Exhibit 10.26
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT, dated as of December 9, 1999 (this
"Agreement"), between EACH OF THE UNDERSIGNED, whether as an original signatory
hereto or as an Additional Grantor (as herein defined) (each, a "Grantor"), and
CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative Agent for Lenders and
Lender Counterparties (in such capacity as agent, "Secured Party").
RECITALS:
WHEREAS, reference is made to that certain Credit and Guaranty Agreement,
dated as of December 9, 1999 (as it may be amended, supplemented or otherwise
modified, the "Credit Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined), by and among NORTHPOINT
COMMUNICATIONS, INC., NORTHPOINT COMMUNICATIONS GROUP INC., certain Subsidiaries
of Company, as Guarantors, the Lenders party thereto from time to time, XXXXXXX
XXXXX CREDIT PARTNERS L.P., as Lead Arranger and Syndication Agent, CANADIAN
IMPERIAL BANK OF COMMERCE, as Administrative Agent, and CAPITAL SYNDICATION
CORPORATION, as Documentation Agent;
WHEREAS, subject to the terms and conditions of the Credit Agreement,
certain Grantors may enter into one or more Hedge Agreements with one or more
Lender Counterparties;
WHEREAS, in consideration of the extensions of credit and other
accommodations of Lenders and Lender Counterparties as set forth in the Credit
Agreement and the Hedge Agreements, respectively, each Grantor has agreed,
subject to the terms and conditions hereof, each other Credit Document and each
of the Hedge Agreements, to secure such Grantor's obligations under the Credit
Documents and the Hedge Agreements as set forth herein; and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, each Grantor and Secured Party agree
as follows:
SECTION 1. GRANT OF SECURITY; DEFINITIONS
1.1. Grant of Security. Each Grantor hereby grants to Secured Party a
security interest in all of Grantor's right, title and interest in and to the
following, in each case whether now or hereafter existing or in which Grantor
now has or hereafter acquires an interest and wherever the same may be located
(collectively, the "Collateral"):
(a) all "Investment Property", which term means:
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(i) all right, title and interest of such Grantor, whether now
owned or hereafter acquired, in all shares of capital stock owned by such
Grantor, including
EXHIBIT I-1
without limitation, all shares of capital stock described on Schedule
1.1(a), and the certificates representing such shares and any interest of
such Grantor in the entries on the books of any securities intermediary
pertaining to such shares, and all dividends, cash, warrants, options,
rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange
for any or all of such shares (all of the foregoing being referred to
herein collectively as the "Pledged Stock");
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(ii) all right, title and interest of such Grantor, whether now
owned or hereafter acquired, of all Indebtedness owed to such Grantor,
including, without limitation, all Indebtedness described on Schedule
1.1(a), issued by the obligors named therein, the instruments evidencing
such Indebtedness, and all interest, cash, instruments and other property
or proceeds from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such Indebtedness (all of
the foregoing being referred to herein collectively as the "Pledged Debt");
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(iii) all of such Grantor's right, title and interest as a
limited and/or general partner in all partnerships, including, without
limitation, the partnerships described on Schedule 1.1(a) (the
"Partnerships"), whether now owned or hereafter acquired, including,
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without limitation, all of such Grantor's right, title and interest in, to
and under the partnership agreements described on Schedule 1.1(a) (as such
agreements have heretofore been and may hereafter be amended, restated,
supplemented or otherwise modified from time to time, collectively, the
"Partnership Agreements") to which it is a party (including, if such
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Grantor is a general partner of any Partnership, the right to vote with
respect to and to manage and administer the business of such Partnership)
together with all other rights, interests, claims and other property of
such Grantor in any manner arising out of or relating to its limited and/or
general partnership interest in the Partnerships, whatever their respective
kind or character, whether they are tangible or intangible property, and
wheresoever they may exist or be located, and further including, without
limitation, (1) all of the rights of such Grantor as a limited and/or
general partner: (A)(I) to receive money due and to become due (including
without limitation profits, dividends, distributions, interest, income from
partnership properties and operations, proceeds of sale of partnership
assets and returns of capital) under or pursuant to the Partnership
Agreements, (II) to receive payments upon termination of the Partnership
Agreements, and (III) to receive any other payments or distributions,
whether cash or noncash, in respect of such Grantor's limited and/or
general partnership interest; (B) in and with respect to claims and causes
of action rising out of or relating to the Partnerships; and (C) to have
access to the Partnerships' books and records and to other information
concerning or affecting the Partnerships; and (2) any "certificate of
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interest" or "certificates of interest" (or other certificates or
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instruments however designated or titled) issued by the Partnerships and
evidencing such Grantor's interest as a limited and/or general partner in
the Partnerships (collectively, the "Certificates" and any interest of such
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Grantor in the entries on the books of any securities intermediary
pertaining to such Grantor's interest as a limited and/or general partner
in the Partnerships
EXHIBIT I-2
(all of the foregoing being referred to herein collectively as the
"Partnership Interests");
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(iv) all of such Grantor's right, title and interest as a member
of all limited liability companies (the "LLCs"), including, without
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limitation, all of such Grantor's right, title and interest in, to and
under the limited liability company interests set forth on Schedule 1.1(a),
whether now owned or hereafter acquired, including, without limitation, all
of such Grantor's right, title and interest in, to and under the operating
agreements with respect to any such LLC (as such agreements have heretofore
been and may hereafter be amended, restated, supplemented or otherwise
modified from time to time, collectively, each, an "LLC Agreement") to
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which it is a party, regardless of whether such right, title and interest
arises under such LLC Agreement, including (1) all rights of such Grantor
to receive distributions of any kind, in cash or otherwise, due or to
become due under or pursuant to each such LLC Agreement or otherwise in
respect of such Person, (2) all rights of such Grantor to receive proceeds
of any insurance, indemnity, warranty or guaranty with respect to each such
Person, (3) all claims of such Grantor for damages arising out of, or for
the breach of, or for a default under, each such LLC Agreement, (4) any
certificated or uncertificated security evidencing any of the foregoing
issued by such Person to such Grantor and (5) to the extent not included in
the foregoing, all proceeds of any and all of the foregoing (all of the
foregoing being referred to herein collectively as the "LLC Interests" with
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the Pledged Stock, the Pledged Debt, the Partnership Interests and the LLC
Interests being herein collectively referred to as the "Pledged
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Interests");
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(v) all additional shares of, limited and/or general partnership
interests in and limited liability company interests in, and all securities
(or other equity interests) convertible into and warrants, options and
other rights to purchase or otherwise acquire, stock of any issuer of the
Pledged Stock, limited and/or general partnership interests in the
Partnerships, and limited liability company interests in the LLCs, from
time to time acquired by such Grantor in any manner (which shares or
interests shall be deemed to be part of the Pledged Interests), the
certificates or other instruments representing such additional shares or
interests, securities, warrants, options or other rights and any interest
of such Grantor in the entries on the books of any securities intermediary
pertaining to such additional shares or interests, and all additional
indebtedness from time to time owed to such Grantor by any obligor on the
Pledged Debt and the instruments evidencing such indebtedness, and all
interest, cash, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such indebtedness; (all of the foregoing being
referred to herein collectively as the "Additional Pledged Interests"), and
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all dividends, distributions, cash, warrants, options, rights, instruments,
payments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of such Additional Pledged Interests; and
EXHIBIT I-3
(vi) all shares of, limited and/or general partnership interests
in, and limited liability company interests in, and all securities (or
other equity interests) convertible into and warrants, options and other
rights to purchase or otherwise acquire, stock of, limited and/or general
partnership interests in, or limited liability company interests in any
Person that, after the date of this Agreement, becomes, as a result of any
occurrence, a direct Subsidiary of such Grantor (which shares or interests
shall be deemed to be part of the Pledged Interests), the certificates or
other instruments representing such shares, interests, securities,
warrants, options or other rights and any interest of such Grantor in the
entries on the books of any securities intermediary pertaining to such
shares or interests and all dividends, distributions, cash, warrants,
rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange
for any or all of such shares, interests, securities, warrants, options or
other rights, and all Indebtedness from time to time owed to such Grantor
by any Person that, after the date of this Agreement, becomes, as a result
of any occurrence, a Subsidiary of such Grantor, and the instruments
evidencing such Indebtedness, and all interest, cash, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
Indebtedness;
(b) all "Intellectual Property", which term means:
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(i) all trademarks, service marks, designs, logos, indicia, trade
names, corporate names, company names, business names, fictitious business
names, trade styles and/or other source and/or business identifiers, and
all trademark or service xxxx registration in the United States, any state
thereof or in foreign countries (except for U.S. "intent to use"
applications for trademark or service xxxx registrations filed pursuant to
Section 1(b) of the Xxxxxx Act, unless and until an Amendment to Allege Use
or a Statement of Use under Sections 1(c) and 1(d) of said Act has been
filed), owned or used by the Grantor in its business, or hereafter adopted
and used by Grantor, together with the goodwill of the Grantor's business
connected with the use of, and symbolized by each such xxxx including,
without limitation, the trademarks specifically identified in Schedule
1.1(b), (all of the foregoing collectively, the "Trademarks").
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(ii) all patents and patent applications and rights and interests
in patents and patent applications under any domestic law that are
presently, or in the future may be, owned by such Grantor and all patents
and patent applications and rights and interests in patents and patent
applications under any domestic law that are presently, or in the future
may be, held or used by such Grantor in whole or in part, including,
without limitation, the patents and patent applications listed in Schedule
1.1(b), all rights (but not obligations corresponding thereto), including,
without limitation, the right (but not the obligation, and exercisable only
upon the occurrence and continuation of an Event of Default) to xxx for
past, present and future infringements in the name of such Grantor or in
the name of Secured Party in each case, at the option of Secured Party, and
all re-issues, divisions, continuations, renewals, extensions and
continuations-in-part thereof
EXHIBIT I-4
(all of the foregoing being collectively referred to as the "Patents"); it
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being understood that the rights and interest included herein hereby shall
include, without limitation, all rights and interests pursuant to licensing
or other contracts in favor of such Grantor pertaining to patent
applications and patents presently or in the future owned or used by third
parties but, in the case of third parties which are not Affiliates of
Grantor, only to the extent permitted by such licensing or other contracts
and, if not so permitted, only with the consent of such third parties; and
(iii) all published and unpublished works of authorship
including, without limitation, computer programs, computer data bases,
other computer software, including without limitation, object code and
source code, mask works, semiconductor chips, masks, cell libraries,
layouts, trade secrets, trade secret rights, trade dress rights, ideas,
drawings, designs, schematics, algorithms, writings, techniques, processes
and formulas, including, without limitation, the works listed on Schedule
2.1(b), all copyright registrations issued to such Grantor in the United
States and any state thereof and in foreign countries, including, without
limitation, the registrations listed on Schedule 2.1(b), all copyright
licenses (but with respect to such copyright licenses, only to the extent
permitted by such licensing arrangements and, if not so permitted, only
with the consent of the other party thereto) (all of the foregoing being
referred to herein collectively as the "Copyrights"), including, without
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limitation, each of the Copyrights, rights, titles and interests in and to
the Copyrights and works protectable by copyright, which are presently, or
in the future may be, owned, created (as a work for hire for the benefit of
such Grantor or otherwise), authored (as a work for hire for the benefit of
such Grantor or otherwise), acquired or used (whether pursuant to a license
or otherwise but only to the extent permitted by agreements governing such
license or other use and, if not so permitted, only with the consent of the
other party thereto) by such Grantor, in whole or in part, and all
Copyrights with respect thereto and all registrations therefor, heretofore
or hereafter granted or applied for, and all renewals and extensions
thereof, throughout the world, including all proceeds thereof (such as, by
way of example and not by limitation, license royalties and proceeds of
infringement suits), the right (but not the obligation) to renew and extend
such Copyrights and to register works protectable by copyright and the
right (but not the obligation and exercisable only upon the occurrence and
continuation of an Event of Default) to xxx or bring opposition or
cancellation proceedings in the name of such Grantor or in the name of
Secured Party in each case, at the option of Secured Party, for past,
present and future infringements of the Copyrights;
(c) the Collateral Account, together with all amounts on deposit from
time to time in any Deposit Accounts, all Securities Accounts, and all interest,
cash, instruments, securities, Financial Assets and other property from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the foregoing;
(d) all of such Grantor's right, title and interest in, to and under
any equipment in all of its forms, all accessions or additions thereto, all
parts thereof, whether or not at any time of determination incorporated or
installed therein or attached thereto, and all replacements
EXHIBIT I-5
therefor, wherever located, now or hereafter existing (all of the foregoing
being referred to herein collectively as the "Equipment");
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(e) all of such Grantor's right, title and interest in, to and under
any inventory in all of its forms, including, but not limited to, (i) all goods
held by such Grantor for sale or lease or to be furnished under contracts of
service or so leased or furnished, (ii) all raw materials, work in process,
finished goods, and materials used or consumed in the manufacture, packing,
shipping, advertising, selling, leasing, furnishing or production of such
inventory or otherwise used or consumed in such Grantor's business, (iii) all
goods in which such Grantor has an interest in mass or a joint or other interest
or right of any kind, (iv) all goods which are returned to or repossessed by
such Grantor, and all accessions thereto and products thereof (all of the
foregoing being referred to herein collectively as the "Inventory"), and (v) all
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negotiable and non-negotiable documents of title, including, without limitation,
warehouse receipts, dock receipts and bills of lading issued by any Person
covering any Inventory;
(f) all of such Grantor's right, title and interest in, to and under
any accounts, contract rights, chattel paper, documents, instruments, general
intangibles, payment intangibles and other rights and obligations of any kind
(all of the foregoing being referred to herein collectively as the "Accounts")
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and all of such Grantor's rights in, to and under all security agreements,
leases and other contracts securing or otherwise relating to any Accounts (all
of the foregoing being referred to herein collectively as the "Related
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Contracts");
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(g) all of such Grantor's right, title and interest in, to and under
all agreements and contracts to which such Grantor is a party as of the date
hereof, or to which such Grantor becomes a party after the date hereof, as each
such agreement may be amended, supplemented or otherwise modified from time to
time (all of the foregoing being referred to herein collectively as the
"Assigned Agreements"), including (i) all rights of such Grantor to receive
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moneys due or to become due under or pursuant to the Assigned Agreements, (ii)
all rights of such Grantor to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to the Assigned Agreements, (iii) all claims
of such Grantor for damages arising out of any breach of or default under the
Assigned Agreements, and (iv) all rights of such Grantor to terminate, amend,
supplement, modify or exercise rights or options under the Assigned Agreements,
to perform thereunder and to compel performance and otherwise exercise all
remedies thereunder;
(h) to the extent not otherwise included in any other paragraph of
this Section 1, all other general intangibles, including tax refunds, rights to
payment or performance, chooses in action and judgments taken on any rights or
claims included in the Collateral;
(i) all books, records, ledger cards, files, correspondence, computer
programs, tapes, disks and related data processing software that at any time
evidence or contain information relating to any of the Collateral or are
otherwise necessary or helpful in the collection thereof or realization
thereupon; and
EXHIBIT I-6
(j) to the extent not covered by Sections 2.1(a) through 2.1(i), all
other personal property of such Grantor, all proceeds, products, rents and
profits of or from any and all of the foregoing Collateral and, to the extent
not otherwise included, all payments under insurance (whether or not Secured
Party is the loss payee thereof), or any indemnity, warranty or guaranty,
payable by reason of loss or damage to or otherwise with respect to any of the
foregoing Collateral. For purposes of this Agreement, the term "proceeds" means
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all proceeds as such term is defined in the UCC, and shall include, without
limitation, whatever is receivable or received when Collateral or proceeds are
sold, exchanged, collected or otherwise disposed of, whether such disposition is
voluntary or involuntary.
1.2. Certain Limited Exclusions. Notwithstanding anything herein to the
contrary, (a) in no event shall the Collateral include, and no Grantor shall be
deemed to have granted a security interest in, any of such Grantor's rights or
interests in any license, contract or agreement to which such Grantor is a party
or any of its rights or interests thereunder, including, without limitation,
with respect to any LLC Interest or any Partnership Interest, to the extent,
but only to the extent, that such a grant would, under the terms of such
license, contract or agreement or otherwise, result in a breach of the terms of,
or constitute a default under any license, contract or agreement to which such
Grantor is a party, including, without limitation, with respect to any LLC
Interest or any Partnership Interest (other than to the extent that any such
term would be rendered ineffective pursuant to Section 9-318(4) of the Uniform
Commercial Code of any relevant jurisdiction or any other applicable law
(including the United States Bankruptcy Code) or principles of equity) unless
the consent of the other party thereto has been obtained to such grant of a
security interest; provided, immediately upon the ineffectiveness, lapse or
termination of any such provision, the Collateral shall include, and such
Grantor shall be deemed to have granted a security interest in, all such rights
and interests, including, without limitation, with respect to any LLC Interest
or any Partnership Interest, as if such provision had never been in effect and
(b) only the outstanding capital stock of a controlled foreign corporation
possessing up to but not exceeding 65% of the voting power of all classes of
capital stock of such controlled foreign corporation entitled to vote shall be
deemed to be pledged hereunder.
1.3. Definitions; Interpretation. Capitalized terms used herein (including
the preamble and recitals hereto) and not otherwise defined herein shall have
the meanings ascribed thereto in the Credit Agreement or, if not defined
therein, in the Uniform Commercial Code as in effect from time to time in the
State of New York (the "UCC"). References to "Sections", "Exhibits" and
"Schedules" shall be to Sections, Exhibits and Schedules, as the case may be, of
this Agreement unless otherwise specifically provided. Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect. The rules of construction set forth in Section 1.3 of the
Credit Agreement shall be applicable to this Agreement mutatis mutandis. If any
conflict or inconsistency exists between this Agreement and the Credit
Agreement, the Credit Agreement shall govern.
EXHIBIT I-7
2. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE
2.1. Security for Obligations. This Agreement secures, and the Collateral
is collateral security for, the prompt payment or performance in full when due,
whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including the payment of amounts that would become due but
for the operation of the United States Bankruptcy Code), of all Obligations (as
such term is defined in the Credit Agreement) with respect to each Grantor (the
"Secured Obligations").
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2.2. Grantors Remain Liable. Anything contained herein to the contrary
notwithstanding, (a) each Grantor shall remain liable under any Partnership
Agreement, LLC Agreement or any other contracts and agreements included in the
Collateral, to the extent set forth therein, to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed; (b) the exercise by Secured Party of any of its rights hereunder shall
not release any Grantor from any of its duties or obligations under the
contracts and agreements included in the Collateral; and (c) Secured Party shall
not have any obligation or liability under any Partnership Agreement, LLC
Agreement or any other contracts and agreements included in the Collateral by
reason of this Agreement, nor shall Secured Party be obligated to perform any of
the obligations or duties of any Grantor thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder. Notwithstanding
any of the foregoing, this Agreement shall not in any way be deemed to obligate
Secured Party, any other Agent, any Lender or any purchaser at a foreclosure
sale under this Agreement to assume any of any Grantor's obligations, duties,
expenses or liabilities under any LLC Agreement or Partnership Agreement
(including any Grantor's obligations as a general partner for the debts and
obligations of a Partnership) and to manage the business and affairs of any
Partnership or any of such Grantor's obligations for the debts and obligations
of an LLC, or under any and all other agreements now existing or hereafter
drafted or executed (collectively, the "Grantor Obligations") unless Secured
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Party, any other Agent, any Lender or any such purchaser otherwise expressly
agrees in writing to assume any or all of said Grantor Obligations. In the
event of foreclosure by Secured Party, each Grantor shall remain bound and
obligated to perform its Grantor Obligations arising during or otherwise related
to its ownership of the Collateral, and neither Secured Party, nor any other
Agent nor any Lender shall be deemed to have assumed any of such Grantor
Obligations except as provided in the preceding sentence. Without limiting the
generality of the foregoing, neither the grant of the security interest in the
Collateral in favor of Secured Party as provided herein nor the exercise by
Secured Party of any of its rights hereunder nor any action in connection with a
foreclosure on the Collateral shall be deemed to constitute Secured Party, any
other Agent, or any Lender a partner of any Partnership or a member of any LLC;
provided, in the event Secured Party or any purchaser of Collateral at a
foreclosure sale elects to become a substituted general partner of any
Partnership or manager of any LLC in place of any Grantor, Secured Party or such
purchaser, as the case may, shall adopt in writing the applicable Partnership
Agreement or LLC Agreement, as the case may be, and agree to be bound by the
terms and provisions thereof.
EXHIBIT I-8
3. REPRESENTATIONS AND WARRANTIES
3.1. Generally. Each Grantor represents and warrants that each of the
representations and warranties set forth in Section 3.9 of the Credit Agreement
is true and correct with respect to each item of Collateral applicable thereto
owned by such Grantor as if fully set forth herein. In addition to the
foregoing, except with respect to any Permitted Lien and such as may have been
filed in favor of Secured Party as set forth on Schedule 3.1 hereof, no
effective UCC financing statement, fixture filing or other instrument similar in
effect covering all or any part of the Collateral is on file in any filing or
recording office (other than filings for which UCC-3 termination statements or
other documents as reasonably requested by Secured Party have been executed and
delivered to Secured Party on or prior to the date hereof).
3.2. Investment Property. In addition to any other representation made
thereby in any other Credit Document, each Grantor represents and warrants that
(a) with respect to Subsidiaries of a Grantor, all of the Pledged Stock has been
duly authorized and validly issued and are fully paid and non-assessable; (b)
the Pledged Interests constitute all (or such lesser percentage owned by such
Grantor as permitted under the Credit Agreement) of the issued and outstanding
equity Securities of each issuer thereof that are owned by such Grantor and with
respect to Subsidiaries of a Grantor, there are no outstanding warrants, options
or other rights to purchase, or other agreements outstanding with respect to, or
property that is now or hereafter convertible into, or that requires the
issuance or sale of, any of the Pledged Interests that would result in the
Grantor owning less than the minimum percentage of the issued and outstanding
equity Securities of such issuer as permitted by the Credit Agreement; (c) with
respect to Subsidiaries of a Grantor, all of the Pledged Debt has been duly
authorized, authenticated or issued, and delivered and is the legal, valid and
binding obligation of the issuers thereof and is not in default and constitutes
all of the issued and outstanding inter company Indebtedness evidenced by a
promissory note of the respective issuers thereof owing to such Grantor; (d)
the Secured Party has been registered as the registered owner on the books and
records of any issuer of Uncertificated Securities included in the Collateral or
the Secured Party otherwise has "control" thereof (as defined in the UCC); (e)
no Partnership Interest or LCC Interest constitutes Uncertificated Securities;
(f) with respect to any Partnership Interests or LLC Interests that constitute
"securities" (as such term is defined in the UCC), such Partnership Interests or
LLC Interests, as the case may be, are evidenced by certificates and such
certificates have been delivered to the Secured Party in accordance with Section
5.2 hereof; and (g) with respect to Subsidiaries of a Grantor, with respect to
any Investment Property, no consent of any Person, including any other limited
or general partner of the Partnerships, any other member of any LLC, or any
creditor of any Grantor, and no authorization, approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required for either (i) the grant by any Grantor of the security interests
granted hereby, (ii) the execution, delivery or performance of this Agreement by
any Grantor, or (iii) the perfection of or the exercise by Secured Party of its
rights and remedies hereunder (except as may have been taken by or at the
direction of any Grantor).
3.3. Intellectual Property Collateral. In addition to any other
representation made thereby in any other Credit Document, each Grantor
represents and warrants that (a) a true and
EXHIBIT I-9
complete list of all Trademark Registrations and applications owned, held
(whether pursuant to a license or otherwise) or used by such Grantor, in whole
or in part, as of the date of this Agreement is set forth in Schedule 1.1(b);
(b) a true and complete list of all Patents owned, held (whether pursuant to a
license or otherwise) or used by such Grantor, in whole or in part, as of the
date of this Agreement is set forth in Schedule 1.1(b); (c) a true and complete
list of all Copyright registrations held (whether pursuant to a license or
otherwise) or used by such Grantor, in whole or in part, as of the date of this
Agreement is set forth in Schedule 1.1(b); (d) there are not any pending or, to
the best of such Grantor's knowledge, any threatened claims by any third party
that any of the Intellectual Property owned, held or used by such Grantor is
invalid or unenforceable and, if adversely determined, would reasonably be
expected to have a Material Adverse Effect; and (e) except as set forth on
Schedule 3.3, no security interest or other Lien covering all or any part of the
Intellectual Property is on file in the United States Patent and Trademark
Office or the United States Copyright Office.
3.4. Location of Equipment and Inventory. In addition to the
representations and warranties made thereby in any other Credit Document, each
Grantor represents and warrants that all of the Equipment and Inventory is, as
of the date hereof, located at the addresses specified in Schedule 3.4.
3.5. Office Locations; Other Names. In addition to the representations
and warranties made thereby in any other Credit Document, each Grantor
represents and warrants that as of the date hereof the chief place of business,
the chief executive office and the office where such Grantor keeps its records
regarding the Accounts and all originals of all chattel paper that evidence
Accounts is, and has been for the four month period preceding the date hereof,
located at the places indicated on Schedule 3.5, and no Grantor has in the past
twelve months, and does not now do, business under any other name (including any
trade-name or fictitious business name) except for those names set forth on
Schedule 3.5.
4. FURTHER ASSURANCES; ADDITIONAL GRANTORS
4.1. Generally. Each Grantor agrees that from time to time, at the
expense of Grantor, each Grantor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that Secured Party may reasonably request, in order to perfect and
protect any security interest granted or purported to be granted hereby or to
enable Secured Party to exercise and enforce its rights and remedies hereunder
with respect to any Collateral. Without limiting the generality of the
foregoing, each Grantor will (a) execute and file such financing or continuation
statements, or amendments thereto, and such other instruments or notices, as may
be necessary, or as Secured Party may reasonably request, in order to perfect
and preserve the security interests granted or purported to be granted hereby;
(b) at any reasonable time, upon request by Secured Party, exhibit the
Collateral to and allow inspection of the Collateral by Secured Party, or
persons designated by Secured Party; and (c) at Secured Party's request, appear
in and defend any action or proceeding that may affect Grantor's title to or
Secured Party's security interest in all or any part of the Collateral. Each
Grantor
EXHIBIT I-10
hereby authorizes Secured Party to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Collateral without the signature of Grantor. Each Grantor agrees that a
carbon, photographic or other reproduction of this Agreement or of a financing
statement signed by Grantor shall be sufficient as a financing statement and may
be filed as a financing statement in any and all jurisdictions. Each Grantor
will furnish to Secured Party from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as Secured Party may reasonably request, all in reasonable
detail.
4.2. Investment Property. (a) Each Grantor agrees that it will, upon
obtaining any additional shares of stock or other securities required to be
pledged hereunder, promptly (and in any event within five Business Days) deliver
to Secured Party a Pledge Supplement, duly executed by Grantor, in substantially
the form of Exhibit A (a "Pledge Supplement"), in respect of the additional
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pledged shares to be pledged pursuant to this Agreement. Each Grantor hereby
authorizes Secured Party to attach each Pledge Supplement to this Agreement and
agrees that all Pledged Stock of Grantor listed on any Pledge Supplement shall
for all purposes hereunder be considered Collateral of Grantor; provided, the
failure of any Grantor to execute a Pledge Supplement with respect to any
additional Pledged Stock pledged pursuant to this Agreement shall not impair the
security interest of Secured Party therein or otherwise adversely affect the
rights and remedies of Secured Party hereunder with respect thereto.
(b) Upon the request of the Secured Party, each Grantor shall cause
each Person which is an issuer of an uncertificated security included in the
Collateral to execute and deliver all instruments and documents, and take all
further action Secured Party may reasonably request, in order to perfect and
protect any security interest granted or purported to be granted in such
uncertificated securities, to establish "control" (as such term is defined in
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the UCC) by Secured Party over such Collateral or to enable Secured Party to
exercise and enforce its rights and remedies hereunder with respect to such
Collateral, including, and as applicable, (i) register the Secured Party as the
registered owner of such uncertificated securities upon the books of such Person
in accordance with Article 8 of the UCC, and (ii) deliver to Secured Party an
Acknowledgment of Pledge, duly executed by such issuer of the applicable
uncertificated security, in substantially the form of Exhibit B (an
"Acknowledgment of Pledge").
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4.3. Intellectual Property Collateral. If any Grantor shall hereafter
obtain rights to any new Intellectual Property or become entitled to the benefit
of (a) any patent application or patent or any reissue, division, continuation,
renewal, extension or continuation-in-part of any Patent or any improvement of
any Patent; or (b) any Copyright registration or renewals or extension of any
Copyright, then in any such case, the provisions of this Agreement shall
automatically apply thereto. Each Grantor shall promptly notify Secured Party
in writing of any of the foregoing rights acquired by Grantor after the date
hereof and of (i) any Trademark registrations issued or applications for
Trademark registration or applications for Patents made, and (ii) any Copyright
registrations issued or applications for Copyright registration made, in any
such case, after the date hereof. Promptly after the filing of an application
for any (1) Trademark registration; (2) Patent; and (3) Copyright registration,
each Grantor shall execute and deliver to Secured
EXHIBIT I-11
Party and record in all places where this Agreement is recorded a Pledge
Supplement, pursuant to which Grantor shall grant to Secured Party a security
interest to the extent of its interest in such Intellectual Property; provided,
if, in the reasonable judgment of Grantor, after due inquiry, granting such
interest would result in the grant of a Trademark registration or Copyright
registration in the name of Secured Party, in which event Grantor shall give
written notice to Secured Party as soon as reasonably practicable and the filing
shall instead be undertaken as soon as practicable following the grant of the
applicable Trademark registration or Copyright registration, as the case may be.
In addition to the foregoing, each Grantor hereby authorizes Secured Party to
modify this Agreement without obtaining Grantor's approval of or signature to
such modification by amending Schedule 1.1(b), as applicable, to include
reference to any right, title or interest in any existing Intellectual Property
or any Intellectual Property acquired or developed by Grantor after the
execution hereof or to delete any reference to any right, title or interest in
any Intellectual Property in which Grantor no longer has or claims any right,
title or interest.
4.4. Accounts. Each Grantor shall (a) xxxx conspicuously each item of
chattel paper included in the Accounts, each Related Contract and, at the
reasonable request of Secured Party, each of its records pertaining to the
Collateral, with a legend, in form and substance reasonably satisfactory to
Secured Party, indicating that such Collateral is subject to the security
interest granted hereby, and (b) at the reasonable request of Secured Party,
deliver to Secured Party hereunder all promissory notes and other instruments
(excluding checks) and all original counterparts of chattel paper constituting
Collateral in excess of $25,000, duly endorsed and accompanied by duly executed
instruments of transfer or assignment, all in form and substance reasonably
satisfactory to Secured Party.
4.5. Equipment. Each Grantor shall (a) promptly after the acquisition by
such Grantor of any material item of Equipment which is covered by a certificate
of title under a statute of any jurisdiction under the law of which indication
of a security interest on such certificate is required as a condition of
perfection thereof, upon the reasonable request of Secured Party, execute and
file with the registrar of motor vehicles or other appropriate authority in such
jurisdiction an application or other document requesting the notation or other
indication of the security interest created hereunder on such certificate of
title, and (b) upon the reasonable request of Secured Party, deliver to Secured
Party copies of all such applications or other documents filed during such
calendar quarter and copies of all such certificates of title issued during such
calendar quarter indicating the security interest created hereunder in the items
of Equipment covered thereby.
4.6. Additional Grantors. From time to time subsequent to the date
hereof, additional Persons may become parties hereto as additional Grantors
(each, an "Additional Grantor"), by executing a Counterpart Agreement. Upon
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delivery of any such Counterpart Agreement to Secured Party, notice of which is
hereby waived by Grantors, each Additional Grantor shall be a Grantor and shall
be as fully a party hereto as if Additional Grantor were an original signatory
hereto. Each Grantor expressly agrees that its obligations arising hereunder
shall not be affected or diminished by the addition or release of any other
Grantor hereunder, nor by any election of
EXHIBIT I-12
Secured Party not to cause any Subsidiary of Borrower to become an Additional
Grantor hereunder. This Agreement shall be fully effective as to any Grantor
that is or becomes a party hereto regardless of whether any other Person becomes
or fails to become or ceases to be a Grantor hereunder.
5. COVENANTS OF GRANTORS
5.1. Generally. Each Grantor shall (a) except for the security interest
created by this Agreement, not create or suffer to exist any Lien upon or with
respect to any of the Collateral, except Permitted Liens; (b) not use or permit
any Collateral to be used unlawfully or in violation of any provision of this
Agreement or any applicable statute, regulation or ordinance or any policy of
insurance covering the Collateral; (c) notify Secured Party of any change in
Grantor's name, identity or corporate structure within 15 days of such change;
(d) diligently keep reasonable records respecting the Intellectual Property
Collateral and at all times keep at least one complete set of its records
concerning such Collateral at its chief executive office or principal place of
business; (e) pay promptly when due all property and other taxes, assessments
and governmental charges or levies imposed upon, and all claims (including
claims for labor, materials and supplies) against, the Collateral, except to the
extent the validity thereof is being contested in good faith; provided, Grantor
shall in any event pay such taxes, assessments, charges, levies or claims not
later than five days prior to the date of any proposed sale under any judgment,
writ or warrant of attachment entered or filed against Grantor or any of the
Collateral as a result of the failure to make such payment; and (f) upon any
executive officer of such Grantor obtaining knowledge thereof, promptly notify
Secured Party in writing of any event that may materially and adversely affect
the ability of Grantor or Secured Party to dispose of the Collateral or any
portion thereof, or the rights and remedies of Secured Party in relation
thereto, including, without limitation, the levy of any legal process against
the Collateral or any portion thereof. No Grantor shall sell, transfer or
assign (by operation of law or otherwise) any Collateral except as permitted by
Section 6.9 of the Credit Agreement (a "Permitted Sale"). So long as (i) no
--------------
Event of Default shall have occurred and is then continuing or would occur after
giving effect to a Permitted Sale, and (ii) the Net Asset Sale Proceeds with
respect to such Permitted Sale are delivered to Secured Party contemporaneously
with such Permitted Sale to the extent required by Section 2.14(a) of the Credit
Agreement, Secured Party shall release the Lien hereof encumbering the
Collateral that is the subject of such Permitted Sale. Secured Party shall
execute each and every appropriate filing statement and/or recording document
reasonably requested by any Grantor is connection with the foregoing. Any
reasonable expense or cost incurred by Secured Party in connection with any such
release shall be for the account of the applicable Grantor.
EXHIBIT I-13
5.2. Investment Property.
(a) Delivery.
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(i) All certificates or instruments representing or
evidencing the Investment Property shall be delivered to and held by or on
behalf of Secured Party pursuant hereto and shall be in suitable form for
transfer by delivery or, as applicable, shall be accompanied by Grantor's
endorsement, where necessary, or duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to Secured
Party. Upon the occurrence and during the continuation of an Event of
Default, Secured Party shall have the right, without notice to any Grantor,
to transfer to or to register in the name of Secured Party or any of its
nominees any or all of the Investment Property, subject only to the
revocable rights specified herein. In addition, Secured Party shall have
the right at any time to exchange certificates or instruments representing
or evidencing Investment Property for certificates or instruments of
smaller or larger denominations.
(ii) Each Grantor hereby consents to the pledge of the
Partnership Interests by each other Grantor in each Partnership pursuant to
the terms hereof, and, subject to Section 8, to the transfer of such
Partnership Interests to Secured Party or its nominee and to the
substitution of Secured Party or its nominee as a substituted Partner of
each such Partnership with all the rights, powers and duties of a general
partner or a limited partner, as the case may be.
(iii) Each Grantor hereby consents to the pledge of the LLC
Interests by each other Grantor in each LLC pursuant to the terms hereof,
and, subject to Section 7, to the transfer of such LLC Interests to Secured
Party or its nominee and to the substitution of Secured Party or its
nominee as a substituted member of the LLC with all the rights, powers and
duties of a member of the LLC in question.
(b) Covenants. Each Grantor shall (i) not permit any issuer of
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Pledged Stock to merge or consolidate unless all (or such lesser percentage
owned by such Grantor prior to such merger or consolidation) the outstanding
capital stock of the surviving or resulting corporation is, upon such merger or
consolidation, pledged hereunder and no cash, securities or other property is
distributed in respect of the outstanding shares of any other constituent
corporation; provided, if the surviving or resulting corporation upon any such
merger or consolidation involving an issuer of Pledged Stock which is a
controlled foreign corporation is a controlled foreign corporation, then such
Grantor shall only be required to pledge outstanding capital stock of such
surviving or resulting corporation possessing up to but not exceeding 65% of the
voting power of all classes of capital stock of such issuer entitled to vote;
(ii) cause each issuer of Pledged Stock that is a Subsidiary of a Grantor not to
issue any stock or other securities in addition to or in substitution for the
Pledged Stock issued by such issuer, except to Grantor; (iii) promptly deliver
to Secured Party notice of the conversion of any partnership interests in a
Partnership any membership interests in a LLC to certificated form; (iv) not (1)
cancel or terminate any of the Partnership
EXHIBIT I-14
Agreements or LLC Agreements or consent to or accept any cancellation or
termination thereof, (2) except as permitted pursuant to Section 6.10 of the
Credit Agreement, sell, assign (by operation of law or otherwise) or otherwise
dispose of any part of its limited or general partnership interest in any of the
Partnerships or its membership interest in any of the LLCs, (3) amend,
supplement or otherwise modify any of the Partnership Agreements or any of the
LLC Agreements (as in effect on the date hereof), (4) waive any default under or
breach of any of the Partnership Agreements or any of the LLC Agreements or
waive, fail to enforce, forgive or release any right, interest or entitlement of
any kind, howsoever arising, under or in respect of any of the Partnership
Agreements or any of the LLC Agreements or vary or agree to the variation in any
respect of any of the provisions of any of the Partnership Agreements or any of
the LLC Agreements or the performance of any other Person under any of the
Partnership Agreements or any of the LLC Agreements, or (5) petition, request or
take any other legal or administrative action which seeks, or may reasonably be
expected, to rescind, to terminate or to suspend any of the Partnership
Agreements or any of the LLC Agreements or to amend or modify any of the
Partnership Agreements or any of the LLC Agreements; (v) at its expense (1)
perform and comply in all material respects with all terms and provisions of the
Partnership Agreements and the LLC Agreements required to be performed or
complied with by it, (2) maintain the Partnership Agreements and the LLC
Agreements to which it is a party in full force and effect, and (3) enforce each
of the Partnership Agreements and each of the LLC Agreements to which it is a
party in accordance with its terms; and (vi) not vote to permit the Partnerships
or the LLCs that are Subsidiaries to enter into any transaction of merger or
consolidation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution).
(c) Voting and Distributions.
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(i) So long as no Event of Default shall have occurred and be
continuing, (1) each Grantor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Investment Property or
any part thereof for any purpose not inconsistent with the terms of this
Agreement or any Credit Document; provided, no Grantor shall exercise or
refrain from exercising any such right if Secured Party shall have notified
Grantor that, in Secured Party's reasonable judgment, such action would
violate the terms and conditions of the Credit Agreement; provided further,
it is understood, however, that neither (A) the voting by Grantor of any
Pledged Stock for or Grantor's consent to the election of directors at a
regularly scheduled annual or other meeting of stockholders or with respect
to incidental matters at any such meeting, nor (B) Grantor's consent to or
approval of any action otherwise permitted under this Agreement or any
Credit Document shall be deemed inconsistent with the terms of this
Agreement or any Credit Document within the meaning of this Section, and no
notice of any such voting or consent need be given to Secured Party; (2)
Grantor shall be entitled to receive and retain, and to utilize free and
clear of the lien of this Agreement, any and all dividends and interest
paid in respect of the Investment Property; provided, any and all (A)
dividends and interest paid or payable other than in cash in respect of,
and instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Investment Property, (B)
dividends and other distributions paid or
EXHIBIT I-15
payable in cash in respect of any Investment Property in connection with a
partial or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in-surplus, and (C) cash
paid, payable or otherwise distributed in respect of principal or in
redemption of or in exchange for any Investment Property, shall be, and
shall forthwith be delivered to Secured Party to hold as Investment
Property and shall, if received by Grantor, be received in trust for the
benefit of Secured Party, be segregated from the other property or funds of
Grantor and be forthwith delivered to Secured Party as Investment Property
in the same form as so received (with all necessary endorsements); and (3)
Secured Party shall promptly execute and deliver (or cause to be executed
and delivered) to Grantor all such proxies, dividend payment orders and
other instruments as Grantor may from time to time reasonably request for
the purpose of enabling Grantor to exercise the voting and other consensual
rights when and to the extent which it is entitled to exercise the same
pursuant to clause (1) above and to receive the dividends, principal or
interest payments which it is authorized to receive and retain pursuant to
clause (2) above.
(ii) Upon the occurrence and during the continuation of an Event
of Default, (1) upon written notice from Secured Party to any Grantor, all
rights of Grantor to exercise the voting and other consensual rights which
it would otherwise be entitled to exercise pursuant hereto shall cease, and
all such rights shall thereupon become vested in Secured Party who shall
thereupon have the sole right to exercise such voting and other consensual
rights; (2) all rights of Grantor to receive the dividends and interest
payments which it would otherwise be authorized to receive and retain
pursuant hereto shall cease, and all such rights shall thereupon become
vested in Secured Party who shall thereupon have the sole right to receive
and hold as Investment Property such dividends and interest payments; and
(3) all payments which are received by Grantor contrary to the provisions
of clause (2) above shall be received in trust for the benefit of Secured
Party, shall be segregated from other funds of Grantor and shall forthwith
be paid over to Secured Party as Investment Property in the same form as so
received (with any necessary endorsements); and (4) all rights of such
Grantor to receive any and all payments under or in connection with the
Partnership Agreements and/or the LLC Agreements, including but not limited
to the profits, dividends, and other distributions which it would otherwise
be authorized to receive and retain pursuant hereto, shall cease, and all
such rights shall thereupon become vested in Secured Party who shall
thereupon have the sole right to receive and hold such payments as
collateral.
(iii) IN ORDER TO PERMIT SECURED PARTY TO EXERCISE THE VOTING
AND OTHER CONSENSUAL RIGHTS WHICH IT MAY BE ENTITLED TO EXERCISE PURSUANT
HERETO AND TO RECEIVE ALL DIVIDENDS AND OTHER DISTRIBUTIONS WHICH IT MAY BE
ENTITLED TO RECEIVE HEREUNDER, (1) GRANTOR SHALL PROMPTLY EXECUTE AND
DELIVER (OR CAUSE TO BE EXECUTED AND DELIVERED) TO SECURED PARTY ALL SUCH
PROXIES, DIVIDEND PAYMENT ORDERS AND OTHER INSTRUMENTS AS SECURED PARTY MAY
FROM TIME TO TIME REASONABLY REQUEST, AND
EXHIBIT I-16
(2) WITHOUT LIMITING THE EFFECT OF CLAUSE (1) ABOVE, GRANTOR HEREBY GRANTS
TO SECURED PARTY AN IRREVOCABLE PROXY (BEING COUPLED WITH AN INTEREST) TO
VOTE THE PLEDGED STOCK AND TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES
AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED STOCK WOULD BE ENTITLED
(INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING
SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS), WHICH PROXY
SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION
(INCLUDING ANY TRANSFER OF ANY PLEDGED STOCK ON THE RECORD BOOKS OF THE
ISSUER THEREOF) BY ANY OTHER PERSON (INCLUDING THE ISSUER OF THE PLEDGED
STOCK OR ANY OFFICER OR AGENT THEREOF), UPON THE OCCURRENCE AND DURING THE
CONTINUATION OF AN EVENT OF DEFAULT, AND WHICH PROXY SHALL ONLY TERMINATE
UPON THE PAYMENT IN FULL OF THE SECURED OBLIGATIONS.
5.3. Intellectual Property Collateral.
(a) Covenants. Each Grantor shall (i) hereafter use best efforts
---------
so as not to permit the inclusion in any contract to which it hereafter becomes
a party of any provision that could or might in any way materially impair or
prevent the creation of a security interest in, or the assignment of, Grantor's
rights and interests in any property included within the definitions of any
Intellectual Property Collateral acquired under such contracts; (ii) take all
steps reasonably necessary to protect the secrecy of all trade secrets relating
to the products and services sold or delivered under or in connection with the
Intellectual Property Collateral, including, without limitation, entering into
confidentiality agreements with employees and labeling and restricting access to
secret information and documents; (iii) use proper statutory notice in
connection with its use of any of the Intellectual Property Collateral; (iv) use
consistent standards of high quality (which may be consistent with Grantor's
past practices) in the manufacture, sale and delivery of products and services
sold or delivered under or in connection with the Intellectual Property
Collateral; and (v) furnish to Secured Party from time to time statements and
schedules further identifying and describing any Intellectual Property
Collateral and such other reports in connection with such Collateral as Secured
Party may reasonably request, all in reasonable detail.
(b) Collections. Except as otherwise provided in this Section
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5.3, each Grantor shall continue to collect, at its own expense, all amounts due
or to become due to Grantor in respect of the Intellectual Property or any
portion thereof. In connection with such collections, each Grantor may take
(and, at Secured Party's reasonable direction, shall take) such action as
Grantor or Secured Party may deem reasonably necessary or advisable to enforce
collection of such amounts; provided, Secured Party shall have the right at any
time, upon the occurrence and during the continuation of an Event of Default and
upon written notice to Grantor of its intention to do so, to notify the obligors
with respect to any such amounts of the existence of the security interest
created hereby and to direct such obligors to make payment of all such
EXHIBIT I-17
amounts directly to Secured Party, and, upon such notification and at the
expense of Grantor, to enforce collection of any such amounts and to adjust,
settle or compromise the amount or payment thereof, in the same manner and to
the same extent as Grantor might have done. After receipt by any Grantor of the
notice from Secured Party referred to in the proviso to the preceding sentence
and during the continuation of any Event of Default, (i) all amounts and
proceeds (including checks and other instruments) received by Grantor in respect
of amounts due to Grantor in respect of the Collateral or any portion thereof
shall be received in trust for the benefit of Secured Party hereunder, shall be
segregated from other funds of Grantor and shall be forthwith paid over or
delivered to Secured Party in the same form as so received (with any necessary
endorsement) to be held as cash Collateral, and (ii) Grantor shall not adjust,
settle or compromise the amount or payment of any such amount or release wholly
or partly any obligor with respect thereto or allow any credit or discount
thereon.
(c) Applications and Registrations. Each Grantor shall have the duty
------------------------------
diligently, through counsel reasonably acceptable to Secured Party, to
prosecute, file and/or make, unless and until Grantor, in its commercially
reasonable judgment, decides otherwise, (i) any application relating to any of
the Intellectual Property owned by Grantor and identified on Schedule 1.1(b),
that is pending as of the date of this Agreement, (ii) any registration on any
existing or future unregistered but copyrightable works, (iii) application on
any existing patent or future patentable but unpatented invention comprising
Intellectual Property, and (iv) any Trademark opposition and cancellation
proceedings, renew Trademark registrations and Copyright registrations and do
any and all acts which are necessary or desirable, as determined in such
Grantor's commercially reasonable judgment, to preserve and maintain all rights
in all Intellectual Property. Any expenses incurred in connection therewith
shall be borne solely by Grantor. Subject to the foregoing, Grantor shall give
Secured Party prior written notice of any abandonment of any Intellectual
Property or any right to file a patent application or any pending patent
application or any Patent.
(d) Litigation. Except as provided herein, each Grantor shall have
----------
the right to commence and prosecute in its own name, as real party in interest,
for its own benefit and at its own expense, such suits, proceedings or other
actions for infringement, unfair competition, dilution, misappropriation or
other damage, or reexamination or reissue proceedings as are in its commercially
reasonable judgment necessary to protect the Intellectual Property Collateral.
Secured Party shall provide, at Grantor's expense, all reasonable and necessary
cooperation in connection with any such suit, proceeding or action including,
without limitation, joining as a necessary party. Each Grantor shall promptly,
following its becoming aware thereof, notify Secured Party of the institution
of, or of any adverse determination in, any proceeding (whether in the United
States Patent and Trademark Office, the United States Copyright Office or any
federal, state, local or foreign court) or regarding Grantor's ownership, right
to use, or interest in any Intellectual Property Collateral. Grantor shall
provide to Secured Party any information with respect thereto requested by
Secured Party.
(e) Certain Rights of Secured Party. In addition to, and not by way
-------------------------------
of limitation of, the granting of a security interest in the Collateral pursuant
hereto, each Grantor,
EXHIBIT I-18
effective upon the occurrence and during the continuation of an Event of Default
and upon written notice from Secured Party, shall grant, sell, convey, transfer,
assign and set over to Secured Party, for its benefit and the ratable benefit of
Lenders and Lender Counterparties, all of Grantor's right, title and interest in
and to the Intellectual Property Collateral to the extent necessary to enable
Secured Party to use, possess and realize on the Collateral and to enable any
successor or assign to enjoy the benefits of the Collateral. This right and
license shall inure to the benefit of Secured Party and its successors, assigns
and transferees, whether by voluntary conveyance, operation of law, assignment,
transfer, foreclosure, deed in lieu of foreclosure or otherwise. Such right and
license shall be granted free of charge, without requirement that any monetary
payment whatsoever be made to such Grantor. In addition, each Grantor hereby
grants to Secured Party and its employees, representatives and agents the right
to visit Grantor's and any of its Affiliate's or subcontractor's plants,
facilities and other places of business that are utilized in connection with the
manufacture, production, inspection, storage or sale of products and services
sold or delivered under any of the Intellectual Property Collateral (or which
were so utilized during the prior six month period), and to inspect the quality
control and all other records relating thereto upon reasonable advance written
notice to Grantor and at reasonable dates and times and as often as may be
reasonably requested. If and to the extent that any Grantor is permitted to
license the Intellectual Property Collateral, Secured Party shall promptly enter
into a non-disturbance agreement or other similar arrangement, at Grantor's
request and expense, with Grantor and any licensee of any Intellectual Property
Collateral permitted hereunder in form and substance reasonably satisfactory to
Secured Party pursuant to which (i) Secured Party shall agree not to disturb or
interfere with such licensee's rights under its license agreement with Grantor
so long as such licensee is not in default thereunder, and (ii) such licensee
shall acknowledge and agree that the Intellectual Property Collateral licensed
to it is subject to the security interest created in favor of Secured Party and
the other terms of this Agreement.
5.4. Equipment and Inventory. Each Grantor shall:
(a) keep the Equipment and Inventory in the jurisdictions
specified on Schedule 5.4 or, upon 30 days' written notice to Secured Party, in
such other jurisdictions where all action that Secured Party may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby, or to enable Secured Party to exercise and
enforce its rights and remedies hereunder, with respect to such Equipment and
Inventory shall have been taken but no Grantor shall be required to obtain a
Lessor Waiver and Consent Agreement except to the extent required under Section
5.8 of the Credit Agreement;
(b) provide information as to the kind, type and quantity of
Inventory, such Grantor's cost therefor and (where applicable) the current list
prices for the Inventory, in each case, in reasonable detail; and
(c) if any Inventory is in possession or control of any of such
Grantor's agents or processors, upon the occurrence and during the continuance
of an Event of Default, instruct such agent or processor to hold all such
Inventory for the account of Secured Party and subject to the instructions of
Secured Party.
EXHIBIT I-19
5.5. Accounts and Related Contracts. Each Grantor shall:
(a) keep its chief place of business and chief executive office
and the office where it keeps its records concerning the Accounts and Related
Contracts, and all originals of all chattel paper that evidence Accounts, at the
location therefor specified on Schedule 5.5 or, upon 30 days' written notice to
Secured Party following any change in location, at such other location in a
jurisdiction where all action that Secured Party may request, in order to
perfect and protect any security interest granted or purported to be granted
hereby, or to enable Secured Party to exercise and enforce its rights and
remedies hereunder, with respect to such Accounts and Related Contracts shall
have been taken. Promptly upon the reasonable request of Secured Party, such
Grantor shall deliver to Secured Party complete and correct copies of each
Related Contract;
(b) maintain (i) complete and accurate records of all Accounts,
including records of all payments received, credits granted and merchandise
returned, and (ii) all documentation relating thereto in accordance with prudent
business practices;
(c) except as otherwise provided in this subsection (c),
continue to collect, at its own expense, all amounts due or to become due to
such Grantor under the Accounts and Related Contracts, and in connection with
such collections, such Grantor shall take such action (unless the Grantor has
determined in the exercise of its commercially reasonable judgment that it shall
not do so) as such Grantor or Secured Party may deem necessary or advisable to
enforce collection of amounts due or to become due under the Accounts; provided,
Secured Party shall have the right at any time, upon the occurrence and during
the continuation of an Event of Default and upon written notice to such Grantor
of its intention to do so, to notify the account debtors or obligors under any
Accounts of the assignment of such Accounts to Secured Party and to direct such
account debtors or obligors to make payment of all amounts due or to become due
to such Grantor thereunder directly to Secured Party, to notify each Person
maintaining a lockbox or similar arrangement to which account debtors or
obligors under any Accounts have been directed to make payment to remit all
amounts representing collections on checks and other payment items from time to
time sent to or deposited in such lockbox or other arrangement directly to
Secured Party and, upon such notification and at the expense of such Grantor, to
enforce collection of any such Accounts and to adjust, settle or compromise the
amount or payment thereof, in the same manner and to the same extent as such
Grantor might have done. After receipt by any Grantor of the notice from Secured
Party referred to in the proviso to the preceding sentence, (i) any payments of
Accounts, received by such Grantor shall be forthwith (and in any event within
two Business Days) deposited by such Grantor in the exact form received, duly
indorsed by such Grantor to the Secured Party if required, in a collateral
account maintained under the sole dominion and control of the Secured Party (the
"Collateral Account"), (ii) until so turned over in accordance with the
preceding subsection (i) all amounts and proceeds (including checks and other
instruments) received by such Grantor in respect of the Accounts and the Related
Contracts shall be received in trust for the benefit of Secured Party hereunder
and shall be segregated from other funds of such Grantor and (iii) such Grantor
shall not adjust,
EXHIBIT I-20
settle or compromise the amount or payment of any Account, or release wholly or
partly any account debtor or obligor thereof, or allow any credit or discount
thereon.
6. SECURED PARTY APPOINTED ATTORNEY-IN-FACT
Each Grantor hereby irrevocably appoints Secured Party (such
appointment being coupled with an interest) as Grantor's attorney-in-fact, with
full authority in the place and stead of Grantor and in the name of Grantor,
Secured Party or otherwise, from time to time in Secured Party's discretion to
take any action and to execute any instrument that Secured Party may deem
reasonably necessary or advisable to accomplish the purposes of this Agreement,
including (a) to obtain and adjust insurance required to be maintained by
Grantor or paid to Secured Party pursuant to the Credit Agreement; (b) upon the
occurrence and during the continuation of any Event of Default, to ask for,
demand, collect, xxx for, recover, compound, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the
Collateral; (c) upon the occurrence and during the continuation of any Event of
Default, to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clause (b) above; (d) upon the
occurrence and during the continuation of any Event of Default, to file any
claims or take any action or institute any proceedings that Secured Party may
deem necessary or desirable for the collection of any of the Collateral or
otherwise to enforce the rights of Secured Party with respect to any of the
Collateral; (e) to pay or discharge taxes or Liens (other than Liens permitted
under this Agreement or the Credit Agreement) levied or placed upon or
threatened against the Collateral, the legality or validity thereof and the
amounts necessary to discharge the same to be determined by Secured Party in its
sole discretion, any such payments made by Secured Party to become Secured
Obligations of Grantor to Secured Party, due and payable immediately without
demand; and (f) upon the occurrence and during the continuation of an Event of
Default, generally to sell, transfer, pledge, make any agreement with respect to
or otherwise deal with any of the Collateral as fully and completely as though
Secured Party were the absolute owner thereof for all purposes, and to do, at
Secured Party's option and Grantor's expense, at any time or from time to time,
all acts and things that Secured Party deems reasonably necessary to protect,
preserve or realize upon the Collateral and Secured Party's security interest
therein in order to effect the intent of this Agreement, all as fully and
effectively as Grantor might do.
7. REMEDIES
7.1. Generally. If any Event of Default shall have occurred and be
continuing, Secured Party may exercise in respect of the Collateral, in addition
to all other rights and remedies provided for herein or otherwise available to
it, all the rights and remedies of a secured party on default under the UCC
(whether or not the UCC applies to the affected Collateral), and also may (a)
require any Grantor to, and each Grantor hereby agrees that it will at its
expense and promptly upon request of Secured Party forthwith, assemble all or
part of the Collateral as directed by Secured Party and make it available to
Secured Party at a place to be designated by
EXHIBIT I-21
Secured Party that is reasonably convenient to both parties; (b) enter onto the
property where any Collateral is located and take possession thereof with or
without judicial process; (c) prior to the disposition of the Collateral, store,
process, repair or recondition the Collateral or otherwise prepare the
Collateral for disposition in any manner to the extent Secured Party deems
appropriate; (d) without notice except as specified below, sell the Collateral
or any part thereof in one or more parcels at public or private sale, at any of
Secured Party's offices or elsewhere, for cash, on credit or for future
delivery, at such time or times and at such price or prices and upon such other
terms as Secured Party may deem commercially reasonable; and (e) exercise
dominion and control over, and refuse to permit further withdrawals (whether of
money, securities, instruments or other property) from any deposit account
maintained with Secured Party constituting part of the Collateral. Secured Party
or any Lender may be the purchaser of any or all of the Collateral at any such
sale and Secured Party, as agent for and representative of Lenders and Lender
Counterparties (but not any Lender or Lenders in its or their respective
individual capacities unless Requisite Lenders shall otherwise agree in
writing), shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Collateral sold at
any such public sale, to use and apply any of the Secured Obligations as a
credit on account of the purchase price for any Collateral payable by Secured
Party at such sale. Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of any Grantor, and each
Grantor hereby waives (to the extent permitted by applicable law) all rights of
redemption, stay and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
Each Grantor agrees that, to the extent notice of sale shall be required by law,
at least ten days' notice to Grantor of the time and place of any public sale or
the time after which any private sale is to be made shall constitute reasonable
notification. Secured Party shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. Secured Party may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned. Each Grantor hereby waives any
claims against Secured Party arising by reason of the fact that the price at
which any Collateral may have been sold at such a private sale was less than the
price which might have been obtained at a public sale, even if Secured Party
accepts the first offer received and does not offer such Collateral to more than
one offeree. If the proceeds of any sale or other disposition of the Collateral
are insufficient to pay all the Secured Obligations, Grantors shall be liable
for the deficiency and the fees of any attorneys employed by Secured Party to
collect such deficiency. Each Grantor further agrees that a breach of any of the
covenants contained in this Section will cause irreparable injury to Secured
Party, that Secured Party has no adequate remedy at law in respect of such
breach and, as a consequence, that each and every covenant contained in this
Section shall be specifically enforceable against Grantor, and Grantor hereby
waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no default has occurred
giving rise to the Secured Obligations becoming due and payable prior to their
stated maturities. Nothing in this Section shall in any way alter the rights of
Secured Party hereunder.
EXHIBIT I-22
7.2. Investment Property. Each Grantor recognizes that, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws, Secured Party may be compelled, with respect to any sale of all
or any part of the Investment Property conducted without prior registration or
qualification of such Investment Property under the Securities Act and/or such
state securities laws, to limit purchasers to those who will agree, among other
things, to acquire the Investment Property for their own account, for investment
and not with a view to the distribution or resale thereof. Each Grantor
acknowledges that any such private sales may be at prices and on terms less
favorable than those obtainable through a public sale without such restrictions
(including a public offering made pursuant to a registration statement under the
Securities Act) and, notwithstanding such circumstances each Grantor agrees that
any such private sale shall be deemed to have been made in a commercially
reasonable manner and that Secured Party shall have no obligation to engage in
public sales and no obligation to delay the sale of any Investment Property for
the period of time necessary to permit the issuer thereof to register it for a
form of public sale requiring registration under the Securities Act or under
applicable state securities laws, even if such issuer would, or should, agree to
so register it. If Secured Party determines to exercise its right to sell any or
all of the Investment Property, upon written request, each Grantor shall and
shall cause each issuer of any Pledged Stock to be sold hereunder, each
Partnership and each LLC from time to time to furnish to Secured Party all such
information as Secured Party may request in order to determine the number and
nature of interest, shares or other instruments included in the Investment
Property which may be sold by Secured Party in exempt transactions under the
Securities Act and the rules and regulations of the Securities and Exchange
Commission thereunder, as the same are from time to time in effect.
7.3. Intellectual Property Collateral.
EXHIBIT I-23
(a) Anything contained herein to the contrary notwithstanding, upon
the occurrence and during the continuation of an Event of Default, (i) Secured
Party shall have the right (but not the obligation) to bring suit, in the name
of any Grantor, Secured Party or otherwise, in Secured Party's sole discretion,
to enforce any Intellectual Property, in which event Grantor shall, at the
request of Secured Party, do any and all lawful acts and execute any and all
documents required by Secured Party in aid of such enforcement and Grantor shall
promptly, upon demand, reimburse and indemnify Secured Party as provided in
Section 11 hereof in connection with the exercise of its rights under this
Section, and, to the extent that Secured Party shall elect not to bring suit to
enforce any Intellectual Property as provided in this Section, each Grantor
agrees to use all reasonable measures, whether by action, suit, proceeding or
otherwise, to prevent the infringement of any of the Intellectual Property by
others and for that purpose agrees (based on its reasonable business judgment)
to diligently maintain any action, suit or proceeding against any Person so
infringing necessary to prevent such infringement; (ii) upon written demand from
Secured Party, each Grantor shall execute and deliver to Secured Party an
assignment or assignments of the Intellectual Property and such other documents
as are necessary or appropriate to carry out the intent and purposes of this
Agreement; (iii) each Grantor agrees that such an assignment and/or recording
shall be applied to reduce the Secured Obligations outstanding only to the
extent that Secured Party (or any Lender) receives cash proceeds in respect of
the sale of, or other realization upon, the Intellectual Property; and (iv)
within five Business Days after written notice from Secured Party, each Grantor
shall make available to Secured Party, to the extent within such Grantor's power
and authority, such personnel in each Grantor's employ on the date of such Event
of Default as Secured Party may reasonably designate, by name, title or job
responsibility, to permit such Grantor to continue, directly or indirectly, to
produce, advertise and sell the products and services sold or delivered by such
Grantor under or in connection with the Trademarks, such persons to be available
to perform their prior functions on Secured Party's behalf and to be compensated
by Secured Party at such Grantor's expense on a per diem, pro-rata basis
consistent with the salary and benefit structure applicable to each as of the
date of such Event of Default.
(b) If (i) an Event of Default shall have occurred and, by reason of
cure, waiver, modification, amendment or otherwise, no longer be continuing,
(ii) no other Event of Default shall have occurred and be continuing, (iii) an
assignment to Secured Party of any rights, title and interests in and to the
Intellectual Property shall have been previously made and shall have become
absolute and effective, and (iv) the Secured Obligations shall not have become
immediately due and payable, upon the written request of Grantor, Secured Party
shall promptly execute and deliver to Grantor, at Grantor's sole cost and
expense, such assignments as may be necessary to reassign to Grantor any such
rights, title and interests as may have been assigned to Secured Party as
aforesaid, subject to any disposition thereof that may have been made by Secured
Party; provided, after giving effect to such reassignment, Secured Party's
security interest granted pursuant hereto, as well as all other rights and
remedies of Secured Party granted hereunder, shall continue to be in full force
and effect; and provided further, the rights, title and interests so reassigned
shall be free and clear of all Liens other than Permitted Liens.
EXHIBIT I-24
7.4. Accounts. In addition to the rights of the Secured Party
specified in Section 5.5 hereof with respect to payments of Accounts, if an
Event of Default shall occur and be continuing, upon request of the Secured
Party, all proceeds received by any Grantor consisting of cash, checks and other
near-cash items shall be held by such Grantor in trust for the Secured Party,
segregated from other funds of such Grantor, and shall, forthwith upon receipt
by such Grantor, be turned over to the Secured Party in the exact form received
by such Grantor (duly indorsed by such Grantor to Secured Party, if required)
and held by the Secured Party in the Collateral Account. All proceeds while held
by the Secured Party in trust for the Secured Party shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in Section 7.5.
7.5. Application of Proceeds. Except as expressly provided elsewhere
in this Agreement, all proceeds received by Secured Party in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral
shall be applied as provided in Section 2.15 of the Credit Agreement.
8. AGENT
Secured Party has been appointed to act as agent hereunder by and on
behalf of Lenders and Lender Counterparties. Secured Party shall be obligated,
and shall have the right hereunder, to make demands, to give notices, to
exercise or refrain from exercising any rights, and to take or refrain from
taking any action (including, without limitation, the release or substitution of
Collateral), solely in accordance with this Agreement and the other Credit
Documents.
9. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS
This Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until the payment in
full of the Secured Obligations and the cancellation or termination of the
Commitments, (b) be binding upon each Grantor, its successors and assigns, and
(c) inure, together with the rights and remedies of Secured Party hereunder, to
the benefit of Secured Party and its successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), but subject to the
terms of the Credit Agreement, any Lender may assign or otherwise transfer any
Loans held by it to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to Lenders herein
or otherwise. Upon the payment in full of all Secured Obligations then owing
and the cancellation or termination of the Commitments, the security interest
granted hereby shall terminate hereunder and of record and all rights to the
Collateral shall revert to Grantor. Upon any such termination Secured Party
will, at Grantors' expense, execute and deliver to Grantors such documents as
Grantors shall reasonably request to evidence such termination.
EXHIBIT I-25
10. STANDARD OF CARE; SECURED PARTY MAY PERFORM.
The powers conferred on Secured Party hereunder are solely to protect
its interest in the Collateral and shall not impose any duty upon it to exercise
any such powers. Except for the exercise of reasonable care in the custody of
any Collateral in its possession and the accounting for moneys actually received
by it hereunder, Secured Party shall have no duty as to any Collateral or as to
the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral. Secured Party shall be deemed to
have exercised reasonable care in the custody and preservation of Collateral in
its possession if such Collateral is accorded treatment substantially equal to
that which Secured Party accords its own property. If any Grantor fails to
perform any agreement contained herein, Secured Party may itself perform, or
cause performance of, such agreement, and the expenses of Secured Party incurred
in connection therewith shall be payable by each Grantor under Section 11 of
this Agreement.
11. INDEMNITY AND EXPENSES
Each Grantor agrees:
(a) to indemnify, defend and hold harmless Secured Party, its
affiliates and its affiliates' respective directors, officers, employees, agents
and representatives from and against any and all claims, losses and liabilities
in any way relating to, growing out of or resulting from this Agreement and the
transactions contemplated hereby (including without limitation enforcement of
this Agreement), except to the extent such claims, losses or liabilities result
from Secured Party's gross negligence, bad faith, or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable
judgment or order; and
(b) to pay to Secured Party promptly following written demand
(together with appropriate supporting documentation) the amount of any and all
reasonable costs and reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents in accordance with the
terms and conditions of the Credit Agreement.
The obligations of each Grantor in this Section 11 shall survive the termination
of this Agreement and the discharge of such Grantor's other obligations under
this Agreement, the Credit Agreement and any other Credit Documents.
12. REGULATORY APPROVALS
(a) Any provision contained herein to the contrary
notwithstanding, except for the security interests expressly granted herein or
therein or upon the exercise by the Secured Party of rights and remedies in
accordance herewith or therewith and pursuant to clause (b) below, upon the
occurrence and continuation of an Event of Default, this Agreement and the
Credit Agreement and the transactions contemplated hereby and thereby (i) do not
and will not
EXHIBIT I-26
constitute, create, or have the effect of constituting or creating, directly or
indirectly, actual or practical ownership of any Subsidiary of Company by the
Lenders, or control, affirmative or negative, direct or indirect, by the Lenders
over the management or any other aspect of the operation of any Subsidiary,
which ownership and control remain exclusively and at all times in such
Subsidiary, and (ii) do not and will not constitute the transfer, assignment, or
disposition in any manner, voluntarily or involuntarily, directly or indirectly
of any license, permit, certificate or authorization at any time issued to any
Subsidiary of Company by the FCC, any other federal, state or local regulatory
or governmental bodies applicable to or having jurisdiction over Company or any
Governmental Authority, or the transfer of control of any such Subsidiary within
the meaning of the Federal Communications Act of 1934, as amended and the
respective rules and regulations thereunder and thereof, any other federal or
state laws, rules and regulations of other operating municipality regulatory or
governmental bodies applicable to or having jurisdiction over the Company as
well as pursuant to the terms of any franchise, license or similar operating
right held by Company.
(b) Any provision contained herein to the contrary
notwithstanding, no action, including any foreclosure on, sale, transfer or
other disposition of, or the exercise of any right to vote or consent, shall be
taken hereunder by the Secured Party with respect to any item of the Collateral
unless and until all applicable requirements (if any) of the FCC under the
Federal Communications Act of 1934, as amended, and the respective rules and
regulations thereunder and thereof, as well as any other federal or state laws,
rules and regulations of other operating municipality regulatory or governmental
bodies applicable to or having jurisdiction over Company, have been satisfied
with respect to such action and there have been obtained such consents,
approvals and authorizations (if any) as may be required to be obtained from the
FCC, any operating municipality and any other Governmental Authority under the
terms of any franchise, license or similar operating right held by Company. It
is the intention of the parties hereto that the Liens in favor of the Secured
Party on the Collateral shall in all relevant aspects be subject to and governed
by said statutes, rules and regulations as well as the terms of any franchise,
license or similar operating right held by Company and that nothing in this
Agreement shall be construed to diminish the control exercised by Company except
in accordance with the provisions of such statutory requirements and license or
similar operating right held by Company and the obtaining in advance of any
necessary consents, approvals or authorizations pursuant thereto. Company agrees
that upon request by the Secured Party from time to time after the occurrence
and during the continuance of an Event of Default it will use its reasonable
best efforts to obtain any governmental, regulatory or third party consents,
approvals or authorizations referred to in this Section 12.
13. MISCELLANEOUS
Any notice required or permitted to be given under this Agreement
shall be given in accordance with Section 10.1 of the Credit Agreement. No
failure or delay on the part of Secured Party in the exercise of any power,
right or privilege hereunder or under any other Credit Document shall impair
such power, right or privilege or be construed to be a waiver of
EXHIBIT I-27
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other power, right or privilege. All rights and remedies existing under
this Agreement and the other Credit Documents are cumulative to, and not
exclusive of, any rights or remedies otherwise available. In case any provision
in or obligation under this Agreement shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. All
covenants hereunder shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact that it
would be permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists. This Agreement
shall be binding upon each Grantor, its successors and assigns and inure to the
benefit of and enforceable by Secured Party and its successors and assigns. No
Grantor shall, without the prior written consent of Secured Party, assign any
right, duty or obligation hereunder. This Agreement, the Credit Agreement and
the other Credit Documents embody the entire agreement and understanding between
Grantors and Secured Party and supersede all prior agreements and understandings
between such parties relating to the subject matter hereof and thereof.
Accordingly, this Agreement, the Credit Agreement and the other Credit Documents
may not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties. This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
THE PROVISIONS OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK AND THE MANDATORY CHOICE OF LAW PROVISIONS IN THE UCC
GOVERNING THE PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF A
SECURITY INTEREST).
[Remainder of page intentionally left blank]
EXHIBIT I-28
IN WITNESS WHEREOF, each Grantor and Secured Party have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
NORTHPOINT COMMUNICATIONS, INC.
By_______________________________________
Name:
Title:
NORTHPOINT COMMUNICATIONS GROUP, INC.
By:______________________________________
Name
Title:
NORTHPOINT COMMUNICATIONS OF VIRGINIA, INC.
By_______________________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
as Secured Party
By_______________________________________
Name:
Title:
EXHIBIT I-29
SCHEDULE 1.1(a) TO
PLEDGE AND SECURITY AGREEMENT
Pledged Interests
Pledged Stock:
% and
Total Type of
# of Shares Issued Interest Stock Par
Grantor Issuer Pledged Shares Pledged Certificate No. Value
--------------- ----------------- ----------- ------ -------- --------------- ------
NorthPoint NorthPoint 100 100 100% 1 $0.001
Communications, Communications of Common
Inc. Virginia, Inc. Stock
NorthPoint NorthPoint 1 1 100% 1 $0.001
Communications Communications, Common
Group, Inc. Inc. Stock
Pledged Debt:
None.
Partnership Interests:
None.
LLC Interests:
None.
EXHIBIT I-1
