THIS DOCUMENT IS A COPY OF THE EXHIBIT 4(d)(3) TO FORM 10-Q
FILED ON MAY 15, 1996 PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
SECOND AMENDED AND RESTATED
MASTER SUBSIDIARY SECURITY AGREEMENT
THIS SECOND AMENDED AND RESTATED MASTER SECURITY AGREEMENT (this
"Agreement"), made as of the 10th day of April, 1996 by Altoona CellTelCo, a
District of Columbia general partnership; Atlantic Cellular Telephone Corp., a
North Carolina corporation; Binghamton CellTelCo, a District of Columbia general
partnership; Binghamton Cellular Telephone Corp., a North Carolina corporation;
Cellular Directory Corporation, a North Carolina corporation; Harrisburg
Cellular Telephone Company, a Pennsylvania general partnership; North Carolina
Cellular Holding Corp., a North Carolina corporation; Orange County Cellular
Telephone Corp., a North Carolina corporation; Pennsylvania Cellular Telephone
Corp., a North Carolina corporation; Piscataqua Cellular Telephone Corp., a
North Carolina corporation; PLMRS Narrowband Corp., a North Carolina
corporation; Teleflex Information Systems, Inc., a North Carolina corporation;
Vanguard Binghamton, Inc. (f/k/a Crowley Cellular Telecommunications Binghamton,
Inc.), a Delaware corporation; Vanguard Cellular Corp., a North Carolina
corporation; Vanguard Cellular Financial Corp., a North Carolina corporation;
Vanguard Cellular Holding Corp., a Delaware corporation; Vanguard Cellular
Systems of South Carolina, Inc., a North Carolina corporation; Vanguard
Communications, Inc., a Delaware corporation; Vanguard India, Inc., a Delaware
corporation; Warren and Lewis, Ltd., a Virginia corporation; West Virginia
Cellular Telephone Corp., a West Virginia corporation; and Western Florida
Cellular Telephone Corp., a North Carolina corporation (each a "Subsidiary" and,
collectively, the "Subsidiaries) 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, Vanguard Cellular Systems, Inc., a North Carolina corporation
("Vanguard"), the Lenders signatory thereto (together with any other financial
institution which subsequently becomes a 'Lender' under the Loan Agreement
defined below, 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"), Toronto
Dominion (Texas), Inc. as collateral agent (the "Collateral Agent") (the
Co-Agents, the Administrative Agent, the
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Documentation Agent, the Managing Agents and the Collateral Agent are
collectively referred to as the "Agents") are parties to that certain Amended
and Restated Loan Agreement dated as of December 23, 1994, as amended by First
Amendment thereto dated as of December 19, 1995, as assigned to and assumed by
Vanguard Cellular Operating Corp. (the "Borrower") pursuant to that certain
Vanguard Assignment and Assumption Agreement dated as of April 10, 1996
(collectively, the "Prior Loan Agreement"), whereby the Lenders agreed to extend
loans to the Borrower; and
WHEREAS, in order to secure the Borrower's obligations to the Lenders
under the Prior Loan Agreement, the Subsidiaries have heretofore executed and
delivered to the Agents and the Lenders either (a) that certain Amended and
Restated Master Subsidiary Security Agreement dated as of December 23, 1994, (b)
that certain Subsidiary Security Agreement dated as of September 13, 1995 or (c)
that certain Subsidiary Security Agreement dated as of February 10, 1996
(collectively, the "Existing Subsidiary Security Agreements"); and
WHEREAS, the Borrower, the Agents and the Lenders have agreed to amend
and restate in its entirety the Prior Loan Agreement pursuant to the terms and
conditions 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"); and
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") as evidenced by promissory notes from the Borrower
to the Lenders in such aggregate amount (the "Notes"); and
WHEREAS, the Subsidiaries desire to amend, restate, restructure, renew,
extend, consolidate and modify the Existing Subsidiary Security Agreements as
set forth herein; and
WHEREAS, this Agreement is intended to, and does hereby, amend,
restate, restructure, renew, extend, consolidate, supplement and modify the
Exisiting Subsidiary Security Agreements and the provisions of the Existing
Subsidiary Security Agreements are hereby superseded and replaced in their
entireties by the provisions hereof; and
WHEREAS, the Subsidiaries acknowledge and agree that the parties hereto
intend that the Existing Subsidiary Security Agreements and the collateral
furnished thereunder and hereunder shall secure, without interruption or
impairment of any kind, to the extent provided in the Master Subsidiary Guaranty
(as hereinafter defined) all existing indebtedness under the Prior Loan
Agreement as so amended, restated, restructured, renewed, extended,
consolidated, supplemented and modified under the Loan
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Agreement, the Notes and the other Loan Documents, together with all other
Obligations hereunder and the Subsidiaries, ratify, confirm and agree to
continue all Liens evidenced by the Existing Subsidiary Security Agreements;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each of the Subsidiaries, as a direct or indirect Subsidiary of
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
such Subsidiary, including, without limitation:
Inventory
All of such Subsidiary'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 such Subsidiary's business or otherwise owned by such Subsidiary
(the "Equipment");
Contracts and Leases
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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 such Subsidiary 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 such
Subsidiary 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 such Subsidiary (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 such Subsidiary'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 such Subsidiary 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
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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
such Subsidiary, 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 payment and performance
of all obligations of each Subsidiary to the Lenders and the Agents, or any of
them, under the Second Amended and Restated Master Subsidiary Guaranty dated as
of April 10, 1996 amended, modified or supplemented from time to time, the
"Master Subsidiary Guaranty") given by the Subsidiaries for the benefit of the
Agents and the Lenders and the other Loan Documents entered into by the
Subsidiaries, and any extensions, renewals or amendments thereto, 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. Each Subsidiary 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 each Subsidiary further irrevocably appoints the
Collateral Agent as such Subsidiary's attorney-in-fact, with a power of attorney
to execute on behalf of such Subsidiary such
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UCC financing statement forms as the Collateral Agent may from time to time
reasonably deem 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, each Subsidiary 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. Each Subsidiary 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, such Subsidiary's
Articles of Incorporation, Certificate of Partnership, By-Laws or
Partnership Agreement, as applicable, as presently in effect, or any
order, rule or regulation applicable to such Subsidiary of any court or
of any Federal or state regulatory body or administrative agency or
other governmental body having jurisdiction over such Subsidiary, 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 such Subsidiary is a party or by which it is
bound or affected;
(b) such Subsidiary has taken all necessary corporate or
partnership action, as applicable to authorize the execution and
delivery of this Agreement, and this Agreement, when executed and
delivered, will be the valid and binding obligation of such Subsidiary
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 such Subsidiary), and
(iii) enforcement as to the Licenses is limited by
FCC rules and regulations restricting the transfer of
such Licenses;
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(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 $100,000 or which are otherwise
material to such Subsidiary, and such Subsidiary 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 $250,000, to which such Subsidiary is a party in effect on
the date hereof, and such Subsidiary will furnish copies thereof to the
Lenders and the Agents upon the request of the Collateral Agent.
4. Each Subsidiary 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. Each Subsidiary 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. Each Subsidiary 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 as follows:
2002 Pisgah Church Road
Greensboro, North Carolina 27455-3314
Each Subsidiary 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. Each Subsidiary 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
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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 Subsidiaries' risk, and shall not release any Subsidiary from
its obligations hereunder. Each Subsidiary 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. Each Subsidiary agrees
to maintain in force such insurance with respect to the Collateral as is
required under the Loan Agreement. Each Subsidiary agrees to pay all required
taxes, liens and assessments upon the Collateral, its use or operation, as
required under the Loan Agreement. Each Subsidiary 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 any Subsidiary 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 each Subsidiary
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. Each Subsidiary 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
such Subsidiary or by such Subsidiary, (iii) at the sole cost and expense of
such Subsidiary, 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 Subsidiaries'
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 Subsidiaries 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
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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. Each Subsidiary 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 each Subsidiary, and each Subsidiary hereby consents to
such rights and to such appointment and hereby waives any objection such
Subsidiary 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. Each Subsidiary 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, each Subsidiary shall, at such
Subsidiary's cost and expense, use its best efforts to assist in obtaining all
approvals of the FCC or the 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 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
New York Public Service Commission's, as applicable, rules for approval of any
sale or transfer or 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 any
Subsidiary contained in any of the Contracts, Other Contracts or Leases and
exercise any and all rights of any
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Subsidiary therein contained as fully as such Subsidiary itself could. Each
Subsidiary 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 any Subsidiary; (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 any Subsidiary 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 such Subsidiary 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 any Subsidiary
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, each Subsidiary 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 each Subsidiary 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. Each Subsidiary 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 such Subsidiary 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 such Subsidiary with respect
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to the Collateral as are necessary or appropriate to protect or enforce the
rights hereunder of the Lenders and the Agents. Each Subsidiary 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 any Subsidiary which constitute a
portion of the Collateral, all in the name of such Subsidiary. 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. Each Subsidiary
agrees that if steps are taken by the Collateral Agent to enforce its rights
hereunder, or to realize upon any of the Collateral, such Subsidiary shall pay
to the Collateral Agent the amount of the Collateral Agent's costs, including
attorneys' fees, and each Subsidiary's obligation to pay such amounts shall be
deemed to be a part of the Obligations secured hereunder.
13. Each Subsidiary 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. Each Subsidiary 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 any Subsidiary 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.
Each Subsidiary 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, such Subsidiary or any other obligor or its
respective property, nor shall the Lenders and the Agents be obliged to resort
to any other collateral or security for the
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Obligations, other than the Collateral, prior to any exercise of rights against
such Subsidiary and its property hereunder.
15. Each Subsidiary 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 any Subsidiary 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
any Subsidiary 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 any Subsidiary 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 Subsidiaries' rights or
obligations hereunder may be assigned by any Subsidiary to any other Person
without the consent of all the Agents and Lenders. Each Subsidiary 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.
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18. The Collateral Agent is hereby authorized to date this Agreement as
of the date signed by the Subsidiaries. This Agreement shall apply to and bind
the respective successors and permitted assigns of each Subsidiary 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 a fashion prescribed in
Section 11.1 of the Loan Agreement with respect to the Lenders and the Agents,
and in the fashion prescribed in Section 11.1 of the Loan Agreement with respect
to each Subsidiary to the last known address of each Subsidiary.
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 SUBSIDIARIES, 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 THE BORROWER AND DELIVERED BY THE COLLATERAL AGENT TO EACH
SUBSIDIARY 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 or the Borrower of any such action to the
extent required by 47 C.F.R. ss. 22.937(f). Each Subsidiary 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
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has granted any License to such Subsidiary 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 Subsidiaries 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.
26. Notwithstanding anything herein which may be construed to the
contrary, any right to indemnification hereunder, including, without limitation,
rights pursuant to Section 11 hereof, shall survive the termination of this
Agreement and the payment and performance of all other Obligations.
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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.
SUBSIDIARIES: ATLANTIC CELLULAR TELEPHONE CORP., a
North Carolina corporation; BINGHAMTON
CELLULAR TELEPHONE CORP., a North
Carolina corporation; CELLULAR DIRECTORY
CORPORATION, a North Carolina
corporation; NORTH CAROLINA CELLULAR
HOLDING CORP., a North Carolina
corporation; ORANGE COUNTY CELLULAR
TELEPHONE CORP., a North Carolina
corporation; PENNSYLVANIA CELLULAR
TELEPHONE CORP., a North Carolina
corporation; PISCATAQUA CELLULAR
TELEPHONE CORP., a North Carolina
corporation; PLMRS NARROWBAND CORP., a
North Carolina corporation; TELEFLEX
INFORMATION SYSTEMS, INC., a North
Carolina corporation; VANGUARD
BINGHAMTON, INC. (f/k/a CROWLEY CELLULAR
TELECOMMUNICATIONS BINGHAMTON, INC.), a
Delaware corporation; VANGUARD CELLULAR
CORP., a North Carolina corporation;
VANGUARD CELLULAR FINANCIAL CORP., a
North Carolina corporation; VANGUARD
CELLULAR HOLDING CORP., a Delaware
corporation; VANGUARD CELLULAR SYSTEMS
OF SOUTH CAROLINA, INC., a North
Carolina corporation; VANGUARD
COMMUNICATIONS, INC., a Delaware
corporation; VANGUARD INDIA, INC., a
Delaware corporation; WARREN AND LEWIS,
LTD., a Virginia corporation; and
WESTERN FLORIDA CELLULAR TELEPHONE
CORP., a North Carolina corporation
By: (signature of Haynes G. Griffin)
Haynes G. Griffin
[CORPORATE SEALS President
ON ATTACHED PAGE]
Attest: (signature of Richard C. Rowlenson)
Richard C. Rowlenson
Assistant Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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[CORPORATE SEALS FOR SECOND AMENDED AND RESTATED
MASTER SUBSIDIARY SECURITY AGREEMENT]
ATLANTIC CELLULAR TELEPHONE CORP.
BINGHAMTON CELLULAR TELEPHONE
CORP.
CELLULAR DIRECTORY CORPORATION
NORTH CAROLINA CELLULAR HOLDING
CORP.
ORANGE COUNTY CELLULAR TELEPHONE
CORP.
PENNSYLVANIA CELLULAR TELEPHONE
CORP.
PISCATAQUA CELLULAR TELEPHONE
CORP.
PLMRS NARROWBAND CORP.
TELEFLEX INFORMATION SYSTEMS,INC.
VANGUARD BINGHAMTON, INC.
(f/k/a CROWLEY CELLULAR
TELECOMMUNICATIONS BINGHAMTON,
INC.)
VANGUARD CELLULAR CORP.
VANGUARD CELLULAR FINANCIAL CORP.
VANGUARD CELLULAR HOLDING CORP.
VANGUARD CELLULAR SYSTEMS OF SOUTH
CAROLINA, INC.
VANGUARD COMMUNICATIONS, INC.
VANGUARD INDIA, INC.
WARREN AND LEWIS, LTD.
WESTERN FLORIDA CELLULAR TELEPHONE
CORP.
-15-A-
[SIGNATURES FOR SECOND AMENDED AND RESTATED
MASTER SUBSIDIARY SECURITY AGREEMENT]
WEST VIRGINIA CELLULAR TELEPHONE CORP.,
a West Virginia corporation
By:(signature of Haynes G. Griffin)
Haynes G. Griffin
Executive Vice President
[CORPORATE SEAL]
Attest:(signature of Richard C. Rowlenson)
Richard C. Rowlenson
Assistant Secretary
ALTOONA CELLTELCO, a District of
Columbia general partnership; and
HARRISBURG CELLULAR TELEPHONE
COMPANY, a Pennsylvania general
partnership
By: PENNSYLVANIA CELLULAR TELEPHONE
CORP., a North Carolina
corporation, its General Partner
By: (signature of Haynes G. Griffin)
Haynes G. Griffin
President
[CORPORATE SEAL]
Attest: (signature of Richard C. Rowlenson)
Richard C. Rowlenson
Assistant Secretary
BINGHAMTON CELLTELCO, a District of
Columbia general partnership
By: VANGUARD BINGHAMTON, INC. (f/k/a
CROWLEY CELLULAR TELECOMMUNICATIONS
BINGHAMTON, INC.), a Delaware
corporation, its General Partner
By: (signature of Haynes G. Griffin)
Haynes G. Griffin
President
[CORPORATE SEAL]
Attest: (signature of Richard C. Rowlenson)
Richard C. Rowlenson
Assistant Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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[SIGNATURES FOR SECOND AMENDED AND RESTATED
MASTER SUBSIDIARY SECURITY AGREEMENT]
COLLATERAL AGENT: TORONTO DOMINION (TEXAS), INC.
By: (signature of Sophia D. Sgarbi)
Name: SOPHIA D. SGARBI
Title: VICE PRESIDENT
Exhibit A - Contracts
Exhibit B - Leases
Exhibit C - Licenses
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