Exhibit 10.4
SECURITY AGREEMENT
(Broadband Personal Communications Service, C Block: Auction Event No. 5)
License No PBB240C
This SECURITY AGREEMENT DATED March 28, 1997, ("Agreement") between D&E
Investments, Inc. a Nevada Corporation ("Debtor"), and the FEDERAL
COMMUNICATIONS COMMISSION, an independent regulatory agency of the United States
("Commission" or "Secured Party")
WITNESSETH
WHEREAS, debtor has submitted the highest accepted bid for license
number PBB240C in the Broadband Personal Communications Service C Block auction
(hereinafter the "License") conducted by the Commission to assign such licenses;
WHEREAS, the Commission has duly determined to grant the License to
Debtor, subject to the terms and conditions set forth in the orders and
regulations of the Commission applicable to such licenses, and the
Communications Act of 1934, as amended;
WHEREAS, Debtor wishes to pay its auction price for the License by
installments through an Installment Payment Plan as provided by 47 C.F.R. xx.xx.
24.711, 1.2110 (hereinafter the "Installment Payment Plan") and undertakes to
hold the License under the terms and conditions set forth in the Commission's
orders and regulations, as amended, applicable to such licenses, and the
Communications Act of 1934, as amended and the terms and conditions of this
Agreement;
WHEREAS, the Commission has agreed to permit the Debtor to make payment
of the auction price for the License through an Installment Payment Plan; and
WHEREAS, the Commission has agreed to permit the Debtor to make payment
of the auction price for the License through an Installment Payment Plan; and
WHEREAS, as a condition to such agreement, Debtor has agreed to execute
the Installment Payment Plan Note of even date ("Note") and to enter into this
Agreement and make the pledge and assignment of collateral contemplated herein.
NOW THEREFORE, in consideration of the premises, the mutual agreements
contained herein and for other good and valuable consideration, the receipt,
adequacy, and sufficiency of which is hereby acknowledged, and in order to
induce the Commission to permit Debtor to pay the auction price for the License
through the Installment Payment Plan, Debtor hereby agrees with the Commission
as follows:
1. Pledge and Assignment of Collateral for Obligations Under Note.
Debtor hereby pledges, assigns, hypothecates, delivers, and sets over to the
Commission and grants to the Commission a first lien on and continuing security
interest in all of the Debtor's rights and interest in the License and all
proceeds, profits and products of any sale of or other disposition thereof
(collectively the "Collateral"), all as collateral security for the prompt and
complete payment when due (whether in accordance with the schedule of payments,
at the
stated maturity, by acceleration, or otherwise) of the unpaid principal and
interest due, and such other additional costs, expenses, late charges,
administrative charges, attorneys fees, and default payments assessable under
the terms of the Note (all collectively "Obligations"). It is expressly
understood by Debtor that all of the terms of the Note apply to this Agreement
and that reference herein to "this Agreement" includes both the Security
Agreement herein and the Note. For purposes of interpreting the terms used in
this Agreement shall have the meaning ascribed to them in the Uniform Commercial
Code (Official Text and Comments, American Law Institute).
2. Interest of Commission. It is understood and acknowledged by Debtor
that pursuant to Section 301 of the Communications Act of 1934, as amended, the
Commission is charged with the regulatory mandate to maintain control over all
channels of radio transmission (the Spectrum"), and to provide licenses for the
use of such radio channels, but not ownership thereof. Debtor understands and
acknowledges that it holds a mere conditional license to use the Spectrum with
no ownership interest in the Collateral (or any underlying right to use the
Spectrum), or any power to assign the License without the prior approval of the
Commission pursuant to Section 310(d) of the Communications Act of 1934, as
amended. Debtor further understands and acknowledges that it is giving a
security interest to the Commission in the Collateral only to assist the
Commission in protecting its ability to enforce the Commission's regulations
which condition holding the license in compliance with all then-applicable
orders and regulations of the Commission, including, but not limited to, full
and timely payment of all payments under the Installment Payment Plan. To that
end, and not in derogation of any of the Commission's regulatory authority over
the License, Debtor hereby acknowledges that the Commission has a first security
interest in the Collateral, and Debtor shall not dispute such first security
interest, or the Commission's rights as a secured party hereunder, in any legal
or equitable proceeding in which Debtor, or any assignee or trustee of the
estate of Debtor in bankruptcy, is a party. Nothing set forth herein shall
preclude the Debtor from granting to other parties a subordinated security
interest limited to a subordinated interest in the proceeds arising from an
authorized assignment or transfer of the License to a third party (hereinafter a
"Subordinated Security Interest"), provided however that any such Subordinated
Security Interest shall be subordinated to and in no way inconsistent with the
Commission's first security interest in the Collateral, including but not
limited to the proceeds of any disposition of the License, and further provided
that said Subordinated Security Interest shall not survive if the License is
rescinded, canceled, or revoked by regulatory action of the Commission for
violation of the terms and conditions of the License, including but not limited
to regulatory action upon a default under this Agreement pursuant to 47 C.F. R.
ss. 1.2110. The Debtor shall provide to the Commission upon request the name and
address of any party with a Subordinated Security Interest in the proceeds of
any disposition of the License, and a copy of any documents setting forth such a
Subordinated Security Interest.
3. Compliance with Commission Orders and Regulations. Nothing in this
Agreement shall be deemed to modify any then-applicable orders and regulations
of the Commission, and nothing in the Agreement shall be deemed to release
Debtor from compliance therewith.
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4. Representations and Warranties of Debtor. Debtor represents and
warrants to the Commission as follows:
(a) It has full power, authority and legal right to execute,
deliver and perform this Agreement, the Note, and any other documents
delivered in connection with the Note, this Agreement and the
transactions contemplated therein, to make the debt transaction
evidenced by the Note, and to pledge the Collateral pursuant to this
Agreement.
(b) It is a duly organized corporation, existing in good
standing under the laws of Nevada and is duly qualified to do business
wherever necessary to carry on its present operations. Its principal
place of business and chief executive office are located at 000 Xxxx
Xxxx Xxxxxx, X.X. Xxx 000, Xxxxxxx, XX 00000-0000.
(c) The representative of Debtor purporting to act on behalf
of Debtor in executing this Agreement, the Note and any other documents
delivered in connection with the Note, this Agreement and the
transactions contemplated therein, is duly authorized by Debtor to take
all such acts and to execute all such documents.
(d) No security agreements have been executed and delivered,
and no financing statements have been filed in any jurisdiction,
granting or purporting to grant a security interest in the Collateral
that would give any other person any right or interest in the
Collateral, or any portion thereof, except for a Subordinated Security
Interest, as defined herein, and that no person has a secured interest
that is or will be in any way inconsistent with the rights of the
Commission herein as the first secured party or the terms of this
Agreement.
(e) No consent of any other party and no consent, license,
approval or authorization of, exemption by, or registration or
declaration with, any governmental instrumentality, domestic or foreign
other than the Commission, is required to be obtained in connection
with the execution, delivery or performance of this Agreement, the Note
or any other document executed and delivered in connection with the
delivery of the Note or this Agreement.
(f) The execution, delivery and performance of this Agreement
and the Note does not and will not violate any provision of any
applicable law or regulation or any order, judgment, writ, award or
decree of any court, arbitrator, governmental instrumentality, domestic
or foreign, or of any indenture, contract, agreement or other
undertaking to which Debtor is a party or which purports to be binding
upon Debtor or upon any of Debtor's assets, and will not result in the
creation or imposition of any lien, charge or encumbrance on or
security interest in any of the assets of Debtor, except as
contemplated by this Agreement.
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(g) Debtor will not permit any financing statement to be filed
with respect to the Collateral or any portion thereof or interest
therein that would give said any other person a right to any interest
in the Collateral, or any portion thereof, except that Debtor may
permit a third party to file a Subordinated Security Interest, as
defined herein, so long as said Subordinated Security Interest, is not
in any way inconsistent with the terms of this Agreement and the rights
of the Commission herein as the first secured party. Debtor will
promptly notify Secured Party of, and will defend the Collateral
against, all claims and demands of all persons at any time claiming the
same or any interest therein that would give any other person a right
or any interest in the Collateral not subordinated to the rights of the
Commission herein as the first secured party, or that is in any way
inconsistent with the terms of this Agreement.
5. Covenants of Debtor. Debtor hereby covenants and agrees as
follows:
(a) That it will defend the Commission's right, title and
security interest in and to the Collateral against the claims and
demands of all persons whomsoever.
(b) That it will execute all financing statements and other
instruments or documents related to the perfection of the Commission's
security interest, including but not limited to any renewal financing
statements or instruments as required to maintain the Commission's
security interest, or as otherwise reasonably requested by the
Commission, and to file and pay the cost of filing any such instruments
or documents as required under this paragraph in whichever public
office deemed advisable by the Commission.
(c) That it will not make any indenture, contract, agreement
or other undertaking to which Debtor is a party or which purports to be
binding upon Debtor, or upon any of Debtor's assets, that would result
in the creation or imposition of any lien, charge or encumbrance on or
security interest in any of the assets of Debtor that would give any
other person a right or any interest in the Collateral, or any portion
thereof, except for a Subordinated Security Interest, as defined
herein, provided that such Subordinated Security Agreement is not
inconsistent with the terms of this Agreement and interest of the
Commission as the first secured party.
