EXHIBIT 10.3
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GUARANTEE AND PLEDGE AGREEMENT
GUARANTEE AND PLEDGE AGREEMENT ("this Agreement") dated as of December
29, 1987 between ATLANTIC TELE-NETWORK CO., a corporation duly organized and
validly existing under the laws of the United States Virgin Islands (the "Parent
Guarantor"), and RURAL TELEPHONE FINANCE COOPERATIVE, a South Dakota cooperative
association (the "Lender").
The Parent Guarantor, the Lender and the Parent Guarantor's wholly
owned subsidiary, VIRGIN ISLANDS TELEPHONE CORPORATION, a United States Virgin
Islands corporation ("Vitelco"), are parties to a Loan Agreement dated as of
December 29, 1987 (as modified and supplemented and in effect from time to time,
the "Loan Agreement"), providing, subject to the terms and conditions thereof,
for an extension of credit to be made by the Lender to the Parent Guarantor in
the principal or face amount of $44,444,444 and an extension of credit to be
made by the Lender to Vitelco in the principal or face amount of $60,000,000.
To induce the Lender to enter into the Loan Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parent Guarantor has agreed to guarantee the Guaranteed
Obligations (as hereinafter defined), to subordinate the Subordinated Debt (as
hereinafter defined) and to pledge and grant a security interest in the
Collateral (as hereinafter defined) as security for the Secured Obligations (as
hereinafter defined). Accordingly, the parties hereto agree as follows:
Section 1. Definitions. To the extent not inconsistent herewith,
terms defined in the Loan Agreement are used herein as defined therein. In
addition, as used herein:
"Basic Documents" shall mean the Loan Agreement, the ATN Note, the
Vitelco Note, the Vitelco Guarantee, the Supplemental Stockholders'
Agreement and the Vitelco Mortgage.
"Collateral" shall have the meaning ascribed thereto in Section 4
hereof.
"Guaranteed Obligations" shall have the meaning ascribed thereto in
Section 2.01 hereof.
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"Obligors" shall mean Vitelco and the Parent Guarantor.
"Parent Guarantor Pledged Stock" shall have the meaning ascribed
thereto in Section 4 hereof.
"Secured Obligations" shall mean, collectively, (i) the Guaranteed
Obligations, (ii) all obligations of the Parent Guarantor to the Lender
under the Loan Agreement and (iii) all obligations of the Parent Guarantor
to the Lender hereunder and under any of the other Basic Documents to which
it is a party.
"Subordinated Debt" shall have the meaning ascribed thereto in Section
3 hereof.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as in
effect from time to time in the applicable jurisdiction.
"Vitelco Lender Debt" shall have the meaning ascribed thereto in
Section 3 hereof.
Section 2. The Guarantee.
2.01 Guarantee. The Parent Guarantor hereby guarantees to the Lender
and its successors and assigns the prompt payment in full when due (whether at
stated maturity, by acceleration or otherwise) of the principal of and interest
on the Vitelco Loan and the Vitelco Note and all other amounts from time to time
owing to the Lender by Vitelco under the Loan Agreement and under the Vitelco
Note, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed Obligations"). The
Parent Guarantor hereby further agrees that if Vitelco shall fail to pay in full
when due (whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, the Parent Guarantor will promptly pay the same, without
any demand or notice whatsoever, and that in the case of any extension of time
of payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
2.02 Obligations Unconditional. The obligations of the Parent
Guarantor under Section 2.01 hereof are absolute and unconditional, irrespective
of the value, genuineness, validity, regularity or enforceability of the Loan
Agreement or the
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Vitelco Note, or any substitution, release or exchange of any other guarantee of
or security for any of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 2.02 that the
obligations of the Parent Guarantor hereunder shall be absolute and
unconditional under any and all circumstances. Without limiting the generality
of the foregoing, it is agreed that the occurrence of any one or more of the
following shall not affect the liability of the Parent Guarantor hereunder:
(i) at any time or from time to time, without notice to the Parent
Guarantor, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of the
Basic Documents shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under the Basic
Documents shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Lender as security for any of the Guaranteed Obligations shall fail to be
perfected.
