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EXHIBIT 4.51
CTC
Loan No. T0362
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 LOAN AGREEMENT (this "Agreement") is made and entered into as of
April 20, 1995, by and between the COBANK, ACB ("CoBank") and CTC FINANCIAL,
INC., a corporation formed and existing under the laws of the State of
Louisiana (the "Borrower").
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 to the
Borrower, by means of a single advance, in a principal amount not to exceed
$18,000,000 (the "Loan").
SECTION 2. PURPOSES AND USE OF PROCEEDS. The proceeds of the Loan shall
be reloaned by the Borrower to Mercury Cellular Telephone Company ("MCTC") to
be used by MCTC (a) to make an equity contribution to Mercury Cellular of
Kansas, Inc. ("MCK"), a wholly-owned subsidiary of MCTC, for the purpose of MCK
acquiring Miscellco Communications, Inc., and (b) to pay the fees and costs
associated with the Loan and the closing thereof. The Borrower agrees that the
proceeds of the Loan shall be used only for the purposes set forth in this
Section 2.
SECTION 3. AVAILABILITY. Subject to Section 11, the Loan will be made on
any day on which CoBank is open for business (a "Business Day"), except any day
when Federal Reserve Banks are closed, by wire transfer of immediately
available funds to such account or accounts as the Borrower may designate;
provided that an authorized officer of the Borrower shall have provided CoBank
with at least two Business Days' prior written notice of the date on which the
Loan is to be made (the "Funding Date"), and the Funding Date so designated
shall not be later than May 15,1995.
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SECTION 4. INTEREST AND FEES.
(A) RATE OPTIONS; ETC. The unpaid principal balance of the Loan
shall accrue interest at the rate or rates determined or selected by the
Borrower in accordance with this Subsection (A).
(1) VARIABLE RATE OPTION. As to any portion of the unpaid
principal balance of the Loan selected by the Borrower (any such portion,
and any portion selected pursuant to Subsection (A)(2), a "Portion" of
the Loan), interest shall accrue pursuant to this variable rate option at
a variable annual interest rate (the "Variable Rate") equal at all times
to the National Variable Rate (as hereinafter defined) less 0.25%. The
term "National Variable Rate" shall mean the rate of interest established
by CoBank from time to time as its National Variable Rate. The National
Variable Rate is intended by CoBank to be a reference rate, and CoBank
may charge other borrowers rates at, above, or below that rate. Any
change in the National Variable Rate shall take effect on the date
established by CoBank as the effective date of such change, and CoBank
shall notify the Borrower promptly after any such change.
(2) FIXED RATE OPTIONS.
(a) TREASURY RATE OPTION. As to any Portion or Portions
of the Loan selected by the Borrower, interest shall accrue
pursuant to this fixed rate option at a fixed annual interest rate
(a "Treasury Rate") equal to the sum of the U.S. Treasury Rate (as
hereinafter defined) plus a margin (the "Treasury Margin") equal to
1.75% (subject to Subsection (B)). Under this option, the interest
rate on any Portion of the Loan, in minimum amounts of $100,000,
may be fixed for a period (any such period, and any period selected
pursuant to Subsection (A)(2)(b), an "Interest Period") of one
year or more but not beyond the Maturity Date (as defined in
Section 5); provided, however, that such Interest Period may expire
only on a Business Day; and provided further, however, that each
Portion of the Loan accruing interest at a Treasury Rate shall be
repaid in part as provided in Section 5 on each Payment Date (as
defined in Section 5) occurring during its applicable Interest
Period. The term "U.S. Treasury Rate" shall mean the yield to
maturity on U.S. Treasury instruments having the same maturity as
the last day of the Interest Period selected, as indicated by
Telerate (page 5) at approximately 9:30 a.m., Eastern time, on the
date the interest rate is fixed. If; however, no yield is
available for the period selected, then the interest rate shall be
interpolated based on the interest rates quoted for the next
longest and shortest periods of time. In the event Telerate ceases
to provide such quotations or materially changes the form or
substance of page 5 (as
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Loan No. T0362
determined by CoBank), then CoBank will notify the Borrower and
the parties hereto will agree upon a substitute basis for
obtaining such quotations.
(b) QUOTED RATE OPTIONS. As to any Portion or
Portions selected by the Borrower, interest shall accrue pursuant
to this quoted fixed rate option at a fixed annual interest rate
(a "Quoted Rate") equal to the rate quoted by CoBank, in its sole
and absolute discretion, on the date any such Portion is to be
fixed pursuant to this option for the Interest Period selected by
the Borrower for such Portion. Under this option, each Portion
so fixed for any separate Interest Period must be in a minimum
amount of $100,000 and Portions may be fixed for Interest Periods
ranging from 30 days to the Maturity Date; provided, however,
that Interest Periods may expire only on a Business Day; and
provided further, however, that each Portion of the Loan accruing
interest at a Quoted Rate shall be repaid in part as provided in
Section 5 on each Payment Date occurring during its applicable
Interest Period.
(3) SELECTION AND CHANGES OF RATES. The Borrower
shall select the initial interest rate or rates at the time it gives
CoBank written notice of the Funding Date pursuant to Section 3. The
Borrower may, on any Business Day, elect to have one of the fixed rate
options apply to any Portion of the Loan then accruing interest at the
Variable Rate. With respect to any Portion of the Loan accruing interest
pursuant to one of the fixed rate options, the Borrower may, subject to
Subsection (A)(2), on the last day of the Interest Period for such
Portion, elect to fix the interest rate accruing on such Portion for
another Interest Period pursuant to one of the fixed rate options. In
the absence of any such election, interest shall automatically accrue on
such Portion of the Loan at the Variable Rate. From time to time the
Borrower may elect on a Business Day and upon payment of the Surcharge
(as defined in, and calculated pursuant to, Section 6) to convert all,
but not part, of any Portion of the Loan accruing interest pursuant to
one of the fixed rate options to accrue interest at the Variable Rate or
pursuant to another fixed rate option for an Interest Period as provided
in Subsection (A)(2). Except for the initial selection, all interest
rate selections provided for herein shall be made by telephonic or
written request of an authorized employee of the Borrower by 12:00 noon,
Eastern time, on the relevant day.
(4) ACCRUAL OF INTEREST. Interest shall accrue
pursuant to the one of the fixed rate options from and including the
first day of the applicable Interest Period to but excluding the last
day of the Interest Period. If the Borrower elects to refix the interest
rate on any Portion of the Loan pursuant to Subsection (A)(3), the first
day of the new Interest Period shall be the last day of the preceding
Interest
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Loan No. T0362
Period. In the absence of any such election, interest shall accrue on
such Portion at the Variable Rate from and including the last day of
such Interest Period. If the Borrower elects to convert from one of the
fixed rate options to the Variable Rate or to another fixed rate upon
payment of the Surcharge as provided in Subsection (A)(3), interest at
the existing fixed rate shall accrue through the day before such
conversion and either (i) the first day of any new Interest Period shall
be the date of such conversion, or (ii) interest at the Variable Rate
shall accrue on the Portion of the Loan so converted from and including
the date of conversion.
