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EXHIBIT 4.67
EXECUTION COPY
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LOAN AND SECURITY AGREEMENT
Dated as of December 20, 1993
Between
MISSISSIPPI-34 CELLULAR CORPORATION
and
AT&T CREDIT CORPORATION
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TABLE OF CONTENTS
1. DEFINITIONS AND OTHER TERMS Page
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1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.02 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . .
1.03 Others Defined in New Jersey Uniform Commercial Code . . . . . . . .
2. LOANS
2.01 Agreement to Lend . . . . . . . . . . . . . . . . . . . . . . . . .
2.02 Equipment Loan(s) . . . . . . . . . . . . . . . . . . . . . . . . .
2.03 Capital Loan(s); Procedure for Proper Request . . . . . . . . . . .
2.04 The Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.05 Interest on Loans . . . . . . . . . . . . . . . . . . . . . . . . .
2.06 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.07 Default Rate of Interest . . . . . . . . . . . . . . . . . . . . . .
2.08 Optional Prepayment of Loans; Mandatory Prepayment of Loans . . . .
2.09 Payment, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.10 Maximum Lawful Interest Rate . . . . . . . . . . . . . . . . . . . .
3. REPRESENTATIONS AND WARRANTIES
3.01 Organization; Powers . . . . . . . . . . . . . . . . . . . . . . . .
3.02 Authorization by Borrower. . . . . . . . . . . . . . . . . . . . . .
3.03 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . .
3.04 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . .
3.05 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.06 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.07 No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.08 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.09 Licenses, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.10 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . .
3.11 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.12 Investment Company Act; Public Utility Holding Company Act . . . . .
3.13 Federal Reserve Regulations . . . . . . . . . . . . . . . . . . . .
3.14 Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.15 Chief Place of Business . . . . . . . . . . . . . . . . . . . . . .
3.16 Other Corporate Names . . . . . . . . . . . . . . . . . . . . . . .
3.17 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.18 Business Plan and Operating Projections . . . . . . . . . . . . . .
3.19 Capitalization and Subsidiaries . . . . . . . . . . . . . . . . . .
3.20 Real Property, Leases and Easements. . . . . . . . . . . . . . . . .
3.21 No Material Misstatements. . . . . . . . . . . . . . . . . . . . . .
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4. CONDITIONS FOR LOANS
4.01 Conditions Precedent to the Initial Loan . . . . . . . . . . . . . .
4.02 Conditions Precedent to All Loans . . . . . . . . . . . . . . . . .
5. AFFIRMATIVE COVENANTS
5.01 Corporate and Franchise Existence . . . . . . . . . . . . . . . . .
5.02 Compliance with Laws, Etc. . . . . . . . . . . . . . . . . . . . . .
5.03 Maintenance of Properties. . . . . . . . . . . . . . . . . . . . . .
5.04 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.05 Obligations and Taxes . . . . . . . . . . . . . . . . . . . . . . .
5.06 Financial Statements, Reports, etc. . . . . . . . . . . . . . . . .
5.07 Litigation and Other Notices . . . . . . . . . . . . . . . . . . . .
5.08 Mortgages and Landlord Consents . . . . . . . . . . . . . . . . . .
5.09 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.10 Access to Premises and Records . . . . . . . . . . . . . . . . . . .
5.11 Design and Construction; Operating Licenses . . . . . . . . . . . .
5.12 Environmental Notices . . . . . . . . . . . . . . . . . . . . . . .
5.13 Amendment of Organization Documents . . . . . . . . . . . . . . . .
5.14 Engineer and Independent Consultant . . . . . . . . . . . . . . . .
5.15 Changes in Regulation . . . . . . . . . . . . . . . . . . . . . . .
5.16 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.17 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . .
6. NEGATIVE COVENANTS
6.01 Liens, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.02 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . .
6.03 Sale of Assets, Consolidation, Merger, etc. . . . . . . . . . . . .
6.04 Dividends; Distribution of Assets; Certain Debt . . . . . . . . . .
6.05 Guarantees; Third-Party Sales and Leases . . . . . . . . . . . . . .
6.06 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.07 Permitted Activities . . . . . . . . . . . . . . . . . . . . . . . .
6.08 Disposition of Licenses, etc. . . . . . . . . . . . . . . . . . . .
6.09 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . .
6.10 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.11 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.12 Margin Regulation . . . . . . . . . . . . . . . . . . . . . . . . .
6.13 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . .
6.14 Management Fees. . . . . . . . . . . . . . . . . . . . . . . . . . .
6.15 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . .
7. COLLATERAL SECURITY
7.01 Collateral Security . . . . . . . . . . . . . . . . . . . . . . . .
7.02 Preservation of Collateral and Perfection of Security
Interests Therein . . . . . . . . . . . . . . . . . . . . . . . . .
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7.03 Appointment of Lender as the Borrower's Attorney-in-Fact . . . . . .
7.04 Collection of Accounts and Restricted Account Arrangements . . . . .
8. EVENTS OF DEFAULT; REMEDIES
8.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . .
8.02 Termination of Commitment; Acceleration . . . . . . . . . . . . . .
8.03 Waiver of Demand . . . . . . . . . . . . . . . . . . . . . . . . . .
8.04 Rights and Remedies Generally . . . . . . . . . . . . . . . . . . .
8.05 Entry Upon Premises and Access to Information . . . . . . . . . . .
8.06 Sale or Other Disposition of Collateral by Lender . . . . . . . . .
8.07 Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . .
8.08 Appointment of Trustee or Receiver . . . . . . . . . . . . . . . . .
8.09 Lender Not Liable . . . . . . . . . . . . . . . . . . . . . . . . .
8.10 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . .
9. MISCELLANEOUS
9.01 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.02 No Waivers; Amendments . . . . . . . . . . . . . . . . . . . . . . .
9.03 Governing Law and Jurisdiction, . . . . . . . . . . . . . . . . . .
9.04 Expenses; Documentary Taxes . . . . . . . . . . . . . . . . . . . .
9.05 Equitable Relief . . . . . . . . . . . . . . . . . . . . . . . . . .
9.06 Indemnification; Limitation of Liability . . . . . . . . . . . . . .
9.07 Survival of Agreements, Representations and Warranties, etc. . . . .
9.08 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . .
9.09 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.10 Cover Page, Table of Contents and Section Headings . . . . . . . . .
9.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.12 Application of Payments . . . . . . . . . . . . . . . . . . . . . .
9.13 Marshalling; Payments Set Aside . . . . . . . . . . . . . . . . . .
9.14 Service of Process . . . . . . . . . . . . . . . . . . . . . . . . .
9.15 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . .
9.16 Consolidation of Operations . . . . . . . . . . . . . . . . . . . .
9.17 Entire Agreement, etc. . . . . . . . . . . . . . . . . . . . . . . .
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EXHIBITS
EXHIBIT A -- Business Plan
EXHIBIT B -- Form of Pledge Agreement
EXHIBIT C -- Form of Capital Note
EXHIBIT D -- Form of Equipment Note
EXHIBIT E -- Form of Delivery and Acceptance Certificate
EXHIBIT F -- Form of Notice of Borrowing
EXHIBIT G -- Borrower's Pro Forma Balance Sheet
EXHIBIT H -- Form of Borrower's Secretary's Certificate
EXHIBIT I-1 -- Form of Opinion of Borrower's Special Counsel
EXHIBIT I-2 -- Form of opinion of Borrower's Local Counsel
EXHIBIT I-3 -- Form of Opinion of Borrower's Regulatory Counsel
EXHIBIT J -- Form of Loss Payable Endorsement
EXHIBIT K -- Form of Restricted Account Agreement
EXHIBIT L -- Form of Landlord Waiver
EXHIBIT M -- Form of Real Property Letter
EXHIBIT N -- Form of Monthly Report
EXHIBIT O -- Form of Quarterly Report
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SCHEDULES
SCHEDULE 1.01 -- Mortgages
SCHEDULE 3.02 -- Governmental Consents
SCHEDULE 3.05 -- Litigation
SCHEDULE 3.10 -- Compliance with Laws
SCHEDULE 3.11 -- ERISA
SCHEDULE 3.14 -- Collateral
SCHEDULE 3.17 -- Insurance
SCHEDULE 3.20 -- Real Property, Leases and Easements
SCHEDULE 7.04 -- Collection Accounts
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LOAN AND SECURITY AGREEMENT ("Agreement") dated as of December
20, 1993 between MISSISSIPPI-34 CELLULAR CORPORATION, a Mississippi corporation
(the "Borrower"), and AT&T CREDIT CORPORATION, a Delaware corporation
("Lender").
WHEREAS, the Borrower has requested Lender to extend credit to
the Borrower to enable the Borrower to borrow; and
WHEREAS, Lender is willing to extend such credit to the Borrower
subject to, and on the terms and conditions of, this Agreement;
Accordingly, the Borrower and Lender agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement, the
following words and terms shall have the meanings specified below:
"Accounts" shall mean all present and future rights of the
Borrower to payment for goods sold or leased or for services rendered which are
not evidenced by instruments or chattel paper, and whether or not they have
been earned by performance.
"Affiliate" shall mean any Person directly or indirectly
controlling, controlled by or under common control with the Borrower, and any
officer, director or shareholder of such Person or the Borrower.
"Applicable Cash Flow Margin" shall mean (i) with respect to any
four fiscal quarter period of the Borrower not ending on December 31 of any
calendar year, an amount equal to 25% of the Estimated Cash Flow projected for
the Borrower for such period, (ii) with respect to any four fiscal quarter
period of the Borrower on December 31 of each calendar year beginning in 1994
and ending in 1997, an amount equal to 10% of the Estimated Cash Flow projected
for the Borrower to such four fiscal quarter period, and (iii) with respect to
any four fiscal quarter period of the Borrower ending on December 31 of each
calendar year beginning in 1998, an amount equal to 15% of the Estimated Cash
Flow projected for the Borrower for such four fiscal quarter period.
"Applicable Margin" shall mean (i) with respect to Equipment
Loans bearing interest at the Fixed Rate 3.35% per annum, (ii) with respect to
Capital Loans bearing interest at the Fixed Rate, 3.60% per annum, (iii) with
respect to Equipment
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Loans bearing interest at the Variable Rate, 3.00% per annum, and (iv) with
respect to Capital Loans bearing interest at the Variable Rate, 3.25% per
annum.
"AT&T" shall mean American Telephone and Telegraph Company, a New
York corporation.
"Benefit Plan" shall mean a defined benefit plan as defined in
Section 3(35) of ERISA (other than a Multiemployer Plan) in respect of which
Borrower or any ERISA Affiliate is, or within the immediately preceding six (6)
years was, an "employer" as defined in Section 3(5) of ERISA.
"Business" shall mean the business of operating and maintaining
the System and all operations related thereto or in support thereof.
"Business Day" shall mean any day not a Saturday, Sunday or legal
holiday in the State of New Jersey, on which banks are open for business in New
Jersey City.
"Business Plan" shall mean Borrower's Business Plan, attached as
Exhibit A hereto.
"Capital Loan" shall mean a Loan made pursuant to Sections 2.01
and 2.03 hereof.
"Capital Loan Commitment Amount" shall mean the lesser of (i)
$4,152,000, inclusive of capitalized interest, if any, on the Capital Loans and
(ii) the outstanding principal balance of the Equipment Loans, inclusive of
capitalized interest, if any, on the Equipment Loans.
"Capital Note" shall mean a promissory note of the Borrower,
substantially in the form of Exhibit C attached hereto.
"Cash Equity Contributions" shall mean cash equity contributions
made by the Borrower's shareholders to the Borrower, exclusive of Permitted
Capital Contributions.
"Cash Flow" shall mean for any period of the Borrower, (i) Net
Income, plus (ii) non-cash charges deducted in the calculation of Net Income,
plus (iii) provisions for income taxes deducted in the calculation of Net
Income minus (iv) Borrower's budgeted capital expenditures for such period
(except that during any fiscal quarter occurring in calendar year 1994, such
amount shall not be subtracted), plus (v) scheduled payments of interest on the
Loans for such period, plus or (minus) (vi) decreases (or increases) in working
capital, as determined in accordance with GAAP.
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"Certificate" shall mean any certificate of public convenience
and necessity issued by the PUC to the Borrower and authorizing the Borrower to
operate a cellular mobile telephone system in the Franchise Area.
"Collateral" shall mean all property and interests in property now
owned or hereafter acquired by the Borrower in or upon which a security
interest, lien or mortgage is granted to Lender by the Borrower, whether under
this Agreement or the other Loan Documents.
"Commitment" shall mean Lender's agreement to lend as set forth
in Section 2.01.
"Commitment Amount" shall mean the Equipment Loan Commitment
Amount or the Capital Loan Commitment Amount, as applicable.
"Commitment Termination Date" shall mean the earlier of (i) the
date which is two years after the Effective Date and (ii) December 31, 1993 in
the event the initial Loan is not made on or prior to such date.
"Construction Permits" shall mean the authorizations issued to
the Borrower by the FCC granting the Borrower the right to construct a cellular
mobile telephone system on Frequency Block A in each Rural Service Area
included in the Franchise Area.
"Contaminant" shall mean any waste, pollutant, hazardous
substance, toxic substance, hazardous waste, special waste, petroleum or
petroleum-derived substance or waste, or any constituent of any such substance
or waste.
"Conversion Date" shall mean the date on which any Variable Rate
Loans are converted to Fixed Rate Loans pursuant to the provisions of Section
2.05(a).
"Debt" shall mean, with respect to any Person, (i) indebtedness
for borrowed money, (ii) obligations evidenced by bonds, debentures, notes or
other similar instruments, (iii) obligations which have been incurred in
connection with the acquisition of property or services (including, without
limitation, obligations to pay the deferred purchase price of property or
services), excluding trade payables and accrued expenses incurred in the
ordinary course of business, (iv) obligations as lessee under leases which
shall have been or should be, in accordance with GAAP, recorded as capital or
operating leases, (v) all Guarantees of such Person, and (vi) all indebtedness,
obligations or other liabilities in respect of interest rate insurance product
agreements.
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"Effective Date" shall mean the date on which this Agreement has
been duly executed by and delivered to all parties hereto.
"Engineer" shall mean an engineering consultant which may or may
not be an employee of an affiliate of Lender.
"Equipment" shall mean all AT&T cellular system equipment
(including related services and software licenses), peripheral equipment,
wiring and miscellaneous items purchased by the Borrower from AT&T pursuant to
and more particularly described in the Purchase Agreement and all attachments,
accessories, additions, substitutions, products, replacements, rentals and
proceeds (including, but not limited to insurance proceeds) thereof.
"Equipment Loan" shall mean a loan made pursuant to Sections 2.01
and 2.02 hereof.
"Equipment Loan Commitment Amount" shall mean $5,828,000,
inclusive of capitalized interest, if any, on the Equipment Loans.
"Equipment Note" shall mean a promissory note of the Borrower,
substantially in the form of Exhibit D attached hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended.
"ERISA Affiliate" shall mean any (i) corporation which is a
member of the same controlled group of corporations (within the meaning of
section 414(b) of the IRC) as the Borrower, (ii) partnership or other trade or
business (whether or not incorporated) under common control (within the meaning
of section 414(c) of the IRC) with the Borrower and (iii) member of the same
affiliated service group (within the meaning of section 414(m) of the IRC) as
the Borrower, any corporation described in clause (i) above or any partnership
or trade or business described in clause (ii) above.
"Estimated Cash Flow" shall mean for any fiscal period,
Borrower's estimated Cash Flow as set forth in the Operating Projections.
"Event of Default" shall have the meaning given to such term in
Article VIII hereof.
"Excess Cash Flow" shall mean with respect to any fiscal period
of the Borrower, the positive amount of Cash Flow for such period, minus
scheduled payments of principal and interest on the Loans during such period,
minus income taxes due and payable during such period.
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"FCC" shall mean the Federal Communications Commission or any
successor commission or agency having jurisdiction over the Borrower or the
Franchise.
"Fixed Charge Coverage Ratio" shall mean with respect to any
consecutive four fiscal quarter period of Borrower, the ratio of (i) Cash Flow,
plus Cash Equity Contributions, minus actual income taxes, if any, due and
payable during such period (excluding changes in reserve balances) calculated
at the end of such period to (ii) Fixed Charges.
"Fixed Charges" shall mean with respect to any fiscal period of
Borrower, the sum of the following amounts calculated at the end of such
period: (i) interest expenses of the Borrower, plus (ii) fees payable by the
Borrower to the Lender (excluding fees and expenses accrued, incurred or paid
on or prior to the Effective Date plus (iii) scheduled quarterly principal and
interest payments required to be made by the Borrower with respect to the
Loans.
"Fixed Rate" shall mean, with respect to (i) each Note which was
originally a Fixed Rate Note, a rate equal to the average of the "ask yields"
of United States Treasury Notes maturing in the month five years from the month
of issuance of such Note, as quoted in the Eastern Edition of The Wall street
Journal (or any successor publication) on a date two (2) Business Days prior to
the date of making the Loan evidenced by such Note (or if there is no United
States Treasury Note maturing in such month, an interpolation by Lender of the
"ask yields" of United States Treasury Notes maturing in the month closest but
prior to, and in the month closest but subsequent to, the month five years from
the month of issuance of such Note, as quoted in the Eastern Edition of The
Wall Street Journal (or any successor publication) on the date two (2) Business
Days prior to the date of issuance of such Note), plus in either case, the
Applicable Margin and (ii) each Variable Rate Note converted to a Fixed Rate
Note pursuant to the provisions of Section 2.05, a rate equal to the average of
the "ask yields" of United States Treasury Notes maturing in the month five
years from the month in which the Conversion Date occurs, as quoted in the
Eastern Edition of The Wall Street Journal (or any successor publication) on
the date two (2) Business Days prior to the Conversion Date (or if there is no
United States Treasury Note maturing in such month, an interpolation of the
"ask yields" by Lender of United States Treasury Notes maturing in the month
closest but prior to, and in the month in which the Conversion Date occurs, as
quoted in the Eastern Edition of The Wall Street Journal (or any successor
publication) on the date two (2) Business Days prior to the Conversion Date),
plus in either case, the Applicable Margin.
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"Fixed Rate Note" shall mean any Note, which bears interest at a
fixed rate pursuant to Section 2.05.
"Franchise" shall mean all the Borrower's rights to operate
cellular mobile telephone systems in the Franchise Area pursuant to FCC
licenses and any Certificate now or hereafter granted to or otherwise acquired
by the Borrower for the Franchise Area.
"Franchise Area" shall mean the area consisting of the
Mississippi 3 and 4 Rural Service Areas, including the following counties in
the State of Mississippi: Bolivar, Sunflower, Tallahatchie, Leflore, Carroll,
Xxxxxx, Yalobusha, Grenada, Xxxxxxx, Chickasaw, Clay and Monroe.
"Guarantee" shall mean any obligation, contingent or otherwise,
of any Person guaranteeing any indebtedness of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such indebtedness; (ii) to purchase property, securities or
services for the purpose of assuring the owner of such indebtedness of the
payment of such indebtedness; or (iii) to maintain working capital, equity
capital or other financial statement condition of the Primary Obligor so as to
enable the Primary Obligor to pay such indebtedness.
"Independent Consultant" shall mean Xxxxxx, Xxxxxx & Associates,
Inc.
"Independent Consultant's Report" shall mean a feasibility study
and report prepared by the Independent Consultant, at the sole cost and expense
of the Borrower, which report shall include an independent marketing study of
the Business Plan and review of the underlying assumptions supporting the
Business Plan, including an assessment of the likely competition the Borrower
may face.
"Investment" shall mean, as applied to any Person, any direct or
indirect purchase or other acquisition by that Person of securities, or of a
beneficial interest in securities, of any other Person, and any direct or
indirect loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, advances to employees,
officers and directors and similar items, each made or incurred in the ordinary
course of business), or capital contribution by that Person to any other
Person, including all Debt of such other Person, but excluding accounts owed by
that other Person in the
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ordinary course of business. The amount of any Investment shall be determined
in conformity with GAAP.
"IRC" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated thereunder, and
any successor statutes or rules and regulations.
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"Licenses" shall mean prior to the date of initial receipt of the
Operating Licenses, the Construction Permits, and thereafter, the Operating
Licenses.
"Lien" shall mean any mortgage, pledge, deed of trust,
assignment, lien, charge, encumbrance or security interest of any kind, or the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement, but excluding easements, rights of
way or similar encumbrances on the real property which are in the ordinary
course and which do not materially affect the value, use and insurability of
title of such real property.
"Loan" shall mean any Capital Loan or Equipment Loan, as
applicable.
"Loan Documents" shall mean all agreements, instruments and
documents, including, without limitation, security agreements, loan agreements,
notes, guarantees, mortgages, deeds of trust, subordination agreements,
pledges, powers of attorney, consents, assignments, contracts, notices, leases,
financing statements and all other written matter whether heretofore, now, or
hereafter executed by or on behalf of the Borrower and delivered to Lender,
together with all agreements and documents referred to therein or contemplated
thereby.
"Management Agreement" shall mean that certain RSA Management and
Construction Services Agreement dated as of October 15, 1993 between the
Borrower and Mercury.
"Material Adverse Effect" shall mean a material adverse effect
upon the condition (financial or otherwise), operations, properties or
prospects of the Borrower, or upon the ability of the Borrower to perform under
the Loan Documents.
"MCC" shall mean Mercury Communications Company, a Mississippi
corporation.
"Mercury" shall mean Mercury, Inc., a Louisiana corporation.
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"Mortgages" shall mean (i) the mortgages and deeds of trust in
favor of Lender which have been executed on or prior to the date hereof and are
described in Schedule 1.01 hereto relating to the real property owned by the
Borrower and used in connection with the Business, and (ii) any mortgage or
deed of trust on any real property acquired by the Borrower subsequent to the
date hereof and used in connection with the Business which in accordance with
the terms of this Agreement is to be delivered to Lender by the Borrower as
security for the Obligations.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA which is, or within the immediately preceding
six (6) years was, contributed to by either the Borrower or an ERISA Affiliate.
"Net Income" shall mean, for any period, the amount shown
opposite the caption, "Net Income" or a similar caption, on the Borrower's
statement of operations for such period prepared in accordance with GAAP.
"Note" shall mean either a Capital Note or an Equipment Note.
"Obligations" shall mean all of the obligations of the Borrower
now or hereafter existing under this Agreement or the other Loan Documents,
whether for principal, interest, fees, expenses, indemnification or otherwise.
"Operating Licenses" shall mean authorizations issued to the
Borrower by the FCC granting the Borrower the right to own and operate cellular
mobile telephone systems serving the Franchise Area on Frequency Block A.
"Operating Projections" shall mean (i) those certain operating
projections for years 1993 to 2003, inclusive, dated as of December 15, 1993,
and included in the Business Plan, with the assumption that for each fiscal
quarter of the Borrower in any fiscal year, Estimated Cash Flow for such fiscal
quarter shall equal one-quarter of Estimated Cash Flow for such fiscal year or
if delivered, then (ii) replacement quarterly operating projections
satisfactory to the Lender and delivered to the Lender by the Borrower on or
prior to January 15, 1994, which operating projections shall contain quarterly
information in sufficient detail to determine Estimated Cash Flow for the years
1993 to 2003, inclusive, provided that the sum of the Estimated Cash Flows for
the consecutive four quarters ending on December 31 of any calendar year shall
not be less than the annual Estimated Cash Flows in the operating projections
referred to in clause (i) above for such years.
"Payment Date" shall mean the last Business Day of March, June,
September and December in each year.
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"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Permitted Capital Contributions" shall mean cash capital
contributions made by the Borrower's shareholders to the Borrower, which
contributions fully cure any defaults under Sections 8.01(r) and (s), not to
exceed four consecutive quarterly such contributions or eight such
contributions in the aggregate.
"Permitted Liens" shall have the meaning set forth in Section
6.01.
"Person" shall mean any natural person, corporation, division of
a corporation, business trust, joint venture, association, company,
partnership, unincorporated organization or other legal entity, or a government
or any agency or political subdivision thereof.
"Plan" shall mean any employee benefit plan as defined in Section
3(3) of ERISA (other than a Multiemployer Plan) in respect of which Borrower or
any ERISA Affiliate is, or within the immediately preceding six (6) years was,
an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement executed by
each of the shareholders of Borrower, in the form of Exhibit B attached hereto,
to be executed and delivered pursuant to Section 4.01(f) hereof.
"Prepayment Premium" shall mean, with respect to (i) any Loan
bearing interest at the Fixed Rate, 1.0% of the outstanding principal balance
of such Loan, plus the amount, which shall not be less than zero, by which (a)
the present value of the remaining scheduled payments of principal and interest
discounted at a rate equal to the sum of (x) the "ask yield" to maturity of the
United States Treasury Note with a maturity closest to the maturity of the Note
evidencing such Loan as quoted in the Eastern Edition of The Wall Street
Journal (or any successor publication) on the date two (2) Business Days prior
to the making of the prepayment in question, and (y) 1.0% exceeds (b) the
outstanding principal balance of such Loan, and (ii) for any Loan bearing
interest at the Variable Rate, 1.0% of the outstanding principal balance of
such Loan.
"Pro Forma" shall have the meaning specified in Section 3.03.
"PUC" shall mean the Mississippi Public Service Commission or any
successor agency, and any successor, in whole or in part, to its jurisdiction.
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"Purchase Agreement" shall mean that certain General Agreement
for Purchase of Cellular Systems between MCC and AT&T and executed July 7, 1993
by MCC and July 9, 1993 by AT&T.
"Release" shall mean release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment or into or out of any property, including the
movement of Contaminants through or in the air, soil, surface water,
groundwater or property.
"Remedial Action" shall mean actions required to (1) clean up,
remove, treat or in any other way address Contaminants in the indoor or outdoor
environment; (2) prevent the Release or threat of Release or minimize the
further Release of Contaminants so they do not migrate or endanger or threaten
to endanger public health or welfare or the indoor or outdoor environment; or
(3) perform pre-remedial studies and investigations and post-remedial
monitoring and care.
