Pledge and Security Agreement – for Credit Agreement – JDS Uniphase Corp.
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (as the same may be amended, restated,
supplemented or otherwise modified from time to time, this “Security
Agreement“) is entered into as of January 20, 2012 by and among JDS UNIPHASE
CORPORATION, a Delaware corporation (the “Borrower“), the Subsidiaries of
the Borrower listed on the signature pages hereto (together with the Borrower,
the “Initial Grantors,” and together with any additional Subsidiaries,
whether now existing or hereafter formed or acquired which become parties to
this Security Agreement from time to time, in accordance with the terms of the
Credit Agreement (as defined below), by executing a Supplement hereto in
substantially the form of Annex I, the “Grantors“), and JPMORGAN
CHASE BANK, N.A., a national banking association, in its capacity as
administrative agent (the “Administrative Agent“) for itself and for the
Secured Parties (as defined in the Credit Agreement identified below). For the
avoidance of doubt, no Foreign Subsidiary shall be a Grantor.
PRELIMINARY STATEMENT
The Borrower, the Administrative Agent and the Lenders are entering into a
Credit Agreement dated as of the date hereof (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement“). The Grantors are entering into this Security Agreement in order
to induce the Lenders to enter into and extend credit to the Borrower under the
Credit Agreement and each of the Grantors (other than the Borrower) is a
Subsidiary of the Borrower and will derive a direct or indirect benefit from the
extensions of credit made by the Lenders to the Borrower under the Credit
Agreement.
ACCORDINGLY, the Grantors and the Administrative Agent, on behalf of the
Secured Parties, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Terms Defined in the Credit Agreement. All capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Credit Agreement.
1.2. Terms Defined in UCC. Terms defined in the UCC which are not
otherwise defined in this Security Agreement are used herein as defined in the
UCC.
[***] A PORTION OF THIS EXHIBIT HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED.
1.3. Definitions of Certain Terms Used Herein. As used in this
Security Agreement, in addition to the terms defined in the Preliminary
Statement, the following terms shall have the following meanings:
“Accounts” shall have the meaning set forth in Article 9 of the UCC.
“Article” means a numbered article of this Security Agreement, unless
another document is specifically referenced.
“Chattel Paper” shall have the meaning set forth in Article 9 of the
UCC.
“Collateral” means all Accounts, Chattel Paper, Commercial Tort
Claims, Copyrights, Deposit Accounts, Documents, Equipment, Farm Products,
General Intangibles, Goods, Instruments, Inventory, Investment Property, letters
of credit, Letter-of-Credit Rights, Licenses, Patents, Supporting Obligations,
Trademarks and Other Collateral, wherever located, in which any Grantor now has
or hereafter acquires any right or interest, and the proceeds (including Stock
Rights), insurance proceeds and products thereof, together with all books and
records, customer lists, credit files, computer files, programs, printouts and
other computer materials and records related thereto; provided that
Collateral shall exclude all Excluded Assets and shall be subject to the
limitations contained in Article II of this Security Agreement.
“Commercial Tort Claims” means commercial tort claims, as defined in
the UCC of any Grantor, including each commercial tort claim specifically
described in Exhibit “E”.
“Control” shall have the meaning set forth in Article 8 or, if
applicable, in Section 9-104, 9-105, 9-106 or 9-107 of Article 9 of the UCC.
“Controlled Deposit Account” means a Deposit Account designated as a
“Controlled Deposit Account” on Exhibit “G” hereto, which shall at all times
contain funds necessary to comply with the requirements of Section
5.09(c) of the Credit Agreement.
“Controlled Securities Account” means a Securities Account designated
as a “Controlled Securities Account” on Exhibit “G” hereto, which shall at all
times contain funds necessary to comply with the requirements of Section
5.09(c) of the Credit Agreement.
“Copyrights” means, with respect to any Person, all of such Person153s
right, title, and interest in and to the following: (a) all copyrights, rights
and interests in copyrights, works protectable by copyright, copyright
registrations, and copyright applications; (b) all renewals of any of the
foregoing; (c) all income, royalties, damages, and payments now or hereafter due
and/or payable under any of the foregoing, including, without limitation,
damages or payments for past or future infringements for any of the foregoing;
(d) the right to sue for past, present, and future infringements of any of the
foregoing; and (e) all rights corresponding to any of the foregoing throughout
the world.
“Default” means an event described in Section 5.1 hereof.
“Deposit Account Control Agreement” means an agreement, in form and
substance reasonably satisfactory to the Administrative Agent and each relevant
Grantor, among any Grantor, a banking institution holding such Grantor153s funds,
and the Administrative Agent with respect to collection and Control of all
deposits and balances held in a Controlled Deposit Account maintained by such
Grantor with such banking institution.
2
“Deposit Accounts” shall have the meaning set forth in Article 9 of
the UCC.
“Documents” shall have the meaning set forth in Article 9 of the UCC.
“Domestic Subsidiary” shall have the meaning set forth in the Credit
Agreement.
“Equipment” shall have the meaning set forth in Article 9 of the UCC.
“Excluded Assets” shall have the meaning set forth in the Credit
Agreement.
“Exhibit” refers to a specific exhibit to this Security Agreement,
unless another document is specifically referenced.
“Farm Products” shall have the meaning set forth in Article 9 of the
UCC.
“Financial Officer” when used, in respect of any Grantor, means the
chief financial officer, principal accounting officer, treasurer or controller
of such Grantor or of the Borrower.
“General Intangibles” shall have the meaning set forth in Article 9 of
the UCC.
“Goods” shall have the meaning set forth in Article 9 of the UCC.
“Instruments” shall have the meaning set forth in Article 9 of the
UCC.
“Intellectual Property” means all Patents, Trademarks, Copyrights and
any other intellectual property.
“Inventory” shall have the meaning set forth in Article 9 of the UCC.
“Investment Property” shall have the meaning set forth in Article 9 of
the UCC.
“knowledge” when used, in respect of any Grantor, means knowledge of a
Responsible Officer of such Grantor.
“Letter of Credit Rights” shall have the meaning set forth in Article
9 of the UCC.
“Licenses” means, with respect to any Person, all of such Person153s
right, title, and interest in and to (a) any and all licensing agreements or
similar arrangements in and to its Patents, Copyrights, or Trademarks, (b) all
income, royalties, damages, claims, and payments now or hereafter due or payable
under and with respect thereto, including, without limitation, damages and
payments for past and future breaches thereof, and (c) all rights to sue for
past, present, and future breaches thereof.
“Material Registered Copyrights” means any registered Copyright which
is material to the business of the Borrower and its Subsidiaries, taken as a
whole, as determined by the Grantors in their commercially reasonable judgment.
“Material Domestic Subsidiary” shall have the meaning set forth in the
Credit Agreement.
“Other Collateral” means, subject to the limitations contained in
Article II of this Security Agreement, any property of the Grantors, not
included within the defined terms Accounts, Chattel Paper, Commercial Tort
Claims, Copyrights, Deposit Accounts, Documents, Equipment, Farm Products,
General Intangibles, Goods, Instruments, Inventory, Investment Property,
Letter-of-Credit Rights,
3
Licenses, Patents, Supporting Obligations and Trademarks, including, without
limitation, all cash on hand, letters of credit, Stock Rights or any other
deposits (general or special, time or demand, provisional or final) with any
bank or other financial institution, it being intended that the Other Collateral
include all personal property of the Grantors, provided that Other
Collateral shall exclude all Excluded Assets and shall be subject to the
limitations contained in Article II of this Security Agreement.
“Patents” means, with respect to any Person, all of such Person153s
right, title, and interest in and to: (a) any and all patents and patent
applications; (b) all inventions and improvements described and claimed therein;
(c) all reissues, divisions, continuations, renewals, extensions, and
continuations-in-part thereof; (d) all income, royalties, damages, claims, and
payments now or hereafter due or payable under and with respect thereto,
including, without limitation, damages and payments for past and future
infringements thereof; (e) all rights to sue for past, present, and future
infringements thereof; and (f) all rights corresponding to any of the foregoing
throughout the world.
“Payment Event of Default or Acceleration Event” means the occurrence
of (i) an Event of Default (as defined in the Credit Agreement) under clauses
(a) or (b) of Article VII of the Credit Agreement or (ii) the termination
of the Commitments and the Loans and other Obligations becoming due and payable
pursuant to Article VII of the Credit Agreement.
“Pledge Subsidiary” shall have the meaning set forth in the Credit
Agreement.
“Pledged Collateral” means all Instruments, Securities and other
Investment Property of the Grantors that constitute Collateral in accordance
with Article II, whether or not physically delivered to the Administrative Agent
pursuant to this Security Agreement.
“Receivables” means the Accounts, Chattel Paper, Documents, Investment
Property, or Instruments, and any other rights or claims to receive money which
are General Intangibles or which are otherwise included as Collateral.
“Related Parties” means, with respect to any specified Person, such
Person153s Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person153s Affiliates.
“Responsible Officer” when used, in respect of any Grantor, means the
chief executive officer, president, chief financial officer, treasurer, other
Financial Officer or general counsel of such Grantor or of the Borrower.
“Section” means a numbered section of this Security Agreement, unless
another document is specifically referenced.
“Security” shall have the meaning set forth in Article 8 of the UCC.
“Securities Account” has the meaning set forth in Article 8 of the
UCC.
“Securities Account Control Agreement” means an agreement, in form and
substance reasonably satisfactory to the Administrative Agent and each relevant
Grantor, among any Grantor, a securities intermediary holding such Grantor153s
investments, and the Administrative Agent with respect to collection and Control
of all investments held in a Controlled Securities Account maintained by such
Grantor with such securities intermediary.
4
“Stock Rights” means any securities, dividends, instruments or other
distributions and any other right or property which any Grantor shall receive or
shall become entitled to receive for any reason whatsoever with respect to, in
substitution for or in exchange for any Equity Interest constituting Collateral,
any right to receive an Equity Interest and any right to receive earnings, in
which any Grantor now has or hereafter acquires any right, issued by an issuer
of such securities.
“Supporting Obligation” shall have the meaning set forth in Article 9
of the UCC.
“Trademarks” means, with respect to any Person, all of such Person153s
right, title, and interest in and to the following: (a) all trademarks
(including service marks), trade names, trade dress, and trade styles and the
registrations and applications for registration thereof and the goodwill of the
business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all
income, royalties, damages, and payments now or hereafter due or payable with
respect thereto, including, without limitation, damages, claims, and payments
for past and future infringements thereof; (d) all rights to sue for past,
present, and future infringements of the foregoing, including the right to
settle suits involving claims and demands for royalties owing; and (e) all
rights corresponding to any of the foregoing throughout the world.
“Voting Power” means with respect to any share of Voting Stock, the
number of votes that the holder of such share may cast in an election of members
of the Board of Directors (or analogous governing body) of the issuer of such
share.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
GRANT OF SECURITY INTEREST
Each of the Grantors hereby pledges, collaterally assigns and grants to the
Administrative Agent, on behalf of and for the benefit of the Secured Parties, a
security interest in all of such Grantor153s right, title and interest, whether
now owned or hereafter acquired, in and to the Collateral to secure the prompt
and complete payment and performance of the Secured Obligations; provided
that, notwithstanding anything to the contrary contained in this Article II, (i)
the security interest created by this Security Agreement shall not extend to,
and the term “Collateral” shall not include, any Excluded Assets or any Equity
Interest in any Subsidiary that is not a Domestic Subsidiary or a First-Tier
Foreign Subsidiary, (ii) the amount of Equity Interests in any First-Tier
Foreign Subsidiary pledged or required to be pledged to the Administrative Agent
hereunder or under any other Collateral Document shall be automatically limited
to the Voting Stock of such First-Tier Foreign Subsidiary that is also a Pledge
Subsidiary representing not more than 65% (or, in the case of Acterna France
SAS, 14.52%) of the total Voting Power of all outstanding Voting Stock of such
First-Tier Foreign Subsidiary (and the term “Collateral” shall not include any
other Equity Interests of such First-Tier Foreign Subsidiary) and (iii) the
Equity Interests of a Domestic Subsidiary will not be pledged or required to be
pledged to the Administrative Agent hereunder or under any other Collateral
Document unless such Domestic Subsidiary is a Material Domestic Subsidiary (and
the term “Collateral” shall not include the Equity Interests of any Domestic
Subsidiary that is not a Material Domestic Subsidiary). For the avoidance of
doubt, the grant of a security interest herein shall not be deemed to be an
assignment of intellectual property rights owned by the Grantors. In addition,
for the avoidance of doubt, (a) it is understood and agreed that neither the
Borrower nor any Subsidiary will be required to (i) obtain bailee or landlord
waivers in respect of any location where Inventory is stored or (ii) record with
the United States Patent and Trademark Office (or any analogous domestic or
foreign agency or office) any security interest in any Patent or Trademark and
(b) no Equity Interest whatsoever in any Subsidiary may be pledged unless such
Subsidiary is a Domestic Subsidiary or a First-Tier Foreign Subsidiary.
5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Initial Grantors represents and warrants to the Administrative
Agent and the Secured Parties, and each Grantor that becomes a party to this
Security Agreement pursuant to the execution of a Security Agreement Supplement
in substantially the form of Annex I represents and warrants (after
giving effect to supplements to each of the Exhibits hereto with respect to such
subsequent Grantor as attached to such Security Agreement Supplement), that:
3.1. Title, Authorization, Validity and Enforceability. Such Grantor
has marketable title to the Collateral owned by it that is material to its
business, except for minor defects in title that do not interfere in any
material respect with such Grantor153s ability to conduct its business as
currently conducted or to utilize such Collateral owned by it for its intended
purposes, and has the power to transfer the Collateral to which it has purported
to grant a security interest hereunder, free and clear of all Liens except for
Liens permitted under Section 6.02 of the Credit Agreement, and has full
corporate, limited liability company or partnership, as applicable, power and
authority to grant to the Administrative Agent the security interest in such
Collateral pursuant hereto. The execution and delivery by such Grantor of this
Security Agreement have been duly authorized by proper corporate, limited
liability company, limited partnership or partnership, as applicable,
proceedings, and this Security Agreement constitutes a legal, valid and binding
obligation of such Grantor and creates a security interest which is enforceable
against such Grantor in all Collateral in accordance with the terms hereof,
except as enforceability may be limited by (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws relating to or affecting
the enforcement of creditors153 rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at law), and (iii)
requirements of reasonableness, good faith and fair dealing. When financing
statements have been properly filed in the appropriate offices against such
Grantor in the locations listed in Exhibit “D” in accordance with
Section 4.1.4 hereof, the Administrative Agent will have a fully
perfected first priority security interest in the Collateral owned by such
Grantor in which a security interest may be perfected by filing of a financing
statement under the UCC, subject only to Liens permitted under Section
6.02 of the Credit Agreement.
3.2. Conflicting Laws and Contracts. Neither the execution and
delivery by such Grantor of this Security Agreement, the creation and perfection
of the security interest in the Collateral granted hereunder, nor compliance
with the terms and provisions hereof will violate (i) any applicable law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on such
Grantor, or (ii) such Grantor153s charter, articles or certificate of
incorporation, partnership agreement or by-laws (or similar constitutive
documents), or (iii) the provisions of any material indenture, material
instrument or material agreement to which such Grantor is a party or is subject,
or conflict with or constitute a default thereunder, or result in or require the
creation or imposition of any Lien in, of, or on the property of such Grantor
pursuant to the terms of any such indenture, instrument or agreement (other than
any Lien of the Administrative Agent on behalf of the Secured Parties and other
Liens permitted under Section 6.02 of the Credit Agreement).
3.3. Principal Location. Such Grantor153s principal place of business
(if it has only one) and its chief executive office (if different than its
principal place of business) are disclosed in Exhibit “A”; such Grantor
has no other principal place of business or chief executive office except those
set forth in Exhibit “A”.
3.4. Property Locations. The Inventory and Equipment of each Grantor ,
and the location of such Inventory and Equipment, is properly recorded on the
internal books and records of the Borrower.
6
3.5. No Other Names; Etc.. Within the five-year period ending as of
the date such Person becomes a Grantor hereunder, such Grantor has not conducted
business under any name, changed its jurisdiction of formation, merged with or
into or consolidated with any other Person, except as disclosed in Exhibit
“A”. The name in which such Grantor has executed this Security Agreement is
the exact name as it appears in such Grantor153s organizational documents, as
amended, as filed with such Grantor153s jurisdiction of organization as of the
date such Person becomes a Grantor hereunder.
3.6. No Default. No Default (as defined herein) has occurred and is
continuing.
3.7. Accounts and Chattel Paper. To such Grantor153s knowledge, except
as disclosed to the Administrative Agent, the names of the obligors, amounts
owing, due dates and other information with respect to the Accounts and Chattel
Paper owned by such Grantor are correctly stated in all material respects in all
records of such Grantor relating thereto and in all invoices and reports with
respect thereto furnished to the Administrative Agent by such Grantor from time
to time.
3.8. Filing Requirements. None of the Collateral owned by such Grantor
is of a type for which security interests or liens may be perfected by filing
under any federal statute except for Patents, Trademarks and Copyrights held by
such Grantor and, in the case of Material Registered Copyrights, described in
Exhibit “B”.
3.9. No Financing Statements, Security Agreements. No financing
statement or security agreement describing all or any portion of the Collateral
which has not lapsed or been terminated naming such Grantor as debtor has been
filed or is of record in any jurisdiction except financing statements (i) naming
the Administrative Agent on behalf of the Secured Parties as the secured party
and (ii) in respect of Liens permitted by Section 6.02 of the Credit Agreement;
provided, that nothing herein shall be deemed to constitute an agreement
to subordinate any of the Liens of the Administrative Agent under the Loan
Documents to any Liens otherwise permitted under Section 6.02 of the Credit
Agreement.
3.10. Federal Employer Identification Number; State Organization Number;
Jurisdiction of Organization. Such Grantor153s federal employer identification
number is, and if such Grantor is a registered organization, such Grantor153s
State of organization, type of organization and State of organization
identification number are, listed in Exhibit “F”.
3.11. Pledged Securities and Other Investment Property. Exhibit
“C” sets forth a complete and accurate list of the Instruments, Securities
and other Investment Property constituting Pledged Collateral and delivered to
the Administrative Agent; provided that, for the avoidance of doubt, with
respect to the Equity Interests of the Subsidiaries, only the Pledged Collateral
in the form of Equity Interests in Subsidiaries that constitute Collateral in
accordance with Article II hereof will be delivered to the Administrative Agent
and no Equity Interests in any other Persons shall be so delivered;
provided further that the Equity Interests of the First-Tier Foreign
Subsidiaries required to be delivered hereunder may be delivered after the
Closing Date in accordance with Section 5.09 of the Credit Agreement.
Each Grantor is the direct and beneficial owner of each Instrument, Security and
other type of Investment Property listed in Exhibit “C” as being owned by
it, free and clear of any Liens, except for the security interest granted to the
Administrative Agent for the benefit of the Secured Parties hereunder or as
permitted by Section 6.02 of the Credit Agreement. Each Grantor further
represents and warrants that (i) all Pledged Collateral owned by it constituting
an Equity Interest has been (to the extent such concepts are relevant with
respect to such Pledged Collateral) duly authorized and validly issued, are
fully paid and non-assessable and constitute the percentage of the issued and
outstanding shares of stock (or other Equity Interests) of the respective
issuers thereof indicated in Exhibit “C” hereto, (ii) with respect to any
certificates to be delivered to the Administrative Agent pursuant to this
Section 3.11 representing an Equity Interest, either such certificates are
Securities as defined in Article 8 of the UCC of the applicable
7
jurisdiction as a result of actions by the issuer or otherwise, or, if such
certificates are not Securities, such Grantor has so informed the Administrative
Agent so that the Administrative Agent may take steps to perfect its security
interest therein as a General Intangible and (iii) to the extent such Pledged
Collateral is held by a securities intermediary in a Controlled Securities
Account, such account shall be covered by a Securities Account Control Agreement
to the extent required by Section 5.09(c) of the Credit Agreement.
3.12. Intellectual Property.
3.12.1 Exhibit “B” contains a complete and accurate listing as of the
Effective Date of all Material Registered Copyrights of each of the Grantors.
All of the U.S. registrations, applications for registration or applications for
issuance of the Material Registered Copyrights are valid and subsisting, in good
standing and are recorded or in the process of being recorded in the name of the
applicable Grantor.
3.12.2 To the knowledge of each Grantor, such Grantor has taken or caused to
be taken reasonable steps so that none of its Intellectual Property, the value
of which to the Grantors are contingent upon maintenance of the confidentiality
thereof, have been disclosed by such Grantor to any Person other than employees,
contractors, customers, representatives and agents of the Grantors who are
parties to customary confidentiality and nondisclosure agreements with the
Grantors, except as could not be reasonably expected to result in a Material
Adverse Effect.
3.13. Controlled Deposit Accounts and Controlled Securities Accounts.
All of such Grantor153s Controlled Deposit Accounts and Controlled Securities
Accounts are listed on Exhibit “G”.
ARTICLE IV
COVENANTS
From the date of this Security Agreement and thereafter until this Security
Agreement is terminated, each of the Initial Grantors agrees, and from and after
the effective date of any Security Agreement Supplement applicable to any
Grantor (and after giving effect to supplements to each of the Exhibits hereto
with respect to such subsequent Grantor as attached to such Security Agreement
Supplement) and thereafter until this Security Agreement is terminated each such
subsequent Grantor agrees:
4.1. General.
4.1.1 Inspection. Each Grantor will permit the Administrative Agent or
any Secured Party, by its representatives and agents to inspect the Collateral
in the manner set forth in Section 5.06 of the Credit Agreement as if it
was a party thereto.
4.1.2 Taxes. Such Grantor will comply with Section 5.04 of the
Credit Agreement as if it was a party thereto.
4.1.3 Records and Reports; Notification of Default. Each Grantor will
comply with Section 5.06 of the Credit Agreement as if it was a party
thereto.
4.1.4 Financing Statements and Other Actions; Defense of Title. Each
Grantor hereby authorizes the Administrative Agent to file, and if requested
will execute and deliver to the Administrative Agent, all financing statements
describing the Collateral owned by such Grantor and other documents and take
such other actions as may from time to time reasonably be
8
requested by the Administrative Agent in order to maintain a first priority,
perfected security interest in and, if applicable, Control of, the Collateral
owned by such Grantor, subject to Liens permitted under Section 6.02 of the
Credit Agreement, provided that nothing herein shall be deemed to constitute an
agreement to subordinate any of the Liens of the Administrative Agent under the
Loan Documents to any Liens otherwise permitted under Section 6.02 of the Credit
Agreement. Such financing statements may describe the Collateral in the same
manner as described herein or may contain an indication or description of
collateral that describes such property in any other manner as the
Administrative Agent may determine, in its reasonable discretion, is necessary,
advisable or prudent to ensure that the perfection of the security interest in
the Collateral granted to the Administrative Agent herein, including, without
limitation, describing such property as “all assets of the debtor whether now
owned or hereafter acquired and wheresoever located, including all accessions
thereto and proceeds thereof.” Each Grantor will take any and all actions
necessary to defend title to the Collateral owned by such Grantor against all
persons and to defend the security interest of the Administrative Agent in such
Collateral and the priority thereof against any Lien not expressly permitted
hereunder or under any Loan Document; provided that it is understood and
agreed that no Grantor will be required to obtain bailee or landlord waivers in
respect of any location where Inventory is stored.
4.1.5 Disposition of Collateral. No Grantor will sell, lease or
otherwise dispose of the Collateral owned by such Grantor except dispositions
specifically permitted pursuant to Section 6.03 of the Credit Agreement.
4.1.6 Liens. No Grantor will create, incur, or suffer to exist any
Lien on the Collateral owned by such Grantor except Liens permitted pursuant to
Section 6.02 of the Credit Agreement, provided, that nothing herein shall
be deemed to constitute an agreement to subordinate any of the Liens of the
Administrative Agent under the Loan Documents to any Liens otherwise permitted
under Section 6.02 of the Credit Agreement.
4.1.7 Change in Corporate Existence, Type or Jurisdiction of Organization,
Location, Name. Each Grantor will:
|
(i) |
preserve its existence and corporate structure as in effect on the Effective |
|
(ii) |
not change its name or jurisdiction of organization or organizational form |
|
(iii) |
not maintain its principal place of business (if it has only one) or its |
|
(iv) |
not (i) change its name or taxpayer identification number or (ii) change its |
|
(v) |
will continue to properly record the Inventory and Equipment on the Company153s |
unless, in the case of clauses (i) through (iv), such Grantor shall have
given the Administrative Agent not less than fifteen (15) days153 prior written
notice of such event or occurrence and, to the extent reasonably requested by
the Administrative Agent, shall have taken steps as are necessary or advisable
to properly maintain the validity, perfection and priority of the Administrative
Agent153s security interest in the Collateral owned by such Grantor.
9
4.1.8 Other Financing Statements. No Grantor will suffer to exist or
authorize the filing of any financing statement naming it as debtor covering all
or any portion of the Collateral owned by such Grantor, except any financing
statement authorized under Section 4.1.4 or any financing statement
evidencing such Liens as are permitted under Section 6.02 of the Credit
Agreement (including, without limitation, a financing statement of a third party
financing source in connection with the sale or discount of accounts receivable
permitted by Section 6.03(a)(v)(F) of the Credit Agreement). Each Grantor
acknowledges that it is not authorized to file any financing statement or
amendment or termination statement with respect to any financing statement filed
in connection herewith without the prior written consent of the Administrative
Agent (such consent not to be unreasonably withheld), subject to such Grantor153s
rights under Section 9-509(d)(2) of the UCC.
4.2. Receivables.
4.2.1 Certain Agreements on Receivables. During the occurrence and
continuation of a Default, no Grantor will make or agree to make any discount,
credit, rebate or other reduction in the original amount owing on a Receivable
or accept in satisfaction of a Receivable less than the original amount thereof;
provided that prior to the occurrence and continuation of a Default, such
Grantor may reduce the amount of Accounts arising from the sale of Inventory or
the rendering of services in accordance with its present policies and in the
ordinary course of business and as otherwise permitted under the Credit
Agreement.
4.2.2 Electronic Chattel Paper. Each Grantor shall take all steps
necessary to grant the Administrative Agent Control of all electronic chattel
paper in accordance with the UCC and all “transferable records” as defined in
each of the Uniform Electronic Transactions Act and the Electronic Signatures in
Global and National Commerce Act.
4.3. Maintenance of Goods. Each Grantor shall comply with Section
5.05 of the Credit Agreement as if it were a party thereto.
4.4. Instruments, Securities, Chattel Paper, Documents and Pledged
Deposits. Each Grantor will (i) deliver to the Administrative Agent
immediately upon execution of this Security Agreement the originals of all
Chattel Paper, Securities (to the extent certificated) and Instruments
constituting Collateral (if any then exist), (ii) hold in trust for the
Administrative Agent upon receipt and immediately thereafter deliver to the
Administrative Agent any Chattel Paper, Securities and Instruments constituting
Collateral, (iii) upon the Administrative Agent153s request, after the occurrence
and during the continuance of a Default, deliver to the Administrative Agent
(and thereafter hold in trust for the Administrative Agent upon receipt and
immediately deliver to the Administrative Agent) any Document evidencing or
constituting Collateral in an amount greater than $1,000,000, and (iv) upon the
Administrative Agent153s request, deliver to the Administrative Agent a duly
executed amendment to this Security Agreement, in the form of Exhibit “H”
hereto (the “Amendment“), pursuant to which such Grantor will pledge such
additional Collateral. Such Grantor hereby authorizes the Administrative Agent
to attach each Amendment to this Security Agreement and agrees that all
additional Collateral owned by it set forth in such Amendments shall be
considered to be part of the Collateral; provided that, for the avoidance
of doubt, with respect to any delivery of Equity Interests of the Subsidiaries
required under this Section 4.4, only the Equity Interests of Subsidiaries that
constitute Collateral in accordance with Article II hereof will be delivered to
the Administrative Agent; provided further that the Equity Interests of
the First-Tier Foreign Subsidiaries required to be delivered hereunder may be
delivered after the Closing Date in accordance with Section 5.09 of the
Credit Agreement.
10
4.5. Uncertificated Securities and Certain Other Investment Property.
Each Grantor will permit the Administrative Agent from time to time to cause
Subsidiaries of such Grantor that are issuers (and, if held with a securities
intermediary, such securities intermediary) of uncertificated securities or
other types of Investment Property not represented by certificates which are
Collateral owned by such Grantor to mark their books and records with the
numbers and face amounts of all such uncertificated securities or other types of
Investment Property not represented by certificates and all rollovers and
replacements therefor to reflect the Lien of the Administrative Agent granted
pursuant to this Security Agreement.
4.6. Stock and Other Ownership Interests.
4.6.1 Reserved.
4.6.2 Issuance of Additional Securities. Except as permitted in the
Credit Agreement, no Grantor will permit or suffer any Subsidiary of such
Grantor (the corporate securities or other ownership interests in which
Subsidiary constitute Collateral) to issue any securities or other ownership
interests, any right to receive the same or any right to receive earnings,
except to such Grantor.
4.6.3 Registration of Pledged Securities and other Investment
Property. Each Grantor will permit any registrable Collateral owned by such
Grantor to be registered in the name of the Administrative Agent or its nominee
at any time at the option of the Required Lenders following the occurrence and
during the continuance of a Default and without any further consent of such
Grantor.
4.6.4 Exercise of Rights in Pledged Securities and other Investment
Property. Each Grantor will permit the Administrative Agent or its nominee
at any time after the occurrence and during the continuance of a Payment Event
of Default or Acceleration Event, without notice, to exercise or refrain from
exercising any and all voting and other consensual rights pertaining to the
Collateral owned by such Grantor or any part thereof, and to receive all
dividends and interest in respect of such Collateral.
4.7. Controlled Deposit Accounts and Controlled Securities Accounts.
Each Grantor will upon the Administrative Agent153s request, use commercially
reasonable efforts to cause each bank or other financial institution in which it
maintains a Controlled Deposit Account or Controlled Securities Account to enter
into a control agreement with the Administrative Agent, in form and substance
reasonably satisfactory to the Administrative Agent in order to give the
Administrative Agent Control of the Controlled Deposit Account or Controlled
Securities Account. The Administrative Agent agrees that it will not give any
notice of sole control under any Deposit Account Control Agreement or Securities
Account Control Agreement unless and until a Default has occurred and is
continuing. If exclusive dominion and control of any Controlled Deposit Account
or Controlled Securities Account or dominion and control of any other deposit or
investment has been obtained by the Administrative Agent and no Default
continues to exist, the Administrative Agent will send notice to the bank or
financial institution at which such Controlled Deposit Account or Controlled
Securities Account or other deposit or investment is maintained to (a) terminate
the Administrative Agent153s exclusive dominion and control of such Controlled
Deposit Account or Controlled Securities Account or other deposit or investment
and (b) reinstate Grantor153s access to such Controlled Deposit Account or
Controlled Securities Account or other deposit or investment. In the case of
deposits and investments maintained with Lenders, the terms of such letter shall
be subject to the provisions of the Credit Agreement regarding setoffs. The
provisions of this Section 4.7 shall not apply to (a) Deposit Accounts
which are not Controlled Deposit Accounts and (b) Securities Accounts which are
not Controlled Securities Accounts.
11
4.8. Letter-of-Credit Rights. Each Grantor will, upon the
Administrative Agent153s request, use commercially reasonable efforts to cause
each issuer of a letter of credit (in respect of which such Grantor is the
beneficiary) with a face value in excess of $10,000,000 to consent to the
assignment of proceeds of such letter of credit in order to give the
Administrative Agent Control of the Letter of Credit Rights to such letter of
credit.
4.9. Federal, State or Municipal Claims. Each Grantor will notify the
Administrative Agent of any Collateral owned by such Grantor which constitutes a
claim in an amount greater than $10,000,000 against the United States government
or any state or local government or any instrumentality or agency thereof, the
assignment of which claim is restricted by federal, state or municipal law.
Furthermore, each Grantor will execute and deliver to the Administrative Agent
such documents, agreements and instruments, and will take such further actions
(including, without limitation, the taking of necessary actions under the
Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq.
and 41 U.S.C. § 15 et seq.)), which the Administrative Agent may, from time to
time, reasonably request, to ensure perfection and priority of the Liens
hereunder in respect of Accounts and General Intangibles owing by any government
or instrumentality or agency thereof, all at the expense of the Borrower.
Notwithstanding anything to the contrary in this Section 4.9, no Grantor
will be required to provide any notice or take any action hereunder if and to
the extent prohibited by any federal, state or municipal law.
4.10. No Interference. Each Grantor agrees that it will not interfere
with any right, power and remedy of the Administrative Agent provided for in
this Security Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by the
Administrative Agent of any one or more of such rights, powers or remedies.
4.11. Insurance. In the event any material Collateral is located in
any area that has been designated by the Federal Emergency Management Agency as
a “Special Flood Hazard Area”, each Grantor shall purchase and maintain flood
insurance on such Collateral (including any personal property which is located
on any real property leased by such Grantor within a “Special Flood Hazard
Area”). The amount of flood insurance required by this Section shall be in an
amount equal to the lesser of the total Commitment or the total replacement cost
value of the improvements.
4.12. Intellectual Property. No Grantor has any registered interest
in, or title to, any Material Registered Copyright except as set forth in
Exhibit “B”. If, after the date hereof, any Grantor obtains rights to, or
applies for or seeks registration of, any new Material Registered Copyright,
then such Grantor shall give the Administrative Agent notice thereof, as part of
each compliance certificate provided to the Administrative Agent pursuant to the
Credit Agreement. Each Grantor agrees promptly upon request by the
Administrative Agent to execute and deliver to the Administrative Agent any
supplement to this Security Agreement or any other document reasonably requested
by the Administrative Agent to evidence such security interest in such Material
Registered Copyright in a form appropriate for recording in the United States
Copyright Office.
4.13. Commercial Tort Claims. If, after the date hereof, any Grantor
identifies the existence of a Commercial Tort Claim belonging to such Grantor in
an amount greater than $10,000,000 that has arisen in the course of such
Grantor153s business in addition to the Commercial Tort Claims described in
Exhibit “E”, which are all of such Grantor153s Commercial Tort Claims as of
the Effective Date, then such Grantor shall give the Administrative Agent prompt
notice thereof, but in any event not less frequently than quarterly. Each
Grantor agrees promptly upon request by the Administrative Agent to execute and
deliver to the Administrative Agent any supplement to this Security Agreement or
any other document reasonably requested by the Administrative Agent to evidence
the grant of a security interest therein in favor of the Administrative Agent.
12
4.14. Updating of Exhibits to Security Agreement. The Borrower will
provide to the Administrative Agent, concurrently with the delivery of the
certificate of a Financial Officer of the Borrower as required by Section
5.01(c) of the Credit Agreement, updated versions of the Exhibits to this
Security Agreement (provided that if there have been no changes to any such
Exhibits since the previous updating thereof required hereby, the Borrower shall
indicate that there has been “no change” to the applicable Exhibit(s)).
ARTICLE V
DEFAULT
5.1. The occurrence of any one or more of the following events shall
constitute a Default:
5.1.1 Any representation or warranty made by or on behalf of any Grantor
under or in connection with this Security Agreement shall be materially false as
of the date on which made.
5.1.2 The occurrence of any “Event of Default” under, and as defined in, the
Credit Agreement.
5.2. Remedies.
5.2.1 If any Default has occurred and is continuing then, the Administrative
Agent may, and at the direction of the Required Lenders shall, exercise any or
all of the following rights and remedies (provided that the Administrative Agent
shall endeavor, to the extent commercially reasonable, to notify the Borrower
prior to the exercise of the initial remedy, provided further that any failure
by the Administrative Agent to deliver any such notice shall not be deemed to be
a breach by the Administrative Agent of this Security Agreement or give rise to
any liability or otherwise affect the Administrative Agent153s rights and remedies
hereunder in any manner):
|
(i) |
Those rights and remedies provided in this Security Agreement, the Credit |
|
(ii) |
Those rights and remedies available to a secured party under the UCC (whether |
|
(iii) |
Give notice of sole control or any other instruction under any Deposit |
13
|
(iv) |
Only to the extent a Payment Event of Default or Acceleration Event has |
|
(v) |
Only to the extent a Payment Event of Default or Acceleration Event has |
5.2.2 The Administrative Agent, on behalf of the Secured Parties, may comply
with any applicable state or federal law requirements in connection with a
disposition of the Collateral, and such compliance will not be considered to
adversely affect the commercial reasonableness of any sale of the Collateral.
5.2.3 The Administrative Agent shall have the right upon any such public sale
or sales and, to the extent permitted by law, upon any such private sale or
sales, to purchase for the benefit of the Administrative Agent and the other
Secured Parties, the whole or any part of the Collateral so sold, free of any
right of equity redemption, which equity redemption the Grantor hereby expressly
releases.
5.2.4 Until the Administrative Agent is able to effect a sale, lease, or
other disposition of Collateral, the Administrative Agent shall have the right
to hold or use Collateral, or any part thereof, to the extent that it deems
appropriate for the purpose of preserving Collateral or its value or for any
other purpose deemed appropriate by the Administrative Agent. The Administrative
Agent may, if it so elects, seek the appointment of a receiver or keeper to take
possession of Collateral and to enforce any of the Administrative Agent153s
remedies (for the benefit of the Administrative Agent and other Secured
Parties), with respect to such appointment without prior notice or hearing as to
such appointment.
5.2.5 Reserved.
5.2.6 Notwithstanding the foregoing, neither the Administrative Agent nor any
other Secured Party shall be required to (i) make any demand upon, or pursue or
exhaust any of their rights or remedies against, any Grantor, any other obligor,
guarantor, pledgor or any other Person with respect to the payment of the
Secured Obligations or to pursue or exhaust any of their rights or remedies with
respect to any Collateral therefor or any direct or indirect guarantee thereof,
(ii) marshal the Collateral or any guarantee of the Secured Obligations or to
resort to the Collateral or any such guarantee in any particular order, or (iii)
effect a public sale of any Collateral.
14
5.2.7 Each Grantor recognizes that the Administrative Agent may be unable to
effect a public sale of any or all the Pledged Collateral and may be compelled
to resort to one or more private sales thereof in accordance with Section
5.2.1 above. Each Grantor also acknowledges that any private sale may result
in prices and other terms less favorable to the seller than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any such
private sale shall not be deemed to have been made in a commercially
unreasonable manner solely by virtue of such sale being private. The
Administrative Agent shall be under no obligation to delay a sale of any of the
Pledged Collateral for the period of time necessary to permit any Grantor or the
issuer of the Pledged Collateral to register such securities for public sale
under the Securities Act of 1933, as amended, or under applicable state
securities laws, even if the applicable Grantor and the issuer would agree to do
so.
