AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this
"Agreement"), made as of the 23rd day of December, 1994 by
Vanguard Cellular Systems, Inc., a North Carolina corporation
(the "Borrower") in favor of Toronto Dominion (Texas), Inc., as
collateral agent for itself and on behalf of the Agents and the
Lenders described below (the "Collateral Agent"),
W I T N E S S E T H
WHEREAS, prior to the date hereof, the Borrower, certain of
the Lenders (as defined below) and certain other lenders
(collectively, the "Original Lenders") and certain of the Agents,
as defined below (collectively, the "Original Agents"), entered
into a Loan Agreement dated as of April 21, 1993, as amended by
First Amendment thereto dated as of January 31, 1994, and Second
Amendment thereto dated as of June 30, 1994 (as amended, the
"Original Loan Agreement"), pursuant to which the Original
Lenders agreed to lend to the Borrower amounts not exceeding
$390,000,000 in the aggregate;
WHEREAS, in order to secure the the Borrower's obligations
to the Original Lenders under the Original Loan Agreement, the
Borrower entered into a Security Agreement dated as of April 21,
1993 (the "Original Security Agreement"), in favor of the
Collateral Agent for the benefit of the Original Lenders;
WHEREAS, the Borrower, the Collateral Agent, CIBC, Inc.,
LTCB Trust Company, NationsBank of North Carolina, N.A., The Bank
of Nova Scotia and The First National Bank of Boston, as co-
agents (collectively, the "Co-Agents"), The Bank of New York, as
administrative agent (the "Administrative Agent"), The Toronto-
Dominion Bank, as documentation/review agent (the "Documentation
Agent"), The Bank of New York and The Toronto-Dominion Bank, as
managing agents (the "Managing Agents" and, collectively with the
Co-Agents, the Administrative Agent, the Documentation Agent and
the Collateral Agent, the "Agents"), and the Lenders signatory
thereto (together with any other financial institution which
subsequently becomes a `Lender' under the Loan Agreement, as such
term is defined therein, the "Lenders") have agreed to amend and
restate in its entirety the Original Loan Agreement pursuant to
the terms and conditions of the Amended and Restated Loan
Agreement dated as of December 23, 1994 (as amended, modified or
supplemented from time to time, the "Loan Agreement");
WHEREAS, pursuant to the Loan Agreement the Lenders have
agreed as of the Agreement Date to lend to the Borrower amounts
not exceeding $675,000,000 in the aggregate (the "Loans");
WHEREAS, the Borrower desires to amend, restate,
restructure, renew, extend, consolidate and modify the Original
Security Agreement as set forth herein;
WHEREAS, this Agreement is intended to, and does hereby,
amend, restate, restructure, renew, extend, consolidate,
supplement and modify the Original Security Agreement and the
provisions of the Original Security Agreement are hereby
superseded and replaced by the provisions hereof; and
WHEREAS, the Borrower acknowledges and agrees that the
parties hereto intend that the Original Security Agreement and
the collateral furnished thereunder and hereunder shall secure,
without interruption or impairment of any kind, all existing
indebtedness under the Original Loan Agreement as so amended,
restated, restructured, renewed, extended, consolidated,
supplemented and modified under the Loan Agreement, the Notes and
the other Loan Documents, together with all other Obligations
hereunder and the Borrower ratifies, confirms and agrees to
continue all Liens evidenced by the Original Security Agreement;
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Borrower hereby
unconditionally grants and assigns to the Collateral Agent a
continuing security interest in and security title to
(hereinafter referred to as the "Security Interest"), except as
expressly stated herein, all of its property and assets and all
additions thereto and replacements thereof, and all other
property whether now owned or hereafter created, acquired or
reacquired by the Borrower, including, without limitation:
Inventory
All of the Borrower's inventory and supplies of whatsoever
nature and kind and wheresoever situated, including, without
limitation, raw materials, components, work in process, finished
goods, goods in transit and packing and shipping materials,
accretions and accessions thereto, trust receipts and similar
documents covering the same products (the "Inventory");
Accounts
All right to payment for goods sold or leased or for
services rendered, expressly including, without limitation, the
provision of cellular telephone services and cellular telephone
sales and leasing, whether or not earned by performance,
including, without limiting the generality of the foregoing, all
agreements with and sums due from customers and other Persons,
and all books and records recording, evidencing or relating to
such rights or any part thereof (the "Accounts");
Equipment
