EXHIBIT 4.2
PLEDGE AND SECURITY AGREEMENT
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THIS PLEDGE AND SECURITY AGREEMENT (the "Pledge Agreement") is made and
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entered into as of October 29, 1999 (the "Closing Date"), by and between
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Louisiana Unwired, LLC (the "Pledgor"), having its principal place of business
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at One Lakeshore Drive, Suite 1900, Lake Charles, Louisiana 70629, and State
Street Bank and Trust Company, in its capacity as trustee under the Indenture
(as defined), as collateral agent (the "Collateral Agent"), for the benefit of
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itself and for the holders (the "Holders") of US Unwired, Inc.'s 13-3/8 % Senior
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Subordinated Discount Notes due 2009 (together with any notes issued in
replacement thereof or in exchange or substitution therefor, the "Notes").
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Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed thereto in the Indenture (hereinafter defined).
W I T N E S S E T H:
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WHEREAS, US Unwired Inc. ("Borrower") currently owns, legally and
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beneficially, approximately 96% of the partnership interests of Pledgor; and
WHEREAS, Pledgor is the legal and beneficial owner of an approximately
eighty percent (80%) partnership interest in Pledged Partnership (as hereinafter
defined); and
WHEREAS, Borrower and Collateral Agent, as Trustee, have entered into that
certain indenture dated as of October 29, 1999 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the
"Indenture"), pursuant to which Borrower issued the Notes and Pledgor guaranteed
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the Notes (the "Guarantee"); and
WHEREAS, the terms of the Indenture require that the Pledgor (i) pledge to
Collateral Agent for the ratable benefit of the Holders of the Notes, and grant
to Collateral Agent for the ratable benefit of the Holders of the Notes, a
second priority security interest in the Collateral (as defined herein) and (ii)
execute and deliver this Pledge Agreement in order to secure the payment and
performance by the Pledgor of all of its obligations under both the Indenture
and its Guarantee of the Notes (the "Obligations"); and
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WHEREAS, the payment of the Credit Agreement (as defined), is secured by,
inter alia, a first priority pledge of the Collateral (the "Senior Pledge") in
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favor of the Lenders and certain other parties to the Credit Agreement, as set
forth on the signature pages thereto or as may be added from time to time
pursuant to the terms thereof; and
WHEREAS, the Collateral Agent and CoBank, ACB, have entered into that
Intercreditor Agreement (as herein defined); and
WHEREAS, the Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement:
NOW, THEREFORE, in consideration of the premises, and in order to induce
the purchase of the Guarantee, Pledgor hereby agrees with the Collateral Agent
for its benefit and the ratable benefit of the Holders of the Notes as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
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underscored) shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof) when used in this Pledge
Agreement:
"Collateral" shall mean and include the (i) intercompany notes payable to
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Pledgor, the Borrower, or any subsidiary of Pledgor or Borrower by Borrower,
Pledgor or the Pledged Partnership and (ii) Partnership Interests, Distributions
and all certificates, accounts, chattel paper, instruments, general intangibles,
cash, books, records, notices and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the
Partnership Interests or the Distributions, together with all rights of Pledgor
to receive and retain any of the foregoing and all proceeds of the foregoing.
"Credit Agreement" shall mean that certain Credit Agreement, dated as of
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October 1, 1999, by and between Borrower and CoBank, ACB, as Administrative
Agent and as a Lender, the other Lenders identified therein, and the other
parties referenced therein, as the same may be amended, modified, supplemented,
extended, or restated from time to time, pursuant to which CoBank, ACB and
Lenders have committed to make available to Borrower a revolving credit facility
and term loan facility in the aggregate maximum principal amount outstanding at
any one time not to exceed $130,000,000.
"Distributions" shall mean all right, title and interest of Pledgor,
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whether legal or equitable, now or hereafter existing and howsoever evidenced,
incurred or arising, to receive distributions from Pledged Partnership as a
partner thereof or otherwise, whether cash or non-cash, including, without
limitation, any and all rights of Pledgor to receive a return of all or any part
of any contribution made by Pledgor to Pledged Partnership, including, without
limitation, any and all rights to receive returns of advances or loans.
"Event of Default" shall mean any of the events listed in Section 6.01 of
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the Indenture.
"Intercreditor Agreement" shall mean the Intercreditor Agreement between
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the Collateral Agent and the Administrative Agent dated as of October 29, 1999.
"Obligations" is defined in the Recitals.
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"Partnership Agreement" shall mean that certain Partnership Agreement,
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dated as of October 22, 1999 among Pledgor, Fort Bend Telephone Company and XIT
Leasing, Inc., and all amendments thereto as of the date hereof, with respect to
the rights and obligations of the partners of Pledged Partnership.
"Partnership Interests" shall mean all right, title and interest of
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Pledgor, whether legal or equitable, now or hereafter existing, and howsoever
evidenced or arising, in Pledged Partnership as a partner thereof.
