in such Section to "Cameron
Debt (as defined in Section 11(A)(11))" and substituting in lieu thereof the
"Subordinate Debt (as defined in Section 11(C)(11))."
SECTION 6. Section 4(E) of the Original Loan Agreement is hereby
further amended and supplemented by deleting such Section in its entirety and
substituting in lieu thereof the following Section:
"(E) ORIGINATION FEE. In connection with the Original Loan, the
Borrower has paid to CoBank non-refundable loan origination fees in the
aggregate amount of $17,525. The Borrower shall pay to CoBank a
non-refundable loan origination fee for the Additional Loan in the
amount of $150,000, of which $10,000 was paid upon acceptance by the
Borrower of the commitment letter dated June 5, 1996. The remaining
$10,000 shall be payable on the Funding Date."
SECTION 7. Section 8 of the Original Loan Agreement is hereby amended
and supplemented by deleting in its entirety the second-to-last sentence of
such Section and substituting in lieu thereof the following sentence:
"Checks shall be mailed or delivered to XxXxxx xx Xxxxxxxxxx 000,
Xxxxxx, Xxxxxxxx 00000-0000 (or to such other address as CoBank may
designate by notice)."
SECTION 8. Section 10 of the Original Loan Agreement is hereby
amended and supplemented by deleting such Section in its entirety and
substituting in lieu thereof the following Section:
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"SECTION 10. SECURITY. The Loan shall be secured by an
assignment by the Borrower to CoBank of that certain Second Amended and
Restated Promissory Note dated of even date herewith, made by
Mississippi One to the order of the Borrower, in the original principal
face amount of $32,00,000 (as the same may be amended, modified,
supplemented, extended or restated from time to time and any promissory
note or notes that may be issued from time to time in substitution,
renewal, extension, replacement or exchange therefor, the "Mississippi
One Note").
The Loan shall be guaranteed by (a) that certain Amended and
Restated Continuing Guaranty, dated as of May 15, 1996, made by
Mississippi One for the benefit of CoBank, as amended by that certain
First Amendment and Supplement to Amended and Restated Continuing
Guaranty, dated as of even date herewith (as so amended and as the same
hereafter may be amended, modified, supplemented, extended or restated
from time to time, the "Mississippi One Guaranty"); (b) that certain
Continuing Guaranty, dated as of May 15, 1996, made by Mercury for the
benefit of CoBank, as amended by that certain First Amendment and
Supplement to Continuing Guaranty, dated as of even date herewith (as so
amended and as the same hereafter may be amended, modified,
supplemented, extended or restated from time to time, the "Mercury
Guaranty"); and (c) that certain Continuing Guaranty, dated as of May
15, 1996, made by Xxxxxxx Xxxxxxx, Sr. ("Xx. Xxxxxxx") for the benefit
of CoBank, as amended by that certain First Amendment and Supplement to
Continuing Guaranty, dated as of even date herewith, (as so amended and
as the same hereafter may be may be amended, modified, supplemented,
extended or restated from time to time, the "Xxxxxxx Guaranty") which
shall be limited to $5,000,000 and shall terminate upon the payment in
full of CoBank Loan No. T037.
The Note, the Mississippi One Note, the Xxxxxxx Guaranty, the
Mercury Guaranty and the Mississippi One Guaranty shall be secured by
that certain (i) Deed of Trust, Security Agreement and Fixture Filing,
dated as of September 27, 199, made by Mississippi One in favor of
CoBank, as holder of the Note and the Mississippi One Note and as
beneficiary of the Mississippi One Guaranty, the Xxxxxxx Guaranty and
the Mercury Guaranty, as amended by that certain First Amendment and
Supplement to Deed of Trust, Security Agreement and Fixture Filing,
dated as of May 15, 1996, and as amended by that certain Second
Amendment and Supplement to Deed of Trust, Security Agreement and
Fixture Filing, dated as of even date herewith (as so amended and as the
same hereafter may be amended, modified, supplemented, extended or
restated from time to time, the "Mississippi One Deed of Trust"),
pursuant to which Mississippi One shall grant to CoBank a first priority
lien and security interest in all of its now hereafter
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Loan Agreement/CTC Financial
Loan No. T0310
leased and owned real property located in the State of Mississippi; (ii)
Security Agreement, dated as of September 27, 1994, made by Mississippi
One in favor of CoBank, as holder of the Note and the Mississippi One
Note and as beneficiary of the Mississippi One Guaranty, the Xxxxxxx
Guaranty and the Mercury Guaranty, as amended by that certain First
Amendment and Supplement to Security Agreement, dated as of May 15,
1996, and as amended by that certain Second Amendment and Supplement to
Security Agreement, dated as of even date herewith (as so amended and as
the same hereafter may be amended, modified, supplemented, extended or
restated from time to time, the "Mississippi One Security Agreement"),
pursuant to which Mississippi One shall grant to CoBank a first priority
security interest in all of its now owned or hereafter acquired tangible
and intangible personal property (including, without limitation, all
rights of Mississippi One under that certain Agreement for Lease of
Switch Capacity, dated July 27, 1994, between Mississippi 34 Cellular
