EXHIBIT 4.33
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT ("this Agreement") dated as of June 24, 1997,
between DAKOTA COOPERATIVE TELECOMMUNICATIONS, INC., a cooperative
association duly organized and validly existing under the laws of the State
of South Dakota and DAKOTA TELECOM, INC., a corporation duly organized and
validly existing under the laws of South Dakota (hereinafter, collectively
called the "Pledgor"), and RURAL TELEPHONE FINANCE COOPERATIVE, a South
Dakota cooperative association (the "Lender").
Pledgor and the Lender are parties to a Loan Agreement dated as of June 24,
1997 (as modified and supplemented and in effect from time to time, the
"Loan Agreement"), providing, subject to the terms and conditions thereof,
for an extension of credit to be made by the Lender to Pledgor in the
principal amount of up to $28,421,052.
To induce the Lender to enter into the Loan Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor has agreed to pledge and grant a security interest in
the Collateral (as hereinafter defined). Accordingly, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS. To the extent not inconsistent herewith,
capitalized terms defined in the Loan Agreement are used herein as defined
therein. In addition, as used herein:
"BASIC DOCUMENTS" shall mean the Loan Agreement and the Note.
"COLLATERAL" shall have the meaning ascribed thereto in Section 2
hereof.
"SECURED OBLIGATIONS" shall mean, collectively, all obligations of
Pledgor to the Lender hereunder and under the Basic Documents.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code as in
effect from time to time in the applicable jurisdiction.
SECTION 2. THE PLEDGE AND SECURITY INTEREST. As collateral
security for the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the Secured Obligations, Pledgor
hereby pledges, grants, assigns, transfers, conveys and sets over to the
Lender a security interest in all of Pledgor's right, title and interest in
the property described in paragraph 1 of Schedule A hereto, whether now
owned by Pledgor or hereafter acquired and whether now existing or
hereafter coming into existence (all being collectively referred to herein
as "Collateral"). Schedule A attached hereto is an integral part of this
Pledge Agreement and contains both a description of and certain
representations regarding the Collateral. Pledgor Covenants and agrees
with Lender that Pledgor will not, directly or indirectly, without prior
written consent of the Lender, transfer, issue or sell any stock of the
Pledgor, or any Subsidiary, or enter into any agreement which may result in
the transfer, issuance or sale of any stock of Pledgor, or of its
Subsidiaries, whether common or preferred.
SECTION 3. FURTHER ASSURANCES; REMEDIES. In furtherance of the
grant of the pledge and security interest pursuant to Section 2 hereof,
each Pledgor hereby agrees with the Lender as follows:
3.01 DELIVERY AND OTHER PERFECTION. Pledgor shall:
(i) deliver to the Lender, endorsed in blank for transfer or
accompanied by duly executed stock powers or other instruments of
assignment and transfers in such form and substance as the Lender may
request, all stock certificates or other securities representing any
of the Collateral;
(ii) give, execute, deliver, file and/or record any
financing statement, notice, instrument, document, agreement or other
papers that may be necessary or desirable (in the judgment of the
Lender) to create, preserve, perfect or validate the security interest
granted pursuant hereto or to enable the Lender to exercise and
enforce its rights hereunder with respect to such pledge and security
interest; and
(iii) permit representatives of the Lender, upon reasonable
notice, at any time during normal business hours to inspect and make
abstracts from the books and records pertaining to the Collateral, and
permit representatives of the Lender to be present at Pledgor's place
of business to receive copies of all communications and remittances
relating to the Collateral, all in such manner as the Lender may
require.
3.02 OTHER FINANCING STATEMENTS. Without the prior written consent of
the Lender, Pledgor shall not file or suffer to be on file, or authorize or
permit to be filed or to be on file, in any jurisdiction, any financing
statement or like instrument with respect to the Collateral in which the
Lender is not named as the sole secured party for the benefit of the
Lender.
3.03 PRESERVATION OF RIGHTS. The Lender shall not be required to take
steps necessary to enforce or preserve any rights under any contract,
instrument, or agreement included in the Collateral.
3.04 RIGHTS REGARDING COLLATERAL. So long as no Event of Default
under the Loan Agreement shall have occurred and be continuing, Pledgor
shall have the right to exercise all of its voting, consensual and other
-2-
powers of ownership pertaining to the Collateral for all purposes not
inconsistent with the terms of this Agreement, or any of the Basic
Documents, and shall be entitled to receive, spend and otherwise utilize
all dividends and other distributions with respect to the Collateral;
provided, however, that Pledgor agrees that it will not vote the Collateral
in any manner that is inconsistent with the terms of this Pledge Agreement
or any of the Basic Documents. The Lender shall execute and deliver to
Pledgor or cause to be executed and delivered to Pledgor all such proxies,
powers of attorney, dividend checks (duly endorsed to Pledgor), and other
orders, and all such instruments, without recourse, as Pledgor may
reasonably request for the purpose of enabling it to exercise its rights
and powers which it is entitled to exercise pursuant to this Section 3.04.
3.05 EVENTS OF DEFAULT, ETC. If during the period an Event of Default
under the Loan Agreement (as such term is defined thereunder) occurs and is
continuing, then, subject to applicable law and approvals, if necessary, of
regulatory agencies:
(i) the Lender shall have all of the rights and remedies with
respect to the Collateral of a secured party under the Uniform
Commercial Code (and to the extent permitted by applicable law,
whether or not said Code is in effect in the jurisdiction where the
rights and remedies are asserted);
(ii) the Lender in its discretion may, in its name or in
the name of Pledgor or otherwise, demand, ▇▇▇ for, collect or receive
any money or property at any time payable or receivable on account of
or in exchange for any of the Collateral, but shall be under no
obligation to do so; and
(iii) the Lender may, upon 15 business days prior written notice
to Pledgor of the time and place, with respect to the Collateral or
any part thereof which shall then be or shall thereafter come into the
possession, custody or control of the Lender or any of its agents,
sell or otherwise dispose of all or any part of such Collateral, at
such place or places as the Lender deems best, and for cash or on
credit or for future delivery (without thereby assuming any credit
risk), at public or private sale, without demand of performance or
notice of intention to effect any such disposition or of time or place
of sale (except such notice as is required above, or as is required by
applicable statute and cannot be waived) and the Lender or anyone else
may be the purchaser or recipient of any or all of the Collateral so
disposed of at any public sale (or, to the extent permitted by law, at
any private sale), and thereafter hold the same absolutely, free from
any claim or right of whatsoever kind, including any right or equity
of redemption (statutory or otherwise) of Pledgor any such demand,
notice or right or equity being hereby expressly waived and released.
The proceeds of each collection, sale or other disposition under this
Section 3.05 shall be applied in accordance with Section 3.09.
-3-
3.06 DEFICIENCY. If the proceeds of sale, collection or other
realization of or upon the Collateral are insufficient to cover the costs
and expenses of such realization and the payment in full of the Secured
Obligations, Pledgor shall remain liable for any and all deficiency for
which Pledgor is obligated under this Agreement.
3.07 PRIVATE SALE. The Lender shall incur no liability as a result of
the sale of the Collateral, or any part thereof, at any private sale
conducted in a commercially reasonable manner in accordance with applicable
law. Pledgor hereby waives any claims against the Lender arising by reason
of the fact that the price at which the Collateral may have been sold at
such private sale was less than the price which might have been obtained at
a public sale or was less than the aggregate amount of the Secured
Obligations, unless the related sale was not conducted in a commercially
reasonable manner in accordance with applicable law.
3.08 REMOVALS, ETC. Without 30 days prior written notice to the
Lender, Pledgor shall not maintain any of its books and records with
respect to the Collateral at any office other than its office as provided
in Schedule A hereto as of the date hereof or maintain its office or its
principal place of business at any other place other than at such location.
3.09 APPLICATION OF PROCEEDS. Except as otherwise herein expressly
provided, the proceeds of any collection, sale or other realization of all
or any part of the Collateral, and any other cash at the time held by the
Lender under this Section 3, shall be applied by the Lender:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
compensation to the Lender and its agents and counsel, and all
expenses, and advances made or incurred by the Lender in connection
therewith;
Second, to the payment in full of the Secured Obligations
described in Section 1 hereof; and
Finally, to the payment to Pledgor, or its successors or assigns,
or as a court of competent jurisdiction may direct, of any surplus
then remaining.
As used in this Section 3, "proceeds" of Collateral shall mean cash,
securities and other property realized with respect to, and distributions
in kind of, Collateral, including any thereof received under any
reorganization, liquidation or adjustment of debt of Pledgor or any issuer
of or obligor on any of the Collateral.
3.10 ATTORNEY-IN-FACT. Subject to the Lender having first obtained
any required approval from regulatory agencies, without limiting any rights
or powers granted by this Agreement to the Lender while no Event of Default
-4-
under the Loan Agreement has occurred and is continuing, upon the
occurrence and during the continuance of any Event of Default under the
Loan Agreement the Lender is hereby appointed the attorney-in-fact of
Pledgor for the purpose of carrying out the provisions of this Section 3
and taking any action and executing any instruments which the Lender may
deem necessary or advisable to accomplish the purposes hereof, which
appointment as attorney-in-fact is irrevocable and coupled with an
interest, provided that the Lender shall not take any action pursuant to
the authority granted to it in this Section 3.10 without first notifying
Pledgor in writing thereof. Without limiting the generality of the
foregoing, so long as the Lender shall be entitled under this Section 3 to
make collections in respect of the Collateral, the Lender shall have the
right and power to receive, endorse and collect all checks made payable to
the order of Pledgor representing any dividend, payment or other
distribution in respect of the Collateral or any part thereof and to give
full discharge for the same.
SECTION 4. MISCELLANEOUS.
4.01 INITIAL FINANCING STATEMENTS. Prior to or concurrently with the
execution and delivery of this Agreement, Pledgor shall file such financing
statements and other documents in such offices as the Lender may request to
perfect the pledge and security interest granted by this Agreement.
4.02 FURTHER ASSURANCES. Pledgor agrees that, from time to time upon
the written request of the Lender, Pledgor will execute and deliver such
further documents and do such other acts and things as the Lender may
reasonably request in order fully to effect the purposes of this Agreement.
4.03 NO WAIVER. No failure on the part of the Lender or any of its
agents to exercise, and no course of dealing with respect to, and no delay
in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Lender or
any of its agents of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power
or remedy. The remedies herein are cumulative and are not exclusive of any
remedies provided by law.
4.04 EXPENSES. Pledgor agrees to pay to the Lender all reasonable
out-of-pocket expenses (including reasonable expenses for legal services of
every kind) of, or incident to, the enforcement of any of the provisions of
this Agreement, or performance by the Lender of any obligations of Pledgor
with respect to the Collateral which Pledgor has failed or refused to
perform, or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement with respect to any of the Collateral,
and for the care of the Collateral and defending or asserting rights and
claims of the Lender in respect thereof, by litigation or otherwise and all
such expenses shall be Secured Obligations to the Lender secured under
Section 2 hereof.
-5-
4.05 TAXES. Pledgor agrees to pay before delinquency any tax or other
governmental charge which is or can become through assessment, distraint or
otherwise a lien on the Collateral and to pay any tax or other governmental
charge which may be levied on the transactions hereunder, provided that
nothing herein shall require Pledgor to pay any such tax or other
governmental charge with respect to which Pledgor is prosecuting in good
faith appeal or other proceedings shall have been fully bonded or otherwise
effectively stayed.
4.06 TERMINATION. When all Secured Obligations shall have been paid
in full and the Loan Agreement shall have terminated, this Agreement shall
terminate, and the Lender shall forthwith cause to be assigned, transferred
and delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral and money received in
respect thereof, to or on the order of Pledgor.
4.07 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, PROVIDED THAT
AS TO COLLATERAL LOCATED IN ANY JURISDICTION OTHER THAN THE COMMONWEALTH OF
VIRGINIA, THE LENDER SHALL HAVE ALL THE RIGHTS TO WHICH A SECURED PARTY
UNDER THE LAWS OF SUCH JURISDICTION IS ENTITLED.
4.08 NOTICES. All notices, requests and other communications provided
for herein including, without limitation, any modifications of, or waivers,
requests or consents under, this Agreement shall be given or made in
writing (including, without limitation, by telecopy) and delivered to the
intended recipient at the "Address for Notices" specified below; or, as to
any party, at such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given
when personally delivered or, in the case of a telecopied or mailed notice,
upon receipt, in each case given or addressed as provided for herein. The
Address for Notices of the respective parties are on the last page of this
Agreement.
4.09 WAIVERS, ETC. The terms of this Agreement may be waived, altered
or amended only by an instrument in writing duly executed by Pledgor and
the Lender.
4.10 HEADINGS. The headings and sub-headings contained in this
Agreement are intended to be used for convenience only and do not
constitute part of this Agreement.
4.11 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of Pledgor,
the Lender and each subsequent holder of the Secured Obligations (provided,
however, that Pledgor shall not assign or transfer its rights hereunder
without the prior written consent of the Lender).
-6-
4.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts and all of such counterparts taken together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Pledge and
Security Agreement to be duly executed as of the day and year first above
written.
(SEAL) DAKOTA COOPERATIVE TELECOMMUNICATIONS,
INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
ATTEST: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Secretary
ADDRESS: 29705 453rd Avenue
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
TELECOPY NUMBER: ▇▇▇-▇▇▇-▇▇▇▇
(SEAL) DAKOTA TELECOM, INC.
BY: /s/▇▇▇▇ ▇▇▇▇▇▇
Title: President
ATTEST: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇
Secretaru
ADDRESS: 29705 453rd Avenue
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
TELECOPY NUMBER: ▇▇▇-▇▇▇-▇▇▇▇
(SEAL) RURAL TELEPHONE FINANCE COOPERATIVE
BY: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Secretary-Treasurer
ATTEST: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary-Treasurer
ADDRESS: Woodland Park
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
TELECOPY: ▇▇▇-▇▇▇-▇▇▇▇
-7-
SCHEDULE A TO PLEDGE AND SECURITY AGREEMENT
1. "COLLATERAL", AS DEFINED AND DESCRIBED IN SECTION 2 OF THE PLEDGE
AND SECURITY AGREEMENT, SHALL BE:
(a) (1) 9,303 Shares of Common Stock and 0 Shares of
Preferred Stock of Dakota Telecom Inc. As of the date hereof,
Dakota Telecom Inc. has issued and outstanding 9,303 Shares of
Common Stock and 0 Shares of Preferred Stock;
(a) (2) 1,000 Shares of Common Stock and 0 Shares of
Preferred Stock of Iway, Inc. As of the date hereof, Iway, Inc.
has issued and outstanding 1,000 shares of Common Stock and 0
shares of Preferred Stock.
(a) (3) 1,000 Shares of Common Stock and 0 shares of
Preferred Stock of TCIC Communications, Inc. as of the date hereof,
TCIC Communications, Inc. has issued and outstanding 1,000 shares
of Common Stock and 0 shares of Preferred Stock.
(a) (4) 43,500 Shares of Common Stock and 0 Shares of
Preferred Stock of Dakota Telecommunications Systems, Inc. As of
the date hereof, Dakota Telecommunications, Inc. has issued and
outstanding 43,500 shares of Common Stock and 0 shares of
Preferred Stock.
(a) (5) 1,700 Shares of Common Stock and 0 Shares of
Preferred Stock of Dakota Wireless Systems, Inc. As of the date
hereof, Dakota Wireless Systems, Inc. has issued and outstanding
1,700 shares of Common Stock and 0 shares of Preferred Stock.
(b) without affecting any provision prohibiting such action
hereunder or under the Loan Agreement, in the event of any
consolidation or merger in which Dakota Cooperative
Telecommunications, Inc. or any of its Subsidiaries is not the
surviving corporation, all shares of each class of the capital
stock of the successor corporation formed by or resulting from such
consolidation or merger distributed in respect of the Pledged
Stock; and
(c) all proceeds of and to any of the property described in
clauses (a) and (b) above in this Section 1 and, to the extent
related to any property described in said clauses or above in this
clause (c), all books, correspondence, credit files, records,
invoices and other papers.
(d) all dividends on Dakota Cooperative Telecommunications,
Inc. or Dakota Telecom, Inc. or its Subsidiaries' stock, and any
other distribution to its stockholders, relating to said stock;
provided, however, that prior to the occurrence of an Event of
Default under the Loan Agreement and so long as such an Event of
Default is not continuing, the Pledgor shall be entitled to
receive, spend and otherwise utilize free of the security interest
granted hereby any and all cash dividends and other distributions
with respect to the pledged stock to the extent permitted by the
terms and conditions set-forth in the Loan Agreement and Pledge and
Security Agreement.
The Pledgor represents and warrants that the Collateral is owned by
the Pledgor free and clear of any lien or encumbrance and that such
Collateral is not subject to any restrictions as to transfer,
except those specifically disclosed in writing to Lender or such as
may be imposed by applicable law affecting transfers generally.
2. Pledgor's office, as referred to in Section 3.08 of the Pledge and
Security Agreement, is located at 29705 453rd Avenue, ▇.▇. ▇▇▇ ▇▇,
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.