"Pledge Agreement" is defined in the preamble.
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"Pledged Partnership" shall mean Texas Unwired, a Louisiana general
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partnership.
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"Pledged Partnership Interests" shall mean all Partnership Interests
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pledged pursuant to the Pledge Agreement.
"Pledge Agreement" is defined in the preamble.
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"Satisfaction Date" means the date on which all Obligations under the
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Indenture and the Senior Secured Notes have been paid in full or otherwise
satisfied.
SECTION 1.2. Indenture Definitions. Unless otherwise defined herein or
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the context otherwise requires, terms used in this Pledge Agreement, including
its preamble and recitals, have the meanings provided in the Indenture.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or in
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the Indenture or the context otherwise requires, terms for which meanings are
provided in the Uniform Commercial Code from time to time in effect in the State
of New York (the "U.C.C.") are used in this Pledge Agreement, including its
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preamble and recitals, with such meanings.
ARTICLE II. PLEDGE
SECTION 2.1. Grant of Security Interest. Pledgor hereby pledges,
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hypothecates, assigns, charges, delivers and transfers to the Collateral Agent
for its benefit and for the ratable benefit of the Holders of the Notes, and
hereby grants to the Collateral Agent for the ratable benefit of the Holders of
the Notes, a continuing security interest in, all of the Collateral.
SECTION 2.2. Security for Obligations. This Pledge Agreement secures the
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payment in full and in cash of all Obligations.
SECTION 2.3. Delivery of Pledged Collateral. Pledgor hereby agrees that,
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pursuant to the terms of the Intercreditor Agreement, all certificates or
instruments representing or evidencing the Collateral shall be held by the
Administrative Agent for the benefit of the Lenders and the Holders. Upon
expiration or termination of the Intercreditor Agreement, Pledgor shall
immediately deliver or cause to be delivered to the Collateral Agent all
certificates or instruments representing or evidencing the Collateral. All such
certificates or instruments shall be in suitable form for transfer by delivery
and shall be accompanied by instruments of transfer or assignment duly executed
in blank and undated, all in form and substance satisfactory to the Collateral
Agent.
SECTION 2.4. Distributions on Pledged Partnership Interests. In the event
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that any Distribution is to be paid on any Pledged Partnership Interest at a
time when no Event of Default has occurred and is continuing, such Distribution
may be paid directly to Pledgor. If any such Event of Default has occurred and
is continuing, then any such Distribution shall be paid directly to the
Collateral Agent.
SECTION 2.5. Continuing Security Interest. This Pledge Agreement shall
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create a continuing security interest in the Collateral and shall:
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(a) remain in full force and effect until all Obligations under the
Indenture and the Notes are satisfied in full;
(b) be binding upon each Pledgor and its successors, transferees and
assigns; and
(c) inure, together with the rights and remedies of the Collateral
Agent hereunder, to the benefit of the Holders of the Notes.
The security interest granted herein shall terminate and all rights to the
Collateral shall revert to Pledgor on the Satisfaction Date. Upon any such
termination or release of Collateral, the Collateral Agent will, at each
Pledgor's sole expense, deliver to such Pledgor, without any representations,
warranties or recourse of any kind whatsoever, all certificates and instruments
representing or evidencing all Pledged Partnership Interests, together with all
other Collateral held by the Collateral Agent hereunder, and execute and deliver
to such Pledgor such documents as such Pledgor shall reasonably request to
evidence such termination or release.
SECTION 2.6. Security Interest Absolute. All rights of the Collateral
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Agent and the Liens granted to the Collateral Agent hereunder, and all
obligations of each Pledgor hereunder, shall be absolute and unconditional,
irrespective of
(a) any lack of validity or enforceability of the Indenture or any
other agreement or instrument relating thereto;
(b) the failure of the Collateral Agent, for its own benefit or the
benefit of the Holders of the Notes:
(i) to assert any claim or demand or to enforce any right or
remedy against Pledgor, any Guarantor (as such term is defined in the
Indenture) or any other Person under the provisions of the Indenture,
the Notes or the Guarantees or otherwise, or
(ii) to exercise any right or remedy against any guarantor of, or
collateral securing, any Obligations of Pledgor or any Guarantor.
(c) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations or any other extension,
compromise or renewal of any Obligation of Pledgor or any Guarantor,
(d) any reduction, limitation, impairment or termination of any
Obligation of Pledgor or any Guarantor for any reason (other than the
satisfaction of and repayment in full and in cash of all Obligations),
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and Pledgor hereby waives any
right to or claim of) any defense or set-off, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise or unenforceability of, or any
other event or occurrence affecting, any Obligation of Pledgor, any
Guarantor or otherwise,
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(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Indenture, the
Notes or the other Guarantees,
(f) any addition, exchange, release, surrender or non-perfection of
any collateral (including the Collateral), or any amendment to or waiver or
release of or addition to or consent to departure from any guaranty, for
any of the Obligations, or
(g) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, Pledgor, any
Guarantor, any surety or any guarantor.
SECTION 2.7. Postponement of Subrogation, etc. Pledgor will not exercise
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any rights which it may acquire by reason of any payment made hereunder, whether
by way of subrogation, reimbursement or otherwise, until the Satisfaction Date.
Any amount paid to Pledgor on account of any payment made hereunder shall be
held in trust for the benefit of the Holders of the Notes and shall immediately
be paid to the Collateral Agent, for the ratable benefit of the Holders of the
Notes, and credited and applied against the Obligations, whether matured or
unmatured, in accordance with the terms of the Indenture, provided, however,
that if
(a) Pledgor has made payment to the Collateral Agent for the ratable
benefit of the Holders of the Notes of all or any part of the Obligations,
and
(b) the Satisfaction Date has occurred,
the Collateral Agent, on behalf of the Holders of the Notes, agrees that, at
Pledgor's request, the Collateral Agent, on behalf of the Holders of the Notes,
will execute and deliver to Pledgor appropriate documents (without recourse and
without representation or warranty) necessary to evidence the transfer by
subrogation to Pledgor of an interest in the Obligations resulting from such
payment by Pledgor. In furtherance of the foregoing, prior to the Satisfaction
Date, Pledgor shall refrain from taking any action or commencing any proceeding
against any Guarantor (or its successors or assigns, whether in connection with
a bankruptcy proceeding or otherwise) to recover any amounts in respect of
payments made under this Pledge Agreement to the Collateral Agent or the Holders
of the Notes.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
Warranties, etc. Pledgor represents and warrants unto the Collateral Agent
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and the Holders of the Notes, as at the date of each pledge and delivery
hereunder by Pledgor to the Collateral Agent of any Collateral as set forth in
this Article:
SECTION 3.1. Ownership, No Liens, etc. Pledgor is the legal and
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beneficial owner of, and has good and valid title to (and has full right and
authority to pledge and assign) the Collateral, including the eighty (80%)
partnership interest in the Pledged Partnership free and clear of all Liens,
except any Lien granted pursuant hereto in favor of the Collateral Agent or any
Permitted Lien.
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SECTION 3.2. Valid Security Interest.
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(a) The execution and delivery of this Pledge Agreement creates a
valid second-priority security interest in the Collateral and (i) in the
case of any intercompany notes and any Pledged Partnership Interests that
are certificated, upon the delivery of such Collateral to the
Administrative Agent or a person described in Section 8-301(a)(2) of the
U.C.C. such security interest will be a valid second-priority, perfected
security interest, and (ii) in the case of all other Collateral, upon the
filing of the U.C.C. financing statements (Form U.C.C.-1) delivered by the
Pledgors to the Collateral Agent with respect to such Collateral, such
security interest will be a valid second-priority, perfected security
interest. Pledgor has filed all U.C.C. financing statements (Form U.C.C.-1)
referred to above in the appropriate offices therefor and has taken all of
the other actions referred to above necessary to create perfected and
second-priority security interests in the applicable Collateral.
(b) Upon the expiration or termination of the Intercreditor
Agreement, and the receipt of notice of such satisfaction by Pledgor,
Pledgor shall deliver, or cause the Collateral to be delivered, to the
Collateral Agent, at which time the pledge made pursuant to this Pledge
Agreement shall create a valid and perfected first priority security
interest in the Collateral, securing the payment of the Obligations for the
benefit of Collateral Agent and the Holders of the Notes, and enforceable
as such against all creditors of Pledgor and any Persons purporting to
purchase any of the Collateral from Pledgor.
SECTION 3.3. Organization. Pledgor is a limited liability company duly
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organized, validly existing and in good standing under the laws of the State of
Louisiana and has all requisite power and authority to enter into this Pledge
Agreement; and Pledgor's principal place of business and the place it maintains
all records relating to the Collateral is now at the location listed in Section
8.4 and Pledgor's taxpayer identification number is 72-1407430.
SECTION 3.4. As to Pledged Partnership Interests. In the case of any
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Pledged Partnership Interests constituting Collateral, all such Pledged
Partnership Interests are duly authorized and validly issued, fully paid and
non-assessable, and constitute 80% of the partnership interests of Pledgor.
Pledgor does not have any Subsidiaries incorporated in the United States of
which it directly owns any Capital Stock other than the Pledged Partnership. In
the event any of the Pledged Partnership Interests become certificated, the
certificates representing the Pledged Partnership Interests shall be delivered
to the Collateral Agent or a person described in Section 8-301(a)(2) of the
U.C.C., with stock powers, accompanied by undated instruments of transfer duly
executed in blank and the Collateral Agent has "control" (as defined in the
U.C.C.) of such Pledged Shares.
SECTION 3.5. Authorization, Approval, etc. No authorization, approval or
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other action by, and no notice to or filing with, any Governmental Authority,
regulatory body or other Person (other than those that have been, or on the
Closing Date will be, duly obtained or made and which are, or on the Closing
Date will be, in full force and effect) is required either
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(a) for the pledge by Pledgor of any Collateral pursuant to this
Pledge Agreement or for the execution, delivery and performance of this
Pledge Agreement by Pledgor, or
(b) for the exercise by the Collateral Agent of the voting or other
rights provided for in this Pledge Agreement, or, except with respect to
any Pledged Partnership Interests as may be required in connection with a
disposition of such Pledged Partnership Interests by laws affecting the
offering and sale of securities generally, the remedies in respect of the
Collateral pursuant to this Pledge Agreement,
provided, however, that in order to exercise the voting and certain other rights
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provided for in this Pledge Agreement, the Pledged Partnership Interests must be
transferred into the name of the Collateral Agent on the books and records of
the Issuer prior to the exercise of such voting or other rights.
SECTION 3.6. Compliance with Laws. Pledgor is in compliance with the
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requirements of all applicable laws (including, the provisions of the Fair Labor
Standards Act), rules, regulations and orders of every Governmental Authority,
the non-compliance with which could have a material adverse effect on the
business, prospects, financial condition or results of operations of Pledgor, or
draw into question the validity of this Pledge Agreement or the other documents
contemplated by the Indenture or adversely affect the value of the Collateral.
SECTION 3.7. Power to Enter Into Agreement. Pledgor has all requisite
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corporate power and authority to enter into this Pledge Agreement.
SECTION 3.8. Due Execution. This Pledge Agreement has been duly executed
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and delivered by Pledgor and constitutes a legal, valid and binding obligation
of Pledgor, enforceable against Pledgor in accordance with its terms, except as
the enforceability hereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and equitable principles of general
applicability.
SECTION 3.9. No Litigation. No litigation, investigation or proceeding of
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or before any arbitrator or governmental authority is pending or, to the best
knowledge of Pledgor, threatened by or against Pledgor or against any of its
properties or revenues with respect to this Pledge Agreement or any of the
transactions contemplated hereby.
SECTION 3.10. Legal Pledge. The pledge of the Collateral pursuant to this
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Pledge Agreement is not prohibited by any applicable law or governmental
regulation, release, interpretation or opinion of the Board of Governors of the
Federal Reserve System or other regulatory agency (including, without
limitation, Regulations T, U and X of the Board of Governors of the Federal
Reserve System).
ARTICLE IV. COVENANTS
SECTION 4.1. Protect Collateral, Further Assurances, etc. Except for the
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Senior Pledge, or as otherwise provided for in the Credit Agreement, Pledgor
will not sell, assign, transfer, pledge, or encumber in any other manner the
Collateral (except in favor of the
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Collateral Agent hereunder or as specifically permitted by the Indenture).
Pledgor will warrant and defend the right and title herein granted unto the
Collateral Agent in and to the Collateral (and all right, title and interest
represented by the Collateral) against the claims and demands of all Persons
whomsoever. Pledgor agrees that at any time, and from time to time, at the
expense of Pledgor, Pledgor will promptly execute and deliver all further
instruments, and take all further action, that may be necessary or desirable, or
that the Collateral Agent may reasonably request, in order to perfect and
protect any security interest granted or purported to be granted hereby or to
enable the Collateral Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral. Pledgor will not certificate or issue
any Partnership Interests unless the same are immediately pledged to the
Collateral Agent hereunder and delivered to the Administrative Agent, the
Collateral Agent or a person described in Section 8-301(a) of the U.C.C.
SECTION 4.2. Endorsements. Pledgor agrees that all certificated Pledged
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Partnership Interests delivered by such Pledgor pursuant to this Pledge
Agreement will be accompanied by duly executed, or other equivalent instruments
of transfer reasonably acceptable to the Collateral Agent. Pledgor will, from
time to time upon the reasonable request of the Collateral Agent, promptly
deliver to the Collateral Agent such instruments and similar documents,
reasonably satisfactory in form and substance to the Collateral Agent, with
respect to the Collateral as the Collateral Agent may reasonably request and
will, from time to time upon the request of the Collateral Agent after the
occurrence of any Event of Default, promptly cause the Pledged Partnership to
transfer any Pledged Partnership Interests or other Collateral into the name of
any nominee designated by the Collateral Agent.
SECTION 4.3. Continuous Pledge. Subject to Section 2.4 hereof, Pledgor
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will, at all times, keep pledged to the Collateral Agent pursuant hereto all
Pledged Partnership Interests, all Distributions with respect thereto, and all
other Collateral, instruments, proceeds and rights from time to time received by
or distributable to such Pledgor in respect of any Collateral.
SECTION 4.4. Voting Rights, Dividends, etc. Pledgor agrees:
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(a) if an Event of Default shall have occurred and be continuing,
promptly upon receipt of notice thereof by Pledgor and without any request
therefore by the Collateral Agent, to deliver (properly endorsed where
required hereby or requested by the Collateral Agent) to the Collateral
Agent all Distributions and all proceeds of the Collateral, all of which
shall be held by the Collateral Agent as additional Collateral for use in
accordance with Section 6.4 hereof; and
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(b) if an Event of Default shall have occurred and be continuing and
the Collateral Agent shall have notified Pledgor of the Collateral Agent's
intention to exercise its voting power under this Section:
(i) the Collateral Agent may exercise (to the exclusion of
Pledgor) the voting power and all other incidental rights of ownership
with respect to any Pledged Partnership Interests or other Collateral,
and Pledgor hereby grants the Collateral Agent an irrevocable proxy,
exercisable under such circumstances, to vote the Pledged Partnership
Interests and such other Collateral; and
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(ii) promptly to deliver to the Collateral Agent such additional
proxies and other documents as may be necessary to allow the
Collateral Agent to exercise such voting power.
All Distributions and proceeds which may at any time and from time to time be
held by Pledgor but which Pledgor is then obligated to deliver to the Collateral
Agent, shall, until delivery to the Collateral Agent, be held by Pledgor
separate and apart from its other property in trust for the Collateral Agent.
The Collateral Agent agrees that unless an Event of Default shall have occurred
and be continuing and the Collateral Agent shall have given the notice referred
to in this Section, Pledgor has the exclusive power to exercise all voting and
other consensual rights with respect to the Pledged Partnership Interests, and
the Collateral Agent shall, upon the written request of Pledgor, promptly
deliver such proxies and other documents, if any, as shall be reasonably
requested by Pledgor, and which are necessary to allow Pledgor to exercise such
powers with respect to any of the Pledged Partnership Interests; provided,
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however, that no vote shall be cast, or consent, waiver or ratification given,
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or action taken by Pledgor that would materially impair the value of any
Collateral or be inconsistent with or violate any provision of the Indenture,
the Notes, the Guarantees or this Pledge Agreement.
ARTICLE V. THE COLLATERAL AGENT
SECTION 5.1. Collateral Agent Appointed Attorney-in-Fact. Pledgor hereby
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irrevocably appoints the Collateral Agent as Pledgor's attorney-in-fact, with
full authority and in the name, place and stead of the Pledgor or in its own
name, from time to time in the Collateral Agent's discretion, to take, upon the
occurrence and during the continuance of an Event of Default, any action and to
execute any instrument which the Collateral Agent may deem necessary or
advisable to accomplish the purposes of this Pledge Agreement, including without
limitation:
(a) to ask, demand, collect, sue for, recover, compromise and receive
and give acquittance and receipts for moneys due and to become due under or
in respect of any of the Collateral,
(b) to receive, endorse and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) above; and
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(c) to file any claims or take any action or institute any
proceedings which the Collateral Agent may deem necessary or desirable for
the collection of any of the Collateral or otherwise to enforce the rights
of the Collateral Agent with respect to any of the Collateral.
SECTION 5.2. Authority of Collateral Agent.
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(a) The Collateral Agent shall have and be entitled to exercise all
powers hereunder that are specifically granted to the Collateral Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. The Collateral Agent may perform any of its duties hereunder or in
connection with the Collateral by or through agents or employees and shall
not be liable for the actions of any such agents
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appointed with due care and shall be entitled to retain counsel and to act
in reliance upon the advice of counsel concerning all such matters. Neither
the Collateral Agent nor any director, officer, employee, attorney or agent
of the Collateral Agent shall be responsible for the validity,
effectiveness or sufficiency hereof or of any document or security
furnished pursuant hereto. The Collateral Agent and its directors,
officers, employees, attorneys and agents shall be entitled to rely on any
communication, instrument or document reasonably believed by it or them to
be genuine and correct and to have been signed or sent by the proper person
or persons.
(b) Pledgor acknowledges that the rights and responsibilities of the
Collateral Agent under this Pledge Agreement with respect to any action
taken by the Collateral Agent or the exercise or non-exercise by the
Collateral Agent of any option, right, request, judgment or other right or
remedy provided for herein or resulting or arising out of this Pledge
Agreement shall, as between the Collateral Agent and the Holders of the
Notes, be governed by the Indenture and by such other agreements with
respect thereto as may exist from time to time among them, but, as between
the Collateral Agent and each or Pledgor, the Collateral Agent shall be
conclusively presumed to be acting as agent for the Holders of the Notes
with full and valid authority so to act or refrain from acting, and Pledgor
shall not be obligated or entitled to make any inquiry respecting such
authority.
