Exhibit 10.36
SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of November 1, 1999 ("Security
Agreement"), is made by WESTERN MULTIPLEX CORPORATION, a Delaware corporation
("Grantor"), in favor of CREDIT SUISSE FIRST BOSTON, as Agent for Banks under
the Credit Agreement (as defined below) (in its capacity as Agent, "Secured
Party").
RECITALS
A. Pursuant to that certain Credit Agreement dated as of the date
hereof by and among Grantor, Secured Party and Banks (as the same may from time
to time be amended, modified, supplemented or restated, the "Credit Agreement"),
Banks have agreed to make certain advances of money and to extend certain
financial accommodations to Grantor in the amounts and manner set forth in the
Credit Agreement (collectively, the "Loans").
X. Xxxxx are willing to make the Loans to Grantor, but only upon the
condition, among others, that Grantor shall have executed and delivered to
Secured Party this Security Agreement.
AGREEMENT
Now, THEREFORE, in order to induce blanks to make the Loans and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, Grantor hereby
represents, warrants, covenants and agrees as follows:
1. DEFINED TERMS. When used in this Security Agreement the following
terms shall have the following meanings (such meanings being equally applicable
to both the singular and plural forms of the terms defined):
"Collateral" shall have the meaning assigned to such term in Section 2
of this Security Agreement.
"Contracts" means all contracts, undertakings, franchise agreements or
other agreements in or under which Grantor now holds or hereafter acquires any
right, title or interest, including, without limitation, with respect to an
Account, any agreement relating to the terms of payment or the terms of
performance thereof.
"Copyright License" means any written agreement, in which Grantor now
holds or hereafter acquires any interest, granting any right in or to any
Copyright or Copyright registration (whether Grantor is the licensee or the
licensor thereunder) including, without limitation, licenses pursuant to which
Grantor has obtained the exclusive right to use a copyright
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owned by a third party.
"Copyrights" means all of the following in which Grantor now holds or
hereafter acquires any interest: (a) all copyrights, whether registered or
unregistered, held pursuant to the laws of the United States, any State thereof
or any other country; (b) registrations, applications and recordings in the
United States Copyright Office or in any similar office or agency of the United
States, any State thereof or any other country; (c) any continuations, renewals
or extensions thereof; (d) any registrations to be issued in any pending
applications; (e) prior versions of works covered by copyright and all works
based upon, derived from or incorporating such works; (f) income, royalties,
damages, claims and payments now and hereafter due and/or payable with respect
to copyrights, including, without limitation, damages, claims and recoveries for
past, present or future infringement; (g) rights to xxx for past, present and
future infringements of any copyright; and (h) any other rights corresponding to
any of the foregoing rights throughout the world.
"License" means any Copyright License, Patent License, Trademark
License or other license of intellectual property rights or interests now held
or hereafter acquired by Grantor.
"Lien" means any mortgage, lien, deed of trust, charge, pledge,
security interest or other encumbrance.
"Patent License" means any written agreement, in which Grantor now
holds or hereafter acquires any interest, granting any right with respect to any
Patent (whether Grantor is the licensee or the licensor thereunder).
"Patents" means all of the following in which Grantor now holds or
hereafter acquires any interest: (a) all letters patent of the United States or
any other country, all registrations and recordings thereof and all applications
for letters patent of the United States or any other country, including, without
limitation, registrations, recordings and applications in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof or any other country; (b) all reissues, divisions,
continuations, renewals, continuations in part or extensions thereof; (c) all
xxxxx patents, divisionals and patents of addition; (d) all patents to issue in
any such applications; (e) income, royalties, damages, claims and payments now
and hereafter due and/or payable with respect to patents, including, without
limitation, damages, claims and recoveries for past, present or future
infringement; and (f) rights to xxx for past, present and future infringements
of any patent.
"Secured Obligations" means (a) the obligation of Grantor to repay
Secured Party all of the unpaid principal amount of, and accrued interest on
(including any interest that accrues after the commencement of bankruptcy) the
Loans, (b) the obligation of Grantor to pay any fees, costs and expenses of the
Secured Party under the Credit Agreement or under Section 6(b) hereof and (c)
all other indebtedness, liabilities and obligations of Grantor to Secured Party,
whether now existing or hereafter incurred, and whether created under, arising
out of or in connection with any written agreement or otherwise.
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"Trademark License" means any written agreement, in which Grantor now
holds or hereafter acquires any interest, granting any right in and to any
Trademark or Trademark registration (whether Grantor is the licensee or the
licensor thereunder).
"Trademarks" means any of the following in which Grantor now holds or
hereafter acquires any interest: (a) any trademarks, tradenames, corporate
names, company names, business names, trade styles, service marks, logos, other
source or business identifiers, prints and labels on which any of the foregoing
have appeared or appear, designs and general intangibles of like nature, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof and any applications in connection 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 United
States, any State thereof or any other country (collectively, the "Marks"); (b)
any reissues, extensions or renewals thereof, (c) the goodwill of the business
symbolized by or associated with the Marks, (d) income, royalties, damages,
claims and payments now and hereafter due and/or payable with respect to the
Marks, including, without limitation, damages, claims and recoveries for past,
present or future infringement and (e) rights to xxx for past, present and
future infringements of the Marks.
"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of New York; provided, however, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of Secured Party's security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection of priority and for purposes of
definitions related to such provisions.
In addition, the following terms shall be defined terms having the
meaning set forth for such terms in the UCC: "Account Debtor"; "Accounts";
"Chattel Paper"; "Deposit Accounts"; "Equipment"; "Financial Assets";
"Fixtures"; "General Intangibles"; "Instruments"; "Inventory"; "Investment
Property"; "Proceeds". Each of the foregoing defined terms shall include all of
such items now owned, or hereafter acquired by Grantor.
All capitalized terms used herein and not otherwise defined herein
shall have the respective meanings given to them in the Credit Agreement.
2. GRANT OF SECURITY INTEREST. As collateral security for the prompt
and complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of all the Secured Obligations and in order to induce
Secured Party and Banks to cause the Loans to be made, Grantor hereby grants to
Secured Party for the benefit of Banks, a security interest in all of Grantor's
right, title and interest, if any, in, to and under the following (all of which
being collectively referred to herein as the "Collateral"):
(a) All Accounts of Grantor;
(b) All Chattel Paper of Grantor;
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(c) All Contracts of Grantor;
(d) All Deposit Accounts of Grantor;
(e) All Documents of Grantor;
(f) All Equipment of Grantor;
(g) All Financial Assets of Grantor;
(h) All Fixtures of Grantor;
(i) All General Intangibles of Grantor, including, without
limitation, all Copyrights, Patents, Trademarks, Licenses, drawings, technical
information, marketing plans, customer lists, trade secrets, proprietary or
confidential information, inventions (whether or not patentable), procedures,
know-how and models;
(j) All Instruments of Grantor;
(k) All Inventory of Grantor;
(l) All Investment Property of Grantor;
(m) All other goods and personal property of Grantor, wherever
located, whether tangible or intangible, and whether now owned or hereafter
acquired, existing, leased or consigned by or to Grantor; and
(n) To the extent not otherwise included, all Proceeds of each of
the foregoing and all accessions to, substitutions and replacements for and
rents, profits and products of each of the foregoing; provided, however, that
"Collateral" shall not include any equipment lease, equipment financing
agreement or Equipment which is the subject of an equipment lease or equipment
financing agreement to the extent and for so long as the grant of a security
interest therein is expressly prohibited by the terms of any enforceable
provision of such equipment lease or equipment financing agreement.
3. RIGHTS OF SECURED PARTY; COLLECTION OF ACCOUNTS.
(a) Notwithstanding anything contained in this Security Agreement
to the contrary, Grantor expressly agrees that it shall remain liable under each
of its Contracts and each of its Licenses to observe and perform all the
conditions and obligations to be observed and performed by it thereunder and
that it shall perform all of its duties and obligations thereunder, all in
accordance with and pursuant to the terms and provisions of each such Contract
or License. Secured Party shall not have any obligation or liability under any
Contract or License by reason of or arising out of this Security Agreement or
the granting to Secured Party of a lien therein or the receipt by Secured Party
of any payment relating to any Contract or License pursuant hereto, nor shall
Secured Party be required or obligated in any manner to perform or fulfill any
of the
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obligations of Grantor under or pursuant to any Contract or License, or to make
any payment, or to make any inquiry as to the nature or the sufficiency of any
payment received by it or the sufficiency of any performance by any party under
any Contract or License, or to present or file any claim, or to take any action
to collect or enforce any performance or the payment of any amounts which may
have been assigned to it or to which it may be entitled at any time or times.
(b) Secured Party authorizes Grantor to collect its Accounts,
provided that such collection is performed in a prudent and businesslike manner,
and Secured Party may, upon the occurrence and during the continuation of any
Event of Default and with prior written notice to Grantor, limit or terminate
said authority at any time. Upon the occurrence and during the continuance of
any Event of Default, at the request of Secured Party, Grantor shall deliver all
original and other documents evidencing and relating to the performance of labor
or service which created such Accounts, including, without limitation, all
original orders, invoices and shipping receipts.
(c) Secured Party may at any time, upon the occurrence and during
the continuance of any Event of Default, with prior written notice to Grantor of
its intention to do so, notify Account Debtors of Grantor, parties to the
Contracts of Grantor, obligors in respect of Instruments of Grantor and obligors
in respect of Chattel Paper of Grantor that the Accounts and the right, title
and interest of Grantor in and under such Contracts. Instruments and Chattel
Paper have been assigned to Secured Party and that payments shall be made
directly to Secured Party. Upon the request of Secured Party at any time after
the occurrence and during the continuance of an Event of Default, Grantor shall
so notify such Account Debtors, parties to such Contracts, obligors in respect
of such Instruments and obligors in respect of such Chattel Paper. Upon the
occurrence and during the continuance of any Event of Default, Secured Party
may, in its name or in the name of others, communicate with such Account
Debtors, parties to such Contracts, obligors in respect of such Instruments and
obligors in respect of such Chattel Paper to verify with such parties, to
Secured Party's satisfaction, the existence, amount and terms of any such
Accounts, Contracts, Instruments or Chattel Paper.
4. REPRESENTATIONS AND WARRANTIES. Grantor hereby represents and
warrants to Secured Party that:
(a) Except for the security interest granted to Secured Party
under this Security Agreement and Permitted Liens, Grantor is the sole legal and
equitable owner of each item of the Collateral in which it purports to grant a
security interest hereunder, having good and marketable title thereto, free and
clear of any and all Liens except for Permitted Liens.
(b) No effective security agreement, financing statement,
equivalent security or lien instrument or continuation statement covering all or
any part of the Collateral exists, except for Permitted Liens.
(c) This Security Agreement creates a legal and valid security
interest on and in all of the Collateral in which Grantor now has rights. Upon
the filing of appropriate financing statements and the taking of other actions
specified on Schedule C, Secured Party will have a fully perfected first
priority security interest in all of the Collateral in which Grantor now has
rights subject only to Permitted Liens. This Security Agreement will create a
legal and valid and
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fully perfected first priority security interest in the Collateral in which
Grantor later acquires rights, when Grantor acquires those rights subject only
to Permitted Liens and additional filings to be made with the United States
Copyright Office, Patent and Trademark Office and/or other offices as are
necessary to perfect Secured Party's security interest in subsequent ownership
rights and interests of Grantor in the Collateral.
(d) On the date hereof, Grantor's chief executive office,
principal place of business and the place where Grantor maintains its records
concerning the Collateral are located at the address set forth on the signature
page hereof on the date hereof, the Collateral is located at such address and at
such additional addresses set forth on Schedule A attached hereto.
(e) All copyright, patent and trademark registrations and
applications owned by Grantor on the date hereof are listed on Schedule B
attached hereto.
5. COVENANTS. Grantor covenants and agrees with Secured Party that
from and after the date of this Security Agreement and until the Secured
Obligations have been performed and paid in full:
5.1 Disposition of Collateral. Grantor shall not sell, lease,
transfer or otherwise dispose of any of the Collateral, or attempt or contract
to do so, other than as permitted by the Credit Agreement.
5.2 Relocation of Business or Collateral. Grantor shall not
relocate its chief executive office, principal place of business or its records,
or allow the relocation of any Collateral (except as allowed pursuant to Section
5.1 immediately above) from such address(es) provided to Secured Party pursuant
to Section 4(d) above without prior written notice to Secured Party.
5.3 Limitation on Liens on Collateral. Grantor shall not, directly
or indirectly, create, permit or suffer to exist, and shall defend the
Collateral against and take such other action as is necessary to remove, any
Lien on the Collateral, except Permitted Liens.
5.4 Taxes, Assessments, Etc. Grantor shall pay promptly when due
all property and other taxes, assessments and government charges or levies
imposed upon, and all claims (including claims for labor, materials and
supplies) against, the Equipment, Fixtures or Inventory, except to the extent
the validity thereof is being contested in good faith and adequate reserves are
being maintained in connection therewith.
5.5 Maintenance of Records. Grantor shall keep and maintain at its
own cost and expense satisfactory and complete records of the Collateral.
5.6 Registration of Intellectual Property Rights. Grantor shall
promptly register or cause to be registered (to the extent not already
registered and consistent with good faith business judgment) the most recent
version of any Copyright and any Copyright License and any Patent, Patent
License, Trademark or Trademark License, which, individually or in the
aggregate, is material to the conduct of Grantor's business, with the United
States Copyright Office or Patent and Trademark Office, as applicable,
including, without limitation, in all such
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cases the filing of applications for renewal, affidavits of use, affidavits of
noncontestability and opposition and interference and cancellation proceedings.
5.7 Notification Regarding Changes in Intellectual Property.
Grantor shall promptly advise Secured Party of any subsequent ownership right or
interest of Grantor in or to any material Copyright, Patent, Trademark or
License not specified on Schedule B hereto and hereby authorizes and appoints
Secured Party as Grantor's attorney-in-fact solely to the extent necessary to
modify or amend such Schedule, as necessary, to reflect any addition or deletion
to such ownership rights.
5.8 Defense of Intellectual Property. Grantor shall (i) protect,
defend and maintain the validity and enforceability of all material current and
future Copyrights. Patents and Trademarks, (ii) use its best efforts to detect
material infringements of such Copyrights, Patents and Trademarks and promptly
advise Secured Party in writing of material infringements detected and (iii) not
allow any material Copyrights, Patents or Trademarks to be abandoned, forfeited
or dedicated to the public without the written consent of Secured Party in each
case unless reasonable business practice would determine that any such failure
to act or abandonment is appropriate.
5.9 Further Assurances; Pledge of Instruments. At any time and
from time to time, upon the written reasonable request of Secured Party, and at
the sole expense of Grantor, Grantor shall promptly and duly execute and deliver
any and all such further instruments and documents and take such further action
as Secured Party may reasonably deem necessary or desirable to obtain the full
benefits of this Security Agreement, including, without limitation, facilitating
the filing of UCC-1 Financing Statements in all applicable jurisdictions and
this Security Agreement (and any amendment hereto) or a collateral assignment
(and any amendments thereto) with the United States Copyright Office and/or
Patent and Trademark Office, as applicable.
5.10 Maintenance of Insurance. Grantor shall maintain, with
financially sound and reputable companies, insurance policies insuring (a) its
Equipment, Fixtures and Inventory against loss by fire, explosion, theft and
such other casualties as are usually insured against by companies engaged in the
same or similar businesses and (b) to the extent requested by Secured Party,
Grantor and Secured Party against liability for personal injury and property
damage relating to such Equipment, Fixtures and Inventory. Such policies are to
be in such amounts and against at least such risk as are usually insured against
in the same general area by companies of the same or a similar size engaged in
the same or a similar business as Grantor. Grantor, at its expense, shall obtain
a loss payable endorsement to each such policy for the benefit of Secured Party.
Grantor shall, if so requested by Secured Party, deliver to Secured Party, as
often as Secured Party may reasonably request, a report of a reputable insurance
broker satisfactory to Secured Party with respect to the insurance on its
Equipment, Fixtures and Inventory. All insurance with respect to the Equipment,
Fixtures and Inventory shall provide that no cancellation, reduction in amount
or change in coverage thereof shall be effective until at least thirty (30) days
after receipt by Secured Party of written notice thereof.
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5.11 Right of Inspection and Audit. Upon reasonable notice to Grantor
(unless an Event of Default has occurred and is continuing, in which case no
notice is necessary), Secured Party shall at all times have fall and free access
during normal business hours to all the books and records and correspondence of
Grantor, and Secured Party or any agents or representatives of Secured Party may
examine the same, take extracts therefrom and make photocopies thereof, and
Grantor agrees to render to Secured Party, at Grantor's cost and expense, such
clerical and other assistance as may be reasonably requested with regard
thereto. Upon reasonable notice to Grantor (unless an Event of Default has
occurred and is continuing, in which case no notice is necessary), Secured Party
and its agents and representatives shall also have the right to enter into and
upon any premises where any of the Equipment, Fixtures or Inventory is located
for the purpose of conducting audits and making physical verifications of such
Equipment, Fixtures and Inventory and test verifications of the Accounts in any
manner and through any medium that it considers advisable, and Grantor agrees to
furnish all such assistance and information as Secured Party may reasonably
require in connection therewith.
5.12 Continuous Perfection. Grantor shall not change its name,
identity or corporate structure in any manner which might make any financing or
continuation statement filed in connection herewith seriously misleading within
the meaning of Section 9-402(7) of the UCC (or any other then applicable
provision of the UCC) unless Grantor gives Secured Party prior written notice
thereof and takes all action necessary or reasonably requested by Secured Party
to amend such financing statement or continuation statement so that it is not
seriously misleading.
5.13 Power of Attorney. Effective only upon the occurrence and during
the continuance of an Event of Default, Grantor hereby irrevocably appoints
Secured Party (and any of Secured Party's designated officers or employees) as
Grantor's true and lawful attorney to: (a) send requests for verification of
Accounts or notify account debtors of Secured Party's security interest in the
Accounts; (b) endorse Grantor's name on any checks or other forms of payment or
security that may come into Secured Party's possession; (c) sign Grantor's name
on any invoice or xxxx of lading relating to any Account, drafts against account
debtors, schedules and assignments of Accounts, verifications of Accounts, and
notices to account debtors, (d) make, settle and adjust all claims under and
decisions with respect to Grantor's policies of insurance; (e) settle and adjust
disputes and claims respecting the accounts directly with account debtors, for
amounts and upon terms which Secured Party determines to be reasonable; (f)
modify, in its sole discretion, any intellectual property security agreement
entered into between Grantor and Secured Party without first obtaining Grantor's
approval of or signature to such modification by amending reference to any
right, title or interest in any Copyrights, Patents or Trademarks, acquired by
Grantor after the execution hereof or to delete any reference to any right,
title or interest in any Copyrights, Patents or Trademarks, in which Grantor no
longer has or claims any right, title or interest; (g) file, in its sole
discretion, one or more financing or continuation statements and amendments
thereto, relative to any of the Collateral without the signature of Grantor
where permitted by law; and (h) transfer any intellectual property Collateral
into the name of Secured Party or a third party to the extent permitted under
the UCC. The appointment of Secured Party as Grantor's attorney in fact, and
each and every one of Secured Party's rights and powers, being coupled with an
interest, is irrevocable until all of the Secured Obligations
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have been fully repaid and performed and Secured Party's obligation to provide
advances hereunder is terminated.
6. RIGHTS AND REMEDIES UPON DEFAULT.
(a) If any Event of Default shall occur and be continuing, Secured
Party may exercise in addition to all other rights and remedies granted to it
under this Security Agreement and under any other instrument or agreement
securing, evidencing or relating to the Secured Obligations, all rights and
remedies of a secured party under the UCC. Without limiting the generality of
the foregoing, Grantor expressly agrees that in any such event, and during the
existence and continuance of an Event of Default, Secured Party, without demand
of performance or other demand, advertisement or notice of any kind (except the
notice specified below of time and place of public or private sale) to or upon
Grantor or any other person (all and each of which demands, advertisements and
notices are hereby expressly waived to the maximum extent permitted by the UCC
and other applicable law), may forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and may forthwith sell,.
lease, assign, give an option or options to purchase or sell or otherwise
dispose of and deliver said Collateral (or contract to do so), or any part
thereof, in one or more parcels at public or private sale or sales, at any
exchange or broker's board or at any of Secured Party's offices or elsewhere at
such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. Secured Party shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of said Collateral
so sold, free of any right or equity of redemption, which equity of redemption
Grantor hereby releases. Grantor further agrees, at Secured Party's request and
during the existence and continuance of an Event of Default, to assemble the
Collateral and make it available to Secured Party at places which Secured Party
shall reasonably select, whether at Grantor's premises or elsewhere. Secured
Party shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale as provided in Section 6(d) hereof, Grantor
remaining liable for any deficiency remaining unpaid after such application, and
only after so paying over such net proceeds and after the payment by Secured
Party of any other amount required by any provision of law, need Secured Party
account for the surplus, if any, to Grantor. To the maximum extent permitted by
applicable law, Grantor waives all claims, damages, and demands against Secured
Party arising out of the repossession, retention or sale of the Collateral
except such as arise out of the gross negligence or willful misconduct of
Secured Party. Grantor agrees that Secured Party need not give more than ten
(10) days' notice (which notification shall be deemed given when mailed or
delivered on an overnight basis, postage prepaid, addressed to Grantor at its
address set forth on the signature page hereof, of the time and place of any
public sale or of the time after which a private sale may take place and that
such notice is reasonable notification of such matters. Grantor shall remain
liable for any deficiency if the proceeds of any sale or disposition of the
Collateral are insufficient to pay all amounts to which Secured Party is
entitled, Grantor also being liable for the reasonable fees of any attorneys
employed by Secured Party to collect such deficiency.
(b) Grantor also agrees to pay all fees, costs and expenses of
Secured Party, including, without limitation, reasonable attorneys' fees,
reasonably incurred in connection with the enforcement of any of its rights and
remedies hereunder.
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(c) Grantor hereby waives presentment, demand, protest or any notice
(to the maximum extent permitted by applicable law) of any kind in connection
with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition or other realization upon
all or any part of the Collateral shall be distributed by Secured Party in the
following order of priorities:
FIRST, to Secured Party in an amount sufficient to pay in full
the reasonable costs of Secured Party in connection with such sale, disposition
or other realization, including all fees, costs, expenses, liabilities and
advances reasonably incurred or made by Secured Party in connection therewith,
including, without limitation, reasonable attorneys' fees;
SECOND, to Secured Party in an amount equal to the then unpaid
Secured Obligations; and
FINALLY, upon payment in full of the Secured Obligations, to
Grantor or its representatives, in accordance with the UCC or as a court of
competent jurisdiction may direct.
7. INDEMNITY. Grantor agrees to defend, indemnify and hold harmless
Secured Party, Banks, and their officers, employees, and agents against (a) all
obligations, demands, claims and liabilities claimed or asserted by any other
party in connection with the transactions contemplated by this Security
Agreement and (b) all losses or expenses in any way suffered, incurred or paid
by Secured Party or Banks as a result of or in any way arising out of or
following transactions between Secured Party, Banks and Grantor, whether under
this Security Agreement or otherwise (including without limitation, reasonable
attorneys' fees and expenses for one firm of counsel), except for losses arising
from or out of Secured Party's or any Bank's gross negligence or willful
misconduct.
8. LIMITATION ON SECURED PARTY'S DUTY IN RESPECT OF COLLATERAL. Secured
Party shall deal with the Collateral in the same manner as it deals with similar
property for its own account. Secured Party shall be deemed to have acted
reasonably in the custody, preservation and disposition of any of the Collateral
if it takes such action as Grantor requests in writing, but failure of Secured
Party to comply with any such request shall not in itself be deemed a failure to
act reasonably and no failure of Secured Party to do any act not so requested
shall be deemed a failure to act reasonably.
9. REINSTATEMENT. This Security Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
Grantor for liquidation or reorganization, should Grantor become insolvent or
make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of Grantor's property and assets
and shall continue to be effective or be reinstated, as the case may be, if at
any time payment and performance of the Secured Obligations, or any part
thereof, is, pursuant to applicable law, rescinded or reduced in amount or must
otherwise be restored or returned by any obligee of the Secured Obligations,
whether as a "voidable preference," "fraudulent conveyance" or otherwise, all as
though such payment or performance had not been
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made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Secured Obligations shall be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
10. MISCELLANEOUS.
10.1 No Waiver; Cumulative Remedies.
(a) Secured Party shall not by any act, delay, omission or
otherwise be deemed to have waived any of its respective rights or remedies
hereunder, nor shall any single or partial exercise of any right or remedy
hereunder on any one occasion preclude the further exercise thereof or the
exercise of any other right or remedy.
(b) The rights and remedies hereunder provided are cumulative
and may be exercised singly or concurrently and are not exclusive of any rights
and remedies provided by law.
(c) None of the terms or provisions of this Security Agreement
may be waived, altered, modified or amended except by an instrument in writing,
duly executed by Grantor and Secured Party.
10.2 Releases.
(a) At such time as the Secured Obligations shall have been paid
and performed in full, the Collateral shall be released from the Liens created
hereby, and this Security Agreement and all obligations of Secured Party and
Grantor hereunder shall terminate, all without delivery of any instrument or
performance of any act by any party, and all rights to the Collateral shall
revert to Grantor. At the request and sole expense of Grantor following any such
termination Secured Party shall deliver to Grantor any Collateral held by
Secured Party hereunder, and execute and deliver to Grantor such documents as
Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by Grantor in a manner permitted by the Credit, then
Secured Party, at the request and sole expense of Grantor, shall execute and
deliver to Grantor all releases or other documents reasonably requested for the
release of the Liens created hereby on such Collateral.
(c) This Security Agreement and the security interests granted
herein shall remain in full force and effect and continue to be effective if at
any time payment and performance of the Secured Obligations, or any part
thereof, is, pursuant to applicable law, avoided, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee of the Secured
Obligations, whether as a "voidable preference," "fraudulent conveyance" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is avoided, rescinded, reduced,
restored or returned, the Secured Obligations and the security interests granted
herein shall be reinstated and the Secured Obligations shall be deemed reduced
only by such amount paid and not so avoided, rescinded, reduced, restored or
returned.
12
10.3 Successor and Assigns. This Security Agreement and all
obligations of Grantor hereunder shall be binding upon the successors and
assigns of Grantor, and shall, together with the rights and remedies of Secured
Party hereunder, inure to the benefit of Secured Party, any future holder of any
of the indebtedness and their respective successors and assigns. No sales of
participations, other sales, assignments, transfers or other dispositions of any
agreement governing or instrument evidencing the Secured Obligations or any
portion thereof or interest therein shall in any manner affect the Lien granted
to Secured Party hereunder.
10.4 Notices. Any notice or other communication hereunder to any
party shall be addressed and delivered (and shall be deemed given) in accordance
with the Credit Agreement to the addresses set forth on the signature page
hereof.
10.5 Counterparts. This Security Agreement may be executed in any
number of separate counterparts, each of which, when so executed, shall be
deemed an original, and all of said counterparts taken together shall be deemed
to constitute but one and the same instrument.
10.6 Severability. If any provision of this Security Agreement is
held to be unenforceable under applicable law for any reason, it shall be
adjusted, if possible, rather than voided in order to achieve the intent of the
parties to the extent possible. In any event, all other provisions of this
Security Agreement shall be deemed valid and enforceable to the fullest extent
possible under applicable law.
10.7 Governing Law. In all respects, including all matters of
construction, validity and performance, this Security Agreement and the Secured
Obligations arising hereunder shall be governed by, and construed and enforced
in accordance with, the laws of the State of New York applicable to contracts
made and performed in such State.
13
IN WITNESS WHEREOF, each of the parties hereto has caused this Security
Agreement to be executed and delivered by its duly authorized officer on the
date first set forth above.
ADDRESS OF GRANTOR WESTERN MULTEPLEX CORPORATION
0000 Xxxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxxxx, XX 00000
_____________________________ Printed Name: Xxxxxxx Xxxxxxx
--------------------
Attn: Chief Financial Officer
Title: Vice President
--------------------------
ACCEPTED AND ACKNOWLEDGED BY:
CREDIT SUISSE FIRST BOSTON, AS AGENT FOR BANKS
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Printed Name: Xxxxx X. Xxxxxx
--------------------------------
Title: Vice President
---------------------------------------
By: /s/ Xxxxxxx Xxxxx
------------------------------------------
Printed Name: Xxxxxxx Xxxxx
--------------------------------
Title: Associate
---------------------------------------
Schedule A
to Security Agreement
---------------------
Location of Collateral
----------------------
1. 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
2. Koram
00 Xxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
3. Isis Surface Mounting
00 Xxxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
4. Antron
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx X
Xxx Xxxx, XX 00000
5. Sonic Mfg. Technologies
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
6. Pemstar
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
7. West Coast Magnetics, Inc.
0000 Xxxxxxxx Xxx
Xxxxxxxx X
Xxxxxxxx, XX 00000
8. Berkeley Magnetics, Inc.
c/o Touchstone Technical Sales
0000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
9. S&K Precision
0000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000
10. Xxxxxx Xxxxx, Xxxxx 000
000 X. Xxxxxx Xxxxxxx
Xxxxxxxxxx, XX
11. International Center, Xxxxx 000
00000 Xxxx Xxxx
Xxxxxx, XX
12. 0000 Xxxx 00xx Xxxxxx, #0X
Xxxxxxxxx, XX
Schedule B
to Security Agreement
---------------------
INTELLECTUAL PROPERTY
---------------------
Copyrights
----------
None.
Patents
-------
Registration/ Registration/
Description Application Number Application Date
----------- ------------------ ----------------
1. "Method and Apparatus for Isolating 09/033,507 March 2, 1998
High Frequency Signals In A Multi-
Layered Printed Circuit Board"
[Application]
2. "Method and Apparatus for Isolating 09/053,045 April 1, 1998
High Frequency Signals In A Printed
Circuit Board"
[Application]
Trademarks
----------
Registration/ Registration/
Description Application Number Application Date
----------- ----------------- ----------------
1. Highly stylized letters, WM and 1,317,724 February 5, 1985
design and Western Multiplex
Corporation for Electronic
Communications and Test Units
2. Highly stylized letters "WM" and 2,076,271 July 1, 1997
design for Microwave Radio
Equipment
3. Highly stylized letters "WM" and 1,298,505 October 2, 1984
design for Electronic Communications
and Test Units.
4. Highly stylized letters, WM and 2,067,842 June 3, 1997
design and Western Multiplex
Corporation Microwave Radio
Equipment
Schedule C
to Security Agreement
---------------------
UCC Filing Jurisdictions
------------------------
1. California: Secretary of State
2. Texas: Secretary of State
3. Ohio: Secretary of State and Cuyahoga County
4. Colorado: Secretary of State
Other Filings
-------------
1. U.S. Copyright Office
2. U.S. Patent and Trademark Office
EXHIBIT A
to
FINANCING STATEMENT Between
Credit Suisse First Boston, as Agent,
as Secured Party
and
Western Multiplex Corporation, as Debtor
This Financing Statement covers all right, title, and interest of the
Debtor in, to and under all of the following (collectively, the "Collateral"):
(a) All Accounts of Debtor;
(b) All Chattel Paper of Debtor;
(c) All Contracts of Debtor;
(d) All Deposit Accounts of Debtor;
(e) All Documents of Debtor;
(f) All Equipment of Debtor;
(g) All Financial Assets of Debtor;
(h) All Fixtures of Debtor;
(i) All General Intangibles of Debtor, including, without
limitation, all Copyrights, Patents, Trademarks, Licenses, drawings, technical
information, marketing plans, customer lists, trade secrets, proprietary or
confidential information, inventions (whether or not patentable), procedures,
know-how and models;
(j) All Instruments of Debtor;
(k) All Inventory of Debtor;
(1) All Investment Property of Debtor;
(m) All other goods and personal property of Debtor, wherever
located, whether tangible or intangible, and whether now owned or hereafter
acquired, existing, leased, consigned by or to Debtor; and
(n) To the extent not otherwise included, all Proceeds of each of
the foregoing and all accessions to, substitutions and replacements for and
rents, profits and products of each of the foregoing; provided, however, that
"Collateral" shall not include any equipment lease or
2
Debtor: Western Multiplex Corporation
Secured Party: Credit Suisse First Boston, as Agent
equipment financing agreement or Equipment which is the subject of an equipment
lease or equipment financing agreement to the extent and for so long as the
grant of a security interest therein is expressly prohibited by the terms of any
enforceable provision of such equipment lease or equipment financing agreement.
1. DEFINED TERMS. When used herein the following terms shall have the
following meanings (such meanings being equally applicable to both the singular
and plural forms of the terms defined):
"Contracts" means all contracts, undertakings, franchise agreements or
other agreements in or under which Debtor now holds or hereafter acquires any
right, title or interest, including, without limitation, with respect to an
Account, any agreement relating to the terms of payment or the terms of
performance thereof.
"Copyright License" means any written agreement, in which Debtor now holds
or hereafter acquires any interest, granting any right in or to any Copyright or
Copyright registration (whether Debtor is the licensee or the licensor
thereunder) including, without limitation, licenses pursuant to which Debtor has
obtained the exclusive right to use a copyright owned by a third party.
"Copyrights" means all of the following in which Debtor now holds or
hereafter acquires any interest: (a) all copyrights, whether registered or
unregistered, held pursuant to the laws of the United States, any State thereof
or any other country; (b) registrations, applications and recordings in the
United States Copyright Office or in any similar office or agency of the United
States, any State thereof or any other country; (c) any continuations, renewals
or extensions thereof; (d) any registrations to be issued in any pending
applications; (e) prior versions of works covered by copyright and all works
based upon, derived from, or incorporating such works; (f) income, royalties,
damages, claims and payments now and hereafter due and/or payable with respect
to copyrights, including, without limitation, damages, claims and recoveries for
past, present or future infringement; (g) rights to xxx for past, present and
future infringements of any copyright; and (h) any other rights corresponding to
any of the foregoing rights throughout the world.
"License" means any Copyright License, Patent License, Trademark License
or other license of intellectual property rights or interests now held or
hereafter acquired by Debtor.
"Patent License" means any written agreement, in which Debtor now holds or
hereafter acquires any interest, granting any right with respect to any Patent
(whether Debtor is the licensee or the licensor thereunder).
3
Debtor: Western Multiplex Corporation
Secured Party: Credit Suisse First Boston, as Agent
"Patents" means all of the following in which Debtor now holds or
hereafter acquires any interest: (a) all letters patent of the United States or
any other country, all registrations and recordings thereof and all applications
for letters patent of the United States or any other country, including, without
limitation, registrations, recordings and applications in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof or any other country; (b) all reissues, divisions,
continuations, renewals, continuations-inpart or extensions thereof, (c) all
xxxxx patents, divisionals and patents of addition; (d) all patents to issue in
any such applications. (e) income, royalties, damages, claims and payments now
and hereafter due and/or payable with respect to patents, including, without
limitation. damages. claims and recoveries for past, present or future
infringement, and (f) rights to xxx for past, present and future infringement of
any patent.
"Trademark License" means any written agreement in which Debtor now holds
or hereafter acquires any interest granting any right in and to any Trademark or
Trademark, registration (whether Debtor is the licensee or the licensor
thereunder).
"Trademarks" means any of the following in which Debtor now holds or
hereafter acquires any interest: (a) any trademarks, tradenames, corporate
names, company names, business names, trade styles, service marks, logos, other
source or business identifiers, prints and labels on which any of the foregoing
have appeared or appear, designs and general intangibles of like nature, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and any applications in connection 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 United
States, any State thereof or any other country (collectively, the "Marks"); (b)
any reissues, extensions or renewals thereof; (c) the goodwill of the business
symbolized by or associated with the Marks; (d) income, royalties, damages,
claims and payments now and hereafter due and/or payable with respect to the
Marks, including, without limitation, damages, claims and recoveries for past,
present or future infringement; and (e) rights to xxx for past, present and
future infringements of the Marks.
"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of New York, provided, however, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of Secured Party's security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection of priority and for purposes of
definitions related to such provisions.
In addition, the following terms shall be defined terms having the meaning
set forth for such terms in the UCC: "Account Debtor"; "Accounts"; "Chattel
Paper"; "Deposit
4
Debtor: Western Multiplex Corporation
Secured Party: Credit Suisse First Boston, as Agent
Accounts"; "Documents"; "Equipment"; "Financial Assets"; "Fixtures"; "General
Intangibles"; "Instruments"; "Inventory"; "Investment Property"; "Proceeds".
Each of the foregoing defined terms shall include all of such items now owned,
or hereafter acquired, by Debtor.
