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EXHIBIT 4.50
CTC
LOAN NO. T0362
SECURITY AGREEMENT
STATE OF LOUISIANA )
)
PARISH OF CALCASIEU )
STATE OF GEORGIA )
)
COUNTY OF XXXX )
BEFORE the respective undersigned Notaries Public, and in the presence
of the respective undersigned competent witnesses, personally came and appeared
the parties listed below, who, after being duly sworn, did state:
THIS SECURITY AGREEMENT (this "Security Agreement") is made and
entered into as of April 20, 1995, by and between MERCURY CELLULAR TELEPHONE
COMPANY (the "Debtor") having its place of business (or chief executive office
if more than one place of business) located at X.X. Xxx 0000, Xxxx Xxxxxxx,
Xxxxxxxxx 00000 and whose taxpayer identification number is 00-0000000, and
COBANK, ACB (the "Secured Party"), whose mailing address is 000 Xxxxxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000.
SECTION 1. GRANT OF SECURITY INTEREST. For valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Debtor hereby
grants to the Secured Party a security interest in all of the following
property, wherever located and whether now existing or hereafter acquired,
together with all accessions and additions thereto, and all products and
proceeds thereof:
accounts; inventory (including, without limitation, returned or
repossessed goods); chattel paper; instruments (including, without
limitation, certificated securities); letters of credit; contracts and
contract rights; leases; documents; equipment (including, without
limitation, telecommunications and radio transmitting and receiving
equipment, antennae, towers, microwave communication equipment,
machinery, computers, parts, tools, implements, poles, posts,
cross-arms, conduits, ducts, lines (whether underground or overhead or
otherwise), wires, cables, exchanges, switches (including, without
limitation, host switches and remote switches), desks, testboards,
racks, frames, motors, generators, batteries, items of central office
equipment, pay-stations, protectors, subscriber equipment,
instruments, connections and appliances, office furniture and
equipment and work equipment and any and all other
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equipment used, useful or acquired for use in the business of the
Debtor or the operation of the Debtor's properties); fixtures; general
intangibles (including, without limitation, permits, licenses, grants,
franchises, privileges, permissions, certificates and choses or things
in action, litigation rights and resulting judgments, goodwill,
patents, trademarks and other intellectual property, tax refunds,
miscellaneous rights to payment, entitlements, uncertificated
investment securities and investments, margin accounts, computer
programs, invoices, books, records and other information relating to
or arising out of the Debtor's business, and, to the extent permitted
by law, all licenses and permits issued by the Federal Communications
Commission (the "FCC")); and, to the extent not covered by the above,
all other personal property of the Debtor of every type and
description, including, without limitation, interests or claims in or
under any policy of insurance, tort claims, deposit accounts, money,
and judgments; provided, however, that no security interest is granted
in licenses, permits, leases, franchises, privileges, permissions and
grants which by their terms or by reason of applicable law would
become void or voidable if a security interest therein were granted or
if the granting of a security interest therein would violate any law,
rule, regulation or order of any governmental body or regulatory
authority (collectively, the "Collateral").
Where applicable, all terms used herein shall have the same meaning as set
forth in the Uniform Commercial Code as codified at Title 10 of the Louisiana
Revised Statutes Annotated, as amended (the "UCC").
