Exhibit 10.33
BORROWER SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of October 2, 1996, made by
SPRINT SPECTRUM L.P., a Delaware limited partnership (the "Borrower"), in favor
of the Trustees under the Trust Agreement described below for the benefit of the
Secured Parties that are the beneficiaries of the Trust Estate under the Trust
Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have severally agreed to make
loans and other extensions of credit to the Borrower; and
WHEREAS, it is a condition precedent to the obligation of the
Secured Parties to make their respective loans and other extensions of credit to
the Borrower that the Borrower shall have executed and delivered this Security
Agreement to the Trustees;
NOW, THEREFORE, the Borrower hereby agrees with the Trustees
for the benefit of the Secured Parties as follows:
I. Defined Terms.
A. Definitions. 1. Unless otherwise defined herein, and the
following terms which are defined in the Uniform Commercial Code in effect in
the State of New York on the date hereof are used herein as so defined:
Accounts, Chattel Paper, Documents, Farm Products, General Intangibles
(including but not limited to contract rights of the Borrower, whether or not
under Contracts), Instruments and Proceeds. Other terms used but not defined
herein shall have the meanings ascribed thereto in the Trust Agreement.
2. As used in this Agreement, the following terms shall have
the following meanings:
"Agreement": this Security Agreement, as the same may be
amended, supplemented or otherwise
modified from time to time.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 2.
"Contracts": the rights under, and the benefits of, the
contracts and agreements listed in Schedule 1, as the same may be
amended, supplemented or otherwise modified from time to time,
including, in each case, without limitation, (a) all rights of the
Borrower to receive moneys due and to become due to it thereunder or in
connection therewith, (b) all rights of the Borrower to damages arising
out of or for breach or default in respect thereof, (c) all rights of
the Borrower to exercise all remedies thereunder, (d) all rights of the
Borrower to receive and compel performance thereunder, (e) all rights
of the Borrower to enter into any waiver or amendment thereof and (f)
all other rights thereunder.
"Contractual Obligations": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Corporate Trustee": First Union National Bank, as Corporate
Trustee under the Trust Agreement, and its successors pursuant to the
Trust Agreement.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising execu-
tive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Individual Trustee": ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Individual
Trustee under the Trust Agreement, and his successors pursuant to the
Trust Agreement.
"Lien": any mortgage, pledge, hypothecation, assignment, de-
posit arrangement, encumbrance, lien (statutory or other), charge or
other security interest of any kind or nature whatsoever.
"Notice of Enforcement": as defined in the Trust Agreement.
"Patents": (a) all letters patent of the United States or any
other country and all reissues and extensions thereof, including,
without limitation, any thereof referred to in Schedule 2, and (b) all
applications for letters patent of the United States or any other
country and all divisions, continuations and continuations-in-part
thereof, including, without limitation, any thereof referred to in
Schedule 2.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to the Borrower of any right to manufac-
ture, use or sell any invention covered by a Patent, including, without
limitation, any thereof referred to in Schedule 2.
"Permitted Lien": with respect to any Collateral, any Lien
permitted to exist on such Collateral without violating any Secured In-
strument.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Pledge Agreements": the collective reference to (a) the
Pledge Agreement, dated as of October 2, 1996, made by the Borrower and
MinorCo, L.P. in favor of the Trustees and (b) any other pledge agree-
ment made from time to time by the Borrower and MinorCo, L.P. in favor
of the Trustees.
"Receivable": any right to payment whether or not such right
is evidenced by an Instrument or Chattel Paper and whether or not it
has been earned by performance (including, without limitation, any
Account).
"Requirement of Law": as to any Person, the partnership
agreement, the certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and any law,
treaty, rule or regulation, or determination, judgment, writ,
injunction, decree or order of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"Secured Obligations": as defined in the Trust Agreement.
"Secured Obligation Commitments": all commitments by Secured
Parties to make loans or extend other credit to the Borrower that, when
so made or extended, would constitute Secured Obligations.
"Secured Parties": as defined in the Trust Agreement.
"Trademarks": (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers,
and the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
thereof referred to in Schedule 3, and (b) all renewals thereof.
"Trademark License": any agreement, written or oral, provid-
ing for the grant by or to the Borrower of any right to use any Trade-
▇▇▇▇, including, without limitation, any thereof referred to in
Schedule 3.
"Trust Agreement": the Trust Agreement, dated as of October
2, 1996, among the Borrower, the Corporate Trustee and the Individual
Trustee, as the same may be amended, supplemented or otherwise modified
from time to time.
"Trust Estate": as defined in the Trust Agreement.
"Trustees": the collective reference to the Corporate Trustee
and the Individual Trustee.
"Voting Secured Obligations": as defined in the Trust Agree-
ment.
B. Other Definitional Provisions. 1. The words "hereof,"
"herein", "hereto" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, subsection, Annex and Schedule
references are to this Agreement unless otherwise specified.
2. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
II. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Secured Obligations, the Borrower
hereby grants to the Trustees for the benefit of the Secured Parties a security
interest in all of the following property now owned or at any time hereafter
acquired by the Borrower or in which the Borrower now has or at any time in the
future may acquire any right, title or interest (collectively, the
"Collateral"):
1. all Accounts;
2. all Chattel Paper;
3. all Contracts;
4. all Documents;
5. all General Intangibles;
6. all Instruments;
7. all Patents;
8. all Patent Licenses;
9. all Trademarks;
10. all Trademark Licenses;
11. all books and records pertaining to the Collateral; and
12. to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security
and guarantees given by any Person with respect to any of the
foregoing;
provided, however, that the Collateral shall not include the Collateral under
(and as defined in) the Pledge Agreements.
III. Representations and Warranties. The Borrower hereby
represents and warrants that:
A. Power and Authority. The Borrower has the partnership power
and authority and the legal right to execute and deliver, to perform its
obligations under, and to grant the security interest in the Collateral pursuant
to, this Agreement and has taken all necessary partnership action to authorize
its execution, delivery and performance of, and grant of the security interest
in the Collateral pursuant to, this Agreement.
B. No Other Liens. Except for the security interest granted to
the Trustees pursuant to this Agreement and Permitted Liens, the Collateral is
free and clear of any Liens. No security agreement, financing statement or other
public notice with respect to all or any part of the Collateral is on file or of
record in any public office, except such as have been filed in favor of the
Corporate Trustee pursuant to this Agreement or as have been filed or recorded
in connection with Permitted Liens.
C. Enforceable Obligation; Perfected, First Priority Security
Interests. This Agreement constitutes a legal, valid and binding obligation of
the Borrower, enforceable in accordance with its terms, subject to the effects
of bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. The security interests granted
pursuant to this Agreement 1. upon completion of the filings and other actions
specified on Schedule 4 will constitute perfected security interests in the
Collateral as collateral security for the Secured Obligations and 2. are prior
to all other Liens on the Collateral in existence on the date hereof except for
any Permitted Liens that may be permitted to have priority pursuant to the
Secured Instruments.
D. No Violation. The execution, delivery and performance of
this Agreement will not violate, result in a default under, or give rise to any
acceleration, prepayment, repurchase or redemption obligation of the Borrower or
any of its Restricted Subsidiaries as a result of, any Requirement of Law or
Contractual Obligation of the Borrower or of any of its Restricted Subsidiaries
and will not result in, or require, the creation or imposition of any Lien on
any of its or their respective properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation, except the security interests
created hereby.
E. No Consents Required. No consent or authorization of,
filing with, or other act by or in respect of, any arbitrator or Governmental
Authority and no consent of any other Person, is required in connection with the
execution, delivery, performance, validity or enforceability of this Agreement
other than any of the foregoing that have been obtained or made and are in full
force and effect.
F. Chief Executive Office. The Borrower's chief executive
office is located at either ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
G. Farm Products. None of the Collateral constitutes, or is
the Proceeds of, Farm Products.
H. Accounts. No Receivable of the Borrower is evidenced by any
Instrument or Chattel Paper which has not been delivered to the Agent, except to
the extent that such Instruments or Chattel Paper would not be required by any
Secured Instrument to constitute Collateral. The Borrower's records concerning
the Accounts will be maintained in the state in which its chief executive office
is located or in such other state in which the Borrower has filed any UCC
financing statements required to perfect the Trustee's security interest in such
Accounts.
IV. Covenants. The Borrower covenants and agrees that, from
and after the date of this Agreement until the Secured Obligations shall have
been paid and performed in full and the Secured Obligation Commitments are ter-
minated:
A. Limitation on Dispositions and Liens; Further Documenta-
tion. 1. The Borrower will not sell, transfer, lease or otherwise dispose of
any of the Collateral, except as permitted by the Secured Instruments.
2. The Borrower will not create, incur or permit to exist any
Lien or claim on or to the Collateral, other than the security interests created
hereby and the Permitted Liens, will maintain the security interest created by
this Agreement as a perfected security interest having at least the priority
described in subsection 3.3 and will defend such security interest against
claims and demands of all Persons whomsoever.
3. At any time and from time to time, at the sole expense of
the Borrower, the Borrower will promptly and duly execute and deliver such
further instruments and documents and take such further actions as may be
necessary or as the Corporate Trustee may reasonably request (provided that the
Corporate Trustee shall not be required to make any such request unless given
direction to do so by a Holder Representative or the Required Secured Parties)
for the purpose of obtaining or preserving the full benefits of this Agreement
and of the rights and powers herein granted, including, without limitation, the
filing of any financing or continuation statements under the Uniform Commercial
Code in effect in any jurisdiction with respect to the security interests
created hereby.
B. Delivery of Instruments. If any Collateral is or shall be
or become evidenced by any Instrument or Chattel Paper, such Instrument or
Chattel Paper shall be immediately delivered to the Corporate Trustee, duly
indorsed in a manner satisfactory to the Corporate Trustee, to be held by it
under the Trust Agreement as collateral for the Secured Obligations, except to
the extent that such Instrument or Chattel Paper would not be required by any
Secured Instrument to constitute Collateral.
C. Changes in Locations, Name, etc. The Borrower will not
change the location of its chief executive office from that specified in
subsection 3.6 or change its name, identity or corporate structure to such an
extent that any financing statement filed in connection with this Agreement
would become seriously misleading, unless, in each such case, it shall have
given the Corporate Trustee at least 30 days prior written notice thereof and
caused to be filed such financing statement amendments, or new financing
statements, as shall be required to continue the perfection and priority of the
Trustees' security interest hereunder.
D. Notices. The Borrower will advise the Corporate Trustee
promptly upon becoming aware thereof, in reasonable detail, at its address for
notices provided for in the Trust Agreement, of any Lien (other than security
interests created hereby or Permitted Liens) on any of the Collateral.
E. Indemnification. The Borrower agrees to pay, and to hold
the Trustees and the Secured Parties harmless from, any and all liabilities,
costs and expenses (including, without limitation, reasonable legal fees and
expenses) (i) with respect to, or resulting from any delay in paying, any and
all excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral, (ii) with respect to, or
resulting from, any delay in complying with any Requirement of Law applicable to
any of the Collateral or (iii) in connection with any of the transactions
contemplated by this Security Agreement. In any suit, proceeding or action
brought by any Trustee under any Account or Contract for any sum owing
thereunder, or to enforce any provisions of any Account or Contract, the
Borrower will indemnify and hold the Trustees and the Secured Parties harmless
from and against all expenses, loss or damage suffered by reason of any defense,
setoff counterclaim, recoupment or reduction or liability whatsoever of the
account debtor or obligor thereunder, arising out of a breach by the Borrower of
any obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such account debtor or obligor or
its successors from the Borrower.
F. Maintenance of Records. The Borrower will keep and maintain
at its own cost and expense satisfactory and complete records of the Collateral,
including, without limitation, a record of all payments received and all credits
granted with respect to the Accounts. The Borrower will ▇▇▇▇ its books and
records pertaining to the Collateral to evidence this Security Agreement and the
security interests granted hereby.
G. Right of Inspection. The Trustees shall at all times have
full and free access during normal business hours and upon reasonable notice to
all the books, correspondence and records of the Borrower relating to the
Collateral, and the Trustees and their representatives may examine the same,
take extracts therefrom and make photocopies thereof, and the Borrower agrees to
render to the Trustees, at the Borrower's cost and expenses, such clerical and
other assistance as may be reasonably requested with regard thereto.
H. Payment of Taxes and Other Accounts. The Borrower will pay
promptly when due all taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of its income or profits therefrom, as
well as all claims of any kind (including, without limitation, claims for labor,
materials and supplies) against or with respect to the Collateral which have a
reasonable likelihood of adverse determination, except that no such charge need
be paid if (i) the validity or amount thereof is being contested in good faith
by appropriate proceedings, (ii) such proceedings do not involve any material
danger of the sale, forfeiture or loss of any material portion of the Collateral
or any interest therein and (iii) such charge is adequately reserved against on
the Borrower's books in accordance with GAAP.
I. Liens on Collateral. The Borrower will defend the
Collateral against, and will take such other action as is necessary to remove,
any Lien or claim on or to the Collateral, other than the Liens created hereby
and other than Permitted Liens, and will defend the right, title and interest of
the Trustees and the Secured Parties in and to any of the Collateral against the
claims and demands of all Persons whomsoever.
J. Further Identification of Collateral. The Borrower will
furnish to the Trustees from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Corporate Trustee may reasonably request, all in
reasonable detail.
K. Acknowledgements and Consents. The Borrower will deliver
to the Trustees on the date hereof Acknowledgement and Consents, substantially
in the form of Annex I, in respect of the Sprint Trademark Agreement, the Lucen
Agreement and the Nortel Agreement (as such terms are defined in Schedule 1),
duly executed by Sprint Communications Company, L.P., Lucent Technologies Inc.
and Northern Telecom Inc., respectively.
V. Provisions Relating to Receivables.
A. Borrower Remains Liable under Receivables. Anything herein
to the contrary notwithstanding, the Borrower shall remain liable under each of
the Receivables to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with the terms of any
agreement giving rise to each such Receivable. Neither the Trustees nor any
Secured Party 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 Trustees or any Secured Party of any payment relating to
such Receivable pursuant hereto, nor shall the Trustees or any Secured Party be
obligated in any manner to perform any of the obligations of the Borrower 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 it 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 it or to which it may be
entitled at any time or times.
B. Representations and Warranties. No Receivable shall be
evidenced by any Instrument which is not delivered to the Corporate Trustee in
the manner required by subsection 4.2.
C. Covenants. Other than in the ordinary course of business,
the Borrower will not (i) grant any extension of the time of payment of any Re-
ceivable, (ii) compromise or settle any Receivable for less than the full amount
thereof, (iii) release, wholly or partially, any Person liable for the payment
of any Receivable, (iv) allow any credit or discount whatsoever on any Receiv-
able, or (v) amend, supplement or modify any Receivable in any manner that could
adversely affect the value of any material amount of Receivables.
D. Notice of Enforcement. If a Notice of Enforcement is in
effect, the Borrower shall, if so directed by the Corporate Trustee (who shall
give such direction only if required to do so by the Required Secured Parties)
or if an Automatic Acceleration Event (as defined below) has occurred:
1. instruct all account debtors and parties to Contracts to
make all payments in respect of Receivables to the Enforcement Proceeds
Sub-Account; and the Borrower shall have the right and privilege to and
may and will, and the Trustees hereby authorize the Borrower to,
enforce, compromise and collect amounts owing on the Receivables, for
the benefit of the Trustees and the Secured Parties, at the expense of
the Borrower, provided that such right and privilege shall
automatically be suspended upon the occurrence of any event that by the
terms of any Secured Instrument or Secured Instruments pursuant to
which more than 50% of the aggregate amount of the Voting Secured
Obligations are outstanding would result in any amounts in respect of
any outstanding extensions of credit under such Secured Instrument
becoming due and payable prior to their stated maturity automatically
and without notice or other action by the Secured Party or Secured
Parties under such Secured Instrument (an "Automatic Acceleration
Event"); and
2. with respect to any Proceeds that are not deposited
directly into the Enforcement Proceeds Sub-Account in accordance with
paragraph (a) above, when collected by the Borrower, whether consisting
of cash, checks, notes, drafts, bills of exchange, money orders,
commercial paper of any kind whatsoever or other documents, received in
payment of any Receivable or otherwise shall be immediately turned over
by the Borrower to the Corporate Trustee, in precisely the form
received, except for its endorsement when required, and until turned
over shall be deemed to be held in trust by the Borrower for and as the
Corporate Trustee's property, and shall be held separately from the
Borrower's other funds. Such Proceeds shall continue to be collateral
security for all of the Secured Obligations and shall be applied in
accordance with the Trust Agreement.
VI. Provisions Relating to Contracts.
A. Borrower Remains Liable under Contracts. Anything herein to
the contrary notwithstanding, the Borrower shall remain liable under each of the
Contracts to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with and pursuant to
the terms and provisions of such Contract. Neither the Trustees nor any Secured
Party shall have any obligation or liability under any Contract by reason of or
arising out of this Agreement or the receipt by the Trustees or any such Secured
Party of any payment or performance relating to such Contract pursuant hereto,
nor shall the Trustees or any Secured Party be obligated in any manner to
perform any of the obligations of the Borrower under or pursuant to any
Contract, to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party 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 it or to which it may be entitled at any
time or times.
B. Communication With Contracting Parties. The Corporate
Trustee in its own name or in the name of others may at any time when a Notice
of Enforcement is in effect communicate with parties to the Contracts and with
account debtors to verify with them to the Corporate Trustee's satisfaction the
existence, amount and terms of any Contracts or Receivables.
C. Covenants. 1. The Borrower will perform and comply in
all material respects with all its obligations under all material Contracts.
2. Except to the extent that no Secured Instrument would be
violated thereby, the Borrower will not amend, modify, terminate or waive any
provision of any Contract in any manner which could reasonably be expected to
materially adversely affect the value of such Contract as Collateral.
D. Notice of Enforcement. At any time that a Notice of
Enforcement is in effect, the Corporate Trustee may at its option (but shall not
be obligated to do so in the absence of a direction from the Required Secured
Parties), without notice to or demand upon the Borrower (both of which are
hereby waived for the purpose of this subsection), in addition to all other
rights and remedies provided under the Trust Agreement, this Agreement and the
other Security Documents, in its own name or the name of the Borrower, perform,
demand, exercise any of the rights of the Borrower under, agree to waive, amend
or modify any provision of, ▇▇▇ upon or otherwise enforce the Contracts to the
same extent as if the Corporate Trustee were the party named in the Contract,
and exercise all other rights of the Borrower under the Contracts in such manner
as it may determine.
VII. Provisions Relating to Copyrights, Patents and Trade-
marks.
A. Representations and Warranties. The Borrower represents
and warrants that: 1. The Borrower does not own any material copyrights or
copyright licenses in its own name as of the date hereof. Schedule 2 includes
all Patents and Patent Licenses owned by the Borrower in its own name on the
date hereof.
2. Schedule 3 includes all Trademarks and Trademark Licenses
owned by the Borrower in its own name on the date hereof.
3. To the best of the Borrower's knowledge, each Patent and
Trademark is on the date hereof valid, subsisting, unexpired, enforceable and
has not been abandoned.
4. Except as set forth in either Schedule 2 or Schedule 3,
none of such Patents and Trademarks is on the date hereof the subject of any
licensing or franchise agreement.
5. No action or proceeding is pending on the date hereof
a. seeking to limit, cancel or question the validity of any material Patent or
Trademark owned by or licensed to the Borrower, or b. which, if adversely deter-
mined, would have a material adverse effect on the value of any material Patent
or Trademark.
B. Covenants. 1. The Borrower (either itself or through li-
censees) will (i) continue to use each material Trademark in order to maintain
such Trademark in full force free from any claim of abandonment for non-use,
(ii) maintain as in the past the quality of products and services offered under
such Trademark, (iii) employ such Trademark with the appropriate notice of regi-
stration, (iv) not adopt or use any ▇▇▇▇ which is confusingly similar or a
colorable imitation of such Trademark unless the Trustees shall obtain a per-
fected security interest in such ▇▇▇▇ pursuant to this Agreement, and (v) not
(and not permit any licensee or sublicensee thereof to) do any act or knowingly
omit to do any act whereby such Trademark may become invalidated.
2. The Borrower will not do any act, or omit to do any act,
whereby any material Patent may become abandoned or dedicated.
3. The Borrower will notify the Corporate Trustee promptly if
it knows, or has reason to know, that any application or registration relating
to any material Patent or material Trademark may become abandoned or dedicated,
or of any adverse determination or development (including, without limitation,
the institution of, or any such determination or development in, any proceeding
in the United States Patent and Trademark Office or any court or tribunal in any
country) regarding the Borrower's ownership of any material Patent or material
Trademark or its right to register the same or to keep and maintain the same.
4. Whenever the Borrower, either by itself or through any
agent, employee, licensee or designee, shall file an application for the
registration of any material Patent or material Trademark with the United States
Patent and Trademark Office, the Borrower shall report such filing to the
Corporate Trustee and the Secured Parties within thirty Business Days after the
last day of the fiscal quarter in which such filing occurs. Upon request of any
Holder Representative (transmitted through the Corporate Trustee), the Borrower
shall execute and deliver any and all agreements, instruments, documents, and
papers as such Holder Representative may reasonably request to evidence the
Trustees' and the Secured Parties' security interest in any material Patent or
material Trademark and the goodwill and general intangibles of the Borrower
relating thereto or represented thereby, and the Borrower hereby constitutes
each Trustee as its attorney-in-fact to execute and file all such writings for
the foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; such power being coupled with an interest is irrevocable until the
Secured Obligations are paid in full and the Secured Obligation Commitments are
terminated.
5. The Borrower will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, or any similar office or agency in any other country or
any political subdivision thereof, to maintain and pursue each application (and
to obtain the relevant registration) and to maintain each registration of the
material Patents and material Trademarks, including, without limitation, filing
of applications for renewal, affidavits of use and affidavits of
incontestability.
6. In the event that any Patent or Trademark included in the
Collateral is infringed, misappropriated or diluted by a third party, the
Borrower shall promptly notify the Trustees after it learns thereof and shall,
unless the Borrower shall reasonably determine that such Patent or Trademark is
immaterial to the Borrower (which determination the Borrower shall promptly
report to the Trustees), promptly ▇▇▇ for infringement, misappropriation or
dilution, to seek injunctive relief where appropriate and to recover any and all
damages for such infringement, misappropriation or dilution, and take such other
actions as the Borrower shall reasonably deem appropriate under the
circumstances to protect such Patent or Trademark.
VIII. Remedies.
A. Notice to Obligors and Contract Parties. Upon the request
of the Corporate Trustee (given at the direction of the Required Secured
Parties) at any time when a Notice of Enforcement is in effect, the Borrower
shall notify obligors on the Receivables and parties to the Contracts that the
Receivables and the Contracts have been assigned to the Trustees hereunder and
that payments in respect thereof shall be made directly to the Corporate
Trustee.
B. Proceeds to be Turned Over To Corporate Trustee. If a
Notice of Enforcement is in effect all Proceeds received by the Borrower
consisting of cash, checks and other near-cash items shall be held by the
Borrower in trust for the Secured Parties, segregated from other funds of the
Borrower, and shall, forthwith upon receipt by the Borrower, be turned over to
the Corporate Trustee in the exact form received by the Borrower (duly indorsed
by the Borrower to the Corporate Trustee, if required) and held by the Corporate
Trustee under the Trust Agreement.
C. Code Remedies. If a Notice of Enforcement shall be in
effect, the Trustees, on behalf of the Secured Parties, may exercise, in
addition to all other rights and remedies granted to them in this Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Secured Obligations, all rights and remedies of a secured party under the Code.
Without limiting the generality of the foregoing, the Trustees, without demand
of performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon the
Borrower or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby expressly waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Trustees or any Secured Party or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit risk. The Trustees or any Secured Party shall have the right upon any
such public sale or sales, and, to the extent permitted by law, upon any such
private sale or sales, to purchase the whole or any part of the Collateral so
sold, free of any right or equity of redemption in the Borrower, which right or
equity is hereby waived or released. The Borrower further agrees, at the
Corporate Trustee's request, to assemble the Collateral and make it available to
the Trustees at places which the Trustees shall reasonably select, whether at
the Borrower's premises or elsewhere. The Corporate Trustee shall apply the net
proceeds of any action taken pursuant to this subsection in the manner specified
in the Trust Agreement. To the extent permitted by applicable law, the Borrower
waives all claims, damages and demands it may acquire against the Trustees or
any Secured Party arising out of the exercise by them of any rights hereunder.
If any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition.
IX. Corporate Trustee's Appointment as Attorney-in-Fact; Cor-
porate Trustee's Performance of Borrower's Obligations.
▇. ▇▇▇▇▇▇. The Borrower hereby irrevocably constitutes and
appoints the Corporate Trustee and any officer or agent thereof, with full power
of substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Borrower and in the name of
the Borrower or in its own name, from time to time in the Corporate Trustee's
discretion for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and instru-
ments which may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing, the Borrower
hereby gives the Corporate Trustee the power and right, on behalf of and at the
sole expense of the Borrower, without notice to or assent by the Borrower, to do
any or all of the following:
1. at any time when a Notice of Enforcement is in
effect, in the name of the Borrower or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under
any Receivable or Contract or with respect to any other Collateral and
file any claim or take any other action or proceeding in any court of
law or equity or otherwise deemed appropriate by the Corporate Trustee
for the purpose of collecting any and all such moneys due under any
Receivable or Contract or with respect to any other Collateral whenever
payable;
2. in the case of any Patent or Trademark, execute
and deliver any and all agreements, instruments, documents, and papers
as the Corporate Trustee may request to evidence the Corporate
Trustee's and the Secured Parties' security interest in such Patent or
Trademark and the goodwill and general intangibles of the Borrower
relating thereto or represented thereby;
3. pay or discharge taxes and Liens levied or placed
on or threatened against the Collateral, effect any repairs or any in-
surance called for by the terms of this Agreement and to pay all or any
part of the premiums therefor and the costs thereof;
4. execute, in connection with the sale provided for
in subsection 8.3, any indorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral; and
5. at any time when a Notice of Enforcement is in
effect (i) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Corporate Trustee or as the Corporate
Trustee shall direct; (ii) ask or demand for, collect, receive payment
of and receipt for, any and all moneys, claims and other amounts due or
to become due at any time in respect of or arising out of any
Collateral; (iii) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction
to collect the Collateral or any thereof and to enforce any other right
in respect of any Collateral; (iv) defend any suit, action or
proceeding brought against the Borrower with respect to any Collateral;
(v) settle, compromise or adjust any such suit, action or proceeding
and, in connection therewith, to give such discharges or releases as
the Corporate Trustee may deem appropriate; (vi) use (and the Borrower
hereby grants a license to the Corporate Trustee for such purpose) or
assign, or grant licenses with respect to, any Patent or Trademark
(along with the goodwill of the business to which any such Patent or
Trademark pertains), and, to the extent permitted under applicable
Contractual Obligations and Requirements of Law, any Patent License or
Trademark License, throughout the world for such term or terms, on such
conditions, and in such manner, as the Corporate Trustee shall in its
sole discretion determine; (vii) sign and indorse any invoices, freight
or express bills, bills of lading, storage or warehouse receipts,
drafts against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral; and (viii)
generally, sell, transfer, pledge and make any agreement with respect
to or otherwise deal with any of the Collateral as fully and completely
as though the Corporate Trustee were the absolute owner thereof for all
purposes, and do, at the Corporate Trustee's option and the Borrower's
expense, at any time, or from time to time, all acts and things which
the Corporate Trustee deems necessary to protect, preserve or realize
upon the Collateral and the Corporate Trustee's and the Secured
Parties' security interests therein and to effect the intent of this
Agreement, all as fully and effectively as the Borrower might do.
B. Performance by Corporate Trustee of Borrower's Obligations.
If the Borrower fails to perform or comply with any of its agreements contained
herein, the Corporate Trustee, at its option, but without any obligation so to
do, may perform or comply, or otherwise cause performance or compliance, with
such agreement, and the expenses of the Corporate Trustee incurred in connection
with such performance or compliance shall be payable by the Borrower to the
Corporate Trustee on demand and shall constitute Secured Obligations secured
hereby.
C. Ratification; Power Coupled With An Interest. The Borrower
hereby ratifies all that said attorneys shall lawfully do or cause to be done by
virtue hereof. All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until this Agreement
is terminated and the security interests created hereby are released.
X. Duty of Corporate Trustee. The Corporate Trustee's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Corporate Trustee deals with
similar property for its own account. Neither the Corporate Trustee, any Secured
Party nor any of their respective officers, directors, employees or agents shall
be liable for failure to demand, collect or realize upon any of the Collateral
or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the Borrower or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the Corporate Trustee
and the Secured Parties hereunder are solely to protect the Corporate Trustee's
and the Secured Parties' interests in the Collateral and shall not impose any
duty upon the Corporate Trustee or any Secured Party to exercise any such
powers. The Corporate Trustee and the Secured Parties shall be accountable only
for amounts that they actually receive as a result of the exercise of such
powers, and neither they nor any of their officers, directors, employees or
agents shall be responsible to the Borrower for any act or failure to act
hereunder, except for their own gross negligence or willful misconduct.
XI. Execution of Financing Statements. Pursuant to Section
9-402 and 9-403 of the Code, the Borrower authorizes the Corporate Trustee to
file financing statements and continuation statements with respect to the
Collateral without the signature of the Borrower in such form and in such filing
offices as the Corporate Trustee reasonably determines appropriate to perfect
the security interests of the Corporate Trustee under this Agreement and to
cause any financing statement relating to the Collateral to not lapse; provided
that the Corporate Trustee shall not be required to take any such action unless
directed to do so by a Holder Representative or the Required Secured Parties. A
carbon, photographic or other reproduction of this Agreement shall be sufficient
as a financing statement for filing in any jurisdiction.
XII. Authority of Corporate Trustee. The Borrower acknowledges
that the rights and responsibilities of the Corporate Trustee under this
Agreement with respect to any action taken by the Corporate Trustee or the
exercise or non-exercise by the Corporate Trustee of any option, voting right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Agreement shall, as between the Corporate Trustee and the
Secured Parties, be governed by the Trust Agreement and by such other agreements
with respect thereto as may exist from time to time among the Secured Parties
and the Corporate Trustee, but, as between the Corporate Trustee and the
Borrower, the Corporate Trustee shall be conclusively presumed to be acting as
agent for the Secured Parties with full and valid authority so to act or refrain
from acting, and the Borrower shall be under no obligation, or entitlement, to
make any inquiry respecting such authority.
XIII. Notices. All notices, requests and demands to or upon
the Corporate Trustee or the Borrower to be effective shall be in writing (in-
cluding by facsimile transmission) and shall be deemed to have been duly given
or made (a) the case of delivery by hand, when delivered, (b) in the case of de-
livery by mail, five days after being deposited in the mails by certified mail,
return receipt requested, or (c) in the case of delivery by facsimile ▇▇▇▇-
mission, when received in legible form, in each case addressed as follows or to
such other address as may be hereafter notified by the respective parties here-
to:
(a) if to the Corporate Trustee, at its address or
transmission number for notices specified in subsection 9.1 of the
Trust Agreement; and
(b) if to the Borrower, at its address or
transmission number for notices specified in subsection 9.1 of the
Trust Agreement.
XIV. 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 in-
validating the remaining provisions hereof, and any such prohibition or unen-
forceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
XV. Amendments in Writing; No Waiver; Cumulative Remedies.
A. Amendments in Writing. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by the Borrower and the Corporate Trustee in
accordance with the Secured Instruments and Section 9.3 of the Trust Agreement,
provided that any provision of this Agreement imposing obligations on the
Borrower may be waived by the Corporate Trustee in accordance with the Secured
Instruments and the terms of the Trust Agreement in a written instrument
executed by the Corporate Trustee.
B. No Waiver by Course of Conduct. Neither the Corporate
Trustee nor any Secured Party shall by any act (except by a written instrument
pursuant to subsection 15.1 hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced with
respect to any Notice of Enforcement. No failure to exercise, nor any delay in
exercising, on the part of the Corporate Trustee or any Secured Party, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Corporate Trustee or any Secured Party of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the Corporate Trustee or such Secured Party would
otherwise have on any future occasion.
C. Remedies Cumulative. The rights, powers and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights, powers or remedies provided by law.
XVI. No-Recourse. No claim may be made under this Agreement
against any of the direct or indirect partners of the Borrower for the payment
of any amounts payable by the Borrower hereunder; provided that this Section
shall not in any way limit the Trustees' right to make any claim against any
such direct or indirect partner under any contract that any of such party may
have entered into with the Borrower to the extent that the rights under such
contract constitute Collateral.
XVII. Submission to Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
1. submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
2. consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
3. agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth under its signature below or at such other
address of which the Trustees shall have been notified pursuant hereto; and
4. agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction.
XVIII. Section Headings. The Section and subsection headings
used in this Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in the interpreta-
tion hereof.
XIX. Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of the Borrower and shall inure to the benefit
of the Trustees and the Secured Parties and their successors and assigns,
provided that the Borrower shall not assign its rights or obligations under this
Agreement except by operation of law to the extent not prohibited by the Secured
Instruments.
XX. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
XXI. The Trustees. Notwithstanding anything herein to the
contrary, the obligations of the Trustees hereunder are subject to the rights,
privileges and protections of the Trust Agreement.
XXII. Termination. This Agreement will remain in full force
and effect until the Secured Obligations are paid in full and all Secured Obli-
gation Commitments are terminated.
IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
SPRINT SPECTRUM L.P.,
By: Sprint Spectrum Holding
Company, L.P.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Treasurer
SCHEDULE 1
CONTRACTS
1. Amended and Restated Capital Contribution Agreement, dated as of October 2,
1996, among Sprint Corporation, Tele-Communications, Inc., Comcast
Corporation, ▇▇▇ Communications, Inc. and Spring Spectrum L.P.
2. Amended and Restated Sprint Trademark License Agreement, dated as of
January 31, 1996, between Sprint Communications Company, L.P. and Sprint
Spectrum L.P. (formerly MajorCo., L.P.) (the "Sprint Trademark Agreement").
3. Funding Agreement, dated as of October 2, 1996, between Sprint Spectrum
L.P. and WirelessCo., L.P.
4. Funding Agreement, dated as of October 2, 1996, between Sprint Spectrum
L.P. and Sprint Spectrum Equipment Company, L.P.
5. Funding Agreement, dated as of October 2, 1996, between Spring Spectrum
L.P. and Sprint Spectrum Realty Company, L.P.
6. Procurement and Services Contract, dated as of January 31, 1996, between
Sprint Spectrum L.P. (formerly MajorCo, L.P.) and Lucent Technologies Inc.
(formerly AT&T Corp.) (the "Lucent Agreement").
7. Procurement and Services Contract, dated as of January 31, 1996, between
Sprint Spectrum L.P. (formerly MajorCo, L.P.) and Northern Telecom Inc.
(the "Nortel Agreement").
SCHEDULE 2
PATENTS
- None -
PATENTS LICENSES
1. The Borrower has a licensed right to use patents under the Purchase and
Supply Agreement, dated June 21, 1996, among the Borrower, QUALCOMM
Personal Electronics, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ and Sony Electronics, Inc.
2. In addition, under the first sale doctrine, the Borrower has the
purchaser rights to use patents on routine office equipment it
acquires, such as personal computers and copy machines, but has not
endeavored to list such patents on this Schedule 2.
SCHEDULE 3
TRADEMARKS AND TRADEMARK LICENSES
- None -
TRADEMARK LICENSES
Pursuant to the Amended and Restated Trademark License Agreement, dated January
31, 1996, as amended by the First Amendment, dated September 26, 1996 and as
assigned by the Assignment and Acceptance Agreement, dated September 30, 1996,
the Borrower is licensed to use the following trademarks:
Sprint
Sprint PCS
Sprint Personal Communication Services
SCHEDULE 4
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
Office of Secretary of State of Missouri
Recorder of Deeds Office, ▇▇▇▇▇▇▇ County, Missouri
Patent and Trademark Filings
- None -
Other Actions
- None -
ANNEX I
FORMS OF ACKNOWLEDGEMENT AND CONSENTS