All machinery, equipment and supplies (installed and
uninstalled) not included in Inventory above, including motor
vehicles and accretions and accessions thereto; and expressly
including, without limitation of the foregoing, towers, antennas
and equipment located at mobile telephone switching office
facilities; any distribution systems and all components thereof,
including but not limited to hardware, cables, fiber optic
cables, switches, CODECs, computer equipment, amplifiers and
associated devices; and any other equipment used in connection
with the Borrower's business or otherwise owned by the Borrower
(the "Equipment");
Contracts and Leases
All (a) construction contracts, subscriber contracts,
customer service agreements, management agreements, rights of
way, easements, pole attachment agreements, transmission capacity
agreements, public utility contracts and other agreements to
which the Borrower is a party, whether now existing or hereafter
arising, including without limitation those listed on Exhibit A
hereto (the "Contracts"); (b) lease agreements for personal
property to which the Borrower is a party, whether now existing
or hereafter arising including without limitation those listed on
Exhibit B hereto (the "Leases"); and (c) other contracts and
contractual rights, remedies or provisions now existing or
hereafter arising in favor of the Borrower (the "Other
Contracts");
General Intangibles
All general intangibles including personal property not
included above, such as, without limitation, all goodwill,
trademarks, trademark applications, trade names, trade secrets,
industrial designs, other industrial or intellectual property or
rights therein, whether under license or otherwise, claims for
tax refunds and tax refund amounts (the "Intangibles");
Licenses
To the extent permitted by Applicable Law and subject to
Sections 22 and 24 hereof, all franchises, Licenses, permits and
operating rights authorizing or relating to the Borrower's rights
to operate and maintain a cellular telecommunications or similar
business including, without limitation, the Licenses, all as more
particularly described on Exhibit C attached hereto (the
"Licenses");
Furniture and Fixtures
All furniture and fixtures in which the Borrower has an
interest (the "Furniture and Fixtures");
Miscellaneous Items
All goods, chattel paper, documents, instruments, supplies,
choses in action, claims, money, deposits, certificates of
deposit, stock or share certificates, and licenses and other
rights in intellectual property not included above, but expressly
excluding any capital stock or share certificates of Geotek
Communications, Inc., to the extent that such capital stock or
share certificates constitute "margin stock" within the meaning
of Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System (the "Miscellaneous Items"); and
Proceeds
All products and proceeds of any of the above, and all
proceeds of any loss of, damage to or destruction of the above,
whether insured or not insured, and all other proceeds of any
sale, lease or other disposition of any property or interest
therein referred to above, or of any franchise, license, permit
or operating right issued by the FCC or any other governmental or
regulatory body or agency, whether or not constituting a License,
including, without limitation, the proceeds of the sale or other
disposition of any License, together with all proceeds of any
policies of insurance covering any or all of the above, the
proceeds of any award in condemnation with respect to any of the
property of the Borrower, any rebates or refunds, whether for
taxes or otherwise, and together with all proceeds of any such
proceeds (the "Proceeds").
The Inventory, Accounts, Equipment, Contracts, Other
Contracts, Leases, Intangibles, Licenses, Furniture and Fixtures,
Miscellaneous Items and Proceeds, as described above, are
hereinafter collectively referred to as the "Collateral."
This Agreement and the Security Interest secure the payment
and performance of all obligations of the Borrower to the Lenders
and the Agents, or any of them, under the Loan Agreement, the
Notes and every other Loan Document to which the Borrower is
party and any extensions, renewals or amendments thereto, and all
other Obligations (as defined in the Loan Agreement) however
created, acquired, arising or evidenced, whether direct or
indirect, absolute or contingent, now or hereafter existing, or
due or to become due (all of the foregoing obligations being
hereinafter collectively referred to as the "Obligations").
TO HAVE AND TO HOLD UNTO the Collateral Agent, for the
benefit of itself and on behalf of the Agents and the Lenders,
their successors and assigns forever, upon and subject to the
following terms and conditions:
1. For purposes of this Agreement, capitalized terms used
herein, and not otherwise defined herein, shall have the meanings
ascribed thereto in the Loan Agreement.
