CONFORMED COPY
INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT dated as of February 22,
2000, made by UCAR INTERNATIONAL INC., a Delaware corporation ("UCAR"),
UCAR GLOBAL ENTERPRISES INC., a Delaware corporation ("GLOBAL"), UCAR
FINANCE INC., a Delaware corporation (the "BORROWER"), and the subsidiaries
of UCAR from time to time party hereto (the "SUBSIDIARY GRANTORS", and
together with UCAR, Global and the Borrower, the "Grantors") in favor of
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK as collateral agent for the
Secured Parties (such term and each other capitalized term used but not
defined herein having the meaning given it in Article I of the Credit
Agreement). Reference is made to the Credit Agreement dated as of February
22, 2000 (as the same may be amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT") among UCAR, Global, the
Borrower, the LC Subsidiaries from time to time party thereto, the Lenders
from time to time party thereto and Xxxxxx Guaranty Trust Company of New
York, as Administrative Agent, Collateral Agent and Issuing Bank.
The Lenders and the Issuing Banks, respectively, have agreed to make Loans
and to issue Letters of Credit pursuant to, and upon the terms and subject to
the conditions specified in, the Credit Agreement.
The obligations of the Lenders to make Loans and of the Fronting Banks to
issue Letters of Credit under the Credit Agreement 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 (a) the due and punctual payment of (i) the principal of
and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made under the Credit Agreement in respect of any Letter of Credit, when and as
due, including payments in respect of reimbursement of disbursements, interest
thereon and obligations to provide cash collateral and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (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), of UCAR, Global, the Borrower and the
Subsidiaries under the Credit Agreement and the other Loan Documents (including,
without limitation, all monetary obligations of the Intercompany Borrowers under
the Intercompany Notes and Intercompany Borrower Agreements, but only for so
long as the Intercompany Notes and the rights of the Borrower under the
Intercompany Borrower Agreements are pledged to the Collateral Agent under one
or more Pledge Agreements as security for the Obligations), (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Loan Parties under or pursuant to the Credit Agreement and the other Loan
Documents, (c) unless otherwise agreed upon in writing by the applicable Lender
party thereto, the due and punctual payment and performance of all obligations
2
of the Borrower and the Subsidiaries, monetary or otherwise, under each
Interest/Exchange Rate Protection Agreement entered into with any counterparty
that (i) was a Lender (or an Affiliate thereof) at the time such
Interest/Exchange Rate Protection Agreement was entered into or (ii) (A) was a
"Lender" (or an Affiliate thereof) as defined in the Existing Credit Agreements
at the time such Interest/Exchange Rate Protection Agreement was entered into
and (B) was one of the intital Lenders under the Credit Agreement (or an
Affiliate thereof) and (d) all obligations of the Guarantors under the Guarantee
Agreements; (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 Agreement.
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
3
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.
"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.
"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 xxx 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 dilution 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
4
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.
"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.
SECTION 1.03. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.03 of the Credit Agreement 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 7.02 of the Credit Agreement (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
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
5
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 6.07 of the Credit Agreement, 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 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
6
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, 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.
7
(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 7.02 of the Credit
Agreement) 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).
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 7.02 of the
Credit Agreement.
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 7.02 of the Credit Agreement 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 or 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.
8
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 xxxx, 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 material
rights under applicable patent laws.
(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
9
Copyright of such Grantor and the goodwill 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.
(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 Patents, 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 xxx 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 Agreement in each case, except as otherwise permitted by the Credit
Agreement 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.
10
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 Agreement 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 7.02 of the Credit Agreement 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 Agreement, 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 7.02 of the Credit Agreement).
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
11
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 10.03 of the Credit Agreement.
(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 Agreement, 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 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,
12
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
Agreement 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.
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
13
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 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 all costs and expenses incurred by the
Administrative Agent or the Collateral Agent (in its capacity as such
hereunder or under any other Loan Document) in connection with such
collection or sale or otherwise in connection with this Agreement or any of
the Obligations, including all reasonable court costs and the reasonable
fees and expenses of its agents and legal counsel, the repayment of all
advances made by the Collateral Agent hereunder or under any other Loan
Document on behalf of any Grantor and any other costs or expenses incurred
in connection with the exercise of any right or remedy hereunder or under
any other Loan Document;
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 LC 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;
14
THIRD, to the payment and discharge in full of the Obligations (other
than those referred to above), pro rata as among the Secured 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 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
UCAR, Global, the Borrower or any Secured Party, as provided in the Credit
15
Agreement and (ii) in the case of communications and notices to any other
Grantor, 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", "Issuing
Bank" and "Secured Party" shall include each permitted successor and assignee of
any Lender, Issuing Bank or Secured Party permitted under Section 10.04 of the
Credit Agreement 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 10.04 of the Credit Agreement.