(B) MARGIN ADJUSTMENTS. Notwithstanding the foregoing, if the
spread between CoBank's cost of funds (as determined by CoBank in accordance
with its methodology) and the U.S. Treasury Rate for any Interest Period
selected by the Borrower pursuant to Subsection (A) should widen (or lessen)
from the spread in effect for the same period of time on December 19, 1994, then
the Treasury Margin may be adjusted upward (or downward) at CoBank's discretion
to reflect any such change. No adjustment shall be applied retroactively to any
Portion of the Loan prior to the end of the Interest Period for such Portion.
(C) PAYMENT AND CALCULATION. The Borrower shall pay interest
monthly in arrears by the 20th day of the following month, upon any prepayment
and at maturity. Interest shall be calculated on the actual number of days the
Loan, or any part thereof; is outstanding on the basis of a year consisting of
360 days. In calculating accrued interest, the date the Loan is made shall be
included and the date any principal amount of the Loan is repaid or prepaid
shall be excluded as to such amount.
(D) DEFAULT RATE. If prior to maturity the Borrower fails to make
any payment or investment required to be made under the terms of this Agreement
or the Note (including this Section 4) or the Note (as defined in Section 7),
then, at CoBank's option in each instance, such payment or investment shall
accrue interest at 4% per annum in excess of the Variable Rate. After maturity,
whether by reason of acceleration or otherwise, the unpaid principal balance of
the Loan shall automatically accrue interest at 4% per annum in excess of the
Variable Rate. All interest provided for in this Subsection (D) shall be payable
on demand and shall be calculated from and including the date such payment was
due to but excluding the date paid on the basis of a year consisting of 360
days.
(E) ORIGINATION FEE. The Borrower shall pay to CoBank a
non-refundable origination fee in the amount of $135,000, of which $10,000 was
paid by the Borrower upon acceptance of CoBank's commitment letter, dated
December 5, 1994, relating to the Loan.
SECTION 5. PRINCIPAL REPAYMENT AND MATURITY. The outstanding principal
balance of the Loan shall be repaid in ninety-one (91) consecutive monthly
installments, due on the
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20th day of each month (each, a "Payment Date"), commencing on June 20, 1995,
with the last such monthly installment due on December 20, 2002 (the "Maturity
Date"). The amount of each such monthly installment of principal during each of
the following periods shall be equal to the amount derived by multiplying the
initial principal balance of the Loan by the percentage set forth below for
each such period:
PERIOD PERCENTAGE
------ ----------
June 1995 to December 1995 0.643%
January 1996 to December 1996 0.667%
January 1997 to December 1997 0.834%
January 1998 to December 1998 0.834%
January 1999 to December 1999 1.042%
January 2000 to December 2000 1.042%
January 2001 to December 2001 1.459%
January 2002 to December 2002 2.084%
Any Portion of the Loan accruing interest at the Variable Rate and each Portion
of the Loan accruing interest at a Treasury Rate shall be reduced by an amount
equal to the amount of each installment payment made pursuant to this Section 5
multiplied by a fraction, the numerator of which is the outstanding principal
balance of such Portion immediately prior to such payment and the denominator
of which is the total outstanding principal balance of the Loan immediately
prior to such payment. On the Maturity Date, the amount of the then unpaid
principal balance of the Loan and any and all other amounts due and owing
hereunder or under any other Loan Document shall be due and payable. If any
Payment Date is not a Business Day, then the principal installment then due
shall be paid on the next Business Day and shall continue to accrue interest
until paid.
SECTION 6. PREPAYMENT. The Borrower may, on one Business Day's prior
written notice, (i) prepay in full or in part any Portion of the Loan accruing
interest at the Variable Rate, and (ii) prepay in full (but not in part) any
Portion of the Loan accruing interest pursuant to one of the fixed rate
options. Any prepayment shall be applied in such a manner as to reduce the
amount owing on each remaining principal installment due pursuant to Section 5
by a percentage determined by dividing the amount prepaid by the total unpaid
principal balance of the Loan immediately prior to such prepayment. For
purposes of calculating the surcharge provided in this Section 6, but not for
purposes of reducing amounts due on each Payment Date, conversion of a Portion
of the Loan accruing interest pursuant to one of the fixed rate options to a
different rate pursuant to Section 4(A)(3) shall be deemed a prepayment in
full of that Portion of the Loan. Notwithstanding the foregoing, upon any
prepayment of any Portion of the Loan accruing interest pursuant to one of the
fixed rate options, and as a condition to any voluntary prepayment, the
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Borrower shall pay to CoBank, on the date of such prepayment, a surcharge (the
"Surcharge") determined and calculated as follows:
(A) Determine the difference between: (i) CoBank's cost of funds
(determined in accordance with its standard methodology) on the date the
interest rate was fixed to fund the Portion of the Loan being prepaid; minus
(ii) CoBank's cost of funds (determined in accordance with such methodology) on
the date of prepayment to fund a new loan with a maturity equal to the
remainder of the selected Interest Period of the Portion of the Loan being
prepaid. If such difference is negative, then no Surcharge is payable.
(B) If such difference is positive, divide the result determined
in Subsection (A) by 12.
(C) For each month or part thereof during which the Portion of
the Loan being prepaid was scheduled to have been outstanding, multiply the
amount determined in Subsection (B) by that part of the Portion of the Loan
being prepaid that was scheduled to have been outstanding during such month
(such that there is a monthly calculation for each month during which the
Portion of the Loan being prepaid was scheduled to have been outstanding).
(D) Determine the present value of each monthly calculation made
under Subsection (C) based upon the scheduled time that interest on the Portion
of the Loan being prepaid would have been payable and a discount rate equal to
the rate set forth in Subsection (A)(ii).
(E) Add all of the calculations made under Subsection (D). The
result shall be the Surcharge.
SECTION 7. NOTE. The Borrower's obligation to repay the Loan shall be
evidenced by a promissory note in form and content acceptable to CoBank and the
Borrower (as the same may be amended, supplemented, extended or restated from
time to time, and any promissory note that may be issued from time to time in
substitution, renewal, extension, replacement or exchange therefor, the
"Note").
SECTION 8. MANNER AND TIME OF PAYMENT. If any date on which payment is
due hereunder is not a Business Day, the payment shall be made on the next
succeeding Business Day. The Borrower shall make each payment under this
Agreement and under the Note by wire transfer of immediately available funds or
by check. Wire transfers shall be made to the Federal Reserve Bank of Kansas
City for advice to and credit of CoBank, Federal Reserve Bank account number
3070-88-75-4 (or to such other account as CoBank may designate by notice) with
sufficient information to identify the source and application
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of such funds. The Borrower shall give CoBank telephonic notice no later than
12:00 noon, Eastern time, of its intent to pay by wire transfer. Wire transfers
received after 3:00 p.m., Eastern time, shall be credited on the next Business
Day. Checks shall be mailed or delivered to CoBank at Drawer CS 198552,
Xxxxxxx, Xxxxxxx 00000-0000 (or to such other address as CoBank may designate
by notice). Credit for payment by check will not be given until the next
Business Day after receipt of the check or the actual receipt of immediately
available funds, whichever is later.
