Exhibit 4.2
PLEDGE AND GENERAL SECURITY AGREEMENT
THIS PLEDGE AND GENERAL SECURITY AGREEMENT (this "Agreement") dated as
of April 23, 2002, entered into between Bluestreak Digital, Inc., as Debtor (the
"Debtor") and HSBC Bank USA, in its capacity as trustee under the Indenture
referred to below, as collateral agent and secured party (the "Secured Party"),
sets forth the agreement pursuant to which the Debtor pledges, assigns its
interest in and grants a first priority security interest and first general lien
in and upon the collateral described herein as security for its payment and
performance of its respective Obligations under that certain Indenture (the
"Indenture"), dated the date hereof, entered into by Debtor, Secured Party and
Globix Corporation, as Issuer.
WHEREAS, Debtor is a Subsidiary Guarantor under the Indenture;
WHEREAS, it is a condition to the obligation of the Holders (as
defined in the Indenture) to purchase the Securities issued pursuant to the
Indenture that the Debtor execute this Agreement in favor of the Secured Party;
and
WHEREAS, this Agreement constitutes a Security Document as defined and
described in the Indenture.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good, valuable and binding consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Definitions.
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1.1 Capitalized terms used herein and not otherwise defined herein
shall have the meanings provided in the Indenture. To the extent that any terms
or concepts defined or used herein are defined or used in the UCC, such terms or
concepts shall be interpreted for purposes hereof in a manner that is consistent
with such definition or use in the UCC.
1.2 The following terms shall have the meanings set forth below:
"Account" has the meaning given such term in Section 9-102(a)(2) of
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the UCC.
"Account Debtor" has the meaning given such term in Section
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9-102(a)(3) of the UCC.
"Certificate of Title" has the meaning given such term in Section
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9-102(a)(10) of the UCC.
"Certificated Security" has the meaning given such term in Section
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8-102(a)(4) of the UCC.
"Chattel Paper" has the meaning given such term in Section
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9-102(a)(11) of the UCC.
"Collateral" shall mean all right, title and interest of the Debtor in
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and to all of the following property of the Debtor, whether now owned or
hereafter acquired and whether now existing or hereafter coming into existence:
(i) Accounts;
(ii) Chattel Paper and rights to receive monies included thereby;
(iii) Commercial Tort Claims;
(iv) Deposit Accounts;
(v) Documents;
(vi) Equity Collateral;
(vii) General Intangibles, including, but not limited to, Intellectual
Property;
(viii) Goods, including, but not limited to, Inventory and Equipment;
(ix) Instruments and rights to receive monies included thereby;
(x) Investment Property, including, but not limited to, Commodity
Accounts and Commodity Contracts;
(xi) Letter-of-Credit Rights;
(xii) Notes;
(xiii) other tangible and intangible personal property and Fixtures of
the Debtor;
(xiv) to the extent related to any property described in the clauses
(i) through (xiii), all books, correspondence, credit files, records, invoices
and other papers, including without limitation all tapes, cards, computer runs
and other papers and documents in the possession or under the control of the
Debtor or any computer service company from time to time acting for the Debtor;
and
(xv) cash and non-cash Proceeds of any and all of the foregoing.
"Commercial Tort Claim" has the meaning given such term in Section
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9-102(a)(13) of the UCC.
"Commodity Account" has the meaning given such term in Section
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9-102(a)(14) of the UCC.
"Commodity Account Control Agreement" shall mean an agreement
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substantially in the form of Exhibit C.
"Commodity Contract" has the meaning given such term in Section
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9-102(a)(15) of the UCC.
"Commodity Intermediary" has the meaning given such term in Section
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9-102(a)(17) of the UCC.
"Copyright License" shall mean any agreement now or hereafter in
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existence granting to the Debtor, or pursuant to which the Debtor grants to any
other person, any right to use, copy, reproduce, distribute, prepare derivative
works, display or publish any works in which a Copyright is in existence or may
come into existence.
"Copyright Security Agreement" shall mean a Copyright Security
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Agreement substantially in the form of Exhibit D, executed and delivered by the
Debtor in favor of the Secured Party, as amended from time to time.
"Copyrights" shall mean all of the following (i) all copyrights under
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the laws of the United States or any other country (whether or not the
underlying works of authorship have been published), all registrations and
recordings thereof, all copyrightable works of authorship (whether or not
published), and all applications for copyrights under the laws of the United
States or any other country, including, without limitation, registrations,
recordings and applications in the United States Copyright Office or any similar
office or agency in any other country, including, without limitation, those
described in Schedule 1 to any Copyright Security Agreement, (ii) all renewals
of any of the foregoing, (iii) all claims for, and rights to sue for, past or
future infringements of any of the foregoing and (iv) all income, royalties,
damages and payments now or hereafter due or payable with respect to any of the
foregoing, including, without limitation, damages and payments for past or
future infringements thereof.
"Deposit Account" has the meaning given such term in Section
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9-102(a)(29) of the UCC.
"Deposit Account Control Agreement" shall mean an agreement
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substantially in the form of Exhibit A.
"Disclosure Schedule" shall mean the schedule attached hereto as
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Schedule 4.
"Documents" has the meaning given such term in Section 9-102(a)(30) of
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the UCC.
"Entitlement Holder" has the meaning given such term in Section
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8-102(a)(7) of the UCC.
"Entitlement Order" has the meaning given such term in Section
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8-102(a)(8) of the UCC.
"Equipment" has the meaning given such term in Section 9-102(a)(33) of
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the UCC.
"Equity Collateral" shall mean Pledged Equity and Pledged Equity
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Proceeds.
"Event of Default" shall have the meaning specified in Section 16 of
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this Agreement.
"Financial Asset" has the meaning given such term in Section
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8-102(a)(9) of the UCC.
"Fixtures" has the meaning given such term in Section 9-102(a)(41) of
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the UCC.
"General Intangibles" has the meaning given such term in Section
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9-102(a)(42) of the UCC.
"Goods" has the meaning given such term in Section 9-102(a)(44) of the
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UCC, and shall include Motor Vehicles.
"Instruments" has the meaning given such term in Section 9-102(a)(47)
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of the UCC.
"Intellectual Property" shall mean, collectively, all Copyrights,
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Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses,
together with all rights in or under any of the foregoing.
"Intellectual Property Security Agreement" shall mean any Copyright
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Security Agreement, Patent Security Agreement or Trademark Security Agreement.
"Inventory" has the meaning given such term in Section 9-102(a)(48) of
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the UCC.
"Investment Property" has the meaning given such term in 9-102(a)(49)
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of the UCC.
"Letter-of-Credit Right" has the meaning given such term in Section
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9-102(a)(51) of the UCC.
"Lien" shall mean a pledge, assignment, lien, charge, mortgage,
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encumbrance or other security interest obtained under this Agreement or under
any other agreement or instrument with respect to any present or future assets,
property, contract rights or revenues in order to secure the payment of
indebtedness of the party referred to in the context in which the term is used.
"Motor Vehicles" shall mean motor vehicles, tractors, trailers and
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other like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"Notes" shall mean all Securities, Promissory Notes or other debt
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instruments (including, without limitation, bonds and debentures of any nature
whatsoever) from time to time issued to, or held by, the Debtor.
"Obligations" has the meaning given such term in the Indenture
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together with any and all sums advanced by the Secured Party in order to
preserve the Collateral or preserve its Lien and security interest in the
Collateral and the Debtor's obligations set forth in Section 23 hereof.
"Patent License" shall mean any agreement now or hereafter in
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existence granting to the Debtor, or pursuant to which the Debtor grants to any
other Person, any right to practice (x) any invention in any Patent or (y) any
invention now or hereafter in existence, whether or not patentable, whether or
not a Patent or application for a Patent on such invention may come into
existence, including, without limitation, any agreement identified in Schedule 1
to any Patent Security Agreement.
"Patent Security Agreement" shall mean a Patent Security Agreement
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substantially in the form of Exhibit E, executed and delivered by the Debtor in
favor of the Secured Party, as amended from time to time.
"Patents" shall mean all (i) letters patent and design letters patent
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of the United States or any other country and all applications for letters
patent or design letters patent of the United States or any other country,
including, without limitation, applications in the United States Patent and
Trademark Office or in any similar office or agency of any other country,
including, without limitation, those described in Schedule 1 to any Patent
Security Agreement (ii) all reissues, divisions, continuations,
continuations-in-part, revisions, certificates of reexamination and extensions
of any of the foregoing, (iii) all claims for, and rights to sue for, past or
future infringements of any of the foregoing and (iv) all income, royalties,
damages and payments now or hereafter due or payable with respect to any of the
foregoing, including, without limitation, damages and payments for past or
future infringements thereof.
"Permitted Senior Secured Debt" has the meaning given such term in the
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Indenture.
"Pledged Equity" shall mean (i) the shares of stock of, or partnership
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and other ownership interest in, the issuers identified in Schedule 3 and all
other shares of capital stock, or partnership and other ownership interest, of
whatever class or character of such issuers, and (ii) all ownership interests of
any class or character of a successor entity formed by or resulting from a
consolidation or merger in which any such issuer is not the surviving entity; in
each case, whether now or hereafter owned by the Debtor, together with any
certificates evidencing of the foregoing; provided, that Pledged Equity shall
not include any equity interests in any foreign subsidiary of the Debtor to the
extent (but only to the extent) required to prevent the Collateral from
including more than 65% of all voting equity interests in such foreign
subsidiary.
"Pledged Equity Proceeds" shall mean all shares, securities, moneys or
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property representing a dividend on any of the Pledged Equity, or representing a
distribution or return of capital upon or in respect of the Pledged Equity, or
resulting from a split-up, revision,
reclassification or other like change of the Pledged Equity or otherwise
received in exchange therefor, and any subscription warrants, rights or options
issued to the holders of, or otherwise in respect of, the Pledged Equity.
"Potential Event of Default" shall mean any event or circumstance
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which, with the giving of notice or the lapse of time or both, would constitute
an Event of Default.
"Proceeds" has the meaning given such term in Section 9-102(a)(64) of
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the UCC.
"Promissory Notes" has the meaning given such term in Section
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9-102(a)(65) of the UCC.
"Securities" has the meaning given such term in Section 8-102(a)(15)
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of the UCC.
"Securities Account" has the meaning given such term in Section
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8-501(a) of the UCC.
"Securities Account Control Agreement" shall mean an agreement
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substantially in the form of Exhibit B.
"Securities Intermediary" has the meaning given such term in Section
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8-102(a)(14) of the UCC.
"Security Entitlement" has the meaning given such term in Section
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8-102(a)(17) of the UCC.
"Trademark License" shall mean any agreement now or hereafter in
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existence granting to the Debtor, or pursuant which the Debtor grants to any
other Person, any right to use any Trademark.
"Trademark Security Agreement" shall mean a Trademark Security
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Agreement substantially in the form of Exhibit F, executed and delivered by the
Debtor in favor of the Secured Party, as amended from time to time.
"Trademarks" shall mean (i) all trademarks, trade names, corporate
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names, company names, business names, fictitious business names, trade styles,
service marks, logos, brand names, trade dress, package and other designs, and
all other source or business identifiers, and all general intangibles of like
nature, and the rights in any of the foregoing which arise under applicable law,
(ii) the goodwill of the business symbolized thereby or associated with each of
them, (iii) all registrations and applications in connection therewith,
including, without limitation, registrations and applications in the United
States Patent and Trademark Office or in any similar office or agency of any
state or any other country or any political subdivision thereof, including,
without limitation, those described in Schedule 1 to any Trademark Security
Agreement, (iv) all renewals of any of the foregoing, (v) all claims for, and
rights to sue for, past or future infringements of any of the foregoing and (vi)
all income, royalties, damages and payments now or hereafter due or payable with
respect to any of the foregoing, including, without limitation, damages and
payments for past or future infringements thereof.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
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of New York from time to time.
"Uncertificated Security" has the meaning given such term in Section
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8-102(a)(18) of the UCC.
2. Grant of Liens. As security for the due and punctual payment and
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performance in full of Debtor's guarantee (as the same is set forth in Section
1401 of the Indenture) of all Obligations (whether at the stated maturity, by
acceleration or otherwise and whether now owing or incurred in the future), the
Debtor hereby pledges, assigns, charges, delivers and grants to the Secured
Party a continuing first priority security interest in and a general first Lien
upon all of the Debtor's right, title and interest in and to the Collateral and
all additions thereto and substitutions therefor, whether heretofore, now or
hereafter received by or delivered or transferred to the Secured Party
hereunder.
3. Continuing Security Interest.
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3.1 This Agreement creates an assignment, pledge, charge, continuing
first priority security interest in and general first Lien upon the Collateral
and shall (a) remain in full force and effect until the Secured Party
acknowledges, in writing, that all Obligations have been paid in full, (b) be
binding upon the Debtor and its successors, permitted transferees and permitted
assigns and (c) inure, together with the rights and remedies of the Secured
Party hereunder, to the benefit of the Secured Party and its successors,
transferees and assigns.
3.2 Upon the written acknowledgment of the Secured Party of the
indefeasible payment in full of all Obligations as set forth in Section 3.1
above, the assignment, pledge, charge, Lien and security interest granted
hereunder shall terminate and, upon delivery and transfer of the Collateral to
the Debtor, all rights to the Collateral shall revert to the Debtor. Upon such
termination, the Secured Party will at the sole expense of the Debtor authorize,
execute and deliver to the Debtor such documents as the Debtor shall reasonably
request to evidence such termination and the Secured Party, shall at the sole
expense of the Debtor, deliver and transfer such Collateral to the Debtor.
4. Debtor Remains Liable. Anything herein to the contrary notwithstanding,
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(i) the Debtor shall remain liable under any agreements which have been (in
whole or in part) pledged or assigned herein to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed; (ii) the exercise by the Secured Party of any of the rights hereunder
shall not release the Debtor from any of its respective duties or obligations
under any such agreements; and (iii) the Secured Party shall not have any
obligation or liability under any such agreements by reason of this Agreement,
nor shall the Secured Party be obligated to perform any of the obligations or
duties of the Debtor thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder.
5. Delivery and Perfection; Special Provisions as to Certain Collateral.
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5.1 The Debtor agrees to perform the relevant procedures hereunder:
(i) Deposit Accounts. For each Deposit Account that the Debtor at
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any time opens or maintains, the Debtor shall, pursuant to a Deposit
Account Control Agreement, either (a) cause the depositary bank to
agree to comply, upon delivery of written notice from the Secured
Party to such depository bank that an Event of Default has occurred
and is continuing, with instructions from the Secured Party to such
depositary bank directing the disposition of funds from time to time
credited to such deposit account, without further consent of the
Debtor until such time as such depository bank receives written notice
from the Secured Party that such Event of Default has been waived or
cured, or (b) arrange for the Secured Party to become the customer of
the depositary bank with respect to the deposit account, with the
Debtor being permitted upon delivery of written notice from the
Secured Party to such depository bank that an Event of Default has
occurred and is continuing, only with the consent of the Secured
Party, to exercise rights to withdraw funds from such deposit account.
The Secured Party agrees with the Debtor that the Secured Party shall
not give any such instructions or withhold any withdrawal rights from
the Debtor, unless an Event of Default has occurred and is continuing,
or, after giving effect to any withdrawal not otherwise permitted by
the Security Documents, would occur. The provisions of this paragraph
shall not apply to any Deposit Account (i) for which the Secured Party
is the depositary or (ii) specially and exclusively used for payroll,
payroll taxes and other employee wage and benefit payments to or for
the benefit of the Debtor's salaried employees.
(ii) Instruments. With respect to certificates of deposit and
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other obligations that constitute Instruments and are susceptible of
physical delivery, transfer thereof to the Secured Party by physical
delivery to the Secured Party endorsed to the Secured Party or its
nominee or endorsed in blank;
(iii) Certificated Securities. With respect to any Certificated
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Security not otherwise credited to a Securities Account, the Debtor
shall effect transfer thereof to the Secured Party by physical
delivery of such Certificated Security to the Secured Party endorsed
to the Secured Party or its nominee or in blank;
(iv) Uncertificated Securities. With respect to any
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Uncertificated Security not otherwise credited to a Securities
Account, the Debtor shall (A) effect transfer thereof to the Secured
Party by registration thereof on the books and records of the issuer
in the name of the Secured Party or its nominee or (B) obtain the
agreement of the issuer of such Uncertificated Securities that it will
comply with instructions originated by the Secured Party without
further consent by the registered owner, through a written agreement
in form and substance satisfactory to the Secured Party;
(v) Security Entitlements and Securities Accounts. With respect
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to any Securities Account to which Security Entitlements are or may be
credited, the Debtor shall, and shall cause the Securities
Intermediary maintaining such Securities Account to, execute and
deliver a Securities Account Control Agreement, and perform or cause
to be performed, such additional or alternative
procedures as may hereafter become appropriate to effect good delivery
of any such securities to the Securities Intermediary for the benefit
of Secured Party consistent with changes in applicable law or
regulations or the interpretation thereof;
(vi) Commodity Contracts and Commodity Accounts. With respect to
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any Commodity Account and any Commodity Contract carried therein, the
Debtor shall, and shall cause the Commodity Intermediary maintaining
such Commodity Account to, execute and deliver a Commodity Account
Control Agreement, and perform or cause to be performed, such
additional or alternative procedures as may hereafter become
appropriate to effect good delivery of any such Commodities Contracts
to the Commodity Intermediary for the benefit of Secured Party
consistent with changes in applicable law or regulations or the
interpretation thereof;
(vii) Collateral in the Possession of a Third Party. If any Goods
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or other tangible Collateral (other than Certificated Securities and
Goods covered by a Document) are at any time in the possession of a
third party (other than the Debtor, the Secured Party or its agent, or
a lessee of the Collateral from the Debtor in the ordinary course of
the Debtor's business), the Debtor shall promptly notify the Secured
Party thereof and, if requested by the Secured Party, shall promptly
obtain an acknowledgement from such third party, in form and substance
satisfactory to the Secured Party, that the third party holds such
Collateral for the benefit of the Secured Party and shall act upon the
instructions of the Secured Party, without the further consent of the
Debtor. The Secured Party agrees with the Debtor that the Secured
Party shall not give any such instructions unless an Event of Default
has occurred and is continuing or would occur after taking into
account any action by the Debtor with respect to the third party;
(viii) Electronic Chattel Paper and Transferable Records. If the
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Debtor at any time holds or acquires an interest in any electronic
chattel paper or any "transferable record," as that term is defined in
Section 201 of the federal Electronic Signatures in Global and
National Commerce Act, or in Section 16 of the Uniform Electronic
Transactions Act as in effect in any relevant jurisdiction, the Debtor
shall promptly notify the Secured Party thereof and shall take such
action as may be required under applicable law or as the Secured Party
may reasonably request to vest in the Secured Party control under
Section 9-105 of the UCC of such electronic chattel paper or control
under Section 201 of the federal Electronic Signatures in Global and
National Commerce Act or, as the case may be, Section 16 of the
Uniform Electronic Transactions Act, as so in effect in such
jurisdiction, of such transferable record. The Secured Party agrees
with the Debtor that the Secured Party will arrange, pursuant to
procedures satisfactory to the Secured Party and so long as such
procedures will not, as evidenced by an opinion of nationally
recognized counsel in form and substance satisfactory to the Secured
Party delivered to the Secured Party, result in the Secured Party's
loss of control, for the Debtor to make alterations to the electronic
chattel paper or
transferable record permitted under UCC Section 9-105 or, as the case
may be, Section 201 of the federal Electronic Signatures in Global and
National Commerce Act or Section 16 of the Uniform Electronic
Transactions Act for a party in control to make without loss of
control, unless an Event of Default has occurred or would occur after
taking into account any action by the Debtor with respect to such
electronic chattel paper or transferable record; and
(ix) Letter-of-Credit Rights. If the Debtor is at any time a
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beneficiary under a letter of credit now or hereafter issued in favor
of the Debtor, the Debtor shall, pursuant to an agreement in form and
substance satisfactory to the Secured Party, either (i) arrange for
the issuer and any confirming bank of such letter of credit to consent
to an assignment to the Secured Party of the proceeds of any drawing
under such letter of credit or (ii) arrange for the Secured Party to
become the transferee beneficiary of such letter of credit, with the
Secured Party agreeing, in each case, that the proceeds of any drawing
under the letter to credit are to be applied as provided in the
Security Documents, upon the occurrence and during the continuance of
an Event of Default.
5.2 The Debtor shall file one or more financing or continuation
statements, and amendments thereto, relating to all of the Collateral, and shall
take all such other actions and authorize, execute, deliver and file or cause to
be filed such other instruments or documents, as may be required by applicable
law or as the Secured Party may reasonably require, in order to establish and
maintain a perfected, valid and continuing first priority security interest and
Lien in the Collateral in accordance with this Agreement and the UCC and other
applicable law. Such financing statements may describe the Collateral in the
same manner as described in any Security Document 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 in connection herewith, including, without
limitation, describing such property as "all assets" or "all personal property."
5.3 The Debtor shall:
(i) promptly deliver to the Secured Party any and all Documents,
Instruments and Chattel Paper (including, without limitation, any
Certificates of Title) evidencing or relating to the Collateral at the
time and place and manner as may be necessary (A) to create, perfect,
preserve or otherwise protect the security interest and Liens granted
herein or (B) to enable the Secured Party to exercise and enforce its
rights hereunder;
(ii) promptly authorize, execute (if applicable) and deliver to
the Secured Party (or file or record in such offices as the Secured
Party may deem necessary or appropriate) any and all financing and
continuation statements, other agreements, instruments or other
documents or amendments thereto, and perform any acts which may be
necessary (A) to create, perfect, preserve or otherwise protect the
security interest and Liens granted herein or (B) to enable the
Secured Party to exercise and enforce its rights hereunder; and
(iii) mark all Certificates of Title in the manner specified in a
written notice of the Secured Party to the Debtor requesting such
marking, to evidence the fact that such Certificates of Title are
subject to the security interest and Lien of the Secured Party granted
herein.
5.4 The Debtor agrees immediately to deliver to the Secured Party,
appropriately endorsed to the order of the Secured Party, any Note, trade
acceptance, Chattel Paper or other Instrument in which a security interest must
be perfected by delivery or transfer of such Collateral to a secured party,
which shall be acquired by the Debtor from time to time.
5.5 At the written request of the Secured Party after the occurrence
and during the continuance of an Event of Default, the Debtor shall notify in
writing each Account Debtor of the Debtor's pledge, Lien, assignment and grant
of a security interest to the Secured Party in the applicable Collateral and, if
so requested by the Secured Party, shall instruct in writing each Account Debtor
to pay all amounts payable by such Account Debtor in respect of any Collateral
directly to a Deposit Account designated by the Secured Party until such Account
Debtor shall receive from the Secured Party written notice to the contrary. If
the Debtor shall receive from any Account Debtor any sums in a manner not
consistent with the terms of the preceding sentence, the Debtor shall be deemed
to have received and to be holding such sums in trust for the benefit of the
Secured Party and shall immediately deposit such sums in the Deposit Account of
the Debtor maintained with the Secured Party or with a third party depository
that has entered into a Deposit Account Control Agreement.
At the written request of the Secured Party, the Debtor shall from
time to time notify in writing each Account Debtor specified by the Secured
Party of the Debtor's pledge, Lien, assignment and grant of a security interest
to the Secured Party in the respective Collateral.
5.6 Notwithstanding Section 9-207 of the UCC, the Secured Party may
hold as additional security any Proceeds, including money and funds, received
from the Collateral, all of which shall constitute Collateral hereunder, and the
Secured Party shall not be required to apply such money or funds to reduce the
Obligations other than as expressly set forth herein.
5.7 If the Debtor shall at any time hold or acquire a Commercial Tort
Claim, the Debtor shall immediately notify the Secured Party in a writing signed
by the Debtor containing a brief description thereof, and granting to the
Secured Party in such writing a security interest therein and in the Proceeds
thereof, all upon the terms of this Agreement, with such writing to be in form
and substance satisfactory to the Secured Party.
5.8 Special Provisions Relating to Equity Collateral.
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(a) Voting and Other Powers. So long as no Event of Default shall have
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occurred and be continuing, the Debtor shall have the right to exercise all
voting, consensual and other powers of ownership pertaining to the Equity
Collateral for all purposes not inconsistent with the terms of this Agreement
and the other Security Documents, provided that the Debtor agrees that it will
not vote the Equity Collateral in any manner inconsistent with the terms of this
Agreement and the other Security Documents.
(b) Dividends Prior to Default. Unless and until an Event of Default
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has occurred, the Debtor shall be entitled to receive and retain any dividends,
distributions or proceeds in respect of the Equity Collateral.
(c) Dividends After Default. If any Event of Default shall have
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occurred, then so long as such Event of Default shall continue, and whether or
not the Secured Party exercises any available right to declare any Obligation
due and payable or seeks or pursues any other relief or remedy available to it
hereunder or under any other Security Document or applicable law, all dividends
and other distributions on the Equity Collateral shall be paid directly to the
Secured Party and retained by it as part of the Equity Collateral, subject to
the terms of this Agreement, and, if the Secured Party shall so request, the
Debtor agrees to execute and deliver to the Secured Party appropriate additional
dividend, distribution and other orders and documents to that end.
5.9 Special Provisions Relating to Intellectual Property.
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(a) The Debtor shall furnish to the Secured Party from time to time
(but, unless an Event of Default shall have occurred and be continuing, no more
frequently than semi-annually) statements and schedules further identifying and
describing the Intellectual Property and such other reports in connection with
the Intellectual Property as the Secured Party may reasonably request, all in
reasonable detail.
(b) The Debtor shall promptly modify this Agreement by amending the
Disclosure Schedule and/or Schedule 1 to the related Intellectual Property
Security Agreement, as the case may be, to include any Intellectual Property
that becomes part of the Collateral under this Agreement.
(c) Unless an Event of Default shall have occurred and be continuing
and the Secured Party notified the Debtor that its right to do so is terminated,
suspended or otherwise limited, the grant of the security interests and Liens on
the Intellectual Property pursuant hereto and the Intellectual Property Security
Agreements shall not preclude the Debtor from entering into any Copyright
License, Patent License or Trademark License or, subject to Sections 13 and 14,
from managing or maintaining its Intellectual Property in a manner that is in
the ordinary course of the Debtor's business and consistent with the Debtor's
historical practices.
(d) The Debtor shall notify the Secured Party promptly if it knows
that any application or registration relating to any Intellectual Property owned
or licensed by it may become abandoned or dedicated to the public, or of any
adverse final determination or development (including, without limitation, the
institution of, or any such final determination or development in, any
proceeding in the United States Copyright Office, the United States Patent and
Trademark Office or any court) regarding the Debtor's ownership of such material
Intellectual Property, its right to register or patent the same, or its right to
keep and maintain the same. If any of the Debtor's rights to any material
Intellectual Property are infringed, misappropriated or diluted by a third
party, the Debtor shall notify the Secured Party within 30 days after it makes a
positive determination in respect thereof and will, unless the Debtor shall
reasonably determine that any such action would not make commercial sense,
promptly sue for infringement, misappropriation or dilution, or to recover any
and all damages for such infringement, misappropriation or dilution, or take
such other actions as the Debtor shall
reasonably deem appropriate under the circumstances to protect such material
Intellectual Property, including, without limitation, the initiation of
licensing negotiations.
6. Relation to Other Security Documents.
------------------------------------
6.1 To the extent applicable, the provisions of this Agreement
supplement the provisions of any real estate mortgage or deed of trust granted
by the Debtor to the Secured Party and securing the payment or performance of
any of the Obligations. Nothing contained in any such real estate mortgage or
deed of trust shall derogate from any of the rights or remedies of the Secured
Party hereunder.
6.2 Intellectual Property Security Agreements. Concurrently herewith
-----------------------------------------
the Debtor is also executing and delivering to the Secured Party a Copyright
Security Agreement, Patent Security Agreement and Trademark Security Agreement
with respect to all registered Intellectual Property then owned by it. The
provisions of each such Intellectual Property Security Agreement are
supplemental to the provisions of this Agreement, and nothing contained in any
such Intellectual Property Security Agreement shall derogate from any of the
rights or remedies of the Secured Party hereunder, nor shall anything contained
in any such Intellectual Property Security Agreement be deemed to prevent or
extend the time of attachment or perfection of any security interest in such
Collateral created hereby.
7. Proceeds of Sale. Nothing contained in this Agreement shall limit or
----------------
restrict in any way the Secured Party's right to receive Proceeds of the
Collateral in any form in accordance with the provisions of this Agreement. All
Proceeds that are received by the Debtor contrary to the provisions of this
Agreement shall be received in trust for the benefit of the Secured Party, shall
be segregated from other property or funds of the Debtor and shall be forthwith
paid over to the Secured Party as Collateral in the same form as so received
(with any necessary endorsement, document or instrument of transfer).
8. Records and Information. The Debtor agrees to keep, at its office set
-----------------------
forth in Section 12(d), its records concerning the Collateral. The Debtor agrees
to promptly furnish to the Secured Party such information concerning itself, the
Collateral and any Account Debtor as the Secured Party may reasonably request.
9. Inspection. The Debtor agrees upon reasonable notice provided by the
----------
Secured Party, to permit the Secured Party, through its officers and agents, to
examine and inspect the Collateral and all records pertaining thereto, and to
make extracts from such records as the Secured Party may reasonably require.
10. Use of Collateral. Except upon the occurrence and during the
-----------------
continuance of any Potential Event of Default or Event of Default, the Debtor
may in the ordinary course of its business use, consume, exhibit, demonstrate,
sell, lease or otherwise dispose of its Inventory or its Equipment in carrying
on its businesses substantially in the same manner as now conducted; provided,
however, that a sale in the ordinary course of business shall not include any
transfer or
sale in satisfaction, partial or complete, of a debt owed by the Debtor or any
transfer or sale to any shareholder or affiliate of the Debtor for consideration
less than the consideration which would have been paid to the Debtor by an
unaffiliated third party in an arms' length transaction; and provided further
that any such disposition shall not be unlawful or inconsistent with the terms
of this Agreement or of any policy of insurance covering such Collateral.
11. No Disposition. The Debtor covenants and agrees that it will not sell,
--------------
assign, transfer, exchange or otherwise dispose of, or grant any option with
respect to, any of the Collateral, except as provided for in Section 10 hereof,
nor will it create, incur or permit to exist any Lien on or with respect to any
of the Collateral, any interest therein, or any Proceeds thereof, except for the
security interests and Liens created under this Agreement or any of the other
Security Documents in favor of the Secured Party.
12. Representations and Warranties. The Debtor represents and warrants to
------------------------------
the Secured Party throughout the term of this Agreement that:
(a) The Debtor is and will be the sole legal and beneficial owner of
all of the Collateral now owned or hereafter acquired and the Debtor has not
created any Lien, security interest, assignment, option or other charge or
encumbrance on the Collateral, except for Permitted Liens and the Liens and
security interests created by this Agreement or any of the other Security
Documents in favor of the Secured Party;
(b) This Agreement has been duly and validly authorized by the Debtor
and executed and delivered by the Debtor and constitutes the legal, valid and
binding obligation of the Debtor, enforceable against the Debtor in accordance
with its terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and subject, as
to enforceability, to equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or at law)) and, subject
to the performance of the relevant procedures as specified in Section 5 herein
with respect to such Collateral, creates a valid, binding, enforceable and
perfected first priority security interest in and general first Lien upon all of
the Collateral, and the Debtor is duly authorized to make all filings and take
all other actions necessary or desirable to perfect and to continue perfected
such security interest;
(c) As of the date hereof and on the date of delivery or transfer to
the Secured Party of any Collateral under this Agreement, it has good and
marketable title to the Collateral;
(d) The office where it maintains all records relating to the
Collateral is located at 139 Centre Street, New York, NY 10013.
(e) The Debtor is a Corporation duly organized and validly existing
under the laws of the State of New York./1/
(f) The Debtor's exact legal name as that name appears on its
Certificate of Incorporation is Bluestreak Digital, Inc., and the Debtor's
organization identification number is FEIN 13-3725362issued by the State of New
York.
- ----------
/1/ If Debtor is an unregistered organization, it should affirmatively
represent such fact.
(g) The Pledged Equity identified in Schedule 3 (i) is, and all other
Pledged Equity in which the Debtor shall hereafter acquire an interest will be,
duly authorized, validly existing, fully paid and non-assessable (in the case of
any equity interest in a corporation) and duly issued and outstanding (in the
case of any equity interest in any other entity), and none of such Pledged
Equity is or will be subject to any contractual restriction, or any restriction
under the charter, by-laws, partnership agreement or other organizational
document of the respective issuer, upon the transfer of such Pledged Equity, and
(ii) constitutes all of the issued and outstanding shares of capital stock,
partnership or other ownership interest of any class or character of the issuers
set forth in Schedule 3 beneficially owned by the Debtor on the date hereof
(whether or not registered in the name of the Debtor) and Schedule 3 correctly
identifies, as at the date hereof, the respective issuers of such Pledged Equity
and (in the case of any corporate issuer) the respective class and par value of
the shares constituting such Pledged Equity and the respective number of shares
(and registered owners thereof) represented by each such certificate.
(h) Schedule 1 to each of the Copyright Security Agreement, Patent
Security Agreement and Trademark Security Agreement, respectively, sets forth a
complete and correct list of all Copyrights, Patents and Trademarks owned or
used by the Debtor on the date hereof; except pursuant to licenses and other
user agreements entered into by the Debtor in the ordinary course of business,
the Debtor owns and possesses the right to use, and has done nothing to
authorize or enable any other Person to use, any Copyright, Patent or Trademark
listed in said Schedules 1, and all registrations listed in said Schedules 1 are
valid and in full force and effect; the Debtor owns or possesses the right to
use all Copyrights, Patents and Trademarks.
(i) The Schedules 1 to each of the Copyright Security Agreement,
Patent Security Agreement and Trademark Security Agreement collectively set
forth a complete and correct list of all licenses and other user agreements
included in the Intellectual Property on the date hereof.
(j) To the Debtor's knowledge, (i) except as set forth in the
Disclosure Schedule, there is no violation by others of any right of the Debtor
with respect to any Copyright, Patent or Trademark listed in the respective
Schedules 1, under the name of the Debtor and (ii) the Debtor is not infringing
in any respect upon any Copyright, Patent or Trademark of any other Person; and
no proceedings have been instituted or are pending against the Debtor or, to the
Debtor's knowledge, threatened, and no claim against the Debtor has been
received by the Debtor, alleging any such violation, except as may be set forth
in such Disclosure Schedule.
13. Covenants.
---------
(a) The Debtor shall:
(i) Intentionally omitted;
---------------------
(ii) Maintain, or cause to be maintained, all items of the
Collateral in good condition and repair, ordinary wear and tear
excepted in the case of Equipment, and pay, or cause to be paid, the
costs of repairs to or maintenance of that Collateral which is of a
type that could be repaired or maintained;
(iii) Not use any Collateral in violation of law or any
applicable policy of insurance;
(iv) Pay or cause to be paid when due all taxes, assessments and
other charges relating to the Collateral or this Agreement and
reimburse the Secured Party for all costs of and fees incurred in
connection with the filing of the documents and instruments referred
to in Section 5;
(v) Not change its name or the name under which it does business,
chief executive office, type of organization, jurisdiction of
organization or other legal structure without at least 30 days' prior
written notice to the Secured Party. Prior to effectuating any change
described in the preceding sentence, the Debtor shall take or cause to
be taken all actions deemed by the Secured Party to be necessary or
desirable to prevent any financing or continuation statement from
becoming seriously misleading or rendered ineffective, or the security
interests granted herein from becoming unperfected or the relative
priority thereof otherwise impaired, as a result of such removal or
change and, shall provide to the Secured Party an opinion of
nationally recognized counsel in form and substance satisfactory to
the Secured Party, describing such actions and confirming that such
actions have been taken and are effective to prevent such results.
(vi) Take all actions in order to maintain a perfected security
interest in the Lien granted herein on all of the Collateral pledged
by it, under applicable law, including all actions contemplated by
Section 5, for the benefit of the Secured Party; and
(vii) Perform and observe all the material terms and provisions
of any agreement for the sale or lease of goods, or any agreement for
the rendering of services, giving rise to an Account to be performed
or observed by it, maintain any such agreement in full force and
effect, enforce any such agreement in accordance with its terms, and
take any other action to such end as may be from time to time
reasonably requested by the Secured Party.
(b) The Debtor shall not without the prior written consent of the
Holders of more than 50% in principal amount of the Outstanding Securities:
(i) Permit anything to be done that might materially impair the
value of the Collateral or adversely affect the security or Liens
intended to be afforded by this Agreement in favor of the Secured
Party;
(ii) Modify, amend or waive any material terms or conditions of
the Collateral or any rights or interests therein; or
(iii) Waive any material default under or material breach of any
agreement giving rise to or connected with any Account Receivable.
14. Further Assurances and Protections.
----------------------------------
(a) The Debtor shall at its expense do, file, record, make, execute
and deliver all such acts, notices, instruments, statements or other documents
as the Secured Party may reasonably request (which request may be oral or in
writing) to register in the name of the Secured Party, perfect, preserve or
otherwise protect the security interest and Liens of the Secured Party in the
Collateral or any part thereof or to give effect to the rights, powers and
remedies of the Secured Party under this Agreement, provided, however, that
nothing in this Section 14 shall amend, modify or diminish the obligation of the
Debtor to maintain the priority or perfection of the security interest granted
to the Secured Party hereunder pursuant to Section 5.2 hereof; and
(b) The Debtor will give prompt written notice to the Secured Party
of, and defend the Collateral against, any suit, action or proceeding related to
the Collateral or which could adversely affect the security interests and Liens
granted hereunder.
15. Permitted Senior Secured Debt. The Debtor may, in accordance with the
-----------------------------
terms and provisions of the Indenture, incur Permitted Senior Secured Debt,
which debt may be secured by Liens having the same or senior priority to the
Liens securing the Securities.
16. Events of Default. The occurrence of and continuation of an "Event of
-----------------
Default" (as defined in any of the Security Documents or the Indenture) shall
constitute an event of default (each an "Event of Default") under this
Agreement.
17. Remedies upon an Event of Default. On and after the occurrence and
---------------------------------
continuance of an Event of Default, the Secured Party may, in its discretion:
(a) request the Debtor, and upon such request the Debtor shall,
assemble the Collateral at such place or places reasonably convenient to the
Secured Party designated in such request;
(b) enforce collection of any of the Collateral by suit or any other
lawful means available to the Secured Party, or demand, collect or receive any
money or property at any time payable or receivable on account of or in exchange
for any of the Collateral;
(c) surrender, release or exchange or otherwise modify the terms of
all or any part of the Collateral, or compromise or extend or renew for any
period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the
UCC (whether or not in effect in any applicable jurisdiction) and all other
applicable law, including, without limitation, the right to take possession of,
hold, collect, sell, lease, deliver, grant options to purchase or otherwise
retain, liquidate or dispose of all or any portion of the Collateral. The
proceeds of any collection, liquidation or other disposition of the Collateral
shall be applied by the Secured Party pursuant to Section 506 of the Indenture.
If notice prior to disposition of the Collateral or any portion thereof is
necessary under applicable law, written notice mailed to the Debtor at its
notice address specified on the signature page hereof five (5) Business Days
prior to the date of such disposition shall constitute reasonable notice, but
notice given in any other reasonable manner shall be sufficient. Without
precluding any other methods of sale or other disposition, the sale or other
disposition of the Collateral or any portion thereof shall have been
made in a commercially reasonable manner if conducted in conformity with
reasonable commercial practices of creditors disposing of similar property; but
in any event the Secured Party may sell, lease, deliver, grant options to
purchase or otherwise retain, liquidate or dispose such Collateral on such terms
and to such purchaser(s) (including the Secured Party) as the Secured Party in
its reasonable discretion may choose, and for cash or for credit or for future
delivery, without assuming any credit risk, at public or private sale or other
disposition, without demand of performance, and without any obligation to
advertise or give notice of any kind other than that necessary under applicable
law. The Debtor hereby waives and releases to the fullest extent permitted by
law any right or equity of redemption with respect to the Collateral, whether
before or after sale or other disposition hereunder, and all rights, if any, of
marshalling the Collateral and any other security for the Obligations or
otherwise. At any such sale or other disposition, unless prohibited by
applicable law, the Secured Party may bid for and purchase all or any part of
the Collateral so sold free from any such right or equity of redemption. The
Secured Party shall not be liable for failure to collect or realize upon any or
all of the Collateral or for any delay in so doing nor shall it be under any
obligation to take any action whatsoever with regard thereto;
The Secured Party shall incur no liability as a result of the sale of
the Collateral, or any part thereof, at any private sale pursuant to this
Agreement conducted in a commercially reasonable manner. The Debtor hereby
waives any claims against the Secured Party arising by reason of the fact that
the price at which the Collateral may have been sold at such a private sale was
less than the price that might have been obtained at a public sale or was less
than the aggregate amount of the Obligations, even if the Secured Party accepts
the first offer received and does not offer the Collateral to more than one
offeree;
The Debtor recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Secured Party may be compelled, with respect to any sale of
all or any part of the Collateral, to limit purchasers to those who will agree,
among other things, to acquire the relevant Collateral for their own account,
for investment and not with a view to the distribution or resale thereof. The
Debtor acknowledges that any such private sale may be at prices and on terms
less favorable to the Secured Party than those obtainable through a public sale
without such restrictions, and, notwithstanding such circumstances, agrees that
any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Secured Party shall have no obligation to engage
in public sales and no obligation to delay the sale of any Collateral for the
period of time necessary to enable the registration of the Collateral or related
transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and
whether on an exclusive or non-exclusive basis, any Intellectual Property
included in the Collateral throughout the world for such term or terms, on such
conditions and in such manner as the Secured Party shall in its sole reasonable
discretion determine; provided that such licenses or sublicenses do not conflict
with any existing license of which the Secured Party shall have received a copy;
(f) without assuming any obligation or liability thereunder, at any
time and from time to time, in its sole and reasonable discretion, enforce (and
shall have the exclusive
right to enforce) against any licensee or sublicensee all rights and remedies of
the Debtor in, to and under any of its Intellectual Property and take or refrain
from taking any action under any thereof, and the Debtor releases the Secured
Party from liability for, and agrees to hold the Secured Party free and harmless
from and against any claims and expenses arising out of, any lawful action so
taken or omitted to be taken with respect thereto, except for claims and
expenses arising from the Secured Party's gross negligence or willful
misconduct;
(g) make a request upon the Debtor (which shall not be construed as
implying any limitation on the rights or powers of the Secured Party), and upon
such request the Debtor shall, execute and deliver to the Secured Party a power
of attorney, in form and substance reasonably satisfactory to the Secured Party,
for the implementation of any sale, lease, license or other disposition of
Intellectual Property owned by the Debtor or any such action related thereto. In
connection with any such disposition, but subject to any confidentiality
provisions imposed on such Debtor in any license or similar agreement, such
Debtor will supply to the Secured Party its know-how and expertise relating to
the relevant Intellectual Property, and its customer lists and other records
relating to such Intellectual Property and to the distribution of said products
or services;
(h) to the extent not already so transferred, transfer all or any part
of the Collateral into the Secured Party's name or the name of its nominee or
nominees; and
(i) give all consents, waivers and ratifications in respect of the
Collateral and otherwise act with respect thereto as though it were the outright
owner thereof (the Debtor hereby irrevocably constituting and appointing the
Secured Party the proxy and attorney-in-fact of the Debtor, with full power of
substitution to do so), including, without limitation, the exercise of all
voting, consensual and other powers of ownership pertaining to the Collateral.
18. Secured Party Appointed Attorney-in-Fact. Without limiting any rights
----------------------------------------
or powers granted to the Secured Party pursuant to this Agreement, applicable
law or otherwise, the Debtor hereby appoints the Secured Party as its
attorney-in-fact, with full power and authority in the place and stead of the
Debtor and in the name of the Debtor or otherwise, from time to time in the
Secured Party's discretion to take any and all action and to authorize, execute,
file and record any and all instruments, agreements and documents which the
Secured Party may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to execute any assignment of
Intellectual Property to the Secured Party or other transferee, and to receive,
endorse and collect all instruments made or payable to the Debtor representing
any Proceeds in respect of the Collateral or any part thereof and to give full
discharge for the same. The appointment set forth in this Section 18 is coupled
with an interest and is irrevocable.
19. Secured Party May Perform. If the Debtor fails to perform any
-------------------------
agreement, covenant or obligation contained herein, the Secured Party may itself
perform, or cause performance of such agreement, covenant or obligation and the
expenses and costs of the Secured Party incurred in connection therewith shall
be payable by the Debtor.
20. Security Interest Absolute. All rights of the Secured Party and all
--------------------------
Liens hereunder, and all obligations of the Debtor hereunder, shall be absolute
and unconditional irrespective of:
(a) lack of validity or enforceability of this Agreement or any of the
other Security Documents;
(b) any change in the time, manner or place of payment of, or in any
other term of, any or all of the Obligations or any amendment or waiver of any
provision of this Agreement or any of the other Security Documents;
(c) any release or non-perfection of any portion of the Collateral or
any exchange, release or non-perfection of any other collateral, or any release,
amendment or waiver of any guaranty for all or any of the Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Debtor in respect of the Obligations or
this Agreement or any of the other Security Documents.
21. Secured Party's Duties. The powers conferred to 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 Collateral or any portion thereof in its possession, and the
Secured Party shall exercise that standard of care with respect to the
Collateral in its possession which it exercises in the administration of its own
assets and property; provided, however, that the Secured Party shall not be
liable for any action taken or omitted with respect to the Collateral or this
Agreement in good faith and in the absence of gross negligence or willful
misconduct. The Secured Party shall have no duty as to the Collateral or as to
the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to the Collateral.
22. Rights Cumulative. The rights, powers and remedies of the Secured Party
-----------------
under this Agreement shall be in addition to all rights, powers and remedies
given to the Secured Party by virtue of any statute or rule of law or any
agreement, all of which rights, powers and remedies shall be cumulative and may
be exercised successively or concurrently without impairing the Secured Party's
security interest, Lien and assignment in the Collateral.
23. Indemnity and Expenses.
----------------------
(a) The Secured Party shall not have any liability to any Person and
shall be indemnified and held harmless by the Debtor for any liability incurred
by reason of taking or refraining from taking any action with respect to the
Collateral, except in the case of the Secured Party's gross negligence or
willful misconduct. The Debtor agrees to indemnify the Secured Party from and
against any and all claims, losses and liabilities arising out of or connected
with this Agreement (including, without limitation, enforcement of this
Agreement), except such claims, losses or liabilities resulting solely from the
Secured Party's gross negligence or willful misconduct. This Section 23(a) shall
survive the resignation or removal of the Secured Party as trustee under the
Indenture and any termination of this Agreement.
(b) The Debtor agrees to pay all expenses, costs and disbursements
incurred by the Secured Party (including, without limitation, all fees, taxes
and reasonable attorneys' fees and other legal expenses incurred by the Secured
Party in connection therewith) in connection with (i) retaking, holding,
collecting, preparing for sale and selling or otherwise realizing upon,
liquidating or disposing of the Collateral, (ii) the preparation and execution
of this Agreement and the documents contemplated hereunder, (iii) the
enforcement of its rights hereunder whether in connection with an Event of
Default or otherwise, (iv) the performance by the Secured Party of any
agreement, covenant or obligation of the Debtor contained herein that the Debtor
has failed or refused to perform, and (v) the participation or other involvement
of the Secured Party with (x) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, or any actual or attempted sale, or any
exchange, enforcement, collection, compromise, or settlement in respect of any
of the Collateral, and for the care of the Collateral and defending or asserting
rights and claims of the Secured Party in respect thereof, by litigation or
otherwise, including expenses of insurance, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated).
24. Amendments, Etc. Any amendment, modification or waiver of any provision
---------------
of this Agreement shall be in writing and executed by the parties, and any such
waiver shall be effective only for the specific purpose for which it is given
and for the specific time period, if any, contemplated therein.
25. Notices. Any notice required or permitted to be given hereunder shall
-------
be in writing and in the English language, and shall be addressed to the
respective parties at their addresses specified below or as to either party at
such other address as shall be designated by such party in a written notice to
the other party delivered in accordance with this Section 25. All such notices
and other communications shall be effective (a) when personally delivered during
normal business hours to the addressee at the address designated for such
delivery, (b) on the date deposited in the mails, (c) on the first Business Day
after dispatch by Federal Express, DHL or other recognized national or
international courier service, addressed to the addressee at the address
designated for such delivery, (d) on the Business Day they shall have been given
by facsimile transmission with electronic answer back confirmation; whichever of
the foregoing shall occur first. For purposes hereof, the address of each of the
parties hereto is as follows:
if to Debtor: Bluestreak Digital, Inc.
------------ 139 Centre Street
New York, New York 10013
if to Secured Party: HSBC Bank USA, as Trustee
------------------- 452 Fifth Avenue
New York, New York 10018
Attn: Issuer Services
26. Waivers. No failure or delay by the Secured Party in exercising any
-------
right, power, privilege or remedy hereunder or under the UCC or any other
applicable law shall operate as a waiver hereof or thereof and no single or
partial exercise by the Secured Party of any right, power, privilege or remedy
of the Secured Party hereunder or thereunder shall preclude any
subsequent or further exercise by the Secured Party thereof or of any other
right, power, privilege or remedy hereunder or thereunder.
27. Agents and Attorneys-in-Fact. The Secured Party may employ agents and
----------------------------
attorneys-in-fact in connection herewith and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected in
good faith.
28. Severability. If any provision of this Agreement is invalid or
------------
unenforceable, then, to the extent possible, all of the remaining provisions of
this Agreement shall remain in full force and effect and shall be binding on the
parties hereto.
29. Non-Assignment. The Debtor shall not have the right to assign its
--------------
rights or delegate its obligations hereunder or any part thereof to any other
Person without the Secured Party's prior written consent.
30. Entire Agreement. This Agreement contains the entire agreement between
----------------
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto.
31. Governing Law; Jurisdiction; Process Agent. This Agreement shall be
------------------------------------------
governed by, and construed in accordance with, the laws of the State of New
York, without regard to its conflicts of law principles. The parties hereto
agree than any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with, this Agreement or
the transactions contemplated hereby shall be brought in the United States
District Court for the Southern District of New York or any court of the State
of New York sitting in New York County, New York, and each of the parties hereby
irrevocably consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of venue of any such suit, action or
proceeding in such court or that any such suit, action or proceeding which is
brought in any such court has been brought in an inconvenient forum. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
32. The Debtor hereby appoints CT Corporation Systems, 111 Eighth Avenue,
New York, New York 10011 as its agent for service of process for all purposes of
this Agreement.
33. Counterparts. This Agreement may be executed in any number of
------------
counterparts each of which when so executed and delivered shall constitute an
original and all of which, taken together, shall be deemed one instrument.
(signatures follow immediately)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first written above.
Bluestreak Digital, Inc.
By:
-------------------------------
Name:
Title:
SCHEDULE 1
INTENTIONALLY OMITTED
SCHEDULE 2
INTENTIONALLY OMITTED
SCHEDULE 3
EQUITY SCHEDULE
BLUESTREAK DIGITAL, INC.
- --------------------------------------------------------------------------------
Issuer corporate issuer other issuer
-------------------------------------------------------------------
Class Par value number of shares
- --------------------------------------------------------------------------------
None
- --------------------------------------------------------------------------------
SCHEDULE 3- FORM
EQUITY SCHEDULE
BLUESTREAK DIGITAL, INC.
- --------------------------------------------------------------------------------
Issuer corporate issuer other issuer
-------------------------------------------------------------------
Class Par value number of shares
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SCHEDULE 4
DISCLOSURE SCHEDULE
BLUESTREAK DIGITAL, INC.
None.
EXHIBIT A
DEPOSIT ACCOUNT CONTROL AGREEMENT-
BLUESTREAK DIGITAL, INC.
None.
EXHIBIT A-FORM
DEPOSIT ACCOUNT CONTROL AGREEMENT
BLUESTREAK DIGITAL, INC.
DEPOSIT ACCOUNT CONTROL AGREEMENT (this "Agreement") dated as of April
19, 2002 among Bluestreak Digital, Inc. (the "Debtor"), HSBC Bank USA, as
collateral agent (the "Secured Party") and (the "Deposit Bank").
-------------
PRELIMINARY STATEMENTS:
(A) The Debtor, the Secured Party and certain Globix Corporation
subsidiaries have entered into that certain Indenture (the "Indenture"), dated
as of the date hereof, and the Debtor and the Secured Party have entered into a
Pledge and General Security Agreement dated as of April 19, 2002 (as amended,
modified or supplemented from time to time, the "Security Agreement").
(B) It is a condition to the purchase of the Securities under the
Indenture that the Debtor pledge certain collateral to the Secured Party.
(C) The Debtor has established with the Deposit Bank an account
[describe, including number and type and name of account] in the name of the
[Debtor] [Secured Party] (the "Collateral Account") as a Deposit Account under
the Security Agreement.
(D) The Deposit Bank has agreed to act in such capacity.
NOW THEREFORE, in consideration of the premises the parties hereto
hereby agree as follows:
1. Definitions. Unless otherwise defined herein, all capitalized terms
-----------
used herein and defined in the Security Documents and the Security Agreement
shall be used herein as therein defined.
2. Pledge. The Debtor hereby grants, pledges and assigns to the
------
Secured Party, and hereby creates a continuing first priority Lien and security
interest in favor of the Secured Party in, and transfers to the Secured Party
all dominion and control over, all of its right, title and interest in and to
the following:
(a) the Collateral Account, including, without limitation, all
documents, passbooks and similar evidence representing such account, together
with all deposits made from time to time therein and all funds and other
property standing to the credit of such account from time to time, all of which
shall constitute a Deposit Account under the Security Agreement;
(b) all Instruments issued to or for the benefit of the Debtor by the
Deposit Bank or any affiliate; and
(c) all cash and non-cash Proceeds of any and all of the foregoing,
including, without limitation, any and all Instruments and Investment Property
constituting any such Proceeds.
All of the foregoing shall constitute Collateral under the Security
Agreement.
3. Security for Obligations; Terms of Pledge. The Collateral hereunder
-----------------------------------------
secures the payment and performance of the Obligations in accordance with the
Security Agreement. The rights and obligations of the Secured Party and the
Debtor in respect of the Collateral hereunder shall be as provided in the
Security Agreement.
4. Representations and Warranties. The Debtor represents and warrants
------------------------------
as follows:
(a) The Debtor is the sole beneficial owner of the Collateral Account
subject to this Agreement and the Security Agreement, free and clear of any
Lien, option or other encumbrance except for the Permitted Liens as defined in
the Indenture and the Lien created by this Agreement and the Security Agreement.
(b) The pledge of the Collateral Account pursuant to this Agreement
and the Security Agreement creates a valid and perfected first priority Lien in
the Collateral Account, securing the payment and performance when due of the
Obligations.
(c) The Debtor is a corporation duly organized under the Laws of the
State of Delaware, and is in good standing in each jurisdiction where the
failure to so be would have a material adverse effect on its business or
properties.
(d) It has full power, authority and legal right to pledge the
Collateral Account pursuant to this Agreement and the Security Agreement.
(e) This Agreement has been duly authorized, executed and delivered by
the Debtor and constitutes a legal, valid and binding obligation of the Debtor
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally affecting
creditors' rights and subject to general equitable principles (regardless of
whether such principles are considered in a proceeding in equity or at law).
(f) No authorization, approval, or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the pledge by the Debtor of the Collateral Account pursuant to this Agreement or
the Security Agreement or for the execution, delivery or performance of this
Agreement by the Debtor.
(g) The execution, delivery and performance of this Agreement will not
violate any provision of any applicable law or regulation or of any order,
judgment, writ, award or decree of any court, arbitrator or governmental
authority, domestic or foreign, applicable to the Debtor, or of the company
documents of the Debtor.
5. The Deposit Bank.
----------------
(a) The Deposit Bank acknowledges the Lien and security interest
hereunder and under the Security Agreement. The parties hereto agree that the
Deposit Bank shall, upon delivery of written notice from the Secured Party to
the Deposit Bank that an Event of Default has occurred and is continuing, comply
only with instructions and orders originated by the Secured Party with respect
to any disbursements, transfers, withdrawals or other dispositions of funds
from, or investments in, the Collateral Account hereunder, without the further
consent of the Debtor. The parties hereto agree that for so long as such Event
of Default is continuing, the Deposit Bank shall not comply with any such
instructions or orders originated by the Debtor or any third party, except with
the written consent of the Secured Party. The Deposit Bank waives any right to
offset any claim which it might have against the Collateral Account hereunder
and subordinates any security interest it may have in the Collateral Account
hereunder to the Lien and security interest granted to the Secured Party.
(b) The Deposit Bank may resign from its obligations under this
Agreement at any time after twenty (20) days prior written notice to the other
parties hereto, but in no event shall the Deposit Bank be released of its
obligations hereunder unless and until a substitute bank has been designated and
assumed the obligations hereunder of the Deposit Bank and all monies in the
Collateral Account and relating thereto have been transferred to the substitute
bank in compliance with the terms of this Agreement. The Debtor shall designate
a substitute Deposit Bank, in its sole discretion, promptly after receipt of
notice of resignation by the Deposit Bank and shall take all reasonable actions
necessary to cause such designated successor promptly to assume the obligations
of the Deposit Bank hereunder.
(c) The Secured Party may terminate this Agreement at any time after
thirty (30) days prior written notice to the other parties hereto.
(d) The Deposit Bank agrees that it shall take all actions reasonably
necessary and shall cooperate with the Debtor and the Secured Party to
facilitate any transfer of its obligations, duties and rights hereunder.
(e) The Deposit Bank represents and warrants that it has no knowledge
of any claim to, security interest in or Lien upon the Collateral Account
hereunder, other than the Lien hereunder and under the Security Agreement.
(f) The Deposit Bank has not entered into, nor will it enter into, any
agreement with any third party regarding the Collateral Account hereunder or
agreed that it will comply with any instructions or orders concerning such
Collateral Account originated by any such third party, nor has the Deposit Bank
entered into, nor will it enter into, any arrangement with the Debtor or any
third party by which the Deposit Bank agrees to limit or qualify its
undertakings to comply with the instructions and orders of the Secured Party as
set forth herein.
6. Notices. All notices and other communications provided for
-------
hereunder shall be in writing addressed to the respective parties at their
addresses as specified with their signatures below or as to any party at such
other address as shall be designated by such party in a
written notice to each other party. All such notices and other communications
shall be effective upon receipt.
7. Governing Law. This Agreement (including the establishment and
-------------
maintenance of the Collateral Account and all interests, duties and obligations
related thereto) shall be governed by and construed in accordance with the laws
of the State of New York without reference to its conflicts of laws principles,
and in furtherance thereof the parties agree that the jurisdiction of the
Deposit Bank for all matters relating to the Collateral Account, this Agreement
and the Security Agreement and the UCC shall be the State of New York.
8. Jurisdiction. The Debtor agrees that any suit, action, proceeding
------------
or claim against it arising out of, or in relation to, this Agreement may be
brought and enforced in the courts of the State of New York located in New York
County or in the United States District Court for the Southern District of New
York. The Debtor irrevocably submits to the non-exclusive jurisdiction of each
such court and hereby irrevocably designates CT Corporation System with an
address at 111 Eighth Avenue, New York, New York 10011 as its authorized agent
for the service of process in New York and agrees that service of process may be
made in any other manner permitted by law. The Debtor waives any defense of
forum non conveniens that it might otherwise have in connection with such
- ----- --- ----------
submission.
9. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the Debtor, the Secured Party and the Deposit Bank
have caused this Agreement to be duly executed and delivered as of the date
first above written.
BLUESTREAK DIGITAL, INC.,
as Debtor
By:
-------------------------------
Name:
Title:
Address for notices:
HSBC Bank USA, as collateral agent,
as Secured Party
By:
-------------------------------
Name:
Title:
Address for notices: 452 Fifth Avenue
New York, New York 10018
Attn:
------------------
[NAME]
as Deposit Bank
By:
-------------------------------
Name:
Title:
Address for notices:
EXHIBIT B
SECURITIES ACCOUNT CONTROL AGREEMENT
BLUESTREAK DIGITAL, INC.
None.
EXHIBIT B-Form
SECURITIES ACCOUNT CONTROL AGREEMENT
BLUESTREAK DIGITAL, INC.
SECURITIES ACCOUNT CONTROL AGREEMENT (this "Agreement") dated as of
April 19, 2002 among Bluestreak Digital, Inc. (the "Debtor"), HSBC Bank USA, as
collateral agent (the "Secured Party") and as Securities
-------------
Intermediary (the "Securities Intermediary").
PRELIMINARY STATEMENTS:
(A) The Debtor, the Secured Party and certain Globix Corporation
subsidiaries have entered into that certain Indenture (the "Indenture"), dated
as of the date hereof, and the Debtor and the Secured Party have entered into a
Pledge and General Security Agreement dated as of April 19, 2002 (as amended,
modified or supplemented from time to time, the "Security Agreement").
(B) It is a condition to the purchase of the purchase of the
Securities under the Indenture that the Debtor pledge certain collateral to the
Secured Party.
(C) The Debtor has established with the Securities Intermediary an
account with account number , the name and in the name
----------- ------------
of (the "Collateral Account") as a Securities Account under the
------------
Security Agreement.
(D) The Securities Intermediary has agreed to act in such capacity.
NOW THEREFORE, in consideration of the premises the parties hereto
hereby agree as follows:
1. Definitions. Unless otherwise defined herein, all capitalized terms
-----------
used herein and defined in the Security Documents and the Security Agreement
shall be used herein as therein defined. To the extent that any terms or
concepts defined or used herein are defined or used in the UCC, such terms or
concepts shall be interpreted for purposes hereof in a manner that is consistent
with such definition or use in the UCC.
2. Pledge. The Debtor hereby grants, pledges and assigns to the
------
Secured Party, and hereby creates a continuing first priority Lien and security
interest in favor of the Secured Party in, and transfers to the Secured Party
all dominion and control over, all of its right, title and interest in and to
the following:
(a) the Collateral Account, together with any and all property of
whatever type or kind credited to the Collateral Account, whether now owned or
hereafter acquired, existing or arising, including, without limitation, all
Financial Assets, Investment Property, Treasury Securities, funds, moneys,
checks, drafts, Instruments, Securities or interests therein of any type or
nature credited to the Collateral Account, and all Proceeds of any and all of
the foregoing, including, without limitation, all dividends, interest,
distributions, cash and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the foregoing;
(b) all Security Entitlements or other Investment Property of the
Debtor from time to time in or relating to any and all of the foregoing; and all
Proceeds of any and all of the foregoing, and any and all Instruments
representing, and Security Entitlements in, any such Proceeds.
(c) All of the foregoing shall constitute Collateral under the
Security Agreement.
3. Security for Obligations; Terms of Pledge. The Collateral hereunder
-----------------------------------------
secures the payment and performance of the Obligations in accordance with the
Security Agreement. The rights and obligations of the Secured Party and the
Debtor in respect of the Collateral hereunder shall be as provided in the
Security Agreement.
4. Representations and Warranties. The Debtor represents and warrants
------------------------------
as follows:
(a) The Debtor is the sole beneficial owner of the Collateral Account
subject to this Agreement and the Security Agreement, free and clear of any
Lien, option or other encumbrance except for the Permitted Liens as defined
under the Indenture and the Lien created by this Agreement and the Security
Agreement.
(b) The pledge of the Collateral Account pursuant to this Agreement
and the Security Agreement creates a valid and perfected first priority Lien in
the Collateral Account, securing the payment and performance when due of the
Obligations.
(c) The Debtor is a corporation duly organized under the Laws of the
State of Delaware, and is in good standing in each jurisdiction where the
failure to so be would have a material adverse effect on its business or
properties.
(d) It has full power, authority and legal right to pledge the
Collateral Account pursuant to this Agreement and the Security Agreement.
(e) This Agreement has been duly authorized, executed and delivered by
the Debtor and constitutes a legal, valid and binding obligation of the Debtor
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally affecting
creditors' rights and subject to general equitable principles (regardless of
whether such principles are considered in a proceeding in equity or at law).
(f) No authorization, approval, or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the pledge by the Debtor of the Collateral Account pursuant to this Agreement or
the Security Agreement or for the execution, delivery or performance of this
Agreement by the Debtor.
(g) The execution, delivery and performance of this Agreement will not
violate any provision of any applicable law or regulation or of any order,
judgment, writ, award or decree of any court, arbitrator or governmental
authority, domestic or foreign, applicable to the Debtor, or of the company
documents of the Debtor.
5. The Securities Intermediary; Entitlement Orders.
-----------------------------------------------
(a) The parties hereto hereby expressly acknowledge and agree that the
assets credited to the Collateral Account at any time and from time to time
constitute, and shall be treated as, "Financial Assets" under Article 8 of the
UCC.
(b) The parties hereto agree that the Securities Intermediary shall,
upon delivery of written notice from the Secured Party to the Securities
Intermediary that an Event of Default has occurred and is continuing, honor
Entitlement Orders received from the Secured Party with respect to the
Collateral Account without further consent of the Debtor and not honor
Entitlement Orders from any other Person (including the Debtor). The Debtor
hereby agrees that the Debtor may not, for so long as an Event of Default has
occurred and is continuing, give any Entitlement Orders to the Securities
Intermediary or make withdrawals from the Collateral Account, and the Securities
Intermediary shall not honor any Entitlement Orders or request for withdrawal
made by the Debtor, except with the written consent of the Secured Party for so
long as such Event of Default is continuing.
(c) The Securities Intermediary shall have no obligations to the
Secured Party with respect to the Collateral Account except as expressly set
forth in this Section 5.
(d) The Securities Intermediary represents and warrants that it has no
knowledge of any claim to, security interest in or lien upon the Collateral
Account other than the Lien and security interest hereunder and under the
Security Agreement.
(e) The Securities Intermediary has not entered into, nor will it
enter into, any agreement with any third party regarding the Collateral Account
or agreed that it will comply with any Entitlement Orders concerning such
Collateral originated by any such third party, nor has the Securities
Intermediary entered into, nor will it enter into, any arrangement with the
Debtor or any third party by which the Securities Intermediary agrees to limit
or qualify its undertakings to comply with the Entitlement Orders of the Secured
Party as set forth herein.
(f) The Securities Intermediary represents and warrants that it is a
"securities intermediary" within the meaning of Article 8 of the UCC.
6. Notices. All notices and other communications provided for
-------
hereunder shall be in writing addressed to the respective parties at their
addresses as specified with their signatures below or as to any party at such
other address as shall be designated by such party in a written notice to each
other party. All such notices and other communications shall be effective upon
receipt.
7. Governing Law. This Agreement (including the establishment and
-------------
maintenance of the Securities Account and all interests, duties and obligations
related thereto) shall be governed by and construed in accordance with the laws
of the State of New York
without reference to its conflict of laws principles, and in furtherance thereof
the parties hereto agree that the jurisdiction of the Securities Intermediary
shall be the State of New York for all matters relating to the Collateral
Account, this Agreement, the Security Agreement and the UCC.
8. Jurisdiction. The Debtor agrees that any suit, action, proceeding
------------
or claim against it arising out of, or in relation to, this Agreement may be
brought and enforced in the courts of the State of New York located in New York
County or in the United States District Court for the Southern District of New
York. The Debtor irrevocably submits to the non-exclusive jurisdiction of each
such court and hereby irrevocably designates CT Corporation System with an
address at 111 Eighth Avenue, New York, New York 10011 as its authorized agent
for the service of process in New York and agrees that service of process may be
made in any other manner permitted by law. The Debtor waives any defense of
forum non conveniens that it might otherwise have in connection with such
- ----- --- ----------
submission.
9. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the Debtor, the Secured Party and the Securities
Intermediary have caused this Agreement to be duly executed and delivered as of
the date first above written.
BLUESTREAK DIGITAL, INC.,
as Debtor
By:
---------------------------------
Name:
Title:
Address for notices:
HSBC Bank USA, as collateral agent,
as Secured Party
By:
---------------------------------
Name:
Title:
Address for notices: 452 Fifth Avenue
New York, New York 10018
Attn:
------------------
[NAME],
as Securities Intermediary
By:
---------------------------------
Name:
Title:
Address for notices:
EXHIBIT C
COMMODITY ACCOUNT CONTROL AGREEMENT
BLUESTREAK DIGITAL, INC.
None.
EXHIBIT C-FORM
COMMODITY ACCOUNT CONTROL AGREEMENT
BLUESTREAK DIGITAL, INC.
COMMODITY ACCOUNT CONTROL AGREEMENT (this "Agreement") dated as of
April 19, 2002, among Bluestreak Digital, Inc. (the "Debtor"), HSBC Bank USA, as
collateral agent (the "Secured Party") and as Commodity
-------------
Intermediary (the "Commodity Intermediary").
PRELIMINARY STATEMENTS:
(A) The Debtor, the Secured Party and certain Globix Corporation
subsidiaries have entered into that certain Indenture (the "Indenture"), dated
as of the date hereof and the Debtor and the Secured Party have entered into a
Pledge and General Security Agreement dated as of April 19, 2002 (as amended,
modified or supplemented from time to time, the "Security Agreement").
(B) It is a condition to the purchase of the purchase of the
Securities under the Indenture that the Debtor pledge certain collateral to the
Secured Party.
(C) The Debtor has established with the Commodity Intermediary an
account [describe, including number and type and name of account] in the name of
the [Debtor] [Secured Party] (the "Collateral Account") as a Commodity Account
under the Security Agreement with the Commodity Intermediary.
(D) The Commodity Intermediary has agreed to act in such capacity.
NOW THEREFORE, in consideration of the premises the parties hereto
hereby agree as follows:
1. Definitions. Unless otherwise defined herein, all capitalized terms
-----------
used herein and defined in the Security Documents and the Security Agreement
shall be used herein as therein defined. To the extent that any terms or
concepts defined or used herein are defined or used in the UCC, such terms or
concepts shall be interpreted for purposes hereof in a manner that is consistent
with such definition or use in the UCC.
2. Pledge. The Debtor hereby grants, pledges and assigns to the
------
Secured Party, and hereby creates a continuing first priority Lien and security
interest in favor of the Secured Party in, and transfers to the Secured Party
all dominion and control over, all of its right, title and interest in and to
the following:
(a) the Collateral Account, together with any and all property of
whatever type or kind credited to the Collateral Account, whether now owned or
hereafter acquired, existing or arising, including, without limitation, all
Commodity Contracts or interests therein of any type or nature credited to the
Collateral Account, and all Proceeds of any and all of the foregoing, including,
without limitation, all dividends, interest, distributions, cash and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the foregoing;
(b) all Commodity Contracts or other Investment Property of the Debtor
from time to time in or relating to any and all of the foregoing; and all
Proceeds of any and all of the foregoing, and any and all Instruments
representing, and Security Entitlements in, any such Proceeds.
(c) All of the foregoing shall constitute Collateral under the
Security Agreement.
3. Security for Obligations; Terms of Pledge. The Collateral hereunder
-----------------------------------------
secures the payment and performance of the Obligations in accordance with the
Security Agreement. The rights and obligations of the Secured Party and the
Debtor in respect of the Collateral hereunder shall be as provided in the
Security Agreement.
4. Representations and Warranties. The Debtor represents and warrants
------------------------------
as follows:
(a) The Debtor is the sole beneficial owner of the Collateral Account
subject to this Agreement and the Security Agreement, free and clear of any
Lien, option or other encumbrance except for the Permitted Liens as defined in
the Indenture and the Lien created by this Agreement and the Security Agreement.
(b) The pledge of the Collateral Account pursuant to this Agreement
and the Security Agreement creates a valid and perfected first priority Lien in
the Collateral Account, securing the payment and performance when due of the
Obligations.
(c) The Debtor is a corporation duly organized under the Laws of the
State of Delaware, and is in good standing in each jurisdiction where the
failure to so be would have a material adverse effect on its business or
properties.
(d) It has full power, authority and legal right to pledge the
Collateral Account pursuant to this Agreement and the Security Agreement.
(e) This Agreement has been duly authorized, executed and delivered by
the Debtor and constitutes a legal, valid and binding obligation of the Debtor
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally affecting
creditors' rights and subject to general equitable principles (regardless of
whether such principles are considered in a proceeding in equity or at law).
(f) No authorization, approval, or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the pledge by the Debtor of the Collateral pursuant to this Agreement or the
Security Agreement or for the execution, delivery or performance of this
Agreement by the Debtor.
(g) The execution, delivery and performance of this Agreement will not
violate any provision of any applicable law or regulation or of any order,
judgment, writ, award or decree of any court, arbitrator or governmental
authority, domestic or foreign, applicable to the Debtor, or of the company
documents of the Debtor.
5. The Commodity Intermediary; Entitlement Orders.
----------------------------------------------
(a) The parties hereto hereby expressly acknowledge and agree that the
assets carried in or credited to the Collateral Account at any time and from
time to time constitute, and shall be treated as, "Commodity Contracts" under
Article 9 of the UCC.
(b) The parties hereto agree that the Commodity Intermediary shall,
upon delivery of written notice from the Secured Party to the Commodity
Intermediary that an Event of Default has occurred and is continuing, honor
instructions received from the Secured Party with respect to the Collateral
Account or any Commodity Contracts carried in the Collateral Account, including
any instructions as to the application of any value distributed on account of
such Commodity Contracts (all such instructions, "Commodity Orders"), without
further consent of the Debtor and not honor Commodity Orders from any other
Person (including the Debtor). The Debtor hereby agrees that the Debtor may not,
for so long as an Event of Default has occurred and is continuing, give any
Commodity Orders to the Commodity Intermediary or make withdrawals from the
Collateral Account, and the Commodity Intermediary shall not honor any Commodity
Orders or request for withdrawal made by the Debtor, except with the written
consent of the Secured Party for so long as such Event of Default is
continuing,.
(c) The Commodity Intermediary shall have no obligations to the
Secured Party with respect to the Collateral Account except as expressly set
forth in this Section 5.
(d) The Commodity Intermediary represents and warrants that it has no
knowledge of any claim to, security interest in or lien upon the Commodity
Account or any of the Commodity Contracts carried in the Collateral Account
other than the Lien and security interest hereunder and under the Security
Agreement.
(e) The Commodity Intermediary has not entered into, nor will it enter
into, any agreement with any third party regarding the Collateral Account, any
Commodity Contracts carried in the Collateral Account or agreed that it will
comply with any instructions concerning such Collateral Account (including,
without limitation, any Commodity Orders) originated by any such third party,
nor has the Commodity Intermediary entered into, nor will it enter into, any
arrangement with the Debtor or any third party by which the Commodity
Intermediary agrees to limit or qualify its undertakings to comply with the
Commodity Orders of the Secured Party as set forth herein.
(f) The Commodity Intermediary represents and warrants that it is a
"commodity intermediary" within the meaning of Article 9 of the UCC.
6. Notices. All notices and other communications provided for
-------
hereunder shall be in writing addressed to the respective parties at their
addresses as specified with their signatures below or as to any party at such
other address as shall be designated by such party in a
written notice to each other party. All such notices and other communications
shall be effective upon receipt.
7. Governing Law. This Agreement (including the establishment and
-------------
maintenance of the Collateral Account and all interests, duties and obligations
related thereto) shall be governed by and construed in accordance with the laws
of the State of New York without reference to its conflict of laws principles,
and in furtherance thereof the parties hereto agree that the jurisdiction of the
Commodity Intermediary shall be the State of New York for all matters relating
to the Collateral Account, this Agreement, the Security Agreement and the UCC.
8. Jurisdiction. The Debtor agrees that any suit, action, proceeding
------------
or claim against it arising out of, or in relation to, this Agreement may be
brought and enforced in the courts of the State of New York located in New York
County or in the United States District Court for the Southern District of New
York. The Debtor irrevocably submits to the non-exclusive jurisdiction of each
such court and hereby irrevocably designates CT Corporation System with an
address at 111 Eighth Avenue, New York, New York 10011 as its authorized agent
for the service of process in New York and agrees that service of process may be
made in any other manner permitted by law. The Debtor waives any defense of
forum non conveniens that it might otherwise have in connection with such
- ----- --- ----------
submission.
9. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the Debtor, the Secured Party and the Commodity
Intermediary have caused this Agreement to be duly executed and delivered as of
the date first above written.
BLUESTREAK DIGITAL, INC.,
as Debtor
By:
---------------------------------
Name:
Title:
Address for notices:
HSBC Bank USA, as collateral agent,
as Secured Party
By:
---------------------------------
Name:
Title:
Address for notices: 452 Fifth Avenue
New York, New York 10018
Attn:
------------------
[NAME],
as Commodity Intermediary
By:
---------------------------------
Name:
Title:
Address for notices:
EXHIBIT D
COPYRIGHT SECURITY AGREEMENT
BLUESTREAK DIGITAL, INC.
None.
EXHIBIT D-FORM
COPYRIGHT SECURITY AGREEMENT
BLUESTREAK DIGITAL, INC.
COPYRIGHT SECURITY AGREEMENT (this "Agreement") dated as of April 19,
2002, from Bluestreak Digital, Inc. (the "Debtor") to HSBC Bank USA, as
collateral agent (the "Secured Party").
WHEREAS, Debtor owns, or in the case of licenses is a party to, the
Copyright Collateral (as defined below);
WHEREAS, Debtor, the Secured Party and certain Globix Corporation
subsidiaries have entered into that certain Indenture (the "Indenture"), dated
as of the date hereof and the Debtor and the Secured Party have entered into a
Pledge and General Security Agreement dated as of April 19, 2002 (as amended,
modified or supplemented from time to time, the "Security Agreement").
WHEREAS, pursuant to (i) the Security Agreement and (ii) certain other
collateral documents (including this Copyright Security Agreement), the Debtor
has granted and/or is granting to the Secured Party a continuing security
interest in personal property of the Debtor, including all right, title and
interest of the Debtor in, to and under the Copyright Collateral (as defined
below), to secure the Debtor's Obligations (as defined in the Security
Agreement);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Debtor grants to the Secured
Party, to secure the Debtor's Obligations (as defined in the Indenture), a
continuing security interest in all of the Debtor's right, title and interest
in, to and under the following (all of the following items or types of property
being herein collectively referred to as the "Copyright Collateral"), whether
now owned or existing or hereafter acquired or arising:
each Copyright (as defined in the Security Agreement) owned by the
Debtor, including, without limitation, each Copyright referred to in
Schedule 1 hereto;
each Copyright License (as defined in the Security Agreement) to which
the Debtor is a party, including, without limitation, each Copyright
License identified in Schedule 1 hereto; and
all proceeds of and revenues from the foregoing, including, without
limitation, all proceeds of and revenues from any claim by the Debtor
against third parties for past, present or future infringement of any
Copyright owned by the Debtor (including, without limitation, any Copyright
License identified in Schedule 1 hereto).
The Debtor irrevocably constitutes and appoints the Secured Party and
any officer thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full power and authority in the name of the Debtor or in
the Secured Party's name, from time to time, in the
Secured Party's discretion, so long as any Event of Default shall have occurred
and be continuing, to take with respect to the Copyright Collateral any and all
appropriate action which the Debtor might take with respect to the Copyright
Collateral and to execute any and all documents and instruments which may be
necessary or desirable to carry out the terms of this Copyright Security
Agreement and to accomplish the purposes hereof.
Except to the extent expressly permitted in the Security Agreement or
the Security Documents, the Debtor agrees not to sell, license, exchange, assign
or otherwise transfer or dispose of, or grant any rights with respect to, or
mortgage or otherwise encumber, any of the Copyright Collateral.
The foregoing security interest is granted in conjunction with the
security interests granted by the Debtor to the Secured Party pursuant to the
Security Agreement. The Debtor acknowledges and affirms that the rights and
remedies of the Secured Party with respect to the security interest in the
Copyright Collateral granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
IN WITNESS WHEREOF, the Debtor has caused this Copyright Security
Agreement to be duly executed by its officer thereunto duly authorized as of
date first above written.
BLUESTREAK DIGITAL, INC.
By:
---------------------------------
Name:
Title:
Acknowledged:
By:
-----------------------------
Name:
Title:
STATE OF )
-------------------------
) ss:
COUNTY OF )
------------------------
I, , a Notary Public in and for said County, in the State
-----------
aforesaid, DO HEREBY CERTIFY, that , [TITLE] of
------------------------
[COMPANY] (the "Company"), personally known to me to be the same person whose
name is subscribed to the foregoing instrument as such [TITLE], appeared before
me this day in person and acknowledged that he signed, executed and delivered
the said instrument as his own free and voluntary act and as the free and
voluntary act of said Company, for the uses and purposes therein set forth being
duly authorized so to do.
GIVEN under my hand and Notarial Seal this day of , 2002.
---- ------
[Seal]
- -----------------------------
Signature of notary public
MY COMMISSION EXPIRES
--------
Schedule 1
To Copyright
Security Agreement
BLUESTREAK DIGITAL, INC.
COPYRIGHTS
EXHIBIT E
PATENT SECURITY AGREEMENT
BLUESTREAK DIGITAL, INC.
None.
EXHIBIT E-FORM
PATENT SECURITY AGREEMENT
BLUESTREAK DIGITAL, INC.
PATENT SECURITY AGREEMENT (this "Agreement") dated as of April 19,
2002, from Bluestreak Digital, Inc. (the "Debtor") to HSBC Bank USA, as
collateral agent (the "Secured Party").
WHEREAS, Debtor owns, or in the case of licenses is a party to, the
Patent Collateral (as defined below);
WHEREAS, Debtor, the Secured Party and certain Globix Corporation
subsidiaries have entered into that certain Indenture (the "Indenture"), dated
as of the date hereof and the Debtor and the Secured Party have entered into a
Pledge and General Security Agreement dated as of April 19, 2002 (as amended,
modified or supplemented from time to time, the "Security Agreement").
WHEREAS, pursuant to (i) the Security Agreement and (ii) certain other
collateral documents (including this Patent Security Agreement), the Debtor has
granted and/or is granting to the Secured Party for the benefit of the Secured
Party a continuing security interest in personal property of the Debtor,
including all right, title and interest of the Debtor in, to and under the
Patent Collateral (as defined below), to secure the Obligations (as defined in
the Indenture);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Debtor grants to the Secured
Party, to secure the Obligations, a continuing security interest in all of the
Debtor's right, title and interest in, to and under the following (all of the
following items or types of property being herein collectively referred to as
the "Patent Collateral"), whether now owned or existing or hereafter acquired or
arising:
each Patent (as defined in the Security Agreement) owned by the
Debtor, including, without limitation, each Patent referred to in Schedule
1 hereto;
each Patent License (as defined in the Security Agreement) to which
the Debtor is a party, including, without limitation, each Patent License
identified in Schedule 1 hereto; and
all proceeds of and revenues from the foregoing, including, without
limitation, all proceeds of and revenues from any claim by the Debtor
against third parties for past, present or future infringement of any
Patent owned by the Debtor (including, without limitation, any Patent
License identified in Schedule 1 hereto).
The Debtor irrevocably constitutes and appoints the Secured Party and
any officer thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full power and authority in the name of the Debtor or in
the Secured Party's name, from time to time, in the Secured Party's discretion,
so long as any Event of Default shall have occurred and be
continuing, to take with respect to the Patent Collateral any and all
appropriate action which the Debtor might take with respect to the Patent
Collateral and to execute any and all documents and instruments which may be
necessary or desirable to carry out the terms of this Patent Security Agreement
and to accomplish the purposes hereof.
Except to the extent expressly permitted in the Security Agreement or
the Security Documents, the Debtor agrees not to sell, license, exchange, assign
or otherwise transfer or dispose of, or grant any rights with respect to, or
mortgage or otherwise encumber, any of the Patent Collateral.
The foregoing security interest is granted in conjunction with the
security interests granted by the Debtor to the Secured Party pursuant to the
Security Agreement. The Debtor acknowledges and affirms that the rights and
remedies of the Secured Party with respect to the security interest in the
Patent Collateral granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
IN WITNESS WHEREOF, the Debtor has caused this Patent Security
Agreement to be duly executed by its officer thereunto duly authorized as of
date first above written.
BLUESTREAK DIGITAL, INC.
By:
---------------------------------
Name:
Title:
Acknowledged:
By:
-----------------------------
Name:
Title:
STATE OF )
-------------------------
) ss:
COUNTY OF )
------------------------
I, , a Notary Public in and for said County, in the State
-----------
aforesaid, DO HEREBY CERTIFY, that , [TITLE] of [NAME OF
------------------------
DEBTOR] (the "Company"), personally known to me to be the same person whose name
is subscribed to the foregoing instrument as such [TITLE], appeared before me
this day in person and acknowledged that he signed, executed and delivered the
said instrument as his own free and voluntary act and as the free and voluntary
act of said Company, for the uses and purposes therein set forth being duly
authorized so to do.
GIVEN under my hand and Notarial Seal this day of , 2002.
---- ------
[Seal]
- -----------------------------
Signature of notary public
MY COMMISSION EXPIRES
--------
Schedule 1
To Patent
Security Agreement
BLUESTREAK DIGITAL, INC.
PATENTS
PATENTS AND DESIGN PATENTS
- --------------------------------------------------------------------------------
Patent No. Issued Expiration Country Title
- ---------- ------ ---------- ------- -----
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PATENTS Applications
- --------------------------------------------------------------------------------
Case No. Serial No. Country Date Filing Title
- -------- ---------- ------- ---- ------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PATENT LICENSES
- --------------------------------------------------------------------------------
Name of Parties Date of Subject
Agreement Licensor/Licensee Agreement Matter
- --------- ----------------- --------- ------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EXHIBIT F
TRADEMARK SECURITY AGREEMENT
BLUESTREAK DIGITAL, INC.
None.
EXHIBIT F-FORM
TRADEMARK SECURITY AGREEMENT
BLUESTREAK DIGITAL, INC.
TRADEMARK SECURITY AGREEMENT (this "Agreement") dated as of April 19,
2002, from Bluestreak Digital, Inc. (the "Debtor") to HSBC Bank USA, as
collateral agent (the "Secured Party").
WHEREAS, Debtor owns, or in the case of licenses is a party to, the
Trademark Collateral (as defined below);
WHEREAS, Debtor, the Secured Party and certain Globix Corporation
subsidiaries have entered into that certain Indenture (the "Indenture"), dated
as of the date hereof and the Debtor and the Secured Party have entered into a
Pledge and General Security Agreement dated as of April 19, 2002 (as amended,
modified or supplemented from time to time, the "Security Agreement").
WHEREAS, pursuant to (i) the Security Agreement and (ii) certain other
collateral documents (including this Trademark Security Agreement), the Debtor
has granted and/or is granting to the Secured Party for the benefit of such
Secured Party a continuing security interest in personal property of the Debtor,
including all right, title and interest of the Debtor in, to and under the
Trademark Collateral (as defined below), to secure the Obligations (as defined
in the Indenture);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Debtor grants to the Secured
Party, to secure the Obligations, a continuing security interest in all of the
Debtor's right, title and interest in, to and under the following (all of the
following items or types of property being herein collectively referred to as
the "Trademark Collateral"), whether now owned or existing or hereafter acquired
or arising:
(i) each registered Trademark (as defined in the Security Agreement)
owned by the Debtor, including, without limitation, each
Trademark registration and application referred to in Schedule I
hereto, and all of the goodwill of the business connected with
the use of, or symbolized by, each Trademark;
(ii) each Trademark License (as defined in the Security Agreement),
except for intercompany Trademark Licenses, to which the Debtor
is a party, including, without limitation, each Trademark License
identified in Schedule 1 hereto, and all of the goodwill of the
business connected with the use of, or symbolized by, each
Trademark licensed pursuant thereto; and
(iii) all proceeds of and revenues from the foregoing, including,
without
limitation, all proceeds of and revenues from any claim by the
Debtor against third parties for past, present or future unfair
competition with, or violation of intellectual property rights in
connection with or injury to, or infringement or dilution of, any
Trademark owned by the Debtor (including, without limitation, any
Trademark identified in Schedule 1 hereto), and all rights and
benefits of the Debtor under any Trademark License (including,
without limitation, any Trademark License identified in Schedule
1 hereto), or for injury to the goodwill associated with any of
the foregoing.
The Debtor irrevocably constitutes and appoints the Secured Party and
any officer thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full power and authority in the name of the Debtor or in
the Secured Party's name, from time to time, in the Secured Party's discretion,
so long as any Event of Default shall have occurred and be continuing, to take
with respect to the Trademark Collateral any and all appropriate action which
the Debtor might take with respect to the Trademark Collateral and to execute
any and all documents and instruments which may be necessary or desirable to
carry out the terms of this Trademark Security Agreement and to accomplish the
purposes hereof.
Except tot the extent expressly permitted in the Security Agreement or
the Security Documents, the Debtor agrees not to sell, license, exchange, assign
or otherwise transfer or dispose of or grant any rights with respect to, or
mortgage or otherwise encumber, any of the Trademark Collateral.
The foregoing security interest is granted in conjunction with the
security interest granted by the Debtor to the Secured Party pursuant to the
Security Agreement. The Debtor acknowledges and affirms that the rights and
remedies of the Secured Party with respect to the security interest in the
Trademark Collateral granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
IN WITNESS WHEREOF, the Debtor has caused this Trademark Security
Agreement to be duly executed by its officer thereunto duly authorized as of the
date first above written.
BLUESTREAK DIGITAL, INC.
By:
---------------------------------
Name:
Title:
Acknowledged:
By:
-----------------------------
Name:
Title:
STATE OF )
-------------------------
) ss:
COUNTY OF )
------------------------
I, , a Notary Public in and for said County, in the State
-----------
aforesaid, DO HEREBY CERTIFY, that , [TITLE] of [NAME OF
------------------------
DEBTOR] (the "Company"), personally known to me to be the same person whose name
is subscribed to the foregoing instrument as such [TITLE], appeared before me
this day in person and acknowledged that he signed, executed and delivered the
said instrument as his own free and voluntary act and as the free and voluntary
act of said Company, for the uses and purposes therein set forth being duly
authorized so to do.
GIVEN under my hand and Notarial Seal this day of , 2002.
---- ------
[Seal]
- -----------------------------
Signature of notary public
My Commission expires
--------
Schedule 1
To Trademark
Security Agreement
BLUESTREAK DIGITAL, INC.
TRADEMARKS
TRADEMARKS
- --------------------------------------------------------------------------------
Trademark No. Issued Expiration Country Title
- ------------- ------ ---------- ------- -----
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TRADEMARKS Applications
- --------------------------------------------------------------------------------
Case No. Serial No. Country Date Filing Title
- -------- ---------- ------- ---- ------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TRADEMARK LICENSES
- --------------------------------------------------------------------------------
Name of Parties Date of Subject
Agreement Licensor/Licensee Agreement Matter
- --------- ----------------- --------- ------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
List of Subsidiary Guarantors
1. BLUESTREAK DIGITAL, INC.
2. GAMENET CORPORATION
3. NAFT COMPUTER SERVICE CORPORATION
4. NAFT INTERNATIONAL LTD.
5. PFM COMMUNICATIONS, INC.
6. GRE CONSULTING, INC.
7. 415 GREENWICH GC, LLC
8. 415 GREENWICH GC TENANT, LLC
9. 415 GREENWICH GC MM, LLC
10. COMSTAR.NET, INC.
11. COMSTAR TELECOM & WIRELESS, INC.