"Reportable Event" shall mean any reportable event as defined in
Section 4043 of ERISA.
"Shareholders Agreement" means that certain Shareholders
Agreement dated as of December 19, 1992 among each of the shareholders of the
Borrower and the Borrower.
"System" shall mean the complete mobile telephone system being
purchased, leased or installed by or for the Borrower for the Franchise Area
and all replacements, enhancements or additions thereto.
"Termination Event" shall mean (i) a Reportable Event with
respect to any Benefit Plan; (ii) the withdrawal of the Borrower or any ERISA
Affiliate from a Benefit Plan during a plan year in which Borrower or such
ERISA Affiliate was a "substantial employer" as defined in Section 4001(a)(2)
of ERISA; (iii) the imposition of an obligation on the Borrower or any ERISA
Affiliate under Section 4041 of ERISA to provide affected parties written
notice of intent to terminate a Benefit Plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the institution by the PBGC of
proceedings to terminate a Benefit Plan; (v) any event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan; or (vi) the partial
or complete withdrawal of the Borrower or any ERISA Affiliate from a
Multiemployer Plan.
"Variable Rate" shall mean with respect to each Variable Rate
Note, the average offering rate by commercial paper dealers for three month
commercial paper of major corporations as
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quoted in the Eastern Edition of The Wall Street Journal (or its successor
publication) (i) in effect two (2) Business Days prior to the date of issuance
of such Variable Rate Note with respect to the period commencing on such date
of issuance and ending on the last day of the calendar quarter in which the
date of issuance occurs, and (ii) in effect two (2) Business Days prior to the
first day of each subsequent calendar quarter with respect to the period
commencing on such first day and ending on the last day of such subsequent
calendar quarter, plus, in each case, the Applicable Margin.
"Variable Rate Note" shall mean a Note which bears interest at a
variable rate pursuant to Section 2.05.
"Voting Stock" shall mean securities of any class or classes of a
corporation, the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate directors (or
Persons performing similar functions).
SECTION 1.02. Accounting Terms. Except as otherwise herein
specifically provided, each accounting term used herein shall have the meaning
given to it under generally accepted accounting principles applied on a
consistent basis ("GAAP").
SECTION 1.03. Others Defined in New Jersey Uniform Commercial
Code. All other terms contained in this Agreement (and which are not otherwise
specifically defined herein) shall have the meanings provided by the Uniform
Commercial Code of the State of New Jersey (the "Code") to the extent the same
are used or defined therein.
ARTICLE II
LOANS
SECTION 2.01. Agreement to Lend. Subject to the terms and
conditions and relying upon the representations and warranties of the Borrower
herein (unless the Commitment of Lender shall have been terminated in
accordance with the terms hereof), Lender agrees to make the following Loans to
the Borrower: (a) from time to time on or after the Effective Date and until
the Commitment Termination Date, Capital Loans up to (but not exceeding) the
Capital Loan Commitment Amount; and (b) from time to time on or after the
Effective Date and until the Commitment Termination Date, Equipment Loans up to
(but not exceeding) the Equipment Loan Commitment Amount.
SECTION 2.02. Equipment Loan(s). Equipment Loans shall be used to
purchase the Equipment on behalf of the Borrower and shall be paid by Lender,
on behalf of the Borrower, directly to AT&T. Lender shall make each such
Equipment Loan within 10 Business Days after Lender has received from the
Borrower a delivery and acceptance certificate in the form of Exhibit E
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attached hereto, together with a copy of an invoice from AT&T for the Equipment
described in the delivery and acceptance certificate.
SECTION 2.03. Capital Loan(s); Procedure for Proper Request. (a)
The Capital Loans shall be used as working capital to operate the Business in
accordance with the Business Plan and to purchase equipment not manufactured by
AT&T or its affiliates, as described in the Business Plan. Proceeds of a
portion of initial Working Capital Loans may be used to pay the Borrower's
outstanding indebtedness of $514,474.99 of principal, plus accrued interest
thereon to Deposit Guaranty National Bank provided that such payment is made
directly by Lender to Deposit Guaranty National Bank pursuant to a disbursement
direction letter executed by the Borrower. Each Capital Loan shall be in a
minimum aggregate principal amount of $100,000 or in integral multiples thereof
(except for a Capital Loan which will be for the entire unused balance of the
Capital Loan Commitment Amount).
(b) The Borrower shall give Lender at least ten Business Days'
prior written notice of each Capital Loan requested to be made. In each case,
such notice shall be in the form attached hereto as Exhibit F, shall be
irrevocable and shall specify the aggregate amount of the proposed Capital
Loan, the intended use of such Capital Loan, the date of such Capital Loan
(which shall be a Business Day), whether such Capital Loan is to bear interest
at the Fixed Rate or the Variable Rate and the specific bank account (including
the identity of the bank and the account number) to which Lender shall transfer
the proceeds of the proposed Capital Loan. If any of the proceeds of the Loan
are to be used to purchase equipment, such notice shall also be accompanied by
a delivery and acceptance certificate in the form of Exhibit E attached hereto,
together with a copy of an invoice from the equipment vendor for the equipment
described in the delivery and acceptance certificate. Such notice, to be
effective, must be received by Lender not later than 10:00 a.m., New Jersey
time, on the tenth Business Day prior to the borrowing date specified in such
notice. Lender shall make the Loan proceeds available to the Borrower at the
bank account specified in a proper notice of borrowing on the date specified in
such notice of borrowing in U.S. dollars in immediately available funds.
SECTION 2.04. The Notes. Each Equipment Loan shall be evidenced
by an Equipment Note and each Capital Loan shall be evidenced by a Capital
Note. Each Note shall bear interest from its date on the outstanding principal
balance thereof as set forth in Section 2.05. Lender is hereby authorized by
the Borrower to endorse on the schedule attached to the applicable Note an
appropriate notation evidencing the date and amount of each payment on such
Loan and the other information provided for on such schedule; provided,
however, that the failure of Lender
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to provide such endorsement, and other information on such Note or schedule
shall not in any manner affect the obligation of the Borrower to repay a Loan
in accordance with the terms of such Note. Upon the prior written request of
the Borrower delivered not more than sixty days and not less than thirty days
prior to the Commitment Termination Date and provided, further, that compliance
with such request does not require modification of any Mortgages, all of the
Fixed Rate Notes will be consolidated into a single Fixed Rate Note with a rate
of interest equal to the weighted average of the Fixed Rates of all of the
Fixed Rate Notes and scheduled payments of principal on the Payment Dates in
amounts equal to the aggregate principal amounts payable on the Payment Dates
under all of the Fixed Rate Notes and all of the Variable Rate Notes will be
consolidated into a single Variable Rate Note with a rate of interest equal to
the weighted average of the Variable Rates of all the Variable Rate Notes
subject to quarterly adjustment and scheduled payments of principal on the
Payment Dates in amounts equal to the aggregate principal amounts payable on
the Payment Dates under all of the Variable Rate Notes.
SECTION 2.05. Interest on Loans. (a) General. Subject to the
provisions of Section 2.07, each Loan shall bear interest at a rate per annum
equal to the Fixed Rate or the Variable Rate, computed on the basis of a 360
days year comprised of twelve 30 day months, compounded monthly. The Borrower
shall indicated which rate option it is selecting for each Loan on the delivery
and acceptance certificate or notice of borrowing delivered to the Lender in
accordance with Sections 2.02 or 2.03. Provided that no Event of Default has
occurred and is continuing, at one time prior to the fourth anniversary of the
Effective Date, Borrower may upon sixty days prior written notice to Lender,
which notice shall be irrevocable, convert one or more of the then outstanding
Variable Rate Loans, as specified in such notice, to Fixed Rate Loans.
(b) Variable Interest Rate. Subject to the provisions of Sections
2.05(a) and 2.07, each Loan for which the Borrower selects the Variable Rate
shall bear interest at the Variable Rate.
(c) Fixed Rate Election. Subject to the provisions of Section
2.07, each Loan for which the Borrower selects the Fixed Rate shall bear
interest at the Fixed Rate.
SECTION 2.06. Payments. (a) Interest on each Note shall be
payable quarterly in arrears on each Payment Date occurring after December 31,
1993, provided, however, that as long as no Event of Default has occurred and
is continuing, upon the prior written request of the Borrower, all but not less
than all, of the interest payable on the Notes on any Payment Date occurring on
or prior to the Commitment Termination Date, shall
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be added to the principal balance of such Notes, solely to the extent that such
addition would not cause the outstanding principal balance of the Equipment
Notes to exceed the Equipment Loan Commitment Amount or the outstanding
principal balance of the Capital Notes to exceed the Capital Loan Commitment
Amount.
(b) The outstanding principal balance of each Note shall be
payable in twenty-two consecutive quarterly installments beginning on the
fifteenth Payment Date occurring after December 31, 1993. The amount of each
principal payment for any Note shall be calculated by multiplying the original
principal amount of such Note (including any deferred interest added to
principal pursuant to Section 2.06(a)) by the percent set forth below
corresponding to the applicable payment:
% of Original Principal Amount
(including any deferred
Principal Payment Number interest)
------------------------ ------------------------------
1 to 2 1.00%
3 to 6 1.90%
7 to 10 3.75%
11 to 14 4.75%
15 to 18 6.00%
19 to 22 8.10%
SECTION 2.07. Default Rate of Interest. If the Borrower shall
default in the payment of the principal of or interest on any of the Loans or
any other amount becoming due hereunder on its due date, the Borrower shall
thereafter pay interest on all of the Loans at a rate that is 4% per annum
above the rates of interest otherwise payable on the Loans from the date such
payment is due to the date of actual payment. If any other Event of Default
shall occur and be continuing, then the Borrower shall, on demand, pay interest
on all of the Loans at a rate that is 2% per annum above the rates of interest
otherwise payable on the Loans from the date of the occurrence of such Event of
Default until the date such Event of Default has been cured.
SECTION 2.08. Optional Prepayment of Loans; Mandatory Prepayment
of Loans. (a) Provided that no Event of Default has occurred and is
continuing, the Borrower shall have the right upon the provision of sixty days
prior written notice to Lender, which notice shall be irrevocable, on any
Payment Date beginning with the fourteenth Payment Date after December 31, 1993
to prepay the outstanding principal balance of all, but not less than all, of
the Loans, together with accrued interest thereon and the aggregate Prepayment
Premiums with respect to all of the Loans.
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(b) Borrower shall prepay the principal outstanding balance of
the Loans in the inverse order of maturity on the Payment Dates occurring after
December 31, 1993 set forth below in the percentage amounts set forth below
solely out of Excess Cash Flow; provided, however, that if Excess Cash Flow is
insufficient to pay such percentage amounts in full, Borrower shall prepay only
those percentages of the principal outstanding balances of the Loans that may
be covered by Excess Cash Flow existing on the applicable Payment Dates, and if
there is any Excess Cash Flow remaining on any subsequent Payment Date after
giving effect to the required prepayment to be made on such Payment Date, such
Excess Cash Flow shall be applied to cover any shortfall in prepayments
required to be made on previous Payment Dates:
% of Original Principal Amount of
Loans (including deferred interest)
Payment Dates to be Prepaid
------------- -----------------------------------
11 to 12 7.00%
13 to 16 2.50%
17 to 20 1.35%
(c) If the aggregate principal balance of (i) the Equipment Loans
exceeds the Equipment Loan Commitment Amount, or (ii) the Capital Loans exceeds
the Capital Loan Commitment Amount, then in each such case, the Borrower shall
immediately repay to Lender, upon notice from Lender, the amount by which the
outstanding principal balance of the respective Loan balance exceeds its
respective Commitment Amount, together with all accrued and unpaid interest on
such excess principal up to the date of repayment.
SECTION 2.09. Payment, etc. All payments by the Borrower
hereunder and under the Notes shall be made to Lender by wire transfer or other
electronic payment method to such bank accounts as Lender may designate, for
the account of Lender in U.S. dollars in immediately available funds by 2:00
p.m., New Jersey time, on the date on which such payment shall be due. Interest
in respect of any Loan hereunder shall accrue from the day such Loan is made up
to and including the day prior to the date on which such Loan is paid in full.
SECTION 2.10. Maximum Lawful Interest Rate. Notwithstanding any
provision contained herein, the total liability of the Borrower for payment of
interest pursuant hereto and the Notes, including any other charges or other
amounts, to the extent such charges and other amounts are deemed to be
interest, shall not exceed the maximum amount of such permitted by law to be
charged, collected, or received from the Borrower. If any payments by the
Borrower include interest in excess of such a maximum amount, Lender shall
apply such excess to the reduction
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of the unpaid principal amount due pursuant hereto, or if none is due, such
excess shall be refunded to the Borrower.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to Lender that:
SECTION 3.01. Organization; Powers. (a) The Borrower (i) is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Mississippi and (ii) is qualified to do business (A) in
the State of Mississippi and (B) in every other jurisdiction where such
qualification is necessary, except where the failure to qualify would not have
a Material Adverse Effect;
(b) the Borrower has the power and authority to own its
properties, to carry on its business as now conducted or as presently
contemplated and, to operate the System; and
(c) the Borrower has the power and authority to execute and
deliver and perform this Agreement and the other Loan Documents, to borrow
hereunder, and will have the power to execute and deliver any Mortgages and
collateral assignments of leases delivered subsequent to the-date hereof.
SECTION 3.02. Authorization by Borrower. The execution, delivery
and performance of this Agreement and the other Loan Documents to be delivered
subsequent to the date hereof, and the Loans hereunder:
(a) have been duly authorized by Borrower's Board of Directors
and, if necessary, Borrower's stockholders;
(b) do not violate (i) any provision of law, (ii) Borrower's
Articles of Incorporation or by-laws, (iii) any applicable order of any court
or other governmental agency, or (iv) any indenture, agreement for borrowed
money, bond, note or other similar instrument or any other material agreement
to which the Borrower is a party or by which the Borrower or any of the
Borrower's property is bound;
(c) do not conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any indenture,
agreement for borrowed money, bond, note or similar instrument or other
material agreement to which the Borrower is a party or by which the Borrower or
any of the Borrower's property is bound;
(d) do not result in the creation or imposition of any Lien of
any nature whatsoever upon any property or assets of the
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Borrower other than the Lien granted pursuant to ARTICLE VII hereof;
(e) constitute legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their respective
terms, subject, as to enforcement, to applicable bankruptcy, reorganization,
insolvency and similar laws affecting creditors' rights generally and to
moratorium laws from time to time in effect; and
(f) do not, as of the execution hereof, require any governmental
consent, filing, registration or approval except as set forth on Schedule 3.02.
SECTION 3.03. Financial Statements. The Borrower has furnished to
Lender the pro forma balance sheet (the "Pro Formal") of the Borrower dated as
of November 30, 1993 attached hereto as Exhibit G. As of the date of this
Agreement, (a) the Pro Forma fairly represents Borrower's assets, liabilities
and financial condition and indicates the equity contributions made by the
Borrower's shareholders; and (b) there are no omissions from the Pro Forma or
any other facts or circumstances not reflected in the Pro Forma which are or
may be material according to GAAP.
SECTION 3.04. No Material Adverse Change. There has been no
material adverse change in the condition (financial or otherwise), operations,
properties or prospects of the Borrower since the date of the Pro Forma.
SECTION 3.05. Litigation. Except as set forth on Schedule 3.05,
there are no actions, suits or proceedings at law or in equity or by or before
any governmental instrumentality or other agency now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
property or rights of the Borrower as to which there is a reasonable
possibility of an adverse determination and which, if adversely determined,
would individually or in the aggregate materially impair the right of the
Borrower to carry on business substantially as now being conducted or as
presently contemplated or would result in any Material Adverse Effect.
SECTION 3.06. Tax Returns. The Borrower has filed or caused to be
filed all Federal, state and local tax returns which are required to be filed
and has paid or caused to be paid all taxes as shown on such returns or on any
assessment received by it to the extent that such taxes have become due, except
such taxes the amount, applicability or validity of which are being contested
in good faith by appropriate proceedings and with respect to which the Borrower
shall have set aside on its books adequate reserves with respect to such taxes
as are required by GAAP.
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SECTION 3.07. No Defaults. The Borrower is not in default (i)
with respect to any judgment, writ, injunction, decree, rule or regulation of
any governmental instrumentality or other agency which could have a Material
Adverse Effect, or (ii) in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any material agreement or
instrument to which the Borrower is a party or by which its assets are bound.
SECTION 3.08. Properties. The Borrower has good and marketable
title to all its properties and assets and all Collateral is free and clear of
all Liens of any nature whatsoever, except Permitted Liens and except that
Accounts are subject to billing adjustments and writeoffs in the ordinary
course of business.
SECTION 3.09. Licenses, etc. The Borrower has obtained the
Operating Licenses, the Certificate and all necessary construction and other
licenses, authorizations and approvals of any Federal, state or local
governmental agency, authority or instrumentality having jurisdiction over the
Borrower, the Franchise or the Franchise Area, which other licenses,
authorizations and approvals are necessary or appropriate for the construction
and operation of cellular mobile telephone systems in the Franchise Area as
presently contemplated.
SECTION 3.10. Compliance With Laws. Except as disclosed on
Schedule 3.10, the operations of the Borrower comply in all material respects
with all applicable federal, state or local laws and regulations, including
environmental, health and safety statutes and regulations. None of the
operations of the Borrower is subject to any judicial or administrative
proceeding alleging the violation of any federal, state or local environmental,
health or safety statute or regulation. None of the operations of the Borrower
is the subject of federal or state investigation evaluating whether any
remedial action is needed to respond to a Release of any contaminant into the
indoor or outdoor environment. Except as disclosed on Schedule 3.10, the
Borrower has not filed any notice under any federal or state law indicating
past or present treatment, storage or disposal of a hazardous waste or
reporting a Release of any Contaminant into the indoor or outdoor environment.
Borrower has no contingent liability of which the Borrower has knowledge or
reasonably should have knowledge in connection with any Release of any
Contaminant into the indoor or outdoor environment.
SECTION 3.11. ERISA. Neither Borrower nor any ERISA Affiliate
maintains or contributes to any Plan other than a Plan listed on Schedule 3.11
hereto. Each Plan which is intended to be qualified under Section 401(a) of the
IRC has been determined by the IRS to be so qualified, and each trust related
to any such
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Plan has been determined to be exempt from federal income tax under Section
501(a) of the IRC. Except as disclosed on Schedule 3.11, neither Borrower nor
any ERISA Affiliate maintains or contributes to any employee welfare benefit
plan within the meaning of Section 3(1) of ERISA which provides benefits to
employees after termination of employment other than as required by Section 601
of ERISA. Neither the Borrower nor any ERISA affiliate has breached any of the
responsibilities, obligations or duties imposed on it by ERISA or regulations
promulgated thereunder with respect to any Plan. No Plan has incurred any
accumulated funding deficiency (as defined in Section 302(a)(2) of ERISA and
Section 412(a) of the IRC), whether waived or not waived. Neither the Borrower
nor any ERISA Affiliate nor any fiduciary of any Plan which is not a
Multiemployer Plan (i) has engaged in a nonexempt "prohibited transaction"
described in Section 406 of ERISA or Section 4975 of the IRC or (ii) has taken
or failed to take any action which would constitute or result in a Termination
Event. Neither the Borrower nor any ERISA Affiliate has incurred any liability
to the PBGC which remains outstanding other than the payment of premiums, and
there are no premium payments which have become due which are unpaid. Schedule
B to the most recent annual report filed with the Internal Revenue Service with
respect to each Plan is complete and accurate. Since the date of each such
Schedule B, there has been no adverse change in the funding status or financial
condition of the Plan relating to such Schedule B. Neither the Borrower nor any
ERISA Affiliate has (i) failed to make a required contribution or payment to a
Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections
4203 or 4205 of ERISA from a Multiemployer Plan. Neither the Borrower nor any
ERISA Affiliate has failed to make a required installment or any other required
payment under Section 412 of the IRC on or before the due date for such
installment or other payment. Neither the Borrower nor any ERISA Affiliate is
required to provide security to a Plan under Section 401(a)(29) of the IRC due
to a Plan amendment that results in an increase in current liability for the
plan year.
SECTION 3.12. 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. 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.
SECTION 3.13. Federal Reserve Regulations. The Borrower is not
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any margin stock
(within the meaning of Regulation G of the Board of Governors of the Federal
Reserve System of the United States), and no part of the proceeds of the Loans
hereunder will be used to purchase or carry any such margin
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stock or to extend credit to others for the purpose of purchasing or carrying
any such margin stock or for any purpose that violates, or is inconsistent
with, the provisions of Regulation G, T, U or X of said board of Governors.
SECTION 3.14. Collateral. The security interest granted by
Article VII hereof and accompanying financing statements, when duly filed in
the offices and jurisdictions set forth on Schedule 3.14 hereof, create a valid
and perfected first priority Lien in and to the Collateral to the extent that
the filing of a financing statement is sufficient to perfect such security
interest, enforceable against other Persons in all jurisdictions securing the
payment of the Obligations. Upon filing such financing statements, no further
action is required to perfect fully the Lien of Lender in the Collateral
described in Section 7.01.
SECTION 3.15 Chief Place of Business. As of the execution hereof,
the principal place of business of the Borrower is located at 0000 XX Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 and the chief executive office of the
Borrower is located at 14th Floor, Calcasieu Marine National Bank, Xxx
Xxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000. If any change in such location
occurs, the Borrower shall notify Lender thereof not later than ten days after
the occurrence thereof. As of the execution hereof, the books and records of
Borrower and all chattel paper and all records of account are located at the
principal place of business and chief executive office of the Borrower, and if
any change in such location occurs, the Borrower shall notify Lender thereof
not later than ten days after the occurrence thereof.
SECTION 3.16 Other Corporate Names. The Borrower has not used any
other corporate or fictitious name other than the corporate name shown in
Borrower's Articles of Incorporation and Cellular One.
SECTION 3.17 Insurance. Schedule 3.17 contains a description of
all insurance which the Borrower maintains with respect to the Business. All of
such insurance is in full force and effect.
SECTION 3.18. Business Plan and operating Projections. The
Business Plan and operating Projections represent the Borrower's best estimate
of the Borrower's future financial performance for the periods set forth
therein. Such documents have been prepared on the basis of the assumptions set
forth therein, which the Borrower believes are reasonable in light of current
and reasonably foreseeable business conditions.
SECTION 3.19. Capitalization and Subsidiaries. Borrower has one
class of capital stock comprised of common stock, with a par value of $.01.
There are 100,000 authorized
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shares of which 10,000 shares are outstanding. All of the outstanding shares of
capital stock of the Borrower are duly and validly issued, fully paid and
nonassessable, and none of such issued and outstanding shares, equity
securities or beneficial interests has been issued in violation of, or is
subject to, any pre-emptive or subscription rights. There are no: (A)
outstanding shares of capital stock or other securities convertible into or
exchangeable for equity securities of the Borrower, or (B) outstanding rights
of subscription, warrants, calls, options, contracts or other agreements of any
kind, issued, made or granted to or with any Person under which the Borrower
may be obligated to issue, sell, purchase, retire or redeem or otherwise
acquire or dispose of any equity securities of the Borrower. The ownership
interests in the Borrower are as indicated on Exhibit A to the Pledge
Agreement.
SECTION 3.20. Real Property, Leases and Easements. As of the date
of the initial Loans, the Borrower owns the real property described on Schedule
3.20. Set forth on Schedule 3.20 is a list of (i) all real property leased by
the Borrower (the "Leased Real Property") and the material terms and provisions
thereof and (ii) all easements, rights of way and similar rights with respect
to real property granted to the Borrower (the "Easements") and the material
terms and provisions thereof. Except as set forth in Schedule 3.20, the
Borrower's interests in the owned real property, the Leased Property and the
Easements (i) are sufficient in order for the Borrower to conduct its business
and operations as presently conducted and (ii) are duly recorded and perfected
in all necessary and appropriate recording and filing offices. Schedule 3.20
sets forth a list of real property and Easements that the Borrower is currently
intending to purchase or lease in connection with its operations and business.
SECTION 3.21. No Material Misstatements. No report, financial
statement, exhibit or schedule furnished by or on behalf of the Borrower to
Lender in connection with the negotiation of this Agreement and the other Loan
Documents or included herein or therein, nor any other information required to
be furnished hereby or thereby, contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein not
materially misleading.
ARTICLE IV
CONDITIONS FOR LOANS
The obligations of Lender to make Loans hereunder are subject to
the accuracy, as of the Effective Date, of the representations and warranties
contained in Article III, to the performance by the Borrower of its obligations
to be performed
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hereunder on or before the date of such Loan and to the satisfaction of the
following further conditions:
SECTION 4.01. Conditions Precedent to Initial Loan. In the case
of the initial Loan to be made hereunder:
(a) All then applicable legal matters incident to this Agreement
and the other Loan Documents shall be satisfactory to counsel for Lender.
(b) Lender shall have received (i) the Business Plan and
Operating Projections showing in reasonable detail and specifying any material
underlying assumptions, for the subsequent 10 year period, the Borrower's
anticipated revenues and expenses and projected statements of Cash Flow and
information with respect to projected capital expenditures and changes in
working capital over such period and (ii) a detailed System construction and
buildout schedule.
(c) Lender shall have received the Pro Forma.
(d) Lender shall have received a certificate substantially in the
form of Exhibit H hereto, dated the Effective Date of the secretary of the
Borrower, certifying (i) the names and true signatures of the officers
authorized to sign each Loan Document to which the Borrower is a party, (ii)
the resolutions of the Board of Directors of the Borrower approving the
transactions contemplated by the Loan Documents, and (iii) the Borrower's
by-laws.
(e) Lender shall have received the favorable written opinion of
special, local and regulatory counsel for the Borrower, dated the Effective
Date, addressed to Lender and satisfactory to (and containing only such
qualifications and limitations as are satisfactory to) counsel for Lender,
which opinion shall be substantially in the form of Exhibit I-1; I-2 and I-3
attached hereto.
(f) Lender shall have received the Pledge Agreement duly executed
by each of the shareholders of Borrower.
