EXHIBIT 10.6
INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT dated as of
April 22, 1998, as amended and restated as of November 10,
1998, made by UCAR INTERNATIONAL INC., a Delaware corporation
("UCAR"), UCAR GLOBAL ENTERPRISES INC., a Delaware corporation
(the "BORROWER"), and the U.S. Subsidiaries (the "Subsidiary
Grantors", and together with UCAR and the Borrower, the
"GRANTORS") in favor of THE CHASE MANHATTAN BANK, a New York
banking corporation, as collateral agent for the Secured
Parties. Reference is made to (i) the Credit Agreement dated
as of October 19, 1995, as amended and restated as of March
19, 1997 and November 10, 1998 (as the same may be amended,
supplemented or otherwise modified from time to time, the
"EXISTING CREDIT AGREEMENT"), among UCAR, the Borrower, the
Subsidiary Borrowers party thereto, the Lenders party thereto,
the Fronting Banks party thereto and The Chase Manhattan Bank,
as administrative agent and collateral agent and (ii) the
Credit Agreement dated as of November 10, 1998, among UCAR,
the Borrower, UCAR S.A., the Lenders party thereto, The Chase
Manhattan Bank, as administrative agent and collateral agent,
Credit Suisse First Boston, as syndication agent, and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as syndication agent (as
the same may be amended, supplemented or otherwise modified
from time to time, the "TRANCHE C FACILITY CREDIT AGREEMENT",
and together with the Existing Credit Agreement, the "CREDIT
AGREEMENTS").
The Lenders and the Fronting Banks, respectively, have agreed
to make Loans to the Credit Parties and to issue Letters of Credit for the
account of the Credit Parties, pursuant to, and upon the terms and subject to
the conditions specified in, the Credit Agreements.
The obligations of the Lenders to make Loans and of the
Fronting Banks to issue Letters of Credit under the Credit Agreements are
conditioned upon, among other things, the execution and delivery by the Grantors
of an intellectual property security agreement in the form hereof to secure the
due and punctual payment of, with respect to each Grantor, its obligations as
obligor or guarantor in respect of (i) the unpaid principal of and premium, if
any, and interest (including interest accruing at the then applicable rate
provided in the Existing Credit Agreement after the maturity of the Loans
thereunder and interest accruing at the then applicable rate provided in the
Existing Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
any Credit Party thereunder whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) on the Loans made under
the Existing Credit Agreement,
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when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise, (ii) the unpaid principal of and premium, if
any, and interest (including interest accruing at the then applicable rate
provided in the Tranche C Facility Credit Agreement after the maturity of the
Loans thereunder and interest accruing at the applicable rate provided in the
Tranche C Facility Credit Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Credit Party thereunder whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) on the
Loans made under the Tranche C Facility Credit Agreement, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (iii) each payment required to be made by any Credit Party under
the Existing Credit Agreement, when and as due, including payments in respect of
reimbursements of L/C Disbursements, interest thereon and obligations to provide
cash collateral, (iv) each payment required to be made by any Credit Party under
the Tranche C Facility Credit Agreement, when and as due, and (v) all other
obligations and liabilities of every nature of the Credit Parties under the
Credit Agreements from time to time owed to the Secured Parties or any of them,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding),
which may arise under, out of, or in connection with, the Existing Credit
Agreement, the Tranche C Facility Credit Agreement, any Guarantee Agreement, any
Security Document or any other Loan Document and any obligation of the Borrower
or any Credit Party under either of the Credit Agreements to a Lender under
either Credit Agreement pursuant to an Interest/Exchange Rate Protection
Agreement or under any other document made, delivered or given in connection
with any of the foregoing, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including all fees and disbursements of counsel to the Collateral
Agent or to the Secured Parties that are required to be paid by the Borrower or
any Credit Party pursuant to the terms of the Existing Credit Agreement, the
Tranche C Facility Credit Agreement, any Guarantee Agreement, any Security
Document, any other Loan Document or any Interest/Exchange Rate Protection
Agreement with a Lender (all the foregoing obligations collectively, the
"OBLIGATIONS").
Accordingly, the Grantors and the Collateral Agent, on behalf
of itself and each other Secured Party (and each of their successors and
assigns), hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITION OF TERMS USED HEREIN. All capitalized
terms used but not defined herein shall have the meanings assigned to such terms
in the Credit Agreements.
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SECTION 1.02. DEFINITION OF CERTAIN TERMS USED HEREIN.
As used herein, the following terms shall have the following
meanings:
"AGREEMENT" shall mean this Intellectual Property
Security Agreement.
"COLLATERAL" shall mean, with respect to each Grantor, all of
the following, whether now owned or hereafter acquired by such Grantor: (a)
Patents, including all granted Patents, recordings and pending applications,
including those listed on Schedule I attached hereto, (b) Trademarks, including
all registered Trademarks, registrations, recordings, and pending applications,
including those listed on Schedule II attached hereto, (c) Copyrights, including
all registered Copyrights, registrations, recordings, supplemental registrations
and pending applications, including those listed on Schedule III attached
hereto, (d) Licenses, including those listed on Schedule IV hereto, (e) General
Intangibles, and (f) all products and Proceeds (including insurance proceeds)
of, and additions, improvements and accessions to, and books and records
describing or used in connection with, any and all of the property described
above.
"COPYRIGHTS" shall mean, with respect to each Grantor, all of
the following now or hereafter owned by such Grantor: (i) all copyright rights
in any work subject to the copyright laws of the United States or any other
country, whether as author, assignee, transferee or otherwise, and (ii) all
registrations and applications for registration of any such copyright in the
United States or any other country, including registrations, recordings,
supplemental registrations and pending applications for registration in the
United States Copyright Office.
"COPYRIGHT LICENSE" shall mean, with respect to each Grantor,
any written agreement, now or hereafter in effect, granting any right to any
third party under any Copyright now or hereafter owned by such Grantor or which
such Grantor otherwise has the right to license, or granting any right to such
Grantor under any Copyright now or hereafter owned by any third party, and all
rights of such Grantor under any such agreement.
"GENERAL INTANGIBLES" shall mean, with respect to each
Grantor, all intangible, intellectual or other similar property of such Grantor
of any kind or nature now owned or hereafter acquired by such Grantor, including
inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade secrets,
confidential or proprietary technical and business information, know-how,
show-how or other data or information, software and databases and all
embodiments or fixations thereof and related documentation, registrations,
franchises, and all other intellectual or other similar property rights not
otherwise described above.
"INDEMNITEE" shall mean the Collateral Agent, the Secured
Parties and their respective officers, directors, trustees, affiliates and
controlling persons.
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"LICENSE" shall mean, with respect to each Grantor, any Patent
License, Trademark License, Copyright License or other license or sublicense as
to which such Grantor is a party (other than those license agreements which by
their terms prohibit assignment or a grant of a security interest by such
Grantor as
licensee thereunder).
"PATENT LICENSE" shall mean, with respect to each Grantor, any
written agreement, now or hereafter in effect, granting to any third party any
right to make, use or sell any invention on which a Patent, now or hereafter
owned by such Grantor or which such Grantor otherwise has the right to license,
is in existence, or granting to such Grantor any right to make, use or sell any
invention on which a Patent, now or hereafter owned by any third party, is in
existence, and all rights of such Grantor under any such agreement.
"PATENTS" shall mean, with respect to each Grantor, all the
following now or hereafter owned by such Grantor: (a) all letters patent of the
United States or any other country, including patents, design patents or utility
models, all registrations and recordings thereof, and all applications for
letters patent of the United States or any other country, including
registrations, recordings and pending applications in the United States Patent
and Trademark Office or any similar offices in any other country, and (b) all
reissues, continuations, divisions, continuations-in-part, renewals or
extensions thereof, and the inventions disclosed or claimed therein, including
the right to make, use and/or sell the inventions disclosed or claimed therein.
"PROCEEDS" shall mean, with respect to each Grantor, any
consideration received from the sale, exchange, license, lease or other
disposition of any asset or property that constitutes Collateral owned by such
Grantor, any value received as a consequence of the possession of any such
Collateral and any payment received from any insurer or other person or entity
as a result of the destruction, loss, theft or other involuntary conversion of
whatever nature of any asset or property that constitutes such Collateral, any
claim of such Grantor against third parties for (and the right to ▇▇▇ and
recover for and the rights to damages or profits due or accrued arising out of
or in connection with) (a) past, present or future infringement of any Patent
now or hereafter owned by such Grantor or licensed under a Patent License, (b)
past, present or future infringement or dilu tion of any Trademark now or
hereafter owned by such Grantor or licensed under a Trademark License or injury
to the goodwill associated with or symbolized by any Trademark now or hereafter
owned by such Grantor, (c) past, present or future breach of any License, (d)
past, present or future infringement of any Copyright now or hereafter owned by
such Grantor or licensed under a Copyright License, and (e) any and all other
amounts from time to time paid or payable under or in connection with any of
such Collateral.
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"TRADEMARK LICENSE" shall mean, with respect to each Grantor,
any written agreement, now or hereafter in effect, granting to any third party
any right to use any Trademark now or hereafter owned by such Grantor or that
such Grantor otherwise has the right to license, or granting to such Grantor any
right to use any Trademark now or hereafter owned by any third party, and all
rights of such Grantor under any such agreement.
"TRADEMARKS" shall mean, with respect to each Grantor, all of
the following now or hereafter owned by such Grantor: (a) all trademarks,
service marks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, trade dress, logos, other source or
business identifiers, prints and labels on which any of the foregoing have
appeared or appear, and all designs and general intangibles of like nature, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all registration and recording applications filed in connection
therewith, including registrations, recordings and applications in the United
States Patent and Trademark Office, any State of the United States or any
similar offices in any other country or any political subdivision thereof, and
all extensions or renewals thereof, and (b) all goodwill associated therewith or
symbolized thereby, and (c) all other assets, rights and interests that uniquely
reflect or embody such goodwill.
"U.S. SUBSIDIARIES" shall mean the Subsidiaries (as defined in
the Credit Agreements) incorporated or otherwise organized in the United States
of America.
SECTION 1.03. RULES OF INTERPRETATION. The rules of
interpretation specified in Section 1.02 of the Credit Agreements shall be
applicable to this Agreement.
ARTICLE II
SECURITY INTEREST
SECTION 2.01. SECURITY INTEREST. As security for the payment
or performance, as the case may be, of the Obligations, each Grantor hereby
creates, mortgages, pledges, hypothecates and transfers to the Collateral Agent,
its successors and assigns, for the benefit of the Secured Parties, and hereby
grants to the Collateral Agent, its successors and assigns, for the ratable
benefit of the Secured Parties, a continuing first priority security interest in
all such Grantors' right, title and interest in, to and under the Collateral
subject to liens permitted under Section 6.02 of the Credit Agreements (the
"SECURITY INTEREST"). Without limiting the foregoing, the Collateral Agent is
hereby authorized to file one or more financing statements, continuation
statements, filings with the United States Patent and Trademark Office or United
States Copyright Office (or similar office in any other country), or any other
documents for the purpose of perfecting, confirming, continuing, enforcing or
protecting the Security Interest granted by such Grantor, without the signature
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of such Grantor, naming such Grantor as debtor and the Collateral Agent as
secured party.
Notwithstanding any other provision of this Agreement to the
contrary, the Collateral shall not include any License which by its terms or the
terms governing it prohibits assignment thereof or the grant of a security
interest therein; PROVIDED that such term or terms are typical or customary in
connection with the document or instrument to which they relate.
Each Grantor agrees at all times to keep accurate and
complete, in all material respects, accounting records with respect to the
Collateral and, on and after the occurrence and during the continuance of a
Default, a record of all payments and Proceeds received in respect thereof.
SECTION 2.02. FURTHER ASSURANCES. Each Grantor agrees, at its
own cost and expense, to promptly execute, acknowledge, deliver and cause to be
duly filed all such further instruments and documents and take all such actions
as the Collateral Agent may from time to time reasonably request for the better
assuring, preserving and perfecting of the Security Interest and the rights and
remedies created hereby, including the payment of any fees and taxes required in
connection with the execution and delivery of this Agreement, the granting of
the Security Interest created hereby, the filing of any financing statements or
other documents (including filings with the United States Patent and Trademark
Office and the United States Copyright Office or similar offices in any other
country) in connection herewith, and the execution and delivery of any document
required to supplement this Agreement with respect to any Patents, Trademarks
and/or Copyrights applied for, acquired, registered (or for which registration
applications are filed) or issued after the date hereof. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any promissory note or other instrument, upon the request of the Collateral
Agent, such note or instrument shall (to the extent not previously pledged and
delivered pursuant to the Pledge Agreements) be immediately pledged and
delivered to the Collateral Agent, duly endorsed in a manner satisfactory to the
Collateral Agent. Each Grantor agrees promptly to notify the Collateral Agent if
any material portion of the Collateral is canceled or overturned, opposed,
misappropriated, injured, infringed, lost (other than due to expiration of any
issued Patent) or, if applicable, diluted.
SECTION 2.03. INSPECTION AND VERIFICATION. Without limiting
the scope of Section 5.07 of the Credit Agreements, the Collateral Agent and
such representatives as the Collateral Agent may reasonably designate shall have
the right to inspect, at any reasonable times or times, any of the Collateral,
all records related thereto (and to make extracts and copies from such records)
and the premises upon which any of the Collateral is located, to discuss any
Grantor's affairs with the officers of such Grantor and its independent
accountants and to verify under reasonable procedures the validity, amount,
quality, quantity, value, conditions, and status of or any other matter relating
to such Collateral, including, in the case of Collateral in the
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possession of any third party (with, except after an Event of Default shall have
occurred and during the continuance thereof, the consent of such Grantor, which
consent shall not be unreasonably withheld), by contacting such person
possessing such Collateral for the purpose of making such a verification. The
Collateral Agent shall have the absolute right to share any information it gains
from such inspection or verification with any or all of the Secured Parties.
SECTION 2.04. TAXES; ENCUMBRANCES. At its option, the
Collateral Agent may discharge past due taxes, assessments, charges, fees,
liens, security interests or other encumbrances at any time levied or placed on
any of the Collateral and not permitted under this Agreement or other Loan
Documents, and may pay for the maintenance and preservation of any of the
Collateral to the extent any Grantor fails to do so to the extent required by
this Agreement or the other Loan Documents, and such Grantor agrees to reimburse
the Collateral Agent on demand for any payment made or any expense incurred by
the Collateral Agent pursuant to the foregoing authorization; PROVIDED, HOWEVER,
that nothing in this Section 2.04 shall be interpreted as excusing any Grantor
from the performance of, or imposing any obligation on the Collateral Agent or
any other Secured Party to cure or perform, any covenants or other promises of
any Grantor with respect to taxes, assessments, charges, fees, liens, security
interests or other encumbrances and maintenance as set forth herein or in the
other Loan Documents.
SECTION 2.05. NO ASSUMPTION OF LIABILITY. The Security
Interest is granted as security only and shall not subject any Secured Party to,
or in any way alter or modify, any obligation or liability of any Grantor with
respect to or arising out of any of the Collateral.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES. Each Grantor represents and
warrants, as to itself and the Collateral in which the Security Interest is
created by it hereunder, that:
SECTION 3.01. VALIDITY OF PATENTS, TRADEMARKS AND COPYRIGHTS.
Each of the Patents, Trademarks and Copyrights is subsisting and has not been
adjudged invalid or unenforceable, in whole or in part, except as could not
reasonably be expected to have a Material Adverse Effect.
SECTION 3.02. TITLE AND AUTHORITY. Each Grantor has rights in
and good title to the Collateral shown on the schedules hereto as being owned by
it and has full corporate power and authority to grant to the Collateral Agent
(for the benefit of the Secured Parties) the Security Interest in the Collateral
pursuant hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent or approval of
any other person other than any consent or approval that has been obtained,
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except, in each case, as could not reasonably be expected to have a Material
Adverse Effect.
SECTION 3.03. FILINGS. (a) Fully executed financing statements
containing a description of the Collateral shall promptly following the Closing
Date be filed of record in every governmental, municipal or other office in
every jurisdiction located within the United States and its respective
territories and possessions or such other analogous documents in other countries
as are necessary to publish notice of and protect the validity of and to
establish a valid and perfected security interest in favor of the Collateral
Agent (for the benefit of the Secured Parties) in respect of the Collateral in
which a security interest may be perfected by filing a financing statement or
analogous document in the United States and its political subdivisions,
territories and possessions pursuant to the Uniform Commercial Code or other
applicable law in such jurisdictions or pursuant to applicable law in other
countries, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the filing
of continuation statements or other documents of similar effect, except as
contemplated by paragraph (b) below and filings with respect to after-acquired
Collateral, with respect to which all necessary actions will be promptly taken
subsequent to the acquisition of such after-acquired Collateral.
(b) Each Grantor shall ensure and warrants that fully executed
security agreements in the form hereof and containing a description of the
Collateral shall have been received and recorded within three months after the
execution of this Agreement with respect to United States Patents and United
States registered Trademarks (and Trademarks for which United States
registration applications are pending) and within one month after the execution
of this Agreement with respect to United States registered Copyrights by the
United States Patent and Trademark Office and the United States Copyright Office
pursuant to 35 U.S.C. ss. 261, 15 U.S.C. ss. 1060 or 17 U.S.C. ss. 205 and the
regulations thereunder, as applicable, and otherwise as may be required pursuant
to the laws of any other country or any political subdivision thereof, to
protect the validity and first priority of and to perfect a valid first priority
security interest (subject only to Liens permitted by Section 6.02 of the Credit
Agreements) in favor of the Collateral Agent (for the benefit of the Secured
Parties) in respect of the Collateral in which a security interest may be
perfected by filing in the United States and its political subdivisions,
territories and possessions, and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the filing
of continuation statements (other than such actions as are necessary to perfect
the Collateral Agent's first priority security interest with respect to any
Collateral (or registration or application for registration thereof) acquired or
developed after the date hereof).
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SECTION 3.04. VALIDITY OF SECURITY INTERESTS. This Agreement
is effective to create in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral, and, when financing statements in appropriate form are filed in the
offices specified on Schedule VI hereto and this Agreement is filed in the
United States Patent and Trademark Office and the United States Copyright
Office, this Agreement will constitute a duly perfected Lien on, and security
interest in, all right, title and interest of the Grantors in such Collateral
and, to the extent contemplated therein and subject to ss. 9-306 of the UCC, the
proceeds thereof, in each case prior and superior in right to any other person
(it being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications and copyrights
acquired by the Grantors after the date hereof), other than with respect to the
rights of persons pursuant to Liens expressly permitted by Section 6.02 of the
Credit Agreements.
SECTION 3.05. INFORMATION REGARDING NAMES AND LOCATIONS. Each
Grantor has disclosed in writing to the Collateral Agent on Schedule IV any
material trade names used to identify it in its business or in the ownership of
its properties during the past five years.
SECTION 3.06. ABSENCE OF OTHER LIENS. The Collateral is owned
by the Grantors free and clear of any Lien of any nature whatsoever (except for
Liens expressly permitted by Section 6.02 of the Credit Agreements or hereby and
any liens of licenses listed on Schedule V). Other than as contemplated hereby
and by the other Loan Documents, and except as permitted therein, the Grantors
have not filed (a) any financing statement or analogous document under the
Uniform Commercial Code, (b) any assignment in which any Grantor assigns the
Collateral, any security agreement or any similar instrument covering any
Collateral with the United States Patent and Trademark Office, the United States
Copyright Office or any similar office in any other country of political
subdivision thereof and (c) any assignment in which any Grantor assigns the
Collateral or any security agreement or similar instrument covering any
Collateral with any foreign governmental, municipal or other office.
ARTICLE IV
COVENANTS
SECTION 4.01. COVENANTS REGARDING PATENT, TRADEMARK AND
COPYRIGHT COLLATERAL. (a) Each Grantor (either itself or through licensees)
will, for each Patent, not do any act, or omit to do any act, whereby any Patent
that is material to the conduct of the Grantors' businesses, taken as a whole,
may become invalidated or dedicated to the public, and shall continue to ▇▇▇▇,
to the extent consistent with past practices and good business judgment, any
products covered by a material Patent with the relevant patent number as
necessary and sufficient to establish and preserve such Grantor's matrial
rights under applicable laws.
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(b) Each Grantor (either itself or through its licensees or
its sublicensees) will, for each Trademark material to the conduct of the
Grantors' businesses, taken as a whole, to the extent consistent with past
practices and good business judgment, (i) maintain such Trademark in full force
free from any material claim of abandonment or invalidity for nonuse, (ii)
maintain the quality of products and services offered under such Trademark to
the extent that the failure to do so would result in a Material Adverse Effect,
(iii) display such Trademark with notice of federal or foreign registration to
the extent necessary and sufficient to establish and preserve such Grantor's
material rights under applicable law and (iv) not knowingly use or knowingly
permit the use of such Trademark in violation of any material third-party
rights.
(c) Each Grantor (either itself or through licensees) will,
for each work covered by a material Copyright, to the extent consistent with
past practices and good business judgment, continue to publish, reproduce,
display, adopt and distribute the work with appropriate copyright notice as
necessary and sufficient to establish and preserve such Grantor's material
rights under applicable copyright laws.
(d) Each Grantor shall notify the Collateral Agent immediately
if it knows or has reason to know that any Patent, Trademark or Copyright
material to the conduct of the Grantors' businesses, taken as a whole, may
become abandoned, lost or dedicated to the public, or of any adverse
determination or development (including the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, United States Copyright Office or any court or similar office
of any country) regarding such Grantor's ownership of any such Patent, Trademark
or Copyright, its right to register the same, or to keep and maintain the same.
(e) In no event shall any Grantor, either itself or through
any agent, employee, licensee or designee, file an application for any Patent,
Trademark or Copyright (or for the registration of any Trademark or Copyright)
with the United States Patent and Trademark Office, United States Copyright
Office or any office or agency in any political subdivision of the United States
or in any other country or any political subdivision thereof, unless it promptly
informs the Collateral Agent, and, upon request of the Collateral Agent,
executes and delivers any and all agreements, instruments, documents and papers
as the Collateral Agent may reasonably request to evidence (and, in the case of
applications for Trademarks with the United States Patent and Trademark Office,
perfect) the Collateral Agent's security interest in such Patent, Trademark or
Copyright of such Grantor and the good will and general intangibles of such
Grantor relating thereto or represented thereby, and such Grantor hereby
appoints the Collateral Agent as its attorney-in-fact to execute and file such
writings for the foregoing purposes, all acts of such attorney being hereby
ratified and confirmed; such power, being coupled with an interest, is
irrevocable until the Obligations are paid in full.
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(f) Each Grantor will take all necessary steps that are
consistent with the practice in any proceeding before the United States Patent
and Trademark Office, United States Copyright Office or any office or agency in
any political subdivision of the United States or in any other country or any
political subdivision thereof, to maintain and pursue each material application
(and to obtain the relevant grant or registration) relating to the ▇▇▇ ents,
Trademarks and/or Copyrights which are material to the Grantors' businesses,
taken as a whole, to maintain each issued Patent and each registration of the
Trademarks and Copyrights that is material to the conduct of the Grantors'
businesses, taken as a whole, including timely filings of applications for
renewal, affidavits of use, affidavits of incontestability and payment of
maintenance fees, and, if consistent with good business judgment, to initiate
opposition, interference and cancelation proceedings against third parties.
(g) In the event that any Collateral consisting of a Patent,
Trademark or Copyright material to the conduct of the Grantors' businesses,
taken as a whole, is believed by the Grantor that has created the Security
Interest in such Collateral pursuant hereto to have been infringed,
misappropriated or diluted by a third party in any material respect, such
Grantor shall notify the Collateral Agent promptly after it learns thereof and
shall, if consistent with good business judgment, promptly ▇▇▇ for infringement,
misappropriation, or dilution and to recover any and all damages for such
infringement, misappropriation or dilution, and take such other actions as are
appropriate under the circumstances to protect such Collateral.
SECTION 4.02. PROTECTION OF SECURITY. Each Grantor shall, at
its own cost and expense, take any and all reasonable actions necessary to
defend title to the Collateral against all persons, to properly maintain,
protect and preserve the Collateral and to defend the Security Interest of the
Collateral Agent in the Collateral and the priority thereof against any Lien not
permitted under the Credit Agreements in each case, except as otherwise
permitted by the Credit Agreements or this Agreement.
SECTION 4.03. CONTINUING OBLIGATIONS OF THE GRANTORS. Each
Grantor shall remain liable to observe and perform all the conditions and
obligations to be observed and performed by it under each License, contract,
agreement, interest or obligation relating to the Collateral, all in accordance
with the terms and conditions thereof, to the extent consistent with good
business practice. Without limiting the foregoing, the Collateral Agent shall
have no obligation or liability under any License by reason of or arising out of
this Agreement or the granting or the assignment to the Collateral Agent of the
Security Interest or the receipt by the Collateral Agent of any payment related
to any License pursuant hereto, nor shall the Collateral Agent be required or
obligated in any manner to perform or fulfill any of the obligations of any
Grantor under or pursuant to any License, or to make any payment, or to make any
inquiry as to the nature or the sufficiency of any payment received by it or the
sufficiency of any performance by any party under any License, or to present or
file any claim, or to take any action to collect or enforce any performance of
the payment of any amounts that may have been assigned to it or to which it may
be entitled at any time or times.
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SECTION 4.04. USE AND DISPOSITION OF COLLATERAL. A Grantor
shall not (i) make or permit to be made an assignment, pledge or hypothecation
of the Collateral, and shall grant no other security interest in the Collateral
(other than pursuant hereto or except for any Permitted Liens) or (ii) make or
permit to be made any transfer of the Collateral, and shall remain at all times
in possession thereof other than transfers to the Collateral Agent pursuant to
the provisions hereof; notwithstanding the foregoing, a Grantor may use and
dispose of the Collateral in any lawful manner permitted by the provisions of
this Agreement, the Credit Agreements or any other Loan Document, unless the
Collateral Agent shall, after an Event of Default shall have occurred and during
the continuance thereof, notify the Borrower not to sell, convey, lease, assign,
transfer or otherwise dispose of any Collateral except with respect to any
transfer between the Borrower or a Wholly Owned Subsidiary that is a Grantor and
the Borrower or a Wholly Owned Subsidiary that is a Grantor.
