THIS DOCUMENT IS A COPY OF THE EXHIBIT 4(d)(2) TO FORM 10-Q
FILED ON MAY 15, 1996 PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
VCOC SECURITY AGREEMENT
THIS VCOC SECURITY AGREEMENT (this "Agreement"), made as of the 10th
day of April, 1996 by Vanguard Cellular Operating Corp., a Delaware corporation
("VCOC"), 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
IN CONSIDERATION of the execution and delivery of the Second Amended
and Restated Loan Agreement dated as of April 10, 1996 (as amended, modified or
supplemented from time to time, the "Loan Agreement") by and among VCOC, 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"), CIBC, Inc., LTCB Trust Company, NationsBank,
N.A., The Bank of Nova Scotia and The First National Bank of Boston, as
co-agents (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 the Collateral Agent (the
Collateral Agent, the Co-Agents, the Administrative Agent, the Documentation
Agent and the Managing Agents are collectively referred to herein as the
"Agents"), pursuant to which and subject to the terms and conditions whereof the
Lenders have agreed as of the Agreement Date to lend to VCOC amounts not to
exceed $675,000,000 (the "Loans"), and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, VCOC 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 VCOC,
including, without limitation:
Inventory
All of VCOC'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");
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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 VCOC's business or otherwise owned by VCOC (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 VCOC 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 VCOC 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 VCOC (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");
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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 VCOC'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 VCOC 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
VCOC, any rebates or refunds, whether for taxes or otherwise, and 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 VCOC to the Lenders and the
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Agents, or any of them, under the Loan Agreement, the Notes and every other Loan
Document to which VCOC 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. VCOC 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 VCOC further irrevocably appoints the Collateral Agent as
VCOC's attorney-in-fact, with a power of attorney to execute on behalf of VCOC
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, VCOC 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. VCOC 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, VCOC's Articles of
Incorporation or By-Laws as presently in effect, or any order, rule or
regulation applicable to VCOC of any court or of any Federal or state
regulatory body or administrative agency or other governmental body
having jurisdiction over VCOC, or result in the termination or
cancellation or breach of any inden ture, mortgage, deed of trust, deed
to secure debt, lease or other agreement or instrument to which VCOC is
party or by which it is bound or affected;
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(b) VCOC 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
VCOC 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 VCOC), and
(iii) enforcement as to the Licenses is limited by
FCC rules and regulations restricting the transfer of
the 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 VCOC, and VCOC 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 VCOC is party in effect on the date
hereof, and VCOC will furnish copies thereof to the Lenders and the
Agents upon the request of the Collateral Agent.
4. VCOC 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. VCOC 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.
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5. VCOC 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 VCOC in Section 11.1 of the Loan Agreement. VCOC 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. VCOC 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 VCOC's risk, and shall not release VCOC from its obligations
hereunder. VCOC 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. VCOC agrees to maintain in force such
insurance with respect to the Collateral as is required under the Loan
Agreement. VCOC agrees to pay all required taxes, liens and assessments upon the
Collateral, its use or operation, as required under the Loan Agreement. VCOC
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 VCOC 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 VCOC
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. VCOC 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 VCOC or by VCOC,
(iii) at the sole cost and expense of VCOC, 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
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and interests granted to the Collateral Agent hereunder include all of VCOC'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 VCOC 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. VCOC 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 VCOC, and VCOC hereby
consents to such rights and to such appointment and hereby waives any objection
VCOC 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. VCOC 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, VCOC shall, at VCOC'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 or of the
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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 VCOC
contained in any of the Contracts, Other Contracts or Leases and exercise any
and all rights of VCOC therein contained as fully as VCOC itself could. VCOC
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 VCOC; (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 VCOC 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 VCOC 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 VCOC 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, VCOC 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
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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 VCOC 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. VCOC 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 VCOC 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 VCOC with respect to the Collateral as are necessary or appropriate to
protect or enforce the rights hereunder of the Lenders and the Agents. VCOC
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 VCOC which constitute
a portion of the Collateral, all in the name of VCOC. 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. VCOC agrees that if
steps are taken by the Collateral Agent to enforce its rights hereunder, or to
realize upon any of the Collateral, VCOC shall pay to the Collateral Agent the
amount of the Collateral Agent's costs, including attorneys' fees, and VCOC's
obligation to pay such amounts shall be deemed to be a part of the Obligations
secured hereunder.
13. VCOC 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. VCOC 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
VCOC or any Subsidiary of VCOC and any other obligors thereunder,
or any of them, shall be cumulative, and that each Lender and
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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. VCOC 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 VCOC or any Subsidiary of VCOC 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 VCOC and its property
hereunder.
15. VCOC 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 VCOC 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 VCOC, nor the taking of further
security, nor the retaking or re-delivery of the Collateral to VCOC 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 VCOC 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 VCOC's rights or
obligations hereunder may be assigned by VCOC to any other Person
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without the consent of all the Agents and the Lenders. VCOC 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 VCOC. This Agreement shall apply to and bind the
respective successors and assigns of VCOC 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 VCOC, 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 (WITH THE REQUISITE CONSENT OF THE LENDERS AS PROVIDED IN THE LOAN
AGREEMENT) AND VCOC AND DELIVERED BY THE COLLATERAL AGENT TO VCOC 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,
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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 VCOC of any such action to the
extent required by 47 C.F.R. ss. 22.937(f). VCOC 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 VCOC 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 VCOC 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.
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26. Notwithstanding anything herein which may be construed to the
contrary, any right to indemnification hereunder, including, without limitation,
rights pursuant to Section 12 hereof, shall survive the termination of this
Agreement and the payment and performance of all other Obligations.
[Remainder of Page Intentionally Left Blank]
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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 OPERATING CORP.,
a Delaware corporation
By:(Signature of Haynes G. Griffin
appears here)
Haynes G. Griffin
President
[CORPORATE SEAL] Attest: (Signature of Richard C.
Rowlenson appears here)
Richard C. Rowlenson
Assistant Secretary
COLLATERAL AGENT: TORONTO DOMINION (TEXAS), INC.
By: (Signature of Sophia D. Sgarbi
appears here)
Name:Sophia D. Sgarbi
Title: Vice President
Exhibit A - Contracts
Exhibit B - Leases
Exhibit C - Licenses
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EXHIBIT A TO SECURITY AGREEMENT
CONTRACTS
EXHIBIT B TO SECURITY AGREEMENT
LEASES
EXHIBIT C TO SECURITY AGREEMENT
LICENSES