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EXHIBIT 4.30
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PLD TELEKOM INC.
and
THE BANK OF NEW YORK,
as Trustee
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SECURITY AGREEMENT (INVENTORY AND RECEIVABLES)
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Dated as of November 26, 1997
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SECURITY AGREEMENT (INVENTORY AND RECEIVABLES) dated as of
November 26, 1997, entered into between PLD TELEKOM INC., a
Delaware corporation (the "Grantor") and THE BANK OF NEW YORK, a
New York banking corporation, as trustee (in such capacity, the
"Trustee") under the Trust Agreement (as hereinafter defined) for
the holders of the Notes (as hereinafter defined)
1. Revolving Credit Agreement, Notes and Trust Agreement. This Agreement
is made pursuant to (a) the Revolving Credit Note and Warrant Agreement, dated
as of the date hereof (the "Revolving Credit Agreement"), between the Grantor,
on the one hand, and The Travelers Insurance Company and The Travelers Indemnity
Company (collectively, the "Lenders"), on the other, providing, among other
things, for (i) the commitment of the Lenders to make Series A Revolving Credit
Loans from time to time to the Grantor in an aggregate principal amount not
exceeding $12,400,000 (the "Series A Revolving Credit Loans") and Series B
Revolving Credit Loans from time to time to the Grantor in an aggregate
principal amount not exceeding $3,100,000 (the "Series B Revolving Credit
Loans") and (ii) the issuance and delivery by the Grantor to the Lenders of its
12% Series A Revolving Credit Notes due December 31, 1998 in the aggregate
principal amount of $12,400,000 to evidence the obligation of the Grantor to
repay Series A Revolving Credit Loans from time to time outstanding in
accordance therewith (such notes, including all notes issued in substitution or
exchange therefor pursuant to the Revolving Credit Agreement, being referred to
herein as the "Series A Notes") and its 12% Series B Revolving Credit Notes due
September 30, 1998 in the aggregate principal amount of $3,100,000 to evidence
the obligation of the Grantor to repay Series B Revolving Credit Loans from time
to time outstanding in accordance therewith (such notes, including all notes
issued in substitution or exchange therefor pursuant to the Revolving Credit
Agreement, being referred to herein as the "Series B Notes") and (b) the Trust
Agreement, dated as of the date hereof (the "Trust Agreement"), between the
Grantor and the Trustee, pursuant to which the Trustee has agreed to hold
certain collateral, including the Collateral (as defined in Section 2 hereof)
for the benefit of, among others, the holders of the Series A Notes and the
Series B Notes. The Series A Revolving Credit Loans and the Series B Revolving
Credit Loans are herein sometimes collectively referred to as the "Revolving
Credit Loans"; the Series A Notes and the Series B Notes are herein sometimes
collectively referred to as the "Notes"; the holders of the Notes are herein
sometimes collectively referred to as the "Noteholders"; the Revolving Credit
Agreement, the Trust Agreement, this Agreement and the other Security Documents
(as defined in Section 3 of the Trust Agreement) and all other related
agreements and documents issued or delivered under or pursuant to the Revolving
Credit Agreement or this Agreement, in each case as the same may be amended or
otherwise modified and in effect from time to time, are herein sometimes
referred to collectively as the "Revolving Credit Documents".
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The obligation of the Lenders to make Revolving Credit Loans under the
Revolving Credit Agreement is conditioned on the execution and delivery by the
Grantor of a security agreement in the form hereof to secure (a) the due and
punctual payment by the Grantor of the principal of and interest on, and
Additional Amounts (if any) and Commitment Fees with respect to, the Notes, when
and as due, whether at maturity, by acceleration, upon one or more dates set for
repayment or otherwise, (b) the due and punctual payment of all other
indebtedness and all other monetary obligations (including, without limitation,
indemnities and expenses) of the Grantor under and in accordance with the
Revolving Credit Agreement, the Trust Agreement and the other Revolving Credit
Documents, and (c) the due and punctual performance of all other obligations
under the Revolving Credit Agreement, the Notes, the Trust Agreement, this
Agreement and the other Security Documents (all of the foregoing obligations
being collectively called the "Obligations").
2. Definitions. All capitalized terms used herein but not defined herein
shall have the meanings set forth in the Revolving Credit Agreement. As used
herein, the following terms shall have the following meanings:
"Collateral" shall mean all (i) Receivables, (ii) Documents,
(iii) Inventory and (iv) Proceeds.