(g) Lender shall have received the Mortgage[s] for the premises
described on Schedule 1.01 together with a lender's title commitment or policy
therefor, satisfactory to Lender.
(h) Lender shall have received certificates of appropriate public
officials of Mississippi, dated not more than 30 days prior to the Effective
Date, as to the legal existence or qualification, and good standing of the
Borrower.
(i) Lender shall have received the Borrower's Articles of
Incorporation, as amended, modified or supplemented to the
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Effective Date, certified to be true, correct and complete by the Secretary of
State of Mississippi.
(j) Lender shall have received satisfactory evidence that its
security interests in the Collateral have been properly perfected and
constitute first and prior security interests subject only to Permitted Liens.
(k) Lender shall have received loss payable endorsements
substantially in the form of Exhibit J attached hereto with respect to
Borrower's insurance policies relating to the Collateral, and insurance
certificates from nationally recognized insurance brokers with respect to
Borrower's insurance policies.
(l) Lender shall have completed an environmental audit of
Borrower's owned and leased real property to the satisfaction of Lender.
(m) Lender shall have received with respect to each of Borrower's
then existing "Collection Accounts" (as defined in Section 7.04), Restricted
Account Agreements substantially in the form of Exhibit K attached hereto, duly
executed by Borrower and the financial institutions maintaining the "Collection
Accounts".
(n) Lender shall have received a landlord waiver substantially in
the form of Exhibit L attached hereto and a collateral assignment of lease in
form and substance satisfactory to Lender with respect to each of the
Borrower's leased premises, each such document duly executed by the landlord of
each such premises and each collateral assignment of lease duly executed by the
Borrower.
(o) Lender shall have received a letter from Borrower
substantially in the form of Exhibit M attached hereto.
(p) Lender shall have received the Independent Consultant's
Report, which shall be in form and substance satisfactory to Lender.
(q) Lender shall have received satisfactory evidence that the
licenses, authorizations and approvals referred to in Section 3.09 have been
received by the Borrower.
(r) Lender shall have received the Borrower's most recent audited
and unaudited financial statements.
(s) Lender shall have received payment in full of the origination
fee of $124,753.
(t) Lender shall have received a subordination agreement in form
and substance satisfactory to it from the holders of Debt described in Section
6.11(v).
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(u) Lender shall have satisfactorily completed its due diligence
review of the Business and the System.
(v) Lender shall have received satisfactory evidence that the
rights and obligations of MCC under the Purchase Agreement that relate to the
Equipment for the Franchise Area have been assigned to and assumed by the
Borrower,
(w) Lender shall have received a pay off letter from Deposit
Guaranty National Bank.
SECTION 4.02. Conditions Precedent to All Loans. In the case of
each Loan hereunder:
(a) The representations and warranties of the Borrower set forth
in Article III or in any other Loan Document shall be true and correct in all
material respects on and as of the date of such Loan with the same effect as
though such representations and warranties had been made on and as of such
date.
(b) At the time of each such Loan, and after giving effect to
such Loan, the Borrower shall be in compliance with all the terms and
provisions set forth herein on its part to be observed or performed, and no
Event of Default, nor any event which upon notice or lapse of time or both
would constitute such an Event of Default, shall have occurred and be
continuing.
(c) At the time of each such Loan and after giving effect to each
such Loan, there shall have been no material adverse change in the condition
(financial or otherwise), operations, properties or prospects of the Borrower
since the date of the Pro Forma.
(d) Such Loan, when combined with Loans previously made to the
Borrower, shall not exceed the Equipment Loan Commitment Amount or the Capital
Loan Commitment Amount, as applicable.
(e) All legal matters incident to such Loan and the Loan
Documents shall be satisfactory to counsel for Lender.
(f) Lender shall have received a notice of the Capital Loan as
required by Section 2.03(b) or acceptance certificate and invoices required by
Section 2.02, as applicable, together with a certification by an authorized
officer of the Borrower regarding representations, warranties, absence of
default, and with respect to Capital Loans, use of proceeds, all as set forth
on Exhibit E or F, as applicable.
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(g) Lender shall have received a duly executed Note by the
Borrower for the amount of the Loan at least three Business Days prior to the
date the Loan is requested to be made.
(h) Lender shall have received satisfactory evidence from the
Engineer that the project milestones set forth in the Business Plan that are
scheduled to be achieved prior to the date of the Loan, including, without
limitation, System construction and subscriber and expense levels, have
actually been achieved.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with Lender that so long as the
Agreement shall remain in effect or any Obligations hereunder or under any of
the other Loan Documents are unpaid:
SECTION 5.01 Corporate and Franchise Existence. The Borrower
shall preserve and maintain its corporate existence, rights, franchises and
privileges in its jurisdiction of its organization, and in all other
jurisdictions in which such qualification is necessary in view of its business
and operations and property and preserve, protect and keep in full force and
effect its material rights, the Licenses, the Certificate, other licenses
and the Franchise and do all things necessary to construct the System and
operate the Business in the Franchise Area.
SECTION 5.02 Compliance with Laws, Etc. The Borrower shall comply
with all laws and regulations applicable to it and all material contractual
obligations applicable to it.
SECTION 5.03 Maintenance of Properties. The Borrower shall at all
times maintain in good repair, working order and condition, excepting ordinary
wear and tear, all of its properties material to its operations and make all
appropriate repairs, replacements and renewals thereof, in each case consistent
with prudent industry practices and sound business judgment and with respect to
the maintenance of machinery and equipment, in compliance with applicable
government regulations, manufacturers' warranty requests and any licensing
requirements.
SECTION 5.04. Insurance. The Borrower shall at its own expense,
with insurers and with maximum deductibles satisfactory to Lender:
(a) keep its insurable properties, including the Equipment, real
property and other tangible Collateral, adequately insured on an all-risk basis
for the full replacement value thereof at all times;
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(b) maintain in full force and effect public liability insurance
against claims for personal injury or death or property damage occurring upon,
in, about or in connection with the use of any properties owned, occupied or
controlled by the Borrower, in such amount as Lender shall reasonably deem
necessary;
(c) maintain such other insurance to such extent and against such
risks, including against business interruptions, fire and other risks insured
against by extended coverage, as is satisfactory to Lender;
(d) cause each insurance policy pertaining to the Collateral to
(i) name Lender and AT&T and their respective affiliates (all of the foregoing
are hereinafter referred to as the "Additional Insureds") as an "additional
insured" if such policy is a liability policy, (ii) name each of the Additional
Insureds as a "loss payee" and include a standard lender's loss payable
endorsement in favor of each of the Additional Insureds substantially in the
form of Exhibit J if such policy is a property insurance policy, (iii) provide
that Lender shall be notified in writing of any proposed cancellation or
modification of such policy at least thirty (30) days in advance of such
proposed cancellation or modification and will have sufficient time to correct
any deficiencies justifying such proposed cancellation or modification,
(iv) provide that all insurance proceeds for losses shall be payable to each of
the Additional Insureds regardless of any omission or breach by the Borrower,
(v) waive any right of subrogation of the insurers against the Additional
Insureds and waive any right of the insurers to any setoff or counterclaim or
any other deduction, whether by attachment or otherwise, in respect of any
liability of the Borrower, and (vi) provide that such insurance shall be
primary insurance, that the insurers under such insurance policies shall be
liable under such policies without right of contribution from any other
insurance coverage and expressly provide that all provisions thereof, except
the limits of liability (which shall be applicable to all insureds as a group)
and liability for premiums (which shall be solely a liability of the Borrower),
shall operate in the same manner as if there were a separate policy covering
each insured; and
(e) on or prior to the renewal date of each policy deliver to
Lender copies of all policies or broker's certificates and loss payable
endorsements issued by the Borrower's insurers in respect of all policies and
endorsements, as renewed. Each such policy, certificate and endorsement shall
be accompanied by a statement from the Borrower's insurance broker or insurance
agent stating whether, in the opinion of such broker or agent, such policies
comply with the requirements of this Section 5.04, that all premiums due
thereon have been paid and that upon the renewal date, such policy shall be in
full force and effect.
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In addition to the foregoing, the Borrower shall at all times
maintain insurance with respect to the Collateral (but not self-insurance or
insurance subsidiaries) that is customarily maintained in the industry.
SECTION 5.05. Obligations and Taxes. The Borrower shall pay all
of its indebtedness and obligations promptly and in accordance with their terms
and pay and discharge promptly all taxes, assessments and governmental charges
or levies imposed upon it or upon its income or profits or in respect of its
property, before the same shall become in default, as well as all lawful claims
for labor, materials and supplies or otherwise which, if unpaid, might become a
Lien upon such properties or any part thereof; provided, however, that the
Borrower shall not be required to pay and discharge or to cause to be paid and
discharged any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings diligently pursued, and the Borrower shall set aside on its books
such reserves as are required by GAAP with respect to any such tax, assessment,
charge, levy or claim so contested.
SECTION 5.06. Financial Statements, Reports, etc. The Borrower
shall furnish to Lender:
(a) within ninety (90) days after the end of each fiscal year of
Borrower, annual audited consolidated financial statements for the Borrower,
including the balance sheets and statements of operations, stockholders' equity
and cash flows, for such fiscal year, which financial statements shall have
been audited by independent certified public accountants (which may be.regional
or local certified public accountants) satisfactory to Lender, and shall be
prepared in accordance with GAAP, and accompanied by such independent certified
public accountant's unqualified opinion;
(b) within forty-five (45) days after the end of each of the
first three fiscal quarters of each fiscal year, unaudited balance sheets and
statements of operations, stockholders' equity and cash flows of the Borrower
as of the end of each such quarter and for the then elapsed portion of the
fiscal year;
(c) concurrently with (a) and (b) above, a certificate of
Borrower's independent certified public accountant or the Borrower's chief
financial officer, as applicable, to the effect that the financial statements
referred to in clause (a) or (b) above, present fairly the financial position
and results of operations of the Borrower and as having been prepared in
accordance with GAAP consistently applied, in each case subject to normal
year-end audit adjustments except for the statements referred to in clause (a)
above;
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(d) all material agreements or licenses affecting the Licenses,
the Certificate, the System or the Franchise prior to any execution, or
material amendment thereto;
(e) promptly upon their becoming available, copies of any
periodic or special documents, statements or other information filed by
Borrower with the FCC, the PUC or with any other federal, state or local
governmental agency or authority in connection with the construction and/or
operation of the System in the Franchise Area or with respect to the
transactions contemplated by any of the Loan Documents, and copies of any
material notices and other material communications from the FCC, the PUC or
from any other federal, state or local governmental agency or authority;
(f) immediately upon any officer or employee of the Borrower
obtaining knowledge of any condition or event (i) which either constitutes an
Event of Default or which, after notice or lapse of time or both, would
constitute an Event of Default, (ii) which renders any representation, covenant
or warranty contained herein materially false or misleading, or (iii) which
would result in Borrower's financial results for any monthly, quarterly or
annual period to materially deviate from the financial results projected for
such period in the Business Plan or the operating budget described in clause (m)
below, a certificate signed by an authorized officer of the Borrower specifying
in reasonable detail the nature and period of existence thereof and what
corrective action Borrower has taken or proposes to take with respect thereto;
(g) within ninety (90) days after the end of each fiscal year of
the Borrower, a certificate signed by an authorized officer of the Borrower,
stating that there does not exist any condition or event which either
constitutes an Event of Default or which, after notice or lapse of time or
both, would constitute an Event of Default, or which constitutes a breach of
any covenant hereunder;
(h) within thirty (30) days of the end of each fiscal year of the
Borrower, a certificate signed by an authorized officer of the Borrower setting
forth (x) all the Easements, licenses, rights of way and other similar
interests in real property acquired by the Borrower in the preceding year and
(y) a summary of all information and documents provided to Lender or requited
to be provided to Lender pursuant to Sections 5.16 and 5.17 hereof;
(i) within fifteen (15) days after the end of each month, a
report showing Borrower's revenues and expenses in reasonable detail for such
month in the form of Exhibit N attached hereto;
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(j) evidence in the manner set forth in Section 5.04(e) of
insurance complying with Section 5.04;
(k) until completion of the System, within ten (10) days after
the end of each month, a report in form and substance satisfactory to Lender
setting forth Borrower's progress in completing the System, and comparing such
progress to the schedule set forth in the Business Plan;
(l) within thirty (30) days after the end of each quarter,
detailed operating information with respect to matters including but not
limited to number and type of connections, revenues per connection type, number
of customers and services utilized, types of capital expenditures, and other
material information in the form of Exhibit 0 attached hereto;
(m) within thirty (30) days after the beginning of each fiscal
year of Borrower, an operating budget for such fiscal year;
(n) promptly from time to time such other information regarding
the operations, business affairs and condition (financial or otherwise) of the
Borrower or the Business as Lender may reasonably request; and
(o) promptly after receipt thereof, copies of all monthly
statements from each Collection Agent which does not send such statements to
the Lender on a monthly basis, certified as being true and complete by the
chief financial officer of the Borrower, with such certification to be duly
notarized.
SECTION 5.07. Litigation and Other Notices. The Borrower shall
give Lender prompt written notice of the following: (a) all events of default
or any event that would become an event of default upon notice or lapse of time
or both under any of the terms or provisions of any note, or of any other
evidence of indebtedness or agreement or contract governing the borrowing of
money, of Borrower; (b) any levy, attachment, execution or other process
against any of the property or assets, real or personal, of the Borrower; (c)
the filing or commencement of any action, suit or proceeding by or before any
court or any Federal, state, municipal or other governmental department,
commission, instrumentality or agency which, if adversely determined against
Borrower, would materially impair the right of Borrower to carry on the
Business substantially as now conducted or contemplated or result in a Material
Adverse Effect; (d) any notice, letter or other correspondence, oral inquiry,
communication or request of any kind from the FCC or the PUC relating to the
Licenses, Certificate, Franchise or System; and (e) any matter which has
resulted in, or which Borrower reasonably believes will result in, a Material
Adverse Effect.
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SECTION 5.08. Mortgages and Landlord Consents. As security for
the Obligations, the Borrower shall promptly execute and deliver to Lender
Mortgages in favor of Lender with respect to any real property purchased by the
Borrower, together with lender's title policies for such real property
satisfactory to Lender, and landlord waivers and collateral assignments of
lease satisfactory to Lender with respect to any real property leased by the
Borrower, together with appropriate consents of the applicable landlords. With
respect to all such owned and leased property, the Borrower shall, at the time
of acquisition thereof, conduct at the Borrower's sole cost and expense,
environmental audits satisfactory to Lender.
SECTION 5.09. ERISA. The Borrower shall comply in all material
respects with the applicable provisions of ERISA and furnish to Lender, (i) as
soon as possible, and in any event within 30 days after the Borrower or any
officer of the Borrower knows or has reason to know that any Reportable Event
with respect to any Plan has occurred or any Termination Event has occurred, a
statement of an officer of the Borrower setting forth details as to such
Reportable Event or Termination Event and the corrective action that the
Borrower proposes to take with respect thereto, together with a copy of the
notice of any such Reportable Event given to the PBGC, and (ii) promptly after
receipt thereof, a copy of any notice Borrower may receive from the PBGC
relating to the intention of the PBGC to terminate any Plan or to appoint a
trustee to administer any such Plan.
SECTION 5.10. Access to Premises and Records. The Borrower shall
permit representatives of Lender to have access to the Borrower's books and
records and to the Collateral and the premises of Borrower at reasonable times
upon reasonable notice and to make such excerpts from such records as such
representatives deem necessary and to inspect the Collateral.
SECTION 5.11. Design and Construction. The Borrower shall design,
construct, equip and operate the System as previously disclosed to Lender in
the Business Plan and in accordance with prudent industry standards.
SECTION 5.12. Environmental Notices. If the Borrower shall (a)
receive notice that any violation of any federal, state or local environmental
law or regulation may have been committed or is about to be committed by the
Borrower, (b) receive notice that any administrative or judicial complaint or
order has been filed or is about to be filed against the Borrower alleging
violations of any federal, state or local environmental law or regulation or
requiring the Borrower to take any action in connection with any Release of any
Contaminant into the indoor or outdoor environment, or (c) receive any notice
from a federal, state, or local governmental agency or private party alleging
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that the Borrower may be liable or responsible for costs associated with a
response to or cleanup of a Release of any Contaminant into the indoor or
outdoor environment or any damages caused thereby, Borrower shall provide
Lender with a copy of such notice within five (5) Business Days of Borrower's
receipt thereof. Within five (5) Business Days of the Borrower having learned
of the enactment or promulgation of any federal, state or local environmental
law/or regulation which may result in any Material Adverse Effect, the Borrower
shall provide Lender with notice thereof.
5.13. Amendment of Organization Document. The Borrower shall
notify Lender of any amendment to its Articles of Incorporation within ten days
of the occurrence of any such event, and provide Lender with copies of any
amendments certified by the secretary of the Borrower and of all other relevant
documentation. Borrower shall promptly deliver to Lender such financing
statements executed by the Borrower which Lender may request as a result of any
such event.
5.14. Engineer and Independent Consultant. The Borrower shall
permit the Engineer to visit and inspect any of the properties and operations
of the Borrower relating to the System and any materials to be used in
connection with the System, and to examine the books of account and other
documents of Borrower and make copies thereof and discuss the affairs, finances
and the accounts of Borrower, the construction of the System and the Business
Plan, and be advised as to the same by Borrower and its officers. The Borrower
shall reimburse Lender for the out-of-pocket costs and expenses incurred by
Lender in connection with the retention of the Independent Consultant for the
preparation of the Independent Consultant's Report, the activities of the
Engineer described above and the confirmations of the Engineer pursuant to
Section 4.02 above.
SECTION 5.15. Changes in Regulation. The Borrower shall keep
Lender informed on a timely basis as to (and shall respond on a timely basis to
all requests by Lender for information with respect to) all prospective,
proposed, or actual changes in regulation of the Borrower or the Business or
any of the properties, operations or business of the Borrower by any Federal,
state or local authority, whether such changes are effected because of the
expansion of the properties, operations or business of the Borrower or by
effect of statutes, regulations, official interpretations thereof, judicial
decisions, orders or by consensual action between the Borrower and any
regulatory authority. In the event that Lender determines in its sole good
faith discretion that any of such proposed, prospective or actual changes have
or are reasonably likely to have a material adverse effect on AT&T or Lender or
any of their respective affiliates under the Loan Documents (including, without
limitation, the security interests provided
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to Lender under the Loan Documents), the Borrower and Lender shall cooperate in
good faith to restructure or reorganize, each at its own cost and expense
(unless an Event of Default has occurred and is continuing, in which event such
restructuring or reorganization shall be at the sole cost and expense of the
Borrower) the terms and provisions set forth in the Loan Documents and the
structure of the financing provided under the Loan Documents so as to minimize
or avoid the adverse effects to AT&T or Lender or any of their respective
affiliates of such proposed, prospective or actual changes.
SECTION 5.16. Fiscal Year. The Borrower shall at all times have a
fiscal year ending on December 31 of each calendar year.
SECTION 5.17. Further Assurances. The Borrower agrees to do such
further acts and things and to execute and deliver to Lender such additional
assignments, agreements, powers and instruments, at the Borrower's expense, as
Lender may reasonably require or deem advisable to carry into effect the
purposes of this Agreement and the other Loan Documents or to better assure and
confirm unto Lender its rights, powers and remedies hereunder and thereunder.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with Lender that so long as
this Agreement shall remain in effect or the Obligations hereunder or under any
of the Loan Documents shall be unpaid, without the prior written consent of
Lender:
SECTION 6.01. Liens, etc. The Borrower shall not create, incur,
assume or suffer to exist, directly or indirectly, any Lien upon or with
respect to any of its properties or the Collateral, now owned or hereafter
acquired, or upon any income or profits therefrom except for the following
"Permitted Liens":
(i) Liens granted pursuant to the Loan Documents;
(ii) Liens for taxes, assessments or governmental charges or
levies on property of the Borrower if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being
diligently contested in good faith and by appropriate proceedings and
for which the Borrower shall have set aside reserves on its books as
required by GAAP;
(iii) Liens imposed by law, such as carrier's, warehousemen's and
mechanic's liens and other similar liens,
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which arise in the ordinary course of business with respect to
obligations not yet due or being contested in good faith by appropriate
proceedings and for which the Borrower shall have set aside reserves on
its books as required by GAAP;
(iv) Liens arising out of pledges or deposits under workmen's
compensation laws, unemployment insurance, old age pensions, or other
social security benefits other than any Lien imposed by ERISA;
(v) Liens consisting of purchase money security interests or
arising from Guarantees or third party sales and leases not prohibited
by Section 6.05 hereof, in each case on mobile telephone terminals held
in inventory exclusively for sales to customers in the Franchise Area or
placed in service with customers in the Franchise Area; provided that
such security interest shall not be extended to any other property or
asset of Borrower other than proceeds from the sale of such mobile
telephone terminals as described in this paragraph;
(vi) Liens consisting of extensions or renewals of the Liens
referred to in subparagraph (v) of this Section, provided that the
indebtedness secured thereby shall not be increased pursuant to any such
extension or renewal and no such extension or renewal shall extend any
such Lien to any other property or asset of Borrower;
(vii) easements and rights of way with respect to xxxx.xxxxxxxx
owned by the Borrower and not interfering with the ordinary conduct of
the Business; and
(viii) deposits with respect to leases not prohibited by this
Agreement and with respect to performance for bids, in each case in the
ordinary course of business.
SECTION 6.02. Use of Proceeds. The Borrower shall not use the
proceeds of any Equipment Loan for any purpose other than purchasing Equipment
for use in the Franchise Area and shall not use the proceeds of any Capital
Loan for any purposes other than those set forth in Section 2.03(a).
SECTION 6.03. Sale of Assets, Consolidation, Merger, etc. The
Borrower shall not consolidate with or merge into any other Person, sell,
lease, transfer or otherwise dispose of the Collateral, except for sales of
inventory in the ordinary course of business and except for sales of NovAtel
and Plexus equipment owned by the Borrower on the Effective Date, provided that
the proceeds of such sales will be used by the Borrower for working capital
purposes.
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SECTION 6.04. Dividends; Distribution of Assets; Certain Debt.
The Borrower shall not purchase, redeem or otherwise acquire any interest of
the Borrower, declare or pay any dividends in any fiscal year on any class or
classes of stock, return capital of Borrower to its shareholders, make any
other distribution on or in respect of any shares of any class of capital stock
of Borrower, or make any payments of principal, interest, fees or other charges
with respect to the Debt described in Section 6.11(v).
SECTION 6.05. Guarantees; Third-Party Sales and Leases. The
Borrower shall not directly or indirectly (i) assume any obligation or
indebtedness of another Person, (ii) make or assume any Guarantee, or (iii)
finance any third-party sales or leases, except third-party sales or leases
with respect to mobile telephone terminals placed in service with a customer in
the Franchise Area.
SECTION 6.06. Investments. The Borrower shall not directly or
indirectly, make any Investments except:
(i) Investments in obligations issued by, or guaranteed by, the
United States of America or any agency or instrumentality thereof,
provided that such obligations mature within 180 days of the date of
acquisition thereof;
(ii) Investments in certificates of deposit, repurchase
agreements, money market or other cash management accounts, bankers
acceptances and short term Eurodollar time deposits with financial
institutions having a long term deposit rating of at least A from
Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation,
respectively;
(iii) Investments in commercial paper rated P1 or A1 by Moody's
Investor's Service, Inc. or Standard & Poor's Corporation, respectively;
or
(iv) temporary expense advances to Borrower's employees not to
exceed $5,000 in the aggregate outstanding at any one time.
SECTION 6.07. Permitted Activities. The Borrower shall not engage
in any business or activity other than the operation of the Business in the
Franchise Area.
SECTION 6.08. Disposition of Licenses, etc. The Borrower shall
not sell, assign, transfer or otherwise dispose or attempt to dispose of in any
way any governmental authorizations, licenses, permits or approvals (including,
without limitation, any Licenses or Certificate) necessary or appropriate for
the operation of the Business in the Franchise Area.
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SECTION 6.09. Transactions with Affiliates. The Borrower shall
not directly or indirectly, enter into any transaction, including, without
limitation, leases or other agreements for the purchase or use of any goods or
services, with any Affiliate, except in the ordinary course of and pursuant to
reasonable requirements of Borrower's business and upon fair and reasonable
terms no less favorable to Borrower than Borrower would obtain in a comparable
arm's length transaction with an unaffiliated person.
SECTION 6.10. ERISA. The Borrower shall not:
(A) engage, or permit any ERISA Affiliate to engage in any
prohibited transaction described in Section 406 of ERISA or 4975 of the IRC for
which a statutory or class exemption is not available or a private exemption
has not been previously obtained from the United States Department of Labor;
(B) permit to exist any accumulated funding deficiency (as
defined in Section 302 of ERISA and Section 412 of the IRC), whether or not
waived;
(C) fail, or permit any ERISA Affiliate to fail, to pay timely
required contributions or annual installments due with respect to any waived
funding deficiency to any Benefit Plan;
(D) terminate, or permit any ERISA Affiliate to terminate, any
Benefit Plan which would result in any material liability of the Borrower under
Title IV of ERISA;
(E) fail to make any contribution or payment to any Multiemployer
Plan which the Borrower or any ERISA Affiliate may be required to make under
any agreement relating to such Multiemployer Plan, or any law pertaining
thereto;
(F) amend, or permit any ERISA Affiliate to amend, a Plan
resulting in an increase in current liability for the plan year such that the
Borrower is required to provide security to such Plan under Section 401(a) (29)
of the IRC; or
(G) fail, or permit any ERISA Affiliate to fail, to pay any
required installment under Section 412 of the IRC on or before the due date for
such installment or other payment.
SECTION 6.11. Indebtedness. The Borrower shall not create or
suffer to exist, or permit any of its subsidiaries to create or suffer to
exist, any Debt except:
(i) the Obligations;
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(ii) Guarantees and third party financing permitted by Section
6.05;
(iii) purchase money Debt secured by Liens permitted by clause
(v) of Section 6.01;
(iv) obligations under capital or operating leases not to exceed
$82,000 in the aggregate in any consecutive twelve month calendar
period;
(v) obligations to shareholders and Affiliates not to exceed
$70,000 in the aggregate, plus accrued interest thereon, which must at
all times be subordinated to the Obligations on terms satisfactory to
the Lender; and
(vi) trade payables incurred in the ordinary course of business.