5.3. Grantors153 Obligations Upon Default. Upon the request of the
Administrative Agent after the occurrence and during the continuance of a
Payment Event of Default or Acceleration Event, each Grantor will:
5.3.1 Assembly of Collateral. Assemble and make available to the
Administrative Agent the Collateral and all books and records relating thereto
at any place or places reasonably specified by the Administrative Agent.
5.3.2 Secured Party Access. Permit the Administrative Agent, by the
Administrative Agent153s representatives and agents, to enter, occupy and use any
premises where all or any part of the Collateral, or the books and records
relating thereto, or both, are located, to take possession of all or any part of
the Collateral, or the books and records relating thereto, or both, to remove
all or any part of the Collateral, or the books and records relating thereto, or
both, and to conduct sales of the Collateral, without any obligation to pay the
Grantor for such use and occupancy.
5.3.3 Prepare and file, or cause an issuer of Pledged Collateral to prepare
and file, with the Securities and Exchange Commission or any other applicable
government agency, registration statements, a prospectus and such other
documentation in connection with the Pledged Collateral as the Administrative
Agent may reasonably request, all in form and substance satisfactory to the
Administrative Agent, and furnish to the Administrative Agent, or cause an
issuer of Pledged Collateral to furnish to the Administrative Agent, any
information regarding the Pledged Collateral in such reasonable detail as the
Administrative Agent may specify.
5.3.4 Take, or cause an issuer of Pledged Collateral to take, any and all
actions necessary to register or qualify the Pledged Collateral to enable the
Administrative Agent to consummate a public sale or other disposition of the
Pledged Collateral.
5.4. License. The Administrative Agent is hereby granted a limited
license or other limited right to use, following the occurrence and during the
continuance of a Payment Event of Default or Acceleration Event, without charge,
each Grantor153s labels, patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks, service marks, customer lists and advertising
matter, or any property of a similar nature, as it pertains to the Collateral,
solely for the purposes of completing production of, advertising for sale, and
selling any Collateral. In addition, each Grantor hereby irrevocably (until the
Credit Agreement has terminated pursuant to its express terms) agrees that the
Administrative Agent may, following the occurrence and during the continuance of
a Payment Event of Default or Acceleration Event, sell any of such Grantor153s
Inventory directly to any person, including without limitation persons who have
previously purchased such Grantor153s Inventory from such Grantor and in
connection with any such sale or other enforcement of the Administrative Agent153s
rights under this Security Agreement, may sell Inventory which bears any
trademark owned by or licensed to such Grantor and any Inventory that is covered
by any copyright owned by or licensed to such Grantor and the Administrative
Agent may (but shall have no obligation to) finish any work in process and affix
any trademark owned by or licensed to such Grantor and sell such Inventory as
provided herein.
15
ARTICLE VI
WAIVERS, AMENDMENTS AND REMEDIES
No delay or omission of the Administrative Agent or any Secured Party to
exercise any right or remedy granted under this Security Agreement shall impair
such right or remedy or be construed to be a waiver of any Default or an
acquiescence therein, and any single or partial exercise of any such right or
remedy shall not preclude any other or further exercise thereof or the exercise
of any other right or remedy. No waiver, amendment or other variation of the
terms, conditions or provisions of this Security Agreement whatsoever shall be
valid unless in writing signed by the Administrative Agent and each Grantor, and
then only to the extent in such writing specifically set forth, provided that
the addition of any Domestic Subsidiary as a Grantor hereunder by execution of a
Security Agreement Supplement in the form of Annex I (with such
modifications as shall be acceptable to the Administrative Agent) shall not
require receipt of any consent from or execution of any documentation by any
other Grantor party hereto. All rights and remedies contained in this Security
Agreement or by law afforded shall be cumulative and all shall be available to
the Administrative Agent and the Secured Parties until the Secured Obligations
have been paid in full or, in the case of Letters of Credit, cash collateralized
on terms reasonably satisfactory to the Administrative Agent.
ARTICLE VII
PROCEEDS; COLLECTION OF RECEIVABLES
7.1. Lockboxes. Upon request of the Administrative Agent after the
occurrence and during the continuance of a Payment Event of Default or
Acceleration Event, each Grantor shall execute and deliver to the Administrative
Agent irrevocable lockbox agreements in the form provided by or otherwise
acceptable to the Administrative Agent, which agreements shall be accompanied by
an acknowledgment by the bank where the lockbox is located of the Lien of the
Administrative Agent granted hereunder and of irrevocable instructions to wire
all amounts collected therein to a special collateral account at the
Administrative Agent.
7.2. Collection of Receivables. The Administrative Agent may at any
time after the occurrence of a Payment Event of Default or Acceleration Event,
by giving each Grantor written notice, elect to require that the Receivables be
paid directly to the Administrative Agent for the benefit of the Secured
Parties. In such event, each Grantor shall, and shall permit the Administrative
Agent to, promptly notify the account debtors or obligors under the Receivables
owned by such Grantor of the Administrative Agent153s interest therein and direct
such account debtors or obligors to make payment of all amounts then or
thereafter due under such Receivables directly to the Administrative Agent. Upon
receipt of any such notice from the Administrative Agent, each Grantor shall
thereafter hold in trust for the Administrative Agent, on behalf of the Secured
Parties, all amounts and proceeds received by it with respect to the Receivables
and Other Collateral and immediately and at all times thereafter deliver to the
Administrative Agent all such amounts and proceeds in the same form as so
received, whether by cash, check, draft or otherwise, with any necessary
endorsements. The Administrative Agent shall hold and apply funds so received as
provided by the terms of Sections 7.3 and 7.4 hereof.
16
7.3. Special Collateral Account. Following the occurrence and during
the continuance of a Payment Event of Default or Acceleration Event, the
Administrative Agent may require all cash proceeds of the Collateral to be
deposited in a special non-interest bearing cash collateral account with the
Administrative Agent and held there as security for the Secured Obligations. No
Grantor shall have any control whatsoever over such cash collateral account. If
no Default has occurred or is continuing, the Administrative Agent shall from
time to time deposit the collected balances in such cash collateral account into
the applicable Grantor153s general operating account with the Administrative
Agent. If any Payment Event of Default or Acceleration Event has occurred and is
continuing, the Administrative Agent may (and shall, at the direction of the
Required Lenders), from time to time, apply the collected balances in such cash
collateral account to the payment of the Secured Obligations whether or not the
Secured Obligations shall then be due.
7.4. Application of Proceeds. The proceeds of the Collateral received
by the Administrative Agent pursuant to the provisions of this Security
Agreement shall be applied by the Administrative Agent to payment of the Secured
Obligations as provided under Section 2.18 of the Credit Agreement.
ARTICLE VIII
GENERAL PROVISIONS
8.1. Notice of Disposition of Collateral; Condition of Collateral.
Each Grantor hereby waives notice of the time and place of any public sale or
the time after which any private sale or other disposition of all or any part of
the Collateral may be made. To the extent such notice may not be waived under
applicable law, any notice made shall be deemed reasonable if sent to the
Borrower, addressed as set forth in Article IX, at least ten (10) days
prior to (i) the date of any such public sale or (ii) the time after which any
such private sale or other disposition may be made. The Administrative Agent
shall have no obligation to clean-up or otherwise prepare the Collateral for
sale. To the maximum extent permitted by applicable law, each Grantor waives all
claims, damages, and demands against the Administrative Agent or any other
Secured Party arising out of the repossession, retention or sale of the
Collateral, except such as arise solely out of the gross negligence or willful
misconduct of the Administrative Agent or such other Secured Party as finally
determined by a court of competent jurisdiction. To the extent it may lawfully
do so, each Grantor absolutely and irrevocably waives and relinquishes the
benefit and advantage of, and covenants not to assert against the Administrative
Agent or any other Secured Party, any valuation, stay, appraisal, extension,
moratorium, redemption or similar laws and any and all rights or defenses it may
have as a surety now or hereafter existing (other than the defense that the
Secured Obligations shall have been fully and finally paid in cash and performed
in full) which, but for this provision, might be applicable to the sale of any
Collateral made under the judgment, order or decree of any court, or privately
under the power of sale conferred by this Security Agreement, or otherwise.
Except as otherwise specifically provided herein or in any other Loan Document,
each Grantor hereby waives presentment, demand, protest or any notice (to the
maximum extent permitted by applicable law) of any kind in connection with this
Security Agreement or any Collateral.
8.2. Limitation on Administrative Agent153s and other Secured Parties153 Duty
with Respect to the Collateral. The Administrative Agent shall have no
obligation to clean-up or otherwise prepare the Collateral for sale. The
Administrative Agent and each other Secured Party shall use reasonable care with
respect to the Collateral in its possession or under its control. Neither the
Administrative Agent nor any other Secured Party shall have any other duty as to
any Collateral in its possession or control or in the possession or control of
any agent or nominee of the Administrative Agent or such other Secured Party, or
any income thereon or as to the preservation of rights against prior parties or
any other rights pertaining thereto. To the extent that applicable law imposes
duties on the Administrative Agent to exercise remedies in a commercially
reasonable manner, each Grantor acknowledges and agrees that it is commercially
reasonable for the Administrative Agent (i) to fail to incur expenses deemed
significant by the Administrative Agent to prepare Collateral for disposition or
otherwise to transform raw material or
17
work in process into finished goods or other finished products for
disposition, (ii) to fail to obtain third party consents for access to
Collateral to be disposed of, or to obtain or, if not required by other law, to
fail to obtain governmental or third party consents for the collection or
disposition of Collateral to be collected or disposed of, (iii) to fail to
exercise collection remedies against account debtors or other Persons obligated
on Collateral or to remove Liens on or any adverse claims against Collateral,
(iv) to exercise collection remedies against account debtors and other Persons
obligated on Collateral directly or through the use of collection agencies and
other collection specialists, (v) to advertise dispositions of Collateral
through publications or media of general circulation, whether or not the
Collateral is of a specialized nature, (vi) to contact other Persons, whether or
not in the same business as such Grantor, for expressions of interest in
acquiring all or any portion of such Collateral, (vii) to hire one or more
professional auctioneers to assist in the disposition of Collateral, whether or
not the Collateral is of a specialized nature, (viii) to dispose of Collateral
by utilizing internet sites that provide for the auction of assets of the types
included in the Collateral or that have the reasonable capacity of doing so, or
that match buyers and sellers of assets, (ix) to dispose of assets in wholesale
rather than retail markets, (x) to disclaim disposition warranties, such as
title, possession or quiet enjoyment, (xi) to purchase insurance or credit
enhancements to insure the Administrative Agent against risks of loss,
collection or disposition of Collateral or to provide to the Administrative
Agent a guaranteed return from the collection or disposition of Collateral, or
(xii) to the extent deemed appropriate by the Administrative Agent, to obtain
the services of other brokers, investment bankers, consultants and other
professionals to assist the Administrative Agent in the collection or
disposition of any of the Collateral. Each Grantor acknowledges that the purpose
of this Section 8.2 is to provide non-exhaustive indications of what
actions or omissions by the Administrative Agent would be commercially
reasonable in the Administrative Agent153s exercise of remedies against the
Collateral and that other actions or omissions by the Administrative Agent shall
not be deemed commercially unreasonable solely on account of not being indicated
in this Section 8.2. Without limitation upon the foregoing, nothing
contained in this Section 8.2 shall be construed to grant any rights to
any Grantor or to impose any duties on the Administrative Agent that would not
have been granted or imposed by this Security Agreement or by applicable law in
the absence of this Section 8.2.
8.3. Compromises and Collection of Collateral. Each Grantor and the
Administrative Agent recognize that setoffs, counterclaims, defenses and other
claims may be asserted by obligors with respect to certain of the Receivables,
that certain of the Receivables may be or become uncollectible in whole or in
part and that the expense and probability of success in litigating a disputed
Receivable may exceed the amount that reasonably may be expected to be recovered
with respect to a Receivable. In view of the foregoing, each Grantor agrees that
the Administrative Agent may at any time and from time to time, if a Payment
Event of Default or Acceleration Event has occurred and is continuing,
compromise with the obligor on any Receivable, accept in full payment of any
Receivable such amount as the Administrative Agent in its reasonable discretion
shall determine or abandon any Receivable, and any such action by the
Administrative Agent shall be commercially reasonable so long as the
Administrative Agent acts in good faith based on information known to it at the
time it takes any such action.
8.4. Secured Party Performance of Grantor153s Obligations. Without
having any obligation to do so, the Administrative Agent may perform or pay any
obligation which any Grantor has agreed to perform or pay in this Security
Agreement and such Grantor shall reimburse the Administrative Agent for any
reasonable amounts paid by the Administrative Agent pursuant to this Section
8.4. Each Grantor153s obligation to reimburse the Administrative Agent
pursuant to the preceding sentence shall be a Secured Obligation payable within
fifteen (15) days after demand.
8.5. Authorization for Secured Party to Take Certain Action. Each
Grantor irrevocably authorizes the Administrative Agent at any time and from
time to time in the reasonable discretion of the Administrative Agent and
appoints the Administrative Agent as its attorney in fact (i) to execute on
behalf of such Grantor as debtor and to file financing statements necessary or
desirable in the Administrative
18
Agent153s sole discretion to perfect and to maintain the perfection and
priority of the Administrative Agent153s security interest in the Collateral, (ii)
upon and during the continuance of a Default, to indorse and collect any cash
proceeds of the Collateral, (iii) to file a carbon, photographic or other
reproduction of this Security Agreement or any financing statement with respect
to the Collateral as a financing statement and to file any other financing
statement or amendment of a financing statement (which does not add new
collateral or add a debtor) in such offices as the Administrative Agent in its
sole discretion deems necessary or desirable to perfect and to maintain the
perfection and priority of the Administrative Agent153s security interest in the
Collateral, (iv) upon and during the continuance of a Default, to contact and
enter into one or more agreements with the issuers of uncertificated securities
which are Collateral owned by such Grantor and which are Securities or with
financial intermediaries holding other Investment Property as may be necessary
or advisable to give the Administrative Agent Control over such Securities or
other Investment Property, (v) upon and during the continuance of a Payment
Event of Default or Acceleration Event and subject to the terms of Section
4.1.5 hereof, to enforce payment of the Instruments, Accounts and
Receivables in the name of the Administrative Agent or such Grantor, (vi) to
apply the proceeds of any Collateral received by the Administrative Agent to the
Secured Obligations as provided in Article VII and (vii) to discharge
past due taxes, assessments, charges, fees or Liens on the Collateral (except
for such Liens as are specifically permitted hereunder or under any other Loan
Document), and each Grantor agrees to reimburse the Administrative Agent within
fifteen (15) days after demand for any reasonable payment made or any reasonable
expense incurred by the Administrative Agent in connection therewith, provided
that this authorization shall not relieve any Grantor of any of its obligations
under this Security Agreement or under the Credit Agreement.
8.6. Specific Performance of Certain Covenants. Each Grantor
acknowledges and agrees that a breach of any of the covenants contained in
Sections 4.1.5, 4.1.6, 4.4, 5.3, or 8.8 or in
Article VII hereof will cause irreparable injury to the Administrative
Agent and the Secured Parties, that the Administrative Agent and Secured Parties
have no adequate remedy at law in respect of such breaches and therefore agrees,
without limiting the right of the Administrative Agent or the Secured Parties to
seek and obtain specific performance of other obligations of the Grantors
contained in this Security Agreement, that the covenants of the Grantors
contained in the Sections referred to in this Section 8.6 shall be
specifically enforceable against the Grantors.
8.7. Use and Possession of Certain Premises. Upon the occurrence and
during the continuance of a Payment Event of Default or Acceleration Event, the
Administrative Agent shall be entitled to occupy and use any premises owned or
leased by the Grantors where any of the Collateral or any records relating to
the Collateral are located until the Secured Obligations are paid or the
Collateral is removed therefrom, whichever first occurs, without any obligation
to pay any Grantor for such use and occupancy.
8.8. Reserved.
8.9. Reinstatement. This Security Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or
against any Grantor for liquidation or reorganization, should any Grantor become
insolvent or make an assignment for the benefit of any creditor or creditors or
should a receiver or trustee be appointed for all or any significant part of any
Grantor153s assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Secured Obligations,
or any part thereof, is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee of the Secured
Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Secured Obligations shall be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
19
8.10. Benefit of Agreement. The terms and provisions of this Security
Agreement shall be binding upon and inure to the benefit of the Grantors, the
Administrative Agent and the Secured Parties and their respective successors and
assigns (including all persons who become bound as a debtor to this Security
Agreement), except that the Grantors shall not have the right to assign their
rights or delegate their obligations under this Security Agreement or any
interest herein, without the prior written consent of the Administrative Agent.
No sales of participations, assignments, transfers, or other dispositions of any
agreement governing the Secured Obligations or any portion thereof or interest
therein shall in any manner impair the Lien granted to the Administrative Agent,
for the benefit of the Administrative Agent and the other Secured Parties,
hereunder.
8.11. Survival of Representations. All representations and warranties
of the Grantors contained in this Security Agreement shall survive the execution
and delivery of this Security Agreement.
8.12. Taxes and Expenses. Any taxes (other than Excluded Taxes)
payable or ruled payable by a Federal or State authority in respect of this
Security Agreement shall be paid by the Grantors, together with interest and
penalties, if any. The Grantors shall reimburse the Administrative Agent for any
and all reasonable out-of-pocket expenses (including reasonable attorneys153 fees,
but excluding, time charges of attorneys, paralegals, auditors and accountants
who may be employees of the Administrative Agent) paid or incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, collection and enforcement of this Security Agreement and in the
audit, analysis, administration, collection, preservation or sale of the
Collateral (including the expenses and charges associated with any periodic or
special audit of the Collateral). Any and all costs and expenses incurred by the
Grantors in the performance of actions required pursuant to the terms hereof
shall be borne solely by the Grantors.
8.13. Headings. The title of and section headings in this Security
Agreement are for convenience of reference only, and shall not govern the
interpretation of any of the terms and provisions of this Security Agreement.
8.14. Termination; Release. This Security Agreement shall continue in
effect (notwithstanding the fact that from time to time there may be no Secured
Obligations outstanding) until (i) any and all commitments to extend credit
under the Loan Documents have terminated, and the Credit Agreement has
terminated pursuant to its express terms and (ii) all of the Secured Obligations
(other than Unliquidated Obligations) have been indefeasibly paid in cash and
performed in full (or with respect to any outstanding Letters of Credit, a cash
deposit or backup Letter of Credit has been delivered to the Administrative
Agent as required by the Credit Agreement). Upon any sale or other disposition
by any Grantor of any Collateral in a transaction permitted under the Credit
Agreement, or upon the effectiveness in accordance with the Credit Agreement of
any written consent to the release of the security interest in any Collateral,
the security interests in such Collateral shall be automatically released
without further action by any party. In connection with any termination or
release pursuant to this Section, the Administrative Agent shall execute and
deliver to any Grantor, at such Grantor153s expense and without recourse to or
warranty by the Administrative Agent, all documents that such Grantor shall
reasonably request to evidence such termination or release, including UCC
termination statements and terminations of Deposit Account Control Agreements
and Securities Account Control Agreements.
8.15. Entire Agreement. This Security Agreement embodies the entire
agreement and understanding between the Grantors and the Administrative Agent
relating to the Collateral and supersedes all prior agreements and
understandings among the Grantors and the Administrative Agent relating to the
Collateral.
20
8.16. Governing Law; Jurisdiction; Waiver of Jury Trial.
8.16.1 THIS SECURITY AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
8.16.2 Each Grantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Security Agreement or any other Loan Document, or for recognition or enforcement
of any judgment, and each Grantor hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each Grantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Security Agreement or any other Loan Document shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Security Agreement or any other Loan
Document against any Grantor or its properties in the courts of any
jurisdiction.
8.16.3 Each Grantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Security Agreement or any other Loan Document
in any court referred to in Section 8.16.2. Each Grantor hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
8.16.4 Each party to this Security Agreement irrevocably consents to service
of process in the manner provided for notices in Article IX of this Security
Agreement, and each of the Grantors hereby appoints the Borrower as its agent
for service of process. Nothing in this Security Agreement or any other Loan
Document will affect the right of any party to this Security Agreement to serve
process in any other manner permitted by law.
8.16.5 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH GRANTOR (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER GRANTOR HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER GRANTOR WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER GRANTORS HAVE BEEN INDUCED TO ENTER INTO THIS SECURITY AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
8.17. Indemnity. Each Grantor hereby agrees, jointly with the other
Grantors and severally, to indemnify the Administrative Agent and the Secured
Parties, and their respective Related Parties (each such Person being called an
“Indemnitee“), from and against any and all liabilities, damages,
penalties, suits, and reasonable and documented costs and expenses of any kind
and nature (including, without limitation, all expenses of litigation or
preparation therefor whether or not the Administrative Agent or
21
any Secured Party is a party thereto) imposed on, incurred by or asserted
against the Administrative Agent or the Secured Parties, or their respective
successors, assigns, agents and employees, in any way relating to or arising out
of this Security Agreement, or the manufacture, purchase, acceptance, rejection,
ownership, delivery, lease, possession, use, operation, condition, sale, return
or other disposition of any Collateral (including, without limitation, latent
and other defects, whether or not discoverable by the Administrative Agent or
the Secured Parties or any Grantor, and any claim for patent, trademark or
copyright infringement); provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such liabilities, damages,
penalties, suits, or related costs and expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
(x) the gross negligence, willful misconduct or fraud of such Indemnitee or its
Related Parties or (y) a material breach in bad faith by such Indemnitee or its
Related Parties of their express obligations under the Loan Documents pursuant
to a claim initiated by the Borrower.
8.18. Subordination of Intercompany Indebtedness. Each Grantor agrees
that any and all claims of such Grantor against any other Grantor (each an
“Obligor“) with respect to any “Intercompany Indebtedness” (as
hereinafter defined), any endorser, obligor or any other guarantor of all or any
part of the Secured Obligations, or against any of its properties shall be
subordinate and subject in right of payment to the prior payment, in full and in
cash, of all Secured Obligations, provided that, and not in contravention of the
foregoing, so long as no Payment Event of Default or Acceleration Event has
occurred and is continuing, such Grantor may make loans to and receive payments
in the ordinary course of business with respect to such Intercompany
Indebtedness from each such Obligor to the extent not prohibited by the terms of
this Security Agreement and the other Loan Documents. Notwithstanding any right
of any Grantor to ask, demand, sue for, take or receive any payment from any
Obligor, all rights, liens and security interests of such Grantor, whether now
or hereafter arising and howsoever existing, in any assets of any other Obligor
shall be and are subordinated to the rights of the Secured Parties and the
Administrative Agent in those assets. No Grantor shall have any right to
foreclose upon any such asset, whether by judicial action or otherwise, unless
and until this Security Agreement has terminated in accordance with Section
8.14. If all or any part of the assets of any Obligor, or the proceeds
thereof, are subject to any distribution, division or application to the
creditors of such Obligor, whether partial or complete, voluntary or
involuntary, and whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or
proceeding, or, to the extent not permitted by any of the Loan Documents, if the
business of any such Obligor is dissolved or if substantially all of the assets
of any such Obligor are sold, then, and in any such event (such events being
herein referred to as an “Insolvency Event“), any payment or distribution
of any kind or character, either in cash, securities or other property, which
shall be payable or deliverable upon or with respect to any indebtedness of any
Obligor to any Grantor (“Intercompany Indebtedness“) shall be paid or
delivered directly to the Administrative Agent for application on any of the
Secured Obligations, due or to become due, until such Secured Obligations (other
than contingent indemnity obligations) shall have first been fully paid and
satisfied or, in the case of Letters of Credit, cash collateralized pursuant to
terms reasonably acceptable to the Administrative Agent. Should any payment,
distribution, security or instrument or proceeds thereof be received by the
applicable Grantor upon or with respect to the Intercompany Indebtedness after
any Insolvency Event and prior to the termination of this Security Agreement in
accordance with Section 8.14, such Grantor shall receive and hold the
same in trust, as trustee, for the benefit of the Secured Parties and shall
forthwith deliver the same to the Administrative Agent, for the benefit of the
Secured Parties, for application to any of the Secured Obligations, due or not
due, and, until so delivered, the same shall be held in trust by the Grantor as
the property of the Secured Parties. If any such Grantor fails to make any such
endorsement or assignment to the Administrative Agent, the Administrative Agent
or any of its officers or employees is irrevocably authorized to make the same.
Each Grantor agrees that until the termination of this Security Agreement in
accordance with Section 8.14, no Grantor will assign or transfer to any
Person (other than the Administrative Agent or the Borrower or another Grantor)
any claim any such Grantor has or may have against any Obligor.
22
8.19. Severability. Any provision in this Security Agreement that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of this Security Agreement are declared to be severable.
8.20. Counterparts. This Security Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Delivery of an executed counterpart of a
signature page of this Security Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Security Agreement.
ARTICLE IX
NOTICES
9.1. Sending Notices. Any notice required or permitted to be given
under this Security Agreement shall be sent (and deemed received) in the manner
and to the addresses set forth in Section 9.01 of the Credit Agreement. Any
notice delivered to the Borrower shall be deemed to have been delivered to all
of the Grantors.
9.2. Change in Address for Notices. Each of the Grantors, the
Administrative Agent and the Lenders may change the address for service of
notice upon it by a notice in writing to the other parties.
ARTICLE X
THE ADMINISTRATIVE AGENT
JPMorgan Chase Bank, N.A. has been appointed Administrative Agent for the
Secured Parties hereunder pursuant to Article VIII of the Credit Agreement. It
is expressly understood and agreed by the parties to this Security Agreement
that any authority conferred upon the Administrative Agent hereunder is subject
to the terms of the delegation of authority made by the Secured Parties to the
Administrative Agent pursuant to the Credit Agreement, and that the
Administrative Agent has agreed to act (and any successor Administrative Agent
shall act) as such hereunder only on the express conditions contained in such
Article VIII. Any successor Administrative Agent appointed pursuant to
Article VIII of the Credit Agreement shall be entitled to all the rights,
interests and benefits of the Administrative Agent hereunder.
[Signature Pages Follow]
23
IN WITNESS WHEREOF, each of the Grantors and the Administrative Agent have
executed this Security Agreement as of the date first above written.
|
JDS UNIPHASE CORPORATION, as a Grantor By: /s/ David Vellequette Name: David Vellequette Title: Chief Financial Officer |
||
|
JDSU ACTERNA HOLDINGS LLC, as a Grantor By: /s/ David Vellequette Name: David Vellequette Title: Chief Financial Officer |
ACTERNA LLC, as a Grantor By: /s/ David Vellequette Name: David Vellequette Title: Chief Financial Officer |
|
|
ACTERNA WG INTERNATIONAL HOLDINGS LLC, as a Grantor By: /s/ David Vellequette Name: David Vellequette Title: Chief Financial Officer |
OPTICAL COATING LABORATORY LLC, as a Grantor By: /s/ David Vellequette Name: David Vellequette Title: Chief Financial Officer |
|
|
JDSU OPTICAL CORPORATION, as a Grantor By: /s/ David Vellequette Name: David Vellequette Title: Treasurer |
TTC INTERNATIONAL HOLDINGS, INC., as a Grantor By: /s/ David Vellequette Name: David Vellequette Title: Treasurer |
|
Signature Page to Pledge and Security Agreement
Acknowledged and Agreed to:
JPMORGAN CHASE BANK, N.A., as Administrative Agent
By: /s/ Gerardo B. Loera
Name: Gerardo B. Loera
Title: Authorized Officer
Signature Page to Pledge and Security Agreement
EXHIBIT “A”
Part A: Each Grantor153s Principal Place of Business/Chief
Executive Office:
|
1. JDS Uniphase Corporation |
|
430 North McCarthy Boulevard |
|
Milpitas, California 95035 |
|
2. Acterna LLC |
|
One Milestone Center Court |
|
Germantown, MD 20876 |
|
3. JDSU Optical Corporation |
|
430 North McCarthy Boulevard |
|
Milpitas, California 95035 |
|
4. JDSU Acterna Holdings LLC |
|
One Milestone Center Court |
|
Germantown, MD 20876 |
|
5. Acterna WG International Holdings, LLC |
|
One Milestone Center Court |
|
Germantown, Maryland 20876 |
|
6. TTC International Holdings, Inc. |
|
One Milestone Center Court |
|
Germantown, Maryland 20876 |
|
7. Optical Coating Laboratory, LLC |
|
2789 Northpoint Parkway |
|
Santa Rosa, California 95407 |
Part B: Each Grantor153s previous names, jurisdiction of
formation,
mergers, and consolidations (prior 5 years):
|
1. |
JDS Uniphase Corporation: |
Change in Jurisdiction: None.
Prior Names/Trade Names: JDSU
Mergers/Consolidations: Picolight Incorporated (2007), Agility
Communications, Inc. (2008),
American Bank Note Holographics, Inc. (2011)
Acquired Business Lines: QuantaSol (2011), Agilent Network Solutions Test
Business (2010),
Finisar Network Tools Business (2009), Westover Scientific Fiber Division
(2008)
|
2. |
JDSU Acterna Holdings LLC: |
Change in Jurisdiction: None.
Prior Names/Trade Names: Acterna, Inc.; Acterna
Mergers/Consolidations: None.
|
3. |
Acterna LLC: |
Change in Jurisdiction: None.
Prior Names/Trade Names: None.
Mergers/Consolidations: Casabyte, Inc. (2007)
|
4. |
Acterna WG International Holdings, LLC: |
Change in Jurisdiction: None.
Prior Names/Trade Names: None.
Mergers/Consolidations: None.
|
5. |
Optical Coating Laboratory, LLC: |
Change in Jurisdiction: None.
Prior Names/Trade Names: Optical Coating Laboratory, Inc.; OCLI; Flex
Products; Flex
Mergers/Consolidations: None.
|
6. |
JDSU Optical Corporation: |
Change in Jurisdiction: None.
Prior Names/Trade Names: Epion Corporation
Mergers/Consolidations: None.
|
7. |
TTC International Holdings, Inc: |
Change in Jurisdiction: None.
Prior Names/Trade Names: None.
Mergers/Consolidations: None.
In addition to the above, the Grantors own certain subsidiaries as reflected
in the organizational chart disclosed to the Administrative Agent.
EXHIBIT “B”
Material Registered Copyrights
|
Work |
Registration No. |
Registration Date |
Grantor |
|||
|
ISCSI Architecture and Instrumentation |
PA 1-232-509 |
6-1-04 |
JDS Uniphase Corporation |
|||
|
Serial-ATA (SATA) Protocol |
Pending |
4-8-09 |
JDS Uniphase Corporation |
|||
|
Fibre Channel Over Ethernet (FCOE) Protocol |
Pending |
4-8-09 |
JDS Uniphase Corporation |
|||
|
In-Depth ISCSI Networking & Troubleshooting |
Pending |
4-8-09 |
JDS Uniphase Corporation |
|||
|
Serial-Attached SCSI (SAS) Protocol |
TX0007057002 |
4-8-09 |
JDS Uniphase Corporation |
EXHIBIT “C”
List of Pledged Securities
A. STOCKS:
|
Grantor |
Issuer |
Certificate Number |
Number of |
Ownership Percentage |
||||
|
JDS Uniphase Corporation |
JDSU Acterna Holdings LLC |
1 |
n/a |
100% |
||||
|
JDSU Acterna Holdings LLC |
Acterna LLC |
1 |
n/a |
100% |
||||
|
Acterna LLC |
Acterna WG International Holdings, LLC |
1 |
n/a |
100% |
||||
|
JDS Uniphase Corporation |
Optical Coating Laboratory, LLC |
1 |
n/a |
100% |
||||
|
JDS Uniphase Corporation |
JDSU Optical Corporation |
1 |
15,000 |
100% |
||||
|
Acterna LLC |
TTC International Holdings, Inc. |
1-A |
1,000 |
100% |
B. BONDS:
None.
C. GOVERNMENT SECURITIES:
None.
D. OTHER SECURITIES OR OTHER INVESTMENT PROPERTY:
None.
EXHIBIT “D”
Offices in which Financing Statements have been Filed
|
1. |
Secretary of State of the State of Delaware. |
|
2. |
Secretary of the Commonwealth of Massachusetts. |
EXHIBIT “E”
Commercial Tort Claims
None.
EXHIBIT “F”
Federal Employer Identification Number, State Organization
Number, Jurisdiction of Incorporation
|
Grantor |
Federal Employer Number |
Type of Organization |
State of Organization or |
State Organization Number |
||||
|
JDS Uniphase Corporation |
94-2579683 |
Corporation |
Delaware |
2341359 |
||||
|
JDSU Acterna Holdings LLC |
56-2403607 |
Limited Liability Company |
Delaware |
3715162 |
||||
|
Acterna LLC |
73-1682809 |
Limited Liability Company |
Delaware |
2896950 |
||||
|
Acterna WG International Holdings, LLC |
13-3317668 |
Limited Liability Company |
Delaware |
3471684 |
||||
|
Optical Coating Laboratory, LLC |
68-0164244 |
Limited Liability Company |
Delaware |
2116933 |
||||
|
JDSU Optical Corporation |
04-2822376 |
Corporation |
Massachusetts |
42822376 |
||||
|
TTC International Holdings, Inc. |
04-3441050 |
Corporation |
Delaware |
2897791 |
EXHIBIT “G”
Controlled Deposit Accounts
|
Name of Grantor |
Name of Institution |
Account Number |
||
|
None. |
||||
Controlled Securities Accounts
|
Name of Grantor |
Name of Institution |
Account Number |
||
|
JDS Uniphase Corporation |
[***] |
[***] |
||
|
[***] |
[***] |
[***] A PORTION OF THIS EXHIBIT HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED.
EXHIBIT “H”
AMENDMENT
This Amendment, dated , 20 is delivered pursuant to Section 4.4 of the
Security Agreement referred to below. All defined terms herein shall have the
meanings ascribed thereto or incorporated by reference in the Security
Agreement. The undersigned hereby certifies that the representations and
warranties in Article III of the Security Agreement are and continue to be true
and correct in all material respects (except to the extent such representation
or warranty is qualified by materiality or Material Adverse Effect, in which
case such representation or warranty shall be true and correct in all respects)
as of the date hereof (except if such representation or warranty relates to an
earlier date in which case such representation or warranty shall be true and
correct as of such earlier date). The undersigned further agrees that this
Amendment may be attached to that certain Pledge and Security Agreement, dated
January 20, 2012, between the undersigned, as the Grantors, and JPMorgan Chase
Bank, N.A., as the Administrative Agent, (the “Security Agreement“) and
that the Collateral listed on Schedule I to this Amendment shall be and
become a part of the Collateral referred to in said Security Agreement and shall
secure all Secured Obligations referred to in said Security Agreement.
By:
Name:
Title:
SCHEDULE I TO AMENDMENT
STOCKS
|
Name of Grantor |
Issuer |
Certificate Number(s) |
Number of Shares |
Class of Stock |
Percentage of |
BONDS
|
Name of Grantor |
Issuer |
Number |
Face Amount |
Coupon Rate |
Maturity |
GOVERNMENT SECURITIES
|
Name of Grantor |
Issuer |
Number |
Type |
Face Amount |
Coupon Rate |
Maturity |
OTHER SECURITIES OR OTHER INVESTMENT PROPERTY
(CERTIFICATED AND UNCERTIFICATED)
|
Name of Grantor |
Issuer |
Description of Collateral |
Percentage Ownership Interest |
[Add description of custody accounts or
arrangements with securities intermediary, if applicable]
ANNEX I
to
PLEDGE AND SECURITY AGREEMENT
Reference is hereby made to the Pledge and Security Agreement (as amended,
restated, supplemented or otherwise modified from time to time, the
“Agreement“), dated as of January 20, 2012, made by each of JDS UNIPHASE
CORPORATION, a Delaware corporation (the “Borrower“) and the other
Subsidiaries of the Borrower listed on the signature pages thereto (together
with the Borrower, the “Initial Grantors“, and together with any
additional Subsidiaries, including the undersigned, which become parties thereto
by executing a Supplement in substantially the form hereof, the
“Grantors“), in favor of the Administrative Agent. Capitalized terms used
herein and not defined herein shall have the meanings given to them in the
Agreement.
By its execution below, the undersigned, [NAME OF NEW GRANTOR], a [ ]
[corporation/limited liability company/limited partnership] (the “New
Grantor“) agrees to become, and does hereby become, a Grantor under the
Agreement and agrees to be bound by the Agreement as if originally a party
thereto. The New Grantor hereby collaterally assigns and pledges to the
Administrative Agent for the benefit of the Secured Parties, and grants to the
Administrative Agent for the benefit of the Secured Parties, a security interest
in all of the New Grantor153s right, title and interest in and to the Collateral,
whether now owned or hereafter acquired, to secure the prompt and complete
payment and performance of the Secured Obligations; provided that, the
security interest created hereunder shall not extend to, and the term
“Collateral” shall not include, any Excluded Assets, provided further
that, the amount of the Equity Interests in any First-Tier Foreign Subsidiary
pledged or required to be pledged to the Administrative Agent by the New Grantor
hereunder or under any other Collateral Document shall be automatically limited
to the Voting Stock of a First-Tier Foreign Subsidiary that is also a Pledge
Subsidiary representing not more than 65% of the total Voting Power of all
outstanding Voting Stock of such First-Tier Foreign Subsidiary (and the term
“Collateral” shall not include any other Equity Interests of such First-Tier
Foreign Subsidiary) provided further that, the Equity Interests of a
Domestic Subsidiary or any other Person will not be pledged or required to be
pledged to the Administrative Agent by the New Grantor hereunder or under any
other Collateral Document unless such Domestic Subsidiary or other Person is a
Material Domestic Subsidiary (and the term “Collateral” shall not include the
Equity Interests of any Person that is not a Material Domestic Subsidiary). For
the avoidance of doubt, the grant of a security interest herein shall not be
deemed to be an assignment of intellectual property rights owned by the New
Grantor. In addition, for the avoidance of doubt, it is understood and agreed
that the New Grantor will not be required to (i) obtain bailee or landlord
waivers in respect of any location where Inventory is stored or (ii) record with
the United States Patent and Trademark Office (or any analogous domestic or
foreign agency or office) any security interest in any Patent or Trademark.
By its execution below, the undersigned represents and warrants as to itself
that all of the representations and warranties contained in the Agreement are
true and correct in all material respects as of the date hereof, except for
representations and warranties that relate to a specific date in which case such
representations and warranties are true and correct as of such specific date.
The New Grantor represents and warrants that the supplements to the Exhibits to
the Agreement attached hereto are true and correct in all respects and that such
supplements set forth all information required to be scheduled under the
Agreement with respect to the New Grantor. The New Grantor shall take all steps
necessary and required under the Agreement to perfect, in favor of the
Administrative Agent, a first-priority security interest in and lien against the
New Grantor153s Collateral.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Grantor has executed and delivered this Security
Agreement Supplement as of this day of , 20 .
[NAME OF NEW GRANTOR]
By:
Title:
Stay Up-to-Date With How the Law Affects Your Life
