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EXHIBIT V
[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, 1996 (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
or for
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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
entitled to exercise any and all voting and other consensual rights
pertaining to the Pledged Shares
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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 Agent, the Collateral
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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 shall be the aggregate outstanding
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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
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securities for public sale under the 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
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existing 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
waiver of or any consent to any
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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
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a result of the Collateral 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.
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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.
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(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.
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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,
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shall 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
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for its or their own gross 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.
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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 NONEXCLUSIVE 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.
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(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]
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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: /s/ S.P. CARRIER
-----------------------------------
Name: S.P. Carrier
Title: Vice President and Secretary
With respect to Section 18 only:
LENDER:
XXXXXX NETWORK SYSTEMS, INC.
By: /s/ XXXXXXX XXXX
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Executive Vice President
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Schedule I
PLEDGED SHARES
Number of Pledged Share Certificate Percentage of
Issuer Shares Numbers Outstanding
------ ------ ------- -----------
Geotek License
Holdings, Inc. 100 1 100%
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Schedule II
PLEDGED NOTES
Obligor Description of Note Principal Amount of Note
------- ------------------- ------------------------
Geotek License Promissory Note dated $24,500,000
Holdings, Inc. September 27, 1996
