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EXHIBIT 10.21
COMPANY SECURITY AGREEMENT
This COMPANY SECURITY AGREEMENT (this "AGREEMENT") is dated as of
November 12, 1997 and entered into by and between FWT, INC., a Texas
corporation ("GRANTOR"), and BT COMMERCIAL CORPORATION, as agent for and
representative of (in such capacity herein called "SECURED PARTY") the
financial institutions ("LENDERS") party to the Credit Agreement (as
hereinafter defined).
PRELIMINARY STATEMENTS
A. Secured Party and Lenders have entered into a Credit Agreement
dated as of November 12, 1997 (said Credit Agreement, as it may hereafter he
amended, supplemented or otherwise modified from time to time, being the
"CREDIT AGREEMENT", the terms defined therein and not otherwise defined herein
being used herein as therein defined) with Grantor, pursuant to which Lenders
have made certain commitments, subject to the terms and conditions set forth in
the Credit Agreement, to extend certain credit facilities to Grantor.
B. It is a condition precedent to the initial extensions of credit
by Lenders under the Credit Agreement that Grantor shall have granted the
security interests and undertaken the obligations contemplated by this
Agreement.
NOW, THEREFORE, in consideration of the premises and in order to
induce Lenders to make Loans and other extensions of credit under the Credit
Agreement and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Grantor hereby agrees with Secured
Party as follows:
SECTION 1. GRANT OF SECURITY. Grantor hereby assigns for security
purposes to Secured Party, and hereby grants to Secured Party a security
interest in. all of Grantor"s right, title and interest in and to the
following, in each case whether now or hereafter existing or in which Grantor
now has or hereafter acquires an interest and wherever the same may be located
(the "COLLATERAL"):
(a) all machinery and equipment in all of its forms (including, but
not limited to, all computers, office furniture, other office equipment and all
rolling stock), all parts thereof and all accessions thereto (any and all such
equipment, parts and accessions being the "EQUIPMENT");
(b) all inventory in all of its forms (including, but not limited
to, (i) all goods held by Grantor for sale or lease or to be furnished under
contracts of service or so leased or furnished, (ii) all raw materials, work in
process, finished goods, and materials used or consumed in the manufacture,
packing, shipping, advertising, selling, leasing, furnishing or production of
such inventory or otherwise
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used or consumed in Grantor"s business, (iii) all goods in which Grantor has an
interest in mass or a joint or other interest or right of any kind, and (iv)
all goods which are returned to or repossessed by Grantor, and (v) any
inventory specifically listed in Schedule I annexed hereto) and all accessions
thereto and products thereof (all such inventory, accessions and products being
the "INVENTORY") and all negotiable documents of title (including without
limitation warehouse receipts, dock receipts and bills of lading) issued by any
Person covering any Inventory (any such negotiable document of title being a
"NEGOTIABLE DOCUMENT OF TITLE");
(c) all accounts, contract rights, chattel paper, documents,
instruments, investment property, general intangibles and other rights and
obligations of any kind arising out of or in connection with the sale or lease
of goods or the rendering of services and all rights in, to and under all
security agreements, leases and other contracts securing or otherwise relating
to any such accounts, contract rights, chattel paper, documents, instruments,
investment property, general intangibles or other obligations (any and all such
accounts, contract rights, chattel paper, documents, instruments, general
intangibles and other obligations being the "ACCOUNTS", and any and all such
security agreements, leases and other contracts being the "RELATED CONTRACTS");
(d) any agreements, if any, specifically listed in Schedule I
annexed hereto, as each such agreement may be amended, supplemented or
otherwise modified from time to time (said agreements, as so amended,
supplemented or otherwise modified, being referred to herein individually as an
"ASSIGNED AGREEMENT" and collectively as the "ASSIGNED AGREEMENTS"), including
without limitation (i) all rights of Grantor to receive moneys due or to become
due under or pursuant to the Assigned Agreements, (ii) all rights of Grantor to
receive proceeds of any insurance, indemnity, warranty or guaranty with respect
to the Assigned Agreements, (iii) all claims of Grantor for damages arising out
of any breach of or default under the Assigned Agreements, and (iv) all rights
of Grantor to terminate, amend, supplement, modify or exercise rights or
options under the Assigned Agreements, to perform thereunder and to compel
performance and otherwise exercise all remedies thereunder
(e) all deposit accounts, including without limitation any deposit
accounts specifically listed in Schedule I annexed hereto, and all deposit
accounts maintained with Secured Party;
(f) all trademarks, tradenames, tradesecrets, business names,
patents, patent applications, licenses, copyrights, registrations and franchise
rights (including, but not limited to, any trademarks, copyrights or patents
listed in Schedule I hereto) (collectively, "INTELLECTUAL PROPERTY") and all
goodwill associated with any of the foregoing and all renewals, reissues and
extensions of, all applications for any such trademarks, tradenames, patents,
licenses, copyrights and registrations;
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(g) to the extent not included in any other paragraph of this
Section 1, all investment property and all other general intangibles (including
without limitation all production techniques, quality control procedures and
product specifications relating to the products and services sold or delivered
by Grantor and all tax refunds, rights to payment or performance, choses in
action and judgments taken on any rights or claims included in the Collateral);
(h) all plant fixtures, business fixtures and other fixtures and
storage and office facilities, and all accessions thereto and products thereof;
(i) all books, records, ledger cards, files, correspondence,
computer programs, tapes, disks and related data processing software that at
any time evidence or contain information relating to any of the Collateral or
are otherwise necessary or helpful in the collection thereof or realization
thereupon; and
(j) all proceeds, products, rents and profits of or from any and all
of the foregoing Collateral and, to the extent not otherwise included, all
payments under insurance (whether or not Secured Party is the loss payee
thereof), or any indemnity, warranty or guaranty, payable by reason of loss or
damage to or otherwise with respect to any of the foregoing Collateral. For
purposes of this Agreement, the term "PROCEEDS" includes whatever is
receivable or received when Collateral or proceeds are sold, exchanged,
collected or otherwise disposed of, whether such disposition is voluntary or
involuntary.
Notwithstanding the foregoing, Collateral shall exclude any
intellectual property right, contracts and agreements to the extent, and only
to the extent, that such intellectual property right, contract or agreement
contains a provision enforceable at law and in equity that would be breached by
(or would result in the termination of such intellectual property, contract or
agreement upon) the grant of the security interest created herein pursuant to
the terms of this Agreement; provided, however, that if and when any
prohibition on the assignment, pledge or grant of a security interest in such
intellectual property right, contract or agreement is removed, the Secured
Party will be deemed to have been granted a security interest in such
intellectual property right, contract or agreement as of the date hereof, and
the Collateral will be deemed to include such intellectual property right,
contract or agreement.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures, and
the Collateral is collateral security for, the prompt payment or performance in
full when due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including the payment of amounts that would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. Section 362(a)), of all obligations and
liabilities of every nature of Grantor now or hereafter existing under or
arising out of or in connection with the Credit Agreement and the other Loan
Documents and all extensions or renewals thereof, whether for principal,
interest (including without limitation interest that, but
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for the filing of a petition in bankruptcy with respect to Grantor, would
accrue on such obligations), reimbursement of amounts drawn under Letters of
Credit, fees, expenses, indemnities or otherwise, whether voluntary or
involuntary, direct or indirect, absolute or contingent, liquidated or
unliquidated, whether or not jointly owed with others, and whether or not from
time to time decreased or extinguished and later increased, created or
incurred, and all or any portion of such obligations or liabilities that are
paid, to the extent all or any part of such payment is avoided or recovered
directly or indirectly from Secured Party or any Lender as a preference,
fraudulent transfer or otherwise (all such obligations and liabilities being
the "UNDERLYING DEBT"), and all obligations of every nature of Grantor now or
hereafter existing under this Agreement (all such obligations of Grantor,
together with the Underlying Debt, being the "SECURED OBLIGATIONS").
SECTION 3. GRANTOR REMAINS LIABLE. Anything contained herein to
the contrary notwithstanding, (a) Grantor shall remain liable under any
contracts and agreements included in the Collateral, to the extent set forth
therein, to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by Secured
Party of any of its rights hereunder shall not release Grantor from any of its
duties or obligations under the contracts and agreements included in the
Collateral, and (c) Secured Party shall not have any obligation or liability
under any contracts and agreements included in the Collateral by reason of this
Agreement, nor shall Secured Party be obligated to perform any of the
obligations or duties of Grantor thereunder or to take any action to collect or
enforce any claim for payment assigned hereunder.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Grantor represents and
warrants as follows:
(a) Ownership of Collateral. Except for Liens permitted under the
Credit Agreement and the security interest created by any Collateral Document,
Grantor owns the Collateral free and clear of any Lien. Except for any
financing statements listed in Schedule III annexed hereto and such financing
statements as may have been filed in favor of Secured Party relating to this
Agreement, no effective financing statement or other instrument similar in
effect covering all or any part of the Collateral is on file in any filing or
recording office as of the date hereof.
(b) Location of Equipment and Inventory. All of the Equipment and
Inventory is, as of the date hereof, located at the places specified in
Schedule II annexed hereto.
(c) Negotiable Documents of Title. No Negotiable Documents of Title
are outstanding as of the date hereof with respect to any of the Inventory
(other than in respect of (i) Inventory with an aggregate value not in excess
of $50,000 or (ii) Inventory which, in the ordinary course of business, is in
transit either (A) from a supplier to Grantor, (B) between the locations
specified in Schedule II hereto, or (C) to customers of Grantor).
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(d) Office Locations; Other Names. The chief place of business, the
chief executive office and the office where Grantor keeps its records regarding
the Accounts and all originals of all chattel paper that evidence Accounts is,
and has been for the four month period preceding the date hereof, located at
the locations identified as such on Schedule II hereto. Grantor has not in the
past done, and does not now do, business under any other name (including any
trade-name or fictitious business name) except as set forth on Schedule II
hereto.
(e) Delivery of Certain Collateral. All notes and other instruments
(excluding checks) comprising any and all items of Collateral have been
delivered to Secured Party duly endorsed and accompanied by duly executed
instruments of transfer or assignment in blank.
(f) Patents, Trademarks and Copyrights. Schedule I hereto includes
all registered trademarks, patents and copyrights owned as of the date hereof
by Grantor in its own name. Each trademark, patent and copyright listed on
Schedule I hereto is valid, subsisting, unexpired, enforceable and has not been
abandoned (except where Grantor has determined that they have immaterial
value). No action or proceeding is pending which, if adversely determined,
could be reasonably expected to have a material adverse effect on the value of
any material trademark, patent or copyright listed on Schedule I.
(g) Governmental Authorizations. No authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for either (i) the grant by Grantor of the security
interest granted hereby, (ii) the execution, delivery or performance of this
Agreement by Grantor, or (iii) the perfection of or the exercise by Secured
Party of its rights and remedies hereunder (except for filings of UCC financing
statements, filings with the United States Patent and Trademark Office, and any
state trademark filing as identified by Grantor to Secured Party, and as may
have been taken by or at the direction of Grantor).
(h) Perfection. This Agreement, together with (i) the filing of
financing statements in the jurisdictions listed in Schedule II hereto, (ii)
the recording of the Company Patent Security Agreement in the United States
Trademark Office ("PTO"), (iii) the recording of the Company Trademark Security
Agreement in the PTO, and (iv) delivery to, and possession by, the Secured
Party, of notes and instruments constituting Collateral, creates a valid,
perfected and, except as may be permitted under the Intercreditor Agreement
with respect to machinery and equipment, first priority security interest in
the Collateral, securing the payment of the Secured Obligations, and all
filings and other actions necessary or desirable to perfect and protect such
security interest have been duly made or taken.
(i) Other Information. All information heretofore, herein or
hereafter supplied to Secured Party by or on behalf of Grantor with respect to
the Collateral is accurate and complete in all respects.
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SECTION 5. FURTHER ASSURANCES.
(a) Grantor agrees that from time to time, at the expense of
Grantor, Grantor will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that Secured Party may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to any Collateral. Without limiting the generality of the foregoing,
Grantor will: (i) ▇▇▇▇ conspicuously each item of chattel paper included in the
Accounts, each Related Contract and, at the request of Secured Party, each of
its records pertaining to the Collateral, with a legend, in form and substance
satisfactory to Secured Party, indicating that such Collateral is subject to
the security interest granted hereby, (ii) if any Account shall be evidenced by
a promissory note or other instrument (excluding checks), deliver and pledge to
Secured Party hereunder such note or instrument, duly endorsed and accompanied
by duly executed instruments of transfer or assignment, all in form and
substance satisfactory to Secured Party, and at the request of Secured Party,
deliver and pledge to Secured Party hereunder all original counterparts of
chattel paper constituting Collateral, duly endorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to Secured Party, (iii) execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as Secured Party may request, in
order to perfect and preserve the security interests granted or purported to be
granted hereby, (iv) promptly after the acquisition by Grantor of any item of
Equipment which is covered by a certificate of title under a statute of any
jurisdiction under the law of which indication of a security interest on such
certificate is required as a condition of perfection thereof, at the request of
Secured Party, execute and file with the registrar of motor vehicles or other
appropriate authority in such jurisdiction an application or other document
requesting the notation or other indication of the security interest created
hereunder on such certificate of title, (v) within 30 days after the end of
each calendar quarter, deliver to Agent copies of all such applications or
other documents filed during such calendar quarter and copies of all such
certificates of title issued during such calendar quarter indicating the
security interest created hereunder in the items of Equipment covered thereby,
(vi) at any reasonable time, upon request by Secured Party, exhibit the
Collateral to and allow inspection of the Collateral by Secured Party, or
persons designated by Secured Party, and (vii) at Secured Party's request,
appear in and defend any action or proceeding that may affect Grantor's title
to or Secured Party's security interest in all or any part of the Collateral.
(b) If Grantor shall obtain rights to any new trademarks or patents,
the provisions of this Agreement shall automatically apply thereto. Grantor
shall promptly notify the Secured Party in writing of any rights to any new
trademark registrations or issued patent registrations acquired by Grantor
after the date hereof and of any applications therefor made after the date
hereof. Concurrently with such acquisition or with the filing of any such
application or registration, Grantor shall
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execute, deliver and record in all places where the Secured Party deems
necessary or desirable to perfect or protect its interest in such Collateral an
appropriate conditional assignment or other agreement or instrument, in form
and substance satisfactory to the Secured Party, pursuant to which Grantor
shall grant a security interest and conditional assignment to the extent of its
interest in such patent or trademark as provided herein to the Secured Party,
unless so doing would, in the reasonable judgment of Grantor, after due
inquiry, result in the grant of a patent or registration of trademark in the
name of the Secured Party, in which event Grantor shall give written notice to
the Secured Party as soon as reasonably practicable and the filing shall
instead by undertaken as soon as practicable but in no case later than
immediately following the grant or the registration of the patent or trademark.
(c) Grantor hereby authorizes Secured Party to file (to the extent
permitted by law) one or more financing or continuation statements, and
amendments thereto, relative to all or any part of the Collateral without the
signature of Grantor. Grantor agrees that a carbon, photographic or other
reproduction of this Agreement or of a financing statement signed by Grantor
shall be sufficient as a financing statement and may be filed as a financing
statement in any and all jurisdictions.
(d) Grantor will furnish to Secured Party from time to time
statements and schedules further identifying and describing the Collateral and
such other reports in connection with the Collateral as Secured Party may
reasonably request, all in reasonable detail.
SECTION 6. CERTAIN COVENANTS OF GRANTOR. Grantor shall:
(a) not use or permit any Collateral to be used unlawfully or in
violation of any provision of this Agreement or any applicable statute,
regulation or ordinance or any policy of insurance covering the Collateral;
(b) notify Secured Party of any change in Grantor's name, identity
or corporate structure within 15 days after such change;
(c) give Secured Party at least 30 days' prior written notice of any
change in Grantor's chief place of business, chief executive office or
residence or the office where Grantor keeps its records regarding the Accounts
and all originals of all chattel paper that evidence Accounts;
(d) if Secured Party gives value to enable Grantor to acquire rights
in or the use of any Collateral, use such value for such purposes;
(e) pay promptly when due all property and other taxes, assessments
and governmental charges or levies imposed upon, and all claims (including
claims for labor, materials and supplies) against, the Collateral, except to
the extent the validity thereof is being contested in good faith; provided that
Grantor shall in any event pay such taxes, assessments, charges, levies or
claims not later than five days prior to the
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date of any proposed sale under any judgement, writ or warrant of attachment
entered or filed against Grantor or any of the Collateral as a result of the
failure to make such payment; and
(f) shall use commercially reasonable efforts not to permit the
inclusion of any prohibitions on assignments, pledges or grants of security
interests in any licenses of Intellectual Property, contracts or agreements
entered into by Grantor after the date hereof.
SECTION 7. SPECIAL COVENANTS WITH RESPECT TO EQUIPMENT AND
INVENTORY. Grantor shall:
(a) keep the Equipment and Inventory at the places therefor
specified on Schedule II annexed hereto or, upon at least 30 days' prior
written notice to Secured Party, at such other places in jurisdictions where
all action that may be necessary or desirable, or that Secured Party may
request, in order to perfect and protect any security interest granted or
purported to be granted hereby, or to enable Secured Party to exercise and
enforce its rights and remedies hereunder, with respect to such Equipment and
Inventory shall have been taken;
(b) cause the Equipment to be maintained and preserved in accordance
with Grantor's past practices in good condition, ordinary wear and tear
excepted, and shall forthwith, or, in the case of any loss or damage to any of
the Equipment (other than obsolete or surplus Equipment) when subsection (c) of
Section 8 is not applicable, as quickly as practicable after the occurrence
thereof, make or cause to be made all repairs, replacements and other
improvements in connection therewith that are necessary or desirable to such
end. Grantor shall promptly furnish to Secured Party a statement respecting any
loss or damage to any of the Equipment that is material;
(c) keep correct and accurate records of the Inventory, itemizing
and describing the kind, type and quantity thereof, Grantor's cost therefor and
(where applicable) the current list prices therefor; and
(d) if any Inventory is in possession or control of any of Grantor's
agents or processors, if the aggregate book value of all such Inventory exceeds
$100,000, and in any event upon the occurrence of an Event of Default, instruct
such agent or processor to hold all such Inventory for the account of Secured
Party an subject to the instructions of Secured Party; and
(e) promptly upon the issuance and delivery to Grantor of any
Negotiable Document of Title (other than any one or more Negotiable Documents
of Title covering (i) Inventory with an aggregate value not in excess of
$100,000 or (ii) Inventory which, in the ordinary course of business, is in
transit either (A) from a supplier to Grantor, (B) between the locations
specified in Schedule II hereto, or (C)
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to customers of Grantor), deliver such Negotiable Document of Title to Secured
Party.
SECTION 8. INSURANCE.
(a) Grantor shall, at its own expense, maintain insurance with
respect to the Equipment and Inventory in accordance with the terms of the
Credit Agreement, in such amounts, against such risks, in such form and with
such insurers as shall be required under the Credit Agreement from time to
time. Grantor shall, if so requested by Secured Party, deliver to Secured Party
original or duplicate policies of such insurance and, as often as Secured Party
may reasonably request, a report of a reputable insurance broker with respect
to such insurance. Further, Grantor shall, at the request of Secured Party,
duly execute and deliver instruments of assignment of such insurance policies
to comply with the requirements of Section 5(a) and cause the respective
insurers to acknowledge notice of such assignment.
(b) Reimbursement under any liability insurance maintained by
Grantor pursuant to this Section 8 may be paid directly to the Person who shall
have incurred liability covered by such insurance. In case of any loss
involving damage to Equipment or Inventory when subsection (c) of this Section
8 is not applicable, Grantor shall make or cause to be made the necessary
repairs to or replacements of such Equipment or Inventory, and any proceeds of
insurance maintained by Grantor pursuant to this Section 8 shall be paid to
Grantor as reimbursement for the costs of such repairs or replacements.
(c) All insurance payments in respect of such Equipment or Inventory
shall be paid to and applied by Secured Party as specified in subsection 6.4 of
the Credit Agreement.
SECTION 9. SPECIAL COVENANTS WITH RESPECT TO ACCOUNTS AND RELATED
CONTRACTS.
(a) Grantor shall keep its chief place of business and chief
executive office and the office where it keeps its records concerning the
Accounts and Related Contracts, and all originals of all chattel paper that
evidence Accounts, at the location therefor specified in Section 4 or, upon at
least 30 days' prior written notice to Secured Party, at such other location in
a jurisdiction where all action that may be necessary or desirable, or that
Secured Party may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby, or to enable
Secured Party to exercise and enforce its rights and remedies hereunder, with
respect to such Accounts and Related Contracts shall have been taken. Grantor
will hold and preserve such records and chattel paper and will permit
representatives of Secured Party at any time during normal business hours to
inspect and make abstracts from such records and chattel paper, and Grantor
agrees to render to Secured Party, at Grantor's cost and expense, such clerical
and other assistance as may be reasonably requested with regard thereto.
Promptly upon the request of
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Secured Party, Grantor shall deliver to Secured Party complete and correct
copies of each Related Contract.
(b) Grantor shall, for not less than three years from the date on
which such Account arose, maintain (i) complete records of each Account,
including records of all payments received, credits granted and merchandise
returned, and (ii) all documentation relating thereto.
(c) Except as otherwise provided in this subsection (c), Grantor
shall continue to collect, at its own expense, all amounts due or to become due
to Grantor under the Accounts and Related Contracts. In connection with such
collections, Grantor may take (and, at Secured Party's direction, shall take)
such action as Grantor or Secured Party may deem necessary or advisable to
enforce collection of amounts due or to become due under the Accounts;
provided, however, that Secured Party shall have the right at any time, upon
the occurrence and during the continuation of an Event of Default or a
Potential Event of Default and upon written notice to Grantor of its intention
to do so, to notify the account debtors or obligors under any Accounts of the
assignment of such Accounts to Secured Party and to direct such account debtors
or obligors to make payment of all amounts due or to become due to Grantor
thereunder directly to Secured Party, to notify each Person maintaining a
lockbox or similar arrangement to which account debtors or obligors under any
Accounts have been directed to make payment to remit all amounts representing
collections on checks and other payment items from time to time sent to or
deposited in such lockbox or other arrangement directly to Secured Party and,
upon such notification and at the expense of Grantor, to enforce collection of
any such Accounts and to adjust, settle or compromise the amount or payment
thereof, in the same manner and to the same extent as Grantor might have done.
After receipt by Grantor of the notice from Secured Party referred to in the
proviso to the preceding sentence, (i) all amounts and proceeds (including
checks and other instruments) received by Grantor in respect of the Accounts
and the Related Contracts shall be received in trust for the benefit of Secured
Party hereunder, shall be segregated from other funds of Grantor and shall be
forthwith paid over or delivered to Secured Party in the same form as so
received (with any necessary endorsement) to be held as cash Collateral and
either (A) be released to Grantor so long as no Event of Default shall have
occurred and be continuing or (B) if any Event of default shall have occurred
and be continuing, be applied as provided by Section 18, and (ii) Grantor shall
not adjust, settle or compromise the amount or payment of any Account, or
release wholly or partly any account debtor or obligor thereof, or allow any
credit or discount thereon.
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SECTION 10. SPECIAL PROVISIONS WITH RESPECT TO THE ASSIGNED
AGREEMENTS.
(a) Grantor shall at its expense:
(i) perform and observe all terms and provisions of the
Assigned Agreements to be performed or observed by it, maintain the
Assigned Agreements in full force and effect, enforce the Assigned
Agreements in accordance with their terms, and take all such action to
such end as may be from time to time reasonably requested by Secured
Party; and
(ii) from time to time (A) furnish to Secured Party such
information and reports regarding the Assigned Agreements as Secured
Party may reasonably request and (B) upon request of Secured Party
make such demands and requests for information and reports or for
action as Grantor is entitled to make under the Assigned Agreements.
(b) Grantor shall not during the continuance of any Event of
Default:
(i) cancel or terminate any of the Assigned Agreements or
consent to or accept any cancellation or termination thereof;
(ii) amend or otherwise modify the Assigned Agreements or give
any consent, waiver or approval thereunder;
(iii) waive any default under or breach of the Assigned
Agreements; or
(iv) take any other action in connection with the Assigned
Agreements that would impair the value of the interest or rights of
Grantor thereunder or that would impair the interest or rights of
Secured Party.
SECTION 11. DEPOSIT ACCOUNTS. Upon the occurrence and during the
continuation of an Event of Default, Secured Party may exercise dominion and
control over, and refuse to permit further withdrawals (whether of money,
securities, instruments or other property) from any deposit accounts maintained
with Secured Party constituting part of the Collateral.
SECTION 12. LICENSE OF PATENTS, TRADEMARKS, COPYRIGHTS, ETC.
Grantor hereby grants to Secured Party, effective upon the occurrence and
during the continuation of any Event of Default, the nonexclusive right and
license to use all trademarks, tradenames, copyrights, patents or technical
processes owned or used by Grantor that relate to the Collateral and any other
collateral granted by Grantor as security for the Secured Obligations, together
with any goodwill associated therewith, all to the extent necessary to enable
Secured Party to use, possess and realize on the Collateral and to enable any
successor or assign to enjoy the benefits of the
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Collateral. This right and license shall inure to the benefit of all
successors, assigns and transferees of Secured Party and its successors,
assigns and transferees, whether by voluntary conveyance, operation of law,
assignment, transfer, foreclosure, deed in lieu of foreclosure or otherwise.
Such right and license is granted free of charge, without requirement that any
monetary payment whatsoever be made to Grantor.
SECTION 13. TRANSFERS AND OTHER LIENS. Grantor shall not:
(a) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Collateral, except as permitted by the Credit Agreement;
or
(b) except for any Liens, if any, permitted under the Credit
Agreement and the security interest created by this Agreement, create or suffer
to exist any Lien upon or with respect to any of the Collateral to secure the
indebtedness or other obligations of any Person.
SECTION 14. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Grantor
hereby irrevocably appoints Secured Party as Grantor's attorney-in-fact, with
full authority in the place and stead of Grantor and in the name of Grantor,
Secured Party or otherwise, from time to time in Secured Party's discretion to
take any action and to execute any instrument that Secured Party may deem
necessary or advisable, consistent with the provisions of the Agreement, to
accomplish the purposes of this Agreement, including without limitation:
(a) to obtain and adjust insurance required to be maintained by
Grantor or paid to Secured Party pursuant to Section 8;
(b) during the continuation of any Event of Default, to ask for,
demand, collect, ▇▇▇ for, recover, compound, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the
Collateral;
(c) to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clauses (a) and (b) above;
(d) during the continuation of any Event of Default, to file any
claims or take any action or institute any proceedings that Secured Party may
deem necessary or desirable for the collection of any of the Collateral or
otherwise to enforce the rights of Secured Party with respect to any of the
Collateral;
(e) to pay or discharge taxes or Liens (other than Liens permitted
under this Agreement or the Credit Agreement) levied or placed upon or
threatened against the Collateral, the legality or validity thereof and the
amounts necessary to discharge the same to be determined by Secured Party in
its sole discretion, any such payments made by Secured Party to become
obligations of Grantor to Secured Party, due and payable immediately without
demand;
12
13
(f) to sign and endorse any invoices, freight or express bills,
bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with Accounts and other
documents relating to the Collateral; and
(g) upon the occurrence and during the continuation of an Event of
Default, generally to sell, transfer, pledge, make any agreement with respect
to or otherwise deal with any of the Collateral as fully and completely as
though Secured Party were the absolute owner thereof for all purposes, and to
do, at Secured Party's option and Grantor's expense, at any time or from time
to time, all acts and things that Secured Party deems necessary to protect,
preserve or realize upon the Collateral and Secured Party's security interest
therein in order to effect the intent of this Agreement, all as fully and
effectively as Grantor might do.
SECTION 15. SECURED PARTY MAY PERFORM. If Grantor fails to perform
any agreement contained herein, Secured Party may itself perform, or cause
performance of, such agreement, and the expenses of Secured Party incurred in
connection therewith shall be payable by Grantor under Section 19.
SECTION 16. STANDARD OF CARE. The powers conferred on Secured
Party hereunder are solely to protect its interest in the Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the
exercise of reasonable care in the custody of any Collateral in its possession
and the accounting for moneys actually received by it hereunder, Secured Party
shall have no duty as to any Collateral or as to the taking of any necessary
steps to preserve rights against prior parties or any other rights pertaining
to any Collateral. Secured Party shall be deemed to have exercised reasonable
care in the custody and preservation of Collateral in its possession if such
Collateral is accorded treatment substantially equal to that which Secured
Party accords its own property.
SECTION 17. REMEDIES. If any Event of Default shall have occurred
and be continuing, Secured Party may exercise in respect of the Collateral, in
addition to all other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default
under the Uniform Commercial Code as in effect in any relevant jurisdiction
(the "Code") (whether or not the Code applies to the affected collateral), and
also may (a) require Grantor to, and Grantor hereby agrees that it will at its
expense and upon request of Secured Party forthwith, assemble all or part of
the Collateral as directed by Secured Party and make it available to Secured
Party at a place to be designated by Secured Party that is reasonably
convenient to both parties, (b) enter onto the property where any Collateral is
located and take possession thereof with or without judicial process, (c) prior
to the disposition of the Collateral, store, process, repair or recondition the
Collateral or otherwise prepare the Collateral for disposition in any manner to
the extent Secured Party deems appropriate, (d) take possession of Grantor's
premises or place custodians in exclusive control thereof, remain on such
premises and use the same and any of Grantor's equipment for the purpose of
completing any work in
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14
process, taking any actions described in the preceding clause (c) and
collecting any Secured Obligation, and (e) without notice except as specified
below, sell the Collateral or any part thereof in one or more parcels at public
or private sale, at any of Secured Party's offices or elsewhere, for cash, on
credit or for future delivery, at such time or times and at such price or
prices and upon such other terms as Secured Party may deem commercially
reasonable. Secured Party or any Lender may be the purchaser of any or all of
the Collateral at any such sale and Secured Party, as agent for and
representative of Lenders (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree
in writing), shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Secured
Obligations as a credit on account of the purchase price for any Collateral
payable by Secured Party at such sale. Each purchaser at any such sale shall
hold the property sold absolutely free from any claim or right on the part of
Grantor, and Grantor hereby waives (to the extent permitted by applicable law)
all rights of redemption, stay and/or appraisal which it now has or may at any
time in the future have under any rule of law or statute now existing or
hereafter enacted. Grantor agrees that, to the extent notice of sale shall be
required by law, at least ten days' notice to Grantor of the time and place of
any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. Secured Party shall not be obligated to
make any sale of Collateral regardless of notice of sale having been given.
Secured Party may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
Grantor hereby waives any claims against Secured Party arising by reason of the
fact that the price at which any Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a public
sale, even if Secured Party accepts the first offer received and does not offer
such Collateral to more than one offeree. If the proceeds of any sale or other
disposition of the Collateral are insufficient to pay all the Secured
Obligations, Grantor shall be liable for the deficiency and the fees of any
attorneys employed by Secured Party to collect such deficiency.
SECTION 18. APPLICATION OF PROCEEDS. Except as expressly provided
elsewhere in this Agreement, all proceeds received by Secured Party in respect
of any sale of, collection from, or other realization upon all or any part of
the Collateral may, in the discretion of Secured Party, be held by Secured
Party as Collateral for, and/or then, or at any other time thereafter, applied
in full or in part by Secured Party against, the Secured Obligations in the
following order of priority:
FIRST: To the payment of all costs and expenses of such sale,
collection or other realization, including reasonable compensation to
Secured Party and its agents and counsel, and all other expenses,
liabilities and advances made or incurred by Secured Party in connection
therewith, and all amounts for which Secured Party is entitled to
indemnification hereunder and all advances made by Secured Party hereunder
for the account of Grantor, and
14
15
to the payment of all costs and expenses paid or incurred by Secured Party
in connection with the exercise of any right or remedy hereunder, all in
accordance with Section 19;
SECOND: To the payment of all other Secured Obligations in
such order as Secured Party shall elect; and
THIRD: To the payment to or upon the order of Grantor, or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, of any surplus then remaining from
proceeds.
SECTION 19. INDEMNITY AND EXPENSES.
(a) Grantor agrees to indemnify Secured Party and each Lender from
and against any and all claims, losses and liabilities in any way relating to,
growing out of or resulting from this Agreement and the transactions
contemplated hereby (including, without limitation, enforcement of this
Agreement), except to the extent such claims, losses or liabilities result from
Secured Party's or such Lender's gross negligence or willful misconduct as
finally determined by a court of competent jurisdiction.
(b) Grantor shall pay to Secured Party upon demand the amount of any
and all costs and expenses, including the reasonable fees and expenses of its
counsel and of any experts and agents, that Secured Party may incur in
connection with (i) the administration of this Agreement, (ii) the custody,
preservation, use or operation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of Secured Party hereunder, or (iv) the failure by Grantor to
perform or observe any of the provisions hereof.
SECTION 20. CONTINUING SECURITY INTEREST, TRANSFER OF LOANS. This
Agreement shall create a continuing security interest in the Collateral and
shall (a) remain in full force and effect until the payment in full of the
Secured Obligations, the cancellation or termination of the Commitments and the
cancellation or expiration of all outstanding Letters of Credit, (b) be binding
upon Grantor, its successors and assigns, and (c) inure, together with the
rights and remedies of Secured Party hereunder, to the benefit of Secured Party
and its permitted successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), but subject to the provisions of
subsection 10.1 of the Credit Agreement, any Lender may assign or otherwise
transfer any Loans held by it to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to
Lenders herein or otherwise. Upon the payment in full of all Secured
Obligations, the cancellation or termination of the Commitments and the
cancellation or expiration of all outstanding Letters of Credit, the security
interest granted hereby shall terminate and all rights to the Collateral shall
revert to Grantor. Upon any such
15
16
termination Secured Party will, at Grantor's expense, execute and deliver to
Grantor such documents as Grantor shall reasonably request to evidence such
termination.
SECTION 21. SECURED PARTY AS AGENT.
(a) Secured Party has been appointed to act as Secured Party
hereunder by Lenders. Secured Party shall be obligated, and shall have the
right hereunder, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action
(including, without limitation, the release or substitution of Collateral),
solely in accordance with this Agreement and the Credit Agreement.
(b) Secured Party shall at all times be the same Person that is
Agent under the Credit Agreement. Written notice of resignation by Agent
pursuant to subsection 9.5 of the Credit Agreement shall also constitute notice
of resignation as Secured Party under this Agreement; removal of Agent pursuant
to subsection 9.5 of the Credit Agreement shall also constitute removal as
secured party under this Agreement; and appointment of a successor Agent
pursuant to subsection 9.5 of the Credit Agreement shall also constitute
appointment of a successor Secured Party under this Agreement. Upon the
acceptance of any appointment as Agent under subsection 9.5 of the Credit
Agreement by a successor Agent, that successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Secured Party under this Agreement, and the retiring or
removed Secured Party under this Agreement shall promptly (i) transfer to such
successor Secured Party all sums, securities and other items of Collateral held
hereunder, together with all records and other documents necessary or
appropriate in connection with the performance of the duties of the successor
Secured Party under this Agreement, and (ii) execute and deliver to such
successor Secured Party such amendments to financing statements, and take such
other actions, as may be necessary or appropriate in connection with the
assignment to such successor Secured Party of the security interests created
hereunder, whereupon such retiring or removed Secured Party shall be discharged
from its duties and obligations under this Agreement. After any retiring or
removed Agent's resignation or removal hereunder as Secured Party, the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted to be taken by it under this Agreement while it was Secured Party
hereunder.
SECTION 22. AMENDMENTS; ETC. No amendment, modification,
termination or waiver of any provision of this Agreement, and no consent to
any departure by Grantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by Secured Party and, in the case of any
such amendment or modification, by Grantor. Any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given.
SECTION 23. NOTICES. Any notice or other communication herein
required or permitted to be given shall be in writing and may be personally
served, telexed or sent by telefacsimile or United States mail or courier
service and shall he
16
17
deemed to have been given when delivered in person or by courier service, upon
receipt of telefacsimile or telex, or four Business Days after depositing it in
the United States mail with postage prepaid and properly addressed. For the
purposes hereof, the address of each party hereto shall be as set forth under
such party's name on the signature pages hereof or, as to either party, such
other address as shall be designated by such party in a written notice
delivered to the other party hereto.
SECTION 24. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES
CUMULATIVE. No failure or delay on the part of Secured Party in the exercise of
any power, right or privilege hereunder shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude any other or further exercise thereof or of any other power,
right or privilege. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
SECTION 25. SEVERABILITY. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 26. HEADINGS. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
SECTION 27. GOVERNING LAW; TERMS. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES, EXCEPT TO THE EXTENT THAT THE CODE PROVIDES THAT THE PERFECTION OF
THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. Unless otherwise defined herein or in the Credit Agreement,
terms used in Articles 8 and 9 of the Uniform Commercial Code in the State of
New York are used herein as therein defined.
SECTION 28. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST GRANTOR ARISING OUT OF OR RELATING TO THIS
AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW
17
18
YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT GRANTOR ACCEPTS FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY,
THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. Grantor hereby agrees that
service of all process in any such proceeding in any such court may be made by
registered or certified mail, return receipt requested, to Grantor at its
address provided in Section 23, such service being hereby acknowledged by
Grantor to be sufficient for personal jurisdiction in any action against
Grantor in any such court and to be otherwise effective and binding service in
every respect. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of Secured Party to
bring proceedings against Grantor in the courts of any other jurisdiction.
SECTION 29. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY LAW,
GRANTOR AND SECURED PARTY HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. The scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including without limitation contract claims, tort
claims, breach of duty claims, and all other common law and statutory claims.
Grantor and Secured Party each acknowledge that this waiver is a material
inducement for Grantor and Secured Party to enter into a business relationship,
that Grantor and Secured Party have already relied on this waiver in entering
into this Agreement and that each will continue to rely on this waiver in their
related future dealings. Grantor and Secured Party further warrant and
represent that each has reviewed this waiver with its legal counsel, and that
each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT. In the event of litigation, this Agreement may be filed as a written
consent to a trial by the court.
SECTION 30. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple separate counterparts
and attached to a single counterpart so that all signature pages are physically
attached to the same document.
[Remainder of page intentionally left blank]
18
19
IN WITNESS WHEREOF, Grantor and Secured Party have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
FWT, INC.
By: [ILLEGIBLE]
----------------------------------
Name:
---------------------------------
Title:
-------------------------------
Notice Address:
FWT, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
BT COMMERCIAL CORPORATION,
as Secured Party
By: /s/ ▇▇▇▇▇▇ SUN
-----------------------------------
Name: ▇▇▇▇▇▇ Sun
---------------------------------
Title: Vice President
---------------------------
Notice Address:
BT Commercial Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Mail Stop # 4032
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Bhartai ▇▇▇▇▇▇
▇-▇
20
SCHEDULE I (to Exhibit 10.21)
TO SECURITY AGREEMENT
SUPPLEMENTAL DESCRIPTIONS OF COLLATERAL
Assigned Agreements:
None
Deposit Accounts:
Account Type Account Account No. Authorized
------- ------------ ----------- ----------
Signers
-------
Fort Worth Tower Company, Inc. Demand 1180161000 ▇.▇. ▇▇▇▇▇
Bank One, Fort Worth Downtown Deposit ▇▇▇▇▇ ▇▇▇▇▇
P.O. Box 2050 ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
FWT, Inc. Payroll Account Demand 1823422868 ▇.▇. ▇▇▇▇▇
Bank One, Fort Worth Downtown Deposit ▇▇▇▇▇ ▇▇▇▇▇
P.O. Box 2050 ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
FWT, Inc. Expansion Account Demand 1823422876 ▇.▇. ▇▇▇▇▇
Bank One, Forth Worth Downtown Deposit ▇▇▇▇▇ ▇▇▇▇▇
P.O. Box 2050 ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
FWT, Inc. Demand ▇▇▇-▇▇▇▇▇▇-▇ ▇.▇. ▇▇▇▇▇
NationsBank of Texas, N.A. Deposit ▇▇▇▇▇ ▇▇▇▇▇
Commercial Banking-Fort Worth ▇▇▇▇ ▇▇▇▇▇
P.O. Box 820040 ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Schedule I-1
21
Trademark & Patent Registration:
(1) Antenna Support For Power Transmission Tower - Patent No. 5,649,402,
issued July 22, 1997. Continuation Patent Application of patent No.
5,649,402 - Serial No. 08/877,717 filed June 23, 1997.
The following reflect the status of the foreign counterparts to United
States Patent No. 5,649,402 issued July 22, 1997:
CANADA
The Canadian counterpart was filed on March 27, 1996, and was assigned
Patent File No. 2,172,743. The application was laid open on March 2, 1997.
The first maintenance fee is due on March 27, 1998. A Request for
Substantive Examination is due by March 27, 2003. The application is
pending.
MALAYSIA
The Malaysian counterpart was filed on August 22, 1996, and was assigned
Application No. PI 9603450. A Request for Substantive Examination is
due by August 22, 1998; however, ▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇, FWT, Inc.'s foreign
associate, has been instructed to file a Request for Modified Substantive
Examination based on the issued United States patent.
PCT INTERNATIONAL
The PCT International Request designating all regions and countries
(except the United States) was filed on August 20, 1996, and was assigned
International Application No. PCT/US96/13733. A Demand for International
Preliminary Examination was filed on March 31, 1997. A favorable
International Preliminary Examination Report was mailed on May 21, 1997.
The deadline for entering the National Phase is March 1, 1998; however,
FWT, Inc. has entered the National Phase early in Brazil and South Korea
(see below).
BRAZIL
The Brazilian National Phase application was filed on August 1, 1997, and
assigned a filing date of August 20, 1996, and Deposit ▇▇. ▇▇▇/▇▇▇▇/▇▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ National Phase application was filed on August 1, 1997,
and was assigned patent Application No. 705250 in 1997. A Request for
Examination is due by August 19, 2001.
(2) POWERMOUNT trademark - Registration No 2,088,202, August 12, 1997.
(3) SMARTROC trademark - Registration No. 1,944,176, December 26, 1995.
Schedule 1-2
22
(4) License Agreement by and among PrimeCo Personal Communications, L.P., a
Delaware limited partnership, Texas Utilities Electric Company, a Texas
corporation, and FWT, Inc.
(5) Palm & Pine Tree Patents as assigned to FWT, Inc. by ▇▇▇ ▇. ▇▇▇▇▇ as of
November 12, 1997.
COMPUTER SOFTWARE LICENSES:
(1) PJF Pole Automated Telecom Monopole Design and Analysis Software ("PJF
Pole") under Software License Agreement between ▇▇▇▇ ▇. ▇▇▇▇ and Company,
an Ohio corporation, and FWT, Inc.
(2) PJF Caisson (monopole foundation design).
Schedule 1-3
23
SCHEDULE II (to Exhibit 10.21)
TO SECURITY AGREEMENT
Tradenames:
None
Location of Inventory & Equipment
(1) FWT, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
(2) FWT, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
(3) FWT, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
(4) United Galvanizing, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
Filing Jurisdictions:
Tarrant County
▇▇▇▇▇▇ County
Schedule II-1
24
SCHEDULE III (to Exhibit 10.21)
TO SECURITY AGREEMENT
EXISTING FINANCIAL STATEMENTS
(1) Financing Statement No. 284140 filed in the Office of the
Secretary of State of Texas on December 31, 1993. To be paid in full and
canceled by delivery of a validly executed UCC-3 Statement of Release at
Closing.
Schedule III-1
