1
EXHIBIT 4.1
LOAN NO. T0310
COBANK, ACB
AMENDED AND RESTATED LOAN AGREEMENT
STATE OF LOUISIANA )
)
PARISH OF CALCASIEU )
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 AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement") is made
and entered into as of May 15, 1996, by and between COBANK, ACB ("CoBank") and
CTC FINANCIAL, INC., a Louisiana corporation (the "Borrower"), and amends and
restates that certain Loan Agreement, dated as of September 27, 1994, between
CoBank and the Borrower, as previously amended by that certain First Amendment
and Supplement to Loan Agreement, dated as of September 15, 1995, between
CoBank and 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 (the
"Loan") to the Borrower, by means of one or more advances, during the period
commencing on September 27, 1994 and ending on but not including May 31, 1996,
or such later date as CoBank may in its sole discretion authorize in writing,
in an aggregate outstanding principal amount not to exceed $17,400,000. Under
the Loan, amounts borrowed and later repaid or prepaid may not be reborrowed.
SECTION 2. PURPOSES AND USE OF PROCEEDS. The proceeds of the
Loan advanced prior to the date of this Agreement shall be, and have been,
reloaned by the Borrower to Mississippi One Cellular Telephone Company
("Mississippi One") to be applied by Mississippi One solely (a) to the
repayment, in an amount equal to $1,700,000, of the outstanding principal
balance of the indebtedness of Mississippi One to Cameron Telephone Company
("Cameron Telephone"), which Mississippi One assumed from Mercury, Inc.
("Mercury"); (b) to pay the fees and costs associated with the Loan and the
initial closing thereof; and (c) for capital expenditures and working capital.
The proceeds of the Loan advanced on or after the date of this Agreement shall
be reloaned by the Borrower to Mississippi One to be applied by Mississippi One
solely to finance the acquisition of the assets of West Alabama Cellular
Telephone Company, Inc. ("West Alabama") pursuant to the terms of that certain
Asset Purchase Agreement, dated as of March 4, 1996, by and between Mississippi
One and West Alabama (the "Acquisition Agreement"), related acquisition costs
and costs and fees associated with closing the Loan as hereby amended.
2
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
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, advances under
the Loan will be made on any day on which CoBank is open for business (a
"Business Day"), except any day on which Federal Reserve Banks are closed,
within two Business Days of receipt by CoBank of a written or telephonic
request of an authorized employee of the Borrower. Unless otherwise agreed,
all advances will be made available by wire transfer of immediately available
funds to such account or accounts as the Borrower may designate from time to
time on forms supplied by CoBank. In making advances upon telephonic requests,
CoBank shall be entitled to rely on (and shall incur no liability to the
Borrower in acting upon) any request made by a person identifying himself or
herself as one of the persons authorized by the Borrower to request advances
hereunder, so long as the funds are wired to an account previously designated
by the Borrower.
SECTION 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 sum of the National
Variable Rate (as hereinafter defined) plus a margin (the "NVR
Margin") equal to the percentage determined in accordance with
Subsection (B); provided, however, the Portion of the Loan accruing
interest at the Variable Rate shall be repaid in part as provided in
Section 5 on each Payment Date (as defined in Section 5). 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
-2-
3
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
the sum of the U.S. Treasury Rate (as hereinafter defined)
plus a margin (the "Treasury Margin") equal to the percentage
determined in accordance with 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
occurring during the 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 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 OPTION. As to any
Portion or Portions of the Loan 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, that Interest Periods must expire 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
the applicable Interest Period.
(3) SELECTION AND CHANGES OF RATES. The Borrower
shall select the applicable interest rate or rates at the time it
requests an advance 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. In
addition, 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
-3-
4
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
accruing on such Portion for a new Interest Period(s) at a new fixed
rate(s). 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 and/or pursuant to another fixed rate(s)
for a new Interest Period(s) selected in accordance with Subsection
(A)(2) above. Except for the initial selection of a rate or rates for
each advance, 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 any of the fixed rate options selected by the Borrower
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 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 option 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 (a) the first day of any new Interest Period
shall be the date of such conversion or (b) interest at the Variable
Rate shall accrue on the Portion of the Loan so converted from and
including the date of conversion.
(B) MARGINS. On the date of this Agreement, the NVR
Margin shall be 1.00% and the Treasury Margin shall be 3.00%. Thereafter, each
such margin shall be determined based on the Total Leverage Ratio (as
hereinafter defined) of Mississippi One, determined in accordance with
generally accepted accounting principles ("GAAP"), on the last day of the
immediately preceding fiscal quarter of Mississippi One, as set forth in the
following table:
Total Leverage Ratio NVR Margin Treasury Margin
-------------------- ---------- ---------------
5.00 or greater 1.00% 3.00%
3.50 to 4.99 0.50% 2.25%
Less than 3.50 0.00% 2.00%
-4-
5
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
The applicable margin shall be (i) increased, if warranted,
beginning the 5th Business Day following CoBank's receipt of the financial
statements required pursuant to Sections 13(I)(1) and (2) and the certificate
required pursuant to Section 13(I)(9) and (ii) decreased, if warranted,
beginning the 5th Business Day following CoBank's receipt of such financial
statements and certificate and the Borrower's written request to decrease the
margin. In the event that CoBank shall not receive when due such financial
statements and certificate, then from such due date and until the 5th Business
Day following CoBank's receipt of such overdue financial statements and
certificate (and in the event a decrease in the applicable margin is then
warranted, receipt of the Borrower's written request to decrease such margin),
the NVR Margin shall be 1.00% and the Treasury Margin shall be 3.00%. The
Treasury Rate with respect to any portion of the Loan fixed pursuant to Section
4(A)(2)(a) may fluctuate during the Interest Period so selected for such
Portion, which fluctuation shall depend on changes in the applicable Treasury
Margin pursuant to this Section 4(B), and the timing of such changes to be
effective as described above.
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 "Indebtedness" shall not include
the Cameron Debt (as defined in Section 11(A)(11)). 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 (excluding extraordinary gains and the
write up of any asset), (b) total interest expense (including non-cash
interest), (c) depreciation and amortization expense, (d) management fees
accruing during the applicable period but unpaid, and (e) interest on the
Cameron Debt 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.
Notwithstanding the foregoing provisions of this Subsection
(B), if at any time after the date hereof the spread between CoBank's cost of
funds (as determined by CoBank in accordance with its methodology) and any
applicable U.S. Treasury Rate for any Interest Period selected by the Borrower
pursuant to Subsection (A) above should be greater (or smaller) than the spread
in effect on July 19, 1994, then the Treasury Margin may thereafter
-5-
6
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
be increased (or decreased) at CoBank's discretion to reflect any such change.
No such adjustment in the Treasury Margin shall be applied to any Portion of
the Loan accruing interest at a Treasury Rate prior to the end of the then
applicable 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 any part of the Loan 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 (including this Section 4) or the Notes (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 has paid to CoBank a
non-refundable loan origination fee for the initial Loan in the amount of
$38,000. The Borrower shall pay to CoBank a non-refundable loan origination
fee for the Loan as hereby amended in the amount of $136,525, of which $10,000
was paid upon acceptance by the Borrower of the commitment letter dated
February 23, 1996. The remaining $126,525 shall be payable on the date of this
Agreement.