SECTION 9. CAPITALIZATION. The Borrower agrees to purchase such equity
in CoBank as CoBank may from time to time require in accordance with its bylaws
and capital plan; provided, however, that CoBank may not require the Borrower
to purchase equity in CoBank in an amount greater than 13% of the portion of
CoBank's five-year average risk-adjusted asset base attributable to loans made
by CoBank to the Borrower. In connection with the foregoing, the Borrower
hereby acknowledges receipt, prior to the execution of this Agreement, of
CoBank's bylaws, a written description of the terms and conditions under which
the equity is issued, CoBank's Loan-Based Capital Plan, CoBank's most recent
annual report, and if more recent than CoBank's latest annual report, its
latest quarterly report. The Borrower hereby consents and agrees that the
amount of any distributions with respect to its patronage with CoBank that are
made in qualified written notices of allocation (as defined in 26 U.S.C.
Section 1388) and that are received by the Borrower from CoBank, will be taken
into account by the Borrower at the stated dollar amounts whether the
distribution is evidenced by a Participation Certificate or other form of
written notice that such distribution has been made and recorded in the name of
the Borrower on the records of CoBank. All such investments and all other
equities which the Borrower may now own or hereafter acquire or be allocated in
CoBank shall be subject to a statutory first lien in favor of CoBank.
SECTION 10. SECURITY. The Loan and the Note are secured by an assignment
of that certain Promissory Note, dated of even date herewith, made by MCTC to
the order of the Borrower, in the original principal amount of $18,000,000 (as
the same may be amended, supplemented extended or restated from time to time,
and any promissory note that may be issued from time to time in substitution,
renewal, extension, replacement or exchange therefore, "MCTC Note").
The Loan is guaranteed by that certain (i) Continuing Guaranty, dated as
of even date herewith, made by MCTC for the benefit of CoBank (as the same may
be amended, supplemented, extended or restated from time to time, the "MCTC
Guaranty"). The Loan, the Note, the MCTC Note and MCTC Guaranty are secured by
that certain (a) Multiple Indebtedness Mortgage, dated as of even date
herewith, made by MCTC to CoBank, as beneficiary of the MCTC Guaranty and the
holder of the Note and the MCTC Note (as the same may be amended, supplemented,
extended or restated from time to time, the
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"Mortgage"), pursuant to which MCTC shall grant to CoBank a first priority lien
and security interest in all of its now owned or hereafter acquired real
property, and (b) Security Agreement, dated as of even date herewith, made by
MCTC to CoBank, as beneficiary of the MCTC Guaranty and holder of the Note and
the MCTC Note (as the same may be amended, supplemented, extended or restated
from time to time, the "Security Agreement"), pursuant to which MCTC 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, to the extent permitted by law, all licenses and permits
issued by the Federal Communications Commission ("FCC")), subject to such
exceptions as are therein permitted.
The Loan, the Note, the MCTC Note and the MCTC Guaranty are guaranteed
by those certain Limited Recourse Continuing Guaranties, each dated as of even
date herewith, made by (I) Cameron Communications Corporation ("CCC") for the
benefit of CoBank (as the same may be amended, supplemented, extended or
restated from time to time, the "CCC Limited Recourse Guaranty"), and (II)
Mercury, Inc. ("Mercury") for the benefit of CoBank (as the same may be
amended, supplemented, extended or restated from time to time, the "Mercury
Limited Recourse Guaranty").
The Loan, the Note, the MCTC Note, the MCTC Guaranty, and the CCC
Limited Recourse Guaranty are secured by that certain Pledge Agreement, dated
as of even date herewith, by and between CCC and CoBank, as beneficiary of the
MCTC Guaranty and the CCC Limited Recourse Guaranty and as holder of the Note
and MCTC Note (as the same may be amended, supplemented, extended or restated
from time to time, the "CCC Pledge Agreement"), pursuant to which CCC shall
pledge, on a first priority basis, all of its now owned or hereafter acquired
capital stock in MCTC. The Loan, the Note, the MCTC Note, the MCTC Guaranty and
the Mercury Limited Recourse Guaranty are secured by that certain Pledge
Agreement, dated as of even date herewith, by and between Mercury and CoBank,
as beneficiary of the MCTC Guaranty and the Mercury Limited Recourse Guaranty
and as holder of the Note and the MCTC Note (as the same may be amended,
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 now owned or hereafter acquired capital stock in MCTC.
SECTION 11. CONDITIONS PRECEDENT. CoBank's obligation to make the Loan
is subject to the satisfaction of each of the following conditions precedent on
or before the Funding Date:
(A) LOAN DOCUMENTS. That CoBank receive duly executed originals
of this Agreement, the Note, the MCTC Note, duly assigned to it, the MCTC
Guaranty, the Mortgage, the Security Agreement, the CCC Limited Recourse
Guaranty, the CCC Pledge
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Agreement, the Mercury Limited Recourse Guaranty, the Mercury Pledge Agreement
and all other instruments and documents contemplated hereby or thereby
(collectively, the "Loan Documents").
(B) AUTHORIZATION. That CoBank receive copies of all corporate
documents and proceedings of the Borrower, MCTC, CCC 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.
(C) 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 have been obtained and are in full force and effect.
(D) OPINIONS OF COUNSEL. That CoBank receive opinions of counsel
for the Borrower, MCTC, CCC and Mercury (who shall be mutually acceptable to
CoBank) in form and content acceptable to all parties.
(E) FEES AND EXPENSES. That the Borrower pay the remainder of
the origination fee set forth in Section 4(E) and the costs and expenses
required to be paid by the Borrower pursuant to Section 20.
(F) PERMITS. That CoBank receive evidence satisfactory to it
that the Borrower and MCTC possesses all necessary operating permits,
authorizations, approvals, and the like which are material to the conduct of
the Borrower's business or which may otherwise be required by law.
(G) INSURANCE. That CoBank receive evidence of insurance by the
Borrower in such amounts and covering such risks as are usually carried by
companies in the same or similar business.
(H) ENVIRONMENTAL MATTERS. That CoBank receive from MCTC an
environmental checklist on a form prescribed by CoBank covering all real
property owned or leased by MCTC and copies of MCTC's environmental records and
procedures, all of such information to be satisfactory to CoBank in its sole
discretion.