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.
(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.
16
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 Agreement or upon the effectiveness of any written consent to the
release of the Security Interest in any Collateral pursuant to Section 10.02 of
the Credit Agreement, the Security Interest in such Collateral shall be
automatically released.
(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
17
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.
(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.
18
SECTION 6.15. ADDITIONAL GRANTORS. Pursuant to Section 6.11 of the Credit
Agreement, each Domestic Subsidiary that was not in existence or not a Domestic
Subsidiary on the date thereof is required to enter into this Agreement as a
Grantor upon becoming a Domestic Subsidiary. Upon execution and delivery, after
the date hereof, by the Collateral Agent and such Domestic Subsidiary of an
instrument in the form of Annex 1, such Domestic 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.
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/ XXXXX X. FALLS
--------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
UCAR GLOBAL ENTERPRISES INC.
by
/S/ XXXXX X. FALLS
--------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
UCAR FINANCE INC.
by
/S/ XXXXX X. FALLS
--------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
19
EACH OF THE SUBSIDIARY GRANTORS LISTED
ON SCHEDULE VII HERETO
by
/S/ XXXXX X. FALLS
--------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Collateral Agent
by
/S/ XXXXXXX XXXXXXXX
--------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Vice President
SCHEDULE I
TO INTELLECTUAL PROPERTY
SECURITY AGREEMENT
PATENTS OWNED BY [NAME OF GRANTOR]
[Make a separate Schedule IV for each Grantor and if no patents owned so state.
List in numerical order by Patent No./Patent Application No.]
U.S. PATENT REGISTRATIONS
ISSUE DATE PATENT NUMBERS
---------- --------------
U.S. PATENT APPLICATIONS
FILING DATE PATENT APPLICATION NO.
----------- ----------------------
NON-U.S. PATENT REGISTRATIONS
[List in alphabetical order by country/numerical order by Patent No.]
COUNTRY ISSUE DATE PATENT NO.
------- ------------ ----------
NON-U.S. PATENT APPLICATIONS
[List in alphabetical order by country/numerical order by
Application No.]
COUNTRY FILING DATE PATENT APPLICATION NO.
------- ----------- ----------------------
SCHEDULE II, page 1 of 2
TO INTELLECTUAL PROPERTY
SECURITY AGREEMENT
TRADEMARK/TRADE NAMES OWNED BY [NAME OF GRANTOR]
[Make a separate Schedule V for each Grantor and if no trademark/trade names
owned so state. List in numerical order by trademark registration/application
no.]
U.S. TRADEMARK REGISTRATIONS
XXXX REG. DATE REG. NO.
---- --------- --------
U.S. TRADEMARK APPLICATIONS
XXXX FILING DATE APPLICATION NO.
---- ----------- ---------------
STATE TRADEMARK REGISTRATIONS
[List in alphabetical order by State/numerical order by trademark no.]
STATE XXXX REG. DATE REG. NO.
----- ---- --------- --------
STATE TRADEMARK APPLICATIONS
[List in alphabetical order by State/numerical order by trademark no.]
STATE XXXX FILING DATE APPLICATION NO.
----- ---- ----------- ---------------
NON-U.S. TRADEMARK REGISTRATIONS
[List in alphabetical order by country/numerical order by trademark no.]
COUNTRY XXXX REG. DATE REG. NO.
------- ---- --------- --------
SCHEDULE II, page 2 of 2
TO INTELLECTUAL PROPERTY
SECURITY AGREEMENT
NON-U.S. TRADEMARK APPLICATIONS
[List in alphabetical order by country/numerical order by application no.]
COUNTRY XXXX APPLICATION DATE APPLICATION NO.
------- ---- ---------------- ---------------
TRADE NAMES
COUNTRY(S) WHERE USED TRADE NAMES
--------------------- -----------
SCHEDULE III
TO INTELLECTUAL PROPERTY
SECURITY AGREEMENT
COPYRIGHTS OWNED BY [NAME OF GRANTOR]
[Make a separate Schedule II for each Grantor and if no copyrights owned
so state.]
