Exhibit 10.22
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement") is made and entered into on the 24th
day of January, 2003, by and between AIRNET COMMUNICATIONS CORPORATION, a
Delaware corporation (the "Borrower") having its chief executive offices at 0000
Xxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000, SCP PRIVATE EQUITY PARTNERS II, L.P., a
Delaware limited partnership ("SCP"), and TECORE, INC., a Texas corporation
("TECORE"). SCP and TECORE may hereinafter be referred to individually as a
"Lender" and collectively as the "Lenders."
RECITALS:
The Borrower has issued and delivered or will issue and deliver to each
Lender a Secured Bridge Promissory Note in the principal amount of Three Million
Dollars ($3,000,000), dated as of the date of this Agreement (collectively, the
"Notes" and individually, a "Note"). Pursuant to the Notes, the Borrower has
agreed to grant a security interest in and to the Collateral (as defined in this
Agreement) on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the Debt (as defined in this
Agreement), and of the premises and intending to be legally bound, the parties
covenant and agree as follows:
1. Definitions. In addition to the words and terms defined elsewhere in
this Agreement, the following words and terms shall have the following meanings,
unless the context otherwise clearly requires:
"Accounts" shall have the meaning given to that term in the Code and
shall include without limitation all rights of the Borrower, whenever
acquired, to payment for goods sold or leased or for services rendered,
whether or not earned by performance.
"Bridge Loan Agreement" shall mean the Bridge Loan Agreement by and
between the Borrower and the Lenders dated as of even date herewith.
"Chattel Paper" shall have the meaning given to that term in the Code
and shall include without limitation all writings owned by the Borrower,
whenever acquired, which evidence both a monetary obligation and a security
interest in or a lease of specific goods.
"Code" shall mean the Uniform Commercial Code as in effect on the date
of this Agreement and as amended from time to time, of the state or states
having jurisdiction with respect to all or any portion of the Collateral
from time to time.
"Collateral" shall mean all tangible and intangible assets of
Borrower, including, without limitation, collectively the Accounts, Chattel
Paper, Deposit Accounts,
Documents, Equipment, Fixtures, General Intangibles, Instruments,
Intellectual Property, Inventory, Investment Property and Proceeds of each
of them.
"Copyrights" means United States or foreign registered or unregistered
works of authorship, regardless of the availability of copyright
protection, but including all copyrights and moral rights recognized by law
and any applications for United States or foreign registration or renewal
therefor.
"Debt" shall mean (i) all indebtedness, both principal and interest,
of the Borrower to the Lenders now or after the date of this Agreement
evidenced by the Notes, (ii) all other debts, liabilities, duties and
obligations of the Borrower to the Lenders arising after the date of this
Agreement contracted or incurred, whether arising under or in connection
with the Loan Documents or arising under or in connection with any other
agreement, instrument, or undertaking made by or for the benefit of the
Borrower to or for the benefit of the Lenders, (iii) all costs and expenses
incurred by the Lenders in the collection of any of the indebtedness
described in this paragraph or in connection with the enforcement of any of
the duties and obligations of the Borrower to the Lenders described in this
paragraph, including reasonable attorneys' and paralegals' fees and
expenses, and (iv) all future advances made by the Lenders for the
maintenance, protection, preservation or enforcement of, or realization
upon, the Collateral or any portion of the Collateral, including advances
for storage, transportation charges, taxes, insurance, repairs and the
like.
"Deposit Accounts" shall have the meaning given to that term in the
Code and shall include a demand, time, savings, passbook or similar account
maintained with a bank, savings bank, savings and loan association, credit
union, trust company or other organization that is engaged in the business
of banking.
"Documents" shall have the meaning given to that term in the Code and
shall include without limitation all warehouse receipts (as defined by the
Code) and other documents of title (as defined by the Code) owned by the
Borrower, whenever acquired.
"Equipment" shall have the meaning given to that term in the Code and
shall include without limitation all goods owned by the Borrower, whenever
acquired and wherever located, used or brought for use primarily in the
business or for the benefit of the Borrower and not included in Inventory
of the Borrower, together with all attachments, accessories and parts used
or intended to be used with any of those goods or Fixtures, whether now or
in the future installed therein or thereon or affixed thereto, as well as
all substitutes and replacements thereof in whole or in part.
"Event of Default" shall mean (i) any of the Events of Default
described in the Notes or the Loan Documents, or (ii) any default by the
Borrower in the performance of its obligations under this Agreement.
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"Fixtures" shall have the meaning given to that term in the Code, and
shall include without limitation leasehold improvements.
"General Intangibles" shall have the meaning given to that term in the
Code and shall include, without limitation, all leases under which the
Borrower now or in the future leases and or obtains a right to occupy or
use real or personal property, or both, all of the other contract rights of
the Borrower, whenever acquired, and customer lists, choses in action,
claims (including claims for indemnification), books, records, patents,
copyrights, trademarks, blueprints, drawings, designs and plans, trade
secrets, methods, processes, contracts, licenses, license agreements,
formulae, tax and any other types of refunds, returned and unearned
insurance premiums, rights and claims under insurance policies, and
computer information, software, records and data, now owned or acquired
after the date of this Agreement by the Borrower.
"Instruments" shall have the meaning given to that term in the Code
and shall include, without limitation, all negotiable instruments (as
defined in the Code), all certificated securities (as defined in the Code)
and all other writings which evidence a right to the payment of money now
or after the date of this Agreement owned by the Borrower.
"Intellectual Property" means Copyrights, Patent Rights, Trademark
Rights, Internet domain names, World Wide Web sites and all pages thereof,
Know-How, Trade Secret Rights, Software, and registration rights of mask
works for circuit designs under the Semiconductor Chip Protection Act of
1984, as amended, and similar rights under corresponding foreign laws,
owned by the Borrower or which any person or entity is under an obligation
to assign ownership to the Borrower.
"Inventory" shall have the meaning given to that term in the Code and
shall include without limitation all goods owned by the Borrower, whenever
acquired and wherever located, held for sale or lease or furnished or to be
furnished under contracts of service, and all raw materials, work in
process and materials owned by the Borrower and used or consumed in the
Borrower's business, whenever acquired and wherever located.
"Investment Property," "Securities Intermediary" and "Commodities
Intermediary" each shall have the meaning set forth in the Code.
"Know-How" means all documented and undocumented research, ideas,
data, theories, conclusions, reports, drawings, designs, blueprints,
schematics, exhibits, models, prototypes, source code, object code, flow
charts, manuals, processes, specifications, formulae, product
configurations, notes, inventions (whether or not patentable and whether or
not reduced to practice) and any other information of any kind developed,
in development or maintained by the Borrower or any of its employees,
agents or representatives relating to any goods or services sold or
licensed or offered for sale or
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license by the Borrower or goods or services which the Borrower has a
present intention to sell or license.
"Loan Documents" shall mean collectively, this Agreement, the Notes,
the Bridge Loan Agreement and all other agreements, documents and
instruments executed and delivered in connection therewith, as each may be
amended, supplemented or modified from time to time.
"Patent Rights" means United States and foreign patent applications
and patents and other patent rights, including any and all divisions,
continuations, continuations in part, substitutions, reissues,
re-examinations, extensions and renewals thereof.
"Permitted Liens" shall mean all (i) all existing liens on the assets
of the Borrower which have been disclosed to the Lenders by the Borrower in
the Bridge Loan Agreement, and (ii) all purchase money security interests
hereinafter incurred by the Borrower in the ordinary course of business to
the extent permitted by the Bridge Loan Agreement.
"Proceeds" shall have the meaning given to that term in the Code and
shall include without limitation whatever is received when Collateral or
Proceeds are sold, exchanged, collected or otherwise disposed of, whether
cash or non-cash, and includes without limitation proceeds of insurance
payable by reason of loss of or damage to Collateral.
"Software" means any set of statements or instructions to be used
directly or indirectly in a computer or microprocessor to bring about a
certain result, including all software under development and all related
documentation.
"Trademark Rights" means United States or foreign trademarks, service
marks, trade names, trade dress, domain names and corporate names, whether
registered or unregistered, and all pending United States and foreign
applications therefor associated with any goods or services sold or
licensed or offered for sale or license by the Borrower or goods or
services which the Borrower has a present intention to sell or license.
"Trade Secret Rights" means all documentation, Know-How, Software and
other materials owned by the Borrower that is considered to be proprietary
to the Borrower, is maintained on a confidential or secret basis, and is
generally not known to other persons or entities who are not subject to
confidentiality restrictions.
2. Security Interest. As security for the full and timely payment of the
Debt in accordance with the terms of the Debt and the performance of the
obligations of the Borrower under the Notes and this Agreement, the Borrower
agrees that the Lenders shall have, and the Borrower grants and conveys to and
creates in favor of the Lenders, jointly and severally, a security interest
under the Code in and to such of the Collateral as is now owned or acquired
after
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the date of this Agreement by the Borrower. The security interest granted to the
Lenders in this Agreement shall be a first priority security interest, prior and
superior to the rights of all third parties existing on or arising after the
date of this Agreement, subject to the Permitted Liens.
3. Provisions Applicable to the Collateral. The parties agree that the
following provisions shall be applicable to the Collateral:
(a) The Borrower covenants and agrees that at all times during the
term of this Agreement it shall keep accurate and complete books and
records concerning the Collateral that is now owned or acquired after the
date of this Agreement by the Borrower.
(b) The Lenders or their representatives shall have the right, upon
reasonable prior written notice to the Borrower and during the regular
business hours of the Borrower, to examine and inspect the Collateral and
to review the books and records of the Borrower concerning the Collateral
that is now owned or acquired after the date of this Agreement by the
Borrower and to copy the same and make excerpts therefrom; provided,
however, that from and after the occurrence of an Event of Default, the
rights of inspection and entry shall be subject to the requirements of the
Code.
(c) The Borrower shall at all times during the term of this Agreement
keep the Equipment, Inventory and Fixtures that are now owned or acquired
after the date of this Agreement by the Borrower at its various locations
or, upon written notice to the Lenders, at such other locations for which
the Lenders have filed financing statements, and at no other location
without 20 days' prior written notice to the Lenders, except that the
Borrower shall have the right until one or more Events of Default shall
occur to sell or otherwise dispose of Inventory and other Collateral in the
ordinary course of business.
(d) The Borrower shall not move the location of its chief executive
offices without prior written notification to the Lenders.
(e) Without the prior written consent of the Lenders, the Borrower
shall not sell, lease or otherwise dispose of any Equipment or Fixtures,
except in the ordinary course of Borrower's business.
(f) The Borrower shall use its best efforts to ensure that there is no
unauthorized disclosure by the Borrower, its affiliates, officers,
employees or agents of any confidential and proprietary information related
to the Intellectual Property.
(g) Promptly upon request of the Lenders from time to time, the
Borrower shall furnish the Lenders with such information and documents
regarding the Collateral and the Borrower's financial condition, business,
assets or liabilities, at such times and in such form and detail as the
Lenders may request.
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(h) At all times during the term of this Agreement, the Borrower shall
deliver to the Lenders, upon their written request, without limitation, (i)
all invoices and customer statements rendered to account debtors,
documents, contracts, chattel paper, instruments and other writings
pertaining to the Borrower's contracts or the performance of the Borrower's
contracts, (ii) evidence of the Borrower's accounts and statements showing
the aging, identification, reconciliation and collection thereof and (iii)
reports as to the Borrower's inventory and sales, shipment, damage or loss
thereof, all of the foregoing to be certified by authorized officers or
other employees of the Borrower, and Borrower shall take all necessary
action during the term of this Agreement to perfect any and all security
interests in favor of Borrower and to assign to Lender all such security
interests in favor of Borrower.
(i) Notwithstanding the security interest in the Collateral granted to
and created in favor of the Lenders under this Agreement, the Borrower
shall have the right until one or more Events of Default shall occur, at
its own cost and expense, to collect the Accounts and the Chattel Paper and
to enforce its contract rights.
(j) After the occurrence of an Event of Default, the Lenders shall
have the right, in their sole discretion, to give notice of the Lenders'
security interest to account debtors obligated to the Borrower and to take
over and direct collection of the Accounts and the Chattel Paper, to notify
such account debtors to make payment directly to the Lenders and to enforce
payment of the Accounts and the Chattel Paper and to enforce the Borrower's
contract rights. It is understood and agreed by the Borrower that the
Lenders shall have no liability whatsoever under this subsection (i) except
for their own gross negligence or willful misconduct.
(k) At all times during the term of this Agreement Borrower shall
promptly deliver to the Lenders, upon their written request, all existing
leases, and all other leases entered into by Borrower from time to time,
covering any Equipment or Inventory ("Leased Inventory") which is leased to
third parties.
(l) The Borrower shall not change its name, entity status, federal
taxpayer identification number, or state organizational or registration
number, or the state under which it is organized without the prior written
consent of the Lenders.
(m) The Borrower shall not close any of its Deposit Accounts or open
any new or additional Deposit Accounts without first giving the Lenders at
least fifteen (15) days prior written notice thereof.
(n) The Borrower shall cooperate with the Lenders, at Borrower's
expense, in perfecting Lenders' security interest in any of the Collateral,
including the execution of any control agreement(s) required in order to
perfect Lenders' security interest in the Deposit Accounts.
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(o) Lenders may file any necessary financing statements and other
documents Lenders deem necessary in order to perfect Lenders' security
interest without Borrower's signature. Borrower grants to Lenders a power
of attorney for the sole purpose of executing any documents on behalf of
Borrower which Lenders deem necessary to perfect Lenders' security
interest. Such power, coupled with an interest, is irrevocable.
(p) The parties agree that the Lenders shall have the right to
designate and appoint a collateral agent to act for and on behalf of the
Lenders with respect to the Collateral under this Agreement, provided that
Borrower is notified in writing at least ten (10) days in advance of such
appointment.
4. Actions with Respect to Accounts. The Borrower irrevocably makes,
constitutes and appoints the Lenders, or any of them, its true and lawful
attorney-in-fact with power to sign its name and to take any of the following
actions after the occurrence and prior to the cure of an Event of Default, at
any time without notice to the Borrower and at the Borrower's expense:
(a) Verify the validity and amount of, or any other matter relating
to, the Collateral by mail, telephone, telegraph or otherwise;
(b) Notify all account debtors that the Accounts have been assigned to
the Lenders and that the Lenders have a security interest in the Accounts;
(c) Direct all account debtors to make payment of all Accounts
directly to the Lenders;
(d) Take control in any reasonable manner of any cash or non-cash
items of payment or proceeds of Accounts;
(e) Receive, open and dispose of all mail addressed to the Borrower;
(f) Take control in any manner of any rejected, returned, stopped in
transit or repossessed goods relating to Accounts;
(g) Enforce payment of and collect any Accounts, by legal proceedings
or otherwise, and for such purpose the Lenders may:
(1) Demand payment of any Accounts or direct any account debtors
to make payment of Accounts directly to the Lenders;
(2) Receive and collect all monies due or to become due to the
Borrower pursuant to the Accounts;
(3) Exercise all of the Borrower's rights and remedies with
respect to the collection of Accounts;
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(4) Settle, adjust, compromise, extend, renew,
discharge or release Accounts in a commercially
reasonable manner;
(5) Sell or assign Accounts on such reasonable terms,
for such reasonable amounts and at such reasonable
times as the Lenders reasonably deem advisable;
(6) Prepare, file and sign the Borrower's name or names
on any Proof of Claim or similar documents in any
proceeding filed under federal or state bankruptcy,
insolvency, reorganization or other similar law as
to any account debtor;
(7) Prepare, file and sign the Borrower's name or names
on any notice of lien, claim of mechanic's lien,
assignment or satisfaction of lien or mechanic's
lien or similar document in connection with the
Collateral;
(8) Endorse the name of the Borrower upon any chattel
papers, documents, instruments, invoices, freight
bills, bills of lading or similar documents or
agreements relating to Accounts or goods pertaining
to Accounts or upon any checks or other media of
payment or evidence of a security interest that
may come into the Lenders, possession;
(9) Sign the name of the Borrower to verifications of
Accounts and notices of Accounts sent by account
debtors to the Borrower; or
(10) Take all other actions that the Lenders reasonably
deem to be necessary or desirable to protect the
Borrower's interest in the Accounts.
(h) Negotiate and endorse any Document in favor of the
Lenders or their designees, covering Inventory including the Leased
Inventory, which constitutes Collateral, and related documents for the
purpose of carrying out the provisions of this Agreement and taking any
action and executing in the name of Borrower any instrument which the
Lenders may reasonably deem necessary or advisable to accomplish the
purpose hereof. Without limiting the generality of the foregoing, the
Lenders shall have the right and power to receive, endorse and collect
checks and other orders for the payment of money made payable to the
Borrower representing any payment or reimbursement made under, pursuant
to or with respect to, the Collateral or any part thereof and to give
full discharge to the same.
The Borrower ratifies and approves all acts of said attorney and agrees that
said attorney shall not be liable for any acts of commission or omission, nor
for any error of judgment or mistake of fact or law, except for said attorney's
own gross negligence or willful misconduct. This power, being
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coupled with an interest, is irrevocable until the Debt is paid in full (at
which time this power shall terminate in full) and the Borrower shall have
performed all of its obligations under this Agreement. The Borrower further
agrees to use its reasonable efforts to assist the Lenders in the collection and
enforcement of the Accounts and will not hinder, delay or impede the Lenders in
any manner in their collection and enforcement of the Accounts.
5. Preservation and Protection of Security Interest. The Borrower
represents and warrants that it has, and covenants and agrees that at all times
during the term of this Agreement, it will have, good and marketable title to
the Collateral from time to time owned or acquired by it free and clear of all
mortgages, pledges, liens, security interests, charges or other encumbrances,
except for the Permitted Liens and those junior in right of payment and
enforcement to that of the Lenders or in favor of the Lenders, and shall defend
the Collateral against the claims and demands of all persons, firms and entities
whomsoever. The Borrower represents and warrants that as of the date of this
Agreement the Lenders have, and that all times in the future the Lenders will
have, a first priority perfected security interest in the Collateral, prior and
superior to the rights of all third parties in the Collateral existing on the
date of this Agreement or arising after the date of this Agreement, subject to
the Permitted Liens. Except as permitted by this Agreement, the Borrower
covenants and agrees that it shall not, without the prior written consent of the
Lenders (i) borrow against the Collateral or any portion of the Collateral from
any other person, firm or entity, except for borrowings which are subordinate to
the rights of the Lenders, (ii) grant or create or permit to attach or exist any
mortgage, pledge, lien, charge or other encumbrance, or security interest on, of
or in any of the Collateral or any portion of the Collateral except those in
favor of the Lenders or the Permitted Liens, (iii) permit any levy or attachment
to be made against the Collateral or any portion of the Collateral, except those
subject to the Permitted Liens, or (iv) permit any financing statements to be on
file with respect to any of the Collateral, except financing statements in favor
of the Lenders or those with respect to the Permitted Liens. The Borrower shall
faithfully preserve and protect the Lenders' security interest in the Collateral
and shall, at its own cost and expense, cause, or assist the Lenders to cause
that security interest to be perfected and continue perfected so long as the
Debt or any portion of the Debt is outstanding, unpaid or executory. For
purposes of the perfection of the Lenders' security interest in the Collateral
in accordance with the requirements of this Agreement, the Borrower shall from
time to time at the request of the Lenders file or record, or cause to be filed
or recorded, such instruments, documents and notices, including assignments,
financing statements and continuation statements, as the Lenders may reasonably
deem necessary or advisable from time to time in order to perfect and continue
perfected such security interest. The Borrower shall do all such other acts and
things and shall execute and deliver all such other instruments and documents,
including further security agreements, pledges, endorsements, assignments and
notices, as the Lenders, or any of them, in their discretion may reasonably deem
necessary or advisable from time to time in order to perfect and preserve the
priority of such security interest as a first lien security interest in the
Collateral prior to the rights of all third persons, firms and entities, subject
to the Permitted Liens and except as may be otherwise provided in this
Agreement. The Borrower agrees that a carbon, photographic or other reproduction
of this Agreement or a financing statement is sufficient as a financing
statement and may be filed instead of the original.
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6. Insurance. Risk of loss of, damage to or destruction of the
Equipment, Inventory and Fixtures is on the Borrower. The Borrower shall insure
the Equipment, Inventory and Fixtures against such risks and casualties and in
such amounts and with such insurance companies as is ordinarily carried by
corporations or other entities engaged in the same or similar businesses and
similarly situated or as otherwise reasonably required by the Lenders in their
sole discretion. In the event of loss of, damage to or destruction of the
Equipment, Inventory or Fixtures during the term of this Agreement, the Borrower
shall promptly notify Lenders of such loss, damage or destruction. At the
reasonable request of the Lenders, each of the Borrower's policies of insurance
shall contain loss payable clauses in favor of the Borrower and the Lenders as
their respective interests may appear and shall contain provision for
notification of the Lenders thirty (30) days prior to the termination of such
policy. At the request of the Lenders, copies of all such policies, or
certificates evidencing the same, shall be deposited with the Lenders. If the
Borrower fails to effect and keep in full force and effect such insurance or
fails to pay the premiums when due, the Lenders may (but shall not be obligated
to) do so for the account of the Borrower and add the cost thereof to the Debt.
The Lenders are irrevocably appointed attorneys-in-fact of the Borrower to
endorse any draft or check which may be payable to the Borrower in order to
collect the proceeds of such insurance. Unless an Event of Default has occurred
and is continuing, the Lenders will turn over to the Borrower the proceeds of
any such insurance collected by them on the condition that the Borrower apply
such proceeds either (i) to the repair of damaged Equipment, Inventory or
Fixtures, or (ii) to the replacement of destroyed Equipment, Inventory or
Fixtures with Equipment, Inventory or Fixtures of the same or similar type and
function and of at least equivalent value (in the sole judgment of the Lenders),
provided such replacement Equipment, Fixtures or Inventory is made subject to
the security interest created by this Agreement and constitutes a first lien
security interest in the Equipment, Inventory and Fixtures subject only to
Permitted Liens and other security interests permitted under this Agreement, and
is perfected by the filing of financing statements in the appropriate public
offices and the taking of such other action as may be necessary or desirable in
order to perfect and continue perfected such security interest. Any balance of
insurance proceeds remaining in the possession of the Lenders after payment in
full of the Debt shall be paid over to the Borrower or its order.
7. Maintenance and Repair. The Borrower shall maintain the
Equipment, Inventory and Fixtures, and every portion thereof, in good condition,
repair and working order, reasonable wear and tear alone excepted, and shall pay
and discharge all taxes, levies and other impositions assessed or levied thereon
as well as the cost of repairs to or maintenance of the same. If the Borrower
fails to do so, the Lenders may (but shall not be obligated to) pay the cost of
such repairs or maintenance and such taxes, levies or impositions for the
account of the Borrower and add the amount of such payments to the Debt.
8. Preservation of Rights Against Third Parties; Preservation of
Collateral in Lenders' Possession. Until such time as the Lenders exercise their
right to effect direct collection of the Accounts and the Chattel Paper and to
effect the enforcement of the Borrower's contract rights, the Borrower assumes
full responsibility for taking any and all commercially reasonable steps to
preserve rights in respect of the Accounts and the Chattel Paper and its
contracts against prior parties. The Lenders shall be deemed to have exercised
reasonable care in the custody and
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preservation of such of the Collateral as may come into their possession from
time to time if the Lenders take such action for that purpose as the Borrower
shall request in writing, provided that such requested action shall not, in the
judgment of the Lenders, impair the Lenders' security interest in the Collateral
or their right in, or the value of, the Collateral, and provided further that
the Lenders receive such written request in sufficient time to permit the
Lenders to take the requested action.
9. Events of Default and Remedies.
(a) If any one or more of the Events of Default shall occur or
shall exist, the Lenders may then or at any time thereafter, so long as such
default shall continue, foreclose the lien or security interest in the
Collateral in any way permitted by law, or upon fifteen (15) days prior written
notice to the Borrower, sell any or all Collateral at private sale at any time
or place in one or more sales, at such price or prices and upon such terms,
either for cash or on credit, as the Lenders, in their sole discretion, may
elect, or sell any or all Collateral at public auction, either for cash or on
credit, as the Lenders, in their sole discretion, may elect, and at any such
sale, the Lenders may bid for and become the purchaser of any or all such
Collateral. Pending any such action the Lenders may liquidate the Collateral.
(b) If any one or more of the Events of Default shall occur or
shall exist, the Lenders may then, or at any time thereafter, so long as such
default shall continue, grant extensions to, or adjust claims of, or make
compromises or settlements with, debtors, guarantors or any other parties with
respect to Collateral or any securities, guarantees or insurance applying
thereon, without notice to or the consent of the Borrower, without affecting the
Borrower's liability under this Agreement or the Notes. The Borrower waives
notice of acceptance, of nonpayment, protest or notice of protest of any
Accounts or Chattel Paper or any of its contract rights and any other notices to
which the Borrower may be entitled.
(c) If any one or more of the Events of Default shall occur or
shall exist and be continuing, then in any such event, the Lenders, shall have
such additional rights and remedies in respect of the Collateral or any portion
thereof as are provided by the Code and such other rights and remedies in
respect thereof which they may have at law or in equity or under this Agreement,
including without limitation the right to enter any premises where Equipment,
Inventory and/or Fixtures are located and take possession and control thereof
without demand or notice and without prior judicial hearing or legal
proceedings, which the Borrower expressly waives.
(d) The Lenders shall apply the Proceeds of any sale or
liquidation of the Collateral, and, subject to Section 6, any Proceeds received
by the Lenders from insurance, first to the payment of the reasonable costs and
expenses incurred by the Lenders in connection with such sale or collection,
including without limitation reasonable attorneys' fees and legal expenses,
second to the payment of the Debt, whether on account of principal or interest
or otherwise as the Lenders, in their sole discretion, may elect, and then to
pay the balance, if any, to the Borrower or as otherwise required by law. If
such Proceeds are insufficient to pay the amounts required by law, the Borrower
shall be liable for any deficiency.
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(e) Upon the occurrence of any Event of Default, the Borrower
shall promptly upon written demand by the Lenders assemble the Equipment,
Inventory and Fixtures and make them available to the Lenders at a place or
places to be designated by the Lenders. The rights of the Lenders under this
paragraph to have the Equipment, Inventory and Fixtures assembled and made
available to them is of the essence of this Agreement and the Lenders may, at
their election, enforce such right by an action in equity for injunctive relief
or specific performance, without the requirement of a bond.
10. Defeasance. Notwithstanding anything to the contrary contained
in this Agreement upon payment and performance in full of the Debt, this
Agreement shall terminate and be of no further force and effect and the Lenders
shall thereupon terminate their security interest in the Collateral. Until such
time, however, this Agreement shall be binding upon and inure to the benefit of
the parties, their successors and assigns, provided that, without the prior
written consent of the Lenders, the Borrower may not assign this Agreement or
any of its rights under this Agreement or delegate any of its duties or
obligations under this Agreement and any such attempted assignment or delegation
shall be null and void. This Agreement is not intended and shall not be
construed to obligate the Lenders to take any action whatsoever with respect to
the Collateral or to incur expenses or perform or discharge any obligation, duty
or disability of the Borrower.
11. Representations and Warranties of Borrower. The Borrower
represents and warrants that: (a) its name is "AirNet Communications
Corporation"; and (b) its state of incorporation is Delaware.
12. Miscellaneous.
(a) The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall for any reason be held
invalid or unenforceable in whole or in part in any jurisdiction, such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability of such provision in any other jurisdiction or any other
provision of this Agreement in any jurisdiction.
(b) No failure or delay on the part of the Lenders in
exercising any right, remedy, power or privilege under this Agreement and the
Notes shall operate as a waiver thereof or of any other right, remedy, power or
privilege of the Lenders under this Agreement, the Notes or any of the other
Loan Documents; nor shall any single or partial exercise of any such right,
remedy, power or privilege preclude any other right, remedy, power or privilege
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges of the Lenders under this
Agreement, the Notes and the other Loan Documents are cumulative and not
exclusive of any rights or remedies which they may otherwise have.
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(c) All notices, statements, requests and demands given to or
made upon either party in accordance with the provisions of this Agreement shall
be deemed to have been given or made when personally delivered or when deposited
in the United States mail, postage prepaid or with private overnight courier
service, charges prepaid, addressed as provided in the Bridge Loan Agreement.
(d) The section headings contained in this Agreement are for
reference purposes only and shall not control or affect its construction or
interpretation in any respect.
(e) Unless the context otherwise requires, all terms used in
this Agreement which are defined by the Code shall have the meanings stated in
the Code.
(f) The Code shall govern the settlement, perfection and the
effect of attachment and perfection of the Lenders' security interest in the
Collateral, and the rights, duties and obligations of the Lenders and the
Borrower with respect to the Collateral. This Agreement shall be deemed to be a
contract under the laws of the State of Delaware and the execution and delivery
of this Agreement and, to the extent not inconsistent with the preceding
sentence, the terms and provisions of this Agreement shall be governed by and
construed in accordance with the laws of that State.
(g) Whenever in this Agreement an action is required or
permitted to be taken by the Lenders, it may be taken by each Lender
individually, or both of the Lenders, acting together. The Lenders may enter
into a separate agreement that specifies the obligations and responsibilities of
each party relating to the enforcement of their rights under this Agreement, or
appoint an agent to act on their behalf.
(h) This Agreement may be executed in several counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument. In addition, this Agreement may contain more than one
counterpart of the signature page, and this Agreement may be executed by the
affixing of the signatures of each of the Lenders to one of such counterparts.
All of such counterparts shall be read as though one, and they shall have the
same force and effect as though all the signers had signed a single page.
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IN WITNESS WHEREOF, and intending to be legally bound, the parties have
executed and delivered this Agreement as of the day and year set forth at the
beginning of this Agreement.
BORROWER:
ATTEST: AIRNET COMMUNICATIONS CORPORATION
/s/ Xxxxxx X. Xxxxxx By:/s/ Xxxxx X. Xxxxx
-------------------- ------------------------------------------------
LENDERS:
SCP PRIVATE EQUITY PARTNERS II, L.P.
By: SCP Private Equity II General Partner, L.P.,
its General Partner
By: SCP Private Equity II, LLC, its Manager
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------------------
Title: a manager
------------------------------------------
TECORE, INC.
By: /s/ Xxx Xxxxxxx
---------------------------------------------
Name: Xxx Xxxxxxx
-------------------------------------------
Title: President and Chief Executive Officer
------------------------------------------
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