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EXHIBIT 4.59
CTC
LOAN NO. T0362
SECURITY AGREEMENT
STATE OF LOUISIANA )
)
PARISH OF CALCASIEU )
STATE OF GEORGIA )
)
COUNTY OF XXXX )
BEFORE the respective undersigned Notaries Public, and in the presence
of the respective undersigned competent witnesses, personally came and appeared
the parties listed below, who, after being duly sworn, did state:
THIS SECURITY AGREEMENT (this "Security Agreement") is made and entered
into as of April 20, 1995, by and between MERCURY CELLULAR TELEPHONE COMPANY
(the "Debtor") having its place of business (or chief executive office if more
than one place of business) located at X.X. Xxx 0000, Xxxx Xxxxxxx, Xxxxxxxxx
00000 and whose taxpayer identification number is 00-0000000, and COBANK, ACB
(the "Secured Party"), whose mailing address is 000 Xxxxxxxx Xxxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxx 00000.
SECTION 1. GRANT OF SECURITY INTEREST. For valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Debtor hereby
grants to the Secured Party a security interest in all of the following
property, wherever located and whether now existing or hereafter acquired,
together with all accessions and additions thereto, and all products and
proceeds thereof:
accounts; inventory (including, without limitation, returned or
repossessed goods); chattel paper; instruments (including, without
limitation, certificated securities); letters of credit; contracts and
contract rights; leases; documents; equipment (including, without
limitation, telecommunications and radio transmitting and receiving
equipment, antennae, towers, microwave communication equipment,
machinery, computers, parts, tools, implements, poles, posts,
cross-arms, conduits, ducts, lines (whether underground or overhead or
otherwise), wires, cables, exchanges, switches (including, without
limitation, host switches and remote switches), desks, testboards,
racks, frames, motors, generators, batteries, items of central office
equipment, pay stations, protectors, subscriber equipment, instruments,
connections and appliances, office furniture and equipment and work
equipment and any and all other
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equipment used, useful or acquired for use in the business of the Debtor
or the operation of the Debtor's properties); fixtures; general
intangibles (including, without limitation, permits, licenses, grants,
franchises, privileges, permissions, certificates and choses or things
in action, litigation rights and resulting judgments, goodwill, patents,
trademarks and other intellectual property, tax refunds, miscellaneous
rights to payment, entitlements, uncertificated investment securities
and investments, margin accounts, computer programs, invoices, books,
records and other information relating to or arising out of the Debtor's
business, and, to the extent permitted by law, all licenses and permits
issued by the Federal Communications Commission (the "FCC")); and, to
the extent not covered by the above, all other personal property of the
Debtor of every type and description, including, without limitation,
interests or claims in or under any policy of insurance, tort claims,
deposit accounts, money, and judgments; provided, however, that no
security interest is granted in licenses, permits, leases, franchises,
privileges, permissions and grants which by their terms or by reason of
applicable law would become void or voidable if a security interest
therein were granted or if the granting of a security interest therein
would violate any law, rule, regulation or order of any governmental
body or regulatory authority (collectively, the "Collateral").
Where applicable, all terms used herein shall have the same meaning as set
forth in the Uniform Commercial Code as codified at Title 10 of the Louisiana
Revised Statutes Annotated, as amended (the "UCC").
SECTION 2. OBLIGATIONS. The security interest granted hereunder shall
secure the following obligations (the "Obligations"): (a) all payments or
performances to be made by CTC Financial, Inc. (the "Borrower") under the "Loan
Documents" as defined in that certain Loan Agreement, dated as of even date
herewith, between the Borrower and the Secured Party (as the same may be
amended, supplemented, extended or restated from time to time, the "Loan
Agreement"), including, without limitation, the payment of all principal,
interest and other amounts becoming due and payable, whether by acceleration or
otherwise, under that certain Promissory Note, dated of even date herewith,
made by the Borrower to the order of the Secured party in the original
principal amount of $18,000,000 (as the same may be amended, supplemented,
extended, renewed or replaced from time to time, the "CTC Note"); (b) all
payments or performances to be made by the Debtor under the Loan Documents,
including, without limitation, the payment of all principal, interest and other
amounts becoming due and payable, whether by acceleration or otherwise, under
that certain Promissory Note, dated of even date herewith, made by the Debtor
to the order of the Borrower, and assigned to the Secured Party, in the
original principal amount of $18,000,000 (as the same may be amended,
supplemented, extended, renewed or replaced from time to
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time, the "MCTC Note"; the CTC Note and the MCTC Note, collectively, the "Notes"
and, each, a "Note"), and all payments or performances under that certain
Continuing Guaranty, dated as of even date herewith, made by the Debtor for the
benefit of the Secured Party (as the same may be amended, supplemented, extended
or restated from time to time, the "MCTC Guaranty"); and (c) the payment of all
other indebtedness and the performance of all other obligations of the Debtor to
the Secured Party of every type and description, whether now existing or
hereafter arising, fixed or contingent, as primary obligor or as a guarantor or
surety, acquired directly or by assignment or otherwise, liquidated or
unliquidated, regardless of how they arise or by what agreement or instrument
they may be evidenced, including, without limitation, all loans, advances and
other extensions of credit and all covenants, agreements, and provisions
contained in all loan and other agreements between the parties. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to them in the Loan Agreement.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor
represents, warrants and covenants as follows:
(A) OWNERSHIP OF COLLATERAL. Except for any security interest
in favor of (i) the Secured Party, (ii) Northern Telecom Finance Corporation
securing indebtedness not in excess of $3,500,000 and attaching only to the
equipment (and any proceeds therefrom) purchased or leased from Northern
Telecom Finance Corporation with the proceeds of such indebtedness, and (iii)
Audiovox South Corporation securing indebtedness in connection with certain
equipment obtained from Audiovox South Corporation and attaching only to such
equipment (and any proceeds therefrom), the Debtor owns and possesses all of
the Collateral free and clear of all adverse claims, interests, liens,
encumbrances, or other defects. Without the prior written consent of the
Secured Party, the Debtor shall not create or permit the existence of any
adverse claim, interest, lien, or other encumbrance against any of the
Collateral, except as expressly permitted by the Loan Documents. The Debtor
shall provide prompt written notice to the Secured Party upon learning of any
future adverse claim, interest, lien, or encumbrance against any of the
Collateral, and shall defend diligently the Debtor's and the Secured Party's
interests in the Collateral.
(B) VALIDITY OF SECURITY AGREEMENT; CORPORATE AUTHORITY. This
Security Agreement is the legal, valid and binding obligation of the Debtor,
enforceable in accordance with its terms, subject only to 'imitations on
enforceability imposed by (i) applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally and (il) general equitable principles. The Debtor has the corporate
power to execute, deliver and carry out the terms and provisions of this
Security Agreement and all related documents, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Security Agreement and all related documents.
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(C) LOCATION OF THE DEBTOR. The Debtor's place of business
(or chief executive office if more than one place of business) is located at
the address shown above.
(D) LOCATION OF COLLATERAL. All equipment and inventory are
now at the location or locations specified on Schedule A attached hereto and
made a part hereof and, except as otherwise disclosed to the Secured Party on
Schedule A, the Debtor has not maintained any other location or locations of
inventory and equipment within the past 5 years.
(E) NAME, IDENTITY, AND CORPORATE STRUCTURE. Except as
otherwise disclosed to the Secured Party on Schedule A, the Debtor has not
within the past 10 years changed its name, identity or corporate structure
through incorporation, merger, consolidation, joint venture or otherwise.
(F) CHANGE IN NAME, LOCATION OF COLLATERAL, ETC. Without
giving at least 30 days' prior written notice to the Secured Party, the Debtor
shall not change its name, identity or corporate structure, the location of its
place of business (or chief executive office if more than one place of
business), or the location of the Collateral.
(G) FURTHER ASSURANCES. Upon the request of the Secured
Party, the Debtor shall do all acts and things as the Secured Party may from
time to time deem necessary or advisable to enable it to perfect, maintain, and
continue the perfection and priority of the security interest of the Secured
Party in the Collateral, or to facilitate the exercise by the Secured Party of
any rights or remedies granted to the Secured Party hereunder or provided by
law. Without limiting the foregoing, the Debtor agrees to execute, in form and
substance satisfactory to the Secured Party, such financing statements,
continuation statements, amendments thereto, supplemental agreements,
assignments, notices of assignments, and other instruments and documents as the
Secured Party may from time to time request. In addition, in the event the
Collateral or any part thereof consists of instruments, documents, chattel
paper, or money (whether or not proceeds of the Collateral), the Debtor shall,
upon the request of the Secured Party, deliver possession thereof to the
Secured Party (or to an agent of the Secured Party retained for that purpose),
together with any appropriate endorsements and/or assignments. Without
limiting the generality of the foregoing, the Debtor shall take such action as
the Secured Party may request from time to time to create and perfect a
security interest in favor of the Secured Party in any and all leases, licenses
and permits relating to the location of antennae and other transmission and
receiving equipment on the towers or other property of third parties,
including, without limitation, amending such leases, licenses or permits to
allow the creation and perfection of such security interest and obtaining the
consent of all third parties whose consents may be necessary to the creation
and perfection of such security interest. The Secured Party shall use
reasonable care in the custody and preservation of any Collateral
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in its possession, but shall not be required to take any steps necessary to
preserve rights against prior parties. All costs and expenses incurred by the
Secured Party to establish, perfect, maintain, determine the priority of, or
release the security interest granted hereunder (including the cost of all
filings, recordings, and taxes thereon and the reasonable fees and expenses of
any agent retained by the Secured Party) shall become part of the Obligations
secured hereby and be paid by the Debtor on demand.