(d) That it will pay all costs and expenses, including
reasonable attorney's fees, of the Commission incurred in connection
with the enforcement of this Agreement and any and all liability
incurred by the Commission resulting from any act or omission of Debtor
with respect to the Collateral and this Agreement.
(e) Debtor will execute, alone or with Secured Party, any
document, will procure any document and do all other acts and pay all
connected costs, in a timely and proper manner, which from the
character or use of the Collateral may be reasonably necessary to
protect the Collateral against the rights, claims or interests of third
persons, and will otherwise preserve the Collateral as security
hereunder. The specific undertakings required of Debtor in this
Agreement shall not be construed to exclude the aforementioned general
obligation.
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6. Power of Attorney. Debtor hereby irrevocably constitutes and
appoints the Commission and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of Debtor and in the name of Debtor
or in its own name, from time to time in the Commission's discretion, for the
purpose of carrying out the terms of this Agreement and, to the extent permitted
by applicable law, to take any and all appropriate actions and to execute any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement. Such appointment is a power coupled
with an interest until all Obligations have been paid in full by Debtor.
7. Event of Default. Debtor shall be in default under this Agreement
if an Event of Default (as defined in the Note) has occurred.
8. Remedies. If an Event of Default shall occur, the Commission shall
thereafter have the following rights and remedies (to the extent permitted by
applicable law) in addition to the rights and remedies relating to the Note, all
such remedies being cumulative, not exclusive, and enforceable alternatively,
successively or concurrently at such time or times as Commission deems
expedient:
(a) the License shall be automatically canceled pursuant to
47 C.F.R. ss. 1,2110;
(b) all Obligations secured hereunder shall become immediately
due and payable without presentment, demand, protest, further notice,
or other requirements of any kind;
(c) the Commission may demand, xxx for, and collect the
outstanding balance of the unpaid Obligations, and make any compromise,
or settlement the Commission deems suitable with respect to any
Collateral which may be held by it hereunder;
(d) Debtor hereby acknowledges the Commission's authority,
pursuant to the Communications Act of 1934, as amended, and the
Commission's orders and regulations then-applicable to such licenses,
to conduct another public auction or assign the License in the event
that the Commission rescinds, cancels, or revokes the License for any
default under this Agreement or any other violation of the terms and
conditions of the License. The Undersigned hereby waives all notices
prior to the conduct of said public auction or assignment by the
Commission or its agents. Debtor further acknowledges that in the event
that the Commission rescinds, cancels, or revokes the License for any
default under this Agreement or any other violation of the terms and
conditions of the License, Debtor has no right or interest in any
moneys or evidence of indebtedness given to the Commission by a
subsequent licensee of the Spectrum and that all such moneys or
evidence of indebtedness are, and shall remain, the full property of
the Federal Treasury, pursuant to Section 309(i) of the Communications
Act of 1934, as amended, and then-applicable Commission orders and
regulations.
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(e) In addition to other remedies hereunder, Debtor shall
remain liable, and obligated to pay on demand, all costs of collection
and reasonable attorneys' fees and expenses incurred or paid by the
Commission in enforcing this Agreement including, without limitation,
all administrative fees and expenses of the Commission in attempting to
collect the Obligations or to enforce this Agreement, or the
prosecution or defense of any action or proceeding related to the
subject matter of this Agreement, and all payments assessed by the
Commission in the event of default as specified in Commission orders
and regulations applicable to such licenses.
(f) Debtor hereby acknowledges that the Commission has no
adequate remedy at law with respect to a breach of any covenant
contained in this Agreement and, as a consequence, agrees that each and
every covenant contained in this Agreement shall be specifically
enforceable against Debtor and Debtor hereby waives and agrees not to
assert any defense against an action for specific performance of such
covenants.
(g) Secured Party may exercise any and all of the rights and
remedies conferred upon Secured Party by this Agreement, and other loan
documents, or by applicable law, either concurrently or in such order
as Secured Party may determine.
(h) Secured Party may make such payments and do such acts as
Secured Party may deem necessary to protect its security interest in
the Collateral.
` (i) the Commission may exercise any remedies of a Secured Party under
the Uniform Commercial Code (Official Text and Comments, American Law
Institute), or any other applicable law.
(j) Secured Party shall have the right to enforce one or more
remedies hereunder or under the Note, successively or concurrently, and
such action shall not operate to estop or prevent Secured Party from
pursuing any further remedy which it may have.
9. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10. No Waiver: Cumulative Remedies. None of the terms or provisions of
this Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by the Commission. The Commission shall not
by any act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies under this Agreement, and no waiver shall be valid unless in
writing, signed by the Commission, and then only to the extent herein set forth.
A waiver by the Commission of any right or remedy under this Agreement on any
one occasion shall not be construed as a bar to any right or remedy which the
Commission
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would otherwise have on any future occasion. No failure to exercise nor any
delay in exercising on the part of the Commission, any right, power or privilege
under this Agreement shall operate as a waiver thereof; not shall any single or
partial exercise of any right, power or privilege under this Agreement preclude
any other or further exercise thereof or the exercise of any other right power
or privilege. The rights and remedies provided in this Agreement are cumulative
and may be exercised singly or concurrently and are not exclusive of any rights
or remedies provided by law.
11. Compliance With Other Applicable Orders and Regulations. Debtor
recognizes that its continued retention of the License, and rights to operate as
a Commission licensee thereunder, are conditioned upon compliance with all
Commission orders and regulations applicable to the License and the
Communications Act of 1934, as amended. Debtor further recognizes that full and
timely payment as set forth in the Note does not otherwise relieve it of its
obligations otherwise to comply with the then-applicable orders and regulations
of the Commission, and the Communications Act of 1934, as amended.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with Communications Act of 1934, as amended, then-applicable
Commission orders and regulations, as amended, and federal law.
13. Successors, Assigns, Designated Agents. Subject to the provision of
Section 2 of this Agreement regarding the restriction upon Debtor's ability to
assign the License, this Agreement shall be binding upon Debtor, its successors
and assigns and shall inure to the benefit of the Commission, and its successors
and assign. The Commission may designate agents other than the Commission to act
on its behalf with respect to any and all rights and remedies of the Commission
under this Agreement or the Note, and such designee shall have all of the
rights, powers and remedies available to the Commission within the scope of its
designation. Nothing herein, however, shall be construed as granting Debtor any
right to sell or assign the License.
14. Singular and Plural. Wherever used, the singular number shall
include the plural, the plural shall include the singular, and the use of any
gender shall be applicable to all genders.
15. Financing Statements. To the extent permitted by applicable law,
Debtor authorizes the Commission to sign and file financing statements at any
time with respect to any of the Collateral without the signature of Debtor.
Debtor will, however, at the same time and from time to time, execute such
financing statements, agreements and other instruments and perform such acts as
Commission may request in order to establish and maintain a validly perfected
first priority security interest in the Collateral. All reasonable costs of
filing and recording will be paid by Debtor.
16. Indemnification. Debtor hereby agrees to defend, indemnify and
hold harmless Secured Party and its employees, officers and agents, from and
against any and all liabilities, claims and obligations which may be incurred,
asserted or imposed upon them or any of them as a result of or in connection
with any use, operation, lease or consumption of any of the Collateral
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or as a result of Secured Party's seeking to obtain performance of any of the
obligations due with respect to the Collateral.
17. Notices. All notices, requests and demands hereunder shall be in
writing and shall be deemed to have been duly given, made or served on the
earliest of (i) three (3) business days after the date mailed if sent by
first-class U.S. mail postage prepaid, (ii) actual delivery thereof if delivered
by hand to the party to be notified, (iii) receipt thereof if sent by express
mail or other overnight courier service, or (iv) transmission to the telecopier
number listed below for the party to be notified if sent within normal business
hours or, otherwise, on the next business day thereafter. In each case such
notification with respect to the Debtor and the Commission shall be addressed as
set forth below or as may be hereafter designed by the respective parties
hereto.
As to Debtor: With a copy to:
------------
D & E Investments, Inc. Xxxxxx X. Xxxx, Xx.
0000 Xxxxxxxxx Xxx Xxxxxxxxxx and Xxxxx, LLP
Suite 130 0000 Xxxxxxxxx Xx., XX
Xxxx, XX 00000 Suite 600
Attn: Xxxxxx X. Xxxxxx Xxxxxxxxxx, XX 00000
As to the Commission: U.S. DEPARTMENT OF TREASURY
--------------------- X.X. XXX 00000
XXXXXXXXXX, X.X. 00000-0000
ATTN: FCC-FMS/DEBT MANAGEMENT SERVICE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
DEBTOR: D & E Investments, Inc.
-------
Date: March 28, 1997 By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
Its: Chief Executive Officer and
Chairman of the Board
-------------------------------
FEDERAL COMMUNICATIONS COMMISSION
---------------------------------
Date: 3/28/97 By: /s/ Xxxxxxx X. XxXxxxxxx
--------- --------------------------------
Its: Associate Managing Director
for Operations (or Designee)
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