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EXHIBIT 4.10
LOAN NO. T0310
LOAN NO. T0347
AMENDED AND RESTATED ACT OF SUBORDINATION
BEFORE ME, the respective undersigned Notaries Public, and in the
presence of the witnesses hereinafter named and undersigned, personally came
and appeared the parties listed below, who, after being duly sworn, did state:
THIS AMENDED AND RESTATED ACT OF SUBORDINATION (this "Agreement") is
made and entered into as of May 15, 1996, by CAMERON TELEPHONE COMPANY
("Cameron Telephone") and MISSISSIPPI ONE CELLULAR TELEPHONE COMPANY
("Mississippi One"), in favor of COBANK, ACB, formerly known as the National
Bank for Cooperatives ("CoBank"), and amends and restates that certain Act of
Subordination, dated as of September 27, 1994, among Cameron Telephone,
Mississippi One and CoBank.
NOW, THEREFORE, in consideration of the foregoing, and intending to be
legally bound hereby, Cameron Telephone, Mississippi One and CoBank hereby
agree as follows:
SECTION 1. SUBORDINATION OF DEBT. Cameron Telephone and Mississippi
One agree that all obligations of Mississippi One to Cameron Telephone, whether
direct or indirect, absolute or contingent, secured or unsecured, due or to
become due, now existing or hereafter arising, including, without limitation,
(i) that certain Collateral Mortgage Note, dated April 14, 1993, drawn by
Mercury Inc. ("Mercury") to the order of bearer, in the face principal amount
of $5,000,000, and assumed by Mississippi One pursuant to that certain Act of
Sale, dated as of August 31, 1994, between Mercury and Mississippi One (the
"Assumption Agreement"); and (ii) that certain Note, dated April 14, 1993,
drawn by Mercury to the order of Cameron Telephone, in the face principal
amount of $2,729,924.84, and assumed by Mississippi One pursuant to the
Assumption Agreement (all such obligations, collectively, the "Subordinated
Debt"), are and shall be subordinate in payment and right of payment to the
prior payment in full of all obligations of Mississippi One to CoBank, whether
direct or indirect, absolute or contingent, secured or unsecured, due or to
become due, now existing or hereafter arising, principal, interest (accruing
both before and after any default by, or insolvency or bankruptcy of,
Mississippi One) or other cost or charge, including, without limitation, all
obligations hereafter arising under that certain Amended and Restated
Continuing Guaranty, dated as of even date herewith (as the same may be
amended, modified, supplemented, extended or restated from time to time, the
"Mississippi One Guaranty"), made by Mississippi One for the benefit of CoBank
(all such obligations, collectively, the "CoBank Debt"). For purposes of this
Agreement, the CoBank Debt shall not be deemed to have been paid in full until
all loan agreements between CoBank and Mississippi One or any affiliate of
Mississippi One if, with respect to such affiliate, Mississippi One has
guaranteed the affiliate's obligations under such loan
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Amended and Restated Act of
Subordination/Cameron Telephone
Loan ▇▇. ▇▇▇▇▇
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agreements, including, without limitation, that certain Amended and Restated
Loan Agreement, dated as of even date herewith, providing for a loan of up to
$17,400,000, and that certain Loan Agreement, dated as of even date herewith,
providing for a loan of up to $5,000,000, all by and between CoBank and CTC
Financial, Inc. (the foregoing loan agreements, collectively, the "Loan
Agreements"), shall have been terminated and CoBank shall have received
irrevocable payment of the CoBank Debt in immediately available funds or in
another manner satisfactory to CoBank. Cameron Telephone agrees not to ask,
demand, ▇▇▇ for, take or receive from Mississippi One, directly or indirectly,
in cash or other property or by set-off or in any other manner, payment of or
collateral for the payment of all or any of the Subordinated Debt unless or
until the CoBank Debt shall be paid in full and, without the prior written
consent of CoBank, will not exercise any remedies available to it, whether by
agreement, law or equity or otherwise, in respect to the nonpayment of the
Subordinated Debt, including, without limitation, the acceleration of the
Subordinated Debt.
SECTION 2. PRIORITIES OF SECURITY INTERESTS.
