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EXHIBIT 99.3
EXECUTION VERSION
SECURITY AGREEMENT
AMONG
WEBLINK WIRELESS, INC.,
AND
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
DATED AS OF JULY 18, 2001
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SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of July 18, 2001, made by each of
the undersigned assignors (each an "Assignor" and, together with any other
entity that becomes an assignor hereunder pursuant to Section 10.12 hereof, the
"Assignors") in favor of Bankers Trust Company, as Administrative Agent (the
"Administrative Agent"), for the benefit of the Secured Creditors (as defined
below). Except as otherwise defined herein, capitalized terms used herein and
defined in the Debtor In Possession Credit Agreement (as defined below) shall be
used herein as so defined.
WITNESSETH:
WHEREAS, Weblink Wireless, Inc. (the "Borrower"), the lenders
party from time to time party thereto (the "Lenders"), and Bankers Trust
Company, as Administrative Agent (together with any successor administrative
agent, the "Administrative Agent") and Lead Arranger, have entered into a Debtor
In Possession Credit Agreement, dated as of July 18, 2001, providing for the
making of Loans to the Borrower as contemplated therein (as amended, modified or
supplemented from time to time, the "DIP Credit Agreement") (the Lenders and the
Administrative Agent are herein called the "Secured Creditors");
WHEREAS, it is a condition precedent to the making of Loans to
the Borrower under the DIP Credit Agreement that each Assignor shall have
executed and delivered to the Administrative Agent this Agreement; and
WHEREAS, each Assignor will obtain benefits from the
incurrence of Loans by the Borrower under the DIP Credit Agreement and,
accordingly, each Assignor desires to enter into this Agreement in order to
satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to
each Assignor, the receipt and sufficiency of which are hereby acknowledged,
each Assignor hereby makes the following representations and warranties to the
Administrative Agent for the benefit of the Secured Creditors and hereby
covenants and agrees with the Administrative Agent for the benefit of the
Secured Creditors as follows:
ARTICLE I
SECURITY INTERESTS
1.1. Grant of Security Interests. (a) As security for the
prompt and complete payment and performance when due of all of its Obligations,
each Assignor does hereby assign and transfer unto the Administrative Agent, and
does hereby pledge and grant to the Administrative Agent for the benefit of the
Secured Creditors, a continuing first priority Lien and security interest
(having the priority contemplated in the DIP Credit Agreement) in, all of the
right, title and interest of such Assignor in, to and under all of the
following, whether now existing or hereafter from time to time acquired: (i)
each and every Receivable, (ii) Contracts, together with all Contract Rights
arising thereunder, (iii) all Inventory, (iv) all Equipment, (v) all Marks,
together with the registrations and right to all renewals thereof, and the
goodwill of the
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business of such Assignor symbolized by the Marks, (vi) all Patents and
Copyrights, (vii) all computer programs of such Assignor and all intellectual
property rights therein and all other proprietary information of such Assignor,
including, but not limited to, Trade Secrets Rights, (viii) all other Goods,
General Intangibles, Investment Property, Permits, Chattel Paper, Documents,
Instruments and other assets (including cash) (subject, in the case of General
Intangibles and Permits constituting FCC Licenses only, to clause (xi) below),
(ix) the Cash Collateral Account and all monies, securities, instruments and
other investments deposited or required to be deposited in such Cash Collateral
Account, (x) all other bank, demand, time savings, cash management, passbook,
certificates of deposit and similar accounts maintained by such Assignor and all
monies, securities, instruments and other investments deposited or required to
be deposited in any of the foregoing accounts, (xi) all goodwill, going concern
value, and all of such Assignor's rights in, to or under, or relating to, any
license, permit or other authorization (each, an "FCC License") issued by the
FCC (provided, however, that such security interest does not include, and the
term "Collateral" does not include, at any time any FCC License to the extent,
but only to the extent, that such Assignor is prohibited at that time from
granting a security interest therein pursuant to the Communications Act, and the
FCC Rules, but includes, to the maximum extent permitted by law, all rights
incident or appurtenant to any such FCC License and the rights to receive all
proceeds, monies or other consideration derived or derivable from or in
connection with the sale, assignment or transfer of any FCC License); and (xii)
all Proceeds and products of any and all of the foregoing (all of the above,
collectively, the "Collateral").
(b) The security interest of the Administrative Agent under
this Agreement extends to all Collateral of the kind which is the subject of
this Agreement which any Assignor may acquire at any time during the term of
this Agreement.
(c) It is acknowledged and agreed that the security interest
created hereby does not extend to any assets owned by any third Person (and not
owned by any Assignor) that are located at any Real Property sites of any
Assignor.
1.2. Power of Attorney. Each Assignor hereby constitutes and
appoints the Administrative Agent its true and lawful attorney, irrevocably,
with full power after the occurrence of and during the continuance of an Event
of Default (in the name of such Assignor or otherwise) to act, require, demand,
receive, compound and give acquittance for any and all moneys and claims for
moneys due or to become due to such Assignor under or arising out of the
Collateral, to endorse any checks or other instruments or orders in connection
therewith and, subject, in the case of any exercise by the Pledgee of any rights
or remedies that effects an assignment or transfer of control of any FCC
License, to receipt of any approvals that may be required under the
Communications Act or the FCC Rules, to file any claims or take any action or
institute any proceedings which the Administrative Agent may deem to be
necessary or advisable to protect the interests of the Secured Creditors, which
appointment as attorney is coupled with an interest.
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ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and delivery
of this Agreement, as follows:
2.1. Necessary Filings. Upon the entry of the Orders, all
filings, registrations and recordings necessary or appropriate to create,
preserve and perfect the security interest granted by such Assignor to the
Administrative Agent hereby in respect of the Collateral have been accomplished
(or, in the case of (i) any Collateral which has been moved as described in the
last sentence in Section 2.5 of this Agreement, will have been accomplished
within the time period provided in such sentence or (ii) all other Collateral,
will have been accomplished on the Business Day immediately following the
Closing Date) and the security interest granted to the Administrative Agent
pursuant to this Agreement in and to the Collateral creates a perfected security
interest therein prior to the rights of all other Persons therein and subject to
no other Liens (other than Permitted Liens) and is entitled to all the rights,
priorities and benefits afforded by the Uniform Commercial Code or other
relevant law as enacted in any relevant jurisdiction to perfected security
interests, in each case to the extent that the Collateral consists of the type
of property in which a security interest may be perfected by filing a financing
statement under the Uniform Commercial Code as enacted in any relevant
jurisdiction or in the United States Patent and Trademark Office or in the
United States Copyright Office.
2.2. No Liens. Such Assignor is, and as to Collateral acquired
by it from time to time after the date hereof such Assignor will be, the owner
of all Collateral free from any Lien security interest, encumbrance or other
right, title or interest of any Person (other than Permitted Liens), and such
Assignor shall defend the Collateral against all claims and demands of all
Person at any time claiming the same or any interest therein adverse to the
Administrative Agent.
2.3. Other Financing Statements. As of the date hereof, there
is no financing statement (or similar statement or instrument of registration
under the law of any jurisdiction) covering or purporting to cover any interest
of any kind in the Collateral (other than financing statements filed in respect
of Permitted Liens), and so long as the Termination Date has not occurred, such
Assignor will not execute or authorize to be filed in any public office any
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) or statements relating to the Collateral, except
financing statements filed or to be filed in respect of and covering the
security interests granted hereby by such Assignor or in connection with
Permitted Liens.
2.4. Chief Executive Office, Record Locations. The chief
executive office of such Assignor is located at the address indicated on Annex A
hereto for such Assignor. Such Assignor will not move its chief executive office
except to such new location as such Assignor may establish in accordance with
the last sentence of this Section 2.4. The originals of all documents evidencing
all Receivables and Contract Rights of such Assignor and the only original books
of account and records of such Assignor relating thereto are, and will continue
to be, kept at such chief executive office, at one or more of the other
locations set forth on Annex A hereto or at such new locations as such Assignor
may establish in accordance with the last
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sentence of this Section 2.4. All Receivables and Contract Rights of such
Assignor are, and will continue to be, maintained at, and controlled and
directed (including, without limitation, for general accounting purposes) from,
the office locations described above or such new location established in
accordance with the last sentence of this Section 2.4. No Assignor shall
establish new locations for such offices until (i) it shall have given to the
Administrative Agent not less than 15 days' prior written notice of its
intention to do so, clearly describing such new location and providing such
other information in connection therewith as the Administrative Agent may
reasonably request, (ii) with respect to such new location, it shall have taken
all action reasonably satisfactory to the Administrative Agent to maintain the
security interest of the Administrative Agent in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect and
(iii) at the request of the Administrative Agent, it shall have furnished an
opinion of counsel reasonably acceptable to the Administrative Agent to the
effect that all financing or continuation statements and amendments or
supplements thereto have been filed in the appropriate filing office or offices,
and all other actions have been taken, in order to perfect (and maintain the
perfection of) the security interest granted hereby in respect of the types of
Collateral referred to in Section 1.1 hereof.