U.S. COPYRIGHT REGISTRATIONS
[List in numerical order by Registration No.]
TITLE DATE PUB. AUTHOR REG. NO.
----- --------- ------ --------
PENDING U.S. COPYRIGHT APPLICATIONS FOR REGISTRATION
[List in chronological order by date published.]
TITLE DATE PUB. AUTHOR CLASS DATE FILED
----- --------- ------ ----- ----------
NON-U.S. COPYRIGHT REGISTRATIONS
[List in alphabetical order by country/numerical order by Registration No.]
COUNTRY TITLE DATE PUB. AUTHOR REG. NO.
------- ----- --------- ------- --------
NON-U.S. PENDING COPYRIGHT APPLICATIONS FOR REGISTRATION
[List in alphabetical order by country/chronological order by date published.]
COUNTRY TITLE DATE PUB. AUTHOR CLASS DATE FILED
------- ----- --------- ------ ----------------
SCHEDULE IV, page 1 of 6
TO INTELLECTUAL PROPERTY
SECURITY AGREEMENT
LICENSES
[Make a separate Schedule III for each Grantor, and if not a
licensor/licensee in a license/sublicense so state.]
PART I
LICENSES/SUBLICENSES OF [NAME OF GRANTOR] AS LICENSOR ON DATE HEREOF
A. COPYRIGHTS
U.S. COPYRIGHT REGISTRATIONS
[List in numerical order by Registration No.]
DATE OF
LICENSEE NAME LICENSE/ REG.
AND ADDRESS SUBLICENSE TITLE DATE PUB. AUTHOR NO.
----------- ---------- ----- --------- ------- ---
PENDING U.S. COPYRIGHT APPLICATIONS FOR REGISTRATION
[List in chronological order by date published.]
DATE OF
LICENSEE NAME LICENSE/ DATE
AND ADDRESS SUBLICENSE TITLE DATE PUB. AUTHOR FILED
----------- ---------- ----- --------- ------- -----
NON-U.S. COPY REGISTRATIONS
[List in alphabetical order by country/numerical order by Registration No.]
DATE OF
LICENSEE NAME LICENSE/ DATE REG.
COUNTRY AND ADDRESS SUBLICENSE TITLE PUB. AUTHOR NO.
------- ----------- ----------- ----- ----- ------- ---
NON-U.S. PENDING COPYRIGHT APPLICATIONS FOR REGISTRATION
[List in alphabetical order by country/chronological order by date published.]
DATE OF
LICENSEE NAME LICENSE/ DATE DATE
COUNTRY AND ADDRESS SUBLICENSE TITLE PUB. AUTHOR CLASS FILED
------- ----------- ----------- ----- ----- ------- -----------
SCHEDULE IV, page 2 of 6
TO INTELLECTUAL PROPERTY
SECURITY AGREEMENT
B. PATENTS
[List first in numerical order by U.S. patent nos. followed by U.S. patent
application nos. in numerical order, followed in alphabetical order by country,
its non-U.S. patent nos. in numerical order, followed by its non-U.S.
application nos. in numerical order.]
U.S. PATENTS
LICENSEE NAME DATE OF LICENSE/ PATENT
AND ADDRESS SUBLICENSE ISSUE DATE PATENT NO.
----------- ---------- ---------- ----------
U.S. PATENT APPLICATIONS
LICENSEE NAME DATE OF LICENSE/ DATE APPLICATION
AND ADDRESS SUBLICENSE APPL. FILED NO.
----------- ---------- ----------- ---
NON-U.S. PATENTS
DATE OF
LICENSEE NAME LICENSE/ PATENT NON-U.S.
COUNTRY AND ADDRESS SUBLICENSE ISSUE DATE PATENT NO.
------- ----------- ---------- ---------- ----------
NON-U.S. PATENT APPLICATIONS
DATE OF
LICENSEE NAME LICENSE/ DATE APPLICATION
COUNTRY AND ADDRESS SUBLICENSE APPL. NO.