(I) 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 Funding Date, CoBank has a duly perfected security interest or lien in
all collateral covered by the Mortgage, the Security Agreement, the CCC Pledge
Agreement and the Mercury Pledge
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Agreement subject in each case to no prior liens other than as may be permitted
under any such document.
(J) NO MATERIAL ADVERSE CHANGE. That from December 31, 1993, to
the Funding Date there shall not have occurred any event which has had or could
have a Material Adverse Effect (as hereinafter defined) on the Borrower or
MCTC. 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.
(K) 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.
(L) CLOSING CERTIFICATE. That CoBank receive a certificate, in
the form attached hereto as Exhibit A, dated the Funding Date, signed by
officers of the Borrower, MCTC, CCC and Mercury as CoBank shall request
acceptable to CoBank, certifying as to the truth and accuracy of the
representations and warranties of the Borrower, MCTC, CCC and Mercury under the
Loan Documents to which each is a party, the satisfaction of each of the
conditions applicable to the making of the Loan specified herein and the other
matters set forth therein.
(M) MCK LOAN. That all conditions precedent to the making of the
initial advance set forth in Section 11(A) of the certain Loan Agreement, by
and between CoBank and MCK, dated as of April 20, 1995, be satisfied (the "MCK
Loan).
(N) EVENT OF DEFAULT. That no Event of Default (as that term is
defined in Section 15) exists, and that there has occurred no event which with
the passage of time or the giving of notice, or both, could become an Event of
Default (each such event, a "Default").
(O) REPRESENTATIONS AND WARRANTIES. That the representations
and warranties of the Borrower contained in this Agreement and any other Loan
Document to which it is a party, of MCTC contained in the MCTC Guaranty and any
other Loan Document to which it is a party, of CCC contained in the CCC Limited
Recourse Guaranty and any other Loan Document to which it is a party, and of
Mercury contained in the Mercury Limited Recourse Guaranty and any other Loan
Document to which it is a party, be true and correct in all material respects
on and as of the Funding Date, as though made on and as of the Funding Date.
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(P) OTHER DOCUMENTS. That CoBank receive such other opinions,
certificates and documents as CoBank may reasonably request.
SECTION 12. REPRESENTATIONS AND WARRANTIES. To induce CoBank to make the
Loan hereunder, and recognizing that CoBank is relying hereon, the Borrower
represents and warrants, as of the date of this Agreement and as of the Funding
Date, as follows:
(A) ORGANIZATION; POWERS; ETC. The Borrower (i) is duly
organized, validly existing, and in good standing under the laws of the state
of its incorporation; (ii) is duly qualified to do business and is in good
standing in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification; (iii) has all requisite
corporate and legal power to own and operate its assets and to carry on its
business and to enter into and perform its obligations under the Loan Documents
to which it is a party; (iv) has duly and lawfully obtained and maintains all
licenses, certificates, permits, authorizations, approvals, and the like which
are material to the conduct of its business or which may be otherwise required
by law; (v) is a wholly-owned subsidiary of Cameron Telephone Company; and (vi)
is eligible to borrow from CoBank.
(B) DUE AUTHORIZATION; NO VIOLATIONS; ETC. The execution and
delivery by the Borrower of, and the performance by the Borrower of its
obligations under, the Loan Documents to which it is a party have been duly
authorized by all requisite corporate action on the part of the Borrower and
its shareholders and do not and will not (i) violate any provision of any law,
rule or regulation, any judgment, order or ruling of any court or governmental
agency, the articles of incorporation or bylaws, if any, of the Borrower, or
any agreement, indenture, mortgage, or other instrument to which the Borrower
is a party or by which the Borrower or any of its properties are bound, or (ii)
be in conflict with, result in a breach of, or constitute with the giving of
notice or lapse of time, or both, a default under any such agreement,
indenture, mortgage, or other instrument.
(C) GOVERNMENTAL APPROVAL. No consent, permission,
authorization, order, or license of any governmental authority is necessary in
connection with the execution, delivery, performance, or enforcement of the
Loan Documents to which the Borrower is a party or the creation and perfection
of the liens and security interests granted thereby, except such as have been
obtained and are in full force and effect.
(D) BINDING AGREEMENT. Each of the Loan Documents to which the
Borrower is a party is, or when executed and delivered will be, the legal,
valid, and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its terms, subject only to limitations on enforceability
imposed by (i) applicable bankruptcy, insolvency, reorganization, moratorium,
or similar laws affecting creditors' rights generally, and (ii) general
equitable principles.
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(E) COMPLIANCE WITH LAWS. The Borrower is in compliance in all
material respects with all federal, state, and local laws, rules, regulations,
ordinances, codes, and orders (collectively, "Laws"), the failure to comply
with which could have a Material Adverse Effect on the Borrower.
(F) ENVIRONMENTAL COMPLIANCE. Without limiting the provisions
of Subsection (E), all property owned or leased by the Borrower and all
operations conducted by it are in compliance in all material respects with all
Laws relating to environmental protection, the failure to comply with which
could have a Material Adverse Effect on the Borrower.
(G) LITIGATION. There are no pending legal, arbitration, or
governmental actions or proceedings to which the Borrower is a party or to
which any of its property is subject which could have a Material Adverse Effect
on the Borrower, and to the best of the Borrower's knowledge, no such actions
or proceedings are threatened or contemplated.
(H) FINANCIAL STATEMENTS; NO MATERIAL ADVERSE CHANGE; ETC. The
audited financial statements of MCTC for the fiscal year ended December 31,
1993, the unaudited financial statements of MCTC for the fiscal year ended
December 31, 1994, and the unaudited financial statements of MCTC for the
two-month period ended February 28, 1995, submitted to CoBank in connection
with the Loan fairly and fully present in all material respects the financial
condition of MCTC and the results of MCTC's operations for the periods covered
thereby and were prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied and any system of accounts to which
MCTC is subject. Since December 31, 1993, there has occurred no event which has
had or would have a Material Adverse Effect on the Borrower. All budgets,
projections, feasibility studies, and other documentation submitted by MCTC to
CoBank in connection with the Loan were based upon assumptions that were
reasonable and realistic at the time submitted and, as of the date hereof, no
fact has come to light, and no event or transaction has occurred, which would
cause any assumption made therein not to be reasonable or realistic.
(I) PRINCIPAL PLACE OF BUSINESS; RECORDS. The principal place of
business and chief executive office of the Borrower and the place where the
records required by Section 13(G) are kept is at the address of the Borrower
shown in Section 19.
(J) EMPLOYEE BENEFIT PLANS. To the extent applicable, the
Borrower is in compliance in all material respects with the applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended,
and the regulations and published interpretations thereunder.
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(K) TAXES. The Borrower has filed or caused to be filed all
federal, state and local tax returns that are required to be filed, and has
paid all taxes as shown on said returns or on any assessment received by the
Borrower to the extent that such taxes have become due, unless such taxes are
being contested by the Borrower, in good faith and by appropriate proceedings
and then only to the extent reserves required by GAAP have been set aside on
the Borrower's books therefor.
(L) INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT.
The Borrower is not an "investment company" as that term is defined in, and is
not otherwise subject to regulation under, the Investment Company Act of 1940,
as amended. The Borrower is not a "holding company" as that term is defined
in, and is not otherwise subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended.
(M) USE OF PROCEEDS. The funds to be borrowed hereunder will be
used only as contemplated hereby. No part of such funds will be used to
purchase any "margin securities" or otherwise in violation of the regulations
of the Federal Reserve System.
(N) SUBSIDIARIES. The Borrower has no subsidiaries.
(O) BUSINESS. The Borrower's sole business activity and
operation is to borrow and reloan proceeds of such borrowings to MCTC and other
affiliated entities.
SECTION 13. AFFIRMATIVE COVENANTS. Unless otherwise agreed to in writing
by CoBank, while this Agreement is in effect, the Borrower covenants and agrees
to:
(A) CORPORATE EXISTENCE. Preserve and keep in full force and
effect its corporate existence and good standing in the jurisdiction of its
incorporation, and its qualification to transact business and good standing in
all places in which the character of its properties or the nature of its
business requires such qualification.
(B) COMPLIANCE WITH LAWS AND AGREEMENTS. Comply in all material
respects with (i) all Laws, the failure to comply with which could have a
Material Adverse Effect on the Borrower; and (ii) all agreements, indentures,
mortgages, and other instruments to which it is a party or by which it or any
of its property is bound.
(C) COMPLIANCE WITH ENVIRONMENTAL LAWS. Without limiting the
provisions of Subsection (B), comply in all material respects with, and cause
all persons occupying or present on any properties owned or leased by it to so
comply with, all Laws relating to environmental protection, the failure to
comply with which could have a Material Adverse Effect on the Borrower.
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(D) LICENSES; Permits; Etc. Duly and lawfully obtain and
maintain in full force and effect all licenses, certificates, permits,
authorizations, approvals, and the like which are material to the conduct of
its business or which may be required by Law.
(E) INSURANCE. Maintain insurance with insurance companies or
associations acceptable to CoBank in such amounts and covering such risks as
are usually carried by companies engaged in the same or similar business and
similarly situated, and make such increases in the type or amount of coverage
as CoBank may request. All such policies insuring any collateral provided for
in any Loan Document shall provide for loss payable clauses or endorsements in
form and content acceptable to CoBank. At the request of CoBank, all policies
(or such other proof of compliance with this Subsection (E) as may be to
CoBank) shall be delivered to CoBank.
(F) PROPERTY MAINTENANCE. Maintain and preserve at all times
its property, and each and every part and parcel thereof, in good repair,
working order and condition, ordinary wear and tear excepted.
(G) BOOKS AND RECORDS. Keep adequate records and books of
account in accordance with GAAP consistently applied and any system of accounts
to which it is subject.
(H) INSPECTION. Permit CoBank or its agents, during normal
business hours or at such other times as the parties may agree, to examine its
properties, books, and records, and to discuss its affairs, finances,
operations, and accounts with its officers, directors, employees, and
independent certified public accountants.
(I) REPORTS AND NOTICES. Furnish to CoBank:
(1) ANNUAL FINANCIAL STATEMENTS. As soon as available,
but in no event later than 120 days after the end of each fiscal year of
MCTC occurring during the term hereof, annual consolidated and
consolidating financial statements of MCTC prepared in accordance with
GAAP consistently applied and any system of accounts to which MCTC is
subject. Each of such financial statements shall: (i) be audited by
independent certified public accountants selected by MCTC and acceptable
to CoBank; (ii) be accompanied by a report of such accountants
containing an opinion acceptable to CoBank; (iii) be prepared in
reasonable detail; and (iv) include a balance sheet, a statement of
income, a statement of retained earnings, a statement of cash flows, and
all notes and schedules relating thereto.
(2) MONTHLY AND YEAR-TO-DATE FINANCIAL STATEMENTS. As
soon as available but in no event later than 60 days after the end of
each of the first three
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fiscal quarters of each fiscal year of MCTC occurring during the term
hereof, unaudited monthly (for the three months immediately preceding
such fiscal quarter end) and year-to-date financial statements of MCTC
prepared in accordance with GAAP consistently applied and any system of
accounts to which MCTC is subject (except for the omission of footnotes
and for the effect of normal year-end audit adjustments). Each of such
financial statements shall: (i) be prepared in reasonable detail; and
(ii) include a balance sheet, a statement of income for such months and
period year-to-date, a statement of cash flows, and such other months
statements as CoBank may specifically request, which statements shall
include any and all supplements thereto.
(3) FINANCIAL FORECAST. As soon as available, but in no
event later than 30 days after the first day of each fiscal year of MCTC
occurring during the term hereof, a one-year financial forecast for MCTC
which shall include, without limitation, a statement of income, a
balance sheet, a statement of sources and uses of funds, capital
expenditure projections and such other information as CoBank shall
reasonably require.
(4) NOTICE OF DEFAULT. Promptly after becoming aware
thereof, notice of (a) the occurrence of any Default or Event of Default
hereunder or under any other Loan Document, and (b) the occurrence of
any breach, default, event of default, or other event which with the
giving of notice or lapse of time, or both, could become a breach,
default, or event of default under any agreement, indenture, mortgage,
or other instrument (other than the Loan Documents) to which the
Borrower is a party or by which the Borrower or any of its property is
bound or affected if the effect of such breach, default, event of
default, or other event is to accelerate, or to permit the acceleration
of, the maturity of any indebtedness under such agreement, indenture,
mortgage, or other instrument; provided, however, that the failure to
give such notice shall not affect the right and power of CoBank to
exercise any and all of the remedies specified herein.
(5) NOTICE OF NON-ENVIRONMENTAL LITIGATION. Promptly
after the commencement thereof, notice of the commencement of all
actions, suits, or proceedings before any court, arbitrator, or
governmental department, commission, board, bureau, agency, or
instrumentality affecting the Borrower which could have a Material
Adverse Effect on the Borrower.
(6) NOTICE OF ENVIRONMENTAL LITIGATION. Without limiting
the provisions of Subsection (I)(5), promptly after receipt or becoming
aware thereof, notice of the receipt of all pleadings, orders,
complaints, indictments, or other communications alleging a condition
that may require the Borrower to undertake or
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to contribute to a cleanup or other response under Laws relating to
environmental protection, or which seeks penalties, damages, injunctive
relief, or criminal sanctions related to alleged violations of such
Laws, or which claims personal injury or property damage to any person
or property as a result of environmental factors or conditions or which
could have a Material Adverse Effect on the Borrower.
(7) REGULATORY AND OTHER NOTICES. Promptly after filing,
receipt or becoming aware thereof, copies of any filings or
communications sent to or notices or other communications received by
the Borrower or MCTC from any governmental authority, including, without
limitation, the Louisiana Public Service Commission (the "Commission")
and the FCC, relating to any noncompliance by the Borrower or MCTC with
any Law or with respect to any matter or proceeding the effect of which
could have a Material Adverse Effect on the Borrower or MCTC.
(8) MATERIAL ADVERSE CHANGE. Prompt notice of any matter
which has had or could have a Material Adverse Effect on the Borrower or
MCTC.
(9) COMPLIANCE CERTIFICATES. Concurrently with each
financial statement required to be furnished pursuant to Subsections
(I)(1) and (I)(2), a certificate in the form attached hereto as Exhibit
B executed by the chief accounting officer of MCTC.
(10) ERISA REPORTABLE EVENTS. Within 10 days after the
Borrower becomes aware of the occurrence of any Reportable Event (as
defined in Section 4043 of ERISA) with respect to the Borrower or MCTC,
a statement describing such Reportable Event and the actions proposed to
be taken in response to such Reportable Event.
(11) OTHER INFORMATION. Such other information regarding
the condition, financial or otherwise, or operations of the Borrower or
MCTC as CoBank may, from time to time, reasonably request.
SECTION 14. NEGATIVE COVENANTS. Unless otherwise agreed to in writing
by CoBank, while this Agreement is in effect, the Borrower shall not:
(A) BORROWINGS. Create, incur, assume, or allow to exist,
directly or indirectly, any indebtedness or liability for borrowed money, for
the deferred purchase price of property or services, or for the lease of real
or personal property which lease is required to be capitalized under GAAP or
which is treated as an operating lease under regulations applicable to it but
which otherwise would be required to be capitalized under GAAP, except for
obligations to CoBank.
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(B) LIENS. Create, incur, assume, or allow to exist any
mortgage, deed of trust, deed to secure debt, pledge, lien (including the lien
of an attachment, judgment, or execution), security interest, or other
encumbrance of any kind upon any of its property, real or personal, except in
favor of CoBank.
(C) MERGERS; ACQUISITIONS; ETC. Merge or consolidate with any
other entity or acquire all or substantially all of the assets of any person or
entity, or form or create any subsidiary, or commence operations under any
other name, organization, or entity, including any joint venture.
(D) TRANSFER OF ASSETS. Sell, transfer, lease, enter into any
contract for the sale, transfer or lease of, or otherwise dispose of, any of
its assets.
(E) LOANS AND INVESTMENTS. After the date hereof, make any loan
or advance to, invest in, purchase or make any commitment to purchase any
stock, bonds, notes, or other securities of any person or entity, other than
stock or other securities of CoBank and the advances to its affiliated entities
of loan proceeds received from CoBank as contemplated by this Agreement or any
other loan agreement entered into between CoBank and the Borrower.
(F) GUARANTEES. Guarantee, assume or otherwise become obligated
or liable with respect to the indebtedness or other obligations of any person
or entity.
(G) CHANGE IN BUSINESS. Engage in any business activity or
operation different from or unrelated to the Borrower's current business
activities or operations.
(H) DISPOSITION OF LICENSES. Sell, assign, transfer, or
otherwise dispose of, or attempt to dispose of, in any way, any registrations,
licenses, franchises, grants, permits, or other governmental approvals.
SECTION 15. EVENTS OF DEFAULT. Each of the following shall constitute an
"Event of Default" hereunder:
(A) PAYMENT DEFAULT. The failure by the Borrower to make any
payment or investment required to be made hereunder, under the Note, or under
any other Loan Document when due.
(B) REPRESENTATIONS AND WARRANTIES. Any representation or
warranty made by the Borrower, MCTC, CCC or Mercury herein or in any other Loan
Document, or any factual statement made in any certificate delivered in
connection with the Loan, shall prove to have been false or misleading in any
material respect on or as of the date made.
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(C) CERTAIN AFFIRMATIVE COVENANTS. The failure by the Borrower
to perform or comply with any covenant set forth in Section 13 (other than
Sections 13(A) and 13(I)(4), (5), (6), (7), (8) and (10)), and such failure
continues for 30 days after written notice thereof shall have been delivered by
CoBank to the Borrower.
(D) OTHER COVENANTS AND AGREEMENTS. The failure by the Borrower
to perform or comply with any other covenant or agreement contained herein,
including, without limitation, any covenant excluded under Subsection (C)
above.
(E) CROSS-DEFAULT. The occurrence of any breach, default, event
of default, or event which with the giving of notice or lapse of time, or both,
could become a default or event of default under (i) any Loan Document other
than this Agreement, or (ii) the terms of any agreement (other than the Loan
Documents) between the Borrower, MCTC, CCC or Mercury, and CoBank, including,
without limitation, any guaranty, loan agreement, security agreement, pledge
agreement, mortgage, deed to secure debt, or deed of trust.
(F) OTHER INDEBTEDNESS. The occurrence of any breach, default,
event of default, or event which with the giving of notice or lapse of time, or
both, could become a default or event of default under any agreement,
indenture, mortgage, or other instrument by which the Borrower or MCTC or any
of their respective property is bound or affected (other than the Loan
Documents) if the effect of such breach, default, event of default, or event is
to accelerate, or to permit the acceleration of, the maturity of any
indebtedness under such agreement, indenture, mortgage, or other instrument.
(G) JUDGMENTS. Any judgment, decree or order for the payment of
money shall be rendered against the Borrower or judgments, decrees or orders
for the payment of money in an aggregate amount in excess of $75,000 shall be
rendered against MCTC and either (i) enforcement proceedings shall have been
commenced; or (ii) such judgments, decrees, and orders shall continue
unsatisfied and in effect for a period of 45 consecutive days without being
vacated, discharged, satisfied, or stayed pending appeal.
(H) INSOLVENCY, ETC. Any of the Borrower, MCTC, CCC or Mercury
(i) shall become insolvent or shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they come due; or
(ii) shall suspend its business operations or a material part thereof or make
an assignment for the benefit of creditors; or (iii) shall apply for, consent
to, or acquiesce in the appointment of a trustee, receiver, or other custodian
for it or any of its property or, in the absence of such application, consent,
or acquiescence, a trustee, receiver, or other custodian is so appointed; or
(iv) shall commence with respect to it or have commenced against it any
proceeding under any
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bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or
liquidation law or statute of any jurisdiction.
(I) ELIGIBILITY. The failure by the Borrower to maintain its
eligibility to borrow from CoBank.