SECTION 6.12. Margin Regulation. The Borrower shall not use or
permit any other Person to use any portion of the proceeds of any credit
extended under this Agreement in any manner which might cause the extension of
credit made by Lender or the application of such proceeds to violate the
Securities Act of 1933 or Securities Exchange Act of 1934 (each as amended from
time to time, and any successor statute) or to violate Regulation G, Regulation
U, or Regulation X, or any other regulation of the Federal Reserve Board, in
each case as in effect on the date or dates of such extension of credit and
such use of proceeds.
SECTION 6.13. Capital Expenditures. The Borrower shall not make
capital expenditures in excess of those set forth in the Business Plan.
SECTION 6.14. Management Fees. The Borrower shall not pay
management fees in excess of those set forth in the Management Agreement as in
effect on the date hereof. After the occurrence and during the continuance of
any Event of Default, the Borrower shall not pay any portion of the management
fees due under the Management Agreement or any other similar fees due to any
Affiliates that do not cover the direct costs of services performed pursuant to
the Management Agreement or for the benefit of the Borrower by the employees of
MCC, Mercury, Inc. or any Affiliate, billed at a rate no greater than would be
charged by an unaffiliated person in a comparable arm's length transaction.
SECTION 6.15. Confidentiality. The Borrower shall not at any time
before or after payment in full and satisfaction of all of the Obligations,
reveal, divulge or make known, or knowingly permit to be so revealed, divulged
or made known, to any Person (including persons within its own organization who
do not have a definite need to know for the purpose of performance of this
Agreement), the terms or conditions of this Agreement or
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any document or agreement now or hereafter executed in connection herewith,
provided that the foregoing shall not apply to information required to be
disclosed by order of a court of competent jurisdiction or in connection with
any governmental investigation, including, but not limited to, the FCC or the
PUC (in each case to the extent disclosure is required, but no further), so
long as the Borrower notifies the Lender in writing of any circumstances of
which Borrower is aware that may lead to such a requirement or order, so as to
allow Lender to take steps to contest such order or investigation. Lender
agrees to keep confidential for a period of two years the Borrower's financial
statements, profit and loss statements, progress reports and any other items
marked in writing as confidential; provided, however, that such confidentiality
obligation shall not apply to (i) any information disclosed to Persons employed
by or expected to become engaged in evaluating, approving, structuring,
auditing or administering the Loans or Obligations hereunder, including,
without limitation, the Lender's representatives, attorneys, advisors,
accountants, and rating agencies, (ii) any information which is or becomes
available to the Lender from a source other than the Borrower or Mercury, (iii)
any information is or becomes available to the public other than as a result of
disclosure by Lender or its above-described representatives or agents, (iv) any
information required or requested by any governmental agency or representative
thereof or pursuant to legal process or (v) any information in connection with
the exercise of any remedy under the Loan Documents; and provided, further,
that nothing herein shall prevent Lender from disclosing such information to
any bona fide assignee, transferee or participant or prospective assignee,
transferee or participant or any of their respective representatives that have
agreed to comply with this Section 6.15 in connection with the contemplated
assignment or transfer of any Loans or hereunder or participation therein.
ARTICLE VII
COLLATERAL SECURITY
SECTION 7.01. Collateral Security. To secure payment and
performance of the Obligations, Borrower hereby grants to Lender a right of
setoff against and a continuing security interest in and to the following
property and interests in property, whether now owned or hereafter acquired by
Borrower and wheresoever located: (i) Accounts, contract rights, general
intangibles, tax refund claims, tax refunds, things in action, causes of
action, inventions, designs, patents, patent applications, trademarks, trade
names, trademark applications, service marks, service xxxx applications, trade
styles, brand names, copyrights, goodwill, registrations, leases, licenses,
franchises, customer lists, reversion from any employee benefit plans, claims
against carriers and shippers, guarantee claims, security interests, security
deposits or other security held by
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or granted to Borrower, chattel paper, instruments, notes, letters of credit,
documents, documents of title, and to the extent permitted by law, the
Construction Permits, the Operating Licenses, the Certificate and other
governmental authorizations; (ii) inventory; (iii) machinery, equipment and
fixtures; (iv) all of Borrower's now owned or hereafter acquired monies, and
any and all other property and interests in property of Borrower now or
hereafter coming into the actual possession, custody or control of Lender in
any way or for any purpose (whether for safekeeping, deposit, custody, pledge,
transmission, collection or otherwise); (v) all insurance proceeds of or
relating to any of the foregoing; (vi) all of Borrower's books and records
relating to any of the foregoing; and (vii) all accessions and additions to,
substitutions for, and replacements, products and proceeds of any of the
foregoing.
SECTION 7.02. Preservation of Collateral and Perfection of
Security Interests Therein. The Borrower shall execute and deliver to Lender,
concurrently with the execution of this Agreement, and at any time or times
hereafter at the request of Lender, all financing statements or other documents
(and pay the cost of filing or recording the same in all public offices deemed
necessary by Lender), as Lender may request, in a form satisfactory to Lender,
to perfect and keep perfected the security interest in the Collateral granted
by the Borrower to Lender or to otherwise protect and preserve the Collateral
and Lender's security interest therein or to enforce Lender's security
interests in the Collateral. Should the Borrower fail to do so, Lender is
authorized to sign any such financing statements as the Borrower's agent. The
Borrower further agrees that a carbon, photographic or other reproduction of
this Agreement or of a financing statement is sufficient as a financing
statement.
SECTION 7.03. Appointment of Lender as the Borrower's
Attorney-in-Fact. The Borrower hereby irrevocably designates, makes,
constitutes and appoints Lender (and all persons designated by Lender) as the
Borrower's true and lawful attorney-in-fact, and authorizes Lender, in the
Borrower's or Lender's name, to, following the occurrence of an Event of
Default: (i) demand payment of Accounts; (ii) enforce payment of Accounts by
legal proceedings or otherwise; (iii) exercise all of the Borrower's rights and
remedies with respect to proceedings brought to collect an Account; (iv) sell
or assign any Account upon such terms, for such amount and at such time or
times as Lender deems advisable; (v) settle, adjust, compromise, extend or
renew an Account; (vi) discharge and release any Account; (vii) prepare, file
and sign the Borrower's name on any proof of claim in bankruptcy or other
similar document against an account debtor of the Borrower; (viii) notify the
post office authorities to change the address for delivery of the Borrower's
mail to an address designated by Lender, and open and deal with all mail
addressed
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to the Borrower; (ix) do all acts and things which are necessary in Lender's
sole discretion, to fulfill the Borrower's obligations under this Agreement;
(x) take control in any manner of any item of payment or proceeds thereof; (xi)
have access to any lockbox or postal box into which the Borrower's mail is
deposited; (xii) endorse the Borrower's name upon any items of payment or
proceeds thereof and deposit the same in Lender's account on account of the
Borrower's Obligations; (xiii) endorse the Borrower's name upon any chattel
paper, document, instrument, invoice, or similar document or agreement relating
to any Account or any goods pertaining thereto; and (xiv) sign the Borrower's
name on any verification of Accounts and notices thereof to account debtors.
SECTION 7.04. Collection of Accounts and Restricted Account
Arrangements. The Borrower hereby represents and warrants that each depository
account ("Collection Account") now maintained by the Borrower at any bank
("Collection Agent") for the collection of checks and cash constituting
proceeds of Accounts and sales of other personal property which are part of the
Collateral is identified on Schedule 7.04 attached hereto and made a part
hereof. With respect to each Collection Account, the Borrower shall, no later
than the Effective Date, deliver to Lender, a "Restricted Account Agreement"
substantially in the form of Exhibit K attached hereto and made a part hereof,
duly executed and delivered by the Borrower and the applicable Collection
Agent, authorizing and directing such Collection Agent, upon receipt of written
notice from Lender that an Event of Default has occurred and is continuing, to
deposit all checks and cash received into a restricted account (a "Restricted
Account") and remit all amounts deposited in such Restricted Account to
Lender's account specified in such Restricted Account Agreement until such time
as the Collection Agent receives written notice from Lender rescinding such
authorization. The Borrower shall, following the occurrence and during the
continuance of an Event of Default and any subsequent request by Lender
therefor, take such further action as Lender may reasonably deem desirable to
effect the transfer of exclusive ownership and control of the Restricted
Accounts and all Collection Accounts to Lender. Until all of the Obligations
have been indefeasibly paid in full and the Commitment has been terminated, the
Borrower agrees not to enter into any agreement or execute and deliver any
direction which would modify, impair or adversely affect the rights and
benefits of Lender under any Restricted Account Agreement. The Borrower shall
not open, establish or maintain any Collection Account (other than those
identified on Schedule 7.04 hereto) without first having delivered to Lender a
duly executed and delivered Restricted Account Agreement with respect to such
Collection Account. The Borrower shall notify Lender in writing not less than
five (5) days prior to the date it shall open or establish any Collection
Account other than an account described on Schedule 7.04 hereto.
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ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
SECTION 8.01. Events of Default. The following events shall each
constitute an "Event of Default":
(a) The Borrower shall fail to pay the principal of or interest
on any Note or any other amounts payable hereunder or under any of the other
Loan Documents when due, whether as scheduled, at a date fixed for prepayment,
by acceleration or otherwise, and such failure with respect to the payment of
principal or interest shall continue for five days and with respect to any
other amounts payable hereunder, shall continue for ten days; or
(b) the Borrower shall fail to observe or perform any other
covenant, condition or agreement to be observed or performed by the Borrower in
any of the Loan Documents or in any material agreement of the Borrower and the
Borrower fails to cure such breach within 10 Business Days after written notice
thereof from Lender unless the breach relates to a covenant contained in
Section 5.04, in which case no grace period shall apply; or
(c) any representation or warranty made by the Borrower in
connection with this Agreement or any other Loan Document, or the Loans or any
statement or representation made in any report, certificate, financial
statement or other instrument (other than the projections provided pursuant to
Section 4.01 as to which this paragraph (c) shall be inapplicable) furnished by
or on behalf of the Borrower pursuant to this Agreement or any other Loan
Document, shall prove to have been false or misleading in any material respect
when made or delivered or when deemed made in accordance with the terms hereof
or thereof; or
(d) the Borrower shall fail to make any payment due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise) on
any other obligation for borrowed money and such failure shall continue after
the applicable grace period, if any, specified in the agreement or instrument
relating to such indebtedness; or any other default or event under any
agreement or instrument relating to any indebtedness or any other event, shall
occur and shall continue after the applicable grace period, if any, specified
in such agreement or instrument if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such
indebtedness; or any such indebtedness shall be declared to be due and payable
or required to be prepaid (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof; or
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(e) Borrower shall (i) apply for or consent to the appointment of
a receiver, trustee, custodian, sequestrator or similar official for Borrower
or for a substantial part of its property, (ii) make a general assignment for
the benefit of creditors, (iii) become unable, admit in writing its inability
or fail generally to pay its debts as they become due, (iv) voluntarily or
involuntarily dissolve, liquidate or wind up its affairs, or (v) take action
for the purpose of effecting any of the foregoing; or
(f) a proceeding under any bankruptcy, reorganization,
arrangement of debts, insolvency or receivership law is filed by or against the
Borrower or the Borrower takes any action to authorize any of the foregoing
matters, and in the case of any such proceeding instituted against the Borrower
(but not instituted by the Borrower), either such proceeding shall remain
undismissed or unstayed for a period of 60 days or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee or other similar
official for the Borrower or any substantial part of its property) shall be
granted or shall occur; or
(g) the Borrower becomes insolvent or fails generally to pay its
debts as they become due; or
(h) a Termination Event occurs which Lender in good faith
believes would subject the Borrower to a material liability; or
(i) the plan administrator of any Plan applies under Section
412(d) of the IRC for a waiver of the minimum funding standards of Section
412(a) of the IRC and Lender in good faith believes that the approval of such
waiver could subject either the Borrower or any ERISA Affiliate to material
liability; or
(j) any of the Licenses, the Certificate or any other license,
authorization or other governmental consent or approval necessary for the
continuing operation of the Borrower or the System or any other material
authorization or approval of or material filing with the FCC, the PUC or any
other governmental authority with respect to the conduct by the Borrower of its
business and operations, shall not be obtained as and when required to permit
the Borrower to conduct the Business substantially as then being conducted and
to perform its material obligations under the Loan Documents, or shall cease to
be in full force and effect, which in respect of any of the Licenses or the
Certificate shall occur when an order revoking or terminating any said License
or the Certificate shall be issued, or the FCC, the PUC or any other
governmental authority having jurisdiction over any such License or Certificate
shall, prior to
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the termination thereof decide, not to renew such License or Certificate; or
(k) the FCC or the PUC, by final order, determines that the
existence or performance of this Agreement or any other Loan Document will
result in a revocation, suspension or material adverse modification of any of
the Licenses or Certificate; or
(l) for any reason any Loan Document shall not be in full force
and effect or shall not be enforceable in accordance with its terms, or any
security interest or lien granted pursuant thereto shall fail to be perfected,
or any party thereto other than Lender shall contest the validity of any lien
granted under, or shall disaffirm its obligations under any Loan Document; or
(m) the Borrower shall have failed to accept the Equipment in
accordance with the Purchase Agreement within the period specified in the
Purchase Agreement or shall otherwise default under the Purchase Agreement,
which default shall not have been cured or waived; or
(n) final judgment or judgments for the payment of money in
excess of $50,000 individually or $100,000 in the aggregate at any one time
shall have been rendered against the Borrower, and the same shall not have been
discharged within forty-five (45) days after the entry thereof, or no insurer
shall have admitted its liability in writing with respect to the full amount of
such final judgment or judgments; or
(o) for any reason, the Borrower ceases to operate the Business
or own the Franchise or any of the Licenses or the Certificate; or
(p) the Borrower is enjoined, restrained or in any way prevented
by the order of any court or administrative or regulatory agency from
conducting the Business or any other material part of Borrower's business
affairs; or
(q) the Borrower becomes subject to any liabilities, costs,
expenses, damages, fines or penalties which could reasonably be expected to
have a Material Adverse Effect on its business, operations, assets or condition
(financial or otherwise) arising out of or related to (i) any Remedial Action
in response to a Release or threatened Release at any location of any
contaminant into the indoor or outdoor environment or (ii) any material
violation of any environmental, health or safety requirement of law; or
(r) the sum of the Borrower's Cash Flow plus Cash Equity
Contributions for any consecutive four fiscal quarter period of the Borrower
falls below the Estimated Cash Flow
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projected for the Borrower for such four fiscal quarter period of the Borrower
by an amount equal to or in excess of the Applicable Cash Flow Margin, unless
within thirty days thereafter Permitted Capital Contributions are made;
(s) the Borrower's Fixed Charge Coverage Ratio in any consecutive
four fiscal quarter period ending on June 30, 1997 or thereafter shall be less
than 1.10 to 1.00 unless within thirty days thereafter Permitted Capital
Contributions are made; or
(t) the Management Contract shall be terminated or Mercury shall
cease to have substantial management responsibilities with respect to the
Business or the System unless another Affiliate with substantial experience in
the management of cellular telephone systems is appointed manager of the
System; or
(u) a Material Adverse Effect (other than any directly resulting
from general macro-economic conditions) shall occur.
SECTION 8.02 Termination of Commitment; Acceleration. Upon the
occurrence and at any time during the continuance of any Event of Default,
Lender may:
(a) by notice to the Borrower, terminate Lender's Commitment to
Borrower to make Loans hereunder; or
(b) declare the Obligations to be immediately due and payable,
whereupon the Obligations shall be immediately due and payable without notice
of any kind, provided, however, that if an Event of Default described in
Section 8.01(f) shall exist or occur, all of the Obligations shall
automatically, without declaration or notice of any kind, be immediately due
and payable;
SECTION 8.03. Waiver of Demand. Demand, presentment, protest and
notice of nonpayment are hereby waived by the Borrower. The Borrower also
waives the benefit of all valuation, appraisal and exemption laws.
SECTION 8.04. Rights and Remedies Generally. If an Event of
Default occurs, Lender shall have, in addition to any other rights and remedies
contained in this Agreement or in any of the other Loan Documents, all of the
rights and remedies of a secured party under the Code or other applicable laws,
all of which rights and remedies shall be cumulative, and none exclusive, to
the extent permitted by law. In addition to all such rights and remedies, the
sale, lease or other disposition of the Collateral, or any part thereof, by
Lender after the occurrence of an Event of Default may be for cash, credit or
any combination thereof, and Lender may purchase all or any part of the
Collateral at public or, if permitted by law, private sale,
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and in lieu of actual payment of such purchase price, may set off the amount of
such purchase price against the obligations then owing. Any sales of the
Collateral may be adjourned from time to time with or without notice. Lender
may, in its sole discretion, cause the Collateral to remain on Borrower's
premises, at the Borrower's expense, pending sale or other disposition of the
Collateral. Lender shall have the right to conduct such sales on the Borrower's
premises, at the Borrower's expense, or elsewhere, on such occasion or
occasions as Lender may see fit.
SECTION 8.05. Entry Upon Premises and Access to Information. If
an Event of Default occurs, Lender shall have the right to enter upon the
premises of the Borrower where the Collateral is located (or is believed to be
located) without any obligation to pay rent to Borrower, or any other place or
places where the Collateral is believed to be located and kept, and render the
Collateral unusable or remove the Collateral therefrom to the premises of
Lender or any agent of Lender, for such time as Lender may desire, in order
effectively to collect or liquidate the Collateral, and/or Lender may require
the Borrower to assemble the Collateral and make it available to Lender at a
place or places to be designated by Lender. If an Event of Default occurs,
Lender shall have the right to obtain access to the Borrower's data processing
equipment, computer hardware and software relating to the Collateral and to use
all of the foregoing and the information contained therein in any manner Lender
deems appropriate.
SECTION 8.06. Sale or Other Disposition of Collateral by Lender.
Any notice required to be given by Lender of a sale, lease or other disposition
or other intended action by Lender with respect to any of the Collateral which
is deposited in the United States mails, postage prepaid and duly addressed to
the Borrower at the address specified in Section 9.01 below, at least ten (10)
Business Days prior to such proposed action shall constitute fair and
reasonable notice to the Borrower of any such action. The net proceeds realized
by Lender upon any such sale or other disposition, after deduction for the
expense of retaking, holding, preparing for sale, selling or the like and the
reasonable attorneys' fees and legal expenses incurred by Lender in connection
therewith, shall be applied as provided herein toward satisfaction of the
Obligations. Lender shall account to the Borrower for any surplus realized upon
such sale or other disposition, and the Borrower shall remain liable for any
deficiency. The commencement of any action, legal or equitable, or the
rendering of any judgment or decree for any deficiency shall not affect
Lender's security interest in the Collateral. The Borrower agrees that Lender
has no obligation to preserve rights to the Collateral against any other
parties. Lender is hereby granted a license or other right to use, without
charge, the Borrower's labels, patents, copyrights, rights of use of any name,
trade secrets, trade names, trademarks, service
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marks and advertising matter, or any property of a similar nature, as it
pertains to the Collateral, and the Borrower's rights under all licenses and
all franchise agreements shall inure to Lender's benefit until the obligations
are paid in full.
SECTION 8.07. Governmental Approvals. In connection with the
enforcement by Lender of any remedies available to it as a result of any Event
of Default, the Borrower shall join and cooperate fully with, at the request of
Lender, any receiver referred to below and/or the successful bidder or bidders
at any foreclosure sale in a filing of an application (and furnishing any
additional information that may be required in connection with such application
or which Lender may believe relevant to such application) with the FCC, the PUC
and all applicable federal, state and local governmental authorities,
requesting their prior approval of (i) the operation or abandonment of all or
any portion of the System and/or (ii) the transfer of control of the Borrower
or assignment of all licenses, certificates, authorizations, approvals and
permits, issued to the Borrower by the FCC, the PUC or any such authorities
with respect to the System and the operation thereof, to Lender, the receiver
or to the successful bidder or bidders. In connection with the foregoing, the
Borrower shall take such further actions, and execute all such instruments, as
Lender reasonably deems necessary or desirable. The Borrower agrees that Lender
may enforce any obligation of the Borrower as set forth in this paragraph by an
action for specific performance. In addition, Borrower hereby irrevocably
constitutes and appoints Lender and any agent or officer thereof (which
appointment is coupled with an interest) as its true and lawful
attorney-in-fact with full irrevocable power and authority and in the place and
stead of the Borrower and in the name of the Borrower or in its own name, from
time to time in its discretion after the occurrence and during the continuance
of an Event of Default and in connection with the foregoing, for the purpose of
executing on behalf and in the name of the Borrower any and all of the
above-referenced instruments and to take any and all appropriate action in
furtherance of the foregoing. The exercise of any rights or remedies hereunder
or under any other Loan Document by Lender that may require FCC or PUC approval
shall be subject to obtaining such approval. Pending the receipt of any PUC or
FCC approval the Borrower shall not do anything to delay, hinder, interfere or
obstruct the exercise of Lender's rights or remedies hereunder in obtaining
such approvals. In accordance with the requirements of 47 C.F.R. 22.917 (1985),
or any successor provision thereto, Lender shall notify the Borrower and the
FCC in writing at least ten (10) days prior to the repossession, in accordance
with the Loan Documents, of all or any part of the System which is subject to
said regulation.
SECTION 8.08. Appointment of Receiver or Trustee. In connection
with the exercise of its remedies under this
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Agreement, Lender may, upon the occurrence of an Event of Default, obtain the
appointment of a receiver or trustee to assume, upon receipt of all necessary
judicial, FCC, the PUC or other governmental authority, consents or approvals,
control of or ownership of the Construction Permits or the Operating Licenses
or the Certificate. Such receiver or trustee shall have all rights and powers
provided to it by law or by court order or provided to Lender under this
Agreement. Upon the appointment of such trustee or receiver, the Borrower
agrees to cooperate, to the extent necessary or appropriate, in the expeditious
preparation, execution and filing of an application to the FCC and to the PUC
for consent to the transfer of control or assignment of the Construction
Permits or the Operating Licenses or the Certificate of the Borrower to the
receiver or trustee.
SECTION 8.09. Lender Not Liable. Lender shall not be responsible
or liable for any shortage, discrepancy, damage, loss or destruction of any
part of the Collateral or of any instrument received in payment therefor or for
any damages resulting therefrom (unless such loss shall be finally adjudicated
or otherwise conclusively determined to have been caused solely by gross
negligence or willful misconduct of Lender). Lender shall not, under any
circumstances or in any event whatsoever, have any liability for any error or
omission of any kind made in the settlement, collection or payment of any of
the Collateral. The costs of collection and enforcement, including but not
limited to counsel fees and out-of-pocket expenses, shall be borne solely by
the Borrower whether the same are incurred by Lender or the Borrower.
SECTION 8.10. Right of Set-off. In addition to any rights and
remedies of Lender provided by law, Lender shall have the right, without prior
notice to the Borrower, upon the occurrence of an Event of Default, to set-off
and apply against the amount of any Obligation, whether matured or unmatured,
any amount owing from Lender or any Affiliate of Lender to the Borrower, or any
Affiliate of the Borrower. Lender agrees promptly to notify the Borrower after
any such set-off and application made by Lender or any Affiliate of Lender;
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The Borrower hereby agrees that the foregoing
provisions are intended to be construed so as to satisfy the requirements of
Section 553 of the Federal Bankruptcy Code or amendments thereto (including any
requirement of mutuality of obligations therein).
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be de-
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livered by a courier service of recognized standing or mailed (or, if by telex,
graphic scanning or other telegraphic or telecopy communications equipment of
the sending party, delivered by such equipment) addressed, if to Borrower, at
14th Floor, Calcasieu Marine National Bank, Xxx Xxxxxxxxx Xxxxx, Xxxx Xxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Xx. (telecopy no.
(000)000-0000, confirmation no. (000)000-0000), and if to Lender, c/o AT&T
Capital Corporation, Capital Markets Division at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx,
XX 00000-0000, Attention: Operations Manager (telecopy no. (000) 000-0000,
confirmation no. (000) 000-0000), with a copy to AT&T Capital Corporation/
Capital Markets Division at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000-0000,
Attention: Chief Counsel (telecopy no. (000) 000-0000, confirmation no. (201)
397-4190). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given (a) three days after mailing when sent by registered or certified mail,
postage prepaid, return receipt requested, or (b) upon receipt, if by courier
service or any telegraphic communications equipment of the sender, in each case
addressed to such party as provided in this Section or in accordance with the
latest unrevoked direction from such party.
SECTION 9.02. No Waivers; Amendments. (a) No failure or delay of
Lender to exercise any right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, preclude any other or further exercise thereof or the exercise of
any other right. No waiver of any provision of this Agreement or any other Loan
Document nor consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be in writing and signed by Lender and
the Borrower, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice or demand on
the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any other Loan Documents may be
amended or modified except pursuant to an agreement or agreements in writing
executed by the Borrower and Lender.
SECTION 9.03. Governing Law and Jurisdiction. THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW JERSEY WITHOUT GIVING EFFECT TO ANY
CONFLICTS OF LAWS PRINCIPLES. THE BORROWER AND LENDER CONSENT TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED IN THE STATE OF NEW
JERSEY AND WAIVE ANY OBJECTION RELATING TO IMPROPER VENUE OR FORUM NON
CONVENIENS TO THE CONDUCT OF ANY PROCEEDING BY SUCH COURT.
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SECTION 9.04. Expenses; Documentary Taxes. The Borrower will pay
all reasonable out-of-pocket expenses incurred by Lender in connection with the
negotiation, preparation and execution of the Loan Documents (whether or not
the transactions contemplated hereby shall be consummated), the administration
of the Loan Documents, the creation, perfection, priority or protection of the
Liens in the Collateral, and the enforcement of the rights of Lender in
connection with this Agreement, any other Loan Documents or the Collateral,
including all reasonable attorneys' fees and related expenses and costs. The
Borrower agrees that it shall indemnify Lender from and hold it harmless
against any documentary taxes, assessments or charges made by any governmental
authority by reason of the execution and delivery of this Agreement or any
other Loan Document.
SECTION 9.05. Equitable Relief. The Borrower recognizes that, in
the event the Borrower fails to perform, observe or discharge any of its
obligations or liabilities under this Agreement, or any other Loan Document,
any remedy at law may prove to be inadequate relief to Lender; therefore,
Borrower agrees to the extent permitted by applicable law, that Lender, if
Lender so requests, shall be entitled to temporary and permanent injunctive
relief in any such case without the necessity of proving irreparable harm.
SECTION 9.06. Indemnification; Limitation of Liability. (a) The
Borrower agrees to protect, indemnify and hold harmless Lender and each of its
officers, directors, employees, attorneys, consultants and agents (collectively
called the "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including,
without limitation, the reasonable fees and disbursements of counsel for and
consultants of such Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnitees shall be
designated a party thereto), which may be imposed on, incurred by, or asserted
against such Indemnitees (whether direct, indirect, or consequential and
whether based on any federal or state laws or other statutory regulations,
including, without limitation, securities, environmental and commercial laws
and regulations, under common law or at equitable cause or on contract or
otherwise) in any manner relating to or arising out of this Agreement or any of
the other Loan Documents, or any act, event or transaction related or attendant
thereto, the agreements of Lender contained herein, the making of Loans, the
management of such Loans or the Collateral (including any liability under
federal, state or local environmental laws or regulations) or the use or
intended use of the proceeds of such Loans hereunder (collectively, the
"Indemnified Matters"); provided that the Borrower shall have no obligation to
any Indemnitee hereunder with respect to Indemnified Matters caused by or
resulting from
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the willful misconduct or gross negligence of such Indemnitee. To the extent
that the undertaking to indemnify, pay and hold harmless set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, the Borrower shall contribute the maximum portion which it is
permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Matters incurred by the Indemnitees.
(b) To the extent permitted by applicable law, no claim may be
made by the Borrower or any other Person against Lender or any of its
affiliates, directors, officers, employees, agents, attorneys or consultants
for any special, indirect, consequential or punitive damages in respect of any
claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by any of the Loan Documents or any
act, omission or event occurring in connection therewith; and the Borrower
hereby waives, releases and agrees not to xxx upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor. Neither Lender nor any of its affiliates, directors, officers,
employees, agents, attorneys or consultants shall be liable for any action
taken or omitted to be taken by it or them under or in connection with any of
the Loan Documents, except for its or their own gross negligence or willful
misconduct.
SECTION 9.07. Survival of Agreements, Representations and
Warranties, etc. All warranties, representations and covenants made by the
Borrower in any Loan Document survive the execution and delivery of this
Agreement and the other Loan Documents and the making and repayment of the
Obligations.
SECTION 9.08. Successors and Assigns. Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of Lender. This Agreement shall be binding upon and inure to the benefit
of Borrower and Lender and their respective successors and assigns.
SECTION 9.09. Severability. In case any one or more of the
provisions contained in this Agreement or any other Loan Document shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby.
SECTION 9.10. Cover Page, Table of Contents and Section Headings.
The cover page, Table of Contents and section headings used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of or be taken into consideration in interpreting this
Agreement.
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SECTION 9.11. Counterparts. This Agreement may be signed in
counterparts with the same effect as if the signatures thereof and hereto were
upon the same instrument.
SECTION 9.12. Application of Payments. Notwithstanding any
contrary provision contained in this Agreement or in any of the other Loan
Documents, upon the occurrence and during the continue of any Event of Default,
the Borrower irrevocably waives the right to direct the application of any and
all payments at any time or times hereafter received by Lender from the
Borrower or with respect to any of the Collateral, and Borrower does hereby
irrevocably agree that Lender shall have the continuing exclusive right to
apply and reapply any and all payments received at any time or times hereafter,
whether with respect to the Collateral or otherwise, against the Obligations in
such manner as Lender may deem advisable, notwithstanding any entry by Lender
upon any of its books and records.
SECTION 9.13. Marshalling; Payments Set Aside. Lender shall be
under no obligation to xxxxxxxx any assets in favor of the Borrower or any
other party or against or in payment of any or all of the Obligations. To the
extent that the Borrower makes a payment or payments to Lender or Lender
enforces its security interests or exercises its rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement
or setoff had not occurred.
SECTION 9.14. SERVICE OF PROCESS. THE BORROWER WAIVES PERSONAL
SERVICE OF ANY PROCESS UPON IT AND, CONSENTS THAT ALL SERVICE OF PROCESS SHALL
BE MADE BY REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE BORROWER
AT THE ADDRESS INDICATED IN SECTION 9.01 AND SERVICE SO MADE SHALL BE DEEMED TO
BE COMPLETED FIVE (5) DAYS AFTER SAME SHALL HAVE BEEN POSTED AS AFORESAID.
SECTION 9.15. WAIVER OF JURY TRIAL. THE BORROWER AND LENDER EACH
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LENDER AND THE BORROWER
ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION THEREWITH OR THE TRANSACTIONS RELATED THERETO. EACH OF THE
BORROWER AND LENDER HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR
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CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT EITHER
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
SECTION 9.16. Consolidation of Operations. The Borrower has
advised Lender that the Borrower and certain of its Affiliates which operate
other cellular telephone franchises may wish to consolidate their operations
under one entity. Should Lender in its sole discretion agree to finance the
consolidated operations of such entity, Lender will cooperate with the Borrower
in amending this Agreement in a manner which would permit such consolidation to
occur notwithstanding the negative covenants contained herein.
SECTION 9.17. Entire Agreement, etc. This Agreement (including
all schedules and exhibits referred to herein), the Notes and all other Loan
Documents constitute the entire contract between the parties hereto with
respect to the subject matter hereof and thereof and shall supersede and take
the place of any other instrument purporting to be an agreement of the parties
hereto relating to such subject matter.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized officers as of the day and year
first above written.
MISSISSIPPI-34 CELLULAR
CORPORATION
By: /s/ [ILLEGIBLE]
-----------------------------------
Name:
Title: President
AT&T CREDIT CORPORATION
By: /s/ XXXXXX X. XXXXXXX, XX.
-----------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
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EXHIBIT A
BUSINESS PLAN
[To be Attached]
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EXHIBIT B
FORM OF
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT ("Pledge Agreement"), dated as of December
20, 1993, is executed by and among the owners of the capital stock of
MISSISSIPPI-34 CELLULAR CORPORATION, a Mississippi corporation ("Borrower")
listed on the signature pages hereto ("Pledgors"), and AT&T Credit Corporation
(the "Lender"). Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed to such terms in the Loan
Agreement.
WITNESSETH:
WHEREAS, the Borrower and Lender have entered into a certain Loan
and Security Agreement of even date herewith (as amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement"),
pursuant to which Lender has agreed, subject to certain conditions precedent,
to make loans to Borrower from time to time;
WHEREAS, each of the Pledgors owns that percentage of the issued
and outstanding capital stock of the Borrower set forth on Exhibit A hereto and
will derive direct and indirect economic benefit from the loans made to the
Borrower under the Loan Agreement;
WHEREAS, the Lender has required, as a condition to its entering
into the Loan Agreement, that the Pledgors execute and deliver this Pledge
Agreement; and
WHEREAS, the Pledgors desire to secure their "Liabilities" (as
hereinafter defined) to the Lender by the grant to the Lender of a first
priority security interest in the "Pledged Collateral" (as hereinafter
defined);
NOW, THEREFORE, for and in consideration of the foregoing and of
any financial accommodations or extensions of credit (including, without
limitation, any loan or advance by renewal, refinancing or extension of the
agreements described hereinabove or otherwise) heretofore, now or hereafter
made to or for the benefit of the Borrower pursuant to the Loan Agreement or
any other agreement, instrument or document executed pursuant to or in
connection therewith and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Pledgors and the Lender
hereby agree as follows:
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1. Pledge. Each Pledgor hereby pledges to the Lender, and grants
to the Lender a security interest in, the following (collectively, the "Pledged
Collateral"):
(a) the shares of the capital stock of the Borrower, now or at
any time or times hereafter owned by such Pledgor, and the certificates
representing the shares of such capital stock (as identified on Exhibit A
attached hereto and made a part hereof), all options and warrants for the
purchase of shares of the stock of the Borrower now or hereafter held in the
name of such Pledgor (all of said capital stock, options and warrants and all
capital stock held in the name of such Pledgor as a result of the exercise of
such options or warrants being hereinafter collectively referred to as the
"Pledged Stock"), herewith delivered to the Lender accompanied by stock powers
in the form of Exhibit B attached hereto and made a part hereof ("Powers") duly
executed in blank, and all dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of, or in
exchange for, any or all of such shares;
(b) all additional shares of stock of the Borrower from time to
time acquired by such Pledgor in any manner, and the certificates representing
such additional shares (any such additional shares shall constitute part of the
Pledged Stock and shall be listed on Exhibit A), and all options, warrants,
dividends, cash, instruments and other rights and options from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such shares;
(c) the property and interests in property described in paragraph
3 below; and
(d) all proceeds of the foregoing.
2. Security for Liabilities. The Pledged Collateral secures the
prompt payment, performance and observance of (i) the Borrower's obligations
and liabilities under the Loan Agreement and the Loan Documents and (ii) each
Pledgor's obligations and liabilities under this Pledge Agreement and each
agreement, document or instrument executed pursuant to or in connection with
this Pledge Agreement (all such obligations and liabilities described in (i)
and (ii) above and now or hereafter existing being hereinafter referred to
collectively as the "Liabilities").
3. Pledged Collateral Adjustments. If, during the term of this
Pledge Agreement:
(a) any stock dividend, reclassification, readjustment or other
change is declared or made in the capital structure of the Borrower, or any
option included within the Pledged Collateral is exercised, or both, or
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(b) subscription warrants or any other rights or options shall be
issued in connection with the Pledged Collateral, then all new, substituted and
additional shares, warrants, rights, options or other securities, issued by
reason of any of the foregoing, shall be immediately delivered to and held by
the Lender under the terms of this Pledge Agreement and shall constitute
Pledged Collateral hereunder; provided, however, that nothing contained in this
paragraph 3 shall be deemed to permit any stock dividend, issuance of
additional stock, warrants, rights or options, reclassification, readjustment
or other change in the capital structure of the Borrower which is not expressly
permitted in the Loan Agreement.
4. Subsequent Changes Affecting Pledged Collateral. Each Pledgor
represents and warrants that it has made its own arrangements for keeping
informed of changes or potential changes affecting the Pledged Collateral
(including, but not limited to, rights to convert, rights to subscribe, payment
of dividends, reorganization or other exchanges, tender offers and voting
rights), and each Pledgor agrees that the Lender shall have no obligation to
inform any Pledgor of any such changes or potential changes or to take any
action or omit to take any action with respect thereto. The Lender may, after
the occurrence of an Event of Default, with notice and at its option, transfer
or register the Pledged Collateral or any part thereof into its or its
nominee's name with or without any indication that such Pledged Collateral is
subject to the security interest hereunder. In addition, the Lender may at any
time exchange certificates or instruments representing or evidencing Pledged
Shares for certificates or instruments of smaller or larger denominations.
5. Representations and Warranties. Each Pledgor represents and
warrants as follows:
(a) such Pledgor is the sole legal and beneficial owner of that
percentage of the issued and outstanding capital stock of the Borrower set
forth on Exhibit A, free and clear of any Lien except for the security interest
created by this Pledge Agreement;
(b) such Pledgor has full corporate power and authority to enter
into this Pledge Agreement;
(c) there are no restrictions upon the voting rights associated
with, or upon the transfer of, any of the Pledged Collateral except as set
forth in the Shareholders Agreement;
(d) such Pledgor has the right to vote, pledge and grant a
security interest in or otherwise transfer such Pledged Collateral free of any
Liens except as set forth in the Shareholders Agreement;
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(e) no authorization, approval, or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required
either (i) for the pledge of such Pledgor's Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement by
such Pledgor or (ii) for the exercise by the Lender of the voting or other
rights provided for in this Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Agreement (except as may be required (x) in
connection with such disposition by laws affecting the offering and sale of
securities generally and (y) by the FCC or PUC);
(f) the pledge of such Pledgor's Pledged Collateral pursuant to
this Pledge Agreement creates a valid and perfected first priority security
interest in such Pledged Collateral, in favor of the Lender, securing the
payment and performance of the Liabilities; and
(g) the Powers are duly executed and give the Lender the
authority they purport to confer.
6. Voting Rights. During the term of this Pledge Agreement, and
except as provided in this Section 6 below, each Pledgor shall have the right
to vote the Pledged Stock on all corporate questions in a manner not
inconsistent with the terms of this Pledge Agreement, the Loan Agreement and
any other agreement, instrument or document executed pursuant thereto or in
connection therewith. After the occurrence of an Event of Default, the Lender
may, at the Lender's option and following written notice from the Lender to the
Pledgors, exercise all voting powers pertaining to the Pledged Collateral.
7. Dividends and Other Distributions.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) Each Pledgor shall be entitled to receive and retain any and
all dividends and interest paid in respect of such Pledgor's Pledged Collateral
to the extent the Borrower is permitted to make such payments under the Loan
Agreement, provided, however, that any and all
(A) dividends and interest paid or payable other than in cash
with respect to, and instruments and other property received, receivable or
otherwise distributed with respect to, or in exchange for, any of the Pledged
Collateral;
(B) dividends and other distributions paid or payable in cash
with respect to any of the Pledged Collateral on account of a partial or total
liquidation or dissolution or in
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connection with a reduction of capital, capital surplus or paid-in surplus; and
(C) cash paid, payable or otherwise distributed with respect
to principal of, or in redemption of, or in exchange for, any of the Pledged
Collateral; shall be, and shall be forthwith delivered to the Lender to hold
as, Pledged Collateral and shall, if received by such Pledgor, be received in
trust for the Lender, be segregated from the other property or funds of such
Pledgor, and be delivered immediately to the Lender as Pledged Collateral in
the same form as so received (with any necessary endorsement); and
(ii) The Lender shall execute and deliver (or cause to be
executed and delivered) to each Pledgor all such proxies and other instruments
as such Pledgor may reasonably request for the purpose of enabling such Pledgor
to receive the dividends or interest payments which it is authorized to receive
and retain pursuant to paragraph (i) above.
(b) After the occurrence of an Event of Default:
(i) All rights of each Pledgor to receive the dividends and
interest payments which it would otherwise be authorized to receive and retain
pursuant to Section 7(a)(i) hereof shall cease, and all such rights shall
thereupon become vested in the Lender, which shall thereupon have the sole
right to receive and hold as Pledged Collateral such dividends and interest
payments;
(ii) all dividends and interest payments which are received by
each Pledgor contrary to the provisions of paragraph (i) of this Section 7(b)
shall be received in trust for the Lender, shall be segregated from other funds
of such Pledgor and shall be paid over immediately to the Lender as Pledged
Collateral in the same form as so received (with any necessary endorsements);
and
(iii) each Pledgor shall, upon the request of the Lender, at
Pledgor's expense, do or cause to be done all such other acts and things as may
be necessary to make such sale of such Pledgor's Pledged Collateral or any part
thereof valid and binding and in compliance with applicable law. Each Pledgor
will reimburse the Lender for all expenses incurred by the Lender, including,
without limitation, reasonable attorneys' and accountants' fees and expenses in
connection with the foregoing to the extent that such expenses relate to the
Pledgor's Pledged Collateral.
8. Transfers and Other Liens. Each Pledgor agrees that it will
not (i) sell or otherwise dispose of, or grant any option with respect to, any
of the Pledged Collateral without the
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prior written consent of the Lender, or (ii) create or permit to exist any Lien
upon or with respect to any of the Pledged Collateral, except for the security
interest under this Agreement.
9. Remedies.
(a) The Lender shall have, in addition to any other rights given
under this Pledge Agreement or by law, all of the rights and remedies with
respect to the Pledged Collateral of a secured party under the Uniform
Commercial Code as in effect in the State of New Jersey. In addition, after the
occurrence of an Event of Default, the Lender shall have such powers of sale
and other powers as may be conferred by applicable law. With respect to the
Pledged Collateral or any part thereof which shall then be in or shall
thereafter come into the possession or custody of the Lender or which the
Lender shall otherwise have the ability to transfer under applicable law, the
Lender may, in its sole discretion, without notice except as specified below,
after the occurrence of an Event of Default, sell or cause the same to be sold
at any exchange, broker's board or at public or private sale, in one or more
sales or lots, at such price as the Lender may deem best, for cash or on credit
or for future delivery, without assumption of any credit risk, and the
purchaser of any or all of the Pledged Collateral so sold shall thereafter own
the same, absolutely free from any claim, encumbrance or right of any kind
whatsoever. The Lender may, in its own name, or in the name of a designee or
nominee, buy the Pledged Collateral at any public sale and, if permitted by
applicable law, buy the Pledged Collateral at any private sale. In accordance
with the requirements of 47 C.F.R. Section 22.917 (1985), or any successor
provision thereto, the Lender shall notify the Borrower and the FCC in writing
at least ten (10) days prior to the repossession, in accordance with the Loan
Documents, of all or any part of the System which is subject to said
regulation. Each Pledgor shall be severally liable to the Lender for all
reasonable expenses (including, without limitation, court costs and reasonable
attorneys' and paralegals' fees and expenses) of, or incident to, the
enforcement of any of the provisions hereof. The Lender agrees to distribute
any proceeds of the sale of the Pledged Collateral in accordance with the Loan
Agreement.
(b) Unless any of the Pledged Collateral threatens to decline
speedily in value or is or becomes of a type sold on a recognized market, the
Lender will give the Pledgors reasonable notice of the time and place of any
public sale thereof, or of the time after which any private sale or other
intended disposition is to be made. Any sale of the Pledged Collateral
conducted in conformity with reasonable commercial practices of banks,
commercial finance companies, insurance companies or other financial
institutions disposing of property similar to the Pledged Collateral shall be
deemed to be commercially reasonable.
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Notwithstanding any provision to the contrary contained herein, any
requirements of reasonable notice shall be met if such notice is received by
the Pledgors as provided in paragraph 19 below, at least five (5) Business Days
before the time of the sale or disposition. Any other requirement of notice,
demand or advertisement for sale is waived, to the extent permitted by law.
(c) In view of the fact that federal and state securities laws
may impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after an Event of Default, the Pledgors agree that
after the occurrence of an Event of Default, the Lender may, from time to time,
attempt to sell all or any part of the Pledged Collateral by means of a private
placement restricting the bidders and prospective purchasers to those who are
qualified and will represent and agree that they are purchasing for investment
only and not for distribution. In so doing, the Lender may solicit offers to
buy the Pledged Collateral, or any part of it, from a limited number of
investors deemed by the Lender, in its reasonable judgment, to be financially
responsible parties who might be interested in purchasing the Pledged
Collateral. If the Lender solicits such offers from not less than three (3)
such investors, then the acceptance by the Lender of the highest offer obtained
therefrom shall be deemed to be a commercially reasonable method of disposing
of such Pledged Collateral.
(d) In connection with the enforcement by the Lender of any
remedies available to the Lender as a result of any Event of Default, each
Pledgor agrees to, and to use its best efforts to cause the Borrower to join
and cooperate fully, in each case at the Lender's election, with the Lender,
any receiver referred to below and/or the successor bidder or bidders at any
foreclosure sale in a filing of an application (and furnishing any additional
information that may be required in connection with such application) with the
FCC, the PUC and all applicable federal, state and local governmental
authorities, requesting their prior approval of (i) the operation or
abandonment of all or any portion of the System and/or (ii) the transfer of
control of the Borrower or assignment of all licenses, certificates,
authorizations, approvals and permits, issued to the Borrower by the FCC, the
PUC or any such authorities with respect to the System and the operation
thereof, to the receiver or to the successful bidder or bidders, including
without limitation, the Lender. In connection with the foregoing, each Pledgor
agrees to use its best efforts to cause the Borrower to take such further
actions, and execute all such instruments, as the Lender reasonably deems
necessary or desirable. Each Pledgor agrees that the Lender may enforce any
obligations of such Pledgor as set forth in this Paragraph by an action for
specific performance.
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67
(e) Notwithstanding any other provision of this Agreement to the
contrary, the exercise of any rights hereunder by the Lender that may require
FCC or PUC approval shall be subject to obtaining such approval. Pending
obtaining the FCC or PUC approval no Pledgor will do anything to delay, hinder,
interfere or obstruct the exercise of the Lender's rights hereunder in
obtaining such approvals.
(f) In connection with the exercise of its remedies under this
Agreement, Lender may, upon the occurrence of an Event of Default obtain the
appointment of a receiver or trustee to assume, upon receipt of all necessary
judicial, FCC or other governmental authority, consents or approvals, control
of or ownership of any Pledgor's Pledged Collateral. Such receiver or trustee
shall have all rights and powers provided to it by law or by court order or
provided to Lender under this Agreement. Upon the appointment of such trustee
or receiver, such Pledgor agrees to cooperate, to the extent necessary or
appropriate, in the expeditious preparation, execution and filing of an
application to the FCC or PUC for consent to the transfer of control or
assignment of the Construction Permits or the Operating Licenses or the
Certificate of the Borrower to the receiver or trustee.
10. Security Interest Absolute. All rights of the Lender and
security interests hereunder, and all obligations of the Pledgors hereunder,
shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of the Loan Agreement
or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Liabilities, or any other amendment or
waiver of or any consent to any departure from the Loan Agreement;
(iii) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to departure
from any guaranty, for all or any of the Liabilities; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Pledgor in respect of the
Liabilities or of this Agreement.
11. Lender Appointed Attorney-in-Fact. Each Pledgor hereby
appoints the Lender its attorney-in-fact, with full authority, in the name of
such Pledgor or otherwise, after the occurrence of an Event of Default, from
time to time in the Lender's discretion, to take any action and to execute any
instrument which the Lender may deem necessary or advisable to accomplish the
purposes of this Pledge Agreement, including,
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without limitation, to receive, endorse and collect all instruments made
payable to such Pledgor representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same and to arrange for the transfer of all or any
part of the Pledged Collateral on the books of the Borrower to the name of the
Lender or the Lender's nominee.
12. Waivers. Each Pledgor waives presentment and demand for
payment of any of the Liabilities, protest and notice of dishonor or Event of
Default with respect to any of the Liabilities and all other notices to which
such Pledgor might otherwise be entitled except as otherwise expressly provided
herein or in the Loan Agreement.
13. Term. This Pledge Agreement shall remain in full force and
effect until the Liabilities and the obligations have been fully and
indefeasibly paid and satisfied and the Loan Agreement has terminated pursuant
to its terms. Upon the termination of this Pledge Agreement as provided above
(other than as a result of the sale of the Collateral), the Lender will release
the security interest created hereunder and will deliver the Pledged Stock and
the Powers to the appropriate Pledgors.
14. Definitions. The singular shall include the plural and vice
versa and any gender shall include any other gender as the context may require.
15. Successors and Assigns. This Pledge Agreement shall be
binding upon and inure to the benefit of the Pledgors, the Lender and their
respective successors and assigns. Each Pledgor's successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for such Pledgor.
16. Applicable Law; Severability. This Pledge Agreement shall be
governed by, and construed in accordance with, the internal laws (as opposed to
the conflict of laws provisions) and decisions of the State of New Jersey.
Whenever possible, each provision of this Pledge Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but, if any
provision of this Pledge Agreement shall be held to be prohibited or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Pledge Agreement. Furthermore, if
any term or provision hereof is held to be inconsistent with the Communications
Act of 1934, as amended, 47 U.S.C. 151 et seq., or with the Rules and
Regulations of the FCC, or otherwise illegal or invalid for any reason, such
provision shall not affect the remainder hereof, and the parties shall promptly
cooperate in good faith to modify this Agreement, so as
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69
to avoid any impairment of Lender's security interest in the Pledged
Collateral.
17. Further Assurances. Each Pledgor agrees that it will
cooperate with the Lender and will execute and deliver, or cause to be executed
and delivered, all such other stock powers, proxies, instruments and documents,
and will take all such other action, including, without limitation, the filing
of financing statements, as the Lender may reasonably request from time to time
in order to carry out the provisions and purposes of this Pledge Agreement.
18. The Lender's Duty of Care. The Lender shall not be liable for
any acts, omissions, errors of judgment or mistakes of fact or law including,
without limitation, acts, omissions, errors or mistakes with respect to the
Pledged Collateral, except for those arising out of or in connection with the
Lender's (i) gross negligence or willful misconduct, or (ii) failure to use
reasonable care with respect to the safe custody of the Pledged Collateral in
the Lender's possession. Without limiting the generality of the foregoing, the
Lender shall be under no obligation to take any steps necessary to preserve
rights in the Pledged Collateral against any other parties but may do so at its
option. All expenses incurred in connection therewith shall be for the sole
account of the Pledgors, who shall have several liability therefor, and shall
constitute part of the Liabilities secured hereby.
19. Notices. All notices and other communications required or
desired to be served, given or delivered hereunder shall be made in writing or
by a telecommunications device capable of creating a written record and shall
be addressed, if to any Pledgor, to the address set forth below the signature
line of such Pledgor, and
if to the Lender, c/o
AT&T Capital Corporation/Capital Markets Division
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Operations Manager
Telecopy: (000) 000-0000
Confirmation: (000) 000-0000
with a copy to
AT&T Capital Corporation/Capital Markets Division
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Chief Counsel
Telecopy: (000) 000-0000
Confirmation: (000) 000-0000
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or, as to each party, at such other address as designated by such party in a
written notice to the other party. All such notices and communications shall be
deemed to be validly served, given or delivered (i) three (3) days following
deposit in the United States mails, with proper postage prepaid; (ii) upon
delivery thereof if delivered by hand to the party to be notified; or (iii)
upon acknowledgment of receipt thereof if transmitted by such a
telecommunications device.