------- ----------- ---------- ----- -----------
SUBLICENSE FILED
SCHEDULE IV, page 3 of 6
TO INTELLECTUAL PROPERTY
SECURITY AGREEMENT
C. TRADEMARKS
[List first in numerical order by U.S. patent nos. followed by U.S. patent
application nos. in numerical order, followed in alphabetical order by country,
its non-U.S. patent nos. in numerical order, followed by its non-U.S.
application nos. in numerical order.]
U.S. TRADEMARKS
DATE OF
LICENSEE NAME LICENSE/
AND ADDRESS SUBLICENSE U.S. XXXX REG. DATE REG. NO.
----------- ---------- --------- --------- --------
U.S. TRADEMARK APPLICATIONS
DATE OF
LICENSEE NAME LICENSE/ APPLICATION
AND ADDRESS SUBLICENSE U.S. XXXX DATE FILED NO.
----------- ---------- --------- ---------- ---
NON-U.S. TRADEMARKS
DATE OF
LICENSEE NAME LICENSE/ NON-U.S.
COUNTRY AND ADDRESS SUBLICENSE XXXX REG. DATE REG. NO.
------- ----------- ---------- ---- --------- --------
NON-U.S. TRADEMARK APPLICATIONS
DATE OF
LICENSEE NAME LICENSE/ NON-U.S. APPLICATION
COUNTRY AND ADDRESS SUBLICENSE XXXX DATE FILED NO.
------- ----------- ---------- ------- ---------- ---
D. OTHERS
DATE OF LICENSE/
LICENSE NAME AND ADDRESS SUBLICENSE SUBJECT MATTER
------------------------ ---------- --------------
SCHEDULE IV, page 4 of 6
TO INTELLECTUAL PROPERTY
SECURITY AGREEMENT
PART 2
LICENSES/SUBLICENSES OF [NAME OF GRANTOR] AS LICENSEE ON DATE HEREOF
A. COPYRIGHTS
U.S. COPYRIGHTS
[List in numerical order by Registration No.]
DATE OF
LICENSEE NAME LICENSE/ DATE REG.
AND ADDRESS SUBLICENSE TITLE PUB. AUTHOR NO.
----------- ---------- ----- ---- ------- ---
PENDING U.S. COPYRIGHT APPLICATIONS FOR REGISTRATION
[List in chronological order by date published.]
DATE OF
LICENSEE NAME LICENSE/ DATE DATE
AND ADDRESS SUBLICENSE TITLE PUB. AUTHOR CLASS FILED
----------- ----------- ----- ---- ------- ----- -----
NON-U.S. COPYRIGHTS
[List in alphabetical order by country/numerical order by Registration No.]
DATE OF
LICENSEE NAME LICENSE/ DATE REG.
COUNTRY AND ADDRESS SUBLICENSE TITLE PUB. AUTHOR NO.
------- ----------- ----------- ----- ---- ------- ---
NON-U.S. PENDING COPYRIGHT APPLICATIONS FOR REGISTRATION
[List in alphabetical order by country/chronological order by date published.]
DATE OF
LICENSEE NAME LICENSE/ DATE DATE
COUNTRY AND ADDRESS SUBLICENSE TITLE PUB. AUTHOR CLASS FILED
------- ----------- ----------- ----- ---- ------- ----- -----
SCHEDULE IV, page 5 of 6
TO INTELLECTUAL PROPERTY
SECURITY AGREEMENT
B. PATENTS
[List first in numerical order by U.S. patent nos. followed by U.S. patent
application nos. in numerical order, followed in alphabetical order by country,
its non-U.S. patent nos. in numerical order, followed by its non-U.S.
application nos. in numerical order.]
U.S. PATENTS
LICENSEE NAME DATE OF LICENSE/ PATENT
AND ADDRESS SUBLICENSE ISSUE DATE PATENT NO.
----------- ---------- ---------- ----------
U.S. PATENT APPLICATIONS
LICENSEE NAME DATE OF LICENSE/ DATE
AND ADDRESS SUBLICENSE APPL. FILED APPLICATION NO.
----------- ---------- ----------- ---------------
NON-U.S. PATENTS
DATE OF
LICENSEE NAME LICENSE/ PATENT NON-U.S.
COUNTRY AND ADDRESS SUBLICENSE ISSUE DATE PATENT NO.
------- ----------- ---------- ---------- ----------
NON-U.S. PATENT APPLICATIONS
DATE OF
LICENSEE NAME LICENSE/ DATE APPLICATION
COUNTRY AND ADDRESS SUBLICENSE APPL. FILED NO.
