1
EXHIBIT 4.71
DRAFT DATED: 12/9/96
LOAN XX. X0000
XXXX XX. X0000
XXXX XX. X0000
LOAN NO. T0362
LOAN NO. S0441
COBANK, ACB
ASSIGNMENT, ASSUMPTION AND AGREEMENT REGARDING
AMENDMENTS TO LOAN DOCUMENTS
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 ASSIGNMENT, ASSUMPTION AND AGREEMENT REGARDING AMENDMENTS TO LOAN
DOCUMENTS (this "Agreement") is made and entered into as of December 15, 1996,
by and among COBANK, ACB ("CoBank"), MERCURY CELLULAR OF KANSAS, INC. ("MCK"),
CTC FINANCIAL, INC. ("CTC"), MERCURY CELLULAR TELEPHONE COMPANY ("MCTC"),
MISSISSIPPI ONE CELLULAR TELEPHONE COMPANY ("Mississippi One"), MERCURY, INC.
("Mercury") and XXXXXXX X. XXXXXXX, XX. ("Xx. Xxxxxxx").
R E C I T A L S
WHEREAS, CoBank and CTC have entered into that certain Loan Agreement,
dated as of April 20, 1995 (as the same may be amended, supplemented, extended
or restated from time to time, the "First Loan Agreement"), providing for a
loan of up to $18,000,000 (the "First Loan"); into that certain Amended and
Restated Loan Agreement, dated as of May 15, 1996, as amended
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Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan No. T0310
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
Loan No. S0441
by that certain First Amendment and Supplement to Loan Agreement, dated as of
July 1, 1996 (as the same may be further amended, supplemented, extended or
restated from time to time, the "Second Loan Agreement"), providing for a loan
of up to $32,400,000 (the"Second Loan"); into that certain Loan Agreement,
dated as of May 15, 1996, as amended by that certain Agreement Regarding
Amendments to Loan Documents, dated as of November 15, 1996 (as the same may be
further amended, supplemented, extended or restated from time to time, the
"Third Loan Agreement"), providing for a loan of up to $5,000,000 (the "Third
Loan"); into that certain Loan Agreement, dated as of July 1, 1996 (as the same
may be amended, supplemented, extended or restated from time to time, the
"Fourth Loan Agreement"), providing for a loan of up to $13,000,000 (the
"Fourth Loan"); and into that certain Loan Agreement, dated as of November 25,
1996 (as the same may be amended, supplemented, extended or restated from time
to time, the "Fifth Loan Agreement"; the First Loan Agreement, the Second Loan
Agreement, the Third Loan Agreement, the Fourth Loan Agreement and the Fifth
Loan Agreement, collectively, the "Loan Agreements"), providing for a loan of
up to $4,000,000 (the "Fifth Loan"; the First Loan, the Second Loan, the Third
Loan, the Fourth Loan and the Fifth Loan, collectively, the "Loans"); and
WHEREAS, proceeds of the First Loan have been reloaned by CTC to MCTC
for the purposes set forth in the First Loan Agreement, proceeds of the Second
Loan have been reloaned by CTC to Mississippi One for the purposes set forth in
the Second Loan Agreement, proceeds of the Third Loan have been reloaned by CTC
to Mercury the purposes set forth in the Third Loan Agreement, proceeds of the
Fourth Loan have been reloaned by CTC to MCTC for the purposes set forth in the
Fourth Loan Agreement, and proceeds of the Fifth Loan have been reloaned by CTC
to MCTC for the purposes set forth in the Fifth Loan Agreement; and
WHEREAS, as an inducement to CoBank to enter into the First Loan
Agreement, the Fourth Loan Agreement and the Fifth Loan Agreement and make the
First Loan, the Fourth Loan and the Fifth Loan, MCTC has made that certain
Continuing Guaranty, dated as of April 20, 1995, as amended by that certain
First Amendment and Supplement to Continuing Guaranty, dated as of July 1,
1996, and as further amended by that certain Second Amendment and Supplement to
Continuing Guaranty, dated as of November 25, 1996, for the benefit of CoBank
(as the same may be further amended, modified, supplemented, extended or
restated from time to time, the "MCTC Guaranty"), which guarantees, among other
things, CTC's obligations with respect to the First Loan, the Fourth Loan and
the Fifth Loan; and
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3
Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
Loan No. T0362
Loan No. S0441
WHEREAS, as an additional inducement to CoBank to enter into the First
Loan Agreement and the Fourth Loan Agreement and make the First Loan and the
Fourth Loan, Cameron Communications Company ("CCC") has made that certain
Limited Recourse Continuing Guaranty, dated as of April 20, 1995, as amended by
that certain First Amendment and Supplement to Limited Recourse Guaranty, dated
as of July 1, 1996, for the benefit of CoBank, which has been assumed by
Mercury pursuant to that certain Assumption Agreement, dated as of October 31,
1996, made by Mercury for the benefit of CoBank (as the same may be further
amended, modified, supplemented, extended or restated from time to time, the
"CCC Guaranty"), which on the limited basis provided therein guarantees, among
other things, CTC's obligations with respect to the First Loan and the Fourth
Loan; and
WHEREAS, as an additional inducement to CoBank to enter into the First
Loan Agreement and Fourth Loan Agreement and make the First Loan and the Fourth
Loan, Mercury has made that certain Limited Recourse Continuing Guaranty, dated
as of April 20, 1995, as amended by that certain First Amendment and Supplement
to Limited Recourse Guaranty, dated as of July 1, 1996, for the benefit of
CoBank (as the same may be further amended, modified, supplemented, extended or
restated from time to time, the "Mercury Guaranty"), which on the limited basis
provided therein guarantees, among other things, CTC's obligations with respect
to the First Loan and the Fourth Loan; and
WHEREAS, as an inducement to CoBank to enter into the Second Loan
Agreement and the Third Loan Agreement and make the Second Loan and the Third
Loan, Mississippi One has made that certain Amended and Restated Continuing
Guaranty, dated as of May 15, 1996, as amended by that certain First Amendment
and Supplement to Amended and Restated Guaranty, dated as of July 1, 1996, for
the benefit of CoBank (as the same may the further amended, modified,
supplemented, extended or restated from time to time, the "Mississippi One
Guaranty"), which guarantees, among other things, CTC's obligations with
respect to the Second Loan and the Third Loan; and
WHEREAS, as an additional inducement to CoBank to enter into the
Second Loan Agreement and the Third Loan Agreement and make the Second Loan and
the Third Loan, Mercury has made that certain Continuing Guaranty, dated as of
May 15, 1996, as amended by that certain First Amendment and Supplement to
Continuing Guaranty, dated as of July 1, 1996, for the benefit of CoBank (as
the same may be further amended, modified, supplemented,
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Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan No. T0310
Loan No. T0347
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
extended or restated from time to time, the "Mercury Second Guaranty"), which
guarantees, among other things, CTC's obligations with respect to the Second
Loan and the Third Loan; and
WHEREAS, as an additional inducement to CoBank to enter into the
Second Loan Agreement and the Third Loan Agreement and make the Second Loan and
the Third Loan, Xx. Xxxxxxx has made that certain Limited Recourse Continuing
Guaranty, dated as of May 15, 1996, as amended by that certain First Amendment
and Supplement to Limited Recourse Continuing Guaranty, dated as of July 1,
1996, for the benefit of CoBank (as the same may be further amended, modified,
supplemented, extended or restated from time to time, the "Xxxxxxx Guaranty"),
which on the limited basis provided therein guarantees, among other things,
CTC's obligations with respect to the Second Loan and the Third Loan; and
WHEREAS, CTC wishes to assign, and MCK wishes to assume, all rights
and obligations of CTC with respect to the Loans;
NOW, THEREFORE, in consideration of the foregoing, and intending to be
legally bound hereby, the parties hereto agree as follows:
SECTION 1. CTC hereby assigns and transfers to MCK, and MCK hereby
expressly assumes, all rights and obligations of CTC under and with respect to
CoBank Loan Numbers T0362, T0310, T0347, T0388 and S0441, including, without
limitation, all rights and obligations of CTC under the documents, instruments
and agreements listed on Schedule 1 hereto (the "CTC Documents"). MCK
expressly acknowledges, confirms, agrees to and assumes all of the obligations
of CTC under and pursuant to the CTC Documents. Notwithstanding any other
provision of this Agreement or the CTC Documents to the contrary, in any action
brought to enforce any obligation of MCK under the CTC Documents, the judgment
or decree shall be enforceable only as to the CTC Documents and any
specifically identified property in which CoBank shall have, now or in the
future, a security interest to secure such obligations, including, without
limitation, the CTC Documents and the investments and other equities which MCK
may now own or hereafter acquire or be allocated in CoBank, and against MCK
only to the extent of its interest in such pledged property (and not against
any other assets of MCK) and MCK shall not be liable to CoBank under the CTC
Documents beyond its interest in such property; provided, however, that nothing
contained herein shall limit or relieve MCK from liability for, or recourse in
connection with, failing to comply with the terms, covenants, conditions and
provisions of the CTC Documents, other than for the payment of the principal
and interest due
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Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan No. T0310
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
Loan No. S0441
under CTC Documents. This limitation on recourse shall not in any way affect
the full and unconditional obligations of MCTC, Mercury, Mississippi One or Xx.
Xxxxxxx under the MCTC Guaranty, the CCC Guaranty, the Mercury Guaranty, the
Mississippi One Guaranty, the Mercury Second Guaranty, the Xxxxxxx Guaranty or
any other of the CTC Documents or other "Loan Documents" (as defined in each of
the Loan Agreements) to which each is a party.
SECTION 2. It is the intention of MCK and the other parties
hereto that the CTC Documents shall remain in full force and effect, and hereby
ratifies, confirms and remakes the same, including, without limitation, MCK
regrants the security interests provided for in the CTC Documents.
SECTION 3. For so long as (i) amounts are outstanding under that
certain Loan Agreement, dated as of April 20, 1995, as amended by that certain
First Amendment and Supplement to Loan Agreement, dated as of even date
herewith, by and between CoBank and MCK, as such agreement may be further
amended, modified, supplemented, extended or restated from time to time (such
agreement, as it may be amended, modified, supplemented, extended or restated
from time to time, the "MCK Loan Agreement"), and (ii) there exists no breach,
default, event of default or event which with the giving of notice or passage
of time, or both, would constitute an event of default, under the MCK Loan
Agreement, then the covenants set forth in Sections 12 and 13 of each of the
Loan Agreements shall be replaced by the covenants set forth in Sections 13 and
14 of the MCK Loan Agreement. Upon the payment in full of the amounts
outstanding under the MCK Loan Agreement or during the continuance of any
breach, default, event of default or event which with the giving of notice or
passage of time, or both, would constitute an event of default, under the MCK
Loan Agreement, the original covenants set forth in Sections 12 and 13 of each
of the Loan Agreements shall apply and not those set forth in Sections 13 and
14 of the MCK Loan Agreement.
SECTION 4. All references in the Loan Agreements, the CTC Documents
or any of the other Loan Documents to any of the Loan Agreements shall
hereafter be to each such Loan Agreement as amended by this Agreement.
Further, all references in the MCTC Guaranty, the CCC Guaranty, the Mercury
Guaranty, the Mississippi One Guaranty, the Mercury Second Guaranty, the
Xxxxxxx Guaranty, the CTC Documents and the other Loan Documents to "CTC" or
"the Borrower" shall hereafter be to MCK.
SECTION 5. Each of MCTC, Mercury, Mississippi One and Xx. Xxxxxxx
hereby
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Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan No. T0310
Loan No. T0347
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
expressly consent to the assignment, assumption and amendments set forth in
this Agreement and confirm that the MCTC Guaranty, the CCC Guaranty, the
Mercury Guaranty, the Mississippi One Guaranty, the Mercury Second Guaranty,
the Xxxxxxx Guaranty, the CTC Documents and the other Loan Documents to which
each is a party remain in full force and effect and guaranty and secure the
obligations of MCK under each of the Loan Agreements and with respect to each
of the Loans.
SECTION 6. Each of CTC, MCK, MCTC, Mississippi One, Mercury and Xx.
Xxxxxxx agrees that if at any time any further actions are necessary or
desirable in the reasonable opinion of CoBank to evidence or effect the
assumption and agreements contemplated by this Agreement, or otherwise carry
out the purposes and provisions of this Agreement, including, without
limitation, the execution, delivery, filing and recordation of amendments to
any of the Loan Documents, each of such parties shall take such action and
execute, deliver, file and record such instruments or other documents.
SECTION 7. This Agreement shall not constitute a novation of the
promissory notes or any of the other Loan Documents executed in connection with
the Loans, or of any of the indebtedness evidenced thereby.
SECTION 8. 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 9. 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.
(Signatures on following page.)
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Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan No. T0310
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
Loan No. S0441
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 December __, 1996.
MERCURY CELLULAR OF KANSAS, INC.
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
Attest:
------------------------------
Name:
------------------------
Title:
-----------------------
[CORPORATE SEAL]
Witnesses to all signatures:
-------------------------------------------
Witness
-------------------------------------------
Witness
-------------------------------------------
Notary Public
My commission expires:
---------------------
[NOTARIAL SEAL]
(Signatures continued on next page.)
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Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan No. T0310
Loan No. T0347
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
(Signatures continued from previous page.)
At Lake Charles, Louisiana on December __, 1996 .
MERCURY CELLULAR TELEPHONE COMPANY
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
Attest:
------------------------------
Name:
------------------------
Title:
-----------------------
[CORPORATE SEAL]
Witnesses to all signatures:
-------------------------------------------
Witness
-------------------------------------------
Witness
-------------------------------------------
Notary Public
My commission expires:
---------------------
[NOTARIAL SEAL]
(Signatures continued on next page.)
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Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan No. T0310
Loan No. T0347
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
(Signatures continued from previous page.)
At Lake Charles, Louisiana on December __, 1996.
MERCURY, INC.
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
Attest:
------------------------------
Name:
------------------------
Title:
-----------------------
[CORPORATE SEAL]
Witnesses to all signatures:
-------------------------------------------
Witness
-------------------------------------------
Witness
-------------------------------------------
Notary Public
My commission expires:
---------------------
[NOTARIAL SEAL]
(Signatures continued on next page.)
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10
Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan No. T0310
Loan No. T0347
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
(Signatures continued from previous page.)
At Lake Charles, Louisiana on December __, 1996.
CTC FINANCIAL, INC.
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
Attest:
------------------------------
Name:
------------------------
Title:
-----------------------
[CORPORATE SEAL]
Witnesses to all signatures:
-------------------------------------------
Witness
-------------------------------------------
Witness
-------------------------------------------
Notary Public
My commission expires:
---------------------
[NOTARIAL SEAL]
(Signatures continued on next page.)
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Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan No. T0310
Loan No. T0347
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
(Signatures continued from previous page.)
At Lake Charles, Louisiana on December __, 1996.
MISSISSIPPI ONE CELLULAR
TELEPHONE COMPANY
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
Attest:
------------------------------
Name:
------------------------
Title:
-----------------------
[CORPORATE SEAL]
Witnesses to all signatures:
-------------------------------------------
Witness
-------------------------------------------
Witness
-------------------------------------------
Notary Public
My commission expires:
---------------------
[NOTARIAL SEAL]
(Signatures continued on next page.)
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12
Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan No. T0310
Loan No. T0347
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
(Signatures continued from previous page.)
At Lake Charles, Louisiana on December __, 1996.
By: (SEAL)
---------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Witnesses to all signatures:
-------------------------------------------
Witness
-------------------------------------------
Witness
-------------------------------------------
Notary Public
My commission expires:
---------------------
[NOTARIAL SEAL]
(Signatures continued on next page.)
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Assignment, Assumption and Agreement
Regarding Amendments to Loan Documents
Loan No. T0310
Loan No. T0347
Loan Xx. X0000
Xxxx Xx. X0000
Xxxx Xx. X0000
(Signatures continued from previous page.)
At Atlanta, Georgia, on December __, 1996.
COBANK, ACB
By:
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Name:
----------------------------
Title:
---------------------------
Witnesses to signature:
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Witness
-------------------------------------------
Witness
-------------------------------------------
Notary Public
My commission expires:
---------------------
[NOTARIAL SEAL]
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