▇. ▇▇▇▇▇▇▇ Telephone hereby subordinates any and all security
interests or liens it may now have or hereafter obtain or reserve with respect
to any property or rights of Mississippi One (the "Collateral"), including,
without limitation, the security interests created pursuant to that certain
Deed of Trust, Security Agreement and Fixture Filing entered into by Mercury
for the benefit of Cameron Telephone, dated as of April 14, 1993, and assumed
by Mississippi One pursuant to the Assumption Agreement, and related UCC
Financing Statement filed with the Secretary of State of the State of
Mississippi (collectively, the "Cameron Telephone Security Interests"), to all
security interests and liens now or hereafter created in favor of CoBank in
connection with any of the CoBank Debt, including, without limitation, the
security interest created by that certain Security Agreement, dated as of
September 27, 1994, as amended by that First Amendment and Supplement to
Security Agreement, dated as of even date herewith (as the same may be amended,
modified, supplemented, extended or restated from time to time, the "Security
Agreement"), entered into by Mississippi One for the benefit of CoBank, the
lien created by that certain Deed of Trust, Security Agreement and Fixture
Filing, dated as of September 27, 1994, as amended by that certain First
Amendment and Supplement to Deed of Trust, Security Agreement and Fixture
Filing, dated as of even date herewith (as the same may be amended, modified,
supplemented, extended or restated from time to time, the "Deed of Trust"),
entered into by Mississippi One for the benefit of CoBank, and the lien created
by that certain Mortgage, dated as of even date herewith (as the same may be
amended, modified, supplemented, extended or restated from time to time, the
"Mortgage"), entered into by Mississippi One for the benefit of CoBank
(collectively, the "CoBank Security Interests").
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Amended and Restated Act of
Subordination/Cameron Telephone
Loan No. T0310
Loan No. T0347
B. The subordinations and priorities specified herein apply
irrespective of (i) the time or order of attachment or perfection of the
security interests or liens, (ii) the time or order of filing any financing
statements with respect to the security interests or liens or the time or order
of filing or recording any other documents evidencing the security interests or
liens or the time or order of the delivery or taking of possession of any of
the Collateral, (iii) the time of giving or failure to give notice of the
acquisition of such security interests or liens, (iv) the date on which any of
the Subordinated Debt or CoBank Debt arises, or (v) any priority granted by any
principle of law or any statute.
C. The proceeds resulting from the enforcement of or the
realization on the Cameron Telephone Security Interests and all other proceeds
received by Cameron Telephone in respect of the Cameron Telephone Security
Interests, including, without limitation, insurance and condemnation proceeds,
will be dealt with in such a way as to give effect to the provisions of this
Agreement and the priorities created and established hereby.
SECTION 3. PROCEEDS HELD IN TRUST. In the event that Cameron Telephone
shall receive any proceeds from the sale, liquidation, casualty, condemnation
or other disposition of or realization on any Collateral or as a result of the
Cameron Telephone Security Interests at any time prior to the payment in full
of the CoBank Debt, then it shall hold such proceeds in trust for CoBank and
shall promptly pay over the same to CoBank for the application to the CoBank
Debt.
SECTION 4. AGREEMENTS OF CAMERON TELEPHONE. Cameron Telephone
covenants and agrees that CoBank may possess, sell, lease or otherwise dispose
of or realize on the Collateral in any manner or order that CoBank, in its sole
and absolute discretion, chooses and without regard to the Cameron Telephone
Security Interests therein, and Cameron Telephone hereby waives any right it
may have to require CoBank to marshal assets or any similar right. Nothing
contained in this Agreement shall in any way limit the rights and remedies of
CoBank under the Mississippi One Guaranty, the Security Agreement, the Deed of
Trust, the Mortgage, or under any other agreement or instrument evidencing or
relating to the CoBank Debt or the CoBank Security Interests, or under
applicable law. Cameron Telephone agrees that it will not commence, or join
with any creditor other than CoBank in commencing, any bankruptcy or insolvency
proceeding against Mississippi One. Cameron Telephone shall not transfer,
assign, pledge, encumber, negotiate or otherwise convey to any person any
interest in the Subordinated Debt unless Cameron Telephone shall have received
the prior written consent of CoBank. Cameron Telephone shall promptly notify
CoBank of the creation of any Subordinated Debt and of any payments on any of
the Subordinated Debt.
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Amended and Restated Act of
Subordination/Cameron Telephone
Loan No. T0310
Loan No. T0347
SECTION 5. IN FURTHERANCE OF SUBORDINATION. Cameron Telephone agrees
as follows:
A. Upon any distribution of all or any of the assets of
Mississippi One to its creditors upon the dissolution, winding up, liquidation,
arrangement or reorganization of Mississippi One, whether in any bankruptcy,
insolvency, arrangement, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of Mississippi One or otherwise, any payment or distribution of
any kind (whether in cash, property or securities) which otherwise would be
payable or deliverable upon or with respect to the Subordinated Debt shall be
paid or delivered directly to CoBank for application (in the case of cash) to
or as collateral (in the case of non-cash property or securities) for the
payment or prepayment of the CoBank Debt until the CoBank Debt shall have been
paid in full.
