EXHIBIT 10.1.5
Loan No. ML0883T1
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Security Agreement") is made and entered
into as of June 29, 2001, by ITC GLOBE, INC., a corporation formed and existing
under the laws of the State of Delaware ("Debtor"), having its place of business
(or chief executive office if more than one place of business) located at 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000, whose taxpayer identification number is
00-0000000, in favor of COBANK, ACB ("Secured Party"), whose mailing address is
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000, and whose taxpayer
identification number is 00-0000000. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in the Master Loan
Agreement, dated as of even date herewith, between Globe Telecommunications,
Inc., Interstate Telephone Company, Valley Telephone Co., Inc. and Secured
Party.
SECTION 1. Grant of Security Interest. For valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Debtor hereby grants
to Secured Party a first superior continuing security interest in all of
Debtor's estate, right, title and interest in and to the following property,
wherever located and whether now existing or hereafter arising or acquired,
together with all increases, substitutions, replacements, attachments,
accessions and additions thereto, and all products and proceeds thereof,
including, without limitation, the proceeds of any insurance policies covering
any of the foregoing:
accounts (including, without limitation, all right to payment for the
provision of wireless and related communications services and wireless and
related equipment sales and leasing), whether or not earned by
performance, and all guaranties, security and instruments therefor, and
all goods and rights represented thereby or arising therefrom, including
the rights of stoppage in transit, replevin and reclamation; inventory and
supplies (including, without limitation, returned or repossessed goods);
chattel paper (including, without limitation, electronic chattel paper);
instruments; investment property (including, without limitation,
certificated and uncertificated securities, security accounts, securities
entitlements, margin accounts, commodity contracts and commodity accounts)
and letters of credit; documents; fixtures; general intangibles
(including, without limitation, payment intangibles, contracts and
contract rights (including, without limitation, construction contracts,
subscriber contracts, customer service agreements, management agreements,
rights-of-ways, easements, pole attachment agreements, transmission
capacity agreements and public utility contracts), leases of personal
property, choses or things in action, litigation rights and resulting
judgments, goodwill, patents, trademarks, service marks and other
intellectual property, tax refunds, miscellaneous rights to payment,
entitlements and investments, software, computer programs, invoices,
books, records and other
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information relating to or arising out of Debtor's business, and, to the
extent permitted by law, all licenses and permits issued by any federal or
state governmental body or regulatory authority, including, without
limitation, any license issued by the Federal Communications Commission
(the "FCC") or any PUC); 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,
CODECs, switches (including, without limitation, host switches and remote
switches), testboards, amplifiers, racks, frames, motors, generators,
batteries, items of central office equipment, pay-stations, protectors,
subscriber equipment, instruments, connections and appliances used, useful
or acquired for use in the business of Debtor or the operation of Debtor's
properties); and, to the extent not covered by the above, all other
personal property of Debtor of every type and description, including,
without limitation, interests or claims in or under any policy of
insurance, tort claims, deposits, deposit accounts, collection accounts,
money, and judgments; provided, however, that no security interest is
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granted in Debtor's 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, and to the extent not otherwise defined herein, all terms used
herein shall have the same meaning as set forth in the Uniform Commercial Code
in effect in the State of Colorado, as amended from time to time (the "UCC").
Any of the foregoing terms which are defined in the UCC shall have the meaning
provided in the UCC, as amended and in effect from time to time, as supplemented
and expanded by the foregoing. For avoidance of doubt, it is expressly
understood and agreed that, to the extent the UCC is revised subsequent to the
date hereof such that the definition of any of the foregoing terms included in
the description of Collateral is changed, the parties hereto desire that any
property which is included in such changed definitions which would not otherwise
be included in the foregoing grant on the date hereof be included in such grant
immediately upon the effective date of such revision. Notwithstanding the
immediately preceding sentence, the foregoing grant is intended to apply
immediately on the date hereof to all Collateral to the fullest extent permitted
by applicable law regardless of whether any particular item of Collateral is
currently subject to the UCC.
The security interests are granted as security only and shall not subject
Secured Party to, or transfer to Secured Party, or in any way affect or modify,
any obligation or liability of Debtor with respect to any of the Collateral or
any transaction in connection therewith. Debtor will perform and comply in all
material respects with all of its obligations in respect of the Collateral,
including, without limitation, accounts, contracts, leases and other general
intangibles, and the exercise by Secured Party of any of its rights hereunder
shall not release Debtor from any of its
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duties or obligations. Secured Party shall not have any obligation or liability
under the contracts and agreements included in the Collateral by reason of this
Agreement, nor shall Secured Party be obligated to perform any of the
obligations or duties of Debtor thereunder or to take any action to collect or
enforce any claim for payment assigned hereunder.
SECTION 2. Obligations. The grant of the security interest hereunder
shall secure the following obligations (the "Obligations"): (i) the
"Obligations" of the Debtor as defined in that certain Continuing Guaranty,
dated as of even date herewith, by and between Debtor and Secured Party (as the
same may be amended, modified, supplemented, extended or restated from time to
time, the "Guaranty"); and (ii) the payment of all other indebtedness and the
performance of all other obligations of Debtor to Secured Party 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 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.
SECTION 3. Representations and Warranties. Debtor represents and warrants
to Secured Party on the date hereof that the following statements are true,
correct and complete:
(A) Title to Collateral. Debtor has good and marketable title to the
Collateral, free of all adverse claims, interests, liens or encumbrances, other
than those permitted pursuant to Section 8(B) of the MLA. The security interest
created under this Security Agreement constitutes a valid and perfected security
interest in the Collateral, prior to all other liens and rights of others
therein, except as permitted pursuant to Section 8(B) of the MLA, and all
filings and other actions necessary or desirable to perfect and protect such
security interest have been duly taken.
(B) Validity of Security Agreement; Authority. This Security Agreement is
the legally valid and binding obligation of Debtor, enforceable against Debtor
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. Debtor has the power and authority to execute, deliver, perform its
obligations under, and to grant the security interest provided for, in this
Security Agreement and the other Loan Documents, and has taken all necessary
action to authorize the execution, delivery and performance of, and grant of a
security interest pursuant to, this Security Agreement and the other Loan
Documents.
(C) Location of Debtor; Tax Identification Number. Debtor's place of
business (or chief executive office if more than one place of business) is
located at the address shown above, and Debtor's tax identification number is as
shown above.
(D) Location of Collateral. All locations at which the Collateral is
located are specified on Schedule A attached hereto and made a part hereof.
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(E) Name, Identity, and Structure. During the past five (5) years,
Debtor's business has not been conducted under any name other than Debtor's name
as set forth above, nor has it
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changed its structure through incorporation, merger, consolidation, joint
venture or otherwise or purchased all or substantially all of the assets of any
person or entity.
(F) Insurance. The Collateral currently is insured consistent with the
requirements of the MLA.
(G) Taxes, Levies, Etc. Debtor has filed or caused to be filed all
federal, state and local tax returns that are required to be filed, and has paid
and shall continue to pay when due all taxes as shown on such returns.
(H) Condition of Collateral. All Collateral and each and every part and
parcel thereof necessary to or useful in the proper conduct of Debtor's business
is in good repair, working order and condition, ordinary wear and tear excepted.
SECTION 4. Covenants. Debtor will comply with all covenants in this
Section 4, unless Debtor has received the written consent of Secured Party:
(A) Title to Collateral. Debtor shall not create or permit the existence
of claims, interests, liens, or other encumbrances against any of the Collateral
not permitted pursuant to Section 8(B) of the MLA. Debtor shall provide prompt
written notice to Secured Party of any future claims, interests, liens or
encumbrances against any of the Collateral, and shall defend diligently Debtor's
and Secured Party's interests (including the priority of such interests) in all
Collateral.
(B) Change in Location, Name, Etc. Debtor agrees not to (i) change the
location of its place of business or chief executive office; (ii) keep or hold
any Collateral or any records related thereto at any location other than the
locations described on Schedule A; or (iii) change its name, identity, or
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employer identification number, unless it shall have given Secured Party thirty
(30) days' prior written notice of its intention to take any action described in
clauses (i) through (iii), and executed and delivered to Secured Party all
financing statements and financing statement amendments which Secured Party may
request in connection therewith and, if requested by Secured Party, prior to the
date on which Debtor proposes to take any such action, Debtor will, at its own
cost and expense, cause to be delivered to Secured Party an opinion of counsel,
in form and content satisfactory to Secured Party, as to the continued
perfection and priority of the security interests created hereunder.
(C) Change in Structure. Debtor agrees not to change its structure in any
manner except as permitted pursuant to the MLA and the Guaranty and, if
requested by Secured Party, prior to the date on which Debtor proposes to take
any such action, Debtor will, at its own cost and expense, cause to be delivered
to Secured Party an opinion of counsel, in form and content satisfactory to
Secured Party, as to the continued perfection and priority of the security
interests created hereunder. Debtor shall give Secured Party thirty (30) days'
prior written notice of its intention to take any action described in this
Section 4(C).
(D) Further Assurances. Upon the request of Secured Party, Debtor shall
do all acts and things as 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 Secured Party
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in the Collateral, or to facilitate the exercise by Secured Party of any rights
or remedies granted to Secured Party hereunder or provided by law. Without
limiting the foregoing, Debtor agrees to execute, in form and substance
satisfactory to Secured Party, such financing statements, continuation
statements, amendments thereto, supplemental agreements, assignments, notices of
assignments, and other instruments and documents as 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), Debtor shall, upon the request of Secured Party,
deliver possession thereof to Secured Party (or to a designee of Secured Party
retained for that purpose), together with any appropriate endorsements or
assignments or both. Without limiting the generality of the foregoing, Debtor
shall take such action as Secured Party may request from time to time to create
and perfect a security interest in favor of Secured Party in any and all leases,
rights of way, easements, franchises, 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, using
its best efforts in good faith to amend such leases, rights of way, easements,
franchises, licenses and permits to allow the creation and perfection of such
security interest and obtain the consent of all third parties whose consents may
be necessary to the creation and perfection of such security interest. Secured
Party shall use reasonable care in the custody and preservation of any
Collateral 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 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 fees and expenses of
any designee of Secured Party) shall become part of the Obligations secured
hereby and be paid by Debtor on demand.
(E) Insurance. Debtor shall maintain such insurance with such insurance
companies, in such amounts, and covering such risks, as are at all times
required pursuant to the MLA and the Guaranty. So long as no Default (as
hereinafter defined) has occurred and is continuing hereunder, any and all
insurance proceeds due under such policies may be paid solely to Debtor for
individual losses not exceeding $25,000 and aggregate annual losses not
exceeding $100,000 for application of such proceeds to the repair or replacement
of such Collateral, which repaired or replaced Collateral shall continue to be
subject to the security interests and liens of Secured Party to the same extent
as the destroyed or damaged Collateral.
(F) Disposition and Use of Collateral by Debtor. Without the prior
written consent of Secured Party, 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 MLA and the Guaranty; provided, however, that no
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dispositions shall be made if a Default shall have occurred and be continuing
hereunder. Debtor shall not use any of the Collateral in any manner which
violates any applicable law.
(G) Receivables. 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 diligent
fashion and, if a Default shall have occurred and be continuing hereunder, upon
the request of Secured Party, Debtor shall execute an agreement in form and
content satisfactory to Secured Party by which Debtor shall direct all account
debtors
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and obligors on instruments to make payment to a lock box deposit account under
the exclusive control of Secured Party.
(H) Collateral Maintenance. Maintain and preserve all Collateral and each
and every part and parcel thereof that is necessary to or useful in the proper
conduct of its business in good repair, working order, and condition, ordinary
wear and tear excepted, and make all alterations, replacements, and improvements
thereto as may from time to time be necessary in order to ensure that its
properties remain in good working order and condition. At Secured Party's
request, but not more than once a year, Debtor will furnish to Secured Party a
report on the condition of the Collateral prepared by a professional engineer
satisfactory to Secured Party.
(I) Condition of Books and Records. Debtor shall maintain complete,
accurate and up-to-date books, records, accounts, and other information relating
to all Collateral in such form and in such detail as may be satisfactory to
Secured Party, and shall allow Secured Party or its representatives to examine
and copy such books, records, accounts and other information upon reasonable
notice and during normal business hours, or at such other times as the parties
may agree. Debtor shall furnish to Secured Party statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as Secured Party may reasonably request, all in
reasonable detail.
(J) Right of Inspection. Debtor shall permit Secured Party or its
representatives, upon reasonable notice and during normal business hours or at
such other times as the parties may agree, to examine any of Debtor's properties
or locations and to discuss Debtor's affairs, finances and accounts with
Debtor's officers, directors, employees and independent certified public
accountants so that Secured Party or its representatives may confirm, inspect
and appraise any of the Collateral.
