SECURITY AGREEMENT
(Broadband Personal Communications Service, C Block: Auction Event No. 5)
License No. PBB030C
This SECURITY AGREEMENT DATED September 17, 1996, ("Agreement") between PERSONAL
COMMUNICATIONS NETWORK, INC., a corporation ("Debtor") and the FEDERAL
COMMUNICATIONS COMMISSION, an independent regulatory agency of the United States
("Commission" or "Secured Party")
WITNESSETH
WHEREAS, Debtor has submitted the highest accepted bid for license number
PBB030C in the Broadband Personal Communications Service C Block auction
(hereinafter the "License") conducted by the Commission to assign such licenses;
WHEREAS, the Commission has duly determined to grant the License to
Debtor, subject to the terms and conditions set forth in the orders and
regulations of the Commission applicable to such licenses, and the
Communications Act of 1934, as amended;
WHEREAS, Debtor wishes to pay its auction price for the License by
installments through an Installment Payment Plan as provided by 47 C.F.R. xx.xx.
24.711, 1.2110 (hereinafter the "Installment Payment Plan") and undertakes to
hold the License under the terms and conditions set forth in the Commission's
orders and regulations, as amended, applicable to such licenses, and the
Communications Act of 1934, as amended and the terms and conditions of this
Agreement;
WHEREAS, the Commission has agreed to permit the Debtor to make payment of
the auction price for the License through an Installment Payment Plan; and
WHEREAS, as a condition to such agreement, Debtor has agreed to execute
the Installment Payment Plan Note of even date ("Note") and to enter into this
Agreement and make the pledge and assignment of collateral contemplated herein.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
contained herein and for other good and valuable consideration, the receipt,
adequacy, and sufficiency of which is hereby acknowledged, and in order to
induce the Commission to permit Debtor to pay the auction price for the License
through the Installment Payment Plan, Debtor hereby agrees with the Commission
as follows:
1. Pledge and Assignment of Collateral for Obligations Under Note. Debtor
hereby pledges, assigns, hypothecates, delivers, and sets over to the Commission
and grants to the Commission a first lien on and continuing security interest in
all of the Debtor's rights and interest in the License and all proceeds, profits
and products of any sale of or other disposition thereof (collectively the
"Collateral"), all as collateral security for the prompt and complete payment
when due (whether in accordance with the schedule of payments, at the stated
maturity, by acceleration, or otherwise) of the unpaid principal and interest
due, and such other additional costs, expenses, late charges, administrative
charges, attorneys fees, and default payments assessable under the terms of the
Note (all collectively "Obligations"). It is expressly understood by Debtor that
all of the terms of the Note apply to this Agreement and that reference herein
to "this Agreement" includes both the Security Agreement herein and the Note.
For purposes of interpreting the terms used in this Agreement shall have the
meaning ascribed to them in the Uniform Commercial Code (Official Text and
Comments, American Law Institute).
2. Interest of Commission. It is understood and acknowledged by Debtor
that pursuant to Section 301 of the Communications Act of 1934, as amended, the
Commission is charged with the regulatory mandate to maintain control over all
channels of radio transmission (the Spectrum"), and to provide licenses for the
use of such radio channels, but not ownership thereof. Debtor understands and
acknowledges that it holds a mere conditional license to use the Spectrum with
no ownership interest in the Collateral (or any underlying right to use the
Spectrum), or any power to assign the License without the prior approval of the
Commission pursuant to Section 310(d) of the Communications Act of 1934, as
amended. Debtor further understands and acknowledges that it is giving a
security interest to the Commission in the Collateral only to assist the
Commission in protecting its ability to enforce the Commission's regulations
which condition holding the license in compliance with all then-applicable
orders and regulations of the Commission, including, but not limited to, full
and timely payment of all payments under the Installment Payment Plan. To that
end, and not in derogation of any of the Commission's regulatory authority over
the License, Debtor hereby acknowledges that the Commission has a first security
interest in the Collateral, and Debtor shall not dispute such first security
interest, or the Commission's rights as a secured party hereunder, in any legal
or equitable proceeding in which Debtor, or any assignee or trustee of the
estate of Debtor in bankruptcy, is a party. Nothing set forth herein shall
preclude the Debtor from granting to other parties a subordinated security
interest limited to a subordinated interest in the proceeds arising from an
authorized assignment or transfer of the License to a third party (hereinafter a
"Subordinated Security Interest"), provided however that any such Subordinated
Security Interest shall be subordinated to and in no way inconsistent with the
Commission's first security interest in the Collateral, including but not
limited to the proceeds of any disposition of the License, and further provided
that said Subordinated Security Interest shall not survive if the License is
rescinded, cancelled, or revoked by regulatory action of the Commission for
violation of the terms and conditions of the License, including but not limited
to regulatory action upon a default under this Agreement pursuant to 47 C.F.R.
ss. 1.2110. The Debtor shall provide to the Commission upon request the name and
address of any party with a Subordinated Security Interest in the proceeds of
any disposition of the License, and a copy of any documents setting forth such a
Subordinated Security Interest.
Page 2
3. Compliance with Commission Orders and Regulations. Nothing in this
Agreement shall be deemed to modify any then-applicable orders and regulations
of the Commission, and nothing in this Agreement shall be deemed to release
Debtor from compliance therewith.
4. Representations and Warranties of Debtor. Debtor represents and
warrants to the Commission as follows:
(a) It has full power, authority and legal right to execute, deliver
and perform this Agreement, the Note, and any other documents delivered in
connection with the Note, this Agreement and the transactions contemplated
therein to make the debt transaction evidenced by the Note, and to pledge
the Collateral pursuant to this Agreement.
(b) It is a duly organized corporation, existing in good standing
under the laws of Delaware and is duly qualified to do business wherever
necessary to carry on its present operations. Its principal place of
business and chief executive office are located at 00 Xxxx Xxxx,
Xxxxxxxxx, XX 00000.
(c) The representative of Debtor purporting to act on behalf of
Debtor in executing this Agreement, the Note, and any other documents
delivered in connection with the Note, this Agreement and the transactions
contemplated therein, is duly authorized by Debtor to take all such acts
and to execute all such documents.
(d) No security agreements have been executed and delivered, and no
financing statements have been filed in any jurisdiction, granting or
purporting to grant a security interest in the Collateral that would give
any other person any right or interest in the Collateral, or any portion
thereof, except for a Subordinated Security Interest, as defined herein,
and that no person has an a secured interest that is or will be in any way
inconsistent with the rights of the Commission herein as the first secured
party or the terms of this Agreement.
(e) No consent of any other party and no consent, license, approval
or authorization of, exemption by, or registration or declaration with,
any governmental instrumentality, domestic or foreign other than the
Commission, is required to be obtained in connection with the execution,
delivery or performance of this Agreement, the Note or any other document
executed and delivered in connection with the delivery of the Note or this
Agreement.
(f) The execution, delivery and performance of this Agreement and
the Note, does not and will not violate any provision of any applicable
law or regulation or any order, judgment, writ, award or decree of any
court, arbitrator, governmental instrumentality, domestic or foreign, or
of any indenture, contract, agreement or other undertaking to which Debtor
is a party or which purports to be binding upon Debtor or upon any of
Debtor's assets, and will not result in the creation or imposition of any
lien, charge or encumbrance on or security interest in any of the assets
of Debtor, except as contemplated by this Agreement.
Page 3
(g) Debtor will not permit any financing statement to be filed with
respect to the Collateral or any portion thereof or interest therein that would
give said any other person a right or any interest in the Collateral, or any
portion thereof, except that Debtor may permit a third party to file a
Subordinated Security Interest, as defined herein, so long as said Subordinated
Security Interest, is not in any way inconsistent with the terms of this
Agreement and the rights of the Commission herein as the first secured party.
Debtor will promptly notify Secured Party of, and will defend the Collateral
against, all claims and demands of all persons at any time claiming the same or
any interest therein that would give any other person a right or any interest in
the Collateral not subordinated to the rights of the Commission herein as the
first secured party, or that is in any way inconsistent with the terms of this
Agreement.
5. Covenants of Debtor. Debtor hereby covenants and agrees as follows:
(a) That it will defend the Commission's right, title and security
interest in and to the Collateral against the claims and demands of all persons
whomsoever.
(b) That it will execute all financing statements and other instruments or
documents related to the perfection of the Commission's security interest,
including but not limited to any renewal financing statements or instruments as
required to maintain the Commission's security interest, or as otherwise
reasonably requested by the Commission, and to file and pay the cost of filing
any such instruments or documents as required under this paragraph in whichever
public office deemed advisable by the Commission.
(c) That it will not make any indenture, contract, agreement or other
undertaking to which Debtor is a party or which purports to be binding upon
Debtor, or upon any of Debtor's assets, that would result in the creation or
imposition of any lien, charge or encumbrance on or security interest in any of
the assets of Debtor that would give any other person a right or any interest in
the Collateral, or any portion thereof, except for a Subordinated Security
Interest, as defined herein, provided that such Subordinated Security Agreement
is not inconsistent with the terms of this Agreement and interest of the
Commission as the first secured party.
(d) That it will pay all costs and expenses, including reasonable
attorneys' fees, of the Commission incurred in connection with the enforcement
of this Agreement and any and all liability incurred by the Commission resulting
from any act or omission of Debtor with respect to the Collateral and this
Agreement.
(e) Debtor will execute, alone or with Secured Party, any document, will
procure any document and do all other acts and pay all connected costs, in a
timely and proper manner, which from the character or use of the Collateral may
be reasonably necessary to protect the Collateral against the rights, claims or
interests of third persons, and will otherwise preserve the Collateral as
security hereunder. The specific undertakings required of Debtor in this
Agreement shall not be construed to exclude the aforementioned general
obligation.
Page 4
6. Power of Attorney. Debtor hereby irrevocably constitutes and appoints
the Commission 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 place and stead of Debtor and in the name of Debtor
or in its own name, from time to time in the Commission's discretion, for the
purpose of carrying out the terms of this Agreement and, to the extent permitted
by applicable law, to take any and all appropriate actions and to execute any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement. Such appointment is a power coupled
with an interest until all Obligations have been paid in full by Debtor.
7. Event of Default. Debtor shall be in default under this Agreement if an
Event of Default (as defined in the Note) has occurred.
8. Remedies. If an Event of Default shall occur, the Commission shall
thereafter have the following rights and remedies (to the extent permitted by
applicable law) in addition to the rights and remedies relating to the Note, all
such remedies being cumulative, not exclusive, and enforceable alternatively,
successively or concurrently at such time or times as Commission deems
expedient:
(a) the License shall be automatically canceled pursuant to 47
C.F.R. ss. 1.2110;
(b) all Obligations secured hereunder shall become immediately due
and payable without presentment, demand, protest, further notice, or other
requirements of any kind;
(c) the Commission may demand, xxx for, and collect the outstanding
balance of the unpaid Obligations, and make any compromise, or settlement
the Commission deems suitable with respect to any Collateral which may be
held by it hereunder;
(d) Debtor hereby acknowledges the Commission's authority, pursuant
to the Communications Act of 1934, as amended, and the Commission's orders
and regulations then-applicable to such licenses, to conduct another
public auction or assign the License in the event that the Commission
rescinds, cancels, or revokes the License for any default under this
Agreement or any other violation of the terms and conditions of the
License. The Undersigned hereby waives all notices prior to the conduct of
said public auction or assignment by the Commission or its agents. Debtor
further acknowledges that in the event that the Commission rescinds,
cancels, or revokes the License for any default under this Agreement or
any other violation of the terms and conditions of the License, Debtor has
no right or interest in any moneys or evidence of indebtedness given to
the Commission by a subsequent licensee of the Spectrum and that all such
moneys or evidence of indebtedness are, and shall remain, the full
property of the federal Treasury, pursuant to Section 309(j) of the
Communications Act of 1934, as amended, and then-applicable Commission
orders and regulations.
(e) In addition to other remedies hereunder, Debtor shall remain
liable, and obligated to pay on demand, all costs of collection and
reasonable attorneys' fees and
Page 5
expenses incurred or paid by the Commission in enforcing this Agreement
including, without limitation, all administrative fees and expenses of the
Commission in attempting to collect the Obligations or to enforce this
Agreement, or the prosecution or defense of any action or proceeding
related to the subject matter of this Agreement, and all payments assessed
by the Commission in the event of default as specified in Commission
orders and regulations applicable to such licenses.
(f) Debtor hereby acknowledges that the Commission has no adequate
remedy at law with respect to a breach of any covenant contained in this
Agreement and, as a consequence, agrees that each and every covenant
contained in this Agreement shall be specifically enforceable against
Debtor, and Debtor hereby waives and agrees not to assert any defense
against an action for specific performance of such covenants.
(g) Secured Party may exercise any and all of the rights and
remedies conferred upon Secured Party by this Agreement, any other loan
documents, or by applicable law, either concurrently or in such order as
Secured Party may determine.
(h) Secured Party may make such payments and do such acts as Secured
Party may deem necessary to protect its secured interest in the
Collateral.
(i) the Commission may exercise any remedies of a Secured Party
under the Uniform Commercial Code (Official Text and Comments, American
Law Institute), or any other applicable law.
(j) Secured Party shall have the right to enforce one or more
remedies hereunder or under the Note, successively or concurrently, and
such action shall not operate to estop or prevent Secured Party from
pursuing any further remedy which it may have.
9. Severability. Any provision of this Agreement that is 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 hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10. No Waiver; Cumulative Remedies. None of the terms or provisions of
this Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by the Commission. The Commission shall not
by any act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies under this Agreement, and no waiver shall be valid unless in
writing, signed by the Commission, and then only to the extent therein set
forth. A waiver by the Commission of any right or remedy under this Agreement on
any one occasion shall not be construed as a bar to any right or remedy which
the Commission would otherwise have on any future occasion. No failure to
exercise nor any delay in exercising on the part of the Commission, any right,
power or privilege under this Agreement shall operate as a waiver
Page 6
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 in this Agreement are cumulative and may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
11. Compliance With Other Applicable Orders and Regulations. Debtor
recognizes that its continued retention of the License, and rights to operate as
a Commission licensee thereunder, are conditioned upon compliance with all
Commission orders and regulations applicable to the License and the
Communications Act of 1934, as amended. Debtor further recognizes that full and
timely payment as set forth in the Note does not otherwise relieve it of its
obligations otherwise to comply with the then-applicable orders and regulations
of the Commission, and the Communications Act of 1934, as amended.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with Communications Act of 1934, as amended, then-applicable
Commission orders and regulations, as amended, and federal law.
13. Successors, Assigns, Designated Agents. Subject to the provisions of
Paragraph 2 of this Agreement regarding the restriction upon Debtor's ability to
assign the License, this Agreement shall be binding upon Debtor, its successors
and assigns and shall inure to the benefit of the Commission, and its successors
and assigns. The Commission may designate agents other than the Commission to
act on its behalf with respect to any and all rights and remedies of the
Commission under this Agreement or the Note, and such designee shall have all of
the rights, powers and remedies available to the Commission within the scope of
its designation. Nothing herein, however, shall be construed as granting Debtor
any right to sell or assign the License.
14. Singular and Plural. Wherever used, the singular number shall include
the plural, the plural shall include the singular, and the use of any gender
shall be applicable to all genders.
15. Financing Statements. To the extent permitted by applicable law,
Debtor authorizes the Commission to sign and file financing statements at any
time with respect to any of the Collateral without the signature of Debtor.
Debtor will, however, at the same time and from time to time, execute such
financing statements, agreements and other instruments and perform such acts as
Commission may request in order to establish and maintain a validly perfected
first priority security interest in the Collateral. All reasonable costs of
filing and recording will be paid by Debtor.
16. Indemnification. Debtor hereby agrees to defend, indemnify and hold
harmless Secured Party and its employees, officers and agents, from and against
any and all liabilities, claims and obligations which may be incurred, asserted
or imposed upon them or any of them as a result of or in connection with any
use, operation, lease or consumption of any of the Collateral or as a result of
Secured Party's seeking to obtain performance of any of the obligations due with
respect to the Collateral.
Page 7
17. Notices. All notices, requests and demands hereunder shall be in
writing and shall be deemed to have been duly given, made or served on the
earliest of (I) three (3) business days after the date mailed if sent by
first-class U.S. mail, postage prepaid, (ii) actual delivery thereof if
delivered by hand to the party to be notified, (iii) receipt thereof if sent by
express mail or other overnight courier service, or (iv) transmission to the
telecopier number listed below for the party to be notified if sent within
normal business hours or, otherwise, on the next business day thereafter. In
each case such notification with respect to the Debtor and the Commission shall
be addressed as set forth below or as may be hereafter designed by the
respective parties hereto.
As to Debtor: Xx. Xxx Xxxxxx
Personal Communications Network, Inc.
c/o Electronics Communications Corporation
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
As to the Commission:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
DEBTOR: PERSONAL COMMUNICATIONS NETWORK, INC.
Date: 12/12/96 By: /s/ Xxx Xxxxxx
----------------------------------
Its: Executive Vice President
----------------------------------
FEDERAL COMMUNICATIONS COMMISSION
Date: By:
---------- ----------------------------------
Its: Associate Managing Director for Operations (or
Designee)
Page 8
SECURITY AGREEMENT
(Broadband Personal Communications Service, C Block: Auction Event No. 5)
License No. PBB063C
This SECURITY AGREEMENT DATED September 17, 1996, ("Agreement") between PERSONAL
COMMUNICATIONS NETWORK, INC., a corporation ("Debtor") and the FEDERAL
COMMUNICATIONS COMMISSION, an independent regulatory agency of the United States
("Commission" or "Secured Party")
WITNESSETH
WHEREAS, Debtor has submitted the highest accepted bid for license number
PBB063C in the Broadband Personal Communications Service C Block auction
(hereinafter the "License") conducted by the Commission to assign such licenses;
WHEREAS, the Commission has duly determined to grant the License to
Debtor, subject to the terms and conditions set forth in the orders and
regulations of the Commission applicable to such licenses, and the
Communications Act of 1934, as amended;
WHEREAS, Debtor wishes to pay its auction price for the License by
installments through an Installment Payment Plan as provided by 47 C.F.R. xx.xx.
24.711, 1.2110 (hereinafter the "Installment Payment Plan") and undertakes to
hold the License under the terms and conditions set forth in the Commission's
orders and regulations, as amended, applicable to such licenses, and the
Communications Act of 1934, as amended and the terms and conditions of this
Agreement;
WHEREAS, the Commission has agreed to permit the Debtor to make payment of
the auction price for the License through an Installment Payment Plan; and
WHEREAS, as a condition to such agreement, Debtor has agreed to execute
the Installment Payment Plan Note of even date ("Note") and to enter into this
Agreement and make the pledge and assignment of collateral contemplated herein.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
contained herein and for other good and valuable consideration, the receipt,
adequacy, and sufficiency of which is hereby acknowledged, and in order to
induce the Commission to permit Debtor to pay the auction price for the License
through the Installment Payment Plan, Debtor hereby agrees with the Commission
as follows:
1. Pledge and Assignment of Collateral for Obligations Under Note. Debtor
hereby pledges, assigns, hypothecates, delivers, and sets over to the Commission
and grants to the Commission a first lien on and continuing security interest in
all of the Debtor's rights and interest in the License and all proceeds, profits
and products of any sale of or other disposition thereof (collectively the
"Collateral"), all as collateral security for the prompt and complete payment
when due (whether in accordance with the schedule of payments, at the stated
maturity, by acceleration, or otherwise) of the unpaid principal and interest
due, and such other additional costs, expenses, late charges, administrative
charges, attorneys fees, and default payments assessable under the terms of the
Note (all collectively "Obligations"). It is expressly understood by Debtor that
all of the terms of the Note apply to this Agreement and that reference herein
to "this Agreement" includes both the Security Agreement herein and the Note.
For purposes of interpreting the terms used in this Agreement shall have the
meaning ascribed to them in the Uniform Commercial Code (Official Text and
Comments, American Law Institute).
2. Interest of Commission. It is understood and acknowledged by Debtor
that pursuant to Section 301 of the Communications Act of 1934, as amended, the
Commission is charged with the regulatory mandate to maintain control over all
channels of radio transmission (the Spectrum"), and to provide licenses for the
use of such radio channels, but not ownership thereof. Debtor understands and
acknowledges that it holds a mere conditional license to use the Spectrum with
no ownership interest in the Collateral (or any underlying right to use the
Spectrum), or any power to assign the License without the prior approval of the
Commission pursuant to Section 310(d) of the Communications Act of 1934, as
amended. Debtor further understands and acknowledges that it is giving a
security interest to the Commission in the Collateral only to assist the
Commission in protecting its ability to enforce the Commission's regulations
which condition holding the license in compliance with all then-applicable
orders and regulations of the Commission, including, but not limited to, full
and timely payment of all payments under the Installment Payment Plan. To that
end, and not in derogation of any of the Commission's regulatory authority over
the License, Debtor hereby acknowledges that the Commission has a first security
interest in the Collateral, and Debtor shall not dispute such first security
interest, or the Commission's rights as a secured party hereunder, in any legal
or equitable proceeding in which Debtor, or any assignee or trustee of the
estate of Debtor in bankruptcy, is a party. Nothing set forth herein shall
preclude the Debtor from granting to other parties a subordinated security
interest limited to a subordinated interest in the proceeds arising from an
authorized assignment or transfer of the License to a third party (hereinafter a
"Subordinated Security Interest"), provided however that any such Subordinated
Security Interest shall be subordinated to and in no way inconsistent with the
Commission's first security interest in the Collateral, including but not
limited to the proceeds of any disposition of the License, and further provided
that said Subordinated Security Interest shall not survive if the License is
rescinded, cancelled, or revoked by regulatory action of the Commission for
violation of the terms and conditions of the License, including but not limited
to regulatory action upon a default under this Agreement pursuant to 47 C.F.R.
ss. 1.2110. The Debtor shall provide to the Commission upon request the name and
address of any party with a Subordinated Security Interest in the proceeds of
any disposition of the License, and a copy of any documents setting forth such a
Subordinated Security Interest.
Page 2
3. Compliance with Commission Orders and Regulations. Nothing in this
Agreement shall be deemed to modify any then-applicable orders and regulations
of the Commission, and nothing in this Agreement shall be deemed to release
Debtor from compliance therewith.
4. Representations and Warranties of Debtor. Debtor represents and
warrants to the Commission as follows:
(a) It has full power, authority and legal right to execute, deliver
and perform this Agreement, the Note, and any other documents delivered in
connection with the Note, this Agreement and the transactions contemplated
therein to make the debt transaction evidenced by the Note, and to pledge
the Collateral pursuant to this Agreement.
(b) It is a duly organized corporation, existing in good standing
under the laws of Delaware and is duly qualified to do business wherever
necessary to carry on its present operations. Its principal place of
business and chief executive office are located at 00 Xxxx Xxxx,
Xxxxxxxxx, XX 00000.
(c) The representative of Debtor purporting to act on behalf of
Debtor in executing this Agreement, the Note, and any other documents
delivered in connection with the Note, this Agreement and the transactions
contemplated therein, is duly authorized by Debtor to take all such acts
and to execute all such documents.
(d) No security agreements have been executed and delivered, and no
financing statements have been filed in any jurisdiction, granting or
purporting to grant a security interest in the Collateral that would give
any other person any right or interest in the Collateral, or any portion
thereof, except for a Subordinated Security Interest, as defined herein,
and that no person has an a secured interest that is or will be in any way
inconsistent with the rights of the Commission herein as the first secured
party or the terms of this Agreement.
(e) No consent of any other party and no consent, license, approval
or authorization of, exemption by, or registration or declaration with,
any governmental instrumentality, domestic or foreign other than the
Commission, is required to be obtained in connection with the execution,
delivery or performance of this Agreement, the Note or any other document
executed and delivered in connection with the delivery of the Note or this
Agreement.
(f) The execution, delivery and performance of this Agreement and
the Note, does not and will not violate any provision of any applicable
law or regulation or any order, judgment, writ, award or decree of any
court, arbitrator, governmental instrumentality, domestic or foreign, or
of any indenture, contract, agreement or other undertaking to which Debtor
is a party or which purports to be binding upon Debtor or upon any of
Debtor's assets, and will not result in the creation or imposition of any
lien, charge or encumbrance on or security interest in any of the assets
of Debtor, except as contemplated by this Agreement.
Page 3
(g) Debtor will not permit any financing statement to be filed with
respect to the Collateral or any portion thereof or interest therein that would
give said any other person a right or any interest in the Collateral, or any
portion thereof, except that Debtor may permit a third party to file a
Subordinated Security Interest, as defined herein, so long as said Subordinated
Security Interest, is not in any way inconsistent with the terms of this
Agreement and the rights of the Commission herein as the first secured party.
Debtor will promptly notify Secured Party of, and will defend the Collateral
against, all claims and demands of all persons at any time claiming the same or
any interest therein that would give any other person a right or any interest in
the Collateral not subordinated to the rights of the Commission herein as the
first secured party, or that is in any way inconsistent with the terms of this
Agreement.
5. Covenants of Debtor. Debtor hereby covenants and agrees as follows:
(a) That it will defend the Commission's right, title and security
interest in and to the Collateral against the claims and demands of all persons
whomsoever.
(b) That it will execute all financing statements and other instruments or
documents related to the perfection of the Commission's security interest,
including but not limited to any renewal financing statements or instruments as
required to maintain the Commission's security interest, or as otherwise
reasonably requested by the Commission, and to file and pay the cost of filing
any such instruments or documents as required under this paragraph in whichever
public office deemed advisable by the Commission.
(c) That it will not make any indenture, contract, agreement or other
undertaking to which Debtor is a party or which purports to be binding upon
Debtor, or upon any of Debtor's assets, that would result in the creation or
imposition of any lien, charge or encumbrance on or security interest in any of
the assets of Debtor that would give any other person a right or any interest in
the Collateral, or any portion thereof, except for a Subordinated Security
Interest, as defined herein, provided that such Subordinated Security Agreement
is not inconsistent with the terms of this Agreement and interest of the
Commission as the first secured party.
(d) That it will pay all costs and expenses, including reasonable
attorneys' fees, of the Commission incurred in connection with the enforcement
of this Agreement and any and all liability incurred by the Commission resulting
from any act or omission of Debtor with respect to the Collateral and this
Agreement.
(e) Debtor will execute, alone or with Secured Party, any document, will
procure any document and do all other acts and pay all connected costs, in a
timely and proper manner, which from the character or use of the Collateral may
be reasonably necessary to protect the Collateral against the rights, claims or
interests of third persons, and will otherwise preserve the Collateral as
security hereunder. The specific undertakings required of Debtor in this
Agreement shall not be construed to exclude the aforementioned general
obligation.
Page 4
6. Power of Attorney. Debtor hereby irrevocably constitutes and appoints
the Commission 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 place and stead of Debtor and in the name of Debtor
or in its own name, from time to time in the Commission's discretion, for the
purpose of carrying out the terms of this Agreement and, to the extent permitted
by applicable law, to take any and all appropriate actions and to execute any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement. Such appointment is a power coupled
with an interest until all Obligations have been paid in full by Debtor.
7. Event of Default. Debtor shall be in default under this Agreement if an
Event of Default (as defined in the Note) has occurred.
8. Remedies. If an Event of Default shall occur, the Commission shall
thereafter have the following rights and remedies (to the extent permitted by
applicable law) in addition to the rights and remedies relating to the Note, all
such remedies being cumulative, not exclusive, and enforceable alternatively,
successively or concurrently at such time or times as Commission deems
expedient:
(a) the License shall be automatically canceled pursuant to 47
C.F.R. ss. 1.2110;
(b) all Obligations secured hereunder shall become immediately due
and payable without presentment, demand, protest, further notice, or other
requirements of any kind;
(c) the Commission may demand, xxx for, and collect the outstanding
balance of the unpaid Obligations, and make any compromise, or settlement
the Commission deems suitable with respect to any Collateral which may be
held by it hereunder;
(d) Debtor hereby acknowledges the Commission's authority, pursuant
to the Communications Act of 1934, as amended, and the Commission's orders
and regulations then-applicable to such licenses, to conduct another
public auction or assign the License in the event that the Commission
rescinds, cancels, or revokes the License for any default under this
Agreement or any other violation of the terms and conditions of the
License. The Undersigned hereby waives all notices prior to the conduct of
said public auction or assignment by the Commission or its agents. Debtor
further acknowledges that in the event that the Commission rescinds,
cancels, or revokes the License for any default under this Agreement or
any other violation of the terms and conditions of the License, Debtor has
no right or interest in any moneys or evidence of indebtedness given to
the Commission by a subsequent licensee of the Spectrum and that all such
moneys or evidence of indebtedness are, and shall remain, the full
property of the federal Treasury, pursuant to Section 309(j) of the
Communications Act of 1934, as amended, and then-applicable Commission
orders and regulations.
(e) In addition to other remedies hereunder, Debtor shall remain
liable, and obligated to pay on demand, all costs of collection and
reasonable attorneys' fees and
Page 5
expenses incurred or paid by the Commission in enforcing this Agreement
including, without limitation, all administrative fees and expenses of the
Commission in attempting to collect the Obligations or to enforce this
Agreement, or the prosecution or defense of any action or proceeding
related to the subject matter of this Agreement, and all payments assessed
by the Commission in the event of default as specified in Commission
orders and regulations applicable to such licenses.
(f) Debtor hereby acknowledges that the Commission has no adequate
remedy at law with respect to a breach of any covenant contained in this
Agreement and, as a consequence, agrees that each and every covenant
contained in this Agreement shall be specifically enforceable against
Debtor, and Debtor hereby waives and agrees not to assert any defense
against an action for specific performance of such covenants.
(g) Secured Party may exercise any and all of the rights and
remedies conferred upon Secured Party by this Agreement, any other loan
documents, or by applicable law, either concurrently or in such order as
Secured Party may determine.
(h) Secured Party may make such payments and do such acts as Secured
Party may deem necessary to protect its secured interest in the
Collateral.
(i) the Commission may exercise any remedies of a Secured Party
under the Uniform Commercial Code (Official Text and Comments, American
Law Institute), or any other applicable law.
(j) Secured Party shall have the right to enforce one or more
remedies hereunder or under the Note, successively or concurrently, and
such action shall not operate to estop or prevent Secured Party from
pursuing any further remedy which it may have.
9. Severability. Any provision of this Agreement that is 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 hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10. No Waiver; Cumulative Remedies. None of the terms or provisions of
this Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by the Commission. The Commission shall not
by any act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies under this Agreement, and no waiver shall be valid unless in
writing, signed by the Commission, and then only to the extent therein set
forth. A waiver by the Commission of any right or remedy under this Agreement on
any one occasion shall not be construed as a bar to any right or remedy which
the Commission would otherwise have on any future occasion. No failure to
exercise nor any delay in exercising on the part of the Commission, any right,
power or privilege under this Agreement shall operate as a waiver
Page 6
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 in this Agreement are cumulative and may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
11. Compliance With Other Applicable Orders and Regulations. Debtor
recognizes that its continued retention of the License, and rights to operate as
a Commission licensee thereunder, are conditioned upon compliance with all
Commission orders and regulations applicable to the License and the
Communications Act of 1934, as amended. Debtor further recognizes that full and
timely payment as set forth in the Note does not otherwise relieve it of its
obligations otherwise to comply with the then-applicable orders and regulations
of the Commission, and the Communications Act of 1934, as amended.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with Communications Act of 1934, as amended, then-applicable
Commission orders and regulations, as amended, and federal law.
13. Successors, Assigns, Designated Agents. Subject to the provisions of
Paragraph 2 of this Agreement regarding the restriction upon Debtor's ability to
assign the License, this Agreement shall be binding upon Debtor, its successors
and assigns and shall inure to the benefit of the Commission, and its successors
and assigns. The Commission may designate agents other than the Commission to
act on its behalf with respect to any and all rights and remedies of the
Commission under this Agreement or the Note, and such designee shall have all of
the rights, powers and remedies available to the Commission within the scope of
its designation. Nothing herein, however, shall be construed as granting Debtor
any right to sell or assign the License.
14. Singular and Plural. Wherever used, the singular number shall include
the plural, the plural shall include the singular, and the use of any gender
shall be applicable to all genders.
15. Financing Statements. To the extent permitted by applicable law,
Debtor authorizes the Commission to sign and file financing statements at any
time with respect to any of the Collateral without the signature of Debtor.
Debtor will, however, at the same time and from time to time, execute such
financing statements, agreements and other instruments and perform such acts as
Commission may request in order to establish and maintain a validly perfected
first priority security interest in the Collateral. All reasonable costs of
filing and recording will be paid by Debtor.
16. Indemnification. Debtor hereby agrees to defend, indemnify and hold
harmless Secured Party and its employees, officers and agents, from and against
any and all liabilities, claims and obligations which may be incurred, asserted
or imposed upon them or any of them as a result of or in connection with any
use, operation, lease or consumption of any of the Collateral or as a result of
Secured Party's seeking to obtain performance of any of the obligations due with
respect to the Collateral.
Page 7
17. Notices. All notices, requests and demands hereunder shall be in
writing and shall be deemed to have been duly given, made or served on the
earliest of (I) three (3) business days after the date mailed if sent by
first-class U.S. mail, postage prepaid, (ii) actual delivery thereof if
delivered by hand to the party to be notified, (iii) receipt thereof if sent by
express mail or other overnight courier service, or (iv) transmission to the
telecopier number listed below for the party to be notified if sent within
normal business hours or, otherwise, on the next business day thereafter. In
each case such notification with respect to the Debtor and the Commission shall
be addressed as set forth below or as may be hereafter designed by the
respective parties hereto.
As to Debtor: Xx. Xxx Xxxxxx
Personal Communications Network, Inc.
c/o Electronics Communications Corporation
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
As to the Commission:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
DEBTOR: PERSONAL COMMUNICATIONS NETWORK, INC.
Date: 12/12/96 By: /s/ Xxx Xxxxxx
----------------------------------
Its: Executive Vice President
----------------------------------
FEDERAL COMMUNICATIONS COMMISSION
Date: By:
---------- ----------------------------------
Its: Associate Managing Director for Operations (or
Designee)
Page 8
SECURITY AGREEMENT
(Broadband Personal Communications Service, C Block: Auction Event No. 5)
License No. PBB127C
This SECURITY AGREEMENT DATED September 17, 1996, ("Agreement") between PERSONAL
COMMUNICATIONS NETWORK, INC., a corporation ("Debtor") and the FEDERAL
COMMUNICATIONS COMMISSION, an independent regulatory agency of the United States
("Commission" or "Secured Party")
WITNESSETH
WHEREAS, Debtor has submitted the highest accepted bid for license number
PBB127C in the Broadband Personal Communications Service C Block auction
(hereinafter the "License") conducted by the Commission to assign such licenses;
WHEREAS, the Commission has duly determined to grant the License to
Debtor, subject to the terms and conditions set forth in the orders and
regulations of the Commission applicable to such licenses, and the
Communications Act of 1934, as amended;
WHEREAS, Debtor wishes to pay its auction price for the License by
installments through an Installment Payment Plan as provided by 47 C.F.R. xx.xx.
24.711, 1.2110 (hereinafter the "Installment Payment Plan") and undertakes to
hold the License under the terms and conditions set forth in the Commission's
orders and regulations, as amended, applicable to such licenses, and the
Communications Act of 1934, as amended and the terms and conditions of this
Agreement;
WHEREAS, the Commission has agreed to permit the Debtor to make payment of
the auction price for the License through an Installment Payment Plan; and
WHEREAS, as a condition to such agreement, Debtor has agreed to execute
the Installment Payment Plan Note of even date ("Note") and to enter into this
Agreement and make the pledge and assignment of collateral contemplated herein.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
contained herein and for other good and valuable consideration, the receipt,
adequacy, and sufficiency of which is hereby acknowledged, and in order to
induce the Commission to permit Debtor to pay the auction price for the License
through the Installment Payment Plan, Debtor hereby agrees with the Commission
as follows:
1. Pledge and Assignment of Collateral for Obligations Under Note. Debtor
hereby pledges, assigns, hypothecates, delivers, and sets over to the Commission
and grants to the Commission a first lien on and continuing security interest in
all of the Debtor's rights and interest in the License and all proceeds, profits
and products of any sale of or other disposition thereof (collectively the
"Collateral"), all as collateral security for the prompt and complete payment
when due (whether in accordance with the schedule of payments, at the stated
maturity, by acceleration, or otherwise) of the unpaid principal and interest
due, and such other additional costs, expenses, late charges, administrative
charges, attorneys fees, and default payments assessable under the terms of the
Note (all collectively "Obligations"). It is expressly understood by Debtor that
all of the terms of the Note apply to this Agreement and that reference herein
to "this Agreement" includes both the Security Agreement herein and the Note.
For purposes of interpreting the terms used in this Agreement shall have the
meaning ascribed to them in the Uniform Commercial Code (Official Text and
Comments, American Law Institute).
2. Interest of Commission. It is understood and acknowledged by Debtor
that pursuant to Section 301 of the Communications Act of 1934, as amended, the
Commission is charged with the regulatory mandate to maintain control over all
channels of radio transmission (the Spectrum"), and to provide licenses for the
use of such radio channels, but not ownership thereof. Debtor understands and
acknowledges that it holds a mere conditional license to use the Spectrum with
no ownership interest in the Collateral (or any underlying right to use the
Spectrum), or any power to assign the License without the prior approval of the
Commission pursuant to Section 310(d) of the Communications Act of 1934, as
amended. Debtor further understands and acknowledges that it is giving a
security interest to the Commission in the Collateral only to assist the
Commission in protecting its ability to enforce the Commission's regulations
which condition holding the license in compliance with all then-applicable
orders and regulations of the Commission, including, but not limited to, full
and timely payment of all payments under the Installment Payment Plan. To that
end, and not in derogation of any of the Commission's regulatory authority over
the License, Debtor hereby acknowledges that the Commission has a first security
interest in the Collateral, and Debtor shall not dispute such first security
interest, or the Commission's rights as a secured party hereunder, in any legal
or equitable proceeding in which Debtor, or any assignee or trustee of the
estate of Debtor in bankruptcy, is a party. Nothing set forth herein shall
preclude the Debtor from granting to other parties a subordinated security
interest limited to a subordinated interest in the proceeds arising from an
authorized assignment or transfer of the License to a third party (hereinafter a
"Subordinated Security Interest"), provided however that any such Subordinated
Security Interest shall be subordinated to and in no way inconsistent with the
Commission's first security interest in the Collateral, including but not
limited to the proceeds of any disposition of the License, and further provided
that said Subordinated Security Interest shall not survive if the License is
rescinded, cancelled, or revoked by regulatory action of the Commission for
violation of the terms and conditions of the License, including but not limited
to regulatory action upon a default under this Agreement pursuant to 47 C.F.R.
ss. 1.2110. The Debtor shall provide to the Commission upon request the name and
address of any party with a Subordinated Security Interest in the proceeds of
any disposition of the License, and a copy of any documents setting forth such a
Subordinated Security Interest.
Page 2
3. Compliance with Commission Orders and Regulations. Nothing in this
Agreement shall be deemed to modify any then-applicable orders and regulations
of the Commission, and nothing in this Agreement shall be deemed to release
Debtor from compliance therewith.
4. Representations and Warranties of Debtor. Debtor represents and
warrants to the Commission as follows:
(a) It has full power, authority and legal right to execute, deliver
and perform this Agreement, the Note, and any other documents delivered in
connection with the Note, this Agreement and the transactions contemplated
therein to make the debt transaction evidenced by the Note, and to pledge
the Collateral pursuant to this Agreement.
(b) It is a duly organized corporation, existing in good standing
under the laws of Delaware and is duly qualified to do business wherever
necessary to carry on its present operations. Its principal place of
business and chief executive office are located at 00 Xxxx Xxxx,
Xxxxxxxxx, XX 00000.
(c) The representative of Debtor purporting to act on behalf of
Debtor in executing this Agreement, the Note, and any other documents
delivered in connection with the Note, this Agreement and the transactions
contemplated therein, is duly authorized by Debtor to take all such acts
and to execute all such documents.
(d) No security agreements have been executed and delivered, and no
financing statements have been filed in any jurisdiction, granting or
purporting to grant a security interest in the Collateral that would give
any other person any right or interest in the Collateral, or any portion
thereof, except for a Subordinated Security Interest, as defined herein,
and that no person has an a secured interest that is or will be in any way
inconsistent with the rights of the Commission herein as the first secured
party or the terms of this Agreement.
(e) No consent of any other party and no consent, license, approval
or authorization of, exemption by, or registration or declaration with,
any governmental instrumentality, domestic or foreign other than the
Commission, is required to be obtained in connection with the execution,
delivery or performance of this Agreement, the Note or any other document
executed and delivered in connection with the delivery of the Note or this
Agreement.
(f) The execution, delivery and performance of this Agreement and
the Note, does not and will not violate any provision of any applicable
law or regulation or any order, judgment, writ, award or decree of any
court, arbitrator, governmental instrumentality, domestic or foreign, or
of any indenture, contract, agreement or other undertaking to which Debtor
is a party or which purports to be binding upon Debtor or upon any of
Debtor's assets, and will not result in the creation or imposition of any
lien, charge or encumbrance on or security interest in any of the assets
of Debtor, except as contemplated by this Agreement.
Page 3
(g) Debtor will not permit any financing statement to be filed with
respect to the Collateral or any portion thereof or interest therein that would
give said any other person a right or any interest in the Collateral, or any
portion thereof, except that Debtor may permit a third party to file a
Subordinated Security Interest, as defined herein, so long as said Subordinated
Security Interest, is not in any way inconsistent with the terms of this
Agreement and the rights of the Commission herein as the first secured party.
Debtor will promptly notify Secured Party of, and will defend the Collateral
against, all claims and demands of all persons at any time claiming the same or
any interest therein that would give any other person a right or any interest in
the Collateral not subordinated to the rights of the Commission herein as the
first secured party, or that is in any way inconsistent with the terms of this
Agreement.
5. Covenants of Debtor. Debtor hereby covenants and agrees as follows:
(a) That it will defend the Commission's right, title and security
interest in and to the Collateral against the claims and demands of all persons
whomsoever.
(b) That it will execute all financing statements and other instruments or
documents related to the perfection of the Commission's security interest,
including but not limited to any renewal financing statements or instruments as
required to maintain the Commission's security interest, or as otherwise
reasonably requested by the Commission, and to file and pay the cost of filing
any such instruments or documents as required under this paragraph in whichever
public office deemed advisable by the Commission.
(c) That it will not make any indenture, contract, agreement or other
undertaking to which Debtor is a party or which purports to be binding upon
Debtor, or upon any of Debtor's assets, that would result in the creation or
imposition of any lien, charge or encumbrance on or security interest in any of
the assets of Debtor that would give any other person a right or any interest in
the Collateral, or any portion thereof, except for a Subordinated Security
Interest, as defined herein, provided that such Subordinated Security Agreement
is not inconsistent with the terms of this Agreement and interest of the
Commission as the first secured party.
(d) That it will pay all costs and expenses, including reasonable
attorneys' fees, of the Commission incurred in connection with the enforcement
of this Agreement and any and all liability incurred by the Commission resulting
from any act or omission of Debtor with respect to the Collateral and this
Agreement.
(e) Debtor will execute, alone or with Secured Party, any document, will
procure any document and do all other acts and pay all connected costs, in a
timely and proper manner, which from the character or use of the Collateral may
be reasonably necessary to protect the Collateral against the rights, claims or
interests of third persons, and will otherwise preserve the Collateral as
security hereunder. The specific undertakings required of Debtor in this
Agreement shall not be construed to exclude the aforementioned general
obligation.
Page 4
6. Power of Attorney. Debtor hereby irrevocably constitutes and appoints
the Commission 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 place and stead of Debtor and in the name of Debtor
or in its own name, from time to time in the Commission's discretion, for the
purpose of carrying out the terms of this Agreement and, to the extent permitted
by applicable law, to take any and all appropriate actions and to execute any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement. Such appointment is a power coupled
with an interest until all Obligations have been paid in full by Debtor.
7. Event of Default. Debtor shall be in default under this Agreement if an
Event of Default (as defined in the Note) has occurred.
8. Remedies. If an Event of Default shall occur, the Commission shall
thereafter have the following rights and remedies (to the extent permitted by
applicable law) in addition to the rights and remedies relating to the Note, all
such remedies being cumulative, not exclusive, and enforceable alternatively,
successively or concurrently at such time or times as Commission deems
expedient:
(a) the License shall be automatically canceled pursuant to 47
C.F.R. ss. 1.2110;
(b) all Obligations secured hereunder shall become immediately due
and payable without presentment, demand, protest, further notice, or other
requirements of any kind;
(c) the Commission may demand, xxx for, and collect the outstanding
balance of the unpaid Obligations, and make any compromise, or settlement
the Commission deems suitable with respect to any Collateral which may be
held by it hereunder;
(d) Debtor hereby acknowledges the Commission's authority, pursuant
to the Communications Act of 1934, as amended, and the Commission's orders
and regulations then-applicable to such licenses, to conduct another
public auction or assign the License in the event that the Commission
rescinds, cancels, or revokes the License for any default under this
Agreement or any other violation of the terms and conditions of the
License. The Undersigned hereby waives all notices prior to the conduct of
said public auction or assignment by the Commission or its agents. Debtor
further acknowledges that in the event that the Commission rescinds,
cancels, or revokes the License for any default under this Agreement or
any other violation of the terms and conditions of the License, Debtor has
no right or interest in any moneys or evidence of indebtedness given to
the Commission by a subsequent licensee of the Spectrum and that all such
moneys or evidence of indebtedness are, and shall remain, the full
property of the federal Treasury, pursuant to Section 309(j) of the
Communications Act of 1934, as amended, and then-applicable Commission
orders and regulations.
(e) In addition to other remedies hereunder, Debtor shall remain
liable, and obligated to pay on demand, all costs of collection and
reasonable attorneys' fees and
Page 5
expenses incurred or paid by the Commission in enforcing this Agreement
including, without limitation, all administrative fees and expenses of the
Commission in attempting to collect the Obligations or to enforce this
Agreement, or the prosecution or defense of any action or proceeding
related to the subject matter of this Agreement, and all payments assessed
by the Commission in the event of default as specified in Commission
orders and regulations applicable to such licenses.
(f) Debtor hereby acknowledges that the Commission has no adequate
remedy at law with respect to a breach of any covenant contained in this
Agreement and, as a consequence, agrees that each and every covenant
contained in this Agreement shall be specifically enforceable against
Debtor, and Debtor hereby waives and agrees not to assert any defense
against an action for specific performance of such covenants.
(g) Secured Party may exercise any and all of the rights and
remedies conferred upon Secured Party by this Agreement, any other loan
documents, or by applicable law, either concurrently or in such order as
Secured Party may determine.
(h) Secured Party may make such payments and do such acts as Secured
Party may deem necessary to protect its secured interest in the
Collateral.
(i) the Commission may exercise any remedies of a Secured Party
under the Uniform Commercial Code (Official Text and Comments, American
Law Institute), or any other applicable law.
(j) Secured Party shall have the right to enforce one or more
remedies hereunder or under the Note, successively or concurrently, and
such action shall not operate to estop or prevent Secured Party from
pursuing any further remedy which it may have.
9. Severability. Any provision of this Agreement that is 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 hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10. No Waiver; Cumulative Remedies. None of the terms or provisions of
this Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by the Commission. The Commission shall not
by any act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies under this Agreement, and no waiver shall be valid unless in
writing, signed by the Commission, and then only to the extent therein set
forth. A waiver by the Commission of any right or remedy under this Agreement on
any one occasion shall not be construed as a bar to any right or remedy which
the Commission would otherwise have on any future occasion. No failure to
exercise nor any delay in exercising on the part of the Commission, any right,
power or privilege under this Agreement shall operate as a waiver
Page 6
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 in this Agreement are cumulative and may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
11. Compliance With Other Applicable Orders and Regulations. Debtor
recognizes that its continued retention of the License, and rights to operate as
a Commission licensee thereunder, are conditioned upon compliance with all
Commission orders and regulations applicable to the License and the
Communications Act of 1934, as amended. Debtor further recognizes that full and
timely payment as set forth in the Note does not otherwise relieve it of its
obligations otherwise to comply with the then-applicable orders and regulations
of the Commission, and the Communications Act of 1934, as amended.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with Communications Act of 1934, as amended, then-applicable
Commission orders and regulations, as amended, and federal law.
13. Successors, Assigns, Designated Agents. Subject to the provisions of
Paragraph 2 of this Agreement regarding the restriction upon Debtor's ability to
assign the License, this Agreement shall be binding upon Debtor, its successors
and assigns and shall inure to the benefit of the Commission, and its successors
and assigns. The Commission may designate agents other than the Commission to
act on its behalf with respect to any and all rights and remedies of the
Commission under this Agreement or the Note, and such designee shall have all of
the rights, powers and remedies available to the Commission within the scope of
its designation. Nothing herein, however, shall be construed as granting Debtor
any right to sell or assign the License.
14. Singular and Plural. Wherever used, the singular number shall include
the plural, the plural shall include the singular, and the use of any gender
shall be applicable to all genders.
15. Financing Statements. To the extent permitted by applicable law,
Debtor authorizes the Commission to sign and file financing statements at any
time with respect to any of the Collateral without the signature of Debtor.
Debtor will, however, at the same time and from time to time, execute such
financing statements, agreements and other instruments and perform such acts as
Commission may request in order to establish and maintain a validly perfected
first priority security interest in the Collateral. All reasonable costs of
filing and recording will be paid by Debtor.
16. Indemnification. Debtor hereby agrees to defend, indemnify and hold
harmless Secured Party and its employees, officers and agents, from and against
any and all liabilities, claims and obligations which may be incurred, asserted
or imposed upon them or any of them as a result of or in connection with any
use, operation, lease or consumption of any of the Collateral or as a result of
Secured Party's seeking to obtain performance of any of the obligations due with
respect to the Collateral.
Page 7
17. Notices. All notices, requests and demands hereunder shall be in
writing and shall be deemed to have been duly given, made or served on the
earliest of (I) three (3) business days after the date mailed if sent by
first-class U.S. mail, postage prepaid, (ii) actual delivery thereof if
delivered by hand to the party to be notified, (iii) receipt thereof if sent by
express mail or other overnight courier service, or (iv) transmission to the
telecopier number listed below for the party to be notified if sent within
normal business hours or, otherwise, on the next business day thereafter. In
each case such notification with respect to the Debtor and the Commission shall
be addressed as set forth below or as may be hereafter designed by the
respective parties hereto.
As to Debtor: Xx. Xxx Xxxxxx
Personal Communications Network, Inc.
c/o Electronics Communications Corporation
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
As to the Commission:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
DEBTOR: PERSONAL COMMUNICATIONS NETWORK, INC.
Date: 12/12/96 By: /s/ Xxx Xxxxxx
----------------------------------
Its: Executive Vice President
----------------------------------
FEDERAL COMMUNICATIONS COMMISSION
Date: By:
---------- ----------------------------------
Its: Associate Managing Director for Operations (or
Designee)
Page 8
SECURITY AGREEMENT
(Broadband Personal Communications Service, C Block: Auction Event No. 5)
License No. PBB251C
This SECURITY AGREEMENT DATED September 17, 1996, ("Agreement") between PERSONAL
COMMUNICATIONS NETWORK, INC., a corporation ("Debtor") and the FEDERAL
COMMUNICATIONS COMMISSION, an independent regulatory agency of the United States
("Commission" or "Secured Party")
WITNESSETH
WHEREAS, Debtor has submitted the highest accepted bid for license number
PBB251C in the Broadband Personal Communications Service C Block auction
(hereinafter the "License") conducted by the Commission to assign such licenses;
WHEREAS, the Commission has duly determined to grant the License to
Debtor, subject to the terms and conditions set forth in the orders and
regulations of the Commission applicable to such licenses, and the
Communications Act of 1934, as amended;
WHEREAS, Debtor wishes to pay its auction price for the License by
installments through an Installment Payment Plan as provided by 47 C.F.R. xx.xx.
24.711, 1.2110 (hereinafter the "Installment Payment Plan") and undertakes to
hold the License under the terms and conditions set forth in the Commission's
orders and regulations, as amended, applicable to such licenses, and the
Communications Act of 1934, as amended and the terms and conditions of this
Agreement;
WHEREAS, the Commission has agreed to permit the Debtor to make payment of
the auction price for the License through an Installment Payment Plan; and
WHEREAS, as a condition to such agreement, Debtor has agreed to execute
the Installment Payment Plan Note of even date ("Note") and to enter into this
Agreement and make the pledge and assignment of collateral contemplated herein.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
contained herein and for other good and valuable consideration, the receipt,
adequacy, and sufficiency of which is hereby acknowledged, and in order to
induce the Commission to permit Debtor to pay the auction price for the License
through the Installment Payment Plan, Debtor hereby agrees with the Commission
as follows:
1. Pledge and Assignment of Collateral for Obligations Under Note. Debtor
hereby pledges, assigns, hypothecates, delivers, and sets over to the Commission
and grants to the Commission a first lien on and continuing security interest in
all of the Debtor's rights and interest in the License and all proceeds, profits
and products of any sale of or other disposition thereof (collectively the
"Collateral"), all as collateral security for the prompt and complete payment
when due (whether in accordance with the schedule of payments, at the stated
maturity, by acceleration, or otherwise) of the unpaid principal and interest
due, and such other additional costs, expenses, late charges, administrative
charges, attorneys fees, and default payments assessable under the terms of the
Note (all collectively "Obligations"). It is expressly understood by Debtor that
all of the terms of the Note apply to this Agreement and that reference herein
to "this Agreement" includes both the Security Agreement herein and the Note.
For purposes of interpreting the terms used in this Agreement shall have the
meaning ascribed to them in the Uniform Commercial Code (Official Text and
Comments, American Law Institute).
2. Interest of Commission. It is understood and acknowledged by Debtor
that pursuant to Section 301 of the Communications Act of 1934, as amended, the
Commission is charged with the regulatory mandate to maintain control over all
channels of radio transmission (the Spectrum"), and to provide licenses for the
use of such radio channels, but not ownership thereof. Debtor understands and
acknowledges that it holds a mere conditional license to use the Spectrum with
no ownership interest in the Collateral (or any underlying right to use the
Spectrum), or any power to assign the License without the prior approval of the
Commission pursuant to Section 310(d) of the Communications Act of 1934, as
amended. Debtor further understands and acknowledges that it is giving a
security interest to the Commission in the Collateral only to assist the
Commission in protecting its ability to enforce the Commission's regulations
which condition holding the license in compliance with all then-applicable
orders and regulations of the Commission, including, but not limited to, full
and timely payment of all payments under the Installment Payment Plan. To that
end, and not in derogation of any of the Commission's regulatory authority over
the License, Debtor hereby acknowledges that the Commission has a first security
interest in the Collateral, and Debtor shall not dispute such first security
interest, or the Commission's rights as a secured party hereunder, in any legal
or equitable proceeding in which Debtor, or any assignee or trustee of the
estate of Debtor in bankruptcy, is a party. Nothing set forth herein shall
preclude the Debtor from granting to other parties a subordinated security
interest limited to a subordinated interest in the proceeds arising from an
authorized assignment or transfer of the License to a third party (hereinafter a
"Subordinated Security Interest"), provided however that any such Subordinated
Security Interest shall be subordinated to and in no way inconsistent with the
Commission's first security interest in the Collateral, including but not
limited to the proceeds of any disposition of the License, and further provided
that said Subordinated Security Interest shall not survive if the License is
rescinded, cancelled, or revoked by regulatory action of the Commission for
violation of the terms and conditions of the License, including but not limited
to regulatory action upon a default under this Agreement pursuant to 47 C.F.R.
ss. 1.2110. The Debtor shall provide to the Commission upon request the name and
address of any party with a Subordinated Security Interest in the proceeds of
any disposition of the License, and a copy of any documents setting forth such a
Subordinated Security Interest.
Page 2
3. Compliance with Commission Orders and Regulations. Nothing in this
Agreement shall be deemed to modify any then-applicable orders and regulations
of the Commission, and nothing in this Agreement shall be deemed to release
Debtor from compliance therewith.
4. Representations and Warranties of Debtor. Debtor represents and
warrants to the Commission as follows:
(a) It has full power, authority and legal right to execute, deliver
and perform this Agreement, the Note, and any other documents delivered in
connection with the Note, this Agreement and the transactions contemplated
therein to make the debt transaction evidenced by the Note, and to pledge
the Collateral pursuant to this Agreement.
(b) It is a duly organized corporation, existing in good standing
under the laws of Delaware and is duly qualified to do business wherever
necessary to carry on its present operations. Its principal place of
business and chief executive office are located at 00 Xxxx Xxxx,
Xxxxxxxxx, XX 00000.
(c) The representative of Debtor purporting to act on behalf of
Debtor in executing this Agreement, the Note, and any other documents
delivered in connection with the Note, this Agreement and the transactions
contemplated therein, is duly authorized by Debtor to take all such acts
and to execute all such documents.
(d) No security agreements have been executed and delivered, and no
financing statements have been filed in any jurisdiction, granting or
purporting to grant a security interest in the Collateral that would give
any other person any right or interest in the Collateral, or any portion
thereof, except for a Subordinated Security Interest, as defined herein,
and that no person has an a secured interest that is or will be in any way
inconsistent with the rights of the Commission herein as the first secured
party or the terms of this Agreement.
(e) No consent of any other party and no consent, license, approval
or authorization of, exemption by, or registration or declaration with,
any governmental instrumentality, domestic or foreign other than the
Commission, is required to be obtained in connection with the execution,
delivery or performance of this Agreement, the Note or any other document
executed and delivered in connection with the delivery of the Note or this
Agreement.
(f) The execution, delivery and performance of this Agreement and
the Note, does not and will not violate any provision of any applicable
law or regulation or any order, judgment, writ, award or decree of any
court, arbitrator, governmental instrumentality, domestic or foreign, or
of any indenture, contract, agreement or other undertaking to which Debtor
is a party or which purports to be binding upon Debtor or upon any of
Debtor's assets, and will not result in the creation or imposition of any
lien, charge or encumbrance on or security interest in any of the assets
of Debtor, except as contemplated by this Agreement.
Page 3
(g) Debtor will not permit any financing statement to be filed with
respect to the Collateral or any portion thereof or interest therein that
would give said any other person a right or any interest in the
Collateral, or any portion thereof, except that Debtor may permit a third
party to file a Subordinated Security Interest, as defined herein, so long
as said Subordinated Security Interest, is not in any way inconsistent
with the terms of this Agreement and the rights of the Commission herein
as the first secured party. Debtor will promptly notify Secured Party of,
and will defend the Collateral against, all claims and demands of all
persons at any time claiming the same or any interest therein that would
give any other person a right or any interest in the Collateral not
subordinated to the rights of the Commission herein as the first secured
party, or that is in any way inconsistent with the terms of this
Agreement.
5. Covenants of Debtor. Debtor hereby covenants and agrees as follows:
(a) That it will defend the Commission's right, title and security
interest in and to the Collateral against the claims and demands of all
persons whomsoever.
(b) That it will execute all financing statements and other
instruments or documents related to the perfection of the Commission's
security interest, including but not limited to any renewal financing
statements or instruments as required to maintain the Commission's
security interest, or as otherwise reasonably requested by the Commission,
and to file and pay the cost of filing any such instruments or documents
as required under this paragraph in whichever public office deemed
advisable by the Commission.
(c) That it will not make any indenture, contract, agreement or
other undertaking to which Debtor is a party or which purports to be
binding upon Debtor, or upon any of Debtor's assets, that would result in
the creation or imposition of any lien, charge or encumbrance on or
security interest in any of the assets of Debtor that would give any other
person a right or any interest in the Collateral, or any portion thereof,
except for a Subordinated Security Interest, as defined herein, provided
that such Subordinated Security Agreement is not inconsistent with the
terms of this Agreement and interest of the Commission as the first
secured party.
(d) That it will pay all costs and expenses, including reasonable
attorneys' fees, of the Commission incurred in connection with the
enforcement of this Agreement and any and all liability incurred by the
Commission resulting from any act or omission of Debtor with respect to
the Collateral and this Agreement.
(e) Debtor will execute, alone or with Secured Party, any document,
will procure any document and do all other acts and pay all connected
costs, in a timely and proper manner, which from the character or use of
the Collateral may be reasonably necessary to protect the Collateral
against the rights, claims or interests of third persons, and will
otherwise preserve the Collateral as security hereunder. The specific
undertakings required of Debtor in this Agreement shall not be construed
to exclude the aforementioned general obligation.
Page 4
6. Power of Attorney. Debtor hereby irrevocably constitutes and appoints
the Commission 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 place and stead of Debtor and in the name of Debtor
or in its own name, from time to time in the Commission's discretion, for the
purpose of carrying out the terms of this Agreement and, to the extent permitted
by applicable law, to take any and all appropriate actions and to execute any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement. Such appointment is a power coupled
with an interest until all Obligations have been paid in full by Debtor.
7. Event of Default. Debtor shall be in default under this Agreement if an
Event of Default (as defined in the Note) has occurred.
8. Remedies. If an Event of Default shall occur, the Commission shall
thereafter have the following rights and remedies (to the extent permitted by
applicable law) in addition to the rights and remedies relating to the Note, all
such remedies being cumulative, not exclusive, and enforceable alternatively,
successively or concurrently at such time or times as Commission deems
expedient:
(a) the License shall be automatically canceled pursuant to 47
C.F.R. ss. 1.2110;
(b) all Obligations secured hereunder shall become immediately due
and payable without presentment, demand, protest, further notice, or other
requirements of any kind;
(c) the Commission may demand, xxx for, and collect the outstanding
balance of the unpaid Obligations, and make any compromise, or settlement
the Commission deems suitable with respect to any Collateral which may be
held by it hereunder;
(d) Debtor hereby acknowledges the Commission's authority, pursuant
to the Communications Act of 1934, as amended, and the Commission's orders
and regulations then-applicable to such licenses, to conduct another
public auction or assign the License in the event that the Commission
rescinds, cancels, or revokes the License for any default under this
Agreement or any other violation of the terms and conditions of the
License. The Undersigned hereby waives all notices prior to the conduct of
said public auction or assignment by the Commission or its agents. Debtor
further acknowledges that in the event that the Commission rescinds,
cancels, or revokes the License for any default under this Agreement or
any other violation of the terms and conditions of the License, Debtor has
no right or interest in any moneys or evidence of indebtedness given to
the Commission by a subsequent licensee of the Spectrum and that all such
moneys or evidence of indebtedness are, and shall remain, the full
property of the federal Treasury, pursuant to Section 309(j) of the
Communications Act of 1934, as amended, and then-applicable Commission
orders and regulations.
(e) In addition to other remedies hereunder, Debtor shall remain
liable, and obligated to pay on demand, all costs of collection and
reasonable attorneys' fees and
Page 5
expenses incurred or paid by the Commission in enforcing this Agreement
including, without limitation, all administrative fees and expenses of the
Commission in attempting to collect the Obligations or to enforce this
Agreement, or the prosecution or defense of any action or proceeding
related to the subject matter of this Agreement, and all payments assessed
by the Commission in the event of default as specified in Commission
orders and regulations applicable to such licenses.
(f) Debtor hereby acknowledges that the Commission has no adequate
remedy at law with respect to a breach of any covenant contained in this
Agreement and, as a consequence, agrees that each and every covenant
contained in this Agreement shall be specifically enforceable against
Debtor, and Debtor hereby waives and agrees not to assert any defense
against an action for specific performance of such covenants.
(g) Secured Party may exercise any and all of the rights and
remedies conferred upon Secured Party by this Agreement, any other loan
documents, or by applicable law, either concurrently or in such order as
Secured Party may determine.
(h) Secured Party may make such payments and do such acts as Secured
Party may deem necessary to protect its secured interest in the
Collateral.
(i) the Commission may exercise any remedies of a Secured Party
under the Uniform Commercial Code (Official Text and Comments, American
Law Institute), or any other applicable law.
(j) Secured Party shall have the right to enforce one or more
remedies hereunder or under the Note, successively or concurrently, and
such action shall not operate to estop or prevent Secured Party from
pursuing any further remedy which it may have.
9. Severability. Any provision of this Agreement that is 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 hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10. No Waiver: Cumulative Remedies. None of the terms or provisions of
this Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by the Commission. The Commission shall not
by any act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies under this Agreement, and no waiver shall be valid unless in
writing, signed by the Commission, and then only to the extent therein set
forth. A waiver by the Commission of any right or remedy under this Agreement on
any one occasion shall not be construed as a bar to any right or remedy which
the Commission would otherwise have on any future occasion. No failure to
exercise nor any delay in exercising on the part of the Commission, any right,
power or privilege under this Agreement shall operate as a waiver
Page 6
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 in this Agreement are cumulative and may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
11. Compliance With Other Applicable Orders and Regulations. Debtor
recognizes that its continued retention of the License, and rights to operate as
a Commission licensee thereunder, are conditioned upon compliance with all
Commission orders and regulations applicable to the License and the
Communications Act of 1934, as amended. Debtor further recognizes that full and
timely payment as set forth in the Note does not otherwise relieve it of its
obligations otherwise to comply with the then-applicable orders and regulations
of the Commission, and the Communications Act of 1934, as amended.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with Communications Act of 1934, as amended, then-applicable
Commission orders and regulations, as amended, and federal law.
13. Successors, Assigns, Designated Agents. Subject to the provisions of
Paragraph 2 of this Agreement regarding the restriction upon Debtor's ability to
assign the License, this Agreement shall be binding upon Debtor, its successors
and assigns and shall inure to the benefit of the Commission, and its successors
and assigns. The Commission may designate agents other than the Commission to
act on its behalf with respect to any and all rights and remedies of the
Commission under this Agreement or the Note, and such designee shall have all of
the rights, powers and remedies available to the Commission within the scope of
its designation. Nothing herein, however, shall be construed as granting Debtor
any right to sell or assign the License.
14. Singular and Plural. Wherever used, the singular number shall include
the plural, the plural shall include the singular, and the use of any gender
shall be applicable to all genders.
15. Financing Statements. To the extent permitted by applicable law,
Debtor authorizes the Commission to sign and file financing statements at any
time with respect to any of the Collateral without the signature of Debtor.
Debtor will, however, at the same time and from time to time, execute such
financing statements, agreements and other instruments and perform such acts as
Commission may request in order to establish and maintain a validly perfected
first priority security interest in the Collateral. All reasonable costs of
filing and recording will be paid by Debtor.
16. Indemnification. Debtor hereby agrees to defend, indemnify and hold
harmless Secured Party and its employees, officers and agents, from and against
any and all liabilities, claims and obligations which may be incurred, asserted
or imposed upon them or any of them as a result of or in connection with any
use, operation, lease or consumption of any of the Collateral or as a result of
Secured Party's seeking to obtain performance of any of the obligations due with
respect to the Collateral.
Page 7
17. Notices. All notices, requests and demands hereunder shall be in
writing and shall be deemed to have been duly given, made or served on the
earliest of (I) three (3) business days after the date mailed if sent by
first-class U.S. mail, postage prepaid, (ii) actual delivery thereof if
delivered by hand to the party to be notified, (iii) receipt thereof if sent by
express mail or other overnight courier service, or (iv) transmission to the
telecopier number listed below for the party to be notified if sent within
normal business hours or, otherwise, on the next business day thereafter. In
each case such notification with respect to the Debtor and the Commission shall
be addressed as set forth below or as may be hereafter designed by the
respective parties hereto.
As to Debtor:
Xx. Xxx Xxxxxx
Personal Communications Network, Inc.
c/o Electronics Communications Corp.
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
As to the Commission:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
DEBTOR: PERSONAL COMMUNICATIONS NETWORK, INC.
Date: 12/12/96 By: /s/ Xxx Xxxxxx
-------- -------------------------------
Its: Executive Vice President
------------------------------
FEDERAL COMMUNICATIONS COMMISSION
Date: By:
-------- -------------------------------
Its: Associate Managing Director for
Operations (or Designee)
Page 8
SECURITY AGREEMENT
(Broadband Personal Communications Service, C Block: Auction Event No. 5)
License No. PBB388C
This SECURITY AGREEMENT DATED September 17, 1996, ("Agreement") between PERSONAL
COMMUNICATIONS NETWORK, INC., a corporation ("Debtor") and the FEDERAL
COMMUNICATIONS COMMISSION, an independent regulatory agency of the United States
("Commission" or "Secured Party")
WITNESSETH
WHEREAS, Debtor has submitted the highest accepted bid for license number
PBB388C in the Broadband Personal Communications Service C Block auction
(hereinafter the "License") conducted by the Commission to assign such licenses;
WHEREAS, the Commission has duly determined to grant the License to
Debtor, subject to the terms and conditions set forth in the orders and
regulations of the Commission applicable to such licenses, and the
Communications Act of 1934, as amended;
WHEREAS, Debtor wishes to pay its auction price for the License by
installments through an Installment Payment Plan as provided by 47 C.F.R. xx.xx.
24.711, 1.2110 (hereinafter the "Installment Payment Plan") and undertakes to
hold the License under the terms and conditions set forth in the Commission's
orders and regulations, as amended, applicable to such licenses, and the
Communications Act of 1934, as amended and the terms and conditions of this
Agreement;
WHEREAS, the Commission has agreed to permit the Debtor to make payment of
the auction price for the License through an Installment Payment Plan; and
WHEREAS, as a condition to such agreement, Debtor has agreed to execute
the Installment Payment Plan Note of even date ("Note") and to enter into this
Agreement and make the pledge and assignment of collateral contemplated herein.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
contained herein and for other good and valuable consideration, the receipt,
adequacy, and sufficiency of which is hereby acknowledged, and in order to
induce the Commission to permit Debtor to pay the auction price for the License
through the Installment Payment Plan, Debtor hereby agrees with the Commission
as follows:
1. Pledge and Assignment of Collateral for Obligations Under Note. Debtor
hereby pledges, assigns, hypothecates, delivers, and sets over to the Commission
and grants to the Commission a first lien on and continuing security interest in
all of the Debtor's rights and interest in the License and all proceeds, profits
and products of any sale of or other disposition thereof (collectively the
"Collateral"), all as collateral security for the prompt and complete payment
when due (whether in accordance with the schedule of payments, at the stated
maturity, by acceleration, or otherwise) of the unpaid principal and interest
due, and such other additional costs, expenses, late charges, administrative
charges, attorneys fees, and default payments assessable under the terms of the
Note (all collectively "Obligations"). It is expressly understood by Debtor that
all of the terms of the Note apply to this Agreement and that reference herein
to "this Agreement" includes both the Security Agreement herein and the Note.
For purposes of interpreting the terms used in this Agreement shall have the
meaning ascribed to them in the Uniform Commercial Code (Official Text and
Comments, American Law Institute).
2. Interest of Commission. It is understood and acknowledged by Debtor
that pursuant to Section 301 of the Communications Act of 1934, as amended, the
Commission is charged with the regulatory mandate to maintain control over all
channels of radio transmission (the Spectrum"), and to provide licenses for the
use of such radio channels, but not ownership thereof. Debtor understands and
acknowledges that it holds a mere conditional license to use the Spectrum with
no ownership interest in the Collateral (or any underlying right to use the
Spectrum), or any power to assign the License without the prior approval of the
Commission pursuant to Section 310(d) of the Communications Act of 1934, as
amended. Debtor further understands and acknowledges that it is giving a
security interest to the Commission in the Collateral only to assist the
Commission in protecting its ability to enforce the Commission's regulations
which condition holding the license in compliance with all then-applicable
orders and regulations of the Commission, including, but not limited to, full
and timely payment of all payments under the Installment Payment Plan. To that
end, and not in derogation of any of the Commission's regulatory authority over
the License, Debtor hereby acknowledges that the Commission has a first security
interest in the Collateral, and Debtor shall not dispute such first security
interest, or the Commission's rights as a secured party hereunder, in any legal
or equitable proceeding in which Debtor, or any assignee or trustee of the
estate of Debtor in bankruptcy, is a party. Nothing set forth herein shall
preclude the Debtor from granting to other parties a subordinated security
interest limited to a subordinated interest in the proceeds arising from an
authorized assignment or transfer of the License to a third party (hereinafter a
"Subordinated Security Interest"), provided however that any such Subordinated
Security Interest shall be subordinated to and in no way inconsistent with the
Commission's first security interest in the Collateral, including but not
limited to the proceeds of any disposition of the License, and further provided
that said Subordinated Security Interest shall not survive if the License is
rescinded, cancelled, or revoked by regulatory action of the Commission for
violation of the terms and conditions of the License, including but not limited
to regulatory action upon a default under this Agreement pursuant to 47 C.F.R.
ss. 1.2110. The Debtor shall provide to the Commission upon request the name and
address of any party with a Subordinated Security Interest in the proceeds of
any disposition of the License, and a copy of any documents setting forth such a
Subordinated Security Interest.
Page 2
3. Compliance with Commission Orders and Regulations. Nothing in this
Agreement shall be deemed to modify any then-applicable orders and regulations
of the Commission, and nothing in this Agreement shall be deemed to release
Debtor from compliance therewith.
4. Representations and Warranties of Debtor. Debtor represents and
warrants to the Commission as follows:
(a) It has full power, authority and legal right to execute, deliver
and perform this Agreement, the Note, and any other documents delivered in
connection with the Note, this Agreement and the transactions contemplated
therein to make the debt transaction evidenced by the Note, and to pledge
the Collateral pursuant to this Agreement.
(b) It is a duly organized corporation, existing in good standing
under the laws of Delaware and is duly qualified to do business wherever
necessary to carry on its present operations. Its principal place of
business and chief executive office are located at 00 Xxxx Xxxx,
Xxxxxxxxx, XX 00000.
(c) The representative of Debtor purporting to act on behalf of
Debtor in executing this Agreement, the Note, and any other documents
delivered in connection with the Note, this Agreement and the transactions
contemplated therein, is duly authorized by Debtor to take all such acts
and to execute all such documents.
(d) No security agreements have been executed and delivered, and no
financing statements have been filed in any jurisdiction, granting or
purporting to grant a security interest in the Collateral that would give
any other person any right or interest in the Collateral, or any portion
thereof except for a Subordinated Security Interest, as defined herein,
and that no person has an a secured interest that is or will be in any way
inconsistent with the rights of the Commission herein as the first secured
party or the terms of this Agreement.
(e) No consent of any other party and no consent, license, approval
or authorization of, exemption by, or registration or declaration with,
any governmental instrumentality, domestic or foreign other than the
Commission, is required to be obtained in connection with the execution,
delivery or performance of this Agreement, the Note or any other document
executed and delivered in connection with the delivery of the Note or this
Agreement.
(f) The execution, delivery and performance of this Agreement and
the Note, does not and will not violate any provision of any applicable
law or regulation or any order, judgment, writ, award or decree of any
court, arbitrator, governmental instrumentality, domestic or foreign, or
of any indenture, contract, agreement or other undertaking to which Debtor
is a party or which purports to be binding upon Debtor or upon any of
Debtor's assets, and will not result in the creation or imposition of any
lien, charge or encumbrance on or security interest in any of the assets
of Debtor, except as contemplated by this Agreement.
Page 3
(g) Debtor will not permit any financing statement to be filed with
respect to the Collateral or any portion thereof or interest therein that
would give said any other person a right or any interest in the
Collateral, or any portion thereof, except that Debtor may permit a third
party to file a Subordinated Security Interest, as defined herein, so long
as said Subordinated Security Interest, is not in any way inconsistent
with the terms of this Agreement and the rights of the Commission herein
as the first secured party. Debtor will promptly notify Secured Party of,
and will defend the Collateral against, all claims and demands of all
persons at any time claiming the same or any interest therein that would
give any other person a right or any interest in the Collateral not
subordinated to the rights of the Commission herein as the first secured
party, or that is in any way inconsistent with the terms of this
Agreement.
5. Covenants of Debtor. Debtor hereby covenants and agrees as follows:
(a) That it will defend the Commission's right, title and security
interest in and to the Collateral against the claims and demands of all
persons whomsoever.
(b) That it will execute all financing statements and other
instruments or documents related to the perfection of the Commission's
security interest, including but not limited to any renewal financing
statements or instruments as required to maintain the Commission's
security interest, or as otherwise reasonably requested by the Commission,
and to file and pay the cost of filing any such instruments or documents
as required under this paragraph in whichever public office deemed
advisable by the Commission.
(c) That it will not make any indenture, contract, agreement or
other undertaking to which Debtor is a party or which purports to be
binding upon Debtor, or upon any of Debtor's assets, that would result in
the creation or imposition of any lien, charge or encumbrance on or
security interest in any of the assets of Debtor that would give any other
person a right or any interest in the Collateral, or any portion thereof,
except for a Subordinated Security Interest, as defined herein, provided
that such Subordinated Security Agreement is not inconsistent with the
terms of this Agreement and interest of the Commission as the first
secured party.
(d) That it will pay all costs and expenses, including reasonable
attorneys' fees, of the Commission incurred in connection with the
enforcement of this Agreement and any and all liability incurred by the
Commission resulting from any act or omission of Debtor with respect to
the Collateral and this Agreement.
(e) Debtor will execute, alone or with Secured Party, any document,
will procure any document and do all other acts and pay all connected
costs, in a timely and proper manner, which from the character or use of
the Collateral may be reasonably necessary to protect the Collateral
against the rights, claims or interests of third persons, and will
otherwise preserve the Collateral as security hereunder. The specific
undertakings required of Debtor in this Agreement shall not be construed
to exclude the aforementioned general obligation.
Page 4
6. Power of Attorney. Debtor hereby irrevocably constitutes and appoints
the Commission 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 place and stead of Debtor and in the name of Debtor
or in its own name, from time to time in the Commission's discretion, for the
purpose of carrying out the terms of this Agreement and, to the extent permitted
by applicable law, to take any and all appropriate actions and to execute any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement. Such appointment is a power coupled
with an interest until all Obligations have been paid in full by Debtor.
7. Event of Default. Debtor shall be in default under this Agreement if an
Event of Default (as defined in the Note) has occurred.
8. Remedies. If an Event of Default shall occur, the Commission shall
thereafter have the following rights and remedies (to the extent permitted by
applicable law) in addition to the rights and remedies relating to the Note, all
such remedies being cumulative, not exclusive, and enforceable alternatively,
successively or concurrently at such time or times as Commission deems
expedient:
(a) the License shall be automatically canceled pursuant to 47
C.F.R. ss. 1.2110;
(b) all Obligations secured hereunder shall become immediately due
and payable without presentment, demand, protest, further notice, or other
requirements of any kind;
(c) the Commission may demand, xxx for, and collect the outstanding
balance of the unpaid Obligations, and make any compromise, or settlement
the Commission deems suitable with respect to any Collateral which may be
held by it hereunder;
(d) Debtor hereby acknowledges the Commission's authority, pursuant
to the Communications Act of 1934, as amended, and the Commission's orders
and regulations then-applicable to such licenses, to conduct another
public auction or assign the License in the event that the Commission
rescinds, cancels, or revokes the License for any default under this
Agreement or any other violation of the terms and conditions of the
License. The Undersigned hereby waives all notices prior to the conduct of
said public auction or assignment by the Commission or its agents. Debtor
further acknowledges that in the event that the Commission rescinds,
cancels, or revokes the License for any default under this Agreement or
any other violation of the terms and conditions of the License, Debtor has
no right or interest in any moneys or evidence of indebtedness given to
the Commission by a subsequent licensee of the Spectrum and that all such
moneys or evidence of indebtedness are, and shall remain, the full
property of the federal Treasury, pursuant to Section 309(j) of the
Communications Act of 1934, as amended, and then-applicable Commission
orders and regulations.
(e) In addition to other remedies hereunder, Debtor shall remain
liable, and obligated to pay on demand, all costs of collection and
reasonable attorneys' fees and
Page 5
expenses incurred or paid by the Commission in enforcing this Agreement
including, without limitation, all administrative fees and expenses of the
Commission in attempting to collect the Obligations or to enforce this
Agreement, or the prosecution or defense of any action or proceeding
related to the subject matter of this Agreement, and all payments assessed
by the Commission in the event of default as specified in Commission
orders and regulations applicable to such licenses.
(f) Debtor hereby acknowledges that the Commission has no adequate
remedy at law with respect to a breach of any covenant contained in this
Agreement and, as a consequence, agrees that each and every covenant
contained in this Agreement shall be specifically enforceable against
Debtor, and Debtor hereby waives and agrees not to assert any defense
against an action for specific performance of such covenants.
(g) Secured Party may exercise any and all of the rights and
remedies conferred upon Secured Party by this Agreement, any other loan
documents, or by applicable law, either concurrently or in such order as
Secured Party may determine.
(h) Secured Party may make such payments and do such acts as Secured
Party may deem necessary to protect its secured interest in the
Collateral.
(i) the Commission may exercise any remedies of a Secured Party
under the Uniform Commercial Code (Official Text and Comments, American
Law Institute), or any other applicable law.
(j) Secured Party shall have the right to enforce one or more
remedies hereunder or under the Note, successively or concurrently, and
such action shall not operate to estop or prevent Secured Party from
pursuing any further remedy which it may have.
9. Severability. Any provision of this Agreement that is 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 hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10. No Waiver: Cumulative Remedies. None of the terms or provisions of
this Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by the Commission. The Commission shall not
by any act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies under this Agreement, and no waiver shall be valid unless in
writing, signed by the Commission, and then only to the extent therein set
forth. A waiver by the Commission of any right or remedy under this Agreement on
any one occasion shall not be construed as a bar to any right or remedy which
the Commission would otherwise have on any future occasion. No failure to
exercise nor any delay in exercising on the part of the Commission, any right,
power or privilege under this Agreement shall operate as a waiver
Page 6
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 in this Agreement are cumulative and may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
11. Compliance With Other Applicable Orders and Regulations. Debtor
recognizes that its continued retention of the License, and rights to operate as
a Commission licensee thereunder, are conditioned upon compliance with all
Commission orders and regulations applicable to the License and the
Communications Act of 1934, as amended. Debtor further recognizes that full and
timely payment as set forth in the Note does not otherwise relieve it of its
obligations otherwise to comply with the then-applicable orders and regulations
of the Commission, and the Communications Act of 1934, as amended.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with Communications Act of 1934, as amended, then-applicable
Commission orders and regulations, as amended, and federal law.
13. Successors, Assigns, Designated Agents. Subject to the provisions of
Paragraph 2 of this Agreement regarding the restriction upon Debtor's ability to
assign the License, this Agreement shall be binding upon Debtor, its successors
and assigns and shall inure to the benefit of the Commission, and its successors
and assigns. The Commission may designate agents other than the Commission to
act on its behalf with respect to any and all rights and remedies of the
Commission under this Agreement or the Note, and such designee shall have all of
the rights, powers and remedies available to the Commission within the scope of
its designation. Nothing herein, however, shall be construed as granting Debtor
any right to sell or assign the License.
14. Singular and Plural. Wherever used, the singular number shall include
the plural, the plural shall include the singular, and the use of any gender
shall be applicable to all genders.
15. Financing Statements. To the extent permitted by applicable law,
Debtor authorizes the Commission to sign and file financing statements at any
time with respect to any of the Collateral without the signature of Debtor.
Debtor will, however, at the same time and from time to time, execute such
financing statements, agreements and other instruments and perform such acts as
Commission may request in order to establish and maintain a validly perfected
first priority security interest in the Collateral. All reasonable costs of
filing and recording will be paid by Debtor.
16. Indemnification. Debtor hereby agrees to defend, indemnify and hold
harmless Secured Party and its employees, officers and agents, from and against
any and all liabilities, claims and obligations which may be incurred, asserted
or imposed upon them or any of them as a result of or in connection with any
use, operation, lease or consumption of any of the Collateral or as a result of
Secured Party's seeking to obtain performance of any of the obligations due with
respect to the Collateral.
Page 7
17. Notices. All notices, requests and demands hereunder shall be in
writing and shall be deemed to have been duly given, made or served on the
earliest of (I) three (3) business days after the date mailed if sent by
first-class U.S. mail, postage prepaid, (ii) actual delivery thereof if
delivered by hand to the party to be notified, (iii) receipt thereof if sent by
express mail or other overnight courier service, or (iv) transmission to the
telecopier number listed below for the party to be notified if sent within
normal business hours or, otherwise, on the next business day thereafter. In
each case such notification with respect to the Debtor and the Commission shall
be addressed as set forth below or as may be hereafter designed by the
respective parties hereto.
As to Debtor:
Xx. Xxx Xxxxxx
Personal Communications Network, Inc.
c/o Electronics Communications Corp.
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
As to the Commission:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
DEBTOR: PERSONAL COMMUNICATIONS NETWORK, INC.
Date: 12/12/96 By: /s/ Xxx Xxxxxx
--------- --------------------------------
Its: Executive Vice President
--------------------------------
FEDERAL COMMUNICATIONS COMMISSION
Date: By:
--------- --------------------------------
Its: Associate Managing Director for
Operations (or Designee)
Page 8
SECURITY AGREEMENT
(Broadband Personal Communications Service, C Block: Auction Event No. 5)
License No. PBB465C
This SECURITY AGREEMENT DATED September 17, 1996, ("Agreement") between PERSONAL
COMMUNICATIONS NETWORK, INC., a corporation ("Debtor") and the FEDERAL
COMMUNICATIONS COMMISSION, an independent regulatory agency of the United States
("Commission" or "Secured Party")
WITNESSETH
WHEREAS, Debtor has submitted the highest accepted bid for license number
PBB465C in the Broadband Personal Communications Service C Block auction
(hereinafter the "License") conducted by the Commission to assign such licenses;
WHEREAS, the Commission has duly determined to grant the License to
Debtor, subject to the terms and conditions set forth in the orders and
regulations of the Commission applicable to such licenses, and the
Communications Act of 1934, as amended;
WHEREAS, Debtor wishes to pay its auction price for the License by
installments through an Installment Payment Plan as provided by 47 C.F.R. xx.xx.
24.711, 1.2110 (hereinafter the "Installment Payment Plan") and undertakes to
hold the License under the terms and conditions set forth in the Commission's
orders and regulations, as amended, applicable to such licenses, and the
Communications Act of 1934, as amended and the terms and conditions of this
Agreement;
WHEREAS, the Commission has agreed to permit the Debtor to make payment of
the auction price for the License through an Installment Payment Plan; and
WHEREAS, as a condition to such agreement, Debtor has agreed to execute
the Installment Payment Plan Note of even date ("Note") and to enter into this
Agreement and make the pledge and assignment of collateral contemplated herein.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
contained herein and for other good and valuable consideration, the receipt,
adequacy, and sufficiency of which is hereby acknowledged, and in order to
induce the Commission to permit Debtor to pay the auction price for the License
through the Installment Payment Plan, Debtor hereby agrees with the Commission
as follows:
1. Pledge and Assignment of Collateral for Obligations Under Note. Debtor
hereby pledges, assigns, hypothecates, delivers, and sets over to the Commission
and grants to the Commission a first lien on and continuing security interest in
all of the Debtor's rights and interest in the License and all proceeds, profits
and products of any sale of or other disposition thereof (collectively the
"Collateral"), all as collateral security for the prompt and complete payment
when due (whether in accordance with the schedule of payments, at the stated
maturity, by acceleration, or otherwise) of the unpaid principal and interest
due, and such other additional costs, expenses, late charges, administrative
charges, attorneys fees, and default payments assessable under the terms of the
Note (all collectively "Obligations"). It is expressly understood by Debtor that
all of the terms of the Note apply to this Agreement and that reference herein
to "this Agreement" includes both the Security Agreement herein and the Note.
For purposes of interpreting the terms used in this Agreement shall have the
meaning ascribed to them in the Uniform Commercial Code (Official Text and
Comments, American Law Institute).
2. Interest of Commission. It is understood and acknowledged by Debtor
that pursuant to Section 301 of the Communications Act of 1934, as amended, the
Commission is charged with the regulatory mandate to maintain control over all
channels of radio transmission (the Spectrum"), and to provide licenses for the
use of such radio channels, but not ownership thereof. Debtor understands and
acknowledges that it holds a mere conditional license to use the Spectrum with
no ownership interest in the Collateral (or any underlying right to use the
Spectrum), or any power to assign the License without the prior approval of the
Commission pursuant to Section 310(d) of the Communications Act of 1934, as
amended. Debtor further understands and acknowledges that it is giving a
security interest to the Commission in the Collateral only to assist the
Commission in protecting its ability to enforce the Commission's regulations
which condition holding the license in compliance with all then-applicable
orders and regulations of the Commission, including, but not limited to, full
and timely payment of all payments under the Installment Payment Plan. To that
end, and not in derogation of any of the Commission's regulatory authority over
the License, Debtor hereby acknowledges that the Commission has a first security
interest in the Collateral, and Debtor shall not dispute such first security
interest, or the Commission's rights as a secured party hereunder, in any legal
or equitable proceeding in which Debtor, or any assignee or trustee of the
estate of Debtor in bankruptcy, is a party. Nothing set forth herein shall
preclude the Debtor from granting to other parties a subordinated security
interest limited to a subordinated interest in the proceeds arising from an
authorized assignment or transfer of the License to a third party (hereinafter a
"Subordinated Security Interest"), provided however that any such Subordinated
Security Interest shall be subordinated to and in no way inconsistent with the
Commission's first security interest in the Collateral, including but not
limited to the proceeds of any disposition of the License, and further provided
that said Subordinated Security Interest shall not survive if the License is
rescinded, cancelled, or revoked by regulatory action of the Commission for
violation of the terms and conditions of the License, including but not limited
to regulatory action upon a default under this Agreement pursuant to 47 C.F.R.
ss. 1.2110. The Debtor shall provide to the Commission upon request the name and
address of any party with a Subordinated Security Interest in the proceeds of
any disposition of the License, and a copy of any documents setting forth such a
Subordinated Security Interest.
Page 2
3. Compliance with Commission Orders and Regulations. Nothing in this
Agreement shall be deemed to modify any then-applicable orders and regulations
of the Commission, and nothing in this Agreement shall be deemed to release
Debtor from compliance therewith.
4. Representations and Warranties of Debtor. Debtor represents and
warrants to the Commission as follows:
(a) It has full power, authority and legal right to execute, deliver
and perform this Agreement, the Note, and any other documents delivered in
connection with the Note, this Agreement and the transactions contemplated
therein to make the debt transaction evidenced by the Note, and to pledge
the Collateral pursuant to this Agreement.
(b) It is a duly organized corporation, existing in good standing
under the laws of Delaware and is duly qualified to do business wherever
necessary to carry on its present operations. Its principal place of
business and chief executive office are located at 00 Xxxx Xxxx,
Xxxxxxxxx, XX 00000.
(c) The representative of Debtor purporting to act on behalf of
Debtor in executing this Agreement, the Note, and any other documents
delivered in connection with the Note, this Agreement and the transactions
contemplated therein, is duly authorized by Debtor to take all such acts
and to execute all such documents.
(d) No security agreements have been executed and delivered, and no
financing statements have been filed in any jurisdiction, granting or
purporting to grant a security interest in the Collateral that would give
any other person any right or interest in the Collateral, or any portion
thereof, except for a Subordinated Security Interest, as defined herein,
and that no person has an a secured interest that is or will be in any way
inconsistent with the rights of the Commission herein as the first secured
party or the terms of this Agreement.
(e) No consent of any other party and no consent, license, approval
or authorization of, exemption by, or registration or declaration with,
any governmental instrumentality, domestic or foreign other than the
Commission, is required to be obtained in connection with the execution,
delivery or performance of this Agreement, the Note or any other document
executed and delivered in connection with the delivery of the Note or this
Agreement.
(f) The execution, delivery and performance of this Agreement and
the Note, does not and will not violate any provision of any applicable
law or regulation or any order, judgment, writ, award or decree of any
court, arbitrator, governmental instrumentality, domestic or foreign, or
of any indenture, contract, agreement or other undertaking to which Debtor
is a party or which purports to be binding upon Debtor or upon any of
Debtor's assets, and will not result in the creation or imposition of any
lien, charge or encumbrance on or security interest in any of the assets
of Debtor, except as contemplated by this Agreement.
Page 3
(g) Debtor will not permit any financing statement to be filed with
respect to the Collateral or any portion thereof or interest therein that
would give said any other person a right or any interest in the
Collateral, or any portion thereof, except that Debtor may permit a third
party to file a Subordinated Security Interest, as defined herein, so long
as said Subordinated Security Interest, is not in any way inconsistent
with the terms of this Agreement and the rights of the Commission herein
as the first secured party. Debtor will promptly notify Secured Party of,
and will defend the Collateral against, all claims and demands of all
persons at any time claiming the same or any interest therein that would
give any other person a right or any interest in the Collateral not
subordinated to the rights of the Commission herein as the first secured
party, or that is in any way inconsistent with the terms of this
Agreement.
5. Covenants of Debtor. Debtor hereby covenants and agrees as follows:
(a) That it will defend the Commission's right, title and security
interest in and to the Collateral against the claims and demands of all
persons whomsoever.
(b) That it will execute all financing statements and other
instruments or documents related to the perfection of the Commission's
security interest, including but not limited to any renewal financing
statements or instruments as required to maintain the Commission's
security interest, or as otherwise reasonably requested by the Commission,
and to file and pay the cost of filing any such instruments or documents
as required under this paragraph in whichever public office deemed
advisable by the Commission.
(c) That it will not make any indenture, contract, agreement or
other undertaking to which Debtor is a party or which purports to be
binding upon Debtor, or upon any of Debtor's assets, that would result in
the creation or imposition of any lien, charge or encumbrance on or
security interest in any of the assets of Debtor that would give any other
person a right or any interest in the Collateral, or any portion thereof,
except for a Subordinated Security Interest, as defined herein, provided
that such Subordinated Security Agreement is not inconsistent with the
terms of this Agreement and interest of the Commission as the first
secured party.
(d) That it will pay all costs and expenses, including reasonable
attorneys' fees, of the Commission incurred in connection with the
enforcement of this Agreement and any and all liability incurred by the
Commission resulting from any act or omission of Debtor with respect to
the Collateral and this Agreement.
(e) Debtor will execute, alone or with Secured Party, any document,
will procure any document and do all other acts and pay all connected
costs, in a timely and proper manner, which from the character or use of
the Collateral may be reasonably necessary to protect the Collateral
against the rights, claims or interests of third persons, and will
otherwise preserve the Collateral as security hereunder. The specific
undertakings required of Debtor in this Agreement shall not be construed
to exclude the aforementioned general obligation.
Page 4
6. Power of Attorney. Debtor hereby irrevocably constitutes and appoints
the Commission 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 place and stead of Debtor and in the name of Debtor
or in its own name, from time to time in the Commission's discretion, for the
purpose of carrying out the terms of this Agreement and, to the extent permitted
by applicable law, to take any and all appropriate actions and to execute any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement. Such appointment is a power coupled
with an interest until all Obligations have been paid in full by Debtor.
7. Event of Default. Debtor shall be in default under this Agreement if an
Event of Default (as defined in the Note) has occurred.
8. Remedies. If an Event of Default shall occur, the Commission shall
thereafter have the following rights and remedies (to the extent permitted by
applicable law) in addition to the rights and remedies relating to the Note, all
such remedies being cumulative, not exclusive, and enforceable alternatively,
successively or concurrently at such time or times as Commission deems
expedient:
(a) the License shall be automatically canceled pursuant to 47
C.F.R. ss. 1.2110;
(b) all Obligations secured hereunder shall become immediately due
and payable without presentment, demand, protest, further notice, or other
requirements of any kind;
(c) the Commission may demand, xxx for, and collect the outstanding
balance of the unpaid Obligations, and make any compromise, or settlement
the Commission deems suitable with respect to any Collateral which may be
held by it hereunder;
(d) Debtor hereby acknowledges the Commission's authority, pursuant
to the Communications Act of 1934, as amended, and the Commission's orders
and regulations then-applicable to such licenses, to conduct another
public auction or assign the License in the event that the Commission
rescinds, cancels, or revokes the License for any default under this
Agreement or any other violation of the terms and conditions of the
License. The Undersigned hereby waives all notices prior to the conduct of
said public auction or assignment by the Commission or its agents. Debtor
further acknowledges that in the event that the Commission rescinds,
cancels, or revokes the License for any default under this Agreement or
any other violation of the terms and conditions of the License, Debtor has
no right or interest in any moneys or evidence of indebtedness given to
the Commission by a subsequent licensee of the Spectrum and that all such
moneys or evidence of indebtedness are, and shall remain, the full
property of the federal Treasury, pursuant to Section 309(j) of the
Communications Act of 1934, as amended, and then-applicable Commission
orders and regulations.
(e) In addition to other remedies hereunder, Debtor shall remain
liable, and obligated to pay on demand, all costs of collection and
reasonable attorneys' fees and
Page 5
expenses incurred or paid by the Commission in enforcing this Agreement
including, without limitation, all administrative fees and expenses of the
Commission in attempting to collect the Obligations or to enforce this
Agreement, or the prosecution or defense of any action or proceeding
related to the subject matter of this Agreement, and all payments assessed
by the Commission in the event of default as specified in Commission
orders and regulations applicable to such licenses.
(f) Debtor hereby acknowledges that the Commission has no adequate
remedy at law with respect to a breach of any covenant contained in this
Agreement and, as a consequence, agrees that each and every covenant
contained in this Agreement shall be specifically enforceable against
Debtor, and Debtor hereby waives and agrees not to assert any defense
against an action for specific performance of such covenants.
(g) Secured Party may exercise any and all of the rights and
remedies conferred upon Secured Party by this Agreement, any other loan
documents, or by applicable law, either concurrently or in such order as
Secured Party may determine.
(h) Secured Party may make such payments and do such acts as Secured
Party may deem necessary to protect its secured interest in the
Collateral.
(i) the Commission may exercise any remedies of a Secured Party
under the Uniform Commercial Code (Official Text and Comments, American
Law Institute), or any other applicable law.
(j) Secured Party shall have the right to enforce one or more
remedies hereunder or under the Note, successively or concurrently, and
such action shall not operate to estop or prevent Secured Party from
pursuing any further remedy which it may have.
9. Severability. Any provision of this Agreement that is 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 hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10. No Waiver; Cumulative Remedies. None of the terms or provisions of
this Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by the Commission. The Commission shall not
by any act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies under this Agreement, and no waiver shall be valid unless in
writing, signed by the Commission, and then only to the extent therein set
forth. A waiver by the Commission of any right or remedy under this Agreement on
any one occasion shall not be construed as a bar to any right or remedy which
the Commission would otherwise have on any future occasion. No failure to
exercise nor any delay in exercising on the part of the Commission, any right,
power or privilege under this Agreement shall operate as a waiver
Page 6
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 in this Agreement are cumulative and may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
11. Compliance With Other Applicable Orders and Regulations. Debtor
recognizes that its continued retention of the License, and rights to operate as
a Commission licensee thereunder, are conditioned upon compliance with all
Commission orders and regulations applicable to the License and the
Communications Act of 1934, as amended. Debtor further recognizes that full and
timely payment as set forth in the Note does not otherwise relieve it of its
obligations otherwise to comply with the then-applicable orders and regulations
of the Commission, and the Communications Act of 1934, as amended.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with Communications Act of 1934, as amended, then-applicable
Commission orders and regulations, as amended, and federal law.
13. Successors, Assigns, Designated Agents. Subject to the provisions of
Paragraph 2 of this Agreement regarding the restriction upon Debtor's ability to
assign the License, this Agreement shall be binding upon Debtor, its successors
and assigns and shall inure to the benefit of the Commission, and its successors
and assigns. The Commission may designate agents other than the Commission to
act on its behalf with respect to any and all rights and remedies of the
Commission under this Agreement or the Note, and such designee shall have all of
the rights, powers and remedies available to the Commission within the scope of
its designation. Nothing herein, however, shall be construed as granting Debtor
any right to sell or assign the License.
14. Singular and Plural. Wherever used, the singular number shall include
the plural, the plural shall include the singular, and the use of any gender
shall be applicable to all genders.
15. Financing Statements. To the extent permitted by applicable law,
Debtor authorizes the Commission to sign and file financing statements at any
time with respect to any of the Collateral without the signature of Debtor.
Debtor will, however, at the same time and from time to time, execute such
financing statements, agreements and other instruments and perform such acts as
Commission may request in order to establish and maintain a validly perfected
first priority security interest in the Collateral. All reasonable costs of
filing and recording will be paid by Debtor.
16. Indemnification. Debtor hereby agrees to defend, indemnify and hold
harmless Secured Party and its employees, officers and agents, from and against
any and all liabilities, claims and obligations which may be incurred, asserted
or imposed upon them or any of them as a result of or in connection with any
use, operation, lease or consumption of any of the Collateral or as a result of
Secured Party's seeking to obtain performance of any of the obligations due with
respect to the Collateral.
Page 7
17. Notices. All notices, requests and demands hereunder shall be in
writing and shall be deemed to have been duly given, made or served on the
earliest of (I) three (3) business days after the date mailed if sent by
first-class U.S. mail, postage prepaid, (ii) actual delivery thereof if
delivered by hand to the party to be notified, (iii) receipt thereof if sent by
express mail or other overnight courier service, or (iv) transmission to the
telecopier number listed below for the party to be notified if sent within
normal business hours or, otherwise, on the next business day thereafter. In
each case such notification with respect to the Debtor and the Commission shall
be addressed as set forth below or as may be hereafter designed by the
respective parties hereto.
As to Debtor: Xx. Xxx Xxxxxx
Personal Communications Network, Inc.
c/o Electronics Communications Corp.
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
As to the Commission:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
DEBTOR: PERSONAL COMMUNICATIONS NETWORK, INC.
Date: 12/12/96 By: /s/ [ILLEGIBLE]
--------- --------------------------------
Its: Executive Vice President
--------------------------------
FEDERAL COMMUNICATIONS COMMISSION
Date: By:
--------- --------------------------------
Its: Associate Managing Director for
Operations (or Designee)
Page 8
