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EXHIBIT 4.69
DRAFT DATED: 12/9/96
LOAN NO. T0364
COBANK, ACB
FIRST AMENDMENT AND SUPPLEMENT TO
LOAN AGREEMENT
THIS FIRST AMENDMENT AND SUPPLEMENT TO LOAN AGREEMENT (this "First
Amendment") is made and entered into as of December 15, 1996, by and between
COBANK, ACB ("CoBank") and MERCURY CELLULAR OF KANSAS, INC. (the "Borrower"),
and amends that certain Loan Agreement, dated as of April 20, 1995, between
CoBank and the Borrower (the "Original Loan Agreement"), and is joined in and
consented to by MERCURY CELLULAR TELEPHONE COMPANY ("MCTC").
SECTION 1. Terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Original Loan Agreement.
SECTION 2. Section 4(B) of the Original Loan Agreement is
hereby amended and supplemented by deleting in its entirety the third paragraph
of such Section and substituting in lieu thereof the following paragraph:
"The term "Total Leverage Ratio" shall mean the ratio of
Indebtedness to Operating Cash Flow (as such terms are hereinafter
defined). The term "Indebtedness" shall mean (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase
price of property or services other than accounts payable arising in
connection with the purchase of inventory on terms customary in the
trade, (iii) obligations, whether or not assumed, secured by liens or
payable out of the proceeds or production from property now or
hereafter owned or acquired, (iv) obligations which are evidenced by
notes, acceptances or other instruments, (v) capitalized agreements,
(vi) fixed rate hedging obligations that are due (after giving effect
to any period of grace or notice requirement applicable thereto) and
remain unpaid, and (vii) fixed payment obligations under guarantees
that are due and remain unpaid; provided, however, that the term
"Indebtedness" shall not include any obligations now or hereafter (a)
incurred by the Borrower or (b) assumed by the Borrower from CTC
Financial, Inc. ("CTC") pursuant to that certain Assignment,
Assumption and Agreement Regarding Amendments to Loan Documents, dated
as of December 15, 1996, among the Borrower, CTC, CoBank and certain
other parties identified therein (the "Assumption Agreement"), and in
either event the proceeds of which have been or are to be received
from CoBank and advanced to affiliated entities of the Borrower
(collectively, the "Pass- Through Obligations"). The term "Operating
Cash Flow" shall mean the sum of (a) pre-tax income or deficit, as the
case may be, after payment of all management fees
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First Amendment to Loan Agreement/Mercury Cellular of Kansas
Loan No. T0364
(excluding extraordinary gains and the write up of any asset, and any
investment income or loss), (b) total interest expense (including
non-cash interest, but excluding interest expense on Pass-Through
Obligations), (c) depreciation and amortization expense, and (d)
management fees accruing during the applicable period but unpaid.
Operating Cash Flow shall be measured for the then most recently
completed four fiscal quarters, adjusted to give effect to any
acquisition, sale or other disposition of any operation or business
(or any portion thereof) during the period of calculation as if such
acquisition, sale or other disposition occurred on the first day of
such period of calculation. All calculations necessary for the
determination of the Total Leverage Ratio shall be made in accordance
with generally accepted accounting principles ("GAAP") consistently
applied for the Borrower alone, without taking into account the
financial results or assets and liabilities of any affiliated entity.
SECTION 3. Section 14(E) 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:
"(E) LOANS AND INVESTMENTS. After the date hereof,
make any loan or advance to, invest in, purchase or make any
commitment to purchase any commercial paper, stock, bonds, notes, or
other securities of any person or entity (each, whether made directly
or indirectly, an "Investment") in an amount in excess of $100,000 as
to any single Investment or in excess of $1,000,000 as to all
Investments existing at any time, other than (i) securities or
deposits issued, guaranteed or fully insured as to payment by the
United States of America or any agency thereof, (ii) stock or other
securities of CoBank, (iii) commercial paper, stocks, bonds, notes or
other securities of institutions whose senior unsecured debt
obligations are rated by a nationally recognized rating organization
in any of its three highest rating categories or any equivalent
successor rating categories, (iv) mutual funds that have a four star
rating by Morningstar Mutual Funds, 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, or an equivalent rating by a nationally recognized
rating organization, or (v) any advances to its affiliated entities of
loan proceeds received from CoBank as contemplated by the Assumption
Agreement or any other loan agreement entered into between CoBank and
the Borrower."
SECTION 4. Section 15(E) 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:
"(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
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First Amendment to Loan Agreement/Mercury Cellular of Kansas
Loan No. T0364
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 or MCTC and CoBank,
including, without limitation, any loan agreement and promissory note
assumed by the Borrower from CTC pursuant to the Assumption Agreement
and any guaranty, other loan agreement, security agreement, pledge
agreement, mortgage, deed to secure debt, or deed of trust.
SECTION 5. All references in the Original Loan Agreement and the
other Loan Documents to "this Agreement" or the "Loan Agreement" shall
hereafter be to the Original Loan Agreement as amended by this First Amendment.
SECTION 6. This First Amendment shall not constitute a novation of
the promissory note or any of the other documents or agreements executed or
delivered in connection with the loan pursuant to the Original Loan Agreement
or any of the other Loan Documents.
SECTION 7. MCTC hereby consents to the amendments to the Original
Loan Agreement as set forth in this First Amendment.
SECTION 8. 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 9. 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 Kansas, without reference to choice of law doctrine.
[Signatures on next page]
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First Amendment to Loan Agreement/Mercury Cellular of Kansas
Loan No. T0364
IN WITNESS WHEREOF, the Borrower has caused this First Amendment to be
executed and attested under seal and delivered, and CoBank has caused this
First Amendment to be executed and delivered, each by its duly authorized
officers, as of the date first shown above.
MERCURY CELLULAR OF KANSAS, INC.
By:
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Name:
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Title:
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Attest:
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Name:
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Title:
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[CORPORATE SEAL]
MERCURY CELLULAR TELEPHONE COMPANY
By:
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Name:
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Title:
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Attest:
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Name:
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Title:
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[CORPORATE SEAL]
COBANK, ACB
By:
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Name:
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Title:
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