(J) SECURITY. Any of the Mortgage, the Security Agreement, the
CCC Pledge Agreement or the Mercury Pledge Agreement or the filings
contemplated thereby, shall for any reason fail (i) to create a valid and
perfected first-priority lien or security interest (subject only to such
exceptions as are therein permitted) on any of the property identified therein,
or (ii) to secure thereunder the obligations evidenced by this Agreement, the
Note, the MCTC Note, the MCTC Guaranty, the CCC Limited Recourse Guaranty or
the Mercury Limited Recourse Guaranty, as applicable. Any of the MCTC Guaranty,
the CCC Limited Recourse Guaranty or the Mercury Limited Recourse Guaranty
shall fail for any reason to be the valid and binding obligations of MCTC, CCC
or Mercury, respectively, or any of MCTC, CCC or Mercury shall in any way
contest or dispute the validity and binding effect of the MCTC Guaranty, the
CCC Limited Recourse Guaranty or the Mercury Limited Recourse Guaranty.
SECTION 16. REMEDIES UPON EVENT OF DEFAULT.
(A) AUTOMATIC ACCELERATION. Upon the occurrence of an Event of
Default under Section 15(H), the entire unpaid principal balance of the Note,
all accrued interest thereon, and all other amounts payable under this
Agreement, the Note, and all other agreements between CoBank and the Borrower
shall become immediately due and payable without protest, presentment, demand,
or further notice of any kind, all of which are hereby expressly waived by the
Borrower.
(B) ACCELERATION; ETC. Upon the occurrence of an Event of
Default other than under Section 15(H), upon notice to the Borrower, CoBank may
declare the entire unpaid principal balance of the Note, all accrued interest
thereon, and all other amounts payable under this Agreement and all other
agreements between CoBank and the Borrower, to be immediately due and payable.
Upon such a declaration, the unpaid principal balance of the Note and all such
other amounts shall become immediately due and payable, without protest,
presentment, demand, or further notice of any kind, all of which are hereby
expressly waived by the Borrower.
(C) ENFORCEMENT. Upon the occurrence of an Event of Default,
CoBank may proceed to protect, exercise, and enforce such rights and remedies
as may be provided by agreement or under law including, without limitation, the
rights and remedies provided for in the Note and any of the other Loan
Documents. Each and every one of such rights
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Loan No. T0362
and remedies shall be cumulative and may be exercised from time to time, and no
failure on the part of CoBank to exercise, and no delay in exercising, any
right or remedy shall operate as a waiver thereof; nor shall any single or
partial exercise of any right or remedy preclude any other or future exercise
thereof, or the exercise of any other right. In addition, CoBank may hold
and/or set off and apply against the Borrower's indebtedness any and all cash,
accounts, securities, or other property in CoBank's possession or under its
control.
(D) APPLICATION OF PAYMENTS. After acceleration of the Loan, all
amounts received by CoBank shall be applied to the amounts owing hereunder,
under the Note, and the other Loan Documents in whatever order and manner as
CoBank shall elect.
(E) REGULATORY APPROVALS. Upon any action by CoBank to commence
the exercise of remedies hereunder or under the Mortgage, the Security
Agreement, the CCC Pledge Agreement or the Mercury Pledge Agreement, the
Borrower hereby undertakes and agrees to cooperate and join with CoBank in any
application to the Commission, the FCC, or any other regulatory body,
administrative agency, court or other forum (any such entity, a "Governmental
Authority") with respect thereto and to provide such assistance in connection
therewith as CoBank may request, including, without limitation, the preparation
of filings and appearances of officers and employees of the Borrower before
such Governmental Authority, in each case in support of any such application
made by CoBank, and the Borrower shall not, directly or indirectly, oppose any
such action by CoBank before any such Governmental Authority.
SECTION 17. COMPLETE AGREEMENT; AMENDMENT. This Agreement and the other
Loan Documents are intended by the parties to be a complete and final
expression of their agreement. No amendment, modification, or waiver of any
provision hereof or thereof, nor any consent to any departure of the Borrower
herefrom or therefrom, shall be effective unless approved by CoBank and
contained in a writing signed by or on behalf of CoBank, and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 18. APPLICABLE LAW. Except to the extent governed by applicable
federal law, this Agreement shall be governed by and construed in accordance
with the laws of the State of Louisiana without reference to choice of law
doctrine.
SECTION 19. NOTICES. All notices hereunder shall be in writing and shall
be deemed to be duly given upon delivery, if delivered by "Express Mail,"
overnight courier, messenger or other form of hand delivery or sent by telegram
or facsimile transmission, or 3 days after mailing if sent by certified or
registered mail, to the parties at the following addresses (or such other
address for a party as shall be specified by like notice):
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Loan No. T0362
If to CoBank, as follows: If to the Borrower, as follows:
CoBank, ACB CTC Financial, Inc.
000 Xxxxxxxx Xxxxxxx Xxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxx 0000 X.X. Xxxxxx 3709
Xxxxxxx, Xxxxxxx 00000 Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Rural Utility Banking Group Attn: Xxxxxx Xxxxx; cc:Xxxxxx X. Xxxxxxx
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
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 20 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 obligated to reimburse CoBank
for legal fees (exclusive of associated expenses) for the initial negotiation
and documentation of the Loan which, when aggregated with the legal fees
(exclusive of associated expenses) of CoBank reimbursed by MCK in connection
with the initial negotiation and documentation of the MCK Loan, exceed $60,000.
SECTION 21. EFFECTIVENESS; SEVERABILITY. This Agreement shall continue
in effect until all indebtedness and obligations of the Borrower hereunder and
under all other Loan Documents shall have been fully and finally repaid. Any
provision of the Loan Documents which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or thereof
SECTION 22. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the Borrower and CoBank and their respective
successors and assigns, except that the Borrower may not assign or transfer its
rights or obligations hereunder
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without the prior written consent of CoBank. Without the consent of, but with
notice to, the Borrower, CoBank may (a) sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement, or (b) assign to one or more banks or other entities all or a
portion of its rights and obligations under this Agreement.
SECTION 23. CONSENT TO JURISDICTION. To the maximum extent permitted by
law, the Borrower agrees that any legal action or proceeding with respect to
this Agreement or any of the other Loan Documents may be brought in the courts
of the State of Louisiana or of the United States of America for the Western
District of Louisiana, all as CoBank may elect. By execution of this Agreement,
the Borrower hereby irrevocably submits to each such jurisdiction, expressly
waiving any objection it may have to the laying of venue by reason of its
present or future domicile. Nothing contained herein shall affect the right of
CoBank to commence legal proceedings or otherwise proceed against the Borrower
in any other jurisdiction or to serve process in any manner permitted or
required by law.
SECTION 24. OBLIGATIONS ABSOLUTE. The obligation of the Borrower to make
all payments required to be made under this Agreement shall be independent of
any action by the Commission or the FCC with respect to rates and/or
disallowance of debt.
SECTION 25. COUNTERPARTS. This Agreement 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 26. DEFINED TERMS. For convenience of reference, set forth
below opposite each defined term used in this Agreement is the location in this
Agreement of the definition of such term:
Defined Term Location
------------ --------
Agreement Introductory Paragraph
Borrower Introductory Paragraph
Business Day Section 3
CCC Section 10
CCC Limited Recourse Guaranty Section 10
CCC Pledge Agreement Section 10
CoBank Introductory Paragraph
Commission Section 13(I)(7)
Default Section 11(N)
Event of Default Section 15
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Loan No. T0362
FCC Section 10
Funding Date Section 3
GAAP Section 12(H)
Governmental Authority Section 16(E)
Interest Period Section 4(A)(2)
Laws Section 12(E)
Loan Section 1
Loan Documents Section 11(A)
Material Adverse Effect Section 11(J)
Maturity Date Section 5
MCK Section 2
MCK Loan Section 11(M)
MCTC Section 2
MCTC Guaranty Section 10
MCTC Note Section 10
Mercury Section 10
Mercury Limited Recourse Guaranty Section 10
Mercury Pledge Agreement Section 10
Mortgage Section 10
National Variable Rate Section 4(A)(1)
Note Section 7
Payment Date Section 5
Portion Section 4(A)(1)
Security Agreement Section 10
Surcharge Section 6
Treasury Margin Section 4(A)(2)
Treasury Rate Section 4(A)(2)
U.S. Treasury Rate Section 4(A)(2)
Variable Rate Section 4(A)(1)
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Loan No. T0362
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 April 20, 1995.
CTC FINANCIAL, INC.
By:/s/ XXXXXXX X. XXXXXXX, XX.
----------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: President
Attest: /s/ XXXXXX X. XXXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
[CORPORATE SEAL]
Witnesses to all signatures:
/s/ XXXXXX XXXX
------------------------------
Witness
/s/ XXXXXXX XXXXX
------------------------------
Witness
/s/ XXXXXX XXXX
------------------------------
Notary Public
My commission expires: lifetime commission
-------------------
[NOTARIAL SEAL]
(Signatures Continued on Next Page)
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Loan No. T0362
(Signatures Continued from Previous Page)
At Atlanta, Georgia, on April 26, 1995.
COBANK, ACB
By: /s/ XXXX XXX XXXXXXX
--------------------------------
Name: Xxxx Xxx Xxxxxxx
Title: Assistant Vice President
Witnesses to signature:
/s/ [ILLEGIBLE]
------------------------------------
Witness
/s/ MARA MORE
------------------------------------
Witness
/s/ XXXXXX X. XXXXX
------------------------------------
Notary Public
My commission expires: July 14, 1997
--------------
[NOTARIAL SEAL]
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Loan No. T0362
EXHIBIT A
CLOSING CERTIFICATE - LOAN NO. T0362
THIS CLOSING CERTIFICATE is given by ____________________, President of
CTC FINANCIAL, INC. (the "Borrower"), _____________, President of MERCURY
CELLULAR TELEPHONE COMPANY ("MCTC"), _____________, President of CAMERON
COMMUNICATIONS CORPORATION ("CCC"), and __________________, President of
MERCURY, INC. ("Mercury"), pursuant to Section 11(L) of that certain Loan
Agreement, dated as of April 20, 1995, by and between CoBank, ACB and the
Borrower (the "Loan Agreement"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement.
We hereby certify as follows:
1. We are the President of the Borrower, the President of MCTC, the
President of CCC, and the President of Mercury, respectively, and as such
possess the knowledge and authority to certify to the matters herein set forth,
and the matters herein set forth are true and accurate to the best of our
present knowledge, information and belief after due inquiry;
2. The representations and warranties of the Borrower contained in the
Loan Agreement, of MCTC contained in the MCTC Guaranty, the Mortgage, and the
Security Agreement, of CCC contained in the CCC Limited Recourse Guaranty and
the CCC Pledge Agreement, and of Mercury contained in the Mercury Limited
Recourse Guaranty and the Mercury Pledge Agreement, are true and correct in all
material respects on and as of the date hereof;
3. No Default or Event of Default exists as of the date hereof; and
4. Each of the conditions specified in Section 11 of the Loan Agreement
required to be satisfied on or prior to the effective date hereof has been
fulfilled as of the date hereof.
A-1
27
Loan Agreement/CTC Financial
Loan No. T0362
IN WITNESS WHEREOF, we have executed this Closing Certificate as of May
____, 1995.
----------------------------------
, President
-----------------------
CTC Financial, Inc.
----------------------------------
, President
-----------------------
Mercury Cellular Telephone Company
----------------------------------
, President
-----------------------
Cameron Communications Corporation
----------------------------------
, President
-----------------------
Mercury, Inc.
A-2
28
Loan Agreement/CTC Financial
Loan No. T0362
EXHIBIT B
COMPLIANCE CERTIFICATE - LOAN NO. T0362
THIS COMPLIANCE CERTIFICATE is given by ______________, the [CHIEF
ACCOUNTING OFFICER] of MERCURY CELLULAR TELEPHONE COMPANY ("MCTC"), pursuant to
Section 13(I)(9) of that certain Loan Agreement (the "Loan Agreement"), dated
as of April 20, 1995, by and between CoBank, ACB and CTC Financial, Inc. (the
"Borrower"), and Section 5(I)(9) of that certain Continuing Guaranty, dated as
of April 20, 1995, made by MCTC for the benefit of CoBank (the "MCTC
Guaranty"). Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Loan Agreement.
I hereby certify as follows:
1. I am the [CHIEF ACCOUNTING OFFICER] of MCTC and as such possess
the knowledge and authority to certify to the matters set forth in this
Compliance Certificate;
2. Attached hereto as Annex A are the [AUDITED/UNAUDITED]
[ANNUAL/MONTHLY] [CONSOLIDATED AND CONSOLIDATING] financial statements of MCTC,
for the fiscal [YEAR/QUARTER] ended ______________, as required by Section
13(I) [(1)/(2)] of the Loan Agreement and Section 6(I) [(1)1(2)] of the MCTC
Guaranty. Such financial statements were prepared in accordance with GAAP
consistently applied (except as may be noted therein) and any system of
accounts to which MCTC is subject and fairly present the financial condition of
MCTC during the periods covered thereby and as of the dates thereof (subject,
if applicable, to normal year-end adjustments);
3. As of the date of such financial statements, MCTC is in
compliance with the covenants set forth in Section 5(J) of the MCTC Guaranty.
Attached hereto as Annex B are calculations which demonstrate the compliance by
MCTC with such covenants; and
4. I have reviewed the activities of the Borrower and MCTC, and
consulted with appropriate representatives of the Borrower and MCTC during the
fiscal [YEAR/QUARTER] ended ______________, and reviewed the Loan Documents.
As of the date of this Compliance Certificate, there exists no condition, event
or act which would constitute a Default or Event of Default under the Loan
Agreement, except as disclosed on Annex C hereto.
B-1
29
Loan Agreement/CTC Financial
Loan No. T0362
IN WITNESS WHEREOF, I have executed this Compliance Certificate as of
_____________, ______.
--------------------------------------------
, [CHIEF ACCOUNTING
--------------------------
OFFICER]
Mercury Cellular Telephone Company
B-2