20. Effect on Shareholders Agreement. The Pledgors and the
Borrower hereby agree that, notwithstanding any contrary provision in the
Shareholders Agreement among the Pledgors and the Borrower, the Lender shall be
permitted to exercise any and all of its rights and remedies under this Pledge
Agreement, including, without limitation, the right to foreclose upon or sell
the Pledged Collateral, free and clear of any restriction on the Pledged
Collateral contained in the Shareholders Agreement.
21. Amendments, Waivers and Consents. No amendment or waiver of
any provision of this Agreement nor consent to any departure by any Pledgor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Lender, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
22. Section Headings. The section headings herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
23. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of
which shall together constitute one and the same agreement.
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IN WITNESS WHEREOF, the Pledgors and the Lender have executed
this Pledge Agreement as of the 20th day of December, 1993.
MERCURY, INC.
By:
-----------------------------------
Name:
Title:
Address: CM Tower, Suite 0000
Xxx Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Confirmation: (000) 000-0000
--------------------------------------
Xxxxx Xxxxxx
Home
Address: 000 Xxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
--------------------------------------
X. X. Xxxxxx, Xx.
Home
Address: 0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Office
Address: Young, Scanlon, Xxxxxxx
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
Telecopy:(000) 000-0000
--------------------------------------
Xxxxxx Xxxxxxx
Home
Address: 0000 X. Xxxxx Xx.
Xxxxxxx, XX 00000
Office
Address: 000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telecopy:(000) 000-0000
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72
--------------------------------------
Xxxxxxx X. Xxxxxxx, XX
Home
Address: 0000 Xx. Xxx Xxxxxx
Xxxxxxx, XX 00000
Office
Address: 0000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Telecopy:(000) 000-0000
--------------------------------------
Xxxxx Xxxxxxx
Home
Address: 000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Office
Address: c/o Xxxxx Xxxxxx
Xxxxxx Xxxxxx, Snow,
O'Mara, Xxxxxxx &
Xxxxxxx
00xx Xxxxx
Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
--------------------------------------
Xxxxxxx X. Xxxxxxx, III
Home
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Office
Address: 0000 Xxxxxxxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxx, XX 00000
Telecopy:(000) 000-0000
--------------------------------------
Xxxx X. Xxxxxx, III
Home
Address: 0000 Xxxxxxxx Xxxxx Xx.
Xxxxxxx, XX 00000
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73
Office
Address: 0000 Xxxxxxxxx Xxxxxx Xx.
Xxxxx 000X
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
AT&T CREDIT CORPORATION
By:
-----------------------------------
Name:
Title:
ACCEPTED AND AGREED TO
WITH RESPECT TO PARAGRAPH 20
MISSISSIPPI-34 CELLULAR CORPORATION
By:
-----------------------------------
Name:
Title:
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74
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Pledge Agreement, agrees promptly to note on its books the security
interests granted under such Pledge Agreement, and waives any rights or
requirement at any time hereafter to receive a copy of such Pledge Agreement in
connection with the registration of any Pledged Collateral in the name of the
Lender or its nominee or the exercise of voting rights by the Lender.
MISSISSIPPI-34 CELLULAR CORPORATION
By:
-----------------------------------
Name:
Title:
-73-
75
EXHIBIT A
to
PLEDGE AGREEMENT
dated as of December 20, 1993
Pledged Stock Certificates
Percentage of Shares of Capital
Issued and Outstanding Stock owned by
Capital Stock owned each Pledgor Subject
Name by each Pledgor to Pledge
Mercury, Inc. 51% ___
Xxxxx Xxxxxx 25% ___
X. X. Xxxxxx, Xx. 1.8% ___
Xxxxxx Xxxxxxx 3.3% ___
Xxxxxxx X. Xxxxxxx, XX 5.7% ___
Xxxxx Xxxxxxx 1.8% ___
Xxxxxxx X. Xxxxxxx, III 5.7% ___
Xxxx X. Xxxxxx, III 5.7% ___
-74-
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EXHIBIT B
to
PLEDGE AGREEMENT
dated as of December 20, 1993
Form of Stock Power
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and
transfer to ________________________ ____________ Shares of Capital Stock of
Mississippi-34 Cellular Corporation, a Mississippi corporation, represented by
Certificate No. ___________ (the "Stock"), standing in the name of the
undersigned on the books of said corporation and does hereby irrevocably
constitute and appoint ________________________ as the undersigned's true and
lawful attorney, for it and in its name and stead, to sell, assign and transfer
all or any of the Stock, and for that purpose to make and execute all necessary
acts of assignment and transfer thereof; and to substitute one or more persons
with like full power, hereby ratifying and confirming all that said attorney or
substitute or substitutes shall lawfully do by virtue hereof.
Dated: ____________________
By:
-----------------------------------
Title:
-75-
77
EXHIBIT C
FORM OF CAPITAL NOTE
$ Parsippany, New Jersey
------------------- [Date]
FOR VALUE RECEIVED, the undersigned, MISSISSIPPI-34 CELLULAR
CORPORATION, a Mississippi corporation the "Borrower"), hereby unconditionally
promises to pay to the order of AT&T CREDIT CORPORATION, a Delaware corporation
(the "Lender"), at its office at 0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, or at such other place as the holder of this Capital Note may from time
to time designate in writing, in lawful money of the United States of America
and in immediately available funds, the principal sum of ____________ Dollars
($________), together with interest on the principal balance remaining from
time to time unpaid at the rate provided below from the date such principal is
advanced until payment in full thereof. This Capital Note is referred to in and
was executed and delivered pursuant to Section 2.04 of that certain Loan and
Security Agreement dated as of December 20, 1993 by and between the Borrower
and the Lender (the "Loan Agreement"), to which reference is hereby made for a
statement of the terms and conditions under which the Capital Loans evidenced
hereby are being made and are to be repaid. All terms which are capitalized and
used herein (which are not otherwise specifically defined herein) and which are
defined in the Loan Agreement shall be used in this Capital Note as defined in
the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-two (22) consecutive quarterly installments, as set forth on Schedule A
attached hereto. The principal amount hereof may be prepaid only in accordance
with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding
unpaid principal amount hereof which remains unpaid from the date hereof until
payment in full hereof at the per annum rate equal to the [FIXED RATE]
[VARIABLE RATE], payable quarterly in arrears on the Payment Dates and subject
to capitalization of the interest payable prior to the Commitment Termination
Date in accordance with the provisions of Section 2.05 of the Loan Agreement,
and calculated on the basis of a 360-day year comprised of twelve 30 day months,
compounded monthly; provided, however, that if the Borrower shall default in
the payment of the principal or interest hereof, the Borrower promises to, on
demand, pay interest on the entire unpaid
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principal amount hereof at a rate equal to four percent (4%) per annum above
the rate of interest that would otherwise be applicable, from the date such
payment is due to the date of actual payment, and if any other Event of Default
occurs and is continuing, the Borrower promises to, on demand, pay interest on
the entire unpaid principal amount hereof at a rate equal to two percent (2%)
per annum above the rate of interest that would otherwise be applicable, until
such Event of Default is cured.
If payment hereunder becomes due and payable on a Saturday,
Sunday, or legal holiday, under the laws of the State of New Jersey, the due
date thereof shall be extended to the next succeeding Business Day, and
interest shall be payable thereon during such extension at the rate specified
above. Checks, drafts or similar items of payment received by the Lender shall
not constitute payment until the same is honored by the Lender's depository
bank and final settlement thereof is reflected by irrevocable credit to the
Lender's account in such bank, but solely for the purpose of computing interest
earned by the Lender, credit shall be given to the Borrower on the Business Day
such item or payment is received by Lender. In no contingency or event
whatsoever shall interest charged hereunder, however such interest may be
characterized or computed, exceed the highest rate permissible under any law
which a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lender
has received interest hereunder in excess of the highest rate applicable
hereto, the Lender shall promptly refund such excess interest to Borrower.
Except as otherwise agreed in the Loan Agreement, payments
received by the Lender from the Borrower on this Capital Note shall be applied
first to the payment of interest which is due and payable and only thereafter
to the outstanding principal balance.
Presentment, protest and notice of nonpayment are hereby waived
by the Borrower.
This Capital Note shall be interpreted and the rights and
liabilities of the parties hereto determined in accordance with the internal
laws (as opposed to conflicts of law provisions) and decisions of the State of
New Jersey. Whenever possible each provision of this Capital Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Capital Note shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Capital Note. Whenever in this Capital Note
reference is made to the Lender or Borrower, such reference is made to include,
as applicable, a reference to their
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79
respective successors and assigns. The provisions of this Capital Note shall be
binding upon and inure to the benefit of said successors and assigns.
Borrower's successors and assigns shall include, without limitation, a
receiver, trustee or debtor in possession of or for the Borrower.
MISSISSIPPI-34 CELLULAR
CORPORATION
By:
----------------------------------
Its:
----------------------------------
-78-
80
Schedule A
PAYMENT SCHEDULE
for
Capital Loan
Dated as of ________ __, 199_.
Date of Payment Amount of Interest Amount of Principal
--------------- ------------------ -------------------
-79-
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EXHIBIT D
FORM OF EQUIPMENT NOTE
$ Parsippany, New Jersey
---------------------- [Date]
FOR VALUE RECEIVED, the undersigned, MISSISSIPPI-34 CELLULAR
CORPORATION, a Mississippi corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of AT&T CREDIT CORPORATION, a Delaware corporation
(the "Lender"), at its office at 0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, or at such other place as the holder of this Equipment Note may from
time to time designate in writing, in lawful money of the United States of
America and in immediately available funds, the principal sum of________
Dollars ($________), together with interest on the principal balance remaining
from time to time unpaid at the rate provided below from the date such
principal is advanced until payment in full thereof. This Equipment Note is
referred to in and was executed and delivered pursuant to Section 2.04 of that
certain Loan and Security Agreement dated as of December 20, 1993 by and
between the Borrower and the Lender (the "Loan Agreement"), to which reference
is hereby made for a statement of the terms and conditions under which the
Equipment Loans evidenced hereby are being made and are to be repaid. All terms
which are capitalized and used herein (which are not otherwise specifically
defined herein) and which are defined in the Loan Agreement shall be used in
this Equipment Note as defined in the Loan Agreement.
The principal indebtedness evidenced hereby shall be payable in
twenty-two (22) consecutive quarterly installments, as set forth on Schedule A
attached hereto. The principal amount hereof may be prepaid only in accordance
with the terms of the Loan Agreement.
Borrower further promises to pay interest on the outstanding
unpaid principal amount hereof which remains unpaid from the date hereof until
payment in full hereof at the per annum rate equal to the [Fixed Rate]
[VARIABLE RATE], payable quarterly in arrears on the Payment Dates and subject
to capitalization of the interest payable prior to the Commitment Termination
Date in accordance with the provisions of Section 2.05 of the Loan Agreement,
and calculated on the basis of a 360-day year comprised of twelve 30 day
months, compounded monthly; provided, however, that if the Borrower shall
default in the payment of the principal or interest hereof, the Borrower
promises to, on demand, pay interest on the entire unpaid principal amount
hereof at a rate equal to four percent (4%) per
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82
annum above the rate of interest that would otherwise be applicable, from the
date such payment is due to the date of actual payment, and if any other Event
of Default occurs and is continuing, the Borrower promises to, on demand, pay
interest on the entire unpaid principal amount hereof at a rate equal to two
percent (2%) per annum above the rate of interest that would otherwise be
applicable until such Event of Default is cured.
If payment hereunder becomes due and payable on a Saturday,
Sunday, or legal holiday, under the laws of the State of New Jersey, the due
date thereof shall be extended to the next succeeding Business Day, and
interest shall be payable thereon during such extension at the rate specified
above. Checks, drafts or similar items of payment received by the Lender shall
not constitute payment until the same is honored by the Lender's depository
bank and final settlement thereof is reflected by irrevocable credit to the
Lender's account in such bank, but solely for the purpose of computing interest
earned by the Lender, credit shall be given to the Borrower on the Business Day
such item or payment is received by the Lender. In no contingency or event
whatsoever shall interest charged hereunder, however such interest may be
characterized or computed, exceed the highest rate permissible under any law
which a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lender
has received interest hereunder in excess of the highest rate applicable
hereto, the Lender shall promptly refund such excess interest to Borrower.
Except as otherwise agreed in the Loan Agreement, payments
received by the Lender from the Borrower on this Equipment Note shall be
applied first to the payment of interest which is due and payable and only
thereafter to the outstanding principal balance.
Presentment, protest and notice of nonpayment are hereby waived
by the Borrower.
This Equipment Note shall be interpreted and the rights and
liabilities of the parties hereto determined in accordance with the internal
laws (as opposed to conflicts of law provisions) and decisions of the State of
New Jersey. Whenever possible each provision of this Equipment Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Equipment Note shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Equipment Note. Whenever in this Equipment
Note reference is made to the Lender or Borrower, such reference is made to
include, as applicable, a reference to their respective successors and assigns.
The provisions of this
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83
Equipment Note shall be binding upon and inure to the benefit of said
successors and assigns. Borrower's successors and assigns shall include,
without limitation, a receiver, trustee or debtor in possession of or for the
Borrower.
MISSISSIPPI-34 CELLULAR
CORPORATION
By:
-----------------------------------
Its:
-----------------------------------
-82-
84
Schedule A
PAYMENT SCHEDULE
for
Equipment Loan
Dated as of ________ __, 199_.
Date of Payment Amount of Interest Amount of Principal
--------------- ------------------ -------------------
-83-
85
EXHIBIT E
DELIVERY AND ACCEPTANCE CERTIFICATE
To: AT&T Credit Corporation
Dated: ____________________
Gentlemen:
The undersigned, MISSISSIPPI-34 CELLULAR CORPORATION (the
"Borrower"), refers to that certain Loan and Security Agreement dated as of
December 20, 1993 (the "Loan Agreement"; the terms defined therein used herein
as therein defined) between AT&T Credit Corporation (the "Lender") and the
Borrower, and hereby certifies to the Lender, pursuant to the Loan Agreement,
that all of the equipment and related services as described in invoice no.
________ (the "Equipment") of [AMERICAN TELEPHONE AND TELEGRAPH COMPANY]
[________], has been delivered, inspected, installed, is in good working
condition, and accepted by the Borrower as satisfactory.
The undersigned hereby certifies that the following statements
are true on the date hereof:
(A) The representations and warranties contained in Article III
of the Loan Agreement and contained in the other Loan Documents are correct in
all respects as though made on the date hereof;
(B) No event has occurred and is continuing which constitutes
either an Event of Default or an event which but for the requirement that
notice be given and/or the elapse of time, would constitute an Event of
Default;
(C) After giving effect to the Loan to be made by the Lender to
the Borrower to finance the purchase of the Equipment, no event would occur
which would constitute either an Event of Default or an event which but for the
requirement that notice be given and/or the elapse of time, would constitute an
Event of Default; and
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86
(D) All agreements and all conditions contained in the Loan
Agreement or any other of the Loan Documents which are required to be performed
or satisfied by the Borrower on the date hereof in connection with the making
by the Lender of the Loan to finance the purchase of the Equipment have been
satisfied.
The undersigned requests that the Loan bear interest at the
[Fixed Rate] [Variable Rate].
Very truly yours,
MISSISSIPPI-34 CELLULAR
CORPORATION
By:
----------------------------------
Its:
----------------------------------
-85-
87
EXHIBIT F
NOTICE OF BORROWING
IN RESPECT OF CAPITAL LOANS
To: AT&T Credit Corporation
Dated:
------------------------
Gentlemen:
The undersigned, MISSISSIPPI-34 CELLULAR CORPORATION (the
"Borrower"), refers to that certain Loan and Security Agreement dated as of
December 20, 1993 (the "Loan Agreement"; the terms defined therein used herein
as therein defined) between AT&T Credit Corporation (the "Lender") and the
Borrower, and hereby gives the Lender notice, irrevocably, pursuant to Section
2.03(b) of the Loan Agreement that the undersigned hereby requests a Capital
Loan under the Loan Agreement, and in that connection sets forth below the
information relating to such Capital Loan (the "Proposed Loan") as required by
Section 2.03(b) of the Loan Agreement:
(i) The Business Day of the Proposed Loan is ________, 199_;
(ii) The proceeds of the Proposed Loan are to be used for the
purposes as specified on Schedule A attached hereto;
(iii) The bank account into which the proceeds of the Proposed
Loan are to be transferred is account no. [Insert specific account number]
maintained at [Name Bank];
(iv) The ABA number of the above-referenced bank is _________,
and the name and address, phone and fax numbers of the contact person at such
bank, are as follows:
-------------------------------------------
-------------------------------------------
-------------------------------------------
Telephone Number:
--------------------------
Fax Number:
--------------------------------;
(v) The aggregate amount of the Proposed Loan is $ __________;
and
(vi) The Proposed Loan is to bear interest at the [FIXED RATE]
[VARIABLE RATE].
-86-
88
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the Business Day of the
Proposed Loan:
(A) The representations and warranties contained in Article III
of the Loan Agreement and contained in the other Loan Documents are correct in
all material respects, before and after giving effect to the Proposed Loan and
to the application of the proceeds therefrom, as though made on as of such
date;
(B) No event has occurred and is continuing, or would result from
such Proposed Loan or from the application of the proceeds therefrom, which
constitutes either an Event of Default or an event which but for the
requirement that notice be given and/or the elapse of time, would constitute an
Event of Default; and
(C) All agreements and all conditions to the Proposed Loan,
contained in the Loan Agreement or any other of the Loan Documents which are
required to be performed or satisfied by the Borrower on the date hereof or by
the Business Day of the Proposed Loan have been and will be performed and
satisfied.
The undersigned hereby further certifies that in accordance with
Section 6.02 of the Loan Agreement the proceeds of the Proposed Loan shall be
used only for purposes specifically described in the Business Plan.
Very truly yours,
MISSISSIPPI-34 CELLULAR
CORPORATION
By:
--------------------------
Its:
-------------------------
-87-
89
SCHEDULE A
[DESCRIBE THE PURPOSES FOR WHICH THE PROCEEDS
OF THE PROPOSED LOAN WILL BE USED]
-88-
90
EXHIBIT G
BORROWER'S PRO FORMA BALANCE SHEET
[To be Attached]
-89-
91
MS-34 Corporation
BALANCE SHEET
11/30/93
CURRENT ASSETS:
Cash 17,612.86
Accounts Receivable 76,821.87
Inventory
6,708.75
Prepaid Expenses 1,290.89
Other Current Assets 0.00
------------
TOTAL CURRENT ASSETS 102,434.37
PROPERTY, PLANT & EQUIPMENT 3,501,067.53
Less: Accumulated Depreciation (50,160.00)
------------
3,450,907.53
------------
OTHER LONG TERM ASSETS 3,144,388.28
------------
TOTAL ASSETS 6,697,730.18
============
92
MS-34 Corporation
BALANCE SHEET
11/30/93
CURRENT LIABILITIES:
Current Maturities Debt 520,000.00
Accounts Payable 245,200.57
Accrued Expenses 11,800.77
Deposits and Other C/L 3,186,349.35
------------
TOTAL CURRENT LIABILITIES 3,963,350.69
NOTES PAYABLE: 50,000.00
------------
TOTAL LIABILITIES 4,013,350.69
------------
EQUITY:
Cash Received - Owners 3,290,416.00
Common Stock 100.00
Retained Earnings (606,136.51)
TOTAL EQUITY 2,684,379.49
------------
------------
TOTAL LIABILITIES & EQUITY 6,697,730.18
============
93
MS-34 Corporation
CASH IN BANKS AND ON HAND
As of 11/30/93
CASH
Xxxxx Cash on Hand 200.00
Xxxxx Cash - DGNB 1,896.29
CMNB - Cash Account 3,346.54
DGNB - Deposit Account 538.27
Depository 11,531.76
CMNB - Savings Account 100.00
---------
TOTAL CASH 17,612.86
=========
---------
ESCROW CASH 0.00
=========
ACCOUNTS RECEIVABLE
Net Settlement 29,647.25
A/R Local Subscribers 21,257.93
Equipment Lease Purchase 0.00
A/R Foreign Carriers 29,598.94
A/R Other (3,682.25)
---------
TOTAL RECEIVABLES 76,821.87
=========
INVENTORY
Inv - Phones Held for Sale 5,285.95
Inv - Accessories 1,422.80
----------
TOTAL INVENTORY 6,708.75
==========
PREPAID EXPENSES
Prepaid Insurance 90.89
Prepaid Fees\Licenses 1,200.00
----------
TOTAL PREPAID 1,290.89
==========
OTHER CURRENT ASSETS
----------
OTHER CURRENT ASSETS 0.00
==========
94
PROPERTY, PLANT & EQUIPMENT
Construction in Process 2858,075.48
MTSO 56,135.00
Grenada Cellsite Equipment 517,257.20
Greenwood Cellsite Equipment 816.00
Building - Grenada 41,724.00
Office Equipment 12,913.16
Furniture & Fixtures 8,261.69
Leasehold Improvements - Office 4,429.80
Computer Equipment 1,455.20
ACC/Depr - Cell Cites (49,037.00)
ACC/Depr - Office Equip & Furn (1,123.00)
------------
TOTAL PLANT & EQUIPMENT 3,450,907.53
============
OTHER LONG TERM ASSETS
Deposits 1,840.00
Investment in License 3,221,781.00
Capitalized Loan Costs 41,584.00
Accumulated Amortization (120,816.72)
------------
TOTAL OTHER LONG TERM ASSETS 3,144,388.28
============
95
CURRENT PORTION OF LONG TERM DEBT
Due to Cameron Communications 20,000.00
N/P - DGNB 500,000.00
------------
TOTAL CUR - LONG TERM DEBT 520,000.00
============
ACCOUNTS PAYABLE
A/P - Trade 233,154.62
Sales Tax Payable - MS 0.00
Excise Tax Payable - Federal 8.68
City Tax Payable 0.00
E911 Service Charge 11.75
Due To Mercury Communications 12,025.52
------------
TOTAL ACCOUNTS PAYABLE 245,200.57
============
ACCRUED EXPENSES
Accrued Interest 11,800.77
------------
TOTAL ACCRUED EXPENSES 11,800.77
============
CUSTOMER DEPOSITS & OTHER CURRENT LIABILITIES
Escrow Deposit Payable 1,900.00
Deposit Interest Payable 13.42
Other Current Liabilities 3,184,435.93
------------
TOTAL OTHER CUR. LIABILITIES 3,186,349.35
============
LONG TERM LIABILITIES
L/T Note Stockholders 50,000.00
------------
TOTAL LONG TERM LIABILITIES 50,000.00
============
SHAREHOLDERS' EQUITY
Paid in Capital 3,290,416.00
Common Stock 100.00
Retained Earnings (107,190.17)
Current Year Earnings (Loss) (498,946.34)
------------
Total Shareholder's Equity 2,684,379.49
============
96
MISSISSIPPI 34 CELLULAR
PROFIT & LOSS STATEMENT
For the month ending 11/30/93
Reporting Period Year to date
REVENUES:
Monthly Service & Airtime 4,058.99 9,029.52
Vertical Services 24.00 44.00
Toll Revenue 209.57 597.63
Roamer Pass Through 1,873.24 5,165.70
Non-Recurring Revenue 1,150.00 2,500.00
Roamer Revenue Foreign 22,011.28 133,621.16
Equipment Sales 6,259.16 16,293.72
Billing Adjustments 221.74 1,205.47
---------- ----------
TOTAL REVENUES 35,807.98 168,457.20
---------- ----------
EXPENSES:
Cost of Equipment Sold 8,448.58 25,191.26
Plant Operations 4,386.32 94,626.73
Customer Usage Expenses 7,235.56 23,246.44
Shared System Services 0.00 5,965.72
Depreciation & Amortization 17,462.08 158,490.72
General & Administrative Expense 5,502.56 156,241.03
Management Fees 24,000.00 151,000.00
Sales & Marketing 4,212.56 27,841.28
---------- ----------
Total Operating Expenses 71,247.66 642,603.18
---------- ----------
OTHER INCOME/EXPENSE 2,980.01 24,800.36
---------- ----------
NET INCOME BEFORE TAXES (38,419.69) (498,946.34)
---------- ----------
FEDERAL INCOME TAXES 0.00 0.00
---------- ----------
NET INCOME (38,419.69) (498,946.34)
========== ==========
97
EXHIBIT H
FORM OF
MISSISSIPPI-34 CELLULAR CORPORATION'S
SECRETARY'S CERTIFICATE
OF
BOARD OF DIRECTORS RESOLUTIONS
I, Xxxxxxx X. Xxxxxxx, XX, DO HEREBY CERTIFY that I am the
Secretary of Mississippi-34 Cellular Corporation (the "Corporation"), a
corporation duly organized and existing under and by virtue of the laws of the
State of Mississippi and am keeper of the records and seal thereof; that the
following is a true, correct and compared copy of the recitals and resolutions
duly adopted by the unanimous consent of all of the members of the Board of
Directors of said Corporation on _____, 1993, and that said recitals and
resolutions are still in full force and effect and have not been modified or
rescinded.
NOW, THEREFORE, BE IT RESOLVED, that Xxxxxxx X. Xxxxxxx, Xx. or
any other officer of the Corporation be and hereby is authorized and empowered
(either alone or in conjunction with any one or more of the other officers of
the Corporation) to take, from time to time, all or any part of the following
action on or in behalf of the Corporation to (A) execute and deliver to AT&T
Credit Corporation ("Lender"), (i) a Loan and Security Agreement ("Loan
Agreement"), (ii) promissory notes ("Notes"), in favor of Lender evidencing the
Corporation's agreement repay the loans made pursuant to the Loan Agreement,
(iii) Mortgages ("Mortgages") in favor of Lender evidencing the mortgage of the
real property of the Corporation to Lender, and (iv) all UCC financing
statements and all other agreements, documents and instruments, including, but
not limited to, financing statements, contemplated by the Loan Agreement
(collectively, the "Other Documents"); said Loan Agreement, Notes, Mortgages,
and Other Documents to be substantially in the form of those presented to the
Board of Directors of the Corporation, with such additional, modified or
revised terms as may be acceptable to such officer, as conclusively evidenced
by his or her execution thereof; and (B) to carry out, modify, amend or
terminate any arrangements or agreements at any time existing between the
Corporation and the Lender.