B. If any proceeding referred to in Clause A above is commenced
by or against Mississippi One after the date hereof, (i) CoBank is hereby
irrevocably authorized and empowered (in its own name or in the name of Cameron
Telephone), but shall have no obligation, to demand, ▇▇▇ for, collect and
receive every payment or distribution referred to in Clause A above and give
acquittance therefor and to file claims and proofs of claim and take such other
action (including, without limitation, voting the Subordinated Debt or
enforcing any security interest or other lien securing payment of the
Subordinated Debt) as it may deem necessary or advisable for the exercise or
enforcement of any of its rights or interests hereunder; and (ii) Cameron
Telephone shall duly and promptly take such action as CoBank may request (a) to
collect the Subordinated Debt for the account of CoBank and to file appropriate
claims or proofs of claim in respect of the Subordinated Debt; (b) to execute
and deliver to CoBank such powers of attorney, assignments or other instruments
as it may request in order to enable it to enforce any and all claims with
respect to, and any security interests and other liens securing payment of, the
Subordinated Debt; and (c) to collect and receive any and all payments or
distributions which may be payable or deliverable upon or with respect to the
Subordinated Debt.
C. All payments or distributions upon or with respect to the
Subordinated Debt which are received by Cameron Telephone prior to the payment
or prepayment in full of the CoBank Debt shall be received in trust for the
benefit of CoBank, shall be segregated from other funds and property held by
Cameron Telephone and shall be forthwith paid over to CoBank in the same form
as so received (with any necessary endorsement) to be applied (in the case of
cash) to or held as collateral (in the case of non-cash property or securities)
for the payment or prepayment of the CoBank Debt.
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Amended and Restated Act of
Subordination/Cameron Telephone
Loan No. T0310
Loan No. T0347
SECTION 6. RIGHTS OF SUBROGATION. Cameron Telephone agrees that no
payment or distribution to CoBank pursuant to the provisions of this Agreement
shall entitle Cameron Telephone to exercise any rights of subrogation in
respect thereof until the CoBank Debt shall have been paid in full.
SECTION 7. OBLIGATIONS HEREUNDER NOT AFFECTED. The subordination of
the Cameron Telephone Security Interests provided hereby, the priority of
CoBank Security Interests in the Collateral as against the Cameron Telephone
Security Interests in the Collateral, the rights and interests of CoBank
hereunder, and all agreements and obligations of Cameron Telephone under this
Agreement, shall remain in full force and effect irrespective of (i) any lack
of validity or enforceability of the Mississippi One Guaranty or any other
agreement or instrument relating to the CoBank Debt or the CoBank Security
Interests; (ii) any change, amendment, modification or extension in the time,
manner or place of payment of, or in any other term of, all or any of the
CoBank Debt or the CoBank Security Interests, or any documents evidencing the
CoBank Debt or the CoBank Security Interests, or any other amendment to or
waiver of or any consent to departure from the terms and conditions of the
Mississippi One Guaranty or any other agreement or instrument relating to the
CoBank Debt or the CoBank Security Interests; (iii) any exchange, release or
non-perfection of any collateral for the CoBank Debt, including, without
limitation, the Mississippi One Guaranty, the Security Agreement, the Deed of
Trust or the Mortgage; or (iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, Cameron Telephone in
respect of this Agreement other than as expressly provided herein, and CoBank
shall not be required to give Cameron Telephone notice of any such occurrence.
SECTION 8. WAIVER. Each of Cameron Telephone and Mississippi One
hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the CoBank Debt and this Agreement and any requirement
that CoBank protect, secure, perfect or insure any security interest or lien or
any property subject thereto or exhaust any right or take any action against
Mississippi One or any other person or entity or any collateral.
SECTION 9. SUBORDINATED DEBT LEGEND. Mississippi One and Cameron
Telephone will cause each instrument evidencing Subordinated Debt to be
endorsed with the following legend:
"The indebtedness evidenced by this instrument is subordinated to
the prior payment in full of the "CoBank Debt" (as defined in the
Act of Subordination hereinafter referred to) pursuant to, and to
the extent
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Amended and Restated Act of
Subordination/Cameron Telephone
Loan ▇▇. ▇▇▇▇▇
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provided in that certain Amended and Restated Act of
Subordination, dated as of May 15, 1996, by the maker hereof and
payee named herein in favor of CoBank, ACB."
In the case of any Subordinated Debt which is not evidenced by an instrument,
upon CoBank's request, Mississippi One and Cameron Telephone shall cause such
Subordinated Debt to be evidenced by an appropriate instrument or instruments
endorsed with the above legend.
SECTION 10. FURTHER ASSURANCES. Cameron Telephone and Mississippi One
shall do such further acts and things and execute, deliver, register and file
such further deeds, documents and assurances which may be reasonably required
to give full effect to the intent and purpose of this Agreement. None of the
parties hereto shall take any steps or do anything whereby the priorities
provided for herein may be defeated or impaired.