"Documents" shall mean all instruments, files, records, ledger
sheets and documents covering or relating to any of the Collateral.
"Inventory" shall mean all present or future inventory in which
the Grantor has any interest, including goods, wares and merchandise held for
sale or lease or leased or furnished or to be leased or furnished under a
contract of service and all of the Grantor's present and future raw materials,
work in process, finished goods, parts, components, assemblies, and packing and
shipping materials, wherever located, and documents of title representing any of
the above.
"Lenders" shall have the meaning set forth in Section 1.
"Noteholders" shall have the meaning set forth in Section 1.
"Notes" shall have the meaning set forth in Section 1.
"Obligations" shall have the meaning set forth in Section 1.
"Proceeds" shall mean any consideration received from the sale,
exchange, lease or other disposition of any asset or property which constitutes
Collateral, any value received as a consequence of the possession of any
Collateral and any payment received from any insurer or other person or entity
as a result of the destruction, loss, theft or other involuntary conversion of
whatever nature of any asset or property which constitutes Collateral, and shall
include, without limitation, all cash and negotiable instruments received or
held by any of the holders of the Notes
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pursuant to any lockbox or similar arrangement relating to the payment of
Receivables and Inventory designated as contemplated by Section 15(a).
"Receivable Debtor" shall mean any person who is or who may
become obligated to the Grantor under, with respect to, or on account of, any
Receivable.
"Receivables" shall mean all of the following Property and
interests in Property of the Grantor, whether now existing or existing in the
future or hereafter acquired or arising: (i) accounts, (ii) accounts receivable,
including, without limitation, all rights to payment created by or arising from
sales of goods, leases of goods or the rendition of services no matter how
evidenced, whether or not earned by performance, including, without limitation,
any payment received by the Grantor from any of its Subsidiaries, directly or
indirectly, in respect of management, administration or any other services
performed for such Subsidiary by the Grantor, (iii) all unpaid seller's or
lessor's rights, including, without limitation, rescission, replevin,
reclamation and stoppage in transit, relating to any of the foregoing or arising
therefrom, (iv) all rights to any goods or merchandise represented by any of the
foregoing after creation of the foregoing, including, without limitation,
returned or repossessed goods, (v) all reserves and credit balances with respect
to any such accounts receivable or receivable debtors, (vi) all letters of
credit, security or guarantees for any of the foregoing, (vii) all insurance
policies or reports relating to any of the foregoing, (viii) all collection or
deposit accounts relating to any of the foregoing, (ix) all proceeds of any of
the foregoing, and (x) all books and records relating to any of the foregoing;
provided, however, that there shall be excluded from any of the foregoing
Existing Senior Note Collateral under the Existing Senior Note Collateral
Documents as in effect on the date hereof and Existing Convertible Note
Collateral under the Existing Convertible Note Collateral Documents as in effect
on the date hereof in either such case which, but for this proviso, would
constitute "Receivables" hereunder.
"Revolving Credit Agreement" shall have the meaning specified in
Section 1.
"Revolving Credit Documents" shall have the meaning specified in
Section 1.
"Revolving Credit Loans" shall have the meaning specified in
Section 1.
"Series A Notes" shall have the meaning specified in Section 1.
"Series B Notes" shall have the meaning specified in Section 1.
"Series A Revolving Credit Loans" shall have the meaning
specified in Section 1.
"Series B Revolving Credit Loans" shall have the meaning
specified in Section 1.
"Trust Agreement" shall have the meaning specified in Section 1.
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3. Security Interest. As security for the payment or performance, as the
case may be, of the Obligations, the Grantor hereby creates and grants to the
Trustee, its successors and its assigns, for the benefit of the holders of the
Notes, their successors and their assigns, a security interest in the Collateral
(the "Security Interest"). Without limiting the foregoing, the Trustee is hereby
authorized, but not obligated, to file one or more financing statements,
continuation statements or other documents for the purpose of perfecting,
confirming, continuing, enforcing or protecting the Security Interest without
the signature of the Grantor, naming the Grantor as debtor and the Trustee as
secured party.
The Grantor agrees at all times to keep accurate and complete accounting
records with respect to the Collateral, including, but not limited to, a record
of all payments and Proceeds received.