FURTHER RESOLVED, that all acts and deeds heretofore done by any
director, officer or officers of the Corporation for and on behalf of the
Corporation in entering into, executing, acknowledging or attesting any
arrangements, security agreements,
98
agreements, instruments or documents, or in carrying out the terms and
intentions of these resolutions, are hereby ratified, approved and confirmed.
I DO FURTHER CERTIFY, that the following named persons are the
President, Senior Vice President, Vice President, Secretary and Treasurer of
the Corporation, duly elected, qualified and acting as such; that the
signatures appearing opposite the names of such officers are authentic and
genuine and are, in fact, the signatures of such officers:
President:
Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------
Vice President
Xxxxxx Xxxxx
----------------------------------
Secretary:
Xxxxxxx X. Xxxxxxx, XX
----------------------------------
Treasurer:
Xxxxxxx X. Xxxxxxx
----------------------------------
I DO FURTHER CERTIFY, that the Corporation's Articles of
Incorporation certified by the Secretary of State of Mississippi, attached
hereto as Exhibit A and incorporated herein by this reference thereto, has not
been amended since the date of the last amendment thereto indicated on such
Secretary of State's Certificate.
I DO FURTHER CERTIFY, that the Corporation's By-Laws, attached
hereto as Exhibit B and incorporated herein by this reference thereto, are
true, accurate and complete as of the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
Seal of the Corporation at this day of , 1993.
------------- ------- -------
-----------------------------
Xxxxxxx X. Xxxxxxx, XX
Secretary
AFFIX CORPORATE SEAL
-91-
99
EXHIBIT I-1
FORM OF OPINION OF BORROWER'S SPECIAL COUNSEL
Attached.
-92-
100
[BRUNINI, GRANTHAM, GROWER & XXXXX LETTERHEAD]
December 30, 1993
AT&T Credit Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
RE: Loans to Mississippi-34 Cellular Corporation
Ladies and Gentlemen:
We have acted as special local counsel for Mississippi-34 Cellular
Corporation, a Mississippi corporation ("Borrower"), in connection with the
transactions evidenced by the following documents of even date herewith: (i)
that certain Loan and Security Agreement ("Loan Agreement") between Borrower
and AT&T Credit Corporation ("Lender"), (ii) that certain Equipment Note
executed by Borrower and payable to Lender in the original principal amount of
$2,138,836.03, (iii) that certain Capital Note executed by Borrower and payable
to Lender in the original principal amount of $1,684,987.01, (iv) that certain
Deed of Trust, Security Agreement, Financing Statement and Assignment of Rents
and Leases (the "Mortgage"), covering the premises referred to on Exhibit A
attached hereto (the "Premises") and executed by Borrower for the benefit of
Lender with respect to the real property located in Xxxxxx County, Mississippi,
(v) those certain Uniform Commercial Code Financing Statements, copies of which
have been provided to us ("Financing Statements"), and (vi) those certain
Uniform Commercial Code Fixture Filings, copies of which are attached hereto as
Exhibit C. This opinion is being delivered to you pursuant to Section 4.01 (e)
of the Loan Agreement. Capitalized terms not otherwise defined herein shall
have the meanings given to such terms in the Loan Agreement.
In connection with this opinion we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the documents and
instruments listed in items (i) through (vi) above (such documents being
hereinafter referred to, collectively, as the "Loan Documents").
For the purposes of rendering this opinion we have also investigated
such questions of law and have examined such corporate
101
AT&T Credit Corporation
December 30, 1993
Page 2
documents or records of the Borrower, certificates and representations of
public officials and such other documents as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. In addition,
we have assumed (i) the genuineness of the signatures and authority of persons
signing all documents in connection with which this opinion is rendered, (ii)
the authenticity of all documents submitted to us as originals, (iii) the
conformity to authentic original documents of all documents submitted to us as
certified, conformed or photostatic copies, (iv) the power and authority of the
Borrower and the Lender to enter into and perform their respective obligations
under the Loan Documents, (v) that the Loan Documents have been properly
executed and delivered by the appropriate parties, (vi) that Borrower has title
to the Premises and to the other property being secured, (vii) at least one of
the Loans has been accomplished and funds advanced to the Borrower in
transactions substantially contemporaneous with the execution of the Loan
Documents, and (viii) the Loan Documents, except for the Mortgage as to which
we render our opinion herein, are, under all applicable laws other than the
laws of Mississippi, valid and binding obligations of the parties thereto,
enforceable in accordance with their respective terms. For purposes of this
opinion "substantially contemporaneous" means by overnight delivery of
documents with funding upon full execution of the Loan Documents.
Based upon the foregoing, we are of the opinion that:
1. The Mortgage is in proper form:
(a) for the creation of the mortgage lien contemplated thereby against
the interest of the Borrower in the Premises and
(b) for recording in the real property records of the recording office
in the County in which the Premises are located.
2. The Mortgage, when executed and delivered by the Borrower, shall
constitute the valid and binding obligation of the Borrower, enforceable in
accordance with its terms, except as limited by liquidation, conservatorship,
insolvency, bankruptcy, reorganization, moratorium, the doctrine of commercial
reasonableness and other similar debtor relief statutes and case law of general
application affecting creditors' rights generally from time to time in effect,
applicable laws and judicial decisions that affect the availability of the
remedy of specific performance and the application of equitable principles, and
applicable federal and state laws, statutes, judicial decisions, ordinances,
rules and regulations that may modify, limit, render unenforceable or delay
certain rights and remedies of Lender, but which, in our opinion (except for the
economic consequences of any delay imposed by reason of the application or
interpretation of any such laws,
102
AT&T Credit Corporation
December 30, 1993
Page 3
statutes, judicial decisions, ordinances, rules and regulations), will not
render the Mortgage inadequate for the practical realization of the benefits
intended to be conferred by the Borrower to the Lender.
3. The Mortgage contains the terms and provisions necessary to
enable the Lender, following a default under the Mortgage, to foreclose in the
manner customarily available to a real estate lienholder under the laws of the
State.
4. No recording, filing, privilege or other tax must be paid in
connection with the execution, delivery, recordation or enforcement of the
Mortgage.
5. On the date the Mortgage is filed in the Chancery Clerk's office
for Xxxxxx County, Mississippi, and assuming that on the date of such filing no
mortgages, liens or encumbrances against the Premises are of record, and
further assuming the absence of knowledge of any mortgage, lien or other
encumbrances, then excluding both real estate taxes which are not then due and
payable and unmatured mechanic's liens, the Mortgage will create a valid and
continuing first lien and encumbrance against the Premises to secure the
Liabilities (as defined in the Mortgage), subject to no other mortgages, liens
or encumbrances. Our opinion with regard to the priority of the lien of the
Mortgage with respect to future advances is qualified in that (a) the lien on
any property acquired by the mortgagor after the filing of a federal tax lien
pursuant to Section 6323 of the Internal Revenue Code of 1986, as amended or a
lien of the Pension Benefit Guaranty Corporation pursuant to Section 4068 of
ERISA has priority over such tax lien or ERISA lien only if acquired before the
46th day following such filing and (b) such lien has priority over such tax
liens and ERISA liens only to the extent future advances are made before the
earlier of the 46th day after such tax liens or ERISA liens are filed or the
time that the Lender has actual notice or actual knowledge that such tax liens
or ERISA liens were filed.
6. The foreclosure of the Mortgage will not in any manner restrict,
affect or impair the Borrower's liability with respect to the indebtedness
secured thereby or the Lender's rights or remedies with respect to the
foreclosure or enforcement of any other security interests or liens securing
such indebtedness, to the extent of any deficiency. The Mortgagee's ability to
recover a deficiency judgment after foreclosure, as provided in Section 7 of
the Mortgage, is not absolute and will depend, among other things, on whether
all aspects of the foreclosure were commercially reasonable and whether a court
determines, under the particular facts and circumstances, that it would be
equitable to grant a deficiency. The amount of the deficiency, under decisional
law of the state, may be determined by reference to the fair market value
103
AT&T Credit Corporation
December 30, 1993
Page 4
of the property rather than by the amount bid at a foreclosure sale.
7. The law (statutory or otherwise) of the State of Mississippi does
not require a lienholder to make an election of remedies where such lienholder
holds security interests and liens on both the real and the personal property
of a debtor or to take recourse first or solely against its collateral.
8. If the law of the State of Mississippi were to govern the
legality of the interest and other amounts to be paid and received by the
Lender as compensation for the loans and other extensions of credit that are
secured by the Mortgage, the interest and other obligations secured by the
Mortgage would not be usurious under the laws of the State of Mississippi.
9. The Borrower does not have a right of redemption under the laws
of the State of Mississippi.
10. The Financing Statements are in proper form for filing and,
assuming that the Financing Statements have been duly executed and delivered by
the Borrower and have been filed in the recording offices noted on such
Financing Statements, the security interests intended to be created pursuant to
the Loan Agreement, to the extent that the filing of a financing statement in
the State of Mississippi is effective to perfect the security interests granted
in the Collateral, constitute perfected and continuing security interests under
the Uniform Commercial Code as adopted in the State.
11. The Fixture Filings are in proper form for filing and, assuming
that the Fixture Filings have been duly executed and delivered by the Borrower
and have been filed in the recording offices noted on such Fixture Filings, the
security interest intended to be created pursuant to the Loan Agreement in the
Borrower's fixtures constitute perfected security interests under the Uniform
Commercial Code as adopted in the State.
12. No approval by, authorization of, or filing with the State of
Mississippi, or any municipal or other governmental commission, board, agency
or other governmental authority that is a subdivision of the State of
Mississippi is necessary in connection with the execution and delivery of the
Loan Documents and the performance of the obligations thereunder. No additional
approval by, authorization of, or filing with the State of Mississippi, or any
municipal or other governmental commission, board, agency or other governmental
authority that is a subdivision of the State of Mississippi is necessary in
connection with the construction or operation of the System which was
originally authorized by the Mississippi Public Service Commission in the
Franchise Area other
104
AT&T Credit Corporation
December 30, 1993
Page 5
than municipal construction permits and immaterial business licenses. In giving
the opinion set forth in this paragraph 12, we have relied on the Special
Closing Certificate attached hereto.
We are admitted to the practice of law only in the State of Mississippi
and do not represent ourselves as being knowledgeable in the laws of any other
jurisdiction and, accordingly, this opinion should not be considered applicable
to any matters under the laws of any jurisdiction other than the United States
and the State of Mississippi.
This opinion letter is provided for the purposes of complying with
requirements of the Loan Documents referred to herein and this opinion may not
be relied upon by any person, firm or entity whatsoever other than the entity
addressed and its legal counsel without our prior written consent.
This opinion is rendered as of the date hereof, and we undertake no, and
hereby disclaim any, obligation to advise you of any changes in or developments
that might affect any matters or opinions set forth herein.
Sincerely,
BRUNINI, GRANTHAM, GROWER & XXXXX
/s/ XXXXX X. XXXXXX, XX
Xxxxx X. Xxxxxx, XX
105
EXHIBIT I-2
FORM OF OPINION OF BORROWER'S LOCAL COUNSEL
Attached.
-93-
106
[BRUNINI, GRANTHAM, GROWER & XXXXX LETTERHEAD]
December 30, 1993
AT&T Credit Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
RE: Loans to Mississippi-34 Cellular Corporation
Ladies and Gentlemen:
We have acted as counsel for Mississippi-34 Cellular Corporation, a
Mississippi corporation ("Borrower"), and Mercury, Inc., Xxxxx X. Xxxxxx, X. X.
Xxxxxx, Xx., Xxxxxx Xxxxxxx, Xxxxxxx X. Xxxxxxx, XX, Xxxxx Xxxxxxx, Xxxxxxx X.
Xxxxxxx, III and Xxxx X. Xxxxxx, III, the shareholders of Borrower's capital
stock (the "Shareholders"), in connection with the transactions evidenced by
the following documents of even date herewith:(i) that certain Loan and
Security Agreement ("Loan Agreement") between Borrower and AT&T Credit
Corporation ("Lender"), (ii) that certain Equipment Note executed by Borrower
and payable to Lender in the original principal amount of $2,138,836.03, (iii)
that certain Capital Note executed by Borrower and payable to Lender in the
original principal amount of $1,684,987.01, (iv) that certain Deed of Trust,
Security Agreement, Financing Statement and Assignment of Rents and Leases
("Mortgage") executed by the Borrower for the benefit of Lender with respect to
the real property located in Xxxxxx County, Mississippi, (v) Pledge Agreement
executed by the Shareholders for the benefit of Lender (the "Pledge"), (vi)
those certain UCC financing statements, copies of which have been provided to
us, and (vii) that certain Subordination Agreement executed by Cameron
Communications Corporation, Xxxxxxx Xxxxxxx, Xxxx X. Xxxxxx, III, Xxxxxxx
Xxxxxxx and Xxxxxx Xxxxxxx for the benefit of Lender, all as executed in
connection with the transactions contemplated by the foregoing. This opinion is
being delivered to you pursuant to Section 4.01(e) of the Loan Agreement.
Capitalized terms not otherwise defined herein shall have the meanings given to
such terms in the Loan Agreement.
In connection with this opinion we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the documents and
instruments listed in items (i) through (vi)
107
AT&T Credit Corporation
December 30, 1993
Page 2
above (such documents being hereinafter referred to, collectively, as the "Loan
Documents").
For the purposes of rendering this opinion we have also investigated
such questions of law and have examined such corporate documents or records of
the Borrower or the Shareholders, certificates and representations of public
officials and such other documents as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. In addition,
we have assumed (i) the genuineness of the signatures and authority of persons
signing all documents in connection with which this opinion is rendered, other
than the signatures of officers of the Borrower or the Shareholders, (ii) the
authenticity of all documents submitted to us as originals, (iii) the
conformity to authentic original documents of all documents submitted to us as
certified, conformed or photostatic copies, (iv) the power and authority of the
Lender to enter into and perform its obligations under the Loan Documents, and
(v) at least one of the Loans has been accomplished and funds advanced to the
Borrower in transactions substantially contemporaneous with the execution of
the Loan Documents. For purposes of this opinion "substantially
contemporaneous" means by overnight delivery of documents with funding upon
full execution of the Loan Documents.
Based upon the foregoing, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Mississippi and has all
requisite corporate power and authority to own and operate its properties and
to carry on its business as presently conducted and is qualified to do business
under the laws of the State of Mississippi.
2. The execution, delivery and performance by the Borrower of each
Loan Document to which it is a party are within the corporate power of the
Borrower, have been duly authorized by all necessary corporate action on the
part of the Borrower, and do not contravene (i) the Articles of Incorporation
or bylaws of the Borrower, or (ii) any law or regulation or, to the best of our
knowledge any order, writ, judgment, decree, determination or award presently
in effect having applicability to the Borrower.
3. To the best of our knowledge and belief there is no default by
Borrower, or any other party under any material contract, lease, agreement,
instrument or commitment to which Borrower is a party. We call to your
attention that Borrower has an outstanding loan with Deposit Guaranty National
Bank. It is our understanding that this obligation is to be paid from the
proceeds of your loan to Borrower.
108
AT&T Credit Corporation
December 30, 1993
Page 3
4. The Loan Documents to which the Borrower is a party have been duly
executed and delivered by the Borrower and each constitutes a legal, valid and
binding obligation of Borrower enforceable in accordance with its terms, except
as enforceability may be limited by liquidation, conservatorship, insolvency,
bankruptcy, reorganization, moratorium, the doctrine of commercial
reasonableness and other similar debtor relief statutes and case law of general
application affecting creditors' rights generally from time to time in effect,
applicable laws and judicial decisions that affect the availability of the
remedy of specific performance and the application of equitable principles, and
applicable federal and state laws, statutes, judicial decisions, ordinances,
rules and regulations that may modify, limit, render unenforceable or delay
certain rights and remedies of Lender, but which, in our opinion (except for
the economic consequences of any delay imposed by reason of the application or
interpretation of any such laws, statutes, judicial decisions, ordinances,
rules and regulations), will not render the Loan Documents inadequate for the
practical realization of the benefits intended to be conferred by the Borrower
to the Lender. We are aware that the Loan Agreement and the Pledge contain
provisions whereby such agreements will be governed by the laws of a state other
than Mississippi. In giving our opinion in this paragraph regarding the
enforceability of these agreements, we have assumed that the applicable laws of
such other state or states are the same as the laws of Mississippi.
5. The Pledge has been duly executed and delivered by the Shareholders
and constitutes the legal, valid and binding obligations of the Shareholders,
except as enforceability may be limited by liquidation, conservatorship,
insolvency, bankruptcy, reorganization, moratorium, the doctrine of commercial
reasonableness and other similar debtor relief statutes and case law of general
application affecting creditors' rights generally from time to time in effect,
applicable laws and judicial decisions that affect the availability of the
remedy of specific performance and the application of equitable principles, and
applicable federal and state laws, statutes, judicial decisions, ordinances,
rules and regulations that may modify, limit, render unenforceable or delay
certain rights and remedies of Lender, but which, in our opinion (except for
the economic consequences of any delay imposed by reason of the application or
interpretation of any such laws, statutes, judicial decisions, ordinances,
rules and regulations), will not render the Pledge inadequate for the practical
realization of the benefits intended to be conferred by the Borrower to the
Lender. We are aware that the Pledge contains provisions whereby such agreement
will be governed by the laws of a state other than Mississippi. In giving our
opinion in this paragraph regarding the enforceability of the Pledge we have
assumed that the applicable laws of such other state are the same as the laws
of Mississippi.
109
AT&T Credit Corporation
December 30, 1993
Page 4
6. Assuming Lender has given value and Borrower has rights in the
Collateral, the security interests in the Collateral granted in the Loan
Agreement are valid and continuing security interests in those items and types
of Collateral described in the Loan Agreement in which a security interest may
be created under Article 9 of the UCC as in effect in Mississippi. However, the
reference to "general intangibles" in Section 7.01 of the Loan Agreement is
likely too vague to create a security interest except to the extent any general
intangible is more specifically identified in Section 7.01 of the Loan
Agreement.
We have not made, or undertaken to make, any investigation of title to
the Collateral (real or personal) covered by the Loan Documents, or the
accuracy of any description thereof, and we express no opinion with respect
thereto. We understand that you are relying on other evidence of title to the
Collateral and that you have secured Certificates of Title as to real estate.
7. Assuming Lender has given value and the Shareholders own the
Pledged Stock, the Pledge creates valid and continuing security interests in
favor of Lender in the "Pledged Stock" as that term is defined in the Pledge,
and upon delivery of the Pledged Stock to the Lender, the Lender will have a
perfected first priority security interest in all the presently outstanding
Pledged Stock. No filing is required in Mississippi to perfect the security
interest in the Pledged Stock. Rather, perfection may be accomplished solely by
Lender's possession thereof.
8. No consent or approval or other action by, any United States
federal or state regulatory authority (other than the FCC or PUC with respect
to which you are receiving a separate opinion) or other person or entity which
has not been obtained or taken, is required, in connection with the execution,
delivery or performance of the Loan Documents by Borrower or the Shareholders.
9. To the best of our knowledge and belief Borrower has all material
licenses necessary for the operation of the Business and has otherwise complied
with all material laws and ordinances regulating or governing the operation of
Borrower's business, except to the extent that the failure to comply therewith
would not, in the aggregate, have a material adverse effect on the business,
operations, assets (taken in the aggregate) or present or prospective financial
condition of Borrower and would not materially adversely affect the ability of
Borrower to perform its obligations under the Loan Documents. We express no
opinion as to Borrower's compliance or non-compliance with any environmental
laws, rules, orders, regulations or agreements in connection with the conduct
of its business or ownership or use of its real or personal property or as to
any liability incurred or to be incurred as a result thereof.
110
AT&T Credit Corporation
December 30, 1993
Page 5
10. To the best of our knowledge, there is no pending or threatened
action, suit or proceeding against the Borrower or any of its assets or
properties before any court, governmental agency or arbitrator.
We express no opinion herein as to the enforceability of (a)
provisions which purport to confer self-help remedies or equitable remedies,
such as specific performance and injunctive relief, (b) provisions that purport
to establish evidentiary standards for suits or proceedings, (c) provisions for
waivers in advance by any party, (d) provisions for the granting of a power of
attorney by the Borrower, (e) provisions providing for indemnity to the extent
such provisions provide for indemnity other than as a result of acts or
omissions of Borrower, consent judgments or delay or omission of enforcement of
remedies, (f) provisions regarding consent to jurisdiction or venue, (g)
provisions relating to the appointment of a receiver, to the extent the
appointment of a receiver is governed by applicable statutory requirements and
decisional law and to the extent any such provision may not be in compliance
with any statutory requirements or decisional law, or (h) provisions
restricting oral modification or termination of any agreement.
Whenever our opinion herein with respect to the existence or absence
of facts is indicated to be "to the best of our knowledge," it is intended to
signify that during the course of our representation of the Borrower no
information has come to our attention which would give us actual knowledge
contrary to such statement. However, except to the extent expressly set forth
herein, we have not undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to our knowledge of the
existence or absence of such facts should be drawn from our representation of
the Borrower.
We are admitted to the practice of law only in the State of
Mississippi and do not represent ourselves as being knowledgeable in the laws
of any other jurisdiction and, accordingly, this opinion should not be
considered applicable to any matters under the laws of any jurisdiction other
than the United States and the State of Mississippi.
This opinion letter is provided for the purposes of complying with
requirements of the Loan Documents referred to herein and this opinion may not
be relied upon by any person, firm or entity whatsoever other than the entity
addressed and its legal counsel without our prior written consent.
This opinion is rendered as of the date hereof, and we undertake no,
and hereby disclaim any, obligation to advise you of
111
AT&T Credit Corporation
December 30, 1993
Page 6
any changes in or developments that might affect any matters or opinions set
forth herein.
Sincerely,
BRUNINI, GRANTHAM, GROWER & XXXXX
/s/ XXXXX X. XXXXXX, XX
Xxxxx X. Xxxxxx, XX
JTT,IV:tsw/cmm
112
EXHIBIT I-3
FORM OF OPINION OF BORROWER'S SPECIAL COUNSEL
AT&T Credit Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Re: Loans to Mississippi-34 Cellular Corporation
Ladies and Gentlemen:
We have acted as special regulatory counsel for Mississippi-34 Cellular
Corporation, a Mississippi corporation ("Borrower"), in connection with the
execution and delivery of the following documents of even date herewith: (i)
that certain Loan and Security Agreement ("Loan Agreement") between Borrower
and AT&T Credit Corporation ("Lender"), (ii) that certain Equipment Note
executed by the Borrower and payable to Lender in the original principal amount
of $______________, (iii) that certain Capital Note executed by the Borrower and
payable to Lender in the original principal amount of $___________, and (iv)
the other documents, instruments and agreements, including without limitation,
UCC financing statements, executed in connection with the transactions
contemplated by the foregoing.
This opinion is being delivered to you pursuant to Section
4.01(e) of the Loan Agreement. Capitalized terms not otherwise defined herein
shall have the meanings given to such terms in the Loan Agreement.
In connection with this opinion we have examined originals or
copies, certified or otherwise identified to our satisfaction, of the documents
and instruments listed in items (i) through (v) above (such documents being
hereinafter referred to, collectively, as the "Loan Documents").
We have assumed (i) the genuineness of all signatures, the
authenticity of documents submitted to us as originals, the authority of
persons signing all documents in connection with which this opinion is
rendered, and, the conforming to authentic original documents of all documents
submitted to us as certified, conformed, or photostatic copies; (ii) the
correctness of public files, records and certificates of, or furnished by,
governmental or regulatory agencies or authorities; and (iii) the power and
authority of the Borrower and the Lender to enter into and perform their
respective obligations under the Loan Documents.
-95-
113
This opinion is based upon an examination of the rules,
regulations, documents, certificates, public files and records of the Federal
Communications Commission (the "FCC") and the Loan Documents. In rendering the
opinions herein, we have considered duly the Communications Act of 1934, as
amended, and the rules and regulations promulgated thereunder (collectively,
the "Act") as they relate to the regulation of the Borrower as a provider of
telecommunication and telephone services.
Based on the foregoing and subject to the limitations set forth
herein, we are of the opinion that:
1. No consent, approval or other action by the FCC which has not
been obtained or taken, is required for the execution, delivery or performance
of any of the Loan Documents, except for the possible future actions
contemplated in the Loan Documents affecting ownership of the Borrower or
control of the Operating Licenses.
2. To the best of our knowledge and belief following diligent
inquiry, Borrower has obtained all FCC licenses and permits necessary for the
construction and operation of the System, and has otherwise complied with all
applicable FCC rules and regulations.
3. Neither the transactions contemplated by the Loan Documents
nor the execution and delivery of the Loan Documents by the Borrower are in
violation or contravention of any FCC rules or regulations presently in effect
having applicability to the Borrower.
The information set forth herein is as of the date hereof. We
assume no obligation to advise you of changes which may thereafter be brought
to our attention. Our opinions are based on statutory laws, judicial decisions
and published administrative rules, regulations and advisory opinions that are
effective on the date hereof, and we do not opine with respect to any law,
regulation, rule or governmental policy which may be enacted or adopted after
the date hereof, nor assume any responsibility to advise you of future changes
in our opinions.
This opinion is furnished by us, as counsel for Borrower, to you,
your successors and assigns, and any subsequent holder of any promissory notes
for your benefit and their benefit and solely in connection with the subject
transactions, upon the understanding that we are not hereby assuming
professional responsibility to any other person whatsoever. This opinion may
not be relied on by nor copies delivered to any other person without our prior
written consent.
Very truly yours,
-96-
114
EXHIBIT J
FORM OF
ENDORSEMENT
LENDER'S LOSS PAYABLE CLAUSE
Attached to and forming part of Policy No._____________ of the
[Name of Insurance Co.] ("Company") issued at its _______________ Agency to
Mississippi-34 Cellular Corporation ("Insured"). Dated ___________.