Corporation and Mercury, subsequently assigned to Mississippi One by
Mercury, and, to the extent permitted by law, all licenses and permits
issued by the Federal Communications Commission (the "FCC")); (iii)
Mortgage, dated as of May 15, 1996, made by Mississippi One in favor of
CoBank, as holder of the Note and the Mississippi One Note and as
beneficiary of the Mississippi One Guaranty, the Xxxxxxx Guaranty and
the Mercury Guaranty, as so amended by that certain First Amendment and
Supplement to Mortgage, dated as of even date herewith (as so amended
and as the same hereafter may be amended, modified, supplemented,
extended or restated from time to time, the "Mississippi One Mortgage"),
pursuant to which Mississippi One shall grant to CoBank a first priority
lien and security interest in all of its now hereafter leased and owned
real property located in the State of Alabama; and (iv) Pledge
Agreement, dated as of September 27, 1994, by and between Mercury and
CoBank, as holder of the Note and the Mississippi One Note and as
beneficiary of the Mississippi One Guaranty, the Xxxxxxx Guaranty and
the Mercury Guaranty, as amended by that certain First Amendment and
Supplement to Pledge Agreement, dated as of May 15, 1996, and as amended
by that certain Second Amendment and Supplement to Pledge Agreement,
dated as of even date herewith (as so amended and as the same may
hereafter be amended, modified, supplemented, extended or restated from
time to time, the "Mercury Pledge Agreement"), pursuant to which Mercury
shall pledge, on a first-priority basis, all of its capital stock in
Mississippi One and in Mercury Cellular Telephone Company ("MCTC") and
shall covenant and agree to pledge to CoBank, on a first-priority basis,
all capital stock of Mississippi One and MCTC it may hereafter acquire."
SECTION 9. Section 11 of the Original Loan Agreement is hereby amended
and restated by inserting the following new Subsection (C) at the end of such
Section:
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Loan No. T0310
"(C) CoBank's obligation to make the Additional Loan is subject
to satisfaction of each of the following conditions precedent on or
before the Funding Date:
(1) LOAN DOCUMENTS. That CoBank receive duly executed
originals the Loan Documents.
(2) AUTHORIZATION. That CoBank receive copies of all
corporate documents and proceedings of the Borrower, Mississippi
One and Mercury authorizing the execution, delivery, and
performance of the Loan Documents to which each is a party,
certified by appropriate officers of such entities.
(3) APPROVALS. That CoBank receive evidence
satisfactory to it that all federal and state consents and
approvals (including, without limitation, all regulatory
approvals) which are necessary for, or required as a condition
of, the validity and enforceability of the Loan Documents or the
creation or perfection of the liens and security interests
identified in Section 10, or the completion of the acquisition of
Northland Cellular's assets by Mississippi One pursuant to the
Northland Cellular Acquisition Agreement, have been obtained and
are in full force and effect.
(4) OPINIONS OF COUNSEL. That CoBank receive opinions
of counsel for the Borrower, Mississippi One, Mercury, Cameron
Telephone, MCTC and Xx. Xxxxxxx (who shall be mutually acceptable
to CoBank) in form and content acceptable to all parties.
(5) FEES AND EXPENSES. That the Borrower pay the
origination fee set forth in Section 4(E) with respect to the
Additional Loan and the costs and expenses required by Section 20
to be paid by the Borrower.
(6) PERMITS. That CoBank receive evidence satisfactory
to it that the Borrower, Mississippi One and Mercury possess all
necessary operating permits, authorizations, approvals, and the
like which are material to the conduct of the Borrower's,
Mississippi One's and Mercury's business or which may otherwise
be required by law.
(7) INSURANCE. That CoBank receive evidence of
insurance by Mississippi One and Mercury in such amounts and
covering such risks as are usually carried by companies in the
same or similar business.
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Loan No. T0310
(8) ENVIRONMENTAL CHECKLIST. That CoBank receive from
Mississippi One an environmental checklist on a form prescribed
by CoBank covering all real property owned or leased by
Mississippi One and Mississippi One's environmental records and
procedures, all of such information to be satisfactory to CoBank
in its sole discretion.
(9) PERFECTION AND PRIORITY OF LIENS. That CoBank
receive an opinion of counsel in form and content acceptable to
it to the effect that, as of the date of such advance, CoBank has
a duly perfected security interest in all collateral covered by
the Mississippi One Deed of Trust, the Mississippi One Mortgage,
the Mississippi One Security Agreement and the Mercury Pledge
Agreement, subject to no prior liens except a liens in favor of
Cameron Telephone subordinated to all liens in favor of CoBank on
terms and conditions satisfactory to CoBank.
(10) NORTHLAND CELLULAR ACQUISITION. That on or before
the Funding Date, Mississippi One shall have acquired the real
and personal property of Northland Cellular in accordance with
the terms of the Northland Cellular Acquisition Agreement, free
and clear of any and all liens and encumbrances, and that CoBank
receives such evidence thereof as it shall reasonably require.
(11) SUBORDINATED DEBT. That Cameron Telephone reaffirm
its subordination of the Cameron Debt, and MCTC subordinate all
indebtedness of Mississippi One to MCTC (the "MCTC Debt"; with
the Cameron Debt, collectively, the "Subordinate Debt"), in both
cases in right of payment and in all other respects, to any
indebtedness of Mississippi One to CoBank including the Loan,
which subordination shall provide that no interest or principal
payments may be made on the Subordinate Debt without the consent
of CoBank.
(12) NO MATERIAL ADVERSE CHANGE. That from December 31,
1995, to the date of such advance there shall not have occurred
any event which has had or could have a Material Adverse Effect
(as hereinafter defined) on the Borrower or Mississippi One. For
purposes of this Agreement, the term "Material Adverse Effect"
when used with reference to any entity shall mean a material
adverse effect on the condition, financial or otherwise,
operations, properties or business of such entity or on the
ability of such entity to perform its obligations under the Loan
Documents to which it is a party.
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(13) NO INJUNCTION. That no court or other government
body or public authority shall have issued an order which shall
then be in effect restraining or prohibiting the completion of
the transactions contemplated hereby.
(14) OTHER DOCUMENTS. That CoBank receive such other
documents, instruments, certificates and opinions of counsel as
CoBank or its counsel may reasonably request."
SECTION 10. Section 15(e) of the Original Loan Agreement is hereby
amended and supplemented by inserting after "CoBank Loan No. T037" the
following:", CoBank Loan No. T0388."
SECTION 11. Section 20 of the Original Loan Agreement is hereby amended
and restated by deleting such Section in its entirety and inserting in lieu
thereof the following new Section:
"SECTION 20. COSTS AND EXPENSES. The Borrower shall reimburse
CoBank on demand for all reasonable out-of-pocket costs and expenses
incurred by CoBank in connection with the origination, negotiation,
preparation and administration of this Agreement and all other Loan
Documents, and the preservation and enforcement of CoBank's rights and
remedies hereunder and thereunder, including, without limitation: all
(a) costs and expenses (including intangible and other taxes and any
recording fees or expenses) incurred by CoBank to obtain, perfect,
maintain, determine the priority of, or release any security
contemplated hereunder; (b) fees and expenses of any outside counsel
retained by CoBank to assist CoBank with respect to any matter
contemplated by this Section or to review this Agreement and all other
Loan Documents and advise CoBank as to its rights and remedies hereunder
or thereunder; (c) fees and expenses of any outside counsel retained by
CoBank to represent it in any litigation involving the parties to any of
the Loan Documents, including but not limited to, bankruptcy,
receivership, or similar proceedings; and (d) fees, costs and expenses
incurred in connection with obtaining surveys and appraisals, if any,
required under this Agreement or any other Loan Document; provided,
however, that the Borrower shall not be required to reimburse CoBank for
its legal fees (exclusive of legal expenses) in excess of $35,000 for
the negotiation and documentation of the Additional Loan and CoBank Loan
No. T0388."
SECTION 12. All references in the Original Loan Agreement, to "this
Agreement" shall hereafter be to the Original Loan Agreement as amended by this
First Amendment.
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Loan Agreement/CTC Financial
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SECTION 13. This First Amendment shall not constitute a novation of any
of the promissory notes or other documents or agreements executed or delivered
in connection with the loan or reloan pursuant to the Original Loan Agreement
or any of the other Loan Documents.
SECTION 14. This First Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original and shall be binding
upon all parties and their respective permitted successors and assigns, and all
of which taken together shall constitute one and the same agreement.
SECTION 15. Except to the extent governed by applicable federal law,
this First Amendment shall be governed by and construed in accordance with the
laws of the State of Louisiana, without reference to choice of law doctrine.
[Signatures on next page]
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Loan Agreement/CTC Financial
Loan No. T0310
THUS DONE AND SIGNED in several counterparts at the places and on the
dates indicated below, and in the presence of the respective undersigned
Notaries Public and the respective undersigned witnesses indicated below, by
duly authorized officers of the respective parties, after a due reading of the
whole.
At Lake Charles, Louisiana, on July 1, 1996.
CTC FINANCIAL, INC.
By: /s/ XXXXXXX X. XXXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
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Title: President
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Attest: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Secretary
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[CORPORATE SEAL]
Witnesses to all signatures:
/s/ XXXXXX XXXX
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Witness
/s/ XXX XXXXXXXX
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Witness
/s/ XXXXXX XXXX
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Notary Public
My commission expires: lifetime commission
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[NOTARIAL SEAL]
[Signatures continued on next page]
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Loan Agreement/CTC Financial
Loan No. T0310
[Signatures continued from previous page]
At Atlanta, Georgia, on July 2, 1996.
COBANK, ACB
By: /s/ XXXX XXX XXXXXXX
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Name: Xxxx Xxx Xxxxxxx
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Title: Vice President
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Witnesses to signature:
/s/ [ILLEGIBLE]
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Witness
/s/ [ILLEGIBLE]
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Witness
/s/ XXXXXXXX X. XXXXXX
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Notary Public
My commission expires: April 25, 1999
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[NOTARIAL SEAL]
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