Exhibit 4.7
JOINDER AGREEMENT
This JOINDER AGREEMENT, dated February 10, 2005, is
delivered by IWO HOLDINGS, INC., a Delaware corporation, INDEPENDENT WIRELESS
ONE CORPORATION, a Delaware corporation, and INDEPENDENT WIRELESS ONE LEASED
REALTY CORPORATION, a Delaware corporation (each, a "New Grantor"), pursuant to
the Pledge and Security Agreement, dated as of January 6, 2005 (as it may be
from time to time amended, restated, modified or supplemented, the "Security
Agreement"), among IWO ESCROW COMPANY, the other Grantors named therein, and THE
BANK OF NEW YORK, as the Collateral Trustee. Capitalized terms used herein not
otherwise defined herein shall have the meanings ascribed thereto in the
Security Agreement.
Each New Grantor hereby confirms the grant to the
Collateral Trustee set forth in the Security Agreement of, and does hereby grant
to the Collateral Trustee, a security interest in all of such New Grantor's
right, title and interest in and to all Collateral to secure the Parity Secured
Obligations, in each case whether now or hereafter existing or in which such New
Grantor now has or hereafter acquires an interest and wherever the same may be
located. From and after the date hereof, each New Grantor shall be a "Grantor"
for all purposes of the Security Agreement. Each New Grantor hereby makes all of
the representations and warranties set forth in the Security Agreement. Each New
Grantor represents and warrants that the attached Supplements to Schedules with
respect to such New Grantor accurately and completely set forth as of the date
hereof all additional information required pursuant to the Security Agreement
and hereby agrees that such Supplements to Schedules shall constitute part of
the Schedules to the Security Agreement.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, each New Grantor has caused this
Joinder Agreement to be duly executed and delivered by its duly authorized
officer as of February 10, 2005.
IWO HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
INDEPENDENT WIRELESS ONE CORPORATION
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
INDEPENDENT WIRELESS ONE LEASED REALTY CORPORATION
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
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PLEDGE AND SECURITY AGREEMENT
DATED AS OF JANUARY 6, 2005
BETWEEN
EACH OF
IWO ESCROW COMPANY
THE OTHER GRANTORS PARTY HERETO FROM TIME TO TIME
AND
THE BANK OF NEW YORK,
AS COLLATERAL TRUSTEE
TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS.......................................................................................................1
SECTION 2. GRANT OF SECURITY.................................................................................................9
SECTION 3. SECURITY FOR OBLIGATIONS.........................................................................................11
SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS.....................................................................11
SECTION 5. DIVIDENDS, DISTRIBUTIONS AND VOTING..............................................................................20
SECTION 6. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES...............................................................22
SECTION 7. COLLATERAL TRUSTEE APPOINTED ATTORNEY-IN-FACT, IRREVOCABLE POWER OF ATTORNEY.....................................23
SECTION 8. REMEDIES.........................................................................................................23
SECTION 9. COLLATERAL TRUSTEE...............................................................................................27
SECTION 10. CONTINUING SECURITY INTEREST; TRANSFER OF PARITY SECURED OBLIGATIONS............................................28
SECTION 11. STANDARD OF CARE; COLLATERAL TRUSTEE MAY PERFORM................................................................28
SECTION 12. INDEMNITY AND EXPENSES..........................................................................................28
SECTION 13. MISCELLANEOUS...................................................................................................29
SCHEDULE I - GENERAL INFORMATION
SCHEDULE II - LOCATION OF INVENTORY AND EQUIPMENT
SCHEDULE III - INVESTMENT RELATED PROPERTY
SCHEDULE IV - MATERIAL CONTRACTS
SCHEDULE V - LETTERS OF CREDIT
SCHEDULE VI - INTELLECTUAL PROPERTY
SCHEDULE VII - COMMERCIAL TORT CLAIMS
ANNEX A - PLEDGE SUPPLEMENT
ANNEX B - JOINDER AGREEMENT
This PLEDGE AND SECURITY AGREEMENT, dated as of January 6, 2005 (as
amended or otherwise modified from time to time, this "AGREEMENT"), between each
of IWO ESCROW COMPANY (the "COMPANY," together with any other Person that
executes a Joinder Agreement each, a "GRANTOR" and collectively, the
"GRANTORS"), and THE BANK OF NEW YORK acting in the capacity of Collateral
Trustee for the benefit of the Secured Parties (as defined in the Collateral
Trust Agreement referred to below), together with its successors and assigns (in
such capacity, the "COLLATERAL TRUSTEE").
RECITALS:
WHEREAS, reference is made to that certain Indenture, dated as of the
date hereof (as amended, supplemented, amended and restated or otherwise
modified and in effect from time to time, the "INDENTURE") among the Company,
the other Grantors party thereto from time to time and U.S. Bank National
Association, as trustee (in such capacity and together with its successors in
such capacity, the "TRUSTEE") pursuant to which the Company intends to issue
Senior Secured Floating Rate Notes due 2012 (including any related exchange
notes, the "NOTES") in an aggregate principal amount of $150 million.
WHEREAS, pursuant to the Indenture, the Grantors (other than the
Company) will guarantee payment of the Notes and all other Note Obligations (as
defined in the Collateral Trust Agreement referred to below).
WHEREAS, the Grantors may, from time to time, incur additional future
Parity Lien Debt and any Hedging Obligations related thereto (as defined in the
Collateral Trust Agreement referred to below) in an amount not to exceed $30
million outstanding at any time that will, subject to the terms and conditions
of the Indenture, be secured on a first priority basis.
WHEREAS, the Indenture contemplates that, when issued, the Notes and
all other Note Obligations, will be secured Equally and Ratably (as defined in
the Collateral Trust Agreement) with other future Parity Secured Obligations (as
defined in the Collateral Trust Agreement), by Liens on all present and future
Collateral (as defined herein).
WHEREAS, in order to cause the Liens encumbering the Collateral and
created herein to secure Equally and Ratably, the Note Obligations and all other
future Parity Secured Obligations, the Company and the other Grantors will enter
into a collateral trust arrangement pursuant to the Collateral Trust Agreement,
dated as of the date hereof (as amended or otherwise modified from time to time,
the "COLLATERAL TRUST AGREEMENT"), among the Grantors, the Trustee, the other
Secured Debt Representatives party thereto from time to time and the Collateral
Trustee.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, each Grantor and the Collateral
Trustee agree as follows:
SECTION 1. DEFINITIONS
(A) General Definitions. In this Agreement, the following terms shall
have the following meanings:
"ACCOUNT DEBTOR" shall mean each Person who is obligated on a
Receivable or any Supporting Obligation related thereto.
"ACCOUNTS" shall mean all "accounts" as defined in Article 9 of the
UCC.
"AGREEMENT" shall have the meaning set forth in the preamble.
"AUTHENTICATE" shall mean "authenticate" as defined in Article 9 of
the UCC.
"BANKRUPTCY CODE" shall mean Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute.
"CAPITAL STOCK" means: in the case of a corporation, corporate stock;
in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock; in the case of a partnership or limited liability company, partnership
interests (whether general or limited) or membership interests; and any other
interest or participation that confers on a Person the right to receive the
profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into Capital
Stock, whether not such debt securities include any right of participation with
Capital Stock.
"CASH PROCEEDS" shall mean all proceeds of any Collateral consisting
of cash, checks and other near-cash items.
"CHATTEL PAPER" shall mean all "chattel paper" as defined in Article
9 of the UCC, including, without limitation, "electronic chattel paper" or
"tangible chattel paper", as each term is defined in the UCC.
"CLOSING DATE" shall mean the date of the Indenture.
"COLLATERAL" shall have the meaning set forth in Section 2.1 hereof.
"COLLATERAL TRUST AGREEMENT" shall have the meaning set forth in the
recitals.
"COLLATERAL TRUSTEE" shall have the meaning set forth in the
preamble.
"COLLATERAL RECORDS" shall mean books, records, ledger cards, files,
correspondence, customer lists, blueprints, technical specifications, manuals,
computer software, computer printouts, tapes, disks and other electronic storage
media and related data processing software and similar items 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.
"COLLATERAL SUPPORT" shall mean all property (real or personal)
assigned, hypothecated or otherwise securing any Collateral and shall include
any security agreement or other agreement granting a lien or security interest
in such real or personal property.
"COMMERCIAL TORT CLAIMS" shall mean all "commercial tort claims" as
defined in the UCC, including, without limitation, all commercial tort claims
listed and described with specification on Schedule VII hereto (as such Schedule
may be amended or supplemented from time to time).
"COMMODITIES ACCOUNTS" (i) shall mean all "commodity accounts" as
defined in Article 9 of the UCC and (ii) shall include, without limitation, all
of the accounts listed on Schedule III hereto under the heading "Commodities
Accounts" (as such Schedule may be amended or supplemented from time to time).
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"COPYRIGHT LICENSES" shall mean any and all agreements granting any
right in, to or under Copyrights (whether such Grantor is licensee or licensor
thereunder) including, without limitation, each agreement referred to in
Schedule VI(B) (as such Schedule may be amended or supplemented from time to
time).
"COPYRIGHTS" shall mean all United States and foreign copyrights,
including but not limited to copyrights in software and databases, and all mask
works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether
registered or unregistered, now or hereafter in force throughout the world, all
registrations and applications for any of the foregoing including, without
limitation, the applications referred to in Schedule VI(A) (as such Schedule may
be amended or supplemented from time to time), all rights corresponding thereto
throughout the world, all extensions and renewals of any thereof, the right to
xxx for past, present and future infringements of any of the foregoing, and all
proceeds of the foregoing, including, without limitation, licenses, royalties,
income, payments, claims, damages, and proceeds of suit.
"DEPOSIT ACCOUNTS" (i) shall mean all "deposit accounts" as defined
in Article 9 of the UCC and (ii) shall include, without limitation, all of the
accounts listed on Schedule III hereto under the heading "Deposit Accounts" (as
such Schedule may be amended or supplemented from time to time).
"DOCUMENTS" shall mean all "documents" as defined in Article 9 of the
UCC.
"DOCUMENTS EVIDENCING GOODS" shall mean all Documents evidencing,
representing or issued in connection with Goods.
"EQUIPMENT" shall mean: (i) all "equipment" as defined in the UCC,
(ii) all machinery, manufacturing equipment, data processing equipment,
computers, office equipment, furnishings, furniture, appliances, and tools (in
each case, regardless of whether characterized as equipment under the UCC),
(iii) all Fixtures and (iv) all accessions or additions thereto, all parts
thereof, whether or not at any time of determination incorporated or installed
therein or attached thereto, and all replacements therefor, wherever located,
now or hereafter existing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ESCROW AGREEMENT" means the Escrow and Security Agreement dated
January 3, 2005 by and between the Company and the other parties thereto, as
such agreement may be amended, modified or supplemented from time to time.
"EVENT OF DEFAULT" shall have the meaning assigned in the Indenture
or any other Secured Debt Document (as defined in the Collateral Trust
Agreement).
"EXCLUDED COLLATERAL" shall have the meaning assigned in Section
2(b).
"EXCLUDED ESCROW ACCOUNT" shall mean the securities account number
180121167365, established pursuant to the Escrow Agreement and maintained at
U.S. Bank National Association in the name of the Trustee (as that term is
defined in the Escrow Agreement) subject to the lien granted by the Company in
favor of the Trustee (as that term is defined in Escrow Agreement) for the
benefit of the holders of the Notes and the Company's 10.75% Senior Discount
Notes due 2015.
"FIXTURES" shall mean all "fixtures" as defined in Article 9 of the
UCC.
"GENERAL INTANGIBLES" (i) shall mean all "general intangibles" as
defined in Article 9 of the UCC and (ii) shall include, without limitation, all
interest rate or currency protection or hedging arrangements, all contracts, all
tax refunds and all licenses, permits, concessions and authorizations (in each
case, regardless of whether characterized as general intangibles under the UCC).
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"GOODS" (i) shall mean all "goods" as defined in Article 9 of the UCC
and (ii) shall include, without limitation, all Inventory, Equipment, Documents
Evidencing Goods and Software Embedded In Goods.
"INDEMNITEE" shall mean the Collateral Trustee, and its Affiliates'
officers, partners, directors, trustees, employees, agents.
"INDENTURE" shall have the meaning set forth in the recitals.
"INSTRUMENTS" shall mean all "instruments" as defined in Article 9 of
the UCC.
"INSURANCE" shall mean: (i) all insurance policies covering any or
all of the Collateral (regardless of whether the Collateral Trustee is the loss
payee thereof) and (ii) any key man life insurance policies.
"INTELLECTUAL PROPERTY" shall mean, collectively, the Copyrights, the
Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the
Trademark Licenses, the Trade Secrets, and the Trade Secret Licenses.
"INTELLECTUAL PROPERTY LICENSES" shall mean, collectively, the
Copyright Licenses, Patent Licenses, Trademark Licenses, and Trade Secret
Licenses.
"INVENTORY" shall mean: (i) all "inventory" as defined in the UCC and
(ii) all goods held for sale or lease or to be furnished under contracts of
service or so leased or furnished, 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 used or consumed in such Grantor's business; all goods in which the
Grantor has an interest in mass or a joint or other interest or right of any
kind; and all goods which are returned to or repossessed by the Grantor, and all
accessions thereto and products thereof (in each case, regardless of whether
characterized as inventory under the UCC).
"INVESTMENT ACCOUNTS" shall mean the Securities Accounts, Commodities
Accounts and Deposit Accounts.
"INVESTMENT RELATED PROPERTY" shall mean: (a) all "investment
property" (as such term is defined in Article 9 of the UCC) and (b) all of the
following (regardless of whether classified as investment property under the
UCC): all (i) Pledged Equity Interests, (ii) Pledged Debt, (iii) the Investment
Accounts and (iv) Certificates of Deposit.
"IWO HOLDINGS" shall mean IWO Holdings, Inc., a Delaware corporation.
"JOINDER AGREEMENT" means an agreement in the substantially the form
of Annex B hereto whereby an additional person becomes a Grantor hereunder as
required by the Indenture or any other Secured Debt Document.
"LETTER OF CREDIT RIGHT" shall mean "letter-of-credit right" as
defined in the UCC.
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"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance (other than a license) of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected
under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (i)
the business, operations, properties, assets, condition (financial or otherwise)
of Grantor and its subsidiaries taken as a whole; (ii) the ability of the
Grantor to fully and timely perform its Secured Obligations; (iii) the legality,
validity, binding effect or enforceability against the Grantor of a Secured Debt
Document to which it is a party; or (iv) the rights, remedies and benefits
available to, or conferred upon, any agent and Collateral Trustee under any
Parity Secured Obligation.
"MATERIAL CONTRACT" shall mean any contract or other arrangement to
which any Grantor is a party for which breach, nonperformance, cancellation or
failure to renew could reasonably be expected to have a Material Adverse Effect.
"MONEY" shall mean "money" as defined in the UCC.
"NON-ASSIGNABLE CONTRACT" shall mean any agreement, contract or
license to which any Grantor is a party that by its terms purport to restrict or
prevent the assignment or granting of a security interest therein (either by its
terms or by any federal or state statutory prohibition or otherwise irrespective
of whether such prohibition or restriction is enforceable under Section 9-406
through 9-409 of the UCC).
"PATENT LICENSES" shall mean all agreements granting any right in,
to, or under Patents (whether such Grantor is licensee or licensor thereunder)
including without limitation, each agreement referred to in Schedule VI(D)
hereto (as such Schedule may be amended or supplemented from time to time).
"PATENTS" shall mean all United States and foreign patents
and applications for letters patent, including, but
not limited to, each patent and patent application referred to in Schedule VI(C)
hereto (as such Schedule may be amended or supplemented from time to time), all
reissues, divisions, continuations, continuations-in-part, extensions, renewals,
and reexaminations of any of the foregoing, all rights corresponding thereto
throughout the world, the right to xxx for past, present and future
infringements of any of the foregoing and all proceeds of the foregoing
including, without limitation, royalties, income, payments, claims, damages, and
proceeds of suit.
"PAYMENT INTANGIBLE" shall have the meaning specified in Article 9 of
the UCC.
"PERMITTED LIEN" shall have the meaning assigned to such term in the
Indenture or other Secured Debt Document.
"PERMITTED SALE" shall mean those sales, transfers or assignments
permitted by the Indenture and the other Secured Debt Document.
"PLEDGE SUPPLEMENT" means an agreement is substantially the form of
Annex A hereto.
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"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"PLEDGED DEBT" shall mean all indebtedness for borrowed money owed to
such Grantor, whether or not evidenced by any instrument or promissory note,
including, without limitation, all indebtedness described on Schedule III hereto
under the heading "Pledged Debt" (as such Schedule may be amended or
supplemented from time to time), all monetary obligations owing to any Grantor
from any other Grantor the instruments evidencing any of the foregoing, and all
interest, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the foregoing.
"PLEDGED EQUITY INTERESTS" shall mean all Pledged Stock, Pledged LLC
Interests, Pledged Partnership Interests, Pledged Trust Interests and any other
participation or other interests in any equity or profits of any business
entity; provided, however, that in no case shall such term mean any Capital
Stock of any Subsidiary of IWO Holdings.
"PLEDGED LLC INTERESTS" shall mean all interests in any limited
liability company including, without limitation, all limited liability company
interests listed on Schedule III hereto under the heading "Pledged LLC
Interests" (as such Schedule may be amended or supplemented from time to time)
and the certificates, if any, representing such limited liability company
interests and any interest of such Grantor on the books and records of such
limited liability company or on the books and records of any securities
intermediary pertaining to such interest and all dividends, distributions, cash,
warrants, rights, options, instruments, securities and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such limited liability company
interests and any other warrant, right or option to acquire any of the
foregoing; provided, however, that in no case shall such term mean any Capital
Stock of any Subsidiary of IWO Holdings.
"PLEDGED PARTNERSHIP INTERESTS" shall mean all interests in any
general partnership, limited partnership, limited liability partnership or other
partnership including, without limitation, all partnership interests listed on
Schedule III hereto under the heading "Pledged Partnership Interests" (as such
Schedule may be amended or supplemented from time to time) and the certificates,
if any, representing such partnership interests and any interest of such Grantor
on the books and records of such partnership or on the books and records of any
securities intermediary pertaining to such interest and all dividends,
distributions, cash, warrants, rights, options, instruments, securities and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such partnership
interests and any other warrant, right or option to acquire any of the
foregoing; provided, however, that in no case shall such term mean any Capital
Stock of any Subsidiary of IWO Holdings.
"PLEDGED STOCK" shall mean all shares of capital stock owned by such
Grantor, including, without limitation, all shares of capital stock described on
Schedule III hereto under the heading "Pledged Stock" (as such Schedule may be
amended or supplemented from time to time), and the certificates, if any,
representing such shares and any interest of such Grantor in the entries on the
books of the issuer of such shares or on the books of any securities
intermediary pertaining to such shares, and all dividends, distributions, cash,
warrants, rights, options, instruments, securities and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares and any other warrant,
right or option to acquire any of the foregoing; provided, however, that in no
case shall such term mean any Capital Stock of any Subsidiary of IWO Holdings.
"PLEDGED TRUST INTERESTS" shall mean all interests in a Delaware
business trust or other trust including, without limitation, all trust interests
listed on Schedule III hereto under the heading "Pledged Trust Interests" (as
such Schedule may be amended or supplemented from time to time) and the
certificates, if any, representing such trust interests and any interest of such
Grantor on the books and records of such trust or on the books and records of
any securities intermediary pertaining to such interest and all dividends,
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distributions, cash, warrants, rights, options, instruments, securities and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such trust interests
and any other warrant, right or option to acquire any of the foregoing.
"PROCEEDS" shall mean: (i) all "proceeds" as defined in Article 9 of
the UCC, (ii) payments or distributions made with respect to any Investment
Related Property and (iii) whatever is receivable or received when Collateral or
proceeds are sold, leased, licensed, exchanged, collected or otherwise disposed
of, whether such disposition is voluntary or involuntary.
"RECEIVABLES" shall mean all (i) Accounts, (ii) Chattel Paper, (iii)
Payment Intangibles, (iv) Instruments and (v) to the extent not otherwise
covered above, all other rights to payment, whether or not earned by
performance, for goods or other property sold, leased, licensed, assigned or
otherwise disposed of, or services rendered or to be rendered, regardless of how
classified under the UCC together with all of Grantor's rights, if any, in any
goods or other property giving rise to such right to payment and all Collateral
Support and Supporting Obligations related thereto and all Receivables Records.
"RECEIVABLES RECORDS" shall mean (i) all original copies of all
documents, instruments or other writings or electronic records or other Records
evidencing the Receivables, (ii) all books, correspondence, credit or other
files, Records, ledger sheets or cards, invoices, and other papers relating to
Receivables, including, without limitation, all tapes, cards, computer tapes,
computer discs, computer runs, record keeping systems and other papers and
documents relating to the Receivables, whether in the possession or under the
control of Grantor or any computer bureau or agent from time to time acting for
Grantor or otherwise, (iii) all evidences of the filing of financing statements
and the registration of other instruments in connection therewith, and
amendments, supplements or other modifications thereto, notices to other
creditors or agents thereof, and certificates, acknowledgments, or other
writings, including, without limitation, lien search reports, from filing or
other registration officers, (iv) all credit information, reports and memoranda
relating thereto and (v) all other written or non-written forms of information
related in any way to the foregoing or any Receivable.
"RECORD" shall have the meaning specified in the UCC.
"REGISTERED ORGANIZATION" shall mean an organization organized solely
under the law of a single State or the United States and as to which the State
or the United States must maintain a public record showing the organization to
have been organized.
"REPRESENTATION DATE" shall mean each of (i) the date hereof, (ii)
the date of the Merger, and (iii) each day on which a Parity Lien Debt is
incurred or issued.
"SECURITIES" shall mean any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACCOUNTS" (i) shall mean all "securities accounts" as
defined in Article 8 of the UCC and (ii) shall include, without limitation, all
of the accounts listed on Schedule III hereto under the heading "Securities
Accounts" (as such Schedule may be amended or supplemented from time to time).
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"SOFTWARE EMBEDDED IN GOODS" means, with respect to any Goods, any
computer program embedded in Goods and any supporting information provided in
connection with a transaction relating to the program if (i) the program is
associated with the Goods in such a manner that it customarily is considered
part of the Goods or (ii) by becoming the owner of the Goods a person acquires a
right to use the program in connection with the Goods.
"STATE" shall mean a State of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any territory or
insular possession subject to the jurisdiction of the United States.
"SUBSIDIARY" means, with respect to any specified Person: (1) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency and after giving effect to any voting agreement or
stockholders' agreement that effectively transfers voting power) to vote in the
election of directors, managers or trustees of the corporation, association or
other business entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and (2) any partnership (a) the sole general
partner or the managing general partner of which is such Person or a Subsidiary
of such Person or (b) the only general partners of which are that Person or one
or more Subsidiaries of that Person (or any combination thereof).
"SUPPORTING OBLIGATION" shall mean all "supporting obligations" as
defined in the UCC.
"TRADE SECRET LICENSES" shall mean any and all agreements granting
any right in or to Trade Secrets (whether such Grantor is licensee or licensor
thereunder) including, without limitation, each agreement referred to in
Schedule VI(G) hereto (as such Schedule may be amended or supplemented from time
to time).
"TRADE SECRETS" shall mean all trade secrets and all other
confidential or proprietary information and know-how (all of the foregoing being
collectively called a "Trade Secret"), whether or not reduced to a writing or
other tangible form, including all documents and things embodying,
incorporating, or referring in any way to such Trade Secret, the right to xxx
for past, present and future infringement of any Trade Secret, and all proceeds
of the foregoing, including, without limitation, royalties, income, payments,
claims, damages, and proceeds of suit.
"TRADEMARK LICENSES" shall mean any and all agreements granting any
right in or to Trademarks (whether such Grantor is licensee or licensor
thereunder) including, without limitation, each agreement referred to in
Schedule VI(F) hereto (as such Schedule may be amended or supplemented from time
to time).
"TRADEMARKS" shall mean all United States, state and foreign
trademarks, service marks, certification marks, collective marks, trade names,
internet domain names, trade styles, logos, other source or business
identifiers, designs and general intangibles of a like nature, all registrations
and applications for any of the foregoing including, but not limited to, the
registrations and applications referred to in Schedule VI(E) hereto (as such
Schedule may be amended or supplemented from time to time), the goodwill of the
business symbolized by the foregoing, the right to xxx for past, present and
future infringement or dilution of any of the foregoing or for any injury to
goodwill, and all proceeds of the foregoing, including, without limitation,
royalties, income, payments, claims, damages, and proceeds of suit.
"TRUSTEE" shall have the meaning set forth in the recitals.
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"UCC" shall mean the Uniform Commercial Code as in effect from time
to time in the State of New York.
(B) Definitions; Interpretation. All capitalized terms used herein
(including the preamble and recitals hereto) and not otherwise defined herein
shall have the meanings ascribed thereto in the Collateral Trust Agreement or,
if not defined therein, in the UCC. With respect to terms defined in more than
one article of the UCC, unless otherwise specified such terms shall have the
meaning specified in Article 9 of the UCC. References to "Sections," "Exhibits"
"Annexes" and "Schedules" shall be to Sections, Exhibits, Annexes and Schedules,
as the case may be, of this Agreement (as such Sections, Exhibits, Annexes and
Schedules may be amended or supplemented from time to time in accordance with
the terms of this Agreement), unless otherwise specifically provided. Section
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. Any of the terms defined herein may, unless the
context otherwise requires, be used in the singular or the plural, depending on
the reference. The use herein of the word "include" or "including", when
following any general statement, term or matter, shall not be construed to limit
such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
nonlimiting language (such as "without limitation" or "but not limited to" or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter. If any conflict or
inconsistency exists between this Agreement and the Collateral Trust Agreement,
the Collateral Trust Agreement shall govern. All references herein to provisions
of the UCC shall include all successor provisions under any subsequent version
or amendment to any Article of the UCC.
SECTION 2. GRANT OF SECURITY
(A) Grant of Security. Each Grantor hereby grants to the Collateral
Trustee a security interest and continuing lien on all of such Grantor's right,
title and interest in, to and under all personal property of such Grantor
including, but not limited to the following, in each case whether now owned or
existing or hereafter acquired or arising and wherever located (all of which
being hereinafter collectively referred to as the "Collateral"):
(i) Documents;
(ii) General Intangibles;
(iii) Goods (including, without limitation, Documents
Representing Goods and Software Embedded in Goods);
(iv) Insurance;
(v) Intellectual Property;
(vi) Investment Related Property (including, without
limitation, Deposit Accounts);
(vii) Letter of Credit Rights and letters of credit;
(viii) Money;
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(ix) Receivables and Receivable Records;
(x) Commercial Tort Claims;
(xi) to the extent not otherwise included above, Material
Contracts, motor vehicles, choses in action and all other personal
property of any kind and all Collateral Records, Collateral Support
and Supporting Obligations relating to any of the foregoing; and
(xii) to the extent not otherwise included above, all
Proceeds, products, accessions, rents and profits of or in respect of
any of the foregoing.
(B) Certain Limited Exclusions. Notwithstanding anything herein to
the contrary, in no event shall the security interest granted under Section 2(a)
hereof attach to nor shall "Collateral" include the following (collectively, the
"Excluded Collateral"):
(i) assets securing purchase money obligations or Capital
Lease Obligations permitted to be incurred under the Indenture;
(ii) any lease, license, permit, franchise, power,
authority or right if, to the extent that and for as long as (a) the
grant of a security interest therein constitutes or would result in
the abandonment, invalidation or unenforceability of such lease,
license, permit, franchise, power, authority or right or the
termination of or a default under the instrument or agreement by
which such lease, license, permit, franchise, power, authority or
right is governed and (b) such abandonment, invalidation,
unenforceability, breach, termination or default is not rendered
ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the
Uniform Commercial Code (or any successor provision) of any relevant
jurisdiction or any other applicable law (including the United States
Bankruptcy Code) or principles of equity; provided, however, that (i)
such lease, license, permit, franchise, power, authority or right
will be an Excluded Asset only to the extent and for as long as the
conditions set forth in clauses (a) and (b) of this paragraph are and
remain satisfied, and to the extent such assets otherwise constitute
Collateral, such assets will cease to be Excluded Assets and will
become subject to the first priority security interest of the
Collateral Trustee for the benefit of the holders of senior secured
floating rate notes and holders of other Parity Secured Obligations
(as defined in the Collateral Trust Agreement), immediately and
automatically at such time as such conditions cease to exist,
including by reason of any waiver or consent under the applicable
instrument or agreement, and (ii) the proceeds of any sale, lease or
other disposition of any such lease, license, permit, franchise,
power, authority or right that is or becomes an Excluded Asset shall
not be an Excluded Asset and shall at all times be and remain subject
to the first priority security interest of the Collateral Trustee for
the benefit of the holders of senior secured floating rate notes and
holders of other Parity Secured Obligations;
(iii) Capital Stock of any Subsidiary of the Company;
(iv) the Excluded Escrow Account; and
(v) all non-material real property fee interests and all
real property leasehold interests.
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SECTION 3. SECURITY FOR OBLIGATIONS.
(A) Security for Obligations. This Agreement secures, and the
Collateral is collateral security for, the prompt and complete 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. ss.362(a) (and any
successor provision thereof)), of all Parity Secured Obligations.
(B) Continuing Liability under Collateral. Notwithstanding anything
herein to the contrary, (i) each Grantor shall remain liable for all obligations
under the Collateral and nothing contained herein is intended or shall be a
delegation of duties to the Collateral Trustee or any Secured Party and (ii)
each Grantor shall remain liable under each of the agreements included in the
Collateral, including, without limitation, any agreements relating to Pledged
Partnership Interests or Pledged LLC Interests, to perform all of the
obligations undertaken by it thereunder all in accordance with and pursuant to
the terms and provisions thereof and neither the Collateral Trustee nor any
Secured Party shall have any obligation or liability under any of such
agreements by reason of or arising out of this Agreement or any other document
related thereto nor shall the Collateral Trustee nor any Secured Party have any
obligation to make any inquiry as to the nature or sufficiency of any payment
received by it or have any obligation to take any action to collect or enforce
any rights under any agreement included in the Collateral, including, without
limitation, any agreements relating to Pledged Partnership Interests or Pledged
LLC Interests, (iii) the exercise by the Collateral Trustee of any of its rights
hereunder shall not release the Grant or from any of its duties or obligations
under the contracts and agreements included in the Collateral.
SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS.
(A) Generally.
(i) Representations and Warranties. Each Grantor hereby
represents and warrants, on each Representation Date, that:
(1) it owns the Collateral purported to be
owned by it or otherwise has the rights it purports to
have in each item of Collateral and, as to all Collateral
whether now existing or hereafter acquired, will, except
as permitted under the Indenture or any Sharing Eligible
Debt Document, continue to own or have such rights in each
item of the Collateral not otherwise released or sold in
accordance with the Secured Debt Documents, in each case
free and clear of any and all Liens, rights or claims of
all other Persons other than Permitted Liens, including,
without limitation, liens arising as a result of such
Grantor becoming bound (as a result of merger or
otherwise) as debtor under a security agreement entered
into by another Person;
(2) such Grantor has been duly organized as the
type of entity listed on Schedule I(A) hereof opposite its
name under the laws of the jurisdiction listed on Schedule
I(A) hereof opposite its name and remains duly existing as
such. Such Grantor has not filed any certificates of
domestication, transfer or continuance in any other
jurisdiction.
(3) the execution and delivery of this
Agreement by such Grantor and the performance by it of its
obligations under this Agreement are within its corporate
or other powers and have been duly authorized by all
necessary corporate or other action;
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(4) (A) upon the filing of UCC financing
statements naming each Grantor as debtor and the
Collateral Trustee as secured party and describing the
Collateral in the filing offices set forth opposite such
Grantor's name on Schedule I(E) hereof (as such Schedule
may be amended or supplemented from time to time) and
other filings delivered by each Grantor, (B) upon
sufficient identification of Commercial Tort Claims, the
security interests granted to the Collateral Trustee
hereunder constitute valid and perfected first priority
Liens (subject in the case of priority only to Permitted
Liens) on Collateral that can be perfected by the filling
of UCC financing statements;
(5) other than the financing statements filed
in favor of the Collateral Trustee, no effective UCC
financing statement, fixture filing or other instrument
similar in effect under any applicable law covering all or
any part of the Collateral is on file in any filing or
recording office except for (x) financing statements for
which proper termination statements have been delivered to
the Collateral Trustee for filing and (y) financing
statements filed in connection with Permitted Liens;
(6) 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 pledge or grant by the Grantor of the Liens purported
to be created in favor of the Collateral Trustee hereunder
or (ii) the exercise by Collateral Trustee of any rights
or remedies in respect of any Collateral (whether
specifically granted or created hereunder or created or
provided for by applicable law), except (A) for the
filings contemplated by clause (4) above and (B) as may be
required, in connection with the disposition of any
Investment Related Property, by laws generally affecting
the offering and sale of Securities and as may be required
under federal and foreign laws pertaining to Intellectual
Property;
(7) all actions and consents, including all
filings, notices, registrations and recordings necessary
or desirable for the exercise by the Collateral Trustee of
the voting or other rights provided for in this Agreement
or the exercise of remedies in respect of the Collateral
have been made or obtained;
(8) it has indicated on Schedule I(A) hereto
(as such Schedule may be amended or supplemented from time
to time): (w) the type of organization of such Grantor,
(x) the jurisdiction of organization of such Grantor, (y)
its organizational identification number, if any, and (z)
the jurisdiction where the chief executive office or its
sole place of business is (or if such Grantor is a natural
person principal residence and principal place of
business), and for the one-year period preceding the date
hereof has been, located;
(9) the full legal name of such Grantor is as
set forth on Schedule I(A); and
(10) all information supplied by each Grantor
with respect to any of the Collateral (in each case taken
as a whole with respect to any particular Collateral) is
accurate and complete in all material respects.
(ii) Covenants and Agreements. The Grantor hereby
covenants and agrees that:
(1) except for the security interest created by
this Agreement, it shall not create or suffer to exist any
Lien upon or with respect to any of the Collateral, except
Permitted Liens, and such Grantor shall defend the
Collateral against all Persons at any time claiming any
interest therein;
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(2) it shall not produce, use or permit any
Collateral to be used unlawfully or in material violation
of any provision of this Agreement or any applicable
statute, regulation or ordinance or any policy of
insurance covering the Collateral;
(3) without limiting any prohibitions or
restrictions on mergers in the Indenture, it shall not
change such Grantor's name, identity, corporate structure
(e.g. by merger, consolidation, change in corporate form
or otherwise), sole place of business (or principal
residence if such Grantor is a natural person), chief
executive office, type of organization or jurisdiction of
organization unless it shall have (a) notified the
Collateral Trustee in writing at least thirty (30) days
prior to any such change or establishment, identifying
such new proposed name, identity, corporate structure,
sole place of business (or principal residence if such
Grantor is a natural person), chief executive office,
jurisdiction of organization or trade name and providing
such other information in connection therewith as the
Collateral Trustee may reasonably request and (b) taken
all actions necessary or advisable to maintain the
continuous validity, perfection and the same or better
priority of the Collateral Trustee's security interest in
the Collateral granted or intended to be granted and
agreed to hereby, which in the case of any merger or other
change in corporate structure shall include, without
limitation, executing and delivering to the Collateral
Trustee a completed Pledge Supplement, substantially in
the form of Annex A attached hereto, upon completion of
such merger or other change in corporate structure
confirming the grant of the security interest hereunder;
(4) it shall 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, such Grantor shall in
any event pay such taxes, assessments, charges, levies or
claims not later than five (5) days prior to the date of
any proposed sale under any judgment, writ or warrant of
attachment entered or filed against such Grantor or any of
the Collateral as a result of the failure to make such
payment;
(5) upon such Grantor or any officer of such
Grantor obtaining knowledge thereof, it shall promptly
notify the Collateral Trustee in writing of any event that
may materially and adversely affect the value of the
Collateral or any portion thereof, the ability of the
Grantor or the Collateral Trustee to dispose of the
Collateral or any portion thereof, or the rights and
remedies of the Collateral Trustee in relation thereto,
including, without limitation, the levy of any legal
process against the Collateral or any portion thereof;
(6) it shall not take or permit any action
which could impair the Collateral Trustee's rights in the
Collateral; and
(7) it shall not sell, transfer or assign (by
operation of law or otherwise) any Collateral except for
Permitted Sales.
(B) Equipment and Inventory.
(i) Representations and Warranties. The Grantor represents
and warrants, on each Representation Date, that:
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(1) any Inventory now or hereafter produced by
the Grantor included in the Collateral have been and will
be produced in compliance with the requirements of the
Fair Labor Standards Act, as amended, and the rules and
regulations thereunder; and
(2) none of the Inventory or Equipment is in
the possession of an issuer of a negotiable document (as
defined in Section 7-104 of the UCC) therefor not
delivered to the Collateral Trustee; and
(ii) Covenants and Agreements. The Grantor covenants and
agrees that:
(1) it shall keep correct and accurate records
of the Inventory, as is customarily maintained under
similar circumstances by Persons of established reputation
engaged in similar business, and in any event in
conformity with generally accepted accounting principles;
(2) it shall not deliver any Document
Evidencing any Goods to any Person other than the issuer
of such Document to claim the Goods evidenced therefor or
the Collateral Trustee; and
(3) if any Equipment or Inventory is in
possession or control of any third party, including,
without limitation, any warehouseman, bailee or agent, the
Grantor shall initiate and join with the Collateral
Trustee in notifying the third party of the Collateral
Trustee's security interest and using its commercially
reasonable efforts to obtain an Authenticated
acknowledgment from such third party that it is holding
the Equipment and Inventory for the benefit of the
Collateral Trustee.
(C) Receivables.
(i) Covenants and Agreements: The Grantor hereby covenants
and agrees that:
(1) it shall keep and maintain at its own cost
and expense satisfactory and complete records of the
Receivables, including, but not limited to, the originals
of all documentation with respect to all Receivables and
records of all payments received and all credits granted
on the Receivables, all merchandise returned and all other
dealings therewith;
(2) it shall perform in all material respects
all of its obligations with respect to the Receivables;
(3) it shall not amend, modify, terminate or
waive any provision of any Receivable in any manner which
could reasonably be expected to have a Material Adverse
Effect; and
(4) notwithstanding the foregoing, the
Collateral Trustee shall have the right at any time during
the continuance of an Event of Default to notify, or
require the Grantor to notify, any Account Debtor of the
Collateral Trustee's security interest in the Receivables
and any Supporting Obligation and, in addition, at any
time following the occurrence and during the continuation
of an Event of Default, the Collateral Trustee may: (1)
direct the Account Debtors under any Receivables to make
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payment of all amounts due or to become due to such
Grantor thereunder directly to the Collateral Trustee; (2)
notify, or require the Grantor to notify, each Person
maintaining a lockbox or similar arrangement to which
Account Debtors under any Receivables 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 the Collateral Trustee; and (3)
enforce, at the expense of such Grantor, collection of any
such Receivables and to adjust, settle or compromise the
amount or payment thereof, in the same manner and to the
same extent as such Grantor might have done. If the
Collateral Trustee notifies the Grantor that it has
elected to collect the Receivables in accordance with the
preceding sentence, any payments of Receivables received
by such Grantor shall be forthwith (and in any event
within two (2) Business Days) deposited by such Grantor in
the exact form received, duly indorsed by such Grantor to
the Collateral Trustee if required, in an account
maintained under the sole dominion and control of the
Collateral Trustee, and until so turned over, all amounts
and proceeds (including checks and other instruments)
received by such Grantor in respect of the Receivables,
any Supporting Obligation or Collateral Support shall be
received in trust for the benefit of the Collateral
Trustee hereunder and shall be segregated from other funds
of such Grantor and such Grantor shall not adjust, settle
or compromise the amount or payment of any Receivable, or
release wholly or partly any Account Debtor or obligor
thereof, or allow any credit or discount thereon.
(D) PLEDGED EQUITY INTERESTS AND PLEDGED DEBT
(i) Representations and Warranties. The Grantor hereby
represents and warrants, on each Representation Date, that:
(1) Schedule III hereto sets forth under the
headings "Pledged Stock," "Pledged LLC Interests,"
"Pledged Partnership Interests," and "Pledged Trust
Interests," respectively, all of the Pledged Stock,
Pledged LLC Interests, Pledged Partnership Interests and
Pledged Trust Interests owned by the Grantor as of the
date hereof and such Pledged Equity Interests constitute
the percentage of issued and outstanding shares of stock,
percentage of membership interests, percentage of
partnership interests or percentage of beneficial interest
of the respective issuers thereof indicated on such
Schedule;
(2) it is the record and beneficial owner of
the Pledged Equity Interests free of all Liens, rights or
claims of other Persons other than Permitted Liens and
except as set forth on Schedule III(C), there are no
outstanding warrants, options or other rights to purchase,
or shareholder, voting trust or similar agreements
outstanding with respect to, or property that is
convertible into, or that requires the issuance or sale
of, any Pledged Equity Interests;
(3) except for any consents that have been
obtained and remain in full force and effect, no consent
of any Person including any other general or limited
partner, any other member of a limited liability company,
any other shareholder or any other trust beneficiary is
necessary or desirable in connection with the creation,
perfection or first priority status of the security
interest of the Collateral Trustee in any Pledged Equity
Interests or the exercise by the Collateral Trustee of the
voting or other rights provided for in this Agreement or
the exercise of remedies in respect thereof;
(4) except as set forth on Schedule III(D),
none of the Pledged LLC Interests nor Pledged Partnership
Interests that are issued by a Subsidiary of any Grantor
are or represent interests in issuers that are: (a)
registered as investment companies, (b) are dealt in or
traded on securities exchanges or markets or (c) have
opted to be treated as securities under the uniform
commercial code of any jurisdiction.
15
(5) Schedule III hereto sets forth under the
heading "Pledged Debt" all of the Pledged Debt owned by
the Grantor as of the date hereof and all of such Pledged
Debt has been duly authorized, authenticated or issued,
and delivered and is the legal, valid and binding
obligation of the issuers thereof and is not in default
and constitutes all of the issued and outstanding
inter-company indebtedness evidenced by an instrument or
certificated security of the respective issuers thereof
owing to such Grantor;
(ii) Covenants and Agreements. The Grantor hereby
covenants and agrees that:
(1) unless otherwise in accordance with the
Secured Debt Documents, without the prior written consent
of the Collateral Trustee, it shall not vote to enable or
take any other action to: (a) amend or terminate any
partnership agreement, limited liability company
agreement, certificate of incorporation, by-laws or other
organizational documents in any way that materially
changes the rights of such Grantor with respect to any
Investment Related Property or adversely affects the
validity, perfection or priority of the Collateral
Trustee's security interest and (b) other than as
permitted under the Indenture, permit any issuer of any
Pledged Equity Interest to dispose of all or a material
portion of their assets;
(2) it shall comply with all of its obligations
under any partnership agreement or limited liability
company agreement relating to Pledged Partnership
Interests or Pledged LLC Interests and shall enforce all
of its rights with respect to any Investment Related
Property;
(3) unless otherwise in accordance with the
Secured Debt Documents, without the prior written consent
of the Collateral Trustee, it shall not permit any issuer
of any Pledged Equity Interest to merge or consolidate
unless (i) such issuer creates a security interest that is
perfected by a filed financing statement (that is not
effective solely under Section 9-508 of the UCC) in
collateral in which such new debtor has or acquires
rights, and (ii) all the outstanding capital stock or
other equity interests of the surviving or resulting
corporation, limited liability company, partnership or
other entity is, upon such merger or consolidation,
pledged hereunder and no cash, securities or other
property is distributed in respect of the outstanding
equity interests of any other constituent Grantors;
provided that if the surviving or resulting Grantors upon
any such merger or consolidation involving an issuer which
is a controlled foreign corporation (as defined in the
U.S. Internal Revenue Code of 1986, as amended), then such
Grantor shall only be required to pledge equity interests
in accordance with Section 2.2; and
(4) each Grantor consents to the grant by each
other Grantor of a security interest in all Investment
Related Property to the Collateral Trustee and, without
limiting the foregoing, consents to the transfer of any
Pledged Partnership Interest and any Pledged LLC Interest
to the Collateral Trustee or its designee following an
Event of Default and to the substitution of the Collateral
Trustee or its designee as a partner in any partnership or
as a member in any limited liability company with all the
rights and powers related thereto.
(5) it shall notify the Collateral Trustee of
any default under any Pledged Debt that has caused, either
in any case or in the aggregate, a Material Adverse
Effect.
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(6) in the event it acquires rights in any
Pledged Equity Interest or Pledged Debt after the date
hereof, it shall deliver to the Collateral Trustee a
completed Pledge Supplement, substantially in the form of
Annex A attached hereto, together with all Supplements to
Schedules thereto, reflecting such new Pledged Equity
Interest or Pledged Debt and all other Pledged Equity
Interest or Pledged Debt. Notwithstanding the foregoing,
it is understood and agreed that the security interest of
the Collateral Trustee shall attach to all Pledged Equity
Interest or Pledged Debt immediately upon any Grantor's
acquisition of rights therein and shall not be affected by
the failure of any Grantor to deliver a supplement to
Schedule III as required hereby.
(E) INVESTMENT ACCOUNTS
(i) Representations and Warranties. Each Grantor hereby
represents and warrants, on each Representation Date, that:
(1) Schedule III hereto sets forth under the
headings "Securities Accounts" and "Commodities Accounts,"
respectively, all of the Securities Accounts and
Commodities Accounts in which each Grantor has an interest
as of the date hereof. Each Grantor is the sole
entitlement holder of each such Securities Account and
Commodities Account, and such Grantor has not consented
to, and is not otherwise aware of, any Person (other than
the Collateral Trustee pursuant hereto) having "control"
(within the meanings of Sections 8-106 and 9-106 of the
UCC) over, or any other interest in, any such Securities
Account or Commodity Account or any securities or other
property credited thereto;
(2) Schedule III hereto sets forth under the
heading "Deposit Accounts" all of the Deposit Accounts in
which each Grantor has an interest as of the date hereof
and each Grantor is the sole account holder of each such
Deposit Account and, other than as set forth on Schedule
III hereto under the heading "Deposit Accounts," such
Grantor has not consented to, and is not otherwise aware
of, any Person (other than the Collateral Trustee pursuant
hereto) having either sole dominion and control (within
the meaning of common law) or "control" (within the
meaning of Section 9-104 of the UCC) over, or any other
interest in, any such Deposit Account or any money or
other property deposited therein; and
(ii) Covenants & Agreements. in the event it acquires
rights in any Securities Accounts, Securities Entitlements, Deposit
Accounts or Commodity Accounts after the date hereof, it shall
deliver to the Collateral Trustee a completed Pledge Supplement,
substantially in the form of Annex A attached hereto, together with
all Supplements to Schedules thereto, reflecting such new Securities
Accounts, Securities Entitlements, Deposit Accounts or Commodity
Accounts and all other Securities Accounts, Securities Entitlements,
Deposit Accounts or Commodity Accounts. Notwithstanding the
foregoing, it is understood and agreed that the security interest of
the Collateral Trustee shall attach to all Securities Accounts,
Securities Entitlements, Deposit Accounts or Commodity Accounts
immediately upon any Grantor's acquisition of rights therein and
shall not be affected by the failure of any Grantor to deliver a
supplement to Schedule III as required hereby.
(F) Letter of Credit Rights.
(i) Representations and Warranties. Each Grantor hereby
represents and warrants, on each Representation Date, that all
material letters of credit to which such Grantor has rights as of the
date hereof is listed on Schedule V hereto.
(ii) Covenants and Agreements. Each Grantor hereby
covenants and agrees that with respect to any letter of credit in
excess of $100,000 individually or $1,000,000 in the aggregate
hereafter arising it shall deliver to the Collateral Trustee a
completed Pledge Supplement, substantially in the form of Annex A
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attached hereto, together with all Supplements to Schedules thereto.
Notwithstanding the foregoing, it is understood and agreed that the
security interest of the Collateral Trustee shall attach to all
letters of credit immediately upon any Grantor's acquisition of
rights therein and shall not be affected by the failure of any
Grantor to deliver a supplement to Schedule V as required hereby.
(G) Intellectual Property.
(i) Representations and Warranties. Except as disclosed in
Schedule VI(H) (as such Schedule may be amended or supplemented from
time to time), each Grantor hereby represents and warrants, on each
Representation Date, that:
(1) Schedule VI sets forth a true and complete
list of (i) all United States registrations of and
applications for Patents, Trademarks, and Copyrights owned
by each Grantor and (ii) all material Patent Licenses,
Trademark Licenses and Copyright Licenses, granting rights
in any Patents, Trademarks or Copyrights owned by Grantor
as of the date hereof;
(2) all registrations and applications for
Copyrights, Patents and Trademarks owned by a Grantor are
standing in the name of each Grantor;
(3) it is the sole and exclusive owner of the
entire right, title, and interest in and to, or otherwise
has a right to use, all Intellectual Property on Schedule
VI and owns or has the valid right to use all other
Intellectual Property used in or necessary to conduct its
business, free and clear of all Liens, claims,
encumbrances and material licenses, except for Permitted
Liens and the Intellectual Property Licenses set forth on
Schedule VI(B), (D), (F) and (G);
(4) all Intellectual Property owned by Grantor
that is material to such Grantor's business: (i) is
subsisting, (ii) to the best of the Grantor's knowledge is
valid and enforceable, (iii) has not been adjudged invalid
or unenforceable, in whole or in part in any proceeding to
which such Grantor was a party, and (iv) each Grantor has
performed all acts and has paid all renewal, maintenance,
and other fees and taxes required to maintain each and
every registration and application of Intellectual
Property that such Grantor owns in full force and effect;
(5) no action or proceeding before any court or
administrative authority in pending or, to the best of
Grantor's knowledge, threatened against Grantor
challenging such Grantor's right to register, the validity
of, or such Grantor's rights to own, use, or license any
Intellectual Property that is material to such Grantor's
business;
(6) no claim is pending, or to the best of such
Grantor's knowledge, threatened, that the conduct of such
Grantor's business or the use of any Intellectual Property
owned or used by Grantor violates the asserted rights of
any third party;
(7) to the best of each Grantor's knowledge, no
third party is infringing upon any Intellectual Property
owned or used by such Grantor;
(8) there is no effective financing statement
or other document or instrument now executed, or on file
or recorded in any public office, granting a security
interest in or otherwise encumbering any part of the
Intellectual Property owned by such Grantor, other than in
favor of the Collateral Trustee.
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(ii) Covenants and Agreements. each Grantor hereby
covenants and agrees as follows:
(1) except for Intellectual Property that is
not in use and has negligible value, Grantor shall not do
any act or omit to do any act whereby any of the
Intellectual Property that is material to the business of
such Grantor may lapse, or become abandoned, dedicated to
the public, or unenforceable, or which would adversely
affect the validity, grant, or enforceability of the
security interest granted therein;
(2) it shall promptly notify the Secured Debt
Representatives if it knows or has reason to know that any
item of the Intellectual Property that is material to the
business of such Grantor may become (a) abandoned or
dedicated to the public or placed in the public domain,
(b) invalid or unenforceable, or (c) subject to any
adverse determination or development (including the
institution of proceedings) in any action or proceeding in
the United States Patent and Trademark Office, the United
States Copyright Office, any foreign counterpart of the
foregoing, or any court arbitral tribunal or regulatory
agency;
(3) it shall take all reasonable steps in the
United States Patent and Trademark Office, the United
States Copyright Office, or any foreign counterpart of the
foregoing, to pursue any application and maintain any
registration of each Trademark, Patent, and Copyright
owned by any Grantor and which is now or shall become
included in the Intellectual Property and which is
material to the business of such Grantor including, but
not limited to, those items on Schedule VI(A), (C) and (E)
(as each may be amended or supplemented from time to time)
except for those pertaining to Intellectual Property that
is not material to the Business of such Grantor;
(4) in the event that any Intellectual Property
owned by or exclusively licensed to any Grantor that is
material to such Grantor's business is infringed,
misappropriated, or diluted by a third party, such Grantor
shall, to the extent such Grantor considers action
advisable under the circumstances, take reasonable actions
to protect its exclusive rights in such Intellectual
Property including, but not limited to, the initiation of
a suit for injunctive relief and to recover damages;
(5) it shall maintain the level of the quality
of products sold and services rendered under any Trademark
that is material to such Grantor's business at a level at
least substantially consistent with the quality of such
products and services as of the date hereof, and each
Grantor shall require that licensees of such Trademarks
use such standards of quality;
(6) it shall take all steps reasonably
necessary to protect the secrecy of all material Trade
Secrets, including, without limitation, entering into
confidentiality agreements with third parties with access
to Trade Secrets and restricting access to material secret
information and documents;
(7) it shall promptly (but in no event more
than thirty (30) days after Grantor's knowledge thereof)
report to the Secured Debt Representatives (i) the filing
of any application by such Grantor to register any
Intellectual Property whether it owns in whole or in part
or to the best of its knowledge which it is exclusively
licensing from a third party with the United States Patent
and Trademark Office, the United States Copyright Office,
(whether such application is filed by such Grantor or
through any agent, employee or designee thereof), (ii) the
registration of any Intellectual Property by any such
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office, or (iii) the acquisition by Grantor of any
application or registration and, in each case, subject to
Section 2(b) hereof, shall execute and deliver to the
Collateral Trustee a completed Pledge Supplement,
substantially in the form of Annex A attached hereto,
together with all Supplements to Schedules thereto or
signed counterpart of a Trademark Security Agreement,
Patent Security Agreement, or Copyright Security Agreement
substantially in the form of Annexes B, C, and D, as
applicable together with all supplements to the schedules
thereto;
(8) except as permitted under the Secured Debt
Documents, each Grantor shall not execute or file in any
public office, any financing statement or other document
or instruments, except financing statements or other
documents or instruments filed or to be filed in favor of
the Collateral Trustee and each Grantor shall not sell,
assign, transfer, grant any option to purchase, or create
or suffer to exist any Lien upon or with respect to the
Intellectual Property, except for the Lien created by and
under this Security Agreement and any Secured Debt
Document and except for Permitted Sales;
(9) it shall continue to collect, at its own
expense, all amounts due or to become due to such Grantor
in respect of any Intellectual Property. Upon the
occurrence and continuance of an Event of Default, in
connection with such collections, each Grantor may take
(and, at the Collateral Trustee's reasonable direction,
shall take) such action as such Grantor or the Collateral
Trustee may deem reasonably necessary or advisable to
enforce collection of such amounts. Notwithstanding the
foregoing, the Collateral Trustee shall have the right at
any time, to notify, or require any Grantor to notify, any
obligors with respect to any such amounts of the existence
of the security interest created hereby.
(H) Commercial Tort Claims
(i) Representations and Warranties. each Grantor hereby
represents and warrants, on each Representation Date, that Schedule
VII sets forth all Commercial Tort Claims of each Grantor as of the
date hereof in excess of $100,000 individually or $1,000,000 in the
aggregate; and
(ii) Covenants and Agreements. each Grantor hereby
covenants and agrees that with respect to any Commercial Tort Claim
in excess of $100,000 individually or $1,000,000 in the aggregate
hereafter arising it shall deliver to the Collateral Trustee a
completed Pledge Supplement, substantially in the form of Annex A
attached hereto, together with all Supplements to Schedules thereto,
identifying such new Commercial Tort Claims.
SECTION 5. DIVIDENDS, DISTRIBUTIONS AND VOTING.
(A) Dividends and Distributions. Except as provided in the next sentence, in the
event any Grantor receives (x) any dividends, interest or distributions on any
Investment Related Property, or (y) any securities or other property upon the
merger, consolidation, liquidation or dissolution of any issuer of any
Investment Related Property, then (1) such dividends, interest or distributions
and securities or other property shall be included in the definition of
Collateral without further action and (2) such Grantor shall immediately take
all steps, if any, necessary or advisable to ensure the validity, perfection and
priority of the Collateral Trustee over such dividends, distributions, interest,
securities or other property and pending any such action such Grantor shall be
deemed to hold such dividends, distributions, interest, securities or other
property in trust for the benefit of the Collateral Trustee and shall be
segregated from all other property of such Grantor. Notwithstanding the
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foregoing, so long as no Event of Default shall have occurred and be continuing,
the Collateral Trustee authorizes each Grantor to retain all ordinary cash
dividends and distributions paid in the normal course of the business of the
issuer and consistent with the past practice of the issuer and all scheduled
payments of interest;
(B) Voting.
(i) So long as no Event of Default shall have occurred and
be continuing:
(1) except as otherwise provided under the
covenants and agreements relating to Investment Related
Property in this Agreement or elsewhere herein or in the
Secured Debt Documents, each Grantor shall be entitled to
exercise or refrain from exercising any and all voting and
other consensual rights pertaining to the Investment
Related Property or any part thereof for any purpose not
inconsistent with the terms of this Agreement or the
Secured Debt Documents; provided, no Grantor shall
exercise or refrain from exercising any such right if the
Collateral Trustee shall have notified such Grantor that,
in the Collateral Trustee's reasonable judgment, such
action would have a Material Adverse Effect it being
understood, however, that neither the voting by such
Grantor of any Pledged Stock for, or such Grantor's
consent to, the election of directors (or similar
governing body) at a regularly scheduled annual or other
meeting of stockholders or with respect to incidental
matters at any such meeting, nor such Grantor's consent to
or approval of any action otherwise permitted under this
Agreement and the Secured Debt Documents shall be deemed
inconsistent with the terms of this Agreement or any
Secured Debt Document within the meaning of this Section
5(b)(i)(1); and
(2) the Collateral Trustee shall promptly
execute and deliver (or cause to be executed and
delivered) to each Grantor all proxies, and other
instruments as such Grantor may from time to time
reasonably request for the purpose of enabling such
Grantor to exercise the voting and other consensual rights
when and to the extent which it is entitled to exercise
pursuant to clause (1) above;
(ii) Upon the occurrence and during the continuation of an
Event of Default and receipt of notice from the Collateral Trustee:
(1) all rights of each Grantor to exercise or
refrain from exercising the voting and other consensual
rights which it would otherwise be entitled to exercise
pursuant hereto shall cease and all such rights shall
thereupon become vested in the Collateral Trustee who
shall thereupon have the sole right to exercise such
voting and other consensual rights; and
(2) in order to permit the Collateral Trustee
to exercise the voting and other consensual rights which
it may be entitled to exercise pursuant hereto and to
receive all dividends and other distributions which it may
be entitled to receive hereunder: (1) each Grantor shall
promptly execute and deliver (or cause to be executed and
delivered) to the Collateral Trustee all proxies, dividend
payment orders and other instruments as the Collateral
Trustee may from time to time reasonably request and (2)
each Grantor acknowledges that the Collateral Trustee may
utilize the power of attorney set forth in Section 7.
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SECTION 6. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES.
(A) Access; Right of Inspection. The Collateral Trustee shall at all
times have full and free access during normal business hours to all the books,
correspondence and records of each Grantor, and the Collateral Trustee and its
representatives may examine the same, take extracts therefrom and make
photocopies thereof, and each Grantor agrees to render to the Collateral
Trustee, at such Grantor's cost and expense, such clerical and other assistance
as may be reasonably requested with regard thereto. The Collateral Trustee and
its representatives shall at all times, upon reasonable notice and at reasonable
times, also have the right to enter any premises of each Grantor and inspect any
property of each Grantor where any of the Collateral of such Grantor granted
pursuant to this Agreement is located for the purpose of inspecting the same,
observing its use or otherwise protecting its interests therein.
(B) Further Assurances.
(i) each Grantor agrees that from time to time, at the
expense of such Grantor, that it shall promptly Authenticate, execute
and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that the
Collateral Trustee may reasonably request, in order to create and/or
maintain the validity, perfection or priority of and protect any
security interest granted or purported to be granted hereby or to
enable the Collateral Trustee to exercise and enforce its rights and
remedies hereunder with respect to any Collateral, provided, however,
that, notwithstanding anything herein to the contrary, no Grantor
shall be obligated to deliver any instrument or document that would
perfect the Collateral Trustee's Lien in any manner other than by
filing a financing statement. Without limiting the generality of the
foregoing, each Grantor shall:
(1) file such financing or continuation
statements, or amendments thereto, and execute and deliver
such other agreements, instruments, endorsements, powers
of attorney or notices, as may be necessary or desirable,
or as the Collateral Trustee may reasonably request, in
order to perfect and preserve the security interests
granted or purported to be granted hereby;
(2) at any reasonable time, upon request by the
Collateral Trustee, exhibit the Collateral to and allow
inspection of the Collateral by the Collateral Trustee, or
persons designated by the Collateral Trustee; and
(3) at the Collateral Trustee's request, appear
in and defend any action or proceeding that may affect
such Grantor's Title to or the Collateral Trustee's
security interest in all or any part of the Collateral.
(ii) Each Grantor hereby authorizes the filing of any
financing statements or continuation statements, and amendments to
financing statements, or any similar document in any jurisdictions
and with any filing offices as the Collateral Trustee may determine,
in its sole discretion, are necessary or advisable to perfect or
otherwise protect the security interest granted to the Collateral
Trustee herein. Such financing statements may describe the Collateral
in the same manner as described herein or may contain an indication
or description of collateral that describes such property in any
other manner as the Collateral Trustee may determine, in its sole
discretion, is necessary, advisable or prudent to ensure the
perfection of the security interest in the Collateral granted to the
Collateral Trustee herein, including, without limitation, describing
such property as "all assets" or "all personal property, whether now
owned or hereafter acquired. Each Grantor shall furnish to the
Collateral Trustee from time to time statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral as the Collateral Trustee may
reasonably request, all in reasonable detail.
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SECTION 7. COLLATERAL TRUSTEE APPOINTED ATTORNEY-IN-FACT, IRREVOCABLE
POWER OF ATTORNEY. Each Grantor hereby irrevocably appoints the Collateral
Trustee (such appointment being coupled with an interest) as such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor, the Collateral Trustee or otherwise, from time to
time in the Collateral Trustee's discretion to take any action and to execute
any instrument that the Collateral Trustee may deem reasonably necessary or
advisable to accomplish the purposes of this agreement, including, without
limitation, the following:
(i) upon the occurrence and during the continuance of any
Event of Default, to obtain and adjust insurance required to be
maintained by such Grantor or paid to the Collateral Trustee pursuant
to any Secured Debt Document;
(ii) upon the occurrence and during the continuance of any
Event of Default, to ask for, demand, collect, xxx 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;
(iii) upon the occurrence and during the continuance of
any Event of Default, to receive, endorse and collect any drafts or
other instruments, documents and chattel paper in connection with
clause (b) above;
(iv) upon the occurrence and during the continuance of any
Event of Default, to file any claims or take any action or institute
any proceedings that the Collateral Trustee may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Collateral Trustee with respect to any of
the Collateral;
(v) to prepare, sign, and file for recordation in any
intellectual property registry, appropriate evidence of the lien and
security interest granted herein in the Intellectual Property in the
name of such Grantor as assignor;
(vi) to take or cause to be taken all actions necessary to
perform or comply or cause performance or compliance with the terms
of this Agreement, including, without limitation, access to pay or
discharge taxes or Liens (other than Permitted Liens) 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 the Collateral Trustee in its sole discretion, any
such payments made by the Collateral Trustee to become obligations of
such Grantor to the Collateral Trustee, due and payable immediately
without demand; and
(vii) generally to sell, transfer, lease, license, pledge,
make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Collateral Trustee
were the absolute owner thereof for all purposes, and to do, at the
Collateral Trustee's option and such Grantor's expense, at any time
or from time to time, all acts and things that the Collateral Trustee
deems reasonably necessary to protect, preserve or realize upon the
Collateral and the Collateral Trustee's security interest therein in
order to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.
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SECTION 8. REMEDIES.
(A) Generally.
(i) If any Event of Default shall have occurred and be
continuing, the Collateral Trustee may exercise in respect of the
Collateral, in addition to all other rights and remedies provided for
herein or otherwise available to it at law or in equity, all the
rights and remedies of the Collateral Trustee on default under the
UCC (whether or not the UCC applies to the affected Collateral) to
collect, enforce or satisfy any Parity Secured Obligations then
owing, whether by acceleration or otherwise, and also may pursue any
of the following separately, successively or simultaneously:
(1) require any Grantor to, and each Grantor
hereby agrees that it shall at its expense and promptly
upon request of the Collateral Trustee forthwith, assemble
all or part of the Collateral as directed by the
Collateral Trustee and make it available to the Collateral
Trustee at a place to be designated by the Collateral
Trustee that is reasonably convenient to both parties;
(2) enter onto the property where any
Collateral is located and take possession thereof with or
without judicial process;
(3) 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 the Collateral Trustee deems
appropriate;
(4) without notice except as specified below or
under the UCC, sell, assign, lease, license (on an
exclusive or nonexclusive basis) or otherwise dispose of
the Collateral or any part thereof in one or more parcels
at public or private sale, at any of the Collateral
Trustee'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 the Collateral
Trustee may deem commercially reasonable; and
(ii) The Collateral Trustee or any Secured Party may be
the purchaser of any or all of the Collateral at any public or
private (to the extent to portion of the Collateral being privately
sold is of a kind that is customarily sold on a recognized market or
the subject of widely distributed standard price quotations) sale in
accordance with the UCC and the Collateral Trustee, as Collateral
Trustee for and representative of the Secured Parties, 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 sale made in accordance with the UCC, to use and apply
any of the Parity Secured Obligations as a credit on account of the
purchase price for any Collateral payable by the Collateral Trustee
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 any
Grantor, and each 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. each Grantor agrees
that, to the extent notice of sale shall be required by law, at least
ten (10) days notice to such 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. The Collateral Trustee
shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Collateral Trustee 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.
each Grantor agrees that it would not be commercially unreasonable
for the Collateral Trustee to dispose of the Collateral or any
portion thereof by using Internet sites that provide for the auction
of assets of the types included in the Collateral or that have the
reasonable capability of doing so, or that match buyers and sellers
of assets. Each Grantor hereby waives any claims against the
Collateral Trustee 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 the Collateral Trustee accepts the first offer received and
does not offer such Collateral to more than one offeree. If the
24
proceeds of any sale or other disposition of the Collateral are
insufficient to pay all the Parity Secured Obligations, each Grantor
shall be liable for the deficiency and the fees of any attorneys
employed by the Collateral Trustee to collect such deficiency. Each
Grantor further agrees that a breach of any of the covenants
contained in this Section will cause irreparable injury to the
Collateral Trustee, that the Collateral Trustee has no adequate
remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Section shall be
specifically enforceable against such Grantor, and such Grantor
hereby waives and agrees not to assert any defenses against an action
for specific performance of such covenants except for a defense that
no default has occurred giving rise to the Parity Secured Obligations
becoming due and payable prior to their stated maturities. Nothing in
this Section shall in any way alter the rights of the Collateral
Trustee hereunder.
(iii) The Collateral Trustee may sell the Collateral
without giving any warranties as to the Collateral. The Collateral
Trustee may specifically disclaim or modify any warranties of title
or the like. This procedure will not be considered to adversely
effect the commercial reasonableness of any sale of the Collateral.
(iv) The Collateral Trustee shall have no obligation to
xxxxxxxx any of the Collateral.
(v) the Collateral Trustee shall have the right to notify,
or require each Grantor to notify, any obligors with respect to
amounts due or to become due to such Grantor in respect of the
Collateral, of the existence of the security interest created herein,
to direct such obligors to make payment of all such amounts directly
to the Collateral Trustee, and, upon such notification and at the
expense of such Grantor, to enforce collection of any such amounts
and to adjust, settle or compromise the amount or payment thereof, in
the same manner and to the same extent as such Grantor might have
done;
(1) all amounts and proceeds (including checks
and other instruments) received by any Grantor in respect
of amounts due to such Grantor in respect of the
Collateral or any portion thereof shall be received in
trust for the benefit of the Collateral Trustee hereunder,
shall be segregated from other funds of such Grantor and
shall be forthwith paid over or delivered to the
Collateral Trustee in the same form as so received (with
any necessary endorsement) to be held as cash Collateral
and applied as provided by the Section in this Agreement
relating to Cash Proceeds (Section 8(d) hereof); and
(2) Grantors shall not adjust, settle or
compromise the amount or payment of any such amount or
release wholly or partly any obligor with respect thereto
or allow any credit or discount thereon.
(B) Application of Proceeds. All proceeds received by the Collateral
Trustee in respect of any sale, any collection from, or other realization upon
all or any part of the Collateral shall be applied in full or in part by the
Collateral Trustee against, the Parity Secured Obligations in accordance with
the Collateral Trust Agreement.
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(C) Sales on Credit. If Collateral Trustee sells any of the
Collateral upon credit, Grantor will be credited only with payments actually
made by purchaser and received by Collateral Trustee and applied to indebtedness
of the purchaser. In the event the purchaser fails to pay for the Collateral,
Collateral Trustee may resell the Collateral and Grantor shall be credited with
proceeds of the sale.
(D) Cash & Cash Proceeds. If an Event of Default shall have occurred
and be continuing, (1) the Collateral Trustee shall have the right to apply the
balance from any Deposit Account or instruct the bank at which any Deposit
Account is maintained to pay the balance of any Deposit Account to or for the
benefit of the Collateral Trustee and (2) all Cash and Cash Proceeds shall be
held by such Grantor in trust for the Collateral Trustee, segregated from other
funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be
turned over to the Collateral Trustee in the exact form received by such Grantor
(duly indorsed by such Grantor to the Collateral Trustee, if required) and held
by the Collateral Trustee. All such funds from any Deposit Account, Cash and
Cash Proceeds or any other Money held by the Collateral Trustee may, in the sole
discretion of the Collateral Trustee, (A) be held by the Collateral Trustee for
the ratable benefit of each Secured Party, as collateral security for the Parity
Secured Obligations (whether matured or unmatured) and/or (B) then or at any
time thereafter may be applied by the Collateral Trustee against the Parity
Secured Obligations then due and owing in accordance with the Collateral Trust
Agreement.
(E) Investment Related Property. In addition to the rights and
remedies specified above, the following provisions shall also be applicable to
Investment Related Property. Each Grantor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933 and applicable state
securities laws, the Collateral Trustee may be compelled, with respect to any
sale of all or any part of the Investment Related Property conducted without
prior registration or qualification of such Investment Related Property under
the Securities Act and/or such state securities laws, to limit purchasers to
those who will agree, among other things, to acquire the Investment Related
Property for their own account, for investment and not with a view to the
distribution or resale thereof. Each Grantor acknowledges that any such private
sale may be at prices and on terms less favorable than those obtainable through
a public sale without such restrictions (including a public offering made
pursuant to a registration statement under the Securities Act) and,
notwithstanding such circumstances, each Grantor agrees that any such private
sale shall be deemed to have been made in a commercially reasonable manner and
that the Collateral Trustee shall have no obligation to engage in public sales
and no obligation to delay the sale of any Investment Related Property for the
period of time necessary to permit the issuer thereof to register it for a form
of public sale requiring registration under the Securities Act or under
applicable state securities laws, even if such issuer would, or should, agree to
so register it. If the Collateral Trustee determines to exercise its right to
sell any or all of the Investment Related Property, upon written request, each
Grantor shall and shall cause each issuer of any Pledged Stock to be sold
hereunder, each partnership and each limited liability company from time to time
to furnish to the Collateral Trustee all such information as the Collateral
Trustee may request in order to determine the number and nature of interest,
shares or other instruments included in the Investment Related Property which
may be sold by the Collateral Trustee in exempt transactions under the
Securities Act and the rules and regulations of the Securities and Exchange
Commission thereunder, as the same are from time to time in effect.
(F) Intellectual Property. In addition to the rights and remedies
specified above, the following provisions shall also be applicable to
Intellectual Property.
(i) Anything contained herein to the contrary
notwithstanding, upon the occurrence and during the continuation of
an Event of Default:
26
(1) the Collateral Trustee shall have the right
(but not the obligation) to bring suit or otherwise
commence any action or proceeding in the name of any
Grantor, the Collateral Trustee or otherwise, in the
Collateral Trustee's sole discretion, to enforce any
Intellectual Property, in which event such Grantor shall,
at the request of the Collateral Trustee, do any and all
lawful acts and execute any and all documents required by
the Collateral Trustee in aid of such enforcement and such
Grantor shall promptly, upon demand, reimburse and
indemnify the Collateral Trustee as provided in the
Section in this Agreement relating to indemnity and
expenses in connection with the exercise of its rights
under this Section, and, to the extent that the Collateral
Trustee shall elect not to bring suit to enforce any
Intellectual Property as provided in this Section, each
Grantor agrees to use all reasonable measures requested by
the Collateral Trustee, whether by action, suit,
proceeding or otherwise, to prevent the infringement of
any of the Intellectual Property by others and for that
purpose agrees to diligently maintain any action, suit or
proceeding against any Person so infringing as shall be
necessary to prevent such infringement;
(2) upon written demand from the Collateral
Trustee, each Grantor shall grant, assign, convey or
otherwise transfer to the Collateral Trustee or such
Collateral Trustee's designee all of such Grantor's right,
title and interest in and to the Intellectual Property
owned by such Grantor and shall execute and deliver to the
Collateral Trustee such documents as are necessary or
appropriate to carry out the intent and purposes of this
Agreement;
(ii) Solely for the purpose of enabling the Collateral
Trustee to exercise rights and remedies under this Section 8 and at
such time as the Collateral Trustee shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the
Collateral Trustee, to the extent it has the right to do so, an
irrevocable, nonexclusive worldwide license (exercisable without
payment of royalty or other compensation to such Grantor), subject,
in the case of Trademarks, to sufficient rights to quality control
and inspection in favor of the Trademark owner to avoid the risk of
invalidation of said Trademarks, to use, operate under, license, or
sublicense any Intellectual Property now or hereafter owned by or
licensed (if permitted under the applicable license agreement) to
such Grantor.
SECTION 9. COLLATERAL TRUSTEE.
The Collateral Trustee has been appointed to act as Collateral
Trustee hereunder by each Secured Party either pursuant to the Secured Debt
Documents or by their acceptance of the benefits hereof. The Collateral Trustee
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
Collateral Trust Agreement. In furtherance of the foregoing provisions of this
Section, each Secured Party, by its acceptance of the benefits hereof, agrees
that it shall have no right individually to realize upon any of the Collateral
hereunder, it being understood and agreed by such Secured Party that all rights
and remedies hereunder may be exercised solely by the Collateral Trustee for the
benefit of each Secured Party in accordance with the terms of this Section and
the Collateral Trustee. Collateral Trustee may resign or be removed and be
replaced in accordance with the Collateral Trust Agreement. The Collateral
Trustee shall have all of the rights, privileges, immunities, indemnities and
benefits set forth in the Collateral Trust Agreement.
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SECTION 10. CONTINUING SECURITY INTEREST; TRANSFER OF PARITY SECURED
OBLIGATIONS
This Agreement shall create a continuing security interest in the
Collateral and shall remain in full force and effect until this Agreement is
terminated and Collateral released from the security interest in accordance with
the Collateral Trust Agreement. Any other contingent obligation included in the
Parity Secured Obligations shall be binding upon each Grantor, its successors
and assigns, and inure, together with the rights and remedies of the Collateral
Trustee hereunder, to the benefit of the Collateral Trustee and its successors,
transferees and assigns. Without limiting the generality of the foregoing, but
subject to the terms of the Secured Debt Documents, each Secured Party may
assign or otherwise transfer any Parity Secured Obligations held by it to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to each Secured Party herein or otherwise.
SECTION 11. STANDARD OF CARE; COLLATERAL TRUSTEE MAY PERFORM.
The powers conferred on the Collateral Trustee hereunder are solely
to protect its interest in the Collateral and the interests of the Secured
Parties 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,
the Collateral Trustee shall have no duty as to any Collateral, or as to the
creation or perfection of any Lien on the Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral. The Collateral Trustee 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 the Collateral Trustee accords its own property. Neither the Collateral
Trustee nor any of its directors, officers, employees or agents shall be liable
for failure to demand, collect or realize upon all or any part of the Collateral
or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of any Grantor or
otherwise. If any Grantor fails to perform any agreement contained herein, the
Collateral Trustee may itself perform, or cause performance of, such agreement,
and the expenses of the Collateral Trustee incurred in connection therewith
shall be payable by each Grantor and pending such payment shall be included in
the obligations secured hereby.
SECTION 12. INDEMNITY AND EXPENSES.
(i) Each Grantor agrees to indemnify each Indemnitee in
accordance with the Collateral Trust Agreement.
(ii) Expenses. Each Grantor agrees to pay promptly all the
actual costs and reasonable expenses of creating and perfecting Liens
in favor of Collateral Trustee, for the benefit of each Secured Party
pursuant hereto, including search, filing and recording fees,
expenses and taxes, stamp or documentary taxes, search fees, title
insurance premiums and reasonable fees, expenses and disbursements of
counsel to Collateral Trustee and of counsel providing any opinions
that Collateral Trustee may request in respect of the Collateral or
the Liens created pursuant to the Security Documents; all the actual
costs and reasonable fees, expenses and disbursements of any
auditors, accountants, consultants or appraisers; all the actual
costs and reasonable expenses (including the reasonable fees,
expenses and disbursements of any appraisers, consultants, advisors
and agents employed or retained by Collateral Trustee and its
counsel) in connection with the custody or preservation of any of the
Collateral; and after the occurrence of a Default or an Event of
Default, all costs and expenses, including reasonable attorneys' fees
(including allocated costs of internal counsel) and costs of
28
settlement, incurred by Collateral Trustee in enforcing any Parity
Secured Obligations of or in collecting any payments due from any
Grantor hereunder or under the other Secured Debt Documents by reason
of such Default or Event of Default (including in connection with the
sale of, collection from, or other realization upon any of the
Collateral) or in connection with any refinancing or restructuring of
the credit arrangements provided hereunder in the nature of a
"work-out" or pursuant to any insolvency or bankruptcy cases or
proceedings.
(iii) The obligations of each Grantor in this Section 12
shall survive the termination of this Agreement and the discharge of
such Grantor's other obligations under this Agreement and any other
Secured Debt Documents.
SECTION 13. MISCELLANEOUS.
(A) Notices. Any notice required or permitted to be given under this
Agreement shall be given in accordance with Section 7.6 of the Collateral Trust
Agreement.
(B) Amendments and Waivers.
(i) Collateral Trustee's Consent. Subject to Section 7.1
of the Collateral Trust Agreement no amendment, modification,
termination or waiver of any provision of this Agreement, or consent
to any departure by any Grantor therefrom, shall in any event be
effective without the written concurrence of the Collateral Trustee.
(ii) No Waiver; Remedies Cumulative. No failure or delay
on the part of the Collateral Trustee in the exercise of any power,
right or privilege hereunder or under any other Secured Debt Document
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
other or further exercise thereof or of any other power, right or
privilege. All rights, powers and remedies existing under this
Agreement and the other Secured Debt Documents are cumulative, and
not exclusive of, any rights or remedies otherwise available. Any
forbearance or failure to exercise, and any delay in exercising, any
right, power or remedy hereunder shall not impair any such right,
power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
(C) Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns including all persons
who become bound as debtor to this Agreement. No Grantor shall, without the
prior written consent of the Collateral Trustee, assign any right, duty or
obligation hereunder.
(D) Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.
(E) Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements made herein shall survive the
execution and delivery hereof. Notwithstanding anything herein or implied by law
to the contrary, the agreements of each Grantor set forth in Section 12(iii)
shall survive the payment of the Parity Secured Obligations and the termination
hereof.
29
(F) Marshaling; Payments Set Aside. Collateral Trustee shall not be
under any obligation to marshal any assets in favor of any Grantor or any other
Person or against or in payment of any or all of the Parity Secured Obligations.
(G) Severability. In case any provision in or obligation hereunder
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.
(H) Headings. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
(I) APPLICABLE LAW. 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.
(J) Consent to Jurisdiction. All judicial proceedings brought against
any party hereto arising out of or relating to this Agreement or any of the
other Security Documents may be brought in any state or federal court of
competent jurisdiction in the State, County and City of New York. By executing
and delivering this Agreement, each Pledgor, for itself and in connection with
its properties, irrevocably:
(i) accepts generally and unconditionally the nonexclusive
jurisdiction and venue of such courts;
(ii) waives any defense of forum non conveniens;
(iii) 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 such party at its address provided
in accordance with Section 7.6 of the Collateral Trust Agreement;
(iv) agrees that service as provided in clause (iii) above
is sufficient to confer personal jurisdiction over such party in any
such proceeding in any such court and otherwise constitutes effective
and binding service in every respect; and
(v) agrees each party hereto retains the right to serve
process in any other manner permitted by law or to bring proceedings
against any party in the courts of any other jurisdiction.
(K) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER SECURED DEBT
DOCUMENTS. 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 CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS
AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED
30
FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT 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 (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SECTION 13(K) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS
A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(L) Counterparts. This Agreement may be executed in any number of
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.
(M) Effectiveness. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
Grantors and the Collateral Trustee of written or telephonic notification of
such execution and authorization of delivery thereof.
(N) Entire Agreement. This Agreement and the other Secured Debt
Documents embody the entire agreement and understanding between Grantors and the
Collateral Trustee and supersede all prior agreements and understandings between
such parties relating to the subject matter hereof and thereof. Accordingly, the
Secured Debt Documents may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties.
31
IN WITNESS WHEREOF, the Grantor and the Collateral Trustee have
caused this Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written above.
IWO ESCROW COMPANY,
AS GRANTOR
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
THE BANK OF NEW YORK,
AS COLLATERAL TRUSTEE
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
[Pledge and Security Agreement]
SCHEDULE I
TO PLEDGE AND SECURITY AGREEMENT
GENERAL INFORMATION
(a) Full Legal Name, Type of Organization, Jurisdiction of
Organization, Chief Executive Office/Sole Place of
Business (or Residence if Grantor is a Natural Person) and
Organizational Identification Number of each Grantor:
Chief Executive
Office/Sole Place of
Business (or Residence
Jurisdiction of if Grantor is a Natural
Full Legal Name Type of Organization Organization Person) Organization I.D.#
--------------- -------------------- ---------------- ----------------------- ------------------
Name of Grantor Date of Change Description of Change
--------------- -------------- ---------------------
(e) Financing Statements:
Name of Grantor Filing Jurisdiction(s)
--------------- ----------------------
[Pledge and Security Agreement]
SCHEDULE II
TO PLEDGE AND SECURITY AGREEMENT
Name of Grantor Location of Equipment and Inventory
--------------- -----------------------------------
[Pledge and Security Agreement]
SCHEDULE III
TO PLEDGE AND SECURITY AGREEMENT
INVESTMENT RELATED PROPERTY
Pledged Stock:
========= ========= =========== ============== ================ =========== ======== ===============
% OF
NO. OF OUTSTANDING
STOCK CLASS OF CERTIFICATED STOCK PLEDGED STOCK OF THE
GRANTOR ISSUER STOCK (Y/N) CERTIFICATE NO. PAR VALUE STOCK STOCK ISSUER
========= ========= =========== ============== ================ =========== ======== ===============
Pledged LLC Interests:
========= ============ ================ ================= ================ =====================
% OF OUTSTANDING LLC
LIMITED INTERESTS OF THE
LIABILITY CERTIFICATED CERTIFICATE NO. NO. OF PLEDGED LIMITED LIABILITY
GRANTOR COMPANY (Y/N) (IF ANY) UNITS COMPANY
========= ============ ================ ================= ================ =====================
Pledged Partnership Interests:
========= ============ ===================== ============== ================= ==================
TYPE OF % OF OUTSTANDING
PARTNERSHIP PARTNERSHIP
INTERESTS (E.G., CERTIFICATED CERTIFICATE NO. INTERESTS OF THE
GRANTOR PARTNERSHIP GENERAL OR LIMITED) (Y/N) (IF ANY) PARTNERSHIP
========= ============ ===================== ============== ================= ==================
Pledged Trust Interests:
========= ======= ================ ============== ================ ====================
% OF OUTSTANDING
CLASS OF TRUST CERTIFICATED CERTIFICATE NO. TRUST INTERESTS OF
GRANTOR TRUST INTERESTS (Y/N) (IF ANY) THE TRUST
========= ======= ================ ============== ================ ====================
[Pledge and Security Agreement]
Pledged Debt:
==================== ====================== ====================== ====================== ===================== ====================
GRANTOR ISSUER ORIGINAL PRINCIPAL OUTSTANDING ISSUE DATE MATURITY DATE
AMOUNT PRINCIPAL BALANCE
==================== ====================== ====================== ====================== ===================== ====================
Securities Account:
================================ ================================= ================================= ===============================
GRANTOR NAME OF SECURITIES INTERMEDIARY ACCOUNT NUMBER ACCOUNT NAME
================================ ================================= ================================= ===============================
Commodities Accounts:
================================ ================================= ================================= ===============================
GRANTOR NAME OF COMMODITIES INTERMEDIARY ACCOUNT NUMBER ACCOUNT NAME
================================ ================================= ================================= ===============================
Deposit Accounts:
================================ ================================= ================================= ===============================
GRANTOR NAME OF DEPOSITARY BANK ACCOUNT NUMBER ACCOUNT NAME
================================ ================================= ================================= ===============================
(B)
NAME OF GRANTOR DATE OF ACQUISITION DESCRIPTION OF ACQUISITION
--------------- ------------------- --------------------------
(C)
NAME OF GRANTOR PLEDGED EQUITY INTERESTS OUTSTANDING WARRANTS, OPTIONS ETC.
--------------- ------------------------ ----------------------------------
(D)
NAME OF GRANTOR PLEDGED LLC INTERESTS OR PLEDGED
--------------- --------------------------------
PARTNERSHIP INTERESTS
---------------------
[Pledge and Security Agreement]
SCHEDULE IV
TO PLEDGE AND SECURITY AGREEMENT
Name of Grantor Description of Letters of Credit
--------------- --------------------------------
[Pledge and Security Agreement]
SCHEDULE V
TO PLEDGE AND SECURITY AGREEMENT
INTELLECTUAL PROPERTY
(a) Copyrights
(b) Copyright Licenses
(c) Patents
(d) Patent Licenses
(e) Trademarks
(f) Trademark Licenses
(g) Trade Secret Licenses
(h) Intellectual Property Matters
[Pledge and Security Agreement]
SCHEDULE VI
TO PLEDGE AND SECURITY AGREEMENT
Name of Grantor Commercial Tort Claims
--------------- ----------------------
[Pledge and Security Agreement]
ANNEX A
PLEDGE SUPPLEMENT
This PLEDGE SUPPLEMENT, dated [ ], is delivered by [NAME OF GRANTOR
OR GRANTORS] a [ ] [Corporation] (the "Grantor") pursuant to the Pledge and
Security Agreement, dated as of [ ] (as it may be from time to time amended,
restated, modified or supplemented, the "Security Agreement"), among IWO ESCROW
COMPANY, the other Debtors named therein, and THE BANK OF NEW YORK, as the
Collateral Trustee. Capitalized terms used herein not otherwise defined herein
shall have the meanings ascribed thereto in the Security Agreement.
Each Grantor hereby confirms the grant to the Collateral Trustee set
forth in the Security Agreement of, and does hereby grant to the Collateral
Trustee, a security interest in all of such Grantor's right, title and interest
in and to all [Investment Related Property][Letter of Credit Rights] including,
without limitation, those specified on the Schedule attached hereto and agrees
that such attached schedule shall supplement and become a part of Schedule
[III][V] to the Security Agreement. Grantor represents and warrants that the
attached Schedule is a true and correct list of all [Investment Related
Property][Letter of Credit Rights] in which it has rights and that it has
complied with all provisions of the Security Agreement relating thereto and that
the Collateral Trustee has a valid, perfected first priority security interest
therein.
IN WITNESS WHEREOF, Grantor has caused this Pledge Supplement to be
duly executed and delivered by its duly authorized officer as of [ ].
[NAME OF GRANTOR]
By: _________________________
Name:
Title:
ANNEX B
JOINDER AGREEMENT
This JOINDER AGREEMENT, dated [ ], is delivered by [NAME OF NEW
GRANTOR] a [State of Incorporation] [Corporation] (the "New Grantor") pursuant
to the Pledge and Security Agreement, dated as of [ ] (as it may be from time to
time amended, restated, modified or supplemented, the "Security Agreement"),
among IWO ESCROW COMPANY, the other Debtors named therein, and [NAME OF
COLLATERAL TRUSTEE], as the Collateral Trustee. Capitalized terms used herein
not otherwise defined herein shall have the meanings ascribed thereto in the
Security Agreement.
New Grantor hereby confirms the grant to the Collateral Trustee set
forth in the Security Agreement of, and does hereby grant to the Collateral
Trustee, a security interest in all of New Grantor's right, Title and interest
in and to all Collateral to secure the Parity Secured Obligations, in each case
whether now or hereafter existing or in which New Grantor now has or hereafter
acquires an interest and wherever the same may be located. From and after the
date hereof, New Grantor shall be a "Grantor" for all purposes of the Security
Agreement. New Grantor hereby makes all of the representations and warranties
set forth in the Security Agreement. New Grantor represents and warrants that
the attached Supplements to Schedules accurately and completely set forth as of
the date hereof all additional information required pursuant to the Security
Agreement and hereby agrees that such Supplements to Schedules shall constitute
part of the Schedules to the Security Agreement.
IN WITNESS WHEREOF, New Grantor has caused this Joinder Agreement to
be duly executed and delivered by its duly authorized officer as of [ ].
[NAME OF NEW GRANTOR]
By: _____________________________
Name:
Title:
