EXHIBIT 10.7
EXECUTION COPY
SECURITY AGREEMENT
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(Global Network Assets, LLC)
THIS SECURITY AGREEMENT (this "Agreement") dated effective as of March
18, 2002, is by and between GLOBAL NETWORK ASSETS, LLC, a Delaware limited
liability company ("Debtor"), whose address is 00000 Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, whose Tax Identification No. is 00-0000000, and whose
organizational identification number is 3040146, and GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent for itself and other Lessors from time to time party to
the Restated Lease Agreement as defined below (in such capacity, together with
its successors and assigns in such capacity, "Secured Party"), whose address is
00 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000.
R E C I T A L S:
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A. Savvis Communications Corporation, a Missouri corporation
("Savvis"), and the sole shareholder of the Debtor, has entered into that
certain Master Lease Agreement dated as of March 28, 2000 with the Secured Party
(the "Master Lease Agreement").
B. Savvis and Secured Party have amended and restated the
Master Lease Agreement pursuant to that certain Amended and Restated Master
Lease Agreement dated as of March 8, 2002 (as such agreement may be amended,
renewed, extended, restated, replaced, substituted, supplemented or otherwise
modified from time to time, the "Restated Lease Agreement").
C. Debtor which is operated as part of a common enterprise with
Savvis, has directly and indirectly benefited and will directly and indirectly
benefit from the extension of credit evidenced and governed by the Restated
Lease Agreement and the other transactions evidenced by and contemplated in the
Restated Lease Agreement, and execution and delivery of this Agreement is
necessary and convenient to the conduct, promotion and attainment of the
business of Debtor, including extension of maturity of Savvis' obligations to
Secured Party and the Lessors following defaults thereunder and delay in
interest payments.
D. In order to induce Secured Party and the Lessors to enter
into the Restated Lease Agreement, Debtor has agreed to enter into this
Agreement and into a Guaranty Agreement dated of even date herewith, between
Debtor and Secured Party.
E. The execution and delivery of this Agreement is required by the
terms of and is a condition to the effectiveness of the Restated Lease
Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, and in order to induce Secured Party and the Lessors to
continue the extension of credit made under the Restated
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 1
Lease Agreement and to enter into the Restated Lease Agreement, the parties
hereto hereby agree as follows:
ARTICLE 1
Definitions
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Section 1.1 Definitions. As used in this Agreement, the following terms
have the following meanings:
"Account" means any "account", as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor and, in any event, shall include, without limitation, each of
the following, whether now owned or hereafter acquired by Debtor: (a)
all rights of Debtor to payment for goods sold or leased, services
rendered or the license of Intellectual Property, whether or not earned
by performance; (b) all accounts receivable of Debtor; (c) all rights
of Debtor to receive any payment of money or other form of
consideration, including, without limitation, all Payment Intangibles;
(d) all security pledged, assigned or granted to or held by Debtor to
secure any of the foregoing; (e) all guaranties of, or indemnifications
with respect to, any of the foregoing; (f) all rights of Debtor as an
unpaid seller of goods or services, including, but not limited to, all
rights of stoppage in transit, replevin, reclamation and resale; (g)
all recoveries from third parties arising from the invalidation,
subordination, or avoidance of Liens on the assets of Debtor or any
predecessor-in-interest to or of Debtor; (h) all rights in any returned
or repossessed goods; (i) all rights to brokerage commissions; and (j)
all other Supporting Obligations, including any applicable Letter of
Credit Rights.
"Amendment" means as such term is defined in Section 4.17(b).
"Broker" means any "broker," as such term is defined in
Article or Chapter 8 of the UCC, and in any event shall include, but
not be limited to, any Person defined as a broker or dealer under the
federal securities laws, but without excluding a bank acting in that
capacity.
"Capital Stock" means corporate stock and any and all
securities, shares, partnership interests (whether general, limited,
special or other partnership interests), limited liability company
interests, membership interests, equity interests, participations,
rights or other equivalents (however designated) of corporate stock or
any of the foregoing issued by any entity (whether a corporation, a
partnership, a limited liability company or another entity) and
includes, without limitation, securities convertible into Capital Stock
and rights, warrants or options to acquire Capital Stock.
"Chattel Paper" means any "chattel paper," as such term is
defined in Article or Chapter 9 of the UCC, now owned or hereafter
acquired by Debtor and includes, without limitation, Electronic Chattel
Paper.
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"Clearing Corporation" means any "clearing corporation," as
such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any (a) Person that is
registered as a "clearing agency" under the federal securities laws,
(b) federal reserve bank, or (c) other Person that provides clearance
or settlement services with respect to Financial Assets that would
require it to register as a clearing agency under the federal
securities laws but for an exclusion or exemption from the registration
requirement, if its activities as a clearing corporation, including,
without limitation, promulgation of rules, are subject to regulation by
a Governmental Authority.
"Collateral" means as such term is defined in Section 2.1.
"Commercial Tort Claims" means "commercial tort claims", as
such term is defined in the UCC, now owned or hereafter acquired by
Debtor, and includes, without limitation, those set forth on Schedule
2.
"Commodity Account" means any "commodity account," as such
term is defined in Article or Chapter 9 of the UCC, now owned or
hereafter acquired by Debtor, including, without limitation, all
accounts maintained by a Commodity Intermediary in which a Commodity
Contract is carried for Debtor.
"Commodity Contract" means any "commodity contract," as such
term is defined in Article or Chapter 9 of the UCC, and includes,
without limitation, a commodity futures contract, a commodity option,
or other contract that, in each case, is (a) traded on or subject to
the rules of a board of trade that has been designated as a contract
market for such a contract pursuant to the federal commodities laws, or
(b) traded on a foreign commodity board of trade, exchange or market,
and is carried on the books of a Commodity Intermediary for a Commodity
Customer.
"Commodity Customer" means any "commodity customer" as such
term is defined in Article or Chapter 9 of the UCC, and includes,
without limitation, any Person for whom a Commodity Intermediary
carries a Commodity Contract on its books.
"Commodity Intermediary" means any "commodity intermediary,"
as such term is defined in Article or Chapter 9 of the UCC, including,
without limitation, (a) a Person who is registered as a futures
commission merchant under the federal commodities laws, or (b) a Person
who in the ordinary course of its business provides clearance or
settlement services for a board of trade that has been designated as a
contract market pursuant to the federal commodities laws.
"Copyright License" means any written agreement now or
hereafter in existence granting to Debtor any right to use any
Copyright including, without limitation, the agreements identified on
Schedule 1; provided, however, that there shall be excluded from the
Collateral any Copyright License to the extent, and only to the extent,
that such Copyright License contains, as of the date of this Agreement
a legally enforceable provision under the
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 3
UCC that would give any other party to such agreement or instrument the
right to terminate its obligations thereunder based on the grant of the
security interest created herein pursuant to the terms of this
Agreement (except that if and when any prohibition on the assignment,
pledge or grant of Lien on such Copyright License is removed or such
assignment, pledge or grant is consented to, Secured Party will be
deemed to have been granted a security interest in such Copyright
License as of the date hereof or other earliest legally valid date, and
the Collateral will be deemed to include such Copyright License);
provided, that in any event the foregoing limitation shall not affect,
limit, restrict or impair the grant by Debtor of a security interest
pursuant to this Agreement in any accounts receivable or any money or
other amounts due or to become due under such agreement or instrument.
"Copyright Security Agreement" means a copyright security
agreement, executed and delivered by Debtor to Secured Party,
substantially in the form of Exhibit A, as such agreement may be
amended, supplemented or otherwise modified from time to time.
"Copyrights" means all of the following: (a) all copyrights,
works protectable by copyright, copyright registrations and copyright
applications of Debtor, including, without limitation, those set forth
on Schedule 1; (b) all renewals, extensions and modifications thereof;
(c) all income, royalties, damages, profits and payments relating to or
payable under any of the foregoing; (d) the right to xxx for past,
present or future infringements of any of the foregoing; (e) all other
rights and benefits relating to any of the foregoing throughout the
world; and (f) all goodwill associated with and symbolized by any of
the foregoing; in each case, whether now owned or hereafter acquired by
Debtor.
"Deposit Accounts" means any "deposit accounts," as such term
is defined in Article or Chapter 9 of the UCC, now owned or hereafter
acquired by Debtor, and in any event shall include, without limitation,
any and all deposit accounts (including cash collateral accounts), bank
accounts or investment accounts now owned or hereafter acquired or
opened by Debtor, including, without limitation, those set forth on
Schedule 2, and any account which is a replacement or substitute for
any of such accounts, together with all monies, Instruments,
certificates, checks, drafts, wire transfer receipts and other Property
deposited therein and all balances therein and all investments made
with funds deposited therein or otherwise held in connection therewith,
including, without limitation, indebtedness (howsoever evidenced)
and/or securities issued or guaranteed by the government of the U.S.,
certificates of deposit and all contract rights, General Intangibles,
contracts, Instruments, Investment Property, Security Entitlements,
Financial Assets, Commodity Contracts and other Documents now or
hereafter existing with respect thereto, including, but not limited to,
any and all renewals, extensions, reissuances and replacements and
substitutions therefor with all earnings, profits or other Proceeds
therefrom in the form of interest or otherwise, from time to time
representing, evidencing, deposited into or held in such deposit
accounts, bank accounts or investment accounts.
"Document" means any "document," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, including, without limitation, all
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 4
documents of title and all receipts covering, evidencing or
representing goods now owned or hereafter acquired by Debtor.
"Electronic Chattel Paper" means any "electronic chattel
paper", as such term is defined in Article or Chapter 9 of the UCC, now
owned or hereafter acquired by Debtor.
"Entitlement Holder" means any "entitlement holder", as such
term is defined in Article or Chapter 8 of the UCC, and in any event
shall include, but not be limited to, any Person identified in the
records of a Securities Intermediary as the Person having a Security
Entitlement against the Securities Intermediary, including, without
limitation, any Person who acquires a security entitlement under
Article or Chapter 8 of the UCC.
"Equipment" means any "equipment," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor and, in any event, shall include, without limitation, all
machinery, equipment, furniture, fixtures, trade fixtures, trailers,
rolling stock, vessels, aircraft and vehicles now owned or hereafter
acquired by Debtor and any and all additions, substitutions and
replacements of any of the foregoing, wherever located, together with
all attachments, components, parts, equipment and accessories installed
thereon or affixed thereto.
"FCC" means the Federal Communications Commission and any
successor agency.
"Financial Asset" means any "financial asset," as such term is
defined in Article or Chapter 8 of the UCC, and in any event shall
include, but not be limited to, any (a) Security, (b) obligation of a
Person or a share, participation or other interest in a Person or in
Property or an enterprise of a Person, which is, or is of a type, dealt
in or traded on financial markets, or which is recognized in any area
in which it is issued or dealt in as a medium for investment, and (c)
any Property that is held by a Securities Intermediary for another
Person in a Securities Account if the Securities Intermediary has
expressly agreed with the other Person that the Property is to be
treated as a Financial Asset under Article or Chapter 8 of the UCC.
"Financing Statements" means as such term is defined in
Section 4.4(b).
"Fixtures" means any "fixtures", as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, and in any event shall include, without limitation, all plant
fixtures, trade fixtures, business fixtures, other fixtures and storage
facilities, wherever located, and all additions and accessions thereto
and replacements thereto.
"Foreign Subsidiary" means, with respect to any Person, each
direct or indirect Subsidiary of such Person that is not a U.S.
Subsidiary.
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"General Intangibles" means any "general intangibles," as such
term is defined in Article or Chapter 9 of the UCC, now owned or
hereafter acquired by Debtor and, in any event, shall include, without
limitation, each of the following, whether now owned or hereafter
acquired by Debtor: (a) all of Debtor's service marks, trade names,
trade secrets, registrations, goodwill, franchises, licenses, permits,
proprietary information, customer lists, designs and inventions; (b)
all of Debtor's books and records, including, without limitation, all
computer runs, invoices, tapes, processing software, processing
contracts (such as contracts for computer time and services) and any
computer prepared information, tapes or data of every kind and
description, whether in the possession of Debtor or in the possession
of third parties, and all of Debtor's other data, plans, manuals,
computer software, computer tapes, computer disks, computer programs,
source codes, object codes, management information systems and all
rights of Debtor to retrieve data and other information from third
parties and other data of every kind and description, to the extent
that they indicate, summarize or evidence, or otherwise relate to, the
Accounts or Inventory, whether in the possession of Debtor or in the
possession of any third party; (c) all of Debtor's contract rights,
partnership interests, joint venture interests, securities, Deposit
Accounts, investment accounts and certificates of deposit (including,
without limitation, all contracts relating to the construction or
operation of the Network, including rights of way, easements, leases
and all related contracts); (d) all rights of Debtor to payment under
letters of credit and similar agreements, including, without
limitation, all Letter of Credit Rights; (e) all tax refunds and tax
refund claims of Debtor; (f) all choses in action and causes of action
of Debtor (whether arising in contract, tort or otherwise and whether
or not currently in litigation) and all judgments in favor of Debtor,
including, without limitation, all commercial tort claims; (g) all
rights and claims of Debtor under warranties, indemnities, guaranties
or other Supporting Obligations with respect to such agreements; (h)
all Intellectual Property; (i) all rights of Debtor under any
insurance, surety or similar contract or arrangement, provided,
however, that there shall be excluded from the Collateral any General
Intangible to the extent, and only to the extent, that such General
Intangible as of the date of this Agreement (x) is governed by or
contains a legally enforceable provision under the UCC that would give
any other party to such agreement or instrument the right to terminate
its obligations thereunder based on the grant of the Lien pursuant to
the terms of this Agreement or (y) would be rendered invalid or
unenforceable by the grant of the Lien pursuant to the terms of this
Agreement (except that if and when any prohibition on the assignment,
pledge or grant of Lien on such General Intangible is removed or such
assignment, pledge or grant is consented to, or a Lien on such General
Intangible may be granted without adversely affecting the validity or
enforceability of such General Intangible, Secured Party will be deemed
to have been granted a Lien on such General Intangible as of the date
hereof or other earliest legally valid date, and the Collateral and the
General Intangibles will be deemed to include such General Intangible);
provided, that in any event the foregoing limitation shall not affect,
limit, restrict or impair the grant by Debtor of a security interest
pursuant to this Agreement in any accounts receivable or any money or
other amounts due or to become due under such contract, agreement,
instrument or indenture; and (j) all Payment Intangibles.
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"Governmental Authority" means any nation or government, any
state, provincial or political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee" by any Person means any indebtedness, liability or
obligation, contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any
indebtedness, liability or obligation, direct or indirect, contingent
or otherwise, of such Person (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions
or otherwise) or (b) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other indebtedness, liability
or obligation as to the payment thereof or to protect the obligee
against loss in respect thereof (in whole or in part), provided that
the term "Guarantee" shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee" used
as a verb has a corresponding meaning. The amount of any Guarantee
shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee is
made or, if not stated or determinable, the maximum anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder).
"Holdings" means Savvis Communications Corporation, a Delaware
corporation.
"Instrument" means any "instrument," as such term is defined
in Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, and, in any event, shall include all promissory notes, drafts,
bills of exchange and trade acceptances of Debtor, whether now owned or
hereafter acquired.
"Intellectual Property" means the Copyrights, Copyright
Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses.
"Inventory" means any "inventory," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, and, in any event, shall include, without limitation, each of
the following, whether now owned or hereafter acquired by Debtor: (a)
all goods and other personal Property of Debtor that are held for sale
or lease or to be furnished under any contract of service; (b) all raw
materials, work-in-process, finished goods, inventory, supplies and
materials of Debtor; (c) all wrapping, packaging, advertising and
shipping materials of Debtor; (d) all goods that have been returned to,
repossessed by or stopped in transit by Debtor; and (e) all Documents
evidencing any of the foregoing.
"Investment Property" means any "investment property," as such
term is defined in Article or Chapter 9 of the UCC, now owned or
hereafter acquired by Debtor, and, in any event, shall include, without
limitation, each of the following, whether now owned or hereafter
acquired by Debtor: (a) the Securities Accounts and other Investment
Property
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described on Schedule 2; (b) any Security or Capital Stock, whether
certificated or uncertificated; (c) any Security Entitlement; (d) any
Securities Account; (e) any Commodity Contract; and (f) any Commodity
Account.
"Issuer" means any "issuer," as such term is defined in
Article or Chapter 8 of the UCC, and in any event shall include, but
not be limited to, any Person that, with respect to an obligation on or
a defense to a Security, (a) places or authorizes the placing of its
name on a Security Certificate, other than as authenticating trustee,
registrar, transfer agent or the like, to evidence a share,
participation or other interest in its Property or in an enterprise, or
to evidence its duty to perform an obligation represented by the
certificate; (b) creates a share, participation or other interest in
its Property or in an enterprise, or undertakes an obligation, that is
an Uncertificated Security; (c) directly or indirectly creates a
fractional interest in its rights or Property, if the fractional
interest is represented by a Security Certificate; or (d) becomes
responsible for, or in the place of, another Issuer.
"Letter of Credit Rights" means "letter of credit rights", as
such term is defined in the UCC, now owned or hereafter owned by Debtor
including, without limitation, rights to payment or performance under a
letter of credit, whether or not Debtor has demanded or is entitled to
demand payment or performance, and includes, without limitation, those
set forth on Schedule 2.
"License" means any consent, permit, franchise, certificate,
approval, order, license, right-of-way (whether an easement, contract
or agreement in any form) or other authorization, including, without
limitation, any FCC license.
"Lien" means, with respect to any Property, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, tax lien, financing statement, pledge, charge,
hypothecation or other lien, charge, easement (other than any easement
not materially impairing usefulness), encumbrance, preference, priority
or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including,
without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Money" means any "money", as such term is defined in Article
or Chapter 1 of the UCC, now owned or hereafter acquired by Debtor and,
in any event, shall include, without limitation, cash.
"Obligations" means the "Obligations", as such term is defined
in the Restated Lease Agreement, and the obligations, indebtedness and
liabilities of Debtor under this Agreement and any other Credit
Document to which Debtor may be a party.
"Patent License" means any written agreement now or hereafter
in existence granting to Debtor any right to use any invention on which
a Patent is in existence including, without limitation, the agreements
described on Schedule 1; provided, however, that there shall be
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excluded from the Collateral any Patent License to the extent, and only
to the extent, that such Patent License contains, as of the date of
this Agreement a legally enforceable provision under the UCC that would
give any other party to such agreement or instrument the right to
terminate its obligations thereunder based on the grant of the security
interest created herein pursuant to the terms of this Agreement (except
that if and when any prohibition on the assignment, pledge or grant of
Lien on such Patent License is removed or such assignment, pledge or
grant is consented to, Secured Party will be deemed to have been
granted a security interest in such Patent License as of the date
hereof or other earliest legally valid date, and the Collateral will be
deemed to include such Patent License); provided, that in any event the
foregoing limitation shall not affect, limit, restrict or impair the
grant by Debtor of a security interest pursuant to this Agreement in
any accounts receivable or any money or other amounts due or to become
due under such agreement or instrument.
"Patent Security Agreement" means a patent security agreement
executed and delivered by Debtor to Secured Party, substantially in the
form of Exhibit B, as such agreement may be amended, supplemented or
otherwise modified from time to time.
"Patents" means all of the following: (a) all patents, patent
applications and patentable inventions of Debtor, including, without
limitation, those set forth on Schedule 1, and all of the inventions
and improvements described and claimed therein; (b) all continuations,
re-examinations, divisions, renewals, extensions, modifications,
substitutions, continuations-in-part or reissues of any of the
foregoing; (c) all income, royalties, profits, damages, awards and
payments relating to or payable under any of the foregoing; (d) the
right to xxx for past, present and future infringements of any of the
foregoing; (e) all other rights and benefits relating to any of the
foregoing throughout the world; and (f) all goodwill associated with
any of the foregoing; in each case, whether now owned or hereafter
acquired by Debtor.
"Payment Intangibles" means "payment intangibles" as such term
is defined in the UCC.
"Perfection Certificate" means a perfection certificate in the
form of Exhibit E.
"Person" means any individual, corporation, trust,
association, company, partnership, joint venture, limited liability
company, joint stock company, Governmental Authority or other entity.
"Pledged Collateral" means as such term is defined in Section
4.16(b)(i).
"Pledged Shares" means 100% of the Capital Stock now owned or
hereafter acquired by Debtor in any manner of each of the U.S.
Subsidiaries of Holdings, including, without limitation, the Capital
Stock identified on Schedule 3 attached hereto, or on Schedule 1 to an
Amendment.
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"Proceeds" means any "proceeds," as such term is defined in
Article or Chapter 9 of the UCC and, in any event, shall include, but
not be limited to, (a) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to Debtor from time to time
with respect to any of the Collateral, (b) any and all payments (in any
form whatsoever) made or due and payable to Debtor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any Governmental
Authority (or any Person acting, or purporting to act, for or on behalf
of any Governmental Authority), and (c) any and all other amounts from
time to time paid or payable under or in connection with any of the
Collateral and all other Payment Intangibles relating thereto.
"Property" means property and/or assets of all kinds, whether
real, personal or mixed, tangible or intangible (including, without
limitation, all rights relating thereto), whether owned or acquired on
or after the date hereof.
"Revised Article 9" means the Revised Article 9 of the Uniform
Commercial Code as enacted in the State of New York and/or any other
jurisdiction.
"Securities Account" means any "securities account," as such
term is defined in Article or Chapter 8 of the UCC, and in any event
shall include, but not be limited to, any account to which a Financial
Asset is or may be credited in accordance with an agreement under which
the Person maintaining the account undertakes to treat the Person for
whom the account is maintained as entitled to exercise the rights that
comprise the Financial Asset.
"Securities Intermediary" means any "securities intermediary,"
as such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any (a) Clearing
Corporation, or (b) Person, including a bank or Broker, that in the
ordinary course of its business maintains Securities Accounts for
others and is acting in that capacity.
"Security" means any "security," as such term is defined in
Article or Chapter 8 of the UCC and, in any event, shall include, but
not be limited to, any obligation of an Issuer or a share,
participation or other interest in an Issuer or in Property or an
enterprise of an Issuer (a) which is represented by a Security
Certificate in bearer or registered form, or the transfer of which may
be registered upon books maintained for that purpose by or on behalf of
the Issuer, (b) which is one of a class or series or by its terms is
divisible into a class or series of shares, participations, interests
or obligations, and (c) which (i) is, or is of a type, dealt in or
traded on securities exchanges or securities markets, or (ii) is a
medium for investment and by its terms expressly provides that it is a
security governed by Article or Chapter 8 of the UCC.
"Security Certificate" means any "security certificate," as
such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any certificate
representing a Security.
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"Security Entitlement" means any "security entitlement," as
such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any of the rights and
Property interests of an Entitlement Holder with respect to a Financial
Asset.
"Software" means all software as such term is defined in the
Code, other than software embedded in any category of goods.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which at least a majority of the
outstanding shares of stock or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors (or Persons performing similar functions) of such corporation
or entity (irrespective of whether or not at the time, in the case of a
corporation, stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) that is at the time directly or indirectly owned or
controlled by such Person or one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries.
"Supporting Obligations" means "supporting obligations," as
such term is defined in the UCC, now owned or hereafter acquired by
Debtor.
"Trademark License" means any written agreement now or
hereafter in existence granting to Debtor any right to use any
Trademark, including, without limitation, the agreements identified on
Schedule 1; provided, however, that there shall be excluded from the
Collateral any Trademark License to the extent, and only to the extent,
that such Trademark License contains, as of the date of this Agreement
a legally enforceable provision under the UCC that would give any other
party to such agreement or instrument the right to terminate its
obligations thereunder based on the grant of the security interest
created herein pursuant to the terms of this Agreement (except that if
and when any prohibition on the assignment, pledge or grant of Lien on
such Trademark License is removed or such assignment, pledge or grant
is consented to, Secured Party will be deemed to have been granted a
security interest in such Trademark License as of the date hereof or
other earliest legally valid date, and the Collateral will be deemed to
include such Trademark License); provided, that in any event the
foregoing limitation shall not affect, limit, restrict or impair the
grant by Debtor of a security interest pursuant to this Agreement in
any accounts receivable or any money or other amounts due or to become
due under such agreement or instrument.
"Trademark Security Agreement" means a trademark security
agreement executed and delivered by Debtor to Secured Party,
substantially in the form of Exhibit C, as such agreement may be
amended, supplemented or otherwise modified from time to time.
"Trademarks" means all of the following: (a) all trademarks,
trade names, corporate names, company names, business names, fictitious
business names, trade styles, service marks, logos, other business
identifiers, prints and labels on which any of the foregoing have
appeared or appear, all registrations and recordings thereof and all
applications in connection
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 11
therewith, including, without limitation, registrations, recordings and
applications in the United States Patent and Trademark Office or in any
similar office or agency of the U.S., any state thereof or any other
country or any political subdivision thereof, including, without
limitation, those described in Schedule 1; (b) all reissues, extensions
and renewals thereof; (c) all income, royalties, damages and payments
now or hereafter relating to or payable under any of the foregoing,
including, without limitation, damages or payments for past or future
infringements of any of the foregoing; (e) the right to xxx for past,
present and future infringements of any of the foregoing; (f) all
rights corresponding to any of the foregoing throughout the world; and
(g) all goodwill associated with and symbolized by any of the
foregoing; in each case, whether now owned or hereafter acquired by
Debtor.
"UCC" means the Uniform Commercial Code as in effect on or
after the date hereof in the State of New York and/or any other
jurisdiction, the laws of which may be applicable to or in connection
with the creation, perfection or priority, or the effect of perfection
or non-perfection, of any Lien on any Property created or purported to
be created pursuant to this Agreement, and includes, without
limitation, Revised Article 9 as enacted in the State of New York
and/or any other such jurisdiction.
"Uncertificated Security" means any "uncertificated security,"
as such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any Security that is not
represented by a certificate.
"U.S." means the United States of America.
"U.S. Subsidiary" means, with respect to any Person, each
direct or indirect Subsidiary of such Person formed under the laws of
the U.S. or any state thereof.
Section 1.2 Other Definitional Provisions. Terms used herein that are
defined in the Restated Lease Agreement and are not otherwise defined herein
shall have the meanings therefor specified in the Restated Lease Agreement.
References to "Sections," "Subsections," "Exhibits" and "Schedules" shall be to
Sections, Subsections, Exhibits and Schedules, respectively, of this Agreement
unless otherwise specifically provided. All definitions contained in this
Agreement are equally applicable to the singular and plural forms of the terms
defined. All references to statutes and regulations shall include any amendments
of the same and any successor statutes and regulations. References to particular
sections of the UCC should be read to refer also to parallel sections of the
Uniform Commercial Code as enacted in each state or other jurisdiction where any
portion of the Collateral is or may be located. Terms used herein which are
defined in the UCC, unless otherwise defined herein or in the Restated Lease
Agreement, shall have the meanings determined in accordance with the UCC. The
term "continuing", "continuation" or "continuance" means, in reference to any
Default or Event of Default that has occurred, that such Default or Event of
Default has not been either cured to the reasonable satisfaction of Secured
Party within the applicable grace period (if any) specified in this Agreement or
waived in writing by Secured Party in accordance with the Restated Lease
Agreement.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 12
ARTICLE 2
Security Interest
-----------------
Section 2.1 Security Interest. As collateral security for the prompt
payment and performance in full when due of the Obligations (whether at stated
maturity, by acceleration or otherwise), Debtor hereby pledges and assigns (as
collateral) to Secured Party, and grants to Secured Party a continuing Lien on
and security interest in, all of Debtor's right, title and interest in and to
the following, whether now owned or hereafter arising or acquired and wherever
located (collectively, the "Collateral"), and such grant, insofar as it applies
to Collateral covered by the Master Lease Agreement, is in confirmation of the
existing and continuing Lien and security interest granted under the Master
Lease Agreement:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Instruments;
(d) all General Intangibles (including payment intangibles and
Software);
(e) all Documents;
(f) all Equipment (including, without limitation, Equipment at
the locations set forth on Schedule 4);
(g) all Fixtures;
(h) all Letter of Credit Rights;
(i) all Inventory (including, without limitation, Inventory at
the locations set forth on Schedule 4);
(j) all Intellectual Property;
(k) all Financial Assets and Investment Property, and the
certificates and all dividends, cash, instruments and other Property
from time to time received, receivable or otherwise distributed or
distributable in respect of or in exchange for any or all of such
Financial Assets and Investment Property, including, without
limitation:
(i) all of the Pledged Shares and the certificates (if
any) representing the Pledged Shares, and all
dividends, cash, Instruments, and other Property from
time to time received, receivable, or otherwise
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 13
distributed or distributable in respect of or in
exchange for any or all of the Pledged Shares; and
(ii) all additional Capital Stock from time to time owned
or acquired by Debtor in any manner, and all
dividends, cash, Instruments, and other Property from
time to time received, receivable, or otherwise
distributed or distributable in respect of or in
exchange for any or all of such Capital Stock;
provided, no Capital Stock of a Foreign Subsidiary is
or shall be pledged pursuant to this Section 2.1(k);
(l) all Deposit Accounts;
(m) all Money;
(n) all Commercial Tort Claims;
(o) all indebtedness from time to time owed to Debtor by
Holdings, any other Credit Party or any other Person and the
instruments evidencing such indebtedness, and all interest, cash,
instruments and other Property from time to time received, receivable
or otherwise distributed or distributable in respect of or in exchange
for any or all of such indebtedness;
(p) all Proceeds, in cash or otherwise, of any of the Property
described in the foregoing clauses (a) through (o) and all liens,
security, rights, remedies and claims of Debtor with respect thereto;
(q) all other goods and personal Property of Debtor of any
kind or character, whether tangible or intangible, including, without
limitation, any and all rights in and claims under insurance policies,
judgments and rights thereunder, and tort claims; and
(r) all Proceeds and products of any or all of the foregoing;
provided, however, that the grant of a Lien on and security interest in Licenses
issued by Governmental Authorities is subject to Section 6.3 hereof.
Section 2.2 Debtor Remains Liable. Notwithstanding anything to the
contrary contained herein, (a) Debtor shall remain liable under the contracts,
agreements, documents and instruments included in the Collateral to the extent
set forth therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed, (b) the exercise by
Secured Party of any of its rights or remedies hereunder shall not release
Debtor from any of its duties or obligations under the contracts, agreements,
documents and instruments included in the Collateral, and (c) Secured Party
shall not have any indebtedness, liability or obligation under any of the
contracts, agreements, documents and instruments included in the Collateral by
reason of this Agreement, and Secured Party shall not be obligated to perform
any of the obligations or duties of
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 14
Debtor thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
Section 2.3 Delivery of Collateral. Debtor has delivered to Secured
Party, endorsed in blank as appropriate, all Collateral the possession of which
is necessary to perfect the security interest of Secured Party therein as of the
date hereof. Furthermore, within 10 days of Debtor gaining any rights in any
additional Collateral having a value in excess of $100,000 the possession of
which is necessary to perfect the security interest of Secured Party therein,
all certificates or instruments representing or evidencing the Pledged Shares,
any Instruments or Chattel Paper or any other Collateral including, without
limitation, any Investment Property, shall be delivered to and held by or on
behalf of Secured Party pursuant hereto in suitable form for transfer by
delivery, or accompanied by duly executed instruments of transfer or assignment
in blank, or held in a Deposit Account or by a Securities Intermediary in a
Securities Account pursuant to an agreement among Secured Party, Debtor and such
Securities Intermediary which agreement establishes "control" (as defined in
Article or Chapter 8 of the UCC) of such Securities Account with Secured Party
in one (or more if Secured Party requests) of the manners prescribed in Section
8-106 of the UCC, all in form and substance reasonably satisfactory to Secured
Party. After the occurrence and during the continuation of a Default or an Event
of Default, Secured Party shall have the right at any time to exchange
certificates or instruments representing or evidencing any Pledged Collateral in
its possession for certificates or instruments of smaller or larger
denominations.
ARTICLE 3
Representations and Warranties
------------------------------
To induce Secured Party to enter into this Agreement, Debtor represents
and warrants to Secured Party that:
Section 3.1 Title. Debtor has rights in and the power to transfer and
grant a security interest in each item of the Collateral upon which it purports
to xxxxx x Xxxx hereunder free and clear of any Lien or other encumbrance,
except for those Permitted Encumbrances (if any) which are expressly permitted
to attach to the Collateral in accordance with the Restated Lease Agreement and
Liens in favor of Secured Party, and provided, that this Section 3.1 does not
apply to Intellectual Property (which is addressed in Section 3.8 below).
Section 3.2 Accounts. Unless Debtor has given Secured Party written
notice to the contrary, whenever the security interest granted hereunder
attaches to an Account with a value in excess of $250,000, Debtor shall be
deemed to have represented and warranted to Secured Party as to each of such
Accounts at the time of its creation that (a) each such Account is genuine and
in all respects what it purports to be, (b) each such Account represents the
legal, valid and binding obligation of the account debtor evidencing
indebtedness unpaid and owed by such account debtor, (c) to the best knowledge
of Debtor, except for defenses and business disputes arising in the ordinary
course of business which in the aggregate are not material, the amount of each
Account represented as owing is the correct amount actually and unconditionally
owing except for normal trade discounts
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 15
granted in the ordinary course of business, (d) Debtor has not received any
notice of proceedings or actions which are threatened or pending against any
account debtor which might result in any adverse change in such account debtor's
financial condition, and (e) no Account is subject to any offset, counterclaim
or other defense (nor is it subject to any threatened counterclaim to the best
knowledge of Debtor) and, except to the extent otherwise provided in the
Restated Lease Agreement, Debtor has not made any agreement with any account
debtor for any extension of time for the payment thereof, any compromise or
settlement for less than the full amount thereof, any release of any account
debtor from liability therefor, or any deduction therefrom, except a discount or
allowance allowed by Debtor in the ordinary course of business for prompt
payment and disclosed to Secured Party.
Section 3.3 Financing Statements. No financing statement, security
agreement or other Lien instrument covering all or any part of the Collateral is
on file in any public office, except as may have been filed in favor of Secured
Party pursuant to this Agreement and except for financing statements evidencing
Permitted Encumbrances. Except as otherwise disclosed on Schedule 5, Debtor does
not do business and has not done business within the past five years under a
trade name or any name other than its legal name set forth at the beginning of
this Agreement.
Section 3.4 Principal Place of Business; Organization; Tax I.D. The
principal place of business and "chief executive office", as such term is
defined in Article or Chapter 9 of the UCC, of Debtor, and the office where
Debtor keeps its books and records, is located at the address of Debtor
designated in the introductory paragraph of this Agreement. In addition, each of
the "jurisdiction of organization," as such term is defined in Article or
Chapter 9 of the UCC, the name of Debtor as it appears in official filings in
its jurisdiction of organization, the United States Federal income tax
identification number of Debtor and the organizational identification number or
similar identification number assigned to Debtor by the jurisdiction of
organization of Debtor (if any) is as specified in the introductory paragraph of
this Agreement.
Section 3.5 Location of Collateral. All Fixtures, Inventory (except
Inventory in transit) and Equipment (other than vehicles) of Debtor constituting
Collateral having a value in excess of $100,000 are located at the places
specified on Schedule 4, provided that pursuant to the terms of Section 6.26 of
the Restated Lease Agreement, Debtor shall have 90 days after the Execution Date
of the Restated Lease Agreement to provide Secured Party with such Schedule 4.
Debtor shall give written notice to Secured Party at least 30 days prior to the
date any such Inventory and/or Equipment is located at any location other than
as set forth on Schedule 4. Except for warehousing and co-location arrangements,
Debtor has exclusive possession and control of its Inventory and Equipment.
Debtor has good, indefeasible and merchantable title to the Inventory and such
Inventory is not subject to any Lien or security interest or document whatsoever
except for the Lien granted to Secured Party, and except for Permitted
Encumbrances. The Inventory is not subject to any licensing, patent, royalty,
trademark, trade name or copyright agreements with any third parties which would
require any consent of any third party upon sale or disposition of that
Inventory or the payment of any monies to any third party upon such sale or
other disposition. The completion of manufacture, sale or other disposition of
such Inventory by Secured Party following an Event of Default shall not require
the consent of any Person and shall not constitute a breach or default under any
contract or agreement to which Debtor is a party or to which such property is
subject. None of
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 16
such Inventory (other than Inventory as to which all Documents evidencing such
Inventory have been delivered to Secured Party) or Equipment (other than
vehicles) of Debtor constituting Collateral is evidenced by a Document
(including, without limitation, a negotiable document of title).
Section 3.6 Perfection. Upon the filing of Financing Statements in the
jurisdictions listed on Schedule 6, the filing of a Patent Security Agreement
(if any) and a Trademark Security Agreement (if any) with the United States
Patent and Trademark Office, the filing of a Copyright Security Agreement (if
any) with the United States Copyright Office, and upon Secured Party's obtaining
control of the Investment Property, Deposit Accounts, Electronic Chattel Paper
and Letter of Credit Rights of Debtor constituting Collateral in accordance with
Section 9-314 of the UCC and the corresponding provisions in Sections 9-104,
9-105, 9-106 and 9-107 (as applicable) of the UCC, and upon Secured Party's or
its agents' obtaining possession of the Pledged Shares (or obtaining "control"
(as such term is defined in Article or Chapter 8 of the UCC) of the Pledged
Shares in one (or more if Secured Party so requests) of the manners prescribed
in Section 8-106 of the UCC) and all other Instruments, Chattel Paper and
Security Certificates of Debtor the security interest in favor of Secured Party
created herein will constitute a valid and perfected Lien upon and security
interest in the Collateral (except for (a) vehicles covered by certificates of
title, and (b) other Property excluded from the application of Article or
Chapter 9 of the UCC by Section 9-109(c) and (d) of the UCC, including, without
limitation, fixtures and deposit accounts, and (c) unregistered Intellectual
Property in which a security interest cannot be perfected by said method of
filing with the United States Patent and Trademark Office and the United States
Copyright Office (it being understood that due to uncertainty in the law a
filing may also be required with the United States Patent and Trademark Office
and the United States Copyright Office, which filing cannot be effected prior to
registration of such Intellectual Property)), subject to no equal or prior Liens
except for those Liens (if any) which constitute Permitted Encumbrances and
which are, in accordance with the Restated Lease Agreement permitted to have
priority equal to or greater than the Liens created pursuant to this Agreement.
The Perfection Certificate has been prepared, completed and executed, and the
information set forth therein is correct and complete.
Section 3.7 [INTENTIONALLY OMITTED.]
Section 3.8 Intellectual Property.
(a) The information contained on Schedule 1 in respect
of Federally registered Trademarks, registered Copyrights and issued
Patents, is true, correct and complete.
(b) Debtor is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to the Intellectual
Property set forth on Schedule 1 (consisting of Federally registered
Trademarks, registered Copyrights and issued Patents) free and clear of
any Liens, including, without limitation, any pledges, assignments,
licenses, user agreements and covenants by Debtor not to xxx third
Persons, other than Permitted Encumbrances.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 17
(c) To Debtor's best knowledge, no claim has been made
alleging that the use of any of the Intellectual Property set forth on
Schedule 1 violates or may violate the rights of any third Person.
(d) Each of the Patents and Trademarks identified on Schedule
1 as being registered has been properly registered with the United
States Patent and Trademark Office and each of the Copyrights
identified on Schedule 1 as being registered has been properly
registered with the United States Copyright Office.
(e) This Security Agreement is effective to create a valid and
continuing Lien on and, upon filing of Financing Statements in the
jurisdictions listed on Schedule 6, the recordation of the Copyright
Security Agreement with the United States Copyright Office and
recordation of the Patent Security Agreement and the Trademark Security
Agreement with the United States Patent and Trademark Office, perfected
Liens in favor of Secured Party on Debtor's Patents, Trademarks and
Copyrights (it being understood that due to uncertainty in the law a
filing may also be required with the United States Copyright Office,
which filing may not be effective prior to registration of such
Copyrights) and such perfected Liens are enforceable as such as against
any and all creditors of and purchasers from Debtor.
Section 3.9 Pledged Shares and Instruments.
(a) The Pledged Shares have been duly authorized and validly
issued and are fully paid and nonassessable under the laws of the
jurisdiction of incorporation or organization of the issuers thereof.
To the best knowledge of Debtor, the Instruments have been duly
authorized and validly issued by the obligor(s) thereunder and
constitute legally enforceable indebtedness of the obligor(s)
thereunder.
(b) Debtor is the legal and beneficial owner of the Pledged
Shares and the Instruments, free and clear of any Lien (other than
Permitted Encumbrances which are, in accordance with the Restated Lease
Agreement, permitted to attach to the Pledged Shares), and Debtor has
not sold, granted any option with respect to, assigned, transferred or
otherwise disposed of any of its rights or interest in or to the
Pledged Shares or the Instruments.
(c) On the date hereof, the Pledged Shares constitute the
percentage of the issued and outstanding Capital Stock of the issuers
thereof indicated on Schedule 3, as such Schedule 3 may from time to
time be supplemented, amended or modified.
Section 3.10 Control Property. The information on Schedule 4 is true,
correct and complete. All Deposit Accounts, Electronic Chattel Paper, Commercial
Tort Claims and Investment Property, respectively, existing on the date hereof
is identified on Schedule 4.
Section 3.11 Benefit. Debtor expects to derive substantial benefit (and
Debtor may reasonably be expected to derive substantial benefit), directly and
indirectly, from continuation of the
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 18
extension of credit, the execution and delivery of the Restated Lease Agreement
and the other transactions contemplated therein. Debtor will receive reasonably
equivalent value in exchange for the Collateral being provided by it pursuant to
the Restated Lease Agreement to which it is a party as security for the payment
and performance of the Obligations.
ARTICLE 4
Covenants
---------
Debtor covenants and agrees with Secured Party that until the
Obligations are paid and performed in full, the rights and obligations of
Secured Party and the Lessors under the Restated Lease Agreement and all
commitments of Secured Party to extend credit have expired or have been
terminated:
Section 4.1 Encumbrances. Except as otherwise permitted by the terms of
the Restated Lease Agreement relating to the disposition of assets, Debtor shall
not create, permit or suffer to exist, and shall defend the Collateral against,
any Lien or other encumbrance on the Collateral except for Permitted
Encumbrances which are, in accordance with the Restated Lease Agreement,
permitted to attach to such Collateral, and shall defend Debtor's rights in the
Collateral and Secured Party's pledge and collateral assignment of and security
interest in the Collateral against the claims and demands of all Persons.
Subject to the creation or existence of Permitted Encumbrances under the
Restated Lease Agreement, Debtor shall do nothing to impair the rights of
Secured Party in the Collateral.
Section 4.2 [INTENTIONALLY OMITTED]
Section 4.3 Disposition of Collateral. Except as expressly permitted by
the terms of the Restated Lease Agreement, Debtor shall not sell, lease, assign
(by operation of law or otherwise) or otherwise dispose of, or grant any option
with respect to, the Collateral or any part thereof without the prior written
consent of Secured Party.
Section 4.4 Further Assurances.
(a) Generally; Control. At any time and from time to time,
upon the request of Secured Party, and at the sole expense of Debtor,
Debtor shall promptly execute and deliver all such further agreements,
documents and instruments and take such further action as Secured Party
may reasonably deem necessary or appropriate to preserve and perfect
its security interest in and pledge and collateral assignment of the
Collateral and the required priority of such security interest, to
carry out the terms and provisions and purposes of this Agreement and
to enable Secured Party to exercise and enforce its rights and remedies
hereunder with respect to any of the Collateral, whether in
anticipation of or following the effectiveness of Revised Article 9 in
any jurisdiction, and, without limiting the generality of the
foregoing, to the extent any of the Collateral at any time constitutes
Investment Property, Deposit Accounts, Electronic Chattel Paper or
Letter of Credit Rights, then Debtor shall
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 19
cause Secured Party to obtain control of such Collateral in accordance
with Section 9-314 of the UCC and the corresponding provisions in
Sections 9-104, 9-105, 9-106 and 9-107 (as applicable) of the UCC,
pursuant to agreements establishing such control in form and substance
reasonably satisfactory to Secured Party.
(b) Preservation; Assignments; Intellectual Property. Except
as otherwise expressly permitted by the terms of the Restated Lease
Agreement relating to disposition of assets and except for Permitted
Encumbrances, Debtor agrees to defend the title to the Collateral and
the Lien thereon of Secured Party against the claim of any other Person
and to maintain and preserve such Lien. Without limiting the generality
of the foregoing, Debtor shall (a) execute and deliver to Secured Party
such financing statements, including transmitting utility filings,
continuation statements and amendments thereto (collectively,
"Financing Statements"), as Secured Party may from time to time
require; (b) deliver and pledge to Secured Party all Documents
(including, without limitation, all documents of title) evidencing
Inventory or Equipment having a value in excess of $100,000 (except for
certificates of title covering vehicles unless otherwise required by
Secured Party) and cause Secured Party to be named as lienholder on all
such Documents; (c) deliver and pledge to Secured Party all Instruments
and Chattel Paper of Debtor having a value in excess of $100,000 with
any necessary endorsements; (d) if and to the extent required by the
Restated Lease Agreement, execute and deliver to Secured Party an
assignment (in form and substance satisfactory to Secured Party) of
contract rights under any material Contract following (and in any
event, within ten days after) the execution thereof and obtain from
each of the parties to each of the material Contracts, other than
Subsidiaries and affiliates of Savvis who grant security interests in
such contracts to Secured Party, an agreement in writing, in form and
substance satisfactory to Secured Party, pursuant to which, among other
things, such parties consent to the grant of such security interests;
(e) execute and deliver to Secured Party, at the request of Secured
Party, all such agreements, documents, instruments and other items as
may be reasonably necessary or appropriate for Secured Party to create
and perfect its security interest in the Intellectual Property and to
make all appropriate filings with respect thereto; and (f) execute and
deliver to Secured Party such other agreements, documents and
instruments as Secured Party may reasonably require to perfect and
maintain the validity, effectiveness and priority of the Liens intended
to be created by the Restated Lease Agreement.
(c) Financing Statements. Debtor authorizes Secured Party to
file one or more Financing Statements or continuation statements
relating to all or any part of the Collateral without the signature of
Debtor where permitted by law. A carbon, photographic or other
reproduction of this Agreement or of any Financing Statement covering
the Collateral or any part thereof shall be sufficient as a Financing
Statement and may be filed as a Financing Statement. Secured Party may,
at any time and from time to time, pursuant to the provisions of this
Section 4.4, file Financing Statements that describe the Collateral as
all assets and/or all personal Property of Debtor or words of similar
effect and which contain any other information required by Part 5 of
Revised Article 9 for the sufficiency or filing office acceptance of
any Financing Statement, including whether Debtor is an organization,
the type
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 20
of organization and any organization identification number issued to
Debtor. Debtor agrees to furnish any such information to Secured Party
promptly upon request. Any such Financing Statements may be signed by
Secured Party on behalf of Debtor and may be filed at any time in any
jurisdiction whether or not Revised Article 9 is then in effect in that
jurisdiction. Debtor acknowledges that it is not authorized to file any
Financing Statement or amendment or termination statement with respect
to any Financing Statement without the prior written consent of Secured
Party and agrees that it will not do so without the prior written
consent of Secured Party, subject to Debtor's rights under Section
9-509(d)(2) of the UCC.
Section 4.5 Insurance. Debtor shall maintain insurance in the types and
amounts, and under the terms and conditions, specified in Section 5.4(a) of the
Restated Lease Agreement. If applicable, recoveries under any such policy of
insurance shall be paid as provided in Section 5.4(c) of the Restated Lease
Agreement.
Section 4.6 Bailees. If any of the Collateral is at any time in the
possession or control of any warehouseman, bailee or any of Debtor's agents or
processors, Debtor shall, at the request of Secured Party, notify such
warehouseman, bailee, agent or processor of the security interest created
hereunder, shall instruct such Person to hold such Collateral for Secured
Party's account subject to Secured Party's instructions and shall cause such
Person to acknowledge in writing, in form and substance reasonably satisfactory
to Secured Party, that it holds such Collateral for the benefit of Secured
Party.
Section 4.7 Inspection Rights. Debtor shall permit Secured Party and
its representatives and agents, during normal business hours and upon reasonable
notice to Debtor, to examine, copy and make extracts from its books and records,
to visit and inspect its Properties and to discuss its business, operations and
financial condition with its officers and independent certified public
accountants. Debtor will authorize its accountants in writing (with a copy to
Secured Party) to comply with this Section. Secured Party and/or its
representatives may, at any time and from time to time at Debtor's expense,
conduct field exams for such purposes as Secured Party may reasonably request
during normal business hours and upon reasonable notice to Debtor.
Section 4.8 [INTENTIONALLY OMITTED]
Section 4.9 Corporate Changes. Debtor shall not change its name,
identity, jurisdiction of organization or corporate structure in any manner that
might make any Financing Statement filed in connection with this Agreement
misleading or its United States Federal Tax I.D. Number, in each case unless
Debtor shall have given Secured Party 30 days prior written notice thereof and
shall have taken all action deemed necessary or appropriate by Secured Party to
protect its Liens and the perfection and priority thereof. Debtor shall not
change its principal place of business, chief executive office or the place
where it keeps its books and records unless it shall have given Secured Party 30
days prior written notice thereof and shall have taken all action deemed
necessary or appropriate by Secured Party to cause its security interest in the
Collateral to be perfected with the priority required by the Credit Documents.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 21
Section 4.10 Books and Records; Information. Debtor shall maintain
appropriate books of records and accounts in accordance with GAAP where required
by the Restated Lease Agreement consistently applied in which true, full and
correct entries will be made of its dealings and business affairs. Debtor shall
from time to time at the request of Secured Party deliver to Secured Party such
information regarding the Collateral and Debtor as Secured Party may reasonably
request, including, without limitation, lists and descriptions of the Collateral
and evidence of the identity and existence of the Collateral. To the extent
required by Section 4.4, Debtor shall xxxx its books and records to reflect the
security interest of Secured Party under this Agreement.
Section 4.11 Equipment, Fixtures and Inventory.
(a) Debtor shall keep its Equipment (other than vehicles),
Fixtures and Inventory (other than Inventory in transit) constituting
Collateral and having a value in excess of $100,000 at the locations
specified on Schedule 4 or at such other places within the U.S. where
all action required to perfect Secured Party's security interest in any
such Equipment, Fixtures and Inventory with the priority required by
the Restated Lease Agreement shall have been taken; provided that if
any such Equipment (other than vehicles), Fixtures or Inventory (other
than Inventory in transit) is being relocated to any jurisdiction where
the security interest of Secured Party under this Agreement has not
been previously perfected, then in such case Debtor shall deliver
prompt (and in any event within not less than 30 days) notice thereof
to Secured Party.
(b) Debtor shall maintain material Equipment, Fixtures and
Inventory constituting Collateral in good condition and repair
(ordinary wear and tear excepted) and in accordance with the terms of
the Restated Lease Agreement. Debtor shall not permit any waste or
destruction of such Equipment, Fixtures or Inventory or any part
thereof. Debtor shall not permit such Equipment, Fixtures or Inventory
to be used in violation of any law, rule or regulation or the terms of
any policy of insurance. Debtor shall not use or permit any of such
Equipment, Fixtures or Inventory to be used in any manner or for any
purpose that would impair its value or expose it to unusual risk.
(c) Within 45 days of the end of each of Debtor's fiscal
quarters, Debtor shall provide Secured Party with a report setting
forth in reasonable detail any change during such preceding fiscal
quarter of the location of any Equipment, Fixtures or Inventory (unless
such location is one of the locations already specified on Schedule 4)
constituting Collateral.
Section 4.12 Warehouse Receipts Non-Negotiable. Debtor agrees that if
any warehouse receipt or receipt in the nature of a warehouse receipt is issued
in respect of any of the Collateral, such warehouse receipt or receipt in the
nature thereof shall not be "negotiable" (as such term is used in Section 7.104
of the UCC) unless such warehouse receipt or receipt in the nature thereof is
delivered to Secured Party; provided, however, that Debtor shall not be required
to deliver any warehouse receipt pursuant to this Section 4.12 unless the fair
market value of such warehouse receipt exceeds $100,000; provided, further,
however, the aggregate fair market value of all
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 22
warehouse receipts which have not been delivered to Secured Party pursuant to
this Section 4.12 shall not at any time exceed $250,000.
Section 4.13 Notification. Debtor shall promptly notify Secured Party
of (a) any Lien, encumbrance or claim (other than Permitted Encumbrances) that
has attached to or been made or asserted against any of the Collateral, (b) any
material change in any of the Collateral, including, without limitation, any
material damage to or loss of Collateral, and (c) the occurrence of any other
event or condition (including, without limitation, matters as to Lien priority)
that could reasonably be expected to have a material adverse effect on the
Collateral or the security interest created hereunder.
Section 4.14 [INTENTIONALLY OMITTED]
Section 4.15 Intellectual Property. Except with the written consent of
Secured Party:
(a) If Debtor shall obtain rights to or become entitled to the
benefit of any Intellectual Property not identified on Schedule 1, the
provisions of this Agreement shall automatically apply thereto. Debtor
shall undertake to modify or update Schedule 1 to include any such new
Intellectual Property and hereby authorizes Secured Party to modify or
update Schedule 1 to include any such new Intellectual Property in the
event Debtor fails to timely modify or update Schedule 1 upon written
notice from Secured Party;
(b) Upon the occurrence of any event that would require any
addition to or modification of Schedule 1 or upon the request of
Secured Party, Debtor shall furnish to Secured Party statements and
schedules further identifying the Intellectual Property and such other
items in connection with the Intellectual Property as Secured Party may
request. Promptly upon the request of Secured Party, Debtor shall
modify this Agreement by amending Schedule 1 to include any
Intellectual Property that becomes part of the Collateral;
(c) If an Event of Default shall have occurred and be
continuing, Debtor shall use its best efforts to obtain any consents,
waivers or agreements necessary to enable Secured Party to exercise its
rights and remedies with respect to the Intellectual Property; and
(d) Debtor shall, at the request of Secured Party, execute and
deliver to Secured Party a Copyright Security Agreement, a Patent
Security Agreement, a Trademark Security Agreement and all other
agreements, documents, instruments and other items as may be necessary
for Secured Party to file such agreements with the United States
Copyright Office, the United States Patent and Trademark Office and any
similar domestic or foreign office, department or agency. Debtor will,
at any time and from time to time upon the request of Secured Party,
execute and deliver to Secured Party all such other agreements,
documents, instruments and other items as may be necessary or
appropriate for Secured Party to create and perfect its security
interest in the Intellectual Property and to make all appropriate
filings with respect thereto.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 23
Section 4.16 Voting Rights, Distributions, Etc.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) Debtor shall be entitled to exercise any and all
voting and other consensual rights (including, without
limitation, the right to give consents, waivers and
notifications in respect of any of the Pledged Collateral)
pertaining to any of the Pledged Collateral or any part
thereof; and
(ii) Unless an Event of Default shall have occurred
and be continuing, Debtor shall be entitled to receive and
retain any and all dividends and interest paid in respect of
any of the Collateral to the extent permitted by the Restated
Lease Agreement; provided, however, that any and all
(A) Restricted Payments paid or payable in
violation of the terms of the Restated Lease
Agreement,
(B) Restricted Payments paid or payable
other than in cash in respect of, and instruments and
other Property received, receivable or otherwise
distributed in respect of, or in exchange for, any
Collateral,
(C) Restricted Payments hereafter paid or
payable in cash in respect of any Collateral 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
(D) cash paid, payable or otherwise
distributed in redemption of, or in exchange for, any
Collateral,
shall be, and shall be forthwith delivered to Secured Party to hold as,
Collateral and shall, if received by Debtor, be received in trust for
the benefit of Secured Party, be segregated from the other Property or
funds of Debtor and be forthwith delivered to Secured Party as
Collateral in the same form as so received (with any necessary
endorsement). All amounts (other than amounts described in clauses
(ii)(A) through (D) above) received by Secured Party in respect of any
Pledged Collateral shall be either (1) promptly released to Debtor, so
long as no Default or Event of Default shall have occurred and be
continuing or (2) if any Default or Event of Default shall have
occurred and be continuing, held by Secured Party and (if an Event of
Default shall have occurred and be continuing) applied as provided by
the Credit Agreement. During the continuance of any Default, any
dividends, interest or other distributions (whether in cash,
securities, Property or otherwise) received by Debtor with respect to
any Collateral shall be held by Debtor in trust for the benefit of
Secured Party and during the continuance of any Event of Default, upon
the request of Secured Party, shall be delivered promptly to Secured
Party to hold as Collateral or shall be applied by Secured Party toward
payment of the Obligations, as Secured Party may in its discretion
determine. If such
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 24
Event of Default is waived or cured to the satisfaction of Secured
Party, any such distributions received by Secured Party (except those
of the types described in clauses (ii)(A) through (D) above which shall
not be released to Debtor) shall be returned promptly to Debtor
(provided that no other Default or Event of Default exists).
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) Secured Party may, without notice to Debtor,
transfer or register in the name of Secured Party or any of
its nominees any or all of the Collateral described in Section
2.1(k) or Section 2.1(o), the proceeds thereof (in cash or
otherwise) and all liens, security, rights, remedies and
claims of Debtor with respect thereto (collectively, the
"Pledged Collateral") held by Secured Party hereunder, and
Secured Party or its nominee may thereafter, after delivery of
notice to Debtor, exercise all voting and corporate rights at
any meeting of any corporation, partnership or other business
entity issuing any of the Pledged Collateral and any and all
rights of conversion, exchange, subscription or any other
rights, privileges or options pertaining to any of the Pledged
Collateral as if it were the absolute owner thereof,
including, without limitation, the right to exchange at its
discretion any and all of the Pledged Collateral upon the
merger, consolidation, reorganization, recapitalization or
other readjustment of any corporation, partnership or other
business entity issuing any of such Pledged Collateral or upon
the exercise by any such issuer or Secured Party of any right,
privilege or option pertaining to any of the Pledged
Collateral, and in connection therewith, to deposit and
deliver any and all of the Pledged Collateral with any
committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as it may
determine, all without liability except to account for
Property actually received by it, but Secured Party shall have
no duty to exercise any of the aforesaid rights, privileges or
options, and neither Secured Party nor any Lessor shall be
responsible for any failure to do so or delay in so doing;
(ii) All rights of Debtor to exercise the voting and
other consensual rights which it would otherwise be entitled
to exercise pursuant to Section 4.16(a)(i) and to receive the
dividends, interest and other distributions which it would
otherwise be authorized to receive and retain pursuant to
Section 4.16(a)(ii) shall be suspended until such Event of
Default shall no longer exist, and all such rights shall,
until such Event of Default shall no longer exist, thereupon
become vested in Secured Party which shall thereupon have the
sole right to exercise such voting and other consensual rights
and to receive and hold as Pledged Collateral such dividends,
interest and other distributions;
(iii) All dividends, interest and other distributions
which are received by Debtor contrary to the provisions of
this Section 4.16(b) shall be received in trust for the
benefit of Secured Party, shall be segregated from other funds
of Debtor and shall be forthwith paid over to Secured Party as
Collateral in the same form as so received (with any necessary
endorsement); and
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 25
(iv) Debtor shall execute and deliver (or cause to be
executed and delivered) to Secured Party all such proxies and
other instruments as Secured Party may request for the purpose
of enabling Secured Party to exercise the voting and other
rights which it is entitled to exercise pursuant to this
Section 4.16(b) and to receive the dividends, interest and
other distributions which it is entitled to receive and retain
pursuant to this Section 4.16(b). The foregoing shall not in
any way limit Secured Party's power and authority granted
pursuant to Section 5.1.
Section 4.17 Transfers and Other Liens; Additional Investments.
(a) Except as may be expressly permitted by the terms of the
Restated Lease Agreement, Debtor shall not grant any option with
respect to, exchange, sell or otherwise dispose of any of the
Collateral or create or permit to exist any Lien upon or with respect
to any of the Collateral except for the Liens created hereby and
Permitted Encumbrances which are, in accordance with the Restated Lease
Agreement, permitted to attach to such Collateral.
(b) Debtor agrees that it will (i) cause its U.S. Subsidiaries
not to issue any Capital Stock, notes or other securities or
instruments in addition to or in substitution for any of the Pledged
Shares, except (A) with prior written notice to Secured Party, to
Debtor or (B) with the written consent of Secured Party, to any Person
other than Debtor, (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all such Capital
Stock, notes or other securities or instruments, issued to Debtor or
received in addition to or substituted for any of the Pledged
Collateral, and (iii) promptly (and in any event within three Business
Days) deliver to Secured Party an Amendment, duly executed by Debtor,
in substantially the form of Exhibit D (an "Amendment"), in respect of
such Capital Stock, notes or other securities or instruments, and
deliver all certificates, notes or other securities or instruments
representing or evidencing the same to Secured Party. Debtor hereby (1)
authorizes Secured Party to attach each Amendment to this Agreement,
and (2) agrees that all such Capital Stock, notes or other securities
or instruments listed on any Amendment delivered to Secured Party shall
for all purposes hereunder constitute Pledged Collateral.
Section 4.18 Possession; Reasonable Care. Regardless of whether a
Default or an Event of Default has occurred or is continuing, Secured Party
shall have the right to hold in its possession all Instruments, Chattel Paper,
Pledged Collateral and other Collateral as to which possession thereof by
Secured Party is necessary or appropriate to perfect its Lien therein. Secured
Party may, from time to time, in its sole discretion, appoint one or more agents
(which in no case shall be Debtor or an Affiliate of Debtor) to hold physical
custody, for the account of Secured Party, of any or all of the Collateral.
Secured Party shall be deemed to have exercised reasonable care in the custody
and preservation of the Collateral in its possession if the Collateral is
accorded treatment substantially equal to that which Secured Party accords its
own Property, it being understood that Secured Party shall not have any
responsibility for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 26
Secured Party has or is deemed to have knowledge of such matters, or (b) taking
any necessary steps to preserve rights against any parties with respect to any
Collateral. Following the occurrence and during the continuation of an Event of
Default, Secured Party shall be entitled to take possession of all of the
Collateral.
Section 4.19 Acknowledgment of Collateral Assignment of Deposit
Accounts. Debtor shall deliver to Secured Party, within 45 days of the execution
hereof and at any time as Secured Party may request thereafter, acknowledgment
by each financial institution in which any Deposit Account is held or maintained
that the collateral assignment of such Deposit Account has been recorded in the
books and records of such financial institution, and that Secured Party shall
have dominion and control over such Deposit Account, such acknowledgment to be
in form and substance satisfactory to Secured Party.
Section 4.20 Statement of Account on Deposit Accounts. Debtor shall,
from time to time upon written request of Secured Party, provide to Secured
Party a copy of any requested statement of account on any Deposit Account
received by Debtor from the financial institution in which a Deposit Account is
held or maintained. At Secured Party's request, Debtor will use its reasonable
efforts to make such arrangements as are necessary or appropriate in order to
enable Secured Party to access such information by inquiry of an officer or
other representative of any such financial institution or via any automated
information system which may be maintained by such financial institution.
Section 4.21 Commercial Tort Claims. If any responsible officer of
Debtor shall at any time, whether or not Revised Article 9 is in effect in any
particular jurisdiction, become aware that Debtor has acquired (a) a Commercial
Tort Claim, as defined in Revised Article 9, in an amount greater than $100,000
or (b) if and to the extent necessary to comply with the succeeding proviso,
other commercial tort claims, as defined in Revised Article 9, Debtor shall
immediately notify Secured Party in a writing signed by Debtor of the details
thereof and grant to Secured Party in such writing a security interest therein
and in the proceeds thereof, all upon the terms of this Agreement, with such
writing to be in form and substance satisfactory to Secured Party; provided,
however, that the aggregate amount of Commercial Tort Claims in which Secured
Party shall not have a perfected security interest shall not at any time exceed
$250,000.
Section 4.22 Letter-of-Credit Rights. If Debtor becomes the beneficiary
of a Letter of Credit, Debtor shall promptly, and in any event within two (2)
Business Days after becoming a beneficiary, notify Secured Party thereof and
enter into a tri-party agreement with Secured Party and the issuer and/or
confirmation bank with respect to Letter-of-Credit Rights assigning such
Letter-of-Credit Rights to Secured Party and directing all payment thereunder to
the Collection Account, all in form and substance reasonably satisfactory to
Secured Party.
Section 4.23 Indemnification. In any suit, proceeding or action brought
by Secured Party relating to any Collateral for any sum owing with respect
thereto or to enforce any rights or claims with respect thereto, Debtor will
save, indemnify and keep Secured Party harmless from and against all expense
(including reasonable attorneys' fees and expenses), loss or damage suffered by
reason of any defense, setoff, counterclaim, recoupment or reduction of
liability whatsoever of the account
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 27
debtor or other Person obligated on the Collateral, arising out of a breach by
Debtor of any obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to, or in favor of, such obligor or
its successors from Debtor, except in the case of Secured Party, to the extent
such expense, loss, or damage is attributable solely to the gross negligence or
willful misconduct of Secured Party as finally determined by a court of
competent jurisdiction. All such obligations of Debtor shall be and remain
enforceable against and only against Debtor and shall not be enforceable against
Secured Party.
ARTICLE 5
Rights of Secured Party
-----------------------
Section 5.1 Power of Attorney. Debtor hereby irrevocably constitutes
and appoints Secured Party and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the name of Debtor or in its own name, to take, after the
occurrence and during the continuance of an Event of Default, any and all action
and to execute any and all documents and instruments which Secured Party at any
time and from time to time deems necessary or desirable to accomplish the
purposes of this Agreement and, without limiting the generality of the
foregoing, Debtor hereby gives Secured Party the power and right on behalf of
Debtor and in its own name to do any of the following after the occurrence and
during the continuance of an Event of Default, without notice to or the consent
of Debtor:
(a) to demand, xxx for, collect or receive, in the name of
Debtor or in its own name, any money or Property at any time payable or
receivable on account of or in exchange for any of the Collateral and,
in connection therewith, endorse checks, notes, drafts, acceptances,
money orders, documents of title or any other instruments for the
payment of money under the Collateral or any policy of insurance set
forth, specified or required by the Restated Lease Agreement;
(b) to pay or discharge taxes, Liens or other encumbrances
levied or placed on or threatened against the Collateral;
(c) to notify post office authorities to change the address
for delivery of mail of Debtor to an address designated by Secured
Party and to receive, open and dispose of mail addressed to Debtor;
(d) (i) to direct account debtors and any other parties liable
for any payment under any of the Collateral to make payment of any and
all monies due and to become due thereunder directly to Secured Party
or as Secured Party shall direct, provided, that Secured Party shall
use reasonable efforts to give Debtor prior notice of the form of any
such communication and Debtor shall have one (1) business day from
receipt of such notice to provide input as to the form of such
communication, which input may be accepted or rejected in the
reasonable discretion of Secured Party; (ii) to receive payment of and
receipt for any and all monies, claims and other amounts due and to
become due at any time in respect of or
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 28
arising out of any Collateral; (iii) to sign and endorse any invoices,
freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, proxies, stock powers,
verifications and notices in connection with accounts and other
documents relating to the Collateral; (iv) to commence and prosecute
any suit, action or proceeding at law or in equity in any court of
competent jurisdiction to collect the Collateral or any part thereof
and to enforce any other right in respect of any Collateral; (v) to
defend any suit, action or proceeding brought against Debtor with
respect to any Collateral; (vi) to settle, compromise or adjust any
suit, action or proceeding described above and, in connection
therewith, to give such discharges or releases as Secured Party may
deem appropriate; (vii) to exchange any of the Collateral for other
Property upon any merger, consolidation, reorganization,
recapitalization or other readjustment of the issuer thereof and, in
connection therewith, deposit any of the Collateral with any committee,
depositary, transfer agent, registrar or other designated agency upon
such terms as Secured Party may determine; (viii) to add or release any
guarantor, indorser, surety or other party to any of the Collateral;
(ix) to renew, extend or otherwise change the terms and conditions of
any of the Collateral; (x) to grant or issue any exclusive or
nonexclusive license under or with respect to any of the Intellectual
Property; (xi) to endorse Debtor's name on all applications, documents,
papers and instruments necessary or desirable in order for Secured
Party to use any of the Intellectual Property; (xii) to make, settle,
compromise or adjust any claims under or pertaining to any of the
Collateral (including, without limitation, claims under any policy of
insurance); and (xiii) to sell, transfer, pledge, convey, make any
agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though Secured Party were the absolute owner
thereof for all purposes, and to do, at Secured Party's option and
Debtor's expense, at any time, or from time to time, all acts and
things which Secured Party deems necessary to protect, preserve,
maintain or realize upon the Collateral and Secured Party's security
interest therein.
This power of attorney is a power coupled with an interest and shall be
irrevocable until this Agreement is terminated in accordance with its terms.
Secured Party shall be under no duty to exercise or withhold the exercise of any
of the rights, powers, privileges and options expressly or implicitly granted to
Secured Party in this Agreement, and shall not be liable for any failure to do
so or any delay in doing so. Neither Secured Party nor any Person designated by
Secured Party shall be liable for any act or omission or for any error of
judgment or any mistake of fact or law except for gross negligence or willful
misconduct or as set forth in Section 4.18. This power of attorney is conferred
on Secured Party solely to protect, preserve, maintain and realize upon its
security interest in the Collateral. Secured Party shall not be responsible for
any decline in the value of the Collateral and shall not be required to take any
steps to preserve rights against prior parties or to protect, preserve or
maintain any Lien given to secure the Collateral.
Section 5.2 Set-off. The Secured Party shall, after the occurrence and
during the continuation of an Event of Default, have the right to set off and
apply against the Obligations, at any time and without notice to Debtor or
Savvis, any and all deposits (general or special, time or demand, provisional or
final) or other sums at any time credited by or owing from the Secured Party to
Debtor and although such Obligations may be unmatured. The rights and remedies
of Secured Party and the
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 29
Lessors hereunder are in addition to other rights and remedies (including,
without limitation, other rights of setoff) that Secured Party may have.
Section 5.3 [INTENTIONALLY OMITTED]
Section 5.4 Performance by Secured Party. If Debtor shall fail to
perform any covenant or agreement contained in this Agreement, Secured Party may
perform or attempt to perform such covenant or agreement on behalf of Debtor. In
such event, Debtor shall, at the request of Secured Party, promptly pay any
amount expended by Secured Party in connection with such performance or
attempted performance to Secured Party, together with interest thereon at the
default rate as described in Section 1.3 of the Restated Lease Agreement from
and including the date of such expenditure to but excluding the date such
expenditure is paid in full. Notwithstanding the foregoing, it is expressly
agreed that Secured Party shall not have any liability or responsibility for the
performance of any indebtedness, liability or obligation of Debtor under this
Agreement.
Section 5.5 License. If no Event of Default shall have occurred and be
continuing, Debtor shall have the exclusive, non-transferable right and license
to use the Intellectual Property in the ordinary course of business and the
exclusive right to grant to other Persons licenses and sublicenses with respect
to the Intellectual Property for full and fair consideration. Debtor agrees not
to sell or assign its interest in, or grant any sublicense under, the license
granted under this Section 5.5 without the prior written consent of Secured
Party.
Section 5.6 Change of Depository. In the event of the termination by
any financial institution in which any Deposit Account is maintained of any
agreement with or for the benefit of Secured Party, or if any such financial
institution shall fail to comply with any material provisions of any such
agreement or any instructions of Secured Party in accordance with any such
agreement or this Agreement, or if Secured Party determines in its reasonable
discretion that the financial condition of any such financial institution has
materially deteriorated, Debtor agrees to transfer the affected Deposit
Account(s) to another financial institution reasonably acceptable to Secured
Party and cause such substitute financial institution to execute such agreements
as Secured Party may require, in form and substance acceptable to Secured Party,
to ensure that Secured Party has a perfected, first priority collateral
assignment of or security interest in the Deposit Account(s) held with such
substitute financial institution. If any affected Deposit Account is a lockbox
account, Debtor agrees to notify its account debtors promptly to remit all
payments which were being sent to the terminated Deposit Account directly to the
substitute Deposit Account.
Section 5.7 Collection of Deposit Accounts. After the occurrence and
during the continuation of an Event of Default, upon written demand from Secured
Party to any financial institution in which any of the Deposit Accounts are
maintained, each such financial institution is hereby authorized and directed by
Debtor to make payment directly to Secured Party of the funds in or credited to
the Deposit Accounts, or such part thereof as Secured Party may request, and
each such financial institution shall be fully protected in relying upon the
written statement of Secured Party that an Event of Default has occurred and is
continuing and that the Deposit Accounts are at the time of such demand assigned
hereunder and that Secured Party is entitled to payment of the Obligations
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 30
therefrom. Secured Party's receipt for sums paid to it pursuant to such demand
shall be a full and complete release, discharge and acquittance to the
depository or other financial institution making such payment to the extent of
the amount so paid. Debtor hereby authorizes Secured Party, upon (a) the
occurrence and during the continuation of an Event of Default consisting of
Debtor's failure to make payment of any of the Obligations, or any part thereof,
or (b) any acceleration of the maturity of the Obligations upon the occurrence
of any Event of Default, each as provided in the Restated Lease Agreement, (i)
to withdraw, collect and receipt for any and all funds, securities or other
investments on deposit in or payable on the Deposit Accounts, (ii) on behalf of
Debtor to endorse the name of Debtor upon any checks, drafts or other
instruments payable to Debtor evidencing payment on the Deposit Accounts, and
(iii) to surrender or present for notation of withdrawal the passbook,
certificate or other documents issued to Debtor in connection with the Deposit
Accounts. No power granted herein to Secured Party by Debtor shall terminate
upon any disability of Debtor.
ARTICLE 6
Default
-------
Section 6.1 Rights and Remedies. If an Event of Default shall have
occurred and be continuing, Secured Party shall have the following rights and
remedies (subject to Section 6.3):
(a) In addition to all other rights and remedies granted to
Secured Party in this Agreement or in the Restated Lease Agreement or
by applicable law, Secured Party shall have all of the rights and
remedies of a secured party under the UCC (whether or not the UCC
applies to the affected Collateral) and Secured Party may also, without
notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any of Secured Party's offices or
elsewhere, for cash, on credit or for future delivery, and upon such
other terms as Secured Party may deem commercially reasonable or
otherwise as may be permitted by law. Without limiting the generality
of the foregoing, Secured Party may (i) without demand or notice to
Debtor, collect, receive or take possession of the Collateral or any
part thereof and for that purpose Secured Party may enter upon any
premises on which the Collateral is located and remove the Collateral
therefrom or render it inoperable, and/or (ii) sell, lease or otherwise
dispose of the Collateral, or any part thereof, in one or more parcels
at a public or private sale or sales, at Secured Party's offices or
elsewhere, for cash, on credit or for future delivery, and upon such
other terms as Secured Party may deem commercially reasonable or
otherwise as may be permitted by law. Secured Party shall have the
right at any public sale or sales, and, to the extent permitted by
applicable law, at any private sale or sales, to bid (which bid may be,
in whole or in part, in the form of cancellation of indebtedness) and
become a purchaser of the Collateral or any part thereof free of any
right or equity of redemption on the part of Debtor, which right or
equity of redemption is hereby expressly waived and released by Debtor.
Upon the request of Secured Party, Debtor shall assemble the Collateral
and make it available to Secured Party at any place designated by
Secured Party that is reasonably convenient to Debtor and Secured
Party. If and to the extent that Secured Party is required by
applicable law to give prior written notice of the time and/or place of
any such sale,
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 31
Debtor agrees that Secured Party shall not be obligated to give more
than five days prior written notice of the time and place of any public
sale or of the time after which any private sale may take place and
that such notice shall constitute reasonable notice of such matters.
Secured Party shall not be obligated to make any sale of Collateral if
it shall determine not to do so, regardless of the fact that notice of
sale of Collateral may have been given. Secured Party may, without
notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and
place fixed for sale, and such sale may, without further notice, be
made at the time and place to which the same was so adjourned. Debtor
shall be liable for all expenses of retaking, holding, preparing for
sale or the like, and all attorneys' fees, legal expenses and other
costs and expenses incurred by Secured Party in connection with the
collection of the Obligations and the enforcement of Secured Party's
rights under this Agreement. Debtor shall remain liable for any
deficiency if the Proceeds of any sale or other disposition of the
Collateral applied to the Obligations are insufficient to pay the
Obligations in full. Secured Party may apply the Collateral against the
Obligations in such order and manner as Secured Party may elect in its
sole discretion. Debtor waives all rights of marshaling, valuation and
appraisal in respect of the Collateral. Any cash held by Secured Party
as Collateral and all cash proceeds received by Secured Party in
respect of any sale of, collection from or other realization upon all
or any part of the Collateral may, in the discretion of Secured Party,
be held by Secured Party as collateral for, and then or at any time
thereafter applied in whole or in part by Secured Party against, the
Obligations in such order as Secured Party shall select. Any surplus of
such cash or cash proceeds and interest accrued thereon, if any, held
by Secured Party and remaining after payment in full of all the
Obligations shall be paid over to Debtor or to whomsoever may be
lawfully entitled to receive such surplus; provided that Secured Party
shall have no obligation to invest or otherwise pay interest on any
amounts held by it in connection with or pursuant to this Agreement.
(b) Secured Party may cause any or all of the Collateral held
by it to be transferred into the name of Secured Party or the name or
names of Secured Party's nominee or nominees.
(c) Secured Party may exercise any and all rights and remedies
of Debtor under or in respect of the Collateral, including, without
limitation, any and all rights of Debtor to demand or otherwise require
payment of any amount under, or performance of any provision of, any of
the Collateral and any and all voting rights and corporate powers in
respect of the Collateral.
(d) Secured Party may collect or receive all money or Property
at any time payable or receivable on account of or in exchange for any
of the Collateral, but shall be under no obligation to do so.
(e) On any sale of the Collateral, Secured Party is hereby
authorized to comply with any limitation or restriction with which
compliance is necessary, in the view of Secured
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 32
Party's counsel, in order to avoid any violation of applicable law or
in order to obtain any required approval of the purchaser or purchasers
by any applicable Governmental Authority.
(f) For purposes of enabling Secured Party to exercise its
rights and remedies under this Section 6.1 and enabling Secured Party
and its successors and assigns to enjoy the full benefits of the
Collateral, Debtor hereby grants to Secured Party an irrevocable,
nonexclusive license (exercisable without payment of royalty or other
compensation to Debtor) to use, assign, license or sublicense any of
the Intellectual Property that constitutes a part of the Collateral,
including in such license reasonable access to all media in which any
of the licensed items may be recorded or stored and all computer
programs used for the completion or printout thereof. This license
shall also inure to the benefit of all successors, assigns and
transferees of Secured Party.
(g) Secured Party may require that Debtor assign all of its
right, title and interest in and to the Intellectual Property or any
part thereof to Secured Party or such other Person as Secured Party may
designate pursuant to documents satisfactory to Secured Party.
Section 6.2 Registration Rights, Private Sales, Etc.
(a) If Secured Party shall determine to exercise its right to
sell all or any of the Pledged Shares pursuant to Section 6.1, Debtor
agrees that, upon the request of Secured Party (which request may be
made by Secured Party in its sole discretion), Debtor will, at its own
expense:
(i) execute and deliver, and use its best efforts to
cause each issuer of any of the Pledged Shares contemplated to
be sold and the directors and officers thereof to execute and
deliver, all such agreements, documents and instruments, and
do or cause to be done all such other acts and things, as may
be reasonably necessary or, in the reasonable opinion of
Secured Party, advisable to register such Pledged Shares under
the provisions of the Securities Act (as hereinafter defined)
and to cause the registration statement relating thereto to
become effective and to remain effective for such period as
prospectuses are required by law to be furnished and to make
all amendments and supplements thereto and to the related
prospectus which, in the opinion of Secured Party, are
necessary or advisable, all in conformity with the
requirements of the Securities Act of 1933, as amended from
time to time (the "Securities Act") and the rules and
regulations of the Securities and Exchange Commission
applicable thereto;
(ii) if reasonably necessary or, in the reasonable
opinion of Secured Party, advisable, use its best efforts to
qualify such Pledged Shares under all applicable state
securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of such Pledged Shares, as
requested by Secured Party;
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 33
(iii) if reasonably necessary or, in the reasonable
opinion of Secured Party, advisable, cause each such issuer to
make available to its security holders, as soon as
practicable, an earnings statement which will satisfy the
provisions of Section 11(a) of the Securities Act;
(iv) do or cause to be done all such other acts and
things as may be reasonably necessary or appropriate to make
such sale of the Pledged Shares or any part thereof valid and
binding and in compliance with applicable law; and
(v) bear all reasonable costs and expenses, including
reasonable attorneys' fees, of carrying out its obligations
under this Section 6.2.
(b) Debtor recognizes that Secured Party may be unable to
effect a public sale of any or all of the Pledged Shares by reason of
certain prohibitions contained in the Securities Act and applicable
state securities laws but may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers who will be
obliged to agree, among other things, to acquire such Pledged Shares
for their own account for investment and not with a view to the
distribution or resale thereof. Debtor acknowledges and agrees that any
such private sale may result in prices and other terms less favorable
to the seller than if such sale were a public sale and, notwithstanding
such circumstances, agrees that any such private sale shall, to the
extent permitted by law, be deemed to have been made in a commercially
reasonable manner. Neither the Secured Party nor the Lessors shall be
under any obligation to delay a sale of any of the Pledged Shares for
the period of time necessary to permit the issuer of such securities to
register such securities under the Securities Act or under any
applicable state securities laws, even if such issuer would agree to do
so.
(c) Debtor further agrees to do or cause to be done, to the
extent that Debtor may do so under applicable law, all such other acts
and things as may be necessary to make such sales or resales of any
portion or all of the Pledged Shares valid and binding and in
compliance with any and all applicable laws, regulations, orders,
writs, injunctions, decrees or awards of any and all courts,
arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at Debtor's
expense. Debtor further agrees that a breach of any of the covenants
contained in this Section 6.2 will cause irreparable injury to Secured
Party and that Secured Party has no adequate remedy at law in respect
of such breach and, as a consequence, agrees that each and every
covenant contained in this Section 6.2 shall be specifically
enforceable against Debtor, and Debtor hereby waives and agrees, to the
fullest extent permitted by law, not to assert as a defense against an
action for specific performance of such covenants that (i) Debtor's
failure to perform such covenants will not cause irreparable injury to
Secured Party or (ii) Secured Party has an adequate remedy at law in
respect of such breach. Debtor further acknowledges the impossibility
of ascertaining the amount of damages which would be suffered by
Secured Party by reason of a breach of any of the covenants contained
in this Section 6.2 and, consequently, agrees that, if Debtor shall
breach any of such covenants and Secured Party shall xxx for damages
for such breach, Debtor shall pay to Secured Party, as liquidated
damages and not as a penalty, an
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 34
aggregate amount equal to the value of the Pledged Shares on the date
Secured Party shall demand compliance with this Section 6.2.
(d) DEBTOR HEREBY AGREES TO INDEMNIFY, PROTECT AND SAVE
HARMLESS SECURED PARTY AND ANY CONTROLLING PERSONS THEREOF WITHIN THE
MEANING OF THE SECURITIES ACT FROM AND AGAINST ANY AND ALL LIABILITIES,
SUITS, CLAIMS, COSTS AND EXPENSES (INCLUDING REASONABLE COUNSEL FEES
AND DISBURSEMENTS) ARISING UNDER THE SECURITIES ACT, THE SECURITIES AND
EXCHANGE ACT OF 1934, AS AMENDED, ANY APPLICABLE STATE SECURITIES
STATUTE, OR AT COMMON LAW, OR PURSUANT TO ANY OTHER APPLICABLE LAW IN
CONNECTION WITH THE SALE OF ANY SECURITIES OR THE EXERCISE OF ANY OTHER
RIGHT OR REMEDY OF SECURED PARTY, INSOFAR AS SUCH LIABILITIES, SUITS,
CLAIMS, COSTS AND EXPENSES ARISE OUT OF, OR ARE BASED UPON, ANY UNTRUE
STATEMENT OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT MADE BY DEBTOR
OR SAVVIS IN CONNECTION WITH THE SALE OR PROPOSED SALE OF ANY PART OF
THE COLLATERAL, OR ARISES OUT OF, OR IS BASED UPON, THE OMISSION OR
ALLEGED OMISSION BY DEBTOR OR SAVVIS TO STATE A MATERIAL FACT REQUIRED
TO BE STATED IN CONNECTION THEREWITH OR NECESSARY TO MAKE THE
STATEMENTS MADE NOT MISLEADING; PROVIDED, HOWEVER, THAT DEBTOR SHALL
NOT BE LIABLE IN ANY SUCH CASE TO THE EXTENT THAT ANY SUCH LIABILITIES,
SUITS, CLAIMS, COSTS AND EXPENSES ARISE OUT OF, OR ARE BASED UPON, ANY
UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OR OMISSION OR ALLEGED
OMISSION MADE IN RELIANCE UPON AND IN CONFORMITY WITH WRITTEN
INFORMATION FURNISHED TO DEBTOR BY SECURED PARTY SPECIFICALLY FOR
INCLUSION IN CONNECTION THEREWITH. THE FOREGOING INDEMNITY AGREEMENT IS
IN ADDITION TO ANY INDEBTEDNESS, LIABILITY OR OBLIGATION THAT DEBTOR
MAY OTHERWISE HAVE TO SECURED PARTY OR ANY CONTROLLING PERSON THEREOF.
Section 6.3 Compliance with Laws. Notwithstanding anything to
the contrary contained in the Restated Lease Agreement or in any other
agreement, instrument or document executed by Debtor and delivered to
Secured Party, Secured Party will not take any action pursuant to this
Agreement or any document referred to herein which would constitute or
result in any assignment of any FCC License or any change of control
(whether de jure or de facto) of Debtor if such assignment of any FCC
License or change of control would require, under then existing law,
the prior approval of the FCC or any other Governmental Authority
without first obtaining such prior approval of the FCC or other
Governmental Authority. Upon the occurrence of an Event of Default or
at any time thereafter during the continuance thereof, subject to the
terms and conditions of this Agreement, Debtor agrees to take any
action which Secured Party may request in order to obtain from the FCC
or such other Governmental Authority such approval as may be necessary
to enable Secured Party to
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 35
exercise and enjoy the full rights and benefits granted to Secured
Party by this Agreement and the other documents referred to above,
including specifically, at the cost and expense of Debtor, the use of
Debtor's best efforts to assist in obtaining approval of the FCC or
such other Governmental Authority for any action or transaction
contemplated by this Agreement for which such approval is or shall be
required by law, and specifically, without limitation, upon request, to
prepare, sign and file with the FCC or such other Governmental
Authority the assignor's or transferor's portion of any application or
applications for consent to the assignment of License or transfer of
control necessary or appropriate under the FCC's or such other
Governmental Authority's rules and regulations for approval of (a) any
sale or other disposition of the Collateral by or on behalf of Secured
Party, or (b) any assumption by Secured Party of voting rights in the
Collateral effected in accordance with the terms of this Agreement.
ARTICLE 7
Miscellaneous
-------------
Section 7.1 No Waiver; Cumulative Remedies. No failure on the part of
Secured Party to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided for in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
Section 7.2 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of Debtor and Secured Party and their respective
heirs, successors and permitted assigns, except that Debtor may not assign any
of its rights, indebtedness, liabilities or obligations under this Agreement
without the prior written consent of Secured Party.
Section 7.3 Entire Agreement; Amendment. THIS AGREEMENT EMBODIES THE
FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO RELATING TO THE SUBJECT MATTER
HEREOF AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS
AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER
HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO. The
provisions of this Agreement may be amended or waived only by an instrument in
writing signed by the parties hereto, except as provided in Section 4.15(a).
Section 7.4 Notices. All notices and other communications provided for
in this Agreement shall be given or made, and shall be deemed effective, as
provided in the Restated Lease Agreement by telecopy or in writing and
telecopied, mailed by certified mail return receipt requested, or delivered to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof, or, as to any party, at such other address as shall
be designated by such party
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 36
in a notice to the other party given in accordance with this Section 7.4. Except
as otherwise provided in this Agreement, all such communications shall be deemed
to have been duly given when transmitted by telecopy or when personally
delivered or, in the case of a mailed notice, three Business Days after deposit
in the mails, in each case given or addressed as aforesaid; provided, however,
that notices to Secured Party shall be deemed given when received by Secured
Party.
Section 7.5 Governing Law; Submission to Jurisdiction; Service of
Process. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA. EACH OF THE PARTIES HERETO CONSENTS AND AGREES THAT THE STATE
OR FEDERAL COURTS LOCATED IN XXX XXXX XXXXXX, XXXX XX XXX XXXX, XXX XXXX SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN
THE PARTIES PERTAINING TO THIS AGREEMENT OR ARISING OUT OF OR RELATING TO THIS
AGREEMENT; PROVIDED, THAT THE PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM THOSE
COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK COUNTY AND;
PROVIDED, FURTHER THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO
PRECLUDE THE SECURED PARTY FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN
ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR
THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE
SECURED PARTY. DEBTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND DEBTOR
HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. DEBTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO DEBTOR AT ITS ADDRESS FOR NOTICES SET FORTH UNDERNEATH ITS
SIGNATURE HERETO AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF DEBTOR'S ACTUAL RECEIPT THEREOF OR 3 DAYS AFTER DEPOSIT IN THE UNITED
STATES MAILS, PROPER POSTAGE PREPAID.
Section 7.6 Headings. The headings, captions and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 7.7 Survival of Representations and Warranties. All
representations and warranties made in this Agreement or in any certificate
delivered pursuant hereto shall survive the
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 37
execution and delivery of this Agreement, and no investigation by Secured Party
shall affect the representations and warranties or the right of Secured Party to
rely upon them.
Section 7.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 7.9 Waiver of Bond. In the event Secured Party seeks to take
possession of any or all of the Collateral by judicial process, Debtor hereby
irrevocably waives any bonds and any surety or security relating thereto that
may be required by applicable law as an incident to such possession, and waives
any demand for possession prior to the commencement of any such suit or action.
Section 7.10 Severability. Any provision of this Agreement which is
determined by a court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.11 Construction. Debtor and Secured Party acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement with its legal counsel and that
this Agreement shall be construed as if jointly drafted by Debtor and Secured
Party.
Section 7.12 Termination. If all of the Obligations shall have been
paid and performed in full and all commitments to extend credit of Secured Party
shall have expired or terminated, Secured Party shall, upon the written request
of, and at the expense of, Debtor, promptly execute and deliver to Debtor a
proper instrument or instruments acknowledging the release and termination of
the security interests created by this Agreement, and shall duly assign and
deliver to Debtor (without recourse and without any representation or warranty
except as may be set forth in Section 4.18 and Section 5.1) such of the
Collateral as may be in the possession of Secured Party and has not previously
been sold or otherwise applied pursuant to this Agreement.
Section 7.13 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF SECURED
PARTY IN THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT THEREOF.
[The remainder of this page has been intentionally left blank.]
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 38
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
DEBTOR:
-------
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------------------
Title: President
--------------------------------------------
Address for Notices:
--------------------
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy (which shall not constitute notice) to:
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 39
SECURED PARTY:
-------------
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------
Title: Vice President
------------------------------
Address for Notices:
--------------------
00 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 40
STATE OF Virginia )
)
COUNTY OF Fairfax )
This instrument was acknowledged before me this 13th day of March,
2002, by Xxxxx X. Xxxxx, the President of GLOBAL NETWORK ASSETS, LLC, a
Delaware limited liability company, on behalf of such limited liability company.
/s/ Xxxxxx Xxxxx
[SEAL] -------------------------------------
Notary Public in and for the State
of Virginia
Print Name: Xxxxxx Xxxxx
-------------------------
My commission expires: 8/31/03
STATE OF Connecticut )
)
COUNTY OF Fairfield )
This instrument was acknowledged before me this 15th day of March,
2002, by Xxxxxx Xxxxxx, the Vice President of GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as Agent, on behalf of such corporation.
/s/ Delythe Xxxxxxx Xxxxx
[SEAL] -------------------------------------
Notary Public in and for the State
of Connecticut
Print Name: Delythe Xxxxxxx Xxxxx
-------------------------
My commission expires: 8/31/05
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 41
SCHEDULE 1
----------
INTELLECTUAL PROPERTY
None.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 42
SCHEDULE 2
----------
CERTAIN CONTROL PROPERTY
I. Investment Property
None.
II. Deposit Accounts
None.
III. Commercial Tort Claims
None.
IV. Letter of Credit Rights
None.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 43
SCHEDULE 3
----------
PLEDGED SHARES
None.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 44
SCHEDULE 4
----------
LOCATIONS OF COLLATERAL
To be provided within 90 days after the Closing Date.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 45
SCHEDULE 5
----------
TRADE AND OTHER NAMES
None.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 46
SCHEDULE 6
----------
JURISDICTIONS FOR FILING UCC-1 FINANCING STATEMENTS
Delaware.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 47
EXHIBIT A
---------
COPYRIGHT SECURITY AGREEMENT
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 48
COPYRIGHT SECURITY AGREEMENT
----------------------------
(Global Network Assets, LLC)
THIS COPYRIGHT SECURITY AGREEMENT ("Agreement") is between Global
Network Assets, LLC, a Delaware limited liability company ("Debtor"), and
General Electric Capital Corporation, a Delaware corporation, as Agent for
itself and other Lessors from time to time party to the Restated Lease Agreement
as defined below (in such capacity, together with its successors and assigns in
such capacity, "Secured Party"), and as Lessor pursuant to that certain Amended
and Restated Lease Agreement dated as of March 8, 2002 (as the same may be
amended, modified, supplemented, renewed, extended or restated from time to
time, the "Restated Lease Agreement") among Savvis Communications Corporation, a
Delaware corporation, and Secured Party.
R E C I T A L S:
----------------
A. Debtor and Secured Party have entered into that certain Security
Agreement dated as of March __, 2002 (as the same may be amended, modified,
supplemented, renewed, extended or restated from time to time, the "Security
Agreement"; all terms defined in the Security Agreement, wherever used herein,
shall have the same meanings herein as are prescribed by the Security
Agreement).
B. Pursuant to the terms of the Security Agreement, Debtor has granted
to Secured Party a lien and security interest in all General Intangibles of
Debtor including, without limitation, all of Debtor's right, title, and interest
in, to and under all now owned and hereafter acquired Copyrights and Copyright
Licenses, and all products and Proceeds thereof, to secure the payment of the
Obligations (as defined in the Restated Lease Agreement).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor hereby grants to Secured
Party a lien and continuing security interest in all of Debtor's right, title,
and interest in, to, and under the following (all of the following items or
types of Property being herein collectively referred to as the "Copyright
Collateral"), whether presently existing or hereafter created or acquired, and
such grant insofar as it applies to Collateral covered by the Master Lease
Agreement (as defined in the Restated Lease Agreement), is in confirmation of
the existing and continuing Lien and security interest granted under the Master
Lease Agreement:
(1) each Copyright, each registration of a Copyright
("Copyright Registration"), and each application for registration of a
Copyright ("Copyright Application"), including, without limitation,
each Copyright, Copyright Registration, and Copyright Application
referred to in Schedule 1 annexed hereto;
(2) each Copyright License, including, without limitation,
each Copyright License referred to in Schedule 1 annexed hereto; and
(3) all products and Proceeds of the foregoing, including,
without limitation, any claim by Debtor against third parties for past,
present, or future infringement or breach of any Copyright, Copyright
Registration, Copyright Application, or Copyright License, including,
without limitation, any Copyright, Copyright Registration, or Copyright
License listed in Schedule 1 annexed hereto, and any Copyright
Registration issued pursuant to a Copyright Application referred to in
Schedule 1 annexed hereto.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 49
The lien and security interest contained in this Agreement is granted in
conjunction with the liens and security interests granted to Secured Party
pursuant to the Security Agreement.
Debtor hereby acknowledges and affirms that the rights and remedies of
Secured Party with respect to the liens and security interests in the Copyright
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 50
IN WITNESS WHEREOF, Debtor has caused this Agreement to be duly
executed by its duly authorized officer as of the date written above.
DEBTOR:
-------
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SECURED PARTY:
--------------
GENERAL ELECTRIC CAPITAL CORPORATION,
a Delaware corporation, as Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 51
ACKNOWLEDGMENT
--------------
STATE OF ______________ )
)
COUNTY OF _____________ )
This instrument was acknowledged before me this _____ day of ______,
____ by ______________, as __________of Global Network Assets, LLC, a Delaware
limited liability company, on behalf of such limited liability company.
-------------------------------------
{Seal} Notary Public in and for the State of
My commission expires:_____________________
STATE OF ______________ )
)
COUNTY OF _____________ )
This instrument was acknowledged ____ before me this _____ day of
_________, ____, by _______________________, as _____________________ of
General Electric Capital Corporation, a Delaware corporation, as Agent, on
behalf of such corporation.
{Seal} -------------------------------------
Notary Public in and for the State of
My commission expires:_____________________
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 52
Schedule 1
to
Copyright Security Agreement
----------------------------
COPYRIGHTS
----------
---------------------------------------------------------------------------------------------
OWNER OF COUNTRY OF COPYRIGHT APPLICATION OR REGISTRATION OR EXPIRATION TITLE
RECORD REGISTRATION REGISTRATION NO. FILING DATE DATE
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
COPYRIGHT LICENSES
------------------
--------------------------------------------------------------------------------
NAME OF AGREEMENT COPYRIGHT DATE OF AGREEMENT
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 53
EXHIBIT B
---------
PATENT SECURITY AGREEMENT
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 54
PATENT SECURITY AGREEMENT
-------------------------
(Global Network Assets, LLC)
THIS PATENT SECURITY AGREEMENT ("Agreement") is between Global Network
Assets, LLC, a Delaware limited liability company ("Debtor"), and General
Electric Capital Corporation, a Delaware corporation, as Agent for itself and
other Lessors from time to time party to the Restated Lease Agreement as defined
below (in such capacity, together with its successors and assigns in such
capacity, "Secured Party"), and as Lessor pursuant to that certain Amended and
Restated Lease Agreement dated as of March 8, 2002 (as the same may be amended,
modified, supplemented, renewed, extended or restated from time to time, the
"Restated Lease Agreement") among Savvis Communications Corporation, a Delaware
corporation and Secured Party.
R E C I T A L S:
----------------
A. Debtor and Secured Party have entered into that certain Security
Agreement dated as of March __, 2002 (as the same may be amended, modified,
supplemented, renewed, extended or restated from time to time, the "Security
Agreement"; all terms defined in the Security Agreement, wherever used herein,
shall have the same meanings herein as are prescribed by the Security
Agreement).
B. Pursuant to the terms of the Security Agreement, Debtor has granted
to Secured Party a lien and security interest in all General Intangibles of
Debtor including, without limitation, all of Debtor's right, title, and interest
in, to and under all now owned and hereafter acquired Patents and Patent
Licenses, and all products and Proceeds thereof, to secure the payment of the
Obligations (as defined in the Restated Lease Agreement).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor hereby grants to Secured
Party a lien and continuing security interest in all of Debtor's right, title,
and interest in, to, and under the following (all of the following items or
types of Property being herein collectively referred to as the "Patent
Collateral"), whether presently existing or hereafter created or acquired, and
such grant insofar as it applies to Collateral covered by the Master Lease
Agreement (as defined in the Restated Lease Agreement), is in confirmation of
the existing and continuing Lien and security interest granted under the Master
Lease Agreement:
(1) each Patent and each application for a Patent ("Patent
Application"), including, without limitation, each Patent and Patent
Application referred to in Schedule 1 annexed hereto, together with any
reissues, continuations, divisions, modifications, substitutions or
extensions thereof;
(2) each Patent License, including, without limitation, each
Patent License referred to in Schedule 1 annexed hereto; and
(3) all products and Proceeds of the foregoing, including,
without limitation, any claim by Debtor against third parties for past,
present, or future infringement or breach of any Patent or Patent
License, including, without limitation, any Patent or Patent License
referred to in Schedule 1 annexed hereto, and any Patent issued
pursuant to a Patent Application referred to in Schedule 1 annexed
hereto.
The lien and security interest contained in this Agreement is granted in
conjunction with the liens and security interests granted to Secured Party
pursuant to the Security Agreement.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 55
Debtor hereby acknowledges and affirms that the rights and remedies of
Secured Party with respect to the liens and security interests in the Patent
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 56
IN WITNESS WHEREOF, Debtor has caused this Agreement to be duly
executed by its duly authorized officer as of the date written above.
DEBTOR:
-------
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By:
---------------------------------
Name:
Title:
SECURED PARTY:
--------------
GENERAL ELECTRIC CAPITAL CORPORATION,
a Delaware corporation, as Agent
By:
---------------------------------
Name:
Title:
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 57
ACKNOWLEDGMENT
--------------
STATE OF ______________ )
)
COUNTY OF _____________ )
This instrument was acknowledged before me this _______ day of
_________, ____, by _____________________, as ___________ of Global Network
Assets, LLC, a Delaware limited liability company, on behalf of such limited
liability company.
-------------------------------------
{Seal} Notary Public in and for the State of
My commission expires:_____________________
STATE OF ______________ )
)
COUNTY OF _____________ )
This instrument was acknowledged before me this ______ day of
_________, ____, by _______________, as _____________ of General Electric
Capital Corporation, a Delaware corporation, as Agent, on behalf of such
corporation.
-------------------------------------
{Seal} Notary Public in and for the State of
My commission expires:_____________________
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 58
Schedule 1
to
Patent Security Agreement
-------------------------
PATENTS
----------------------------------------------------------------------------------------------------
OWNER OF COUNTRY PATENT APPLICATION OR REGISTRATION OR ISSUE DATE EXPIRATION
RECORD OF ORIGIN IDENTIFICATION REGISTRATION NO. FILING DATE (IF KNOWN) DATE
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
PATENT LICENSES
---------------
--------------------------------------------------------------------------------
NAME OF AGREEMENT PATENT DATE OF AGREEMENT
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 59
EXHIBIT C
---------
TRADEMARK SECURITY AGREEMENT
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 60
TRADEMARK SECURITY AGREEMENT
----------------------------
(Global Network Assets, LLC)
THIS TRADEMARK SECURITY AGREEMENT ("Agreement") is between Global
Network Assets, LLC, a Delaware limited liability company ("Debtor"), and
General Electric Capital Corporation, a Delaware corporation, as Agent for
itself and other Lessors from time to time party to the Restated Lease Agreement
as defined below (in such capacity, together with its successors and assigns in
such capacity, "Secured Party"), and as Lessor pursuant to that certain Amended
and Restated Lease Agreement dated as of March 8, 2002 (as the same may be
amended, modified, supplemented, renewed, extended or restated from time to
time, the "Restated Lease Agreement") Savvis Communications Corporation, a
Delaware corporation and Secured Party.
R E C I T A L S:
----------------
A. Debtor and Secured Party have entered into that certain Security
Agreement dated as of March __, 2002 (as the same may be amended, modified,
supplemented, renewed, extended or restated from time to time, the "Security
Agreement"; all terms defined in the Security Agreement, wherever used herein,
shall have the same meanings herein as are prescribed by the Security
Agreement).
B. Pursuant to the terms of the Security Agreement, Debtor has granted
to Secured Party a lien and security interest in all General Intangibles of
Debtor, including, without limitation, all of Debtor's right, title, and
interest in, to and under all now owned and hereafter acquired Trademarks,
together with the goodwill of the business symbolized by Debtor's Trademarks,
and Trademark Licenses, and all products and Proceeds thereof, to secure the
payment of the Obligations (as defined in the Restated Lease Agreement).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor hereby grants to Secured
Party a lien and continuing security interest in all of Debtor's right, title,
and interest in, to, and under the following (all of the following items or
types of Property being herein collectively referred to as the "Trademark
Collateral"), whether presently existing or hereafter created or acquired, and
such grant insofar as it applies to Collateral covered by the Master Lease
Agreement (as defined in the Restated Lease Agreement), is in confirmation of
the existing and continuing Lien and security interest granted under the Master
Lease Agreement:
(1) each Trademark, trademark registration ("Trademark
Registration") and trademark application ("Trademark Application"),
including, without limitation, each Trademark, Trademark Registration
and Trademark Application referred to in Schedule 1 annexed hereto,
together with the goodwill of the business symbolized thereby; and
(2) each Trademark License, including, without limitation,
each Trademark License listed in Schedule 1 annexed hereto; and
(3) all products and proceeds of the foregoing, including,
without limitation, any claim by Debtor against third parties for past,
present or future (a) infringement, dilution or breach of any
Trademark, Trademark Registration, Trademark Application and Trademark
License, including, without limitation, any Trademark, Trademark
Registration and Trademark License referred to in Schedule 1 annexed
hereto, and any Trademark Registration issued pursuant to a Trademark
Application referred to in Schedule 1 annexed hereto; or (b) injury to
the goodwill associated with any Trademark, Trademark Registration and
Trademark Application.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 61
The lien and security interest contained in this Agreement is granted in
conjunction with the liens and security interests granted to Secured Party
pursuant to the Security Agreement.
Debtor hereby acknowledges and affirms that the rights and remedies of
Secured Party with respect to the liens and security interests in the Trademark
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 62
IN WITNESS WHEREOF, Debtor has caused this Agreement to be duly
executed by its duly authorized officer as of the date written above.
DEBTOR:
-------
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By:
---------------------------------
Name:
Title:
SECURED PARTY:
--------------
GENERAL ELECTRIC CAPITAL CORPORATION,
a Delaware corporation, as Agent
By:
---------------------------------
Name:
Title:
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 63
ACKNOWLEDGMENT
--------------
STATE OF ______________ )
)
COUNTY OF _____________ )
This instrument was acknowledged before me this _____ day of
___________, 2002, by _____________, as ______________ of Global Network Assets,
LLC, a Delaware limited liability company, on behalf of such limited liability
company.
-------------------------------------
{Seal} Notary Public in and for the State of
My commission expires:_____________________
STATE OF ______________ )
)
COUNTY OF _____________ )
This instrument was acknowledged before me this ____ day of _________,
2002, by __________, as ___________ of General Electric Capital Corporation, a
Delaware corporation, as Agent, on behalf of such corporation.
-------------------------------------
{Seal} Notary Public in and for the State of
My commission expires:_____________________
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 64
Schedule 1
to
Trademark Security Agreement
----------------------------
------------------------------------------------------------------------------------------------------
TRADEMARKS
------------------------------------------------------------------------------------------------------
Trademark Country Filing Application Registration Registration Status Class/
Date Number Date Number Goods
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TRADEMARK LICENSES
--------------------------------------------------------------------------------
Name of Agreement Parties Date of Agreement
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 65
EXHIBIT D
---------
FORM OF AMENDMENT
SECURITY AGREEMENT (Global Network Assets, LLC) - Page 66
AMENDMENT TO SECURITY AGREEMENT
-------------------------------
This Amendment, dated _______________, _____, is delivered pursuant to
Section 4.16(b) of the Security Agreement referred to below. The undersigned
hereby agrees that this Amendment may be attached to that certain Security
Agreement, dated as of March __, 2002 (the "Security Agreement"), between the
undersigned and General Electric Capital Corporation, as Lessor and Agent for
itself and other Lessors from time to time party to the Restated Lease Agreement
("GE Capital") under that certain Amended and Restated Lease Agreement dated as
of March 8, 2002 between Savvis Communications Corporation, a Delaware
corporation and GE Capital (the "Restated Lease Agreement") and that the Capital
Stock, notes or other securities or instruments listed on Schedule 1 annexed
hereto shall be and become part of the Collateral referred to in the Security
Agreement and shall secure payment and performance of all Obligations as
provided in the Security Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings therefor provided in the Security Agreement.
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
AMENDMENT TO PLEDGE AND SECURITY AGREEMENT - Solo Page
Schedule 1
to
Amendment to Security Agreement
-------------------------------
Percentage of
Number of Outstanding
Class of Certificate Shares or Shares
Issuer Capital Stock No(s). Par Value Interests or Interests
------ ------------- ----------- --------- ---------- ------------
AMENDMENT TO PLEDGE AND SECURITY AGREEMENT - Solo Page
EXHIBIT E
---------
PERFECTION CERTIFICATE
AMENDMENT TO PLEDGE AND SECURITY AGREEMENT - Solo Page
FORM OF
PERFECTION CERTIFICATE
----------------------
The undersigned, a _______________, of Global Network Assets, LLC, a
Delaware limited liability company (the "Debtor") hereby certifies to the
Secured Party as follows:
SECTION 1. Names. (a) The exact corporate name of the Debtor, as such
name appears in its certificate of formation, is as follows:
(b) Set forth below is each other corporate name the Debtor
has had in the past five years, together with the date of the relevant change:
(c) Except as set forth in Schedule 1 hereto, the Debtor has
not changed its identity or corporate structure in any way within the past five
years. Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization. If any such change has occurred, include
in Schedule I the information required by Sections 1 and 2 of this certificate
as to each acquiree or constituent party to a merger or consolidation.
(d) The following is a list of all other names
(including trade names or similar appellations) used by the Debtor or any of its
divisions or other business units in connection with the conduct of its business
or the ownership of its properties at any time during the past five years:
(e) Set forth below is the Federal Taxpayer Identification
Number of the Debtor.
SECTION 2. Current Locations. (a) The chief executive office of the
Debtor is located (or has been located in the past five (5) years) at the
address set forth opposite its name below:
Debtor Mailing Address County State
------ --------------- ------ -----
AMENDMENT TO PLEDGE AND SECURITY AGREEMENT - Solo Page
(b) Set forth below opposite the name of the Debtor are all
locations where the Debtor maintains (or has maintained in the past 5 years) any
books or records relating to any Account (with each location at which Chattel
Paper, if any, is kept being indicated by an "*"):
Debtor Mailing Address County State
------ --------------- ------ -----
(c) Set forth below opposite the name of the Debtor are all
the places of business of the Debtor (at any time in the last 5 years) not
identified in paragraph (a) or (b) above:
Debtor Mailing Address County State
------ --------------- ------ -----
(d) Set forth below opposite the name of the Debtor are all
the locations where the Debtor maintains (or has maintained in the last 5 years)
any Collateral not identified above:
Debtor Mailing Address County State
------ --------------- ------ -----
(e) Set forth below opposite the name of the Debtor are the
names and addresses of all persons other than the Debtor that have possession
(or have had possession in the past 5 years) of any of the Collateral of the
Debtor:
Debtor Mailing Address County State
------ --------------- ------ -----
SECTION 3. Unusual Transactions. All Accounts have been originated by
the Debtor and all Inventory has been acquired by the Debtor in the ordinary
course of business.
SECTION 4. File Search Reports. Attached hereto as Schedule 2 are true
copies of file search reports from the UCC filing offices where filings
described in the Security Agreement are to be made and in all locations set
forth in the listings provided in Section 5 hereof. Attached hereto as Schedule
3 is a true copy of each financing statement or other filings identified in such
file search reports.
SECTION 5. UCC Filings. Financing statements on Form UCC1 in
substantially the form of Schedule 4 hereto have been prepared for filing in the
UCC filing office in each jurisdiction where such filing is required under
Article 9 of the applicable Uniform Commercial Code in effect after July 1, 2001
and the Debtor has authorized the filing of such financing statements.
AMENDMENT TO PLEDGE AND SECURITY AGREEMENT - Solo Page
SECTION 6. Schedule of Filings. Attached hereto as Schedule 5 is a
schedule setting forth, with respect to the filings described in Section 5
above, each filing and the filing officer which such filing is to be made.
SECTION 7. Filing Fees. All filing fees and taxes payable in connection
with the filings described in Section 5 above will be paid upon filing.
AMENDMENT TO PLEDGE AND SECURITY AGREEMENT - Solo Page
IN WITNESS WHEREOF, the parties hereto have duly executed this
Certificate as of the day and year first written above.
DEBTOR:
-------
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Address for Notices:
--------------------
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy (which shall not constitute notice) to:
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
AMENDMENT TO PLEDGE AND SECURITY AGREEMENT - Solo Page
