EXHIBIT 10.46
COLLATERAL ASSIGNMENT AGREEMENT
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THIS COLLATERAL ASSIGNMENT AGREEMENT (this "Agreement") dated as of
August 15, 1995, between PACIFIC PAY VIDEO LIMITED, a corporation organized
under the laws of the State of California, as assignor (the "Assignor"), and THE
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CHASE MANHATTAN BANK, N.A., as collateral agent (the "Assignee") for the benefit
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of the Noteholders. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings provided in the Note Agreement, as defined below.
W I T N E S S E T H :
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WHEREAS, MagiNet Corporation (the "Company") has entered into the Note
Agreement dated as of August 15, 1995 with certain U.S. financial institutions,
providing for the issuance and sale of up to $30,000,000 aggregate principal
amount of its 10.5% Senior Secured Notes and the issuance of warrants (the "Note
Agreement");
WHEREAS, the Company, the Assignee and the Purchasers have entered
into the Appointment Agreement dated as of August 15, 1995 (the "Appointment
Agreement") providing for the appointment of The Chase Manhattan Bank, N.A. to
act as collateral agent for the benefit of the Noteholders under the Security
Documents (including this Agreement);
WHEREAS, it is a condition precedent under the Note Agreement to each
Purchaser's obligation to purchase and pay for the Notes and to accept the
Warrants to be issued under the Note Agreement that the Assignor shall have
executed and delivered to the Assignee this Agreement;
WHEREAS, the Assignor desires to execute this Agreement to satisfy the
conditions described in the preceding paragraphs and to induce the Purchasers to
enter into the Note Agreement and to purchase and pay for the Notes and the
Warrants (and to induce any future Noteholders so to do);
NOW, THEREFORE, in consideration of the benefits accruing to the
Assignor and the Company, the receipt and sufficiency of which are hereby
acknowledged, the Assignor hereby makes the following representations and
warranties to the Assignee and hereby covenants and agrees with the Assignee as
follows:
1. Grant of Security Interest. Assignor hereby grants to Assignee a
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security interest in the contract and related items described in Paragraph 2
below (the "Collateral") for the benefit of the Assignee as collateral trustee
for the Noteholders to secure (i) the payment due of the principal of and
interest in respect of the Notes and payment of all other obligations and
liabilities
EXHIBIT E
TO NOTE AGREEMENT
Collateral Assignment Agreement
also appears as Exhibit 10.46
to this Registration Statement
COLLATERAL ASSIGNMENT AGREEMENT
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THIS COLLATERAL ASSIGNMENT AGREEMENT (this "Agreement") dated as of
August 15, 1995, between PACIFIC PAY VIDEO LIMITED, a corporation organized
under the laws of the State of California, as assignor (the "Assignor"), and THE
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CHASE MANHATTAN BANK, N.A., as collateral agent (the "Assignee") for the benefit
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of the Noteholders. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings provided in the Note Agreement, as defined below.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, MagiNet Corporation (the "Company") has entered into the Note
Agreement dated as of August 15, 1995 with certain U.S. financial institutions,
providing for the issuance and sale of up to $30,000,000 aggregate principal
amount of its 10.5% Senior Secured Notes and the issuance of warrants (the "Note
Agreement");
WHEREAS, the Company, the Assignee and the Purchasers have entered
into the Appointment Agreement dated as of August 15, 1995 (the "Appointment
Agreement") providing for the appointment of The Chase Manhattan Bank, N.A. to
act as collateral agent for the benefit of the Noteholders under the Security
Documents (including this Agreement);
WHEREAS, it is a condition precedent under the Note Agreement to each
Purchaser's obligation to purchase and pay for the Notes and to accept the
Warrants to be issued under the Note Agreement that the Assignor shall have
executed and delivered to the Assignee this Agreement;
WHEREAS, the Assignor desires to execute this Agreement to satisfy the
conditions described in the preceding paragraphs and to induce the Purchasers to
enter into the Note Agreement and to purchase and pay for the Notes and the
Warrants (and to induce any future Noteholders so to do);
NOW, THEREFORE, in consideration of the benefits accruing to the
Assignor and the Company, the receipt and sufficiency of which are hereby
acknowledged, the Assignor hereby makes the following representations and
warranties to the Assignee and hereby covenants and agrees with the Assignee as
follows:
1. Grant of Security Interest. Assignor hereby grants to Assignee a
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security interest in the contract and related items described in Paragraph 2
below (the "Collateral") for the benefit of the Assignee as collateral trustee
for the Noteholders to secure (i) the payment due of the principal of and
interest in respect of the Notes and payment of all other obligations and
liabilities
(including without limitation indemnities, premium, if any, fees and interest
thereon) of the Company, now existing or hereafter incurred under, arising out
of or in connection with the Note Agreement, each Note or any other Note
Document (other than the Warrants) and (ii) the due performance and compliance
with the terms of the Note Documents (other than the Warrant) by the Company
(all such principal, interest, obligations and liabilities, collectively, the
"Secured Obligations"). In no event solely as a consequence of the grant of
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this security interest shall the Assignee be liable for any obligations and/or
amounts owing to On Command Video Corporation pursuant to the terms of the
Technology License Agreement; provided that nothing in this sentence shall
diminish the obligation of a transferee of the rights under the Technology
License Agreement pursuant to Section 6 of this Agreement to pay royalties
thereunder.
2. Collateral. The Collateral shall consist of all right and interest of
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Assignor in and to (A) all of Assignor's right and interest in the Technology
License Agreement as now or hereafter amended, modified or supplemented, in
accordance with the terms hereof and the Note Agreement and (B) all proceeds of
the foregoing collateral, including whatever is receivable or received when the
foregoing collateral is sold, collected, assigned, exchanged or otherwise
disposed of, whether such disposition is voluntary or involuntary.
3. Representations and Warranties. Assignor hereby represents and warrants
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that: (i) except as disclosed in Annex A, Assignor has a valid interest in the
Collateral and that no other person has any right, title, claim or interest (by
way of security interest or other lien or charge or otherwise) in, against or to
the Collateral, (ii) it has full power, authority and legal right to assign its
right and interest in the Collateral pursuant to this Agreement; and (iii) other
than registrations or filings described in Annex B hereto (all of which have
been made prior to the date hereof or will be made within the relevant statutory
period) no consent, filing, recording or registration is required to perfect the
Lien purported to be created by this Agreement.
4. Covenants of the Assignor. The Assignor covenants and agrees that (i)
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it will defend the Assignee's right, title and Lien in and to the Collateral
against the claims and demands of all Persons, (ii) it will procure, execute and
deliver from time to time any endorsements, assignments, financing statements
and other writings deemed reasonably necessary or appropriate to perfect,
maintain and protect the Assignee's security interest hereunder and the priority
thereof (iii) except as otherwise permitted by Sections 8.1 and 8.8 of the Note
Agreement, it will not sell, encumber, or otherwise dispose of or transfer the
Collateral or right or interest therein except as hereinafter provided, and to
keep the Collateral free of all levies and security interests or other liens or
charges except those approved in writing by the Required Holders and Permitted
Liens, (iv) except as otherwise permitted by Section 8.11 of the Note Agreement,
it will not amend, modify or supplement the Technology License Agreement and (v)
it will duly fulfill all obligations on its part to be fulfilled under or in
connection with the Technology License Agreement and will do nothing to impair
the rights of the Assignor in respect of the Collateral.
5. Authorized Action by Assignee. Effective upon and during the
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continuance of an Event of Default, Assignor hereby irrevocably appoints
Assignee as its attorney-in-fact to do (but Assignee shall not be obligated to
and shall incur no liability to Assignor or any third party for failure so to
do) any act which Assignor is obligated by this Agreement to do, and to cure a
failure by Assignor to perform its obligations under the Technology License
Agreement and, after an Event of Default and upon acceleration of the Notes in
accordance with the terms of the Note
Agreement, to exercise such rights and powers as Assignor might exercise with
respect to the Collateral, including, without limitation, to the extent
permitted by law and the terms of the Technology License Agreement, the right to
(i) collect by legal proceedings or otherwise and endorse, receive and receipt
for proceeds and other sums and property now or hereafter payable on or on
account of the Collateral, (ii) enter into any extension or other agreement
pertaining to, or deposit, surrender, accept, hold or apply other property in
exchange for the Collateral, (iii) transfer the Collateral to its own or its
nominee's name, and (iv) make any compromise or settlement, and take any action
it deems advisable, with respect to the Collateral. Assignor agrees to reimburse
Assignee upon demand for any costs and expenses, including, without limitation,
attorneys' fees, Assignee may incur while acting as Assignor's attorney-in-fact
hereunder, all of which costs and expenses are included in the Secured
Obligations secured hereby. Assignee shall not be required to make any
presentment, demand or protest, or give any notice and need not take any action
to preserve any rights against any prior party or any other person in connection
with the Secured Obligations or with respect to the Collateral.
6. Default and Remedies. Assignor shall be deemed in default under this
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Agreement upon the occurrence of an Event of Default. Upon the occurrence and
continuance of an Event of Default, Assignee may, at its option, and without
notice to or demand on Assignor and in addition to all rights and remedies
available to Assignee under any guaranty, this Agreement or any agreement with
Assignor, or by law, do any one or more of the following: (i) enforce Assignee's
security interest in any manner permitted by law, or provided for in this
Agreement, (ii) sell, transfer, assign or otherwise dispose of any Collateral,
for cash or credit or future delivery, on such terms and in such manner as
Assignee may determine; and (iii) recover from Assignor all costs and expenses,
including, without limitation, reasonable attorneys' fees, incurred or paid by
Assignee in exercising any right, power or remedy provided by any guaranty, this
Agreement, any agreement with Assignor, or by law.
7. Termination; Release. Upon:
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(a) the receipt by the Assignee of a certificate, satisfactory to the
Assignee executed by each Noteholder certifying that the conditions set forth
in Section 5.3 of the Note Agreement to the release of the Collateral have been
satisfied; or
(b) the date on which the Secured Obligations have been discharged in
full;
this Agreement shall terminate, and the Assignee, at the written request and
expense of the Assignor, will promptly execute and deliver to the Assignor a
proper instrument or instruments acknowledging the satisfaction and termination
of this Agreement, and will duly assign, transfer and deliver to the Assignor,
without recourse and without any representation or warranty, such of the
Collateral as may be in the possession of the Assignee and has not theretofore
been sold or otherwise applied or released pursuant to this Agreement, together
with any moneys at the time held by the Assignee hereunder.
8. Cumulative Rights. The rights, powers and remedies of Assignee under
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this Agreement shall be in addition to all rights, powers and remedies given to
Assignee by virtue of any statute or rules of law, or any agreement, all of
which rights, powers and remedies shall be
cumulative and may be exercised successively or concurrently without impairing
Assignee's security interest in the Collateral.
9. Amendment; Waiver. Any forbearance or failure or delay by Assignee in
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exercising any right, power or remedy shall not preclude the further exercise
thereof, and every right, power or remedy of Assignee shall continue in full
force and effect until such right, power or remedy is specifically waived in a
writing executed by Assignee. Assignor waives any right to require Assignee to
proceed against any person or to pursue any remedy in Assignee's power. This
Agreement may be changed, waived, discharged or terminated only by an instrument
in writing in accordance with Section 11.3 of the Note Agreement.
10. Binding Upon Successors. All rights of Assignee under this Agreement
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shall inure to the benefit of its successors and (subject to the prior written
consent of On Command Video Corporation) assigns, and the Secured Obligations of
Assignor shall bind its heirs, executors, administrators, successors and
assigns; provided, however, that the Assignor may not, without the prior written
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consent of the Assignee (acting on the instructions of all the Noteholders),
assign or transfer any of its rights or obligations under this Agreement. The
Assignee may transfer, assign or grant its rights hereunder in connection with
an assignment or transfer of all or any part of its interest in and rights under
this Agreement pursuant to the provisions of Section 11 of the Appointment
Agreement.
11. Severability. If any of the provisions of this Agreement shall be held
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invalid or unenforceable, this Agreement shall be construed as if not containing
those provisions and the rights and obligations of the parties hereto shall be
construed and enforced accordingly. If any agreement or obligation contained in
this Agreement shall be held to be in violation of law, then such agreement or
obligation shall be deemed to be the agreement or obligation of the party hereto
to the full extent permitted by law.
12. Choice of Law. This Agreement is a contract made under the laws of the
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State of New York of the United States and shall for all purposes be construed
and enforced in accordance with, and the rights of parties shall be governed by,
the laws of such State and except as otherwise defined herein, terms used herein
shall have the meanings given them in the New York Uniform Commercial Code.
13. Notice. Any written notice, consent or other communication provided for
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in this Agreement shall be delivered or sent in accordance with Section 11.10 of
the Note Agreement, provided that, for this purpose, the address of the Assignor
and the Assignee shall be as follows:
If to the Assignor:
405 Tasman Drive
Sunnyvale, California 94089
Attention: Chief Financial Officer
Facsimile: 408 734 1687
With a copy to:
On Command Video Corporation
3301 Olcott
Santa Clara, California 95054
Facsimile: 408 496 0668
If to the Assignee:
The Chase Manhattan Bank, N.A.
Corporate Trust Administration
4 Chase Metro Tech Center
Third Floor
Brooklyn, New York 11245
Facsimile: 718 292 5885
or sent to the Assignee at such other address as it may designate for itself by
notice given in accordance with this Section 13.
14. Consent to Jurisdiction; Service of Process. For the purposes of
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assuring that the Assignee and the Noteholders may enforce their respective
rights under this Agreement, the Assignor for itself and its successors and
assigns, hereby irrevocably (i) agrees that any legal or equitable action, suit
or proceeding against the Assignor arising out of or relating to this Agreement
or the Note Documents or any transaction contemplated hereby or the subject
matter of any of the foregoing may be instituted in any state or Federal court
in the Borough of Manhattan in the State of New York, (ii) waives any objection
which it may now or hereafter have to the venue of any action, suit or
proceeding in the State of New York or any claim of forum non conveniens in the
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State of New York, and (iii) irrevocably submits itself to the non-exclusive
jurisdiction of any state or Federal court of competent jurisdiction in the
Borough of Manhattan in the State of New York for purposes of any such action,
suit or proceeding. Without limiting the foregoing, the Assignor hereby
appoints, in the case of any such action or proceeding brought in the courts of
or in the State of New York, CT Corporation System, with offices on the date
hereof at 1633 Broadway, New York, New York 10019, to receive, for it and on its
behalf, service of process in the State of New York with respect thereto,
provided the Assignor may appoint any other person, reasonably acceptable to the
Assignee (acting on the instructions of the Required Holder(s)), with offices in
the State of New York to replace such agent for service of process upon delivery
to the Noteholders of a reasonably acceptable agreement of such new agent
agreeing so to act. The Assignor agrees that service of process by means of
notice (as provided in Section 11.10 of the Note Agreement) of any such action,
suit or proceeding with respect to any matter as to which it has submitted to
jurisdiction as set forth in this Section 14 shall be taken and held to be valid
personal service upon it.
15. Counterparts. This Agreement may be executed in one or more
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counterparts, and each of which when so executed and delivered shall be deemed
an original for all purposes but all of which together shall constitute but one
and the same instrument.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Collateral Assignment Agreement to be executed by their duly elected officers
duly authorized as of the date first above written.
PACIFIC PAY VIDEO LIMITED,
as Assignor
By /s/ James A. Barth
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Name: James A. Barth
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK, N.A.,
as Assignee
By /s/ Rossana E. Abueua
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Name: Rossana E. Abueua
Title: Second Vice President
APPROVAL AND AGREEMENT
The undersigned, being the licensor under the Technology License Agreement
referred to in the foregoing Collateral Assignment Agreement, hereby approves
said Collateral Assignment Agreement and the assignment of the Technology
License Agreement thereunder for all purposes of said Collateral Assignment
Agreement subject to the terms and conditions of the Technology License
Agreement.
ON COMMAND VIDEO CORPORATION
By /s/ Robert Snyder
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Name: Robert Snyder
Title: President
Schedule A
to
Agreement of Assignment as Collateral
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010
The Mutual Life Insurance Company of New York
1740 Broadway, 11th Floor
New York, NY 10019
Namtor BVC LP
311 South Wacker Drive,
Suite 4190
Chicago, IL 60606
Waslic Company II
c/o Ft. Washington Investment Advisors
400 Broadway
Cincinnati, OH 45202
APPENDIX A
to Agreement of Assignment as Collateral
Form of a Letter of Confirmation under Section 18
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Date: ,19__
The Chase Manhattan Bank, N.A.
as the Agent for the Noteholders (as Assignees)
Re: Noteholders of the Notes issues by MagiNet Corporation
pursuant to the Note Agreement dated August 15, 1995 and
Assignees of the Agreement of Assignment as Collateral
referred to below
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Dear Sirs:
We refer to the Agreement of Assignment as Collateral dated August 15, 1995 (as
amended to date, "Assignment as Collateral") made between you as the Agent and
an Assignee, the Purchasers and us. All Capitalized terms defined or used
herein and not otherwise defined herein shall have the same meanings specified
in the Assignment as Collateral.
We understand that the current Noteholders, and accordingly the current
Assignees (excluding you), are those listed below and confirm that all security
interests created or to be created under the Assignment as Collateral are
effective for the benefit of you and such other Assignees as if they all were
Assignees on the date the Assignment as Collateral was first executed.
Very truly yours,
MagiNet Corporation
______________________
(Authorized Signatory)
(List of Assignees):