[EXECUTION COPY]
AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT
THIS AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT (this "Agreement") is
made and entered into as of September 27, 1996 by GEOTEK FINANCING CORPORATION,
a Delaware corporation, having its principal office at c/o Geotek
Communications, Inc., 00 Xxxxx Xxxx, Xxxxxxxx, XX 00000 (the "Pledgor"), in
favor of XXXXXX NETWORK SYSTEMS, INC., a Delaware corporation, having an office
at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000 ("HNS"), for itself and as
collateral agent for the benefit of the Lenders (as defined below) (in such
capacity, the "Collateral Agent") and AMENDS AND RESTATES IN FULL the Borrower
Pledge Agreement dated as of December 21, 1995, among the Pledgor and HNS, as
lender (HNS, together with its successors and assigns, referred to collectively
as the "Loan Agreement Lenders") (the "Original Pledge Agreement").
W I T N E S S E T H:
WHEREAS, the Pledgor, Geotek Communications, Inc., as guarantor (the
"Guarantor") and HNS (HNS, together with its successors and assigns and the
other Lenders described in the Financing Agreement referred to collectively as
the "Financing Agreement Lenders" and, together with the Loan Agreement Lenders,
referred to collectively as the "Lenders") have entered into a Vendor Credit
Financing Agreement of even date herewith (as amended or otherwise modified from
time to time, the "Financing Agreement") pursuant to which the Financing
Agreement Lenders have agreed to make Advances (as defined therein) to the
Pledgor as evidenced by the Notes (as defined therein). Capitalized terms used
herein and not otherwise defined herein shall have the meanings given to such
terms in the Financing Agreement;
WHEREAS, pursuant to the Original Pledge Agreement, the Pledgor pledged to
the Loan Agreement Lenders all of the Pledgor's right, title and interest in and
to the outstanding shares of stock set forth on Schedule I hereto (the "Pledged
Shares") and those certain inter-company promissory notes in favor of the
Pledgor set forth on Schedule II hereto (the "Pledged Notes" and, together with
the Pledged Shares, the "Pledged Securities") as collateral for all obligations
of the Pledgor (the "Loan Agreement Obligations") under that certain Loan
Agreement, dated as of December 21, 199(5) (the "Loan Agreement"), among the
Pledgor, the Guarantor and HNS, as evidenced by the promissory notes executed
and delivered to any Loan Agreement Lender by the Pledgor in connection with the
Loan Agreement (the "Loan Agreement Notes" and, together with the Notes, the
"Secured Notes");
WHEREAS, the Financing Agreement Lenders have required, as a
condition to their entering into the Financing Agreement, that the Pledgor grant
to the Collateral Agent, for its benefit and the ratable benefit of the
Financing Agreement Lenders, a security interest in the Pledged Securities to
secure the Obligations, such security interest to be shared equally and ratably
with the Loan Agreement Lenders; and
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WHEREAS, the Loan Agreement Lenders are willing to share their security
interest in the Pledged Securities equally and ratably with the Financing
Agreement Lenders.
AGREEMENT
NOW THEREFORE, in consideration of the premises and in order to induce the
Financing Agreement Lenders to make the Advances under the Financing Agreement
and the Loan Agreement Lenders to make the loans under the Loan Agreement, the
Pledgor hereby agrees with the Collateral Agent as follows:
SECTION 1. PLEDGE. The Pledgor hereby pledges to the Collateral Agent, for
its benefit and the ratable benefit of the Lenders, and grants to the Collateral
Agent, for its benefit and the ratable benefit of the Lenders, a continuing
first priority perfected security interest in, the following (the "Pledged
Collateral"):
(a) the Pledged Shares and the certificates representing the Pledged
Shares, and all products and proceeds of any of the Pledged Shares
including, without limitation, all dividends, cash, instruments,
subscriptions, warrants and any other rights and options and other property
from time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of the Pledged Shares; and
(b) all additional shares of stock of, or equity interests in,
Holdings from time to time acquired by the Pledgor in any manner, and the
certificates representing such additional shares (any such additional
shares shall constitute part of the Pledged Shares under and as defined in
this Agreement), and all products and proceeds of any of such additional
Pledged Shares, including, without limitation, all dividends, cash,
instruments, subscriptions, warrants and any other rights and options and
other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such additional
Pledged Shares; and
(c) the Pledged Notes and the instruments representing the Pledged
Notes, and all products and proceeds of the Pledged Notes, including,
without limitation, all interest and principal payments, instruments, and
other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for the Pledged Notes; and
(d) all additional promissory notes of Holdings from time to time held
by the Pledgor in any manner, and the instruments representing such
additional promissory notes (any such additional promissory notes shall
constitute part of the Pledged Notes under and as defined in this
Agreement) and all products and proceeds of any such additional promissory
notes, including, without limitation, all interest and principal payments,
instruments, and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any such additional
promissory notes; and
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(e) all other claims of any kind or nature and any instruments,
certificates, chattel paper or other writings evidencing such claims,
whether in contract or tort and whether arising by operation of law,
consensual agreement or otherwise, at any time acquired by the Pledgor
against any Subsidiary of the Pledgor.
SECTION 2. SECURITY FOR SECURED OBLIGATIONS. This Agreement secures the
payment of all of the Obligations and the Loan Agreement Obligations
(collectively, the "Secured Obligations"), whether for principal, interest,
fees, expenses or otherwise, and all obligations of the Pledgor now or hereafter
existing under this Agreement (including, without limitation, all expenses as
set forth under Section 16 hereof), any of the Loan Documents (as defined by the
Loan Agreement, the "Loan Documents") or any of the Financing Documents (the
Secured Obligations and all such obligations of the Pledgor now or hereafter
existing under this Agreement being referred to herein as the "Liabilities").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. All certificates or instruments
representing or evidencing the Pledged Collateral shall be delivered to and held
by the Collateral Agent, for its benefit and the ratable benefit of the Lenders,
pursuant hereto and shall be in suitable form for transfer by delivery, or shall
be accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance satisfactory to the Collateral Agent.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants as follows:
(a) The Pledged Shares have been duly authorized and validly issued
and are fully paid and non-assessable. The Pledged Notes have been duly
authorized and executed by Holdings and constitute the legal, valid and
binding obligations of Holdings.
(b) The Pledgor is the legal and beneficial owner of the Pledged
Collateral, free and clear of any Lien on the Pledged Collateral, except as
expressly permitted in the Loan Agreement and the Financing Agreement.
(c) (i) Upon the delivery to the Collateral Agent of the Pledged
Collateral, the pledge of the Pledged Collateral pursuant to this Agreement
creates in favor of the Collateral Agent, for its benefit and the ratable
benefit of the Lenders, a valid and perfected first priority security
interest in such Pledged Collateral securing the payment of the Liabilities
and (ii) the valid and perfected first priority status of the pledge by the
Pledgor of the Pledged Collateral pursuant to the Original Pledge Agreement
shall continue uninterrupted and unaffected.
(d) Except as otherwise provided in Sections 14 and 15 hereof and
except for those obtained prior to the date hereof, no authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required either (i) for the
pledge by the Pledgor of the Pledged Collateral pursuant to this Agreement
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or for the execution, delivery or performance of this Agreement by the
Pledgor or (ii) for the exercise by the Collateral Agent, for its benefit
and the ratable benefit of the Lenders, of the voting or other rights
provided for in this Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Agreement.
(e) The Pledgor has full power and authority to enter into this
Agreement and has the right to vote, pledge and grant a security interest
in the Pledged Shares and to pledge and grant a security interest in the
Pledged Notes as provided by this Agreement.
(f) This Agreement has been duly authorized, executed and delivered by
the Pledgor and constitutes a legal, valid and binding obligation of the
Pledgor, enforceable against the Pledgor in accordance with its terms,
except as such enforceability may be limited by the effect of any
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally or
general principles of equity (whether considered at law or in equity).
(g) The Pledged Shares constitute, as of the date hereof, all of the
outstanding shares of Capital Stock and voting securities of Holdings
beneficially owned by the Pledgor.
(h) The Pledged Notes listed on Schedule II hereto constitute the only
promissory notes of Holdings in favor of the Pledgor as of the date hereof.
(i) Except for the Pledged Securities, there are no other instruments,
certificates, securities or other writings, or any chattel paper,
evidencing or representing any interest in or claim against Holdings or any
subsidiary of Holdings, other than the guarantee given by Holdings pursuant
to the 1995 Indenture, as permitted by the Loan Agreement.
SECTION 5. FURTHER ASSISTANCE. The Pledgor agrees that at any time and from
time to time, at the expense of the Pledgor, the Pledgor will promptly execute
and deliver, or cause to be executed and delivered, all stock powers, note
powers, proxies, assignments, instruments and documents and take all further
action, that is reasonably necessary, at the Collateral Agent's request, in
order to perfect any security interest granted or purported to be granted hereby
or to enable the Collateral Agent, for its benefit and the ratable benefit of
the Lenders, to exercise and enforce its rights and remedies hereunder with
respect to any Pledged Collateral and to carry out the provisions and purposes
hereof.
SECTION 6. VOTING RIGHTS; DIVIDENDS; ETC.
(a) Notwithstanding the pledge of the Pledged Shares set forth in
Section 1 hereof, so long as no Default as defined in the Loan Agreement (a
"Loan Agreement Default") or Default as defined in the Financing Agreement
(a "Financing Agreement Default" and, any Financing Agreement Default or
Loan Agreement Default being referred to collectively herein as a
"Default") shall have occurred and be continuing, the Pledgor shall be
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entitled to exercise any and all voting and other consensual rights
pertaining to the Pledged Shares or any part thereof for any purpose not
inconsistent with the terms of this Agreement, any of the Loan Documents or
any of the Financing Documents; provided, however, that the Pledgor shall
not exercise or shall refrain from exercising any such right if such action
would have a material adverse effect on the value of the Pledged Collateral
to the Lenders or any part thereof or be inconsistent with or violate any
provisions of this Agreement, any of the Loan Documents or any of the
Financing Documents.
(b) Notwithstanding the pledge of the Pledged Notes set forth in
Section 1 hereof, so long as no Default shall have occurred and be
continuing, the Pledgor shall be entitled to receive all cash payments of
interest and principal paid from time to time with respect to the Pledged
Notes.
(c) Notwithstanding the pledge of the Pledged Shares set forth in
Section 1 hereof, so long as no Default shall have occurred and be
continuing, the Pledgor shall be entitled to receive all cash dividends
paid from time to time in respect of the Pledged Shares.
(d) Any and all (i) dividends or other distributions and interest or
principal paid or payable in the form of instruments and other property
(other than cash interest and principal payments permitted under Section
6(b) hereof and cash dividends permitted under Section 6(c) hereof)
received, receivable or otherwise distributed in respect of, or in exchange
for, any Pledged Collateral, (ii) dividends and other distributions paid or
payable in cash received, receivable or otherwise distributed in respect of
any Pledged Shares 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 (iii) cash paid, payable or otherwise distributed
in redemption of, or in exchange for, any Pledged Shares, shall in each
case be delivered forthwith to the Collateral Agent to hold, for its
benefit and the ratable benefit of the Lenders, as Pledged Collateral and
shall, if received by the Pledgor, be received in trust for the Collateral
Agent, for its benefit and the ratable benefit of the Lenders, be
segregated from the other property or funds of the Pledgor, and be
forthwith delivered to the Collateral Agent as Pledged Collateral in the
same form as so received (with any necessary endorsement).
(e) The Collateral Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to exercise the voting and other rights which it is
entitled to exercise pursuant to Section 6(a) above and to receive
dividends and distributions pursuant to Sections 6(b) and 6(c) above.
(f) All dividends or other distributions and all interest and
principal payments which are received by the Pledgor contrary to the
provisions of this Section 6 shall be received in trust for the Collateral
Agent, for its benefit and the ratable benefit of the Lenders, shall be
segregated from other funds of the Pledgor and shall be forthwith paid over
to the Collateral Agent as Pledged Collateral in the same form as so
received (with any necessary endorsement).
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(g) Upon the occurrence and during the continuance of a Default, all
rights of the Pledgor to exercise the voting and other consensual rights
which it would otherwise be entitled to exercise pursuant to Section 6(a)
shall cease, and all such rights shall become vested in the Collateral
Agent, for its benefit and the ratable benefit of the Lenders, which shall
thereupon have the sole right to exercise such voting and other consensual
rights.
(h) Upon the occurrence and during the continuance of a Default, all
cash payments of interest and principal with respect to the Pledged Notes
and all cash dividends or other distributions payable in respect of the
Pledged Shares shall be paid directly to the Collateral Agent and, if
received by the Pledgor, shall be received in trust for the Collateral
Agent, for its benefit and the ratable benefit of the Lenders, shall be
segregated from other funds of the Pledgor, and shall be forthwith paid
over to the Collateral Agent as Pledged Collateral in the same form as so
received (with any necessary endorsement) and the Pledgor's right to
receive such cash payments pursuant to Sections 6(b) and 6(c) hereof shall
immediately cease.
SECTION 7. TRANSFERS AND OTHER LIENS; ADDITIONAL SHARES.
(a) The Pledgor agrees that it will not (i) sell or otherwise dispose
of, or grant any option with respect to, any of the Pledged Collateral
without the prior written consent of the Collateral Agent, (ii) create or
permit to exist any Lien upon or with respect to any of the Pledged
Collateral, except for the security interest granted under this Agreement
or (iii) enter into any agreement or understanding that purports to or may
restrict or inhibit the Collateral Agent's rights or remedies hereunder,
including, without limitation, the Collateral Agent's right to sell or
otherwise dispose of the Pledged Collateral.
(b) The Pledgor agrees that it will pledge and deliver to the
Collateral Agent hereunder, immediately upon its acquisition (directly or
indirectly) thereof, any and all additional shares of stock, notes or other
securities of Holdings of which the Pledgor may become the beneficial owner
after the date hereof.
SECTION 8. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
appoints the Collateral Agent the Pledgor's attorney-in-fact, with full
authority in the place and stead of the Pledgor and in the name of the Pledgor
or otherwise, from time to time in the Collateral Agent's discretion to take any
action and to execute any instrument which the Collateral Agent may deem
necessary or advisable to further perfect and protect the security interest
granted hereby, including, without limitation, to receive, endorse and collect
all instruments made payable to the Pledgor representing any dividend, interest
or principal payment or other distribution in respect of the Pledged Collateral
or any part thereof and to give full discharge for the same. This power of
attorney is coupled with an interest and is irrevocable by the Pledgor. The
Pledgor hereby ratifies all that the Collateral Agent shall lawfully do or cause
to be done by virtue of this Section 8.
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SECTION 9. COLLATERAL AGENT MAY PERFORM. If the Pledgor fails to perform
any agreement contained herein, the Collateral Agent may itself perform, or
cause performance of, such agreement, and the reasonable expenses of the
Collateral Agent incurred in connection therewith shall be payable by the
Pledgor under Section 16 hereof.
SECTION 10. NO ASSUMPTION OF DUTIES; REASONABLE CARE. The rights and powers
granted to the Collateral Agent hereunder are being granted in order to preserve
and protect the Collateral Agent's security interest in and to the Pledged
Collateral granted hereby and shall not be interpreted to, and shall not, impose
any duties on the Collateral Agent or any of the Lenders to the Pledgor in
connection therewith. The Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in its
possession if the Pledged Collateral is accorded treatment substantially equal
to that which the Collateral Agent accords its own property, it being understood
that the Collateral Agent shall not have any responsibility for (i) ascertaining
or taking action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Pledged Collateral, whether or not the
Collateral Agent or any of the Lenders has or is deemed to have knowledge of
such matters, or (ii) taking any necessary steps to preserve rights against any
parties with respect to any Pledged Collateral.
SECTION 11. SUBSEQUENT CHANGES AFFECTING PLEDGED COLLATERAL. The Pledgor
represents to the Collateral Agent that the Pledgor has made its own
arrangements for keeping informed of changes or potential changes affecting the
Pledged Collateral (including, but not limited to, rights to convert, rights to
subscribe, payment of dividends, payments of interest and/or principal,
reorganization or other exchanges, tender offers and voting rights), and the
Pledgor agrees that the Collateral Agent and the Lenders shall have no
responsibility or liability for informing the Pledgor of any such changes or
potential changes or for taking any action or omitting to take any action with
respect thereto. The Pledgor covenants that it will not, without the prior
written consent of the Collateral Agent, sell or otherwise dispose of, or grant
any option with respect to, any of the Pledged Collateral or create or permit to
exist any Lien upon or with respect to any of the Pledged Collateral, except for
Permitted Liens (as defined in each of the Loan Agreement and the Financing
Agreement).
SECTION 12. REMEDIES UPON DEFAULT. If any Default shall have occurred and
be continuing, the Collateral Agent shall, in addition to all other rights given
by law or by this Agreement, any of the Loan Documents, any of the Financing
Documents, or otherwise, but subject to Sections 14 and 15 of this Agreement,
have all of the rights and remedies with respect to the Pledged Collateral of a
secured party under the Uniform Commercial Code in effect in the State of New
York at that time and the Collateral Agent (personally or through an agent) may,
without notice and at its option, transfer or register, and the Pledgor shall
register or cause to be registered upon request therefor by the Collateral
Agent, the Pledged Collateral or any part thereof on the books of Holdings into
the name of the Collateral Agent or the Collateral Agent's nominee(s),
indicating that such Pledged Collateral is subject to the security interest
hereunder. In addition, with respect to any Pledged Collateral which shall then
be in or shall thereafter come into the possession or custody of the Collateral
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Agent, the Collateral Agent (personally or through an agent) may sell or cause
the same to be sold at any broker's board or at any public or private sale, in
one or more sales or lots, at such price or prices as the Collateral Agent may
deem best, for cash or on credit or for future delivery, without assumption of
any credit risk, all in accordance with the terms and provisions of this
Agreement, the Loan Agreement and the Financing Agreement. The purchaser of any
or all Pledged Collateral so sold shall thereafter hold the same absolutely,
free from any claim, encumbrance or right of any kind whatsoever. Unless any of
the Pledged Collateral threatens to decline speedily in value or is or becomes
of a type sold on a recognized market, the Collateral Agent will give the
Pledgor reasonable notice of the time and place of any public sale thereof, or
of the time after which any private sale or other intended disposition is to be
made. Any sale of the Pledged Collateral conducted in conformity with reasonable
commercial practices of lenders in general disposing of property similar to the
Pledged Collateral shall be deemed to be commercially reasonable. Any
requirements of reasonable notice shall be met if such notice is mailed to the
Pledgor as provided in Section 19.1 below, at least fifteen (15) days before the
time of the sale or disposition. Any other requirement of notice, demand or
advertisement for sale is, to the extent permitted by law, waived. The
Collateral Agent may, for its benefit and the ratable benefit of the Lenders,
buy any of the Pledged Collateral at any public sale and, if permitted by
applicable law, at any private sale. All expenses (including court costs and
reasonable attorneys' fees, expenses and disbursements) of, or incident to, the
enforcement of any of the provisions hereof shall be recoverable from the
proceeds of the sale or other disposition of the Pledged Collateral.
In addition, upon the occurrence and during the continuance of a Default,
all rights of the Pledgor to exercise the voting and other rights which it would
otherwise be entitled to exercise shall cease, and all such rights shall
thereupon become vested in the Collateral Agent, for its benefit and the ratable
benefit of the Lenders, as provided in and subject to the terms of Section 6(g)
hereof.
SECTION 13. DISTRIBUTION OF PROCEEDS UPON DEFAULT. Upon the sale or other
disposition of any Pledged Collateral pursuant to Section 12 hereof, the
proceeds of such sale or other disposition shall be applied by the Collateral
Agent in the following order of priority:
(a) first, to the reasonable, out-of-pocket costs and expenses of the
Collateral Agent incurred in connection with the performance of its duties
under this Agreement;
(b) second, to the Lenders pro rata based on their respective
Outstanding Balance Shares (as defined below) until payment in full of all
Liabilities; and
(c) third, delivered to the Pledgor.
"Outstanding Balance Share" means a fraction (expressed as a percentage),
the numerator of which shall be the aggregate of the outstanding principal
amount of the Secured Notes held by such Lender and the denominator of which
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shall be the aggregate outstanding principal amount of all Secured Notes.
For the avoidance of doubt, none of the proceeds of such sale or other
disposition shall be distributed to the Lenders pursuant to Section 13(b) hereof
until the Collateral Agent has received full payment for all expenses incurred
by it in connection with the performance of its duties under this Agreement and
none of the proceeds of such sale or other disposition shall be distributed to
the Pledgor under Section 13(c) hereof until all of the Liabilities have been
paid in full.
SECTION 14. REGISTRATION RIGHTS; PRIVATE SALES.
(a) If the Collateral Agent shall, for its benefit and the ratable
benefit of the Lenders, determine to exercise its right to sell any or all
of the Pledged Shares pursuant to Section 12 hereof, and if in the opinion
of the Collateral Agent it is necessary or advisable to have the Pledged
Shares, or that portion thereof to be sold, registered under the provisions
of the Securities Act, the Pledgor will use its commercially reasonable
efforts to cause Holdings to (1) execute and deliver, and cause the
directors and officers of Holdings to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts
as may be, in the opinion of the Collateral Agent, necessary or advisable
to register the Pledged Shares, or that portion thereof to be sold, under
the provisions of the Securities Act, (2) to use its commercially
reasonable efforts to cause the registration statement relating thereto to
become effective and to remain effective for a period of one year from the
date of the first public offering of the Pledged Shares, or that portion
thereof to be sold, and (3) to make all amendments thereto and/or to the
related prospectus which, in the opinion of the Collateral Agent, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Commission applicable
thereto. The Pledgor agrees to use its commercially reasonable efforts to
cause Holdings to comply with the provisions of the securities or "Blue
Sky" laws of any and all jurisdictions which the Collateral Agent shall
designate and to make available to the Collateral Agent and its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.
(b) The Pledgor recognizes that the Collateral Agent may be unable to
effect a public sale of any or all the Pledged Shares, by reason of certain
prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be
obliged to agree, among other things, to acquire such securities for their
own account for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges and agrees that any such private
sale may result in prices and other terms less favorable than if such sale
were a public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially
reasonable manner. The Collateral Agent shall be under no obligation to
delay a sale of any of the Pledged Shares for the period of time necessary
to permit Holdings to register such securities for public sale under the
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Securities Act, or under applicable state securities laws, even if Holdings
would agree to do so.
(c) The Pledgor further agrees to use its commercially reasonable
efforts to do or cause to be done all such other acts as may be necessary
to make such sale or sales of all or any portion of the Pledged Shares
pursuant to this Section valid and binding and in compliance with any and
all other applicable requirements of law. The Pledgor further agrees that a
breach of any of the covenants contained in this Section will cause
irreparable injury to the Lenders, that the Lenders have 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 the Pledgor, and the Pledgor 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.
SECTION 15. FCC MATTERS.
(a) If a Default shall have occurred and be continuing, the Pledgor
shall take any action which the Collateral Agent may request in the
exercise of its rights and remedies under this Agreement to transfer and
assign to the Collateral Agent, or to such one or more third parties as the
Collateral Agent may designate, or to a combination of the foregoing, the
Pledged Collateral. To enforce the provisions of this Section 15, the
Collateral Agent is hereby empowered to seek from the FCC an involuntary
transfer of control of Holdings for the purpose of seeking a bona fide
purchaser to whom control will ultimately be transferred. If a Default
shall have occurred and be continuing, the Pledgor hereby agrees to
authorize such an involuntary transfer of control upon the request of the
Collateral Agent. Upon the occurrence and continuation of a Default, the
Pledgor shall use its commercially reasonable efforts to assist in
obtaining approval of the FCC, if required, for any action or transactions
contemplated by this Agreement, including, without limitation, the
preparation, execution and filing with the FCC of the Pledgor's portion of
any application or applications for consent to transfer of control
necessary or appropriate under the FCC's rules and regulations for approval
of the transfer or assignment of any portion of the Pledged Collateral.
(b) The Pledgor acknowledges that FCC authorization for the transfer
of control of the licenses of Holdings and its Subsidiaries is integral to
the Lenders' realization of the value of the Pledged Collateral, that there
is no remedy at law for failure by the Pledgor to comply with the
provisions of this Section 15 and that such failure would not be adequately
compensable in damages, and therefore agrees that the agreements of the
Pledgor contained in this Section 15 may be specifically enforced.
(c) Notwithstanding anything to the contrary contained in this
Agreement, the Collateral Agent shall not, without first obtaining approval
of the FCC, take any action pursuant to this Agreement which would
constitute or result in any change of control of Holdings or any of its
Subsidiaries if such change in control would require, under then existing
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law (including the written rules and regulations of the FCC), the prior
approval of the FCC.
(d) Upon the occurrence and during the continuance of a Default and
subject to the other provisions of Sections 12 and 14, the Pledgor consents
to the transfer of control or assignment of the Pledged Collateral to a
receiver, trustee, transferee, or similar official or to any purchaser of
the Pledged Collateral pursuant to any public or private sale, judicial
sale, foreclosure or exercise of other remedies available to the Collateral
Agent, for its benefit and the ratable benefit of the Lenders, under this
Agreement and as permitted by applicable law.
(e) Notwithstanding anything to the contrary contained in this
Agreement, prior to the occurrence of a Default and compliance with all
applicable laws by the Collateral Agent, this Agreement and the
transactions contemplated hereby do not, will not, and are not intended to,
constitute, create or have the effect of constituting or creating, directly
or indirectly, actual or practical ownership of the Pledgor, Holdings or
any of their respective Subsidiaries by the Collateral Agent or the Lenders
or control, affirmative or negative, direct or indirect, of the Pledgor,
Holdings or any of their respective Subsidiaries, over the management or
any other aspect of the operations of the Pledgor, Holdings or any of their
respective Subsidiaries, which ownership and control remain exclusively and
at all times in the Pledgor, Holdings and their respective Subsidiaries, as
the case may be.
SECTION 16. EXPENSES. The Pledgor will, upon demand, pay to the Collateral
Agent the amount of any and all reasonable expenses, including, without
limitation, the reasonable fees, expenses and disbursements of its counsel
(including allocated costs of inside counsel), of any investment banking firm,
business broker or other selling agent and of any other experts and agents
retained by the Collateral Agent, which the Collateral Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (iii) the exercise or enforcement of any of the
rights of the Collateral Agent hereunder or (iv) the failure by the Pledgor to
perform or observe any of the provisions hereof. All expenses incurred in
connection therewith shall be for the sole account of the Pledgor, and shall
constitute part of the Liabilities secured hereby.
SECTION 17. SECURITY INTEREST ABSOLUTE. All rights of the Collateral Agent
and security interests hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of, and unaffected by:
(a) any lack of validity or enforceability of any Loan Document;
(b) any lack of validity or enforceability of any Financing Document;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Liabilities, or any other amendment or
11
waiver of or any consent to any departure from any Loan Document or any
Financing Document;
(d) any exchange, surrender, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Liabilities; or
(e) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Pledgor in respect of the Liabilities
or of this Agreement.
SECTION 18. THE COLLATERAL AGENT AS THE LENDERS' CONTRACTUAL
REPRESENTATIVE.
SECTION 18.1 Appointment of Collateral Agent. Each Lender hereby designates
HNS as Collateral Agent to act as herein specified. Each Lender hereby
irrevocably authorizes the Collateral Agent to take such action on its behalf
under the provisions of this Agreement and any other instruments and agreements
referred to herein and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the
Collateral Agent by the terms hereof and thereof and such other powers as are
reasonably incidental thereto. The Collateral Agent shall hold all Pledged
Collateral and proceeds for the benefit of itself and the Lenders to be
distributed as provided herein. The Collateral Agent may perform any of its
duties hereunder by or through its agents or employees.
SECTION 18.2 Nature of Duties of Collateral Agent. The Collateral Agent
shall have no duties or responsibilities except those expressly set forth in
this Agreement. Neither the Collateral Agent nor any of its officers, directors,
employees or agents shall be liable to the Lenders for any action taken or
omitted by it as such hereunder or in connection herewith, unless caused by its
or their gross negligence or willful misconduct. The duties of the Collateral
Agent shall be mechanical and administrative in nature, and the Collateral Agent
shall not have by reason of this Agreement a fiduciary relationship in respect
of any Lender.
SECTION 18.3 Lack of Reliance on Collateral Agent. The Collateral Agent
shall not be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement, the
Financing Agreement, the Loan Agreement or the Secured Notes or the existence or
possible existence of any Default, unless any Lender specifically requests the
Collateral Agent to do so in writing.
SECTION 18.4 Certain Rights of the Collateral Agent. The Collateral Agent
shall have the right to request instructions from the Directing Lenders (as
defined below) at any time. If the Collateral Agent shall request instructions
from the Directing Lenders with respect to any act or action (including the
failure to act) in connection with this Agreement, the Collateral Agent shall be
entitled to refrain from such act or taking such action unless and until the
Collateral Agent shall have received instructions from the Directing Lenders,
and the Collateral Agent shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Lender shall have any right of
action whatsoever against the Collateral Agent as a result of the Collateral
12
Agent acting or refraining from acting hereunder in accordance with the
instructions of the Directing Lenders. The "Directing Lenders" means such
Lenders that hold Secured Notes that have an aggregate maximum face principal
amount greater than fifty percent (50%) of the aggregate of the maximum face
principal amount of all of the Secured Notes then outstanding.
SECTION 18.5 Reliance by Collateral Agent. The Collateral Agent shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person. The Collateral Agent
may consult with legal counsel (including counsel for the Pledgor with respect
to matters concerning the Pledgor), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
SECTION 18.6 Indemnification of Collateral Agent. To the extent the
Collateral Agent is not reimbursed and indemnified by the Pledgor, each Lender
will reimburse and indemnify the Collateral Agent for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Collateral Agent in performing its duties hereunder, in any way
relating to or arising out of this Agreement, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Collateral Agent's gross negligence or willful misconduct.
SECTION 18.7 The Collateral Agent in its Individual Capacity. With respect
to its obligation as a Lender under this Agreement, the Collateral Agent shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it was not performing the duties specified herein; and the
term "Lenders" or any similar term shall, unless the context clearly otherwise
indicates, include the Collateral Agent in its individual capacity as a Lender.
The Lenders acknowledge that HNS is the seller of the Base Station Equipment to
the Pledgor and has engaged in certain other business transactions with the
Pledgor and other Geotek Affiliates (as defined in the Manufacturing Agreement)
and agree that the Collateral Agent may lend money to, acquire equity interests
in, and generally engage in any kind of financial advisory or other business
with the Pledgor or any Geotek Affiliate as if it were not performing the duties
specified herein, and may accept fees and other consideration from the Pledgor
for services in connection with this Agreement and otherwise without having to
account for the same to the Lenders.
13
SECTION 18.8 Successor Collateral Agent.
(a) The Collateral Agent may, upon five (5) Business Days' notice to
the Lenders and the Pledgor, resign at any time (effective upon the
appointment of a successor collateral agent pursuant to the provisions of
this Section 18.8) by giving written notice thereof to the Lenders and the
Pledgor. Upon any such resignation, the Directing Lenders shall have the
right, upon five (5) days' notice and approval by the Pledgor (which
approval shall not be unreasonably withheld), to appoint a successor
collateral agent. If no successor collateral agent (i) shall have been so
appointed by the Directing Lenders, and (ii) shall have accepted such
appointment, within thirty (30) days after the Collateral Agent's giving of
notice of resignation, then, upon five (5) days' notice, the Collateral
Agent may, on behalf of the Lenders, appoint a successor collateral agent.
(b) Upon the acceptance of any appointment as collateral agent
hereunder by a successor collateral agent, such successor collateral agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the Collateral Agent, all references in this
Agreement to "Collateral Agent" shall refer to such successor collateral
agent and the Collateral Agent shall be discharged from its duties and
obligations under this Agreement. After the Collateral Agent's resignation
hereunder as collateral agent, the provisions of Section 18 shall continue
to inure to its benefit as to any actions taken or omitted to be taken by
it while it was Collateral Agent under this Agreement.
(c) In the event of a material breach by the Collateral Agent of its
duties hereunder, the Collateral Agent may be removed by the Directing
Lenders for cause and the provisions of this Section 18.8 shall apply to
the appointment of a successor collateral agent.
SECTION 18.9 Collateral Matters.
(a) The Collateral Agent is hereby authorized on behalf of all of the
Lenders, without the necessity of any notice to or further consent from any
Lender, from time to time prior to a Default, to take any action with
respect to any Pledged Collateral which may be necessary to perfect and
maintain perfected the security interest in and Liens upon the Pledged
Collateral.
(b) The Lenders hereby authorize the Collateral Agent, and the
Collateral Agent shall, release any Lien granted to or held by the
Collateral Agent upon any Pledged Collateral (i) upon the payment and
satisfaction of all of the Liabilities or (ii) if approved, authorized or
ratified in writing by the Directing Lenders. Upon request by the
Collateral Agent at any time, the Lenders will confirm in writing the
Collateral Agent's authority to release particular types or items of
Pledged Collateral pursuant to this Section 18.9.
14
(c) Upon any sale and transfer of Pledged Collateral which is
expressly permitted pursuant to the terms of the Financing Agreement, the
Loan Agreement or this Agreement or consented to in writing by the
Directing Lenders, and upon at least five (5) Business Days' prior written
request by the Pledgor, the Collateral Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Liens granted to the Collateral
Agent for its benefit and the benefit of the Lenders herein or pursuant
hereto upon the Pledged Collateral that was sold or transferred; provided
that (i) the Collateral Agent shall not be required to execute any such
document on terms which, in the Collateral Agent's opinion, would expose
the Collateral Agent or the Lenders to liability or create any obligation
or entail any consequence other than the release of such Liens without
recourse or warranty and (ii) such release shall not in any manner
discharge, affect or impair the Liabilities or any Liens upon all interests
retained by the Pledgor, including (without limitation) the proceeds of the
sale, all of which shall continue to constitute part of the Pledged
Collateral. In the event of any sale or transfer of Pledged Collateral, or
any foreclosure with respect to any of the Pledged Collateral, the
Collateral Agent shall be authorized to deduct all of the expenses
reasonably incurred by the Collateral Agent from the proceeds of any such
sale, transfer or foreclosure.
(d) The Collateral Agent shall have no obligation whatsoever to the
Lenders or to any other Person to assure that the Pledged Collateral exists
or is owned by the Pledgor or is cared for, protected or insured or that
the Liens granted to the Collateral Agent herein or pursuant hereto have
been properly or sufficiently or lawfully created, perfected, protected or
enforced or are entitled to any particular priority, or to exercise or to
continue exercising at all or in any manner or under any duty of care,
disclosure or fidelity any of the rights, authorities and powers granted or
available to the Collateral Agent in this Section 18.9, it being understood
and agreed that in respect of the Pledged Collateral, or any act, omission
or event related thereto, the Collateral Agent may act in any manner it may
deem appropriate, in its sole discretion, given the Collateral Agent's own
interest in the Pledged Collateral as one of the Lenders and that the
Collateral Agent shall have no duty or liability whatsoever to the Lenders,
except for its gross negligence or willful misconduct.
SECTION 18.10 Actions with Respect to Defaults. The Collateral Agent shall
take such action with respect to a Default as shall be directed by the Directing
Lenders; provided that until the Collateral Agent shall have received such
directions, the Collateral Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default as it
shall deem advisable and in the best interests of the Lenders.
Any amendment or waiver of any provision of this Agreement and any consent
to any departure by the Pledgor from any provision of this Agreement shall be
effected by the Collateral Agent pursuant to Section 19.4 hereof and only upon
the written authorization of the Directing Lenders.
15
SECTION 18.11 Delivery of Information. The Collateral Agent shall not be
required to deliver to any Lender originals or copies of any documents,
instruments, notices, communications or other information received by the
Collateral Agent from the Pledgor, the Directing Lenders, any Lender or any
other Person under or in connection with this Agreement except (i) as
specifically provided in this Agreement and (ii) as specifically requested from
time to time in writing by any Lender with respect to a specific document,
instrument, notice or other written communication received by and in the
possession of the Collateral Agent at the time of receipt of such request and
then only in accordance with such specific request.
SECTION 19. MISCELLANEOUS PROVISIONS.
SECTION 19.1 Notices. All notices, approvals, consents or other
communications required or desired to be given hereunder shall be in the form
and manner, and delivered to each of the parties hereto at their respective
addresses, set forth in Article X of the Financing Agreement or Article XI of
the Loan Agreement, as applicable.
SECTION 19.2 Headings. Section headings in this Agreement are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of this Agreement.
SECTION 19.3 Severability. Any provision in any Loan Document or in any
Financing Document that is held to be inoperative, unenforceable, or invalid in
any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable,
or invalid without affecting the remaining provisions in that jurisdiction or
the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of this Agreement are declared to
be severable.
SECTION 19.4 Amendments, Waivers and Consents. No delay or omission of the
Collateral Agent to exercise any right under this Agreement shall impair such
right or be construed to be a waiver of any Default or an acquiescence therein.
Any single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right and no waiver,
amendment or other variation of the terms, conditions or provisions of this
Agreement whatsoever shall be valid unless in writing signed by the Collateral
Agent, and then only to the extent in such writing specifically set forth. All
remedies contained in this Agreement or by law afforded shall be cumulative and
all shall be available to the Collateral Agent, for its benefit and the ratable
benefit of the Lenders, until the Liabilities have been paid in full.
SECTION 19.5 Interpretation of Agreement. Time is of the essence in each
provision of this Agreement of which time is an element. All terms not defined
herein or in the Financing Agreement shall have the meaning set forth in the
applicable Uniform Commercial Code, except where the context otherwise requires.
To the extent a term or provision of this Agreement conflicts with the Loan
Agreement or the Financing Agreement and is not dealt with herein with more
specificity, the Loan Agreement or the Financing Agreement, as applicable, shall
16
control with respect to the subject matter of such term or provision. Acceptance
of or acquiescence in a course of performance rendered under this Agreement
shall not be relevant in determining the meaning of this Agreement even though
the accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
SECTION 19.6 Continuing Security Interest; Transfer of Secured Notes. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (i) remain in full force and effect until payment in full of the
Liabilities, (ii) be binding upon the Pledgor, its successors and assigns, and
(iii) inure to the benefit of the Collateral Agent, the Lenders and their
respective successors, transferees and assigns. Without limiting the generality
of clause (iii), above, any Lender may, except as limited by the express terms
of the Loan Agreement, the Financing Agreement or the Secured Notes, assign or
otherwise transfer, in whole or in part, any Secured Note held by it to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise.
SECTION 19.7 Reinstatement. To the extent permitted by law, this Agreement
shall continue to be effective or be reinstated, as the case may be, if at any
time any amount received by the Collateral Agent or any Lender in respect of the
Liabilities is rescinded or must otherwise be restored or returned by such
Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Pledgor or upon the appointment of any receiver,
intervenor, conservator, trustee or similar official for the Pledgor or any
substantial part of its assets, or otherwise, all as though such payments had
not been made.
SECTION 19.8 Survival of Provisions. All representations, warranties and
covenants of the Pledgor contained herein shall survive the execution and
delivery of this Agreement, and shall terminate only upon the full and final
payment and performance by the Pledgor of the Liabilities secured hereby.
SECTION 19.9 Waivers. The Pledgor waives presentment and demand for payment
of any of the Liabilities, protest and notice of dishonor or default with
respect to any of the Liabilities, and all other notices to which the Pledgor
might otherwise be entitled, except as otherwise expressly provided in this
Agreement, the Loan Agreement or the Financing Agreement, as applicable.
SECTION 19.10 Authority of the Collateral Agent; Indemnification. The
Collateral Agent shall, for the benefit of the Lenders, have and be entitled to
exercise all powers hereunder which are specifically granted to the Collateral
Agent by the terms hereof, together with such powers as are reasonably incident
thereto. The Collateral Agent may perform any of its duties hereunder or in
connection with the Pledged Collateral by or through agents or employees and
shall be entitled to retain counsel and to act in reliance upon the advice of
counsel concerning all such matters. Neither the Collateral Agent nor any
Lender, nor any director, officer, employee, attorney or agent of the Collateral
Agent or any Lender shall be liable to the Pledgor for any action taken or
omitted to be taken by it or them hereunder, except for its or their own gross
17
negligence or willful misconduct, nor shall the Collateral Agent or any of the
Lenders be responsible for the validity, effectiveness or sufficiency of this
Agreement or of any document or security furnished pursuant hereto. The
Collateral Agent and its directors, officers, employees, attorneys and agents
shall be entitled to rely on any communication, instrument or document
reasonably believed by it or them to be genuine and correct and to have been
signed or sent by the proper Person or Persons. The Pledgor agrees to indemnify
and hold harmless the Collateral Agent and its officers, directors, employees
and agents from and against any and all costs, expenses (including reasonable
fees, expenses and disbursements of attorneys and paralegals), claims and
liabilities incurred by the Collateral Agent (in its capacity as Collateral
Agent) or such officers, directors, employees and agents (in each case in their
capacity as such) as a result of the Pledgor's actions, breach or assertion of a
defense under this Agreement, any of the Loan Documents or any of the Financing
Documents, unless such claim or liability shall be due to willful misconduct or
gross negligence on the part of the Collateral Agent or such Person, as
applicable.
SECTION 19.11 Release; Termination of Agreement. Subject to the provisions
of Section 19.7 hereof, this Agreement shall terminate upon full and final
payment and performance of all the Liabilities. At such time, the Collateral
Agent shall, at the request and expense of the Pledgor, promptly reassign and
redeliver to the Pledgor all of the Pledged Collateral hereunder which has not
been sold, disposed of, retained or applied by the Collateral Agent, for its
benefit and the benefit of the Lenders, in accordance with the terms hereof.
Such reassignment and redelivery shall be without warranty by or recourse to the
Collateral Agent or any of the Lenders, except as to the absence of any prior
assignments by the Collateral Agent of its interest in the Pledged Collateral,
and shall be at the expense of the Pledgor.
SECTION 19.12 INTERRELATIONSHIP WITH ORIGINAL PLEDGE AGREEMENT. As stated
in the preamble hereof, this Agreement is intended to amend and restate the
provisions of the Original Pledge Agreement and, except as expressly modified
herein, (a) all of the terms and provisions of the Original Pledge Agreement
shall continue to apply for the period prior to the date hereof and (b) the
pledge by the Pledgor of the Pledged Collateral (pursuant to and as defined in
the Original Pledge Agreement) shall continue uninterrupted notwithstanding this
amendment and restatement of the Original Pledge Agreement. All references in
the Loan Agreement, the other Loan Documents, the Financing Agreement or the
other Financing Documents to the "Pledge Agreement" shall be deemed to include
references to this Agreement. As of the date hereof, all of the covenants set
forth in the Original Pledge Agreement are of no further force and effect, it
being understood that all obligations of the Pledgor with respect to the Pledged
Collateral (as defined in the Original Pledge Agreement) shall be governed by
this Agreement from and after the date hereof. For the avoidance of doubt, this
Agreement has been executed in renewal, amendment, restatement and modification,
but not in extinguishment of, the Original Pledge Agreement.
18
SECTION 19.13 SUBMISSION TO JURISDICTION; WAIVERS. THE PLEDGOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT
IN RESPECT HEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE
OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE
EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE PLEDGOR AT ITS
ADDRESS SET FORTH BELOW OR AT SUCH OTHER ADDRESS OF WHICH THE COLLATERAL AGENT
SHALL HAVE BEEN NOTIFIED PURSUANT HERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE
COLLATERAL AGENT OR ANY OF THE LENDERS TO COMMENCE LEGAL PROCEEDINGS AGAINST THE
PLEDGOR OR ITS PROPERTY IN ANY OTHER JURISDICTION;
(e) WAIVES ALL RIGHTS OF NOTICE AND HEARING OF ANY KIND PRIOR TO THE
EXERCISE BY THE COLLATERAL AGENT OR ANY OF THE LENDERS OF THEIR RIGHTS FROM AND
AFTER AN EVENT OF DEFAULT TO REPOSSESS THE COLLATERAL WITH JUDICIAL PROCESS OR
TO REPLEVY, ATTACH OR LEVY UPON THE COLLATERAL. THE PLEDGOR WAIVES THE POSTING
OF ANY BOND OTHERWISE REQUIRED OF THE COLLATERAL AGENT OR ANY OF THE LENDERS IN
CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO OBTAIN POSSESSION OF,
REPLEVY, ATTACH OR LEVY UPON THE COLLATERAL, TO ENFORCE ANY JUDGMENT OR OTHER
SECURITY FOR THE LIABILITIES, TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF SUCH PARTY OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY
RESTRAINING ORDER OR PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT, OR ANY
OTHER AGREEMENT OR DOCUMENT BETWEEN THE PLEDGOR AND ANY SUCH PARTY.
19
(f) WAIVES THE RIGHT TO ASSERT ANY SETOFF, COUNTERCLAIM OR CROSS-CLAIM IN
RESPECT OF, AND ALL STATUTES OF LIMITATIONS WHICH MAY BE RELEVANT TO, SUCH
ACTION OR PROCEEDING; AND
(g) WAIVES DUE DILIGENCE, DEMAND, PRESENTMENT AND PROTEST AND ANY NOTICES
THEREOF AS WELL AS NOTICE OF NONPAYMENT.
SECTION 19.14 JURY TRIAL. THE PLEDGOR, THE COLLATERAL AGENT AND THE LENDERS
EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 19.15 GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT
OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS (AND NOT THE LAW OF
CONFLICTS) OF THE STATE OF NEW YORK.
SECTION 19.16 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
either of the parties hereto may execute this Agreement by signing any such
counterpart.
[SIGNATURE PAGE FOLLOWS]
20
IN WITNESS WHEREOF, the Pledgor and the Collateral Agent have each caused
this Agreement to be duly executed and delivered as of the date first above
written.
PLEDGOR:
GEOTEK FINANCING CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx XxXxx
--------------------------------------
Name: Xxxxxxx XxXxx
Title: Chief Financial Officer
COLLATERAL AGENT:
XXXXXX NETWORK SYSTEMS, INC.,
as Collateral Agent
By:
--------------------------------------
Name:
Title:
With respect to Section 18 only:
LENDER
XXXXXX NETWORK SYSTEMS, INC.
By:
--------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the Pledgor and the Collateral Agent have each caused
this Agreement to be duly executed and delivered as of the date first above
written.
PLEDGOR:
GEOTEK FINANCING CORPORATION,
a Delaware corporation
By:
--------------------------------------
Name:
Title:
COLLATERAL AGENT:
XXXXXX NETWORK SYSTEMS, INC.,
as Collateral Agent
By: /s/ S. P. Carriar
--------------------------------------
Name: S. P. Carriar
Title: V.P. & Secretary
With respect to Section 18 only:
LENDER
XXXXXX NETWORK SYSTEMS, INC.
By: /s/ XXXXXXX XXXX
--------------------------------------
Name: XXXXXXX XXXX
Title: Exec. V.P.
Schedule I
PLEDGED SHARES
Number of Pledged Share Certificate Percentage of
Issuer Shares Numbers Outstanding
------ ----------------- ----------------- -------------
Geotel License
Holdings, Inc. 100 1 100%
Schedule II
PLEDGED NOTES
Obligor Description of Note Principle Amount of Note
------- ------------------- ------------------------
Geotel License Promissory Note dated $24,500,000
Holdings, Inc. September 27, 1996