SECTION 5. Default. The breach of or failure to pay or perform any of the
Obligations secured hereby in accordance with their respective terms, which
breach or failure continues beyond any applicable cure period, the breach of or
failure to perform or observe any representation, warranty, covenant or
agreement contained in this Security Agreement or the existence of any Event of
Default under the MLA or the Guaranty shall constitute a "Default" hereunder;
provided that any breach of the terms of this Security Agreement which shall
also constitute a breach of the MLA or the Guaranty shall be subject to the same
notice and cure right applicable to such breach under the MLA and the Guaranty.
Once a Default exists, it shall be deemed to continue, notwithstanding any
curative action by Debtor, unless and until Secured Party, in its sole
discretion, shall state in writing that the Default no longer exists or has been
cured.
SECTION 6. Rights and Remedies. Upon the occurrence of any Default
hereunder, Secured Party may declare all Obligations to be immediately due and
payable and proceed against Debtor directly for payment, and, to the extent
permitted by applicable law, may exercise any and all rights and remedies of a
secured party in the enforcement of its security interest under the UCC, this
Security Agreement, or any other Applicable Law. Without limiting the foregoing:
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(A) Disposition of Collateral. Secured Party may sell, lease, or
otherwise dispose of all or any part of the Collateral, in its then condition or
following any commercially reasonable preparation or processing thereof, whether
by public, judicial 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 Secured Party, and
Secured Party may purchase such Collateral at any public or judicial sale, if
such Collateral is of a type customarily sold on a recognized market or is of a
type which is the subject of widely distributed standard price quotations, at
any private sale. To the extent permitted by law, Debtor hereby specifically
waives all rights of redemption, stay or appraisal which it has or may have
under any law now existing or hereafter adopted. At any time when advance notice
of sale is required, Debtor agrees that twenty (20) days' prior written notice
shall be reasonable. In connection with the foregoing, Secured Party may:
(1) require Debtor to assemble the Collateral and all records pertaining
thereto and make such Collateral and records available to Secured Party at a
place to be designated by Secured Party which is reasonably convenient to both
parties;
(2) enter the premises of Debtor or premises under Debtor's control and
take possession of the Collateral;
(3) without charge by Debtor, use or occupy the premises of Debtor or
premises under Debtor's control, including, without limitation, warehouse and
other storage facilities;
(4) without charge by Debtor, use or sublicense the use of any patent,
trademark, service xxxx, trade name or other intellectual property or technical
process used by Debtor in connection with any of the Collateral, (and such use
or right of use shall inure to the benefit of all successors, assigns and
transferees of Secured Party and their respective successors, assigns and
transferees, whether by voluntary conveyance, operation of law, assignment,
transfer, foreclosure, deed in lieu of foreclosure or otherwise);
(5) rely conclusively upon the advice or instructions of any one or more
brokers or other experts selected by 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 Secured Party in accordance with such advice or
instructions shall be deemed to be commercially reasonable; and
(6) compromise and settle or sell, assign or transfer or ask, collect,
receive or issue any and all claims possessed by Debtor which constitute a
portion of the Collateral, all in the name of Debtor.
(B) Collection of Receivables. 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 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 Debtor.
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(C) Proceeds. Secured Party may collect and apply all proceeds of the
Collateral, and may endorse the name of Debtor in favor of Secured Party on any
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 which may come into the possession of Secured Party. Secured Party
may receive and open all mail addressed to Debtor and remove therefrom any cash
or non-cash items of payment constituting proceeds of the Collateral.
(D) Insurance Adjustments. Secured Party may adjust, settle, and cancel
any and all insurance covering any Collateral, endorse the name of Debtor in
favor of Secured Party 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.
(E) Appointment of Receiver. Secured Party shall have the right to the
appointment of a receiver for the properties and assets of Debtor and Debtor
hereby consents to such right and to such appointment and hereby waives any
objection Debtor may have thereto and hereby waives the right to have a bond or
other security posted by Secured Party or any other person in connection
therewith. The net proceeds of any disposition of the Collateral may be applied
by Secured Party, after deducting its reasonable expenses incurred in such
disposition, including, but not limited to, the reasonable attorneys' fees and
legal expenses incurred by the Secured Party, to the extent not prohibited by
law to the payment in whole or in part of the Obligations in the manner provided
in the MLA and the Guaranty. The enumeration of the foregoing rights and
remedies is not intended to be exhaustive, and the exercise of any right or
remedy or both shall not preclude the exercise of any other rights or remedies,
all of which are cumulative and non-exclusive.
SECTION 7. State Regulatory Matters. Notwithstanding any other provision
of this Security Agreement:
(A) Any foreclosure on, sale, transfer or other disposition of, or the
exercise or relinquishment of any right to vote or consent with respect to, any
of the Collateral by Secured Party shall, to the extent required, be in
conformance with Sections 214 and 310(d) of the Communications Act of 1934, as
amended, and the applicable rules and regulations thereunder.
(B) If a Default shall have occurred and be continuing, Debtor shall take
any action which Secured Party may reasonably request in order to transfer or
assign, or both, to Secured Party, or to such one or more third parties as
Secured Party may designate, or to a combination of the foregoing, any PUC
license, permit, certificate or other authorization held by Debtor, subject to
the prior approval of any PUC, if required. Alternatively, 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 Secured Party to seek from any PUC consent to an involuntary
transfer of control of Debtor or assignment, or both, of each PUC license,
permit, certificate or other authorization for the purpose of seeking a bona
fide purchaser to whom control of assets used in the provision of
telecommunications or related services will ultimately be transferred or
assigned. Debtor hereby agrees to authorize such an involuntary transfer of
control or assignment, or both, upon the request of the receiver so appointed
and, if
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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, Debtor
shall further use its best efforts to assist in obtaining approval of any PUC
and any other state regulatory bodies, if required, for any action or
transactions contemplated by this Security Agreement, including, without
limitation, the preparation, execution and filing with any PUC and any other
state regulatory bodies of the assignor's or transferor's portion of any
application or applications for consent to the assignment of any PUC license or
permit or transfer of control necessary or appropriate under the rules and
regulations of any PUC or any other state regulatory body for approval or non-
opposition of the transfer or assignment of any portion of the Collateral,
together with any PUC license, permit, certificate or other authorization.
(C) Debtor acknowledges that the assignment or transfer of each PUC
license, permit, certificate or other authorization (subject to the prior
approval of any PUC, if required) is integral to Secured Party's realization of
the value of the Collateral, that there is no adequate remedy at law for failure
by Debtor to comply with the provisions of this Section 7 and that such failure
would not be adequately compensable in damages, and therefore agrees, without
limiting the right of Secured Party to seek and obtain specific performance of
other obligations of Debtor contained in this Security Agreement, that the
agreements contained in this Section 7 may be specifically enforced.
SECTION 8. Other Provisions.
(A) Amendment and Waiver. Without the prior written consent of Secured
Party, no amendment or waiver of, or consent to any departure by 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 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 Secured Party employs counsel in connection with the creation, perfection,
preservation, or release of the security interest of Secured Party in the
Collateral or the enforcement of any of Secured Party's rights or remedies
hereunder, all of Secured Party's reasonable attorneys' fees arising from such
services and all other reasonable expenses, costs, or charges relating thereto
shall become part of the Obligations secured hereby and be paid by Debtor on
demand.
(C) No Obligation to Make Loans. Nothing contained herein or in any
financing statement or other collateral document executed or filed in connection
herewith shall be construed to obligate Secured Party to make any loan or
advance to Debtor, whether pursuant to a commitment or otherwise.
(D) Performance by Secured Party. Upon the occurrence of a Default
hereunder, Secured Party may, at its option and without notice to or demand upon
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 Secured Party in connection therewith, together
with interest thereon at 4% per annum in excess of the highest
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interest rate applicable to any loan or advance secured hereby, shall become
part of the Obligations secured hereby and be paid by Debtor upon demand.
(E) Indemnification, Etc. Debtor hereby expressly indemnifies and holds
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 Secured Party's enforcement of its rights and
remedies hereunder, or by reason of 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
Secured Party. In any suit, proceeding or action brought by Secured Party under
any account for any sum owing thereunder, or to enforce any provisions of any
account, Debtor will save, indemnify and keep Secured Party harmless from and
against all expense, loss or damage suffered by reason of any defense, set off,
counterclaim, recoupment or reduction or liability whatsoever of the account
debtor or any other obligor thereunder, arising out of a breach by Debtor of any
obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such account debtor or obligor or
its successors from Debtor (except to the extent any such expense, loss or
damage results from the gross negligence or willful misconduct of Secured
Party). The obligations of Debtor under this Section 8(E) shall survive the
termination of the other provisions of this Security Agreement.
(F) Power of Attorney. Debtor hereby constitutes and appoints Secured
Party or Secured Party's designee during the term of any Obligations secured by
this Security Agreement as its attorney-in-fact, effective upon the occurrence
of a Default, which appointment is an irrevocable, durable agency, coupled with
an interest, with full power of substitution. This power of attorney and mandate
is for the purpose of taking, whether in the name of Debtor or in the name of
Secured Party, any action which Debtor is obligated to perform hereunder or
which Secured Party may deem necessary or advisable to accomplish the purposes
of this Security Agreement. The powers conferred upon Secured Party in this
Section are solely to protect its interest in the Collateral and shall not
impose any duty upon Secured Party to exercise any such powers. Secured Party
shall exercise its power of attorney only upon occurrence of a Default.
(G) Continuing Effect. This Security Agreement, the security interest of
Secured Party, 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 and each of the MLA, First Supplement
and the Note has been terminated in accordance with its respective terms.
(H) Binding Effect. This Security Agreement shall be binding upon and
inure to the benefit of Secured Party and its successors and assigns (as
permitted by the MLA), and in the event of an assignment of all or any of the
Obligations, the rights hereunder, to the extent applicable to the indebtedness
so assigned, may be transferred with such indebtedness. This Security Agreement
shall be binding upon and inure to the benefit of Debtor and its successor and
assigns; provided, that Debtor may not assign any of its rights or obligations
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hereunder without the prior written consent of Secured Party.
(I) Security Agreement as Financing Statement. A photographic copy or
other reproduction of this Security Agreement may be used as a financing
statement.
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Loan No. ML0883T1
(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 Colorado without reference to choice of law
doctrine.
(K) Notices. All notices hereunder shall be delivered to the Secured
Party in accordance with the terms and conditions set forth in Section 8(e) of
the Guaranty.
(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.
(M) Entire Agreement. This Security Agreement, together with all
documents referred to herein, constitute the entire agreement between Debtor and
Secured Party with respect to the matters addressed herein.
(N) Changes in Applicable Law. The parties acknowledge their intent that,
upon the occurrence and during the continuation of a Default, Secured Party
shall receive, to the fullest extent permitted by applicable law and government
policy (including, without limitation, the rules, regulations and policies of
the FCC or any PUC), all rights necessary or desirable to obtain, use or sell
the Collateral and to exercise all remedies available to it under this Security
Agreement, the UCC as in effect in any applicable jurisdiction or other
applicable law. The parties further acknowledge and agree that, in the event of
changes in the law or governmental law occurring subsequent to the date hereof
that affect in any manner Secured Party's rights of access to, or use or sale
of, the Collateral, or the procedures necessary to enable Secured Party to
obtain such rights of access, use or sale, Secured Party and Debtor shall amend
this Security Agreement in such manner as Secured Party shall reasonably request
in order to provide Secured Party such rights to the greatest extent possible
consistent with applicable law and governmental policy.
(O) Termination; Reinstatement. This Security Agreement shall remain in
full force and effect until (i) Secured Party has no further commitment or
obligation to make advances to be secured hereby with respect to the
Obligations, (ii) all Obligations have been paid in full and (iii) Secured Party
has executed and delivered a written statement of termination. To the extent
Debtor or any third party makes a payment or payments to Secured Party or
Secured Party enforces its security interest or exercises any right of set off,
and such payment or payments or the proceeds thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, or required
to be repaid to a trustee, receiver, or any other party under any bankruptcy,
insolvency or other law or in equity, or any combination of the foregoing, 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, and this Security Agreement, if earlier terminated, shall be revived and
continued in full force and effect, as if such payment or payments had not been
made, or such enforcement or set off had not occurred.
(P) Marshaling; Secured Party's Duties. Secured Party shall not be
required to marshal any present or future security for (including but not
limited to this Security Agreement and the Collateral subject to the security
interest created hereby), or guarantees of, the Obligations or any of them, or
to resort to such security or guarantees in any particular order; and
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all of its rights hereunder and in respect of such securities and guaranties
shall be cumulative and in addition to all other rights, however existing or
arising. To the extent that it lawfully may, Debtor hereby agrees that it will
not invoke any law relating to the marshaling of collateral, and to the extent
that it lawfully may do so Debtor hereby irrevocably waives the benefits of all
such laws. Except as otherwise provided by applicable law, Secured Party shall
have no duty as to the collection or protection of the Collateral or any income
thereon, nor as to the preservation of rights against prior parties, nor as to
the preservation of any rights pertaining thereto beyond the sole custody
thereof.
SECTION 9. Revised Article 9. The parties to this Security Agreement
acknowledge and agree to the following provisions of this Security Agreement in
anticipation of the possible application, in one or more jurisdictions to the
transactions contemplated hereby, of Revised Article 9. For purposes of this
Security Agreement, "Revised Article 9" shall mean the Revised Article 9 of the
UCC in the form or substantially in the form included in the 1999 official text
of the UCC as approved by the American Law Institute and the National Conference
of Commissioners on Uniform State Law.
(A) In applying the law of any jurisdiction in which Revised Article 9 is
in effect, the Collateral is all assets of Debtor whether or not within the
scope of Revised Article 9 including, without limitation, the following
categories of assets as defined in Revised Article 9: goods (including
inventory, equipment and any accessions thereto), instruments (including
promissory notes), documents, accounts (including health-care-insurance
receivables), chattel paper (whether tangible or electronic), deposit accounts,
letter-of-credit rights (whether or not the letter of credit is evidenced by a
writing), commercial tort claims, securities and all other investment property,
general intangibles (including payment intangibles and software), supporting
obligations and any and all proceeds of any thereof, wherever located, whether
now owned and hereafter acquired. If Debtor shall at any time, whether or not
Revised Article 9 is in effect in any particular jurisdiction, acquire a
commercial tort claim, as defined in Revised Article 9, Debtor shall immediately
notify Secured Party in a writing signed by Debtor of the brief details thereof
and grant to Secured Party in such writing a security interest therein and in
the proceeds thereof, all upon the terms of this Security Agreement, with such
writing to be in form and substance reasonably satisfactory to Secured Party.
(B) Secured Party may, at any time and from time to time, pursuant to the
provisions of Section 4(D), file financing statements, continuation statements
and amendments thereto that describe the Collateral as all assets of Debtor or
words of similar effect and which contain any other information required by
Revised Article 9 (including Part 5 thereof) for the sufficiency or filing
office acceptance of any financing statement, continuation statement or
amendment, including whether Debtor is an organization, the type of organization
and any organization identification number issued to Debtor. Debtor agrees to
furnish any such information to Secured Party promptly upon request. Any such
financing statements, continuation statements or amendments may be signed by
Secured Party on behalf of Debtor and may be filed at any time in any
jurisdiction whether or not Revised Article 9 is then in effect in that
jurisdiction.
(C) Debtor shall, at any time and from time to time, whether or not
Revised Article 9 is in effect in any particular jurisdiction, take such steps
as Secured Party may reasonably request for Secured Party (i) to obtain an
acknowledgment, in form and substance reasonably satisfactory to
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Secured Party, of any bailee having possession of any of the Collateral that
such bailee holds such Collateral for Secured Party, (ii) to obtain "control" of
any investment property, deposit accounts, letter-of-credit rights or electronic
chattel paper (as such terms are defined in Revised Article 9 with corresponding
provisions in revised Sections 9-104, 9-105, 9-106 and 9-107 (or such other
corresponding section) relating to what constitutes "control" for such items of
Collateral), with any agreements establishing control to be in form and
substance reasonably satisfactory to Secured Party, and (iii) otherwise to
insure the continued perfection and priority of Secured Party's security
interest in any of the Collateral and of the preservation of its rights therein,
whether in anticipation of or following the effectiveness of Revised Article 9
in any jurisdiction.
(D) Nothing contained in this Section shall be construed to narrow the
scope of Secured Party's security interest in any of the Collateral or the
perfection or priority thereof or to impair or otherwise limit any of the
rights, powers, privileges or remedies of Secured Party hereunder except (and
then only to the extent) mandated by Revised Article 9 to the extent then
applicable.
[Signatures follow on next page.]
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IN WITNESS WHEREOF, Debtor has caused this Security Agreement to be
executed and delivered and attached under seal, and Secured Party has caused
this Security Agreement to be executed and delivered, each by their duly
authorized officer(s) as of the date shown above.
ITC GLOBE, INC.
By:
---------------------------------
Name:
---------------------------
Title:
---------------------------
Attest:
-----------------------------
Name:
---------------------------
Title:
---------------------------
[CORPORATE SEAL]
COBANK, ACB
By:
----------------------------
Xxxx Xxxxxxx, Vice President
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SCHEDULE A
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Set forth below are the current locations (by parish or county and state) of
Debtor's inventory and equipment:
Xxxxxxxx County, Alabama
Xxxxx County, Georgia
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