EXHIBIT 10.1.4
Loan No. ML0883T1
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Security Agreement") is made and entered
into as of June 29, 2001, by GLOBE TELECOMMUNICATIONS, INC, a corporation formed
and existing under the laws of the State of Georgia ("Globe"), having its place
of business (or chief executive office if more than one place of business)
located at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000, whose taxpayer
identification number is 00-0000000, INTERSTATE TELEPHONE COMPANY, a corporation
formed and existing under the laws of the State of Georgia ("Inter-Tel"), having
its place of business (or chief executive office if more than one place of
business) located at 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000, whose taxpayer
identification number is 00-0000000 and VALLEY TELEPHONE CO., INC., a
corporation formed and existing under the laws of the State of Alabama
("Valley"; each of Valley, Globe and Inter-Tel, a "Debtor"; collectively, the
"Debtors"), having its place of business (or chief executive office if more than
one place of business) located at 000 Xxxxxx Xxxxxx, Xxxxxx, XX 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 MLA (as defined in Section 2).
SECTION 1. Grant of Security Interest. For valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Debtors hereby grant
to Secured Party a first superior continuing security interest in all of
Debtors' 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
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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 information relating to or arising out of
Debtors' 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 Debtors or the operation of Debtors' properties); and, to the
extent not covered by the above, all other personal property of Debtors 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,
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that no security interest is granted in (a) Debtors' 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 or (b) the capital stock or
other securities of Knology Broadband, Inc. held or owned by Valley
(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
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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 Debtors with respect to any of the Collateral or
any transaction in connection therewith. Debtors will perform and comply in all
material respects with all of their respective 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 Debtors from any of their respective 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 payment and
performance of all obligations of Debtors, whether now existing or hereafter
arising, under that certain Master Loan Agreement, dated as of even date
herewith, by and between Debtors and Secured Party (as the same may be amended,
modified, supplemented, extended or restated from time to time, the "MLA"), and
all other Loan Documents to which any Debtor is a party, including, without
limitation, (a) that certain First Supplement to the Master Loan Agreement,
dated as of even date herewith, as the same may be amended, supplemented,
extended or restated from time to time and (b) that certain Promissory Note,
dated as of even date herewith, made by Debtors to Secured Party, in the
principal face amount of $40,000,000 (as the same may be amended, modified,
supplemented, extended or restated from time to time, the "Note"); and (ii) the
payment of all other indebtedness and the performance of all other obligations
of Debtors 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. Each Debtor represents and
warrants to Secured Party on the date hereof that the following statements are
true, correct and complete:
(A) Title to Collateral. Debtors have 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.
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(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. Debtors' places of
business (or chief executive office if more than one place of business) are
located at the addresses shown above, and Debtors' tax identification numbers
are 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,
Debtors' businesses have not been conducted under any name other than Debtors'
names as set forth above, nor have they changed their 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. Debtors have filed or caused to be filed all
federal, state and local tax returns that are required to be filed, and have
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 Debtors'
businesses is in good repair, working order and condition, ordinary wear and
tear excepted.
SECTION 4. Covenants. Debtors will comply with all covenants in this
Section 4, unless Debtors have received the written consent of Secured Party:
(A) Title to Collateral. Debtors shall not create or permit the existence
of claims, interests, liens, or other encumbrances against any of their
respective Collateral not permitted pursuant to Section 8(B) of the MLA. Debtors
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 Debtors' and Secured Party's interests (including the priority of
such interests) in all Collateral.
(B) Change in Location, Name, Etc. Debtors agree not to (i) change the
location of their places of business or chief executive offices; (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
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their names, identities, or employer identification numbers, unless they shall
have given Secured Party thirty (30) days' prior written notice of their
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 Debtors propose
to take any such action, Debtors will, at their 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. Debtors agree not to change their structure in
any manner except as permitted pursuant to the MLA and, if requested by Secured
Party, prior to the date on which Debtors propose to take any such action,
Debtors will, at their 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. Debtors shall give Secured Party thirty (30) days' prior written
notice of their intention to take any action described in this Section 4(C).
(D) Further Assurances. Upon the request of Secured Party, Debtors 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 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,
Debtors agree 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), Debtors 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, Debtors 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 Debtors on demand.
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(E) Insurance. Debtors 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. 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 Debtors 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, Debtors 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; provided, however, that no dispositions shall be made if
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a Default shall have occurred and be continuing hereunder. Debtors shall not use
any of the Collateral in any manner which violates any applicable law.