Loss, if any, under this policy shall be payable to AT&T Credit
Corporation ("Lender") whose address is 0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000, as lender, mortgagee, or trustee, as its interest may appear.
It is understood that Lender now has or will acquire from time to
time an insurable interest in certain property insured under this policy as
established by warehouse receipts, bills of lading, documentary of other
written evidence.
This insurance, solely as to the interest therein of Lender,
shall not be impaired or invalidated by any act or neglect of the Insured,
mortgagor or owner of the within described property, nor by any change in the
title or ownership of the property, nor by the occupation of the premises
wherein such property is located for purposes more hazardous than are permitted
by this policy; provided that in case the Insured, mortgagor or owner shall
neglect to pay any premium under this policy, Lender shall, on demand, pay the
same.
Provided, also that Lender shall notify this Company of any
change of ownership or occupancy or increase of hazard which shall come to the
knowledge of Lender and, unless permitted by this policy, it shall be noted
thereon and Lender shall, on demand, pay the premium for such increased hazard
for the term of the use thereof; otherwise, this policy shall be null and void.
This Company reserves the right to cancel this policy at any time
as provided by its terms, but in such case this policy shall continue in force
for the benefit only of Lender for thirty (30) days after written notice of
such cancellation to lender at the address set forth above and shall then
cease, and this Company shall have the right, on like notice, to cancel this
agreement.
Whenever this Company shall pay Lender any sum for loss or damage
under this policy and shall claim that, as to the Insured, mortgagor or owner
no liability thereof existed, this
-97-
115
Company shall, to the extent of such payment, be thereupon legally subrogated
to all the rights of the party to whom such payment shall be made, under all
securities held as collateral for the debt, or may, at its option, pay Lender
the whole principal due or to grow due on the debt with interest, and shall
thereupon receive a full assignment and transfer of the debt and of the
mortgage and of all such other securities as evidence the interest of Lender in
the within described property; but no subrogation shall impair the right of
Lender to recover the full amount of its claim against the Insured, mortgagor
or owner.
All other terms and conditions of the policy to which this
Endorsement is attached and of which it is a part, remain unchanged, which
other terms and conditions include the limit(s) of liability named in the
policy and the conditions of any Value Reporting, Full Reporting, Total
Insurance, Coinsurance, Reduced Rate Contribution or Average Clauses
incorporated therein or attached thereto.
It is hereby understood and agreed that (i) the policy to which
this Endorsement is attached will not be changed in any way which may affect
Lender's rights under this policy without prior written notice to Lender at the
address set forth above and (ii) that the Company will provide Lender with
written notice at such address of any expiration of this policy or any failure
by the Insured to renew this policy at the relevant intervals under the terms
of the policy within five (5) business days of such expiration or failure to
renew.
----------------------------
Agent
-98-
116
EXHIBIT K
FORM OF
RESTRICTED ACCOUNT AGREEMENT
TO: AT&T Credit Corporation, as lender (the "Lender"), under that certain
Loan and Security Agreement, dated as of December 20, 1993 (the "Loan
Agreement"), between the Lender and Mississippi-34 Cellular Corporation,
a Mississippi corporation (the "Borrower").
RE: Account Nos. ____________ of the Borrower maintained with Deposit
Guaranty National Bank (the "Bank").
This will confirm that the Borrower and the Bank have agreed as
follows with respect to the above referenced accounts (such accounts and all
other bank accounts now or hereafter maintained at the Bank by, or for the
deposit, credit or custody of property of the Borrower are herein collectively
called the "Accounts" and individually called an "Account"):
1. The Borrower and the Bank acknowledge and confirm that all
funds, items, instruments, investments, securities and other things of
value at any time paid, deposited, credited or held (whether for
collection, provisionally or otherwise) now or at any time hereafter in
the Accounts and all of the Borrower's rights regarding the Accounts
constitute part of the collateral in which the Borrower has granted a
security interest to the Lender, to secure the Borrower's obligations
under the Loan Agreement and the other "Loan Documents" (as defined in
the Loan Agreement), and that the Lender holds a security interest
therein.
2. The Bank shall not assert, claim or endeavor to exercise any
existing and future rights of setoff and banker's liens against the
Accounts and all items and proceeds thereof that come into the Bank's
possession in connection with the Accounts, provided however that the
Bank shall retain its right to charge the Accounts (a) subject to
Paragraph 4 below, for all items deposited in and credited to the
Accounts after the date hereof which are subsequently returned to the
Bank, and (b) for any and all compensation and expenses and other sums
owing by Borrower to the Bank with respect to the Accounts or the
provision of balance reporting and other similar services related to the
Accounts.
3. The Bank will take the following actions upon written notice
("Notice") by the Lender that an "Event of Default" (as defined in the
Loan Agreement) exists:
-99-
117
A. Until the Bank shall have received a "Clearance" (as
defined below), the Bank will (and, in the event of such a Notice,
the Borrower hereby irrevocably authorizes and instructs the Bank
to) cease honoring all drafts, demands, withdrawal requests or
remittance instructions by the Borrower, whether made before or
after the Notice.
B. Until the Bank shall have received a clearance, the Bank
will hold solely for the account of the Lender all funds which may
be on deposit in the Accounts at the time of the Notice and all
funds thereafter deposited to such Accounts, and the Bank will
remit all such funds (subject to Paragraph 2 above) directly to
the Lender, as soon as the funds are collected, by electronic
transfers to such account at such address as the Lender shall in
the Notice indicate, or in such other manner as the Lender may
from time to time thereafter instruct the Bank in writing. After
such a Notice is made, and until a Clearance is received by the
Bank, the Lender shall have sole control over the Accounts and the
sole right to exercise and enforce all rights and remedies with
respect thereto. For the purposes of this Agreement, a "Clearance"
shall be a written notice from the Lender to the Bank that an
Event of Default no longer exists. Each Notice and Clearance shall
be effective when it is received by the Bank in writing at the
address and to the attention of the person as set forth below (or
at such other address or to the attention of such other person as
the Bank may specify by written notice received by the Lender and
the Borrower) and when the Bank has had a reasonable time, based
on the same standards as those applicable to payment and stop
payment instructions generally, to act thereon.
4. Checks returned unpaid because of uncollected or insufficient
funds shall be handled in accordance with the Bank's customary policies
and procedures. The Bank shall be entitled to charge the amount of any
check returned unpaid because of uncollected or insufficient funds
against the Account. The Bank will notify the Lender and the Borrower of
all items deposited which are returned a second time for any reason. If
there are insufficient funds in the Account to cover said checks, the
Bank shall make demand directly upon the Borrower for reimbursement. If,
at any time after the Bank has received a Notice and prior to any time
the Bank has received a Clearance with respect to such Notice, (i) the
Borrower fails to reimburse the Bank for the amount of any such returned
check within three (3) days of the Bank's demand therefor and (ii) the
Bank has remitted the funds in the Account to the Lender in accordance
with the provisions of Paragraph 3B above, then the Bank shall make
demand on the Lender for reimbursement for the amount of any
-100-
118
such returned check, and the Lender agrees to reimburse the Bank for the
amount of such check upon demand, provided that funds representing the
amount of such returned check were included in the Bank's remittance to
the Lender. The provisions of this Paragraph shall survive the
termination of this Agreement.
5. The Bank will send to the Lender, at the address set forth
below, on a semi-annual basis, copies of the periodic statements for the
Accounts during the preceding six month period.
6. This Agreement is binding upon the Bank and the Borrower and
their respective successors and assigns and is enforceable by the Lender
and its successors and assigns. It supersedes all prior agreements
relating to the Accounts, and it may not be modified or terminated
except with the Lender's written consent. The Bank and the Borrower
waive notice of acceptance hereof and of any action taken or omitted in
reliance hereon.
7. This Agreement may be executed in any number of counterparts
and by the parties hereto on separate counterparts, and each such
counterpart shall be deemed an original, but all such counterparts when
taken together shall constitute but one and the same agreement.
DATED: , 1993
----------------------------
MISSISSIPPI-34 CELLULAR
CORPORATION
Xxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxx Xxxxxxx, XX 00000
Attn:
----------------------------
Telecopier No.:
Telephone No.:
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
-101-
119
DEPOSIT GUARANTY NATIONAL BANK
Post Office Box 11200
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx,
Account officer
Telecopier No:
Telephone No.:
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
AT&T CREDIT CORPORATION
c/o AT&T Capital Corporation
Capital Markets Division
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Operations Manager
Telecopier No: (000) 000-0000
Telephone No.: (000) 000-0000
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
-102-
120
EXHIBIT L
FORM OF LANDLORD WAIVER
To: AT&T Credit Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Mississippi-34 Cellular corporation, a Mississippi corporation
("Borrower"), is the lessee under that certain ______________________ dated
__________________ (the "Lease") between Borrower and the undersigned covering a
_______________ Parcel located in ________________, (the "Premises") more fully
described in the Lease which is attached hereto as Exhibit A ("Lease"). The
undersigned is the sole owner of the Premises. Borrower has certain of its
assets located on the Premises.
Borrower has entered into certain financing arrangements with
AT&T Credit Corporation ("Lender") and, as a condition to Lender's loans to
Borrower, Lender requires, among other things, liens on all of Borrower's
property located on the Premises ("Collateral").
To induce Lender (together with its agents and assigns to
enter into said financing arrangements, and for other good and valuable
consideration, the undersigned hereby agrees that:
(i) it will not assert against any of Borrower's assets
any statutory or possessory liens, including, without limitation,
rights of levy or distraint for rent, all of which it hereby
waives;
(ii) none of the Collateral located on the Premises shall
be deemed to be fixtures;
(iii) it will notify Lender if Borrower defaults on its
lease obligations to the undersigned and allow Lender fifteen
(15) days from its receipt of notice in which to cure or cause
Borrower to cure any such defaults;
(iv) if, for any reason whatsoever, the undersigned either
deems itself entitled to redeem or to take possession of the
Premises during the term of Borrower's lease or intends to sell
or otherwise transfer all or any part of its interest in the
Premises, the undersigned will notify Lender fifteen (15) days
before taking such action;
-103-
121
(v) if Borrower defaults on its obligations to Lender and,
as a result, Lender undertakes to enforce its security interest
in the Collateral, the undersigned will cooperate with Lender in
its efforts to assemble all of the Collateral located on the
Premises, will permit Lender to remain on the Premises for
forty-five (45) days after Lender declares the default, provided
Lender pays the rental payments due under the Lease for the
period of time Lender uses the Premises, or, at Lender's option,
to remove the Collateral from the Premises within a reasonable
time, not to exceed forty-five (45) days after Lender declares
the default, provided Lender pays the rental payments due under
the Lease for the period of time Lender uses the Premises, and
will not hinder Lender's actions in enforcing its liens on the
Collateral.
Any notice(s) required or desired to be given hereunder
shall be directed to the party to be notified at the address stated
herein.
The agreements contained herein shall continue in force
until all of Borrower's obligations and liabilities to Lender are paid
and satisfied in full and all financing arrangements between Lender and
Borrower have been terminated.
The undersigned will notify all successor owners,
transferees, purchasers and mortgagees of the existence of this waiver.
The agreements contained herein may not be modified or terminated orally
and shall be binding upon the successors, assigns and personal
representatives of the undersigned, upon any successor owner or
transferee of the Premises, and upon any purchasers, including any
mortgagee, from the undersigned.
Executed and delivered this _________ day of __________,
1993, at ___________________________.
Witness: -------------------------------------
By:
-------- ----------------------------------
Its:
--------------------------------
Address:
----------------------------
-------------------------------------
-------------------------------------
[Add acknowledgment if to be recorded)
-104-
122
EXHIBIT M
FORM OF REAL PROPERTY LETTER
December __, 1993
AT&T Credit Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Re: Future Property Acquisitions
Ladies and Gentlemen:
Reference is made to that certain Loan and Security Agreement
between us of even date herewith. Our plans for leasing additional real estate
sites are as follows:
Xxxxxxx City May, 1994
Armory June, 1994
Aberdeen June, 1994
Houston June, 1994
There are no plans for purchasing additional real estate sites.
Very truly yours,
MISSISSIPPI-34 CELLULAR
CORPORATION
By:
--------------------------------
Its:
-------------------------------
-105-
123
EXHIBIT N
FORM OF MONTHLY REPORT
Month Month Month Month Month Month
1 2 3 4 5 6
Customers
Beginning of Period 0 0 0 0 0 0
Gross Additions 0 0 0 0 0 0
Less: Disconnects 0 0 0 0 0 0
----- ----- ----- ----- ----- -----
End of Period 0 0 0 0 0 0
Revenue
Service Activation (one time) 0 0 0 0 0 0
Monthly Service & Airtime 0 0 0 0 0 0
Other 0 0 0 0 0 0
----- ----- ----- ----- ----- -----
Total Xxxxx Xxxxxxx 0 0 0 0 0 0
Xxxxxxx - Xxxxxxx Systems 0 0 0 0 0 0
Equipment Sales & Installation 0 0 0 0 0 0
Rental Phones 0 0 0 0 0 0
----- ----- ----- ----- ----- -----
Total Gross Revenue 0 0 0 0 0 0
Expenses
Plant Operations 0 0 0 0 0 0
General & Administrative 0 0 0 0 0 0
Sales & Marketing 0 0 0 0 0 0
Total Sales & Marketing 0 0 0 0 0 0
Management Fees 0 0 0 0 0 0
Other 0 0 0 0 0 0
----- ----- ----- ----- ----- -----
Total Expenses 0 0 0 0 0 0
Changes in Working Capital 0 0 0 0 0 0
Cash Flow from Operations 0 0 0 0 0 0
Capital Expenditures
MTSO Equipment 0 0 0 0 0 0
Cell Site Equipment 0 0 0 0 0 0
Install, O.E.M., & Eng. 0 0 0 0 0 0
Other Fixed Assets 0 0 0 0 0 0
-106-
124
EXHIBIT 0
FORM OF QUARTERLY REPORT
Quarter Quarter Quarter Quarter
1 2 3 4
CUSTOMER STATISTICS
Total RSA Subscriber Estimate 0 0 0 0
Assumed Market Share (quarter end) 0% 0% 0% 0%
Customers
Beginning of Period 0 0 0 0
Gross Additions 0 0 0 0
Less Disconnects 0 0 0 0
--------- -------- -------- ---------
End of Period 0 0 0 0
Subscriber Usage
Average Local Airtime 0 0 0 0
Peak Airtime 0.0% 0.0% 0.0% 0.0%
Offpeak Airtime 0.0% 0.0% 0.0% 0.0%
Voice Mail & Paging 0.0% 0.0% 0.0% 0.0%
Other (CFW/CWT/3PC/RmAm) 0.0% 0.0% 0.0% 0.0%
Non-Subscriber Usage
Roaming Airtime 0 0 0 0
Basic System Charges
Service Activation (one time) $0 $0 $0 $0
Monthly Service Charge $0.00 $0.00 $0.00 $0.00
Voice Mail Box & Paging $0.00 $0.00 $0.00 $0.00
Other (CFW/CWT/3PC/RmAm) $0.00 $0.00 $0.00 $0.00
Airtime Charges
Peak Airtime Rate $0.00 $0.00 $0.00 $0.00
Offpeak Airtime Rate $0.00 $0.00 $0.00 $0.00
Weighted Average per minute $0.00 $0.00 $0.00 $0.00
Roamer Rate (out-collect) $0.00 $0.00 $0.00 $0.00
Other Service Rates $0.00 $0.00 $0.00 $0.00
Cellular Telephone Sales
Total Units Sold 0 0 0 0
New Customer % Buying Phones 0.0% 0.0% 0.0% 0.0%
Average Selling Price $0 $0 $0 $0
Average Cost of Unit $0 $0 $0 $0
New Customer % Installing Phones 0.0% 0.0% 0.0% 0.0%
Average Installation Price $0 $0 $0 $0
Average Cost of Installation $0 $0 $0 $0
-107-
125
Cellular Telephone Rentals
Phones Rented per Month 0 0 0 0
Monthly Rental Charge $0.00 $0.00 $0.00 $0.00
REVENUE STATISTICS
Revenue/Customer/Month $0 $0 $0 $0
Average Cellular Xxxx - Local $0 $0 $0 $0
Average Cellular Xxxx - Keeper $0 $0 $0 $0
COST STATISTICS
Cost to Add Gross Customer
Plant Operations $0 $0 $0 $0
General Administrative $0 $0 $0 $0
Sales & Marketing $0 $0 $0 $0
--------- -------- -------- ---------
Total Cost to Add a Customer $0 $0 $0 $0
CAPITAL EXPENDITURES
Cell Sites 0 0 0 0
Electronics 0 0 0 0
Tower 0 0 0 0
Buildings/land 0 0 0 0
Other 0 0 0 0
MTSO 0 0 0 0
ECP 0 0 0 0
IMS 0 0 0 0
DCS 0 0 0 0
Other 0 0 0 0
T-1 Lines 0 0 0 0
Microwave Equip 0 0 0 0
Other 0 0 0 0
--------- -------- -------- ---------
Total 0 0 0 0
-108-
126
SCHEDULE 1.01
TO
LOAN AGREEMENT DATED DECEMBER 20, 1993
MORTGAGES
1. Deed of Trust, Security Agreement, Financing Statement and Assignment
of Rents and Leases for Borrower's property located in Xxxxxx County,
Mississippi.
-109-
127
SCHEDULE 3.02
TO
LOAN AGREEMENT DATED DECEMBER 20, 1993
GOVERNMENTAL CONSENTS
None.
-110-
128
SCHEDULE 3.05
TO
LOAN AGREEMENT DATED DECEMBER 20, 1993
PENDING LITIGATION
None.
-111-
129
SCHEDULE 3.10
TO
LOAN AGREEMENT DATED DECEMBER 20, 1993
COMPLIANCE WITH LAWS
None.
-112-
130
SCHEDULE 3.11
TO
LOAN AGREEMENT DATED DECEMBER 20, 1993
ERISA
None.
-113-
131
SCHEDULE 3.14
TO
LOAN AGREEMENT DATED DECEMBER 20, 1993
FINANCING STATEMENTS FILED AGAINST THE BORROWER
Secretary of State Bolivar County Chancery Clerk
of Mississippi Post Xxxxxx Xxx 000
Xxxx Xxxxxx Xxx 000 Xxxxxxxxx, XX 00000
Xxxxxxx, XX 00000-0000
Chickasaw County Chancery Clerk
Xxxxxxx County Chancery Clerk Highway 8 and 00
Xxxx Xxxxxx Xxx 0 Xxxxxxx, XX 00000
Xxxxxxxxx, XX 00000
Xxxxxx County Chancery Clerk
Grenada County Chancery Clerk Post Xxxxxx Xxx 000
Xxxxxxxxxx Xxxxxxxxx, XX 00000
Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxx Xxxxxx Chancery Xxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxx Xxxxxx Chancery Clerk Xxxxxxxx, XX 00000
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, XX 00000 Yalobusha County Chancery Clerk
Post Office Box 260
Sunflower County Chancery Clerk Xxxxxxxxxxx, XX 00000
Xxxx Xxxxxx Xxx 000
Xxxxxxxxx, XX 00000
Calcasieu Parish,
Louisiana
-114-
132
SCHEDULE 3.17
TO
LOAN AGREEMENT DATED DECEMBER 20, 1993
INSURANCE
See Attached Certificate of Insurance
-115-
133
================================================================================
ISSUE DATE(MM/DD/YY)
[ACCORD LOGO] [CERTIFICATE OF INSURANCE] 12/20/93
================================================================================
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF
INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE
Xxxx & Xxxxxx CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT
P. O. Box 1139 AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY
1600 Capital Towers THE POLICIES BELOW.
Xxxxxxx, XX 00000 ----------------------------------------------------
COMPANIES AFFORDING COVERAGE
----------------------------------------------------
COMPANY A INSURANCE COMPANY OF NORTH AMERICA
LETTER
----------------------------------------------------
COMPANY B
--------------------------- LETTER
INSURED ----------------------------------------------------
COMPANY C
Mississippi - 34 Cellular LETTER
Corporation ----------------------------------------------------
c/o Mercury, Inc. COMPANY D
X.X. Xxx 0000 XXXXXX
Xxxx Xxxxxxx, XX 00000 ----------------------------------------------------
COMPANY E
LETTER
================================================================================
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED
TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO
WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY
THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND
CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
--------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
POLICY EFFECTIVE POLICY EXPIRATION LIMITS
TYPE OF INSURANCE POLICY NUMBER DATE(MM/DD/YY) DATE(MM/DD/YY)
------------------------------------------------------------------------------------------------------------------------------------
GENERAL LIABILITY GPPD2815012A 09/14/93 09/14/94 GENERAL AGGREGATE $1,000,000
------------------------------------
/X/ COMMERCIAL GENERAL LIABILITY PRODUCTS - COMP/OP AGG. $1,000,000
------------------------------------
/ / CLAIMS MADE /X/ OCCUR. PERSONAL & ADV. INJURY $1,000,000
------------------------------------
/ / OWNER'S & CONTRACTOR'S PROT. EACH OCCURRENCE $1,000,000
------------------------------------
FIRE DAMAGE (Any one fire) $50,000
------------------------------------
MED. EXPENSE (Any one person) $5,000
====================================================================================================================================
AUTOMOBILE LIABILITY GPPD2815012A 09/14/93 09/14/94 COMBINED SINGLE LIMIT $1,000,000
------------------------------------
/ / ANY AUTO BODILY INJURY
/ / ALL OWNED AUTOS (Per Person) $
/ / SCHEDULED AUTOS ------------------------------------
/ / HIRED AUTOS BODILY INJURY
/X/ NON-OWNED AUTOS (Per accident) $
/ / GARAGE LIABILITY ------------------------------------
PROPERTY DAMAGE $
------------------------------------------------------------------------------------------------------------------------------------
EXCESS LIABILITY XCPG16636290 09/14/93 09/14/94 EACH OCCURRENCE $4,000,000
------------------------------------
/X/ UMBRELLA FORM AGGREGATE $4,000,000
/ / OTHER THAN UMBRELLA FORM ------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
WORKER'S COMPENSATION STATUTORY LIMITS
AND ------------------------------------
EMPLOYERS' LIABILITY EACH ACCIDENT $
------------------------------------
DISEASE-POLICY LIMIT $
------------------------------------
DISEASE-EACH EMPLOYEE $
------------------------------------------------------------------------------------------------------------------------------------
OTHER Property GPPD2815012A 09/14/93 09/14/94 Greenwood Switch
Replacement Cost Limit, each site $1,634,922
Business Income $253,722 $250 Deductible
15 Days Deduct. $200,000 Limit
------------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
Certificate holder is loss payee and additional insured in regard to
(See Attached Schedule.)
====================================================================================================================================
CERTIFICATE HOLDER CANCELLATION
====================================================================================================================================
AT&T Credit Corp. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
c/o AT&T Capital Corp./Capital EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL
Attn: Xxxxxxx Xxxxxxx 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
Markets Division BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR
Whittany Road LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
Xxxxxxxxxx, XX 00000-0000 ----------------------------------------------------------------------
AUTHORIZED REPRESENTATIVE
/s/ ILLEGIBLE
====================================================================================================================================
134
================================================================================
DESCRIPTIONS (CONTINUED FROM PAGE 1)
================================================================================
leased equipment with waiver of subrogation attached
**Cancellation clause is amended to read: Should any of the above described
policies be cancelled before the expiration date thereof, the issuing company
will mail 30 days written notice to the certificate holder.
================================================================================
135
--------------------------------------- -------------------------------------- -----------------------------
Client Name and Address Company Agency Name and Address
Mississippi - 34 Cellular Insurance Company of Nort Ross & Xxxxxx
Corporation -------------------------------------- P. O. Box 1139
c/o Mercury, Inc. Policy Number 1600 Capital Towers
P. O. Box 3709 GPPD2815012A Xxxxxxx, XX 00000
Xxxx Xxxxxxx, XX 00000 -------------------------------------- -----------------------------
--------------------------------------- Effective Date Expiration Date
--------------------------------------
09/14/93 09/14/94
--------------------------------------
======================================================================================================================
Sch# Item # Schedule / Item Description Value Date Off
======================================================================================================================
1 Cellular Telephone System Supplement - Total Limits
1 000 Xxxxx Xxxx, Xxxxxxx, XX 253,722
2 613 (505) Tallahatchie Street, Greenwood, MS 253,722
3 0000 XX Xxxxxx Xxxxx, Xxxxxxx, XX 253,722
4 1321 AA Sunset Plaza, Grenada, MS 253,722
5 Greenwood, MS 253,722
6 Indianola, MS 253,722
7 Cleveland, MS 253,722
8 Xxxxxx, MS NO VALUE YET 0
9 Oakland, MS 253,722
00 Xxxxxx Xxxxxxxx, Xxxxxxxxx, XX 1,634,922
Total value: 3,664,698
======================================================================================================================
136
SCHEDULE 3.20
TO
LOAN AGREEMENT DATED DECEMBER 20, 1993
REAL PROPERTY, LEASES AND EASEMENTS
OWNED REAL PROPERTY
One Parcel in Xxxxxx County, Mississippi
LEASED REAL PROPERTY
1. Bolivar County, Mississippi
2. Grenada County, Mississippi (Radio Tower and Office Site)
3. Xxxxxxx County, Mississippi
4. Sunflower County, Mississippi
5. Yalobusha County, Mississippi
137
SCHEDULE 7.04
TO
LOAN AGREEMENT DATED DECEMBER 20, 1993
COLLECTION ACCOUNTS
Sunburst Bank Grenada
Attention: Xxxx Xxxxxx
Assistant Vice-President
Xxxx Xxxxxx Xxx 000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 00000000
ACCOUNT NUMBER: 00000000-83
Calcasieu Marine National Bank
Attention: Xxxx Xxxxx
Xx. Vice-President
Xxxx Xxxxxx Xxx 0000
Xxxx Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
ACCOUNT NUMBER: 00-000000-00
-117-
