EXHIBIT 10.4
PLEDGE AND SECURITY AGREEMENT
(Global Network Assets, LLC)
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AN AFTER-ACQUIRED PROPERTY PROVISION
THIS PLEDGE AND SECURITY AGREEMENT ("Agreement") dated as of September
5, 2000, is by and between Global Network Assets, LLC, a Delaware limited
liability company ("Debtor"), whose address is 12851 Worldgate Drive, Herndon,
Virginia 20170 and whose Tax I.D. No. is 54-2002891 and Nortel Networks Inc., a
Delaware corporation ("Secured Party"), as Administrative Agent for the
"Lenders", as that term is defined below, whose address is 2221 Lakeside Blvd.,
Richardson, Texas 75082-4399.
R E C I T A L S:
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A. Subject to the terms of that certain Credit Agreement dated as of
June 30, 2000, among Savvis Communications Corporation, a Delaware corporation
("Holdings"), Savvis Communications Corporation, a Missouri corporation
("Borrower"), certain of the Lenders and Secured Party (the "Original Credit
Agreement"), certain of the Lenders extended certain credit facilities to
Borrower.
B. Pursuant to that certain Amended and Restated Credit Agreement dated
as of September 5, 2000, among Borrower, Holdings, the lenders named therein
(together with their successors and assigns, the "Lenders") and Secured Party
(as such agreement may be amended, renewed, extended, restated, replaced,
substituted, supplemented or otherwise modified from time to time, the "Credit
Agreement"), the Original Credit Agreement is, concurrently herewith, being
amended and restated.
C. Debtor has directly and indirectly benefitted and will directly and
indirectly benefit from the Loans evidenced and governed by the Credit Agreement
and the other transactions evidenced by and contemplated in the Loan Documents.
D. The execution and delivery of this Agreement is required by the
terms of the Credit Agreement and is a condition to the availability of the
Loans to Borrower pursuant to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, and in order to induce the Lenders to make the Loans under
the Credit Agreement, the parties hereto hereby agree as follows:
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ARTICLE 1
Definitions
Section 1.1 Definitions. As used in this Agreement, the following terms
have the following meanings:
"Account" means any "account", as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor and, in any event, shall include, without limitation, each of
the following, whether now owned or hereafter acquired by Debtor: (a)
all rights of Debtor to payment for goods sold or leased, services
rendered or the license of Intellectual Property, whether or not earned
by performance; (b) all accounts receivable of Debtor; (c) all rights
of Debtor to receive any payment of money or other form of
consideration, including, without limitation, all Payment Intangibles;
(d) all security pledged, assigned or granted to or held by Debtor to
secure any of the foregoing; (e) all guaranties of, or indemnifications
with respect to, any of the foregoing; (f) all rights of Debtor as an
unpaid seller of goods or services, including, but not limited to, all
rights of stoppage in transit, replevin, reclamation and resale; (g)
all rights to brokerage commissions; and (h) all other Supporting
Obligations, including any applicable Letter of Credit Rights.
"Amendment" has the meaning specified in Section 4.17(b).
"Broker" means any "broker," as such term is defined in
Article or Chapter 8 of the UCC, and in any event shall include, but
not be limited to, any Person defined as a broker or dealer under the
federal securities laws, but without excluding a bank acting in that
capacity.
"Capital Stock" means corporate stock and any and all
securities, shares, partnership interests (whether general, limited,
special or other partnership interests), limited liability company
interests, membership interests, equity interests, participations,
rights or other equivalents (however designated) of corporate stock or
any of the foregoing issued by any entity (whether a corporation, a
partnership, a limited liability company or another entity) and
includes, without limitation, securities convertible into Capital Stock
and rights, warrants or options to acquire Capital Stock.
"Chattel Paper" means any "chattel paper," as such term is
defined in Article or Chapter 9 of the UCC, now owned or hereafter
acquired by Debtor.
"Clearing Corporation" means any "clearing corporation," as
such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any (a) Person that is
registered as a "clearing agency" under the federal securities laws,
(b) federal reserve bank, or (c) other Person that provides clearance
or settlement services
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with respect to Financial Assets that would require it to register as a
clearing agency under the federal securities laws but for an exclusion
or exemption from the registration requirement, if its activities as a
clearing corporation, including, without limitation, promulgation of
rules, are subject to regulation by a Governmental Authority.
"Collateral" has the meaning specified in Section 2.1.
"Commodity Account" means any "commodity account," as such
term is defined in Article or Chapter 9 of the UCC, now owned or
hereafter acquired by Debtor, including, without limitation, all
accounts maintained by a Commodity Intermediary in which a Commodity
Contract is carried for Debtor.
"Commodity Contract" means any "commodity contract," as such
term is defined in Article or Chapter 9 of the UCC, and includes,
without limitation, a commodity futures contract, a commodity option,
or other contract that, in each case, is (a) traded on or subject to
the rules of a board of trade that has been designated as a contract
market for such a contract pursuant to the federal commodities laws, or
(b) traded on a foreign commodity board of trade, exchange or market,
and is carried on the books of a Commodity Intermediary for a Commodity
Customer.
"Commodity Customer" means any "commodity customer" as such
term is defined in Article or Chapter 9 of the UCC, and includes,
without limitation, any Person for whom a Commodity Intermediary
carries a Commodity Contract on its books.
"Commodity Intermediary" means any "commodity intermediary,"
as such term is defined in Article or Chapter 9 of the UCC, including,
without limitation, (a) a Person who is registered as a futures
commission merchant under the federal commodities laws, or (b) a Person
who in the ordinary course of its business provides clearance or
settlement services for a board of trade that has been designated as a
contract market pursuant to the federal commodities laws.
"Copyright License" means any written agreement now or
hereafter in existence granting to Debtor any right to use any
Copyright including, without limitation, the agreements identified on
Schedule 1, in each case to the extent the grant by Debtor of a
security interest pursuant to this Agreement in its right, title and
interest in such agreement is not prohibited by such agreement without
the consent of any other party thereto, would not give any other party
to such agreement the right to terminate its obligations thereunder, or
is permitted with consent if all necessary consents to such grant of a
security interest have been obtained from the other parties thereto (it
being understood that the foregoing shall not be deemed to obligate
Debtor to obtain such consents); provided, that the foregoing
limitation shall not affect, limit, restrict or impair the grant by
Debtor of a security interest pursuant to
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this Agreement in any accounts receivable or any money or other amounts
due or to become due under such agreement.
"Copyright Security Agreement" means a copyright security
agreement, executed and delivered by Debtor to Secured Party,
substantially in the form of Exhibit A, as such agreement may be
amended, supplemented or otherwise modified from time to time.
"Copyrights" means all of the following: (a) all copyrights,
works protectable by copyright, copyright registrations and copyright
applications of Debtor, including, without limitation, those set forth
on Schedule 1; (b) all renewals, extensions and modifications thereof;
(c) all income, royalties, damages, profits and payments relating to or
payable under any of the foregoing; (d) the right to sue for past,
present or future infringements of any of the foregoing; (e) all other
rights and benefits relating to any of the foregoing throughout the
world; and (f) all goodwill associated with and symbolized by any of
the foregoing; in each case, whether now owned or hereafter acquired by
Debtor.
"Data Centers" means the data centers planned to be
constructed and operated by Borrower at 587 McDonnell Blvd., Hazelwood,
MO 63042 and 760 Office Parkway, Creve Coeur, MO 63141.
"Debt Issuance" means any issuance by Holdings or Borrower of
any Debt securities of Holdings or Borrower, respectively.
"Deposit Accounts" means any and all deposit accounts
(including cash collateral accounts), bank accounts or investment
accounts now owned or hereafter acquired or opened by Debtor,
including, without limitation, those set forth on Schedule 2, and any
account which is a replacement or substitute for any of such accounts,
together with all monies, Instruments, certificates, checks, drafts,
wire transfer receipts and other Property deposited therein and all
balances therein and all investments made with funds deposited therein
or otherwise held in connection therewith, including, without
limitation, indebtedness (howsoever evidenced) and/or securities issued
or guaranteed by the government of the U.S., certificates of deposit
and all contract rights, General Intangibles, contracts, Instruments,
Investment Property, Security Entitlements, Financial Assets, Commodity
Contracts and other Documents now or hereafter existing with respect
thereto, including, but not limited to, any and all renewals,
extensions, reissuances and replacements and substitutions therefor
with all earnings, profits or other Proceeds therefrom in the form of
interest or otherwise, from time to time representing, evidencing,
deposited into or held in such deposit accounts, bank accounts or
investment accounts.
"Document" means any "document," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, including, without limitation, all
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documents of title and all receipts covering, evidencing or
representing goods now owned or hereafter acquired by Debtor.
"Entitlement Holder" means any "entitlement holder", as such
term is defined in Article or Chapter 8 of the UCC, and in any event
shall include, but not be limited to, any Person identified in the
records of a Securities Intermediary as the Person having a Security
Entitlement against the Securities Intermediary, including, without
limitation, any Person who acquires a security entitlement under
Article or Chapter 8 of the UCC.
"Equipment" means any "equipment," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor and, in any event, shall include, without limitation, all
machinery, equipment, furniture, fixtures, trade fixtures, trailers,
rolling stock, vessels, aircraft and vehicles now owned or hereafter
acquired by Debtor and any and all additions, substitutions and
replacements of any of the foregoing, wherever located, together with
all attachments, components, parts, equipment and accessories installed
thereon or affixed thereto.
"FCC" means the Federal Communications Commission and any
successor agency.
"Financial Asset" means any "financial asset," as such term is
defined in Article or Chapter 8 of the UCC, and in any event shall
include, but not be limited to, any (a) Security, (b) obligation of a
Person or a share, participation or other interest in a Person or in
Property or an enterprise of a Person, which is, or is of a type, dealt
in or traded on financial markets, or which is recognized in any area
in which it is issued or dealt in as a medium for investment, and (c)
any Property that is held by a Securities Intermediary for another
Person in a Securities Account if the Securities Intermediary has
expressly agreed with the other Person that the Property is to be
treated as a Financial Asset under Article or Chapter 8 of the UCC.
"Foreign Subsidiary" means, with respect to any Person, each
direct or indirect Subsidiary of such Person that is not a U.S.
Subsidiary.
"General Intangibles" means any "general intangibles," as such
term is defined in Article or Chapter 9 of the UCC, now owned or
hereafter acquired by Debtor and, in any event, shall include, without
limitation, each of the following, whether now owned or hereafter
acquired by Debtor: (a) all of Debtor's service marks, trade names,
trade secrets, registrations, goodwill, franchises, licenses, permits,
proprietary information, customer lists, designs and inventions; (b)
all of Debtor's books and records, including, without limitation, all
computer runs, invoices, tapes, processing software, processing
contracts (such as contracts for computer time and services) and any
computer prepared information, tapes or data of every kind and
description, whether in the possession
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of Debtor or in the possession of third parties, and all of Debtor's
other data, plans, manuals, computer software, computer tapes, computer
disks, computer programs, source codes, object codes, management
information systems and all rights of Debtor to retrieve data and other
information from third parties and other data of every kind and
description, to the extent that they indicate, summarize or evidence,
or otherwise relate to, the Accounts or Inventory, whether in the
possession of Debtor or in the possession of any third party; (c) all
of Debtor's contract rights, partnership interests, joint venture
interests, securities, Deposit Accounts, investment accounts and
certificates of deposit (including, without limitation, all contracts
relating to the construction or operation of the Network, including
rights of way, easements, leases and all related contracts); (d) all
rights of Debtor to payment under letters of credit and similar
agreements, including, without limitation, all Letter of Credit Rights;
(e) all tax refunds and tax refund claims of Debtor; (f) all choses in
action and causes of action of Debtor (whether arising in contract,
tort or otherwise and whether or not currently in litigation) and all
judgments in favor of Debtor, including, without limitation, all
commercial tort claims; (g) all rights and claims of Debtor under
warranties, indemnities, guaranties or other Supporting Obligations
with respect to such agreements; (h) all Intellectual Property; and (i)
all rights of Debtor under any insurance, surety or similar contract or
arrangement, in each case to the extent the grant by Debtor of a
security interest pursuant to this Agreement in its right, title and
interest in such contract, agreement, instrument or indenture is not
prohibited by such contract, agreement, instrument or indenture without
the consent of any other party thereto, would not give any other party
to such contract, agreement, instrument or indenture the right to
terminate its obligations thereunder, or is permitted with consent if
all necessary consents to such grant of a security interest have been
obtained from the other parties thereto (it being understood that the
foregoing shall not be deemed to obligate Debtor to obtain such
consents); provided, that the foregoing limitation shall not affect,
limit, restrict or impair the grant by Debtor of a security interest
pursuant to this Agreement in any accounts receivable or any money or
other amounts due or to become due under such contract, agreement,
instrument or indenture.
"Governmental Authority" means any nation or government, any
state, provincial or political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee" by any Person means any indebtedness, liability or
obligation, contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any
indebtedness, liability or obligation, direct or indirect, contingent
or otherwise, of such Person (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions
or otherwise) or (b) entered into for the purpose of assuring in
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any other manner the obligee of such Debt or other indebtedness,
liability or obligation as to the payment thereof or to protect the
obligee against loss in respect thereof (in whole or in part), provided
that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning. The amount of any Guarantee
shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee is
made or, if not stated or determinable, the maximum anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder).
"Instrument" means any "instrument," as such term is defined
in Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, and, in any event, shall include all promissory notes, drafts,
bills of exchange and trade acceptances of Debtor, whether now owned or
hereafter acquired.
"Intellectual Property" means the Copyrights, Copyright
Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses.
"Inventory" means any "inventory," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, and, in any event, shall include, without limitation, each of
the following, whether now owned or hereafter acquired by Debtor: (a)
all goods and other personal property of Debtor that are held for sale
or lease or to be furnished under any contract of service; (b) all raw
materials, work-in-process, finished goods, inventory, supplies and
materials of Debtor; (c) all wrapping, packaging, advertising and
shipping materials of Debtor; (d) all goods that have been returned to,
repossessed by or stopped in transit by Debtor; and (e) all Documents
evidencing any of the foregoing.
