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EXHIBIT 4.63
MCK
LOAN NO. T0364
This document prepared by and
after recording return to:
Xxxxxxxxxx, Xxxxxx & Xxxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
COLLATERAL ASSIGNMENT OF TENANT'S INTEREST IN LEASES
THIS ASSIGNMENT ("Assignment") is made, entered into and effective as
of April 20, 1995, by and between MERCURY CELLULAR OF KANSAS, INC., as assignor
("Assignor"), and COBANK, ACB, as assignee ("Lender").
Background Statement
Assignor and Lender have entered into that certain Loan Agreement,
dated as of April 20, 1995 (as the same may be amended, supplemented, extended
or restated from time to time, the "Loan Agreement") pursuant to which Lender
has agreed to make a loan of up to $17,100,000 to Assignor. The indebtedness
created by the Loan Agreement is evidenced by a Promissory Note made by
Assignor to Lender, dated April 20, 1995, in the original principal amount of
$17,100,000 (as the same may be amended, supplemented, extended, restated or
replaced from time to time, the "Note"). As a condition to making any advances
under the Loan Agreement, Lender has required that Assignor assign all of its
right, title and interest in and to certain leases and the premises described
therein to Lender. Capitalized terms used in this Assignment, unless otherwise
defined herein, shall have the meanings assigned to them in the Loan Agreement.
NOW, THEREFORE, for and in consideration of the Loan Agreement and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor hereby conveys, sets over, transfers and assigns
unto Lender, and grants to Lender a security interest in, any and all right,
title and interest of every kind and nature of Assignor, as tenant, in, to and
under any and all leases, tenancy agreements or rental contracts concerning
real property located in the States of Kansas and Oklahoma, whether now or
hereafter existing, including, without limitation, the leases described on
Exhibit A hereto and made a part hereof (all of such leases, tenancy agreements
or rental contracts, whether or not included on Exhibit A hereto, collectively,
the "Leases" and each, individually, a "Lease") concerning certain real
property described on Exhibit B hereto and made a part hereof (all of such real
property that is the subject of any Lease, collectively, the "Leased
Property"), together with any and all right, title and interest of Assignor in
and to the Leased Property, and in any and all buildings, appurtenances and
other improvements now existing or hereafter placed thereon, and in any and all
equipment, fixtures and other
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LOAN NO. T0364
personal property of every kind and nature whatsoever, now existing or
hereafter placed thereon, all as collateral security for the payment or
performance of all of the following obligations (the "Obligations"): (a) all
payments or performances to be made by Assignor under the Loan Documents,
including, without limitation, the payment of all principal, interest and other
amounts becoming due and payable, whether by acceleration or otherwise, under
the Note; and (b) the payment of all other indebtedness and performance of all
other obligations of Assignor to Lender of every type and description, whether
now existing or hereafter arising, fixed or contingent, as primary obligor or
as guarantor or surety, acquired directly or by assignment or otherwise,
liquidated or unliquidated, regardless of how they arise or by what agreement
or instrument they be evidenced, including without limitation, all loans,
advances and other extensions of credit and all covenants, agreements and
provisions contained in all loan and other agreements between the parties;
PROVIDED, HOWEVER, that if Assignor shall fully pay and discharge the
Obligations, and shall perform and observe all of the covenants, agreements and
conditions herein contained and contained in the Loan Agreement, then this
Assignment shall become void and of no effect and shall thereupon terminate.
1. REPRESENTATIONS AND WARRANTIES IN FAVOR OF LENDER. Assignor
represents and warrants unto Lender that the Leases described on Exhibit A are
now valid and subsisting; that all the rents (if any) reserved and payable
thereunder prior to the date hereof have been paid; that all of the tenant's
covenants and conditions therein contained have been observed and performed by
Assignor; that the Leases described on Exhibit A are now free and clear of all
liens and encumbrances thereon except those liens and encumbrances, if any, in
favor of the landlord under any Lease (which have previously been disclosed to
Lender in writing); that Assignor has good and lawful authority to execute and
deliver this Assignment to Lender and to perform hereunder; and that Lender
shall have the right to cure any defaults under the Leases and to do any and
all other acts required of Assignor as tenant under the Leases to prevent the
forfeiture of the rights of Assignor as tenant and without the necessity of
obtaining any further consent or agreement of any landlord under any Lease.
2. COVENANTS IN FAVOR OF LENDER. Assignor covenants unto Lender
that, at all times from and after the date of the execution of this Agreement,
unless otherwise agreed to in writing by Lender:
(a) It will perform, or cause to be performed, at its
expense all the liabilities of the tenant under the Leases, will strictly
observe all of the covenants and conditions thereof, and will keep the Leases
in effect until all of the Obligations of Assignor owing to Lender have been
paid in full and the Loan Agreement has been terminated.
(b) As required by the terms of the Leases, Assignor will
keep or cause to be kept any buildings, appurtenances, and other improvements
now existing or hereafter
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LOAN NO. T0364
placed upon or in the Leased Property in good order and repair and will make no
changes or alterations in such Leased Property that will materially impair the
Leased Property, except that Assignor will not be required to take any action
to comply with this Subsection with respect to any of the Leased Property which
is prohibited by the terms of the Lease regarding such Leased Property.
Assignor will permit Lender at any time to enter upon and inspect the Leased
Property and upon receiving written notice from Lender of any defect in the
repair or condition of the Leased Property, Assignor agrees to make good such
defect immediately thereafter in a manner satisfactory to Lender, unless
Assignor is prohibited from doing so pursuant to the Lease affecting such
Leased Property.
(c) Assignor will not commit or suffer any waste of the
Leased Property or do or permit to be done anything that may in any way impair
the security interest granted to Lender hereunder.
(d) Assignor will indemnify Lender for and hold Lender
harmless from any and all liability arising from or in connection with the
Leases, or this Assignment, or the management, operation, maintenance or
control of Assignor's activities on the Leased Property, except for liability
arising from the gross negligence or willful misconduct of Lender.
(e) Unless and until all Obligations of Assignor to
Lender have been fully paid and discharged and the Loan Agreement has been
terminated, Assignor will not hereafter cancel, surrender or terminate any of
the Leases, or modify or amend the Leases (other than immaterial modifications
or amendments made in the ordinary course of business) without the prior
written approval of Lender in each instance.
3. DEFAULT.
(a) Events of Default. Any of the following events shall
constitute an "Event of Default" hereunder: (i) the occurrence of an "Event of
Default" as such term is defined in the Loan Agreement; (ii) a default by
Assignor under any term or provision of the Leases, pursuant to which the
landlord under such Lease has the right to accelerate the rental payable under
the Lease or otherwise to exercise its rights and remedies under the Lease,
which remains uncured following the expiration of any cure period provided in
the Lease; (iii) a default by Assignor in the due observance or performance of
any covenant, warranty, condition or agreement herein contained which continues
for 30 days or more after notice thereof by Lender to Assignor; or (iv) the
damage, destruction or condemnation of the whole or any portion of the Leased
Property (Assignor hereby agreeing to give Lender written notice of any such
damage, destruction or condemnation of the Leased Property within 3 days of the
occurrence thereof in the case of any such damage or destruction, and, in the
case of any such condemnation, within 3 days of its receipt of notice thereof)
which materially affects the business of Assignor.
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LOAN NO. T0364
(b) Remedies of Lender Upon Event of Default. Upon the
occurrence of any Event of Default hereunder, and during the continuation
thereof; Lender may, at its option, (i) enter into and take control and
possession of the Leased Property or any part thereof without assuming any
liabilities of Assignor under the Leases (but subject to the rights of the
landlord thereunder) or (ii) assign or sublease all of the rights, title and
interests of Assignor in and to the Leases to any third party who shall assume
all liabilities of Assignor under the Leases. Assignor hereby irrevocably
designates and appoints Lender its true and lawful attorney in the name of
Assignor to do all things necessary or desirable incidental to its remedies
herein, including execution in the name of Assignor of any instruments or
documents in connection therewith. This power of attorney is complied with in
interest and Assignor shall have full power of substitution.
(c) Right to Cure. Upon the occurrence of any Event of
Default under the terms and provisions of Subsection 3(a)(ii), and during the
continuation thereof, Lender may (but shall not be obligated to do so), without
notice to Assignor, cure the default under the Lease constituting such Event of
Default hereunder, thereby reinstating such Lease, and the sum or sums of money
so paid by Lender for any and all such purposes shall be deemed to be part of
the Obligations hereby secured and shall be immediately due and payable and
collectible in the same manner as the Obligations.
(d) Right to Compensation for Damage Destruction or
Condemnation. Upon occurrence of any Event of Default under the terms and
provisions of Subsection 3(a)(iv), and during the continuation thereof; in
addition to the remedies set forth hereinabove, Lender shall also be entitled
to any compensation, awards, and other payments or relief thereof claimed,
received or retained by Assignor and is hereby authorized, at its option, to
commence, appear in and prosecute, in its own name, or in Assignor's name, any
action or proceeding relating to any condemnation, and to settle or compromise
any claim in connection therewith. All such compensation, awards, damages,
claims, rights of action and proceeds and the right thereto are hereby assigned
by Assignor to Lender, who after deducting therefrom all its reasonable
expenses, including attorney's fees, may apply the same towards payment of the
Obligations and any balance of such monies then remaining shall be paid to
Assignor.
(e) Application of Proceeds. All monies received by Lender
under this Assignment from time to time upon the exercise of the remedies
provided for herein (net of any costs or expenses incurred by Lender hereunder
or in connection herewith) shall be applied by Lender to the Obligations secured
hereby, whether due or not due.
4. LIABILITIES OF LENDER. Nothing contained herein shall obligate
or be construed to obligate Lender, its successors or assigns, to perform any
of the terms, covenants or conditions contained in the Leases or otherwise to
impose upon Lender, its
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LOAN NO. T0364
successors or assigns, any responsibility for the operation, control, care,
management or repair of or payment of rent upon the Leased Property.
5. NO FURTHER ASSIGNMENTS. Assignor agrees not to make any
further assignments of the Leases, or any interest therein, or to sublet the
Leased Property, without the prior written approval of Lender in each instance.
6. MISCELLANEOUS.
(a) This Assignment is intended to be, and shall be
regarded as, cumulative of, in addition to, and not in derogation of, any other
rights of Lender in and to any other property of Assignor or of any third party
or parties in which Lender has been granted a security interest as security for
the payment of the Obligations.
(b) This Assignment shall be binding upon the successors
and assigns of Assignor and shall inure to the benefit of Lender, its
successors and assigns.
(c) In the event of conflict between any of the terms and
provisions hereof and the Loan Agreement, the Loan Agreement shall be deemed to
control.
(d) This Assignment, and the rights and liabilities of
the parties hereunder, shall be governed by and construed in accordance with
the laws of the State of Kansas without reference to choice of law doctrine.
(e) All notices hereunder shall be deemed to be duly
delivered upon delivery in the form and manner set forth in Section 19 of the
Loan Agreement to the parties at the following addresses (or such other address
for a party as shall be specified by like notice):
If to Lender, as follows:
CoBank, ACB
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Rural Utility Banking Group
Fax No.: (000) 000-0000
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LOAN NO. T0364
If to Assignor, as follows:
Mercury Cellular of Kansas
One Lakeshore Drive, Suite 1495
X.X. Xxxxxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxx; cc: Xxxxxx X. Xxxxxxx
Fax No.: (000) 000-0000
If such delivery is refused or cannot be made, such delivery will be deemed to
occur on the date such delivery was attempted.
IN WITNESS WHEREOF, Assignor has executed this Assignment under seal
as of the day and year first above written.
"ASSIGNOR"
MERCURY CELLULAR OF KANSAS, INC.
By: /s/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
[CORPORATE SEAL]
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LOAN NO. T0364
ACKNOWLEDGMENT
STATE OF LOUISIANA )
) SS.
PARISH OF CALCASIEU )
The foregoing instrument was acknowledged before me this 20th day of
April, 1995, by Xxxxxx X. Xxxxxxx, President of Mercury Cellular of Kansas,
Inc., on behalf of said corporation.
/s/ [ILLEGIBLE]
------------------------------------
Notary Public
My Commission expires:
lifetime commission
[NOTARIAL SEAL]
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EXHIBIT "A"
MERCURY CELLULAR OF KANSAS, INC.
DESCRIPTION OF LEASES
COUNTY SITE LESSOR DATE
------ ---- ------ ----
Xxxxxx Great Bend-Tower Cellular Tower Asset Fund, L.P. 12-17-92
Great Bend-Office Xxx Xxxxxx 11-16-93
Cheyenne St. Xxxxxxx/Bird City-Tower Wes-Kan Towers 11-28-97
Decatur Oberlin-Tower Wes-Kan Towers 11-28-94
Xxxxx Xxxx-Tower Cellular Tower Asset Fund, L.P. 00-00-00
Xxxx-Xxxx Xxxxxx Xxxxxx Xxxxxx-Xxxxx Partnership 00-00-00
Xxxx-00xx Xxxxxx Xxxxxx Bolero Ventures, L.L.C. 06-01-94
Xxxxxx Garden City-Tower Xxxxxx Radio Service 10-01-94
Garden City-Office Xxxx X. Xxx dba Xxx Properties 12-15-92
Ford Dodge City-Tower TCI of Kansas, Inc. 08-01-94
Dodge City-Office Fast Foods of Dodge City, Inc. 07-01-92
Xxxxx Xxxxxxx-Tower Xxxxx-Comm, Inc. 06-10-94
Xxxx Xxxxxxxx-Tower Xxxxx T.V. & 2-Way, Inc. 11-15-93
Xxxxxxxx Syracuse-Tower Cellular Towers Asset Fund L.P. 08-26-91
Ness Ness City-Tower G & K Communications 00-00-00
Xxxxxx Xxxxxx-Xxxxx Xxx-Xxx Xxxxxx 00-00-00
Xxxxx Xxxxx-Xxxxx Wes-Kan Towers 05-03-94
Xxxxxxx Xxxxxx-Tower Wes-Kan Towers 11-28-94
Xxxxx Stockton-Tower Universal Cable Communications 07-19-94
Xxxxxxx Xxxxxxx-Tower Wes-Kan Towers 08-03-94
Xxxxx Xxxxx City-Tower Wes-Kan Towers 05-03-94
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Xxxxxx Liberal-Tower Hi-Way Tower, Inc. 10-01-94
Liberal-Office Century 21 Xxxxx Real Estate, Inc. 09-13-93
Xxxxxxx Xxxxx-Tower Eagle Communications, Inc. 06-21-94
Xxxxx Xxxxx Center-Tower Xxxxx Center Co-Op Mill & Elevator 03-10-95
Xxxxxxx Hugoton-Tower RECOMCO, Inc. 06-03-94
Texas (OK) Xxxxxx (OK)-Tower Xxxx X. Xxxx 09-14-94
Xxxxxx Xxxxx-Tower Cellular Tower Asset Fund, L.P. 12-17-92
Xxxxx WaKeeney-Tower Wes-Kan Towers 05-03-94
Xxxxxxx Xxxxxx Springs-Tower Universal Cable Communications 01-23-95
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LOAN NO. T0364
EXHIBIT "B"
MERCURY CELLULAR OF KANSAS, INC.
LEGAL DESCRIPTIONS OF LEASED PROPERTY
SITE LESSOR LEGAL DESCRIPTION
---- ------ -----------------
Great Bend-Tower Cellular Tower Asset Fund, L.P. A tract of land situated in the West half of the Northeast
Quarter of Section 12, Township 14 South, Range 19 West of
the Sixth Principal Meridian, Xxxxx County, Kansas, more
particularly described as follows, to wit:
Beginning at a point on the fence line marking the West
line of said Northeast Quarter of Section 12, a distance
of Two hundred and sixty one (261) feet South of the
Northwest corner of said Northeast Quarter of Section 12;
Thence East at right angles a distance of Six hundred
(600) feet; Thence South at right angles a distance of Six
hundred (600) feet; Thence West a distance of Six hundred
(600) feet, to the fence line marking the West line of
said Northeast Quarter of Section 12, Thence North along
said West line of the Northeast Quarter of Section 12, a
distance of Six hundred (600) feet to the POINT OF
BEGINNING. Said tract contains 8.26 acres more or less
and is subject to any easements or right-of-way of record.
Great Bend-Office Xxx Xxxxxx 0000 00xx Xxxxxx
Xxxx Xxxx-Xxxxx Wes-Kan Towers 7 miles west and 1.5 miles south of Bird City, Kansas.
Latitude: 39-44-03 North; Longitude: 000-00-00 West.
Oberlin-Tower Wes-Kan Towers 6 miles South, 4.5 miles East of Oberlin, Kansas;
Latitude: 39-44-26 North; Longitude: 000-00-00 West.
Hays-Tower Cellular Tower Asset Fund, L.P. A tract of land situated in the West half of the
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Northeast Quarter of Section 12, Township 14 South, Range
19 West of the Sixth Principal Meridian, Xxxxx County,
Kansas, more particularly described as follows, to wit:
Beginning at a point on the fence line marking the West
line of said Northeast Quarter of Section 12, a distance
of Two hundred and sixty one (261) feet South of the
Northwest corner of said Northeast Quarter of Section 12;
Thence East at right angles a distance of six hundred
(600) feet; Thence South at right angles a distance of six
hundred (600) feet, to the fence line marking the West
line of said Northeast Quarter of Section 12; Thence North
along said West line of the Northeast Quarter of Section
12, a distance of Six hundred (600) feet to the POINT OF
BEGINNING. Said tract contains 8.26 acres more or less and
is subject to any easements or right-of-way of record.
Xxxx-Xxxx Street Office Xxxxxx-Xxxxx Partnership A tract of land in the West Half (W/2) of the Southwest
Quarter (SW/4) of Section Thirty-four (34), Township
thirteen (13) South, Range Eighteen (18) West of the 6th
P.M., Xxxxx County, Kansas and more particularly described
as follows, to-wit:
Beginning at point on the West Section line of Section
Thirty-four (34), Township Thirteen (13) South, Range
Eighteen (18) West, 617 Feet South of the Northwest Corner
of the southwest Quarter (SW/4) of said Section Thirty-
four (34), this being the point of beginning; thence East
300 feet at right angles; thence South 102 feet parallel
to the West line of said Section 34; thence West 300 feet
to the West line of said Section 34; thence North along
said Section line a distance of 102 feet to the point of
beginning.
Hays-11th Street Office Bolero Ventures, L.L.C. 000 Xxxx 00xx Xxxxxx, Xxxx, Xxxxxx, to-wit: Lots Six (6),
Eight (8) and Ten (10), in Block Seven (7), in the
Original Town of Hays City, now the city of Hays, Kansas.
Garden City-Tower Xxxxxx Radio Service 0000 Xxxx Xxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxx; Latitude:
37-59-35; Longitude: 000-00-00
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Garden City-Office Xxxx X. Xxx dba Xxx Properties 000 Xxxxxx Xxxxx, Xxxxx 000, together with the privileges
and appurtenance of the building known more commonly as
401 Campus in the City of Garden City, Kansas
Dodge City-Tower TCI of Kansas, Inc. Starting at the N 1/4 corner, Sec. 21 T 265.R25W. then S
approximately 417.4' then W approximately 417.4' then N
approximately 417.4' then E approximately 417.4' to point
of origination.
Dodge City-Office Fast Foods of Dodge City, Inc. 0000 Xxxx Xxxxx Xxxx, Xxxxx Xxxx, Xxxxxx
Xxxxxxx-Tower Xxxxx-Comm, Inc. Xxxxxxx, Xxxxx County Kansas
Xxxxxxxx-Tower Xxxxx T.V. & 2-Way, Inc. Latitude: 37-30-10 north; Longitude: 000-00-00
Syracuse-Tower Cellular Towers Asset Fund L.P. Syracuse, Xxxxxxxx County Kansas
Ness City-Tower G & K Communications One mile east of Ness City, Kansas; Latitude: 38-26-44
North; Longitude: 99-52-32 West
Norton-Tower Wes-Kan Towers 4 miles South, 3.5 miles East of North Kansas; Latitude:
39-46-13 North; Longitude: 99-50-10 West.
Pratt-Tower Wes-Kan Towers SW 5 acres of SW Xxxxxx Xxx 0, XX/0, Xxxxxxx 0, X00X, X00X
of the 6th P.M., Xxxxx county, Kansas
Atwood-Tower Wes-Kan Towers 4.5 miles South and 2.5 miles East of Atwood, Kansas;
Latitude: 39-44-42 North; Longitude: 000-00-00 West.
Stockton-Tower Universal Cable Communications, Inc. Latitude: 39-26-56; Longitude: 99-16-18
Xxxxxxx-Tower Wes-Kan Towers Latitude: 38-53-36 North; Longitude: 00-00-00 Xxxx
Xxxxx Xxxx-Xxxxx Wes-Kan Towers 9 miles north of Xxxxx City, Kansas; Latitude: 38-36-08
North, Longitude 000-00-00 West.
Liberal-Tower Hi-Way Tower, Inc. South half of the Northwest Quarter of section 00, Xxxxxxxx
00 xxxxx, Xxxxx 00X, Xxxxxx Xxxxxx, Xxxxxx.
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Liberal-Office Century 21 Xxxxx Real Estate, Inc. 000 X. Xxxxxxx Xxxx., Xxxxxxx, Xxxxxx
Xxxxx-Tower Eagle Communications, Inc. A tract of land in the Northeast Quarter (NE/4) of Section
Four (4), in Township Eight (8) South, Range Thirty-eight
(38) West of the Sixth Principal Meridian, in Xxxxxxx
County, Kansas, described as follows:
Beginning at the southeast corner of said quarter section;
thence North along the east line of said quarter section
on an assumed bearing of N 0 00' E, a distance of 1500.00
feet; thence N 90 00'W, a distance of 156.13 feet; thence
S 30 00'W, a distance of 808.29 feet; thence N 90 00'W, a
distance of 774.72 feet; thence S 0 00'W, a distance of
100.00 feet; thence N 90 00'E, a distance of 774.72 feet;
thence S 30 00'E, a distance of 809.01 feet; to a point on
the south line of said quarter section; thence N
89 46'10"E along said south line, a distance of 155.77
feet, to the point of beginning, containing 14.58 acres,
more orless.
Hugoton-Tower RECOMCO, Inc. Hugoton, Xxxxxxx County Kansas
Guymon (OK)-Tower Xxxx X. Xxxx Real property located in Texas County, Oklahoma--Latitude:
36-40-26, Longitude: 000-00-00
Colby-Tower Cellular Tower Asset Fund, L.P. A tract of land located in the Southwest Quarter (SW 1/4)
of Section Thirty-Five (S35), Township Seven South (T7S),
Range Thirty-three West (R33W) of the Sixth Principal
Meridian (6th P.M.) in Xxxxxx County, Kansas, more
particularly described as follows:
Beginning at the northwest corner of said Quarter, thence,
on an assumed bearing of S88 11'22"E, along the north line
of said Quarter, a distance of six hundred and no
hundredths (600.00) feet, thence S00 11'22"W for a
distance of six hundred and no hundredths (600.00) feet to
the west line of said Section, thence N00 00'00"E, along
the west line of said Section, for a distance of six
hundred an no hundredths (600.00) feet to the point of
beginning, containing 8.26 acres, said tract being subject
to county road right-of-way along the west boundary.
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WaKeeney-Tower Wes-Kan Towers 1 mile east of WaKeeney, Kansas; Latitude: 39-00-55
North; Longitude: 99-51-30 West.
Xxxxxx Springs-Tower Universal Cable Communications, Inc. Latitude: 38-54-00; Longitude: 000-00-00
Xxxxx Center-Tower Xxxxx Center Co-Op Mill & Elevator Latitude: 39-46-19; Longitude: 98-47-08