SECTION 5. PRINCIPAL REPAYMENT AND MATURITY. The unpaid
principal balance of the Loan on December 31, 1997 shall be repaid in
seventy-two (72) consecutive monthly installments. The amount of each such
monthly installment payment shall be equal to the percentage set forth below of
the unpaid principal balance of the Loan on December 31, 1997; provided,
however, that the final installment payable on December 20, 2003 (the "Maturity
Date") shall be in the amount of the then unpaid principal balance of the Loan
and any and all other amounts due and owing hereunder and under all other Loan
Documents (as defined in Section 11):
-6-
7
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
Each monthly installment Percentage of unpaid
due during the twelve principal balance of
months beginning January 1 the Loan on December 31, 1997
-------------------------- -----------------------------
1998 0.834%
1999 1.042%
2000 1.250%
2001 1.667%
2002 1.667%
2003 1.875%
Each such installment shall be due on the 20th day of each month (each, a
"Payment Date"), with the first Payment Date being January 20, 1998, and the
last payment date being on the Maturity Date. The portion of the Loan accruing
interest at the Variable Rate and each Portion of the Loan accruing interest
pursuant to one of the fixed rate options 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, If any Payment Date is not a Business Day, then the
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. After December 31, 1997, any prepayment shall be applied in such
a manner as to reduce the amount owing on each remaining principal installment
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 as 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
conversion, the Borrower shall pay to CoBank, on the date of such prepayment or
conversion, 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 paid; minus
(ii) CoBank's cost of funds (determined in accordance with such methodology) on
the date of payment to fund a new
-7-
8
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
loan with a maturity equal to the remainder of the selected Interest Period of
the Portion of the Loan being paid. If such difference is negative, then for
purposes of the remaining calculations such difference shall be deemed to be
zero.
(B) Divide the result determined in Subsection (A) by 12.
(C) For each month or part thereof during which the
Portion of the Loan being paid was scheduled to have been outstanding, multiply
the amount determined in Subsection (B) by that part of the Portion of the Loan
being paid 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 paid 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 paid 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 (as the same may be amended, modified, 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- 8875-4 (or to such other account as CoBank may designate by
notice) with sufficient information to identify the source and application 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.
-8-
9
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
SECTION 9. CAPITALIZATION. The Borrower agrees to purchase
such participation certificates in CoBank as CoBank may require from time to
time in accordance with its bylaws. The Borrower hereby consents and agrees
that the amount of any distributions with respect to its patronage with CoBank
that are made and 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 their stated dollar amounts whether the
distribution be 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 shall be secured by an
assignment by the Borrower to CoBank of that certain Amended and Restated
Promissory Note dated of even date herewith, made by Mississippi One to the
order of the Borrower, in the original principal face amount of $17,400,000 (as
the same may be amended, modified, supplemented, extended or restated from time
to time and any promissory note or notes that may be issued from time to time
in substitution, renewal, extension, replacement or exchange therefor, the
"Mississippi One Note").
The Loan shall be guaranteed by (a) that certain Amended and Restated
Continuing Guaranty, dated as of even date herewith, made by Mississippi One
for the benefit of CoBank (as the same may be amended, modified, supplemented,
extended or restated from time to time, the "Mississippi One Guaranty"); (b)
that certain Continuing Guaranty, dated as of even date herewith, made by
Mercury for the benefit of CoBank (as the same may be amended, modified,
supplemented, extended or restated from time to time, the "Mercury Guaranty");
and (c) that certain Continuing Guaranty, dated as of even date herewith, made
by Xxxxxxx Xxxxxxx, Sr. ("Xx. Xxxxxxx") for the benefit of CoBank, which shall
be limited to $5,000,000 and shall terminate upon the payment in full of CoBank
Loan No. T0347 (as the same may be may be amended, modified, supplemented,
extended or restated from time to time, the "Xxxxxxx Guaranty").
The Note, the Mississippi One Note, the Xxxxxxx Guaranty, the Mercury
Guaranty and the Mississippi One Guaranty shall be secured by that certain (i)
Deed of Trust, Security Agreement and Fixture Filing, dated as of September 27,
1994, made by Mississippi One in favor of CoBank, as holder of the Note and the
Mississippi One Note and as beneficiary of the Mississippi One Guaranty, the
Xxxxxxx Guaranty and the Mercury Guaranty, as amended by that certain First
Amendment to Deed of Trust, Security Agreement and Fixture Filing, dated as of
even date herewith, between CoBank and Mississippi One (as the same may be
concurrently or hereafter amended, modified, supplemented, extended or restated
from time to time, the "Mississippi One Deed of Trust"), pursuant to which
Mississippi One shall grant to CoBank a first priority lien and security
interest in all of its
-9-
10
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
now hereafter leased and owned real property located in the State of
Mississippi; (ii) Security Agreement, dated as of September 27, 1994, made by
Mississippi One in favor of CoBank, as holder of the Note and the Mississippi
One Note and as beneficiary of the Mississippi One Guaranty, the Xxxxxxx
Guaranty and the Mercury Guaranty, as amended by that certain First Amendment
to Security Agreement, dated as of even date herewith, between CoBank and
Mississippi One (as the same may be concurrently or hereafter amended,
modified, supplemented, extended or restated from time to time, the
"Mississippi One Security Agreement"), pursuant to which Mississippi One shall
grant to CoBank a first priority security interest in all of its now owned or
hereafter acquired tangible and intangible personal property (including,
without limitation, all rights of Mississippi One under that certain Agreement
for Lease of Switch Capacity, dated July 27, 1994, between Mississippi 34
Cellular Corporation and Mercury, subsequently assigned to Mississippi One by
Mercury, and, to the extent permitted by law, all licenses and permits issued
by the Federal Communications Commission (the "FCC")); (iii) Mortgage, dated as
of even date herewith, made by Mississippi One in favor of CoBank, as holder of
the Note and the Mississippi One Note and as beneficiary of the Mississippi One
Guaranty, the Xxxxxxx Guaranty and the Mercury Guaranty (as the same may be
amended, modified, supplemented, extended or restated from time to time, the
"Mississippi One Mortgage"), pursuant to which Mississippi One shall grant to
CoBank a first priority lien and security interest in all of its now hereafter
leased and owned real property located in the State of Alabama; and (iv) Pledge
Agreement, dated as of September 27, 1994, by and between Mercury and CoBank,
as holder of the Note and the Mississippi One Note and as beneficiary of the
Mississippi One Guaranty, the Xxxxxxx Guaranty and the Mercury Guaranty, as
amended by that certain First Amendment to Pledge Agreement, dated as of even
date herewith, between CoBank and Mercury (as the same may be concurrently or
hereafter amended, modified, supplemented, extended or restated from time to
time, the "Mercury Pledge Agreement"), pursuant to which Mercury shall pledge,
on a first-priority basis, all of its capital stock in Mississippi One and in
Mercury Cellular Telephone Company ("MCTC") and shall covenant and agree to
pledge to CoBank, on a first-priority basis, all capital stock of Mississippi
One and MCTC it may hereafter acquire.
SECTION 11. CONDITIONS PRECEDENT.
(A) INITIAL ADVANCE. CoBank's obligation to make the
initial advance on the Loan on or after the date of this Agreement is subject
to satisfaction of each of the following conditions precedent on or before the
date of such advance:
(1) LOAN DOCUMENTS. That CoBank receive duly
executed originals of this Agreement, the Note, the Mississippi One
Note, duly assigned to CoBank, the Mississippi One Guaranty, the
Mississippi One Deed of Trust, the Mississippi One Security Agreement,
the Mississippi One Mortgage, the Mercury Guaranty, the Mercury Pledge
Agreement, the Xxxxxxx Guaranty and all other
-10-
11
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
instruments and documents contemplated hereby or thereby
(collectively, the "Loan Documents").
(2) AUTHORIZATION. That CoBank receive copies
of all corporate documents and proceedings of the Borrower,
Mississippi One and Mercury authorizing the execution, delivery, and
performance of the Loan Documents to which each is a party, certified
by appropriate officers of such entities.
(3) APPROVALS. That CoBank receive evidence
satisfactory to it that all federal and state consents and approvals
(including, without limitation, all regulatory approvals) which are
necessary for, or required as a condition of, the validity and
enforceability of the Loan Documents or the creation or perfection of
the liens and security interests identified in Section 10, or the
completion of the acquisition of West Alabama's assets by Mississippi
One pursuant to the Acquisition Agreement, have been obtained and are
in full force and effect.
(4) OPINIONS OF COUNSEL. That CoBank receive
opinions of counsel for the Borrower, Mississippi One, Mercury and Xx.
Xxxxxxx (who shall be mutually acceptable to CoBank) in form and
content acceptable to all parties.
(5) FEES AND EXPENSES. That the Borrower pay
the origination fee set forth in Section 4(E) with respect to the Loan
and the costs and expenses required by Section 20 to be paid by the
Borrower.
(6) PERMITS. That CoBank receive evidence
satisfactory to it that the Borrower, Mississippi One and Mercury
possesses all necessary operating permits, authorizations, approvals,
and the like which are material to the conduct of the Borrower's,
Mississippi One's and Mercury's business or which may otherwise be
required by law.
(7) INSURANCE. That CoBank receive evidence
of insurance by Mississippi One and Mercury in such amounts and
covering such risks as are usually carried by companies in the same or
similar business.
(8) ENVIRONMENTAL CHECKLIST. That CoBank
receive from Mississippi One an environmental checklist on a form
prescribed by CoBank covering all real property owned or leased by
Mississippi One and Mississippi One's environmental records and
procedures, all of such information to be satisfactory to CoBank in
its sole discretion.
(9) PERFECTION AND PRIORITY OF LIENS. That
CoBank receive an opinion of counsel in form and content acceptable to
it to the effect that, as of the
-11-
12
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
date of such advance, CoBank has a duly perfected security interest in
all collateral covered by the Mississippi One Deed of Trust, the
Mississippi One Mortgage, the Mississippi One Security Agreement and
the Mercury Pledge Agreement, subject to no prior liens except a lien
in favor of Cameron Telephone subordinated to all liens in favor of
CoBank on terms and conditions satisfactory to CoBank.
(10) WEST ALABAMA ACQUISITION. That,
concurrently with such advance, Mississippi One shall have acquired
the real and personal property of West Alabama in accordance with the
terms of the Acquisition Agreement, free and clear of any and all
liens and encumbrances, and that CoBank receives such evidence thereof
as it shall reasonably require.
(11) SUBORDINATED DEBT. That Cameron Telephone
reaffirm its subordination of all indebtedness of Mississippi One to
Cameron Telephone (the "Cameron Debt") in right of payment and in all
other respects, to any indebtedness of Mississippi One to CoBank
including the Loan, which subordination shall provide that no interest
or principal payments may be made on the Cameron Debt without the
consent of CoBank.
(12) NO MATERIAL ADVERSE CHANGE. That from
December 31, 1995, to the date of such advance there shall not have
occurred any event which has had or could have a Material Adverse
Effect (as hereinafter defined) on the Borrower or Mississippi One.
For purposes of this Agreement, the term "Material Adverse Effect"
when used with reference to any entity shall mean a material adverse
effect on the condition, financial or otherwise, operations,
properties or business of such entity or on the ability of such entity
to perform its obligations under the Loan Documents to which it is a
party.
(13) NO INJUNCTION. That no court or other
government body or public authority shall have issued an order which
shall then be in effect restraining or prohibiting the completion of
the transactions contemplated hereby.
(14) OTHER DOCUMENTS. That CoBank receive such
other documents, instruments, certificates and opinions of counsel as
CoBank or its counsel may reasonably request.
(B) ALL ADVANCES. CoBank's obligation to make each
advance under the Loan is subject to the satisfaction of each of the following
conditions precedent on or before the date of such advance:
(1) 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
-12-
13
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
passage of time or the giving of notice, or both, could become an
Event of Default (each such event, a "Default").
(2) REPRESENTATIONS AND WARRANTIES. That the
representations and warranties of (a) the Borrower contained in this
Agreement and any other Loan Document to which it is a party, (b)
Mississippi One contained in the Mississippi One Guaranty and any
other Loan Document to which it is a party, (c) Mercury contained in
the Mercury Guaranty and any other Loan Document to which it is a
party and (d) Xx. Xxxxxxx contained in the Xxxxxxx Guaranty and any
other Loan Document to which he is a party be true and correct in all
material respects on and as of the date of such advance, as though
made on and as of such date.
(3) OFFICER'S CERTIFICATE. That CoBank
receive, if it so requests, a certificate from appropriate officers of
the Borrower, Mississippi One, Mercury and from Xx. Xxxxxxx as to the
continuing truth and accuracy of the representations and warranties of
the Borrower, Mississippi One, Mercury and Xx. Xxxxxxx under the Loan
Documents to which each is a party and the satisfaction of each of the
conditions applicable to the making of the advance.