The Parent Guarantor hereby expressly waives diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that the Lender
exhaust any right, power or remedy or proceed against Vitelco or any of its
Subsidiaries or any other Subsidiaries of ATN under the Basic Documents, or
against any other Person under any other guarantee of, or security for, any of
the Guaranteed Obligations.
2.03 Reinstatement. The obligations of the Parent Guarantor under
this Section 2 shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of Vitelco in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of
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any proceedings in bankruptcy or reorganization or otherwise and the Parent
Guarantor agrees that it will indemnify the Lender on demand for all reasonable
costs and expenses (including, without limitation, fees of counsel) incurred by
the Lender in connection with such rescission or restoration.
2.04 Subrogation. The Parent Guarantor hereby agrees that until the
payment and satisfaction in full of all Guaranteed Obligations and the
termination of the obligations of the Lender under the Loan Agreement it shall
not exercise any right or remedy arising by reason of any performance by it of
its guarantee in Section 2.01 hereof, whether by subrogation or otherwise,
against Vitelco or any other guarantor of any of the Guaranteed Obligations or
any security for any of the Guaranteed Obligations.
2.05 Remedies. The Parent Guarantor agrees that, as between the
Parent Guarantor and the Lender, the obligations of Vitelco under the Loan
Agreement and the Vitelco Note may be declared to be forthwith due and payable
as provided in Section 9.01 of the Loan Agreement for purposes of Section 2.01
hereof notwithstanding any stay, injunction or other prohibition preventing such
declaration as against Vitelco and that, in the event of such declaration, such
obligations (whether or not due and payable by Vitelco) shall forthwith become
due and payable by the Parent Guarantor for purposes of said Section 2.01.
2.06 Continuing Guarantee. The guarantee in this Section 2 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
Section 3. Subordination.
(a) The Parent Guarantor hereby agrees that all obligations of Vitelco
to the Parent Guarantor (such obligations, whether matured or unmatured,
absolute or contingent or now existing or hereafter arising being herein
referred to as the "Subordinated Debt") are and shall be subordinate and subject
in right of payment to the prior payment in full of all obligations of Vitelco
to the Lender under the Loan Agreement (such obligations including, without
limitation, interest accruing after the date of any filing by Vitelco of any
petition in bankruptcy or the commencement of the bankruptcy, insolvency or
similar proceedings with respect to Vitelco being hereinafter referred to as the
"Vitelco Lender Debt"), and agrees that it will not ask, demand, xxx for, take
or receive from Vitelco, by set-off or in any other manner, payment of the whole
or any part of the Subordinated Debt, or any security therefor, unless
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and until all of the Vitelco Lender Debt shall have been fully paid. The Parent
Guarantor hereby directs Vitelco to make such prior payment to the Lender of the
Vitelco Lender Debt.
(b) Anything in this Agreement to the contrary notwithstanding, so
long as no Event of Default, and no event which with the lapse of time or the
giving of notice or both would become an Event of Default, has occurred and is
continuing, Vitelco may make payments on the Subordinated Debt in accordance
with its terms.
(c) In furtherance of, and to make effective, the subordination
provided for in this Section 3, the Parent Guarantor further agrees as follows:
(i) In the event of any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the assets of Vitelco or the proceeds
thereof, to creditors of Vitelco, or upon any indebtedness of Vitelco, by
reason of the liquidation, dissolution or other winding up, partial or
complete, of Vitelco or Vitelco's business, or any sale, receivership,
insolvency or bankruptcy proceeding, or assignment for the benefit of
creditors, or any proceeding by or against Vitelco for any relief under any
bankruptcy or insolvency law or laws relating to the relief of debtors,
readjustment of indebtedness, arrangements, reorganizations, compositions
or extensions, then and in any such event any payment or distribution of
any kind or character, either in cash, securities or other property, which
but for this Agreement would be payable or deliverable upon or with respect
to any or all of the Subordinated Debt shall instead be paid or delivered
direct to the Lender for application on the Vitelco Lender Debt, whether
then due or not due, until the Vitelco Lender Debt shall have first been
fully paid and satisfied.
(ii) The Parent Guarantor hereby irrevocably authorizes and
empowers the Lender to demand, xxx for, collect and receive every such
payment or distribution and give acquittance therefor, and to file and/or
vote claims and take such other proceedings, in the Lender's own name or in
the name of the Parent Guarantor, or otherwise, as the Lender may deem
necessary or advisable for the enforcement of this Agreement. The Parent
Guarantor agrees duly and promptly to take such action as may be requested
by the Lender to assist in the collection of the Subordinated Debt for the
account of the Lender and/or to file appro-
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priate proofs of claim in respect to the Subordinated Debt, and to execute
and deliver to the Lender on demand such powers of attorney, proofs of
claim, assignments of claim or other instruments as may be requested by the
Lender to enable the Lender to enforce any and all claims upon or with
respect to the Subordinated Debt, and to collect and receive any and all
payments or distributions which may be payable or deliverable at any time
upon or with respect to the Subordinated Debt.
(iii) Should any payment or distribution or security or proceeds
of any security be received by the Parent Guarantor upon or with respect to
the Subordinated Debt prior to the payment in full of the Vitelco Lender
Debt, the Parent Guarantor will forthwith deliver the same to the Lender in
precisely the form received (except for the endorsement or assignment of
the Parent Guarantor where necessary), for application on the Vitelco
Lender Debt, whether then due or not due, and, until so delivered, the same
shall be held in trust by the Parent Guarantor as property of the Lender.
In the event of the failure of the Parent Guarantor to make any such
endorsement or assignment, the Lender, or any of its officers or employees,
is hereby irrevocably authorized to make the same.
(iv) The Parent Guarantor agrees that it will not transfer, assign,
pledge or encumber the Subordinated Debt or any part thereof or any
instrument evidencing the same unless the respective instrument of
assignment specifically provides that the assignee takes the respective
Subordinated Debt subject to the provisions of this Agreement. The Parent
Guarantor agrees that it will not exchange, forgive, waive or cancel the
Subordinated Debt or any part thereof or reduce the principal amount of the
Subordinated Debt in whole or in part.
(d) The subordination effected by this Agreement is a continuing
subordination, and the Parent Guarantor hereby agrees that at any time and from
time to time, without notice to it:
(i) the time for Vitelco's performance of or compliance with any of
its agreements contained in the Loan Agreement may be extended or such
performance or compliance may be waived by the Lender;
(ii) any of the acts mentioned in the Loan Agreement may be done;
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(iii) the Loan Agreement may be amended for the purpose of adding
any provisions thereto or changing in any manner the rights of any of the
parties thereto;
(iv) payment of any Vitelco Lender Debt may be renewed in whole or
in part; and
(v) the maturity of any Vitelco Lender Debt may be accelerated, or
any collateral security therefor may be exchanged, sold, surrendered,
released or otherwise dealt with, in accordance with the terms of any
present or future agreement;
a1l without impairing or affecting the obligations of the Parent Guarantor
hereunder.
(e) The Parent Guarantor hereby unconditionally waives notice of the
incurring of the Vitelco Lender Debt or any part thereof and reliance by the
Lender upon the subordination of the Subordinated Debt to the Vitelco Lender
Debt.
Section 4. The Pledge and Security Interest. As collateral security
for the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations, the Parent Guarantor
hereby pledges, grants, assigns, transfers, convoys and sets over to the Lender
a security interest in all of the Parent Guarantor's right, title and interest
in the following property, whether now owned by the Parent Guarantor or
hereafter acquired and whether now existing or hereafter coming into existence
(all being collectively referred to herein as "Collateral"):
(a) all shares of capital stock of whatever class of Vitelco, now or
hereafter owned by such Guarantor, together with the certificates
evidencing the same, accompanied by undated stock powers duly executed in
blank (the "Parent Guarantor Pledged Stock");
(b) all shares, securities, moneys or property representing a dividend
on any of the Parent Guarantor Pledged Stock, other than a dividend payable
in cash and permitted by the Loan Agreement, or representing a distribution
or return of capital upon or in respect of the Parent Guarantor Pledged
Stock, or resulting from a split-up, revision, reclassification or other
like change of the Parent Guarantor Pledged Stock or otherwise received in
exchange therefor, and any subscription warrants, rights
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or options issued to the holders of, or otherwise in respect of, the Parent
Guarantor Pledged Stock;
(c) without affecting any provision prohibiting such action hereunder
or under the Loan Agreement, in the event of any consolidation or merger in
which Vitelco is not the surviving corporation, all shares of each class of
the capital stock of the successor corporation formed by or resulting from
such consolidation or merger distributed in respect of the Parent Guarantor
Pledged Stock;
(d) any payment due or to become due under the Management Advisory
Contract dated as of June 24, 1987 (the "Advisory Agreement") between the
Parent Guarantor and Vitelco; and
(e) all proceeds of and to any of the property described in clauses
(a) through (d) above in this Section 4 and, to the extent related to any
property described in said clauses or above in this clause (e), all books,
correspondence, credit files, records, invoices and other papers.