4. Further Assurances. The Grantor agrees, at its expense, to execute,
acknowledge, deliver and cause to be duly filed all such further instruments and
documents and take all such actions as are reasonably necessary or as the
Trustee or a Requisite Percentage of All Holders (as defined in the Trust
Agreement) may from time to time reasonably request for the better assuring and
preserving of the security interests and the rights and remedies created hereby,
including, without limitation, the payment of any fees and taxes required in
connection with the execution and delivery of this Agreement, the granting of
the security interests created hereby and the filing of any financing statements
or other documents in connection herewith. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any
promissory note or other instrument, such note or instrument shall be
immediately pledged and delivered to the Trustee, duly endorsed in a manner
reasonably satisfactory to the Trustee. The Grantor agrees promptly to notify
the Trustee of any change in its corporate name or in the location of its chief
executive office, its chief place of business or the office where it keeps its
records relating to the Inventory and Receivables owned by it. The Grantor
agrees promptly to notify the Trustee if any material portion of the Collateral
is damaged or destroyed.
5. Inspection and Verification. The Trustee and such persons as the
Trustee may reasonably designate shall have the right, upon reasonable notice to
the Grantor, at any reasonable time or times during the Grantor's usual business
hours, to inspect the Collateral, all records related thereto (and to make
extracts and copies from such records), and the premises upon which any of the
Collateral is located, to discuss the Grantor's relevant affairs with the
officers of the Grantor and its independent accountants and to verify under
reasonable procedures the validity, amount, quality, quantity, value, and
condition of or any other matter relating to, the Collateral, including, in the
case of Receivables or Collateral in the possession of a third person,
contacting Receivable Debtors or a third person possessing such Collateral for
the purpose of making such a verification.
6. Taxes; Encumbrances. The Trustee, acting upon the direction of a
Requisite Percentage of All Holders, shall discharge past due taxes, liens,
security interests or other encumbrances at any time levied or placed on the
Collateral and not permitted under the Revolving
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Credit Agreement, and may pay for the maintenance and preservation of the
Collateral to the extent the Grantor fails to do so as required by the Revolving
Credit Agreement and solely to the extent that monies held by the Trustee on
behalf of the Noteholders under the Trust Agreement are available therefor, and
the Grantor agrees to reimburse the Trustee on demand for any payment made or
any expense incurred by it pursuant to the foregoing authorization; provided,
however, that nothing in this Section 6 shall be interpreted as excusing the
Grantor from the performance of any covenants or other promises with respect to
taxes, liens, security interests or other encumbrances and maintenance as set
forth herein or in the Revolving Credit Agreement.
7. Assignment of Security Interest. If at any time the Grantor shall
take and perfect a security interest in any property of a Receivable Debtor or
any other person to secure payment and performance of any Receivable, the
Grantor shall promptly assign such security interest to the Trustee. Such
assignment need not be filed of public record unless necessary to continue the
perfected status of the security interest against creditors of and transferees
from the Receivable Debtor or other person granting the security interest.
8. Representations and Warranties. The Grantor represents and warrants
to the Trustee that:
(a) Title and Authority. The Grantor has rights in and good title
to the Collateral and has full power and authority to grant to the Trustee the
Security Interest in the Collateral pursuant hereto and to execute, deliver and
perform its obligations in accordance with the terms of this Agreement, without
the consent or approval of any other Person other than any consent or approval
which has been obtained.
(b) Filings. Fully executed Financing Statements containing a
description of the Collateral have been filed of record in every governmental,
municipal or other office in every jurisdiction in which any portion of the
Collateral is located, and other actions have been duly taken as necessary to
publish notice of, and protect the validity of, and to establish a valid, legal
and perfected security interest in favor of the Trustee in respect of the
collateral in which a security interest may be perfected by filing in the United
States and its territories and possessions, and no further or subsequent filing,
refiling, recording, re-recording, registration or re-registration is necessary
in any such jurisdiction, except as provided under applicable law with respect
to the filing of continuation statements under the Uniform Commercial Code.
(c) Validity of Security Interest. The Security Interest
constitutes a valid, legal and perfected first priority security interest in all
of the Collateral for payment and performance of the Obligations.
(d) Information Regarding Names. The Grantor has disclosed in
writing to the Trustee any trade names used to identify it in its business or in
the ownership of its properties.
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(e) Absence of Other Liens. The Collateral is owned by the
Grantor free and clear of any mortgage, pledge, security interest, lien, charge
or other encumbrance of any nature whatsoever, except the security interest
created by this Agreement or any other Security Document.
(f) Description of Existing Inventory and Receivables. Attached
hereto as Schedule A is description of each item of Inventory and Receivables of
the Grantor as of the date hereof which has a value in excess of $50,000.
(g) Survival of Representations and Warranties. All
representations and warranties of the Grantor contained in this Agreement shall
survive the execution, delivery and performance of this Agreement until the
termination of this Agreement pursuant to Section 27(b).
9. Records of Receivables; Delivery of Requested Information. The
Grantor shall keep or cause to be kept records of Receivables which are accurate
in all material respects. The Grantor agrees to supply the Trustee with such
information regarding Inventory and Receivables as the Trustee may reasonably
request from time to time.
10. Documents of Title. The Grantor agrees immediately to deliver all
documents of title (as such term is defined in the Uniform Commercial Code) to
the Trustee or its designee upon the creation and issuance of such documents of
title to maintain a valid, legal and perfected security interest in favor of the
Trustee in respect of any and all Inventory. The Trustee agrees immediately to
deliver, or cause to be delivered, such documents of title to the Grantor or its
designee(s) upon the creation of Receivables relating to the Inventory covered
by such documents of title.
11. Protection of Security. The Grantor shall, at its own cost and
expense, take any and all actions necessary to defend title to the Collateral
against all persons and to defend the Security Interest of the Trustee in the
Collateral and the priority thereof, against any adverse mortgage, pledge,
security interest, lien, charge or other encumbrance of any nature whatsoever
not permitted under the Revolving Credit Agreement.
12. Continuing Obligations of the Grantor. The Grantor shall remain
liable to observe and perform all the conditions and obligations to be observed
and performed by it under each contract, agreement, interest or obligation
relating to the Collateral granted hereunder, all in accordance with the terms
and conditions thereof, and shall indemnify and hold harmless the Trustee from
any and all such liabilities.
13. Use and Disposition of Collateral. The Grantor shall make or permit
to be made no assignment, pledge or hypothecation of the Collateral, and shall
grant no other security interest in the Collateral. The Grantor shall not make
or permit to be made any transfer of the Collateral, and shall remain at all
times in possession thereof other than transfers to the Trustee pursuant to the
provisions hereof, except that so long as no Event of Default shall have
occurred and be
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continuing, the Grantor may use and dispose of the Collateral (and Proceeds
therefrom) and collect or compromise the Receivables (and Proceeds therefrom) in
any lawful manner not inconsistent with the provisions of this Agreement and of
the Revolving Credit Agreement.
14. Limitation on Modifications of Receivables. The Grantor will not,
without the prior written consent of the Trustee (acting upon the direction of a
Requisite Percentage of All Holders), grant any extension of the time of payment
of any of the Receivables, compromise, compound or settle the same for less than
the full amount thereof, release, wholly or partly, any person liable for the
payment thereof, or allow any credit or discount whatsoever thereon other than
extensions, credits, discounts, compromises or settlements granted or made in
the ordinary course of business; provided, however, that no such consent is
required with respect to Receivables which in aggregate constitute obligations
of $100,000 or less.
15. Collections; Trustee's Appointment as Attorney-in-Fact. (a) Except
as provided below, the Grantor shall have the right to collect all Receivables
in the ordinary course of its business; provided, however, that (i) during the
occurrence and continuation of an Event of Default, or (ii) upon the occurrence
of a Material Adverse Change in the Business or Condition of the Company and its
Restricted Subsidiaries, taken as a whole, since the Closing Date, the Grantor
agrees, if the Trustee shall so request, (A) to arrange for remittances on any
Receivables and sales of Inventory for cash and all prepayments, deposits and
other advance payments in respect of sales of Inventory designated by the
Trustee to be made directly to lockboxes or blocked accounts designated by the
Trustee or in such other manner as the Trustee may direct, and (B) promptly to
deposit all payments received by the Grantor on account of Receivables and sales
of Inventory for cash and all prepayments, deposits and other advance payments
in respect of sales of Inventory, whether in the form of cash, checks, notes,
drafts, bills of exchange, money orders or otherwise, in one or more accounts
designated by the Trustee in precisely the form received (but with any
endorsements of the Grantor necessary for deposit or collection), subject to
withdrawal by the Trustee only, as hereinafter provided, and until they are
deposited, shall be deemed to be held in trust by the Grantor for and as the
Trustee's property and shall not be commingled with the Grantor's other funds.
(b) The Grantor hereby irrevocably constitutes and appoints the
Trustee and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of the Grantor without notice to or assent thereof, and
in the name of the Grantor or in its own name, from time to time, but only upon
the occurrence of any event referred to in clauses (i) or (ii) of Section 15(a),
for the purpose of carrying out the terms of this Agreement, for the use and
benefit of the Trustee and the holders of the Notes, to take any and all
appropriate action, in the Trustee's reasonable discretion, and to execute any
and all documents and instruments which may be reasonably necessary or desirable
in the judgment of the Trustee, and to do the following: (i) to receive,
endorse, assign and/or deliver any and all notes, acceptances, checks, drafts,
money orders or other evidences of payment relating to the Collateral or any
part thereof; (ii) to demand, collect, receive payment of, give receipt for and
give discharges and releases of all or any of the Collateral; (iii) to sign the
name
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of the Grantor on any invoice or xxxx of lading relating to any of the
Collateral; (iv) to send verifications of Receivables to any payor thereof; (v)
to commence and prosecute any and all suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect or otherwise realize on
all or any of the Collateral or to enforce any rights in respect of any
Collateral; (vi) to settle, compromise, compound, adjust or defend any actions,
suits or proceedings relating to or pertaining to all or any of the Collateral;
(vii) to notify, or to require the Grantor to notify, the Receivable Debtors
obligated on any or all of the Receivables to make payment thereof directly to
the Trustee; and (viii) to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the Collateral,
and to do all other acts and things necessary to carry out the purposes of this
Agreement. The powers conferred on the Trustee hereunder are solely to protect
the Trustee's interests in the Collateral and shall not impose any duty upon the
Trustee to exercise any such powers. The Trustee shall be accountable only for
amounts that it actually receives as a result of the exercise of the rights and
powers hereunder and shall not be responsible to the Grantor for any act or
failure to act, except for its own negligence or willful misconduct. It is
understood and agreed that the appointment of the Trustee as the agent of the
Grantor for the purposes set forth above in this Section 15 is coupled with an
interest and is irrevocable. The provisions of this Section 15 shall in no event
relieve the Grantor of any of its obligations hereunder or under the Revolving
Credit Agreement with respect to the Collateral or any part thereof, or in any
way limit the exercise by the Trustee or any Noteholder of any other or further
right which it may have on the date of this Agreement or hereafter, whether
hereunder or by law or otherwise.
16. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, the Grantor agrees to deliver each item of
Collateral to the Trustee on demand, and it is agreed that the Trustee shall
have the right to exercise any and all rights afforded to a secured party under
the Uniform Commercial Code or other applicable law. Without limiting the
generality of the foregoing, the Grantor agrees that the Trustee shall have the
right, subject to the mandatory requirements of current law, to sell or
otherwise dispose of all or any part of the Collateral, at public or private
sale or at any broker's board or on any securities exchange, for cash, upon
credit or for future delivery as the Trustee shall deem appropriate. Each such
purchaser at any such sale shall hold the property sold absolutely, free from
any claim or right on the part of the Grantor, and the Grantor hereby waives (to
the extent permitted by law) all rights of redemption, stay and appraisal which
the Grantor now has or may at any time in the future have under any rule of law
or statute now existing or hereafter enacted.
The Trustee shall give the Grantor 10 days' written notice (which the
Grantor agrees is reasonable notice within the meaning of Section 9-504(3) of
the Uniform Commercial Code as in effect in New York) of the Trustee's intention
to make any sale of Collateral. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a broker's
board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which the Collateral, or portion thereof,
will first be offered for sale at such board or exchange. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as the Trustee may fix and state in the notice
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(if any) of such sale. At any such sale, the Collateral, or portion thereof, to
be sold may be sold in one lot as an entirety or in separate parcels, as the
Trustee may (in its sole and absolute discre tion) determine. The Trustee shall
not be obligated to make any sale of any Collateral if it shall determine not to
do so, regardless of the fact that notice of sale of such Collateral shall have
been given. The Trustee may, without notice or publication, adjourn any public
or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Trustee until the sale price is paid by the purchaser or purchasers thereof, but
the Trustee shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may be sold again upon like notice. At any
public sale made pursuant to this Section 16, any Noteholder may bid for or
purchase, free (to the extent permitted by law) from any right of redemption,
stay or appraisal on the part of the Grantor (all said rights being also hereby
waived and released to the extent permitted by law), the Collateral or any part
thereof offered for sale and may make payment on account thereof by using any
claim then due and payable to such Noteholder from the Grantor as a credit
against the purchase price, and such Noteholder may, upon compliance with the
terms of sale, hold, retain and dispose of such property without further
accountability to the Grantor therefor. For purposes hereof, a written agreement
to purchase the Collateral or any portion thereof shall be treated as a sale
thereof; the Trustee shall be free to carry out such sale pursuant to such
agreement, and the Grantor shall not be entitled to the return of the Collateral
or any portion thereof subject thereto, notwithstanding the fact that after the
Trustee shall have entered into such an agreement all Events of Default shall
have been remedied and the Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Trustee may proceed
by a suit or suits at law or in equity to foreclose the lien on the Security
Interest and to sell the Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court- appointed receiver.
17. Application of Proceeds. The Trustee shall apply the proceeds of any
collection or sale of the Collateral as set forth in the Trust Agreement. The
Trustee shall have absolute discretion as to the time of application of any such
proceeds, moneys or balances in accordance with this Agreement. Upon any sale of
the Collateral by the Trustee (including, without limitation, pursuant to a
power of sale granted by statute or under a judicial proceeding), the receipt of
the Trustee or of the officer making the sale shall be a sufficient discharge to
the purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Trustee or such officer or be answerable in any
way for the misapplication thereof.
18. Place of Business. (a) The Grantor agrees not to establish, or
permit to be established, any location for the Collateral outside the State of
New York unless all filings under the Uniform Commercial Code or otherwise which
are required by the Revolving Credit
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Agreement to be made with respect to the Collateral have been made and the
Trustee has a valid, legal and perfected first priority security interest in the
Collateral.
(b) The Grantor agrees, at such reasonable time or times as the
Trustee may request, promptly to prepare and deliver to the Trustee a duly
certified schedule or schedules in form satisfactory to the Trustee, showing the
identity, amount and location of any and all material Collateral.
(c) The Grantor confirms that its chief executive office is
located at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Grantor
agrees not to change, or permit to be changed, the location of its chief
executive office without giving 30 days' prior written notice to Trustee.
19. Security Interest Absolute. All rights of the Trustee hereunder, the
Security Interest, and all obligations of the Grantor hereunder, shall be
absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Revolving Credit Agreement, any agreement with respect to
any of the Obligations or any other agreement or instrument relating to any of
the foregoing, (b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Revolving Credit Agreement or
any other agreement or instrument, (c) any exchange, release or non-perfection
of any other Collateral, or any release or amendment or waiver of or consent to
or departure from any guaranty, for all or any of the Obligations, or (d) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, the Grantor in respect of the Obligations or in respect of this
Agreement.
20. No Waiver. No failure on the part of the Trustee to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by the Trustee preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. The
Trustee and the holders of the Notes shall not be deemed to have waived any
rights hereunder or under any other agreement or instrument unless such waiver
shall be in writing and signed by such parties.
21. Binding Agreement; Assignments. This Agreement, and the terms,
covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns; provided,
however, that, except as otherwise permitted under the Revolving Credit
Agreement, the Grantor may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
Trustee.
22. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
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APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
23. Notices. All communications and notices hereunder shalt be in
writing and given as provided in Section 20 of the Trust Agreement.
24. Severability. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired.
25. Section Headings. Section headings used herein are for convenience
only and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
26. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
27. Modification and Termination. (a) In any case where any amendment,
modification, cancellation or termination of any of the Security Documents
requires the agreement of the Trustee, or in any case where any consent, waiver
or approval under any of the Security Documents requires the consent of the
Trustee, the Trustee shall agree to such amendment, modification, cancellation
or termination, or give such consent, waiver or approval, with (but only with)
the prior written consent of a Requisite Percentage of All Holders.
(b) This Agreement and the Security Interest shall terminate when
all the Obligations have been fully paid and when the Noteholders have no
further commitment to lend under the Revolving Credit Agreement, at which time
the Trustee shall execute and deliver to the Grantor all Uniform Commercial Code
termination statements and similar documents which the Grantor shall reasonably
request to evidence such termination.
28. Concerning the Trustee. The Trustee hereby enters into and accepts
this Agreement upon the terms set forth in Section 11 of the Trust Agreement
with the same effect and if those terms were repeated at length herein and made
applicable to the Trustee in respect of any action taken or omitted to be taken
by the Trustee hereunder.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Security
Agreement as of the day and year first above written.
PLD TELEKOM INC.
By /s/ E. Xxxxx Xxxxxxxx
-----------------------------
Title: Senior Vice President
THE BANK OF NEW YORK,
as Trustee
By /s/ Xxxx X. Xxxxxx
-----------------------------
Title: Assistant Vice President
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