2. The Borrower hereby authorizes the Collateral Agent to
file such financing statements and such other documents as the
Collateral Agent may deem necessary or desirable to protect or
perfect the interest of the Lenders and the Agents in the
Collateral, and the Borrower further irrevocably appoints the
Collateral Agent as the Borrower's attorney-in-fact, with a power
of attorney to execute on behalf of the Borrower such UCC
financing statement forms as the Collateral Agent may from time
to time deem reasonably necessary or desirable to protect or
perfect such interest in the Collateral. Such power of attorney
is coupled with an interest and shall be irrevocable. In
addition, the Borrower agrees to make, execute, deliver or cause
to be done, executed and delivered all such further acts,
documents and things as the Collateral Agent may reasonably
require for the purpose of perfecting or protecting the rights of
the Lenders and the Agents hereunder or otherwise giving effect
to this Agreement, all promptly upon request therefor.
3. The Borrower represents and warrants to the Lenders and
the Agents that:
(a) the execution of this Agreement and the
fulfillment of the terms hereof will not result in a breach
of any of the terms or provisions of, or constitute a
default under, the Borrower's Articles of Incorporation or
By-Laws as presently in effect, or any order, rule or
regulation applicable to the Borrower of any court or of any
Federal or state regulatory body or administrative agency or
other governmental body having jurisdiction over the
Borrower, or result in the termination or cancellation or
breach of any indenture, mortgage, deed of trust, deed to
secure debt, lease or other agreement or instrument to which
the Borrower is party or by which it is bound or affected;
(b) the Borrower has taken all necessary corporate
action to authorize the execution and delivery of this
Agreement, and this Agreement, when executed and delivered,
will be the valid and binding obligation of the Borrower
enforceable in accordance with its terms, subject only to
the following qualifications:
(i) certain equitable remedies are discretionary
and, in particular, may not be available where damages
are considered an adequate remedy at law,
(ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction
and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event
of the Borrower), and
(iii) enforcement as to the Licenses is limited by
FCC rules and regulations restricting the transfer of
such Licenses.
(c) Exhibit A attached hereto and incorporated herein
by this reference sets forth a complete and accurate list of
the Contracts in effect on the date hereof which provide for
aggregate payments over the life of each such Contract in
excess of $250,000 or which are otherwise material to the
Borrower, and the Borrower will furnish copies thereof to
the Lenders and the Agents upon the request of the
Collateral Agent; and
(d) Exhibit B attached hereto and incorporated herein
by this reference sets forth a complete and accurate list of
all Leases providing for aggregate payments over the life of
any single Lease in excess of $100,000, to which the
Borrower is party in effect on the date hereof, and the
Borrower will furnish copies thereof to the Lenders and the
Agents upon the request of the Collateral Agent.
4. The Borrower further represents and warrants that the
Security Interest in the Collateral granted hereunder shall
constitute at all times a valid and perfected first priority
security interest (subject only to Permitted Liens), vested in
the Collateral Agent in and upon the Collateral, free of any
Liens except for Permitted Liens. The Borrower shall take or
cause to be taken such acts and actions as shall be necessary or
appropriate to assure that the Security Interest in the
Collateral shall not become subordinate or junior to the security
interests, liens or claims of any other Person, and that the
Collateral shall not otherwise be or become subject to any Lien,
except for Permitted Liens.
5. The Borrower further represents and warrants that it
now keeps all of its records concerning its Accounts, Contracts,
Leases, Other Contracts and Intangibles at its chief executive
office, which is the address set forth with respect to the
Borrower in Section 11.1 of the Loan Agreement. The Borrower
covenants and agrees that it shall not keep any of such records
at any other address, unless written notice thereof is given to
the Collateral Agent at least thirty (30) days prior to the
creation of any new address for the keeping of such records. The
Borrower further agrees that it shall promptly advise the
Collateral Agent, in writing making reference to this Section 5
of this Agreement, of the opening of any material new place of
business the closing of any existing material place of business,
or any change in the location of the place where it keeps the
Collateral.
6. The parties intend that, to the extent permitted by
Applicable Law, the Collateral shall remain personal property
irrespective of the manner of its attachment or affixation to
realty.
