Security Agreement - Xinhua Finance Media Ltd. and Patriarch Partners Media Holdings LLC
EXECUTION COPY
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of March 16, 2006 (as amended, restated,
supplemented or otherwise modified from time to time, this "Agreement"), among
XINHUA FINANCE MEDIA LIMITED, a Cayman Islands limited company (the "Company"
and, together with any other grantors from time to time party hereto,
collectively, the "Grantors"), and PATRIARCH PARTNERS MEDIA HOLDINGS, LLC, a
Delaware limited liability company (the "Secured Party").
WITNESSETH:
WHEREAS, the Company has entered into that certain Share Purchase
Agreement, dated as of the date hereof, between the Company and the Secured
Party (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "Share Purchase Agreement");
WHEREAS, it is a condition precedent to the Share Purchase Agreement that
the Grantors shall have entered into this Agreement in order to grant to the
Secured Party a security interest in the Collateral (as defined herein); and
WHEREAS, the Grantors will derive substantial direct and indirect benefit
from the transactions contemplated by the Share Purchase Agreement and the other
Equity Documents;
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, each Grantor hereby agrees with the Secured Party as
follows:
Section 1. Definitions.
(a) Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Share Purchase Agreement.
(b) As used herein:
(i) "Credit Agreement" means the Credit Agreement dated as of March
16, 2006 among the Grantor, the Guarantors named therein, the Lenders named
therein and Patriarch Partners Agency Services, LLC as agent.
(ii) "Discharge of the First Lien Obligations" means payment in full
of all indebtedness, obligations and liabilities of the Credit Parties
under the Credit Documents.
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(iii) "Excluded Obligations" means any and all dividends payable on
the Shares under the terms of the Articles of Association of the Company.
(iv) "First Lien Collateral Agent" means "Agent" as defined under the
Credit Agreement.
(v) "Hong Kong" means the Hong Kong Special Administrative Region of
the People's Republic of China.
(vi) "PRC" means the People's Republic of China excluding Hong Kong,
Macau Special Administrative Region and Taiwan.
(vii) "UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
(c) Unless otherwise defined in this Agreement or in the Share Purchase
Agreement, terms defined in Article 8 or 9 of the UCC are used in this Agreement
as such terms are defined in such Article 8 or 9.
(d) Any reference in this Agreement to a "first priority lien" or words of
similar effect in describing the security interests created hereunder shall be
understood to refer to such priority subject to the claims of the First Lien
Collateral Agent under the Credit Documents.
Section 2. Grant of Security Interest. To secure the due and prompt payment
and performance by the Grantors of the Obligations (as defined below), each
Grantor hereby pledges, assigns and grants to the Secured Party, a continuing
security interest in and valid Lien upon such Grantor's right, title and
interest in and to the following, in each case, as to each type of property
described below, whether now owned or hereafter acquired by such Grantor,
wherever located and whether now or hereafter existing or arising,
(collectively, the "Collateral"):
(a) all equipment in all of its forms, including, without limitation, all
machinery, apparatus, installation facilities, tools, motor vehicles, vessels,
aircraft, furniture and fixtures, and all parts thereof and all accessions
thereto and all software related thereto, including, without limitation,
software that is imbedded in and is part of the equipment, in each case wherever
located, and whether on earth on in orbit (collectively, the "Equipment");
(b) all inventory in all of its forms, including, without limitation, (A)
all raw materials, work in process, finished goods and materials used or
consumed in the manufacture, production, preparation or shipping thereof, (B)
goods in which such Grantor has an interest in mass or a joint or other interest
or right of any kind (including, without limitation, goods in which such Grantor
has an interest or right as consignee) and (C) goods that are returned to or
repossessed or stopped in transit by such Grantor, and all accessions thereto
and products thereof and documents therefor, and all software related thereto,
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including, without limitation, software that is imbedded in and is part of the
inventory (collectively, the "Inventory");
(c) all rights, claims and benefits of such Grantor against any Person
arising out of, relating to or in connection with Inventory or Equipment
purchased by each Grantor, including, without limitation, any such rights,
claims or benefits against any Person storing or transporting such Inventory or
Equipment;
(d) the following (collectively, the "Security Collateral"):
(i) all Capital Stock of whatever class of any Person (including (x)
the Capital Stock set forth opposite such Grantor's name on and as
otherwise described on Schedule I hereto and issued by the Persons named
therein and (y) all additional Capital Stock acquired by such Grantor) and
the certificates, if any, representing the same, and all dividends,
distributions, return of capital, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such Capital Stock or investment property
(collectively, the "Pledged Equity");
(ii) the indebtedness owed to such Grantor (including (A) the
indebtedness set forth opposite such Grantor's name on Schedule II hereto
and issued by the obligors named therein and (B) all additional
indebtedness from time to time owed to such Grantor), and the instruments,
if any, evidencing such indebtedness, and all interest, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
indebtedness (collectively, the "Pledged Debt"); and
(iii) all other investment property (including, without limitation,
all securities (whether certificated or uncertificated), security
entitlements, security accounts, commodity contracts and commodity
accounts) in which such Grantor has now, or acquires from time to time
hereafter, any right, title or interest in any manner, and the certificates
or instruments, if any, representing or evidencing the same and all
dividends, distributions, return of capital, interest, distributions,
value, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of such Capital Stock or investment property and all subscription
warrants, rights or options issued thereon or with respect thereto;
(e) all accounts, chattel paper (including, without limitation, tangible
chattel paper and electronic chattel paper), instruments (including, without
limitation, promissory notes), deposit accounts, letter-of-credit rights and
general intangibles (as such term is defined in the UCC and including, without
limitation, payment intangibles), and other obligations of any kind, whether or
not arising out of or in connection with the sale, lease, license or assignment
of goods or the rendering of services and whether or not earned by performance,
and all rights now or hereafter existing in and to all supporting obligations
and in and to all security agreement, mortgages, Liens, leases, letters of
credit and other
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contracts securing or otherwise relating to the foregoing property
(collectively, the "Receivables");
(f) the following (collectively, the "Intellectual Property Collateral"):
(i) all United States, international and foreign patent, patent
application, utility models, and statutory invention registrations,
including, without limitation, the patents and patent applications set
forth in Schedule III hereto (as such Schedule III may be supplemented from
time to time by supplements to this Agreement (each, an "IP Security
Agreement Supplement"), executed and delivered by such Grantor to the
Secured Party from time to time), together with all reissues, divisions,
continuations, continuations-in-part, extensions and reexaminations
thereof, all inventions therein, all rights therein provided by
international treaties or conventions and all improvements thereto, and all
other rights of any kind whatsoever of such Grantor accruing thereunder or
pertaining thereto (collectively, the "Patents");
(ii) all trademarks (including, without limitation, service marks),
certification marks, collective marks, trade dress, logos, internet domain
names, product configurations, trade names, business names, corporate names
and other source identifiers, whether or not registered, whether currently
in use or not, including, without limitation, all common law rights and
registrations and application for registration thereof, including, without
limitation, the trademark registrations and trademark applications set
forth in Schedule IV hereto (as such Schedule IV may be supplemented form
time to time by IP Security Agreement Supplements executed and delivered by
such Grantor to the Secured Party from time to time), and all other marks
registered in the U.S. Patent and Trademark Office or in any office or
agency of any state or territory of the United States or any foreign
country (but excluding any United States intent-to-use trademark
application prior to the filing and acceptance of a Statement of Use or an
Amendment to allege use in connection therewith to the extent that a valid
security interest may not be taken in such an intent-to-use- trademark
application under applicable law), and all rights therein provided by
international treaties or conventions, all renewals of any of the
foregoing, together in each case with the goodwill of the business
connected therewith and symbolized thereby, and all rights corresponding
thereto throughout the world and all other rights of any kind whatsoever of
such Grantor accruing thereunder or pertaining thereto (collectively, the
"Trademarks");
(iii) all copyrights, copyright applications, copyright registrations
and like protections in each work of authorship, whether statutory or
common law, whether published or unpublished, any renewals or extensions
thereof, all copyrights of works based on, incorporated in, derived from,
or relating to works covered by such copyrights, including, without
limitation, the copyright registrations and copyright applications set
forth in Schedule V hereto (as such Schedule V may be supplemented from
time to time by IP Security Agreement Supplements executed and delivered by
such Grantor to Secured Party from time to
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time), together with all rights corresponding thereto throughout the world
and all other rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto (collectively, the "Copyrights");
(iv) all proprietary information, including, without limitation,
know-how, trade secrets, manufacturing and production processes and
techniques, inventions, research and development information, technical
data, plans, blueprints, designs, models, recorded knowledge, surveys,
architectural, structural, mechanical and engineering plans and
specifications, studies, reports and drawing, test reports, manuals,
financial, marketing and business data, pricing and cost information,
business and marketing plans and customer and supplier lists and
information (collectively, the "Trade Secrets");
(v) all software, including, without limitation, computer software
programs and databases (including, without limitation, source code, object
code and all related applications and data files), firmware, and
documentations and materials relating thereto, and all rights with respect
to the foregoing, together with any and all options, warranties, service
contracts, program services, test rights, maintenance rights, improvement
rights, renewal rights and indemnifications and any substitutions,
replacements, additions or model conversions of any of the foregoing
(collectively, the "Computer Software");
(vi) all names, including, without limitation, combinations of words
and abbreviations, that represent a uniquely identifiable internet protocol
address of a World Wide Web internet location and all registrations
thereof, including, without limitation, those names set forth on Schedule
VI hereto (as such Schedule VI may be supplemented from time to time by IP
Security Agreement Supplements executed and delivered by any Grantor to
Secured Party from time to time), together with all rights corresponding
thereto throughout the world and all other rights of any kind whatsoever of
such Grantor accruing thereunder or pertaining thereto (collectively, the
"Domain Names");
(vii) all license agreements, permits, authorizations and franchises,
whether with respect to the Patents, Trademarks, Copyrights, Trade Secrets,
Computer Software or Domain Names, or with respect to the patents,
trademarks, copyrights, trade secrets, computer software or other
proprietary right of any other Person, and all income, royalties and other
payments now or hereafter due and/or payable to such Grantor with respect
thereto, subject, in each case, to the terms of such license agreements,
permits, authorizations and franchises, including, without limitation,
those licenses set forth on Schedule X (collectively, the "Licenses");
provided, however, that to the extent that the consent of any other party
to any of the Licenses is required, under the terms thereof, for the
collateral assignment thereof, then this Agreement shall not affect any
collateral assignment of (or otherwise be applied so as to cause a default
under) such Licenses;
(viii) any and all claims for damages for past, present and future
infringement, misappropriation or breach with respect to the Patents,
Trademarks,
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Copyrights, Trade Secrets, Computer Software, Domain Names or Licenses,
with the right, but not the obligation, to sue for and collect, or
otherwise recover, such damages; and
(ix) any and all other Intellectual Property.
(g) the following (collectively, the "Account Collateral"):
(i) all deposit accounts, including, without limitation, the deposit
accounts listed on Schedule VII hereto (collectively, the "Accounts");
(ii) all promissory notes, certificates of deposit, deposit accounts,
checks and other instruments from time to time delivered to or otherwise
possessed by the Secured Party for or on behalf of such Grantor; and
(iii) all interest, dividends, distributions, cash, instruments and
other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Accounts;
(h) all commercial tort claims described in Schedule VIII hereto
(collectively, the "Commercial Tort Claims");
(i) all books and records (including, without limitation, customer lists,
credit files, computer programs, software, printouts and other computer
materials and records) of such Grantor pertaining to any of the Collateral;
(j) all insurance policies, whether owned by or payable to such Grantor,
insuring against any risk whatsoever (including, without limitation, casualty,
property damage, liability, key man life insurance and death), all loss proceeds
and other amounts payable thereunder to such Grantor (regardless of whether the
Secured Party is the loss payee thereof), any indemnity, warranty or guaranty in
respect of the property insured thereby, and all eminent domain or similar
proceeds or awards with respect thereto and all other rights of such Grantor
with respect thereto (collectively, the "Insurance Receivables"); and
(k) all proceeds (as such term is defined in the UCC), products, offspring,
rents, profits, royalties, revenues, issues, income, benefits, accessions,
additions, substitutions and replacements of and to any of the property of such
Grantor described in the preceding clause (a) through (n) of this Section
(including, without limitation, all causes of action, claims, warranties and
guaranties now or hereafter held by such Grantor in respect of any of the items
listed above).
Notwithstanding anything to the contrary contained herein, in no event
shall the Collateral include or the security interest granted under Section 2
hereof attach to (a) any lease, license, contract, property right or agreement
to which any Grantor is a party or any of its rights or interests thereunder if
and for so long as the grant of such security interest shall constitute or
result in (i) the abandonment, invalidation or unenforceability of any right,
title or interest of any Grantor therein or (ii) in a breach or termination
pursuant to the
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terms of, or a default under, any such lease, license, contract property right
or agreement (other than to the extent that any such term would be rendered
ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any
successor provision or provisions) or any relevant jurisdiction or any other
applicable law (including the Bankruptcy Code) or principles of equity),
provided, however, that the Collateral shall include and such security interest
shall attach immediately at such time as the condition causing such abandonment,
invalidation or unenforceability shall be remedied and to the extent severable,
shall attach immediately to any portion of such lease, license, contract,
property right or agreement that does not result in any of the consequences
specified in clauses (i) or (ii) above; or (b) any outstanding Capital Stock of
a Subsidiary organized under the laws of the PRC; provided that immediately upon
(i) an amendment of the laws of the PRC which allows the pledge of Capital Stock
of a Person organized under the laws of the PRC without the consent of any
Governmental Body of the PRC or (b) obtaining such consent from a Governmental
Body of the PRC, the Collateral shall include, and the security interest granted
by each Grantor shall attach to, such Capital Stock of a Subsidiary organized
under the laws of the PRC.
Section 3. Obligations Secured. The Collateral hereunder constitutes and
will constitute continuing security for all of the indebtedness, obligations and
liabilities (other than the Excluded Obligations) of the Grantors to the Secured
Party and its permitted successors and assigns under the Equity Documents, in
each case as such instrument is originally executed on the date hereof or as
modified, amended, restated, supplemented or extended hereafter, whether such
obligations are now existing or hereafter arising, direct or indirect, absolute
or contingent, due or to become 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), matured or unmatured,
liquidated or unliquidated, arising by contract, operation of law or otherwise,
whether for principal, interest (including interest which, but for the filing of
a petition in bankruptcy with respect to each Grantor, would have accrued on any
obligation, whether or not a claim is allowed against such Grantor for such
interest in the related bankruptcy proceeding), fees, expenses, indemnification
or otherwise and all obligations of each Grantor to the Secured Party arising
out of any extension, refinancing or refunding of any of the foregoing
obligations (collectively, the "Obligations").
Section 4. Grantor Remain Liable. Anything herein to the contrary
notwithstanding, (a) each Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Secured Party of any of
the rights hereunder shall not release any Grantor from any of its duties or
obligations under the contracts and agreements included in the Collateral and
(c) the Secured Party shall have no obligation or liability under the contracts
and agreements included in the Collateral by reason of this Agreement or any
other Equity Document and (d) the Secured Party shall not be obligated to
perform any of the obligations or duties of any Grantor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
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Section 5. Pro Rata Security; Application of Proceeds of Collateral. All
amounts owing with respect to the Obligations shall be secured pro rata by the
Collateral without distinction as to whether some Obligations are then due and
payable and other Obligations are not then due and payable. Upon any realization
upon the Collateral by the Secured Party, whether by receipt of insurance
proceeds pursuant to Section 6(d) hereof or upon foreclosure and sale of all or
part of the Collateral pursuant to Section 11 hereof or otherwise, the Grantors
and the Secured Party agree that the proceeds thereof shall be applied (i)
first, to the payment of expenses incurred with respect to maintenance and
protection of the Collateral and of expenses incurred pursuant to Section 15
hereof with respect to the sale of or realization upon any of the Collateral or
the perfection, enforcement or protection of the rights of the Secured Party
(including reasonable attorneys' fees and expenses of every kind), (ii) second,
to all amounts of interest, expenses and fees outstanding which constitute the
Obligations; (iii) third, to all amounts of principal outstanding under the
Obligations; and (iv) fourth, any proceeds remaining after the repayment of all
of the Obligations to be paid over to the Grantors or such other person or
persons as may be entitled thereto. The Grantors shall remain liable for any
deficiency remaining unpaid after the application of proceeds in accordance with
the foregoing provisions. Each Grantor agrees that all amounts received with
respect to any of the Obligations, whether by realization on the Collateral or
otherwise, shall be applied to the payment of the Obligations in accordance with
the provisions of this Section 5.
Section 6. Representations and Covenants of the Grantors.
(a) Location of Chief Executive Offices; Domicile; Organizational
Identification Number. Each Grantor represents that set forth on Schedule IX are
(i) the location of its chief executive office and the location where its books
and records are kept, (ii) the jurisdiction of its organization or formation,
(iii) its organizational identification number (if any), (iv) a true and correct
list of all localities where the property of such Grantor comprising the
Collateral is located. Each Grantor agrees that it will not change its name,
organizational identification number (if any), the jurisdiction of its
organization or the location of its chief executive office or the location where
its books and records are kept without providing at least thirty (30) days'
prior written notice to the Secured Party.
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(b) Ownership of Collateral.
(i) Each Grantor represents that it is the owner of the Collateral
free from any adverse Lien, security interest or encumbrance, except as
expressly permitted by the Credit Agreement and Articles of Association of
the Company. No effective financing statement or other instrument similar
in effect covering all or any part of such Collateral or listing any
Grantor or any trade name of the Grantor as debtor is on file in any
recording office (including, without limitation, the United States Patent
and Trademark Office and the United States Copyright Office), except such
as may have been filed in favor of the First Lien Collateral Agent relating
to the Credit Documents or as otherwise permitted under the Articles of
Association of the Company.
(ii) Except for the security interests herein granted and except as
expressly permitted by Section 6.1(b) of the Credit Agreement and the
Articles of Association of the Company, such Grantor shall be the owner of
the Collateral free of any Liens or other encumbrances, and the Grantor
shall defend the same against all claims and demands of all persons at any
time claiming the same or any interest therein adverse to the Secured
Party. Except as otherwise expressly permitted by the Credit Agreement and
the Articles of Association of the Company, each Grantor shall not pledge,
mortgage or create or suffer to exist a security interest in the Collateral
(other than the Permitted Liens) of such Grantor in favor of any person
other than the Secured party.
(c) Transfers and Other Liens. Each Grantor agrees that it will not (i)
sell or offer to sell, assign or otherwise transfer, or grant any option with
respect to, the Collateral, any portion thereof, or any interest therein except
as expressly permitted by the Credit Agreement and the Articles of Association
of the Company or (ii) create or suffer to exist any Lien upon or with respect
to any of the Collateral of the Grantor except for the pledge, assignment and
security interest created under the Credit Documents, this Agreement and the
Permitted Liens.
(d) Insurance. Each Grantor shall have and maintain at all times with
respect to the Collateral such insurance as is required by the Investor Rights
Agreement of the Grantor.
(e) Maintenance of Collateral. Each Grantor shall keep the Collateral in
good order and repair, ordinary and reasonable wear and tear excepted, and will
not use the same in violation of law or any policy of insurance thereon. The
Secured Party may inspect the Collateral at any reasonable time, wherever
located. Except as otherwise provided in the Credit Agreement and the Equity
Documents, each Grantor shall pay promptly when due all taxes and assessments
upon the Collateral or for its use or operation or upon this Agreement. In its
discretion, the Secured Party may discharge taxes and other encumbrances at any
time levied or placed on the Collateral, which remain unpaid in violation of the
Equity Documents, make repairs thereof and pay any necessary filing fees
incurred in connection with the perfection, protection or enforcement of the
Secured Party's rights hereunder. Each Grantor agrees to reimburse the Secured
Party on demand
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for any and all expenditures so made, and until paid, the amount thereof shall
be a debt secured by the Collateral. The Secured Party shall have no obligation
to the Grantors to make any such expenditures, nor shall the making thereof
relieve any Grantor of any default.
(f) Creation and Perfection of Lien. Each Grantor represents and warrants
to the Secured Party and covenants with the Secured Party that this Agreement
creates a valid Lien upon and security interest in the Collateral as security
for the payment and performance of the Obligations. Upon (i) the filing of UCC-l
financing statements in the form attached hereto as Exhibit A (the "Financing
Statement") (a) in the jurisdiction of organization of each Grantor under the
UCC or (b) if the Grantor is a Person organized outside of the United States of
America, in Washington D.C., against such Grantor as the same may be in effect
from time to time in the jurisdiction of organization of such Grantor and (ii)
upon the taking of possession by the Secured Party of any certificates
constituting the Security Collateral, to the extent such Security Collateral are
represented by certificates, together with undated powers endorsed in blank by
the applicable Grantor, in each case naming the applicable Grantor as debtor and
the Secured Party as secured party, all filings, assignments, pledges and
deposits of documents or instruments will have been made and all other actions
will have been taken that are necessary or advisable, under applicable law, to
establish and perfect the Secured Party's security interest in such of the
Collateral as to which a security interest may be perfected by filing or
possession under the UCC, and such security interest shall remain prior to all
other Liens, except for Permitted Liens; provided, however, that until the
Discharge of the First Lien Obligations has occurred, the requirements for
delivery under this paragraph shall be deemed to have been satisfied by delivery
of such Collateral to the First Lien Collateral Agent. No further filings,
recordings or other actions are or will be necessary to maintain the priority of
such security interest with respect to such Collateral other than the filing of
UCC continuation statements within six months prior to the expiration of a
period of five years after the original filing and any amendments that may be
required from time to time to maintain the validity and/or sufficiency of such
filing under the UCC. The Collateral and the Secured Party's rights with respect
to the Collateral are not subject to any setoff, claims, withholdings or other
defenses.
(g) No Further Actions. Except for the filings and agreements referred to
in paragraph (f) above, no consent, authorization, approval or other action by,
and no notice of filing with, any governmental authority or regulatory body or
other Person that has not been received, taken or made is required (i) for the
grant by each Grantor of the security interest granted hereby or for the
execution, delivery or performance of this Agreement by each Grantor, (ii) for
the perfection and maintenance of the security interest referred to in paragraph
(f) above (including the priority of such security interest) to the extent such
security interest may be perfected by such filings or possession referred to in
paragraph (f) above, or (iii) for the exercise by the Secured Party of the
rights or the remedies in respect of the Collateral pursuant to this Agreement.
(h) Accounts Receivable. Each Grantor shall keep or cause to be kept
separate records of accounts which are complete and accurate in all material
respects, and from time to time upon the request of the Secured Party, at
reasonable intervals and upon reasonable
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notice, shall deliver to the Secured Party a list of the names, addresses, face
value, and dates of invoices for each debtor obligated on an account receivable
(which records may be provided in an electronic format reasonably acceptable to
the Secured Party); provided, however, that except after the occurrence of an
Accelerated Redemption Event and during the continuation thereof, the Secured
Party shall not contact any Grantor's account debtors without five (5) Business
Days' written notice to such Grantor.
(i) Government Contracts. Each Grantor agrees that, at the request of the
Secured Party, it shall execute all such documents, and take all such actions,
as such Person shall reasonably determine to be necessary or appropriate from
time to time under the Federal Assignment of Claims Act of 1940, as amended, in
order to confirm and assure to Secured Party its rights under this Agreement
with respect to any and all Collateral consisting of such Grantor's rights to
monies due or to become due under any contracts or agreements with or orders
from the United States government or any agency or department thereof, the
assignment of which is not prohibited by such contract or agreement.
(j) Delivery of Certificated Security Collateral. Each Grantor represents
that, as of the Closing Date, all certificates evidencing any Security
Collateral to be delivered hereunder have been delivered to the Secured Party.
Each Grantor agrees that it shall forthwith deliver and pledge (i) until
Discharge of the First Lien Obligations has occurred, to the First Lien
Collateral Agent and (ii) thereafter, to the Secured Party, all certificates
representing securities which it shall acquire on or after the date hereof,
whether by purchase, stock dividend, distribution of capital or otherwise, along
with stock powers or other appropriate instruments of assignment with respect
thereto, duly executed in blank.
(k) Cooperation. Each Grantor agrees, after the occurrence of an
Accelerated Redemption Event, to take any actions that the Secured Party may
reasonably request in order to enable the Secured Party to obtain and enjoy the
full rights and benefits granted to them by the Equity Documents. Each Grantor
further consents, after the occurrence of an Accelerated Redemption Event, to
the transfer of control or assignment of all or any portion of the Collateral to
a receiver, trustee, transferee, or similar official or to any purchaser of the
Collateral pursuant to any public or private sale, judicial sale, foreclosure or
exercise of other remedies available to the Secured Party as permitted by the
Equity Documents, applicable law or otherwise, subject to the receipt of any
required Governmental Approvals.
(l) Access to Books and Records and the Collateral. Each Grantor shall
permit the Secured Party's representatives to have access to its books and
records and the Collateral from time to time (which shall be during regular
business hours provided that there is not then an Accelerated Redemption Event
and at any time if an Accelerated Redemption Event has occurred and is
continuing), as requested by such Person, for purposes of examination,
verification, inspection, and appraisal thereof and/or any other purpose
permitted by the Equity Documents. Except after the occurrence of an Accelerated
Redemption Event, the Secured Party shall give each Grantor at least one
Business Day's telephonic notice before exercising the rights granted in the
preceding sentence.
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(m) Intellectual Property. As to each Grantor's Intellectual Property:
(i) Grantor's Rights. The rights of each Grantor in or to any material
Intellectual Property Collateral do not conflict with, misappropriate or
infringe the intellectual property rights or any third party, and no claim
has been asserted that the use of such Intellectual Property Collateral
does or may infringe the intellectual property rights of any third party.
(ii) Ownership. Without limiting the generality of Section 6(b), each
Grantor is the exclusive owner of the entire and unencumbered right, title
and interest in and to any material Intellectual Property Collateral and is
entitled to use all such Intellectual Property Collateral without
limitation, subject only to the license terms of the Licenses.
(iii) Identification of Intellectual Property. Set forth on Schedule
III hereto is a complete and accurate list of all of the patents and patent
applications owned by each Grantor. Set forth on Schedule IV hereto is a
complete and accurate list of all of the trademark and service mark
registrations, all trademark and service mark applications and all other
material trademarks service marks, trade names and other indicia of origin
owned by each Grantor. Set forth on Schedule V hereto is a complete and
accurate list of all copyright registration, copyright applications and all
material common law copyrights and works of authorship owned by each
Grantor. Set forth on Schedule VI hereto is a complete and accurate list of
all internet domain names and all internet domain name registrations owned
by each Grantor. Each Grantor has made all necessary filings and
recordations to protect and maintain its interest in the patents, patent
applications, trademark and service mark recordations, material trademarks,
service marks, trade names and other indicia of origin, copyright
registrations and copyrights applications, material common law copyrights
and works of authorship, internet domain names, interest domain name
registrations and Licenses set forth on Schedules III, IV, V and VI hereto
(collectively, the "Scheduled Assets").
(iv) Validity of Intellectual Property Collateral. Each of the
Scheduled Assets (except for Licenses, which are addressed below) is
subsisting and has not be adjudged invalid, unregisterable or
unenforceable, in whole or in part, and is valid and enforceable. Each
License of each Grantor is, to the best of such Grantor's Knowledge,
subsisting and has not been adjudged invalid or unenforceable, in whole or
in part, and is, to the best of such Grantor's Knowledge, valid and
enforceable. Each Grantor is not aware of any uses of any item of
Intellectual Property Collateral which would be expected to lead to such
item becoming invalid or unenforceable, including unauthorized uses by
third parties and uses which were not supported by the goodwill of the
business connected with such Intellectual Property Collateral.
(v) Proper Notice. Each Grantor has used the applicable proper
statutory notice in connection with its use of the patents, registered
trademarks and service marks, and copyrights set forth on Schedules III,
IV, V and VI.
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(vi) No Outstanding Claims. No claim has been made, continuing or, to
Grantor's Knowledge, threatened to or by any Grantor, that any items of
Intellectual Property Collateral is invalid or unenforceable or that the
use by any Grantor of any Intellectual Property Collateral does or may
violate the rights of any Person. There is currently no infringement or
unauthorized use of any item of Intellectual Property Collateral. There is
currently no use of Intellectual Property Collateral that violates the
rights of any Person.
(vii) Quality Control. Each Grantor has taken all reasonable steps to
use consistent standards of quality in the manufacture, distribution and
sale of all products sold and the provision of all services provided under
or in connection with any of the Intellectual Property Collateral, and has
taken all commercially reasonable steps to ensure that all licensed users
of any of the Intellectual Property Collateral, use such consistent
standards of quality.
Section 7. Covenants and Further Assurances Regarding Intellectual
Property.
(a) Each Grantor agrees that it shall not (i) sell, assign (by operation of
law or otherwise), transfer or otherwise dispose of, or grant any option with
respect to, any of the Intellectual Property Collateral, or any portion thereof,
or any interest therein, except as expressly permitted by the Credit Agreement
and the Articles of Association of the Company, or (ii) create or suffer to
exist any Lien upon or with respect to any of the Intellectual Property
Collateral, except for the pledge, assignment and security interest created by
this Agreement and the Credit Documents and except for Liens expressly permitted
by the Credit Documents and the Articles of Association of the Company.
(b) Without limiting the generality of Section 7(a) above, each Grantor
will, upon the reasonable request of the Secured Party, with respect to the
Intellectual Property Collateral, execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be reasonably necessary, or as the Secured Party may reasonably
request, in order to perfect and preserve the pledge, assignment, Lien, priority
and security interest granted or purported to be granted hereby, including,
without limitation, one or more Trademark Collateral Security Agreements in
substantially the form attached hereto as Attachment A, one or more Patent
Collateral Security Agreements in substantially the form attached hereto as
Attachment B, one or more Copyright Security Agreements in substantially the
form attached hereto as Attachment C and any updates or amendments of any such
agreements.
(c) Each Grantor will furnish to the Secured Party from time to time
statements and schedules further identifying and describing the Intellectual
Property Collateral and such other reports in connection with the Intellectual
Property Collateral as the Secured Party may reasonably request, all in
reasonable detail.
(d) Each Grantor acknowledges and agrees that, if it obtains an ownership
interest in any patent, patent application, patentable invention, trademark,
service mark, trade name, trade dress, other indicia of trade origin, trademark
or service mark registration, trademark or service mark application, copyright,
copyright registration,
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copyright application, work of authorship, internet domain name, internet domain
name registration or any interest in a License or other intellectual property,
which is not now a part of the Intellectual Property Collateral (the "New IP
Collateral"), (i) the provisions of Section 2 will automatically apply thereto,
and (ii) any such New IP Collateral (together with the goodwill of the business
connected with the use of any trademark, service mark, trade name, trade dress,
other indicia of trade origin and symbolized by same that is included in the New
IP Collateral) will automatically become part of the Intellectual Property
Collateral; provided, however, that to the extent the consent of any other party
to any such License is required, under the terms thereof, for the collateral
assignment thereof, then this Agreement shall not affect any collateral
assignment of (or otherwise be applied so as to cause a default under) such
License for so long as (but only for so long as) such consent would be required
and has not been obtained. Each Grantor authorizes the Secured Party to modify
this Agreement by amending Schedules III, IV, V and VI hereto (and shall
cooperate with the Secured Party in effecting any such amendment) to include any
patent, patent application, trademark or service mark registration, trademark or
service mark application, material trademark, service mark, trade name and other
indicia of origin, copyright registration and copyright application, material
common law copyright and work of authorship, internet domain name, internet
domain name registration, License or other New IP Collateral which becomes part
of the Intellectual Property Collateral.
(e) With respect to each material patent, patent application, trademark or
service mark registration, trademark or service mark application, copyright
registration or copyright application, internet domain name or internet domain
name registration set forth in Schedule III, IV, V or VI hereto (as amended from
time to time), each Grantor agrees, upon the request of the Secured Party, to
take all reasonably necessary steps, including, without limitation, in the
United States Patent and Trademark Office and the United States Copyright Office
or in any court, to (i) maintain each such patent, trademark or service mark
registration, copyright registration, internet domain name registration and (ii)
pursue each such patent application, trademark or service mark application and
copyright application now or hereafter included in the Intellectual Property
Collateral, including, without limitation, the filing of responses to office
actions issued by the United States Patent and Trademark Office, the filing of
affidavits under Sections 8 and 15 of the United States Trademark Act, the
filing of divisional, continuation, continuation-in-part and substitute
applications, the filing of applications for re-issue, renewal or extensions,
the payment of maintenance fees, and the participation in interference,
reexamination, opposition, cancellation, infringement and misappropriation
proceedings. Each Grantor agrees, upon the request of the Secured Party, to take
corresponding steps with respect to each new or acquired material patent, patent
application, trademark or service mark registration, trademark or service mark
application, material trademark, service mark, trade name and other indicia of
origin, copyright registration and copyright application, material common law
copyright, work of authorship, internet domain name and internet domain name
registration, to which it is now or later becomes entitled. Any and all expenses
incurred in connection with such activities will be borne by each Grantor. Each
Grantor shall not discontinue use of or otherwise abandon any patent, patent
application, trademark or service mark registration, material trademark, service
mark, trade name and other indicia of origin, copyright registration and
copyright application, material common law
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copyright, work of authorship, internet domain name and interest domain name
registration now or hereafter included in the Intellectual Property Collateral,
unless such Grantor shall have first (i) determined in its sound and reasonable
business judgment that such use or pursuit or maintenance of same is no longer
desirable in the conduct of such Grantor's business and that such Intellectual
Property Collateral is not material to such Grantor's business, (ii) provided
the Secured Party written notice of its intent to abandon or discontinue, and
(iii) obtained the express prior written consent of the Secured Party.
(f) Each Grantor agrees to notify the Secured Party promptly and in writing
if it learns (i) that any item of material Intellectual Property Collateral has
been determined to have become abandoned or dedicated to the public, (ii) of the
institution of any proceeding by or against such Grantor (including, without
limitation, the institution of any proceeding in the United States Patent and
Trademark Office, the Copyright Office or any court) regarding any infringement
or unauthorized use of (or similar claim with respect to) an item of material
Intellectual Property Collateral, or (iii) of any adverse determination in any
such proceeding.
(g) In the event that any item of material Intellectual Property Collateral
is infringed or misappropriated by a third party, each Grantor shall promptly
notify the Secured Party and will take such actions as such Grantor or,
following the occurrence and during the continuance of an Accelerated Redemption
Event, the Secured Party deems reasonable and appropriate under the
circumstances to protect such Intellectual Property Collateral, including,
without limitation, suing for infringement or misappropriation and for an
injunction against such infringement or misappropriation. Any expense incurred
in connection with such activities will be borne by each Grantor.
(h) Each Grantor shall use the applicable proper statutory notice in
connection with its use of each of its patents, registered trademarks and
service marks, copyrights and internet domain names contained in Schedule III,
IV, V or VI.
Section 8. Securities as Collateral.
(a) Upon the occurrence and during the continuance of an Accelerated
Redemption Event, the Secured Party may at any time, at its option, transfer to
itself or any nominee any securities constituting Collateral, receive any income
thereon and hold such income as additional Collateral or apply it to the
Obligations, subject to the Credit Documents until Discharge of the First Lien
Obligations has occurred. If the Secured Party so elects to exercise its right
herein and gives notice of such election to the Grantors, upon the occurrence
and during the continuance of an Accelerated Redemption Event to the extent
permitted under applicable law, the Secured Party may vote any or all of the
securities constituting Collateral possessing voting rights (whether or not the
same shall have been transferred into its name or the name of its nominee or
nominees) and give all consents, waivers and ratifications in respect of the
securities constituting Collateral and otherwise act with respect thereto as
though it were the outright owner thereof, the Grantors hereby constituting and
appointing the Secured Party the proxy and attorney-in-fact of the Grantors,
with full power of substitution, to do so. This power of attorney is coupled
with an interest and may not be revoked by the Grantors while any
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Obligations are owing to the Secured Party. So long as no Accelerated Redemption
Event is continuing, the Grantors shall be entitled to receive all cash
dividends paid in respect of the securities of which any Grantor is the
registered owner, to vote such securities and to give consents, waivers and
ratifications in respect of such securities, provided that no vote shall be
cast, or consent, waiver or ratification given or action taken which would be
inconsistent with or violate any provisions of any of the Credit Documents or
this Agreement.
(b) Any sums paid upon or with respect to any of the securities
constituting Collateral upon the liquidation or dissolution of the issuer
thereof shall be paid over to the Secured Party to be held by it as security for
the Obligations; and in case any distribution of capital shall be made on or in
respect of any of the securities or any property shall be distributed upon or
with respect to any of the securities pursuant to the recapitalization or
reclassification of the capital of the issuer thereof or pursuant to the
reorganization thereof, the property so distributed shall be delivered to the
Secured Party to be held by it as security for the Obligations. All sums of
money and property paid or distributed in respect of the securities upon such a
liquidation, dissolution, recapitalization or reclassification which are
received by the Grantors shall, until paid or delivered to the Secured Party, be
held in trust for the Secured Party as security for the Obligations.
Section 9. Power of Attorney.
(a) Each Grantor acknowledges the Secured Party's right, to the extent
permitted by applicable law, singly to execute and/or file financing or
continuation statements and similar notices required by applicable law, and
amendments thereto, concerning the Collateral without execution by such Grantor.
A copy of this Agreement or any financing statement covering the Collateral or
any part thereof shall be sufficient as a financing statement where permitted by
law.
(b) Each Grantor hereby irrevocably appoints the Secured Party as such
Grantor's attorney-in-fact, effective at all times subsequent to the occurrence
of an Accelerated Redemption Event, and during the continuance thereof, with
full authority in the place and stead of such Grantor and in the name of such
Grantor or otherwise, to take any action and to execute any instrument which the
Secured Party may deem necessary or advisable to accomplish the purpose of this
Agreement, including, without limitation, the power and right (i) to endorse
such Grantor's name on any checks, notes, acceptances, money orders, drafts,
filings or other forms of payment or security of such Grantor that may come into
the Secured Party's possession, and (ii) to do all other things which the
Secured Party then determines to be necessary to carry out the terms of this
Agreement; provided, however, the Secured Party acknowledges that applicable law
does not permit the grantee of a power of attorney to execute any application,
report, document or other instrument to be filed with the Federal Communications
Commission on behalf of and in place of the party granting such power of
attorney, except in the case of the grantor's absence from the United States, or
in the case of grantor's physical disability. Each Grantor ratifies and approves
all acts of such attorney-in-fact. The power conferred on the Secured Party
hereunder is solely to protect the Secured Party's interests in the Collateral
and shall not impose any duty upon the Secured Party to exercise such power.
This power
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of attorney is coupled with an interest and may not be revoked by each Grantor
while any Obligations are owing to the Secured Party.
Section 10. Special Provisions Relating to Certain Collateral.
(a) Intellectual Property. For the purpose of enabling the Secured Party to
exercise rights and remedies under Section 11 of this Agreement at such time as
the Secured Party shall be lawfully entitled to exercise such rights and
remedies, and for no other purpose, each Grantor hereby grants to the Secured
Party, to the extent assignable, an irrevocable, non-exclusive license
(exercisable without payment of royalty or other compensation to such Grantor)
to use, assign, license or sublicense any of the Intellectual Property now owned
or hereafter acquired by such Grantor, wherever the same may be located,
including in such license reasonable access to all media in which any of the
licensed items may be recorded or stored and to all computer programs used for
the compilation or printout thereof.
(b) Accounts Receivable. Until the Secured Party elects (which election may
be made after the occurrence of an Accelerated Redemption Event and during the
continuation thereof) that debtors on accounts receivable of each Grantor or
obligors on accounts, chattel paper or general intangibles of such Grantor or
obligors on instruments for which such Grantor is an obligee or lessees or
conditional vendees under agreements governing the leasing or selling by
conditional sale of Collateral by such Grantor, be notified of the Secured
Party's security interest, each Grantor shall continue to collect payment
thereof. Upon the making of such an election by the Secured Party, each Grantor
shall hold the proceeds received from collection as trustee for the Secured
Party and shall turn the same over to the Secured Party, or to such other bank
or Person as may be approved by the Secured Party, immediately upon receipt in
the identical form received. At the election of the Secured Party, after the
occurrence of an Accelerated Redemption Event and during the continuance
thereof, each Grantor shall so notify such account debtors and obligors that
payment thereof is to be made directly to the Secured Party, and the Secured
Party may itself, at any time after the occurrence of an Accelerated Redemption
Event and during the continuance thereof, without notice to or demand upon such
Grantor, so notify such account debtors and obligors. The making of such an
election or the giving of any such notification shall not affect the duties of
each Grantor described above with respect to proceeds of collection of accounts
receivable received by such Grantor. The Secured Party shall apply the proceeds
of such collection received by the Secured Party to the Obligations in
accordance with Section 5 of this Agreement. The application of the proceeds of
such collection shall be conditional upon final payment in cash or solvent
credits of the items giving rise to them. If any item is not so paid, the
Secured Party in its discretion, whether or not the item is returned, may either
reverse any credit given for the item or charge it to any deposit account
maintained by each Grantor with the Secured Party.
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Section 11. Events of Default; Remedies.
(a) Upon the occurrence of an Accelerated Redemption Event and during the
continuation thereof, whether or not the Obligations are due, the Secured Party
may demand, sue for, collect, or make any settlement or compromise it deems
desirable with respect to the Collateral.
(b) An "Accelerated Redemption Event" hereunder shall mean an Accelerated
Redemption Event as such term is defined in the Articles of Association of the
Company.
(c) Upon the occurrence and during the continuance of an Accelerated
Redemption Event, to the fullest extent permitted by applicable law, in addition
to the remedies set forth elsewhere in this Agreement:
(i) The Secured Party shall have, in addition to all other rights and
remedies given it by any instrument or other agreement evidencing, or
executed and delivered in connection with, any of the Obligations and
otherwise allowed by law, the rights and remedies of a secured party under
the Uniform Commercial Code as enacted in any jurisdiction in which the
Collateral may be located and without limiting the generality of the
foregoing, the Secured Party may immediately, without (to the fullest
extent permitted by law) demand of performance or advertisement or notice
of intention to sell or of time or place of sale or of redemption or other
notice or demand whatsoever (except that the Secured Party shall give to
each Grantor at least ten days' notice of the time and place of any
proposed sale or other disposition), all of which are hereby expressly
waived to the fullest extent permitted by law, sell at public or private
sale or otherwise realize upon, the whole or from time to time any part of
the Collateral in or upon which the Secured Party shall have a security
interest or Lien hereunder, or any interest which each Grantor may have
therein, and after deducting from the proceeds of sale or other disposition
of the Collateral all expenses (including all reasonable expenses for legal
services) as provided in Section 15 hereof, shall apply the residue of such
proceeds toward the payment of the Obligations in accordance with Section 5
of this Agreement, each Grantor remaining liable for any deficiency
remaining unpaid after such application. If notice of any sale or other
disposition is required by law to be given to each Grantor, then each
Grantor, the Secured Party hereby agree that a notice given as hereinbefore
provided shall be reasonable notice of such sale or other disposition. Each
Grantor also agrees to assemble the Collateral at such place or places as
the Secured Party reasonably designates by written notice. At any such sale
or other disposition the Secured Party may itself, and any other person or
entity owed any Obligation may itself, to the extent permitted by
applicable law, purchase the whole or any part of the Collateral sold, free
from any right of redemption on the part of each Grantor, which right is
hereby waived and released to the fullest extent permitted by law.
(ii) Furthermore, without limiting the generality of any of the rights
and remedies conferred upon the Secured Party under Section 11(c)(i)
hereof, the Secured Party to the fullest extent permitted by law, may enter
upon the premises of
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each Grantor, exclude each Grantor or any guarantor therefrom and take
immediate possession of the Collateral, either personally or by means of a
receiver appointed by a court therefor, and may, at its option, use,
operate, manage and control the Collateral in any lawful manner and may
collect and receive all rents, income, revenue, earnings, issues and
profits therefrom, and may maintain, repair, renovate, alter or remove the
Collateral as the Secured Party may determine in its discretion, and any
such monies so collected or received by such Person shall be remitted to
the Secured Party and shall be applied to, or may be accumulated for
application upon, the Obligations in accordance with Section 5 of this
Agreement.
(iii) The Secured Party agrees that such Person will give notice to
each Grantor of any enforcement action taken by it pursuant to this Section
11 promptly after commencing such action.
(iv) Each Grantor recognizes that the Secured Party may be unable to
effect a public sale of securities constituting Collateral by reason of
certain prohibitions contained in the Securities Act and may be compelled
to resort to one or more private sales thereof to a restricted group of
purchasers consistent with all applicable laws. Each Grantor agrees that
any such private sales may be at prices and other terms less favorable to
each Grantor than if sold at public sales and that such private sales shall
not solely by reason thereof be deemed not to have been made in a
commercially reasonable manner. The Secured Party shall not be under any
obligation to delay a sale of any of the securities for the period of time
necessary to permit the issuer of such securities to register such
securities for public sale under the Securities Act of 1933, as amended,
even if the issuer would agree to do so.
(d) For the purposes of enabling the Secured Party to exercise rights and
remedies under this Section 11, at such time as the Secured Party shall be
lawfully entitled to exercise such rights and remedies, and for no other
purpose, each Grantor hereby grants to the Secured Party, to the extent
assignable, an irrevocable, non-exclusive license (exercisable without payment
of royalty or other compensation to the Grantors) to use, assign, license or
sublicense any of the Intellectual Property now owned or hereafter acquired by
the Grantors, wherever the same may be located, including in such license
reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer programs used for the compilation or
printout thereof.
Section 12. Marshalling. The Secured Party shall not be required to marshal
any present or future security for (including but not limited to this Agreement
and the Collateral subject to the security interest created hereby), or
guarantees of, the Obligations or any of them, or to resort to such security or
guarantees in any particular order; and all of its rights hereunder and in
respect of such securities and guaranties shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, each Grantor hereby agrees that it will not invoke any law relating to the
marshalling of Collateral which might cause delay in or impede the enforcement
of the Secured Party's rights under this Agreement or under any other instrument
evidencing any of the Obligations or under which any of the Obligations is
outstanding or by which any of the
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Obligations is secured or guaranteed, and to the extent that it lawfully may do
so each Grantor hereby irrevocably waives the benefits of all such laws. Except
as otherwise provided by applicable law, the Secured Party shall have no duty as
to the collection or protection of the Collateral or any income thereon, nor as
to the preservation of rights against prior parties, nor as to the preservation
of any rights pertaining thereto beyond the sole custody thereof.
Section 13. Security Interest Absolute. To the extent permitted by
applicable law, the obligations of each Grantor under this Security Agreement
shall remain in full force and effect without regard to, and shall not be
impaired by (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of such Grantor, to the
extent permitted by law; (b) any exercise or nonexercise, or any waiver, by the
Secured Party of any right, remedy, power or privilege under or in respect of
any of the Obligations or any security therefor (including this Agreement); (c)
any amendment to or modification of any instrument evidencing any of the
Obligations or pursuant to which any of them were issued; (d) any amendment to
or modification of any instrument or agreement (other than this Agreement)
securing any of the Obligations; or (e) the taking of additional security for or
any guaranty of any of the Obligations or the release or discharge or
termination of any security or guaranty for any of the Obligations; and whether
or not such Grantor shall have notice or knowledge of any of the foregoing.
Section 14. No Waiver. No failure on the part of the Secured Party to
exercise, and no delay in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise by such
Person of any right, remedy or power hereunder preclude any other or future
exercise of any other right, remedy or power. Each and every right, remedy and
power hereby granted to the Secured Party or the future holders of any of the
Obligations or allowed to any of them by law or other agreement, including,
without limitation, each of the Equity Documents, shall be cumulative and not
exclusive of any other, and, subject to the provisions of this Agreement, may be
exercised by the Secured Party or the future holders of any of the Obligations
from time to time.
Section 15. Expenses. Each Grantor agrees to pay, on demand, all reasonable
costs and expenses (including reasonable attorneys' fees and expenses for legal
services of every kind) of the Secured Party incidental to the sale of, or
realization upon, any of the Collateral or in any way relating to the
perfection, enforcement or protection of the rights of such Person hereunder;
and the Secured Party may at any time apply to the payment of all such costs and
expenses all monies of each Grantor or other proceeds arising from its
possession or disposition of all or any portion of the Collateral.
Section 16. Consents, Amendments and Waivers. Any term of this Agreement
may be amended, and the performance or observance by each Grantor of any term of
this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) only with the prior written consent of
the Secured Party.
Section 17. Secured Party's Duties. The powers conferred on the Secured
Party hereunder are solely to protect the Secured Party's interest in the
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the safe custody of any
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Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Secured Party shall have no duty as to any Collateral, as to
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
Secured Party has or is deemed to have knowledge of such matters, or as to the
taking of any necessary steps to preserve rights against any parties or any
other rights pertaining to any Collateral. The Secured Party shall be deemed to
have exercised reasonable care in the custody and preservation of any Collateral
in its possession if such Collateral is accorded treatment substantially equal
to that which it accords its own property.
Section 18. Indemnity and Expenses. Each Grantor agrees to indemnify,
defend and save and hold harmless the Secured Party and each of its Affiliates
and their respective officers, directors, employees, agents, attorneys and
advisors (each, an "Indemnified Party") from and against, and shall pay on
demand, any and all claims, damages, losses, liabilities and expenses that may
be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or resulting from this Agreement
and/or any other Equity Document (including, without limitation, enforcement of
this Agreement and/or any other Equity Document), except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's negligence or willful misconduct.
Section 19. Governing Law. This Agreement and all claims, disputes and
matters arising hereunder or related hereto shall be governed by and construed
under the laws of the State of New York without reference to conflict of laws
provisions. The parties acknowledge the exclusive jurisdiction of the state and
federal courts located within the County of New York, State of New York over
controversies arising from or relating to this Agreement.
Section 20. Parties in Interest. All terms of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided that each Grantor may not
assign or transfer its rights hereunder without the prior written consent of the
Secured Party. Any assignment or transfer by each Grantor of its rights
hereunder in violation of this Agreement shall be void ab initio.
Section 21. Counterparts. This Agreement and any amendment hereof may be
executed in any number of counterparts and by each party on a separate
counterpart, which when so executed and delivered shall be an original, but all
of which together shall constitute one instrument. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of an original executed counterpart of this Agreement.
Section 22. Continuing Security Interest; Assignments. This Agreement shall
create a continuing security interest in the Collateral and shall (i) remain in
full force and effect until the payment in full of all Obligations and the
cancellation or termination of the Commitments, (ii) be binding upon each
Grantor, its successors and assigns and (iii) inure,
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together with the rights and remedies of the Secured Party hereunder, to the
benefit of the Secured Party and its respective successors, transferees and
assigns. Without limiting the generality of the foregoing sentence, but subject
to the terms of the Credit Agreement and the Articles of Association of the
Company, the Secured Party may assign or otherwise transfer all or any portion
of its rights and obligations under the Share Purchase Agreement (including,
without limitation, all or any portion of its Shares).
Section 23. Release; Termination.
(a) Upon any sale, lease, transfer or other disposition of any item of
Collateral of any Grantor to any person other than another Grantor in a
transaction which is permitted by the terms of the Credit Agreement and the
Articles of Association of the Company, such Collateral will be sold, leased,
transferred or otherwise disposed of free and clear of the Liens created hereby,
and the Secured Party will, at such Grantor's expense, execute and deliver to
such Grantor such documents as such Grantor shall reasonably request to evidence
the release of such item of Collateral from the assignment and security interest
granted hereby.
(b) Upon payment in full of the Obligations in accordance with their terms,
this Agreement and the Liens and security interests created hereunder shall
automatically terminate and the Secured Party shall return to each Grantor, at
the expense of such Grantor, such Collateral in the possession or control of the
Secured Party as has not theretofore been disposed of pursuant to the provisions
hereof and shall deliver to such Grantor documents in recordable form (which
documents shall be prepared by, and the expense thereof to be borne by, such
Grantor) sufficient to discharge the Liens and security interests granted
hereunder.
Section 24. Further Assurances. Each Grantor agrees that from time to time,
at the expense of such Grantor, that it shall promptly execute and deliver all
further instruments and documents (including, without limitation, financing
statements, supplemental security agreements, notices of assignment under the
United States Assignment of Claims Act and under similar or local statutes and
regulations), and take all further action, that may be necessary or desirable,
or that the Secured Party may reasonably request, in order to create and/or
maintain the validity, perfection or priority of and protect any security
interest granted hereby or to enable the Secured Party to exercise and enforce
its rights and remedies hereunder with respect to any Collateral. In furtherance
of the foregoing, each Grantor hereby authorizes the Secured Party to file
financing or continuation statements, and amendments thereto, in any
jurisdictions and with any filing offices as the Secured Party may determine, in
its sole discretion, are necessary or advisable to perfect the security interest
granted to the Secured Party 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 Secured Party 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 Secured Party 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 Secured Party from time
to time statements and schedules further identifying and
22
<PAGE>
describing the Collateral and such other reports in connection with the
Collateral as the Secured Party may reasonably request, all in reasonable
detail.
Section 25. Notices. Except as otherwise expressly provided herein, all
notices and other communications made or required to be given pursuant to this
Agreement shall be made in accordance with the provisions of Section 9(e) of the
Share Purchase Agreement.
Section 26. Submission to Jurisdiction. Each of the parties hereto hereby
(a) agrees that any Action with respect to any Equity Document may be brought
only in the New York State courts sitting in New York County or the federal
courts of the United States of America for the Southern District of New York and
sitting in New York County, (b) accepts for itself and in respect of its
property, generally and unconditionally, the exclusive jurisdiction of such
courts, (c) irrevocably waives any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the bringing of any Action in
those jurisdictions, and (d) irrevocably consents to the service of process of
any of the courts referred to above in any Action by the mailing of copies of
the process to the parties hereto as provided in Section 9(f) of the Share
Purchase Agreement. Service effected as provided in this manner will become
effective ten (10) calendar days after the mailing of the process.
Section 27. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto will negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
Section 28. Integration; Conflict. This Agreement and the other Equity
Documents contain and constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior negotiations,
agreements and understandings, whether written or oral, of such parties. In the
event that there is a conflict between any provision of this Agreement and the
Articles of Association of the Company, then the provisions of the Articles of
Association of the Company shall control.
23
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed by its authorized representatives as of the date first above written.
GRANTORS:
XINHUA FINANCE MEDIA LIMITED
By: /s/ John McLean
------------------------------------
Name: John McLean
Title: Authorized signatory
MING SHING INTERNATIONAL LIMITED
By: /s/ John McLean
------------------------------------
Name: John McLean
Title: Authorized signatory
UPPER WILL ENTERPRISES LIMITED
By: /s/ John McLean
------------------------------------
Name: John McLean
Title: Authorized signatory
ACTIVE ADVERTISING AGENCY LIMITED
By: /s/ John McLean
------------------------------------
Name: John McLean
Title: Authorized signatory
[Signatures continue on next page]
Paperdolls - Equity Security Agreement S-1
<PAGE>
SECURED PARTY:
PATRIARCH PARTNERS MEDIA HOLDINGS, LLC
By: /s/
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Paperdolls - Equity Security Agreement S-2
<PAGE>
EXHIBIT A
TO
SECURITY AGREEMENT
FORM OF UCC-1
[Form of UCC Financing Statement]
<PAGE>
EXHIBIT B
TO
SECURITY AGREEMENT
Form of Joinder to Security Agreement
The undersigned, _____________, a ___________________, hereby joins in the
execution of that certain Security Agreement dated as of [____________], 2005
(as amended, restated, supplemented or otherwise modified, the "Security
Agreement") issued and executed by each Person that is or becomes a Grantor
thereunder on and/or after the date and pursuant to the terms thereof to and in
favor of Secured Parties thereunder. By executing this Joinder, the undersigned
hereby agrees that it is a Grantor thereunder with the same force and effect as
if originally named therein as a Grantor. The undersigned hereby grant to the
Secured Party a security interest in all of the undersigned's right, title and
interest in and to all Collateral to secure the Obligations, in each case
whether now or hereafter existing or in which the undersigned now has or
hereafter acquires an interest and wherever the same may be located. The
undersigned agrees to be bound by all of the terms and provisions of the
Security Agreement and represents and warrants that the representations and
warranties set forth in Section 5 of the Security Agreement are, with respect to
the undersigned, true, complete and correct as of the date hereof. Each
reference to a Grantor in the Security Agreement shall be deemed to include the
undersigned. Capitalized terms used but not defined herein shall have the
meanings set forth in the Security Agreement. The undersigned represents and
warrants that the attached supplements to the Schedules to the Security
Agreement accurately and completely sets forth all additional information
required pursuant to the Security Agreement and hereby agrees that such
supplements shall constitute part of the Schedules to the Security Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder this ___ day
of _________, 200_.
[Name of Grantor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
-------------------------------
<PAGE>
ATTACHMENT A
TRADEMARK COLLATERAL SECURITY AGREEMENT
THIS TRADEMARK COLLATERAL SECURITY AGREEMENT (this "Assignment"), is made
by and between [GRANTOR], a [________________] corporation ("Grantor"), and
PATRIARCH PARTNERS MEDIA HOLDINGS, LLC, a Delaware limited liability company
(the "Secured Party").
WHEREAS, Grantor has adopted, used and is using, and is the sole owner of
the marks set forth on Schedule 1 hereof (collectively, the "Marks");
WHEREAS, under the terms of, and as a condition precedent to the
effectiveness of, that certain Share Purchase Agreement, dated as of [__], 2006,
between Xinhua Finance Media Limited and Secured Party (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Share
Purchase Agreement"), the Grantor entered into the Security Agreement dated as
of even date therewith (the "Security Agreement");
WHEREAS, to secure the due and prompt payment and performance of the
Obligations (as defined in the Security Agreement), Grantor pledged, assigned,
hypothecated and transferred, and granted to the Secured Party a continuing
security interest in all of the Grantor's right, title and interest in certain
collateral, including the Marks; and
WHEREAS, it is the purpose of this document to memorialize the
aforementioned security interest in a form suitable for recordation in the
United States Patent and Trademark Office;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, effective as of the date of the
Share Purchase Agreement set forth above, to secure the due and prompt payment
and performance of the Obligations, Grantor hereby pledges, assigns,
hypothecates and transfers, and grants to the Secured Party a continuing
security interest and lien in and to the Marks and all registrations and
applications for registrations of the
<PAGE>
Marks, including the registrations and applications identified on Schedule 1,
together with the goodwill of the business symbolized by the Marks and together
with all of Grantor's right to sue and recover for infringement of the Marks,
free and clear of all liens, claims, charges, security interests, and other
interests or encumbrances.
IN WITNESS WHEREOF, this Assignment has been duly executed, sealed and
delivered by an authorized officer of the Grantor.
[GRANTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
<PAGE>
ATTACHMENT B
FORM OF
PATENT COLLATERAL SECURITY AGREEMENT
THIS PATENT COLLATERAL SECURITY AGREEMENT (this "Assignment"), is made by
and between [GRANTOR]., a [_________________] ("Grantor"), and PATRIARCH
PARTNERS MEDIA HOLDINGS, LLC, a Delaware limited liability company (the "Secured
Party").
WHEREAS, Grantor has adopted, used and is using, and is the sole owner of
the patents set forth on Schedule 1 hereof (collectively, the "Patents");
WHEREAS, under the terms of, and as a condition precedent to the
effectiveness of, that certain Share Purchase Agreement, dated as of [__], 2006,
between Xinhua Finance Media Limited and Secured Party (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Share
Purchase Agreement"), the Grantor entered into the Security Agreement dated as
of even date therewith (the "Security Agreement");
WHEREAS, to secure the due and prompt payment and performance of the
Obligations (as defined in the Security Agreement), Grantor pledged, assigned,
hypothecated and transferred, and granted to the Secured Party a continuing
security interest in all of the Grantor's right, title and interest in certain
collateral, including the Patents; and
WHEREAS, it is the purpose of this document to memorialize the
aforementioned security interest in a form suitable for recordation in the
United States Patent and Trademark Office;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, effective as of the date of the
Share Purchase Agreement set forth above, to secure the due and prompt payment
and performance of the Obligations, Grantor hereby pledges, assigns,
hypothecates and transfers, and grants to the Secured Party a continuing
security
<PAGE>
interest and lien in and to the Patents and all registrations and applications
for registrations of the Patents, including the registrations and applications
identified on Schedule 1, together with all reissues, divisions, continuations,
continuations-in-part, substitutes, renewals and extensions thereof and together
with all of Grantor's right to sue and recover for infringement of the Patents,
free and clear of all liens, claims, charges, security interests, and other
interests or encumbrances.
IN WITNESS WHEREOF, this Assignment has been duly executed, sealed and
delivered by an authorized officer of the Grantor.
[GRANTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
<PAGE>
ATTACHMENT C
FORM OF COPYRIGHT COLLATERAL SECURITY AGREEMENT
THIS COPYRIGHT COLLATERAL SECURITY AGREEMENT (this Assignment"), is made by
and between [GRANTOR], A [_______________] ("Grantor"), and PATRIARCH PARTNERS
MEDIA HOLDINGS, LLC, a Delaware limited liability company (the "Secured Party").
WHEREAS, Grantor is the sole owner of the works of authorship and copyright
registrations identified on Schedule 1 hereof (the "Copyrights");
WHEREAS, under the terms of, and as a condition precedent to the
effectiveness of, that certain Credit Agreement, dated as of [__], 2006, among
Xinhua Finance Media Limited, as borrower, and the lenders from time to time
party thereto (collectively, the "Lenders") and Agent (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), the Grantor entered into the Security Agreement dated as of even
date therewith (the "Security Agreement");
WHEREAS, to secure the due and prompt payment and performance of the
Obligations (as defined in the Security Agreement), Grantor pledged, assigned,
hypothecated and transferred, and granted to the Agent, for itself and for the
benefit of the Lenders, a continuing security interest in all of the Grantor's
right, title and interest in certain collateral, including the Copyrights; and
WHEREAS, it is the purpose of this document to memorialize the
aforementioned security interest in a form suitable for recordation in the
United States Copyright Office;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, effective as of the date of the
Credit Agreement set forth above, to secure the due and prompt payment and
performance of the Obligations, Grantor hereby pledges, assigns, hypothecates
and transfers, and grants to the Agent, for itself and for the benefit of the
Lenders, a continuing security interest and lien in and to the Copyrights,
together with all of
<PAGE>
Grantor's right to sue and recover for infringement of the Copyrights, free and
clear of all liens, claims, charges, security interests, and other interests or
encumbrances.
IN WITNESS WHEREOF, this Assignment has been duly executed, sealed and
delivered by an authorized officer of the Grantor.
[GRANTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
<PAGE>
Schedule I
Pledged Equity
ISSUED
AUTHORISED SHARE CAPITAL/ SHARE
PLEDGOR PLEDGED SHARES REGISTERED CAPITAL CAPITAL
------- -------------- ------------------------- --------
Xinhua Finance 1,000 shares of US$1.00 US$50,000 divided into 50,000 shares US$1,000
Media Limited each in Ming Shing of US$1.00 par value
International Limited
95 shares of US$1.00 each US$50,000 divided into 50,000 shares US$500
in Upper Step Holdings of US$1.00 par value
Limited
19 shares of US$1.00 each US$50,000 divided into 50,000 shares US$100
in Accord Group of US$1.00 par value
Investments Limited
210,000 shares of HK$0.01 HK$10,000 divided into 10,000,000 HK$3,500
each in EconWorld Media shares of HK$0.01 each
Limited
Ming Shing 2 shares of US$1.00 each US$50,000 divided into 50,000 shares US$2
International Limited in Upper Will Enterprises of US$1.00 par value
Limited
Upper Will 2 shares of HK$1.00 each HK$10,000 divided into 10,000 shares HK$2
Enterprises Limited in Active Advertising of HK$1.00 each
Agency Limited
<PAGE>
Schedule II
Pledged Debt
None.
<PAGE>
Schedule III
Patents
None.
<PAGE>
Schedule IV
Trademarks
None.
<PAGE>
Schedule V
Copyrights
None.
<PAGE>
Schedule VI
Domain Names
None.
<PAGE>
Schedule VIII
Commercial Tort Claims
None.
<PAGE>
Schedule X
Licenses