SECTION 4.05. LOCATIONS OF COLLATERAL; PLACE OF BUSINESS. (a)
Each Grantor agrees, at such time or times as the Collateral Agent may
reasonably request, promptly to prepare and deliver to the Collateral Agent a
duly certified schedule or schedules in form reasonably satisfactory to the
Collateral Agent, showing the identity, amount and location (to the extent
practicable) of any and all Collateral.
(b) Each Grantor agrees not to change, or permit to be
changed, the location of its chief executive office or chief place of business
or the name or names used to identify it in its business or in the ownership of
its properties unless all filings under the Uniform Commercial Code or under
other applicable laws that are required to be made with respect to the
Collateral have been made and the Collateral Agent has a valid, legal and
perfected first priority security interest in the Collateral, subject to no
liens, other than Liens permitted by Section 6.02 of the Credit Agreements and
any liens or licenses listed on Schedule V, and prior notice thereof has been
given to the Collateral Agent along with copies of all such filings to be made.
SECTION 4.06. FUTURE RIGHTS. (a) If, before the time that all
Obligations shall have been paid in full, no Letters of Credit are outstanding
and the Secured Parties no longer have Commitments under the Credit Agreements,
any Grantor shall obtain rights to any material asset or item that may be
considered Collateral, the provisions of Section 2.01 shall automatically apply
thereto and each Grantor shall give to the Collateral Agent prompt notice
thereof in writing.
(b) With respect to any such material asset or item that may
be considered Collateral as set forth in paragraph (a) above, each Grantor shall
follow the procedures set forth in Section 3.03, as applicable, to ensure that
the Collateral Agent's valid first priority security interest therein is
perfected (subject only to Liens permitted by Section 6.02 the Credit
Agreements).
13
SECTION 4.07 ASSIGNMENT OF LICENSES. Upon and during the
continuance of an Event of Default and at the reasonable request of the
Collateral Agent, each Grantor shall use its reasonable efforts to obtain all
requisite consents or approvals by the licensor of each Copyright License,
Patent License or Trademark License to effect the assignment of all of the
Grantors' rights, title and interest thereunder to the Collateral Agent or its
designee.
SECTION 4.08. COLLATERAL AGENT'S LIABILITIES AND EXPENSES;
INDEMNIFICATION. (a) Notwithstanding anything to the contrary provided herein,
the Collateral Agent assumes no liabilities with respect to any claims regarding
each Grantor's ownership (or purported ownership) of, or rights or obligations
(or purported rights or obligations) arising from, the Collateral or any use (or
actual or alleged misuse), license or sublicense thereof by any Grantor or any
licensee of such Grantor, whether arising out of any past, current or future
event, circumstance, act or omission or otherwise, or any claim, suit, loss,
damage, expense or liability of any kind or nature arising out of or in
connection with the Collateral or the production, marketing, delivery, sale or
provision of goods or services under or in connection with any of the
Collateral. As between the Secured Parties and the Grantors, all of such
liabilities shall be borne exclusively by the Grantors.
(b) Each Grantor hereby agrees to pay all expenses of the
Collateral Agent and to indemnify the Collateral Agent with respect to any and
all losses, claims, damages, liabilities and related expenses in respect of this
Agreement or the Collateral in each case to the extent the Borrower is required
to do so pursuant to Section 9.05 of the Credit Agreements.
(c) Any amounts payable as provided hereunder shall be
additional Obligations secured hereby and by the other Security Documents.
Without prejudice to the survival of any other agreements contained herein, all
indemnification and reimbursement obligations contained herein shall survive the
payment in full of the principal and interest under the Credit Agreements, the
expiration of the Letters of Credit and the termination of the Commitments or
this Agreement.
ARTICLE V
REMEDIES
SECTION 5.01. POWER OF ATTORNEY. Upon the occurrence and
during the continuance of any Event of Default, subject to prior written notice
to the Borrower, the Collateral Agent shall have the right, as the true and
lawful attorney-in-fact of the
14
Grantors, with power of substitution for the Grantors and in the Grantors'
names, the Collateral Agent's name or otherwise, for the use and benefit of the
Secured Parties (a) upon prior notice from the Collateral Agent, to receive,
endorse, assign and/or deliver any and all notes, acceptances, checks, drafts,
money orders or other evidences of payment relating to the Collateral or any
part thereof; (b) to demand, collect, receive payment of, give receipt for and
give discharges and releases of all or any of the Collateral; (c) to sign the
name of any Grantor on any invoice relating to any of the Collateral; (d) to
commence and prosecute any and all suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect or otherwise realize on
all or any of the Collateral or to enforce any rights in respect of any
Collateral; (e) to settle, compromise, compound, adjust or defend any actions,
suits or proceedings relating to or pertaining to all or any of the Collateral;
(f) to license or, to the extent permitted by any applicable law, sublicense,
whether general, special or otherwise, and whether on an exclusive or
non-exclusive basis, any of the Collateral throughout the world for such term or
terms, on such conditions, and in such manner, as the Collateral Agent shall
determine (other than in violation of any then existing licensing arrangements
to the extent that waivers or other adequate provision cannot be secured
therefor); and (g) generally to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the Collateral,
and to do all other acts and things necessary to carry out the purposes of this
Agreement, as fully and completely as though the Collateral Agent were the
absolute owner of the Collateral for all purposes; PROVIDED, HOWEVER, that
except as provided for by law or the Uniform Commercial Code as in effect in the
State of New York or its equivalent in other jurisdictions, nothing herein
contained shall be construed as requiring or obligating the Collateral Agent to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by the Collateral Agent, or to present or file any claim or
notice, or to take any action with respect to the Collateral or any part thereof
or the moneys due or to become due in respect thereof or any property covered
thereby, and no action taken by the Collateral Agent or omitted to be taken with
respect to the Collateral or any part thereof shall give rise to any defense,
counterclaim or offset in favor of any Grantor or to any claim or action against
the Collateral Agent. It is understood and agreed that the appointment of the
Collateral Agent as the attorney-in-fact of the Grantors for the purposes set
forth above in this Section 5.01 is coupled with an interest and is irrevocable.
The provisions of this Section 5.01 shall in no event relieve the Grantors of
any of their obligations hereunder or under the Credit Agreements or any other
Loan Document with respect to the Collateral or any part thereof or impose any
obligation on the Collateral Agent or the Secured Parties to proceed in any
particular manner with respect to the Collateral or any part thereof, or in any
way limit the exercise by the Collateral Agent or any Secured Party of any other
or further right that it may have on the date of this Agreement or hereafter,
whether hereunder or by law or by the Security Agreement, or otherwise.
15
SECTION 5.02. OTHER REMEDIES UPON DEFAULT. Upon the occurrence
and during the continuance of an Event of Default, each Grantor expressly agrees
that, subject to prior written notice to the Borrower, the Collateral Agent on
demand shall have the right to take any or all of the following actions at the
same or different times: with or without legal process and with or without
previous notice or demand for performance, to take possession of all tangible
manifestations or embodiments of the Collateral and documentation relating
thereto and all business records, documents, files, prints and labels with
respect to the Collateral, and without liability for trespass to enter any
premises where such tangible manifestations or embodiments, business records,
documents, files, prints and labels with respect to the Collateral may be
located for the purpose of taking possession of or removing such tangible
manifestations or embodiments, business records, documents, files, prints and
labels with respect to the Collateral, and, generally, to exercise any and all
rights afforded to a secured party under the Uniform Commercial Code or other
law applicable to any part of the Collateral. Subject to and without limiting
the generality of the foregoing, each Grantor agrees that the Collateral Agent
shall have the right, subject to the mandatory requirements of applicable law,
to sell or otherwise dispose of all or any part of the Collateral, at public or
private sale or at any broker's board or on any securities exchange, for cash,
upon credit or for future delivery as the Collateral Agent shall deem
appropriate. The Collateral Agent shall be authorized at any such sale (if it
deems it advisable to do so) to restrict the prospective bidders or purchasers
to persons who will represent and agree that they are purchasing the Collateral
for their own account for investment and not with a view to the distribution or
sale thereof where the failure to obtain such a representation and agreement
could result in a violation of any applicable securities laws, and upon
consummation of any such sale the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely, free from any claim or right on the part of any Grantor, and
each Grantor hereby waives (to the extent permitted by law) all rights of
redemption, stay and appraisal that such Grantor now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted.
The Collateral Agent shall give the Grantors at least 10 days'
written notice (which each Grantor agrees is reasonable notice within the
meaning of Section 9-504(3) of the Uniform Commercial Code as in effect in the
State of New York or its equivalent in other jurisdictions) of the Collateral
Agent's intention to make any sale of Collateral. Such notice, in the case of a
public sale, shall state the time and place for such sale and, in the case of a
sale at a broker's board or on a securities exchange, shall state the board or
exchange at which such sale is to be made and the day on which the Collateral,
or portion thereof, will first be offered for sale at such board or exchange.
Any such public sale shall be held at such time or times within ordinary
business hours and at such place or places as the Collateral Agent may fix and
state in the notice (if any) of such sale. At any such sale, the Collateral, or
16
portion thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion)
determine. The Collateral Agent shall not be obligated to make any sale of any
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of such Collateral shall have been given. The Collateral Agent
may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In case any sale of all or any
part of the Collateral is made on credit or for future delivery, the Collateral
so sold may be retained by the Collateral Agent until the sale price is paid by
the purchaser or purchasers thereof, but the Collateral Agent shall not incur
any liability in case any such purchaser or purchasers shall fail to take up and
pay for the Collateral so sold and, in case of any such failure, such Collateral
may be sold again upon like notice to the Grantors. At any public sale made
pursuant to this Section 5.02, the Collateral Agent or any Secured Party may bid
for or purchase, free from any right of redemption, stay, valuation or appraisal
on the part of any Grantor (all said rights being also hereby waived and
released to the extent permitted by law), the Collateral or any part thereof
offered for sale and may make payment on account thereof by using any claim then
due and payable to the Collateral Agent or any Secured Party from any Grantor as
a credit against the purchase price, and the Collateral Agent or any Secured
Party may, upon compliance with the terms of sale, hold, retain and dispose of
such property without further accountability to such Grantor therefor. As an
alternative to exercising the power of sale herein conferred upon it, the
Collateral Agent may proceed by a suit or suits at law or in equity to foreclose
this Agreement and to sell the Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver.
SECTION 5.03. APPLICATION OF PROCEEDS OF SALE. The proceeds of
any sale of Collateral, as well as any Collateral consisting of cash, shall be
applied by the Collateral Agent as follows:
FIRST, to the payment of the reasonable costs and expenses of
the Collateral Agent as set forth in Sections 5.01 and 5.02 and in the
Credit Agreements;
SECOND, to the payment of all amounts of the Obligations owed
to the Secured Parties in respect of Loans made by them and outstanding
and amounts owing in respect of any L/C Disbursement or Letter of
Credit or under any Interest/Exchange Rate Protection Agreement, pro
rata as among the Secured Parties in accordance with the amount of such
Obligations owed them;
THIRD, to the payment and discharge in full of the Obligations
(other than those referred to above), pro rata as among the Secured
17
Parties in accordance with the amount of such Obligations owed to them;
and
FOURTH, after payment in full of all Obligations, to the
applicable Grantor, or its successor or assign thereof, or to
whomsoever may be lawfully entitled to receive the same or as a court
of competent jurisdiction may direct, any Collateral then remaining.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Collateral Agent or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral Agent
or such officer or be answerable in any way for the misapplication thereof.
SECTION 5.04. GRANT OF LICENSE TO USE PATENT, TRADEMARK AND
COPYRIGHT COLLATERAL. For the purpose of enabling the Collateral Agent to
exercise rights and remedies under Article V hereof at such time as the
Collateral Agent shall be lawfully entitled to exercise such rights and
remedies, each Grantor hereby grants to the Collateral Agent an irrevocable,
non-exclusive license (exercisable without payment of royalty or other
compensation to such Grantor) to use, license or sublicense any of the
Collateral now owned or hereafter acquired by such Grantor, and wherever the
same may be located, and including in such license reasonable access to all
media in which any of the licensed items may be recorded or stored. The use of
such license by the Collateral Agent shall be exercised, at the option of the
Collateral Agent for any purpose appropriate in connection with the exercise of
remedies hereunder, only upon the occurrence and during the continuance of an
Event of Default; PROVIDED that any license, sublicense or other transaction
entered into by the Collateral Agent in accordance herewith shall be binding
upon such Grantor notwithstanding any subsequent cure of an Event of Default.
The Collateral Agent agrees to apply the net proceeds received from any license
as provided in Section 5.03 hereof.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. THE COLLATERAL AGENT APPOINTED ATTORNEY-
IN-FACT. Except as otherwise provided herein, each Grantor hereby appoints the
Collateral Agent the attorney-in-fact of such Grantor, effective upon the
occurrence and during the continuance of an Event of Default, for the purposes
of carrying out the provisions of this Agreement, taking any action and
executing any instrument that the Collateral Agent may reasonably deem necessary
or advisable to accomplish the purposes hereof, and doing all other acts that
such Grantor is obligated to do hereunder. Such appointment is in each case
18
irrevocable and coupled with an interest. Each Grantor hereby ratifies all that
such attorney shall lawfully do or cause to be done by virtue hereof in
accordance with this Agreement.
SECTION 6.02. NOTICES. Notices and other communications
provided for herein shall be in writing and given (i) in the case of
communications and notices to any Credit Party or any Secured Party, as provided
in the Credit Agreements and (ii) in the case of communications and notices to
any Grantor that is not a Credit Party, as provided in the Subsidiary Guarantee
Agreement.
SECTION 6.03. SUCCESSORS AND ASSIGNS. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party, and the
terms "Lender", "Fronting Bank" and "Secured Party" shall include each permitted
successor and assignee of any Lender, Fronting Bank or Secured Party permitted
under Section 9.04 of the Credit Agreements and all covenants, promises and
agreements by or on behalf of the Grantors or the Collateral Agent or that are
contained in this Agreement shall bind and inure to the benefit of their
respective permitted successors and permitted assigns referred to above.
(b) No Grantor shall assign or delegate any of its rights and
duties hereunder.
(c) The covenants, promises and agreements by the Grantors
shall inure to the benefit of each Secured Party and each assignee of any
Secured Party permitted under Section 9.04 of the Credit Agreements.
SECTION 6.04. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT
TO THE EXTENT THAT FEDERAL LAW OR LAWS OF ANOTHER STATE OR FOREIGN JURISDICTION
MAY APPLY TO PATENTS, TRADEMARKS, COPYRIGHTS, OTHER COLLATERAL OR REMEDIES.
SECTION 6.05. WAIVERS; AMENDMENT. (a) No failure or delay of
the Collateral Agent in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other right or power. The rights and remedies of the
Collateral Agent hereunder and of other Secured Parties under the Loan Documents
are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provisions of this Agreement or any other Loan
Document or consent to any departure by any Grantor therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice to or demand on any Grantor in any case
shall entitle such Grantor to any other or further notice or demand in similar
or other circumstances.
19
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into between any Grantor and the Collateral Agent, with the
prior written consent of the Required Secured Parties; PROVIDED, HOWEVER, that
except as provided herein or in the other Loan Documents, no such agreement
shall amend, modify, waive or otherwise affect the rights or duties of the
Collateral Agent hereunder without the prior written consent of the Collateral
Agent.
SECTION 6.06. SECURITY INTEREST ABSOLUTE. All rights of the
Collateral Agent hereunder, the security interests granted hereunder and all
obligations of the Grantors hereunder shall be absolute and unconditional.
SECTION 6.07. SURVIVAL OF AGREEMENT. All covenants,
agreements, representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Secured Parties and shall survive the making by the
Lenders of the Loans, the execution and delivery to the Lenders of the Loan
Documents and the issuance by the Fronting Banks of the Letters of Credit
regardless of any investigation made by the Secured Parties or on their behalf
and shall continue in full force and effect so long as the principal of or any
accrued interest on any Loan or L/C Disbursement or any Fee or any other amount
payable under or in respect of this Agreement or any other Loan Document is
outstanding and unpaid and so long as the Commitments have not been terminated.
SECTION 6.08. BINDING EFFECT; ASSIGNMENTS. This Agreement
shall become effective as to any Grantor when a counterpart hereof executed on
behalf of such Grantor shall have been delivered to the Collateral Agent, and
thereafter shall be binding upon such Grantor and its respective successors and
assigns, and shall inure to the benefit of such Grantor and the Secured Parties
and their respective successors and assigns, except that no Grantor shall have
the right to assign its rights hereunder or any interest herein (and any such
attempted assignment shall be void) except as expressly contemplated by this
Agreement or the other Loan Documents.
SECTION 6.09. TERMINATION; RELEASE. (a) This Agreement and the
security interests granted hereby shall terminate when all the Obligations have
been indefeasibly paid in full, the Commitments have been terminated and no
Letters of Credit are outstanding.
(b) Upon any sale by any Grantor of any Collateral that is
permitted under the Credit Agreements or upon the effectiveness of any written
consent to the release of the Security Interest in any Collateral pursuant to
Section 9.08 of the Credit Agreements, the Security Interest in such Collateral
shall be automatically released.
20
(c) In connection with any termination or release pursuant to
paragraphs (a) and (b), the Collateral Agent shall execute and deliver to each
Grantor, at such Grantor's expense, all Uniform Commercial Code termination
statements, documents in order to terminate any United States Patent and
Trademark Office filings and similar documents that such Grantor shall
reasonably request to evidence such termination or release. Any execution and
delivery of termination statements or documents pursuant to this Section 6.09
shall be without recourse to or warranty by the Collateral Agent.
SECTION 6.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 6.10.
SECTION 6.11. SEVERABILITY. In the event any one or more of
the provisions contained in this Agreement or in any other Loan Document should
be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 6.12. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
Each Grantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto 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 of the parties hereto 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 Agreement shall affect any right that any Loan
Party or Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against any Grantor or
any Secured Party or its properties in the courts of any jurisdiction.
21
(b) Each Grantor and each Secured Party hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto 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.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 6.02. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 6.13. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original, but all of
which, when taken together shall constitute but one instrument, and shall become
effective as provided in Section 6.08.
SECTION 6.14. HEADINGS. Article and Section headings used
herein are for convenience of reference only, are not part of this Agreement and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 6.15. ADDITIONAL GRANTORS. Pursuant to Section 5.11 of
the Credit Agreements, each U.S. Subsidiary that was not in existence or not a
U.S. Subsidiary on the date thereof is required to enter into this Agreement as
a Grantor upon becoming a U.S. Subsidiary. Upon execution and delivery, after
the date hereof, by the Collateral Agent and such U.S. Subsidiary of an
instrument in the form of Annex 1, such U.S. Subsidiary shall become a Grantor
hereunder with the same force and effect as if originally named as a Grantor
hereunder. The execution and delivery of any such instrument shall not require
the consent of any Grantor hereunder. The rights and obligations of each Grantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Grantor as a party to this Agreement.
22
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
UCAR INTERNATIONAL INC.
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact
UCAR GLOBAL ENTERPRISES INC.
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact
EACH OF THE SUBSIDIARY GRANTORS
LIATED ON SCHEDULE VII HERETO
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact
THE CHASE MANHATTAN BANK, as
Collateral Agent
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
TO INTELLECTUAL
PROPERTY SECURITY AGREEMENT
PATENTS AND PATENT APPLICATIONS
SERIAL NO. OR ISSUE OR
PATENT NO. INVENTOR COUNTRY FILE DATE TITLE
See Attached
SCHEDULE II
TO INTELLECTUAL
PROPERTY SECURITY AGREEMENT
TRADEMARKS, TRADEMARK REGISTRATIONS AND
TRADEMARK REGISTRATION APPLICATIONS
SERIAL NO. OR ISSUE OR
REGISTRATION NO. COUNTRY FILE DATE ▇▇▇▇
See attached
SCHEDULE III
TO INTELLECTUAL
PROPERTY SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS AND COPYRIGHT
REGISTRATION APPLICATIONS
REGISTRATION NO. COUNTRY ISSUE OR
FILE DATE TITLE
None
SCHEDULE IV
TO INTELLECTUAL
PROPERTY SECURITY AGREEMENT
TRADE NAMES
None
SCHEDULE V
TO INTELLECTUAL
PROPERTY SECURITY AGREEMENT
LIENS ON
None
SCHEDULE VI
TO INTELLECTUAL
PROPERTY SECURITY AGREEMENT
Offices where financing statements need to be filed
[See Security Agreement]
SCHEDULE VII
TO INTELLECTUAL PROPERTY
SECURITY AGREEEMENT
SUBSIDIARY GRANTORS
UCAR International Inc.
UCAR Global Enterprises Inc.
UCAR Carbon Company Inc.
UCAR Carbon Technology Corporation
UCAR Holdings Inc.
UCAR Holdings II Inc.
UCAR Holdings III Inc.
UCAR International Trading Inc.
Union Carbide Grafito, Inc.
UCAR Composites Inc.
EXHIBIT A-1 TO
INTELLECTUAL PROPERTY
SECURITY AGREEMENT
SUPPLEMENT NO. dated as of [ Security
Agreement dated as of April 22,1998, as amended and
restated as of November 10, 1998 (the "INTELLECTUAL
PROPERTY SECURITY AGREEMENT"), among UCAR
INTERNATIONAL INC., a Delaware corporation ("UCAR"),
UCAR GLOBAL ENTERPRISES INC., a Delaware corporation
(the "BORROWER"), each of the U.S. Subsidiaries (such
term and each other capitalized term used but not
defined having the meaning given it in the
Intellectual Property Security Agreement, and if not
defined therein, having the meaning given it in
Article I of the Credit Agreements), party thereto
(together with the Borrower, the "GRANTORS") and THE
CHASE MANHATTAN BANK, a New York banking corporation,
as collateral agent (the "COLLATERAL AGENT") for the
Secured Parties.
A. Reference is made to (i) the Credit Agreement dated as of
October 19, 1995, as amended and restated as of March 19, 1997 and November 10,
1998 (as the same may be amended, supplemented or otherwise modified from time
to time, the "EXISTING CREDIT AGREEMENT"), among UCAR, the Borrower, the
Subsidiary Borrowers party thereto, the Lenders party thereto, the Fronting
Banks party thereto and The Chase Manhattan Bank, as administrative agent and
collateral agent and (ii) the Credit Agreement dated as of November 10, 1998,
among UCAR, the Borrower, UCAR S.A., the Lenders party thereto, The Chase
Manhattan Bank, as administrative agent and collateral agent, Credit Suisse
First Boston, as syndication agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as syndication agent (as the same may be amended, supplemented or
otherwise modified from time to time, the "TRANCHE C FACILITY CREDIT AGREEMENT",
and together with the Existing Credit Agreement, the "CREDIT AGREEMENTS").
B. The Borrower and the U.S. Subsidiaries have entered into
the Intellectual Property Security Agreement in order to induce the Lenders to
make Loans and the Fronting Banks to issue Letters of Credit pursuant to, and
upon the terms and subject to the conditions specified in, the Credit
Agreements. Pursuant to Section 5.11 of the Credit Agreements, each U.S.
Subsidiary that was not in existence or not a U.S. Subsidiary on the date
thereof is required to enter into the Intellectual Property Security Agreement
as a Grantor upon becoming a U.S. Subsidiary. Section 6.15 of the Intellectual
Property Security Agreement provides that additional U.S. Subsidiaries may
become Grantors under the Intellectual Property Security Agreement by execution
and delivery of an instrument in the form of this Supplement. The undersigned
(the "NEW GRANTOR") is a U.S. Subsidiary and is executing this Supplement in
accordance with the requirements of the Credit Agreements to become a Grantor
under the Intellectual Property Security Agreement in order to induce the
Lenders to make additional Loans and the Fronting Banks to issue additional
2
Letters of Credit and as consideration for Loans previously made and Letters of
Credit previously issued.
Accordingly, the Collateral Agent and the New Grantor agree as
follows:
SECTION 1. In accordance with Section 6.15 of the Intellectual
Property Security Agreement, the New Grantor by its signature below becomes a
Grantor under the Intellectual Property Security Agreement with the same force
and effect as if originally named therein as a Grantor and the New Grantor
hereby agrees to all the terms and provisions of the Intellectual Property
Security Agreement applicable to it as a Grantor thereunder. Each reference to a
"GRANTOR" in the Intellectual Property Security Agreement shall be deemed to
include the New Grantor. The Intellectual Property Security Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Grantor represents and warrants to the
Secured Parties that this Supplement has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to the effects of
applicable bankruptcy, insolvency or similar laws effecting creditors' rights
generally and equitable principles of general applicability.
SECTION 3. This Supplement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. This Supplement shall
become effective when the Collateral Agent shall have received counterparts of
this Supplement that, when taken together, bear the signatures of the New
Grantor and the Collateral Agent.
SECTION 4. Except as expressly supplemented hereby, the
Intellectual Property Security Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained
in this Supplement should be held invalid, illegal or unenforceable in any
respect, neither party hereto shall be required to comply with such provision
for so long as such provision is held to be invalid, illegal or unenforceable,
but the validity, legality and enforceability of the remaining provisions
contained herein and in the Intellectual Property Security Agreement shall not
in any way be affected or impaired. The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provi sions.
SECTION 7. All communications and notices hereunder shall be
in writing and given as provided in the Credit Agreements. All communications
and notices hereunder to the New Grantor shall be given to it at the address set
forth under its signature, with a copy to the Borrower.
IN WITNESS WHEREOF, the New Grantor and the Collateral Agent
have duly executed this Supplement to the Intellectual Property Security
Agreement as of the day and year first above written.
[NAME OF NEW GRANTOR],
by
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Name:
Title:
Address:
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by
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Name:
Title:
Address:
