{"id":41306,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/security-agreement-western-multiplex-corp-and-credit-suisse.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"security-agreement-western-multiplex-corp-and-credit-suisse","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/security-agreement-western-multiplex-corp-and-credit-suisse.html","title":{"rendered":"Security Agreement &#8211; Western Multiplex Corp. and Credit Suisse First Boston"},"content":{"rendered":"<pre>                              SECURITY AGREEMENT\n\n\n         THIS SECURITY AGREEMENT dated as of November 1, 1999 (\"Security\nAgreement\"), is made by WESTERN MULTIPLEX CORPORATION, a Delaware corporation\n(\"Grantor\"), in favor of CREDIT SUISSE FIRST BOSTON, as Agent for Banks under\nthe Credit Agreement (as defined below) (in its capacity as Agent, \"Secured\nParty\").\n\n                                   RECITALS\n\n         A.  Pursuant to that certain Credit Agreement dated as of the date\nhereof by and among Grantor, Secured Party and Banks (as the same may from time\nto time be amended, modified, supplemented or restated, the \"Credit Agreement\"),\nBanks have agreed to make certain advances of money and to extend certain\nfinancial accommodations to Grantor in the amounts and manner set forth in the\nCredit Agreement (collectively, the \"Loans\").\n\n         B.  Banks are willing to make the Loans to Grantor, but only upon the\ncondition, among others, that Grantor shall have executed and delivered to\nSecured Party this Security Agreement.\n\n                                   AGREEMENT\n\n         Now, THEREFORE, in order to induce blanks to make the Loans and for\nother good and valuable consideration, the receipt and adequacy of which are\nhereby acknowledged, and intending to be legally bound, Grantor hereby\nrepresents, warrants, covenants and agrees as follows:\n\n         1.  DEFINED TERMS. When used in this Security Agreement the following\nterms shall have the following meanings (such meanings being equally applicable\nto both the singular and plural forms of the terms defined):\n\n         \"Collateral\" shall have the meaning assigned to such term in Section 2\nof this Security Agreement.\n\n         \"Contracts\" means all contracts, undertakings, franchise agreements or\nother agreements in or under which Grantor now holds or hereafter acquires any\nright, title or interest, including, without limitation, with respect to an\nAccount, any agreement relating to the terms of payment or the terms of\nperformance thereof.\n\n         \"Copyright License\" means any written agreement, in which Grantor now\nholds or hereafter acquires any interest, granting any right in or to any\nCopyright or Copyright registration (whether Grantor is the licensee or the\nlicensor thereunder) including, without limitation, licenses pursuant to which\nGrantor has obtained the exclusive right to use a copyright\n\n \n                                                                               2\n\nowned by a third party.\n\n         \"Copyrights\" means all of the following in which Grantor now holds or\nhereafter acquires any interest: (a) all copyrights, whether registered or\nunregistered, held pursuant to the laws of the United States, any State thereof\nor any other country; (b) registrations, applications and recordings in the\nUnited States Copyright Office or in any similar office or agency of the United\nStates, any State thereof or any other country; (c) any continuations, renewals\nor extensions thereof; (d) any registrations to be issued in any pending\napplications; (e) prior versions of works covered by copyright and all works\nbased upon, derived from or incorporating such works; (f) income, royalties,\ndamages, claims and payments now and hereafter due and\/or payable with respect\nto copyrights, including, without limitation, damages, claims and recoveries for\npast, present or future infringement; (g) rights to sue for past, present and\nfuture infringements of any copyright; and (h) any other rights corresponding to\nany of the foregoing rights throughout the world.\n\n         \"License\" means any Copyright License, Patent License, Trademark\nLicense or other license of intellectual property rights or interests now held\nor hereafter acquired by Grantor.\n\n         \"Lien\" means any mortgage, lien, deed of trust, charge, pledge,\nsecurity interest or other encumbrance.\n\n         \"Patent License\" means any written agreement, in which Grantor now\nholds or hereafter acquires any interest, granting any right with respect to any\nPatent (whether Grantor is the licensee or the licensor thereunder).\n\n         \"Patents\" means all of the following in which Grantor now holds or\nhereafter acquires any interest: (a) all letters patent of the United States or\nany other country, all registrations and recordings thereof and all applications\nfor letters patent of the United States or any other country, including, without\nlimitation, registrations, recordings and applications in the United States\nPatent and Trademark Office or in any similar office or agency of the United\nStates, any State thereof or any other country; (b) all reissues, divisions,\ncontinuations, renewals, continuations in part or extensions thereof; (c) all\npetty patents, divisionals and patents of addition; (d) all patents to issue in\nany such applications; (e) income, royalties, damages, claims and payments now\nand hereafter due and\/or payable with respect to patents, including, without\nlimitation, damages, claims and recoveries for past, present or future\ninfringement; and (f) rights to sue for past, present and future infringements\nof any patent.\n\n         \"Secured Obligations\" means (a) the obligation of Grantor to repay\nSecured Party all of the unpaid principal amount of, and accrued interest on\n(including any interest that accrues after the commencement of bankruptcy) the\nLoans, (b) the obligation of Grantor to pay any fees, costs and expenses of the\nSecured Party under the Credit Agreement or under Section 6(b) hereof and (c)\nall other indebtedness, liabilities and obligations of Grantor to Secured Party,\nwhether now existing or hereafter incurred, and whether created under, arising\nout of or in connection with any written agreement or otherwise.\n\n \n                                                                               3\n\n         \"Trademark License\" means any written agreement, in which Grantor now\nholds or hereafter acquires any interest, granting any right in and to any\nTrademark or Trademark registration (whether Grantor is the licensee or the\nlicensor thereunder).\n\n         \"Trademarks\" means any of the following in which Grantor now holds or\nhereafter acquires any interest: (a) any trademarks, tradenames, corporate\nnames, company names, business names, trade styles, service marks, logos, other\nsource or business identifiers, prints and labels on which any of the foregoing\nhave appeared or appear, designs and general intangibles of like nature, now\nexisting or hereafter adopted or acquired, all registrations and recordings\nthereof and any applications in connection therewith, including, without\nlimitation, registrations, recordings and applications in the United States\nPatent and Trademark Office or in any similar office or agency of the United\nStates, any State thereof or any other country (collectively, the \"Marks\"); (b)\nany reissues, extensions or renewals thereof, (c) the goodwill of the business\nsymbolized by or associated with the Marks, (d) income, royalties, damages,\nclaims and payments now and hereafter due and\/or payable with respect to the\nMarks, including, without limitation, damages, claims and recoveries for past,\npresent or future infringement and (e) rights to sue for past, present and\nfuture infringements of the Marks.\n\n         \"UCC\" means the Uniform Commercial Code as the same may, from time to\ntime, be in effect in the State of New York; provided, however, in the event\nthat, by reason of mandatory provisions of law, any or all of the attachment,\nperfection or priority of Secured Party's security interest in any Collateral is\ngoverned by the Uniform Commercial Code as in effect in a jurisdiction other\nthan the State of New York, the term \"UCC\" shall mean the Uniform Commercial\nCode as in effect in such other jurisdiction for purposes of the provisions\nhereof relating to such attachment, perfection of priority and for purposes of\ndefinitions related to such provisions.\n\n         In addition, the following terms shall be defined terms having the\nmeaning set forth for such terms in the UCC: \"Account Debtor\"; \"Accounts\";\n\"Chattel Paper\"; \"Deposit Accounts\"; \"Equipment\"; \"Financial Assets\";\n\"Fixtures\"; \"General Intangibles\"; \"Instruments\"; \"Inventory\"; \"Investment\nProperty\"; \"Proceeds\". Each of the foregoing defined terms shall include all of\nsuch items now owned, or hereafter acquired by Grantor.\n\n         All capitalized terms used herein and not otherwise defined herein\nshall have the respective meanings given to them in the Credit Agreement.\n\n         2.  GRANT OF SECURITY INTEREST. As collateral security for the prompt\nand complete payment and performance when due (whether at stated maturity, by\nacceleration or otherwise) of all the Secured Obligations and in order to induce\nSecured Party and Banks to cause the Loans to be made, Grantor hereby grants to\nSecured Party for the benefit of Banks, a security interest in all of Grantor's\nright, title and interest, if any, in, to and under the following (all of which\nbeing collectively referred to herein as the \"Collateral\"):\n\n             (a)  All Accounts of Grantor;\n\n             (b)  All Chattel Paper of Grantor;\n\n \n                                                                               4\n\n             (c)  All Contracts of Grantor;\n\n             (d)  All Deposit Accounts of Grantor;\n\n             (e)  All Documents of Grantor;\n\n             (f)  All Equipment of Grantor;\n\n             (g)  All Financial Assets of Grantor;\n\n             (h)  All Fixtures of Grantor;\n\n             (i)  All General Intangibles of Grantor, including, without\nlimitation, all Copyrights, Patents, Trademarks, Licenses, drawings, technical\ninformation, marketing plans, customer lists, trade secrets, proprietary or\nconfidential information, inventions (whether or not patentable), procedures,\nknow-how and models;\n\n             (j)  All Instruments of Grantor;\n\n             (k)  All Inventory of Grantor;\n\n             (l)  All Investment Property of Grantor;\n\n             (m)  All other goods and personal property of Grantor, wherever\nlocated, whether tangible or intangible, and whether now owned or hereafter\nacquired, existing, leased or consigned by or to Grantor; and\n\n             (n)  To the extent not otherwise included, all Proceeds of each of\nthe foregoing and all accessions to, substitutions and replacements for and\nrents, profits and products of each of the foregoing; provided, however, that\n\"Collateral\" shall not include any equipment lease, equipment financing\nagreement or Equipment which is the subject of an equipment lease or equipment\nfinancing agreement to the extent and for so long as the grant of a security\ninterest therein is expressly prohibited by the terms of any enforceable\nprovision of such equipment lease or equipment financing agreement.\n\n         3.  RIGHTS OF SECURED PARTY; COLLECTION OF ACCOUNTS.\n\n\n             (a)  Notwithstanding anything contained in this Security Agreement\nto the contrary, Grantor expressly agrees that it shall remain liable under each\nof its Contracts and each of its Licenses to observe and perform all the\nconditions and obligations to be observed and performed by it thereunder and\nthat it shall perform all of its duties and obligations thereunder, all in\naccordance with and pursuant to the terms and provisions of each such Contract\nor License. Secured Party shall not have any obligation or liability under any\nContract or License by reason of or arising out of this Security Agreement or\nthe granting to Secured Party of a lien therein or the receipt by Secured Party\nof any payment relating to any Contract or License pursuant hereto, nor shall\nSecured Party be required or obligated in any manner to perform or fulfill any\nof the\n\n \n                                                                               5\n\nobligations of Grantor under or pursuant to any Contract or License, or to make\nany payment, or to make any inquiry as to the nature or the sufficiency of any\npayment received by it or the sufficiency of any performance by any party under\nany Contract or License, or to present or file any claim, or to take any action\nto collect or enforce any performance or the payment of any amounts which may\nhave been assigned to it or to which it may be entitled at any time or times.\n\n             (b)  Secured Party authorizes Grantor to collect its Accounts,\nprovided that such collection is performed in a prudent and businesslike manner,\nand Secured Party may, upon the occurrence and during the continuation of any\nEvent of Default and with prior written notice to Grantor, limit or terminate\nsaid authority at any time. Upon the occurrence and during the continuance of\nany Event of Default, at the request of Secured Party, Grantor shall deliver all\noriginal and other documents evidencing and relating to the performance of labor\nor service which created such Accounts, including, without limitation, all\noriginal orders, invoices and shipping receipts.\n\n             (c)  Secured Party may at any time, upon the occurrence and during\nthe continuance of any Event of Default, with prior written notice to Grantor of\nits intention to do so, notify Account Debtors of Grantor, parties to the\nContracts of Grantor, obligors in respect of Instruments of Grantor and obligors\nin respect of Chattel Paper of Grantor that the Accounts and the right, title\nand interest of Grantor in and under such Contracts. Instruments and Chattel\nPaper have been assigned to Secured Party and that payments shall be made\ndirectly to Secured Party. Upon the request of Secured Party at any time after\nthe occurrence and during the continuance of an Event of Default, Grantor shall\nso notify such Account Debtors, parties to such Contracts, obligors in respect\nof such Instruments and obligors in respect of such Chattel Paper. Upon the\noccurrence and during the continuance of any Event of Default, Secured Party\nmay, in its name or in the name of others, communicate with such Account\nDebtors, parties to such Contracts, obligors in respect of such Instruments and\nobligors in respect of such Chattel Paper to verify with such parties, to\nSecured Party's satisfaction, the existence, amount and terms of any such\nAccounts, Contracts, Instruments or Chattel Paper.\n\n          4. REPRESENTATIONS AND WARRANTIES.  Grantor hereby represents and \nwarrants to Secured Party that:\n\n             (a)  Except for the security interest granted to Secured Party \nunder this Security Agreement and Permitted Liens, Grantor is the sole legal and\nequitable owner of each item of the Collateral in which it purports to grant a\nsecurity interest hereunder, having good and marketable title thereto, free and\nclear of any and all Liens except for Permitted Liens.\n\n             (b)  No effective security agreement, financing statement,\nequivalent security or lien instrument or continuation statement covering all or\nany part of the Collateral exists, except for Permitted Liens.\n\n             (c)  This Security Agreement creates a legal and valid security\ninterest on and in all of the Collateral in which Grantor now has rights. Upon\nthe filing of appropriate financing statements and the taking of other actions\nspecified on Schedule C, Secured Party will have a fully perfected first\npriority security interest in all of the Collateral in which Grantor now has\nrights subject only to Permitted Liens. This Security Agreement will create a\nlegal and valid and \n\n \n                                                                               6\n\nfully perfected first priority security interest in the Collateral in which\nGrantor later acquires rights, when Grantor acquires those rights subject only\nto Permitted Liens and additional filings to be made with the United States\nCopyright Office, Patent and Trademark Office and\/or other offices as are\nnecessary to perfect Secured Party's security interest in subsequent ownership\nrights and interests of Grantor in the Collateral.\n\n             (d)  On the date hereof, Grantor's chief executive office,\nprincipal place of business and the place where Grantor maintains its records\nconcerning the Collateral are located at the address set forth on the signature\npage hereof on the date hereof, the Collateral is located at such address and at\nsuch additional addresses set forth on Schedule A attached hereto.\n\n             (e)  All copyright, patent and trademark registrations and\napplications owned by Grantor on the date hereof are listed on Schedule B\nattached hereto.\n\n          5. COVENANTS. Grantor covenants and agrees with Secured Party that\nfrom and after the date of this Security Agreement and until the Secured\nObligations have been performed and paid in full:\n\n             5.1  Disposition of Collateral. Grantor shall not sell, lease,\ntransfer or otherwise dispose of any of the Collateral, or attempt or contract\nto do so, other than as permitted by the Credit Agreement.\n\n             5.2  Relocation of Business or Collateral. Grantor shall not\nrelocate its chief executive office, principal place of business or its records,\nor allow the relocation of any Collateral (except as allowed pursuant to Section\n5.1 immediately above) from such address(es) provided to Secured Party pursuant\nto Section 4(d) above without prior written notice to Secured Party.\n\n             5.3  Limitation on Liens on Collateral. Grantor shall not, directly\nor indirectly, create, permit or suffer to exist, and shall defend the\nCollateral against and take such other action as is necessary to remove, any\nLien on the Collateral, except Permitted Liens.\n\n             5.4  Taxes, Assessments, Etc. Grantor shall pay promptly when due\nall property and other taxes, assessments and government charges or levies\nimposed upon, and all claims (including claims for labor, materials and\nsupplies) against, the Equipment, Fixtures or Inventory, except to the extent\nthe validity thereof is being contested in good faith and adequate reserves are\nbeing maintained in connection therewith.\n\n             5.5  Maintenance of Records. Grantor shall keep and maintain at its\nown cost and expense satisfactory and complete records of the Collateral.\n\n             5.6  Registration of Intellectual Property Rights. Grantor shall\npromptly register or cause to be registered (to the extent not already\nregistered and consistent with good faith business judgment) the most recent\nversion of any Copyright and any Copyright License and any Patent, Patent\nLicense, Trademark or Trademark License, which, individually or in the\naggregate, is material to the conduct of Grantor's business, with the United\nStates Copyright Office or Patent and Trademark Office, as applicable,\nincluding, without limitation, in all such \n\n \n                                                                               7\n\ncases the filing of applications for renewal, affidavits of use, affidavits of\nnoncontestability and opposition and interference and cancellation proceedings.\n\n             5.7  Notification Regarding Changes in Intellectual Property.\nGrantor shall promptly advise Secured Party of any subsequent ownership right or\ninterest of Grantor in or to any material Copyright, Patent, Trademark or\nLicense not specified on Schedule B hereto and hereby authorizes and appoints\nSecured Party as Grantor's attorney-in-fact solely to the extent necessary to\nmodify or amend such Schedule, as necessary, to reflect any addition or deletion\nto such ownership rights.\n\n             5.8  Defense of Intellectual Property. Grantor shall (i) protect,\ndefend and maintain the validity and enforceability of all material current and\nfuture Copyrights. Patents and Trademarks, (ii) use its best efforts to detect\nmaterial infringements of such Copyrights, Patents and Trademarks and promptly\nadvise Secured Party in writing of material infringements detected and (iii) not\nallow any material Copyrights, Patents or Trademarks to be abandoned, forfeited\nor dedicated to the public without the written consent of Secured Party in each\ncase unless reasonable business practice would determine that any such failure\nto act or abandonment is appropriate.\n\n             5.9  Further Assurances; Pledge of Instruments. At any time and\nfrom time to time, upon the written reasonable request of Secured Party, and at\nthe sole expense of Grantor, Grantor shall promptly and duly execute and deliver\nany and all such further instruments and documents and take such further action\nas Secured Party may reasonably deem necessary or desirable to obtain the full\nbenefits of this Security Agreement, including, without limitation, facilitating\nthe filing of UCC-1 Financing Statements in all applicable jurisdictions and\nthis Security Agreement (and any amendment hereto) or a collateral assignment\n(and any amendments thereto) with the United States Copyright Office and\/or\nPatent and Trademark Office, as applicable.\n\n             5.10 Maintenance of Insurance. Grantor shall maintain, with\nfinancially sound and reputable companies, insurance policies insuring (a) its\nEquipment, Fixtures and Inventory against loss by fire, explosion, theft and\nsuch other casualties as are usually insured against by companies engaged in the\nsame or similar businesses and (b) to the extent requested by Secured Party,\nGrantor and Secured Party against liability for personal injury and property\ndamage relating to such Equipment, Fixtures and Inventory. Such policies are to\nbe in such amounts and against at least such risk as are usually insured against\nin the same general area by companies of the same or a similar size engaged in\nthe same or a similar business as Grantor. Grantor, at its expense, shall obtain\na loss payable endorsement to each such policy for the benefit of Secured Party.\nGrantor shall, if so requested by Secured Party, deliver to Secured Party, as\noften as Secured Party may reasonably request, a report of a reputable insurance\nbroker satisfactory to Secured Party with respect to the insurance on its\nEquipment, Fixtures and Inventory. All insurance with respect to the Equipment,\nFixtures and Inventory shall provide that no cancellation, reduction in amount\nor change in coverage thereof shall be effective until at least thirty (30) days\nafter receipt by Secured Party of written notice thereof.\n\n \n                                                                               8\n\n          5.11 Right of Inspection and Audit. Upon reasonable notice to Grantor\n(unless an Event of Default has occurred and is continuing, in which case no\nnotice is necessary), Secured Party shall at all times have fall and free access\nduring normal business hours to all the books and records and correspondence of\nGrantor, and Secured Party or any agents or representatives of Secured Party may\nexamine the same, take extracts therefrom and make photocopies thereof, and\nGrantor agrees to render to Secured Party, at Grantor's cost and expense, such\nclerical and other assistance as may be reasonably requested with regard\nthereto. Upon reasonable notice to Grantor (unless an Event of Default has\noccurred and is continuing, in which case no notice is necessary), Secured Party\nand its agents and representatives shall also have the right to enter into and\nupon any premises where any of the Equipment, Fixtures or Inventory is located\nfor the purpose of conducting audits and making physical verifications of such\nEquipment, Fixtures and Inventory and test verifications of the Accounts in any\nmanner and through any medium that it considers advisable, and Grantor agrees to\nfurnish all such assistance and information as Secured Party may reasonably\nrequire in connection therewith.\n\n          5.12 Continuous Perfection. Grantor shall not change its name,\nidentity or corporate structure in any manner which might make any financing or\ncontinuation statement filed in connection herewith seriously misleading within\nthe meaning of Section 9-402(7) of the UCC (or any other then applicable\nprovision of the UCC) unless Grantor gives Secured Party prior written notice\nthereof and takes all action necessary or reasonably requested by Secured Party\nto amend such financing statement or continuation statement so that it is not\nseriously misleading.\n\n          5.13 Power of Attorney. Effective only upon the occurrence and during\nthe continuance of an Event of Default, Grantor hereby irrevocably appoints\nSecured Party (and any of Secured Party's designated officers or employees) as\nGrantor's true and lawful attorney to: (a) send requests for verification of\nAccounts or notify account debtors of Secured Party's security interest in the\nAccounts; (b) endorse Grantor's name on any checks or other forms of payment or\nsecurity that may come into Secured Party's possession; (c) sign Grantor's name\non any invoice or bill of lading relating to any Account, drafts against account\ndebtors, schedules and assignments of Accounts, verifications of Accounts, and\nnotices to account debtors, (d) make, settle and adjust all claims under and\ndecisions with respect to Grantor's policies of insurance; (e) settle and adjust\ndisputes and claims respecting the accounts directly with account debtors, for\namounts and upon terms which Secured Party determines to be reasonable; (f)\nmodify, in its sole discretion, any intellectual property security agreement\nentered into between Grantor and Secured Party without first obtaining Grantor's\napproval of or signature to such modification by amending reference to any\nright, title or interest in any Copyrights, Patents or Trademarks, acquired by\nGrantor after the execution hereof or to delete any reference to any right,\ntitle or interest in any Copyrights, Patents or Trademarks, in which Grantor no\nlonger has or claims any right, title or interest; (g) file, in its sole\ndiscretion, one or more financing or continuation statements and amendments\nthereto, relative to any of the Collateral without the signature of Grantor\nwhere permitted by law; and (h) transfer any intellectual property Collateral\ninto the name of Secured Party or a third party to the extent permitted under\nthe UCC. The appointment of Secured Party as Grantor's attorney in fact, and\neach and every one of Secured Party's rights and powers, being coupled with an\ninterest, is irrevocable until all of the Secured Obligations \n\n \n                                                                               9\n\nhave been fully repaid and performed and Secured Party's obligation to provide\nadvances hereunder is terminated.\n\n     6.   RIGHTS AND REMEDIES UPON DEFAULT.\n\n          (a)  If any Event of Default shall occur and be continuing, Secured\nParty may exercise in addition to all other rights and remedies granted to it\nunder this Security Agreement and under any other instrument or agreement\nsecuring, evidencing or relating to the Secured Obligations, all rights and\nremedies of a secured party under the UCC. Without limiting the generality of\nthe foregoing, Grantor expressly agrees that in any such event, and during the\nexistence and continuance of an Event of Default, Secured Party, without demand\nof performance or other demand, advertisement or notice of any kind (except the\nnotice specified below of time and place of public or private sale) to or upon\nGrantor or any other person (all and each of which demands, advertisements and\nnotices are hereby expressly waived to the maximum extent permitted by the UCC\nand other applicable law), may forthwith collect, receive, appropriate and\nrealize upon the Collateral, or any part thereof, and may forthwith sell,.\nlease, assign, give an option or options to purchase or sell or otherwise\ndispose of and deliver said Collateral (or contract to do so), or any part\nthereof, in one or more parcels at public or private sale or sales, at any\nexchange or broker's board or at any of Secured Party's offices or elsewhere at\nsuch prices as it may deem best, for cash or on credit or for future delivery\nwithout assumption of any credit risk. Secured Party shall have the right upon\nany such public sale or sales, and, to the extent permitted by law, upon any\nsuch private sale or sales, to purchase the whole or any part of said Collateral\nso sold, free of any right or equity of redemption, which equity of redemption\nGrantor hereby releases. Grantor further agrees, at Secured Party's request and\nduring the existence and continuance of an Event of Default, to assemble the\nCollateral and make it available to Secured Party at places which Secured Party\nshall reasonably select, whether at Grantor's premises or elsewhere. Secured\nParty shall apply the net proceeds of any such collection, recovery, receipt,\nappropriation, realization or sale as provided in Section 6(d) hereof, Grantor\nremaining liable for any deficiency remaining unpaid after such application, and\nonly after so paying over such net proceeds and after the payment by Secured\nParty of any other amount required by any provision of law, need Secured Party\naccount for the surplus, if any, to Grantor. To the maximum extent permitted by\napplicable law, Grantor waives all claims, damages, and demands against Secured\nParty arising out of the repossession, retention or sale of the Collateral\nexcept such as arise out of the gross negligence or willful misconduct of\nSecured Party. Grantor agrees that Secured Party need not give more than ten\n(10) days' notice (which notification shall be deemed given when mailed or\ndelivered on an overnight basis, postage prepaid, addressed to Grantor at its\naddress set forth on the signature page hereof, of the time and place of any\npublic sale or of the time after which a private sale may take place and that\nsuch notice is reasonable notification of such matters. Grantor shall remain\nliable for any deficiency if the proceeds of any sale or disposition of the\nCollateral are insufficient to pay all amounts to which Secured Party is\nentitled, Grantor also being liable for the reasonable fees of any attorneys\nemployed by Secured Party to collect such deficiency.\n\n          (b)  Grantor also agrees to pay all fees, costs and expenses of\nSecured Party, including, without limitation, reasonable attorneys' fees,\nreasonably incurred in connection with the enforcement of any of its rights and\nremedies hereunder.\n\n \n                                                                              10\n\n          (c)  Grantor hereby waives presentment, demand, protest or any notice\n(to the maximum extent permitted by applicable law) of any kind in connection\nwith this Security Agreement or any Collateral.\n\n          (d)  The Proceeds of any sale, disposition or other realization upon\nall or any part of the Collateral shall be distributed by Secured Party in the\nfollowing order of priorities:\n\n               FIRST, to Secured Party in an amount sufficient to pay in full\nthe reasonable costs of Secured Party in connection with such sale, disposition\nor other realization, including all fees, costs, expenses, liabilities and\nadvances reasonably incurred or made by Secured Party in connection therewith,\nincluding, without limitation, reasonable attorneys' fees;\n\n               SECOND, to Secured Party in an amount equal to the then unpaid\nSecured Obligations; and\n\n               FINALLY, upon payment in full of the Secured Obligations, to\nGrantor or its representatives, in accordance with the UCC or as a court of\ncompetent jurisdiction may direct.\n\n     7.   INDEMNITY. Grantor agrees to defend, indemnify and hold harmless\nSecured Party, Banks, and their officers, employees, and agents against (a) all\nobligations, demands, claims and liabilities claimed or asserted by any other\nparty in connection with the transactions contemplated by this Security\nAgreement and (b) all losses or expenses in any way suffered, incurred or paid\nby Secured Party or Banks as a result of or in any way arising out of or\nfollowing transactions between Secured Party, Banks and Grantor, whether under\nthis Security Agreement or otherwise (including without limitation, reasonable\nattorneys' fees and expenses for one firm of counsel), except for losses arising\nfrom or out of Secured Party's or any Bank's gross negligence or willful\nmisconduct.\n\n     8.   LIMITATION ON SECURED PARTY'S DUTY IN RESPECT OF COLLATERAL. Secured\nParty shall deal with the Collateral in the same manner as it deals with similar\nproperty for its own account. Secured Party shall be deemed to have acted\nreasonably in the custody, preservation and disposition of any of the Collateral\nif it takes such action as Grantor requests in writing, but failure of Secured\nParty to comply with any such request shall not in itself be deemed a failure to\nact reasonably and no failure of Secured Party to do any act not so requested\nshall be deemed a failure to act reasonably.\n\n     9.   REINSTATEMENT. This Security Agreement shall remain in full force and\neffect and continue to be effective should any petition be filed by or against\nGrantor for liquidation or reorganization, should Grantor become insolvent or\nmake an assignment for the benefit of creditors or should a receiver or trustee\nbe appointed for all or any significant part of Grantor's property and assets\nand shall continue to be effective or be reinstated, as the case may be, if at\nany time payment and performance of the Secured Obligations, or any part\nthereof, is, pursuant to applicable law, rescinded or reduced in amount or must\notherwise be restored or returned by any obligee of the Secured Obligations,\nwhether as a \"voidable preference,\" \"fraudulent conveyance\" or otherwise, all as\nthough such payment or performance had not been\n\n \n                                                                              11\n\nmade. In the event that any payment, or any part thereof, is rescinded, reduced,\nrestored or returned, the Secured Obligations shall be reinstated and deemed\nreduced only by such amount paid and not so rescinded, reduced, restored or\nreturned.\n\n     10.  MISCELLANEOUS.\n\n          10.1 No Waiver; Cumulative Remedies.\n\n               (a)  Secured Party shall not by any act, delay, omission or\notherwise be deemed to have waived any of its respective rights or remedies\nhereunder, nor shall any single or partial exercise of any right or remedy\nhereunder on any one occasion preclude the further exercise thereof or the\nexercise of any other right or remedy.\n\n               (b)  The rights and remedies hereunder provided are cumulative\nand may be exercised singly or concurrently and are not exclusive of any rights\nand remedies provided by law.\n\n               (c)  None of the terms or provisions of this Security Agreement\nmay be waived, altered, modified or amended except by an instrument in writing,\nduly executed by Grantor and Secured Party.\n\n          10.2 Releases.\n\n               (a)  At such time as the Secured Obligations shall have been paid\nand performed in full, the Collateral shall be released from the Liens created\nhereby, and this Security Agreement and all obligations of Secured Party and\nGrantor hereunder shall terminate, all without delivery of any instrument or\nperformance of any act by any party, and all rights to the Collateral shall\nrevert to Grantor. At the request and sole expense of Grantor following any such\ntermination Secured Party shall deliver to Grantor any Collateral held by\nSecured Party hereunder, and execute and deliver to Grantor such documents as\nGrantor shall reasonably request to evidence such termination.\n\n               (b)  If any of the Collateral shall be sold, transferred or\notherwise disposed of by Grantor in a manner permitted by the Credit, then\nSecured Party, at the request and sole expense of Grantor, shall execute and\ndeliver to Grantor all releases or other documents reasonably requested for the\nrelease of the Liens created hereby on such Collateral. \n\n               (c)  This Security Agreement and the security interests granted\nherein shall remain in full force and effect and continue to be effective if at\nany time payment and performance of the Secured Obligations, or any part\nthereof, is, pursuant to applicable law, avoided, rescinded or reduced in\namount, or must otherwise be restored or returned by any obligee of the Secured\nObligations, whether as a \"voidable preference,\" \"fraudulent conveyance\" or\notherwise, all as though such payment or performance had not been made. In the\nevent that any payment, or any part thereof, is avoided, rescinded, reduced,\nrestored or returned, the Secured Obligations and the security interests granted\nherein shall be reinstated and the Secured Obligations shall be deemed reduced\nonly by such amount paid and not so avoided, rescinded, reduced, restored or\nreturned.\n\n \n                                                                              12\n\n          10.3  Successor and Assigns. This Security Agreement and all\nobligations of Grantor hereunder shall be binding upon the successors and\nassigns of Grantor, and shall, together with the rights and remedies of Secured\nParty hereunder, inure to the benefit of Secured Party, any future holder of any\nof the indebtedness and their respective successors and assigns. No sales of\nparticipations, other sales, assignments, transfers or other dispositions of any\nagreement governing or instrument evidencing the Secured Obligations or any\nportion thereof or interest therein shall in any manner affect the Lien granted\nto Secured Party hereunder.\n\n          10.4  Notices. Any notice or other communication hereunder to any\nparty shall be addressed and delivered (and shall be deemed given) in accordance\nwith the Credit Agreement to the addresses set forth on the signature page\nhereof.\n\n          10.5  Counterparts. This Security Agreement may be executed in any\nnumber of separate counterparts, each of which, when so executed, shall be\ndeemed an original, and all of said counterparts taken together shall be deemed\nto constitute but one and the same instrument.\n\n          10.6  Severability. If any provision of this Security Agreement is\nheld to be unenforceable under applicable law for any reason, it shall be\nadjusted, if possible, rather than voided in order to achieve the intent of the\nparties to the extent possible. In any event, all other provisions of this\nSecurity Agreement shall be deemed valid and enforceable to the fullest extent\npossible under applicable law.\n\n          10.7  Governing Law. In all respects, including all matters of\nconstruction, validity and performance, this Security Agreement and the Secured\nObligations arising hereunder shall be governed by, and construed and enforced\nin accordance with, the laws of the State of New York applicable to contracts\nmade and performed in such State.\n\n \n                                                                              13\n\n     IN WITNESS WHEREOF, each of the parties hereto has caused this Security\nAgreement to be executed and delivered by its duly authorized officer on the\ndate first set forth above.\n\n\n\nADDRESS OF GRANTOR                           WESTERN MULTEPLEX CORPORATION\n\n\n\n1196 Borregas Avenue                         By: \/s\/ Jeffrey M. Hendren\n                                                ------------------------------\nSunnyvale, CA 94089                                 \n\n_____________________________                Printed Name: Jeffrey Hendren\n                                                          --------------------\nAttn: Chief Financial Officer                \n                                             Title: Vice President\n                                                    -------------------------- \n\n\nACCEPTED AND ACKNOWLEDGED BY:\n\nCREDIT SUISSE FIRST BOSTON, AS AGENT FOR BANKS\n\n\nBy: \/s\/ Chris Horgan\n   ------------------------------------------\n\nPrinted Name: Chris T. Horgan\n             --------------------------------\n\nTitle: Vice President\n      ---------------------------------------\n\n\nBy: \/s\/ Kristin Lepri\n   ------------------------------------------\n\nPrinted Name: Kristin Lepri\n             --------------------------------\n\nTitle: Associate\n      --------------------------------------- \n\n \n                                                                      Schedule A\n                                                           to Security Agreement\n                                                           ---------------------\n\n                            Location of Collateral\n                            ----------------------\n\n1.   1196 Borregas Avenue\n     Sunnyvale, CA 94089\n\n2.   Koram\n     86 Bonventura Drive\n     San Jose, CA 95134\n\n3.   Isis Surface Mounting\n     40 East Daggett Drive\n     San Jose, CA 95134\n\n4.   Antron\n     1050 North Fifth Street\n     Suite D\n     San Jose, CA 95112\n\n5.   Sonic Mfg. Technologies\n     46716 Lakeview Boulevard\n     Fremont, CA 94538\n\n6.   Pemstar\n     2020 South Tenth Street\n     San Jose, CA 95112\n\n7.   West Coast Magnetics, Inc.\n     3728 Imperial Way\n     Building A\n     Stockton, CA 95215\n\n8.   Berkeley Magnetics, Inc.\n     c\/o Touchstone Technical Sales\n     1836 Stone Avenue\n     San Jose, CA 95125\n\n9.   S&amp;K Precision\n     1139 Bush Street\n     San Carlos, CA 94071\n\n \n10.      Renner Plaza, Suite 178\n         251 W. Renner Parkway\n         Richardson, TX\n\n11.      International Center, Suite 142\n         11000 East Yale\n         Aurora, CO\n\n12.      1700 East 13th Street, #4A\n         Cleveland, OH\n\n \n                                                                      Schedule B\n                                                           to Security Agreement\n                                                           ---------------------\n\n                             INTELLECTUAL PROPERTY\n                             --------------------- \n                                  Copyrights\n                                  ----------                \n\nNone.\n                                    Patents\n                                    -------\n\n                                            Registration\/       Registration\/   \nDescription                                 Application Number  Application Date\n-----------                                 ------------------  ----------------\n\n1. \"Method and Apparatus for Isolating      09\/033,507          March 2, 1998\n   High Frequency Signals In A Multi-\n   Layered Printed  Circuit Board\"\n   [Application]\n\n2. \"Method and Apparatus for Isolating      09\/053,045          April 1, 1998\n   High Frequency Signals In A Printed \n   Circuit Board\"  \n   [Application]\n\n\n                                  Trademarks\n                                  ---------- \n\n                                            Registration\/       Registration\/ \nDescription                                 Application Number  Application Date\n-----------                                 -----------------   ----------------\n\n1. Highly stylized letters, WM and          1,317,724           February 5, 1985\n   design and Western Multiplex                              \n   Corporation for Electronic\n   Communications and Test Units\n\n2. Highly stylized letters \"WM\" and         2,076,271           July 1, 1997\n   design for Microwave Radio \n   Equipment\n\n3. Highly stylized letters \"WM\" and         1,298,505           October 2, 1984\n   design for Electronic Communications \n   and Test Units.\n\n4. Highly stylized letters, WM and          2,067,842           June 3, 1997\n   design and Western Multiplex \n   Corporation Microwave Radio\n   Equipment\n\n \n                                                                      Schedule C\n                                                           to Security Agreement\n                                                           ---------------------\n\n                            UCC Filing Jurisdictions\n                            ------------------------\n\n1.  California: Secretary of State\n\n2.  Texas: Secretary of State\n\n3.  Ohio: Secretary of State and Cuyahoga County\n\n4.  Colorado: Secretary of State\n\n\n                                 Other Filings\n                                 ------------- \n\n1.  U.S. Copyright Office\n\n2.  U.S. Patent and Trademark Office\n\n \n                                   EXHIBIT A\n                                      to\n                          FINANCING STATEMENT Between\n                     Credit Suisse First Boston, as Agent,\n                               as Secured Party\n                                      and\n                   Western Multiplex Corporation, as Debtor\n\n\n\n     This Financing Statement covers all right, title, and interest of the\nDebtor in, to and under all of the following (collectively, the \"Collateral\"):\n\n            (a)   All Accounts of Debtor;\n\n            (b)   All Chattel Paper of Debtor;\n\n            (c)   All Contracts of Debtor;\n\n            (d)   All Deposit Accounts of Debtor;\n\n            (e)   All Documents of Debtor;\n\n            (f)   All Equipment of Debtor;\n\n            (g)   All Financial Assets of Debtor;\n\n            (h)   All Fixtures of Debtor;\n\n            (i)   All General Intangibles of Debtor, including, without\nlimitation, all Copyrights, Patents, Trademarks, Licenses, drawings, technical\ninformation, marketing plans, customer lists, trade secrets, proprietary or\nconfidential information, inventions (whether or not patentable), procedures,\nknow-how and models;\n\n            (j)   All Instruments of Debtor;\n\n            (k)   All Inventory of Debtor;\n\n            (1)   All Investment Property of Debtor;\n\n            (m)   All other goods and personal property of Debtor, wherever\nlocated, whether tangible or intangible, and whether now owned or hereafter\nacquired, existing, leased, consigned by or to Debtor; and\n\n            (n)   To the extent not otherwise included, all Proceeds of each of\nthe foregoing and all accessions to, substitutions and replacements for and\nrents, profits and products of each of the foregoing; provided, however, that\n\"Collateral\" shall not include any equipment lease or \n\n \n                                                                               2\n\nDebtor:           Western Multiplex Corporation\nSecured Party:    Credit Suisse First Boston, as Agent\n\n\nequipment financing agreement or Equipment which is the subject of an equipment\nlease or equipment financing agreement to the extent and for so long as the\ngrant of a security interest therein is expressly prohibited by the terms of any\nenforceable provision of such equipment lease or equipment financing agreement.\n\n1.   DEFINED TERMS. When used herein the following terms shall have the\nfollowing meanings (such meanings being equally applicable to both the singular\nand plural forms of the terms defined):\n\n     \"Contracts\" means all contracts, undertakings, franchise agreements or\nother agreements in or under which Debtor now holds or hereafter acquires any\nright, title or interest, including, without limitation, with respect to an\nAccount, any agreement relating to the terms of payment or the terms of\nperformance thereof.\n\n     \"Copyright License\" means any written agreement, in which Debtor now holds\nor hereafter acquires any interest, granting any right in or to any Copyright or\nCopyright registration (whether Debtor is the licensee or the licensor\nthereunder) including, without limitation, licenses pursuant to which Debtor has\nobtained the exclusive right to use a copyright owned by a third party.\n\n     \"Copyrights\" means all of the following in which Debtor now holds or\nhereafter acquires any interest: (a) all copyrights, whether registered or\nunregistered, held pursuant to the laws of the United States, any State thereof\nor any other country; (b) registrations, applications and recordings in the\nUnited States Copyright Office or in any similar office or agency of the United\nStates, any State thereof or any other country; (c) any continuations, renewals\nor extensions thereof; (d) any registrations to be issued in any pending\napplications; (e) prior versions of works covered by copyright and all works\nbased upon, derived from, or incorporating such works; (f) income, royalties,\ndamages, claims and payments now and hereafter due and\/or payable with respect\nto copyrights, including, without limitation, damages, claims and recoveries for\npast, present or future infringement; (g) rights to sue for past, present and\nfuture infringements of any copyright; and (h) any other rights corresponding to\nany of the foregoing rights throughout the world.\n\n      \"License\" means any Copyright License, Patent License, Trademark License\nor other license of intellectual property rights or interests now held or\nhereafter acquired by Debtor.\n\n      \"Patent License\" means any written agreement, in which Debtor now holds or\nhereafter acquires any interest, granting any right with respect to any Patent\n(whether Debtor is the licensee or the licensor thereunder).\n\n \n                                                                               3\n\nDebtor:           Western Multiplex Corporation\nSecured Party:    Credit Suisse First Boston, as Agent\n\n      \"Patents\" means all of the following in which Debtor now holds or\nhereafter acquires any interest: (a) all letters patent of the United States or\nany other country, all registrations and recordings thereof and all applications\nfor letters patent of the United States or any other country, including, without\nlimitation, registrations, recordings and applications in the United States\nPatent and Trademark Office or in any similar office or agency of the United\nStates, any State thereof or any other country; (b) all reissues, divisions,\ncontinuations, renewals, continuations-inpart or extensions thereof, (c) all\npetty patents, divisionals and patents of addition; (d) all patents to issue in\nany such applications. (e) income, royalties, damages, claims and payments now\nand hereafter due and\/or payable with respect to patents, including, without\nlimitation. damages. claims and recoveries for past, present or future\ninfringement, and (f) rights to sue for past, present and future infringement of\nany patent.\n\n      \"Trademark License\" means any written agreement in which Debtor now holds\nor hereafter acquires any interest granting any right in and to any Trademark or\nTrademark, registration (whether Debtor is the licensee or the licensor\nthereunder).\n\n      \"Trademarks\" means any of the following in which Debtor now holds or\nhereafter acquires any interest: (a) any trademarks, tradenames, corporate\nnames, company names, business names, trade styles, service marks, logos, other\nsource or business identifiers, prints and labels on which any of the foregoing\nhave appeared or appear, designs and general intangibles of like nature, now\nexisting or hereafter adopted or acquired, all registrations and recordings\nthereof, and any applications in connection therewith, including, without\nlimitation, registrations, recordings and applications in the United States\nPatent and Trademark Office or in any similar office or agency of the United\nStates, any State thereof or any other country (collectively, the \"Marks\"); (b)\nany reissues, extensions or renewals thereof; (c) the goodwill of the business\nsymbolized by or associated with the Marks; (d) income, royalties, damages,\nclaims and payments now and hereafter due and\/or payable with respect to the\nMarks, including, without limitation, damages, claims and recoveries for past,\npresent or future infringement; and (e) rights to sue for past, present and\nfuture infringements of the Marks.\n\n      \"UCC\" means the Uniform Commercial Code as the same may, from time to\ntime, be in effect in the State of New York, provided, however, in the event\nthat, by reason of mandatory provisions of law, any or all of the attachment,\nperfection or priority of Secured Party's security interest in any Collateral is\ngoverned by the Uniform Commercial Code as in effect in a jurisdiction other\nthan the State of New York, the term \"UCC\" shall mean the Uniform Commercial\nCode as in effect in such other jurisdiction for purposes of the provisions\nhereof relating to such attachment, perfection of priority and for purposes of\ndefinitions related to such provisions.\n\n      In addition, the following terms shall be defined terms having the meaning\nset forth for such terms in the UCC: \"Account Debtor\"; \"Accounts\"; \"Chattel\nPaper\"; \"Deposit \n\n \n                                                                               4\n\nDebtor:           Western Multiplex Corporation\nSecured Party:    Credit Suisse First Boston, as Agent\n\nAccounts\"; \"Documents\"; \"Equipment\"; \"Financial Assets\"; \"Fixtures\"; \"General\nIntangibles\"; \"Instruments\"; \"Inventory\"; \"Investment Property\"; \"Proceeds\".\nEach of the foregoing defined terms shall include all of such items now owned,\nor hereafter acquired, by Debtor.\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7234,9318],"corporate_contracts_industries":[9516,9418],"corporate_contracts_types":[9560,9570],"class_list":["post-41306","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-credit-suisse-first-boston-inc","corporate_contracts_companies-western-multiplex-corp","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_industries-financial__securities","corporate_contracts_types-finance","corporate_contracts_types-finance__security"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41306","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41306"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41306"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41306"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41306"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}