------- ----------- ---------- ----------- ---
SCHEDULE IV, page 6 of 6
TO INTELLECTUAL PROPERTY
SECURITY AGREEMENT
C. TRADEMARKS
[List first in numerical order by U.S. trademark nos. followed by U.S. trademark
application nos. in numerical order, followed in alphabetical order by country,
its non-U.S. trademark nos. in numerical order, followed by its non-U.S.
application nos. in numerical order.]
U.S. TRADEMARKS
DATE OF
LICENSEE NAME LICENSE/
AND ADDRESS SUBLICENSE U.S. XXXX REG. DATE REG. NO.
----------- ---------- --------- --------- --------
U.S. TRADEMARK APPLICATIONS
DATE OF
LICENSEE NAME LICENSE/ APPLICATION
AND ADDRESS SUBLICENSE U.S. XXXX DATE FILED NO.
----------- ---------- --------- ---------- ---
NON-U.S. TRADEMARKS
DATE OF
LICENSEE NAME LICENSE/ NON-U.S.
COUNTRY AND ADDRESS SUBLICENSE XXXX REG. DATE REG. NO.
------- ----------- ---------- ---- ------------------
NON-U.S. TRADEMARK APPLICATIONS
DATE OF
Licensee Name LICENSE/ Non-U.S. Application
COUNTRY AND ADDRESS SUBLICENSE XXXX DATE FILED NO.
------- ----------- ---------- ---- ---------- ---
D. OTHERS
DATE OF LICENSE/
LICENSE NAME AND ADDRESS SUBLICENSE SUBJECT MATTER
------------------------ ---------- --------------
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 Perfection Certificate]
SCHEDULE VII
TO INTELLECTUAL PROPERTY
SECURITY AGREEMENT
SUBSIDIARY GRANTORS
UCAR Carbon Company Inc.
UCAR Holdings II Inc.
UCAR Holdings III Inc.
UCAR International Trading Inc.
UCAR Composites Inc.
EXHIBIT A-1 TO
INTELLECTUAL PROPERTY
SECURITY AGREEMENT
SUPPLEMENT NO. dated as of [], to the Intellectual Property
Security Agreement dated as of February 22, 2000 (the
"INTELLECTUAL PROPERTY SECURITY AGREEMENT"), made by UCAR
INTERNATIONAL INC., a Delaware corporation ("UCAR"), UCAR GLOBAL
ENTERPRISES INC., a Delaware corporation ("GLOBAL"), UCAR FINANCE
INC., a Delaware corporation (the "BORROWER"), and the
subsidiaries of UCAR from time to time party thereto (the
"SUBSIDIARY GRANTORS", and together with UCAR, Global and the
Borrower, the "GRANTORS") in favor of XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK as collateral agent for the Secured Parties
(such term and each other capitalized term used but not defined
herein having the meaning given it in Article I of the Credit
Agreement).
A. Reference is made to Credit Agreement dated as of February 22, 2000 (as
the same may be amended, supplemented or otherwise modified from time to time,
the "CREDIT AGREEMENT") among UCAR, Global, the Borrower, the LC Subsidiaries
from time to time party thereto, the Lenders from time to time party thereto and
Xxxxxx Guaranty Trust Company of New York, as Administrative Agent, Collateral
Agent and Issuing Bank.
B. The Borrower and the Domestic Subsidiaries have entered into the
Intellectual Property Security Agreement in order to induce the Lenders to make
Loans and the Issuing Banks to issue Letters of Credit pursuant to, and upon the
terms and subject to the conditions specified in, the Credit Agreement. Pursuant
to Section 6.11 of the Credit Agreement, each Domestic Subsidiary that was not
in existence or not a Domestic Subsidiary on the date thereof is required to
enter into the Intellectual Property Security Agreement as a Grantor upon
becoming a Domestic Subsidiary. Section 6.15 of the Intellectual Property
Security Agreement provides that additional Domestic 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 Domestic Subsidiary and is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Grantor
under the Intellectual Property Security Agreement in order to induce the
Lenders to make additional Loans and the Issuing Bank to issue additional
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 provisions.
SECTION 7. All communications and notices hereunder shall be in writing and
given as provided in the Credit Agreement. 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
Name:
Title:
Address:
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Collateral Agent,
by
Name:
Title:
