MASTER
CONDITIONAL SALE AGREEMENT
between
Ascend Communications, Inc.,
a wholly-owned subsidiary
of Lucent Technologies Inc.
and
Globaltron Communications Corporation
TABLE OF CONTENTS
Page
1. DEFINITIONS 2
2. SALE OF EQUIPMENT 6
2.1 Delivery and Sale 6
2.2 Shipping Documents 6
3. PURCHASE PRICE; PAYMENT AND PREPAYMENT 6
3.1 Purchase Price 6
3.2 Payment of Purchase Price Balance 6
3.3 Overdue Amounts 7
3.4 Payments 7
3.5 Prepayment 7
3.6 Purchaser's Obligations Unconditional 7
3.7 Purchase Price Balance 8
4. TITLE TO EQUIPMENT; SELLER COVENANTS 9
4.1 Retention of Title by Seller; Grant of Security Interest 9
4.2 Transfer of Title 10
4.3 Application of Payments 10
4.4 Seller Covenants 10
5. CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT 10
5.1 Conditions Precedent to First Shipment Date 10
5.2 CONDITIONS PRECEDENT TO EACH SHIPMENT DATE 11
5.3 CONDITIONS PRECEDENT TO LEASE OF EQUIPMENT 12
5.4 CONDITIONS PRECEDENT TO SELLER'S CONDITIONAL SALE OF THE
SECONDARY EQUIPMENT 13
5.5 CONDITIONS PRECEDENT TO SELLER'S CONDITIONAL SALE OF THE
TERTIARY EQUIPMENT 13
6. REPRESENTATIONS AND WARRANTIES 13
6.1 Warranties of Seller 13
6.2 Representations and Warranties of Purchaser 14
7. COVENANTS 15
7.1 Reports, Etc 15
7.2 Preservation of Corporate Existence 16
7.3 Maintenance 16
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TABLE OF CONTENTS
(continued)
Page
8. POSSESSION AND USE OF THE EQUIPMENT 16
8.1 Use of the Equipment 16
8.2 Transfer of Title or Possession 16
8.3 Liens 17
9. TAXES 17
10. INSURANCE 17
11. RISK OF LOSS 18
12. INDEMNIFICATION 18
13. EVENTS OF DEFAULT 18
14. REMEDIES 19
15. RETURN OF EQUIPMENT 20
16. IDENTIFICATION 20
16. NOTICES 21
17. GENERAL 21
17.1 Expenses 21
17.2 Relationship Of The Parties 22
17.3 Entire Agreement, Merger And Modification, No Waivers, Severability 22
17.4 Limitation Of Liability 22
17.5 Interpretation 22
17.6 Submission to Jurisdiction 23
17.7 Immunity 23
17.8 Assignment 23
17.9 Further Acts 23
17.10 No Waiver of Rights 24
17.11 No Oral Modification; Oral Agreements 24
17.12 Survival 24
17.13 Successors and Assigns 24
17.14 Counterparts 24
17.15 Confidentiality 24
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MASTER CONDITIONAL SALE AGREEMENT
THIS MASTER CONDITIONAL SALE AGREEMENT dated as of September 15, 1999, is
entered into by and between Ascend Communications, Inc., a wholly-owned
subsidiary of Lucent Technologies, Inc., (together with its successors and
assigns, "Seller"), a corporation organized and existing under the laws of the
State of Delaware, U.S.A., and Globaltron Communications Corporation (together
with its permitted successors and assigns, "Purchaser"), a corporation organized
and existing under the laws of the State of [Delaware], U.S.A.
RECITALS
WHEREAS, the Seller is in the business of, among other things, selling
telecommunications equipment;
WHEREAS, the Purchaser is in the business of, among other businesses,
providing telecommunications services;
WHEREAS, the Purchaser and the Seller desire to structure a master
arrangement whereby, from time to time, the Purchaser will purchase
telecommunications equipment from the Seller and Seller will sell such equipment
to Purchaser on a conditional sale basis;
WHEREAS, from time to time the Purchaser may lease such equipment, on
an operating lease basis, to certain of its Affiliates in [geographic areas
outside the United States] (the "Region");
WHEREAS, the Purchaser is the ultimate parent of each of the
Guarantors, and each such Guarantor has agreed in favor of Seller, to guarantee
the obligations of the Purchaser hereunder, and in connection herewith,
Purchaser has agreed to provide a pledge of stock of foreign subsidiaries in
favor of Seller / to secure its obligations hereunder;
WHEREAS, each Guarantor acknowledges the direct and indirect benefits,
including the use of the Equipment, derived by it by reason of the extension of
credit by Seller to Purchaser hereunder and its guarantee the obligations of the
Purchaser;
NOW THEREFORE, in consideration of the foregoing, the promises set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the Seller and the Purchaser agree
as follows:
AGREEMENT
1. DEFINITIONS
Unless the context otherwise requires, the following terms shall have the
following meanings for all purposes of this Agreement and shall apply equally to
the singular and the plural forms of the terms herein defined:
"Affiliate" with respect to any Person, means any other Person, at the time such
determination is made, directly or indirectly controlling, controlled by or
under common control with such Person. For the purposes of this definition,
"control" (including "controlled by" and "under common control with") means, at
the time such determination is made, the power, directly or indirectly, to
direct or cause the direction of the management and policies of such Person
whether through the ownership of voting securities or by contract or otherwise.
"Agreement", "this Agreement", "herein", "hereunder", "hereof" or other words of
like import mean this Conditional Sale Agreement, as it may hereafter be
amended, supplemented or modified from time to time.
"▇▇▇▇ of Sale" means, with respect to any item of Equipment, a ▇▇▇▇ of sale to
be executed by Seller in favor of Purchaser in respect of such Equipment, which
▇▇▇▇ of sale shall be substantially in the form of Exhibit A hereto.
"Business Day" means any day other than a Saturday, Sunday or other day on which
commercial banking institutions in New York, New York, or Alameda, California
are authorized or required by law to close.
"Bridge Pointe Capital Documentation" means the each of the duly authorized and
executed agreements between Purchaser and Bridge Point Capital evidencing equity
or subordinated debt commitments of Bridge Point Capital with respect to
Purchaser.
"Claim" means any and all liabilities, losses, damages, actions, suits, demands,
claims of any kind and nature (including, without limitation, claims relating to
environmental discharge, cleanup or compliance), and all costs and expenses
whatsoever to the extent they may be actually incurred or suffered by an
Indemnified Person in connection therewith (including, without limitation,
reasonable attorneys' fees and expenses), fines, penalties (and other charges of
applicable governmental authorities), licensing fees relating to any item of
Equipment, damage to or loss of use of property (including, without limitation,
consequential or special damages to third parties or damages to Purchaser's
property), or bodily injury to or death of any person (including, without
limitation, any agent or employee of Purchaser).
"Collateral" has the meaning specified in Section 4.1.
"Conditional Sale Documents" means this Agreement, each Shipping Document, the
Note, each Lease, each Lease Assignment, each Guarantee, each Pledge Agreement
and any other supplement, document, instrument, certificate, amendment,
modification, assignment or agreement related to, contemplated by or executed in
connection with any of the foregoing.
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"Default" means any event or condition that, with the giving of notice or the
passage of time, or both, would constitute an Event of Default.
"Dollars" or "$" means the legal currency of the United States of America.
"Equipment" means any or all of the equipment, from time to time, sold by the
Seller to the Purchaser and identified in each Shipping Document delivered by
Seller in accordance with the provisions hereof.
"Event of Default" has the meaning specified in Section 14.
"Event of Loss" means, in respect of any item of Equipment, the occurrence of
any event or circumstance that has resulted (i) in such item of Equipment being
lost, stolen, destroyed or damaged beyond economic repair, (ii) in the
condemnation, confiscation, seizure or requisition of title to or use of such
item of Equipment or (iii) in an insurance settlement on the basis of a total
loss or compromised total loss of such item of Equipment.
"Governmental Approval" means all licenses, permits, consents and approvals of,
the giving of notices to, and the registration, recording and filing of all
documents with, and the taking of all other actions in respect of any
governmental or quasi-governmental authority (including, without limitation, any
court or judicative body) in the United States, any state or municipality
therein or in any other applicable country or jurisdiction.
"Guarantee" means the Guarantee in favor of Seller by each Guarantor
substantially in the form of Exhibit C hereto.
"Guarantor" means each Qualified Lessee, including the following entities,
[insert the names of the subsidiaries and the jurisdictions of incorporation].
"Indemnified Person" means Seller and its officers, directors, shareholders,
partners, and employees.
"Initial Equipment" means Equipment for which the sum of the aggregate Purchase
Price of such Equipment and the amounts advanced to the Purchaser under the
Secured Promissory Notes is equal to less than three million and ▇▇/▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ dollars ($3,000,000).
"Lease" means each lease entered into between the Purchaser and a Qualified
Lessee pursuant to which Equipment is leased, which lease shall be substantially
in the form of Exhibit D hereto; provided that the parties may, by mutual
agreement, modify the terms or form of such lease to address country specific
issues, including without limitation any relevant regulatory and tax issues, in
accordance with Section 8.2.
"Lien" means any mortgage, pledge, lien, charge, assignment, encumbrance, lease,
exercise of rights, security interest, claim or right of another,
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"Mandatory Prepayment Event" means any of the events, conditions or
circumstances specified in Section 3.5(b).
"Maturity Date" means, with respect to an item of Equipment, the date that is
(i) March 1, 2002, provided that if such date is not a Business Day, the
Maturity Date is the next Business Day thereafter or (ii) such earlier date to
which the Maturity Date may be accelerated in accordance with the provisions of
this Agreement.
"Monthly Period" means, with respect to any Equipment, (i) initially, the period
from, and including, the Shipment Date for such Equipment to, and including, the
last day of the calendar month in which the Shipment Date for such Equipment
occurs and (ii) thereafter, each calendar month prior to the Maturity Date in
respect of such Equipment.
"Note" means the promissory note evidencing the payment obligations of the
Purchaser hereunder, which promissory note shall be substantially in the form of
Exhibit B hereto.
"Overdue Rate" means the per annum interest rate that equals the lesser of (i)
the maximum rate of interest permitted by applicable law and (ii) 15.75%.
"Payment Date" means, with respect to each Monthly Period, the first Business
Day of such Monthly Period when payments of amounts in arrears are to be made.
"Payment Event" means, in respect of each item of Equipment and as determined by
the Seller, the full, final and unconditional payment by the Purchaser of the
Purchase Price in respect of such item of Equipment together with all accrued
and unpaid interest thereon and all other amounts then due and owing in respect
of such item of Equipment hereunder.
"Permitted Liens" means (a) the title and interest of Seller under this
Agreement and the rights of Seller hereunder and under the Conditional Sale
Documents and of any Qualified Lessee under a Lease, and (b) prior to the
expiration or termination of the Term, liens for Taxes, assessments or other
governmental charges or levies imposed on Purchaser or any Lessee which are not
delinquent, or which are in good faith being contested by Purchaser or such
Qualified Lessee by appropriate proceedings (and for the payment of which
adequate reserves satisfactory to Seller have been provided), so long as such
proceedings do not involve any risk of the sale, forfeiture or loss of the
Equipment, or Seller's interests with respect thereto.
"Person" means any individual, sole proprietorship, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization, institution, entity or government (national, federal, state,
provincial or local, or any agency, instrumentality, division or body thereof).
"Pledge Agreement" means a pledge agreement, deed of charge over shares, share
mortgage, notarial deed or such other agreement entered into between Seller and
Purchaser granting Seller a security interest in Purchaser's shares of any
Qualified Lessee to secure Purchaser's obligations under this Agreement.
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"PTT" means with respect to any Qualified Lessee, the post, telephone and
telegraph administration or any other governmental authority, including an
authority of any state or political subdivision, providing telephone and
telecommunications services in the jurisdiction where such Qualified Lessee is
located.
"PTT Agreement" has the meaning specified in Section 5.1(e).
"Purchase Price" means, in respect of any item of Equipment, the amount due to
the Seller for the purchase of such item of Equipment (exclusive of costs to be
paid by Purchaser in connection with the delivery of such Equipment for freight,
installation, maintenance, professional services and taxes), which amount shall
be set out in the invoice issued by the Seller in respect of such item of
Equipment.
"Purchase Price Balance" means, in respect of any item of Equipment at any time,
the amount of the Purchase Price for such Equipment that has not then been paid
which amount will be determined in accordance with Section 3.7 hereof.
"Qualified Lessee" means any Person organized under the laws of a jurisdiction,
and conducting business in, the Region which is an Affiliate of Purchaser and
has entered into a PTT Agreement with the applicable PTT.
"Secondary Equipment" means Equipment for which the sum of the aggregate
Purchase Price of such Equipment and the amounts advanced to the Purchaser under
the Secured Promissory Notes is equal to less than six million and ▇▇/▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ dollars ($6,000,000).
"Secured Promissory Notes" means that certain Secured Promissory Note between
Seller and Purchaser dated as of August 27 1999; and that certain Secured
Promissory Note between Seller and Purchaser dated as of September 14, 1999.
"Security Agreement" means each agreement duly executed and delivered by a
Qualified Lessee and in full force and effect granting Seller a security
interest in all of the assets of such Qualified Lessee.
"Shipping Documents" means, with respect to each item of Equipment, the
documents delivered by Seller in respect thereof in accordance with Section 2.2.
"Shipment Date" means, in respect of any Equipment, the date on which such
equipment is shipped by, or on behalf of, the Seller to the Purchaser (or to its
direction) which date shall be the date designated as such in a Shipping
Document.
"Standard Terms" means Seller's standard terms of sale as such terms may be
amended, modified or supplemented from time to time.
"Term" means the period from the first Shipment Date hereunder until the date on
which all obligations of Purchaser to Seller hereunder and under the other
Conditional Sale Documents shall have been satisfied.
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"Tertiary Equipment" means Equipment for which the sum of the aggregate Purchase
Price of such Equipment and the amounts advanced to the Purchaser under the
Secured Promissory Notes is equal to less than ten million and ▇▇/▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ dollars ($10,000,000).
2. SALE OF EQUIPMENT
2.1 Delivery and Sale. Subject to the provisions of Section 5, from
time to time on any Business Day on or prior to March 31, 2000, Seller will
sell, and Purchaser will purchase, Equipment subject to the terms of this
Agreement and to the Standard Terms provided that at no time may the aggregate
Purchase Price in respect of all Equipment sold and purchased hereunder exceed
$1,750,000. On each Shipment Date, the Seller shall be deemed to sell, and the
Purchaser shall be deemed to purchase, the relevant Equipment subject to the
terms of this Agreement and to the Standard Terms. In the event of any
inconsistency between the provisions of this Agreement and the Standard Terms,
the provisions of this Agreement will prevail.
2.2 Shipping Documents. Concurrently with the shipment of each item of
Equipment to Purchaser, Seller shall deliver to the Purchaser shipping documents
that identify such Equipment and the Shipping Date for such Equipment. The
information set forth in such shipping documents shall be binding on the
Purchaser absent manifest error.
3. PURCHASE PRICE; PAYMENT AND PREPAYMENT
3.1 Purchase Price. In consideration of the shipment by Seller of any
Equipment, Purchaser hereby agrees to pay the Purchase Price for such Equipment,
together with interest on the Purchase Price Balance for such Equipment from
time to time, on the dates and in the amounts determined in accordance with
Section 3.2. on each Payment Date in respect of each Monthly Period for each
item of Equipment that occurs after March 31, 2000, Purchaser shall pay
one-twenty-fourth (1/24th) of the Purchase Price for each such item of
Equipment. The interest with respect to the Purchase Price Balance of each item
of Equipment shall accrue (x) from, and including, the Shipment Date in respect
of such Equipment occurs (y) to, but excluding, the Maturity Date for such
Equipment.
3.2 Payment of Purchase Price Balance. On each Payment Date in respect
of a Monthly Period for each item of Equipment which is a full calendar month,
the Purchaser shall pay to Seller, an amount that equals the product of (i) the
Purchase Price Balance for such Equipment and (ii) the factor set forth as the
payment factor in Schedule I hereto opposite such Monthly Period. On each
Payment Date in respect of a Monthly Period for each item of Equipment which is
not a full calendar month, the Purchaser shall pay to Seller, an amount that
equals (x) the product of (i) the Purchase Price Balance for such Equipment and
(ii) the factor set forth as the payment factor in Schedule I hereto opposite
such Monthly Period divided by thirty (30), multiplied by (y) the number of
calendar days in such Monthly Period. In addition, on the Maturity Date, the
Purchaser shall pay the greater of (x) one United States dollar and (y) the
outstanding Purchase Price Balance in respect of such Equipment together with
any other amounts due in respect of such Equipment hereunder.
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3.3 Overdue Amounts. If (i) any amount payable by Purchaser pursuant
to Sections 3.1 or 3.2 is not paid in full within ten (10) days of the due date
therefor or (ii) any other amount payable by the Purchaser under this Agreement
(including, without limitation, Section 13) or any other Conditional Sale
Document is not paid in full when due, then Purchaser shall pay to Seller, to
the extent permitted by law, an additional amount equal to interest at the
Overdue Rate on the amount not paid for each day during the period from, and
including the due date to, but excluding, the date on which such amount is paid
in full.
3.4 Payments. All payments to Seller hereunder shall be made, in
Dollars, by wire transfer in immediately available funds to Seller do the
account of Ascend Communications, Inc. at ▇▇▇▇▇ Fargo Bank, Oakland Main Office,
Oakland, California, Account No. ▇▇▇▇▇▇▇▇, ABA No.: 011 000 390, or to such
other person(s) or account(s) as Seller may designate from time to time.
3.5 Prepayment.
(a) Optional Prepayment. So long as no Event of Default shall
have occurred and be continuing hereunder, the Purchaser shall have the right,
upon giving at least thirty (30) days' prior written notice to Seller, to prepay
the Purchase Price Balance which is then outstanding with respect to all or any
items of Equipment provided that any prepayment in respect of less than all
items of Equipment shall be in a minimum amount of $500,000. Such notice shall
specify the amount and the date of such prepayment (which date shall be a
Payment Date) and, in the case of a prepayment in respect of less than all items
of Equipment, the Equipment to which such prepayment relates. Once given, any
such notice shall be irrevocable. On the date specified for prepayment, the
Purchaser shall pay to the Seller the amounts payable by the Purchaser on such
Payment Date pursuant to Sections 3.1 and 3.2 and any other amounts payable in
respect on such Equipment hereunder.
(b) Mandatory Prepayments. Purchaser shall immediately prepay
the aggregate Purchase Price Balance of all Equipment which is then outstanding,
all unpaid interest determined by Seller to have accrued on such amount and all
other amounts outstanding hereunder, under the Note and under the other
Conditional Sale Documents within five (5) Business Days following receipt of
notice from Seller (stating in reasonable detail the basis for such notice),
that this Agreement or any other Conditional Sale Document has become, or is
determined to be, illegal, invalid or unenforceable, or for any other reason
does not constitute a valid reservation of title in the Equipment in favor of
Seller, or is not effective to continue a validly perfected first priority
security interest, as the case may be, in favor of Seller in respect of all of
the Collateral, or Purchaser or any Affiliate of Purchaser takes any action,
directly or indirectly, to challenge the legality, validity or binding effect of
this Agreement, or any other Conditional Sale Document.
3.6 Purchaser's Obligations Unconditional. Purchaser's obligation to
pay the full amount of the Purchase Price and interest thereon for the Equipment
and all other amounts payable to Seller hereunder, under the Note and under the
other Conditional Sale Documents (each, a "Payment") shall be absolute and
unconditional under any and all circumstances, shall not be subject to notice or
demand unless otherwise provided herein, and shall not be affected by any
circumstance of any character, including, without limitation: (a) any setoff,
counterclaim,
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deduction, recoupment, abatement, suspension, deferment, diminution, proration,
defense or other right which Purchaser may have against Seller or any other
Person for any reason whatsoever, including any claim of Purchaser against
Seller or any other Person; (b) any defect / in the title, condition, design,
operation or fitness for use excluding meeting the signaling requirements of
country and answer supervision or any other functionality recent warrants that
the equipment meets design specifications, including answer supervision or any
damage to, or loss or destruction of, or any Lien upon the Equipment or the
interruption or cessation or restriction in the use or possession thereof by
Purchaser for any reason whatsoever; (c) any condemnation, expropriation, of
requisition or other taking of the Equipment; (d) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceedings by or against Purchaser, Seller or any other Person; (e) any change,
extension, waiver, indulgence or other act or omission in respect of any
obligation or liability of Purchaser or Seller except as otherwise expressly
provided thereby; (f) any failure by Purchaser or any Affiliate to obtain any
anticipated tax allowances or other tax benefits in the United States or
elsewhere; or (g) any other circumstance, happening or event whatsoever, whether
or not similar to the foregoing and whether or not Purchaser or Seller shall
have had any knowledge, actual or otherwise, of any of the foregoing. If for any
reason whatsoever this Agreement shall be terminated in whole or in part by
operation of law or otherwise, except as specifically provided herein, Purchaser
nonetheless agrees to pay to Seller an amount equal to the aggregate Purchase
Price Balance of all Equipment at the time of payment, plus interest accrued to
the date of payment and all other amounts payable hereunder and under any other
Conditional Sale Document, and, upon such payment in fill, Seller shall, to the
extent permitted by applicable law, transfer the title to the equipment which
has been retained by Seller hereunder to Purchaser and otherwise comply with the
provisions of Section 4.2. Except as otherwise expressly provided hereunder, to
the extent permitted by applicable law, Purchaser waives and disclaims all
rights now or hereafter conferred by statute or otherwise to terminate, cancel,
quit or surrender this Agreement or the Equipment or to any abatement,
suspension, deferment, diminution, reduction or proration of any payment on
account of any occurrence described in this Agreement. Each payment paid by
Purchaser hereunder shall be final, and Purchaser shall not seek to recover all
or any part of such payment from Seller, or from whosoever may be entitled
thereto, for any reason whatsoever.
3.7 Purchase Price Balance. As long as no Default or Event of Default
has occurred and is continuing, the Purchase Price Balance, at any time of the
determination thereof, in respect of any item of Equipment will equal (x) the
Purchase Price for such Equipment minus (y) any payments allocated to reduce the
Purchase Price Balance of such Equipment hereunder. Upon the occurrence, and
during the continuation of, a Default or an Event of Default, the Purchase Price
Balance at such time in respect of any item of Equipment shall be such amount as
the Seller may, in good faith, determine. The Seller shall maintain in its
records a running calculation of the Purchase Price Balance in respect of such
Equipment which calculation, absent manifest error, shall be deemed conclusively
correct. The aggregate Purchase Price Balance of any Equipment may be adjusted
upward if and to the extent that at any time all or any part of any payment
theretofore received by Seller from or on behalf of Purchaser pursuant to
Section 3.2 or 3.5(a) in respect of such Equipment, or any of the other
obligations of Purchaser hereunder or under the Note or any other Conditional
Sale Document, is or must be rescinded, released, rebated or returned by Seller
to Purchaser, any Qualified Lessee or any other person for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy, winding-up or
reorganization of Purchaser, any Qualified Lessee or any other person, or in
respect of any obligation owed to any Qualified Lessee under the Lease
Documents), in which case, the obligations of Purchaser, shall, for purposes of
this Agreement and the other Conditional Sale
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Documents, be deemed to be readjusted or reinstated to the extent of any such
recovery notwithstanding such payment, as though such payment had not been made.
The allocation of any such upward adjustment to the Purchase Price Balance of
the Equipment shall be made by Seller in the good faith exercise of its
reasonable discretion.
4. TITLE TO EQUIPMENT; SELLER COVENANTS
4.1 Retention of Title by Seller; Grant of Security Interest.
Notwithstanding the shipment of the Equipment to Purchaser and its possession
and use thereof by Purchaser or any Qualified Lessee, Seller shall and does
hereby retain, to the exclusion of Purchaser to the extent permitted by
applicable law, the full title to and property interest in the Equipment and all
proceeds thereof.
In addition, to secure its obligations hereunder and under
each other Conditional Sale Document, Purchaser hereby grants, pledges,
transfers, assigns and sets over to Seller and hereby mortgages, charges and
assigns to Seller all of Purchaser's right, title and interest in and to the
following:
(w) the Equipment;
(x) any lease of all or any part of the Equipment (including,
without limitation, any Lease), any contract assigning or otherwise transferring
to Purchaser any right, title or interest in, to or under any lease or granting
to Purchaser any security interest in any lease or in amounts due thereunder,
together with all renewals of any such lease, sublease or any such contract
executed from time to time, and all payments, including, without limitation, all
payments of rent, all insurance proceeds (other than public liability insurance
proceeds) and all other amounts due or to become due thereunder;
(y) all rents, deposits, commitment fees, option payments,
reserves, agreed value payments, issues, profits, revenues, products and other
income, together with and the right to receive any of the foregoing, relating to
all or any portion of the Equipment or any other of the foregoing, whenever
acquired, including, without limitation, the proceeds of any insurance
maintained with respect to any of the foregoing and all proceeds of any
condemnation, expropriation or requisition payable with respect to any of the
foregoing and all proceeds payable or received with respect to an Event of Loss;
and
(z) all proceeds of the foregoing.
All of the property described in this Section 4.1 shall be
referred to hereinafter collectively as the "Collateral".
Subject to Section 4.2, Seller shall continue to retain such
title, interest and property in the Equipment and the other Collateral, as
security for the prompt payment when due of the Purchase Price Balance, and
interest thereon, any other sums due and owing to Seller pursuant to the terms
of this Agreement and the other Conditional Sale Documents, and the
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performance and observance by Purchaser of all the agreements, covenants and
provisions herein and in the other Conditional Sale Documents.
4.2 Transfer of Title. Upon a Payment Event in respect of any item of
Equipment, and without releasing or limiting any obligations of Purchaser under
this Agreement or any other Conditional Sale Documents which by their terms
survive the Maturity Date of such Equipment or the expiration or termination of
this Agreement, Seller shall (a) release its security interest in such Equipment
and the Collateral related thereto, (b) transfer to Purchaser good and
marketable title to such Equipment, free of any Liens created by or through the
Seller, by execution and delivery to Purchaser of a ▇▇▇▇ of Sale for the
Equipment, and (c) execute and deliver (at Purchaser's sole cost and expense)
such documents or take such actions evidencing such release of security interest
and transfer of title as Purchaser shall reasonably request including, without
limitation, the cancellation of all filings in respect of such Equipment which
reflect Seller's interest therein.
4.3 Application of Payments.
(a) As long as no Event of Default has occurred and is
continuing, Seller shall apply any amount realized or received pursuant to the
Conditional Sale Documents promptly upon the receipt of same in the following
order: first, to payment of any interest payable pursuant to Section 3.3;
second, to payment of any amount payable pursuant to Section 3.2 (other than the
Purchase Price Balance) payable hereunder; third, to payment of any other
amounts payable pursuant to Section 3.2 (other than the Purchase Price Balance)
payable hereunder; fourth, to payment of the Purchase Price Balance pursuant to
Section 3.1 in respect of such Equipment.
(b) As long as an Event of Default has occurred and is
continuing, Seller shall apply amounts realized or received pursuant to the
Conditional Sale Documents, promptly upon receipt of the same, against the
Purchase Price Balance, all interest thereon and any other amounts then due to
Seller under any Conditional Sale Document in such manner as Seller, in its sole
discretion, deems appropriate.
4.4 Seller Covenants. Seller hereby agrees for the benefit of
Purchaser that, unless an Event of Default shall have occurred and be
continuing, Seller shall not interfere with or deprive the Purchaser or
applicable Qualified Lessee of the peaceful and quiet enjoyment of the Equipment
or exercise any right of a "Lessor" under any Lease.
5. CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT
5.1 Conditions Precedent to First Shipment Date. The obligation of
Seller to ship Equipment to Purchaser on the first Shipment Date hereunder is
subject, to the extent described below in this Section 5.1, to the satisfaction
of each of the following conditions precedent:
(a) Purchaser Documents. Seller shall have received, on or
prior to the first Shipment Date hereunder, (i) the Note duly executed by the
Purchaser and in full force and effect; and (ii) all other Conditional Sale
Documents.
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(b) Proof of Corporate Action. On or prior to the first Shipment
Date hereunder, Seller shall have received copies of the corporate resolutions,
delegations and all other documents supporting and evidencing all corporate
action taken by Purchaser to authorize the execution and delivery of each
Conditional Sale Document to which it is a party, certified by the Secretary or
other duly authorized officer of PUrchaser and all other documents which Seller
may reasonably request relating to the legal existence of Purchaser, the
corporate authority for and the validity of this Agreement and all other
Conditional Sale Documents thereunder and any other matters relevant thereto,
all in form and substance reasonably satisfactory to Seller.
(c) Opinions of Counsel. On or prior to the first Shipment
Date hereunder, Seller shall have received an opinion or opinions of counsel to
the Purchaser, in form and substance reasonably satisfactory to Seller, dated
the date of this Agreement and addressed to Seller.
(d) Registration and Recording. On or prior to the first
Shipment Date hereunder, Seller shall have received evidence satisfactory to
Seller that (I) Uniform Commercial Code financing statements have been duly
executed and delivered by Purchaser, as debtor, and Seller, as secured party,
and have been duly filed in all places within the States of California, Delaware
[other states where Equipment will be located, if any]; and (ii) all
registrations, recordations, filings or any other action have been duly
completed in all other places in which such filings are necessary or advisable,
in the opinion of counsel for Seller, to establish, maintain, preserve, perfect
and protect Seller's rights, titles and interests under the Conditional Sale
Documents in and to the Collateral.
(e) PTT Documentation. On or prior to the first Shipment Date,
Seller shall have received copies of all of the agreements entered into between
each Affiliate of the Purchaser and each applicable PTT (a "PTT Agreement").
(f) Consents and Approvals. On or prior to the first Shipment
Date hereunder, all approvals and consents of any trustee or holder of any
indebtedness or obligation of Purchaser or any Guarantor which are required in
connection with any of the transactions contemplated by the Conditional Sale
Documents, shall have been duly obtained, and evidence thereof reasonably
satisfactory in form and substance to Seller, certified by duly authorized
officers of Purchaser or Guarantor, as the case may be, shall have been
delivered to Seller.
5.2 Conditions Precedent to Each Shipment Date. The obligation of
Seller to ship any Equipment to Purchaser on any Shipment Date hereunder is
subject, to the extent described below in this Section 5.2, to the satisfaction
of each of the following conditions precedent:
(a) Certain Conditions. On each Shipment Date, the
representations and warranties of Purchaser in Section 6 will be true and
correct and by its acceptance of the Equipment Purchaser shall be deemed to have
represented to Seller that, such representations and warranties are true and
correct.
(b) Insurance. On or prior to each Shipment Date, Seller shall
have received the broker's report and certificates of insurance with respect to
the insurance required to be maintained pursuant to Section 10 in respect of the
related Equipment, in each case, in form and substance satisfactory to Seller.
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(c) PTT Documentation. On or prior to each Shipment Date, if
there are one or more PTT Agreements that have not been delivered to Seller
previously by Purchaser, Seller shall have received copies of such PTT
Agreements.
(d) Other Matters. On each Shipment Date, all other matters
incident to the purchase and conditional sale of the Equipment, the Lease
Agreements shall be reasonably satisfactory to Seller. Without limiting the
generality of the foregoing, (i) in Seller's reasonable good faith judgment (A)
all action necessary or advisable to protect or maintain Seller's rights, titles
and interests under the Conditional Sale Documents and in the Equipment have
been taken, and (B) the Conditional Sale Documents and the transactions
contemplated thereby shall comply in all material respects with legal and
regulatory requirements of the jurisdiction in which the Equipment is to be
located, and (ii) no sales, use, value added, stamp or transfer type tax
(however named or described) that has not been paid or indemnified by Purchaser
shall be imposed on Seller as a result of the Conditional Sale Documents or the
transactions contemplated thereby, including, without limitation, sales tax
imposed in the country and local jurisdiction in which the Equipment is, or is
intended to be, located.
5.3 Conditions Precedent to Lease of Equipment. The Purchaser agrees
that the lease of any Equipment to a Qualified Lessee is subject, to the extent
described below in this Section 5.2, to the satisfaction of each of the
following conditions precedent:
(a) Lease Documents. Prior to the lease of any Equipment to a
Qualified Lessee, Seller shall have approved the form of Lease, the Lease shall
be in full force and effect and Seller shall have received (I) a chattel paper
counterpart of the Lease, (ii) the Guarantee of such Qualified Lessee duly
executed and delivered by the Qualified Lessee and in full force and effect;
(iii) a Pledge Agreement duly executed by the Purchaser with respect to the
shares of such Qualified Lessee; (iv) a Security Agreement duly executed and
delivered by the such Qualified Lessee and in full force and effect granting
Seller a security interest in all of the assets of such Qualified Lessee, unless
this requirement is waived in writing by Seller; (iv) the organizational
documents of the Qualified Lessee and (v) originals, or copies, duly certified
in a manner satisfactory to Seller, of all documents to be delivered to
Purchaser at the closing with respect to the Lease.
(b) Registration and Recording. Prior to the lease of any
Equipment to a Qualified Lessee, Seller shall have received evidence
satisfactory to Seller that:
(i) upon the lease of such Equipment, the Seller
will retain full ownership rights to and interest in the Equipment, and the
Seller will have a first-priority security interest in the corresponding Lease
and other Collateral under applicable law of the jurisdiction in which such
Equipment is to be located; and
(ii) precautionary Uniform Commercial Code financing
statements and all registrations, recordations, filings or any other relevant
jurisdiction have been duly executed by the relevant Qualified Lessee, as
lessee, and Purchaser, as lessor, and listing Seller as assignee, and shall be
promptly duly filed in any applicable states of the United States or any other
applicable jurisdiction, to establish, maintain, preserve, perfect and protect
Seller's rights, titles and interests in and to the relevant Lease.
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(c) Consents and Approvals. On or prior to the lease of any
Equipment to a Qualified Lessee, all appropriate action, if any, required to
have been taken in connection with such Lease shall have been duly taken by any
governmental authority or agency having jurisdiction, and Purchaser shall have
furnished to Seller copies of all governmental consents, permits and approvals,
if any, required for the execution, delivery or performance of such Lease.
(d) Opinions of Counsel. On or prior to the lease of any
Equipment to a Qualified Lessee hereunder, Seller shall have received an opinion
of counsel to such Qualified Lessee with respect to the laws of the jurisdiction
of organization of such Qualified Lessee, in form and substance reasonably
satisfactory to Seller, dated the date of this Agreement and addressed to
Seller.
(g) Evidence of Business Climate. Upon request of Seller,
evidence satisfactory to Seller with respect to the business climate, including
without limitation, information on political climate, economy or financial
system of the jurisdiction of organization of such Qualified Lessee.
(h) Approval of Business Climate. Written approval from Seller
to Purchaser confirming the acceptability of the business climate of the
jurisdiction of organization of such Qualified Lessee.
5.4 Conditions Precedent to Seller's Conditional Sale of the
Secondary Equipment. Seller shall have received evidence satisfactory to Seller
of (i) Bridge Pointe Capital Documentation evidencing an equity investment
commitment in Purchaser or subordinated debt commitment to Purchaser by Bridge
Pointe Capital of at least eight hundred thousand and ▇▇/▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
dollars ($800,000) and (ii) Bridge Pointe Capital funding such commitment.
5.5 Conditions Precedent to Seller's Conditional Sale of the
Tertiary Equipment. Seller shall have received evidence satisfactory to Seller
of (i) Bridge Pointe Capital Documentation evidencing an equity investment
commitment in Purchaser or subordinated debt commitment to Purchaser by Bridge
Pointe Capital of at least $4,000,000 (provided that this amount will constitute
an aggregate of all commitments from Bridge Pointe Capital to Purchaser after
August 1, 1999, and inclusive of the $800,000 commitment set forth in Section
5.4 above) and (ii) evidence of Bridge Pointe Capital funding such commitment.
6. REPRESENTATIONS AND WARRANTIES
6.1 Warranties of Seller. SELLER MAKES NO REPRESENTATION OR WARRANTY
IN THIS AGREEMENT OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE
EQUIPMENT, ITS MERCHANTABILITY, OR ITS FITNESS FOR A PARTICULAR PURPOSE. SELLER
SHALL NOT BE LIABLE TO PURCHASER OR ANY OTHER PERSON (INCLUDING ANY LESSEE) FOR
DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE
USE OF THE EQUIPMENT, OR FOR DAMAGES BASED ON STRICT OR ABSOLUTE TORT LIABILITY
OR SELLER'S PASSIVE NEGLIGENCE. EACH OF PURCHASER AND SELLER HEREBY ACKNOWLEDGES
THAT ANY MANUFACTURER'S OR SUPPLIER'S
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WARRANTIES WITH RESPECT TO THE EQUIPMENT ARE FOR THE BENEFIT OF BOTH PURCHASER
AND SELLER. NOTWITHSTANDING THE FOREGOING, PURCHASER'S OBLIGATIONS TO MAKE EACH
PAYMENT DUE, OR OTHERWISE PERFORM ITS OBLIGATIONS, UNDER THIS AGREEMENT ARE
ABSOLUTE AND UNCONDITIONAL.
6.2 Representations and Warranties of Purchaser. Purchaser makes the
following representations, warranties and covenants as of the date hereof and as
of each Shipment Date that:
(a) Corporate Status and Power. The Purchaser (a) is a
corporation duly organized, validly existing and in good standing or the
equivalent under the laws of the jurisdiction of its organization, (b) has all
powers required to conduct its business, (c) has full corporate power, authority
and legal right to execute, deliver and perform this Agreement and each other
Conditional Sale Document to which it is party and to carry out the transactions
contemplated hereby.
(b) Due Execution and Enforceability. Each of this Agreement
and each other Conditional Sale Document to which it is party has been duly
executed and delivered by the Purchaser and constitutes the valid and binding
obligation of the Purchaser, enforceable against Purchaser in accordance with
its terms except as such enforceability may be limited by bankruptcy or similar
laws applicable to creditors generally or by general principles of equity.
(c) Non-Contravention. Neither the execution and delivery by
the Purchaser of this Agreement or any other Conditional Sale Document to which
it is a party nor the consummation by the Purchaser of the transactions
contemplated hereby or thereby is an event that, of itself or with the giving of
notice or the passage of time or both, will (a) conflict with the certificate of
incorporation or by-laws of the Purchaser; (b) violate any material judgment,
decree or order or statute, rule or regulation applicable to the Purchaser, (c)
contravene or result in any breach of, or constitute a default under any
indenture, mortgage, material contract or other material agreement to which
Purchaser is a party or by which Purchaser or any of its properties may be bound
or affected, or (d) result in the creation of any Lien (excepting the Lien
arising pursuant to the Conditional Sale Documents), charge or encumbrance upon
any property of Purchaser.
(d) Government Approvals. All Governmental Approvals, if any,
required in connection with the execution and delivery by Purchaser of the
Conditional Sale Documents to which Purchaser is a party, the consummation of
the transactions by Purchaser contemplated thereby, and the performance of its
obligations thereunder, have been, or will be contemporaneously with the
delivery of the Equipment hereunder, obtained, given or accomplished.
(e) Litigation. There is no action or proceeding pending or,
to the knowledge of Purchaser, overtly threatened against or affecting Purchaser
or any of the Collateral before any court or other governmental authority or
arbitration body which, if adversely determined, is reasonably likely to
materially and adversely affect the financial condition of Purchaser or the
ability of Purchaser to perform its obligations under the Conditional Sale
Documents to which it
14
is party, or which questions in any respect, directly or indirectly, the
legality, validity, binding effect or enforceability of any of the Conditional
Sale Documents or any part or portion thereof, or any action contemplated
thereby.
(f) No Default. No Default or Event of Default has occurred
and is continuing or will result from the purchase of the relevant Equipment or
consummation of the other transactions contemplated by the Conditional Sale
Documents; and to the best of Purchaser's knowledge, there does not exist any
material default or failure of condition or performance under any Lease by a
Qualified Lessee or by Purchaser in its capacity as Lessor thereunder.
(g) All Disclosures Made. No document, certificate or
statement furnished by Purchaser to Seller in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits a material fact necessary to make the statements contained therein not
misleading. There is no fact which Purchaser has not disclosed to Seller in
writing which materially adversely affects or, so far as Purchaser can
reasonably foresee, will materially adversely affect the ability of Purchaser to
carry on its business and perform its obligations under this Agreement and the
other Conditional Sale Documents.
(h) Leases Comply with Applicable Law. In respect of any
Lease, to the knowledge of Purchaser after reasonably inquiry, the form of Lease
to be entered into by the Purchaser and the Qualified Lessee in connection with
the corresponding Equipment complies with the requirements of all applicable
laws and contains all information and disclosures required by such applicable
laws.
7. COVENANTS
Purchaser agrees that during the Term, unless Seller shall otherwise consent in
writing:
7.1 Reports, Etc. Purchaser shall furnish to Seller the following
described reports, notices and information:
(a) Notice of Default or Event of Default. Promptly upon
becoming aware of the existence of any condition or event which constitutes a
Default or an Event of Default, a written notice signed by a senior officer of
Purchaser specifying the nature and period of existence thereof and what action
Purchaser is taking or proposes to take with respect thereto;
(b) Equipment Location. Promptly upon installation or
relocation of any Equipment, a list including a description of the equipment,
the purchase order number on which such Equipment was originally ordered, the
installation locations of such Equipment and the serial numbers of such
Equipment, if any.
(c) Financial Performance of Purchaser. Promptly, but in any
event no later than 90 days from the end of each fiscal year of Purchaser; (i)
Purchaser shall provide audited financial statements of Purchaser for such
period certified by independent certified accountants of nationally recognized
standing reasonably acceptable to Seller; and (ii) as soon as available upon
execution of this Agreement, but in any event no later that 30 days after the
end of each month, Purchaser shall provide unaudited financial statements to
Seller, certified by a
15
responsible officer. All such financial statements to be completed and correct
in all material respects and to be prepared in reasonable detail and in
accordance with generally accepted accounting principles applied consistently
throughout the periods reflected therein and with prior periods.
(d) Requested Information. Promptly upon request, such other
data and information as from time to ▇▇▇▇ ▇▇▇▇▇▇ may reasonably request,
including information on the operating performance and projected performance,
periodic information regarding acquisition activity and the subscriber base in
each country in the Region in which the Purchaser and its Affiliates operate.
Information provided to the Purchaser pursuant this clause (d) shall be subject
to the confidentiality provisions of Section 18.15 hereof.
7.2 Preservation of Corporate Existence. (a) Purchaser shall maintain
and preserve its corporate existence; (b) Purchaser shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
franchises and all rights necessary to carry on its business and operations; and
(c) Purchaser shall not, without the prior written consent of Seller,
consolidate with or merge or amalgamate into (or attempt any such consolidation,
merger or amalgamation) any other corporation or permit any other corporation to
merge into it, provided that the foregoing shall not apply to any consolidation
or merger of Purchaser with any Guarantor or with any subsidiary of Purchaser so
long as such Guarantor or Purchaser, as applicable, is the survivor and no
Default or Event of Default will result therefrom.
7.3 Maintenance. Purchaser shall maintain, or cause to be maintained,
the Equipment in good operating order and appearance, protect the Equipment from
deterioration, other than normal wear and tear, and will not use, or permit to
be used, the Equipment for any purpose other than that for which it is intended
and is permitted by applicable law.
8. POSSESSION AND USE OF THE EQUIPMENT
8.1 Use of the Equipment. Purchaser shall not, and shall not permit
any third party to, operate, use or locate the Equipment, or any part thereof,
except as otherwise provided in this Agreement.
8.2 Transfer of Title or Possession. Purchaser shall not, and shall
cause each Lessee not to, without the prior written consent of Seller, lease,
sublease or otherwise in any manner deliver, transfer or relinquish possession
of the Equipment, or sell or convey any or all of its right, title and interest
in or to any part thereof; provided, however, that, Purchaser may, without the
prior written consent of Seller but subject to the conditions precedent set out
herein, lease the Equipment to a Qualified Lessee pursuant to a Lease; further,
provided, that if the Purchaser and Seller are unable to agree to amendments to
the Lease required for a particular jurisdiction within 30 days from the
Shipment Date for such Equipment, the Equipment shall be deemed sold to the
Purchaser on the Standard Terms.
Notwithstanding any lease of the Equipment permitted under
this Section 8.2, (1) Purchaser shall remain primarily liable hereunder for the
performance of all of the terms of this Agreement to the same extent as if such
permitted lease had not occurred, and (2) in connection with any permitted lease
hereunder, Purchaser, at its own expense, shall take or cause to be taken
16
all action reasonably requested by Seller to be taken, including filings,
registrations and recordations, to preserve, and to continue to evidence the
retention by Seller of title to the Equipment and the security interest in the
other Collateral and Seller's other rights under the Conditional Sale Documents.
8.3 Liens. Purchaser shall not, directly or indirectly, create, incur
or assume or suffer to be created, incurred, assumed or to exist any Lien of
any kind (other than Permitted Liens) on any of its rights, titles and interests
in or under this Agreement or any of the other Conditional Sale Documents or its
rights and interests in and to the Equipment or any part thereof or any of the
other Collateral, and if any such Lien other than any Permitted Lien does exist,
Purchaser, at its sole cost and expense, shall promptly remove the same.
9. TAXES
Purchaser hereby assumes liability for, and shall pay when due, and, on a net
after-tax basis, shall indemnify, protect and hold harmless Seller against all
fees, taxes and governmental charges (including, without limitation, interest
and penalties) of any nature imposed on or in any way relating to Seller,
Purchaser, any Qualified Lessee, any item of Equipment, this Agreement or any
Lease, except state and local taxes on or measured by Seller's net income (other
than any such tax which is in substitution for or relieves Purchaser from the
payment of taxes it would otherwise be obligated to pay or reimburse to Seller
as herein provided) and federal taxes on Seller's net income. Purchaser shall,
at its expense, file when due with the appropriate authorities any and all tax
and similar returns, and reports required to be filed with respect thereto, for
which it has indemnified Seller hereunder or, if requested by Seller, notify
Seller of all such requirements and furnish Seller with all information required
for Seller to effect such filings. Any fees, taxes or other charges paid by
Seller upon failure of Purchaser to make such payments shall, at Seller's
option, become immediately due from Purchaser to Seller and shall be subject to
the Overdue Charge from the date paid by Seller until the date reimbursed by
Purchaser. Purchaser shall have no obligation to indemnify Seller under this
Section 9 to the extent that any tax or governmental charge results from the
failure by Seller to take all steps which are reasonable and customary in the
ordinary course of Seller's business to avail itself of any and all exemptions
from liability for, or reductions in, any such taxes or governmental charges.
10. INSURANCE
The Purchaser shall, or shall cause the corresponding Lessee, to maintain
insurance with financially sound and reputable insurers, of the kinds and in the
amounts customarily insured against by companies engaged in the same or similar
business and similarly situated. The Purchaser shall, or shall cause the
corresponding Lessee, to pay all insurance premiums payable as and when due. The
Seller shall be named as sole loss payee or additional insured, as applicable,
with respect to each such insurance policy.
11. RISK OF LOSS
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Risk of loss in respect of each item of Equipment shall pass to Purchaser on the
Shipment Date in respect thereof. Upon the occurrence of an Event of Loss,
Purchaser shall promptly pay to Seller the applicable Purchase Price Balance of
the Equipment subject to the Event of Loss, interest on the Purchase Price
Balance thereof from the most recent Payment Date in respect thereof to the date
of payment at a per annum rate of 12.25%. Upon payment by Purchaser of the
amounts in the preceding sentence, Seller will transfer to Purchaser, "AS IS,
WHERE IS, WITHOUT RECOURSE, REPRESENTATION OR WARRANTY," all of Lessor's right,
title and interest, if any, in such items of Equipment.
12. INDEMNIFICATION
Purchaser assumes liability for, and shall pay when due, and shall indemnify,
reimburse and hold each Indemnified Person harmless from and against all Claims,
directly or indirectly relating to or arising out of the acquisition, use,
manufacture, purchase, shipment, transportation, delivery, installation, lease
or sublease, ownership, operation, possession, control, storage, return or
condition of any item of Equipment (regardless of whether such item of Equipment
is at the time in the possession of Purchaser), the falsity of any non-tax
representation or warranty of Purchaser or Purchaser's failure to comply with
the terms of this Agreement during the Term. The foregoing indemnity shall
cover, without limitation, (i) any Claim in connection with a design or other
defect (latent or patent) in any item of Equipment, (ii) any Claim for
infringement of any patent, copyright, trademark or other intellectual property
right, or (iii) any Claim for negligence or strict or absolute liability in
tort; provided, however, that Purchaser shall not indemnify Seller in respect of
any Claim to the extent resulting from the gross negligence, willful misconduct
or bad faith of Seller.
Such indemnities shall continue in full force and effect, notwithstanding the
expiration or termination of this Agreement. Upon Seller's written demand,
Purchaser shall assume and diligently conduct, at its sole cost and expense, the
entire defense of any Indemnified Person against any indemnified Claim described
in this Section 12. Purchaser shall not settle or compromise any Claim against
or involving Seller without first obtaining Seller's written consent thereto,
which consent shall not be unreasonably withheld. Purchaser shall give Seller
prompt notice of any occurrence, event or condition in connection with which
Seller may be entitled to indemnification hereunder. The provisions of this
Section 12 are in addition to, and not in limitation of, the provisions of
Section 9.
13. EVENTS OF DEFAULT
An Event of Default shall occur if (i) Purchaser fails to make any payment due
under Section 3.2 hereof within ten (10) days of the due date therefor or any
other payment required under this Agreement when due and such failure continues
for a period of three (3) days after written notice from Seller, or (ii)
Purchaser fails to perform or observe any other covenant, condition or agreement
to be performed or observed by it or breaches any provision contained in this
Agreement or in any other document furnished to Seller in connection herewith,
and such failure or breach continues for a period of thirty (30) days after
written notice from Seller, or (iii) Purchaser without Seller's consent,
attempts to assign this Agreement or sell, transfer, encumber, part with
possession (other than under a Lease permitted hereunder) of any item of
Equipment;
18
or (iv) Purchaser makes any representation or warranty herein or in any document
furnished by Purchaser in connection herewith, which shall have been materially
false or inaccurate when made or at the time to which such representation or
warranty relates; (v) an Event of Default (as therein defined) under any
Guarantee shall occur; (vi) Purchaser or any Qualified Lessee shall commit an
act of bankruptcy or become insolvent or bankrupt or make an assignment for the
benefit of creditors or consent to the appointment of a trustee or receiver or
either shall be appointed for them or for a substantial part of its property
without its consent, or bankruptcy reorganization, or insolvency proceedings
shall be instituted by or against them, and if instituted against them, shall
not be vacated or dismissed within sixty (60) days; or (vii) an initial public
offering of securities representing shares of Purchaser. Any Event of Default
shall be deemed material and a substantial impairment of Seller's interests for
the purposes of this Agreement, the UCC, and any other applicable law.
14. REMEDIES
Upon the occurrences of any Event of Default and at any time thereafter,
provided such Event of Default is then continuing, Seller may, in its
discretion, do any one or more of the following:
(a) accelerate the Maturity Date in respect of any or all
Equipment;
(b) recover any accrued and unpaid amounts which are due and
owing under any Conditional Sale Document plus interest at the Overdue Rate;
(c) recover any amounts due under any indemnity then
determinable, plus interest at the Overdue Rate;
(d) require that Purchaser return the Equipment in accordance
with Section 15 hereof
(e) enter the premises where such Equipment is located and
take immediate possession of and remove the same, all without liability to
Seller or its agents for such entry;
(f) exercise the rights of "Lessor" under any Lease;
(g) sell any or all of the Equipment at public or private
sale, with or without notice to Seller or advertisement, or otherwise dispose
of, hold, use, operate, lease to others or keep idle such Equipment, all free
and clear of any rights of Purchaser and without any duty to account to
Purchaser for such action or inaction or for any proceeds with respect thereto;
and
(h) exercise any other right or remedy which may be available
to it under the UCC or other applicable law including the right to recover
damages for the breach hereof.
In addition, Purchaser shall be liable for, and reimburse Seller for, all
reasonable legal fees and all commercially reasonable costs and expenses
incurred by Seller as a result of the foregoing defaults or the exercise of
Seller's remedies, including without limitation, recovering possession of the
Equipment, selling or leasing the Equipment (including broker's and sales
representative's fees and commissions), and placing any Equipment in the
condition required by Section 15. No
19
remedy referred to in this Section is intended to be exclusive, but each shall
be cumulative and in addition to any other remedy referred to above or otherwise
available to Seller at law or in equity. No express or implied waiver by Seller
of any default shall constitute a waiver of any other default by Seller, or a
waiver of any of Seller's right.
15. RETURN OF EQUIPMENT
If required to return any Equipment to the Seller hereunder, Purchaser shall, at
its expense and risk, cause such Equipment to be removed, disassembled, and
placed in the same condition as when delivered to Seller (reasonable wear and
tear excepted) and properly crate such Equipment for shipment and deliver it to
a common carrier designated by Seller. Purchaser will ship such Equipment,
F.O.B. destination, to any address specified in writing by Seller within the
continental United States. All additions, attachments, alterations and repairs
made or placed upon any of the Equipment shall become part of such Equipment and
shall be the property of Seller. The Equipment when returned to Seller pursuant
to this Section 15 shall comply with the requirements of this Agreement.
16. IDENTIFICATION
The Equipment shall bear the respective manufacturers' serial numbers.
Purchaser, at its sole cost and expense, shall ▇▇▇▇, or cause to be marked,
legibly each item of Equipment on or before placing such Equipment into service
and thereafter during the Term for so long as such Equipment is subject to the
terms hereof, with a metal plate, disc, or other marking of the customary size
no smaller than ten centimeters by seven centimeters (10cm. x 7cm) and bearing a
legend as follows:
"THIS EQUIPMENT IS OWNED BY ASCEND COMMUNICATIONS, INC., A WHOLLY- OWNED
SUBSIDIARY OF LUCENT TECHNOLOGIES INC., AND IS SUBJECT TO A CONDITIONAL SALE
AGREEMENT BETWEEN ASCEND COMMUNICATIONS, INC., A WHOLLY-OWNED SUBSIDIARY OF
LUCENT TECHNOLOGIES INC., AND GLOBALTRON COMMUNICATIONS CORPORATION AND IS
LEASED TO [QUALIFIED LESSEE NAME] AND MAY NOT BE USED BY ANY OTHER PERSON
WITHOUT THE PRIOR WRITTEN CONSENT OF ASCEND COMMUNICATIONS, INC., A WHOLLY-
OWNED SUBSIDIARY OF LUCENT TECHNOLOGIES INC., AND GLOBALTRON COMMUNICATIONS
CORPORATION."
or such other legend as may be reasonably requested by Seller to evidence the
fact that the Equipment is subject to this Agreement. Purchaser shall not remove
or deface, and shall require each Lessee to agree not to remove or deface, any
metal plate, disc or other marking so placed on the Equipment or the identifying
serial number of the Equipment or any part thereof and, in the event of such
removal or defacement, shall promptly cause such metal plate, disc, other
marking or serial number to be replaced.
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16. NOTICES
Except as otherwise specifically set forth in this Agreement, all notices,
demands, requests or other communications which may be or are required to be
given, served, or sent by any party pursuant to this Agreement shall be in
writing and shall be personally delivered, mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, sent by Federal
Express or other recognized overnight delivery service, addressed as follows:
If to the Purchaser, to: GLOBALTRON COMMUNICATIONS CORPORATION
ATTN: ▇▇▇▇ ▇▇▇▇▇▇, PRESIDENT & CEO
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ILLEGIBLE
Attn: ▇▇▇▇▇ ▇▇▇▇▇, CFO
If to the Seller, to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Assistant Secretary
Lucent Technologies Inc., InterNetworking
Systems
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇, Manager of Corporate Finance
Each party may designate by notice in writing a new address, to which any
notice, demand, request or communication may thereafter be so given, served or
sent. Each notice, demand, request or communication which shall be delivered,
mailed or transmitted in the manner described above shall be deemed sufficiently
given, served, sent or received for all purposes at such time as is delivered to
the addressee (with an affidavit of personal delivery, the return receipt or the
delivery receipt being deemed conclusive, but not exclusive, evidence of such
delivery) or at such time as delivery is refused by the addressee upon
presentation.
17. GENERAL
17.1 Expenses. Without limitation of the terms of Section 12,
Purchaser agrees, promptly upon demand, to pay to Seller all out-of-pocket costs
and expenses (including reasonable attorneys fee) incurred by Seller in
connection with this Agreement, the enforcement of any rights and remedies
created in connection with the Conditional Sale Documents, or the entering into
or giving or withholding of any future amendments or supplements or waivers or
consents with respect thereto, as well as,
(a) out of pocket costs payable to third parties arising with
respect to the documentation of the Lease, perfection of the Seller's security
first priority interest in the
21
Collateral and rights to the Equipment located outside the continental United
States, subject to the prior approval of the Purchaser, such approval not to be
unreasonably withheld or delayed; and
(b) all other expenses in connection with such transactions
including, without limitation, all fees, taxes, expenses, and other charges
(including, without limitation, reasonable fees and expenses of counsel) payable
in connection with (i) any transfer of possession of or the replacement of the
Equipment as provided in this Agreement, (ii) the recording or filing of
instruments, including the Conditional Sale Documents, any financing statements,
company charges and other filings described in this Agreement, (iii) any
transfer of title to the Equipment pursuant to Section 4 and the removal of any
Liens on the Equipment in connection therewith other than any fees, charges or
expenses incurred in connection with the removal of any Seller Liens, and (iv)
the taking, possession, removing, storing, repairing, leasing or selling of the
Equipment as part of Seller's enforcement of any remedies under this Agreement,
the Note or the other Conditional Sale Documents. Except as set forth herein,
each party hereto shall pay its own expenses (including legal and accounting
fees) incurred in the negotiation, documentation and review of the Agreement and
any due diligence efforts expended in connection with its execution.
17.2 Relationship Of The Parties. Nothing in this Agreement shall be
construed as making either party a joint venturer, partner, agent,
representative, or employee of the other party. The parties' status is that of
independent contractors and, except as otherwise expressly set forth herein, the
parties shall be responsible for determining the method, details, and means of
performing their obligations described herein. Each party shall solely be
responsible for its own employees. This Agreement is not intended to confer any
right upon any person other than the parties to this Agreement.
17.3 Entire Agreement, Merger And Modification, No Waivers,
Severability. This Agreement and the Exhibits contains the entire understanding
between the Seller and the Purchaser with respect to the subject matter hereof
and merges and supersedes all prior and contemporaneous agreements, dealings and
negotiations. No modification, alteration or amendment shall be effective unless
made in writing, dated and signed by duly authorized representatives of both
parties. No waiver of any breach hereof shall be held to be a waiver of any
other or subsequent breach. If any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid, illegal or unenforceable, such
determination shall not affect the validity of the remaining provisions unless
the Seller determines in its discretion that the court's determination causes
this Agreement to fail in any of its essential purposes.
17.4 Limitation Of Liability. In no event shall either party be liable
to the other for any speculative, indirect, special or consequential damages,
including but not limited to lost profits, even if advised of the possibility of
such damages, in connection with performance under this Agreement.
17.5 Interpretation.
22
(a) Headings. Table of contents and section headings used
herein are for convenience only and shall not in any way affect the construction
of, or be taken into consideration in interpreting, this Agreement.
(b) References. Any reference to a specific Section or Section
number shall be interpreted as a reference to that Section of this Agreement
unless otherwise expressly provided.
(c) Incorporation of Exhibits and Schedules. All annexes,
schedules and exhibits referenced in and attached to this Agreement are by this
reference incorporated into and made a part of this Agreement.
(d) Governing Law. THIS AGREEMENT AND THE NOTE AND ALL THE
RIGHTS AND OBLIGATIONS HEREUNDER AND THEREUNDER AND ALL MA1TERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE THEREOF SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS, BUT NOT THE CHOICE OF LAW PROVISIONS, OF THE
STATE OF CALIFORNIA, U.S.A.
17.6 Submission to Jurisdiction. The parties hereto hereby irrevocably
and unconditionally submit to the non-exclusive jurisdiction of the California
courts and of any United States federal courts sitting in California with
respect to any disputes arising out of or in connection with this Agreement.
17.7 Immunity. Purchaser agrees that in any legal action or
proceedings against it or its assets in connection with this Agreement or the
other Conditional Sale Documents, no immunity from legal action or proceedings
(including, without limitation, suit, attachment prior to judgment, other
attachment, the obtaining of judgment, execution or other enforcement) shall be
claimed by or on behalf of Purchaser or with respect to its assets, irrevocably
waives any such right of immunity which it or its assets how have or may
hereafter acquire or which may be attributed to it or its assets and consents
generally in respect of any such legal action or proceedings to the giving of
any relief or the issue of any process in connection with such action or
proceedings including, without limitation, the making, enforcement or execution
against any property whatsoever (irrespective of its use or intended use) of any
order or judgment which may be made or given in such action or proceedings.
17.8 Assignment. Seller may at any time, without notice to or the
consent of Purchaser or any other Person, sell, assign, transfer, convey, grant
participations in or otherwise dispose of to one or more persons, and any
assignee, transferee, participant or other recipient may resell, reassign,
retransfer or reconvey, at any time and from time to time, all or any portion of
the Note any interest of Seller in any of the Collateral and/or the Conditional
Sale Documents, and the rights, benefits and advantages of Seller hereunder and
under the other Conditional Sale Documents. Seller shall promptly notify
Purchaser of any such sale, assignment, transfer, conveyance, participation or
disposal provided that the failure to provide such notice shall not adversely
affect the transfer contemplated thereby.
17.9 Further Acts. Subject to the limitations otherwise provided
herein, Purchaser shall from time to time do and perform such other and further
acts and execute and deliver any and all
23
such other and further instruments as may be required by law or reasonably
requested by Seller to establish, maintain and protect the rights, title,
interests and remedies intended to be created or provided hereunder and under
the other Conditional Sale Documents in favor of Seller and to carry out and
effect the intent and purposes of this Agreement and the other Conditional Sale
Documents. Without limiting the generality of the foregoing, Purchaser shall, at
its own cost and expense, promptly furnish to Seller such information as may be
required to enable Seller to file any reports, including tax returns, required
to be filed by Seller with any governmental authority because of Seller's
interests in the Equipment or in the other Collateral.
17.10 No Waiver of Rights. No waiver of or delay or omission in the
exercise of any right or remedy provided herein or in any other Conditional Sale
Document or otherwise available to Seller shall impair, affect or be construed
as a waiver of its rights thereafter to exercise the same. Any single or partial
exercise by Seller of any right or remedy provided herein or in any other
Conditional Sale Document shall not preclude any other or further exercise of
any other right or remedy. Any extension of time for payment hereunder or other
indulgences granted to Purchaser shall not alter, affect or waive Seller's
rights or the obligations of Purchaser hereunder or under any other Conditional
Sale Document, except in accordance with the explicit terms of such extension.
17.11 No Oral Modification; Oral Agreements. No term or provision of
this Agreement or the Note may be waived, modified, terminated or discharged
orally, but only by an instrument in writing signed by the party against which
the enforcement of the change, waiver, discharge or termination is sought.
17.12 Survival. Any other provisions contained in this Agreement to
the contrary notwithstanding, it is hereby agreed that, except as otherwise
provided herein, the provisions of Sections 9, 12, 14, 15 and 18, shall survive
the expiration, cancellation, completion or termination hereof to the extent
required thereby for their full observance and performance.
17.13 Successors and Assigns. This Agreement shall be binding on and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns, including, without limitation, the subrogees and
participants of Seller.
17.14 Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which when so executed shall be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
17.15 Confidentiality. Purchaser and Seller understand that certain
commercial and financial information contained in this Agreement and each other
Conditional Sale Agreement is considered by Purchaser and Seller as privileged
and confidential. Purchaser and Seller each agree that it shall treat this
Agreement and the terms hereof as privileged and confidential and will not, or
permit its agents and advisers to, without the prior written consent of the
other, disclose the terms and conditions of or the existence of this Agreement
or the agreements of the parties contained herein to any third person or persons
except (i) to legal counsel or auditors in connection with the transactions
contemplated hereby, (ii) as may be required by law or in connection with legal
proceedings, and (iii) to any transferee or assignee of Seller hereunder. In
connection with any permitted disclosure of the terms and conditions of or the
existence of this
24
Agreement and each other Conditional Sale Agreement or the agreements contained
herein to any person or entity, Purchaser or Seller, as the case may be, and
such party's agents and advisers, shall request, and shall use reasonable
efforts to obtain, confidential treatment of such information.
25
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed as of the date stated at the beginning of this
Agreement.
ASCEND COMMUNICATIONS, INC., a GLOBALTRON COMMUNICATIONS
wholly-owned subsidiary of Lucent CORPORATION
Technologies, Inc.
By:_____________________ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇,
Name:___________________ Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:__________________ Title: President & CEO
26
SCHEDULE I
--------------------------------------------------------------------------------------------------------------------------------
Month Purchase Price Factor
--------------------------------------------------------------------------------------------------------------------------------
1 .010208333
--------------------------------------------------------------------------------------------------------------------------------
2 .010208333
--------------------------------------------------------------------------------------------------------------------------------
3 .010208333
--------------------------------------------------------------------------------------------------------------------------------
4 .010208333
--------------------------------------------------------------------------------------------------------------------------------
5 .010208333
--------------------------------------------------------------------------------------------------------------------------------
6 .010208333
--------------------------------------------------------------------------------------------------------------------------------
7 .010208333
--------------------------------------------------------------------------------------------------------------------------------
8 .010208333
--------------------------------------------------------------------------------------------------------------------------------
9 .010208333
--------------------------------------------------------------------------------------------------------------------------------
10 .010208333
--------------------------------------------------------------------------------------------------------------------------------
11 .010208333
--------------------------------------------------------------------------------------------------------------------------------
12 .010208333
--------------------------------------------------------------------------------------------------------------------------------
13 .010208333
--------------------------------------------------------------------------------------------------------------------------------
14 .010208333
--------------------------------------------------------------------------------------------------------------------------------
15 .010208333
--------------------------------------------------------------------------------------------------------------------------------
16 .010208333
--------------------------------------------------------------------------------------------------------------------------------
17 .010208333
--------------------------------------------------------------------------------------------------------------------------------
18 .010208333
--------------------------------------------------------------------------------------------------------------------------------
19 .010208333
--------------------------------------------------------------------------------------------------------------------------------
20 .010208333
--------------------------------------------------------------------------------------------------------------------------------
21 .010208333
--------------------------------------------------------------------------------------------------------------------------------
22 .010208333
--------------------------------------------------------------------------------------------------------------------------------
23 .010208333
--------------------------------------------------------------------------------------------------------------------------------
24 .010208333
--------------------------------------------------------------------------------------------------------------------------------
25 .010208333
--------------------------------------------------------------------------------------------------------------------------------
26 .010208333
--------------------------------------------------------------------------------------------------------------------------------
27 .010208333
--------------------------------------------------------------------------------------------------------------------------------
28 .010208333
--------------------------------------------------------------------------------------------------------------------------------
29 .010208333
--------------------------------------------------------------------------------------------------------------------------------
30 .010208333
--------------------------------------------------------------------------------------------------------------------------------
SCHEDULE I
EXHIBIT B
PROMISSORY NOTE
US$1,750,000 December 29, 1999
FOR VALUE RECEIVED, the undersigned, Globaltron Communications
Corporation, a corporation organized and existing under the laws of the State of
Delaware, U.S.A. having its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ("Purchaser"), hereby
unconditionally promises to pay to the order of Ascend Communications Inc., a
wholly-owned subsidiary of Lucent Technologies Inc. ("Seller"), in lawful money
of the United States of America and in immediately available funds on or before
the Maturity Date the principal sum of one million seven hundred fifty thousand
and ▇▇/▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars (US$1,750,000.00) or such lesser amount due as
shown on the attached Schedule as the aggregate Purchase Price of all Equipment
sold by Seller and purchased by Purchaser pursuant to the Master Conditional
Sale Agreement between Purchaser and Seller and dated as of even date herewith
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Master Conditional Sale Agreement"). Purchaser further agrees to pay
interest in like money at such office on the aggregate Purchase Price of all
Equipment sold by Seller and purchased by Purchaser at the rates and on the
dates specified in the Master Conditional Sale Agreement and on the Schedule
attached hereto.
The holder of this Note is authorized to record on the Schedule
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date and amount of each payment or
prepayment of the Purchase Price and any interest accrued and due thereon. Each
such recordation shall, to the extent permitted by applicable law, constitute
prima facie evidence of the accuracy of the information so recorded, provided
that the failure to make any such recordation shall not affect the obligation of
Purchaser to pay in full (with applicable interest) the Purchase Price Balance
of the Equipment sold by Seller and purchased by Purchaser pursuant to the
Master Conditional Sale Agreement and any interest accrued and due thereon.
This Note (a) is the Note referred to in the Master Conditional Sale
Agreement, (b) is subject to the provisions of the Master Conditional Sale
Agreement and (c) is subject to optional and mandatory prepayment as provided in
the Master Conditional Sale Agreement. This Note is secured and guaranteed as
provided in the Master Conditional Sale Agreement and each Guarantee. Reference
is hereby made to the Master Conditional Sale Agreement and each Guarantee for a
description of the properties and assets in which a security interest has been
granted, the nature and extent of the security and guaranties, the terms and
conditions upon which the security interests and each guaranty were granted and
the rights of the holder of this Note in respect thereof.
Purchaser's obligation to pay the full amount of the Purchase Price in
respect of all Equipment and interest thereon and all other amounts payable to
Seller under this Note shall be
absolute and unconditional under any and all circumstances, shall not be subject
to notice or demand unless otherwise provided herein, and shall not be affected
by any circumstance of any character, including, without limitation: (a) any
setoff, counterclaim, deduction, recoupment, abatement, suspension, deferment,
diminution, proration, defense or other right which Purchaser may have against
Seller or any other Person for any reason whatsoever, including any claim of
Purchaser against Seller or any other Person; (b) any defect in the title,
condition, design, operation or fitness for use, or any damage to, or loss or
destruction of, or any Lien upon the Equipment or the interruption or cessation
or restriction in the use or possession thereof by Purchaser for any reason
whatsoever; (c) any condemnation, expropriation, requisition or other taking of
the Equipment; (d) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceedings by or against
Purchaser, Seller or any other Person; (e) any change, extension, waiver,
indulgence or other action or omission in respect of any obligation or liability
of Purchaser or Seller except as otherwise expressly provided thereby; (f) any
failure by Purchaser or any Affiliate to obtain any anticipated tax allowances
or other tax benefits in the United States or elsewhere; or (g) any other
circumstance, happening or event whatsoever, whether or not similar to the
foregoing and whether or not Purchaser or Seller shall have had any knowledge,
actual or otherwise, of any of the foregoing.
Upon the occurrence of any one or more Event of Default, all amounts
then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Master Conditional Sale
Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Master
Conditional Sale Agreement and used herein shall have the meanings given to them
in the Master Conditional Sale Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA.
GLOBALTRON COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President, Chief Financial Officer
Schedule
--------
-----------------------------------------------------------------------------------------------------------------------------
Date Purchase Price Amount of Purchase Remaining Purchase Notation
Price Repaid Price Balance Made By
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
SECURED PROMISSORY NOTE
$6,750,000.00 August 27, 1999
FOR VALUE RECEIVED, the undersigned, Globaltron Communications
Corporation ("Borrower"), hereby promises to pay to ASCEND COMMUNICATIONS, INC.
("Lender"), or order, the principal sum or so much of the principal sum of Six
Million Seven Hundred Fifty Thousand and no/100 Dollars ($6,750,000.00) as may
from time to time have been advanced and be outstanding, together with accrued
interest as provided herein.
A. Principal.
---------
Borrower may from time to time request advances from Lender (individually an
"Equipment Advance" and collectively the "Equipment Advances") for the exclusive
purpose of financing Borrower's acquisition of the equipment from Ascend
Communications, Inc. or its affiliates which have been approved in advance by
Ascend Communications, Inc. (the "Financed Equipment") covered in the purchase
orders attached or which may from time to time be added to Attachment "A" hereto
(the "Purchase Orders") by giving written notice to Lender in accordance with
the terms hereof, which notice shall indicate (i) the amount of the Equipment
Advance requested and (ii) the Financed Equipment to be acquired with the
Equipment Advance proceeds. Such Equipment Advance shall become effective on the
date of shipment of such Financed Equipment. An Equipment Advance may not exceed
one hundred percent (100%) of the invoice cost of the Financed Equipment that is
to be acquired with such Equipment Advance. Provided that no Event of Default is
in existence and that the requested Equipment Advance would not cause an Event
of Default to occur, Lender shall make the Equipment Advance to Borrower. By
making a request for an Equipment Advance, Borrower is making a representation
and warranty that the Financed Equipment that is be financed with such Equipment
Advance will be acquired by Borrower free and clear of all Liens, except for the
Lien created hereunder, and that Borrower agrees to permit the proceeds to be
applied directly against Borrower's account with the seller of the Financed
Equipment. Subject to the milestone conditions precedent set forth in Section E
below, Lender shall not be obligated to make an Equipment Advance (i) after
September 30, 2000, or (ii) to the extent that such Equipment Advance, when
aggregated with all prior Equipment Advances, would exceed Six Million Seven
Hundred Fifty Thousand Dollars and no/100 ($6,750,000.00). Borrower shall not
have the right to re-borrow any Equipment Advance to the extent that it has been
repaid.
B. Interest.
--------
Interest shall accrue with respect to the principal sum hereunder at the fixed
rate of Eleven and 50/100 percent (11.50%) per annum. However, if an Event of
Default, as defined herein, occurs,
1
then interest shall accrue at the rate per annum equal to two percent (2%) plus
the rate that would otherwise be in effect (the "Default Rate"). Interest
payable hereunder shall be calculated on the basis of a three hundred sixty
(360) day year for actual days elapsed. Interest shall be due and payable in
arrears on the first day of each calendar month, commencing with the first month
after the date of each Advance.
C. Payment.
-------
1. Scheduled Payment. Each Advance made hereunder shall be repaid in
29 equal monthly installments of principal and interest beginning on the earlier
of (a) the first day of the month following the date of payment in full of all
principal amounts owed under the Master Conditional Sale Agreement dated
___________________ between Globaltron Communications Corporation and Ascend
Communications Inc. or (b) April 1, 2002. On the date that is 30 months from the
date of the scheduled due date of first interest payment, all principal and
accrued but unpaid interest shall be due and payable.
2. Mandatory Prepayment. The principal indebtedness and all accrued
but unpaid interest shall become immediately due and payable; without demand or
any notice by Lender, on the date that is 30 days (or sooner if practical) after
the date of the first to occur of (i) the effective date of the IPO or (ii) the
date of a Change of Control.
3. Optional Prepayment. Borrower shall have the right at any time and
from time to time to prepay, in whole or in part, the principal of this Note,
without payment of any premium or penalty. Any principal prepayment shall be
accompanied by a payment of all interest accrued on the amount prepaid through
the date of such prepayment.
4. Form of Payment. Principal and interest and all other amounts due
hereunder are to be paid in lawful money of the United States of America in
federal or other immediately available funds.
D. Covenants.
---------
1. Insurance. Borrower, at its expense and with such companies as are
reasonably acceptable to Lender, shall maintain business interruption and
liability insurance and fire, theft and other hazard insurance which covers the
Collateral, which insurance shall be in such amounts as are ordinarily carried
by other owners in similar businesses conducted in the locations where
Borrower's business is conducted on the date hereof. All such liability
insurance policies shall show Lender as an additional insured or loss payee, as
applicable, and shall specify that the insurer must give at least thirty (30)
days' notice to Lender before canceling its policy for any reason. Borrower,
upon Lender's request, shall deliver to Lender certified copies of such policies
of insurance and evidence of the payments of all premiums therefor.
2
2. Financial Information. Borrower shall deliver to Lender:
---------------------
(a) as soon as practicable after the end of each calendar
month, and in any event within thirty (30) days thereafter, an unaudited balance
sheet of Borrower as of the end of such month, cash flow statements and an
unaudited statement of operations of Borrower for the portion of the Fiscal Year
ended with such month prepared and certified by the chief financial officer of
Borrower, subject, however, to the exclusion of footnotes and to normal year-end
audit adjustments, and a comparison of such statements to Borrower's operating
plan or budget then in effect.
(b) as soon as practicable after the end of each Fiscal Year,
and in any event within ninety (90) days thereafter, a copy of its audited
financial statements accompanied by a report thereon by a firm of independent
certified public accountants selected by Borrower, which report shall state that
such financial statements fairly present Borrower's financial position at the
end of such Fiscal Year;
(c) as soon as available, and in any event within sixty (60)
days prior to the commencement of each Fiscal Year, a budget and business plan
for Borrower for such Fiscal Year;
(d) promptly upon their becoming available, one copy of each
report, notice or proxy statement sent by Borrower to its shareholders generally
and of each regular or periodic report or registration statement, prospectus or
written communication (other than transmittal letters) filed by Borrower with
the Securities and Exchange Commission or any securities exchange on which
Borrower's securities are listed; and
(e) with reasonable promptness, such other information as
from time to time may be reasonably requested by Lender.
E. Conditions Precedent to Equipment Advances.
1. Conditions Precedent to Initial Advances. Upon the execution of
this Secured Promissory Note, Lender may make Equipment Advances to Borrower so
long as the sum of the aggregate .of all such Equipment Advances plus (a) the
aggregate Purchase Price (as defined in the Conditional Sale Agreement) of
Equipment (as defined in the Conditional Sale Agreement) sold by Lender to
Borrower under the Conditional Sale Agreement dated September __, 1999 (the
"Conditional Sale Agreement") between Lender and Borrower and (b) the aggregate
of all Equipment Advances made by Lender to Borrower pursuant to the Secured
Promissory Note dated September 15 1999 (the "Other Note") between Lender and
Borrower is equal to less than three million and ▇▇/▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ dollars
($3,000,000).
3
2. Conditions Precedent Secondary Equipment Advances. When Lender
shall have received evidence satisfactory to Lender of (i) Bridge Pointe Capital
Documentation (as defined in the Conditional Sale Agreement) evidencing an
equity investment commitment in Borrower or subordinated debt commitment to
Borrower by Bridge Pointe Capital of at least eight hundred thousand and ▇▇/▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ dollars ($800,000) and (ii) Bridge Pointe Capital funding such
commitment, Lender may make Equipment Advances to Borrower so long as the sum of
the aggregate of all such Equipment Advances plus (a) the aggregate Purchase
Price of Equipment sold by Lender to Borrower under the Conditional Sale
Agreement and (b) the aggregate of all Equipment Advances made by Lender to
Borrower pursuant to the Other Note is equal to less than six million and ▇▇/▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ dollars ($6,000,000).
3. Conditions Precedent to Tertiary Equipment Advances. When Lender
shall have received evidence satisfactory to Lender of (i) Bridge Pointe Capital
Documentation evidencing an equity investment commitment in Borrower or
subordinated debt commitment to Borrower by Bridge Pointe Capital of at least
$4,000,000 (provided that this amount will constitute an aggregate of all
commitments from Bridge Pointe Capital to Borrower after August 1, 1999, and
inclusive of the $800,000 commitment set forth in Section 5.4 above) and (ii)
evidence of Bridge Pointe Capital funding such commitment, Lender may make
Equipment Advances to Borrower so long as the sum of the aggregate of all such
Equipment Advances plus (a) the aggregate Purchase Price of Equipment sold by
Lender to Borrower under the Conditional Sale Agreement and (b) the aggregate of
all Equipment Advances made by Lender to Borrower pursuant to the Other Note is
equal to less than ten million and ▇▇/▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ dollars ($10,000,000)..
F. Security Interest.
-----------------
1. Grant of Security Interest. Borrower grants to Lender a
security interest in the Collateral, as defined herein, to secure the payment of
all of the indebtedness hereunder (the "Secured Obligations").
2. Representations and Warranties Regarding Collateral, Borrower
represents and warrants to Lender that Borrower is the true and lawful owner of
the Collateral, having good and marketable title thereto, free and clear of any
and all Liens other than the Lien and security interest granted to Lender
hereunder and Permitted Liens as described in Attachment "B" hereto. Borrower
shall not create or assume or permit to exist any such Lien on or against any of
the Collateral except as created or permitted by this Note and Permitted Liens,
and Borrower shall promptly notify Lender of any such other Lien against the
Collateral and shall defend the Collateral against, and take all such action as
may be necessary to remove or discharge, any such Lien.
3. Perfection of Security Interest. Borrower agrees to take all
actions requested by Lender and reasonably necessary to perfect, to continue the
perfection of, and to otherwise give
4
notice of, the Lien granted hereunder, including, but not limited to, execution
of financing statements.
G. Events of Default.
-----------------
1. Definition of Event of Default. The occurrence of any one or more
of the following events shall constitute an "Event of Default" hereunder:
(i) Borrower's breach of the obligation to pay any amount payable
hereunder on the date that it is due and payable;
(ii) Borrower's breach of the covenant with respect to the use of
the Advance proceeds or of the covenant with respect to acquisition of equipment
exclusively from Lender;
(iii) Borrower's failure to perform, keep or observe any of its
covenants, conditions, promises, agreements or obligations under any other
agreement with any person or entity if such failure may have a material adverse
effect on Borrower's assets, operations or condition, financial or otherwise;
(iv) Borrower's institution of proceedings against it, or
Borrower's filing of a petition or answer or consent seeking reorganization or
release, under the federal Bankruptcy Code, or any other applicable federal or
state law relating to creditor rights and remedies, or Borrower's consent to the
filing of any such petition or the appointment of a receiver, liquidator,
assignee, trustee or other similar official of Borrower or of any substantial
part of its property, or Borrower's making of an assignment for the benefit of
creditors, or the taking of corporate action in furtherance of such action;
(v) the loss, theft, damage or destruction of, or sale (other
than in the ordinary course of business), lease or furnishing under a contract
of service of, any of the Collateral to the extent that such Collateral is not
replaced by like Collateral as covered by insurance or otherwise;
(vi) the creation (whether voluntary or involuntary) of, or any
attempt to create, any Lien upon any of the Collateral, other than the Permitted
Liens, or the making or any attempt to make any levy, seizure or attachment
thereof and such Lien, levy, seizure, or attachment has not been removed,
discharged or rescinded within ten (10) days;
(vii) the occurrence and continuance of any default under (i) any
lease or agreement for borrowed money made between Ascend Communications, Inc.
or its affiliates and Borrower, or (ii) any lease or agreement for borrowed
money that gives the lessor or the creditor
5
of such indebtedness, as applicable, the right to accelerate the lease payments
or the indebtedness, as applicable, or (iii) any lease or agreement for borrowed
money that gives the lessor or the creditor of such indebtedness, as applicable,
the right to exercise any rights or remedies with respect to any of the
Collateral; or
(viii) the entry of any judgment or order against Borrower which
remains unsatisfied or undischarged and in effect for thirty (30) days after
such entry without a stay of enforcement or execution.
2. Rights and Remedies on Event of Default.
------------------------------- -------
(a) During the continuance of an Event of Default, Lender
shall have the right, itself or through any of its agents, with or without
notice to Borrower (as provided below), as to any or all of the Collateral, by
any available judicial procedure, or without judicial process (provided,
however, that it is in compliance with the UCC), to exercise any and all rights
afforded to a secured party under the UCC or other applicable law. Without
limiting the generality of the foregoing, Lender shall have the right to sell or
otherwise dispose of all or any part of the Collateral, either at public or
private sale, in lots or in bulk, for cash or for credit, with or without
warranties or representations, and upon such terms and conditions, all as
Lender, in its sole discretion, may deem advisable, and it shall have the right
to purchase at any such sale. Borrower agrees that a notice sent at least
fifteen (15) days before the time of any intended public sale or of the time
after which any private sale or other disposition of the Collateral is to be
made shall be reasonable notice of such sale or other disposition. The proceeds
of any such sale, or other Collateral disposition shall be applied, first to the
expenses of retaking, holding, storing, processing and preparing for sale,
selling, and the like, and to Lender's reasonable attorneys' fees and legal
expenses, and then to the Secured Obligations and to the payment of any other
amounts required by applicable law, after which Lender shall account to Borrower
for any surplus proceeds. If, upon the sale or other disposition of the
Collateral, the proceeds thereof are insufficient to pay all amounts to which
Lender is legally entitled, Borrower shall be liable for the deficiency,
together with interest thereon at the Default Rate, and the reasonable fees of
any attorneys Lender's employs to collect such deficiency; provided, however,
that the foregoing shall not be deemed to require Lender to resort to or
initiate proceedings against the Collateral prior to the collection of any such
deficiency from Borrower. To the extent permitted by applicable law, Borrower
waives all claims,, damages and demands against Lender arising out of the
retention or sale or lease of the Collateral or other exercise of Lender's
rights and remedies with respect thereto.
(b) To the extent permitted by law, Borrower covenants that it
will not at any time insist' upon or plead, or in any manner whatever claim or
take any benefit or advantage of, any stay or extension law now or at any time
hereafter in force, nor claim, take or insist upon any benefit or advantage of
or from any law now or hereafter in force providing for the valuation or
appraisal of the Collateral or any part thereof, prior to any sale or sales
thereof to be made pursuant
6
to any provision herein contained, or the decree, judgment or order of any court
of competent jurisdiction; or, after such sale or sales, claim or exercise any
right under any statute now or hereafter made or enacted by any state or
otherwise to redeem the property so sold or any part thereof, and, to the full
extent legally permitted, hereby expressly waives all benefit and advantage of
any such law or laws, and covenants that it will not invoke or utilize any such
law or laws or otherwise hinder, delay or impede the execution of any power
herein granted and delegated to Lender, but will suffer and permit the execution
of every such power as though no such power, law or laws had been made or
enacted.
(c) Any sale, whether under any power of sale hereby given or
by virtue of judicial proceedings, shall operate to divest all Borrower's right,
title, interest, claim and demand whatsoever, either at law or in equity, in and
to the Collateral sold, and shall be a perpetual bar, both at law and in equity,
against Borrower, its successors and assigns, and against all persons and
entities claiming the Collateral sold or any part thereof under, by or through
Borrower, its successors or assigns.
(d) Borrower appoints Lender, and any officer, employee or
agent of Lender, with full power of substitution, as Borrower's true and lawful
attorney-in-fact, effective as of the date hereof, with power, in its own name
or in the name of Borrower, during the continuance of an Event of Default, to
endorse any notes, checks, drafts, money orders, or other instruments of payment
in respect of the Collateral that may come into Lender's possession, to sign and
endorse any drafts against debtors, assignments, verifications and notices in
connection with accounts, and other documents relating to Collateral; to pay or
discharge taxes or Liens at any time levied or placed on or threatened against
the Collateral; to demand, collect, issue receipt for, compromise, settle and
▇▇▇ for monies due in respect of the Collateral; to notify persons and entities
obligated with respect to the Collateral to make payments directly to Lender;
and, generally, to do, at Lender's option and at Borrower's expense, at any
time, or from time to time, all acts and things which Lender deems necessary to
protect, preserve and realize upon the Collateral and Lender's security interest
therein to effect the intent of this Note, all as fully and effectually as
Borrower might or could do; and Borrower hereby ratifies all that said attorney
shall lawfully do or cause to be done by virtue hereof. This power of attorney
shall be irrevocable as long as any of the Secured Obligations are outstanding.
(e) All of Lender's rights and remedies with respect to the
Collateral, whether established hereby or by any other agreements, instruments
or documents or by law shall be cumulative and may be exercised singly or
concurrently.
H. Other Provisions.
----------------
1. Definitions. As used herein, the following terms shall have the
following meanings:
7
"Change of Control" means an event or series of events as a result of
which (i) any person or group is or becomes the beneficial owner of shares
representing more than fifty percent (50%) of the combined voting power of the
then outstanding securities entitled to vote generally in elections of
Borrower's directors (the "Voting Stock"), (ii) Borrower consolidates with or
merges into any other corporation, or conveys, transfers or leases all or
substantially all of its assets to any person, or any other corporation merges
into Borrower, and, in the case of any such transaction, Borrower's outstanding
common stock is changed or exchanged as a result, unless the Borrower's
shareholders immediately before such transaction own, directly or indirectly,
immediately following such transaction, at least fifty-one percent (51%) of the
combined voting power of the outstanding voting securities of the corporation
resulting from such transaction in substantially the same proportion as their
ownership of the Voting Stock immediately before such transaction, or (iii)
Continuing Directors do not constitute a majority of the Board of Directors of
Borrower (or, if applicable, Borrower's successor).
"Collateral" means all of Borrower's right, title and interest in each
and all of the following, whether now existing or owned or hereafter created or
acquired by Borrower:
a. All goods and equipment described in the Purchase Orders
and all accessions, additions, replacements and proceeds thereof.
"Continuing Directors" means at any date a member of Borrower's Board
of Directors (i) who was a member of the Board as of the date hereof, or (ii)
who was nominated or elected by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election or whose
election to the Board was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election.
"Fiscal Year" means the fiscal year of Borrower.
"IPO" means the first sale of Borrower's securities to the public
pursuant to a registration statement under the Securities Act of 1933, as
amended.
"Liens" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, security interest, charge, claim
or other encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any agreement to give or refrain from giving a lien,
mortgage, pledge, hypothecation, assignment, deposit arrangement, security
interest, charge, claim or other encumbrance of any kind.
"Permitted Liens" means: (i) Liens imposed by law, such as carriers',
warehousemen's, materialmen's and mechanics' liens, or Liens arising out of
judgments or awards against Borrower
8
with respect to which Borrower at the time shall currently be prosecuting an
appeal or proceedings for review; (ii) Liens for taxes not yet subject to
penalties for nonpayment and Liens for taxes the payment of which is being
contested in good faith and by appropriate proceedings and for which, to the
extent required by generally accepted accounting principles then in effect,
proper and adequate book reserves relating thereto are established by Borrower;
and (iii) Liens described in Attachment "B" hereto.
"UCC" means the Uniform Commercial Code in effect from time to time in
the relevant jurisdiction.
2. Governing Law Venue. This Note shall be governed by the laws of
the State of California, without giving effect to conflicts of law principles.
Borrower and Lender agree that all actions or proceedings arising in connection
with this Note shall be tried and litigated only in the state and federal courts
located in the County of Alameda, State of California or, at Lender's option,
any court in which Lender determines it is necessary or appropriate to initiate
legal or equitable proceedings in order to exercise, preserve, protect or defend
any of its rights and remedies under this Note or otherwise or to exercise,
preserve, protect or defend its Lien, and the priority thereof, against the
Collateral, and which has subject matter jurisdiction over the matter in
controversy. Borrower waives any right it may have to assert the doctrine of
forum non conveniens or to object to such venue, and consents to any court
ordered relief. Borrower waives personal service of process and agrees that a
summons and complaint commencing an action or proceeding in any such court shall
be promptly served and shall confer personal jurisdiction if served by
registered or certified mail to Borrower. If Borrower fails to appear or answer
any summons, complaint, process or papers so served within thirty (30) days
after the mailing or other service thereof, it shall be deemed in default and an
order of judgment may be entered against it as demanded or prayed for in such
summons, complaint, process or papers. The choice of forum set forth herein
shall not be deemed to preclude the enforcement of any judgment obtained in such
forum, or the taking of any action under this Note to enforce the same, in any
appropriate jurisdiction.
3. Notices. Any notice or communication required or desired to be
served, given or delivered hereunder shall be in the form and manner specified
below, and shall be addressed to the party to be notified as follows:
If to Lender: Ascend Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Manager of Corporate Finance
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
9
If to Borrower: Globaltron Communications Corporation
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as each party designates to the other by notice in the
manner herein prescribed. Notice shall be deemed given hereunder if (i)
delivered personally or otherwise actually received, (ii) sent by overnight
delivery service, (iii) mailed by first-class United States mail, postage
prepaid, registered or certified, with return receipt requested, or (iv) sent
via telecopy machine with a duplicate signed copy sent on the same day as
provided in clause (ii) above. Notice mailed as provided in clause (iii) above
shall be effective upon the expiration of three (3) business days after its
deposit in the United States mail, and notice telecopied as provided in clause
(iv) above shall be effective upon receipt of such telecopy if the duplicate
signed copy is sent under clause (iv) above. Notice given in any other manner
described in this section shall be effective upon receipt by the addressee
thereof; provided, however, that if any notice is tendered to an addressee and
delivery thereof is refused by such addressee, such notice shall be effective
upon such tender unless expressly set forth in such notice.
4. Lender's Rights; Borrower Waivers. Lender's acceptance of partial
or delinquent payment from Borrower hereunder, or Lender's failure to exercise
any right hereunder, shall not constitute a waiver of any obligation of Borrower
hereunder, or any right of Lender hereunder, and shall not affect in any way the
right to require full performance at any time thereafter. Except as otherwise
specifically provided herein, Borrower waives presentment, diligence, demand of
payment, notice, protest and all other demands and notices in connection with
the delivery, acceptance, performance, default or enforcement of this Note. In
any action on this Note, Lender need not produce or file the original of this
Note, but need only file a photocopy of this Note certified by Lender be a true
and correct copy of this Note in all material respects.
5. Enforcement Costs. Borrower shall pay all costs and expenses,
including, without limitation, reasonable attorneys' fees and expenses Lender
expends or incurs in connection with the enforcement of this Note, the
collection of any sums due hereunder, any actions for declaratory relief in any
way related to this Note, or the protection or preservation of any rights of the
holder hereunder.
6. Severability. Whenever possible each provision of this Note shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision is prohibited by or invalid under applicable law, it shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of the provision or the remaining provisions of this
Note.
10
7. Amendment Provisions. This Note may not be amended or modified,
nor may any of its terms be waived, except by written instruments signed by
Borrower and Lender.
8. Binding Effect. This Note shall be binding upon, and shall inure to
the benefit of, Borrower and the holder hereof and their respective successors
and assigns; provided, however, that Borrower's rights and obligations shall not
be assigned or delegated without Lender's prior written consent, given in its
sole discretion, and any purported assignment or delegation without such consent
shall be void ab initio.
9. Time of Essence. Time is of the essence of each and every provision
of this Note.
10. Headings. Section headings used in this Note have been set forth
herein for convenience of reference only. Unless the contrary is compelled by
the context, everything contained in each section hereof applies equally to this
entire Note.
LENDER: BORROWER:
ASCEND COMMUNICATIONS, INC. GLOBALTRON COMMUNICATIONS CORPORATION
By: By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- ---------------------------------
Name: Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ -------------------------------
Date: Date: 9/15/99
------------------------ -------------------------------
11
ATTACHMENT "A"
TO
SECURED PROMISSORY NOTE
PURCHASE ORDERS
---------------
--------------------------------------------------------------------------------
Soft Cost Advance No. Purchase Order No. Sales Order No.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
12
ATTACHMENT "B"
TO
SECURED PROMISSORY NOTE
PERMITTED LIENS
---------------
Liens created in connection with that Secured Promissory Note made between
Ascend Communications, Inc. and Globaltron Communications Corporation dated as
of September 15, 1999.
Liens created in connection with the Master Conditional Sale Agreement made
between Ascend Communications, Inc. and Globaltron Communications Corporation
dated as of
------------------------.
13
ATTACHMENT "B"
TO
SECURED PROMISSORY NOTE
PERMITTED LIENS
---------------
NONE.
13
SECURED PROMISSORY NOTE
$1,500,000.00 September 14, 1999
FOR VALUE RECEIVED, the undersigned, Globaltron Communications
Corporation ("Borrower"), hereby promises to pay to ASCEND COMMUNICATIONS, INC.
("Lender"), or order, the principal sum or so much of the principal sum of One
Million Five Hundred Thousand Dollars ($1,500,000) as may from time to time have
been advanced and be outstanding, together with accrued interest as provided
herein.
A. Principal.
---------
Borrower may from time to time request advances from Lender (individually a
"Soft Cost Advance" and collectively the "Soft Cost Advances") for the exclusive
purpose of financing Borrower's acquisition of professional services,
maintenance, and freight and taxes associated equipment purchases from Ascend
Communications, Inc. or its affiliates which have been approved in advance by
Ascend Communications,' Inc. (the "Financed Soft Costs") covered in the purchase
orders or invoices attached or which may from time to time be added to
Attachment "A" hereto (the "Purchase Orders") by giving written notice to Lender
in accordance with the terms hereof, which notice shall indicate (i) the amount
of the Soft Cost Advance requested and (ii) the Financed Soft Costs to be
acquired with the Soft Cost Advance proceeds. Such Soft Cost Advance shall
become effective on the date of invoice of such Financed Soft Costs. A Soft Cost
Advance may not exceed one hundred percent (100%) of the invoice cost of the
Financed Soft Costs that is to be acquired with such Soft Cost Advance. Provided
that no Event of Default is in existence and that the requested Soft Cost
Advance would not cause an Event of Default to occur, Lender shall make the Soft
Cost Advance to Borrower. By making a request for an Soft Cost Advance, Borrower
is making a representation and warranty that the Financed Soft Cost that is be
financed with such Soft Cost Advance will be acquired by Borrower free and clear
of all Liens, except for the Lien created hereunder, and that Borrower agrees to
permit the proceeds to be applied directly against Borrower's account with the
seller of the Financed Soft Cost. Lender shall not be obligated to make an Soft
Cost Advance (i) after September 30, 2000, or (ii) to the extent that such Soft
Cost Advance, when aggregated with all prior Soft Cost Advances, would exceed
One Million Five Hundred Thousand Dollars and no/100 ($1,500,000.00). Borrower
shall not have the right to re-borrow any Soft Cost Advance to the extent that
it has been repaid.
B. Interest.
--------
Interest shall accrue with respect to the principal sum hereunder at the fixed
rate of Twelve and 25/100 percent (12.25%) per annum. However, if an Event of
Default, as defined herein, occurs, then interest shall accrue at the rate per
annum equal to two percent (2%) plus the rate that would
1
otherwise be in effect (the "Default Rate"). Interest payable hereunder shall be
calculated on the basis of a three hundred sixty (360) day year for actual days
elapsed. Interest shall be due and payable in arrears on the first day of each
calendar month, commencing with the first month after the date of each Advance.
C. Payment.
-------
1. Scheduled Payment. Each Advance made hereunder shall be repaid in
23 equal monthly installments of principal and interest beginning on the earlier
of (a) the first day of the month following the date of payment in full of all
principal amounts owed under the Master Conditional Sale Agreement dated
___________________ between Globaltron Communications Corporation and Ascend
Communications Inc. or (b) April 1, 2002. On the date that is 24 months from the
date of the scheduled due date of first interest payment, all principal and
accrued but unpaid interest shall be due and payable.
2. Mandatory Prepayment. The principal indebtedness and all accrued
but unpaid interest shall become immediately due and payable, without demand or
any notice by Lender, on the date of the first to occur of (i) the effective
date of the IPO or (ii) the date of a Change of Control.
3. Optional Prepayment. Borrower shall have the right at any time and
from time to time to prepay, in whole or in part, the principal of this Note,
without payment of any premium or penalty. Any principal prepayment shall be
accompanied by a payment of all interest accrued on the amount prepaid through
the date of such prepayment.
4. Form of Payment. Principal and interest and all other amounts due
hereunder are to be paid in lawful money of the United States of America in
federal or other immediately available funds.
D. Covenants.
----------
1. Insurance. Borrower, at its expense and with such companies as are
reasonably acceptable to Lender, shall maintain business interruption and
liability insurance and fire, theft and other hazard insurance which covers the
Collateral, which insurance shall be in such amounts as are ordinarily carried
by other owners in similar businesses conducted in the locations where
Borrower's business is conducted on the date hereof. All such liability
insurance policies shall show Lender as an additional insured or loss payee, as
applicable, and shall specify that the insurer must give `at least thirty (30)
days' notice to Lender before canceling its policy for any reason. Borrower,
upon Lender's request, shall deliver to Lender certified copies of such policies
of insurance and evidence of the payments of all premiums therefor.
2
2. Financial Information. Borrower shall deliver to Lender:
(a) as soon as practicable after the end of each calendar
month, and in any event within thirty (30) days thereafter, an unaudited balance
sheet of Borrower as of the end of such month, cash flow statements and an
unaudited statement of operations of Borrower for the portion of the Fiscal Year
ended with such month prepared and certified by the chief financial officer of
Borrower, subject, however, to the exclusion of footnotes and to normal year-end
audit adjustments, and a comparison of such statements to Borrower's operating
plan or budget then in effect.
(b) as soon as practicable after the end of each Fiscal Year,
and in any event within ninety (90) days thereafter, a copy of its audited
financial statements accompanied by a report thereon by a firm of independent
certified public accountants selected by Borrower, which report shall state that
such financial statements fairly present Borrower's financial position at the
end of such Fiscal Year;
(c) as soon as available, and in any event within sixty (60)
days prior to the commencement of each Fiscal Year, a budget and business plan
for Borrower for such Fiscal Year;
(d) promptly upon their becoming available, one copy of each
report, notice or proxy statement sent by Borrower to its shareholders generally
and of each regular or periodic report or registration statement, prospectus or
written communication (other than transmittal letters) filed by Borrower with
the Securities and Exchange Commission or any securities exchange on which
Borrower's securities are listed; and
(e) with reasonable promptness, such other information as
from time to time may be reasonably requested by Lender.
E. Security Interest.
-----------------
1. Grant of Security Interest. Borrower grants to Lender a security
interest in the Collateral, as defined herein, to secure the payment of all of
the indebtedness hereunder (the "Secured Obligations").
2. Representations and Warranties Regarding Collateral. Borrower
represents and warrants to Lender that Borrower is the true and lawful owner of
the Collateral, having good and marketable title thereto, free and clear of any
and all Liens other than the Lien and security interest granted to Lender
hereunder and Permitted Liens as described in Attachment "B" hereto. Borrower
shall not create or assume or permit to exist any such Lien on or against any of
the Collateral except as created or permitted by this Note and Permitted Liens,
and Borrower shall promptly notify Lender of any such other Lien against the
Collateral and shall defend the
3
Collateral against, and take all such action as may be necessary to remove or
discharge, any such Lien.
3. Perfection of Security Interest. Borrower agrees to take all
actions requested by Lender and reasonably necessary to perfect, to continue the
perfection of, and to otherwise give notice of, the Lien granted hereunder,
including, but not limited to, execution of financing statements.
F. Events of Default.
------------------
1. Definition of Event of Default. The occurrence of any one or more
of the following events shall constitute an "Event of Default" hereunder:
(i) Borrower's breach of the obligation to pay any amount
payable hereunder on the date that it is due and payable;
(ii) Borrower's breach of the covenant with respect to the
use of the Advance proceeds or of the covenant with respect to acquisition of
Soft Costs exclusively from Lender;
(iii) Borrower's failure to perform, keep or observe any of
its covenants, conditions, promises, agreements or obligations under any other
agreement with any person or entity if such failure may have a material adverse
effect on Borrower's assets, operations or condition, financial or otherwise;
(iv) Borrower's institution of proceedings against it, or
Borrower's filing of a petition or answer or consent seeking reorganization or
release, under the federal Bankruptcy Code, or any other applicable federal or
state law relating to creditor rights and remedies, or Borrower's consent to the
filing of any such petition or the appointment of a receiver, liquidator,
assignee, trustee or other similar official of Borrower or of any substantial
part of its property, or Borrower's making of an assignment for the benefit of
creditors, or the taking of corporate action in furtherance of such action;
(v) the loss, theft, damage or destruction of, or sale
(other than in the ordinary course of business), lease or furnishing under a
contract of service of, any of the Collateral to the extent that such Collateral
is not replaced by like Collateral as covered by insurance or otherwise;
(vi) the creation (whether voluntary or involuntary) of, or
any attempt to create, any Lien upon any of the Collateral, other than the
Permitted Liens, or the making or any
4
attempt to make any levy, seizure or attachment thereof and such Lien, levy,
seizure, or attachment has not been removed, discharged or rescinded within ten
(10) days;
(vii) the occurrence and continuance of any default under
(i) any lease or agreement for borrowed money made between Ascend
Communications, Inc. or its affiliates and Borrower, or (ii) any lease or
agreement for borrowed money that gives the lessor or the creditor of such
indebtedness, as applicable, the right to accelerate the lease payments or the
indebtedness, as applicable, or (iii) any lease or agreement for borrowed money
that gives the lessor or the creditor of such indebtedness, as applicable, the
right to exercise any rights or remedies with respect to any of the Collateral;
or
(viii) the entry of any judgment or order against Borrower
which remains unsatisfied or undischarged and in effect for thirty (30) days
after such entry without a stay of enforcement or execution.
2. Rights and Remedies on Event of Default.
----------------------------------------
(a) During the continuance of an Event of Default, Lender shall
have the right, itself or through any of its agents, with or without notice to
Borrower (as provided below), as to any or all of the Collateral, by any
available judicial procedure, or without judicial process (provided, however,
that it is in compliance with the UCC), to exercise any and all rights afforded
to a secured party under the UCC or other applicable law. Without limiting the
generality of the foregoing, Lender shall have the right to sell or otherwise
dispose of all or any part of the Collateral, either at public or private sale,
in lots or in bulk, for cash or for credit, with or without warranties or
representations, and upon such terms and conditions, all as Lender, in its sole
discretion, may deem advisable, and it shall have the right to purchase at any
such sale. Borrower agrees that a notice sent at least fifteen (15) days before
the time of any intended public sale or of the time after which any private sale
or other disposition of the Collateral is to be made shall be reasonable notice
of such sale or other disposition. The proceeds of any such sale, or other
Collateral disposition shall be applied, first to the expenses of retaking,
holding, storing, processing and preparing for sale, selling, and the like, and
to Lender's reasonable attorneys' fees and legal expenses, and then to the
Secured Obligations and to the payment of any other amounts required by
applicable law, after which Lender shall account to Borrower for any surplus
proceeds. If, upon the sale or other disposition of the Collateral, the proceeds
thereof are insufficient to pay all amounts to which Lender is legally entitled,
Borrower shall be liable for the deficiency, together with interest thereon at
the Default Rate, and the reasonable fees of any attorneys Lender's employs to
collect such deficiency; provided, however, that the foregoing shall not be
deemed to require Lender to resort to or initiate proceedings against the
Collateral prior to the collection of any such deficiency from Borrower. To the
extent permitted by applicable law, Borrower waives all claims, damages and
demands against Lender arising out of the retention or sale or lease of the
Collateral or other exercise of Lender's rights and remedies with respect
thereto.
5
(b) To the extent permitted by law, Borrower covenants that it
will not at any time insist upon or plead, or in any manner whatever claim or
take any benefit or advantage of, any stay or extension law now or at any time
hereafter in force, nor claim, take or insist upon any benefit or advantage of
or from any law now or hereafter in force providing for the valuation or
appraisal of the Collateral or any part thereof, prior to any sale or sales
thereof to be made pursuant to any provision herein contained, or the decree,
judgment or order of any court of competent jurisdiction; or, after such sale or
sales, claim or exercise any right under any statute now or hereafter made or
enacted by any state or otherwise to redeem the property so sold or any part
thereof, and, to the full extent legally permitted, hereby expressly waives all
benefit and advantage of any such law or laws, and covenants that it will not
invoke or utilize any such law or laws or otherwise hinder, delay or impede the
execution of any power herein granted and delegated to Lender, but will suffer
and permit the execution of every such power as though no such power, law or
laws had been made or enacted.
(c) Any sale, whether under any power of sale hereby given or by
virtue of judicial proceedings, shall operate to divest all Borrower's right,
title, interest, claim and demand whatsoever, either at law or in equity, in and
to the Collateral sold, and shall be a perpetual bar, both at law and in equity,
against Borrower, its successors and assigns, and against all persons and
entities claiming the Collateral sold or any part thereof under, by or through
Borrower, its successors or assigns.
(d) Borrower appoints Lender, and any officer, employee or agent
of Lender, with full power of substitution, as Borrower's true and lawful
attorney-in-fact, effective as of the date hereof, with power, in its own name
or in the name of Borrower, during the continuance of an Event of Default, to
endorse any notes, checks, drafts, money orders, or other instruments of payment
in respect of the Collateral that may come into Lender's possession, to sign and
endorse any drafts against debtors, assignments, verifications and notices in
connection with accounts, and other documents relating to Collateral; to pay or
discharge taxes or Liens at any time levied or placed on or threatened against
the Collateral; to demand, collect, issue receipt for, compromise, settle and
▇▇▇ for monies due in respect of the Collateral; to notify persons and entities
obligated with respect to the Collateral to make payments directly to Lender;
and, generally, to do, at Lender's option and at Borrower's expense, at any
time, or from time to time, all acts and things which Lender deems necessary to
protect, preserve and realize upon the Collateral and Lender's security interest
therein to effect the intent of this Note, all as fully and effectually as
Borrower might or could do; and Borrower hereby ratifies all that said attorney
shall lawfully do or cause to be done by virtue hereof. This power of attorney
shall be irrevocable as long as any of the Secured Obligations are outstanding.
6
(e) All of Lender's rights and remedies with respect to the
Collateral, whether established hereby or by any other agreements, instruments
or documents or by law shall be cumulative and may be exercised singly or
concurrently.
G. Other Provisions.
-----------------
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Change of Control" means an event or series of events as a result of which
(i) any person or group is or becomes the beneficial owner of shares
representing more than fifty percent (50%) of the combined voting power of the
then outstanding securities entitled to vote generally in elections of
Borrower's directors (the "Voting Stock"), (ii) Borrower consolidates with or
merges into any other corporation, or conveys, transfers or leases all or
substantially all of its assets to any person, or any other corporation merges
into Borrower, and, in the case of any such transaction, Borrower's outstanding
common stock is changed or exchanged as a result, unless the Borrower's
shareholders immediately before such transaction own, directly or indirectly,
immediately following such transaction, at least fifty-one percent (51%) of the
combined voting power of the outstanding voting securities of the corporation
resulting from such transaction in substantially the same proportion as their
ownership of the Voting Stock immediately before such transaction, or (iii)
Continuing Directors do not constitute a majority of the Board of Directors of
Borrower (or, if applicable, Borrower's successor).
"Collateral" means all of Borrower's right, title and interest in each and
all of the following, whether now existing or owned or hereafter created or
acquired by Borrower:
a. All goods and equipment, including, without limitation, all
machinery, fixtures, vehicles (including motor vehicles and trailers), and any
interest in any of the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions, and improvements to any of the
foregoing, wherever located;
b. All inventory, including any returns upon any accounts or
other proceeds, including insurance proceeds, resulting from the sale or
disposition of any of the foregoing and any documents of title representing any
of the above, and Borrower's books relating to any of the foregoing;
7
c. All contract rights and general intangibles, including,
without limitation, goodwill, trademarks, servicemarks, trade styles, trade
names, patents, patent applications, leases, license agreements, franchise
agreements, blueprints, drawings, purchase orders, customer lists, route lists,
infringements, claims, computer programs, computer discs, computer tapes,
literature, reports, catalogs, design rights, income tax refunds, payments of
insurance and rights to payment of any kind;
d. All accounts, contract rights, royalties, license rights and
all other forms of obligations owing to Borrower arising out of the sale or
lease of goods, the licensing of technology or the rendering of services by
Borrower, whether or not earned by performance, and all credit insurance,
guaranties, and other security therefor, as well as all merchandise returned to
or reclaimed by Borrower and Borrower's books and records relating to any of the
foregoing;
e. All documents, cash, deposit accounts, securities, financial
assets, securities accounts, securities entitlements, letters of credit,
certificates of deposit, instruments and chattel paper and Borrower's books and
records relating to the foregoing; and
f. All claims, rights and interests in any of the above and, all
substitutions for, additions and accessions to and proceeds thereof.
"Continuing Directors" means at any date a member of Borrower's Board of
Directors (i) who was a member of the Board as of the date hereof, or (ii) who
was nominated or elected by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election or whose
election to the Board was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election.
"Fiscal Year" means the fiscal year of Borrower.
"IPO" means the first sale of Borrower's securities to the public pursuant
to a registration statement under the Securities Act of 1933, as amended.
"Liens" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, security interest, charge, claim
or other encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any agreement to give or refrain from giving a lien,
mortgage, pledge, hypothecation, assignment, deposit arrangement, security
interest, charge, claim or other encumbrance of any kind.
"Permitted Liens" means: (i) Liens imposed by law, such as carriers',
warehousemen's, materialmen's and mechanics' liens, or Liens arising out
of judgments or awards against Borrower
8
with respect to which Borrower at the time shall currently be prosecuting an
appeal or proceedings for review; (ii) Liens for taxes not yet subject to
penalties for nonpayment and Liens for taxes the payment of which is being
contested in good faith and by appropriate proceedings and for which, to the
extent required by generally accepted accounting; principles then in effect,
proper and adequate book reserves relating thereto are established b3~ Borrower;
and (iii) Liens described in Attachment "B" hereto.
"UCC" means the Uniform Commercial Code in effect from time to time in the
relevant jurisdiction.
2. Governing Law; Venue. This Note shall be governed by the laws of the
State of California, without giving effect to conflicts of law principles.
Borrower and Lender agree that all actions or proceedings arising in connection
with this Note shall be tried and litigated only in the state and federal courts
located in the County of Alameda, State of California or, at Lender's option,
any court in which Lender determines it is necessary or appropriate to initiate
legal or equitable proceedings in order to exercise, preserve, protect or defend
any of its rights and remedies under this Note or otherwise or to exercise,
preserve, protect or defend its Lien, and the priority thereof, against the
Collateral, and which has subject matter jurisdiction over the matter in
controversy. Borrower waives any right it may have to assert the doctrine of
forum non conveniens or to object to such venue, and consents to any court
ordered relief. Borrower waives personal service of process and agrees that a
summons and complaint commencing an action or proceeding in any such court shall
be promptly served and shall confer personal jurisdiction if served by
registered or certified mail to Borrower. If Borrower fails to appear or answer
any summons, complaint, process or papers so served within thirty (30) days
after the mailing or other service thereof, it shall be deemed in default and an
order of judgment may be entered against it as demanded or prayed for in such
summons, complaint, process or papers. The choice of forum set forth herein
shall not be deemed to preclude the enforcement of any judgment obtained in such
forum, or the taking of any action under this Note to enforce the same, in any
appropriate jurisdiction.
3. Notices. Any notice or communication required or desired to be served,
given or delivered hereunder shall be in the form and manner specified below,
and shall be addressed to the party to be notified as follows:
If to Lender: Ascend Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Manager of Corporate Finance
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
9
If to Borrower: Globaltron Communications Corporation
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as each party designates to the other by notice in the
manner herein prescribed. Notice shall be deemed given hereunder if (i)
delivered personally or otherwise actually received, (ii) sent by overnight
delivery service, (iii) mailed by first-class United States mail, postage
prepaid, registered or certified, with return receipt requested, or (iv) sent
via telecopy machine with a duplicate signed copy sent on the same day as
provided in clause (ii) above. Notice mailed as provided in clause (iii) above
shall be effective upon the expiration of three (3) business days after its
deposit in the United States mail, and notice telecopied as provided in clause
(iv) above shall be effective upon receipt of such telecopy if the duplicate
signed copy is sent under clause (iv) above. Notice given in any other manner
described in this section shall be effective upon receipt by the addressee
thereof; provided, however, that if any notice is tendered to an addressee and
delivery thereof is refused by such addressee, such notice shall be effective
upon such tender unless expressly set forth in such notice.
4. Lender's Rights; Borrower Waivers. Lender's acceptance of partial or
delinquent payment from Borrower hereunder, or Lender's failure to exercise any
right hereunder, shall not constitute a waiver of any obligation of Borrower
hereunder, or any right of Lender hereunder, and shall not affect in any way the
right to require full performance at any time thereafter. Except as otherwise
specifically provided herein, Borrower waives presentment, diligence, demand of
payment, notice, protest and all other demands and notices in connection with
the delivery, acceptance, performance, default or enforcement of this Note. In
any action on this Note, Lender need not produce or file the original of this
Note, but need only file a photocopy of this Note certified by Lender be a true
and correct copy of this Note in all material respects.
5. Enforcement Costs. Borrower shall pay all costs and expenses, including,
without limitation, reasonable attorneys' fees and expenses Lender expends or
incurs in connection with the enforcement of this Note, the collection of any
sums due hereunder, any actions for declaratory relief in any way related to
this Note, or the protection or preservation of any rights of the holder
hereunder.
6. Severability. Whenever possible each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision is prohibited by or invalid under applicable law, it shall
be ineffective to the extent of such prohibition or invalidity, `without
invalidating the remainder of the provision or the remaining provisions of this
Note.
10
7. Amendment Provisions. This Note may not be amended or modified, nor may
any of its terms be waived, except by written instruments signed by Borrower and
Lender.
8. Binding Effect. This Note shall be binding upon, and shall inure to the
benefit of, Borrower and the holder hereof and their respective successors and
assigns; provided, however, that Borrower's rights and obligations shall not be
assigned or delegated without Lender's prior written consent, given in its sole
discretion, and any purported assignment or delegation without such consent
shall be void ab initio.
9. Time of Essence. Time is of the essence of each and every provision of
this Note.
10. Headings. Section headings used in this Note have been set forth herein
for convenience of reference only. Unless the contrary is compelled by the
context, everything contained in each section hereof applies equally to this
entire Note.
LENDER: BORROWER:
ASCEND COMMUNICATIONS, INC. GLOBALTRON COMMUNICATIONS CORPORATION
By: By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- ---------------------------------
Name: Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ -------------------------------
Date: Date: 9/15/99
------------------------ -------------------------------
11
ATTACHMENT "A"
TO
SECURED PROMISSORY NOTE
PURCHASE ORDERS
---------------
--------------------------------------------------------------------------------
Soft Cost Advance No. Purchase Order No. Sales Order No.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
12
ATTACHMENT "B"
TO
SECURED PROMISSORY NOTE
PERMITTED LIENS
---------------
Liens created in connection with that Secured Promissory Note made between
Ascend Communications, Inc. and Globaltron Communications Corporation dated as
of August 27, 1999.
Liens created in connection with the Master Conditional Sale Agreement made
between Ascend Communications, Inc. and Globaltron Communications Corporation
dated as of
------------------------.
13
NATIONAL FINANCING STATEMENT (FORM ▇▇▇▇) (TRA )(REV. 12/18/95)
THIS SPACE FOR USE OF FILING OFFICER
FINANCING STATEMENT. FOLLOW INSTRUCTIONS CAREFULLY This Financing Statement is
presented for filing pursuant to the Uniform Commercial Code and ▇▇▇▇ remain
effective, with certain exceptions, for 5 years from date of filing
A NAME & TEL # OF CONTACT AT FILER B FiLING OFFICE ACCT a (optional)
(optional)
C RETURN COPY TO (Name and Mailing Address)
D OPTIONAL DESIGNATION (if applicable)
[ ] LESSOR/LESSEE
[ ] CONSIGNOR/CONSIGNEE
[ ] NON-UCC FILING
--------------------------------------------------------------------------------
1 DEBTORS EXACT FULL LEGAL NAME-- insert only one debtor name 1a or 1b)
la ENTITY'S NAME
Globaltron Communications Corporation
OR
--------------------------------------------------------------------------------
lb INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
--------------------------------------------------------------------------------
1c MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
North Mezzanine, M2,
▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
1d S S OR TAX ID # OPTIONAL le TYPE OF ENTITY 1f ENTITYS STATE
ADD'NL INFO OR COUNTRY OF
ENTITY DEBTOR ORGANIZATION
1g ENTITY'S ORGANIZATIONAL I D #, if any
--------------------------------------------------------------------------------
2 ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME -- insert only one debtor name
(2a or 2b)
2a ENTITY'S NAME
OR
2b INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
--------------------------------------------------------------------------------
2c MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
--------------------------------------------------------------------------------
2d S S OR TAX ID # OPTIONAL 2e TYPE OF ENTITY 2f ENTITYS STATE
ADD'NL INFO OR COUNTRY OF
ENTITY DEBTOR ORGANIZATION
2g ENTITY'S ORGANIZATIONAL I D #, if any
--------------------------------------------------------------------------------
3 SECURED PARTY'S (Original S/P or ITS TOTAL ASSIGNEE) EXACT FULL LEGAL NAME
- insert only one secured party name (3a or 3b)
3a ENTITY'S NAME
Ascent Communications, Inc.
OR
--------------------------------------------------------------------------------
3b INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
--------------------------------------------------------------------------------
3c MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
4 This FINANCING STATEMENT covers the following types or items of property
All right, title and interest of Debtor in and to all telecommunications
and data networking goods and equipment provided by Secured Party to Debtor
described in the purchase order attached hereto on Schedule 1 and
incorporated herein by this reference, together with all accessions
additions, replacement and proceeds thereof (including, without limitation,
whatever is receivable or received when the foregoing or proceeds is sold,
collected, exchanged, returned, substituted or otherwise disposed of,
whether such dtsposihon is voluntary or involuntary, including rights to
payment and return premiums and insurance proceeds under insurance with
respect to any of the foregoing, and all fights to payment with respect to
any cause of action affecting or relating to the foregoing)
--------------------------------------------------------------------------------
5 CHECK [ ] This FINANCING STATEMENT is signed by the Secured Party
BOX instead of the Debtor to perfect a security interest
(if applicable (a)in collateral already subject to a security interest
interest in another jurisdiction when it was brought
into this state, or when the debtor's location was
changed to this state, or (b) in accordance with
other statutory provisions (additional data may be
required.
--------------------------------------------------------------------------------
7 If filed in Florida (check one)
Documentary Documentary stamp
[ ] stamp tax paid [ ] tax not applicable
--------------------------------------------------------------------------------
6 REQUIRED SIGNATURE(S) 8 [ ] This FINANCING STATEMENT is to be filed
(for record)(or recorded) in tho REAL
ESTATE RECORDS (if applicable)
Globaltron Communications Corporation Attach Addendum
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ITS: President & CEO
--------------------------------------------------------------------------------
9 Check to REQUEST SEARCH CERTIFICATES(S) on Debtor(s)
(ADDITIONAL FEE)
(optional) [ ] All Debtors [ ] Debtor 1 [ ] Debtor 2
--------------------------------------------------------------------------------
General Instructions for National Financing Statement (Form ▇▇▇▇) (Trans)
Please type or laser-print this form. Be sure it is completely legible. Read all
Instructions.
Fill in form very carefully; mistakes may have important legal consequences.
Follow Instructions completely. If you have questions, consult your attorney.
Filing officer cannot give legal advice.
Do not insert anything in the open space in the upper portion of this form; it
is reserved for filing officer use.
When properly completed, send Filing Officer Copy, with required fee, to filing
officer. If you want an acknowledgment, also send Acknowledgment Copy, otherwise
detach, If you want to make a search request, complete item 9 and send Search
Request Copy, otherwise detach, Always detach Debtor and Secured Party Copies.
It you need to use attachments~ use 8-1/2 X 11 inch sheets and put at the top of
each additional sheet the name of the first Debtor, formatted exactly as it
appears in item 1 of this form; you are encouraged to use Addendum (Form UCC1
Ad).
Item Instructions
1. Debtor name: Enter only one Debtor name in item 1 , an entity's name (la)
or an individual's name (ib). Enter Debtor's exact full legal name, Don't
abbreviate.
1a. Entity Debtor. ~Entity" means an organization having a legal identity
separate from its owner. A partnership is an entity; a sole proprietorship
is not an entity, even if it does business under a trade name. If Debtor is
a partnership, enter exact full legal name of partnership; you need not
enter names of partners as additional Debtors. If Debtor is a registered
entity (e.g., corporation, limited partnership, limited liability company),
it is advisable to examine Debtors current filed charter documents to
determine correct name, entity type, and state of organization.
lb. Individual Debtor. "Individual" means a natural person and a sole
proprietorship, whether or not operating under a trade name. Don't use
prefIxes (Mr., Mrs., Ms.). Use suffix box only for titles of lineage (Jr.,
Sr., 111) and not for other suffixes or titles (e.g., M.D.). Use married
woman's personal name (▇▇▇▇ ▇▇▇▇▇, not Mrs. ▇▇▇▇ ▇▇▇▇▇). Enter individual
Debtor's family name (surname) in Last Name box, first given name in First
Name box, and all additional given names in Middle Name box. For both
entity and individual Debtors: Don't use Debtor's trade name, D/B/A, A/K/A,
F/K/A, etc. in place of Debtor's legal name; you may add such other names
as additional Debtors if you wish.
lc. An address is always required for the Debtor named in la or lb.
1d. Debtor's social security or tax identification number is required in some
states. Enter social security number of a sole proprietor, not tax
identification number of the sole proprietorship.
le,f,g. "Additional information re entity Debtor is optional. It helps
searchers to distinguish this Debtor from others with the same or a similar
name. Type of entity and state of organization can be determined from
Debtor's current filed charter documents. Organizational ID. number, if
any, is assigned by the agency where the charter document was filed; this
is different from taxpayer ID. number; this should be entered preceded by
the 2-character U.S. Postal identification of state of organization (e.g.,
CAl 2345, for a California corporation whose organizational ID. number is
12345).
Note: If Debtor is a transmitting utility as defined in applicable Commercial
Code, attach Addendum (Form UCC1 Ad) and check box Ad8.
2. If an additional Debtor is included, complete item 2, determined and
formatted per Instruction 1. To include further additional Debtors, or one
or more additional Secured Parties, attach either Addendum (Form UCC1Ad) or
other additional page(s), using correct name format. Follow Instruction 1
for determining and formatting additional names.
3. Enter information, determined and formatted per Instruction 1. If there is
more than one Secured Party, see Instruction 2. If there has been a total
assignment of the Secured Party's interest prior to filing this form, you
may provide either assignor Secured Party's or assignee's name and address
in item 3.
4. Use item 4 to indicate the types or describe the items of collateral. If
space In item 4 is insufficient, put the entire collateral description or
continuation of the collateral description on either Addendum (Form UCC1Ad)
or other attached additional page(s).
5, 6. All Debtors must sign. Under certain circumstances, Secured Party may
sign instead of Debtor; if applicable, check box in item 5 and provide
Secured Party's signature in item 6, and under certain circumstances, in
some states, you must also provide additional data; use Addendum (Form UCC
lAd) or attachment to provide such additional data.
7. If filing in the state of Florida you must check one of the two boxes in
item 7 to comply with documentary stamp tax requirements.
8. If the collateral consists of or includes fixtures, timber, minerals,
and/or mineral-related accounts, check the box in item 8 and complete the
required information on Addendum (Form UCC1 Ad). If the collateral consists
of or includes crops, consult applicable law of state where this Financing
Statement is to be filed and complete Ad3b, and Ad4 if required, on
Addendum (Form UCC1Ad) and, if required, check box in item 8.
9. Check box 9 to request Search Certificate(s) on all or some of the Debtors
named In this Financing Statement. The Certificate will list all Financing
Statements on file against the designated Debtor currently effective on the
date of the Certificate, including this Financing Statement. There is an
additional fee for each Certificate. This item is optional. If you have
checked box 9, file copy 3 (Search Request Copy) of this form together with
copies 1 and 2. Not all states will honor a search request made via this
form; some states require a separate request form.
Instructions re Optional Items A-D
A. To assist filing officers who might wish to communicate with filer, filer
may provide information in item A. This item is optional.
B. If filer has an account with filing officer or is authorized to pay fees by
means of a card (credit or debit) and wishes to use such means of payment,
check the appropriate box and enter filer's account number in item B, or,
in the alternative, filer may present this information by a cover letter.
C. Complete item C if you want acknowledgment copy returned and you have
presented simultaneously a carbon or other copy of this form for use as an
acknowledgment copy.
D. If filer desires to use titles of lessee and lesser, or consignee and
consignor, instead of Debtor and Secured Party, check the appropriate box
in item D. This item is optional, If this is not a UCC security interest
filing (e.g., a tax lien, judgment lien, etc.), check the appropriate box
in item D, complete items 1-9 as applicable and attach any other items
required under other law.
SCHEDULE 1
a. All goods and equipment, including, without limitation, all machinery,
fixtures, vehicles (including motor vehicles and trailers), and any
interest in any of the foregoing, and all attachments, accessories,
accessions, replacements, substitutions, additions, and improvements to
any of the foregoing, wherever located;
b. All inventory, including any returns upon any accounts or other
proceeds, including insurance proceeds, resulting from the sale or
disposition of any of the foregoing and any documents of title
representing any of the above, and Debtor's books relating to any of
the foregoing;
c. All contract rights and general intangibles, including, without
limitation, goodwill, trademarks, servicemarks, trade styles, trade
names, patents, patent applications, leases, license agreements,
franchise agreements, blueprints, drawings, purchase orders, customer
lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights,
income tax refunds, payments of insurance and rights to payment of any
kind;
d. All accounts, contract rights, royalties, license rights and all other
forms of obligations owing to Debtor arising out of the sale or lease
of goods, the licensing of technology or the rendering of services by
Debtor, whether or not earned -by performance, and all credit
insurance, guaranties, and other security therefor, as well as all
merchandise returned to or reclaimed by Debtor and Debtor's books and
records relating to any of the foregoing;
e. All documents, cash, deposit accounts, securities, financial assets,
securities accounts, securities entitlements, letters of credit,
certificates of deposit, instruments and chattel paper and Debtor's
books and records relating to the foregoing; and
f. All claims, rights and interests in any of the above and, all
substitutions for, additions and accessions to and proceeds thereof.