7. Any and all injury to, or loss or destruction of, the
Collateral shall be at the Borrower's risk, and shall not release
the Borrower from its obligations hereunder. The Borrower agrees
not to sell, transfer, assign, dispose of, mortgage, grant a
security interest in or encumber any of the Collateral except as
permitted under the Loan Agreement. The Borrower agrees to
maintain in force such insurance with respect to the Collateral
as is required under the Loan Agreement. The Borrower agrees to
pay all required taxes, liens and assessments upon the
Collateral, its use or operation, as required under the Loan
Agreement. The Borrower further agrees that the Collateral Agent
may, but shall in no event be obligated to, insure any of the
Collateral in such form and amount as the Collateral Agent may
deem necessary or desirable if the Borrower fails to obtain
insurance as required by the Loan Agreement, and that the
Collateral Agent may pay or discharge any taxes or Liens (which
are not Permitted Liens) on any of the Collateral, and the
Borrower agrees to pay any such sum so expended by the Collateral
Agent, with interest at the Default Rate, and such interest shall
be deemed to be a part of the Obligations secured by the
Collateral under the terms of this Agreement.
8. The Borrower shall (i) fulfill, perform and observe
each and every material condition and covenant contained in any
of the Contracts, the Other Contracts or the Leases, (ii) give
prompt notice to the Collateral Agent of any claim of default
under any Contract, Other Contract or Lease given to the Borrower
or by the Borrower, (iii) at the sole cost and expense of the
Borrower, enforce the performance and observance of each and
every material covenant and condition of the Contracts, the Other
Contracts and the Leases and (iv) appear in and defend any action
growing out of or in any manner connected with any Contract,
Other Contract or Lease. The rights and interests granted to the
Collateral Agent hereunder include all of the Borrower's rights
and title (i) to modify the Contracts, the Other Contracts and
the Leases, (ii) to terminate the Contracts, the Other Contracts
and the Leases and (iii) to waive or release the performance or
observance of any obligation or condition of the Contracts, the
Other Contracts and the Leases; provided, however, that the
Borrower shall have the right to exercise these rights in a
fashion consistent with this Agreement and the Loan Agreement
prior to any Default (as defined below), and that these rights
shall not be exercised by the Collateral Agent prior to a Default
(as defined below).
9. Upon the occurrence and during the continuation of an
Event of Default (hereinafter, a "Default"), the Lenders and the
Agents shall have such rights and remedies as are set forth in
the Loan Agreement and herein; all the rights, powers and
privileges of a secured party under the Uniform Commercial Code
of the State of New York and any other applicable jurisdiction;
and all other rights and remedies available to the Lenders and
the Agents, or any of them, at law or in equity, including,
without limitation, the right to sell or dispose of the
Collateral in accordance with Applicable Law. The Borrower
covenants and agrees that any notification of intended
disposition of any Collateral, if such notice is required by law,
shall be deemed reasonably and properly given if given in the
manner provided for in paragraph 19 hereof at least ten (10) days
prior to such disposition. The Collateral Agent shall have the
right to the appointment of a receiver for the properties and
assets of the Borrower, and the Borrower hereby consents to such
rights and to such appointment and hereby waives any objection
the Borrower may have thereto and hereby waives the right to have
a bond or other security posted by the Collateral Agent or any
other Person in connection therewith. The Borrower agrees, after
the occurrence of a Default, to take any actions that the
Collateral Agent may reasonably request in order to enable the
Collateral Agent to obtain and enjoy the full rights and benefits
granted to the Collateral Agent under this Agreement and the
other Loan Documents. Without limiting the generality of the
foregoing, the Borrower shall, at the Borrower's cost and
expense, use its best efforts to assist in obtaining all
approvals of the FCC or the State of New York Public Service
Commission, as applicable, which are then required by law for or
in connection with any action or transaction contemplated by this
Agreement or Article 9 of the Uniform Commercial Code as in
effect in any applicable jurisdiction, and, at the Collateral
Agent's request, prepare, sign and file with the FCC or the State
of New York Public Service Commission, as applicable, the
assignor's or transferor's portion of any application or
applications for consent to the assignment of the Licenses or
transfer of control thereof necessary or appropriate under the
FCC's or the State of New York Public Service Commission's, as
applicable, rules for approval of any sale or transfer of the
Collateral Agent's remedies under this Agreement. The Collateral
Agent shall have the right, in connection with the issuance of
any order for relief in a bankruptcy proceeding to petition the
bankruptcy court for the transfer of control or assignment of the
Licenses to a receiver, trustee, transferee, or similar official
or to any purchaser of the Collateral pursuant to any public or
private sale, foreclosure or other exercise of remedies available
to the Collateral Agent, all as permitted by Applicable Law. All
amounts realized or collected through the exercise of remedies
hereunder shall be applied as provided in the Loan Agreement.
10. Upon the occurrence of a Default, the Collateral Agent
or its designee, may proceed to perform any and all of the
obligations of the Borrower contained in any of the Contracts,
Other Contracts or Leases and exercise any and all rights of the
Borrower therein contained as fully as the Borrower itself could.
The Borrower hereby appoints the Collateral Agent its
attorney-in-fact, with power of substitution, to take such
action, execute such documents, and perform such work, as the
Collateral Agent may deem appropriate in exercise of the rights
and remedies granted the Lenders and the Agents, or any of them,
herein or in any other Loan Document. The powers herein granted
shall include, but not be limited to, powers to: (i) sue on the
Contracts, the Other Contracts or the Leases; (ii) seek all
governmental approvals (other than FCC approvals) required for
the operation of the business of the Borrower; (iii) modify or
terminate the Contracts, the Other Contracts and the Leases; and
(iv) waive or release the performance or observance of any
obligation under any of the Contracts, Other Contracts or Leases.
The power of attorney granted herein is coupled with an interest
and shall be irrevocable.
11. Upon the occurrence of a Default, should the Borrower
fail to perform or observe any covenant or comply with any
condition contained in any of the Contracts, the Other Contracts
or the Leases, then the Collateral Agent may, but without
obligation to do so and without releasing the Borrower from its
obligation to do so, perform such covenant or condition and, to
the extent that the Collateral Agent shall incur any costs or pay
any expenses in connection therewith, including any reasonable
costs or expenses of litigation associated therewith, such costs,
expenses or payments shall be included in the Obligations secured
hereby and shall bear interest from the payment of such costs or
expenses by the Collateral Agent at the Default Rate. None of
the Lenders or the Agents shall be obliged to perform or
discharge any obligation of the Borrower under any of the
Contracts, the Other Contracts or the Leases, and, except as may
result from the gross negligence or willful misconduct of the
Person seeking indemnification as determined by a final order of
a court of competent jurisdiction, the Borrower agrees to
indemnify and hold harmless each Lender and each Agent against
any and all liability, loss or damage which any such Person may
incur under any of the Contracts, the Other Contracts or the
Leases or under or by reason of this Agreement, and any and all
claims and demands whatsoever which may be asserted against the
Borrower by reason of an act of any Lender or any Agent under any
of the terms of this Agreement or under the Contracts, the Other
Contracts or the Leases.
12. The Borrower hereby further appoints the Collateral
Agent as its attorney-in-fact, with power of substitution, with
authority to collect all Accounts, to endorse the name of the
Borrower on any note, acceptance, check, draft, money order or
other evidence of debt or of payment which constitutes a portion
of the Collateral and which may come into the possession of the
Lenders and the Agents, or any of them, and generally to do such
other things and acts in the name of the Borrower with respect to
the Collateral as are necessary or appropriate to protect or
enforce the rights hereunder of the Lenders and the Agents. The
Borrower further authorizes the Collateral Agent, effective upon
the occurrence of a Default, to compromise and settle or to sell,
assign or transfer or to ask, collect, receive or issue any and
all claims possessed by the Borrower which constitute a portion
of the Collateral, all in the name of the Borrower. After
deducting all reasonable expenses and charges (including the
Collateral Agent's attorneys' fees) of retaking, keeping, storing
and selling the Collateral, the Collateral Agent may apply the
proceeds in payment of any of the Obligations in the order of
application set forth in the Loan Agreement. The power of
attorney granted herein is coupled with an interest and shall be
irrevocable. The Borrower agrees that if steps are taken by the
Collateral Agent to enforce its rights hereunder, or to realize
upon any of the Collateral, the Borrower shall pay to the
Collateral Agent the amount of the Collateral Agent's costs,
including attorneys' fees, and the Borrower's obligation to pay
such amounts shall be deemed to be a part of the Obligations
secured hereunder.
13. The Borrower shall indemnify and hold harmless each
Lender and each Agent and any other Person acting hereunder for
all losses, costs, damages, fees and expenses whatsoever
associated with the exercise of the powers of attorney granted
herein and shall release each Lender and each Agent and any other
Person acting hereunder from all liability whatsoever for the
exercise of the foregoing powers of attorney and all actions
taken pursuant thereto, except, in either event, in the case of
gross negligence or willful misconduct by the Person seeking
indemnification as determined by a final order of a court of
competent jurisdiction.
14. The Borrower agrees that the rights of the Lenders and
the Agents, or any of them, under this Agreement, the Loan
Agreement, any other Loan Document, or any other contract or
agreement now or hereafter in existence among the Lenders and the
Agents and the Borrower or any Subsidiary of the Borrower and any
other obligors thereunder, or any of them, shall be cumulative,
and that each Lender and each Agent may from time to time
exercise such rights and such remedies as such Person or Persons
may have thereunder and under the laws of the United States or
any state, as applicable, in the manner and at the time that such
Person or Persons in its or their sole discretion desire, subject
to the terms of such agreements. The Borrower further expressly
agrees that the Lenders and the Agents shall in no event be under
any obligation to resort to any Collateral prior to exercising
any other rights that the Lenders and the Agents, or any of them,
may have against the Borrower or any Subsidiary of the Borrower
or any other obligor or any of their respective properties, nor
shall the Lenders and the Agents be obliged to resort to any
other collateral or security for the Obligations, other than the
Collateral, prior to any exercise of rights against the Borrower
and its property hereunder.
15. The Borrower hereby acknowledges that the Obligations
arose out of a commercial transaction, and agrees that if a
Default shall occur, the Collateral Agent shall have the right to
immediate possession without notice or a hearing, and hereby
knowingly and intelligently waives any and all rights it may have
to any notice and posting of a bond by the Lenders and the
Agents, or any of them, prior to seizure by the Collateral Agent
or any of its transferees, assigns or successors in interest, of
the Collateral or any portion thereof.
16. No transfer or renewal, extension, assignment or
termination of this Agreement or of the Loan Agreement or of any
other Loan Document, or of any instrument or document executed
and delivered by the Borrower or any other obligor to the Lenders
and the Agents, or any of them, nor additional advances made by
the Lenders and the Agents, or any of them, to the Borrower, nor
the taking of further security, nor the retaking or re-delivery
of the Collateral to the Borrower by the Lenders and the Agents,
or any of them, nor any other act of the Lenders and the Agents,
or any of them, shall release the Borrower from any Obligation,
except a release or discharge executed in writing by the
Collateral Agent in accordance with the Loan Agreement with
respect to such Obligation or upon full payment, performance and
satisfaction of all Obligations and termination of the
Commitments. None of the Lenders or the Agents shall by any act,
delay, omission or otherwise, be deemed to have waived any of its
or their rights or remedies hereunder, unless such waiver is in
writing and signed by the Collateral Agent in accordance with the
Loan Agreement and then only to the extent therein set forth. A
waiver by the Lenders and the Agents, or any of them, of any
right or remedy on any occasion shall not be construed as a bar
to the exercise of any such right or remedy which any such Person
would otherwise have had on any other occasion.
17. Neither this Agreement nor any of the Borrower's rights
or obligations hereunder may be assigned by the Borrower to any
other Person. The Borrower agrees that this Agreement or the
rights hereunder may in the discretion of the Lenders and the
Agents, as applicable, be assigned in whole or in part in
connection with any assignment of the Loan Agreement or the
Indebtedness evidenced thereby, as permitted thereunder. In the
event this Agreement or the rights hereunder are so assigned by
any of the Lenders, the Co-Agents, the Agents, the Managing
Agents, the Administrative Agent, the Documentation Agent and the
Collateral Agent, the terms "Lenders", "Co-Agents", "Agents",
"Managing Agents", "Administrative Agent", "Documentation Agent"
or "Collateral Agent" wherever used herein shall be deemed, as
applicable, to refer to and include any such assignee.
18. The Collateral Agent is hereby authorized to date this
Agreement as of the date signed by the Borrower. This Agreement
shall apply to and bind the respective successors and assigns of
the Borrower and inure to the benefit of the successors and
permitted assigns of the Lenders and the Agents.
19. All notices and other communications required or
permitted hereunder shall be in writing and shall be given in the
manner prescribed in Section 11.1 of the Loan Agreement.
20. THE PROVISIONS OF THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED, AND ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE
STATE OF NEW YORK. THIS AGREEMENT, TOGETHER WITH ALL DOCUMENTS
REFERRED TO HEREIN, CONSTITUTES THE ENTIRE AGREEMENT AMONG THE
BORROWER, THE LENDERS AND THE AGENTS WITH RESPECT TO THE MATTERS
ADDRESSED HEREIN, AND MAY NOT BE MODIFIED EXCEPT BY A WRITING
EXECUTED BY THE COLLATERAL AGENT AND THE BORROWER AND DELIVERED
BY THE COLLATERAL AGENT TO THE BORROWER IN ACCORDANCE WITH THE
LOAN AGREEMENT.
21. If any paragraph or part thereof of this Agreement
shall for any reason be held or adjudged to be invalid, illegal
or unenforceable by any court of competent jurisdiction, such
paragraph or part thereof so adjudicated invalid, illegal or
unenforceable shall be deemed separate, distinct and independent,
and the remainder of this Agreement shall remain in full force
and effect and shall not be affected by such holding or
adjudication.
22. Notwithstanding anything herein which may be construed
to the contrary, no action shall be taken by the Collateral Agent
with respect to the Licenses issued by the FCC or any
governmental or other authority unless and until all requirements
of Applicable Law requiring notice to, or consent or approval of
such action by, the FCC or any governmental or other authority,
have been satisfied, including, without limitation, any required
approval of the FCC under the Federal Communications Act of 1934
as amended, and any applicable rules and regulations thereunder,
including, without limitation, the provision for ten (10) days'
notice to the FCC and to the Borrower of any such action to the
extent required by 47 C.F.R. (Section Mark) 22.917(e). The Borrower covenants
that upon request of the Collateral Agent it will cause to be
filed such applications and take such other action as may be
requested by the Collateral Agent to obtain consent or approval
of the FCC or any governmental or other authority which has
granted any License to the Borrower to any action contemplated by
this Agreement and to give effect to the Security Interest of the
Collateral Agent, including, without limitation, the execution of
an application for consent by the FCC to an assignment or
transfer involving a change in ownership or control pursuant to
the provisions of the Federal Communications Act of 1934 as
amended.
23. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original,
but all such separate counterparts shall together constitute but
one and the same instrument.
24. The parties acknowledge their intent that, upon the
occurrence of a Default, the Collateral Agent shall receive, to
the fullest extent permitted by Applicable Law and governmental
policy (including, without limitation, the rules, regulations and
policies of the FCC), all rights necessary or desirable to
obtain, use or sell the Collateral, and to exercise all remedies
available to it under this Agreement, the Uniform Commercial Code
as in effect in any applicable jurisdiction, or other Applicable
Law. The parties further acknowledge and agree that, in the
event of changes in law or governmental policy occurring
subsequent to the date hereof, that affect in any manner the
Collateral Agent's rights of access to, or use or sale of, the
Collateral, or the procedures necessary to enable the Collateral
Agent to obtain such rights of access, use or sale, the
Collateral Agent and the Borrower shall amend this Agreement in
such manner as the Collateral Agent shall reasonably request, in
order to provide the Collateral Agent such rights to the greatest
extent possible consistent with Applicable Law and governmental
policy.
25. Each reference herein to any right granted to, benefit
conferred upon or power exercisable by the "Collateral Agent"
shall be a reference to the Collateral Agent for the benefit of
all the Lenders and the Agents, and each action taken or right
exercised hereunder shall be deemed to have been so taken or
exercised by the Collateral Agent for the benefit of and on
behalf of all the Lenders and the Agents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands and affixed their seals, by and through their duly
authorized representatives, as of the day and year first written
above.
BORROWER: VANGUARD CELLULAR SYSTEMS, INC.,
a North Carolina corporation
By:
Stephen L. Holcombe
Senior Vice President
[CORPORATE SEAL]
Attest:
Richard C. Rowlenson
Assistant Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[SIGNATURES FOR AMENDED AND RESTATED
SECURITY AGREEMENT CONTINUED]
COLLATERAL AGENT: TORONTO DOMINION (TEXAS), INC.
By:
Title:
Exhibit A - Contracts
Exhibit B - Leases
Exhibit C - Licenses
EXHIBIT A TO SECURITY AGREEMENT
CONTRACTS
EXHIBIT B TO SECURITY AGREEMENT
LEASES
EXHIBIT C TO SECURITY AGREEMENT
LICENSES