"Investment Property" means any "investment property," as such
term is defined in Article or Chapter 9 of the UCC, now owned or
hereafter acquired by Debtor, and, in any event, shall include, without
limitation, each of the following, whether now owned or hereafter
acquired by Debtor: (a) the Securities Accounts and other Investment
Property described on Schedule 2; (b) any Security or Capital Stock,
whether certificated or uncertificated; (c) any Security Entitlement;
(d) any Securities Account; (e) any Commodity Contract; and (f) any
Commodity Account.
"Issuer" means any "issuer," as such term is defined in
Article or Chapter 8 of the UCC, and in any event shall include, but
not be limited to, any Person that, with respect to an obligation on or
a defense to a Security, (a) places or authorizes the placing of its
name on a Security Certificate, other than as authenticating trustee,
registrar, transfer agent or the like, to evidence a share,
participation or other interest in its Property or in an enterprise, or
to evidence its duty to perform an obligation represented by the
certificate; (b) creates a share, participation or other interest in
its Property or in an enterprise, or undertakes an obligation,
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that is an Uncertificated Security; (c) directly or indirectly creates
a fractional interest in its rights or Property, if the fractional
interest is represented by a Security Certificate; or (d) becomes
responsible for, or in the place of, another Issuer.
"Letter of Credit Rights" means "letter of credit rights" as
such term is defined in Revised Article 9.
"License" means any consent, permit, franchise, certificate,
approval, order, license, right-of-way (whether an easement, contract
or agreement in any form) or other authorization, including, without
limitation, any FCC License.
"Lien" means, with respect to any Property, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, tax lien, financing statement, pledge, charge,
hypothecation or other lien, charge, easement (other than any easement
not materially impairing usefulness), encumbrance, preference, priority
or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including,
without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Master Purchase Agreement" means that certain Nortel Networks
Global Purchase Agreement, dated as of June 30, 2000, by and between
Borrower and Nortel Networks, as amended, supplemented or restated from
time to time.
"Network" means as such term is defined in the Credit
Agreement.
"Nortel Networks" means Nortel Networks Inc., a Delaware
corporation.
"Nortel Networks Equipment" means all hardware, software and
equipment (including fixtures) manufactured, sold or otherwise provided
to Debtor or any Subsidiary of Holdings by Nortel Networks and/or
Nortel Networks Corporation including, without limitation, pursuant to
the Master Purchase Agreement.
"Nortel Networks Software" means any and all software sold or
licensed by Nortel Networks and/or Nortel Networks Corporation to
Debtor or any Subsidiary of Holdings and including, without limitation,
all source code and object code and all manuals and other documentation
relating thereto and each copy thereof regardless of the media in which
they are stored.
"Obligations" means the "Obligations", as such term is defined
in the Credit Agreement, and the obligations, indebtedness and
liabilities of Debtor under this Agreement and any other Loan Document
to which Debtor is a party.
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"Patent License" means any written agreement now or hereafter
in existence granting to Debtor any right to use any invention on which
a Patent is in existence including, without limitation, the agreements
described on Schedule 1, in each case to the extent the grant by Debtor
of a security interest pursuant to this Agreement in its right, title
and interest in such agreement is not prohibited by such agreement
without the consent of any other party thereto, would not give any
other party to such agreement the right to terminate its obligations
thereunder, or is permitted with consent if all necessary consents to
such grant of a security interest have been obtained from the other
parties thereto (it being understood that the foregoing shall not be
deemed to obligate Debtor to obtain such consents); provided, that the
foregoing limitation shall not affect, limit, restrict or impair the
grant by Debtor of a security interest pursuant to this Agreement in
any accounts receivable or any money or other amounts due or to become
due under such agreement.
"Patent Security Agreement" means a patent security agreement
executed and delivered by Debtor to Secured Party, substantially in the
form of Exhibit B, as such agreement may be amended, supplemented or
otherwise modified from time to time.
"Patents" means all of the following: (a) all patents, patent
applications and patentable inventions of Debtor, including, without
limitation, those set forth on Schedule 1, and all of the inventions
and improvements described and claimed therein; (b) all continuations,
divisions, renewals, extensions, modifications, substitutions,
continuations-in-part or reissues of any of the foregoing; (c) all
income, royalties, profits, damages, awards and payments relating to or
payable under any of the foregoing; (d) the right to sue for past,
present and future infringements of any of the foregoing; (e) all other
rights and benefits relating to any of the foregoing throughout the
world; and (f) all goodwill associated with any of the foregoing; in
each case, whether now owned or hereafter acquired by Debtor.
"Payment Intangibles" means "payment intangibles" as such term
is defined in Revised Article 9.
"Person" means any individual, corporation, trust,
association, company, partnership, joint venture, limited liability
company, joint stock company, Governmental Authority or other entity.
"Pledged Collateral" has the meaning specified in Section
4.16(b)(i).
"Pledged Shares" means 100% of the Capital Stock from time to
time owned or acquired by Debtor in any manner of each of the direct or
indirect U.S. Subsidiaries of Debtor, including without limitation, the
Capital Stock identified on Schedule 3 attached hereto, or on Schedule
1 to an Amendment.
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"Proceeds" means any "proceeds," as such term is defined in
Article or Chapter 9 of the UCC and, in any event, shall include, but
not be limited to, (a) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to Debtor from time to time
with respect to any of the Collateral, (b) any and all payments (in any
form whatsoever) made or due and payable to Debtor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any Governmental
Authority (or any Person acting, or purporting to act, for or on behalf
of any Governmental Authority), and (c) any and all other amounts from
time to time paid or payable under or in connection with any of the
Collateral and all other Payment Intangibles relating thereto.
"Property" means property and/or assets of all kinds, whether
real, personal or mixed, tangible or intangible (including, without
limitation, all rights relating thereto), whether owned or acquired on
or after the date hereof.
"Revised Article 9" means the Revised Article 9 of the Uniform
Commercial Code included in the 1998 official text of the Uniform
Commercial Code as approved by the American Law Institute in 1998 and
the National Conference of Commissioners on Uniform State Laws in 1999.
"Securities Account" means any "securities account," as such
term is defined in Article or Chapter 8 of the UCC, and in any event
shall include, but not be limited to, any account to which a Financial
Asset is or may be credited in accordance with an agreement under which
the Person maintaining the account undertakes to treat the Person for
whom the account is maintained as entitled to exercise the rights that
comprise the Financial Asset.
"Securities Intermediary" means any "securities intermediary,"
as such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any (a) Clearing
Corporation, or (b) Person, including a bank or Broker, that in the
ordinary course of its business maintains Securities Accounts for
others and is acting in that capacity.
"Security" means any "security," as such term is defined in
Article or Chapter 8 of the UCC and, in any event, shall include, but
not be limited to, any obligation of an Issuer or a share,
participation or other interest in an Issuer or in Property or an
enterprise of an Issuer (a) which is represented by a Security
Certificate in bearer or registered form, or the transfer of which may
be registered upon books maintained for that purpose by or on behalf of
the Issuer, (b) which is one of a class or series or by its terms is
divisible into a class or series of shares, participations, interests
or obligations, and (c) which (i) is, or is of a type, dealt in or
traded on securities exchanges or securities markets, or (ii) is a
medium for investment and by its terms expressly provides that it is a
security governed by Article or Chapter 8 of the UCC.
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"Security Certificate" means any "security certificate," as
such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any certificate
representing a Security.
"Security Entitlement" means any "security entitlement," as
such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any of the rights and
property interests of an Entitlement Holder with respect to a Financial
Asset.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which at least a majority of the
outstanding shares of stock or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors (or Persons performing similar functions) of such corporation
or entity (irrespective of whether or not at the time, in the case of a
corporation, stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled
by such Person or one or more of its Subsidiaries or by such Person and
one or more of its Subsidiaries.
"Supporting Obligations" means "supporting obligations" as
such term is defined in Revised Article 9.
"Trademark License" means any written agreement now or
hereafter in existence granting to Debtor any right to use any
Trademark, including, without limitation, the agreements identified on
Schedule 1, in each case to the extent the grant by Debtor of a
security interest pursuant to this Agreement in its right, title and
interest in such agreement is not prohibited by such agreement without
the consent of any other party thereto, would not give any other party
to such agreement the right to terminate its obligations thereunder, or
is permitted with consent if all necessary consents to such grant of a
security interest have been obtained from the other parties thereto (it
being understood that the foregoing shall not be deemed to obligate
Debtor to obtain such consents); provided, that the foregoing
limitation shall not affect, limit, restrict or impair the grant by
Debtor of a security interest pursuant to this Agreement in any
accounts receivable or any money or other amounts due or to become due
under such agreement.
"Trademark Security Agreement" means a trademark security
agreement executed and delivered by Debtor to Secured Party,
substantially in the form of Exhibit C, as such agreement may be
amended, supplemented or otherwise modified from time to time.
"Trademarks" means all of the following: (a) all trademarks,
trade names, corporate names, company names, business names, fictitious
business names, trade styles, service marks, logos, other business
identifiers, prints and labels on which any of the foregoing have
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appeared or appear, all registrations and recordings thereof and all
applications in connection therewith, including, without limitation,
registrations, recordings and applications in the United States Patent
and Trademark Office or in any similar office or agency of the U.S.,
any state thereof or any other country or any political subdivision
thereof, including, without limitation, those described in Schedule 1;
(b) all reissues, extensions and renewals thereof; (c) all income,
royalties, damages and payments now or hereafter relating to or payable
under any of the foregoing, including, without limitation, damages or
payments for past or future infringements of any of the foregoing; (e)
the right to sue for past, present and future infringements of any of
the foregoing; (f) all rights corresponding to any of the foregoing
throughout the world; and (g) all goodwill associated with and
symbolized by any of the foregoing; in each case, whether now owned or
hereafter acquired by Debtor.
"UCC" means the Uniform Commercial Code as in effect on or
after the date hereof in the State of New York and/or any other
jurisdiction the laws of which may be applicable to or in connection
with the creation, perfection or priority, or the effect of perfection
or non-perfection, of any Lien on any Property created or purported to
be created pursuant to this Agreement, and includes, without
limitation, Revised Article 9 if and when enacted in the State of New
York and/or any other such jurisdiction.
"Uncertificated Security" means any "uncertificated security,"
as such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any Security that is not
represented by a certificate.
"U.S." means the United States of America.
"U.S. Subsidiary" means, with respect to any Person, each
direct or indirect Subsidiary of such Person formed under the laws of
the U.S. or any state thereof.
Section 1.2 Other Definitional Provisions. Terms used herein that are
defined in the Credit Agreement and are not otherwise defined herein shall have
the meanings therefor specified in the Credit Agreement. References to
"Sections," "Subsections," "Exhibits" and "Schedules" shall be to Sections,
Subsections, Exhibits and Schedules, respectively, of this Agreement unless
otherwise specifically provided. All definitions contained in this Agreement are
equally applicable to the singular and plural forms of the terms defined. All
references to statutes and regulations shall include any amendments of the same
and any successor statutes and regulations. References to particular sections of
the UCC should be read to refer also to parallel sections of the Uniform
Commercial Code as enacted in each state or other jurisdiction where any portion
of the Collateral is or may be located. Terms used herein which are defined in
the UCC, unless otherwise defined herein or in the Credit Agreement, shall have
the meanings determined in accordance with the UCC. The term "continuing",
"continuation" or "continuance" means, in reference to any Default or Event of
Default that has occurred, that such Default or Event of Default has not been
either cured to the
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reasonable satisfaction of the Secured Party within the applicable grace period
(if any) specified in this Agreement or the other Loan Documents (as applicable)
or waived in writing by the requisite Lenders in accordance with Section 13.11
of the Credit Agreement.
ARTICLE 2
Security Interest
Section 2.1 Security Interest. Subject to Section 2.2 below, as
collateral security for the prompt payment and performance in full when due of
the Obligations (whether at stated maturity, by acceleration or otherwise),
Debtor hereby pledges and assigns (as collateral) to Secured Party, and grants
to Secured Party, as Administrative Agent for the Lenders, a continuing Lien on
and security interest in, all of Debtor's right, title and interest in and to
the following, whether now owned or hereafter arising or acquired and wherever
located (collectively, the "Collateral"):
(a) all Accounts;
(b) all Chattel Paper;
(c) all Instruments;
(d) all General Intangibles;
(e) all Documents;
(f) all Equipment (including, without limitation,
Equipment at the locations set forth on Schedule 4);
(g) all Inventory (including, without limitation,
Inventory at the locations set forth on Schedule 4);
(h) all Intellectual Property;
(i) all Financial Assets and Investment Property,
including, without limitation, or in addition, the
following:
(1) all of the Pledged Shares and the
certificates (if any) representing the
Pledged Shares, and all dividends, cash,
Instruments, and other property from time to
time received, receivable, or otherwise
distributed or distributable in respect of
or in exchange for any or all of the Pledged
Shares; and
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(2) all additional Capital Stock from time to
time owned or acquired by Debtor in any
manner, and all dividends, cash,
Instruments, and other property from time to
time received, receivable, or otherwise
distributed or distributable in respect of
or in exchange for any or all of such
Capital Stock; provided, no Capital Stock of
a Foreign Subsidiary is or shall be pledged
pursuant to this Section 2.1(i);
(j) all Deposit Accounts;
(k) all indebtedness from time to time owed to Debtor by
Holdings or any of Borrower's Subsidiaries and the
instruments evidencing such indebtedness, and all
interest, cash, instruments and other property from
time to time received, receivable or otherwise
distributed or distributable in respect of or in
exchange for any or all of such indebtedness;
(l) all proceeds, in cash or otherwise, of any of the
property described in the foregoing clauses (a)
through (k) and all liens, security, rights, remedies
and claims of Debtor with respect thereto;
(m) all other goods and personal Property of Debtor of
any kind or character, whether tangible or
intangible, including, without limitation, any and
all rights in and claims under insurance policies,
judgments and rights thereunder, and tort claims; and
(n) all Proceeds and products of any or all of the
foregoing.
Section 2.2 Exclusions from Security Interest. Notwithstanding anything
in this Agreement to the contrary, "Collateral" shall not include any of the
following Property as long as such Property is encumbered by Permitted Liens
(or, in the case of the Lucent Equipment, expected to be encumbered by November
30, 2000) and as long as such Property is not Nortel Networks Equipment, Nortel
Networks Software nor any other Property acquired with the proceeds of the
Loans:
(x) any Property encumbered (or, in the case of the
Lucent Equipment, expected to be encumbered by
November 30, 2000) by purchase money Liens permitted
by clause (g) of the definition of "Permitted Liens,"
as such term is defined in the Credit Agreement;
(y) the real property and related fixtures and any
equipment located at the Data Centers and the
proceeds thereof; and
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(z) funds held back by a lender from the proceeds of a
Debt Issuance in an escrow or collateral account for
the purpose of paying interest on such Debt as it
accrues.
Upon the request of Debtor, without the requirement of consent or
agreement of any Lender, the Secured Party shall promptly execute (A) such
releases or other terminations of Liens as may be necessary to terminate the
Liens granted to the Secured Party under the Security Documents in any of the
Property described in the foregoing clauses (x), (y) and (z) or (B) such
agreements as may be necessary to provide assurance that the Property described
in the foregoing clauses (x), (y) and (z) is not Collateral pledged to Secured
Party or any Lender. If the Debt secured by a Permitted Lien encumbering any
Property of the type described in the foregoing clauses (x), (y) and (z) shall
be paid in full and the Permitted Lien on such Property is released (other than
in connection with a refinancing of such Debt where the grant of a Permitted
Lien to secure such refinancing Debt is contemplated) or if a Permitted Lien
does not encumber the Lucent Equipment by November 30, 2000, the Debtor shall
and shall cause its Subsidiaries to take such action as the Secured Party may
reasonably require to cause the Liens of the Security Documents to encumber the
Property in question and for such Liens to be perfected and protected.
Notwithstanding anything herein or in the other Security Documents to
the contrary, to the extent this Agreement or any other Security Document
purports to grant to the Secured Party a lien and security interest in any
License held directly or indirectly by Debtor, now owned or hereafter acquired,
the Secured Party shall only have a lien and security interest in such License
at such times and to the extent that Debtor is permitted to grant a security
interest therein under the applicable provisions of the Communications Act of
1934, as amended, and the rules and regulations of the FCC promulgated
thereunder and other applicable law; provided, that any such lien and security
interest shall to the extent permitted by applicable law be deemed effective as
of the later of (i) the date of this Agreement or (ii) the date on which Debtor
was assigned, or acquired control over, the applicable License.
Section 2.3 Debtor Remains Liable. Notwithstanding anything to the
contrary contained herein, (a) Debtor shall remain liable under the contracts,
agreements, documents and instruments included in the Collateral to the extent
set forth therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed, (b) the exercise by
Secured Party of any of its rights or remedies hereunder shall not release
Debtor from any of its duties or obligations under the contracts, agreements,
documents and instruments included in the Collateral, and (c) Secured Party
shall not have any indebtedness, liability or obligation under any of the
contracts, agreements, documents and instruments included in the Collateral by
reason of this Agreement, and Secured Party shall not be obligated to perform
any of the obligations or duties of Debtor thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
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Section 2.4 Delivery of Collateral. Debtor has delivered to Secured
Party, endorsed in blank as appropriate, all Collateral the possession of which
is necessary to perfect the security interest of Secured Party therein as of the
date hereof. Furthermore, within 10 days of Debtor gaining any rights in any
additional Collateral having a value in excess of $100,000 the possession of
which is necessary to perfect the security interest of Secured Party therein,
all certificates or instruments representing or evidencing the Pledged Shares,
any Instruments or Chattel Paper or any other Collateral including, without
limitation, any Investment Property, shall be delivered to and held by or on
behalf of Secured Party pursuant hereto in suitable form for transfer by
delivery, or accompanied by duly executed instruments of transfer or assignment
in blank, or held by a Securities Intermediary in a Securities Account pursuant
to an agreement among Secured Party, Debtor and such Securities Intermediary
which agreement establishes "control" (as defined in Article or Chapter 8 of the
UCC) of such Securities Account with Secured Party in one (or more if Secured
Party requests) of the manners prescribed in Section 8-106 of the UCC, all in
form and substance reasonably satisfactory to Secured Party. After the
occurrence and during the continuation of a Default or an Event of Default,
Secured Party shall have the right at any time to exchange certificates or
instruments representing or evidencing any Pledged Collateral in its possession
for certificates or instruments of smaller or larger denominations.
ARTICLE 3
Representations and Warranties
To induce Secured Party and the Lenders to enter into this Agreement
and the other Loan Documents, Debtor represents and warrants that:
Section 3.1 Title. Debtor is, and with respect to Collateral acquired
after the date hereof Debtor will be, the legal and beneficial owner of the
Collateral free and clear of any Lien or other encumbrance, except for those
Permitted Liens (if any) which are expressly permitted to attach to the
Collateral in accordance with the Credit Agreement and Liens in favor of Secured
Party and provided, that this Section 3.1 does not apply to Intellectual
Property (which is addressed in Section 3.8 below).
Section 3.2 Accounts. Unless Debtor has given Secured Party written
notice to the contrary, whenever the security interest granted hereunder
attaches to an Account with a value in excess of $250,000, Debtor shall be
deemed to have represented and warranted to Secured Party as to each of such
Accounts at the time of its creation that, to the best knowledge of Debtor, (a)
each such Account is genuine and in all respects what it purports to be, (b)
each such Account represents the legal, valid and binding obligation of the
account debtor evidencing indebtedness unpaid and owed by such account debtor,
(c) except for defenses and business disputes arising in the ordinary course of
business which in the aggregate are not material, the amount of each such
Account represented as owing is the correct amount actually and unconditionally
owing except for normal trade discounts
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granted in the ordinary course of business, and (d) except for defenses and
business disputes arising in the ordinary course of business which in the
aggregate are not material, no such Account is subject to any offset,
counterclaim or other defense.
Section 3.3 Financing Statements. Debtor has not signed any financing
statement, security agreement or other Lien instrument covering all or any part
of the Collateral, except as may have been filed in favor of Secured Party
pursuant to this Agreement and except for financing statements evidencing
Permitted Liens. Except as otherwise disclosed on Schedule 5, Debtor does not do
business and has not done business within the past five years under a trade name
or any name other than its legal name set forth at the beginning of this
Agreement.
Section 3.4 Principal Place of Business. The principal place of
business and chief executive office of Debtor, and the office where Debtor keeps
its books and records, is located at the address of Debtor shown at the
beginning of this Agreement.
Section 3.5 Location of Collateral. All Inventory (except Inventory in
transit) and Equipment (other than vehicles) of Debtor constituting Collateral
having a value in excess of $100,000 is located at the places specified on
Schedule 4. Debtor shall give written notice to Secured Party at least 30 days
prior to the date any such Inventory and/or Equipment is located at any location
other than as set forth on Schedule 4. Except for warehousing and co-location
arrangements, Debtor has exclusive possession and control of its Inventory and
Equipment. None of such Inventory (other than Inventory as to which all
Documents evidencing such Inventory have been delivered to Secured Party) or
Equipment (other than vehicles) of Debtor constituting Collateral is evidenced
by a Document (including, without limitation, a negotiable document of title).
Section 3.6 Perfection. Upon the filing of Uniform Commercial Code
financing statements in the jurisdictions listed on Schedule 6, the filing of a
Patent Security Agreement (if any) and a Trademark Security Agreement (if any)
with the United States Patent and Trademark Office, the filing of a Copyright
Security Agreement (if any) with the United States Copyright Office, and upon
Secured Party's obtaining possession of the Pledged Shares (or obtaining
"control" (as such term is defined in Article or Chapter 8 of the UCC) of the
Pledged Shares in one (or more if Secured Party so requests) of the manners
prescribed in Section 8-106 of the UCC) and all other Instruments, Chattel Paper
and Security Certificates of Debtor constituting Collateral, the security
interest in favor of Secured Party created herein will constitute a valid and
perfected Lien upon and security interest in the Collateral (except for (a)
vehicles covered by certificates of title, and (b) other Property excluded from
the application of Article or Chapter 9 of the UCC by Section 9-104 of the UCC,
including, without limitation, fixtures and deposit accounts), subject to no
equal or prior Liens except for Permitted Liens.
Section 3.7 [intentionally omitted]
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Section 3.8 Intellectual Property.
(a) The information contained on Schedule 1 in respect of
Federally registered Trademarks, registered Copyrights and issued
Patents, is true, correct and complete.
(b) Debtor is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to the Intellectual
Property set forth on Schedule 1 (consisting of Federally registered
Trademarks, registered Copyrights and issued Patents) free and clear of
any Liens, including, without limitation, any pledges, assignments,
licenses, user agreements and covenants by Debtor not to sue third
Persons, other than Permitted Liens.
(c) To Debtor's best knowledge, no claim has been made that
the use of any of the Intellectual Property set forth on Schedule 1
violates or may violate the rights of any third Person.
(d) Each of the Patents and Trademarks identified on Schedule
1 as being registered has been properly registered with the United
States Patent and Trademark Office and each of the Copyrights
identified on Schedule 1 as being registered has been properly
registered with the United States Copyright Office.
Section 3.9 Pledged Shares and Instruments.
(a) The Pledged Shares have been duly authorized and validly
issued and are fully paid and nonassessable under the laws of the
jurisdiction of incorporation or organization of the issuers thereof.
To the best knowledge of Debtor, the Instruments have been duly
authorized and validly issued by the obligor thereunder and constitute
legally enforceable indebtedness of the obligor thereunder.
(b) Debtor is the legal and beneficial owner of the Pledged
Shares and the Instruments, free and clear of any Lien (other than the
Lien created by this Agreement), and Debtor has not sold, granted any
option with respect to, assigned, transferred or otherwise disposed of
any of its rights or interest in or to the Pledged Shares or the
Instruments.
(c) On the date hereof, the Pledged Shares constitute the
percentage of the issued and outstanding Capital Stock of the issuers
thereof indicated on Schedule 3, as such Schedule 3 may from time to
time be supplemented, amended or modified.
Section 3.10 Investment Property. As of the date of this Agreement,
Schedule 2 contains a complete and accurate description of all Investment
Property owned by Debtor.
Section 3.11 Benefit . Debtor expects to derive substantial benefit
(and Debtor may
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reasonably be expected to derive substantial benefit), directly and indirectly,
from the Loans and the other transactions contemplated by the Credit Agreement.
Debtor will receive reasonably equivalent value in exchange for the Collateral
being provided by it pursuant to the Loan Documents to which it is a party as
security for the payment and performance of the Obligations.
ARTICLE 4
Covenants
Debtor covenants and agrees with Secured Party that until the
Obligations are paid and performed in full, the obligations of Secured Party
under the Loan Documents and all Commitments of the Lenders have expired or have
been terminated:
Section 4.1 Encumbrances. Except as otherwise permitted by the terms of
the Credit Agreement relating to disposition of assets, Debtor shall not create,
permit or suffer to exist, and shall defend the Collateral against, any Lien or
other encumbrance on the Collateral except for Permitted Liens, and shall defend
Debtor's rights in the Collateral and Secured Party's pledge and collateral
assignment of and security interest in the Collateral against the claims and
demands of all Persons. Subject to the creation or existence of Permitted Liens
under the Credit Agreement, Debtor shall do nothing to impair the rights of
Secured Party in the Collateral.
Section 4.2 [intentionally omitted]
Section 4.3 Disposition of Collateral. Except as expressly permitted by
the terms of the Credit Agreement, Debtor shall not sell, lease, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option with
respect to, the Collateral or any part thereof without the prior written consent
of Secured Party.
Section 4.4 Further Assurances. At any time and from time to time, upon
the request of Secured Party, and at the sole expense of Debtor, Debtor shall
promptly execute and deliver all such further agreements, documents and
instruments and take such further action as Secured Party may reasonably deem
necessary or appropriate to preserve and perfect its security interest in and
pledge and collateral assignment of the Collateral and carry out the provisions
and purposes of this Agreement or to enable Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any of the Collateral,
and, to the extent any of the Collateral at any time constitutes Investment
Property, then Debtor shall cause Secured Party to obtain "control," as defined
in Article or Chapter 8 of the UCC, of such Collateral in one (or more, if
Secured Party so requests) of the manners prescribed in Section 8-106 of the
UCC. Debtor and Secured Party agree that the grant of the security interest in
the Investment Property pursuant to this Agreement shall have the effect of a
delivery of such securities to Secured Party pursuant to Section 8-301 of the
UCC, and the effect of a taking of delivery by Secured Party of such Collateral
in accordance with Section 8-302 of the UCC.
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Except as otherwise expressly permitted by the terms of the Credit Agreement
relating to disposition of assets and except for Permitted Liens, Debtor agrees
to defend the title to the Collateral and the Lien thereon of Secured Party
against the claim of any other Person and to maintain and preserve such Lien.
Without limiting the generality of the foregoing, Debtor shall (a) execute and
deliver to Secured Party such financing statements as Secured Party may from
time to time require; (b) deliver and pledge to Secured Party all Documents
(including, without limitation, all documents of title) evidencing Inventory or
Equipment having a value in excess of $100,000 (except for certificates of title
covering vehicles unless otherwise required by Secured Party) and cause Secured
Party to be named as lienholder on all such Documents; (c) deliver and pledge to
Secured Party all Instruments and Chattel Paper of Debtor having a value in
excess of $100,000 with any necessary endorsements; and (d) execute and deliver
to Secured Party such other agreements, documents and instruments as Secured
Party may reasonably require to perfect and maintain the validity, effectiveness
and priority of the Liens intended to be created by the Loan Documents. In the
event Debtor fails, upon request of Secured Party, to promptly (and in any event
within two days of such request) execute and file one or more financing or
continuation statements, and/or amendments thereto, relating to all or any part
of the Collateral, Debtor authorizes Secured Party to file such financing or
continuation statements, and/or amendments thereto without the signature of
Debtor where permitted by law. A carbon, photographic or other reproduction of
this Agreement or of any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement and may be filed as a
financing statement.
Section 4.5 Insurance. Debtor shall maintain insurance in the types and
amounts, and under the terms and conditions, specified in Section 8.5 of the
Credit Agreement. If applicable, recoveries under any such policy of insurance
shall be paid as provided in the Credit Agreement.
Section 4.6 Bailees. If any of the Collateral is at any time in the
possession or control of any warehouseman, bailee or any of Debtor's agents or
processors, Debtor shall, at the request of Secured Party, notify such
warehouseman, bailee, agent or processor of the security interest created
hereunder and shall instruct such Person to hold such Collateral for Secured
Party's account subject to Secured Party's instructions.
Section 4.7 Inspection Rights. Debtor shall permit Secured Party and
its representatives and agents, during normal business hours and upon reasonable
notice to Debtor, to examine, copy and make extracts from its books and records,
to visit and inspect its Properties and to discuss its business, operations and
financial condition with its officers and independent certified public
accountants. The Debtor will authorize its accountants in writing (with a copy
to the Secured Party) to comply with this Section. The Secured Party and/or its
representatives may, at any time and from time to time at Debtor's expense,
conduct field exams for such purposes as the Secured Party may reasonably
request during normal business hours and upon reasonable notice to Debtor.
Section 4.8 [intentionally omitted]
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Section 4.9 Corporate Changes. Debtor shall not change its name,
identity or corporate structure in any manner that might make any financing
statement filed in connection with this Agreement seriously misleading unless
Debtor shall have given Secured Party thirty (30) days prior written notice
thereof and shall have taken all action deemed necessary or appropriate by
Secured Party to protect its Liens and the perfection and priority thereof.
Debtor shall not change its principal place of business, chief executive office
or the place where it keeps its books and records unless it shall have given
Secured Party thirty (30) days prior written notice thereof and shall have taken
all action deemed necessary or appropriate by Secured Party to cause its
security interest in the Collateral to be perfected with the priority required
by this Agreement.
Section 4.10 Books and Records; Information. Debtor shall maintain
appropriate books of records and accounts in accordance with GAAP consistently
applied in which true, full and correct entries will be made of its dealings and
business affairs. Debtor shall from time to time at the request of Secured Party
deliver to Secured Party such information regarding the Collateral and Debtor as
Secured Party may reasonably request, including, without limitation, lists and
descriptions of the Collateral and evidence of the identity and existence of the
Collateral. To the extent required by Section 4.4, Debtor shall mark its books
and records to reflect the security interest of Secured Party under this
Agreement.
Section 4.11 Equipment and Inventory.
(a) Debtor shall keep the Equipment (other than vehicles) and
Inventory (other than Inventory in transit) constituting Collateral and
having a value in excess of $100,000 at the locations specified on
Schedule 4 or at such other places within the U.S. where all action
required to perfect Secured Party's security interest in such Equipment
and Inventory with the priority required by this Agreement shall have
been taken; provided that if any such Equipment (other than vehicles)
or Inventory (other than Inventory in transit) is being relocated to
any jurisdiction where the security interest of Secured Party under
this Agreement has not been previously perfected, then in such case
Debtor shall deliver prompt (and in any event within not less than 30
days) notice thereof to Secured Party.
(b) Debtor shall maintain the material Equipment and Inventory
constituting Collateral in good condition and repair (ordinary wear and
tear excepted) and in accordance with the terms of the Credit
Agreement. Debtor shall not permit any waste or destruction of such
Equipment or Inventory or any part thereof. Debtor shall not permit
such Equipment or Inventory to be used in violation of any law, rule or
regulation or the terms of any policy of insurance. Debtor shall not
use or permit any of such Equipment or Inventory to be used in any
manner or for any purpose that would impair its value or expose it to
unusual risk.
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(c) Within 45 days of the end of each of Debtor's fiscal
quarters, Debtor shall provide Secured Party with a report setting
forth in reasonable detail any change during such preceding fiscal
quarter of the location of any Equipment or Inventory (unless such
location is one of the locations already specified on Schedule 4)
constituting Collateral.
Section 4.12 Warehouse Receipts Non-Negotiable. Debtor agrees that if
any warehouse receipt or receipt in the nature of a warehouse receipt is issued
in respect of any of the Collateral having a value in excess of $100,000, such
warehouse receipt or receipt in the nature thereof shall not be "negotiable" (as
such term is used in Section 7-104 of the UCC) unless such warehouse receipt or
receipt in the nature thereof is delivered to Secured Party.
Section 4.13 Notification. Debtor shall promptly notify Secured Party
of (a) any Lien, encumbrance or claim (other than Permitted Liens) that has
attached to or been made or asserted against any of the Collateral, (b) any
material change in any of the Collateral, including, without limitation, any
material damage to or loss of Collateral, and (c) the occurrence of any other
event or condition (including, without limitation, matters as to Lien priority)
that could reasonably be expected to have a material adverse effect on the
Collateral or the security interest created hereunder.
Section 4.14 [intentionally omitted]
Section 4.15 Intellectual Property. Except with the written consent of
Secured Party:
(a) If Debtor shall obtain rights to or become entitled to the
benefit of any Intellectual Property not identified on Schedule 1, the
provisions of this Agreement shall automatically apply thereto. Debtor
shall undertake to modify or update Schedule 1 to include any such new
Intellectual Property and hereby authorizes Secured Party to modify or
update Schedule 1 to include any such new Intellectual Property in the
event Debtor fails to timely modify or update Schedule 1 upon written
notice from Secured Party;
(b) Upon the occurrence of any event that would require any
addition to or modification of Schedule 1 or upon the request of
Secured Party, Debtor shall furnish to Secured Party statements and
schedules further identifying the Intellectual Property and such other
items in connection with the Intellectual Property as Secured Party may
request. Promptly upon the request of Secured Party, Debtor shall
modify this Agreement by amending Schedule 1 to include any
Intellectual Property that becomes part of the Collateral;
(c) If an Event of Default shall have occurred and be
continuing, Debtor shall use its best efforts to obtain any consents,
waivers or agreements necessary to enable Secured Party to exercise its
rights and remedies with respect to the Intellectual Property; and
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(d) Debtor shall, at the request of Secured Party, execute and
deliver to Secured Party a Copyright Security Agreement, a Patent
Security Agreement, a Trademark Security Agreement and all other
agreements, documents, instruments and other items as may be necessary
for Secured Party to file such agreements with the United States
Copyright Office, the United States Patent and Trademark Office and any
similar domestic or foreign office, department or agency. Debtor will,
at any time and from time to time upon the request of Secured Party,
execute and deliver to Secured Party all such other agreements,
documents, instruments and other items as may be necessary or
appropriate for Secured Party to create and perfect its security
interest in the Intellectual Property and to make all appropriate
filings with respect thereto.
Section 4.16 Voting Rights, Distributions, Etc.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) Debtor shall be entitled to exercise any and all
voting and other consensual rights (including, without
limitation, the right to give consents, waivers and
notifications in respect of any of the Pledged Collateral)
pertaining to any of the Pledged Collateral or any part
thereof; and
(ii) Unless an Event of Default shall have occurred
and be continuing, Debtor shall be entitled to receive and
retain any and all dividends and interest paid in respect of
any of the Collateral to the extent permitted by the Credit
Agreement; provided, however, that any and all
(A) Restricted Payments paid or payable in
violation of the terms of the Credit Agreement,
(B) Restricted Payments paid or payable
other than in cash in respect of, and instruments and
other Property received, receivable or otherwise
distributed in respect of, or in exchange for, any
Collateral,
(C) Restricted Payments hereafter paid or
payable in cash in respect of any Collateral in
connection with a partial or total liquidation or
dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus, and
(D) cash paid, payable or otherwise
distributed in redemption of, or in exchange for, any
Collateral,
shall be, and shall be forthwith delivered to Secured Party to hold as,
Collateral and shall, if received by Debtor, be received in trust for the
benefit of Secured Party, be segregated from
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the other Property or funds of Debtor and be forthwith delivered to Secured
Party as Collateral in the same form as so received (with any necessary
endorsement). All amounts (other than amounts described in clauses (ii)(A)
through (D) above) received by Secured Party in respect of any Pledged
Collateral shall be either (1) promptly released to Debtor, so long as no
Default or Event of Default shall have occurred and be continuing or (2) if any
Default or Event of Default shall have occurred and be continuing, held by
Secured Party and (if an Event of Default shall have occurred and be continuing)
applied as provided by the Credit Agreement. During the continuance of any
Default, any dividends, interest or other distributions (whether in cash,
securities, Property or otherwise) received by Debtor with respect to any
Collateral shall be held by Debtor in trust for the benefit of Secured Party
and, during the continuance of any Event of Default, upon the request of Secured
Party, shall be delivered promptly to Secured Party to hold as Collateral, as
Secured Party may in its discretion determine. If such Event of Default is
waived or cured to the satisfaction of Secured Party, any such distributions
received by Secured Party (except those of the types described in clauses
(ii)(A) through (D) above which shall not be released to Debtor) shall be
returned promptly to Debtor (provided that no other Default or Event of Default
exists).
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) Secured Party may, without notice to Debtor,
transfer or register in the name of Secured Party or any of
its nominees any or all of the Collateral described in Section
2.1(i) or Section 2.1(k), the proceeds thereof (in cash or
otherwise) and all liens, security, rights, remedies and
claims of Debtor with respect thereto (collectively, the
"Pledged Collateral") held by Secured Party hereunder, and
Secured Party or its nominee may thereafter, after delivery of
notice to Debtor, exercise all voting and corporate rights at
any meeting of any corporation, partnership or other business
entity issuing any of the Pledged Collateral and any and all
rights of conversion, exchange, subscription or any other
rights, privileges or options pertaining to any of the Pledged
Collateral as if it were the absolute owner thereof,
including, without limitation, the right to exchange at its
discretion any and all of the Pledged Collateral upon the
merger, consolidation, reorganization, recapitalization or
other readjustment of any corporation, partnership or other
business entity issuing any of such Pledged Collateral or upon
the exercise by any such issuer or Secured Party of any right,
privilege or option pertaining to any of the Pledged
Collateral, and in connection therewith, to deposit and
deliver any and all of the Pledged Collateral with any
committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as it may
determine, all without liability except to account for
Property actually received by it, but Secured Party shall have
no duty to exercise any of the aforesaid rights, privileges or
options, and neither Secured Party nor any Lender shall be
responsible for any failure to do so or delay in so doing.
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(ii) All rights of Debtor to exercise the voting and
other consensual rights which it would otherwise be entitled
to exercise pursuant to Section 4.16(a)(i) and to receive the
dividends, interest and other distributions which it would
otherwise be authorized to receive and retain pursuant to
Section 4.16(a)(ii) shall be suspended until such Event of
Default shall no longer exist, and all such rights shall,
until such Event of Default shall no longer exist, thereupon
become vested in Secured Party which shall thereupon have the
sole right to exercise such voting and other consensual rights
and to receive and hold as Pledged Collateral such dividends,
interest and other distributions.
(iii) All dividends, interest and other distributions
which are received by Debtor contrary to the provisions of
this Section 4.16(b) shall be received in trust for the
benefit of Secured Party, shall be segregated from other funds
of Debtor and shall be forthwith paid over to Secured Party as
Collateral in the same form as so received (with any necessary
endorsement).
(iv) Debtor shall execute and deliver (or cause to be
executed and delivered) to Secured Party all such proxies and
other instruments as Secured Party may request for the purpose
of enabling Secured Party to exercise the voting and other
rights which it is entitled to exercise pursuant to this
Section 4.16(b) and to receive the dividends, interest and
other distributions which it is entitled to receive and retain
pursuant to this Section 4.16(b). The foregoing shall not in
any way limit Secured Party's power and authority granted
pursuant to Section 5.1.
Section 4.17 Transfers and Other Liens; Additional Investments.
(a) Except as may be expressly permitted by the terms of the Credit
Agreement, Debtor shall not grant any option with respect to, exchange, sell or
otherwise dispose of any of the Collateral or create or permit to exist any Lien
upon or with respect to any of the Collateral except for the Liens created
hereby and Permitted Liens.
(b) Debtor agrees that it will (i) cause its U.S. Subsidiaries not to
issue any Capital Stock, notes or other securities or instruments in addition to
or in substitution for any of the Pledged Shares, except (A) with prior written
notice to Secured Party, to Debtor or (B) with the written consent of Secured
Party, to any Person other than Debtor, (ii) pledge hereunder, immediately upon
its acquisition (directly or indirectly) thereof, any and all such Capital
Stock, notes or other securities or instruments issued to Debtor or received in
addition to or substituted for any of the Pledged Collateral, and (iii) promptly
(and in any event within three Business Days) deliver to Secured Party an
Amendment, duly executed by Debtor, in substantially the form of Exhibit D (an
"Amendment"), in respect of such Capital Stock, notes or other
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securities or instruments, together with all certificates, notes or other
securities or instruments representing or evidencing the same. Debtor hereby (1)
authorizes Secured Party to attach each Amendment to this Agreement, and (2)
agrees that all such Capital Stock, notes or other securities or instruments
listed on any Amendment delivered to Secured Party shall for all purposes
hereunder constitute Pledged Collateral.
Section 4.18 Possession; Reasonable Care. Regardless of whether a
Default or an Event of Default has occurred or is continuing, Secured Party
shall have the right to hold in its possession all Instruments, Chattel Paper
and Pledged Collateral pledged, assigned or transferred hereunder and from time
to time constituting a portion of the Collateral. Secured Party may, from time
to time, in its sole discretion, appoint one or more agents (which in no case
shall be Debtor or an Affiliate of Debtor) to hold physical custody, for the
account of Secured Party, of any or all of the Collateral. Secured Party shall
be deemed to have exercised reasonable care in the custody and preservation of
the Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which Secured Party accords its own Property, it
being understood that Secured Party shall not have any responsibility for (a)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
Secured Party has or is deemed to have knowledge of such matters, or (b) taking
any necessary steps to preserve rights against any parties with respect to any
Collateral. Following the occurrence and during the continuation of an Event of
Default, Secured Party shall be entitled to take possession of the Collateral.
Section 4.19 Acknowledgment of Collateral Assignment of Deposit
Accounts. Debtor shall deliver to Secured Party, within 45 days of the execution
hereof and at any time as Secured Party may request thereafter, acknowledgment
by each financial institution in which any Deposit Account is held or maintained
that the collateral assignment of such Deposit Account has been recorded in the
books and records of such financial institution, and that Secured Party shall
have dominion and control over such Deposit Account, such acknowledgment to be
in form and substance satisfactory to Secured Party.
Section 4.20 Statement of Account on Deposit Accounts. Debtor shall,
from time to time upon written request of Secured Party, provide to Secured
Party a copy of any requested statement of account on any Deposit Account
received by Debtor from the financial institution in which a Deposit Account is
held or maintained. At Secured Party's request, Debtor will use its reasonable
efforts to make such arrangements as are necessary or appropriate in order to
enable Secured Party to access such information by inquiry of an officer or
other representative of any such financial institution or via any automated
information system which may be maintained by such financial institution.
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ARTICLE 5
Rights of Secured Party
Section 5.1 Power of Attorney. Debtor hereby irrevocably constitutes
and appoints Secured Party and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the name of Debtor or in its own name, to take, after the
occurrence and during the continuance of an Event of Default, any and all action
and to execute any and all documents and instruments which Secured Party at any
time and from time to time deems necessary or desirable to accomplish the
purposes of this Agreement and, without limiting the generality of the
foregoing, Debtor hereby gives Secured Party the power and right on behalf of
Debtor and in its own name to do any of the following after the occurrence and
during the continuance of an Event of Default, without notice to or the consent
of Debtor:
(a) to demand, sue for, collect or receive, in the name of
Debtor or in its own name, any money or Property at any time payable or
receivable on account of or in exchange for any of the Collateral and,
in connection therewith, endorse checks, notes, drafts, acceptances,
money orders, documents of title or any other instruments for the
payment of money under the Collateral or any policy of insurance set
forth, specified or required by the Credit Agreement;
(b) to pay or discharge taxes, Liens or other encumbrances
levied or placed on or threatened against the Collateral;
(c) to notify post office authorities to change the address
for delivery of mail of Debtor to an address designated by Secured
Party and to receive, open and dispose of mail addressed to Debtor;
(d) (i) to direct account debtors and any other parties liable
for any payment under any of the Collateral to make payment of any and
all monies due and to become due thereunder directly to Secured Party
or as Secured Party shall direct, provided, that Secured Party shall
use reasonable efforts to give Debtor prior notice of the form of any
such communication and Debtor shall have one (1) business day from
receipt of such notice to provide input as to the form of such
communication, which input may be accepted or rejected in the
reasonable discretion of Secured Party; (ii) to receive payment of and
receipt for any and all monies, claims and other amounts due and to
become due at any time in respect of or arising out of any Collateral;
(iii) to sign and endorse any invoices, freight or express bills, bills
of lading, storage or warehouse receipts, drafts against debtors,
assignments, proxies, stock powers, verifications and notices in
connection with accounts and other documents relating to the
Collateral; (iv) to commence and prosecute any suit, action or
proceeding at law or in equity in any court of competent jurisdiction
to collect the Collateral or any part
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thereof and to enforce any other right in respect of any Collateral;
(v) to defend any suit, action or proceeding brought against Debtor
with respect to any Collateral; (vi) to settle, compromise or adjust
any suit, action or proceeding described above and, in connection
therewith, to give such discharges or releases as Secured Party may
deem appropriate; (vii) to exchange any of the Collateral for other
Property upon any merger, consolidation, reorganization,
recapitalization or other readjustment of the issuer thereof and, in
connection therewith, deposit any of the Collateral with any committee,
depositary, transfer agent, registrar or other designated agency upon
such terms as Secured Party may determine; (viii) to add or release any
guarantor, indorser, surety or other party to any of the Collateral;
(ix) to renew, extend or otherwise change the terms and conditions of
any of the Collateral; (x) to grant or issue any exclusive or
nonexclusive license under or with respect to any of the Intellectual
Property; (xi) to endorse Debtor's name on all applications, documents,
papers and instruments necessary or desirable in order for Secured
Party to use any of the Intellectual Property; (xii) to make, settle,
compromise or adjust any claims under or pertaining to any of the
Collateral (including, without limitation, claims under any policy of
insurance); and (xiii) to sell, transfer, pledge, convey, make any
agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though Secured Party were the absolute owner
thereof for all purposes, and to do, at Secured Party's option and
Debtor's expense, at any time, or from time to time, all acts and
things which Secured Party deems necessary to protect, preserve,
maintain or realize upon the Collateral and Secured Party's security
interest therein.
This power of attorney is a power coupled with an interest and shall be
irrevocable until this Agreement is terminated in accordance with its terms.
Secured Party shall be under no duty to exercise or withhold the exercise of any
of the rights, powers, privileges and options expressly or implicitly granted to
Secured Party in this Agreement, and shall not be liable for any failure to do
so or any delay in doing so. Neither Secured Party nor any Person designated by
Secured Party shall be liable for any act or omission or for any error of
judgment or any mistake of fact or law except for gross negligence or willful
misconduct or as set forth in Section 4.18. This power of attorney is conferred
on Secured Party solely to protect, preserve, maintain and realize upon its
security interest in the Collateral. Secured Party shall not be responsible for
any decline in the value of the Collateral and shall not be required to take any
steps to preserve rights against prior parties or to protect, preserve or
maintain any Lien given to secure the Collateral.
Section 5.2 Set-off. Each of Secured Party and the Lenders shall, after
the occurrence and during the continuation of an Event of Default, have the
right to set-off and apply against the Obligations, at any time and without
notice to Debtor, any and all deposits (general or special, time or demand,
provisional or final) or other sums at any time credited by or owing from any of
Secured Party or the Lenders to Debtor and although such Obligations may be
unmatured. The rights and remedies of Secured Party and the Lenders hereunder
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that Secured Party and the Lenders may have.
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Section 5.3 [intentionally omitted]
Section 5.4 Performance by Secured Party. If Debtor shall fail to
perform any covenant or agreement contained in this Agreement, Secured Party may
perform or attempt to perform such covenant or agreement on behalf of Debtor. In
such event, Debtor shall, at the request of Secured Party, promptly pay any
amount expended by Secured Party in connection with such performance or
attempted performance to Secured Party, together with interest thereon at the
Default Rate from and including the date of such expenditure to but excluding
the date such expenditure is paid in full. Notwithstanding the foregoing, it is
expressly agreed that Secured Party shall not have any liability or
responsibility for the performance of any indebtedness, liability or obligation
of Debtor under this Agreement.
Section 5.5 License. If no Event of Default shall have occurred and be
continuing, Debtor shall have the exclusive, non-transferable right and license
to use the Intellectual Property in the ordinary course of business and the
exclusive right to grant to other Persons licenses and sublicenses with respect
to the Intellectual Property for full and fair consideration. Debtor agrees not
to sell or assign its interest in, or grant any sublicense under, the license
granted under this Section 5.5 without the prior written consent of Secured
Party.
Section 5.6 Change of Depository. In the event of the termination by
any financial institution in which any Deposit Account is maintained of any
agreement with or for the benefit of Secured Party, or if any such financial
institution shall fail to comply with any material provisions of any such
agreement or any instructions of Secured Party in accordance with any such
agreement or this Agreement, or if Secured Party determines in its reasonable
discretion that the financial condition of any such financial institution has
materially deteriorated, Debtor agrees to transfer the affected Deposit
Account(s) to another financial institution reasonably acceptable to Secured
Party and cause such substitute financial institution to execute such agreements
as Secured Party may require, in form and substance acceptable to Secured Party,
to ensure that Secured Party has a perfected, first priority collateral
assignment of or security interest in the Deposit Account(s) held with such
substitute financial institution. If any affected Deposit Account is a lockbox
account, Debtor agrees to notify its account debtors promptly to remit all
payments which were being sent to the terminated Deposit Account directly to the
substitute Deposit Account.
Section 5.7 Collection of Deposit Accounts. After the occurrence and
during the continuation of an Event of Default, upon written demand from Secured
Party to any financial institution in which any of the Deposit Accounts are
maintained, each such financial institution is hereby authorized and directed by
Debtor to make payment directly to Secured Party of the funds in or credited to
the Deposit Accounts, or such part thereof as Secured Party may request, and
each such financial institution shall be fully protected in relying upon the
written statement of Secured Party that an Event of Default has occurred and is
continuing and that the Deposit Accounts are at the time
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of such demand assigned hereunder and that Secured Party is entitled to payment
of the Obligations therefrom. Secured Party's receipt for sums paid to it
pursuant to such demand shall be a full and complete release, discharge and
acquittance to the depository or other financial institution making such payment
to the extent of the amount so paid. Debtor hereby authorizes Secured Party,
upon (a) the occurrence and during the continuation of an Event of Default
consisting of Debtor's failure to make payment of any of the Obligations, or any
part thereof, or (b) any acceleration of the maturity of the Obligations upon
the occurrence of any Event of Default, each as provided in the Credit
Agreement, including, without limitation pursuant to Section 11.1(a) or Section
11.2(a) of the Credit Agreement, (i) to withdraw, collect and receipt for any
and all funds, securities or other investments on deposit in or payable on the
Deposit Accounts, (ii) on behalf of Debtor to endorse the name of Debtor upon
any checks, drafts or other instruments payable to Debtor evidencing payment on
the Deposit Accounts, and (iii) to surrender or present for notation of
withdrawal the passbook, certificate or other documents issued to Debtor in
connection with the Deposit Accounts. No power granted herein to Secured Party
by Debtor shall terminate upon any disability of Debtor.
ARTICLE 6
Default
Section 6.1 Rights and Remedies. If an Event of Default shall have
occurred and be continuing, Secured Party shall have the following rights and
remedies (subject to Section 6.3):
(a) In addition to all other rights and remedies granted to
Secured Party in this Agreement or in any other Loan Document or by
applicable law, Secured Party shall have all of the rights and remedies
of a secured party under the UCC (whether or not the UCC applies to the
affected Collateral) and Secured Party may also, without notice except
as specified below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange, broker's board
or at any of Secured Party's offices or elsewhere, for cash, on credit
or for future delivery, and upon such other terms as Secured Party may
deem commercially reasonable or otherwise as may be permitted by law.
Without limiting the generality of the foregoing, Secured Party may (i)
without demand or notice to Debtor, collect, receive or take possession
of the Collateral or any part thereof and for that purpose Secured
Party may enter upon any premises on which the Collateral is located
and remove the Collateral therefrom or render it inoperable, and/or
(ii) sell, lease or otherwise dispose of the Collateral, or any part
thereof, in one or more parcels at public or private sale or sales, at
Secured Party's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as Secured Party may deem
commercially reasonable or otherwise as may be permitted by law.
Secured Party shall have the right at any public sale or sales, and, to
the extent permitted by applicable law, at any private sale or sales,
to bid (which bid may be, in whole or in part, in the form of
cancellation of indebtedness) and become a purchaser of the Collateral
or any part thereof free of any right or equity of redemption on the
part of Debtor,
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which right or equity of redemption is hereby expressly waived and
released by Debtor. Upon the request of Secured Party, Debtor shall
assemble the Collateral and make it available to Secured Party at any
place designated by Secured Party that is reasonably convenient to
Debtor and Secured Party. Debtor agrees that Secured Party shall not be
obligated to give more than five days prior written notice of the time
and place of any public sale or of the time after which any private
sale may take place and that such notice shall constitute reasonable
notice of such matters. Secured Party shall not be obligated to make
any sale of Collateral if it shall determine not to do so, regardless
of the fact that notice of sale of Collateral may have been given.
Secured Party may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same
was so adjourned. Debtor shall be liable for all expenses of retaking,
holding, preparing for sale or the like, and all attorneys' fees, legal
expenses and other costs and expenses incurred by Secured Party in
connection with the collection of the Obligations and the enforcement
of Secured Party's rights under this Agreement. Debtor shall remain
liable for any deficiency if the Proceeds of any sale or other
disposition of the Collateral applied to the Obligations are
insufficient to pay the Obligations in full. Secured Party may apply
the Collateral against the Obligations in such order and manner as
Secured Party may elect in its sole discretion. Debtor waives all
rights of marshaling, valuation and appraisal in respect of the
Collateral. Any cash held by Secured Party as Collateral and all cash
proceeds received by Secured Party in respect of any sale of,
collection from or other realization upon all or any part of the
Collateral may, in the discretion of Secured Party, be held by Secured
Party as collateral for, and then or at any time thereafter applied in
whole or in part by Secured Party against, the Obligations in such
order as Secured Party shall select. Any surplus of such cash or cash
proceeds and interest accrued thereon, if any, held by Secured Party
and remaining after payment in full of all the Obligations shall be
paid over to Debtor or to whomsoever may be lawfully entitled to
receive such surplus; provided that Secured Party shall have no
obligation to invest or otherwise pay interest on any amounts held by
it in connection with or pursuant to this Agreement.
(b) Secured Party may cause any or all of the Collateral held
by it to be transferred into the name of Secured Party or the name or
names of Secured Party's nominee or nominees.
(c) Secured Party may exercise any and all rights and remedies
of Debtor under or in respect of the Collateral, including, without
limitation, any and all rights of Debtor to demand or otherwise require
payment of any amount under, or performance of any provision of, any of
the Collateral and any and all voting rights and corporate powers in
respect of the Collateral.
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(d) Secured Party may collect or receive all 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.
(e) On any sale of the Collateral, Secured Party is hereby
authorized to comply with any limitation or restriction with which
compliance is necessary, in the view of Secured Party's counsel, in
order to avoid any violation of applicable law or in order to obtain
any required approval of the purchaser or purchasers by any applicable
Governmental Authority.
(f) For purposes of enabling Secured Party to exercise its
rights and remedies under this Section 6.1 and enabling Secured Party
and its successors and assigns to enjoy the full benefits of the
Collateral, Debtor hereby grants to Secured Party an irrevocable,
nonexclusive license (exercisable without payment of royalty or other
compensation to Debtor) to use, assign, license or sublicense any of
the Intellectual Property that constitutes a part of the Collateral,
including in such license reasonable access to all media in which any
of the licensed items may be recorded or stored and all computer
programs used for the completion or printout thereof. This license
shall also inure to the benefit of all successors, assigns and
transferees of Secured Party.
(g) Secured Party may require that Debtor assign all of its
right, title and interest in and to the Intellectual Property or any
part thereof to Secured Party or such other Person as Secured Party may
designate pursuant to documents satisfactory to Secured Party.
Section 6.2 Registration Rights, Private Sales, Etc.
(a) If Secured Party shall determine to exercise its right to
sell all or any of the Pledged Shares pursuant to Section 6.1, Debtor
agrees that, upon the request of Secured Party (which request may be
made by Secured Party in its sole discretion), Debtor will, at its own
expense:
(i) execute and deliver, and use its best efforts to
cause each issuer of any of the Pledged Shares contemplated to
be sold and the directors and officers thereof to execute and
deliver, all such agreements, documents and instruments, and
do or cause to be done all such other acts and things, as may
be reasonably necessary or, in the reasonable opinion of
Secured Party, advisable to register such Pledged Shares under
the provisions of the Securities Act (as hereinafter defined)
and to cause the registration statement relating thereto to
become effective and to remain effective for such period as
prospectuses are required by law to be furnished and to make
all amendments and supplements thereto and to the related
prospectus which, in the opinion of Secured Party, are
necessary or advisable, all in conformity with the
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requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission
applicable thereto;
(ii) if reasonably necessary or, in the reasonable
opinion of Secured Party, advisable, use its best efforts to
qualify such Pledged Shares under all applicable state
securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of such Pledged Shares, as
requested by Secured Party;
(iii) if reasonably necessary or, in the reasonable
opinion of Secured Party, advisable, cause each such issuer to
make available to its security holders, as soon as
practicable, an earnings statement which will satisfy the
provisions of Section 11(a) of the Securities Act;
(iv) do or cause to be done all such other acts and
things as may be reasonably necessary or appropriate to make
such sale of the Pledged Shares or any part thereof valid and
binding and in compliance with applicable law; and
(v) bear all reasonable costs and expenses, including
reasonable attorneys' fees, of carrying out its obligations
under this Section 6.2.
(b) Debtor recognizes that Secured Party may be unable to
effect a public sale of any or all of the Pledged Shares by reason of
certain prohibitions contained in the Securities Act of 1933, as
amended from time to time (the "Securities Act") and applicable state
securities laws but may be compelled to resort to one or more private
sales thereof to a restricted group of purchasers who will be obliged
to agree, among other things, to acquire such Pledged Shares for their
own account for investment and not with a view to the distribution or
resale thereof. Debtor acknowledges and agrees that any such private
sale may result in prices and other terms less favorable to the seller
than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall, to the extent
permitted by law, be deemed to have been made in a commercially
reasonable manner. Neither Secured Party nor the Lenders shall be under
any obligation to delay a sale of any of the Pledged Shares for the
period of time necessary to permit the issuer of such securities to
register such securities under the Securities Act or under any
applicable state securities laws, even if such issuer would agree to do
so.
(c) Debtor further agrees to do or cause to be done, to the
extent that Debtor may do so under applicable law, all such other acts
and things as may be necessary to make such sales or resales of any
portion or all of the Pledged Shares valid and binding and in
compliance with any and all applicable laws, regulations, orders,
writs, injunctions, decrees or awards of any and all courts,
arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at Debtor's
expense. Debtor
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further agrees that a breach of any of the covenants contained in this
Section 6.2 will cause irreparable injury to Secured Party and the
Lenders and that Secured Party and the Lenders have no adequate remedy
at law in respect of such breach and, as a consequence, agrees that
each and every covenant contained in this Section 6.2 shall be
specifically enforceable against Debtor, and Debtor hereby waives and
agrees, to the fullest extent permitted by law, not to assert as a
defense against an action for specific performance of such covenants
that (i) Debtor's failure to perform such covenants will not cause
irreparable injury to Secured Party and the Lenders or (ii) Secured
Party and the Lenders have an adequate remedy at law in respect of such
breach. Debtor further acknowledges the impossibility of ascertaining
the amount of damages which would be suffered by Secured Party and the
Lenders by reason of a breach of any of the covenants contained in this
Section 6.2 and, consequently, agrees that, if Debtor shall breach any
of such covenants and Secured Party or any Lender shall sue for damages
for such breach, Debtor shall pay to Secured Party or such Lender, as
liquidated damages and not as a penalty, an aggregate amount equal to
the value of the Pledged Shares on the date Secured Party or such
Lender shall demand compliance with this Section 6.2.
(d) DEBTOR HEREBY AGREES TO INDEMNIFY, PROTECT AND SAVE
HARMLESS SECURED PARTY AND THE LENDERS AND ANY CONTROLLING PERSONS
THEREOF WITHIN THE MEANING OF THE SECURITIES ACT FROM AND AGAINST ANY
AND ALL LIABILITIES, SUITS, CLAIMS, COSTS AND EXPENSES (INCLUDING
REASONABLE COUNSEL FEES AND DISBURSEMENTS) ARISING UNDER THE SECURITIES
ACT, THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, ANY
APPLICABLE STATE SECURITIES STATUTE, OR AT COMMON LAW, OR PURSUANT TO
ANY OTHER APPLICABLE LAW IN CONNECTION WITH THE SALE OF ANY SECURITIES
OR THE EXERCISE OF ANY OTHER RIGHT OR REMEDY OF SECURED PARTY, INSOFAR
AS SUCH LIABILITIES, SUITS, CLAIMS, COSTS AND EXPENSES ARISE OUT OF, OR
ARE BASED UPON, ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF A
MATERIAL FACT MADE BY ANY LOAN PARTY IN CONNECTION WITH THE SALE OR
PROPOSED SALE OF ANY PART OF THE COLLATERAL, OR ARISES OUT OF, OR IS
BASED UPON, THE OMISSION OR ALLEGED OMISSION BY ANY LOAN PARTY TO STATE
A MATERIAL FACT REQUIRED TO BE STATED IN CONNECTION THEREWITH OR
NECESSARY TO MAKE THE STATEMENTS MADE NOT MISLEADING; PROVIDED,
HOWEVER, THAT DEBTOR SHALL NOT BE LIABLE IN ANY SUCH CASE TO THE EXTENT
THAT ANY SUCH LIABILITIES, SUITS, CLAIMS, COSTS AND EXPENSES ARISE OUT
OF, OR ARE BASED UPON, ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT
OR OMISSION OR ALLEGED OMISSION MADE IN RELIANCE UPON AND IN CONFORMITY
WITH WRITTEN INFORMATION FURNISHED TO DEBTOR BY SECURED PARTY OR ANY
LENDER SPECIFICALLY FOR
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INCLUSION IN CONNECTION THEREWITH. THE FOREGOING INDEMNITY AGREEMENT IS
IN ADDITION TO ANY INDEBTEDNESS, LIABILITY OR OBLIGATION THAT DEBTOR
MAY OTHERWISE HAVE TO SECURED PARTY, ANY LENDER OR ANY CONTROLLING
PERSON THEREOF.
Section 6.3 Compliance with Laws. Notwithstanding anything to the
contrary contained in any Loan Document or in any other agreement, instrument or
document executed by Debtor and delivered to Secured Party, Secured Party will
not take any action pursuant to this Agreement or any document referred to
herein which would constitute or result in any assignment of any FCC license or
any change of control (whether de jure or de facto) of Debtor if such assignment
of any FCC license or change of control would require, under then existing law,
the prior approval of the FCC or any other Governmental Authority without first
obtaining such prior approval of the FCC or other Governmental Authority. Upon
the occurrence of an Event of Default or at any time thereafter during the
continuance thereof, subject to the terms and conditions of this Agreement,
Debtor agrees to take any action which Secured Party may request in order to
obtain from the FCC or such other Governmental Authority such approval as may be
necessary to enable Secured Party to exercise and enjoy the full rights and
benefits granted to Secured Party by this Agreement and the other documents
referred to above, including specifically, at the cost and expense of Debtor,
the use of Debtor's best efforts to assist in obtaining approval of the FCC or
such other Governmental Authority for any action or transaction contemplated by
this Agreement for which such approval is or shall be required by law, and
specifically, without limitation, upon request, to prepare, sign and file with
the FCC or such other Governmental Authority the assignor's or transferor's
portion of any application or applications for consent to the assignment of
license or transfer of control necessary or appropriate under the FCC's or such
other Governmental Authority's rules and regulations for approval of (a) any
sale or other disposition of the Collateral by or on behalf of Secured Party, or
(b) any assumption by Secured Party of voting rights in the Collateral effected
in accordance with the terms of this Agreement.
ARTICLE 7
Miscellaneous
Section 7.1 No Waiver; Cumulative Remedies. No failure on the part of
Secured Party to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided for in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
Section 7.2 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of Debtor and Secured Party and their respective
heirs, successors and permitted assigns,
35
<PAGE>
except that Debtor may not assign any of its rights, indebtedness, liabilities
or obligations under this Agreement without the prior written consent of Secured
Party.
Section 7.3 Entire Agreement; Amendment . THIS AGREEMENT EMBODIES THE
FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDES ANY AND ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER
WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO. The provisions of this Agreement may be
amended or waived only by an instrument in writing signed by the parties hereto,
except as provided in Section 4.15(a).
Section 7.4 Notices. All notices and other communications provided for
in this Agreement shall be given or made, and shall be deemed effective, as
provided in the Credit Agreement.
Section 7.5 Governing Law; Submission to Jurisdiction; Service of
Process. EXCEPT AS MAY BE EXPRESSLY STATED TO THE CONTRARY IN THE CREDIT
AGREEMENT, THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES) AND EACH OF THE PARTIES HERETO CHOOSE THE LAWS OF THE STATE OF NEW
YORK TO GOVERN THIS AGREEMENT PURSUANT TO N.Y. GEN. OBLIG. LAW SECTION 5-1401
(CONSOL. 1995) AND APPLICABLE LAWS OF THE U.S. DEBTOR HEREBY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF EACH OF (A) THE U.S. DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, (B) ANY NEW YORK STATE COURT SITTING IN NEW YORK,
NEW YORK, (C) THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, AND
(D) ANY TEXAS STATE COURT SITTING IN DALLAS COUNTY, TEXAS, FOR THE PURPOSES OF
ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. DEBTOR
IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO DEBTOR AT ITS ADDRESS FOR
NOTICES SET FORTH UNDERNEATH ITS SIGNATURE HERETO. DEBTOR HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH
36
<PAGE>
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 7.6 Headings. The headings, captions and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 7.7 Survival of Representations and Warranties. All
representations and warranties made in this Agreement or in any certificate
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and no investigation by Secured Party shall affect the
representations and warranties or the right of Secured Party to rely upon them.
Section 7.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 7.9 Waiver of Bond. In the event Secured Party seeks to take
possession of any or all of the Collateral by judicial process, Debtor hereby
irrevocably waives any bonds and any surety or security relating thereto that
may be required by applicable law as an incident to such possession, and waives
any demand for possession prior to the commencement of any such suit or action.
Section 7.10 Severability. Any provision of this Agreement which is
determined by a court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.11 Construction. Debtor and Secured Party acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement with its legal counsel and that
this Agreement shall be construed as if jointly drafted by Debtor and Secured
Party.
Section 7.12 Termination. If all of the Obligations shall have been
paid and performed in full and all Commitments of the Lenders shall have expired
or terminated, Secured Party shall, upon the written request of Debtor, promptly
execute and deliver to Debtor a proper instrument or instruments acknowledging
the release and termination of the security interests created by this Agreement,
and shall duly assign and deliver to Debtor (without recourse and without any
representation or warranty except as may be set forth in Section 4.18 and
Section 5.1) such of the Collateral as may be in the possession of Secured Party
and has not previously been sold or otherwise applied pursuant to this
Agreement.
37
<PAGE>
Section 7.13 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF SECURED
PARTY IN THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT THEREOF.
38
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
DEBTOR:
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By: /s/ Steven M. Gallant
---------------------------
Name: Steven M. Gallant
Title: President
Address for Notices:
-------------------
12851 Worldgate Drive
Herndon, Virginia 20170
Attention: Chief Financial Officer
Telephone: (703) 234-8000
Telecopy: (703) 234-8309
with a copy (which shall not constitute notice) to:
717 Office Parkway
St. Louis, Missouri 63141
Attention: General Counsel
Telephone: (314) 468-7500
Telecopy: (314) 468-7550
SECURED PARTY:
-------------
NORTEL NETWORKS INC.,
as Administrative Agent
By: /s/ Mitchell L. Stone
--------------------------
Name: Mitchell L. Stone
Title: Director, Customer Finance
39
<PAGE>
Address for Notices:
-------------------
Nortel Networks Inc.
Mail Stop 991 15 A40
2221 Lakeside Boulevard
Richardson, Texas 75082-4399
Attention: Mitchell L. Stone
Director, Customer Finance
Telephone: 972-684-0395
Telecopy: 972-684-3679
and
Nortel Networks Inc.
Mail Stop 468/05/B40
2100 Lakeside Blvd.
Richardson, Texas 75082-4399
Attention: Kimberly Poe
Director, Loan Administration
Telephone: 972-684-7687
Telecopy: 972-685-3613
40
<PAGE>
STATE OF MISSOURI ss.
ss.
COUNTY OF JEFFERSON ss.
This instrument was acknowledged before me this 13th day of September,
2000, by Steven M. Gallant, the President of GLOBAL NETWORK ASSETS, LLC, a
Delaware limited liability company, on behalf of such corporation.
[SEAL] /s/ Cheryl L. Butcher
---------------------
Notary Public in and for the State of Missouri
Print Name: Cheryl L. Butcher
My commission expires: 10/11/01
STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
This instrument was acknowledged before me this ____ day of September,
2000, by Mitchell L. Stone, the Director, Customer Finance of NORTEL NETWORKS
INC., a Delaware corporation, on behalf of such corporation.
[SEAL] /s/ Dianna L. Irish
-------------------
Notary Public in and for the State of Texas
Print Name: Dianna L. Irish
My commission expires: 07/05/02
41
<PAGE>
SCHEDULE 1
----------
INTELLECTUAL PROPERTY
<TABLE>
<CAPTION>
===================================================================================================================================
PATENTS
-----------------------------------------------------------------------------------------------------------------------------------
Owner of Record Country of Origin Patent Application or Registration or Issue Date Expiration
Identification Registration No. Filing Date (if known) Dat
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
None.
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
PATENT LICENSES
-----------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Patent Date of Agreement
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
None
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
TRADEMARKS
-----------------------------------------------------------------------------------------------------------------------------------
Owner of record Country of Trademark Application or Filing Expiration Goods
Registration Registration No. Date Date
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
None.
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
TRADEMARK LICENSES
-----------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date of Agreement
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
None.
===================================================================================================================================
</TABLE>
42
<PAGE>
<TABLE>
<CAPTION>
===================================================================================================================================
COPYRIGHTS
===================================================================================================================================
Owner of Record Country of Copyright Applications or Registration or Expiration Date Title
Registration Registration No. Filing Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
None.
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
===================================================================================================================================
COPYRIGHT LICENSES
===================================================================================================================================
Name of Agreement Copyright Date of Approval
===================================================================================================================================
<S> <C> <C>
None.
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
</TABLE>
============================================================================
SERVICE MARKS
============================================================================
Service Mark
============================================================================
None.
----------------------------------------------------------------------------
============================================================================
43
<PAGE>
SCHEDULE 2
DEPOSIT ACCOUNTS AND CERTAIN INVESTMENT PROPERTY
None.
44
<PAGE>
SCHEDULE 3
PLEDGED SHARES
<TABLE>
<CAPTION>
=====================================================================================================
Percentage of
Number of Outstanding
Class of Shares or Shares or
Issuer Capital Stock Certificate No(s). Par Value Interests Interests
=====================================================================================================
<S> <C> <C> <C> <C> <C>
None.
-----------------------------------------------------------------------------------------------------
=====================================================================================================
</TABLE>
45
<PAGE>
SCHEDULE 4
LOCATIONS OF INVENTORY AND EQUIPMENT
11 N. Pearl St
Albany, NY 12207
3340 Peachtree Rd NE
Suite 200
Atlanta, GA 30326
1190 Allene Ave SW Atlanta, GA
30310
621 Pleasant Valley North
Austin, TX 78702
900 Fleet Street
Baltimore, MD 21202
109 Brookline Ave
Boston, MA 02215
99 Summer St., 12 Fl
Boston, MA 02110
Main Place Tower
350 Main St., 19th Fl.
Buffalo, NY 14202
Avnet in Arizona
7300 W Detroit St
Chandler, AZ 85226
113 North Myers, 3rd Floor
Charlotte, NC 28202
10 S. Lasalle St., Suite 2416
24th Floor Comm Rm
Chicago, IL 60603
46
<PAGE>
600 S. Federal, Suite 400
Chicago, IL 60607
4200 West 40th Street Chicago, IL
60632
105 E. 4th Street, Suite 150C
Cincinnati, OH 45202
1350 Euclid Ave, Suite 150
Cleveland, OH 44115
266 North 5th St.
Columbus, OH 43215
760 Office Parkway
Creve Coeur, MO 63141
13601 Preston Rd
Dallas, TX 75240
600 N. Pearl St., Suite 800
Dallas, TX 75201
4518 So. Miami Blvd.
Durham, NC 27703
6050 Race Rd
Elkridge, MD 21227
8765 East Orchard Rd, Suite 708
Englewood, CO 80111
1400 East Presido
Ft. Worth, TX 76102
301 S. Elm St, Suite 650
Greensboro, NC 27401
587 McDonnell Blvd.
Hazelwood, MO 63042
47
<PAGE>
12851 Worldgate Dr.
Herndon, VA 20170
1301 Fannin St, Suite 1075
Houston, TX 77002
1301 Fannin, 12 Fl.
Houston, TX 77002
6535-43 Hillsdale Ct.
Indianapolis, IN 46250
17770 Cartwright Rd.
Irvine, CA 92614
6620 S Southpoint, Dr Suite 100
Jacksonville, FL 32216
324 E. 11th Colo Room
Kansas City, MO 64106
7185 Pollock Dr. Bldg 19
Las Vegas, NV 89119
3080 Ogden Ave.
Lisle, IL 60532
515 S. Flower, Suite 1000
Los Angeles, CA 90071
700 S Flower St., 3rd Floor
Los Angeles, CA 90017
332 West Broadway, Suite 225
Louisville, KY 40202
1 NE 1st Street, 5th Floor
Miami, FL 33132
200 S Biscayne Blvd, 9th Fl.
Miami, FL 33131
48
<PAGE>
511 Eleventh Avenue
Suite 420 4th Floor
Minneapolis, MN 55415
1 American Center, Ste 1300
3100 West End Ave.
Nashville, TN 37203
Sprint Kansas City
500 Sumner Way
New Century, KS 66031
1 State Street Plaza
22nd Fl Data Comm. Rm.
New York, NY 10004
67 Broad St.
New York, NY 10004
60 Hudson 13th Fl.
New York, NY 10013
111-8th Ave 5th Fl.
New York, NY 10013
165 Halsey St. 5th Floor
Newark, NJ 07102
1724 Lovitt Ave
Norfolk, VA 23504
125 St. Paul Street
Norfolk, VA 23510
Bank One Building
100 N. Broadway, Suite 2200
Oklahoma City, OK 73102
100 S. Lucerne Circle West
Suite 202
Orlando, FL 32801
49
<PAGE>
2405 Bird St
Oroville, CA 95965
2130 Arch St.
3rd Floor
Philadelphia, PA 19103
120 E. Van Buren St.
2nd floor West
Phoenix, AZ 85004
2500 Allegheny Center
Office Concourse, 2nd Floor
Pittsburgh, PA 15212
10340 SW Nimbus
Portland OR 97208
3 Regency Plaza
Network Op Center
Providence, RI 02903
282 South Sycamore
Rialto, CA 92376
701 E Cary St
Richmond, VA 23219
1411 I St.
Sacramento, CA 95814
2055 Westport Center Drive
St. Louis, MO 63141
900 Walnut
St. Louis, MO 63102
717 Office Parkway
St. Louis, MO 63141
50
<PAGE>
847 Earl St.
St. Paul, MN 55106
118 S 1000 West
Salt Lake City, UT 84104
323 Broadway St., #200
San Antonio, TX 78205
San Diego Tech Center
9645 Scranton
San Diego, CA 92121
444 Market St., 13th Floor
1 Front St.
San Francisco, CA 94111
55 S. Market
San Jose, CA 95113
3450 Garrett Dr.
Santa Clara, CA 95054
Westin Bldg.
2001 6TH Ave. Suite 2700
Seattle, WA 98121
4000 Town Center 1st Floor
Southfield, MI 48075
26 Fahey St.,
Stamford, CT 06907
655 N Franklin, 10th Fl.
Tampa, FL 33602
705 South Elgin St., 1st Floor
Tulsa, OK 74120
51
<PAGE>
1411 K Street NW
Suite 1402, 14th Fl.
Washington, DC 20036
1331 F St. NW, 2nd Floor
Washington, DC 20004
52
<PAGE>
SCHEDULE 5
TRADE AND OTHER NAMES
None.
<PAGE>
SCHEDULE 6
JURISDICTIONS FOR FILING
UCC-1 FINANCING STATEMENTS
GLOBAL
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------
Jurisdiction CC-1 Financing Statement UCC-1 Financing Statement
Transmitting Utility
-------------------------------------------------------------------------------------------------------
<S> <C> <C>
1. Arizona Secretary of State X X
-------------------------------------------------------------------------------------------------------
2. California Secretary of State X X
-------------------------------------------------------------------------------------------------------
3. Colorado Secretary of State X X
-------------------------------------------------------------------------------------------------------
4. Connecticut Secretary of State X X
-------------------------------------------------------------------------------------------------------
5. Delaware Secretary of State X X
-------------------------------------------------------------------------------------------------------
6. District of Columbia Recorder of X X
Deeds
-------------------------------------------------------------------------------------------------------
7. Florida Department of State X X
-------------------------------------------------------------------------------------------------------
8. Fulton County, Georgia X X
-------------------------------------------------------------------------------------------------------
9. Illinois Secretary of State X X
-------------------------------------------------------------------------------------------------------
10. Indiana Secretary of State X X
-------------------------------------------------------------------------------------------------------
11. Marion County, Indiana X N/A
-------------------------------------------------------------------------------------------------------
12. Kansas Secretary of State X X
-------------------------------------------------------------------------------------------------------
13. Kentucky Secretary of State X X
-------------------------------------------------------------------------------------------------------
14. Jefferson County, Kentucky X N/a
-------------------------------------------------------------------------------------------------------
15. Maryland Department of X X
Assessments and Taxation
-------------------------------------------------------------------------------------------------------
16. Massachusetts Secretary of State X X
-------------------------------------------------------------------------------------------------------
17. Boston Town Clerk, Massachusetts X N/a
-------------------------------------------------------------------------------------------------------
18. Michigan Secretary of State X X
-------------------------------------------------------------------------------------------------------
19. Minnesota Secretary of State X X
-------------------------------------------------------------------------------------------------------
20. Missouri Secretary of State X X
-------------------------------------------------------------------------------------------------------
21. St. Louis County, Missouri X N/a
-------------------------------------------------------------------------------------------------------
22. St. Louis City, Missouri X N/a
-------------------------------------------------------------------------------------------------------
23. Jackson County, Missouri X N/a
-------------------------------------------------------------------------------------------------------
24. Nevada Secretary of State X X
-------------------------------------------------------------------------------------------------------
25. New Jersey Secretary of State X X
-------------------------------------------------------------------------------------------------------
26. New York Secretary of State X X
-------------------------------------------------------------------------------------------------------
27. Albany County, New York X N/a
-------------------------------------------------------------------------------------------------------
28. Erie County, New York X N/a
-------------------------------------------------------------------------------------------------------
29. New York County, New York X N/a
-------------------------------------------------------------------------------------------------------
30. North Carolina Secretary of State X X
-------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------
Jurisdiction CC-1 Financing Statement UCC-1 Financing Statement
Transmitting Utility
-------------------------------------------------------------------------------------------------------
<S> <C> <C>
31. Durham County, North Carolina X X
-------------------------------------------------------------------------------------------------------
32. Guilford County, North Carolina X X
-------------------------------------------------------------------------------------------------------
33. Mecklenburg County, North Carolina X X
-------------------------------------------------------------------------------------------------------
34. Ohio Secretary of State X X
-------------------------------------------------------------------------------------------------------
35. Cuyahoga County, Ohio X X
-------------------------------------------------------------------------------------------------------
36. Franklin County, Ohio X X
-------------------------------------------------------------------------------------------------------
37. Hamilton County, Ohio X X
-------------------------------------------------------------------------------------------------------
38. Oklahoma Secretary of State n/a X
-------------------------------------------------------------------------------------------------------
39. Oklahoma County, Oklahoma X N/a
-------------------------------------------------------------------------------------------------------
40. Oregon Secretary of State X X
-------------------------------------------------------------------------------------------------------
41. Pennsylvania Secretary of X X
Commonwealth
-------------------------------------------------------------------------------------------------------
42. Allegheny County Prothonotary, X N/a
Pennsylvania
-------------------------------------------------------------------------------------------------------
43. Philadelphia County Prothonotary X N/a
Pennsylvania
-------------------------------------------------------------------------------------------------------
44. Rhode Island Secretary of State X X
-------------------------------------------------------------------------------------------------------
45. Tennessee Secretary of State X X
-------------------------------------------------------------------------------------------------------
46. Texas Secretary of State X X
-------------------------------------------------------------------------------------------------------
47. Utah Division of Corporations and X X
Commercial Code
-------------------------------------------------------------------------------------------------------
48. Virginia State Corporation X X
Commission
-------------------------------------------------------------------------------------------------------
49. Fairfax County, Virginia X X
-------------------------------------------------------------------------------------------------------
50. Norfolk City, Virginia X X
-------------------------------------------------------------------------------------------------------
51. Richmond City, Virginia X X
-------------------------------------------------------------------------------------------------------
52. Washington Department of X X
Licensing, UCC Division
-------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT A
COPYRIGHT SECURITY AGREEMENT
<PAGE>
COPYRIGHT SECURITY AGREEMENT
----------------------------
(Global Network Assets, LLC)
THIS COPYRIGHT SECURITY AGREEMENT ("Agreement") is between Global
Network Assets, LLC, a Delaware limited liability company ("Debtor"), and Nortel
Networks Inc., a Delaware corporation ("Secured Party"), acting in its capacity
as Administrative Agent pursuant to that certain Amended and Restated Credit
Agreement dated as of September 5, 2000 (as the same may be amended, modified,
supplemented, renewed, extended or restated from time to time, the "Credit
Agreement") among Borrower, Holdings, Secured Party and each of the Lenders
party thereto.
R E C I T A L S:
---------------
A. Debtor and Secured Party have entered into that certain Amended and
Restated Pledge and Security Agreement, dated as of September 5, 2000 (as the
same may be amended, modified, supplemented, renewed, extended or restated from
time to time, the "Security Agreement"; all terms defined in the Security
Agreement, wherever used herein, shall have the same meanings herein as are
prescribed by the Security Agreement).
B. Pursuant to the terms of the Security Agreement, Debtor has granted
to Secured Party a lien and security interest in all General Intangibles of
Debtor including, without limitation, all of Debtor's right, title, and interest
in, to and under all now owned and hereafter acquired Copyrights and Copyright
Licenses, and all products and Proceeds thereof, to secure the payment of the
Obligations (as defined in the Credit Agreement).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor hereby grants to Secured
Party a lien and continuing security interest in all of Debtor's right, title,
and interest in, to, and under the following (all of the following items or
types of Property being herein collectively referred to as the "Copyright
Collateral"), whether presently existing or hereafter created or acquired:
(1) each Copyright, each registration of a Copyright
("Copyright Registration"), and each application for registration of a
Copyright ("Copyright Application"), including, without limitation,
each Copyright, Copyright Registration, and Copyright Application
referred to in Schedule 1 annexed hereto;
(2) each Copyright License, including, without limitation,
each Copyright License referred to in Schedule 1 annexed hereto; and
<PAGE>
(3) all products and Proceeds of the foregoing, including,
without limitation, any claim by Debtor against third parties for past,
present, or future infringement or breach of any Copyright, Copyright
Registration, Copyright Application, or Copyright License, including,
without limitation, any Copyright, Copyright Registration, or Copyright
License listed in Schedule 1 annexed hereto, and any Copyright
Registration issued pursuant to a Copyright Application referred to in
Schedule 1 annexed hereto.
The lien and security interest contained in this Agreement is granted in
conjunction with the liens and security interests granted to Secured Party
pursuant to the Security Agreement.
Debtor hereby acknowledges and affirms that the rights and remedies of
Secured Party with respect to the liens and security interests in the Copyright
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
<PAGE>
IN WITNESS WHEREOF, Debtor has caused this Agreement to be duly
executed by its duly authorized officer as of the ____ day of _________, ____.
DEBTOR:
------
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
SECURED PARTY:
-------------
NORTEL NETWORKS INC.,
as Administrative Agent
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
<PAGE>
ACKNOWLEDGMENT
STATE OF ______________)
)
COUNTY OF _____________ )
This instrument was acknowledged before me this _____ day of _________,
_____, by _________________, as _________ of Global Network Assets, LLC, a
Delaware limited liability company, on behalf of such company.
_____________________________________
{Seal} Notary Public in and for the State of
My commission expires:_____________
STATE OF ______________)
)
COUNTY OF _____________ )
This instrument was acknowledged before me this _____ day of _________,
____, by _________________, as __________________________ of Nortel Networks
Inc., a Delaware corporation, on behalf of such corporation.
_____________________________________
{Seal} Notary Public in and for the State of
My commission expires:_____________
<PAGE>
Schedule 1
to
Copyright Security Agreement
COPYRIGHTS
----------
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------------------
OWNER OF RECORD COUNTRY OF COPYRIGHT APPLICATION OR REGISTRATION OR EXPIRATION DATE TITLE
REGISTRATION REGISTRATION NO. FILING DATE
--------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
--------------------------------------------------------------------------------------------------------------------------
</TABLE>
COPYRIGHT LICENSES
------------------
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
NAME OF AGREEMENT COPYRIGHT DATE OF AGREEMENT
--------------------------------------------------------------------------------
<S> <C> <C>
--------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
PATENT SECURITY AGREEMENT
<PAGE>
PATENT SECURITY AGREEMENT
-------------------------
(Global Network Assets, LLC)
THIS PATENT SECURITY AGREEMENT ("Agreement") is between Global Network
Assets, LLC, a Delaware limited liability company ("Debtor"), and Nortel
Networks Inc., a Delaware corporation ("Secured Party"), acting in its capacity
as Administrative Agent pursuant to that certain Amended and Restated Credit
Agreement dated as of September 5, 2000 (as the same may be amended, modified,
supplemented, renewed, extended or restated from time to time, the "Credit
Agreement") among Borrower, Holdings, Secured Party and each of the Lenders
party thereto.
R E C I T A L S:
---------------
A. Debtor and Secured Party have entered into that certain Amended and
Restated Pledge and Security Agreement, dated as of September 5, 2000 (as the
same may be amended, modified, supplemented, renewed, extended or restated from
time to time, the "Security Agreement"; all terms defined in the Security
Agreement, wherever used herein, shall have the same meanings herein as are
prescribed by the Security Agreement).
B. Pursuant to the terms of the Security Agreement, Debtor has granted
to Secured Party a lien and security interest in all General Intangibles of
Debtor including, without limitation, all of Debtor's right, title, and interest
in, to and under all now owned and hereafter acquired Patents and Patent
Licenses, and all products and Proceeds thereof, to secure the payment of the
Obligations (as defined in the Credit Agreement).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor hereby grants to Secured
Party a lien and continuing security interest in all of Debtor's right, title,
and interest in, to, and under the following (all of the following items or
types of Property being herein collectively referred to as the "Patent
Collateral"), whether presently existing or hereafter created or acquired:
(1) each Patent and each application for a Patent ("Patent
Application"), including, without limitation, each Patent and Patent
Application referred to in Schedule 1 annexed hereto, together with any
reissues, continuations, divisions, modifications, substitutions or
extensions thereof;
(2) each Patent License, including, without limitation, each
Patent License referred to in Schedule 1 annexed hereto; and
(3) all products and Proceeds of the foregoing, including,
without limitation, any claim by Debtor against third parties for past,
present, or future infringement or breach of any Patent or Patent
License, including, without limitation, any Patent or Patent License
referred to in Schedule 1 annexed hereto, and any Patent issued
pursuant to a Patent Application referred to in Schedule 1 annexed
hereto.
<PAGE>
The lien and security interest contained in this Agreement is granted in
conjunction with the liens and security interests granted to Secured Party
pursuant to the Security Agreement.
Debtor hereby acknowledges and affirms that the rights and remedies of
Secured Party with respect to the liens and security interests in the Patent
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
IN WITNESS WHEREOF, Debtor has caused this Agreement to be duly
executed by its duly authorized officer as of the ___ day of ___________, _____.
DEBTOR:
------
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
SECURED PARTY:
-------------
NORTEL NETWORKS INC.,
as Administrative Agent
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
<PAGE>
ACKNOWLEDGMENT
STATE OF ______________)
)
COUNTY OF _____________ )
This instrument was acknowledged before me this _______ day of
_________, ____, by _____________________, as ___________ of Global Network
Assets, LLC, a Delaware limited liability company, on behalf of such company.
_________________________________________
{Seal} Notary Public in and for the State of
My commission expires:_______________
STATE OF ______________)
)
COUNTY OF _____________ )
This instrument was acknowledged before me this ______ day of
_________, ____, by _______________, as _____________ of Nortel Networks Inc., a
Delaware corporation, on behalf of such corporation.
_________________________________________
{Seal} Notary Public in and for the State of
My commission expires:_______________
<PAGE>
Schedule 1
to
Patent Security Agreement
-------------------------
PATENTS
-------
<TABLE>
<CAPTION>
=====================================================================================================================
OWNER OF RECORD COUNTRY OF PATENT APPLICATION OR REGISTRATION OR ISSUE DATE EXPIRATION DATE
ORIGIN IDENTIFICATION REGISTRATION NO. FILING DATE (IF KNOWN)
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------------------------------------
=====================================================================================================================
</TABLE>
PATENT LICENSES
---------------
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------
NAME OF AGREEMENT PATENT DATE OF AGREEMENT
--------------------------------------------------------------------------------------------
<S> <C> <C>
--------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT C
TRADEMARK SECURITY AGREEMENT
<PAGE>
TRADEMARK SECURITY AGREEMENT
----------------------------
(Global Network Assets, LLC)
THIS TRADEMARK SECURITY AGREEMENT ("Agreement") is between Global
Network Assets, LLC, a Delaware limited liability company ("Debtor"), and Nortel
Networks Inc., a Delaware corporation ("Secured Party"), acting in its capacity
as Administrative Agent pursuant to that certain Amended and Restated Credit
Agreement dated as of September 5, 2000 (as the same may be amended, modified,
supplemented, renewed, extended or restated from time to time, the "Credit
Agreement") among Borrower, Holdings, Secured Party and each of the Lenders
party thereto.
R E C I T A L S:
---------------
A. Debtor and Secured Party have entered into that certain Amended and
Restated Pledge and Security Agreement, dated as of September 5, 2000 (as the
same may be amended, modified, supplemented, renewed, extended or restated from
time to time, the "Security Agreement"; all terms defined in the Security
Agreement, wherever used herein, shall have the same meanings herein as are
prescribed by the Security Agreement).
B. Pursuant to the terms of the Security Agreement, Debtor has granted
to Secured Party a lien and security interest in all General Intangibles of
Debtor, including, without limitation, all of Debtor's right, title, and
interest in, to and under all now owned and hereafter acquired Trademarks,
together with the goodwill of the business symbolized by Debtor's Trademarks,
and Trademark Licenses, and all products and Proceeds thereof, to secure the
payment of the Obligations (as defined in the Credit Agreement).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor hereby grants to Secured
Party a lien and continuing security interest in all of Debtor's right, title,
and interest in, to, and under the following (all of the following items or
types of Property being herein collectively referred to as the "Trademark
Collateral"), whether presently existing or hereafter created or acquired:
(1) each Trademark, trademark registration ("Trademark
Registration") and trademark application ("Trademark Application"),
including, without limitation, each Trademark, Trademark Registration
and Trademark Application referred to in Schedule 1 annexed hereto,
together with the goodwill of the business symbolized thereby; and
(2) each Trademark License, including, without limitation,
each Trademark License listed in Schedule 1 annexed hereto; and
(3) all products and proceeds of the foregoing, including,
without limitation, any claim by Debtor against third parties for past,
present or future (a) infringement, dilution or breach of any
Trademark, Trademark Registration, Trademark Application and Trademark
License, including, without limitation, any Trademark, Trademark
Registration and
<PAGE>
Trademark License referred to in Schedule 1 annexed hereto, and any
Trademark Registration issued pursuant to a Trademark Application
referred to in Schedule 1 annexed hereto; or (b) injury to the goodwill
associated with any Trademark, Trademark Registration and Trademark
Application.
The lien and security interest contained in this Agreement is granted in
conjunction with the liens and security interests granted to Secured Party
pursuant to the Security Agreement.
Debtor hereby acknowledges and affirms that the rights and remedies of
Secured Party with respect to the liens and security interests in the Trademark
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
<PAGE>
IN WITNESS WHEREOF, Debtor has caused this Agreement to be duly
executed by its duly authorized officer as of the ___ day of __________, _____.
DEBTOR:
------
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
SECURED PARTY:
-------------
NORTEL NETWORKS INC.,
as Administrative Agent
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF ______________)
)
COUNTY OF _____________ )
This instrument was acknowledged before me this _____ day of _________,
____, by _________________, as _________ of Global Network Assets, LLC, a
Delaware limited liability company, on behalf of such company.
_________________________________________
{Seal} Notary Public in and for the State of
My commission expires:_____________________
STATE OF ______________)
)
COUNTY OF _____________ )
This instrument was acknowledged before me this ____ day of _________,
____, by _________________, as ______________________ of Nortel Networks Inc., a
Delaware corporation, on behalf of such corporation.
_________________________________________
{Seal} Notary Public in and for the State of
My commission expires:_____________________
<PAGE>
Schedule 1
to
Trademark Security Agreement
----------------------------
TRADEMARKS
----------
<TABLE>
<CAPTION>
=============================================================================================================
OWNER OF RECORD COUNTRY OF TRADEMARK APPLICATION OR FILING EXPIRATION GOODS
REGISTRATION REGISTRATION NO. DATE DATE
=============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------------------------
=============================================================================================================
</TABLE>
<PAGE>
EXHIBIT D
---------
FORM OF AMENDMENT
<PAGE>
AMENDMENT TO PLEDGE AND SECURITY AGREEMENT
This Amendment, dated _______________, _____, is delivered pursuant to
Section 4.17(b) of the Pledge and Security Agreement referred to below. The
undersigned hereby agrees that this Amendment may be attached to that certain
Pledge and Security Agreement, dated as of September 5, 2000 (the "Security
Agreement"), between the undersigned and Nortel Networks Inc., as Administrative
Agent ("Administrative Agent") under that certain Amended and Restated Credit
Agreement dated as of September 5, 2000 among Borrower, Holdings, Administrative
Agent and the Lenders party thereto, and that the Capital Stock, notes or other
securities or instruments listed on Schedule 1 annexed hereto shall be and
become part of the Collateral referred to in the Security Agreement and shall
secure payment and performance of all Obligations as provided in the Security
Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings therefor provided in the Security Agreement.
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
<PAGE>
Schedule 1
to
Amendment to Security Agreement
-------------------------------
<TABLE>
<CAPTION>
Number of Percentage of
Class of Certificate Shares or Outstanding Shares
Issuer Capital Stock No(s). Par Value Interests or Interests
------ ------------- ------ --------- --------- ------------
<S> <C> <C> <C> <C> <C>
</TABLE>