2.5. Location of Inventory and Equipment. All Inventory and
Equipment (other than Equipment consisting of transmitter sites owned by each
Assignor) held on the date hereof by each Assignor is located at one of the
locations shown on Part A of Annex B hereto for such Assignor. All Equipment
constituting transmitter sites held on the date hereof by each Assignor is
located in one of the States of the United States of America shown on Part B of
Annex B hereto for such Assignor. Each Assignor agrees that all Inventory and
Equipment now held or subsequently acquired by it shall be kept at (or shall be
in transport to) any one of the locations shown on the respective part of Annex
B hereto (or, in the case of Equipment constituting transmitter sites only, any
other location in which the Administrative Agent has filed UCC-1 financing
statements in order to ensure that the Administrative Agent's lien on such
Equipment remains perfected), or such new location as such Assignor may
establish in accordance with the last sentence of this Section 2.5. Except with
respect to Equipment consisting of transmitter sites as otherwise provided
above, any Assignor may establish a new location for Inventory and Equipment
only if (i) it shall have given to the Administrative Agent not less than 15
days' prior written notice of its intention so to do, clearly describing such
new location and providing such other information in connection therewith as the
Administrative Agent may request, (ii) with respect to such new location, it
shall have taken all action reasonably satisfactory to the Administrative Agent
to maintain the security interest of the Administrative Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect and (iii) at the request of the Administrative Agent, it shall have
furnished an opinion of counsel reasonably acceptable to the Administrative
Agent to the effect that all financing or continuation statements and amendments
or supplements thereto have been filed in the appropriate filing office or
offices, and all other actions have been taken, in order to perfect (and
maintain the perfection of) the security interest granted hereby in respect of
the types of Collateral referred to in Section 1.1 hereof. Notwithstanding
anything to the contrary contained in this Section 2.5, in the event any
Assignor has moved any Equipment constituting transmitter sites to a new
location such that the security interest created hereunder in such transmitter
sites is no longer perfected, within 60 days following such move, such Assignor
shall provide the Administrative Agent with the new location or locations of
such transmitter sites and, upon the request of the Administrative Agent, shall
enter into UCC-1 financing statements,
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and shall take any other actions as may be reasonably requested by the
Administrative Agent, to ensure that the Administrative Agent's lien on such
transmitter sites remains perfected.
2.6. Recourse. This Agreement is made with full recourse to
each Assignor (including, without limitation, with full recourse to all assets
of such Assignor) and pursuant to and upon all the warranties, representations,
covenants and agreements on the part of such Assignor contained herein, in the
other Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
2.7. Trade Names; Change of Name. No Assignor has or operates
in any jurisdiction under, or in the preceding five years has had or has
operated in any jurisdiction under, any trade names, fictitious names or other
names except its legal name and such other trade or fictitious names as are
listed on Annex C hereto for such Assignor. No Assignor shall change its legal
name or assume or operate in any jurisdiction under any trade, fictitious or
other name except those names listed on Annex C hereto for such Assignor and new
names established in accordance with the last sentence of this Section 2.7. No
Assignor shall assume or operate in any jurisdiction under any new trade,
fictitious or other name until (i) it shall have given to the Administrative
Agent not less than 15 days' prior written notice of its intention so to do,
clearly describing such new name and the jurisdictions in which such new name
shall be used and providing such other information in connection therewith as
the Administrative Agent may reasonably request, (ii) with respect to such new
name, it shall have taken all action reasonably requested by the Administrative
Agent to maintain the security interest of the Administrative Agent in the
Collateral intended to be granted hereby at all times fully perfected and in
full force and effect and (iii) at the request of the Administrative Agent, it
shall have furnished an opinion of counsel reasonably acceptable to the
Administrative Agent to the effect that all financing or continuation statements
and amendments or supplements thereto have been filed in the appropriate filing
office or offices, and all other actions have been taken, in order to perfect
(and maintain the perfection of) the security interest granted hereby in respect
of the types of Collateral referred to in Section 1.1 hereof.
ARTICLE III
SPECIAL PROVISIONS CONCERNING RECEIVABLES;
CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER
3.1. Additional Representations and Warranties. As of the time
when each of its Receivables arises, each Assignor shall be deemed to have
represented and warranted that such Receivable, and all records, papers and
documents relating thereto (if any) are what they purport to be, and such
Receivable will evidence true and valid obligations of the account debtor named
therein.
3.2. Maintenance of Records. Each Assignor will keep and
maintain at its own cost and expense accurate records of its Receivables and
Contracts, including, but not limited to, originals of all documentation
(including each Contract) with respect thereto, records of all payments
received, all credits granted thereon, all merchandise returned and all other
dealings therewith, and such Assignor will make the same available on such
Assignor's premises to the Administrative Agent for inspection, at such
Assignor's own cost and expense, at any and all
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reasonable times upon prior notice to such Assignor. Upon the occurrence and
during the continuance of an Event of Default and at the request of the
Administrative Agent, such Assignor shall, at its own cost and expense, deliver
all tangible evidence of its Receivables and Contract Rights (including, without
limitation, all documents evidencing the Receivables and all Contracts) and such
books and records to the Administrative Agent or to its representatives (copies
of which evidence and books and records may be retained by such Assignor). Upon
the occurrence and during the continuance of an Event of Default and if the
Administrative Agent so directs, such Assignor shall legend, in form and manner
satisfactory to the Administrative Agent, the Receivables and the Contracts, as
well as books, records and documents (if any) of such Assignor evidencing or
pertaining to such Receivables and Contracts with an appropriate reference to
the fact that such Receivables and Contracts have been assigned to the
Administrative Agent and that the Administrative Agent has a security interest
therein.
3.3. Direction to Account Debtors Contracting Parties etc.
Upon the occurrence and during the continuance of an Event of Default, and if
the Administrative Agent so directs any Assignor, such Assignor agrees (x) to
cause all payments on account of the Receivables and Contracts to be made
directly to the Cash Collateral Account, (y) that the Administrative Agent may,
at its option, directly notify the obligors with respect to any Receivables
and/or under any Contracts to make payments with respect thereto as provided in
the preceding clause (x), and (z) that the Administrative Agent may enforce
collection of any such Receivables and Contracts and may adjust, settle or
compromise the amount of payment thereof, in the same manner and to the same
extent as such Assignor. Without notice to or assent by any Assignor, the
Administrative Agent may apply any or all amounts then in, or thereafter
deposited in, the Cash Collateral Account which application shall be effected in
the manner provided in Section 7.4 of this Agreement; provided however, that at
such time as no Default or Event of Default shall be continuing, all funds in
the Cash Collateral Account shall be disbursed to the respective Assignor. The
costs and expenses (including reasonable attorneys' fees) of collection, whether
incurred by an Assignor or the Administrative Agent, shall be borne by the
relevant Assignor. The Administrative Agent shall deliver a copy of each notice
referred to in the preceding clause (y) to the relevant Assignor, provided that
the failure by the Administrative Agent to so notify such Assignor shall not
affect the effectiveness of such notice or the other rights of the
Administrative Agent created by this Section 3.3.
3.4. Modification of Terms etc. Except in accordance with such
Assignor's ordinary course of business and consistent with reasonable business
judgment or as permitted by the Bankruptcy Court, no Assignor shall rescind or
cancel any indebtedness evidenced by any Receivable or under any Contract, or
modify any term thereof or make any adjustment with respect thereto, or extend
or renew the same, or compromise or settle any material dispute, claim, suit or
legal proceeding relating thereto, or sell any Receivable or Contract, or
interest therein, without the prior written consent of the Administrative Agent.
To the extent permitted by the Bankruptcy Court, each Assignor will duly fulfill
all obligations on its part to be fulfilled under or in connection with the
Receivables and Contracts and will do nothing to impair the rights of the
Administrative Agent in the Receivables or Contracts.
3.5. Collection. Each Assignor shall endeavor in accordance
with reasonable business practices to cause to be collected from the account
debtor named in each of its Receivables or obligor under any Contract, as and
when due (including, without limitation,
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amounts which are delinquent, such amounts to be collected in accordance with
generally accepted lawful collection procedures) any and all amounts owing under
or on account of such Receivable or Contract, and apply forthwith upon receipt
thereof all such amounts as are so collected to the outstanding balance of such
Receivable or under such Contract, except that, prior to the occurrence of an
Event of Default, any Assignor may allow in the ordinary course of business as
adjustments to amounts owing under its Receivables, and Contracts (i) an
extension or renewal of the time or times of payment, or settlement for less
than the total unpaid balance, which such Assignor finds appropriate in
accordance with reasonable business judgment and (ii) a refund or credit due as
a result of returned or damaged merchandise or improperly performed services or
for other reasons which such Assignor finds appropriate in accordance with
reasonable business judgment. The reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees) of collection, whether incurred
by an Assignor or the Administrative Agent, shall be borne by the relevant
Assignor.
3.6. Instruments. If any Assignor owns or acquires any
Instrument or Chattel Paper constituting Collateral, such Assignor will within
10 Business Days notify the Administrative Agent thereof, and upon request by
the Administrative Agent will promptly deliver such Instrument or Chattel Paper
to the Administrative Agent appropriately endorsed to the order of the
Administrative Agent as further security hereunder.
3.7. Assignors Remain Liable Under Receivables. Anything
herein to the contrary notwithstanding, the Assignors shall remain liable under
each of the Receivables to observe and perform all of the conditions and
obligations to be observed and performed by it thereunder, all in accordance
with the terms of any agreement giving rise to such Receivables and applicable
law. Neither the Administrative Agent nor any other Secured Creditor shall have
any obligation or liability under any Receivable (or any agreement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by the
Administrative Agent or any other Secured Creditor of any payment relating to
such Receivable pursuant hereto, nor shall the Administrative Agent or any other
Secured Creditor be obligated in any manner to perform any of the obligations of
any Assignor under or pursuant to any Receivable (or any agreement giving rise
thereto), to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by them or as to the sufficiency of any
performance by any party under any Receivable (or any agreement giving rise
thereto), to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to them or to which they may be entitled at any time or times.
3.8. Assignors Remain Liable Under Contracts. Anything herein
to the contrary notwithstanding, to the extent permitted by the Bankruptcy
Court, the Assignors shall remain liable under each of the Contracts to observe
and perform all of the conditions and obligations to be observed and performed
by them thereunder, all in accordance with and pursuant to the terms and
provisions of each Contract and applicable law. Neither the Administrative Agent
nor any other Secured Creditor shall have any obligation or liability under any
Contract by reason of or arising out of this Agreement or the receipt by the
Administrative Agent or any other Secured Creditor of any payment relating to
such contract pursuant hereto, nor shall the Administrative Agent or any other
Secured Creditor be obligated in any manner to perform any of the obligations of
any Assignor under or pursuant to any Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any performance by any party
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under any Contract, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have been
assigned to them or to which they may be entitled at any time or times.
3.9. Further Actions. (a) Each Assignor will, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver to the
Administrative Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, certificates, reports and other assurances or instruments and take
such further steps relating to its Receivables, Contracts, instruments and other
property or rights covered by the security interest hereby granted, as the
Administrative Agent may reasonably require.
(b) Each Assignor agrees that in the event of any change in
any requirement of law occurring after the date hereof that affects in any
manner the Administrative Agent's rights of access to, or use or sale of the FCC
Licenses or the procedures necessary to enable the Administrative Agent to
obtain such rights of access, use or sale (including, without limitation,
changes allowing greater such access), each Assignor upon request of the
Administrative Agent or the Required Lenders, shall enter into an amendment to
this Agreement in form and substance satisfactory to the Administrative Agent to
provide the Administrative Agent with such rights to the greatest extent
possible consistent with then applicable requirements of law, including without
limitation the Communications Act and the FCC Rules.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner of or otherwise has
the right to use the registered Marks listed in Annex D hereto for such Assignor
and that said listed Marks include all United States marks and applications for
United States marks registered in the United States Patent and Trademark Office
that such Assignor owns or uses in connection with its business as of the date
hereof. Each Assignor represents and warrants that it owns, is licensed to use
or otherwise has the right to use, all Marks that it uses, except to the extent
that any such lack of ownership, license or right could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower or of the Borrower and its Subsidiaries taken as a whole. Each
Assignor further warrants that it has no knowledge of any third party claim that
any aspect of such Assignor's present or contemplated business operations
materially infringes or will materially infringe any trademark, service ▇▇▇▇ or
trade name. Each Assignor represents and warrants that it is the true and lawful
owner of or otherwise has the right to use all U.S. trademark registrations and
applications listed in Annex D hereto and that said registrations are valid,
subsisting, have not been cancelled and that such Assignor is not aware of any
third-party claim that any of said registrations is invalid or unenforceable, or
is not aware that there is any reason that any of said registrations is invalid
or unenforceable, or is not aware that there is any reason that any of said
applications will not pass to registration. Upon the occurrence and continuance
of an Event of Default, each Assignor hereby grants to the Administrative Agent
an absolute power of attorney to sign any document which may be required by the
United States Patent and Trademark Office
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in order to effect an absolute assignment of all right, title and interest in
each ▇▇▇▇, and record the same.
4.2. Licenses and Assignments. Except as otherwise permitted
by the Secured Debt Agreements, each Assignor hereby agrees not to divest itself
of any right under any ▇▇▇▇ absent prior written approval of the Administrative
Agent.
4.3. Infringements. Each Assignor agrees, promptly upon
learning thereof, to notify the Administrative Agent in writing of the name and
address of, and to furnish such pertinent information that may be available with
respect to, any party who such Assignor believes is materially infringing or
diluting or otherwise violating in any material respect any of such Assignor's
rights in and to any ▇▇▇▇, or with respect to any party claiming that such
Assignor's use of any ▇▇▇▇ violates in any material respect any property right
of that party. Each Assignor further agrees, unless otherwise agreed by the
Administrative Agent, to prosecute any Person materially infringing any ▇▇▇▇ in
accordance with reasonable business practices.
4.4. Preservation of Marks. Each Assignor agrees to use its
Significant Marks in interstate commerce during the time in which this Agreement
is in effect and to take all such other actions as are necessary to preserve
such Significant Marks as trademarks or service marks under the laws of the
United States.
4.5. Maintenance of Registration. Each Assignor shall, at its
own expense, diligently process all documents required to maintain trademark
registrations material to its business, financial condition or property,
including, but not limited to, affidavits of use and applications for renewals
of registration in the United States Patent and Trademark Office for all of its
registered Significant Marks, and shall pay all fees and disbursements in
connection therewith and shall not abandon any such filing of affidavit of use
or any such application of renewal prior to the exhaustion of all administrative
and judicial remedies without prior written consent of the Administrative Agent.
4.6. Future Registered Marks. If any ▇▇▇▇ registration is
issued hereafter to any Assignor as a result of any application now or hereafter
pending before the United States Patent and Trademark Office, within 30 days of
receipt of such certificate, such Assignor shall deliver to the Administrative
Agent a copy of such certificate, and an assignment for security in such ▇▇▇▇,
to the Administrative Agent and at the expense of such Assignor, confirming the
assignment for security in such ▇▇▇▇ to the Administrative Agent hereunder, the
form of such security to be substantially the same as the form hereof or in such
other form as may be reasonably satisfactory to the Administrative Agent.
4.7. Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent may, by written notice to the relevant
Assignor, take any or all of the following actions: (i) declare the entire
right, title and interest of such Assignor in and to each of the Marks, together
with all trademark rights and rights of protection to the same, vested in the
Administrative Agent for the benefit of the Secured Creditors, in which event
such rights, title and interest shall immediately vest, in the Administrative
Agent for the benefit of the Secured Creditors, and the Administrative Agent
shall be entitled to exercise the power of attorney referred to in Section 4.1
hereof to execute, cause to be acknowledged and notarized and record
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said absolute assignment with the applicable agency; (ii) take and use or sell
the Marks and the goodwill of such Assignor's business symbolized by the Marks
and the right to carry on the business and use the assets of such Assignor in
connection with which the Marks have been used; and (iii) direct such Assignor
to refrain, in which event such Assignor shall refrain, from using the Marks in
any manner whatsoever, directly or indirectly, and such Assignor shall execute
such further documents that the Administrative Agent may reasonably request to
further confirm this and to transfer ownership of the Marks and registrations
and any pending trademark application in the United States Patent and Trademark
Office to the Administrative Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner of all rights in
(i) all United States trade secrets and proprietary information necessary to
operate the business of the Assignor (the "Trade Secret Rights"), (ii) the
Patents listed in Annex E hereto for such Assignor and that said Patents include
all the United States patents and applications for United States patents that
such Assignor owns as of the date hereof and (iii) the Copyrights listed in
Annex F hereto for such Assignor and that said Copyrights constitute all the
United States copyrights registered with the United States Copyright Office and
applications to United States copyrights that such Assignor owns as of the date
hereof. Each Assignor further warrants that it has no knowledge of any third
party claim that any aspect of such Assignor's present or contemplated business
operations materially infringes or will materially infringe any patent or such
Assignor has misappropriated any trade secret or proprietary information. Upon
the occurrence and continuance of an Event of Default, each Assignor hereby
grants to the Administrative Agent an absolute power of attorney to sign any
document which may be required by the United States Patent and Trademark Office
in order to effect an absolute assignment of all right, title and interest in
each Patent, and to record the same.
5.2. Licenses and Assignments. Except as otherwise permitted
by the Secured Debt Agreements, each Assignor hereby agrees not to divest itself
of any right under any Significant Patent or Significant Copyright absent prior
written approval of the Administrative Agent.
5.3. Infringements. Each Assignor agrees, promptly upon
learning thereof, to furnish the Administrative Agent in writing with all
pertinent information available to such Assignor with respect to any material
infringement, contributing material infringement or active inducement to
materially infringe in any Patent or Copyright or to any claim that the practice
of any Patent or use of any Copyright violates any property right of a third
party, or with respect to any misappropriation of any Trade Secret Right or any
claim that practice of any Trade Secret Right violates any property right of a
third party. Each Assignor further agrees, absent direction of the
Administrative Agent to the contrary, diligently to prosecute any Person
materially infringing any Patent or Copyright or any Person materially
misappropriating any Trade Secret Right in accordance with such Assignor's
reasonable business judgment.
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5.4. Maintenance of Patents or Copyright. At its own expense,
each Assignor shall make timely payment of all post-issuance fees required
pursuant to 35 U.S.C. Section 41 to maintain in force its rights under each
Significant Patent or Significant Copyright, absent prior written consent of the
Administrative Agent.
5.5. Prosecution of Patent and Copyright Applications. At its
own expense, each Assignor shall diligently prosecute all applications for (i)
United States Patents listed in Annex E hereto and (ii) Copyrights listed on
Annex F hereto, in each case for such Assignor and shall, consistent with
reasonable business judgment, not abandon any such application prior to
exhaustion of all administrative and judicial remedies, absent written consent
of the Administrative Agent, unless such Assignor shall determine that the
prosecution thereof is no longer desirable in the conduct of the business of
such Assignor in that the cessation of such prosecution is not disadvantageous
in any material respect to such Assignor.
5.6. Other Patents and Copyrights. Within 30 days of the
acquisition or issuance of a United States Patent, registration of a Copyright,
or acquisition of a registered Copyright, or of filing of an application for a
United States Patent or Copyright, the relevant Assignor shall deliver to the
Administrative Agent a copy of said Copyright or certificate or registration of,
or application therefor, said Patents, as the case may be, with an assignment
for security as to such Patent or Copyright, as the case may be, to the
Administrative Agent and at the expense of such Assignor, confirming the
assignment for security, the form of such assignment for security to be
substantially the same as the form hereof or in such other form as may be
reasonably satisfactory to the Administrative Agent.
5.7. Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent may by written notice to the relevant
Assignor, take any or all of the following actions: (i) declare the entire
right, title, and interest of such Assignor in each of the Patents and
Copyrights vested in the Administrative Agent for the benefit of the Secured
Creditors, in which event such right, title, and interest shall immediately vest
in the Administrative Agent for the benefit of the Secured Creditors, in which
case the Administrative Agent shall be entitled to exercise the power of
attorney referred to in Section 5.1 hereof to execute, cause to be acknowledged
and notarized and to record said absolute assignment with the applicable agency;
(ii) take and practice or sell the Patents and Copyrights; and (iii) direct such
Assignor to refrain, in which event such Assignor shall refrain, from practicing
the Patents and using the Copyrights directly or indirectly, and such Assignor
shall execute such further documents as the Administrative Agent may reasonably
request further to confirm this and to transfer ownership of the Patents and
Copyrights to the Administrative Agent for the benefit of the Secured Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. Protection of Administrative Agent's Security. Each
Assignor will do nothing to impair the rights of the Administrative Agent in the
Collateral. Each Assignor will at all times keep its Inventory and Equipment
insured in favor of the Administrative Agent, at such Assignor's own expense to
the extent and in the manner provided in the DIP Credit Agreement.
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Except to the extent otherwise permitted to be retained by such Assignor or
applied by such Assignor pursuant to the terms of the DIP Credit Agreement, the
Administrative Agent shall, at the time any proceeds of such insurance are
distributed to the Secured Creditors, apply such proceeds in accordance with
Section 7.4 hereof. Each Assignor assumes all liability and responsibility in
connection with the Collateral acquired by it and the liability of such Assignor
to pay the Obligations shall in no way be affected or diminished by reason of
the fact that such Collateral may be lost, destroyed, stolen, damaged or for any
reason whatsoever unavailable to such Assignor.
6.2. Warehouse Receipts Non-negotiable. Each Assignor agrees
that if any warehouse receipt or receipt in the nature of a warehouse receipt is
issued with respect to any of its Inventory, such Assignor shall request that
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 as in effect in
any relevant jurisdiction or under other relevant law).
6.3. Further Actions. (a) Each Assignor will, at its own
expense and upon the request of the Administrative Agent, make, execute,
endorse, acknowledge, file and/or deliver to the Administrative Agent from time
to time such lists, descriptions and designations of its Collateral, warehouse
receipts, receipts in the nature of warehouse receipts, bills of lading,
documents of title, vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, certificates, reports
and other assurances or instruments and take such further steps relating to the
Collateral and other property or rights covered by the security interest hereby
granted, which the Administrative Agent deems reasonably appropriate or
advisable to perfect, preserve or protect its security interest in the
Collateral.
(c) Notwithstanding anything to the contrary in this
Agreement, or any failure on the part of any Assignor or the Administrative
Agent to take any of the actions set forth in this Agreement, the Liens and
security interests granted herein shall be deemed valid, enforceable and
perfected by entry of the Interim Order and the Final Order, as applicable. No
financing statement, notice or lien, assignment, mortgage, deed of trust or
similar instrument in any jurisdiction or filing office need be filed or any
other action taken in order to validate and perfect the Liens and security
interests granted by or pursuant to this Agreement, the Interim Order or the
Final Order.
6.4. Financing Statements. Each Assignor agrees to execute and
deliver to the Administrative Agent such financing statements, in form
reasonably acceptable to the Administrative Agent, as the Administrative Agent
may from time to time reasonably request or as are necessary or desirable in the
opinion of the Administrative Agent to establish and maintain a valid,
enforceable, first priority perfected security interest in the Collateral as
provided herein and the other rights and security contemplated hereby all in
accordance with the UCC as enacted in any and all relevant jurisdictions or any
other relevant law. Each Assignor will pay any applicable filing fees,
recordation taxes and related expenses relating to its Collateral. Each Assignor
hereby authorizes the Administrative Agent to file any such financing statements
without the signature of such Assignor where permitted by law.
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6.5. FCC Licenses. Each Assignor agrees to take any and all
necessary and appropriate commercially reasonable actions to preserve the FCC
Licenses and to otherwise prevent any adverse modification, revocation,
suspension, cancellation, or refusal by the FCC to renew any of the FCC Licenses
except to the extent such modification, revocation, suspension, cancellation or
refusal could not reasonably be expected to have a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of the Borrower and its Subsidiaries
taken a whole. To that end, each Assignor shall execute any and all documents
required by the FCC or any other governmental authority or requested by the
Borrower or the Administrative Agent, and to provide any information with its
possession reasonably requested by any of the foregoing, to ensure that any and
all applications, reports, and other filings are made with the FCC or any other
governmental authority in a timely fashion and that no action is taken by the
FCC, any court, or any governmental authority which could have a material
adverse effect on any of the FCC Licenses.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. Remedies; Obtaining, the Collateral Upon Default. Each
Assignor agrees that, if any Event of Default shall have occurred and be
continuing, then and in every such case, the Administrative Agent, in addition
to any rights now or hereafter existing under applicable law, shall have all
rights as a secured creditor under any UCC, and such additional rights and
remedies to which a secured creditor is entitled under the laws in effect, in
all relevant jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or any
other Person who then has possession of any part thereof with or without notice
or process of law (except any notice required by the Interim Order or the Final
Order), and for that purpose may enter upon such Assignor's premises where any
of the Collateral is located and remove the same and use in connection with such
removal any and all services, supplies, aids and other facilities of such
Assignor;
(ii) instruct the obligor or obligors on any agreement,
instrument or other obligation (including, without limitation, the Receivables
and the Contracts) constituting the Collateral to make any payment required by
the terms of such agreement, instrument or other obligation directly to the
Administrative Agent and may exercise any and all remedies of such Assignor in
respect of such Collateral;
(iii) withdraw all monies, securities and instruments in the
Cash Collateral Account for application to the Obligations in accordance with
Section 7.4 hereof;
(iv) sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof in accordance with Section 7.2 hereof, or direct
the relevant Assignor to sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof, and, in each case, take possession of the
proceeds of any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the
Administrative Agent at any place or
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places designated by the Administrative Agent, in which event such Assignor
shall at its own expense:
(x) forthwith cause the same to be moved to the place
or places so designated by the Administrative Agent and there
delivered to the Administrative Agent;
(y) store and keep any Collateral so delivered to the
Administrative Agent at such place or places pending further
action by the Administrative Agent as provided in Section 7.2
hereof; and
(z) while the Collateral shall be so stored and kept,
provide such guards and maintenance services as shall be
necessary to protect the same and to preserve and maintain the
same in good condition; and
(vi) license or sublicense, whether on an exclusive or
nonexclusive basis, any Marks, Patents or Copyrights included in the Collateral
for such term and on such conditions and in such manner as the Administrative
Agent shall in its sole judgment determine;
it being understood that each Assignor's obligation to so deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Administrative Agent shall be entitled
to a decree requiring specific performance by such Assignor of said obligation.
By accepting the benefits of this Agreement, the Secured Creditors agree that
this Agreement may be enforced only by the action of the Administrative Agent
acting upon the instructions of the Required Secured Creditors and that no other
Secured Creditor shall have any right individually to seek to enforce this
Agreement or to realize upon the security to be granted hereby, it being
understood and agreed that such rights and remedies may be exercised by the
Administrative Agent for the benefit of the Secured Creditors upon the terms of
this Agreement and the DIP Credit Agreement.
7.2. Remedies Disposition of the Collateral. If any Event of
Default shall have occurred and be continuing, then any Collateral repossessed
by the Administrative Agent under or pursuant to Section 7.1 hereof and any
other Collateral whether or not so repossessed by the Administrative Agent, may
be sold, assigned, leased or otherwise disposed of under one or more contracts
or as an entirety, and without the necessity of gathering at the place of sale
the property to be sold, and in general in such manner, at such time or times,
at such place or places and on such terms as the Administrative Agent may, in
compliance with any mandatory requirements of applicable law (including, in the
case of any disposition of the FCC Licenses or transfer of control thereof, the
Communication Act and the FCC Rules), determine to be commercially reasonable.
Subject to, in the case of any disposition of the FCC Licenses or transfer of
control thereof, receipt of any approvals required under the Communications Act
or the FCC Rules, any of the Collateral may be sold, leased or otherwise
disposed of, in the condition in which the same existed when taken by the
Administrative Agent or after any overhaul or repair at the expense of the
relevant Assignor which the Administrative Agent shall determine to be
commercially reasonable. Any such disposition which shall be a private sale or
other private proceedings permitted by such requirements shall be made upon not
less than 10 days' prior written notice to the relevant Assignor specifying the
time at which such disposition is to be made and the
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intended sale price or other consideration therefor, and shall be subject, for
the 10 days after the giving of such notice, to the right of the relevant
Assignor or any nominee of such Assignor to acquire the Collateral involved at a
price or for such other consideration at least equal to the intended sale price
or other consideration so specified. Any such disposition which shall be a
public sale permitted by such requirements shall be made upon not less than 10
days' prior written notice to the relevant Assignor specifying the time and
place of such sale and, in the absence of applicable requirements of law, shall
be by public auction (which may, at the Administrative Agent's option, be
subject to reserve), after publication of notice of such auction (where required
by applicable law) not less than 10 days prior thereto. The Administrative Agent
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 the sale, and such sale may be made at any time or place to which the
sale may be so adjourned. To the extent permitted by any such requirement of
law, the Administrative Agent may bid for and become the purchaser of the
Collateral or any item thereof, offered for sale in accordance with this Section
7.2 without accountability to the relevant Assignor. If, under mandatory
requirements of applicable law, the Administrative Agent shall be required to
make disposition of the Collateral within a period of time which does not permit
the giving of notice to the relevant Assignor as hereinabove specified, the
Administrative Agent need give such Assignor only such notice of disposition as
shall be reasonably practicable in view of such mandatory requirements of
applicable law. Each Assignor agrees to do or cause to be done all such other
acts and things as may be reasonably necessary to make such sale or sales of all
or any portion of the Collateral 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 instrumentality's,
domestic or foreign, having jurisdiction over any such sale or sales, all at
such Assignor's expense.
7.3. Waiver of Claims. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE ADMINISTRATIVE AGENT'S
TAKING POSSESSION OR THE ADMINISTRATIVE AGENT'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES, and each Assignor hereby further waives,
to the extent permitted by law:
(i) all damages occasioned by such taking of possession except
any damages which are the direct result of the Administrative Agent's gross
negligence or willful misconduct;
(ii) all other requirements as to the time, place and terms of
sale or other requirements with respect to the enforcement of the Administrative
Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law in
order to prevent or delay the enforcement of this Agreement or the absolute sale
of the Collateral or any portion thereof, and each Assignor, for itself and all
who may claim under it, insofar as it or they now or hereafter lawfully may,
hereby waives the benefit of all such laws.
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Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from,
through and under such Assignor.
7.4. Application of Proceeds. (a) All moneys collected by the
Administrative Agent (or, to the extent the Pledge Agreement or any Additional
Security Document requires proceeds of collateral under such Security Document
to be applied in accordance with the provisions of this Agreement, the Pledgee
under such other Security Document) upon any sale or other disposition of the
Collateral, together with all other moneys received by the Administrative Agent
hereunder, shall be applied as follows.
(i) first, to the payment of all amounts owing the
Administrative Agent of the type described in clauses (iii) and (iv) of the
definition of "Obligations";
(ii) second, to the extent proceeds remain after the
application pursuant to the preceding clause (i), an amount equal to the
outstanding Primary Obligations shall be paid to the Secured Creditors as
provided in Section 7.4(d) hereof, with each Secured Creditor receiving an
amount equal to such outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its Pro Rata Share of
the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), an amount equal to
the outstanding Secondary Obligations shall be paid to the Secured Creditors as
provided in Section 7.4(d) hereof, with each Secured Creditor receiving an
amount equal to its outstanding Secondary Obligations or, if the proceeds are
insufficient to pay in full all such Secondary Obligations, its Pro Rata Share
of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) through (iii), inclusive, and
following the termination of this Agreement pursuant to Section 10.8(a) hereof,
to the relevant Assignor or to whomever may be lawfully entitled to receive such
surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's Primary
Obligations or Secondary Obligations, as the case may be, and the denominator of
which is the then outstanding amount of all Primary Obligations or Secondary
Obligations, as the case may be, (y) "Primary Obligations" shall mean in the
case of the Credit Document Obligations, all principal of, and interest on, all
Loans and (z) "Secondary Obligations" shall mean all Obligations other than
Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 7.4 only) (i) first, to their Primary Obligations and
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(ii) second, to their Secondary Obligations. If any payment to any Secured
Creditor of its Pro Rata Share of any distribution would result in overpayment
to such Secured Creditor, such excess amount shall instead be distributed in
respect of the unpaid Primary Obligations or Secondary Obligations, as the case
may be, of the other Secured Creditors, with each Secured Creditor whose Primary
Obligations or Secondary Obligations, as the case may be, have not been paid in
full to receive an amount equal to such excess amount multiplied by a fraction
the numerator of which is the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of such Secured Creditor and the denominator of
which is the unpaid Primary Obligations or Secondary Obligations, as the case
may be, of all Secured Creditors entitled to such distribution.
(d) All payments required to be made hereunder shall be made
to the Administrative Agent under the DIP Credit Agreement for the account of
the Secured Creditors.
(e) Unless it has actual knowledge (including by way of
written notice from a Secured Creditor) to the contrary, the Administrative
Agent, in acting hereunder, shall be entitled to assume that no Secondary
Obligations are outstanding.
(f) It is understood that the Assignors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the Obligations.
7.5. Remedies Cumulative. Each and every right, power and
remedy hereby specifically given to the Administrative Agent shall be in
addition to every other right, power and remedy specifically given under this
Agreement, the other Secured Debt Agreements or now or hereafter existing at
law, in equity or by statute and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to
time or simultaneously and as often and in such order as may be deemed expedient
by the Administrative Agent. All such rights, powers and remedies shall be
cumulative and the exercise or the beginning of the exercise of one shall not be
deemed a waiver of the right to exercise any other or others. No delay or
omission of the Administrative Agent in the exercise of any such right, power or
remedy and no renewal or extension of any of the Obligations shall impair any
such right, power or remedy or shall be construed to be a waiver of any Default
or Event of Default or an acquiescence thereof. No notice to or demand on any
Assignor in any case shall entitle it to any other or further notice or demand
in similar or other circumstances or constitute a waiver of any of the rights of
the Administrative Agent to any other or further action in any circumstances
without notice or demand. In the event that the Administrative Agent shall bring
any suit to enforce any of its rights hereunder and shall be entitled to
judgment, then in such suit the Administrative Agent may recover reasonable
expenses, including reasonable attorneys' fees, and the amounts thereof shall be
included in such judgment.
7.6. Discontinuance of Proceedings. In case the Administrative
Agent shall have instituted any proceeding to enforce any right, power or remedy
under this Agreement by foreclosure, sale, entry or otherwise, and such
proceeding shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Administrative Agent, then and in every
such case the relevant Assignor, the Administrative Agent and each holder of any
of the Obligations shall be restored to their former positions and rights
hereunder with respect to the Collateral subject to the security interest
created under this Agreement, and all
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rights, remedies and powers of the Administrative Agent shall continue as if no
such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1. Indemnity. (a) Each Assignor jointly and severally agrees
to indemnify, reimburse and hold the Administrative Agent, each other Secured
Creditor and their respective successors, permitted assigns, employees, agents
and servants (hereinafter in this Section 8.1 referred to individually as
"Indemnitee," and collectively as "Indemnitees") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all costs, expenses or disbursements
(including reasonable attorneys' fees and expenses) (for the purposes of this
Section 8.1 the foregoing are collectively called "expenses") of whatsoever kind
and nature imposed on, asserted against or incurred by any of the Indemnitees in
any way relating to or arising out of this Agreement, any other Secured Debt
Agreement or any other document executed in connection herewith or therewith or
in any other way connected with the administration of the transactions
contemplated hereby or thereby or the enforcement of any of the terms of, or the
preservation of any rights under any thereof, or in any way relating to or
arising out of the manufacture, ownership, ordering, purchase, delivery,
control, acceptance, lease, financing, possession, operation, condition, sale,
return or other disposition, or use of the Collateral (including, without
limitation, latent or other defects, whether or not discoverable), the violation
of the laws of any country, state or other governmental body or unit, any tort
(including, without limitation, claims arising or imposed under the doctrine of
strict liability, or for or on account of injury to or the death of any Person
(including any Indemnitee), or property damage), or contract claim; provided
that no Indemnitee shall be indemnified pursuant to this Section 8.1 (a) for
losses, damages or liabilities to the extent caused by the gross negligence or
willful misconduct of such Indemnitee. Each Assignor agrees that upon written
notice by any Indemnitee of the assertion of such a liability, obligation,
damage, injury, penalty, claim, demand, action, suit or judgment, the relevant
Assignor shall assume full responsibility for the defense thereof. Each
Indemnitee agrees to use its best efforts to promptly notify the relevant
Assignor of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof,
each Assignor agrees, jointly and severally, to pay, or reimburse the
Administrative Agent for any and all reasonable fees, costs and expenses of
whatever kind or nature incurred in connection with the creation, preservation
or protection of the Administrative Agent's Liens on, and security interest in,
the Collateral, including, without limitation, all fees and taxes in connection
with the recording or filing of instruments and documents in public offices,
payment or discharge of any taxes or Liens upon or in respect of the Collateral,
premiums for insurance with respect to the Collateral and all other fees, costs
and expenses in connection with protecting, maintaining or preserving the
Collateral and the Administrative Agent's interest therein, whether through
judicial proceedings or otherwise, or in defending or prosecuting any actions,
suits or proceedings arising out of or relating to the Collateral.
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(c) Without limiting the application of Section 8.1 (a) or (b)
hereof, each Assignor agrees, jointly and severally, to pay, indemnify and hold
each Indemnitee harmless from and against any loss, costs, damages and expenses
which such Indemnitee may suffer, expend or incur in consequence of or growing
out of any misrepresentation by any Assignor in this Agreement, any other
Secured Debt Agreement or in any writing contemplated by or made or delivered
pursuant to or in connection with this Agreement or any other Secured Debt
Agreement.
(d) If and to the extent that the obligations of any Assignor
under this Section 8.1 are unenforceable for any reason, such Assignor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
8.2. Indemnity Obligations Secured by Collateral; Survival.
Any amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all of the
other Obligations and notwithstanding the full payment of all the Notes issued
under the DIP Credit Agreement and all Letters of Credit and the payment of all
other Obligations and notwithstanding the discharge thereof.
ARTICLE IX
DEFINITIONS
(a) Unless otherwise defined herein, all capitalized terms
used herein and defined in the DIP Credit Agreement shall be used herein as
therein defined. Reference to singular terms shall include the plural and vice
versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Administrative Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Agreement" shall mean this Security Agreement as the same may
be modified, supplemented or amended from time to time in accordance with its
terms.
"Assignor" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrower" shall have the meaning provided in the recitals of
this Agreement.
"Cash Collateral Account" shall mean a cash collateral account
maintained with, and in the sole dominion and control of, the Administrative
Agent for the benefit of the Secured Creditors.
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"Chattel Paper" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Collateral" shall have the meaning provided in Section 1.1
(a) of this Agreement.
"Contract Rights" shall mean all rights of any Assignor under
each Contract, including, without limitation, (i) any and all rights to receive
and demand payments under any or all Contracts, (ii) any and all rights to
receive and compel performance under any or all Contracts and (iii) any and all
other rights, interests and claims now existing or in the future arising in
connection with any or all Contracts.
"Contracts" shall mean all contracts between any Assignor and
one or more additional parties (including, without limitation, any Interest Rate
Protection Agreements or Other Hedging Agreements and any partnership
agreements, joint venture agreements, limited liability company agreements and
licensing agreements), but excluding any contract to the extent that the terms
thereof prohibit (after giving effect to any approvals or waivers) the
assignment of, or granting a security interest in, such contract (it being
understood and agreed, however, that notwithstanding the foregoing, all rights
to payment for money due or to become due pursuant to any such excluded contract
shall be subject to the security interests created by this Agreement).
"Copyrights" shall mean any United States copyright owned by
any Assignor, including any registrations of any Copyrights, in the United
States Copyright Office or any foreign equivalent office, as well as any
application for a copyright registration now or hereafter made by any Assignor
with the United States Copyright Office or any foreign equivalent office.
"Credit Document Obligations" shall have the meaning provided
in the definition of "Obligations" in this Article IX.
"Default" shall mean any event which, with notice or lapse of
time, or both, would constitute an Event of Default.
"DIP Credit Agreement" shall have the meaning provided in the
recitals of this Agreement.
"Documents" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York, now or hereafter owned by any Assignor and, in any event,
shall include, but shall not be limited to, all machinery, equipment,
furnishings, fixtures and vehicles now or hereafter owned by any Assignor 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 License" shall have the meaning provided in Section 1.1
of this Agreement.
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"General Intangibles" shall have the meaning provided in the
Uniform Commercial Code as in effect on the date hereof in the State of New York
(and shall include all partnership interests and all limited liability company
and membership interests).
"Goods" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 8.1 of
this Agreement.
"Instrument" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Inventory" shall mean merchandise, Inventory and goods, and
all additions, substitutions and replacements thereof, wherever located,
together with all goods, supplies, incidentals, packaging materials, labels,
materials and any other items used or usable in manufacturing, processing,
packaging or shipping same, in all stages of production -- from raw materials
through work-in-process to finished goods -- and all products and proceeds of
whatever sort and wherever located and any portion thereof which may be
returned, rejected, reclaimed or repossessed by the Administrative Agent from
any Assignor's customers, and shall specifically include all "Inventory" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York, now or hereafter owned by any Assignor.
"Investment Property" shall have the meaning provided in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Lenders" shall have the meaning provided in the recitals of
this Agreement.
"Marks" shall mean all right, title and interest in and to any
trademarks, service marks and trade names now held or hereafter acquired by any
Assignor, including any registration of any trademarks and service marks in the
United States Patent and Trademark Office or in any equivalent foreign office
and any trade dress including logos and/or designs used by any Assignor.
"Obligations" shall mean (i) the full and prompt payment when
due (whether at the stated maturity, by acceleration or otherwise) of all
obligations and indebtedness (including, without limitation, indemnities, Fees
and interest thereon) of each Assignor to the Lender Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection with the
DIP Credit Agreement and the other Credit Documents to which such Assignor is a
party (including all such obligations and indebtedness of such Assignor under
the Subsidiaries Guaranty) and the due performance and compliance by such
Assignor with all of the terms, conditions and agreements contained in the DIP
Credit Agreement and such other Credit Documents (all such obligations and
liabilities under this clause (i) being herein collectively called the "Credit
Document Obligations"); (ii) any and all sums advanced by the Administrative
Agent in order to preserve the Collateral or preserve its security interest in
the Collateral; (iii) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities of such Assignor
referred to in clause (i) above, after an Event of Default shall have occurred
and be continuing, the reasonable expenses of retaking, holding, preparing for
sale or lease, selling or otherwise disposing of or realizing on the Collateral,
or of any exercise by the
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Administrative Agent of its rights hereunder, together with reasonable
attorneys' fees and court costs; and (iv) all amounts paid by any Indemnitee as
to which such Indemnitee has the right to reimbursement under Section 8.1 of
this Agreement; it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
"Patents" shall mean any patent to which any Assignor now or
hereafter has title and any divisions or continuations thereof, as well as any
application for a patent now or hereafter made by any Assignor.
"Permits" shall mean, to the extent permitted to be assigned
by the terms thereof or by applicable law, all licenses, permits, rights,
orders, variances, franchises or authorizations of or from any governmental
authority or agency.
"Primary Obligations" shall have the meaning provided in
Section 7.4(b) of this Agreement.
"Pro Rata Share" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Proceeds" shall have the meaning provided in the Uniform
Commercial Code as in effect in the State of New York on the date hereof or
under other relevant law and, in any event, shall include, but not be limited
to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to the Administrative Agent or any Assignor from time to time with
respect to any of the Collateral, (ii) any and all payments (in any form
whatsoever) made or due and payable to any Assignor 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 under color of governmental authority) and (iii) any and
all other amounts from time to time paid or payable under or in connection with
any of the Collateral.
"Receivables" shall mean any "account" as such term is defined
in the Uniform Commercial Code as in effect on the date hereof in the State of
New York, now or hereafter owned by any Assignor and, in any event, shall
include, but shall not be limited to, all of such Assignor's rights to payment
for goods sold or leased or services performed by such Assignor, whether now in
existence or arising from time to time hereafter, including, without limitation,
rights evidenced by an account, note, contract, security agreement, chattel
paper, or other evidence of indebtedness or security, together with (a) all
security pledged, assigned, hypothecated or granted to or held by such Assignor
to secure the foregoing, (b) all of any Assignor's right, title and interest in
and to any goods, the sale of which gave rise thereto, (c) all guarantees,
endorsements and indemnifications on, or of, any of the foregoing, (d) all
powers of attorney for the execution of any evidence of indebtedness or security
or other writing in connection therewith, (e) all books, records, ledger cards,
and invoices relating thereto, (0 all evidences of the filing of financing
statements and other statements and the registration of other instruments in
connection therewith and amendments thereto, notices to other creditors or
secured parties, and certificates from filing or other registration officers,
(g) all credit
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information, reports and memoranda relating thereto and (h) all other writings
related in any way to the foregoing.
"Secondary Obligations" shall have the meaning provided in
Section 7.4(b) of this Agreement.
"Secured Creditors" shall have the meaning provided in the
recitals of this Agreement.
"Secured Debt Agreements" shall mean and include this
Agreement and the other Credit Documents.
"Significant Copyright" shall mean each Copyright listed in
Annex F hereto of any Assignor that is material to its business, financial
condition or property.
"Significant ▇▇▇▇" shall mean each ▇▇▇▇ listed on Annex D
hereto of any Assignor that is material to its business, financial condition or
property.
"Significant Patent" shall mean each Patent listed in Annex E
hereto for any Assignor that is material to its business, financial condition or
property.
"Termination Date" shall have the meaning provided in Section
10.8 of this Agreement.
"Trade Secret Rights" shall have the meaning provided in
Section 5.1 of this Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in the relevant jurisdiction.
ARTICLE X
MISCELLANEOUS
10.1. Notices. Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be deemed to have been duly given or made when delivered to
the party to which such notice, request, demand or other communication is
required or permitted to be given or made under this Agreement, addressed as
follows:
(a) if to any Assignor, at the address set forth opposite such
Assignor's signature below;
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(b) if to the Administrative Agent, at:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax. No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Secured Creditor, at such address as such Lender
Creditor shall have specified in the DIP Credit Agreement;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
10.2. Waiver; Amendment. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Assignor directly effected
thereby and the Administrative Agent (with the written consent of the Required
Lenders).
10.3. Obligations Absolute. The obligations of each Assignor
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of such Assignor; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement or any other Secured Debt
Agreement; or (c) any amendment to or modification of any Secured Debt Agreement
or any security for any of the Obligations; whether or not such Assignor shall
have notice or knowledge of any of the foregoing.
10.4. Successors and Assigns. This Agreement shall be binding
upon each Assignor and its successors and assigns (although no Assignor may
assign its rights and obligations hereunder except in accordance with the
provisions of the Secured Debt Agreements) and shall inure to the benefit of and
be enforceable by the Administrative Agent and the Secured Creditors and their
respective successors and assigns. All agreements, statements, representations
and warranties made by each Assignor herein or in any certificate or other
instrument delivered by such Assignor or on its behalf under this Agreement
shall be considered to have been relied upon by the Secured Creditors and shall
survive the execution and delivery of this Agreement and the other Secured Debt
Agreements regardless of any investigation made by the Secured Creditors or on
their behalf.
10.5. Headings Descriptive. The headings of the several
sections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
10.6. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
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10.7. Assignor's Duties. It is expressly agreed, anything
herein contained to the contrary notwithstanding, that each Assignor shall
remain liable to perform all of the obligations, if any, assumed by it with
respect to the Collateral and the Administrative Agent shall not have any
obligations or liabilities with respect to any Collateral by reason of or
arising out of this Agreement, nor shall the Administrative Agent be required or
obligated in any manner to perform or fulfill any of the obligations of any
Assignor under or with respect to any Collateral.
10.8. Termination: Release. (a) After the Termination Date,
this Agreement shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 8.1 hereof shall survive such
termination) and the Administrative Agent, at the request and expense of the
respective Assignor, will promptly execute and deliver to such Assignor a proper
instrument or instruments (including Uniform Commercial Code termination
statements on form UCC-3) acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Assignor (without
recourse and without any representation or warranty) such of the Collateral as
may be in the possession of the Administrative Agent and as has not theretofore
been sold or otherwise applied or released pursuant to this Agreement. As used
in this Agreement, "Termination Date" shall mean the date upon which the Total
Commitment has been terminated, no Note is outstanding (and all Loans have been
repaid in full) and all Obligations then owing have been paid in full.
(b) In the event that any part of the Collateral is sold in
connection with a sale permitted by Section 8.02 of the DIP Credit Agreement or
otherwise released at the direction of the Required Lenders and the proceeds of
such sale or sales or from such release are applied in accordance with the
provisions of the DIP Credit Agreement, to the extent required to be so applied,
such Collateral will be sold free and clear of the Liens created by this
Agreement and the Administrative Agent, at the request and expense of the
relevant Assignor, will duly assign, transfer and deliver to such Assignor
(without recourse and without any representation or warranty) such of the
Collateral as is then being (or has been) so sold or released and as may be in
the possession of the Administrative Agent and has not theretofore been released
pursuant to this Agreement.