SECTION 12. REPRESENTATIONS AND WARRANTIES. To induce CoBank to
make advances hereunder, and recognizing that CoBank is relying hereon, the
Borrower represents and warrants, on and as of the date hereof and on and as of
each date on which an advance is made hereunder, as follows:
(A) ORGANIZATION; POWERS; ETC. The Borrower (i) is duly
organized, validly existing, and in good standing under the laws of its state
of 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
necessary in the conduct of its business or which may be otherwise required by
law; and (v) 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 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 applicable to it, its articles of
incorporation or bylaws, or any agreement, indenture, mortgage, or other
instrument to which the Borrower is a party or by which the Borrower or its
property is bound, or (ii) be in conflict with, result in a breach of, or
constitute with the giving of notice or lapse of time,
-13-
14
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
or both, a default under any such agreement, indenture, mortgage, or other
instrument. All actions on the part of the shareholders of the Borrower
necessary in connection with the execution and delivery by the Borrower, and
the performance by the Borrower of its obligations under, the Loan Documents to
which it is a party have been taken and remain in full force and effect as of
the date hereof.
(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 to 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 it 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.
(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) above, 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 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) 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.
(I) EMPLOYEE BENEFIT PLANS. To the extent applicable,
the Borrower is in compliance in all material respects with the applicable
provisions of the Employee
-14-
15
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
Retirement Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder.
(J) 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 adequate reserves have been set aside on the
Borrower's books therefor.
(K) 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.
(L) 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.
(M) BUSINESS. The Borrower's sole business activity
and operation is to borrow from CoBank and reloan proceeds of such borrowings
to 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) above, 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.
-15-
16
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
(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 satisfactory) 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, and in compliance
with all applicable laws, regulations and orders.
(G) BOOKS AND RECORDS. Keep adequate records and books
of account in accordance with GAAP consistently applied and any system of
accounts to which the Borrower 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) AUDITED ANNUAL FINANCIAL STATEMENTS. As
soon as available, but in no event later than 120 days after the end
of each fiscal year of Mississippi One occurring during the term
hereof, audited annual financial statements of Mississippi One
prepared in accordance with GAAP consistently applied and any system
of accounts to which Mississippi One is subject. Such financial
statements shall: (a) be audited by independent certified public
accountants selected by Mississippi One and acceptable to CoBank; (b)
be accompanied by a report of such accountants containing an opinion
acceptable to CoBank; and (c) 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 FINANCIAL STATEMENTS. As soon as
available but in no event later than 60 days after the end of each of
the first three fiscal quarters of
-16-
17
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
each fiscal year of Mississippi One occurring during the term hereof,
unaudited monthly financial statements of Mississippi One for the
three months ending during such quarter prepared in accordance with
GAAP consistently applied and any system of accounts to which
Mississippi One is subject (except for the omission of footnotes and
for the effect of normal year-end audit adjustments). Such financial
statements shall: (a) be prepared in reasonable detail; and (b)
include a balance sheet, a statement of income for such months and for
the period year-to-date as internally prepared by Mississippi One, and
such other monthly statements as CoBank may specifically request,
which monthly statements shall include any and all supplements
thereto.
(3) FINANCIAL FORECAST. As soon as available,
but in no event later than 90 days after the first day of each fiscal
year of Mississippi One, a one-year financial forecast for Mississippi
One which shall include, without limitation, statements of income,
balance sheets, statements of sources and uses of funds, capital
expenditure projections and such other information as CoBank shall
reasonably require for each such one-year period.
(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 Paragraph (5) above, 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 to
contribute to a cleanup or other response under Laws relating to
environmental
-17-
18
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
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 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 and other communications received
by the Borrower from any governmental authority, including, without
limitation, the Louisiana Public Service Commission (the "LPSC"), the
Mississippi Public Service Commission (the "MPSC"), the Alabama Public
Service Commission (the "APSC"), the FCC, and the Securities and
Exchange Commission (the "SEC"), relating to any noncompliance by the
Borrower 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 Mississippi One.
(8) MATERIAL ADVERSE CHANGE. Prompt notice of
any matter which has had or could have a Material Adverse Effect on
the Borrower or Mississippi One.
(9) COMPLIANCE CERTIFICATES. Concurrently
with each statement required to be furnished pursuant to Paragraph (1)
and (2) above, a certificate in the form attached hereto as Exhibit A
executed by the chief accounting officer of Mississippi One.
(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, 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 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 (a "Capital Lease"), except for obligations to CoBank.
-18-
19
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
(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, as described in Section 12(M).
(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, Mississippi One 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.
-19-
20
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
(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 (i) 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, or (ii)
failure on the part of the Borrower, Mississippi One, Mercury or Xx. Xxxxxxx to
observe, keep or perform any covenant or agreement contained in (a) any Loan
Document other than this Agreement, including, without limitation, the
Mississippi One Guaranty, the Mercury Guaranty and the Xxxxxxx Guaranty, or (b)
the terms of any agreement (other than the Loan Documents) between the
Borrower, Mississippi One or Mercury and CoBank, including, without limitation,
that certain Loan Agreement, dated of even date hereof, between the Borrower
and CoBank in connection with CoBank Loan No. T0347 and any other 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, Mississippi One
or Mercury 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 Mississippi One 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. The Borrower, Mississippi One 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
-20-
21
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
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
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 Mississippi One Deed of Trust,
the Mississippi One Mortgage, the Mississippi One Security 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, security
interest, or security title (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 the Note, the Mississippi One Note, the
Mississippi One Guaranty, the Xxxxxxx Guaranty and the Mercury Guaranty as
provided therein. Any of the Note, the Mississippi One Note, the Mississippi
One Guaranty, the Xxxxxxx Guaranty and the Mercury Guaranty shall fail for any
reason to be the valid and binding obligations of Mississippi One, Mercury or
Xx. Xxxxxxx, respectively, or any of Mississippi One, Mercury or Xx. Xxxxxxx
shall in any way contest or dispute the validity and binding effect of the
Mississippi One Guaranty, the Xxxxxxx Guaranty or the Mercury 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
-21-
22
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
for in the Note and any of the other Loan Documents. Each and every one of
such rights 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 Mississippi One Deed
of Trust, the Mississippi One Mortgage, the Mississippi One Security Agreement
or the Mercury Pledge Agreement, the Borrower hereby undertakes and agrees to
cooperate and join with CoBank in any application to the LPSC, the MPSC, the
APSC, the FCC, the SEC 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, the
Note, 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):
-22-
23
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
If to CoBank, as follows: If to the Borrower, as follows:
CoBank, ACB CTC Financial, Inc.
000 Xxxxxxxx Xxxxxxx X.X. Xxx 0000
Xxxxx 0000 Xxxx Xxxxxxx, Xxxxxxxxx 00000
Xxxxxxx, Xxxxxxx 00000 Attn: Xxxxx Xxxxx;
Attn: Rural Utility Banking Group 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 or to review this Agreement and all other Loan
Documents and advise CoBank as to its rights and remedies hereunder or
thereunder; (c) fees and expenses of any outside counsel retained by CoBank to
represent it in any litigation involving the parties to any of the Loan
Documents, including but not limited to, bankruptcy, receivership, or similar
proceedings; and (d) fees, costs and expenses incurred in connection with
obtaining surveys and appraisals, if any, required under this Agreement or any
other Loan Document; provided, however, that the Borrower shall not be required
to reimburse CoBank for its legal fees (exclusive of legal expenses) in excess
of $35,000 for the negotiation and documentation of the Loan as hereby amended
and CoBank Loan No. T0347.
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 or the Maturity Date, whichever is later. 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 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
-23-
24
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
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 LPSC, the MPSC, the APSC or the FCC with
respect to rates and/or disallowance of debt.
SECTION 25. 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
------------ --------
Acquisition Agreement Section 2
Agreement Introductory Paragraph
APSC Section 13(I)(7)
Borrower Introductory Paragraph
Business Day Section 3
Cameron Debt Section 11(A)(11)
Cameron Telephone Section 2
Capital Lease Section 14(A)
CoBank Introductory Paragraph
Default Section 11(B)(1)
Event of Default Section 15
FCC Section 10
Governmental Authority Section 16(E)
Xxxxxxx Guaranty Section 10
Indebtedness Section 4(B)
Interest Period Section 4(A)(2)(a)
Laws Section 12(E)
Loan Section 1
-24-
25
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
Loan Documents Section 11(A)(1)
LPSC Section 13(I)(7)
Material Adverse Effect Section 11(A)(12)
Maturity Date Section 5
MCTC Section 10
Mercury Section 2
Mercury Guaranty Section 10
Mercury Pledge Agreement Section 10
Mississippi One Section 2
Mississippi One Deed of Trust Section 10
Mississippi One Guaranty Section 10
Mississippi One Mortgage Section 10
Mississippi One Note Section 10
Mississippi One Security Agreement Section 10
MPSC Section 13(I)(7)
Xx. Xxxxxxx Section 10
National Variable Rate Section 4(A)(1)
Note Section 7
NVR Margin Section 4(A)(1)
Operating Cash Flow Section 4(B)
Payment Date Section 5
Portion Section 4(A)(1)
Quoted Rate Section 4(A)(2)(b)
SEC Section 13(I)(7)
Surcharge Section 6
Total Leverage Ratio Section 4(B)
Treasury Margin Section 4(A)(2)(a)
Treasury Rate Section 4(A)(2)(a)
U.S. Treasury Rate Section 4(A)(2)
Variable Rate Section 4(A)(1)
West Alabama Section 2
[Signatures on next page]
-25-
26
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
THUS DONE AND SIGNED in several counterparts at the places and on the
dates indicated below, and in the presence of the respective undersigned
Notaries Public and the respective undersigned witnesses indicated below, by
duly authorized officers of the respective parties, after a due reading of the
whole.
At Lake Charles, Louisiana, on May 15, 1996.
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/ XXXXXX X. XXXXXXX
------------------------------------------
Witness
/s/ XXXXXX X. [ILLEGIBLE]
------------------------------------------
Notary Public
My commission expires: lifetime commission
-------------------
[NOTARIAL SEAL]
(Signatures continued on next page)
-26-
27
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
(Signatures continued from previous page)
At Atlanta, Georgia, on May 15, 1996.
COBANK, ACB
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
Witnesses to signature:
/s/ XXXXXXX X. XXXXX
----------------------------------------
Witness
/s/ XXXX X. XXXXXXX
----------------------------------------
Witness
/s/ XXXXX X. SOUTH
----------------------------------------
Notary Public
My commission expires:
-----------------
[NOTARIAL SEAL]
-27-
28
Amended and Restated Loan
Agreement/CTC Financial
Loan No. T0310
EXHIBIT A
COMPLIANCE CERTIFICATE - LOAN NO. T0310
THIS COMPLIANCE CERTIFICATE is given by ________________ the [CHIEF
ACCOUNTING OFFICER] of MISSISSIPPI ONE CELLULAR TELEPHONE COMPANY ("Mississippi
One"), pursuant to Section 13(I)(9) of that certain Amended and Restated Loan
Agreement (the "Loan Agreement"), dated as of May 15, 1996, by and between
CoBank, ACB and CTC Financial, Inc. (the "Borrower"). 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 Mississippi One 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
Mississippi One, for the fiscal [YEAR/QUARTER] ended ________, as required by
Section 13(I) [(1)/(2)] of the Loan Agreement. Such financial statements were
prepared in accordance with GAAP consistently applied (except as may be noted
therein) and any system of accounts to which Mississippi One is subject and
fairly present the financial condition of Mississippi One 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, Mississippi One is
in compliance with the covenants set forth in Sections 6(I), 6(J), 6(K), 6(L)
and 6(N) of the Mississippi One Guaranty. Attached hereto as Annex B are
calculations which demonstrate the compliance by Mississippi One with such
covenants; and
4. I have reviewed the activities of the Borrower and Mississippi
One, and consulted with appropriate representatives of the Borrower and
Mississippi One 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.
IN WITNESS WHEREOF, I have executed this Compliance Certificate
as of ________________, ________.
----------------------------------------
[CHIEF ACCOUNTING OFFICER]
Mississippi One Cellular Telephone Company