(H) INSURANCE. The Debtor shall maintain such property and
casualty insurance with such insurance companies, in such amounts, and covering
such risks, as are at all times reasonably satisfactory to the Secured Party.
All such policies shall provide for loss payable clauses or endorsements in
form and content acceptable to the Secured Party. Upon the request of the
Secured Party, all policies (or such other proof of compliance with this
Section as may be satisfactory to the Secured Party) shall be delivered to the
Secured Party. The Debtor shall pay all insurance premiums when due. In the
event of loss, damage, or injury to any insured Collateral, the Secured Party
shall have full power to collect any and all insurance proceeds due under any
of such policies, and shall apply such proceeds to the repair or replacement of
such Collateral or, if such Collateral is not repairable or replaceable, to the
payment of any of the Obligations secured hereby.
(I) TAXES, LEVIES, ETC. The Debtor has paid and shall continue
to pay when due all taxes, levies, assessments, or other charges which may
become an enforceable lien against the Collateral, unless such taxes, levies,
assessments, or other charges are being contested by the Debtor in good faith
and by appropriate proceedings and then only to the extent reasonable reserves
required by generally accepted accounting principles have been set aside on the
Debtor's books therefor.
(J) DISPOSITION AND USE OF COLLATERAL BY THE DEBTOR. Without
the prior written consent of the Secured Party, the Debtor shall not at any
time sell, transfer, lease, abandon, or otherwise dispose of any Collateral
other than in accordance with the provisions of the MCTC Guaranty; provided,
however, that no dispositions shall be made if an Event of Default (as defined
in Section 4) shall have occurred and be continuing. The Debtor shall not use
any of the Collateral in any manner which violates any statute, regulation,
ordinance, rule, decree, order, or insurance policy.
(K) RECEIVABLES. The Debtor shall preserve, enforce, and
collect all accounts, chattel paper, instruments, documents and general
intangibles, whether now owned or hereafter acquired or arising (the
"Receivables"), in a commercially reasonable fashion and, if an Event of
Default shall have occurred and be continuing, upon the request of the Secured
Party, the Debtor shall execute an agreement in form and substance satisfactory
to the Secured Party by which the Debtor shall direct all account debtors and
obligors on
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instruments to make payment to a lock box deposit account under the exclusive
control of the Secured Party.
(L) CONDITION OF COLLATERAL. All tangible Collateral is now in
good repair and condition and the Debtor shall at all times hereafter, at its
own expense, maintain all such Collateral in good repair and condition,
ordinary wear and tear excepted.
(M) CONDITION OF BOOKS AND RECORDS. The Debtor has maintained
and shall maintain complete, accurate and up-to-date books, records, accounts,
and other information relating to all Collateral in the present form and
detail, and shall allow the Secured Party or its representatives to examine and
copy such books, records, accounts, and other information at any reasonable
time, upon reasonable notice from the Secured Party.
(N) RIGHT OF INSPECTION. At all reasonable times and upon
reasonable notice from the Secured Party, the Debtor shall allow the Secured
Party or its representatives to visit any of the Debtor's properties or
locations so that the Secured Party or its representatives may confirm, inspect
and appraise any of the Collateral.
(O) PLEDGE OF STOCK. Upon the acquisition of capital stock of
any subsidiary, the Debtor shall execute and deliver to the Secured Party a
stock pledge agreement in form and substance satisfactory to the Secured Party,
pursuant to which the Debtor shall pledge, on a first-priority basis, all of
its stock in such subsidiary and shall covenant and agree to pledge to the
Secured Party, on a first-priority basis, all capital stock it may thereafter
acquire in that or any other subsidiary.
SECTION 4. DEFAULT. The occurrence of an event of default under any
of the Loan Documents (including, without limitation, the Loan Agreement, the
Notes and the MCTC Guaranty), the breach of or failure to perform any covenant
or agreement contained in this Security Agreement, or any material inaccuracy
as of the date made in any representation or warranty contained in this
Security Agreement shall constitute an "Event of Default" hereunder; provided
that the Debtor shall have 30 days after notice from the Secured Party to cure
any breach of the covenants set forth in Sections 3(H), (K), (L), (M), and (N).
SECTION 5. RIGHTS AND REMEDIES. Upon the occurrence of any Event of
Default and at any time during the continuance thereof, the Secured Party may
declare all Obligations to be immediately due and payable and, to the extent
permitted by applicable law and subject to any necessary approval of the FCC
relating to the exercise of remedies hereunder involving any transfer, sale or
disposition of the Debtor's assets, may exercise any and all rights and
remedies of the Secured Party in the enforcement of its security interest under
the UCC, this Security Agreement (including, without limitation, Section 7), or
any other applicable law. Without limiting the foregoing:
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(A) DISPOSITION OF COLLATERAL. The Secured Party may sell,
lease, or otherwise dispose of all or any part of the Collateral, in its then
present condition or following any commercially reasonable preparation or
processing thereof; whether by public or private sale or at any brokers' board,
in lots or in bulk, for cash, on credit or otherwise, with or without
representations or warranties, and upon such other terms as may be acceptable
to the Secured Party, and the Secured Party may purchase such Collateral at any
public sale. At any time when advance notice of sale is required, the Debtor
agrees that 10 days' prior written notice shall be reasonable. In connection
with the foregoing, the Secured Party may:
(1) require the Debtor to assemble the Collateral and all
records pertaining thereto and make such Collateral and records
available to the Secured Party at a place to be designated by the
Secured Party which is reasonably convenient to both parties;
(2) enter the premises of the Debtor or premises under the
Debtor's control and take possession of the Collateral;
(3) without charge by the Debtor, use or occupy the premises
of the Debtor or premises under the Debtor's control, including, without
limitation, warehouse and other storage facilities;
(4) without charge by the Debtor, use any patent, trademark,
trade name, or other intellectual property or technical process used by
the Debtor in connection with any of the Collateral; and
(5) rely conclusively upon the advice or instructions of any
one or more brokers or other experts selected by the Secured Party to
determine the method or manner of disposition of any of the Collateral
and, in such event, any disposition of the Collateral by the Secured
Party in accordance with such advice or instructions shall be deemed to
be commercially reasonable.
(B) COLLECTION OF RECEIVABLES. The Secured Party may, but
shall not be obligated to, take all actions reasonable or necessary to
preserve, enforce or collect the Receivables, including, without limitation,
the right to notify account debtors and obligors on instruments to make direct
payment to the Secured Party, to permit any extension, compromise, or
settlement of any of the Receivables for less than face value, or to xxx on any
Receivable, all without prior notice to the Debtor.
(C) PROCEEDS. The Secured Party may collect and apply all
proceeds of the Collateral, and may endorse the name of the Debtor in favor of
the Secured Party on any
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and all checks, drafts, money orders, notes, acceptances, or other instruments
of the same or a different nature, constituting, evidencing, or relating to the
Collateral. The Secured Party may receive and open all mail addressed to the
Debtor and remove therefrom any cash or non-cash items of payment constituting
proceeds of the Collateral.
(D) INSURANCE ADJUSTMENTS. The Secured Party may adjust and
settle any and all insurance covering any Collateral, endorse the name of the
Debtor on any and all checks or drafts drawn by any insurer, whether
representing payment for a loss or a return of unearned premium, and execute
any and all proofs of claim and other documents or instruments of every kind
required by any insurer in connection with any payment by such insurer.
The net proceeds of any disposition of the Collateral shall be applied by the
Secured Party, after deducting its reasonable expenses incurred in such
disposition, to the payment in whole or in part of the Obligations in such
order as the Secured Party may elect. The enumeration of the foregoing rights
and remedies is not intended to be exhaustive, and the exercise of any right
and/or remedy shall not preclude the exercise of any other rights or remedies,
all of which are cumulative and non-exclusive.
SECTION 6. OTHER PROVISIONS.
(A) AMENDMENT AND WAIVER. Without the prior written consent of
the Secured Party, no amendment or waiver of, or consent to any departure by
the Debtor from, any provision hereunder shall be effective. Any such
amendment, waiver, or consent shall be effective only in the specific instance
and for the specific purpose for which given. No delay or failure by the
Secured Party to exercise any remedy hereunder shall be deemed a waiver thereof
or of any Other remedy hereunder. A waiver on any one occasion shall not be
construed as a bar to or waiver of any remedy on any subsequent occasion.
(B) COSTS AND ATTORNEYS' FEES. Except as prohibited by law, if
at any time the Secured Party employs counsel in connection with the creation,
perfection, preservation, or release of the Secured Party's security interest
in the Collateral or the enforcement of any of the Secured Party's rights or
remedies hereunder, all of the Secured Party's reasonable attorneys' fees
arising from such services and all expenses, costs, or charges relating thereto
shall become part of the Obligations secured hereby and be paid by the Debtor
on demand.
(C) REVIVAL OF OBLIGATIONS. To the extent the Debtor or any
third party makes a payment or payments to the Secured Party or the Secured
Party enforces its security interest or exercises any right of setoff, and such
payment or payments or the proceeds thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, and/or required to be
repaid to a trustee, receiver, or any other party under any
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bankruptcy, insolvency or other law or in equity, then, to the extent of such
recovery, the Obligations or any part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment or payments had not been made, or such enforcement or setoff had not
occurred.
(D) PERFORMANCE BY THE SECURED PARTY. In the event the Debtor
shall at any time fail to pay or perform punctually any of its duties hereunder
within any grace period provided therefor, the Secured Party may, at its option
and without notice to or demand upon the Debtor, without obligation and without
waiving or diminishing any of its other rights or remedies hereunder, fully
perform or discharge any of such duties. All costs and expenses incurred by the
Secured Party in connection therewith, together with interest thereon at the
Secured Party's National Variable Rate (as defined in the Loan Agreement) plus
4% per annum, shall become part of the Obligations secured hereby and be paid
by the Debtor upon demand.
(E) INDEMNIFICATION, ETC. The Debtor hereby expressly
indemnifies and holds the Secured Party harmless from any and all claims,
causes of action, or other proceedings, and from any and all liability, loss,
damage, and expense of every nature, arising by reason of the Secured Party's
enforcement of its rights and remedies hereunder, or by reason of the Debtor's
failure to comply with any environmental or other law or regulation, other than
any such claim, cause of action or other proceeding, liability, loss, damage or
expense arising by reason of gross negligence, willful misconduct or violation
of law on the part of the Secured Party.
(F) POWER OF ATTORNEY. The Debtor hereby constitutes and
appoints the Secured Party or the Secured Party's designee during the term of
any Obligations secured by this Security Agreement as its attorney-in-fact,
which appointment is an irrevocable, durable agency, and coupled with an
interest, with full power of substitution. This power of attorney and mandate
is for the purpose of taking, upon an Event of Default, whether in the name of
the Debtor or in the name of the Secured Party, any action which the Debtor is
obligated to perform hereunder or which the Secured Party may deem necessary or
advisable to accomplish the purposes of this Security Agreement. In taking any
action in accordance with this Section 6(F), the Secured Party shall not be
deemed to be the agent of the Debtor. The powers conferred upon the Secured
Party in this Section are solely to protect its interest in the Collateral and
shall not impose any duty upon the Secured Party to exercise any such powers.
(G) CONTINUING EFFECT. This security Agreement, the Secured
Party's security interest in the Collateral, and all other documents or
instruments contemplated hereby shall continue in full force and effect until
all of the Obligations have been satisfied in full, each of the Loan Agreement
and the MCTC Guaranty has been terminated in
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accordance with its respective terms and the Debtor has sent a valid written
demand to the Secured Party for termination of this Security Agreement.
(H) BINDING EFFECT. This Security Agreement shall be binding
upon and inure to the benefit of the Debtor and the Secured Party and their
respective successors and assigns.
(I) SECURITY AGREEMENT AS FINANCING STATEMENT. A photographic
copy or other reproduction of this Security Agreement may be used as a
financing statement.
(J) GOVERNING LAW. Except to the extent governed by applicable
federal law, this Security Agreement shall be governed by and construed in
accordance with the laws of the State of Louisiana without reference to choice
of law doctrine.
(K) NOTICES. All notices hereunder shall be deemed to be duly
given upon delivery in the form and manner set forth in Section 7(E) of the
MCTC Guaranty to the parties at the following addresses (or such other address
for a party as shall be specified by like notice):
If to CoBank, as follows: If to the Debtor, as follows:
CoBank, ACB Mercury Cellular Telephone Company
000 Xxxxxxxx Xxxxxxx X.X. Xxx 0000
Xxxxx 0000 Xxxx Xxxxxxx, Xxxxxxxxx 00000
Xxxxxxx, Xxxxxxx 00000 Attn: Xxxxxx Xxxxx; cc: Xxxxxx X. Xxxxxxx
Attn: Rural Utility Banking Group Fax No.: (000) 000-0000
Fax No.: (000) 000-0000
(L) SEVERABILITY. The determination that any term or
provision of this Security Agreement is unenforceable or invalid shall not
affect the enforceability or validity of any other term or provision hereof.
SECTION 7. LOUISIANA PROVISIONS.
(A) GENERAL. the provisions of this Section 7 shall apply to
the Collateral and all proceeds thereof at all times during which such
Collateral or the proceeds thereof are located in Louisiana or are otherwise
subject to the application of Louisiana law in any respect. The term "Louisiana
Collateral" as used herein shall refer to all portions of the Collateral and the
proceeds thereof that are from time to time located in the State of Louisiana or
are otherwise subject to Louisiana law at all times during which such portions
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or proceeds thereof are located in Louisiana or are otherwise mandatorily
subject to the application of Louisiana law under the applicable laws of other
states.
(B) FINANCING STATEMENTS. Contemporaneously with the execution
of this Security Agreement, the Debtor has completed and signed one or more
appropriate Louisiana UCC-1 financing statements with regard to the Collateral
and the proceeds thereof. The Debtor authorizes the Secured Party, at the
Debtor's expense, to file multiple originals, or photocopies, carbon copies or
facsimile copies of such Louisiana UCC-1 financing statements with the
appropriate filing officer or officers in the State of Louisiana, pursuant to
the provisions of Chapter 9 of the Louisiana Commercial Laws.
