EXHIBIT 10.33
SECURITY AGREEMENT
THIS AGREEMENT is made as of July 19, 2005
TO: XXXX CANADA
(the "LENDER")
Address: 000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
GRANTED BY: CLEARWIRE CORPORATION
(the "BORROWER")
having its principal office or place of business at:
Address: 0000 Xxxx Xxxxxxxxxx Xxxx. XX, Xxxxx 000,
Xxxxxxxx, XX 00000
ARTICLE 1
DEFINITIONS
1.1 DEFINED TERMS
Unless the context otherwise requires or unless otherwise specified, all the
terms used in this Agreement without initial capitals which are defined in the
Personal Property Security Act (Ontario) (the "PPSA"), have the same meanings in
this Agreement as in the PPSA.
1.2 DEFINITIONS
Wherever used in this Agreement, the following words and terms have the meanings
set out below:
"AFFILIATE" means any Person, however organized, that, directly or
indirectly, Controls, is Controlled by or is under common Control with the
applicable Party. For purposes of this Agreement, "CONTROL," and
variations of "Control" means: (a) ownership of a majority of the voting
power of those classes of voting stock entitled to vote in the election of
directors, whether as a result of equity ownership interests, voting
agreements or otherwise; or (b) ownership of a majority of the beneficial
interests in income and capital of an entity other than a corporation.
"BUSINESS DAY" means any day, other than a Saturday or Sunday, on which
commercial banks in Seattle, Washington and Montreal, Quebec are open for
business during normal banking hours.
"CONTRACTS" means any contracts, agreements, indentures, licences,
commitments, entitlements, engagements or other arrangements, whether
written or unwritten, to which the Borrower is now or subsequently a party
or has a benefit, right, or in which the Borrower now or subsequently has
an interest.
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"CREDIT AGREEMENT" means the credit agreement between the Borrower and the
Lender dated as of July 19, 2005, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"EQUIPMENT" means all goods in which the Borrower now or subsequently has
an interest other than Inventory or consumer goods and any part of such
Inventory or consumer goods, including, without limitation, all tools,
apparatus, fixtures, plant, machinery and furniture.
"EVENT OF DEFAULT" has the meaning ascribed thereto in the Credit
Agreement.
"INVENTORY" means all inventory (as defined in the PPSA), including
without limitation, raw materials, works-in-progress, finished goods and
by-products, spare parts, operating supplies, packing, shipping and
packaging materials of or relating to the business of the Borrower.
"LIENS" means mortgages, pledges, liens, hypothecs, charges, security
agreements or other encumbrances or other arrangements that in substance
secure payment or performance of an obligation, statutory and other
non-consensual liens or encumbrances and includes lease, title retention
agreements, restrictions, development or similar agreements,
rights-of-way, title defect, adverse claims or interests, trusts or deemed
trusts, options to acquire or the interests of a vendor or lessor under
any conditional sale agreement or capital lease, and "Lien" means any one
of such Liens.
"OBLIGATIONS" has the meaning specified in Section 2.1.
"PERMITTED LIENS" has the meaning ascribed to such term in the Credit
Agreement.
"PERSON" means any individual, entity or organization, and includes an
individual, a corporation, a partnership, a trust, an unincorporated
organization or association, the government of a country or any political
subdivision thereof, or any agency or department of any such government,
and the executors, administrators or other legal representatives of an
individual in such capacity.
"PLACES OF BUSINESS" means the Borrower's places of business specified in
Section 3.1(g), and "PLACE OF BUSINESS" means any one of them.
"PMSI COLLATERAL" has the meaning specified in Section 2.1.
"PROCEEDS" means all proceeds and personal property in any form derived
directly or indirectly from any dealing with all or any part of the
Secured Property and any insurance or payment that indemnifies or
compensates for such property lost, damaged or destroyed, and proceeds of
proceeds and any part of any such proceeds but shall not include any
customer accounts receivable of the Borrower generated in the ordinary
course of the Borrower's business.
"SECURED PROPERTY" means all of the PMSI Collateral and the property
charged hereunder pursuant to the terms of Section 2.1.
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"SECURITY INTEREST" means the security interest granted under Section 2.1.
1.3 CERTAIN RULES OF INTERPRETATION
In this Agreement:
(a) GOVERNING LAW - This Agreement is a contract made under and shall be
governed by and construed in accordance with the law of the Province
of Ontario and the federal laws of Canada applicable in the Province
of Ontario.
(b) HEADINGS - Headings of Articles and Sections are inserted for
convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
(c) INCLUDING - Where the word "including" or "includes" is used in this
Agreement, it means "including (or includes) without limitation."
(d) NO STRICT CONSTRUCTION- The language used in this Agreement is the
language chosen by the parties to express their mutual intent, and
no rule of strict construction shall be applied against any party.
(e) NUMBER AND GENDER - Unless the context otherwise requires, words
importing the singular include the plural and vice versa and words
importing gender include all genders.
(f) SEVERABILITY - If, in any jurisdiction, any provision of this
Agreement or its application to any party or circumstance is
restricted, prohibited or unenforceable, such provision shall, as to
such jurisdiction, be ineffective only to the extent of such
restriction, prohibition or unenforceability without invalidating
the remaining provisions of this Agreement and without affecting the
validity or enforceability of such provision in any other
jurisdiction or without affecting its application to other parties
or circumstances.
(g) STATUTORY REFERENCES - A reference to a statute includes all
regulations made pursuant to such statute and, unless otherwise
specified, the provisions of any statute or regulation which amends,
supplements, supersedes or succeeds any such statute or any such
regulation.
(h) TIME - Time is of the essence in the performance of the parties'
respective obligations.
(i) REFERENCES TO AGREEMENTS - The term "this Agreement" refers to this
agreement including all schedules, amendments, supplements,
extensions, renewals, replacements, novations or restatements from
time to time, in each case as permitted, and references to
"Articles" or "Sections" means the specified Articles or Sections of
this Agreement.
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(j) PARAMOUNTCY - If there is a conflict, inconsistency, ambiguity or
difference between any provision of this Agreement and the Credit
Agreement, the provisions of the Credit Agreement shall prevail, and
such provision of this Agreement be amended to the extent only to
eliminate any such conflict, inconsistency, ambiguity or difference.
Any right or remedy in this Agreement which may be in addition to
the rights and remedies contained in the Credit Agreement shall not
constitute a conflict, inconsistency, ambiguity or difference.
1.4 ENTIRE AGREEMENT
This Agreement and the Credit Agreement and the other documents required to be
delivered pursuant to this Agreement or the Credit Agreement, constitute the
entire agreement between the parties and set out all the covenants, promises,
warranties, representations, conditions, understandings and agreements between
the parties pertaining to the subject matter of this Agreement and supersede all
prior agreements, understandings, negotiations and discussions, whether oral or
written. There are no covenants, promises, warranties, representations,
conditions, understandings or other agreements, oral or written, express,
implied or collateral between the parties in connection with the subject matter
of this Agreement except as specifically set forth in this Agreement and the
Credit Agreement and any document required to be delivered pursuant to this
Agreement.
ARTICLE 2
SECURITY INTERESTS
2.1 SECURITY INTEREST
As continuing security for the payment of all money now or hereafter owing to
the Lender, pursuant to the provisions of the Credit Agreement (hereinafter,
collectively, the "OBLIGATIONS") the Borrower hereby grants to the Lender a
continuing specific and fixed purchase money security interest in (a) all
tangible personal property, including without limitation, Equipment and
Inventory, for which the giving of value by the Lender shall enable the Borrower
to acquire rights in such tangible personal property and including all
accretions, substitutions, replacements, additions and accessions thereto and
all proceeds thereof (all of the foregoing hereinafter, collectively, the "PMSI
COLLATERAL"), (b) such other tangible personal property, including all
accretions, substitutions, replacements, additions and accessions thereto and
all proceeds thereof, now or hereafter purchased or leased by the Borrower but
only to the extent, in the case of both (a) and (b), that such tangible personal
property is located from time to time on a premise in Canada owned or controlled
by the Lender or any of the Lender's Affiliates, and (c) any licenses, permits
and consents, including any software licenses, of the Borrower that directly
relate to the operation of the assets described in (a) and (b) (which, for the
avoidance of doubt, shall not include any spectrum licenses of the Borrower).
2.2 FIXED NATURE OF SECURITY INTERESTS
The Security Interest is intended to operate as a fixed and specific charge of
all of the Secured Property presently existing, and with respect to all future
Secured Property, to operate as a fixed and specific charge of such future
Secured Property.
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2.3 ATTACHMENT
The Borrower acknowledges that value has been given. The Security Interest is
intended to attach, as to all of the Secured Property, upon the execution by the
Borrower of this Agreement.
2.4 LEASES
The last day of any term reserved by any lease, written or unwritten, or any
agreement to lease, now held or subsequently acquired by the Borrower is
excepted out of the Security Interests. As further security for the payment of
the Obligations, the Borrower agrees that it will stand possessed of the
reversion of such last day of the term and shall hold it in trust for the Lender
for the purpose of this Agreement. The Borrower shall assign and dispose of the
same in such manner as the Lender may from time to time direct in writing
without cost or expense to the Lender. Upon any sale, assignment, sublease or
other disposition of such lease or agreement to lease, the Lender shall, for the
purpose of vesting the residue of any such term in any purchaser, sublessee or
such other acquiror of the lease, agreement to lease or any interest in any of
them, be entitled by deed or other written instrument to assign to such other
person, the residue of any such term in place of the Borrower and to vest the
residue freed and discharged from any obligation whatsoever respecting the same.
2.5 CONSENT
Nothing in this Agreement shall constitute an assignment or attempted assignment
of any contract or agreement which by its provisions or by law is not assignable
or which requires the consent of a third party to its assignment unless such
consent has been obtained. In each such case, the Borrower shall, unless the
Lender otherwise agrees in writing, promptly, upon written request by the
Lender, attempt to obtain the consent of any necessary third party to its
assignment under this Agreement and to its further assignment by the Lender to
any third party as a result of the exercise by the Lender of remedies after
demand. Upon such consent being obtained or waived, this Agreement shall apply
to the applicable contract or agreement without regard to this section and
without the necessity of any further assurance to effect such assignment. Unless
and until the consent to assignment is obtained as provided above, the Borrower
shall, to the extent it may do so at law or pursuant to the provisions of the
contract or interest in question hold all benefit to be derived from such
contracts or agreements in trust for the Lender (including, without limitation,
the Borrower's beneficial interest in any contract or agreement which may be
held in trust for the Borrower by a third party), as additional security for
payment of Obligations and shall deliver up all such benefit to the Lender,
promptly upon demand by the Lender.
ARTICLE 3
BORROWER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender the matters set out below:
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(a) STATUS - The Borrower is a corporation, duly incorporated, and
validly existing under the laws of the jurisdiction of its
incorporation or formation.
(b) AUTHORITY - The Borrower has all necessary corporate power,
authority, and capacity (a) to own its assets; (b) to carry on
business as presently conducted; and (c) to enter into and carry out
its obligations under this Agreement and to grant the Security
Interest.
(c) OWNERSHIP OF SECURED PROPERTY FREE OF CHARGES - The Borrower is the
owner of or has rights in the Secured Property free and clear of all
Liens whatsoever other than the Permitted Liens.
(d) NON-CONFLICT - Neither the execution nor the performance of this
Agreement requires the approval of any regulatory agency having
jurisdiction over the Borrower nor is this Agreement in
contravention of or in conflict with the articles, by-laws or
resolutions of the directors or shareholders of the Borrower or of
the provisions of any agreement to which the Borrower is a party or
by which any of its property may be bound or of any statute,
regulation, by-law, ordinance or other law, or of any judgment,
decree, award, ruling or order to which the Borrower or any of its
property may be subject.
(e) ENFORCEABILITY - This Agreement constitutes a valid and legally
binding obligation of the Borrower enforceable against it in
accordance with its terms subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principles
of equity.
(f) NO OTHER CORPORATE NAMES OR STYLES - The Borrower does not carry on
business under or use any name or style other than the name(s)
specified in this Agreement including, without limitation, any names
in the French language.
(g) CHIEF EXECUTIVE OFFICE - Borrower's chief executive office is
located at:
0000 Xxxx Xxxxxxxxxx Xxxx. XX
Xxxxx 000
Xxxxxxxx, XX 00000
(h) RELIANCE AND SURVIVAL - All representations and warranties of the
Borrower made in this Agreement or in any certificate or other
document delivered by or on behalf of the Borrower to or for the
benefit of the Lender are material, shall survive and shall not
merge upon the execution and delivery of this Agreement and shall
continue in full force and effect. The Lender shall be deemed to
have relied upon such representations and warranties notwithstanding
any investigation made by or on behalf of the Lender at any time.
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3.2 COVENANTS
Unless compliance with the following covenants is waived by the Lender in
writing or unless non-compliance with any such covenants is otherwise consented
to by the Lender in writing, the Borrower covenants and agrees that:
(a) EXISTENCE - It shall: (i) maintain its corporate existence in good
standing under the laws of its jurisdiction of incorporation or
formation; (ii) continue to conduct its business substantially as
now conducted; (iii) do, or cause to be done, all things necessary
to keep in full force and effect all permits and all properties,
rights, franchises, licenses and qualifications to carry on its
business in all jurisdictions where such business is currently being
carried on;
(b) CONDUCT OF BUSINESS - It shall from time to time make, or cause to
be made, all needful and proper repairs, renewals and replacements
to the Secured Property as may be properly advantageous to its
business at all times;
(c) NOTIFICATION TO LENDER -The Borrower shall promptly notify the
Lender of:
(i) CLAIMS AND LIENS - any claim or Lien made or asserted against
any of the Secured Property; and
(ii) PROCEEDINGS - any suit, action or proceeding affecting any of
the Secured Property or which could affect the Borrower;
and the Borrower shall, at its own expense, defend the Secured
Property against any and all such claims, liens, charges, security
interests or other encumbrances and against any and all such suits,
actions or proceedings;
(d) ENCUMBRANCES - The Borrower shall not create, incur, assume, permit
or suffer to exist any Lien, on or with respect to any of the
Secured Property, except for Permitted Liens;
(e) PAYMENT OF OBLIGATIONS - It shall pay and discharge or cause to be
paid and discharged promptly all rents, charges, taxes, rates,
levies, assessments, fees and duties payable by it before any of
them shall become past due which relate to any of the Secured
Property;
(f) MAINTENANCE OF SECURED PROPERTY AND BOOKS - The Borrower shall at
all times keep accurate and complete records of the Secured Property
as well as proper books of account for its business all in
accordance with generally accepted accounting principles,
consistently applied;
(g) RISK AND INSURANCE - The Borrower bears the sole risk of any loss,
damage, destruction or confiscation of or to the Secured Property.
The Borrower shall maintain insurance on all of the Secured Property
with financially sound and reputable insurers including, without
limitation, all-risk property insurance and with such coverage and
against such loss or damage to the full insurable value of
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such property with the Lender as a named insured and with loss
payable to the Lender as its interest may appear. The Borrower shall
also obtain such other insurance coverage as the Lender may
reasonably require from time to time. All such policies of insurance
shall provide that such insurance coverage shall not be changed or
cancelled except on thirty (30) days' notice to the Lender. If the
Borrower fails to so insure, the Lender may insure the Secured
Property and the premiums for such insurance shall be added to the
balance of the Obligations secured under this Agreement as they
exist at the date of the payment of such premium by the Lender;
(h) PROCEEDS IN TRUST - The Borrower shall and shall be deemed to hold
all Proceeds in trust, separate and apart from other money,
instruments or property, for the benefit of the Lender until all
amounts owing by the Borrower to the Lender have been paid in full;
(i) CHANGES AND OTHER NAMES - The Borrower shall not, unless the
Borrower gives the Lender at least thirty (30) days' prior written
notice, (i) change its name as it appears in official filings in the
jurisdiction of its organization; (ii) change its chief executive
office, principal place of business or domicile (within the meaning
of the Civil Code of Quebec); (iii) change the locations at which
Secured Property is held or stored, except for the addition of new
locations in Canada that are owned or controlled by the Lender or
any of the Lender's Affiliates; (iv) change the type of entity that
it is; (v) change its jurisdiction of incorporation or organization;
and
(j) NO AFFECTING THE SECURITY - The Borrower shall not do, permit or
suffer to be done anything to adversely affect the ranking or
validity of the Security Interest.
ARTICLE 4
RIGHT TO DEAL
4.1 BORROWER'S RIGHTS BEFORE DEFAULT
Until the occurrence of an Event of Default and subject to the terms of this
Agreement and the Credit Agreement, the Borrower is entitled to deal with the
Secured Property in the ordinary course of business, provided that no such
action shall be taken which would impair the effectiveness of the Security
Interests created by this Agreement or the value of the Secured Property or
which would be inconsistent with or violate the provisions of this Agreement,
the Credit Agreement or any other written agreement between the Lender and the
Borrower.
ARTICLE 5
DEFAULT
5.1 DEFAULT
The Borrower shall be in default under this Agreement upon the occurrence of an
Event of Default.
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ARTICLE 6
REMEDIES
6.1 LENDER'S RIGHTS AND REMEDIES
If any Event of Default shall occur, all of the Obligations shall, at the
Lender's option, become immediately due and payable and the Lender may, in its
discretion, proceed to enforce payment and performance of the Obligations and to
exercise any or all of the rights and remedies contained in this Agreement, or
otherwise afforded by law, in equity or otherwise. The Lender shall have the
right to enforce one or more remedies successively or concurrently in accordance
with applicable law and the Lender expressly retains all rights and remedies not
inconsistent with the provisions in this Agreement including all the rights it
may have under the PPSA. Without limitation, the Lender may, upon the occurrence
of any Event of Default and to the extent permitted by applicable law:
(a) APPOINTMENT OF RECEIVER - Appoint by instrument in writing a
receiver (which term shall include a receiver and manager or agent)
of the Borrower and of all or any part of the Secured Property and
remove or replace such receiver from time to time or may institute
proceedings in any court of competent jurisdiction for the
appointment of a receiver. Any such receiver appointed by the
Lender, with respect to responsibility for its acts, shall, to the
extent permitted by applicable law, be deemed the agent of the
Borrower and not of the Lender. Where the "LENDER" is referred to in
this Article the reference includes, where the context permits, any
receiver so appointed and the officers, employees, servants or
agents of such receiver;
(b) RETAIN THE COLLATERAL - Retain and administer the Secured Property
in the Lender's sole and unfettered discretion, which discretion the
Borrower acknowledges is commercially reasonable;
(c) DISPOSE OF THE COLLATERAL - Dispose of any Secured Property by
public auction, private tender or private contract with or without
notice, advertising or any other formality, all of which are waived
by the Borrower to the extent permitted by law. The Lender may, to
the extent permitted by law, at its discretion, establish the terms
of such disposition, including, without limitation, terms and
conditions as to credit, upset, reserve bid or price. All payments
made pursuant to such dispositions shall be credited against the
Obligations only as they are actually received. The Lender may, to
the extent permitted by law, enter into, rescind or vary any
contract for the disposition of any Secured Property and may dispose
of any Secured Property again without being answerable for any
related loss. Any such disposition may take place whether or not the
Lender has taken possession of the Secured Property;
(d) FORECLOSURE - Foreclose upon the Secured Property;
(e) POWER OF ATTORNEY - Upon the occurrence, and during the continuance
of, an Event of Default, the Borrower constitutes and appoints the
Lender from time to
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time, or any receiver of the Borrower appointed as provided for in
this Agreement, the true and lawful attorney of the Borrower
irrevocably with full power of substitution to do, make and execute
all such documents, acts, matters or things with the right to use
the name of the Borrower whenever and wherever it may be deemed
necessary or expedient in connection with the exercise of its rights
and remedies set forth in this Agreement. Without limitation, the
Lender or its agent is authorized to sign any financing statements
and similar forms which may be necessary or desirable to perfect the
Security Interest in any jurisdiction on behalf of the Borrower. The
Borrower declares that the irrevocable power of attorney granted in
this Agreement, being coupled with an interest, is given for
valuable consideration;
(f) PAYMENT OF ENCUMBRANCES - Pay any encumbrance, lien, claim or charge
that may exist or be threatened against the Secured Property, and
any amount so paid together with costs, charges and expenses
incurred shall be added to the Obligations;
(g) PAYMENT OF DEFICIENCY - If the proceeds of realization are
insufficient to pay all monetary Obligations, the Borrower shall
forthwith pay or cause to be paid to the Lender any deficiency and
the Lender may xxx the Borrower to collect the amount of such
deficiency; and
(h) DEALING WITH SECURED PROPERTY - Subject to applicable law, seize,
collect, realize, borrow money on the security of, release to third
parties, sell (by way of public or private sale), lease or otherwise
deal with the Secured Property in such manner, upon such terms and
conditions, at such time or times and place or places and for such
consideration as may seem to the Lender advisable and without notice
to the Borrower. The Lender may charge on its own behalf and pay to
others sums for expenses incurred and for services rendered
(expressly including without limitation, legal, consulting, broker,
management, receivership and accounting fees) in or in connection
with seizing, collecting, realizing, borrowing on the security of,
selling or obtaining payment of the Secured Property and may add all
such sums to the Obligations.
6.2 ALLOCATION OF PROCEEDS
All monies collected or received by the Lender in respect of the Secured
Property may be held by the Lender and, if so held, may be applied on account of
such parts of the Obligations at the sole discretion of the Lender.
6.3 WAIVERS AND EXTENSIONS
The Lender may waive default or any breach by the Borrower of any of the
provisions contained in this Agreement. No waiver shall extend to a subsequent
breach or default, whether or not the same as or similar to the breach or
default waived and no act or omission of the Lender shall extend to or be taken
in any manner whatsoever to affect any subsequent breach or default of the
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Borrower or the rights of the Lender resulting therefrom. Any such waiver must
be in writing and signed by the Lender to be effective.
The Lender may also grant extensions of time and other indulgences, take and
give up securities, accept compositions, grant releases and discharges, release
the Secured Property to third parties and otherwise deal with the Borrower's
guarantors or sureties and others and with the Secured Property and other
securities as the Lender may see fit without prejudice to the liability of the
Borrower to the Lender, or the Lender's rights, remedies and powers under this
Agreement. No extension of time, forbearance, indulgence or other accommodation
now, heretofore or hereafter given by the Lender to the Borrower shall operate
as a waiver, alteration or amendment of the rights of the Lender or otherwise
preclude the Lender from enforcing such rights.
6.4 REMEDIES CUMULATIVE AND WAIVERS
For greater certainty, it is expressly understood and agreed that the rights and
remedies of the Lender under this Agreement are cumulative and are in addition
to and not in substitution for any rights or remedies provided by law or equity;
and any single or partial exercise by the Lender of any right or remedy for a
default or breach of any term, covenant, condition or agreement contained in
this Agreement shall not be deemed to be a waiver of, or to alter, affect or
prejudice, any other right or remedy to which of the Lender may be lawfully
entitled for such default or breach. Any waiver by the Lender of the strict
observance, performance or compliance with any term, covenant, condition or
other matter contained in this Agreement and any indulgence granted, either
expressly or by course of conduct by the Lender shall be effective only in the
specific instance and for the purpose for which it was given and shall be deemed
not to be a waiver of any right or remedy of the Lender under this Agreement as
a result of any other default or breach under this Agreement.
6.5 EFFECT OF POSSESSION OR RECEIVER
As soon as the Lender takes possession of any Secured Property or appoints a
receiver in accordance with applicable law, all powers, functions, rights and
privileges of the Borrower and the directors and officers of the Borrower with
respect to the Secured Property shall cease, unless specifically continued by
the written consent of the Lender or the receiver.
6.6 LIMITATION OF LIABILITY
The Lender shall not be liable or accountable:
(a) by reason of any entry into or taking possession of all or any of
the Secured Property, to account as mortgagee in possession or for
anything except actual receipts, or for any loss on realization or
any act or omission for which a secured party in possession might be
liable; or
(b) for any failure to exercise its remedies, take possession of, seize,
collect, realize, sell, lease or otherwise dispose of or obtain
payment for the Secured Property and shall not be bound to institute
proceedings for such purposes or for the purpose of preserving any
rights, remedies or powers of the Lender, the Borrower or any other
person in respect of same.
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The Lender shall not by virtue of these presents be deemed to be a mortgagee in
possession of the Secured Property. The Borrower releases and discharges the
Lender and the receiver from every claim of every nature, whether sounding in
damages or not, which may arise or be caused to the Borrower or any person
claiming through or under the Borrower by reason or as a result of anything done
by the Lender or any successor or assign claiming through or under the Lender or
the receiver under the provisions of this Agreement unless such claim be the
result of dishonesty or gross neglect.
ARTICLE 7
GENERAL
7.1 EXPENSES
The Borrower shall pay all reasonable costs and expenses (including the
reasonable fees and disbursements of legal counsel and other advisors) incurred
by the Lender arising in connection with the realization, disposition,
retention, protection or collection of any Secured Property and the protection
or enforcement of the rights, remedies and powers of the Lender or any receiver
and those incurred for perpetual registration of any financing statement
registered in connection with the Security Interests. All amounts for which the
Borrower is required under this Agreement to reimburse the Lender or any
receiver shall, from the date of disbursement until the date the Lender or the
receiver receives reimbursement, be deemed advanced to the Borrower by the
Lender, shall be deemed to be Obligations secured hereby and shall bear interest
at the highest rate per annum charged by the Lender on any of the other
Obligations.
In particular, the Borrower agrees to indemnify and save the Lender harmless
from all reasonable legal fees and disbursements incurred by the Lender in
connection with any enforcement of rights and remedies under this Agreement.
This indemnity is independent of and in addition to any right which the Lender
may have to seek recovery of costs in any litigation which results in respect of
this Agreement and is intended to ensure that the Lender is fully reimbursed for
one-hundred percent (100%) of the fees and disbursements which may be reasonably
incurred by it and its legal counsel.
7.2 NOTICES
Any notice, consent or approval required or permitted to be given in connection
with this Agreement (in this Section referred to as a "NOTICE") shall be in
writing and shall be sufficiently given if delivered (whether in person, by
courier service or other personal method of delivery), or if transmitted by
facsimile or e-mail:
(a) in the case of a Notice to the Borrower at:
0000 Xxxx Xxxxxxxxxx Xxxx. XX
Xxxxx 000
Xxxxxxxx, XX 00000 XXX
Attention: Xxxxxxxx Xxxxx
Fax: (000) 000-0000
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With a copy to:
Attention: Law Department
Fax: (000)000-0000
And with a copy to:
Xxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000 XXX
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
(b) in the case of a Notice to the Lender at:
Xxxx Canada
1000, rue de La Gauchetiere Quest
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Chief Legal Officer
Fax: (000) 000-0000
Any Notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given when
received; any Notice, if transmitted by facsimile, shall be deemed given when
the confirmation of transmission thereof is received by the transmitter.
Any party may, from time to time, change its address by giving Notice to the
other party in accordance with the provisions of this Section.
7.3 AMENDMENT
No amendment, supplement, modification or waiver or termination of this
Agreement and, unless otherwise specified, no consent or approval by any party,
shall be binding unless executed in writing by the party to be bound.
7.4 ENUREMENT
This Agreement shall be binding on the Borrower, and its successors (including
any successor by reason of amalgamation) and permitted assigns as determined by
the provisions of the Credit Agreement and enure to the benefit of the Lender
and its successors (including any successor by reason of amalgamation) and
assigns.
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7.5 FURTHER ASSURANCES
The Borrower shall at all times do all such things and provide all such
reasonable assurances as may be required to consummate the transactions
contemplated by this Agreement, and shall provide such further documents or
instruments required by the Lender as may be reasonably necessary or desirable
to effect the purpose of this Agreement and carry out its provisions, and for
the better granting, transferring, assigning, charging, setting over, assuring,
confirming or perfecting the Security Interest and the priority accorded to them
by law or under this Agreement.
7.6 EXECUTION AND DELIVERY
This Agreement may be executed by the parties in counterparts and may be
executed and delivered by facsimile and all such counterparts and facsimiles
shall together constitute one and the same agreement.
The Borrower acknowledges receiving a copy of this Agreement, and further agrees
that a carbon, photographic, photostatic or other reproduction of this Agreement
or of a financing statement is sufficient as a financing statement.
7.7 SECURITY INTERESTS EFFECTIVE IMMEDIATELY
Neither the execution of, nor any filing with respect to, this Agreement shall
obligate the Lender to make any advance or loan or further advance, or bind the
Lender to grant or extend any credit to the Borrower, but the Security Interests
shall take effect forthwith upon the execution of this Agreement by the
Borrower.
7.8 STATUTORY WAIVERS
To the fullest extent permitted by law, the Borrower waives all of the rights,
benefits and protections given by the provisions of any existing or future
statute which imposes limitations upon the powers, rights or remedies of a
Lender or upon the methods of realization of security, including any seize or
xxx or anti-deficiency statute or any similar provisions of any other statute.
7.9 REASONABLENESS
The Borrower acknowledges that the provisions of this Agreement and, in
particular, those respecting rights, remedies and powers of the Lender and any
receiver against the Borrower, its business and any Secured Property upon the
occurrence of an Event of Default, are commercially reasonable and not
manifestly unreasonable.
7.10 DISCHARGE
Upon payment and performance by the Borrower of the Obligations, the Lender
shall upon request in writing by the Borrower deliver up this Agreement to the
Borrower and shall at the expense of the Borrower cancel and discharge the
Security Interests and execute and deliver to the Borrower such documents as
shall be requisite to discharge the Security Interests.
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IN WITNESS OF WHICH the Borrower has duly executed this Agreement.
CLEARWIRE CORPORATION
By: /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
I/We have authority to bind the Corporation.