Section 5. Further Assurances; Remedies. In furtherance of the grant
of the pledge and security interest pursuant to Section 4 hereof, the Parent
Guarantor hereby agrees with the Lender as follows:
5.01 Delivery and Other Perfection. The Parent Guarantor shall:
(i) deliver to the Lender, endorsed in blank for transfer or
accompanied by duly executed stock powers or other instruments of
assignment and transfers in such form and substance as the Lender may
request, all stock certificates or other securities representing any of the
Collateral;
(ii) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may
be necessary or desirable (in the judgment of the Lender) to create,
preserve, perfect or validate the security interest granted pursuant hereto
or to enable the Lender to exercise and enforce its rights hereunder with
respect to such pledge and security interest;
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(iii) permit representatives of the Lender, upon reasonable
notice, at any time during normal business hours to inspect and make
abstracts from the books and records pertaining to the Collateral, and
permit representatives of the Lender to be present at the Parent
Guarantor's place of business to receive copies of all communications and
remittances relating to the Collateral, all in such manner as the Lender
may require; and
(iv) deliver to the Lender on or prior to the date hereof a true,
correct and complete copy of the Advisory Agreement.
5.02 Other Financing Statements. Without the prior written consent of
the Lender, the Parent Guarantor shall not file or suffer to be on file, or
authorize or permit to be filed or to be on file, in any jurisdiction, any
financing statement or like instrument with respect to the Collateral in which
the Lender is not named as the sole secured party for the benefit of the Lender.
5.03 Preservation of Rights. The Lender shall not be required to
take steps necessary to preserve any rights against prior parties to any of the
Collateral.
5.04 Stock Collateral. So long as no Event of Default under the Loan
Agreement shall have occurred and be continuing, the Parent Guarantor shall have
the right to exercise all of its voting, consensual and other powers of
ownership pertaining to the Collateral for all purposes not inconsistent with
the terms of this Agreement, or any of the Basic Documents, or any other
instrument or agreement referred to herein or therein, provided that the Parent
Guarantor agrees that it will not vote the Collateral in any manner that is
inconsistent with the terms of this Agreement, any of the Basic Documents or any
such other instrument or agreement. The Lender shall execute and deliver to the
Parent Guarantor or cause to be executed and delivered to the Parent Guarantor
all such proxies, powers of attorney, dividend and other orders, and all such
instruments, without recourse, as the Parent Guarantor may reasonably request
for the purpose of enabling it to exercise its rights and powers which it is
entitled to exercise pursuant to this Section 5.04.
5.05 Events of Default, etc. During the period an Event of Default
under the Loan Agreement shall have occurred and be continuing:
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(i) the Lender shall have all of the rights and remedies with
respect to the Collateral of a secured party under the Uniform Commercial
Code (whether or not said Code is in effect in the jurisdiction where the
rights and remedies are asserted);
(ii) the Lender in its discretion may, in its name or in the name
of the Parent Guarantor or otherwise, demand, xxx for, collect or receive
any money or property at any time payable or receivable on account of or in
exchange for any of the Collateral, but shall be under no obligation to do
so;
(iii) the Lender may, upon 15 business days' prior written notice
to the Parent Guarantor of the time and place, with respect to the
Collateral or any part thereof which shall then be or shall thereafter come
into the possession, custody or control of the Lender or any of its agents,
sell or otherwise dispose of all or any part of such Collateral, at such
place or places as the Lender deems best, and for cash or on credit or for
future delivery (without thereby assuming any credit risk), at public or
private sale, without demand of performance or notice of intention to
effect any such disposition or of time or place of sale (except such notice
as in required above or by applicable statute and cannot be waived) and the
Lender or anyone else may be the purchaser or recipient of any or all of
the Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale), and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise) of the Parent
Guarantor, any such demand, notice or right or equity being hereby
expressly waived and released. The proceeds of each collection, sale or
other disposition under this Section 5.05 shall be applied in accordance
with Section 5.09; and
(iv) the Lender shall be entitled to notify Vitelco to make payment
of amounts due under the Advisory Agreement directly to the Lender, and any
payments received by the Parent Guarantor contrary to the instructions of
the Lender on account of the Advisory Agreement shall be immediately
endorsed and delivered to the Lender.
5.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral are insufficient to cover the costs and
expenses of such realization and
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the payment in full of the Secured Obligations, the Parent Guarantor shall
remain liable for any deficiency in respect of which the Parent Guarantor is
obligated under this Agreement.
5.07 Private Sale. The Lender shall incur no liability as a result
of the sale of the Collateral, or any part thereof, at any private sale
conducted in a commercially reasonable manner. The Parent Guarantor hereby
waives any claims against the Lender arising by reason of the fact that the
price at which the Collateral may have been sold at such a private sale was less
than the price which might have been obtained at a public sale or was less than
the aggregate amount of the Secured Obligations, unless the related sale was not
conducted in a commercially reasonable manner.
5.08 Removals, Etc. Without 15 days' prior written notice to the
Lender, the Parent Guarantor shall not maintain any of its books and records
with respect to the Collateral at any office other than its office at 00-X
Xxxxxxxxxxxxx Xxxx, Xxxxxxxxx Amalie, St. Xxxxxx, Virgin Islands 00801, or
maintain its office or its principal place of business at any other place other
than at such location.
5.09 Application of Proceeds. Except as otherwise herein expressly
provided, the proceeds of any collection, sale or other realization of all or
any part of the Collateral, and any other cash at the time held by the Lender
under this Section 5, shall be applied by the Lender:
First, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable compensation to the Lender
and its agents and counsel, and all expenses, and advances made or incurred
by the Lender in connection therewith;
Second, to the payment in full of the Secured Obligations of the type
described in clause (ii) of the definition of such term in Section 1
hereof;
Third, to the payment in full of the Secured Obligations of the type
described in clause (i) of the definition of such term in Section 1 hereof;
Fourth, to the payment in full of all other Secured Obligations,
equally and ratably in accordance with the respective amounts thereof then
due and owing or as the Lender may otherwise direct; and
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Finally, to the payment to the Parent Guarantor, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any surplus
then remaining.
As used in this Section 5, "proceeds" of Collateral shall mean cash, securities
and other property realized in respect of, and distributions in kind of,
Collateral, including any thereof received under any reorganization, liquidation
or adjustment of debt of the Parent Guarantor or any issuer of or obligor on any
of the Collateral.
5.10 Attorney-in-Fact. Without limiting any rights or powers granted
by this Agreement to the Lender while no Event of Default under the Loan
Agreement has occurred and is continuing, upon the occurrence and during the
continuance of any Event of Default under the Loan Agreement the Lender is
hereby appointed the attorney-in-fact of the Parent Guarantor for the purpose of
carrying out the provisions of this Section 5 and taking any action and
executing any instruments which the Lender may deem necessary or advisable to
accomplish the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest, provided that the Lender shall not
take any action pursuant to the authority granted to it in this Section 5.10
without first notifying the Parent Guarantor thereof. Without limiting the
generality of the foregoing, so long as the Lender shall be entitled under this
Section 5 to make collections in respect of the Collateral, the Lender shall
have the right and power to receive, endorse and collect all checks made payable
to the order of the Parent Guarantor representing any dividend, payment or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same.
5.11 No Performance Required of the Lender. It is expressly agreed
by the Parent Guarantor that, anything herein to the contrary notwithstanding,
the Parent Guarantor shall not be relieved of any obligation it may have under
the Advisory Agreement by reason of the security interest granted to the Lender
hereby, or by any actions taken or not taken by the Lender hereunder; and the
Lender shall have no obligation under the Advisory Agreement, nor shall the
Lender be required or obligated in any manner to perform any obligation of the
Parent Guarantor under or pursuant to the Advisory Agreement or to present or
file any claim or to take any other action to collect or enforce the payment of
any amounts which have been assigned to the Lender or to which the Lender is
entitled hereunder.
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Section 6. Miscellaneous.
6.01 Initial Financing Statements. Prior to or concurrently with the
execution and delivery of this Agreement, the Parent Guarantor shall file such
financing statements and other documents in such offices as the Lender may
request to perfect the pledge and security interests granted by this Agreement.
6.02 Further Assurances. The Parent Guarantor agrees that, from time
to time upon the written request of the Lender, the Parent Guarantor will
execute and deliver such further documents and do such other acts and things as
the Lender may reasonably request in order fully to effect the purposes of this
Agreement.
6.03 No Waiver. No failure on the part of the Lender or any of its
agents to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Lender or any of its
agents of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies provided by
law.
6.04 Expenses. The Parent Guarantor agrees to pay to the Lender all
reasonable out-of-pocket expenses (including reasonable expenses for legal
services of every kind) of, or incident to, the enforcement of any of the
provisions of this Agreement, or performance by the Lender of any obligations of
the Parent Guarantor in respect of the Collateral which the Parent Guarantor has
failed or refused to perform, or any actual or attempted sale, or any exchange,
enforcement, collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or asserting rights
and claims of the Lender in respect thereof, by litigation or otherwise and all
such expenses shall be Secured Obligations to the Lender secured under Section 4
hereof.
6.05 Taxes. The Parent Guarantor agrees to pay before delinquency
any tax or other governmental charge which is or can become through assessment,
distraint or otherwise a lien on the Collateral and to pay any tax or other
governmental charge which may be levied on the transactions hereunder, provided
that nothing herein shall require the Parent Guarantor to pay any such tax or
other governmental charge with respect to which the Parent Guarantor is
prosecuting in good faith appeal
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or other proceedings for review and as to which any foreclosure or other
enforcement proceedings shall have been fully bonded or otherwise effectively
stayed.
6.06 Termination. Subject to Section 2.03 hereof, when all
Guaranteed Obligations and Secured Obligations shall have been paid in full and
the Loan Agreement shall have terminated, this Agreement shall terminate, and
the Lender shall forthwith cause to be assigned, transferred and delivered,
against receipt but without any recourse, warranty or representation whatsoever,
any remaining Collateral and money received in respect thereof, to or on the
order of the Parent Guarantor.
6.07 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, provided that as
to Collateral located in any jurisdiction other than the State of New York, the
Lender shall have all the rights to which a secured party under the laws of such
jurisdiction is entitled.
6.08 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including telecopy or similar writing) and
shall be given to such party at its address or telecopy number set forth on the
signature page hereto or such other address or telecopy number an such party may
hereafter specify for the purpose by notice to the other party hereto. Each
such notice, request or other communication shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Section, (ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid
or (iii) if given by any other means, when delivered at the address specified in
this Section.
6.09 Waivers, etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the Parent
Guarantor and the Lender.
6.10 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the Parent
Guarantor, the Lender, and each subsequent holder of the Guaranteed or Secured
Obligations (provided, however, that the Parent Guarantor shall not assign or
transfer its rights hereunder without the prior written consent of the Lender).
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6.11 Counterparts. This Agreement may be executed in one or more
counterparts and all of such counterparts taken together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Guarantee and
Pledge Agreement to be duly executed as of the day and year first above written.
ATLANTIC TELE-NETWORK CO.
By /s/ Xxxxxxxxx X. Prior, Jr.
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Name: Xxxxxxxxx X. Prior, Jr.
Title: President
Address for Notices:
X.X. Xxx 0000
Xx. Xxxxxx
Xxxxxx Xxxxxx Xxxxxx Xxxxxxx 00000
Attention: Xxxxxxxxx X. Prior, Jr.
Telecopy No.: 000-000-0000
RURAL TELEPHONE FINANCE COOPERATIVE
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary-Treasurer
Address for Notices:
X.X. Xxx 00000
Xxxxxxxxxx, X.X. 00000
Attention: Loan Officer
Telecopy No.: 000-000-0000
RURAL TELEPHONE 0000 00xx Xxxxxx, X.X.
FINANCE Washington, D.C. 2000
COOPERATIVE 202-337-6700
RTFC
August 31, 1988
Atlantic Tele-Network Co.
X.X. Xxx 0000
Xx. Xxxxxx, X.X. Xxxxxx Xxxxxxx 00000
Attention: Xxxxxxxxx X. Prior, Jr.
Dear Sirs:
Reference is made to that certain Guarantee and Pledge Agreement dated as of
December 29, 1987 (the "Guarantee and Pledge Agreement") between ATLANTIC TELE-
NETWORK CO., a corporation duly organized and validly existing under the laws of
the United States Virgin Islands (the "Parent Guarantor"), and RURAL TELEPHONE
FINANCE COOPERATIVE, a South Dakota cooperative association (the "Lender"). All
terms defined in the Guarantee and Pledge Agreement are used herein as defined
therein.
The Virgin Islands Telephone Corporation ("Vitelco"), pursuant to a real
property and asset transfer agreement dated as of December 31, 1987 (the
"Transfer Agreement"), has, subject to the terms and conditions thereof,
transferred certain real property and assets owned by Vitelco to the Parent
Guarantor, subject to its instructions to transfer the real property and assets
to VITELCOM, Inc., a corporation duly organized and validly existing under the
laws of the United States Virgin Islands ("VITELCOM") and a wholly owned
subsidiary of the Parent Guarantor. To induce Lender to consent to the
transfers under the Transfer Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parent Guarantor has agreed to add to the Collateral all the shares of VITELCOM
it owns as well as various other property. Accordingly, the parties hereto
agree as follows:
1. Section 4(a) of the Guarantee and Pledge Agreement is hereby amended by
substituting the following therefor:
(a) all shares of capital stock of whatever class of Vitelco, now or
hereafter owned by such Parent Guarantor, together with the certificates
evidencing the same, accom-
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panied by undated stock powers duly executed in blank, and all shares of
capital stock of whatever class of VITELCOM now or hereafter owned by such
Parent Guarantor, together with the certificates evidencing the same,
accompanied by undated stock powers duly executed in blank (collectively,
the "Parent Guarantor Pledged Stock");
2. Section 4(c) of the Guarantee and Pledge Agreement is hereby amended by
substituting the following therefor:
(c) without affecting any provision prohibiting such action hereunder
or under the Loan Agreement, in the event of any consolidation or merger in
which Vitelco or VITELCOM is not the surviving corporation, all shares of
each class of the capital stock of the successor corporation formed by or
resulting from such consolidation or merger distributed in respect of the
Parent Guarantor Pledged Stock;
3. Section 4(d) of the Guarantee and Pledge Agreement is hereby amended
substituting the following therefor:
(d) any payment due or to become due under the Management Advisory
Contract dated as of June 24, 1987 between the Parent Guarantor and Vitelco
or under any management advisory contract to be entered into between the
Parent Guarantor and VITELCOM (collectively, such contracts the "Advisory
Agreement"); and
4. The Parent Guarantor shall deliver to the Lender endorsed in blank for
transfer or accompanied by duly executed stock powers, all stock certificates or
other securities representing the Parent Guarantor's shares of stock of whatever
class of VITELCOM.
5. This amendment may be executed in one or more counterparts and all of such
counterparts taken together shall constitute one and the same instrument.
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By executing this letter in the spaces provided below, the Parent Guarantor will
thereby agree with the undersigned that the Guarantee and Pledge Agreement is
amended on and as of the date of your acknowledgement as set forth above.
Very truly yours,
RURAL TELEPHONE FINANCE COOPERATIVE
By: /s/
--------------------------------
Title: Acting CEO
The undersigned hereby
acknowledges receipt of
and agreement with the
foregoing letter as of
the 12th day of Septem-
ber, 1988.
ATLANTIC TELE-NETWORK CO.
By: /s/ Xxxxxxxxx X. Prior, Jr.
---------------------------
Title: President