(c) The Trustee has been appointed as trustee pursuant to the
Indenture. The actions of the Trustee hereunder, acting as Collateral
Agent, are subject to the provisions of the Indenture.
SECTION 5.3. Resignation or Removal of the Collateral Agent. Until such
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time as the Obligations shall have been paid in full, the Collateral Agent may
at any time, by giving written notice to Pledgor, the Trustee (as defined in the
Indenture) and the Holders of the Notes, resign and be discharged of the
responsibilities hereby created, such resignation to become effective upon (i)
the appointment of a successor Collateral Agent and (ii) the acceptance of such
appointment by such successor Collateral Agent. As promptly as practicable after
the giving of any such notice, the Trustee (if the Trustee is not then acting as
the Collateral Agent hereunder), or if the Trustee and the Collateral Agent are
the same person or entity, the Holders of the Notes shall appoint a successor
Collateral Agent, which successor Collateral Agent shall be reasonably
acceptable to the Pledgors. If no successor Collateral Agent shall be appointed
and shall have accepted such appointment within 90 days after the Collateral
Agent gives the aforesaid notice of resignation, the Collateral Agent may apply
to any court of competent jurisdiction to appoint a successor Collateral Agent
to act until such time, if any, as a successor shall have been appointed as
provided in this Section. Any successor so appointed by such court shall
immediately and without further act be superseded by any successor Collateral
Agent appointed by the Holders of the Notes, as provided in this Section.
Simultaneously with its replacement as Collateral Agent hereunder, the
Collateral Agent so replaced shall deliver to its successor all documents,
instruments, certificates and other items of whatever kind (including, without
limitation, the certificates and instruments evidencing the Collateral and all
instruments of transfer or assignment) held by it pursuant to the terms hereof.
Any Collateral Agent that has resigned shall be entitled to fees, costs and
expenses to the extent incurred or arising, or relating to events occurring,
before its resignation or removal.
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SECTION 5.4. Release; Termination of Agreement.
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(a) This Pledge Agreement shall terminate upon the earlier to occur
of: (i) full and final payment and performance of the Obligations (and upon
receipt by the Collateral Agent of Pledgor's written certification that all
such Obligations have been satisfied) and payment in full of all fees and
expenses owing by the Pledgor to the Collateral Agent, (ii) the day of the
Legal Defeasance of all of the Obligations pursuant to Section 8.02 of the
Indenture (other than those surviving Obligations specified therein) or
(iii) such other termination date as is provided by the Indenture. At such
time, the Collateral Agent shall, at the request of Pledgor, reassign and
redeliver to Pledgor all of the Collateral hereunder that has not been
sold, disposed of, retained or applied by the Collateral Agent in
accordance with the terms hereof. Such reassignment and redelivery shall be
without warranty by or recourse to the Collateral Agent, except as to the
absence of any prior assignments by the Collateral Agent of its interest in
the Collateral, and shall be at the expense of the Pledgors.
(b) Pledgor agrees that it will not, except as permitted by the
Indenture, sell or dispose of, or grant any option or warrant with respect
to, any of the Collateral; provided, however, that if Pledgor shall sell
any of the Collateral in accordance with the terms of the Indenture, the
Collateral Agent shall, at the request of Pledgor and subject to
requirements of Section 12.03 of the Indenture, release the Collateral
subject to such sale free and clear of the Lien under this Pledge
Agreement.
SECTION 5.5. Collateral Agent May Perform. If Pledgor fails to perform
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any agreement contained herein, the Collateral Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Collateral Agent
incurred in connection therewith shall be payable by Pledgor pursuant to Section
6.5 hereof.
SECTION 5.6. Collateral Agent Has No Duty. The powers conferred on the
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Collateral Agent hereunder are solely to protect its interest (on behalf of the
Holders of the Notes) in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for the reasonable care of any Collateral in
its possession and the accounting for moneys actually received by it hereunder,
the Collateral Agent shall have no duty as to any Collateral or responsibility
for
(a) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Collateral,
whether or not the Collateral Agent has or is deemed to have knowledge of
such matters, or
(b) taking any necessary steps to preserve rights against prior
parties or any other rights pertaining to any Collateral.
SECTION 5.7. Reasonable Care. The Collateral Agent is required to
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exercise reasonable care in the custody and preservation of any of the
Collateral in its possession, provided, however, the Collateral Agent shall be
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deemed to have exercised reasonable care in the custody and preservation of any
of the Collateral, if it takes such action for that purpose as Pledgor
reasonably requests in writing from time to time, but failure of the Collateral
Agent to
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comply with any such request at any time shall not in itself be deemed a failure
to exercise reasonable care.
ARTICLE VI. REMEDIES
SECTION 6.1. Certain Remedies. If an Event of Default shall have occurred
----------------
and be continuing:
(a) The Collateral Agent may exercise in respect of the Collateral,
in addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default
under the U.C.C. (whether or not the U.C.C. applies to the affected
Collateral) and also may, without notice except as specified below, sell
the Collateral or any part thereof in one or more parcels at public or
private sale, at any of the Collateral Agent's offices or elsewhere, for
cash, on credit or for future delivery, and upon such other terms as the
Collateral Agent may deem commercially reasonable. Pledgor agrees that, to
the extent notice of sale shall be required by law, at least ten day's
prior notice to Pledgor of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. The Collateral Agent shall not be obligated to make any sale
of Collateral regardless of notice of sale having been given. The
Collateral Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefore, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(b) The Collateral Agent may
(i) transfer all or any part of the Collateral into the name of
the Collateral Agent or its nominee, with or without disclosing that such
Collateral is subject to the Lien hereunder,
(ii) notify the parties obligated on any of the Collateral to make
payment to the Collateral Agent of any amount due or to become due
thereunder,
(iii) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer than
the original period) any obligations of any nature of any party with
respect thereto,
(iv) endorse any checks, drafts or other writings in Pledgor's
name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral and
(vi) execute (in the name, place and stead of Pledgor)
endorsements, assignments, stock powers and other instruments of conveyance
or transfer with respect to all or any of the Collateral.
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SECTION 6.2. Further Action. If the Collateral Agent shall determine to
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exercise its right to sell all or any of the Collateral pursuant to Section 6.1,
------------
Pledgor agrees that, upon request of the Collateral Agent, Pledgor will, at its
own expense, do or cause to be done all such other acts and things as may be
necessary to make such sale of the Collateral or any part thereof valid and
binding and in compliance with applicable law.
SECTION 6.3. Compliance with Restrictions. Pledgor agrees that in any
----------------------------
sale of any of the Collateral whenever an Event of Default shall have occurred
and be continuing, the Collateral Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications and restrict such prospective bidders and
purchasers to persons who will represent and agree that they are purchasing for
their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any Governmental Authority, and Pledgor further
agrees that such compliance shall not result in such sale being considered or
deemed not to have been made in a commercially reasonable manner, nor shall the
Collateral Agent be liable nor accountable to Pledgor for any discount allowed
by reason of the fact that such Collateral is sold in compliance with any such
limitation or restriction.
SECTION 6.4. Application of Proceeds. All cash proceeds received by the
-----------------------
Collateral Agent in respect of any sale of, collection from or other realization
upon, all or any part of the Collateral may, in the discretion of the Collateral
Agent, be held by the Collateral Agent as additional collateral security for, or
then or at any time thereafter be applied (after payment of any amounts payable
to the Collateral Agent pursuant to Section 7.07 of the Indenture and, Section
-------
6.5 below) in whole or in part by the Collateral Agent against, all or any part
- ---
of the Obligations in such order as the Collateral Agent shall elect. Any
surplus of such cash or other proceeds held by the Collateral Agent and
remaining after the Satisfaction Date, shall be paid over to Pledgor or to
whomsoever may be lawfully entitled to receive such surplus. The Pledgor shall
remain liable for any deficiency.
SECTION 6.5. Indemnity and Expenses. Pledgor hereby indemnifies and holds
----------------------
harmless the Collateral Agent from and against any and all claims, losses and
liabilities arising out of or resulting from this Pledge Agreement (including
enforcement of this Pledge Agreement), except claims, losses or liabilities
resulting from the Collateral Agent's gross negligence or willful misconduct,
and Pledgor will pay to the Collateral Agent the amount of any and all
reasonable expenses, including the reasonable fees and disbursements of its
counsel and of any experts and agents, which the Collateral Agent may incur, in
each case, in connection with:
(a) the administration of this Pledge Agreement,
(b) the custody, preservation, use or operation of, or the sale of,
collection from or other realization upon, any of the Collateral,
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(c) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder, or
(d) the failure by Pledgor to perform or observe any of the
provisions hereof.
ARTICLE VII. LOUISIANA PROVISIONS.
SECTION 7.1. General. The provisions of this Article 7 shall apply to the
-------
Collateral and all proceeds thereof at all times during which such Collateral or
the proceeds there-of 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 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.
SECTION 7.2. Financing Statements. Pledgor will complete and sign one or
--------------------
more appropriate Louisiana UCC-1 financing statements with regard to the
Collateral and the proceeds thereof. Pledgor authorizes Collateral Agent, at
Pledgor'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.
SECTION 7.3. Event of Default; Remedies. Upon the occurrence of any Event
--------------------------
of Default hereunder, Collateral Agent 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 Pledge Agreement, the Indenture or any
related documents, under Chapter 9 of the Louisiana Commercial Laws (La. R.S.
(S)(S) 10:9-101, et seq.), under the Uniform Commercial Code of any state other
-- ---
than Louisiana, or at law or equity generally:
(a) Collateral Agent may cause the Louisiana Collateral, or any part
or parts there-of, 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 Pledgor or placing Pledgor in default.
(b) For purposes of foreclosure under Louisiana executory process
procedures, Pledgor confesses judgment and acknowledges to be indebted unto
and in favor of Collateral Agent and the Holder 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, Pledgor additionally waives: (a) 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 three (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 three (3) days' delay
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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.
(c) Should any of the Louisiana Collateral be seized as an incident
to an action for the recognition or enforcement of the Obligations or this
Pledge Agreement, the Indenture or any related document, by executory
process, sequestration, attachment, writ of fieri facias or otherwise,
-------------
Pledgor agrees that the court issuing any such order shall, if requested by
Collateral Agent, appoint Collateral Agent or any person or entity named by
Collateral Agent at the time such seizure is requested, or at any time
thereafter, as keeper of the Louisiana Collateral as provided under La.
R.S. (S)(S) 9:5136, et seq., Pledgor 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 Pledge Agreement.
(d) Should it become necessary for Collateral Agent 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. (S) 9:3509.1, La. R.S. (S)
9:3504(D)(6) and La. R.S. (S) 10:9-508, as applicable.
SECTION 7.4. GOVERNING LAW. ANYTHING TO THE CONTRARY CONTAINED IN THIS
-------------
PLEDGE AGREEMENT NOTWITHSTANDING, THE SECURITY INTERESTS IN THE LOUISIANA
COLLATERAL GRANTED IN THIS PLEDGE AGREEMENT, AND COLLATERAL AGENT'S OR ANY
HOLDER'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.
ARTICLE VIII. MISCELLANEOUS PROVISIONS
SECTION 8.1. Security Agreement. This Pledge Agreement is a Security
------------------
Agreement executed pursuant to the Indenture and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in accordance
with the terms and provisions thereof.
SECTION 8.2. Amendments, etc. No amendment to or waiver of any provision
---------------
of this Pledge Agreement nor consent to any departure by Pledgor herefrom shall
in any event be effective unless the same shall be in writing and signed by the
Collateral Agent (on behalf of the Holders of the Notes) and Pledgor, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it is given.
SECTION 8.3. Protection of Collateral. The Collateral Agent may from time
------------------------
to time, at its option, and at the expense of the Pledgor, perform any act which
Pledgor agrees hereunder to perform and which Pledgor shall fall to perform
after being requested in writing so to perform (it being understood that no such
request need be given after the occurrence and during the continuance of an
Event of Default) and the Collateral Agent may from time to time take any
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other action which the Collateral Agent reasonably deems necessary for the
maintenance, preservation or protection of any of the Collateral or of its
security interest therein.
SECTION 8.4. Addresses for Notices. All notices and other communications
---------------------
provided for hereunder shall be in writing and addressed, delivered or
transmitted, if to Pledgor, at the address or facsimile number of US Unwired,
Inc. provided for in the Indenture, and, if to the Collateral Agent, at State
Street Bank and Trust Company, Goodwin Square, 225 Asylum Street, Hartford,
Connecticut 06103, Telecopier No.: (860) 244-1889, Attn: Laurel Melody-
Casasanta, or as to any such party at such other address or facsimile number as
shall be designated by such party in a written notice to each other party
complying as to delivery with the terms of this Section. Any notice, (a)(i) if
mailed and properly addressed with postage prepaid or (ii) if properly addressed
and sent by pre-paid courier service, shall be deemed given when such notice has
been received or (b) if transmitted by facsimile, shall be deemed given when
transmitted (and telephonic confirmation of receipt thereof has been received).
SECTION 8.5. Headings. The various headings of this Pledge Agreement are
--------
inserted for convenience only, and shall not affect the meaning or
interpretation of this Pledge Agreement or any provisions hereof.
SECTION 8.6. Severability. Any provision of this Pledge Agreement which
------------
is prohibited or unenforceable in any jurisdiction shall, as to such provision
and such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability, without invalidating the remaining provisions of this Pledge
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 8.7. GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE DEEMED TO BE A
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CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK,
EXCLUDING THE LAW OF CONFLICTS.
SECTION 8.8. Counterparts. This Pledge Agreement may be executed by the
------------
parties hereto in several counterparts, each of which shall be deemed to be an
original (whether such counterpart is originally executed or an electronic copy
of an original) and all of which shall constitute together but one and the same
agreement. This Pledge Agreement shall become effective and binding upon Pledgor
when a counterpart hereof executed on behalf of Pledgor shall have been received
by the Collateral Agent.
[Signatures commence on the following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
LOUISIANA UNWIRED, LLC
By /s/ Robert Piper
-------------------------------------
Title: Manager
STATE STREET BANK AND TRUST
COMPANY as Collateral Agent
By /s/ illegible signature
_____________________________________
Title: Assistant Vice President
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