(c) At any time that an Assignor desires that the
Administrative Agent take any action to acknowledge or give effect to any
release of Collateral pursuant to the foregoing Section 10.8(a) or (b), such
Assignor shall deliver to the Administrative Agent a certificate signed by a
principal executive officer of such Assignor stating that the release of the
respective Collateral is permitted pursuant to Section 10.8(a) or (b), as the
case may be.
10.9. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with each
Assignor and the Administrative Agent.
10.10. Severability. Any provision of this Agreement which is
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 hereof, and any
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such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
10.11. The Administrative Agent. The Administrative Agent will
hold in accordance with this Agreement all items of the Collateral at any time
received under this Agreement. It is expressly understood and agreed that the
obligations of the Administrative Agent as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth in this Agreement and
in Section 11 of the DIP Credit Agreement. The Administrative Agent shall act
hereunder and thereunder on the terms and conditions set forth herein and in
Section 11 of the DIP Credit Agreement.
10.12. Additional Assignors. It is understood and agreed that
any Subsidiary of the Borrower that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the DIP Credit Agreement shall
become an Assignor hereunder by executing a counterpart hereof and delivering
the same to the Administrative Agent.
10.13. Actions Requiring FCC Approval. (a) Notwithstanding
anything to the contrary contained in this Agreement, or any of the documents
executed pursuant hereto, the Administrative Agent will not take any action
pursuant to this Agreement, or any such documents, which would constitute or
result in any assignment of any FCC License or any transfer of control of the
holder of any FCC License if such assignment of such FCC License or such
transfer of control would require under then existing law (including the
Communications Act or the FCC Rules) the prior approval of the FCC, without
first obtaining such approval. In connection with this Section 10.13, the
Administrative Agent shall be entitled to rely upon the advise of FCC counsel of
the Administrative Agent's choice with respect to such assignment or transfer
(including to determine whether any such assignment or transfer has occurred or
will occur and whether or not prior approval of the FCC is required) whether or
not the advice rendered is ultimately determined to have been accurate.
(b) If an Event of Default shall have occurred and be
continuing, each Assignor shall take any action which the Administrative Agent
may request in the exercise of its rights and remedies under this Agreement in
order to transfer or assign the Collateral to the Administrative Agent or to
such one or more third parties as the Administrative Agent may designate, or to
a combination of the foregoing. To enforce the provisions of this Section 10.13,
after an Event of Default shall have occurred and be continuing, the
Administrative Agent is empowered to request, and each Assignor hereby agrees to
authorize, the appointment of a receiver or trustee from any court of competent
jurisdiction. Such receiver or trustee shall be instructed to seek from the FCC
(and any other governmental authority) consent or approval as may be required by
the Communications Act and the FCC Rules for any assignment of the assets of or
transfer of control of any or all of the FCC Licenses or any Person whose stock,
partnership interest or other equity interest is subject to this Agreement to
the extent required for such trustee or receiver to assume such control for the
purpose of seeking a bona fide purchaser to whom such FCC Licenses or other
Collateral will be assigned or control of such entity ultimately will be
transferred. Each Assignor agrees, at such Assignor's cost and expense, to
cooperate with any such trustee or receiver, or at such trustee's or receiver's
direction, such purchaser and with the Administrative Agent in the preparation,
execution and filing of any applications or other
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documents and providing any information that may be necessary or helpful in
obtaining the FCC's consent to the assignment or transfer to such trustee or
receiver, or at such trustee's or receiver's direction, such purchaser of the
Collateral or any of the FCC Licenses. To the fullest extent permitted under
applicable law, each Assignor hereby agrees to consent to and authorize any such
transfer of control upon the request of the Administrative Agent after the
occurrence of and during the continuation of an Event of Default and, without
limiting any rights of the Administrative Agent under this Agreement, to
authorize the Administrative Agent to nominate a trustee or receiver to assume
control of the Collateral, subject only to any required consent, approval or
order of a court of competent jurisdiction, the FCC or other governmental
authorities, for the purposes of effectuating the transactions contemplated in
this Section 10.13(b). Such trustee or receiver shall have all the rights and
powers as provided to it by law, court order or to the Administrative Agent
under this Agreement. Each Assignor shall cooperate fully and use its best
efforts in obtaining the consent of the FCC and the approval or consent of each
other governmental authority required to effectuate the foregoing.
(c) Each Assignor shall use its best efforts to assist in
obtaining the consent or approval of the FCC, any court, and any other
governmental authority, if required, for any action or transaction contemplated
by this Agreement, including, without limitation, the preparation, execution and
filing with the FCC of the transferor's or assignor's portion of any application
or applications for consent to the transfer of control or assignment necessary
or appropriate under the FCC's policies, rules and regulations for approval of
the transfer or assignments of all or any portion of the Collateral.
(d) Each Assignor hereby acknowledges and agrees that the FCC
Licenses are unique assets and that a violation of such Assignor's covenant to
cooperate with respect to the obtainment of any regulatory consents would result
in irreparable harm to the Administrative Agent for which monetary damages are
not readily ascertainable. Each Assignor further agrees that, because of the
unique nature of its undertakings in this Section 10.13, the same may be
specifically enforced, and such Assignor hereby waives, and agrees to waive, any
claim or defense that the Administrative Agent would have an adequate remedy at
law for the breach of such undertakings and any requirement for posting of a
bond or other certificate.
(e) Without limiting the obligations of any Assignor hereunder
in any respect, each Assignor further agrees that if such Assignor, upon or
after the occurrence and during the continuance of an Event of Default, should
fail or refuse to execute any application or other document necessary or
appropriate to obtain any governmental consent necessary or appropriate for the
exercise of any right of the Administrative Agent hereunder, such Assignor
agrees that, to the fullest extent permitted by the Communications Act and the
FCC Rules, such application or other document may be executed on such Assignor's
behalf by the clerk of any court or other forum in any competent jurisdiction
without notice to such Assignor.
(f) This Section 10.13 shall not limit any other rights of the
Administrative Agent or the Secured Creditors available under applicable law and
consistent with the Communications Act and the FCC Rules.
10.14. Consent and Waiver. EACH ASSIGNOR HEREBY IRREVOCABLY
CONSENTS TO AND WAIVES ANY RIGHT TO OBJECT TO OR OTHERWISE CONTEST
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THE APPOINTMENT OF A RECEIVER AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF
AN EVENT OF DEFAULT. EACH ASSIGNOR HEREBY GRANTS SUCH CONSENT AND WAIVER
KNOWINGLY AFTER HAVING DISCUSSED THE IMPLICATIONS THEREOF WITH COUNSEL,
ACKNOWLEDGES THAT THE UNCONTESTED RIGHT TO HAVE A RECEIVER APPOINTED FOR THE
FOREGOING PURPOSES IS CONSIDERED ESSENTIAL BY THE ADMINISTRATIVE AGENT AND THE
SECURED CREDITORS IN CONNECTION WITH THE ENFORCEMENT OF THEIR RIGHTS AND
REMEDIES HEREUNDER AND UNDER THE OTHER CREDIT DOCUMENTS, AND THE AVAILABILITY OF
SUCH APPOINTMENT AS A REMEDY UNDER THE FOREGOING CIRCUMSTANCES WAS A MATERIAL
FACTOR IN INDUCING THE LENDERS TO MAKE (AND COMMIT TO MAKE) LOANS TO THE
BORROWER, AND AGREES TO ENTER INTO ANY AND ALL STIPULATIONS IN ANY LEGAL
ACTIONS, OR AGREEMENTS OR OTHER INSTRUMENTS IN CONNECTION WITH THE FOREGOING AND
TO COOPERATE FULLY WITH THE ADMINISTRATIVE AGENT AND THE REQUIRED LENDERS IN
CONNECTION WITH THE ASSUMPTION AND EXERCISE OF CONTROL BY THE RECEIVER OVER ALL
OR ANY PORTION OF THE COLLATERAL.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
Address:
-------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ WEBLINK WIRELESS, INC.,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as an Assignor
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ By:
---------------------------
Name:
Title:
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Administrative Agent
By:
--------------------------------
Name:
Title: