Exhibit 99.8
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this "AGREEMENT") is made
as of this 30th day of September, 2003, by and between VITALSTREAM HOLDINGS,
INC. ("PARENT"), a Nevada corporation, and its wholly owned subsidiaries
VITALSTREAM, INC. ("VITALSTREAM SUBSIDIARY"), a Delaware corporation and
VITALSTREAM BROADCASTING CORPORATION ("BROADCASTING"), a Nevada corporation
(collectively, as to Parent, VitalStream Subsidiary, Broadcasting and any of
their direct and indirect Subsidiaries, "DEBTOR"), on the one hand, and DOLPHIN
COMMUNICATIONS PARTNERS, L.P., a Delaware limited partnership ("SECURED PARTY"),
as agent for, and representative of, the holders ("LENDERS") of the Notes (as
defined below) of Parent, on the other hand.
1. DEFINITIONS. The following terms used herein shall have the
following meanings. All capitalized terms not herein defined shall have the
meaning set forth in the Uniform Commercial Code as adopted in the State of New
York ("UCC"):
"BANK AGREEMENTS" means the following agreements between Alliance Bank
and Debtor: Factoring and Security Agreement dated as of June 30, 2003, with a
credit limit of $600,000, Factoring and Security Agreement dated as of June 30,
2003, with a credit limit of credit limit of $1,000,000, Memorandum of Security
Interest in Trademarks and Goodwill dated as of July 7, 2003 (the "TRADEMARK
AGREEMENT"), and other documents relative to the financing arrangement evidenced
by the foregoing agreements between Alliance Bank and Debtor.
"CHOSEN STATE" - New York.
"CERTIFICATE OF DESIGNATIONS" means the Certificate of Designation of
the Parent, setting forth, among other matters, the rights, preferences and
privileges of the Series A Preferred Stock and Series B Preferred Stock of the
Parent.
"COLLATERAL" - includes all of the following:
All now owned and hereafter acquired personal property and fixtures,
and proceeds thereof, including without limitation Accounts, Deposit Accounts,
Goods, Farm Products, Instruments (including Promissory Notes), Chattel Paper,
Electronic Chattel Paper, Inventory, Equipment, Investment Property, Documents,
Letters of Credit, Letter of Credit Rights, General Intangibles; and
All of Debtor's present and future copyrights, whether or not
registered in the United States Copyright Office, and any and all royalties,
payments, and other amounts payable to Debtor in connection with the Copyrights,
together with all renewals and extensions of the Copyrights, the right to
recover for all past, present and future infringements of the Copyrights, and
all manuscripts, documents, writings, tapes, disks, storage media, computer
programs, software, hardware, computer databases, computer programs, source
codes, object codes and all tangible property embodying or incorporating the
Copyrights, and all other rights of every kind whatsoever accruing thereunder or
pertaining thereto (collectively, the "COPYRIGHTS"); and
All of Debtor's right, title and interest in and to any and all present
and future license agreements with respect to the Copyrights; and
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All state, common law, federal and foreign trademark rights,
trademarks, service marks and trade names, and applications for registration of
such trademarks, service marks and trade names but excluding any application to
register any trademark, service xxxx or other xxxx xxxxx to the filing under
applicable law of a verified statement of use (or the equivalent) for such
trademark, service xxxx or other xxxx if the creation of a security interest
therein or the grant of a mortgage thereon would void or invalidate such
trademark, service xxxx or other xxxx, all licenses relating to any of the
foregoing and all income and royalties with respect to any licenses (including
such marks, names and applications as described in Schedule A), whether
registered or unregistered and wherever registered, all rights to xxx for past,
present or future infringement or unconsented use thereof, all rights arising
therefrom and pertaining thereto and all reissues, extensions and renewals
thereof (collectively, the "TRADEMARKS"); and
The entire goodwill of or associated with the businesses now or
hereafter conducted by Debtor connected with and symbolized by any of the
aforementioned properties and assets; and
All patents and patent applications, domestic or foreign, all licenses
relating to any of the foregoing and all income and royalties with respect to
any licenses (including such patents and patent applications as described in
Schedule B), all rights to xxx for past, present or future infringement thereof,
all rights arising therefrom and pertaining thereto and all reissues, divisions,
continuations, renewals, extensions and continuations-in-part thereof
(collectively, the "PATENTS"); and
All right, title and interest in and to any and all trade secrets as
that term is defined in the Uniform Trade Secret Act (the "TRADE SECRETS"); and
All general intangibles and all intangible intellectual or other
similar property of Debtor of any kind or nature, associated with or arising out
of any of the aforementioned properties and assets and not otherwise described
above; and
All books, records, ledger cards, files, correspondence, computer
programs, tapes, disks and related data processing software that at any time
evidence or contain information relating to any of the property described above
or otherwise helpful in the collection thereof or realization thereon; and all
Proceeds of the foregoing; and
All proceeds of any and all of the foregoing Collateral (including
license royalties, rights to payments, accounts and proceeds of infringement
suits).
"DOLPHIN AGREEMENTS" means the Exchange Agreement, the Notes, the
Guaranty, the Warrants, the Investor Rights Agreement, the Registration
Agreement, the Certificate of Designations and all other agreements and
instruments contemplated by each of the foregoing to which Debtor or any of
their Subsidiaries is a party.
"EXCHANGE AGREEMENT" means that certain Securities Exchange and
Purchase Agreement dated September 30, 2003, among Parent and the purchasers
referred to therein, as amended, modified, restated, superseded or replaced from
time to time.
"EVENTS OF DEFAULT" - See Section 6.
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"GUARANTY" means that certain Amended and Restated Guaranty, dated as
of September 30, 2003, by and among Debtors and the direct and indirect
Subsidiaries of Parent, as amended, modified, restated, superseded or replaced
from time to time.
"INVESTOR RIGHTS AGREEMENT" means that certain Amended and Restated
Investor Rights Agreement, dated as of September 30, 2003, by and among Parent
and the securityholders of Parent referred to therein, as amended, modified,
restated, superseded or replaced from time to time.
"NOTES" means the Amended and Restated Notes issued in exchange for the
Initial Convertible Notes and Subsequent Notes (as each such term is defined in
the Exchange Agreement), as amended, modified, restated, superseded or replaced
from time to time, and any other promissory notes of Debtor issued from time to
time pursuant to the Exchange Agreement.
"OBLIGATIONS" - all present and future obligations owing by Debtor to
Secured Party or Lenders pursuant to the Dolphin Agreements, whether or not for
the payment of money, whether or not evidenced by any note or other instrument,
whether direct or indirect, absolute or contingent, due or to become due, joint
or several, primary or secondary, liquidated or unliquidated, secured or
unsecured, original or renewed or extended, whether arising before, during or
after the commencement of any Bankruptcy Case in which Parent is a debtor,
including but not limited to any obligations arising pursuant to letters of
credit or acceptance transactions or any other financial accommodations.
"PARTIES" - Debtor and Secured Party.
"REGISTRATION AGREEMENT" means that certain Amended and Restated
Registration Agreement, dated as of September 30, 2003, by and among Parent and
the securityholders of Parent which are signatories thereto, as amended,
modified, restated, superseded or replaced from time to time.
"SUBSIDIARY" means, with respect to any person, any corporation,
limited liability company, partnership, association or other business entity of
which a majority of the total voting power of shares or equity interests
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that person or one or more of the other
Subsidiaries of that person or a combination thereof.
"WARRANTS" means the Warrants (as such term is defined in the Exchange
Agreement) issued pursuant to the Exchange Agreement, as amended, modified,
restated, superseded or replaced from time to time, and any other warrants of
Debtor issued from time to time pursuant to the Exchange Agreement.
2. Security Interest.
(a) As collateral securing the Obligations, Debtor grants to
Secured Party a continuing first priority security interest in and to the
Collateral. Secured Party's security interest in the Collateral shall be subject
to the Intercreditor Agreement dated as of July 30, 2003,
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as amended, between Alliance Bank and certain affiliates of the Secured Party
(the "INTERCREDITOR AGREEMENT").
(b) The relationship of the parties shall be that of a Secured
Party and a Debtor under the UCC.
(c) Within ten (10) days following the written request of
Secured Party, Debtor shall deliver to Secured Party or a mutually agreeable (in
the reasonable good faith judgment of the Parties) third party escrow agent,
source codes for all Copyrights now owned or later acquired, and all derivatives
thereof ("SOURCE CODES") which Source Codes shall be returned to Debtor promptly
when all Obligations are paid in full; provided, however, Debtor shall not be
required to deliver the Source Codes to Secured Party pursuant to this Section
2(c) so long as Alliance Bank retains such Source Codes as security for Debtors'
obligations to Alliance Bank pursuant to the Bank Agreements. In the event of
delivery of the Source Codes to Secured Party pursuant to this Section 2(c),
provided there is no Event of Default, Secured Party shall (i) hold the Source
Codes in confidence and take all necessary precautions within reason to protect
them (including without limitations all precautions Debtor employs with respect
to its own proprietary and confidential materials); (ii) not divulge the Source
Codes or any information derived therefrom to any third party; (iii) not make
any use whatsoever of the Source Codes (including without limitation granting
any interest or allowing any lien to be created therein); (iv) not remove or
allow the Source Codes to be removed from Debtor's premises; and (v) not copy or
reverse engineer, reverse compile or attempt to derive the composition or
underlying information of the Source Codes.
3. Authorization to Secured Party.
(a) Debtor hereby irrevocably authorizes Secured Party at
Debtor's expense, to exercise at any time after an Event of Default any of the
following powers until all of the Obligations have been paid in full: (i)
receive, take, endorse, assign, deliver, accept and deposit, in the name of
Debtor or Secured Party, any and all Collateral or the proceeds thereof; (ii)
take or bring, in the name of Secured Party or Debtor, all steps, actions, suits
or proceedings deemed by Secured Party necessary or desirable to effect
collection of or other realization upon the Accounts and other Collateral; (iii)
change the address for delivery of mail to Debtor and receive and open mail
addressed to Debtor; (iv) extend the time of payment of, compromise or settle
for cash, credit, return of merchandise, and upon any terms or conditions, any
and all Accounts or other Collateral which includes a monetary obligation and
discharge or release any Account Debtor or other obligor (including filing of
any public record releasing any lien granted to Debtor by such Account Debtor),
without affecting any of the Obligations; (v) pay any sums necessary to
discharge any lien or encumbrance which is senior to Secured Party's security
interest in the Collateral, which sums shall be included as Obligations
hereunder, and in connection with which sums shall include the interest rate
determined pursuant to Section 6(b) hereof, which shall accrue and shall be due
and payable; and (vi) after an Event of Default, file in the name of Debtor or
Secured Party or both (1) mechanics lien or related notices or (2) claims under
any payment bond, in connection with goods or services sold by Debtor in
connection with the improvement of realty
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(b) Debtor irrevocably authorizes Secured Party at any time
and from time to time to file any financing statements and amendments thereto,
that:
(i) indicate Secured Party has a security
interest in all assets of Debtor or words of similar effect, regardless
of whether any particular asset comprised in the Collateral falls
within the scope of Article 9 of the UCC, or as being of an equal or
lesser scope or with greater detail;
(ii) contain any other information required by
Part 5 of Article 9 of the UCC for the sufficiency or filing office
acceptance of any financing statement or amendment, including (A)
whether Debtor is an organization, the type of organization, and any
organization identification number issued to Debtor and, (B) in the
case of a financing statement filed as a fixture filing or indicating
Collateral as as-extracted collateral or timber to be cut, a sufficient
description of real property to which the Collateral relates; and
(iii) contain a notification that Debtor has
granted a negative pledge to Secured Party, and that any subsequent
lienor may be tortiously interfering with Secured Party's rights;
advise third parties that any notification of Debtor's Account Debtors
(except as Alliance Bank may be permitted to do under the Bank
Agreements) will interfere with Secured Party's collection rights.
(c) Debtor hereby releases and exculpates Secured Party and
Lenders and their officers, directors, shareholders, employees, designees,
agents and representatives from any liability arising from any acts taken in
good faith in accordance with any rights or authority granted under this
Agreement or in furtherance thereof whether of omission or commission, and
whether based upon any error of judgment or mistake of law or fact, except for
willful misconduct. Without limiting the generality of the foregoing, Debtor
releases Secured Party and Lenders from any claims which Debtor may now or
hereafter have arising out of Secured Party's and Lenders' endorsement and
deposit of checks issued by Debtors' customers stating that they were in full
payment of an account, but issued for less than the full amount which may have
been owed on the account.
4. Covenants By Debtor.
(a) From time to time as requested by Secured Party and at
Debtor's sole expense, Secured Party or its designee shall have access, during
reasonable business hours if prior to an Event of Default and at any time if on
or after an Event of Default, to all premises where Collateral is located for
the purposes of inspecting any of the Collateral, including Debtor's books,
records, hardware and software and Debtor shall permit Secured Party or its
designee to make copies of such books and records or extracts therefrom as
Secured Party may request. If Debtor determines that Secured Party requests to
see confidential or proprietary information of Debtor, Debtor may require that
Secured Party or its agents being provided access to such information execute in
advance Debtor's standard form of confidentiality and non-disclosure agreement.
However, after an Event of Default or if Secured Party in good faith believes
that an Event of Default has occurred, Secured Party shall have the right to
disclose such confidential or proprietary information as Secured Party deems
necessary to enforce its rights and remedies.
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After an Event of Default and without being charged for use by Debtor, Secured
Party may use any of Debtor's personnel, equipment, including computer
equipment, programs, printed output and computer readable media, supplies and
premises for the collection of Accounts and realization on other Collateral as
Secured Party, in its sole but reasonable discretion, deems appropriate, and
provided that Debtor's business and operations shall not be disrupted thereby.
If Debtor hereby irrevocably authorizes all accountants and third parties to
disclose and deliver to Secured Party at Debtor's expense all financial
information, books, records, work papers, management reports and other
information in their possession which is relevant to the preservation and
enforcement of rights granted to Secured Party herein.
(b) Debtor shall pay when due all payroll and other taxes, and
upon request shall provide proof thereof to Secured Party in such form as
Secured Party shall reasonably require.
(c) Debtor shall not create, incur, assume or permit to exist
any lien upon or with respect to any Collateral now owned or hereafter acquired
by Debtor, except for a lien in favor of Alliance Bank pursuant to the Bank
Agreements, or liens in favor of third parties in connection with equipment
leases or purchase money liens entered into the ordinary course of business.
(d) Debtor shall maintain insurance on all insurable property
owned or leased by Debtor in the manner, to the extent and against at least such
risks (in any event, including but not limited to fire, theft, business
interruption and natural disaster insurance) as usually maintained by owners of
similar businesses and properties in similar geographic areas. All such
insurance shall be in amounts and form and with insurance companies acceptable
to Secured Party in its sole but reasonable discretion. Debtor shall furnish to
Secured Party: (i) upon written request, any and all information concerning such
insurance carried; and (ii) as requested by Secured Party consistent with the
rights granted to Secured Party herein, lender loss payable endorsements (or
their equivalent) in favor of Secured Party. Debtor shall request that all
policies of insurance provide for not less than thirty (30) days' prior written
cancellation notice to Secured Party
(e) Debtor shall not register any Copyright, or acquire a
registered Copyright, with the United States Copyright Office or any applicable
office as it relates to foreign copyrights (the "COPYRIGHT OFFICE"), unless
Debtor provides Secured Party with written notice of any intent to register or
acquire any such Copyright at least seven (7) days before filing such
registration application and Debtor provides Secured Party with the actual copy
of the registration application prior to its filing with the Copyright Office.
Debtor shall then execute a copyright mortgage or such other document or
instrument as Secured Party deems reasonably necessary to perfect Secured
Party's security interest and maintain Secured Party in first position on all of
the Collateral.
(f) Debtor shall not register or acquire any trademark,
service xxxx or tradename with the United States Patent and Trademark Office, or
such other office as it relates to registration of the foregoing outside of the
United States (the "TRADEMARK OFFICE"), unless Debtor provides Secured Party
with written notice of any intent to register or acquire any such trademark,
servicemark or tradename at least seven (7) days before filing such registration
application and Debtor provides Secured Party with the actual copy of the
registration application prior to its filing with the Trademark Office. Debtor
shall then execute a trademark mortgage or such other document or instrument as
Secured Party deems necessary to perfect
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Secured Party's security interest and maintain Secured Party in first position
on all of the Collateral.
(g) Debtor shall not file any patent application with the
United States Patent and Trademark Office, or such other office as it relates to
registration of the foregoing outside of the United States (the "PATENT
OFFICE"), unless Debtor provides Secured Party with written notice of any intent
to file a patent application at least seven (7) days before such application is
filed and Debtor provides Secured Party with the actual copy of the application
prior to its filing with the Patent Office. Debtor shall then execute and a
patent mortgage or such other document or instrument as Secured Party deems
necessary to perfect Secured Party's security interest and maintain Secured
Party in first position on all of the Collateral.
(h) Debtor shall take all commercially reasonable steps
necessary to maintain the privacy and secrecy of all of the Trade Secrets.
(i) Debtor shall inform Secured Party of any modifications to
the Bank Agreements and provide copies to Secured Party of the foregoing.
5. Representations and Warranties. Debtor represents and
warrants that:
(a) It is fully authorized to enter into this Agreement and to
perform hereunder;
(b) This Agreement constitutes its legal, valid and binding
obligation;
(c) It is solvent and in good standing in the state of its
organization;
(d) Debtor has not registered any Copyright nor does it have
any application for a copyright registration with the Copyright Office;
(e) Debtor has not registered any state, federal or foreign
trademarks, servicemarks, or tradenames, and has not filed an application for
registration for any of the foregoing, with the Trademark Office, other than
what is described in Schedule A;
(f) Debtor has not registered any patent and has not filed an
application for registration in connection with any potential patent with the
Patent Office, other than what is described in Schedule B;
(g) Debtor has no material licenses used in the ordinary
course and scope of Debtor's business that are not listed on Schedule C;
(h) Debtor has taken, continues to take and promises to take
in the future the action described in Section 4(g), above (the "TRADE SECRET
PLAN"). Debtor hereby promises to continue the Trade Secret Plan until Debtor
has satisfied all of the Obligations; and
(i) The exact corporate name of the Debtor as it appears in
its certificate of incorporation is as set forth on Schedule D. The Debtor has
had any other name other than as set forth on Schedule D since its organization.
The Debtor has not changed its identity or
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corporation structure in any way within the past five years except as set forth
on Schedule D. The jurisdiction of formation and chief executive office of the
Debtor is located on Schedule D:
6. Default.
(a) EVENTS OF DEFAULT. An occurrence of an "Event of Default"
under the Notes will constitute an Event of Default hereunder.
(b) EFFECT OF DEFAULT. If any Event of Default has occurred
and is continuing, the "Consequences of Event of Default" as set forth in the
Notes shall be deemed incorporated herein by this reference and shall apply to
such an Event of Default and, in addition to any other rights Secured Party has
under this Agreement, the UCC, or applicable law, subject to the terms of the
Intercreditor Agreement, Secured Party shall have the right to place a receiver
in exclusive control of Debtor's business in order to assist with Secured
Party's rights under this Agreement. For the purpose of enabling Secured Party
to exercise its rights and remedies in the Event of Default occurs, Debtor
hereby grants to Secured Party an irrevocable, non-exclusive license
(exercisable without payment of royalty or other compensation to Debtor) to use,
assign, license or sublicense any of the Collateral, whether now owned or later
acquired by Debtor, wherever located, including in such license complete access
to all media in which any of the licensed items may be recorded or stored and to
all computer programs used for the compilation or printout thereof.
7. Power of Attorney. Subject to the Authenticated Notice
provision in the UCC, Debtor grants to Secured Party an irrevocable power of
attorney coupled with an interest authorizing and permitting Secured Party after
an Event of Default (acting through any of its employees, attorneys or agents),
and at Debtor's sole expense, in the place and stead of Debtor, and in the name
of Debtor, Secured Party or otherwise, from time to time in Secured Party's
discretion to take any action and to execute any document or instrument that
Secured Party may deem necessary or advisable to accomplish the purpose of this
Agreement or protect Secured Party's rights and/or any of the Collateral.
8. Waiver. No failure to exercise and no delay in exercising
any right, power, or remedy by either hereunder shall impair any right, power,
or remedy which such party may have, nor shall any such delay be construed to be
a waiver of any of such rights, powers, or remedies, or any acquiescence in any
breach or default hereunder; nor shall any waiver by either party of any breach
or default by the other party hereunder be deemed a waiver of any default or
breach subsequently occurring. All rights and remedies granted to either party
hereunder shall remain in full force and effect notwithstanding any single or
partial exercise of, or any discontinuance of action begun to enforce, any such
right or remedy by such party. The rights and remedies specified herein are
cumulative and not exclusive of each other or of any rights or remedies that
either party would otherwise have. Any waiver, permit, consent or approval by
either party of any breach or default hereunder by the other party must be in
writing and shall be effective only to the extent set forth in such writing and
only as to that specific instance.
9. Amendment. Neither this Agreement nor any provisions hereof
may be changed, waived, discharged or terminated, nor may any consent to the
departure from the terms hereof be given, orally (even if supported by new
consideration), except by an instrument in
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writing signed by all parties to this Agreement. Any waiver or consent so given
shall be effective only in the specific instance and for the specific purpose
for which given.
10. Survival. All representations, warranties and agreements
herein contained shall be effective so long as any portion of the Obligations
remains outstanding.
11. Enforcement. This Agreement and all agreements relating to
the subject matter hereof is the product of negotiation and preparation by and
among each party and its respective attorneys, and shall be construed
accordingly.
12. Severability. In the event any one or more of the
provisions contained in this Agreement is held to be invalid, illegal or
unenforceable in any respect, then such provision shall be ineffective only to
the extent of such prohibition or invalidity, and the validity, legality, and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
13. Attorneys' Fees. Debtor agrees to reimburse Secured Party
on demand for:
(i) the actual amount of all costs and expenses
reasonably incurred after the date hereof, including reasonable
attorneys' fees, which Secured Party has incurred or may incur in:
(A) amending, modifying or administering this
Agreement and any documents prepared in connection herewith;
(B) any way arising out of this Agreement;
(C) protecting, preserving or enforcing any lien,
security interest or other right granted by Debtor to Secured
Party or arising under applicable law;
(D) the actual costs, including photocopying (which,
if performed by Secured Party's employees, shall be at the
rate of $.10/page), travel, and attorneys' fees and expenses
incurred in complying with any subpoena or other legal process
attendant to any litigation in which Debtor is a party; and
(E) The actual amount of all costs and expenses
reasonably incurred, including reasonable attorneys' fees,
which Secured Party may incur in enforcing this Agreement and
any documents prepared in connection herewith, or in
connection with any federal or state insolvency proceeding
commenced by or against Debtor, including those (1) arising
out the automatic stay, (2) seeking dismissal or conversion of
the bankruptcy proceeding or (3) opposing confirmation of
Debtor's plan thereunder.
(b) If any action is brought by either party related to or in
connection with this Agreement, the prevailing party shall be entitled to
reimbursement of its costs and expenses reasonably incurred, including
reasonable attorneys' fees, by the non-prevailing party.
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14. Entire Agreement. Except for the Dolphin Agreements, this
Agreement supersedes all other agreements and understandings between the parties
hereto, verbal or written, express or implied, relating to the granting to
Dolphin of a security interest in the Collateral. No promises of any kind have
been made by Secured Party or any third party to induce Debtor to execute this
Agreement. No course of dealing, course of performance or trade usage, and no
parole evidence of any nature, shall be used to supplement or modify any terms
of this Agreement.
15. Choice of Law. This Agreement and all transactions
contemplated hereunder and/or evidenced hereby shall be governed by, construed
under, and enforced in accordance with the internal laws of the Chosen State.
16. Venue; Jurisdiction. The parties agree that any suit,
action or proceeding arising out of the subject matter hereof, or the
interpretation, performance or breach of this Agreement, shall, if Secured Party
so elects, be instituted in any court sitting in the Chosen State (the
"ACCEPTABLE FORUMS"). Each party agrees that the Acceptable Forums are
convenient to it, and each party irrevocably submits to the jurisdiction of the
Acceptable Forums, irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement, and waives any and all objections to
jurisdiction or venue that it may have under the laws of the Chosen State or
otherwise in those courts in any such suit, action or proceeding.
17. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
all signatures were upon the same instrument. Delivery of an executed
counterpart of the signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement, and
any party delivering such an executed counterpart of the signature page to this
Agreement by facsimile to any other party shall thereafter also promptly deliver
a manually executed counterpart of this Agreement to such other party, provided
that the failure to deliver such manually executed counterpart shall not affect
the validity, enforceability, or binding effect of this Agreement.
18. Notice.
(a) All notices required to be given to any party shall be
deemed given upon the first to occur of (i) deposit thereof in a receptacle
under the control of the United States Postal Service, (ii) transmittal by
electronic means to a receiver under the control of such party; or (iii) actual
receipt by such party or an employee or agent of such party.
(b) For the purposes hereof, notices hereunder shall be sent
to the following addresses, or to such other addresses as each such party may in
writing hereafter indicate:
19. Additional Debtors. The initial Debtors hereunder shall be
Parent, VitalStream Subsidiary and Broadcasting. From time to time subsequent to
the date hereof, additional subsidiaries of Parent, VitalStream Subsidiary or
Broadcasting shall become parties hereto within five (5) business days after
becoming a Subsidiary of Parent, VitalStream Subsidiary or Broadcasting, as
additional Debtors (each an "ADDITIONAL DEBTOR"), by executing a counterpart, a
form of which is attached as Exhibit A, of this Amended and Restated Security
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Agreement. Upon delivery of any such counterpart to the Secured Party, each such
Additional Debtor shall be a Guarantor and shall be as fully a party hereto as
if such Additional Debtor were an original signatory hereof. This Amended and
Restated Security Agreement shall be fully effective as to any Debtor that is or
becomes a party hereto regardless of whether any other Person becomes or fails
to become or ceases to be a Debtor hereunder.
20. JURY TRIAL WAIVER. IN RECOGNITION OF THE HIGHER COSTS AND
DELAY WHICH MAY RESULT FROM A JURY TRIAL, THE PARTIES HERETO WAIVE ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING
HEREUNDER, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT HERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY
SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH
A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
21. Termination of Prior Agreement; Termination Date. This
Agreement supersedes and terminates the Security Agreement dated June 30, 2003
(the "Prior Agreement") among the parties hereto and, upon the execution of this
Agreement by all parties hereto, the Prior Agreement shall immediately and
automatically terminate. This Agreement shall terminate upon the earlier to
occur of (a) the date that none of the Notes or any obligations thereunder
remain outstanding, and (b) the date that the Lien (as defined in the Notes)
created pursuant to the Bank Agreements terminates.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the Parties have executed this agreement on the day
and year first above written.
DEBTOR:
VITALSTREAM HOLDINGS, INC. AND ITS WHOLLY
OWNED SUBSIDIARIES VITALSTREAM, INC. AND
VITALSTREAM BROADCASTING CORPORATION
VITALSTREAM HOLDINGS, INC.
By: _____________________________________
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
VITALSTREAM, INC.
By: _____________________________________
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
VITALSTREAM BROADCASTING CORPORATION
By: _____________________________________
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
SECURED PARTY:
DOLPHIN COMMUNICATION PARTNERS, L.P.
By: Dolphin Communications, L.L.C.,
Its General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
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SCHEDULE A
TRADEMARKS
NAME REGISTRATION NO.
------------- -------------------
Debtor 2643791
MediaConsole 2650274
NetCluster 76229240
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SCHEDULE B
PATENTS
None
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SCHEDULE C
INTERCREDITOR AGREEMENT
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SCHEDULE D
1. VITALSTREAM HOLDINGS, INC., a Nevada corporation,
2. VITALSTREAM, INC., a Delaware corporation and
3. VITALSTREAM BROADCASTING CORPORATION, a Nevada corporation
The jurisdiction of formation and chief executive office of each of the
above Debtors is Xxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000
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EXHIBIT A
[FORM OF COUNTERPART FOR ADDITIONAL DEBTORS]
This COUNTERPART (this "COUNTERPART"), dated _______, 20__, is
delivered pursuant to Section 19 of the Amended and Restated Security Agreement
referred to below. The undersigned hereby agrees that this Counterpart may be
attached to the Amended and Restated Security Agreement, dated as of September
30, 2003 (as it may be from time to time amended, modified or supplemented, the
"SECURITY AGREEMENT"; capitalized terms used herein not otherwise defined herein
shall have the meanings ascribed therein), among the Debtors named therein and
the Secured Party. The undersigned, by executing and delivering this
Counterpart, hereby becomes an Additional Debtor under the Security Agreement in
accordance with Section 19 thereof and agrees to be bound by all of the terms
thereof.
IN WITNESS WHEREOF, the undersigned has caused this
Counterpart to be duly executed and delivered by its officer thereunto duly
authorized as of ______________, 20__.
[NAME OF ADDITIONAL DEBTOR]
By: ___________________________
Name:____________________________
Title:___________________________
Address:
______________________________________
____________
___________________________
___________________________
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