goig_ex1021





  Exhibit 10.21








AMENDED AND RESTATED



SECURITY AGREEMENT

 


This
AMENDED AND RESTATED SECURITY AGREEMENT, dated as of May 19, 2021
(this “Agreement”), is among
Charge Enterprises, Inc., a Delaware corporation (formerly known as
Transworld Holdings, Inc. and GoIP Global, Inc., a Colorado
corporation) (the “Company”), the
Subsidiaries of the Company set forth on the signature pages hereto
(such subsidiaries, the “Subsidiaries” and,
together with the Company, the “Debtors”) and the holders
of the Notes (as defined herein) signatory hereto, their endorsees,
transferees and assigns (collectively, the “Secured
Parties”).

 



W I T N E S S E T H:

 


WHEREAS, the
Company has issued to the Secured Parties the following promissory
notes: (a) the Company’s Original Issue Discount Senior
Secured Convertible Promissory Notes issued on May 8, 2020 and due
twenty-four (24) months following their issuance, in the aggregate
principal amount of $3,000,000.00 (the “May 2020 Notes”), (b) the
Company’s Original Issue Discount Senior Secured Convertible
Promissory Notes issued on November 3, 2020 and due thirty-six (36)
months following their issuance, in the aggregate principal amount
of $3,888,889.00 (the “November 2020 Notes”) and
(c) the Company’s Original Issue Discount Senior Secured
Convertible Promissory Notes and Original Issue Discount Senior
Secured Non-convertible Promissory Notes issued as of the date
hereof and due thirty-six (36) months and eighteen (18) months,
respectively, following their issuance, in the aggregate principal
amount of $5,610,000.00 and $11,032,609.00, respectively (the
“May 2021
Notes” and, together with the May 2020 Notes and
November 2020 Notes, the “Notes”);

 


WHEREAS, pursuant
to the Securities Purchase Agreement dated as of May 8, 2020 (as
amended, modified or supplemented from time to time in accordance
with its terms, the “May 2020 Purchase
Agreement”), the Secured Parties have severally agreed
to extend the loans to the Company evidenced by the May 2020
Notes;

 


WHEREAS, pursuant
to the Securities Purchase Agreement dated as of November 3, 2020
(as amended, modified or supplemented from time to time in
accordance with its terms, the “November 2020 Purchase
Agreement”), the Secured Parties have severally agreed
to extend the loans to the Company evidenced by the November 2020
Notes;

 


WHEREAS, pursuant
to the Securities Purchase Agreement dated as of the date hereof
(as amended, modified or supplemented from time to time in
accordance with its terms, the “May 2021 Purchase
Agreement” and together with the May 2020 Purchase
Agreement and November 2020 Purchase Agreement, the
“Purchase
Agreements” and each individually a
“Purchase
Agreement”), the Secured Parties have severally agreed
to extend the loans to the Company evidenced by the May 2021
Notes;

 


WHEREAS, in order
to induce the Secured Parties to extend the loans evidenced by the
May 2020 Notes and the November 2020 Notes, each Debtor agreed to
execute and deliver to the Secured Parties that certain Security
Agreement dated as of May 8, 2020, as amended and restated on
November 3, 2020 (the “Existing Security
Agreement”);

 


WHEREAS, in order
to induce the Secured Parties to extend the loans evidenced by the
May 2021 Notes, the Secured Parties and each Debtor have agreed to
amend and restate the Existing Security Agreement and each Debtor
has agreed to grant the Secured Parties, pari passu with each other
Secured Party and through the Agent (as defined in Section 18 hereof), a
security interest in certain property of such Debtor to secure the
prompt payment, performance and discharge in full of all of the
Company’s obligations under the Notes;

 


WHEREAS, the
Secured Parties have agreed to subordinate the first-lien on the
shares of the Company’s existing Subsidiary, PTGI
International Carrier Services Inc. (“PTGI”) which were pledged
to the Secured Parties, subject to an intercreditor and
subordination agreement in such form satisfactory to the Secured
Parties; and

 



 

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WHEREAS, each
Debtor party to the Existing Security Agreement wishes to affirm
its obligations under the terms of the Existing Security Agreement
and wishes to amend and restate the terms of the Existing Security
Agreement pursuant to the terms of this Agreement.

 


NOW,
THEREFORE, in consideration of the agreements herein contained and
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:

 


1.      Certain
Definitions. As used in this Agreement, the following terms
shall have the meanings set forth in this Section 1.  Terms
used but not otherwise defined in this Agreement that are defined
in Article 9 of the UCC (such as “account”,
“chattel paper”, “commercial tort claim”,
“deposit account”, “document”,
“equipment”, “fixtures”, “general
intangibles”, “goods”, “instruments”,
“inventory”, “investment property”,
“letter-of-credit rights”, “proceeds” and
“supporting obligations”) shall have the respective
meanings given such terms in Article 9 of the UCC. In addition to
the terms defined elsewhere in this Agreement, capitalized terms
not otherwise defined herein shall have the meanings set forth in
the Purchase Agreement.

 


(a)                 “Collateral”
means the collateral in which the Secured Parties are granted a
security interest by this Agreement and which shall comprise all
the assets of the Debtors, including, without limitation, the
following personal property of the Debtors, whether presently owned
or existing or hereafter acquired or coming into existence,
wherever situated, and all additions and accessions thereto and all
substitutions and replacements thereof, and all proceeds, products
and accounts thereof, including, without limitation, all proceeds
from the sale or transfer of the Collateral and of insurance
covering the same and of any tort claims in connection therewith,
and all dividends, interest, cash, notes, securities, equity
interest or other property at any time and from time to time
acquired, receivable or otherwise distributed in respect of, or in
exchange for, any or all of the Pledged Securities (as defined
below):

 


(i)           All
goods, including, without limitation, (A) all machinery, equipment,
computers, motor vehicles, trucks, tanks, boats, ships, appliances,
furniture, special and general tools, fixtures, test and quality
control devices and other equipment of every kind and nature and
wherever situated, together with all documents of title and
documents representing the same, all additions and accessions
thereto, replacements therefor, all parts therefor, and all
substitutes for any of the foregoing and all other items used and
useful in connection with any Debtor’s businesses and all
improvements thereto; and (B) all inventory;

 


(ii)           All
contract rights and other general intangibles, including, without
limitation, all partnership interests, membership interests, stock
or other securities, rights under any of the Organizational
Documents, agreements related to the Pledged Securities, licenses,
distribution and other agreements, computer software (whether
“off-the-shelf”, licensed from any third party or
developed by any Debtor), computer software development rights,
leases, franchises, customer lists, quality control procedures,
grants and rights, goodwill, Intellectual Property and income tax
refunds;

 


(iii)           All
accounts, together with all instruments, all documents of title
representing any of the foregoing, all rights in any merchandising,
goods, equipment, motor vehicles and trucks which any of the same
may represent, and all right, title, security and guaranties with
respect to each account, including any right of stoppage in
transit;

 


(iv)           All
documents, letter-of-credit rights, instruments and chattel
paper;

 


(v)           All
commercial tort claims;

 


(vi)           All
deposit accounts and all cash (whether or not deposited in such
deposit accounts);

 


(vii)           All
investment property;


 



 

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(viii)        
All supporting obligations;

 


(ix)           All
files, records, books of account, business papers, and computer
programs; and

 


(x)           the
products and proceeds of all of the foregoing Collateral set forth
in clauses (i)-(ix) above.

 


Without
limiting the generality of the foregoing, the “Collateral” shall include
all investment property and general intangibles respecting
ownership and/or other equity interests in each Subsidiary,
including, without limitation, the shares of capital stock and the
other equity interests listed on Schedule G hereto (as
the same may be modified from time to time pursuant to the terms
hereof), and any other shares of capital stock and/or other equity
interests of any other direct or indirect subsidiary of any Debtor
obtained in the future, and, in each case, all certificates
representing such shares and/or equity interests and, in each case,
all rights, options, warrants, stock, other securities and/or
equity interests that may hereafter be received, receivable or
distributed in respect of, or exchanged for, any of the foregoing
and all rights arising under or in connection with the Pledged
Securities, including, but not limited to, all dividends, interest
and cash.

 


Notwithstanding the
foregoing, nothing herein shall be deemed to constitute an
assignment of any asset which, in the event of an assignment,
becomes void by operation of applicable law or the assignment of
which is otherwise prohibited by applicable law (in each case to
the extent that such applicable law is not overridden by Sections
9-406, 9-407 and/or 9-408 of
the UCC or other similar applicable law); provided, however, that, to the extent
permitted by applicable law, this Agreement shall create a valid
security interest in such asset and, to the extent permitted by
applicable law, this Agreement shall create a valid security
interest in the proceeds of such asset.

 


(b)                 “Intellectual
Property” means the collective reference to all
rights, priorities and privileges relating to intellectual
property, whether arising under United States, multinational or
foreign laws or otherwise, including, without limitation, (i) all
copyrights arising under the laws of the United States, any other
country or any political subdivision thereof, whether registered or
unregistered and whether published or unpublished, all
registrations and recordings thereof, and all applications in
connection therewith, including, without limitation, all
registrations, recordings and applications in the United States
Copyright Office, (ii) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues
and extensions thereof, and all applications for letters patent of
the United States or any other country and all divisions,
continuations and continuations-in-part thereof, (iii) all
trademarks, trade names, corporate names, company names, business
names, fictitious business names, trade dress, service marks,
logos, domain names and other source or business identifiers, and
all goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and
all applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office or
agency of the United States, any State thereof or any other country
or any political subdivision thereof, or otherwise, and all common
law rights related thereto, (iv) all trade secrets arising under
the laws of the United States, any other country or any political
subdivision thereof, (v) all rights to obtain any reissues,
renewals or extensions of the foregoing, (vi) all licenses for any
of the foregoing, and (vii) all causes of action for infringement
of the foregoing.

 


(c)                 “Necessary
Endorsement” means undated stock powers endorsed in
blank or other proper instruments of assignment duly executed and
such other instruments or documents as the Agent (as that term is
defined below) may reasonably request.

 


(d)                 “Obligations”
means all of the liabilities and obligations (primary, secondary,
direct, contingent, sole, joint or several) due or to become due,
or that are now or may be hereafter contracted or acquired, or
owing to, of any Debtor to the Secured Parties under this
Agreement, the Notes and any other instruments, agreements or other
documents executed and/or delivered in connection herewith or
therewith, in each case, whether now or hereafter existing,
voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or
extinguished and later increased, created or incurred, and all or
any portion of such obligations or liabilities that are paid, to
the extent all or any part of such payment is avoided or recovered
directly or indirectly from any of the Secured Parties as a
preference, fraudulent transfer or otherwise as such obligations
may be amended, supplemented, converted, extended or modified from
time to time.  Without limiting the generality of the
foregoing, the term “Obligations” shall include,
without limitation: (i) principal of, and interest on the
Notes and the loans extended pursuant thereto; (ii) any and all
other fees, indemnities, costs, obligations and liabilities of the
Debtors from time to time under or in connection with this
Agreement, the Notes and any other instruments, agreements or other
documents executed and/or delivered in connection herewith or
therewith; and (iii) all amounts (including but not limited to
post-petition interest) in respect of the foregoing that would be
payable but for the fact that the obligations to pay such amounts
are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving any
Debtor.

 



 

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(f)       “Organizational
Documents” means, with respect to any Debtor, the
documents by which such Debtor was organized (such as articles of
incorporation, certificate of incorporation, certificate of limited
partnership or articles of organization, and including, without
limitation, any certificates of designation for preferred stock or
other forms of preferred equity) and which relate to the internal
governance of such Debtor (such as bylaws, a partnership agreement
or an operating, limited liability or members
agreement).

 


(g)                 “Pledged
Securities” shall have the meaning ascribed to such
term in Section 4(g).

 


(h)                 “Purchase
Agreement” shall have the meaning given to such term
in the preamble.

 


2.      Reaffirmation
and Grant of Security Interest in Collateral. Each Debtor
party to the Existing Security Agreement reaffirms the security
interest granted under the terms and conditions of the Existing
Security Agreement and agrees that such security interest remains
in full force and effect and is hereby ratified, reaffirmed and
confirmed. Each Debtor party to the Existing Security Agreement
acknowledges and agrees with the Secured Parties that the Existing
Security Agreement is amended, restated, and superseded in its
entirety pursuant to the terms hereof. Furthermore, as an
inducement for the Secured Parties to extend the loans as evidenced
by the Notes and to secure the complete and timely payment,
performance and discharge in full, as the case may be, of all of
the Obligations, each Debtor hereby unconditionally and irrevocably
pledges, grants and hypothecates to the Secured Parties a
perfected, first priority security interest in and to, a lien upon
and a right of set-off against all of their respective right, title
and interest of whatsoever kind and nature in and to, the
Collateral (a “Security Interest” and,
collectively, the “Security
Interests”).

 


3.      Delivery
of Certain Collateral.  Contemporaneously or prior
to the execution of this Agreement, each Debtor shall deliver or
cause to be delivered to the Agent (a) any and all certificates and
other instruments representing or evidencing the Pledged Securities
(if any), and (b) any and all certificates and other instruments or
documents representing any of the other Collateral, in each case,
together with all Necessary Endorsements.  The Debtors
are, contemporaneously with the execution hereof, delivering to
Agent, or have previously delivered to Agent, a true and correct
copy of each Organizational Document governing any of the Pledged
Securities. Notwithstanding anything contained herein, prior to any
Event of Default, the Company shall have the right vote any Pledged
Securities and receive dividends therefrom.

 


4.      Representations,
Warranties, Covenants and Agreements of the Debtors. Except
as set forth under the corresponding Section of the disclosure
schedules delivered to the Secured Parties concurrently herewith
(the “Disclosure
Schedules”), which Disclosure Schedules shall be
deemed a part hereof, each Debtor represents and warrants to, and
covenants and agrees with, the Secured Parties as
follows:

 


(a)                 The
Debtors have no place of business or offices where their respective
books of account and records are kept (other than temporarily at
the offices of its attorneys or accountants) or places where
Collateral is stored or located, except as set forth
on Schedule A attached
hereto.  Except as specifically set forth
on Schedule A, each Debtor is
the record owner of the real property where such Collateral is
located, and there exist no mortgages or other liens on any such
real property except for Permitted Liens as set forth on
Schedule A.  Except
as disclosed on Schedule A, none of such
Collateral is in the possession of any consignee, bailee,
warehouseman, agent or processor.

 


(b)                 Except
for Permitted Liens and as set forth on Schedule B attached
hereto, the Debtors are the sole owners of the Collateral, free and
clear of any liens, security interests, encumbrances, rights or
claims, and are fully authorized to grant the Security
Interests.  Except as set forth on Schedule C attached
hereto, there is not on file in any governmental or regulatory
authority, agency or recording office an effective financing
statement, security agreement, license or transfer or any notice of
any of the foregoing (other than those that will be filed in favor
of the Secured Parties pursuant to this Agreement) covering or
affecting any of the Collateral.   Except as set forth
on Schedule C attached
hereto and except pursuant to this Agreement, as long as this
Agreement shall be in effect, the Debtors shall not execute and
shall not knowingly permit to be on file in any such office or
agency any other financing statement or other document or
instrument (except to the extent filed or recorded in favor of the
Secured Parties pursuant to the terms of this
Agreement).

 



 

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(c)                 No
written claim has been received that any Collateral or any
Debtor’s use of any Collateral violates the rights of any
third party. There has been no adverse decision to any
Debtor’s claim of ownership rights in or exclusive rights to
use the Collateral in any jurisdiction or to any Debtor’s
right to keep and maintain such Collateral in full force and
effect, and there is no proceeding involving said rights pending
or, to the best knowledge of any Debtor, threatened before any
court, judicial body, administrative or regulatory agency,
arbitrator or other governmental authority.

 


(d)                 Each
Debtor shall at all times maintain its books of account and records
relating to the Collateral at its principal place of business and
its Collateral at the locations set forth on Schedule A attached
hereto and may not relocate such books of account and records or
tangible Collateral unless it delivers to the Secured Parties at
least thirty (30) days prior to such relocation (i) written notice
of such relocation and the new location thereof (which must be
within the United States) and (ii) evidence that appropriate
financing statements under the UCC and other necessary documents
have been filed and recorded and other steps have been taken to
perfect the Security Interests to create in favor of the Secured
Parties a valid, perfected and continuing perfected first priority
lien in the Collateral (to the extent such Collateral can be
perfected by the filing of a UCC financing statement).

 


(e)                 This
Agreement creates in favor of the Secured Parties a valid first
priority security interest in the Collateral, subject only to
Permitted Liens, securing the payment and performance of the
Obligations. Upon making the filings described in the immediately
following paragraph, all security interests created hereunder in
any Collateral which may be perfected by filing UCC financing
statements shall have been duly perfected. Except for (i) the
recordation of the Intellectual Property Security Agreement (as
defined in Section 4(dd) hereof) with respect to copyrights
and copyright applications referred to in paragraph (z) in the
United States Copyright Office, (ii) the recordation of the
Intellectual Property Security Agreement (as defined in
Section 4(dd) hereof) with respect to patents and trademarks
of the Debtors referred to in paragraph (bb) in the United States
Patent and Trademark Office, and (iii) the delivery of the
certificates and other instruments provided in Section 3, no
action is necessary to create, perfect or protect the security
interests created hereunder. Without limiting the generality of the
foregoing, except for the foregoing, no consent of any third
parties and no authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body is required for (x) the execution, delivery and performance of
this Agreement, (y) the creation or perfection of the Security
Interests created hereunder in the Collateral (to the extent such
Collateral can be perfected by the filing of a UCC financing
statement) or (z) the enforcement of the rights of the Agent
and the Secured Parties hereunder.

 


(f)       Each
Debtor hereby authorizes the Agent to file one or more financing
statements under the UCC, with respect to the Security Interests,
with the proper filing and recording agencies in any jurisdiction
deemed proper by it.

 


(g)                 The
capital stock and other equity interests listed
on Schedule G hereto
(including all uncertificated equity interests consisting of
capital stock of any corporation as well as partnership or limited
liability company interests of any other entity) (the
“Pledged
Securities”) represent all of the capital stock and
other equity interests of the Debtors, and represent all capital
stock and other equity interests owned, directly or indirectly, by
the Company.  All of the Pledged Securities are validly
issued, fully paid and nonassessable, and the Company is the legal
and beneficial owner of the Pledged Securities, free and clear of
any lien, security interest or other encumbrance except for the
security interests created by this Agreement and other Permitted
Liens.

 



 

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(h)                 Except
for Permitted Liens, each Debtor shall at all times maintain the
liens and Security Interests provided for hereunder as valid and
perfected, first priority (to the extent that such liens and
Security Interests can be perfected by the filing of a UCC
financing statement) liens and security interests in the Collateral
in favor of the Secured Parties until this Agreement and the
Security Interest hereunder shall be terminated pursuant to
Section 14
hereof.  Each Debtor hereby agrees to defend the same
against the claims of any and all persons and entities. Each Debtor
shall safeguard and protect all Collateral for the account of the
Secured Parties.  At the request of the Agent, each
Debtor will deliver to the Agent on behalf of the Secured Parties
at any time or from time to time one or more financing statements
pursuant to the UCC in form reasonably satisfactory to the Agent
and will pay the cost of filing the same in all public offices
wherever filing is, or is deemed by the Agent to be, necessary or
desirable to effect the rights and obligations provided for herein.
Without limiting the generality of the foregoing, each Debtor shall
pay all fees, taxes and other amounts necessary to maintain the
Collateral and the Security Interests hereunder, and each Debtor
shall obtain and furnish to the Agent from time to time, upon
demand, such releases and/or subordinations of claims and liens
which may be required to maintain the priority of the Security
Interests hereunder. In addition to the foregoing, each Debtor
shall promptly execute and deliver to the Agent such further deeds,
mortgages, assignments, security agreements, financing statements
or other instruments, documents, certificates and assurances and
take such further action as the Agent may from time to time request
and may in its sole discretion deem necessary to perfect, protect
or enforce the Secured Parties’ security interest in the
Collateral, including, without limitation, if applicable, the
execution and delivery of a separate security agreement with
respect to each Debtor’s Intellectual Property
(“Intellectual
Property Security Agreement”) in which the Secured
Parties have been granted a security interest hereunder,
substantially in a form reasonably acceptable to the Agent, which
Intellectual Property Security Agreement, other than as stated
therein, shall be subject to all of the terms and conditions
hereof.

 


(i)       No
Debtor will transfer, pledge, hypothecate, encumber, license, sell
or otherwise dispose of any of the Collateral (except for Permitted
Liens or non-exclusive licenses granted by a Debtor in its ordinary
course of business, sales of inventory by a Debtor in its ordinary
course of business and the replacement of worn-out or obsolete
equipment by a Debtor in its ordinary course of business) without
the prior written consent of the Secured Party.

 


(j)       Each
Debtor shall keep and preserve its equipment, inventory and other
tangible Collateral in good condition, repair and order (other than
ordinary use wear and tear) and shall not operate or locate any
such Collateral (or cause to be operated or located) in any area
excluded from insurance coverage.

 


(k)                 Each
Debtor shall maintain with financially sound and reputable
insurers, insurance with respect to the Collateral, including
Collateral hereafter acquired, against loss or damage of the kinds
and in the amounts customarily insured against by entities of
established reputation having similar properties similarly situated
and in such amounts as are customarily carried under similar
circumstances by other such entities and otherwise as is prudent
for entities engaged in similar businesses but in any event
sufficient to cover the full replacement cost thereof. Each Debtor
shall cause each insurance policy issued in connection herewith to
provide, and the insurer issuing such policy to certify to the
Agent, that (a) the Agent will be named as lender loss payee and
additional insured under each such insurance policy; (b) if such
insurance be proposed to be cancelled or materially changed for any
reason whatsoever, such insurer will promptly notify the Agent and
such cancellation or change shall not be effective as to the Agent
for at least thirty (30) days after receipt by the Agent of such
notice, unless the effect of such change is to extend or increase
coverage under the policy; and (c) the Agent will have the right
(but no obligation) at its election to remedy any default in the
payment of premiums within thirty (30) days of notice from the
insurer of such default. If no Event of Default (as defined in the
Notes) exists and if the proceeds arising out of any
claim.   Loss payments received by any Debtor
after an Event of Default occurs and is continuing or in excess of
$100,000 for any occurrence or series of related occurrences, upon
approval by Agent, which approval shall not be unreasonably
withheld, delayed, denied or conditioned, loss payments in each
instance will be applied by the applicable Debtor to the repair
and/or replacement of property with respect to which the loss was
incurred to the extent reasonably feasible, and any loss payments
or the balance thereof remaining, to the extent not so applied,
shall be paid to the Agent on behalf of the Secured
Parties.

 


(l)       Each
Debtor shall, within ten (10) days of obtaining knowledge thereof,
advise the Secured Parties, in sufficient detail, of any material
adverse change in the Collateral, and of the occurrence of any
event that would have a material adverse effect on the value of the
Collateral or on the Secured Parties’ security interest,
through the Agent, therein.

 


(m)                 Upon
reasonable prior notice (so long as no
Event of Default has occurred or continuing, which in either such
event, no prior notice is required), each Debtor shall
permit the Agent and its representatives and agents to inspect the
Collateral during normal business hours and to make copies of
records pertaining to the Collateral as may be reasonably requested
by the Agent from time to time.

 


(n)                 Each
Debtor shall promptly notify the Secured Parties in sufficient
detail upon becoming aware of any attachment, garnishment,
execution or other legal process levied against any material
portion of the Collateral and of any other information received by
such Debtor that may materially affect the value of the Collateral,
the Security Interest or the rights and remedies of the Secured
Parties hereunder.

 



 

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(o)                 All
information heretofore, herein or hereafter supplied to the Secured
Parties by or on behalf of any Debtor with respect to the
Collateral is accurate and complete in all material respects as of
the date furnished.

 


(p)                 The
Debtors shall at all times preserve and keep in full force and
effect their respective valid existence and good standing and any
rights and franchises material to its business. No Debtor will
change its name, type of organization, jurisdiction of
organization, organizational identification number (if it has one),
legal or corporate structure, or identity, or add any new
fictitious name unless it provides at least thirty (30) days’
prior written notice to the Secured Parties of such change and, at
the time of such written notification, such Debtor provides any
financing statements or fixture filings necessary to perfect and
continue the perfection of the Security Interests granted and
evidenced by this Agreement.

 


(q)                 Except
in the ordinary course of business, no Debtor may consign any of
its inventory or sell any of its inventory on bill-and-hold,
sale-or-return, sale-on-approval, or other conditional terms of
sale without the consent of the Agent, which shall not be
unreasonably withheld, delayed, denied, or
conditioned.

 


(r)       No
Debtor may relocate its chief executive office to a new location
without providing thirty (30) days’ prior written
notification thereof to the Secured Parties and so long as, at the
time of such written notification, such Debtor provides any
financing statements or fixture filings necessary to perfect and
continue the perfection of the Security Interests granted and
evidenced by this Agreement.

 


(s)                 Each
Debtor was organized and remains organized solely under the laws of
the state set forth next to such Debtor’s name
in Schedule D attached
hereto, which Schedule D sets forth
each Debtor’s organizational identification number or, if any
Debtor does not have one, states that one does not
exist.

 


(t)       (i)
The actual name of each Debtor is the name set forth
in Schedule D attached
hereto; (ii) no Debtor has any trade names except as set forth
on Schedule E attached
hereto; (iii) no Debtor has used any name other than that
stated in the preamble hereto or as set forth on Schedule E for the
preceding five (5) years; and (iv) no entity has merged into any
Debtor or been acquired by any Debtor within the past five years
except as set forth on Schedule E.

 


(u)                 Each
Debtor, in its capacity as issuer, hereby agrees to comply with any
and all orders and instructions of Agent regarding the Pledged
Securities consistent with the terms of this Agreement without the
further consent of any Debtor as contemplated by Section 8-106
(or any successor section) of the UCC.  Further, each
Debtor agrees that it shall not enter into a similar agreement (or
one that would confer “control” within the meaning of
Article 8 of the UCC) with any other person or entity.

 


(v)                 Each
Debtor shall cause each subsidiary of such Debtor to immediately
become a party hereto (an “Additional Debtor”), by
executing and delivering an Additional Debtor Joinder in
substantially the form of Annex A attached hereto
and comply with the provisions hereof applicable to the
Debtors.  Concurrently therewith, the Additional Debtor
shall deliver replacement schedules for, or supplements to all
other Disclosure Schedules to (or referred to in) this Agreement,
as applicable, which replacement schedules shall supersede, or
supplements shall modify, the Disclosure Schedules then in
effect.  The Additional Debtor shall also deliver such
authorizing resolutions, good standing certificates, incumbency
certificates, organizational documents, financing statements and
other information and documentation as the Agent may reasonably
request.  Upon delivery of the foregoing to the Agent,
the Additional Debtor shall be and become a party to this Agreement
with the same rights and obligations as the Debtors, for all
purposes hereof as fully and to the same extent as if it were an
original signatory hereto and shall be deemed to have made the
representations, warranties and covenants set forth herein as of
the date of execution and delivery of such Additional Debtor
Joinder, and all references herein to the “Debtors”
shall be deemed to include each Additional Debtor.

 



 

-7-







 





 


(w)                 Each
Debtor shall vote the Pledged Securities to comply with the
covenants and agreements set forth herein and in the
Notes.

 


(x)                 Each
Debtor shall register the pledge of the applicable Pledged
Securities on the books of such Debtor.  Each Debtor
shall notify each issuer of Pledged Securities to register the
pledge of the applicable Pledged Securities in the name of the
Secured Parties on the books of such issuer.  Further,
except with respect to certificated securities delivered to the
Agent, the applicable Debtor shall deliver to Agent an
acknowledgement of pledge (which, where appropriate, shall comply
with the requirements of the relevant UCC with respect to
perfection by registration) signed by the issuer of the applicable
Pledged Securities, which acknowledgement shall confirm that: (a)
it has registered the pledge on its books and records; and (b) at
any time directed by Agent during the continuation of an Event of
Default, such issuer will transfer the record ownership of such
Pledged Securities into the name of any designee of Agent, will
take such steps as may be necessary to effect the transfer, and
will comply with all other instructions of Agent regarding such
Pledged Securities without the further consent of the applicable
Debtor.

 


(y)                 In
the event that, upon an occurrence of an Event of Default, Agent
shall sell all or any of the Pledged Securities to another party or
parties (herein called the “Transferee”) or shall
purchase or retain all or any of the Pledged Securities, each
Debtor shall, to the extent applicable: (i) deliver to Agent or the
Transferee, as the case may be, the articles of incorporation,
bylaws, minute books, stock certificate books, corporate seals,
deeds, leases, indentures, agreements, evidences of indebtedness,
books of account, financial records and all other Organizational
Documents and records of the Debtors and their direct and indirect
subsidiaries (but not including any items subject to the
attorney-client privilege related to this Agreement or any of the
transactions hereunder); (ii) use its best efforts to obtain
resignations of the persons then serving as officers and directors
of the Debtors and their direct and indirect subsidiaries, if so
requested; and (iii) use its best efforts to obtain any approvals
that are required by any governmental or regulatory body in order
to permit the sale of the Pledged Securities to the Transferee or
the purchase or retention of the Pledged Securities by Agent and
allow the Transferee or Agent to continue the business of the
Debtors and their direct and indirect subsidiaries.

 


(z)          Without
limiting the generality of the other obligations of the Debtors
hereunder, each Debtor shall promptly (i) cause to be registered at
the United States Copyright Office all of its material copyrights,
(ii) following an Event of Default, upon the written request of the
Agent, cause the security interest contemplated hereby with respect
to all Intellectual Property registered at the United States
Copyright Office or United States Patent and Trademark Office to be
duly recorded at the applicable office, and (iii) give the Agent
notice whenever it acquires (whether absolutely or by license) or
creates any additional material Intellectual Property.

 


(aa)                 Each
Debtor will from time to time, at the joint and several expense of
the Debtors, promptly execute and deliver all such further
instruments and documents, and take all such further action as may
be necessary or desirable, or as the Agent may reasonably request,
in order to perfect (to the extent such security interest can be
perfected by the filing of a UCC financing statement) and protect
any security interest granted or purported to be granted hereby or
to enable the Secured Parties to exercise and enforce their rights
and remedies hereunder and with respect to any Collateral or to
otherwise carry out the purposes of this Agreement.

 


(bb)                 Schedule F attached
hereto lists all of the patents, patent applications, trademarks,
trademark applications, registered copyrights, and domain names
owned by any of the Debtors as of the date
hereof.  Schedule F lists all
material licenses in favor of any Debtor for the use of any
patents, trademarks, copyrights and domain names as of the date
hereof.  All material patents and trademarks of the
Debtors have been duly recorded at the United States Patent and
Trademark Office and all material copyrights of the Debtors have
been duly recorded at the United States Copyright
Office.

 


(cc)
Each Debtor shall promptly execute and deliver to the Agent such
further deeds, mortgages, assignments, security agreements,
financing statements or other instruments, documents, certificates
and assurances and take such further action as the Agent may from
time to time request and may in its sole discretion deem necessary
to perfect, protect or enforce the Secured Parties’ security
interest in the Collateral.

 


(dd)                 Each
Debtor will not transfer, pledge, hypothecate, encumber, license,
sell or otherwise dispose of any of the Collateral (except for
non-exclusive licenses granted by a Debtor in its ordinary course
of business and sales of inventory by a Debtor in its ordinary
course of business) without the prior written consent of the
Agent.

 



 

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5.      Effect
of Pledge on Certain Rights.  If any of the Collateral
subject to this Agreement consists of nonvoting equity or ownership
interests (regardless of class, designation, preference or rights)
that may be converted into voting equity or ownership interests
upon the occurrence of certain events (including, without
limitation, upon the transfer of all or any of the other stock or
assets of the issuer), it is agreed by Debtors that the pledge of
such equity or ownership interests pursuant to this Agreement or
the enforcement of any of Agent’s rights hereunder shall not
be deemed to be the type of event which would trigger such
conversion rights notwithstanding any provisions in the
Organizational Documents or agreements to which any Debtor is
subject or to which any Debtor is party.

 


6.      Defaults.
The following events shall be “Events of
Default”:

 


(a)                 The
occurrence of an Event of Default (as defined in the Notes) under
the Notes;

 


(b)                 Any
representation or warranty of any Debtor in this Agreement shall
prove to have been incorrect in any material respect when
made;

 


(c)                 The
failure by any Debtor to observe or perform any of its obligations
hereunder for fifteen (15) days after delivery to such Debtor of
notice of such failure by or on behalf of a Secured Party unless
such default is capable of cure but cannot be cured within such
time frame and such Debtor is using best efforts to cure same in a
timely fashion; or

 


(d)                 If
any material provision of this Agreement shall at any time for any
reason be declared to be null and void, or the validity or
enforceability thereof shall be contested by any Debtor, or a
proceeding shall be commenced by any Debtor, or by any governmental
authority having jurisdiction over any Debtor, seeking to establish
the invalidity or unenforceability thereof, or any Debtor shall
deny that any Debtor has any liability or obligation purported to
be created under this Agreement.

 


7.      Duty
to Hold in Trust.

 


(a)                 Upon
the occurrence and during the continuance of any Event of Default,
each Debtor shall upon receipt of any revenue, income, dividend,
interest or other sums subject to the Security Interests, whether
payable pursuant to the Notes or otherwise, or of any check, draft,
note, trade acceptance or other instrument evidencing an obligation
to pay any such sum, hold the same in trust for the Secured Parties
and shall forthwith endorse and transfer any such sums or
instruments, or both, to the Agent, pro-rata in proportion to their
respective then-currently outstanding principal amount of Notes for
application to the satisfaction of the Obligations (and if any
Notes is not outstanding, pro-rata in proportion to the initial
purchases of the remaining Notes).

 


(b)                 If
any Debtor shall become entitled to receive or shall receive any
material securities or other property (including, without
limitation, shares of Pledged Securities or instruments
representing Pledged Securities acquired after the date hereof, or
any options, warrants, rights or other similar property or
certificates representing a dividend, or any distribution in
connection with any recapitalization, reclassification or increase
or reduction of capital, or issued in connection with any
reorganization of such Debtor or any of its direct or indirect
subsidiaries) in respect of the Pledged Securities (whether as an
addition to, in substitution of, or in exchange for, such Pledged
Securities or otherwise), such Debtor agrees to (i) accept the same
as the agent of the Secured Parties; (ii) hold the same in trust on
behalf of and for the benefit of the Secured Parties; and (iii) to
deliver any and all certificates or instruments evidencing the same
to Agent on or before the close of business on the fifth
(5th)
business day following the receipt thereof by such Debtor, in the
exact form received together with the Necessary Endorsements, to be
held by Agent subject to the terms of this Agreement as
Collateral.

 



 

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8.      Rights
and Remedies Upon Default.

 


(a)                 Upon
the occurrence and during the continuance of any Event of Default,
the Secured Parties, acting through the Agent, shall have the right
to exercise all of the remedies conferred hereunder and under the
Notes, and the Secured Parties shall have all the rights and
remedies of a secured party under the UCC.  Without
limitation, the Agent, for the benefit of the Secured Parties,
shall have the following rights and powers:

 


(i)       The
Agent shall have the right to take possession of the Collateral
and, for that purpose, enter, with the aid and assistance of any
person, any premises where the Collateral, or any part thereof, is
or may be placed and remove the same, and each Debtor shall
assemble the Collateral and make it available to the Agent at
places which the Agent shall reasonably select, whether at such
Debtor’s premises or elsewhere, and make available to the
Agent, without rent, all of such Debtor’s respective premises
and facilities for the purpose of the Agent taking possession of,
removing or putting the Collateral in saleable or disposable
form.

 


(ii)           Upon
written notice to the Debtors by Agent, all rights of each Debtor
to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise and all rights of each Debtor to
receive the dividends and interest which it would otherwise be
authorized to receive and retain, shall cease.  Upon such
written notice, Agent shall have the right to receive, for the
benefit of the Secured Parties, any interest, cash dividends or
other payments on the Collateral and, at the option of Agent, to
exercise in such Agent’s discretion all voting rights
pertaining thereto.  Without limiting the generality of
the foregoing, Agent shall have the right (but not the obligation)
to exercise all rights with respect to the Collateral as it were
the sole and absolute owner thereof, including, without limitation,
to vote and/or to exchange, at its sole discretion, any or all of
the Collateral in connection with a merger, reorganization,
consolidation, recapitalization or other readjustment concerning or
involving the Collateral or any Debtor or any of its direct or
indirect subsidiaries.

 


(iii)           The
Agent shall have the right to operate the business of each Debtor
using the Collateral and shall have the right to assign, sell,
lease or otherwise dispose of and deliver all or any part of the
Collateral, at public or private sale or otherwise, either with or
without special conditions or stipulations, for cash or on credit
or for future delivery, in such parcel or parcels and at such time
or times and at such place or places, and upon such terms and
conditions as the Agent may deem commercially reasonable, all
without (except as shall be required by applicable statute and
cannot be waived) advertisement or demand upon or notice to any
Debtor or right of redemption of a Debtor, which are hereby
expressly waived.  Upon each such sale, lease, assignment
or other transfer of Collateral, the Agent, for the benefit of the
Secured Parties, may, unless prohibited by applicable law which
cannot be waived, purchase all or any part of the Collateral being
sold, free from and discharged of all trusts, claims, right of
redemption and equities of any Debtor, which are hereby waived and
released.

 


(iv)           The
Agent shall have the right (but not the obligation) to notify any
account debtors and any obligors under instruments or accounts to
make payments directly to the Agent, on behalf of the Secured
Parties, and to enforce the Debtors’ rights against such
account debtors and obligors.

 


(v)           The
Agent, for the benefit of the Secured Parties, may (but is not
obligated to) direct any financial intermediary or any other person
or entity holding any investment property to transfer the same to
the Agent, on behalf of the Secured Parties, or its
designee.

 


(vi)           The
Agent may (but is not obligated to) transfer any or all
Intellectual Property registered in the name of any Debtor at the
United States Patent and Trademark Office and/or Copyright Office
into the name of the Secured Parties or any designee or any
purchaser of any Collateral.

 


(b)                 The
Agent shall comply with any applicable law in connection with a
disposition of Collateral and such compliance will not be
considered adversely to affect the commercial reasonableness of any
sale of the Collateral.  The Agent may sell the
Collateral without giving any warranties and may specifically
disclaim such warranties.  If the Agent sells any of the
Collateral on credit, the Debtors will only be credited with
payments actually made by the purchaser.  In addition,
each Debtor waives (except as shall be required by applicable
statute and cannot be waived) any and all rights that it may have
to a judicial hearing in advance of the enforcement of any of the
Agent’s rights and remedies hereunder, including, without
limitation, its right following an Event of Default to take
immediate possession of the Collateral and to exercise its rights
and remedies with respect thereto.

 



 

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(c)                 For
the purpose of enabling the Agent to further exercise rights and
remedies under this Section 8 or elsewhere
provided by agreement or applicable law, each Debtor hereby grants
to the Agent, for the benefit of the Agent and the Secured Parties,
an irrevocable, nonexclusive license (exercisable without payment
of royalty or other compensation to such Debtor) to use, license or
sublicense following an Event of Default, any Intellectual Property
now owned or hereafter acquired by such Debtor, and wherever the
same may be located, and including in such license access to all
media in which any of the licensed items may be recorded or stored
and to all computer software and programs used for the compilation
or printout thereof.

 


9.      Applications
of Proceeds. Upon the occurrence and during the continuance
of any Event of Default, the proceeds of any sale, lease or other
disposition by the Agent of the Collateral hereunder or from
payments made to the Agent on account of any insurance policy
insuring any portion of the Collateral shall be applied first, to
the expenses of retaking, holding, storing, processing and
preparing for sale, selling, and the like (including, without
limitation, any taxes, fees and other costs incurred in connection
therewith) of the Collateral, to the reasonable attorneys’
fees and expenses incurred by the Agent in enforcing the Secured
Parties’ rights hereunder and in connection with collecting,
storing and disposing of the Collateral, and then to satisfaction
of the Obligations pro rata among the Secured Parties (based on
then-outstanding principal amounts of Notes at the time of any such
determination), and to the payment of any other amounts required by
applicable law, after which the Secured Parties shall pay to the
applicable Debtor any surplus proceeds. If, upon the sale, license
or other disposition of all of the Collateral, the proceeds thereof
are insufficient to pay all amounts to which the Secured Parties
are legally entitled, the Debtors will be liable for the
deficiency, together with interest thereon, at the rate of 18% per
annum or the lesser amount permitted by applicable law (the
“Default
Rate”), and the reasonable fees of any attorneys
employed by the Secured Parties to collect such
deficiency.  To the extent permitted by applicable law,
each Debtor waives all claims, damages and demands against the
Secured Parties arising out of the repossession, removal, retention
or sale of the Collateral, unless due solely to the gross
negligence or willful misconduct of the Secured Parties as
determined by a final judgment (not subject to further appeal) of a
court of competent jurisdiction.

 


10.           Securities
Law Provision.  Each Debtor recognizes that Agent
may be limited in its ability to effect a sale to the public of all
or part of the Pledged Securities by reason of certain prohibitions
in the Securities Act of 1933, as amended, or other federal or
state securities laws (collectively, the “Securities Laws”), and
may be compelled to resort to one or more sales to a restricted
group of purchasers who may be required to agree to acquire the
Pledged Securities for their own account, for investment and not
with a view to the distribution or resale thereof.  Each
Debtor agrees that sales so made may be at prices and on terms less
favorable than if the Pledged Securities were sold to the public,
and that Agent has no obligation to delay the sale of any Pledged
Securities for the period of time necessary to register the Pledged
Securities for sale to the public under the Securities
Laws.  Each Debtor shall cooperate with Agent in its
attempt to satisfy any requirements under the Securities Laws
(including, without limitation, registration thereunder if
requested by Agent) applicable to the sale of the Pledged
Securities by Agent.

 


11.           Costs
and Expenses. Each Debtor agrees to pay all reasonable
out-of-pocket fees, costs and expenses incurred in connection with
any filing required hereunder, including without limitation, any
financing statements pursuant to the UCC, continuation statements,
partial releases and/or termination statements related thereto or
any expenses of any searches reasonably required by the
Agent.  The Debtors shall also pay all other claims and
charges which in the reasonable opinion of the Agent is reasonably
likely to prejudice, imperil or otherwise affect the Collateral or
the Security Interests therein.  The Debtors will also,
upon demand, pay to the Agent the amount of any and all reasonable
expenses, including the reasonable fees and expenses of its counsel
and of any experts and agents, which the Agent, for the benefit of
the Secured Parties, may incur in connection with the creation,
perfection, protection, satisfaction, foreclosure, collection or
enforcement of the Security Interest and the preparation,
administration, continuance, amendment or enforcement of this
Agreement and pay to the Agent the amount of any and all reasonable
expenses, including the reasonable fees and expenses of its counsel
and of any experts and agents, which the Agent, for the benefit of
the Secured Parties, and the Secured Parties may incur in
connection with (i) the enforcement of this Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral, or (iii) the
exercise or enforcement of any of the rights of the Secured Parties
under the Notes.

 



 

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12.           Responsibility
for Collateral. The Debtors assume all liabilities and
responsibility in connection with all Collateral, and the
Obligations shall in no way be affected or diminished by reason of
the loss, destruction, damage or theft of any of the Collateral or
its unavailability for any reason.  Without limiting the
generality of the foregoing and except as required by applicable
law, (a) neither the Agent nor any Secured Party (i) has any duty
(either before or after an Event of Default) to collect any amounts
in respect of the Collateral or to preserve any rights relating to
the Collateral, or (ii) has any obligation to clean-up or otherwise
prepare the Collateral for sale, and (b) each Debtor shall remain
obligated and liable under each contract or agreement included in
the Collateral to be observed or performed by such Debtor
thereunder.  Neither the Agent nor any Secured Party
shall have any obligation or liability under any such contract or
agreement by reason of or arising out of this Agreement or the
receipt by the Agent or any Secured Party of any payment relating
to any of the Collateral, nor shall the Agent or any Secured Party
be obligated in any manner to perform any of the obligations of any
Debtor under or pursuant to any such contract or agreement, to make
inquiry as to the nature or sufficiency of any payment received by
the Agent or any Secured Party in respect of the Collateral or as
to the sufficiency of any performance by any party under any such
contract or agreement, to present or file any claim, to take any
action to enforce any performance or to collect the payment of any
amounts which may have been assigned to the Agent or to which the
Agent or any Secured Party may be entitled at any time or
times.

 


13.           Security
Interests Absolute. All rights of the Secured Parties and
all obligations of each Debtor hereunder, shall be absolute and
unconditional, irrespective of: (a) any lack of validity or
enforceability of this Agreement, the Notes or any agreement
entered into in connection with the foregoing, or any portion
hereof or thereof, against any other Debtor or Guarantor; (b) any
change in the time, manner or place of payment or performance of,
or in any other term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to any departure from
the Notes or any other agreement entered into in connection with
the foregoing; (c) any exchange, release or nonperfection of any of
the Collateral, or any release or amendment or waiver of or consent
to departure from any other collateral for, or any guarantee, or
any other security, for all or any of the Obligations; (d) any
action by the Secured Parties to obtain, adjust, settle and cancel
in its sole discretion any insurance claims or matters made or
arising in connection with the Collateral; or (e) any other
circumstance which might otherwise constitute any legal or
equitable defense available to a Debtor, or a discharge of all or
any part of the Security Interests granted hereby.  Until
the Obligations shall have been paid and performed in full (other
than contingent obligations for which no claim has been made), the
rights of the Secured Parties shall continue even if the
Obligations are barred for any reason, including, without
limitation, the running of the statute of
limitations.  Each Debtor expressly waives presentment,
protest, notice of protest, demand, notice of nonpayment and demand
for performance. In the event that at any time any transfer of any
Collateral or any payment received by the Secured Parties hereunder
shall be deemed by final order of a court of competent jurisdiction
to have been a voidable preference or fraudulent conveyance under
the bankruptcy or insolvency laws of the United States, or shall be
deemed to be otherwise due to any party other than the Secured
Parties, then, in any such event, each Debtor’s obligations
hereunder shall survive cancellation of this Agreement, and shall
not be discharged or satisfied by any prior payment thereof and/or
cancellation of this Agreement, but shall remain a valid and
binding obligation enforceable in accordance with the terms and
provisions hereof.  Each Debtor waives all right to
require the Secured Parties to proceed against any other person or
entity or to apply any Collateral which the Secured Parties may
hold at any time, or to marshal assets, or to pursue any other
remedy. Each Debtor waives any defense arising by reason of the
application of the statute of limitations to any obligation secured
hereby.

 


14.           Term
of Agreement. This Agreement and the Security Interests
shall terminate on the date on which all payments under the Notes
have been indefeasibly paid in full and all other Obligations
(other than contingent obligations for which no claim has been
made) have been paid or discharged; provided, however, that all indemnities
of the Debtors contained in this Agreement (including, without
limitation, Annex B hereto) shall survive and remain operative and
in full force and effect regardless of the termination of this
Agreement.

 



 

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15.           Power
of Attorney; Further Assurances.


 


(a)                 Each
Debtor authorizes the Agent, and does hereby make, constitute and
appoint the Agent and its officers, agents, successors or assigns
with full power of substitution, as such Debtor’s true and
lawful attorney-in-fact, with power, in the name of the Agent or
such Debtor, to, after the occurrence and during the continuance of
an Event of Default, (i) endorse any note, checks, drafts, money
orders or other instruments of payment (including payments payable
under or in respect of any policy of insurance) in respect of the
Collateral that may come into possession of the Agent; (ii) to sign
and endorse any financing statement pursuant to the UCC or any
invoice, freight or express bill, bill of lading, storage or
warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with accounts, and other
documents relating to the Collateral; (iii) to pay or discharge
taxes, liens, security interests or other encumbrances at any time
levied or placed on or threatened against the Collateral; (iv) to
demand, collect, receipt for, compromise, settle and sue for monies
due in respect of the Collateral; (v) to transfer any Intellectual
Property or provide licenses respecting any Intellectual Property;
and (vi) generally, at the option of the Agent, and at the expense
of the Debtors, at any time, or from time to time, to execute and
deliver any and all documents and instruments and to do all acts
and things which the Agent deems necessary to protect, preserve and
realize upon the Collateral and the Security Interests granted
therein in order to effect the intent of this Agreement and the
Notes all as fully and effectually as the Debtors might or could
do; and each Debtor hereby ratifies all that said attorney shall
lawfully do or cause to be done by virtue hereof.  This
power of attorney is coupled with an interest and shall be
irrevocable for the term of this Agreement and thereafter as long
as any of the Obligations shall be outstanding.  The
designation set forth herein shall be deemed to amend and supersede
any inconsistent provision in the Organizational Documents or other
documents or agreements to which any Debtor is subject or to which
any Debtor is a party.  Without limiting the generality
of the foregoing, after the occurrence and during the continuance
of an Event of Default, each Secured Party is specifically
authorized to execute and file any applications for or instruments
of transfer and assignment of any patents, trademarks, copyrights
or other Intellectual Property with the United States Patent and
Trademark Office and the United States Copyright
Office.

 


(b)                 Each
Debtor hereby irrevocably appoints the Agent as such Debtor’s
attorney-in-fact, with full authority in the place and instead of
such Debtor and in the name of such Debtor, from time to time in
the Agent’s discretion, to take any action and to execute any
instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including the filing, in
its sole discretion, of one or more financing or continuation
statements and amendments thereto, relative to any of the
Collateral without the signature of such Debtor where permitted by
law, which financing statements may (but need not) describe the
Collateral as “all assets” or “all personal
property” or words of like import, and ratifies all such
actions taken by the Agent.  This power of attorney is
coupled with an interest and shall be irrevocable for the term of
this Agreement and thereafter as long as any of the Obligations
shall be outstanding.

 


16.             Notices.
All notices, requests, demands and other communications hereunder
shall be subject to the notice provision of the Purchase
Agreement.

 


17.           Other
Security. To the extent that the Obligations are now or
hereafter secured by property other than the Collateral or by
the guarantee, endorsement or property of any other person, firm,
corporation or other entity, then the Agent shall have the right,
in its sole discretion, to pursue, relinquish, subordinate, modify
or take any other action with respect thereto, without in any way
modifying or affecting any of the Secured Parties’ rights and
remedies hereunder.

 


18.           Appointment
of Agent.  If and as applicable, the Secured
Parties hereby appoint Arena Investors LP to act as their agent
(“Agent”) for purposes of
exercising any and all rights and remedies of the Secured Parties
hereunder. Such appointment shall continue until revoked in writing
by the Secured Parties, at which time the Secured Parties shall
appoint a new Agent. The Agent shall have the rights,
responsibilities and immunities set forth in Annex
B hereto.

 



 

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19.           Miscellaneous.

 


(a)                 No
course of dealing between the Debtors and the Secured Parties, nor
any failure to exercise, nor any delay in exercising, on the part
of the Secured Parties, any right, power or privilege hereunder or
under the Notes shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege
hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege.

 


(b)                 All
of the rights and remedies of the Secured Parties with respect to
the Collateral, whether established hereby or by the Notes or by
any other agreements, instruments or documents or by law shall be
cumulative and may be exercised singly or
concurrently.

 


(c)                 This
Agreement, together with the exhibits and schedules hereto,
contains the entire understanding of the parties with respect to
the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into this Agreement
and the exhibits and schedules hereto. No provision of this
Agreement may be waived, modified, supplemented or amended except
in a written instrument signed, in the case of an amendment, by the
Debtors and the Secured Party, or, in the case of a waiver, by the
party against whom enforcement of any such waived provision is
sought.

 


(d)                 If
any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.

 


(e)                 No
waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such
right.

 


(f)       This
Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns.  The
Company and the Subsidiaries may not assign this Agreement or any
rights or obligations hereunder without the prior written consent
of the Agent (other than by merger).  Any Secured Party
may assign any or all of its rights under this Agreement to any
Person (as defined in the Purchase Agreement) to whom such Secured
Party assigns or transfers any Obligations, provided such
transferee agrees in writing to be bound, with respect to the
transferred Obligations, by the provisions of this Agreement that
apply to the “Secured Parties.”

 


(g)                 Each
party shall take such further action and execute and deliver such
further documents as may be necessary or appropriate in order to
carry out the provisions and purposes of this
Agreement.

 


(h)                 Except
to the extent mandatorily governed by the jurisdiction or situs
where the Collateral is located, all questions concerning the
construction, validity, enforcement and interpretation of this
Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York, without
regard to the principles of conflicts of law
thereof.  Except to the extent mandatorily governed by
the jurisdiction or situs where the Collateral is located, each
Debtor agrees that all proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this
Agreement and the Notes (whether brought against a party hereto or
its respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of
New York, Borough of Manhattan.  Except to the extent
mandatorily governed by the jurisdiction or situs where the
Collateral is located, each Debtor hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting
in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any proceeding, any
claim that it is not personally subject to the jurisdiction of any
such court, that such proceeding is improper.   Each
party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby.

 



 

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(i)       This
Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and, all
of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as
if such facsimile signature were the original thereof.

 


(j)       All
Debtors shall jointly and severally be liable for the obligations
of each Debtor to the Secured Parties hereunder.

 


(k)                 Each
Debtor agrees to indemnify, pay and hold harmless the Agent and the
Secured Parties and their respective assignees and affiliates and
their respective officers, directors, employees, agents,
consultants, auditors, and attorneys of any of them (collectively,
“Indemnitees”) from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including the
reasonable fees and disbursements of counsel for such Indemnitees
in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not such Purchaser
Indemnitee shall be designated a party thereto) imposed on,
incurred by or asserted against such Indemnitee in any way related
to or arising from or alleged to arise from this Agreement or the
Collateral, except any such losses, claims, liabilities, damages,
penalties, suits, costs and expenses which result from the gross
negligence or willful misconduct of the Indemnitee as determined by
a final, nonappealable decision of a court of competent
jurisdiction; provided that the Debtors shall not be obligated to
indemnify the Indemnitees, or have any liability, in excess of the
aggregate Purchase Price (as defined in the Purchase
Agreement).  This indemnification provision is in
addition to, and not in limitation of, any other indemnification
provision in the Notes, the Purchase Agreement or any other
agreement, instrument or other document executed or delivered in
connection herewith or therewith.

 


(l)       Nothing
in this Agreement shall be construed to subject Agent or any
Secured Party to liability as a partner in any Debtor or any if its
direct or indirect subsidiaries that is a partnership or as a
member in any Debtor or any of its direct or indirect subsidiaries
that is a limited liability company, nor shall Agent or any Secured
Party be deemed to have assumed any obligations under any
partnership agreement or limited liability company agreement, as
applicable, of any such Debtor or any of its direct or indirect
subsidiaries or otherwise, unless and until any such Secured Party
exercises its right to be substituted for such Debtor as a partner
or member, as applicable, pursuant hereto.

 


(m)                 To
the extent that the grant of the security interest in the
Collateral and the enforcement of the terms hereof require the
consent, approval or action of any partner or member, as
applicable, of any Debtor or any direct or indirect subsidiary of
any Debtor or compliance with any provisions of any of the
Organizational Documents, the Debtors hereby represent that all
such consents and approvals have been obtained.

 


[SIGNATURE
PAGE OF DEBTORS FOLLOWS]

 




	




	
	
 


	
 

	
 

	
 







 

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IN
WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Security Agreement to be duly executed on the day and year
first above written.

 



CHARGE ENTERPRISES, INC.

 


 

 


By:__________________________________________

 


      Name:

 


      Title:

 


 

 



TRANSWORLD ENTERPRISES INC.

 


 

 


By:__________________________________________

 


      Name:

 


      Title:

 


 

 



PTGI INTERNATIONAL CARRIER SERVICES, INC.

 


 

 


By:__________________________________________

 


      Name:

 


      Title:

 


 

 



GETCHARGED, INC.

 


 

 


By:__________________________________________

 


      Name:

 


      Title:

 



CHARGE SERVICES, LLC

 


 

 


By:__________________________________________

 


      Name:

 


      Title:

 


 

 


[SIGNATURE
PAGE OF HOLDERS FOLLOWS]

 




	
	
	
 


	
 

	
 

	
 







 

-16-








 






[SIGNATURE
PAGE OF HOLDERS TO AMENDED AND RESTATED SECURITY
AGREEMENT]

 


 

 


	


MT. WHITNEY SECURITIES, LLC


 

 


 


	
 

	
 


	


By:

	
 

	
 


	


Name:

	


 Lawrence Cutler

	
 


	


Title:

	


 Authorized Signatory

	
 


	
 







 


	


ARENA ORIGINATING CO., LLC


 

 


 


	
 

	
 


	


By:

	
 

	
 


	


Name:

	


 Lawrence Cutler

	
 


	


Title:

	


 Authorized Signatory

	
 


	
 







 


	


ARENA SPECIAL OPPORTUNITIES FUND, LP


 

 


 


	
 

	
 


	


By:

	
 

	
 


	


Name:

	


 Lawrence Cutler

	
 


	


Title:

	


 Authorized Signatory

	
 


	
 







 


	


ARENA SPECIAL OPPORTUNITIES PARTNERS I, LP


 

 


 


	
 

	
 


	


By:

	
 

	
 


	


Name:

	


 Lawrence Cutler

	
 


	


Title:

	


 Authorized Signatory

	
 







 


 


	


ARENA STRUCTURED PRIVATE INVESTMENTS (CAYMAN), LLC


 

 


 


	
 

	
 


	


By:

	
 

	
 


	


Name:

	


 Lawrence Cutler

	
 


	


Title:

	


 Authorized Signatory

	
 







 


 

 


 

 




	




	
	
 


	
 

	
 

	
 







 

-17-








 







ANNEX A

 



to

 



AMENDED AND RESTATED

 



SECURITY AGREEMENT

 



FORM OF ADDITIONAL DEBTOR JOINDER

 


Amended
and Restated Security Agreement dated as of May __, 2021 made by
Charge Enterprises, Inc., a Delaware corporation (formerly known as
Transworld Holdings, Inc. and GoIP Global, Inc., a Colorado
corporation) and its subsidiaries party thereto from time to time,
as Debtors to and in favor of the Secured Parties identified
therein (the “Security
Agreement”).

 


Reference is made
to the Security Agreement as defined above; capitalized terms used
herein and not otherwise defined herein shall have the meanings
given to such terms in, or by reference in, the Security
Agreement.

 


The
undersigned hereby agrees that, upon delivery of this Additional
Debtor Joinder to the Secured Parties referred to above, the
undersigned shall (a) be an Additional Debtor under the Security
Agreement, (b) have all the rights and obligations of the Debtors
under the Security Agreement as fully and to the same extent as if
the undersigned was an original signatory thereto and (c) be deemed
to have made the representations and warranties set forth therein
as of the date of execution and delivery of this Additional Debtor
Joinder.  WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, THE UNDERSIGNED SPECIFICALLY GRANTS TO THE SECURED
PARTIES A SECURITY INTEREST IN THE COLLATERAL AS MORE FULLY SET
FORTH IN THE SECURITY AGREEMENT AND ACKNOWLEDGES AND AGREES TO THE
WAIVER OF JURY TRIAL PROVISIONS SET FORTH THEREIN.

 


Attached hereto are
supplemental and/or replacement Disclosure Schedules to the
Security Agreement, as applicable.

 


An
executed copy of this Joinder shall be delivered to the Secured
Parties, and the Secured Parties may rely on the matters set forth
herein on or after the date hereof.  This Joinder shall
not be modified, amended or terminated without the prior written
consent of the Secured Parties.

 


IN
WITNESS WHEREOF, the undersigned has caused this Joinder to be
executed in the name and on behalf of the undersigned.

 


 

 



[Name of Additional Debtor]

 


By:__________________________________________

 


      Name:

 


      Title:

 


      Address:

 


Dated:

 


 

 




	
	
	
 


	
 

	
 

	
 







 

-18-








 







ANNEX B

 



to

 



AMENDED AND RESTATED

 



SECURITY AGREEMENT

 



THE AGENT

 


1.           Appointment.
 The Secured Parties
(all capitalized terms used herein and not otherwise defined shall
have the respective meanings provided in the Security Agreement to
which this Annex B is attached (the “Agreement”)), by their
acceptance of the benefits of the Agreement, hereby designate Arena
Investors LP (“Agent”) as the Agent to
act as specified herein and in the Agreement.  Each
Secured Party shall be deemed irrevocably to authorize the Agent to
take such action on its behalf under the provisions of the
Agreement and any other Transaction Document (as such term is
defined in the Purchase Agreement) and to exercise such powers and
to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and
thereof and such other powers as are reasonably incidental
thereto.  The Agent may perform any of its duties
hereunder by or through its agents or employees.

 


2.           Nature
of Duties.  The Agent shall have no
duties or responsibilities except those expressly set forth in the
Agreement.  Neither the Agent nor any of its partners,
members, shareholders, officers, directors, employees or agents
shall be liable for any action taken or omitted by it as such under
the Agreement or hereunder or in connection herewith or therewith,
be responsible for the consequence of any oversight or error of
judgment or answerable for any loss, unless caused solely by its or
their gross negligence or willful misconduct as determined by a
final judgment (not subject to further appeal) of a court of
competent jurisdiction.  The duties of the Agent shall be
mechanical and administrative in nature; the Agent shall not have
by reason of the Agreement or any other Transaction Document a
fiduciary relationship in respect of any Debtor or any Secured
Party; and nothing in the Agreement or any other Transaction
Document (as defined in the Purchase Agreement), expressed or
implied, is intended to or shall be so construed as to impose upon
the Agent any obligations in respect of the Agreement or any other
Transaction Document except as expressly set forth herein and
therein.

 


3.           Lack
of Reliance on the Agent.  Independently and
without reliance upon the Agent, each Secured Party, to the extent
it deems appropriate, has made and shall continue to make (i) its
own independent investigation of the financial condition and
affairs of the Company and its subsidiaries in connection with such
Secured Party’s investment in the Debtors, the creation and
continuance of the Obligations, the transactions contemplated by
the Transaction Documents, and the taking or not taking of any
action in connection therewith, and (ii) its own appraisal of the
creditworthiness of the Company and its subsidiaries, and of the
value of the Collateral from time to time, and the Agent shall have
no duty or responsibility, either initially or on a continuing
basis, to provide any Secured Party with any credit, market or
other information with respect thereto, whether coming into its
possession before any Obligations are incurred or at any time or
times thereafter.  The Agent shall not be responsible to
the Debtors or any Secured Party for any recitals, statements,
information, representations or warranties herein or in any
document, certificate or other writing delivered in connection
herewith, or for the execution, effectiveness, genuineness,
validity, enforceability, perfection, collectability, priority or
sufficiency of the Agreement or any other Transaction Document, or
for the financial condition of the Debtors or the value of any of
the Collateral, or be required to make any inquiry concerning
either the performance or observance of any of the terms,
provisions or conditions of the Agreement or any other Transaction
Document, or the financial condition of the Debtors, or the value
of any of the Collateral, or the existence or possible existence of
any default or Event of Default under the Agreement, the Notes or
any of the other Transaction Documents.

 


4.      Certain
Rights of the Agent.  The Agent shall have the
right to take any action with respect to the Collateral, on behalf
of all of the Secured Parties.  To the extent practical,
the Agent shall request instructions from the Secured Parties with
respect to any material act or action (including failure to act) in
connection with the Agreement or any other Transaction Document,
and shall be entitled to act or refrain from acting in accordance
with the instructions of the Secured Party; if such instructions
are not provided despite the Agent’s request therefor, the
Agent shall be entitled to refrain from such act or taking such
action, and if such action is taken, shall be entitled to
appropriate indemnification from the Secured Parties in respect of
actions to be taken by the Agent; and the Agent shall not incur
liability to any person or entity by reason of so
refraining.  Without limiting the foregoing, (a) no
Secured Party shall have any right of action whatsoever against the
Agent as a result of the Agent acting or refraining from acting
hereunder in accordance with the terms of the Agreement or any
other Transaction Document, and the Debtors shall have no right to
question or challenge the authority of, or the instructions given
to, the Agent pursuant to the foregoing and (b) the Agent shall not
be required to take any action that the Agent believes (i) could
reasonably be expected to expose it to personal liability or (ii)
is contrary to this Agreement, the Transaction Documents or
applicable law.

 



 

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5.      Reliance.  The
Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, statement,
certificate, telex, teletype or facsimile message, cablegram,
radiogram, order or other document or telephone message signed,
sent or made by the proper person or entity, and, with respect to
all legal matters pertaining to the Agreement and the other
Transaction Documents and its duties thereunder, upon advice of
counsel selected by it and upon all other matters pertaining to
this Agreement and the other Transaction Documents and its duties
thereunder, upon advice of other experts selected by
it.  Anything to the contrary notwithstanding, the Agent
shall have no obligation whatsoever to any Secured Party to assure
that the Collateral exists or is owned by the Debtors or is cared
for, protected or insured or that the liens granted pursuant to the
Agreement have been properly or sufficiently or lawfully created,
perfected, or enforced or are entitled to any particular
priority.

 


6.      Indemnification.  To
the extent that the Agent is not reimbursed and indemnified by the
Debtors, the Secured Parties will jointly and severally reimburse
and indemnify the Agent, in proportion to their initially purchased
respective principal amounts of Notes, from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in performing its duties hereunder or under the
Agreement or any other Transaction Document, or in any way relating
to or arising out of the Agreement or any other Transaction
Document except for those determined by a final judgment (not
subject to further appeal) of a court of competent jurisdiction to
have resulted solely from the Agent’s own gross negligence or
willful misconduct.  Prior to taking any action hereunder
as Agent, the Agent may require each Secured Party to deposit with
it sufficient sums as it determines in good faith is necessary to
protect the Agent for costs and expenses associated with taking
such action.

 


7.      Resignation
by the Agent.

 


(a)                 The
Agent may resign from the performance of all its functions and
duties under the Agreement and the other Transaction Documents at
any time by giving 30 days’ prior written notice (as provided
in the Agreement) to the Debtors and the Secured
Parties.  Such resignation shall take effect upon the
appointment of a successor Agent pursuant to clauses (b) and (c)
below.

 


(b)                 Upon
any such notice of resignation, the Secured Parties shall appoint a
successor Agent hereunder.

 


(c)                 If
a successor Agent shall not have been so appointed within said
thirty (30)-day period, the Agent shall then appoint a successor
Agent who shall serve as Agent until such time, if any, as the
Secured Parties appoint a successor Agent as provided
above.  If a successor Agent has not been appointed
within such thirty (30)-day period, the Agent may petition any
court of competent jurisdiction or may interplead the Debtors and
the Secured Parties in a proceeding for the appointment of a
successor Agent, and all fees, including, but not limited to,
extraordinary fees associated with the filing of interpleader and
expenses associated therewith, shall be payable by the Debtors on
demand.

 


8.      Rights
with respect to Collateral.  Each Secured Party agrees
with all other Secured Parties and the Agent (i) that it shall not,
and shall not attempt to, exercise any rights with respect to its
security interest in the Collateral, whether pursuant to any other
agreement or otherwise (other than pursuant to this Agreement), or
take or institute any action against the Agent or any of the other
Secured Parties in respect of the Collateral or its rights
hereunder (other than any such action arising from the breach of
this Agreement) and (ii) that such Secured Party has no other
rights with respect to the Collateral other than as set forth in
this Agreement and the other Transaction Documents.  Upon
the acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its
duties and obligations under the Agreement.  After any
retiring Agent’s resignation or removal hereunder as Agent,
the provisions of the Agreement including this Annex B shall inure
to its benefit as to any actions taken or omitted to be taken by it
while it was Agent.

 


 

 




	




	
	
 


	
 

	
 

	
 







 

-20-