(G) Receivables. Debtors 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, Debtors shall execute an agreement in form and
content satisfactory to Secured Party by which Debtors shall direct all account
debtors 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, Debtors 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. Debtors 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. Debtors 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. Debtors 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 Debtors' properties
or locations and to discuss Debtor's affairs, finances and accounts with
Debtors' officers, directors, employees and independent certified public
accountants so that Secured Party or its representatives may confirm, inspect
and appraise any of the Collateral.
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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 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 shall be subject to the same notice and cure right applicable
to such breach under the MLA. Once a Default exists, it shall be deemed to
continue, notwithstanding any curative action by Debtors, 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 Debtors 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:
(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, Debtors hereby specifically waive
all rights of redemption, stay or appraisal which they have or may have under
any law now existing or hereafter adopted. At any time when advance notice of
sale is required, Debtors agree that twenty (20) days' prior written notice
shall be reasonable. In connection with the foregoing, Secured Party may:
(1) require Debtors 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 Debtors or premises under Debtors' control
and take possession of the Collateral;
(3) without charge by Debtors, use or occupy the premises of Debtors
or premises under Debtors' control, including, without limitation, warehouse and
other storage facilities;
(4) without charge by Debtors, use or sublicense the use of any
patent, trademark, service xxxx, trade name or other intellectual property or
technical process used by Debtors 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,
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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 Debtors which
constitute a portion of the Collateral, all in the name of Debtors.
(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 Debtors.
(C) Proceeds. Secured Party may collect and apply all proceeds of the
Collateral, and may endorse the name of any 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 any 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 any 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 Debtors and Debtors
hereby consent to such right and to such appointment and hereby waives any
objection Debtors 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. 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.
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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, Debtors 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 Debtors, 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 Debtors 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. Debtors hereby agree to authorize such an involuntary transfer of
control or assignment, or both, upon the request of the receiver so appointed
and, if Debtors shall refuse to authorize the transfer, their approval may be
required by the court. Upon the occurrence and during the continuance of a
Default, Debtors 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) Debtors acknowledge 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 Debtors 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 Debtors 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 Debtors 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
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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 Debtors 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 Debtors, 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
Debtors, 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 interest rate
applicable to any loan or advance secured hereby, shall become part of the
Obligations secured hereby and be paid by Debtors upon demand.
(E) Indemnification, Etc. Debtors hereby expressly indemnify and hold
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 Debtors' 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, Debtors 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 Debtors 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 Debtors (except to the extent any such expense, loss or
damage results from the gross negligence or willful misconduct of Secured
Party). The obligations of Debtors under this Section 8(E) shall survive the
termination of the other provisions of this Security Agreement.
(F) Power of Attorney. Debtors hereby constitute and appoint 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
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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 Debtors are
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 have 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 Debtors and their successors
and assigns; provided, that Debtors may not assign any of their rights or
--------
obligations 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.
(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 in accordance with
the terms and conditions set forth in Section 14 of the MLA.
(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 Debtors 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
11
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 Debtors 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
Debtors 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 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, Debtors hereby agree that they will not invoke
any law relating to the marshaling of collateral, and to the extent that it
lawfully may do so Debtors hereby irrevocably waive 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 Debtors 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
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(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 Debtors 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,
Debtors shall immediately notify Secured Party in a writing signed by Debtors 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 Debtors 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 Debtors are an organization, the type of
organization and any organization identification number issued to Debtors.
Debtors agree 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 Debtors and may be filed at any time
in any jurisdiction whether or not Revised Article 9 is then in effect in that
jurisdiction.
(C) Debtors 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 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, Debtors have 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.
INTERSTATE TELEPHONE COMPANY, GLOBE TELECOMMUNICATIONS, INC, as
as Debtor Debtor
By: _________________________ By: __________________________
Name: _____________________ Name: _____________________
Title: ____________________ Title: ____________________
Attest: _____________________ Attest: ______________________
Name: _____________________ Name: _____________________
Title: ____________________ Title: ____________________
[CORPORATE SEAL] [CORPORATE SEAL]
VALLEY TELEPHONE CO., INC., as Debtor
By:____________________________________
Name:_______________________________
Title:______________________________
Attest:________________________________
Name:___________________________
Title:__________________________
[CORPORATE SEAL]
[signatures continue on next page]
[signatures continued from previous page]
COBANK, ACB, as Secured Party
By:_________________________________
Xxxx Xxxxxxx, Vice President
SCHEDULE A
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Set forth below are the current locations (by parish or county and state) of
each Debtor's inventory and equipment:
Globe Telecommunications, Inc.:
------------------------------
Coweta County, Xxxxxxx
Xxxxx County, Georgia
Interstate Telephone Company:
----------------------------
Xxxxxxxx County, Alabama
Xxxxx County, Georgia
Valley Telephone Co., Inc.:
--------------------------
Xxxxxxxx County, Alabama
Xxxxx County, Georgia