SECTION 11. RIGHTS AND REMEDIES CUMULATIVE. The subordinations and
priorities set forth herein and the rights and remedies of CoBank hereunder are
in addition to, and not in derogation of the rights and remedies of CoBank
under the Uniform Commercial Code of the State of Louisiana and other
applicable law.
SECTION 12. CONTINUATION OF AGREEMENT. This Agreement shall be a
continuing agreement until the complete termination and release of all of
CoBank Security Interests in the Collateral and the payment in full of all
CoBank Debt. This Agreement shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the CoBank Debt is
rescinded or must otherwise be returned by CoBank upon the insolvency,
bankruptcy or reorganization of Mississippi One, Mercury, CTC Financial, Inc.,
or otherwise, all as though such payment had not been made.
SECTION 13. NOTICES.
All notices to the parties hereto shall be in writing and shall
be delivered in person, telecopied or sent by registered or certified mail to
the following addresses:
If to CoBank, to:
CoBank, ACB
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Rural Utility Banking Group
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
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Amended and Restated Act of
Subordination/Cameron Telephone
Loan No. T0310
Loan No. T0347
If to Cameron Telephone, to:
Cameron Telephone Company
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: President
If to Mississippi One, to:
Mississippi One Cellular Telephone Company
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▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇; cc: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as may be designated by any party hereto in a written
notice to the other party hereto. All notices hereunder shall be deemed to be
duly given and received on the date of delivery if delivered personally, on the
date telecopied if telecopied, or on the third business day after the deposit
in the United States Mail if mailed by prepaid first class registered or
certified mail, properly addressed with appropriate postage paid thereon.
SECTION 14. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof.
It may not be changed orally but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification, extension,
or discharge is sought.
SECTION 15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon Cameron Telephone, Mississippi One and their respective successors and
assigns and shall inure to the benefit of CoBank and its successors and
assigns.
SECTION 16. GOVERNING LAW. This Agreement shall be governed, construed
and enforced in accordance with the laws of the State of Louisiana without
regard for its choice of law rules.
[Signatures on next page]
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Amended and Restated Act of
Subordination/Cameron Telephone
Loan No. T0310
Loan No. T0347
THUS DONE AND SIGNED in several counterparts at the places and on the
dates indicated below, and in the presence of the respective undersigned
Notaries Public and the respective undersigned witnesses indicated below, by
duly authorized officers of the respective parties, after a due reading of the
whole.
At Lake Charles, Louisiana, on May 15, 1996.
CAMERON TELEPHONE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: President
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Attest: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Secretary
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[CORPORATE SEAL]
Witnesses to all signatures:
/s/ ▇▇▇▇▇▇ ▇▇▇▇
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Witness
/s/ ▇▇▇▇ PUDATT
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Witness
/s/ [ILLEGIBLE]
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Notary Public
My commission expires: [LIFE]
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[NOTARIAL SEAL]
(Signatures continued on next page)
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Amended and Restated Act of
Subordination/Cameron Telephone
Loan No. T0310
Loan No. T0347
(Signatures continued from previous page)
At Lake Charles, Louisiana, on May 15, 1996.
MISSISSIPPI ONE CELLULAR TELEPHONE
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
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Witnesses to signature:
/s/ ▇▇▇▇▇▇ ▇▇▇▇
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Witness
/s/ ▇▇▇▇ PUDATT
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Witness
/s/ [ILLEGIBLE]
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Notary Public
My commission expires: [LIFE]
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[NOTARIAL SEAL]
(Signatures continued on next page)
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Amended and Restated Act of
Subordination/Cameron Telephone
Loan No. T0310
Loan No. T0347
(Signatures continued from previous page)
At Atlanta, Georgia, on May 15, 1996.
COBANK, ACB
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice-President
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Witnesses to signature:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Witness
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Witness
/s/ ▇▇▇▇▇ ▇. SOUTH
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Notary Public
My commission expires: June 18, 2000
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[NOTARIAL SEAL]
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EXHIBIT A
UNITED STATES OF AMERICA
STATE OF LOUISIANA
FOX MCKEITHEN
SECRETARY OF STATE
As Secretary of State, of the State of Louisiana, I do hereby Certify that
the annexed and following is a True and Correct copy of the Articles of
Incorporation and Initial Report as shown by comparison with documents filed
and recorded in this Office on July 21, 1986.
In testimony whereof, I have hereunto set
my hand and caused the Seal of my Office
to be affixed at the City of Baton Rouge on,
May 8, 1996
/s/ FOX MCKEITHEN State of Louisiana
Secretary of State
[Seal]
CBU
Secretary of State