SECTION 2. OBLIGATIONS. The security interest granted hereunder shall
secure the following obligations (the "Obligations"): (a) all payments or
performances to be made by CTC Financial, Inc. (the "Borrower") under the "Loan
Documents" as defined in that certain Loan Agreement, dated as of even date
herewith, between the Borrower and the Secured Party (as the same may be
amended, supplemented, extended or restated from time to time, the "Loan
Agreement"), including, without limitation, the payment of all principal,
interest and other amounts becoming due and payable, whether by acceleration or
otherwise, under that certain Promissory Note, dated of even date herewith,
made by the Borrower to the order of the Secured Party in the original
principal amount of $18,000,000 (as the same may be amended, supplemented,
extended, renewed or replaced from time to time, the "CTC Note"); (b) all
payments or performances to be made by the Debtor 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
that certain Promissory Note, dated of even date herewith, made by the Debtor
to the order of the Borrower, and assigned to the Secured Party, in the
original principal amount of $18,000,000 (as the same may be amended,
supplemented, extended, renewed or replaced from time to
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time, the "MCTC Note"; the CTC Note and the MCTC Note, collectively, the
"Notes" and, each, a "Note"), and all payments or performances under that
certain Continuing Guaranty, dated as of even date herewith, made by the Debtor
for the benefit of the Secured Party (as the same may be amended, supplemented,
extended or restated from time to time, the "MCTC Guaranty"); and (c) the
payment of all other indebtedness and the performance of all other obligations
of the Debtor to the Secured Party of every type and description, whether now
existing or hereafter arising, fixed or contingent, as primary obligor or as a
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 may 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.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Loan Agreement.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor
represents, warrants and covenants as follows:
(A) OWNERSHIP OF COLLATERAL. Except for any security
interest in favor of (i) the Secured Party, (ii) Northern Telecom Finance
Corporation securing indebtedness not in excess of $3,500,000 and attaching
only to the equipment (and any proceeds therefrom) purchased or leased from
Northern Telecom Finance Corporation with the proceeds of such indebtedness,
and (iii) Audiovox South Corporation securing indebtedness in connection with
certain equipment obtained from Audiovox South Corporation and attaching only
to such equipment (and any proceeds therefrom), the Debtor owns and possesses
all of the Collateral free and clear of all adverse claims, interests, liens,
encumbrances, or other defects. Without the prior written consent of the
Secured Party, the Debtor shall not create or permit the existence of any
adverse claim, interest, lien, or other encumbrance against any of the
Collateral, except as expressly permitted by the Loan Documents. The Debtor
shall provide prompt written notice to the Secured Party upon learning of any
future adverse claim, interest, lien, or encumbrance against any of the
Collateral, and shall defend diligently the Debtor's and the Secured Party's
interests in the Collateral.
(B) VALIDITY OF SECURITY AGREEMENT; CORPORATE AUTHORITY.
This Security Agreement is the legal, valid and binding obligation of the
Debtor, enforceable in accordance with its terms, subject only to limitations
on enforceability imposed by (i) applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally and (ii) general equitable principles. The Debtor has the corporate
power to execute, deliver and carry out the terms and provisions of this
Security Agreement and all related documents, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Security Agreement and all related documents.
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(C) LOCATION OF THE DEBTOR. The Debtor's place of
business (or chief executive office if more than one place of business) is
located at the address shown above.
(D) LOCATION OF COLLATERAL. All equipment and inventory
are now at the location or locations specified on Schedule A attached hereto
and made a part hereof and, except as otherwise disclosed to the Secured Party
on Schedule A, the Debtor has not maintained any other location or locations of
inventory and equipment within the past 5 years.
(E) NAME, IDENTITY, AND CORPORATE STRUCTURE. Except as
otherwise disclosed to the Secured Party on Schedule A, the Debtor has not
within the past 10 years changed its name, identity or corporate structure
through incorporation, merger, consolidation, joint venture or otherwise.
(F) CHANGE IN NAME, LOCATION OF COLLATERAL, ETC. Without
giving at least 30 days' prior written notice to the Secured Party, the Debtor
shall not change its name, identity or corporate structure, the location of its
place of business (or chief executive office if more than one place of
business), or the location of the Collateral.
(G) FURTHER ASSURANCES. Upon the request of the Secured
Party, the Debtor shall do all acts and things as the Secured Party may from
time to time deem necessary or advisable to enable it to perfect, maintain, and
continue the perfection and priority of the security interest of the Secured
Party in the Collateral, or to facilitate the exercise by the Secured Party of
any rights or remedies granted to the Secured Party hereunder or provided by
law. Without limiting the foregoing, the Debtor agrees to execute, in form and
substance satisfactory to the Secured Party, such financing statements,
continuation statements, amendments thereto, supplemental agreements,
assignments, notices of assignments, and other instruments and documents as the
Secured Party may from time to time request. In addition, in the event the
Collateral or any part thereof consists of instruments, documents, chattel
paper, or money (whether or not proceeds of the Collateral), the Debtor shall,
upon the request of the Secured Party, deliver possession thereof to the
Secured Party (or to an agent of the Secured Party retained for that purpose),
together with any appropriate endorsements and/or assignments. Without
limiting the generality of the foregoing, the Debtor shall take such action as
the Secured Party may request from time to time to create and perfect a
security interest in favor of the Secured Party in any and all leases, licenses
and permits relating to the location of antennae and other transmission and
receiving equipment on the towers or other property of third parties,
including, without limitation, amending such leases, licenses or permits to
allow the creation and perfection of such security interest and obtaining the
consent of all third parties whose consents may be necessary to the creation
and perfection of such security interest. The Secured Party shall use
reasonable care in the custody and preservation of any Collateral
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in its possession, but shall not be required to take any steps necessary to
preserve rights against prior parties. All costs and expenses incurred by the
Secured Party to establish, perfect, maintain, determine the priority of, or
release the security interest granted hereunder (including the cost of all
filings, recordings, and taxes thereon and the reasonable fees and expenses of
any agent retained by the Secured Party) shall become part of the Obligations
secured hereby and be paid by the Debtor on demand.
(H) INSURANCE. The Debtor shall maintain such property
and casualty insurance with such insurance companies, in such amounts, and
covering such risks, as are at all times reasonably satisfactory to the Secured
Party. All such policies shall provide for loss payable clauses or
endorsements in form and content acceptable to the Secured Party. Upon the
request of the Secured Party, all policies (or such other proof of compliance
with this Section as may be satisfactory to the Secured Party) shall be
delivered to the Secured Party. The Debtor shall pay all insurance premiums
when due. In the event of loss, damage, or injury to any insured Collateral,
the Secured Party shall have full power to collect any and all insurance
proceeds due under any of such policies, and shall apply such proceeds to the
repair or replacement of such Collateral or, if such Collateral is not
repairable or replaceable, to the payment of any of the Obligations secured
hereby.
(I) TAXES, LEVIES, ETC. The Debtor has paid and shall
continue to pay when due all taxes, levies, assessments, or other charges which
may become an enforceable lien against the Collateral, unless such taxes,
levies, assessments, or other charges are being contested by the Debtor in good
faith and by appropriate proceedings and then only to the extent reasonable
reserves required by generally accepted accounting principles have been set
aside on the Debtor's books therefor.
(J) DISPOSITION AND USE OF COLLATERAL BY THE DEBTOR.
Without the prior written consent of the Secured Party, the Debtor shall not at
any time sell, transfer, lease, abandon, or otherwise dispose of any Collateral
other than in accordance with the provisions of the MCTC Guaranty; provided,
however, that no dispositions shall be made if an Event of Default (as defined
in Section 4) shall have occurred and be continuing. The Debtor shall not use
any of the Collateral in any manner which violates any statute, regulation,
ordinance, rule, decree, order, or insurance policy.
(K) RECEIVABLES. The Debtor shall preserve, enforce, and
collect all accounts, chattel paper, instruments, documents and general
intangibles, whether now owned or hereafter acquired or arising (the
"Receivables"), in a commercially reasonable fashion and, if an Event of
Default shall have occurred and be continuing, upon the request of the Secured
Party, the Debtor shall execute an agreement in form and substance satisfactory
to the Secured Party by which the Debtor shall direct all account debtors and
obligors on
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instruments to make payment to a lock box deposit account under the exclusive
control of the Secured Party.
(L) CONDITION OF COLLATERAL. All tangible Collateral is
now in good repair and condition and the Debtor shall at all times hereafter,
at its own expense, maintain all such Collateral in good repair and condition,
ordinary wear and tear excepted.
(M) CONDITION OF BOOKS AND RECORDS. The Debtor has
maintained and shall maintain complete, accurate and up-to-date books, records,
accounts, and other information relating to all Collateral in the present form
and detail, and shall allow the Secured Party or its representatives to examine
and copy such books, records, accounts, and other information at any reasonable
time, upon reasonable notice from the Secured Party.
(N) RIGHT OF INSPECTION. At all reasonable times and upon
reasonable notice from the Secured Party, the Debtor shall allow the Secured
Party or its representatives to visit any of the Debtor's properties or
locations so that the Secured Party or its representatives may confirm, inspect
and appraise any of the Collateral.
(O) PLEDGE OF STOCK. Upon the acquisition of capital
stock of any subsidiary, the Debtor shall execute and deliver to the Secured
Party a stock pledge agreement in form and substance satisfactory to the
Secured Party, pursuant to which the Debtor shall pledge, on a first-priority
basis, all of its stock in such subsidiary and shall covenant and agree to
pledge to the Secured Party, on a first-priority basis, all capital stock it
may thereafter acquire in that or any other subsidiary.
SECTION 4. DEFAULT. The occurrence of an event of default under any of
the Loan Documents (including, without limitation, the Loan Agreement, the
Notes and the MCTC Guaranty), the breach of or failure to perform any covenant
or agreement contained in this Security Agreement, or any material inaccuracy
as of the date made in any representation or warranty contained in this
Security Agreement shall constitute an "Event of Default" hereunder; provided
that the Debtor shall have 30 days after notice from the Secured Party to cure
any breach of the covenants set forth in Sections 3(H), (K), (L), (M), and (N).
SECTION 5. RIGHTS AND REMEDIES. Upon the occurrence of any Event of
Default and at any time during the continuance thereof, the Secured Party may
declare all Obligations to be immediately due and payable and, to the extent
permitted by applicable law and subject to any necessary approval of the FCC
relating to the exercise of remedies hereunder involving any transfer, sale or
disposition of the Debtor's assets, may exercise any and all rights and
remedies of the Secured Party in the enforcement of its security interest under
the UCC, this Security Agreement (including, without limitation, Section 7), or
any other applicable law. Without limiting the foregoing:
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(A) DISPOSITION OF COLLATERAL. The Secured Party may
sell, lease, or otherwise dispose of all or any part of the Collateral, in its
then present condition or following any commercially reasonable preparation or
processing thereof, whether by public or private sale or at any brokers' board,
in lots or in bulk, for cash, on credit or otherwise, with or without
representations or warranties, and upon such other terms as may be acceptable
to the Secured Party, and the Secured Party may purchase such Collateral at any
public sale. At any time when advance notice of sale is required, the Debtor
agrees that 10 days' prior written notice shall be reasonable. In connection
with the foregoing, the Secured Party may:
(1) require the Debtor to assemble the Collateral and all
records pertaining thereto and make such Collateral and records
available to the Secured Party at a place to be designated by the
Secured Party which is reasonably convenient to both parties;
(2) enter the premises of the Debtor or premises under
the Debtor's control and take possession of the Collateral;
(3) without charge by the Debtor, use or occupy the
premises of the Debtor or premises under the Debtor's control,
including, without limitation, warehouse and other storage facilities;
(4) without charge by the Debtor, use any patent,
trademark, trade name, or other intellectual property or technical
process used by the Debtor in connection with any of the Collateral;
and
(5) rely conclusively upon the advice or instructions of
any one or more brokers or other experts selected by the Secured Party
to determine the method or manner of disposition of any of the
Collateral and, in such event, any disposition of the Collateral by
the Secured Party in accordance with such advice or instructions shall
be deemed to be commercially reasonable.
(B) COLLECTION OF RECEIVABLES. The Secured Party may, but
shall not be obligated to, take all actions reasonable or necessary to
preserve, enforce or collect the Receivables, including, without limitation,
the right to notify account debtors and obligors on instruments to make direct
payment to the Secured Party, to permit any extension, compromise, or
settlement of any of the Receivables for less than face value, or to xxx on any
Receivable, all without prior notice to the Debtor.
(C) PROCEEDS. The Secured Party may collect and apply all
proceeds of the Collateral, and may endorse the name of the Debtor in favor of
the Secured Party on any
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and all checks, drafts, money orders, notes, acceptances, or other instruments
of the same or a different nature, constituting, evidencing, or relating to the
Collateral. The Secured Party may receive and open all mail addressed to the
Debtor and remove therefrom any cash or non-cash items of payment constituting
proceeds of the Collateral.
(D) INSURANCE ADJUSTMENTS. The Secured Party may adjust
and settle any and all insurance covering any Collateral, endorse the name of
the Debtor on any and all checks or drafts drawn by any insurer, whether
representing payment for a loss or a return of unearned premium, and execute
any and all proofs of claim and other documents or instruments of every kind
required by any insurer in connection with any payment by such insurer.
The net proceeds of any disposition of the Collateral shall be applied by the
Secured Party, after deducting its reasonable expenses incurred in such
disposition, to the payment in whole or in part of the Obligations in such
order as the Secured Party may elect. The enumeration of the foregoing rights
and remedies is not intended to be exhaustive, and the exercise of any right
and/or remedy shall not preclude the exercise of any other rights or remedies,
all of which are cumulative and non-exclusive.
SECTION 6. OTHER PROVISIONS.
(A) AMENDMENT AND WAIVER. Without the prior written
consent of the Secured Party, no amendment or waiver of, or consent to any
departure by the Debtor from, any provision hereunder shall be effective. Any
such amendment, waiver, or consent shall be effective only in the specific
instance and for the specific purpose for which given. No delay or failure by
the Secured Party to exercise any remedy hereunder shall be deemed a waiver
thereof or of any other remedy hereunder. A waiver on any one occasion shall
not be construed as a bar to or waiver of any remedy on any subsequent
occasion.
(B) COSTS AND ATTORNEYS' FEES. Except as prohibited by
law, if at any time the Secured Party employs counsel in connection with the
creation, perfection, preservation, or release of the Secured Party's security
interest in the Collateral or the enforcement of any of the Secured Party's
rights or remedies hereunder, all of the Secured Party's reasonable attorneys'
fees arising from such services and all expenses, costs, or charges relating
thereto shall become part of the Obligations secured hereby and be paid by the
Debtor on demand.
(C) REVIVAL OF OBLIGATIONS. To the extent the Debtor or
any third party makes a payment or payments to the Secured Party or the Secured
Party enforces its security interest or exercises any right of setoff, and such
payment or payments or the proceeds thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, and/or required to be
repaid to a trustee, receiver, or any other party under any
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bankruptcy, insolvency or other law or in equity, then, to the extent of such
recovery, the Obligations or any part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment or payments had not been made, or such enforcement or setoff had not
occurred.
(D) PERFORMANCE BY THE SECURED PARTY. In the event the
Debtor shall at any time fail to pay or perform punctually any of its duties
hereunder within any grace period provided therefor, the Secured Party may, at
its option and without notice to or demand upon the Debtor, without obligation
and without waiving or diminishing any of its other rights or remedies
hereunder, fully perform or discharge any of such duties. All costs and
expenses incurred by the Secured Party in connection therewith, together with
interest thereon at the Secured Party's National Variable Rate (as defined in
the Loan Agreement) plus 4% per annum, shall become part of the Obligations
secured hereby and be paid by the Debtor upon demand.
(E) INDEMNIFICATION, ETC. The Debtor hereby expressly
indemnifies and holds the Secured Party harmless from any and all claims,
causes of action, or other proceedings, and from any and all liability, loss,
damage, and expense of every nature, arising by reason of the Secured Party's
enforcement of its rights and remedies hereunder, or by reason of the Debtor's
failure to comply with any environmental or other law or regulation, other than
any such claim, cause of action or other proceeding, liability, loss, damage or
expense arising by reason of gross negligence, willful misconduct or violation
of law on the part of the Secured Party.
(F) POWER OF ATTORNEY. The Debtor hereby constitutes and
appoints the Secured Party or the Secured Party's designee during the term of
any Obligations secured by this Security Agreement as its attorney-in-fact,
which appointment is an irrevocable, durable agency, and coupled with an
interest, with full power of substitution. This power of attorney and mandate
is for the purpose of taking, upon an Event of Default, whether in the name of
the Debtor or in the name of the Secured Party, any action which the Debtor is
obligated to perform hereunder or which the Secured Party may deem necessary or
advisable to accomplish the purposes of this Security Agreement. In taking any
action in accordance with this Section 6(F), the Secured Party shall not be
deemed to be the agent of the Debtor. The powers conferred upon the Secured
Party in this Section are solely to protect its interest in the Collateral and
shall not impose any duty upon the Secured Party to exercise any such powers.
(G) CONTINUING EFFECT. This Security Agreement, the
Secured Party's security interest in the Collateral, and all other documents or
instruments contemplated hereby shall continue in full force and effect until
all of the Obligations have been satisfied in full, each of the Loan Agreement
and the MCTC Guaranty has been terminated in
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accordance with its respective terms and the Debtor has sent a valid written
demand to the Secured Party for termination of this Security Agreement.
(H) BINDING EFFECT. This Security Agreement shall be
binding upon and inure to the benefit of the Debtor and the Secured Party and
their respective successors and assigns.
(I) SECURITY AGREEMENT AS FINANCING STATEMENT. A
photographic copy or other reproduction of this Security Agreement may be used
as a financing statement.
(J) GOVERNING LAW. Except to the extent governed by
applicable federal law, this Security Agreement shall be governed by and
construed in accordance with the laws of the State of Louisiana without
reference to choice of law doctrine.
(K) NOTICES. All notices hereunder shall be deemed to be
duly given upon delivery in the form and manner set forth in Section 7(E) of
the MCTC Guaranty to the parties at the following addresses (or such other
address for a party as shall be specified by like notice):
If to CoBank, as follows: If to the Debtor, as follows:
CoBank, ACB Mercury Cellular Telephone Company
000 Xxxxxxxx Xxxxxxx X.X. Xxx 0000
Xxxxx 0000 Xxxx Xxxxxxx, Xxxxxxxxx 00000
Xxxxxxx, Xxxxxxx 00000 Attn: Xxxxxx Xxxxx;
Attn: Rural Utility Banking Group cc: Xxxxxx X. Xxxxxxx
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
(L) SEVERABILITY. The determination that any term or
provision of this Security Agreement is unenforceable or invalid shall not
affect the enforceability or validity of any other term or provision hereof.
SECTION 7. LOUISIANA PROVISIONS.
(A) GENERAL. The provisions of this Section 7 shall apply
to the Collateral and all proceeds thereof at all times during which such
Collateral or the proceeds thereof are located in Louisiana or are otherwise
subject to the application of Louisiana law in any respect. The term "Louisiana
Collateral" as used herein shall refer to all portions of the Collateral and
the proceeds thereof that are from time to time located in the State of
Louisiana or are otherwise subject to Louisiana law at all times during which
such portions
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or proceeds thereof are located in Louisiana or are otherwise mandatorily
subject to the application of Louisiana law under the applicable laws of other
states.
(B) FINANCING STATEMENTS. Contemporaneously with the
execution of this Security Agreement, the Debtor has completed and signed one
or more appropriate Louisiana UCC-1 financing statements with regard to the
Collateral and the proceeds thereof. The Debtor authorizes the Secured Party,
at the Debtor's expense, to file multiple originals, or photocopies, carbon
copies or facsimile copies of such Louisiana UCC-1 financing statements with
the appropriate filing officer or officers in the State of Louisiana, pursuant
to the provisions of Chapter 9 of the Louisiana Commercial Laws.
(C) IDENTIFICATION NUMBER. The Debtor shall give the
Secured Party 30 days' written notice prior to any change in the Debtor's
employer identification number by the Debtor and shall give the Secured Party
written notice of any change in the Debtor's employer identification number
that is not made by the Debtor within 30 days after such change. In the event
of any change whatsoever in the Debtor's employer identification number, the
Debtor will execute and file any new financing statements or any other
documents that are necessary or desirable as determined by the Secured Party in
its sole discretion to preserve and continue the Secured Party's security
interests under this Security Agreement within thirty (30) days after such
change.
(D) EVENT OF DEFAULT; REMEDIES. Upon the occurrence of
any Default hereunder, the Secured Party shall have the following rights and
remedies with respect to the Louisiana Collateral, which rights and remedies
are in addition to and are not in lieu or limitation of any other rights and
remedies that may be provided in this Security Agreement, the Loan Agreement,
the MCTC Guaranty or any related documents, under Chapter 9 of the Louisiana
Commercial Laws (La. R.S. Sections 10:9-101, et seq.), under the Uniform
Commercial Code of any state other than Louisiana, or at law or equity
generally:
(1) The Secured Party may cause the Louisiana
Collateral, or any part or parts thereof; to be immediately seized
wherever found, and sold, whether in term of court or in vacation,
under ordinary or executory process, in accordance with applicable
Louisiana law, to the highest bidder for cash, with or without
appraisement, without the necessity of making additional demand, or of
notifying the Debtor or placing the Debtor in default.
(2) For purposes of foreclosure under Louisiana
executory process procedures, the Debtor confesses judgment and
acknowledges to be indebted unto and in favor of the Secured Party up
to the full amount of the Obligations, in principal, interest, costs,
expenses, attorneys' fees and other fees and charges. To the extent
permitted under applicable Louisiana law, the Debtor additionally
waives: (a)
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the benefit of appraisal as provided in Articles 2332, 2336, 2723 and
2724 of the Louisiana Code of Civil Procedure and all other laws with
regard to appraisal upon judicial sale; (b) the demand and 3 days'
delay as provided under Articles 2639 and 2721 of the Louisiana Code
of Civil Procedure; (c) the notice of seizure as provided under
Articles 2293 and 2721 of the Louisiana Code of Civil Procedure; (d)
the 3 days' delay provided under Articles 2331 and 2722 of the
Louisiana Code of Civil Procedure; and (e) all other benefits provided
under Articles 2331, 2722 and 2723 of the Louisiana Code of Civil
Procedure and all other similar provisions of the Louisiana Code of
Civil Procedure not specifically listed hereinabove.
(3) Should any of the Louisiana Collateral be
seized as an incident to an action for the recognition or enforcement
of the Obligations or this Security Agreement, the Loan Agreement, the
MCTC Guaranty or any related document, by executory process,
sequestration, attachment, writ of fieri facias or otherwise, the
Debtor agrees that the court issuing any such order shall, if
requested by the Secured Party, appoint the Secured Party or any
person or entity named by the Secured Party at the time such seizure
is requested, or at any time thereafter, as keeper of the Louisiana
Collateral as provided under La. R.S. Sections 9:5136, et seq. The
Debtor agrees to pay the reasonable fees of such keeper, which
compensation to the keeper shall also be a part of the Obligations
secured under this Security Agreement.
(4) Should it become necessary for the Secured
Party to foreclose against the Louisiana Collateral, all declarations
of fact that are made under an authentic act before a Notary Public in
the presence of two witnesses, by a person declaring such facts to lie
within his or her knowledge, shall constitute authentic evidence for
purposes of executory process and also for purposes of La. R.S.
Section 9:3509.1, La. R.S. Section 9:3504(D)(6) and La. R.S. Section
10:9-508, as applicable.
(E) GOVERNING LAW. ANYTHING TO THE CONTRARY CONTAINED IN
THIS SECURITY AGREEMENT NOTWITHSTANDING, THE SECURITY INTERESTS IN THE
LOUISIANA COLLATERAL GRANTED IN THIS SECURITY AGREEMENT, AND THE SECURED
PARTY'S REMEDIES IN THE COURTS SITTING IN AND FOR ThE STATE OF LOUISIANA WITH
RESPECT TO THE LOUISIANA COLLATERAL SHALL BE GOVERNED BY LOUISIANA LAW.
SECTION 8. FCC MATTERS. Notwithstanding any other provision of this
Security Agreement:
(A) Any foreclosure on, sale, transfer or other
disposition of any of the Collateral by the Secured Party shall be pursuant to
Section 310(d) of the Communications Act of 1934, as amended, and the
applicable rules and regulations thereunder, and, if and
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Security Agreement/MCTC
Loan No. T0362
to the extent required thereby, subject to the prior approval or notice to and
non-opposition of the FCC.
(B) If a Default shall have occurred and be continuing,
the Debtor shall take any action, which the Secured Party may reasonably
request in order to transfer and assign to the Secured Party, or to such one or
more third parties as the Secured Party may designate, or to a combination of
the foregoing, each FCC license or permit held by the Debtor. The Secured Party
is empowered, to the extent permitted by applicable law, to request the
appointment of a receiver from any court of competent jurisdiction. Such
receiver may be instructed by the Secured Party to seek from the FCC an
involuntary transfer of control of each such FCC license or permit for the
purpose of seeking a bona fide purchaser to whom control will ultimately be
transferred. The Debtor hereby agrees to authorize such an involuntary transfer
of control upon the request of the receiver so appointed and, if the Debtor
shall refuse to authorize the transfer, its approval may be required by the
court. Upon the occurrence and during the continuance of a Default, the Debtor
shall further use its best efforts to assist in obtaining approval of the FCC
and any state regulatory bodies, if required, for any action or transactions
contemplated by this Security Agreement, including, without limitation, the
preparation, execution and filing with the FCC and any state regulatory bodies
of the assignor's or transferor's portion of any application or applications
for consent to the assignment of any FCC license or permit or transfer of
control necessary or appropriate under the rules and regulations of the FCC or
any state regulatory body for approval or non-opposition of the transfer or
assignment of any portion of the Collateral, including, without limitation,
with any FCC license or permit.
(C) The Debtor acknowledges that the assignment or
transfer of each FCC license or permit is integral to the Secured Party's
realization of the value of the Collateral, that there is no adequate remedy at
law for failure by the Secured Party to comply with the provisions of this
Section 8 and that such failure would not be adequately compensable in damages,
and therefore agrees, without limiting the right of the Secured Party to seek
and obtain specific performance of other obligations of the Debtor contained in
this Security Agreement, that the agreements contained in this Section 8 may be
specifically enforced.
(D) In accordance with the requirements of 47 C.F.R.
Section 22.917, or any successor provision thereto, the Secured Party shall
notify the Debtor and the FCC in writing at least 10 days prior to the date on
which the Secured Party intends to exercise its rights, pursuant to this
Security Agreement or any of the other Loan Documents, by foreclosing on, or
otherwise disposing of, any Collateral in connection with which such notice is
required pursuant to 47 C.F.R. Section 22.917 or any successor provision
thereto.
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Security Agreement/MCTC
Loan No. T0362
THUS DONE AND SIGNED in several counterparts at the places and on the
dates indicated below and in the presence of the respective undersigned
Notaries Public and the respective undersigned witnesses indicated below, by
the duly authorized officers of the respective parties, after a due reading of
the whole.
At Lake Charles, Louisiana, on April 20, 1995.
MERCURY CELLULAR TELEPHONE COMPANY
By: /s/ XXXXXX XXXXX
--------------------
Name: Xxxxxx Xxxxx
Title: President
Attest: /s/ XXXXXX X. XXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
[CORPORATE SEAL]
Witnesses to all Signatures:
/s/XXXXXX XXXX
------------------
Witness
/s/ XXXXXXX XXXXX
------------------
Witness
[ILLEGIBLE]
------------------
Notary Public
My commission expires: Lifetime Commission
[NOTARIAL SEAL]
(Signatures Continued on Next Page)
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Security Agreement/MCTC
Loan No. T0362
(Signatures Continued from Previous Page)
At Atlanta, Georgia on April 26, 1995.
COBANK, ACB
By: /s/ XXXX XXX XXXXXXX
-------------------------
Name: Xxxx Xxx Xxxxxxx
Title: Assistant Vice President
Witnesses to Signature:
[ILLEGIBLE]
--------------------------
Witness
[ILLEGIBLE]
--------------------------
Witness
/s/ XXXXXX X. XXXXX
--------------------------
Notary Public
My commission expires: Notary Public, Paulding County, Georgia
My Commission Expires July 14, 1997
[NOTARIAL SEAL]
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SCHEDULE A
TO
SECURITY AGREEMENT
OF
MERCURY CELLULAR TELEPHONE COMPANY
1. Set for the below are the present locations (by county or parish and
state) of the Debtor's inventory and equipment:
LOUISIANA PARISHES LOCATION TYPE OF PROPERTY
Xxxxx Xxxxxx Tower
Xxxxxxxxxx DeRidder Tower
Merryville Tower
Ragley Tower
Calcasieu Vinton Tower
Edgerly Tower
Sulphur Tower and Retail Store
DeQuincy Tower
Lake Xxxxxxx - Xxxxxx Road Tower
Lake Xxxxxxx - XX Tower Tower and Office
Lake Xxxxxxx Retail Store
Xxxxxxx Xxxxxxx Tower
Grand Xxxxxxx Tower
Xxxxxxx Bayou Tower
Xxxxxxxxx Xxxxx Xxxxxxxx Tower
Xxxxxxxx Retail Store
Xxxxxx Leesville Retail Store
Fort Polk Tower
2. Set forth below are the locations (by county or parish and state) at
which any of the Debtor's inventory and equipment has been located within the
past five years:
See Above
3. Set forth below is a description of any exception to the
representation made in Section 3(E) of the Security Agreement:
None