(C) IDENTIFICATION NUMBER. The Debtor shall give the Secured
Party 30 days' written notice prior to any change in the Debtor's employer
identification number by the Debtor and shall give the Secured Party written
notice of any change in the Debtor's employer identification number that is not
made by the Debtor within 30 days after such change. In the event of any change
whatsoever in the Debtor's employer identification number, the Debtor will
execute and file any new financing statements or any other documents that are
necessary or desirable as determined by the Secured Party in its sole discretion
to preserve and continue the Secured Party's security interests under this
Security Agreement within thirty (30) days after such change.
(D) EVENT OF DEFAULT; REMEDIES. Upon the occurrence of any
Default hereunder, the Secured Party shall have the following rights and
remedies with respect to the Louisiana Collateral, which rights and remedies are
in addition to and are not in lieu or limitation of any other rights and
remedies that may be provided in this Security Agreement, the Loan Agreement,
the MCTC Guaranty or any related documents, under Chapter 9 of the Louisiana
Commercial Laws (La. R.S. Sections 10:9-101, et seq.), under the Uniform
Commercial Code of any state other than Louisiana, or at law or equity
generally:
(1) The Secured Party may cause the Louisiana
Collateral, or any part or parts thereof, to be immediately seized
wherever found, and sold, whether in term of court or in vacation, under
ordinary or executory process, in accordance with applicable Louisiana
law, to the highest bidder for cash, with or without appraisement,
without the necessity of making additional demand, or of notifying the
Debtor or placing the Debtor in default.
(2) For purposes of foreclosure under Louisiana
executory process procedures, the Debtor confesses judgment and
acknowledges to be indebted unto and in favor of the Secured Party up to
the full amount of the Obligations, in principal, interest, costs,
expenses, attorneys' fees and other fees and charges. To the extent
permitted under applicable Louisiana law, the Debtor additionally waives:
(a)
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the benefit of appraisal as provided in Articles 2332, 2336, 2723 and
2724 of the Louisiana Code of Civil Procedure and all other laws with
regard to appraisal upon judicial sale; (b) the demand and 3 days' delay
as provided under Articles 2639 and 2721 of the Louisiana Code of Civil
Procedure; (c) the notice of seizure as provided under Articles 2293 and
2721 of the Louisiana Code of Civil Procedure; (d) the 3 days' delay
provided under Articles 2331 and 2722 of the Louisiana Code of Civil
Procedure; and (e) all other benefits provided under Articles 2331, 2722
and 2723 of the Louisiana Code of Civil Procedure and all other similar
provisions of the Louisiana Code of Civil Procedure not specifically
listed hereinabove.
(3) Should any of the Louisiana Collateral be seized
as an incident to an action for the recognition or enforcement of the
Obligations or this Security Agreement, the Loan Agreement, the MCTC
Guaranty or any related document, by executory process, sequestration,
attachment, writ of fieri facias or otherwise, the Debtor agrees that the
court issuing any such order shall, if requested by the Secured Party,
appoint the Secured Party or any person or entity named by the Secured
Party at the time such seizure is requested, or at any time thereafter,
as keeper of the Louisiana Collateral as provided under La. R.S. Section
9:5136, et seq. The Debtor agrees to pay the reasonable fees of such
keeper, which compensation to the keeper shall also be a part of the
Obligations secured under this Security Agreement.
(4) Should it become necessary for the Secured
Party to foreclose against the Louisiana Collateral, all declarations of
fact that are made under an authentic act before a Notary Public in the
presence of two witnesses, by a person declaring such facts to lie within
his or her knowledge, shall constitute authentic evidence for purposes of
executory process and also for purposes of La. R.S. Section 9:3509.1,
La. R.S. Section 9:3504(D)(6) and La. R.S. Section 10:9-508, as
applicable.
(E) GOVERNING LAW. ANYTHING TO THE CONTRARY CONTAINED IN THIS
SECURITY AGREEMENT NOTWITHSTANDING, THE SECURITY INTERESTS IN THE LOUISIANA
COLLATERAL GRANTED IN THIS SECURITY AGREEMENT, AND THE SECURED PARTY'S REMEDIES
IN THE COURTS SITTING IN AND FOR THE STATE OF LOUISIANA WITH RESPECT TO THE
LOUISIANA COLLATERAL SHALL BE GOVERNED BY LOUISIANA LAW.
SECTION 8. FCC MATTERS. Notwithstanding any other provision of this
Security Agreement:
(A) Any foreclosure on, sale, transfer or other
disposition of any of the Collateral by the Secured Party shall be pursuant to
Section 310(d) of the Communications Act of 1934, as amended, and the
applicable rules and regulations thereunder, and, if and
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Security Agreement/MCTC
Loan No. T0362
to the extent required thereby, subject to the prior approval or notice to and
non-opposition of the FCC.
(B) If a Default shall have occurred and be continuing, the
Debtor shall take any action, which the Secured Party may reasonably request in
order to transfer and assign to the Secured Party, or to such one or more third
parties as the Secured Party may designate, or to a combination of the
foregoing, each FCC license or permit held by the Debtor. The Secured Party is
empowered, to the extent permitted by applicable law, to request the appointment
of a receiver from any court of competent jurisdiction. Such receiver may be
instructed by the Secured Party to seek from the FCC an involuntary transfer of
control of each such FCC license or permit for the purpose of seeking a bona
fide purchaser to whom control will ultimately be transferred. The Debtor hereby
agrees to authorize such an involuntary transfer of control upon the request of
the receiver so appointed and, if the Debtor shall refuse to authorize the
transfer, its approval may be required by the court. Upon the occurrence and
during the continuance of a Default, the Debtor shall further use its best
efforts to assist in obtaining approval of the FCC and any state regulatory
bodies, if required, for any action or transactions contemplated by this
Security Agreement, including, without limitation, the preparation, execution
and filing with the FCC and any state regulatory bodies of the assignor's or
transferor's portion of any application or applications for consent to the
assignment of any FCC license or permit or transfer of control necessary or
appropriate under the rules and regulations of the FCC or any state regulatory
body for approval or non-opposition of the transfer or assignment of any portion
of the Collateral, including, without limitation, with any FCC license or
permit.
(C) The Debtor acknowledges that the assignment or transfer of
each FCC license or permit is integral to the Secured Party's realization of the
value of the Collateral, that there is no adequate remedy at law for failure by
the Secured Party to comply with the provisions of this Section 8 and that such
failure would not be adequately compensable in damages, and therefore agrees,
without limiting the right of the Secured Party to seek and obtain specific
performance of other obligations of the Debtor contained in this Security
Agreement, that the agreements contained in this Section 8 may be specifically
enforced.
(D) In accordance with the requirements of 47 C.F.R. Section
22.917, or any successor provision thereto, the Secured Party shall notify the
Debtor and the FCC in writing at least 10 days prior to the date on which the
Secured Party intends to exercise its rights, pursuant to this Security
Agreement or any of the other Loan Documents, by foreclosing on, or otherwise
disposing of, any Collateral in connection with which such notice is required
pursuant to 47 C.F.R. Section 22.917 or any successor provision thereto.
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Security Agreement/MCTC
Loan No. T0362
THUS DONE AND SIGNED in several counterparts at the places and on the
dates indicated below and in the presence of the respective undersigned
Notaries Public and the respective undersigned witnesses indicated below, by
the duly authorized officers of the respective parties, after a due reading of
the whole.
At Lake Charles, Louisiana, on April ____ 1995.
MERCURY CELLULAR TELEPHONE
COMPANY
By:
------------------------------------
Name: Xxxxxx Xxxxx
Title: President
Attest:
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
[CORPORATE SEAL]
Witnesses to all Signatures:
---------------------------------
Witness
---------------------------------
Witness
---------------------------------
Notary Public
My commission expires:
-----------
[NOTARIAL SEAL]
(Signatures Continued on Next Page)
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Security Agreement/MCTC
Loan No. T0362
(Signatures Continued from Previous Page)
At Atlanta, Georgia on April ____ 1995.
COBANK, ACB
By:
------------------------------------
Name: Xxxx Xxx Xxxxxxx
Title: Assistant Vice President
Witnesses to Signature:
--------------------------------
Witness
--------------------------------
Witness
--------------------------------
Notary Public
My commission expires:
----------
[NOTARIAL SEAL]
-15-
16
SCHEDULE A
TO
SECURITY AGREEMENT
OF
MERCURY CELLULAR TELEPHONE COMPANY
1. Set forth below are the present locations (by county or parish and
state) of the Debtor's inventory and equipment:
LOUISIANA PARISHES LOCATION TYPE OF PROPERTY
------------------ -------- ----------------
Xxxxx Xxxxxx Tower
Xxxxxxxxxx DeRidder Tower
Merryville Tower
Ragley Tower
Calcasieu Vinton Tower
Edgerly Tower
Sulphur Tower and Retail Store
DeQuincy Tower
Lake Xxxxxxx - Xxxxxx Road Tower
Lake Xxxxxxx - XX Tower Tower and Office
Lake Xxxxxxx Retail Store
Xxxxxxx Xxxxxxx Tower
Grand Xxxxxxx Tower
Xxxxxxx Bayou Tower
Xxxxxxxxx Xxxxx Xxxxxxxx Tower
Jennings Retail Store
Xxxxxx Leesville Retail Store
Fort Polk Tower
2. Set forth below are the locations (by county or parish and state) at
which any of the Debtor's inventory and equipment has been located within the
past five years:
See Above
3. Set forth below is a description of any exception to the
representation made in Section 3(E) of the Security Agreement:
None
00
XXXX XXXXXXX-XXXXXX XXXX
0000 Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000
Commencing 30 feet West of the Southeast Corner of the South Half of the
Northeast Quarter of the Southeast Quarter (S/2 of NE/4 of SE/4) of Section 23,
Township 10 South, Range 9 West, thence North 70 feet, thence West 200 feet,
thence South 70 feet, thence East 200 feet to the point of commencement.
VINTON
0000 Xxxx Xxxx, Xxxxxx, Xxxxxxxxx 00000
Commencing at the Northeast corner of the North Half of the Southeast Quarter
of the Southeast Quarter (N/2 of SE/4 of Se/4) of Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx 00 Xxxx; thence North 89 degrees 17 minutes 22 seconds West along
the North line of said North Half of Southeast Quarter of the Southeast Quarter
(N/2 of SE/4 of SE/4) for a distance of 30 feet to the West right-of-way line
of Xxxx Road for point of beginning; thence South 00 degrees 42 minutes 53
seconds West along said West right-of-way line for a distance of 540 feet;
thence North 89 degrees 17 minutes 22 seconds West parallel with the aforesaid
North line of the North Half of the Southeast Quarter of the Southeast Quarter
(N/2 of SE/4 of SE/4) for a distance of 480 feet; thence North 00 degrees 42
minutes 53 seconds East parallel with the aforesaid West right-of-way line of
Xxxx Road for a distance of 540 feet to the North line of said North Half of
the Southeast Quarter of the Southeast Quarter (N/2 of SE/4 of SE/4); thence
South 89 degrees 17 minutes 22 seconds East along said North line for a
distance of 480 feet to the point of beginning; SUBJECT to any easements,
servitudes and/or rights-of-way and containing 5.95 acres, more or less.
EDGERLY
0000 Xxxx Xxxx, Xxxxxxx, Xxxxxxxxx 00000
Beginning 60 feet West and 187.2 feet South of the Northeast Corner of the
Northwest Quarter of the Southeast Quarter (NW/4 of SE/4) of Section Six (6),
Township Ten (10) South, Range Eleven (11) West, thence West 300 feet, thence
North 300 feet, thence East 300 feet, thence South 300 feet to the point of
commencement situated in the Parish of Calcasieu, State of Louisiana.
4. XXXXXXXXX XXXXX PARISH:
JENNINGS
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000
Commence at the Northwest (N/W) corner of Section 2, TIOS - R 3W, thence East a
distance of 25.0', thence South a distance of 1439.0', thence S61 degrees 21'E,
a distance of 1458.0', thence N41 degrees 14'E, a distance of 676.22',
18
thence S48 degrees 46'E, a distance of 100.00', thence S41 degrees 14'W, a
distance of 70.00', degrees, thence N48 degrees 46'W, a distance of 100.00',
thence N41 degrees 14'E, a distance of 70.00' degrees to the point of beginning
containing 161 acres located in the city of Jennings, Xxxxxxxxx Xxxxx Parish,
Louisiana.
19
EXHIBIT "B"
MERCURY CELLULAR TELEPHONE COMPANY MORTGAGE
LIST OF ALL LEASED PROPERTY, DATE OF LEASE AND PARISH IN WHICH LEASED
PROPERTY IS LOCATED.
TYPE OF
LESSOR DATE OF LEASE PARISH LOCATION PROPERTY
------ ------------- --------------- --------
International Paper Co. 3/18/91 Xxxxxxxxxx Tower
Boise Southern Company 11/2/92 Xxxxxxxxxx Tower
Xxxxxxx X. Xxxxxxx, Xx. 1/1/90 Calcasieu Tower
Xxx Xxxxx 9/30/94 Calcasieu Retail Store
Mercury, Inc. 3/1/92 Calcasieu Retail Store
Cameron Telephone Co. 8/11/83 Calcasieu Tower
Xxxxxx X. Xxxxxxx 9/15/94 Cameron Tower
Xxxxxx Xxxxxx XxXxxx 9/15/94 Cameron Tower
Mercury, Inc. Cameron Tower
Xxxxx Xxxxxxx 1/9/95 Cameron Tower
Xxxxx Xxxxxx 7/1/94 Xxxxxxxxx Xxxxx Retail Store
Xxxxxxx X. Xxxxxx 10/1/90 Xxxxxx Tower
Pene Broadcasting 12/15/89 Xxxxxx Equipment on
their tower
Xxxxxxx X. Xxxxxx 0/0/00 Xxxxxx Xxxxxx Xxxxx
Xxxx Xxxx - no lease exists Xxxxxx Tower
