Exhibit 10.2
SECURITY AGREEMENT
Dated May 27, 2004
From
The Grantors referred to herein
as Grantors
to
JPMORGAN CHASE BANK
as Administrative Agent
TABLE OF CONTENTS
PAGE
SECTION 1. Grant of Security.............................................................................. 2
SECTION 2. Security for Obligations....................................................................... 6
SECTION 3. Grantors Remain Liable......................................................................... 6
SECTION 4. Delivery and Control of Security Collateral.................................................... 6
SECTION 5. Maintaining Electronic Chattel Paper, Transferable Records and Letter-of-Credit Rights and
Giving Notice of Commercial Tort Claims........................................................ 7
SECTION 6. Representations and Warranties................................................................. 7
SECTION 7. Further Assurances............................................................................. 10
SECTION 8. Post-Closing Changes; Bailees; Collections on Assigned Agreements and Accounts................. 10
SECTION 9. As to Intellectual Property Collateral......................................................... 11
SECTION 10. Voting Rights; Dividends; Etc.................................................................. 12
SECTION 11. Transfers and Other Liens; Additional Shares................................................... 13
SECTION 12. Administrative Agent Appointed Attorney-in-Fact................................................ 14
SECTION 13. Administrative Agent May Perform............................................................... 14
SECTION 14. Administrative Agent's Duties.................................................................. 14
SECTION 15. Remedies....................................................................................... 15
SECTION 16. Indemnity and Expenses......................................................................... 16
SECTION 17. Amendments; Waivers; Additional Grantors; Etc.................................................. 16
SECTION 18. Notices, Etc................................................................................... 17
SECTION 19. Continuing Security Interest; Assignments under the Credit Agreement........................... 17
SECTION 20. Release; Termination........................................................................... 18
SECTION 21. Execution in Counterparts...................................................................... 18
SECTION 22. The Mortgages.................................................................................. 18
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SECTION 23. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc......................................... 19
SECTION 24. Severability................................................................................... 19
SCHEDULES:
Schedule I - Location, Chief Executive Office, Type Of Organization,
Jurisdiction Of Organization And Organizational Identification
Number
Schedule II - Intercompany Notes
Schedule III - Pledged Equity
Schedule IV - Intellectual Property
Schedule V - Commercial Tort Claims
Schedule VI - Collateral Description
EXHIBITS:
Exhibit A - Form of Security Agreement Supplement
Exhibit B - Form of Copyright Security Agreement
Exhibit C - Form of Patent Security Agreement
Exhibit D - Form of Trademark Security Agreement
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SECURITY AGREEMENT
SECURITY AGREEMENT dated May 27, 2004 made by UGS CORP. (to be
merged with and into UGS PLM SOLUTIONS INC., a Delaware corporation)(the
"Company"), UGS HOLDINGS, INC., a Delaware corporation ("Holdings"), the other
Persons listed on the signature pages hereof and the Additional Grantors (as
hereinafter defined) (the Company, Holdings, the Persons so listed and the
Additional Grantors being, collectively, the "Grantors"), to JPMORGAN CHASE
BANK, as administrative agent (in such capacity, together with any successor
administrative agent, the "Administrative Agent") for the Secured Parties (as
defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENTS
(1) The Company has entered into a Credit Agreement dated of even
date herewith (said Agreement, as it may hereafter be amended, amended and
restated, supplemented or otherwise modified from time to time, being the
"Credit Agreement") with Holdings, the other Borrowers party thereto and the
Lenders, the L/C Issuer, the Overdraft Loan Facility Lender and the Agents party
thereto.
(2) Pursuant to the Credit Agreement, the Grantors are entering into
this Agreement in order to grant to the Administrative Agent for the ratable
benefit of the Secured Parties a security interest in the Collateral (as
hereinafter defined) to secure their respective Secured Obligations (as
hereinafter defined).
(3) It is a condition precedent to the making of Loans and the
issuance of Letters of Credit by the Lenders under the Credit Agreement and the
entry into Secured Hedge Agreements by the Hedge Banks from time to time that
the Grantors shall have granted the assignment and security interest and made
the pledge and assignment contemplated by this Agreement.
(4) Each Grantor will derive substantial direct and indirect benefit
from the transactions contemplated by the Loan Documents and the Secured Hedge
Agreements (together with all instruments, agreements or other documents
evidencing the Cash Management Obligations, the "Finance Documents").
(5) Terms defined in the Credit Agreement and not otherwise defined
in this Agreement are used in this Agreement as defined in the Credit Agreement.
Further, unless otherwise defined in this Agreement or in the Credit Agreement,
terms defined in Article 8 or 9 of the UCC (as defined below) are used in this
Agreement as such terms are defined in such Article 8 or 9 (including Accounts,
Certificated Security, Chattel Paper, Commercial Tort Claims, Deposit Accounts,
Documents, Equipment, Farm Products, Financial Assets, Fixtures, General
Intangibles, Goods, Instruments, Inventory, Investment Property,
Letter-of-Credit Rights, Proceeds, Securities Accounts, Security, Supporting
Obligations and Uncertificated Security). "UCC" means the "Uniform Commercial
Code" as defined in the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Loans and participate in Letters of Credit, and the L/C
Issuer to issue Letters of Credit under the Credit Agreement and to induce the
Hedge Banks to enter into Secured Hedge
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Agreements from time to time, each Grantor hereby agrees with the Administrative
Agent for the ratable benefit of the Secured Parties as follows:
SECTION 1. Grant of Security. Each Grantor hereby grants to the
Administrative Agent, for the ratable benefit of the Secured Parties, a security
interest in such Grantor's right, title and interest in and to the following
property, in each case, as to each type of property described below, whether now
owned or hereafter acquired by such Grantor, wherever located, and whether now
or hereafter existing or arising (collectively, the "Collateral"):
(a) all Accounts;
(b) all cash and Cash Equivalents;
(c) all Chattel Paper;
(d) all Commercial Tort Claims (including, without limitation, the
Commercial Tort Claims set forth on Schedule V hereto);
(e) all Deposit Accounts;
(f) all Documents;
(g) all Equipment;
(h) all Farm Products;
(i) all Fixtures;
(j) all General Intangibles;
(k) all Goods;
(l) all Instruments;
(m) all Inventory;
(n) all Letter-of-Credit Rights;
(o) the following (the "Security Collateral"):
(i) all indebtedness evidenced by promissory notes or other
instruments from time to time owed to such Grantor (the "Pledged
Debt") including, without limitation, the instruments set forth on
Schedule II hereto, and all interest, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
Pledged Debt;
(ii) all Equity Interests from time to time acquired, owned or
held by such Grantor in any manner (the "Pledged Equity"),
including, without limitation,
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the Equity Interests held by each Grantor set forth opposite such
Grantor's name on and otherwise described on Schedule III, and the
certificates, if any, representing such additional shares or units
or other Equity Interests, and all dividends, distributions, return
of capital, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares or other Equity Interests and
all subscription warrants, rights or options issued thereon or with
respect thereto; provided that no Grantor shall be required to
pledge, and the terms "Pledged Equity" and "Security Collateral"
used in this Agreement shall not include, any (A) Equity Interests
which are direct assets owned by any Foreign Subsidiary or (B)
Equity Interests in any Foreign Subsidiary held of record by such
Grantor which, when aggregated with all of the other Equity
Interests in such Foreign Subsidiary pledged by the Grantors, would
result in more than 65% of the Equity Interests in such Foreign
Subsidiary entitled to vote (within the meaning of Treasury
Regulation Section 1.956 2(c)(2) promulgated under the Code) (the
"Voting Foreign Stock") being pledged to the Administrative Agent,
on behalf of the Secured Parties under this Agreement; provided
further that all of the shares of stock or units or other Equity
Interests in such Foreign Subsidiary not entitled to vote (within
the meaning of Treasury Regulation Section 1.956-2(c)(2) promulgated
under the Code) (the "Non-Voting Foreign Stock") shall be pledged by
such Grantor; provided further that nothing in this clause is
intended to modify the scope of Section 6.12 of the Credit Agreement
or other provisions of the Credit Agreement regarding the delivery
of collateral; and
(iii) all other Investment Property and all Financial Assets,
and all dividends, distributions, return of capital, interest, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange
therefor and all subscription warrants, rights or options issued
thereon or with respect thereto;
(p) all contracts and agreements between any Grantor and one or more
additional parties (including, without limitation, any Swap Contracts, licensing
agreements and any partnership agreements, joint venture agreements, limited
liability company agreements) and the IP Agreements (as hereinafter defined), in
each case as such agreements may be amended, amended and restated, supplemented
or otherwise modified from time to time (collectively, the "Assigned
Agreements"), including, without limitation, all rights of such Grantor to
receive moneys due and to become due under or pursuant to the Assigned
Agreements (all such Collateral being the "Agreement Collateral");
(q) the following (collectively, the "Intellectual Property
Collateral"):
(i) all patents, patent applications, and statutory invention
registrations, all inventions claimed or disclosed therein and all
improvements thereto ("Patents");
(ii) all trademarks, service marks, domain names, trade dress,
logos, designs, slogans, trade names, business names, corporate
names and other source
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identifiers, whether registered or unregistered, and all common-law
rights relating thereto (provided that the Administrative Agent
shall not exercise its rights under Section 15 with respect to any
United States intent-to-use trademark applications solely to the
extent that, and solely during the period in which, such actions
would impair the validity or enforceability of such intent-to-use
trademark applications under applicable federal law), together, in
each case, with the goodwill of the business symbolized thereby
("Trademarks");
(iii) all copyrights whether registered or unregistered
("Copyrights"), including, without limitation, copyrights in all
Computer Software (as hereinafter defined), internet web sites and
the content thereof;
(iv) all computer software, programs and databases (including,
without limitation, source code, object code and all related
applications and data files), firmware and documentation and
materials relating thereto, together with any and all maintenance
rights, service rights, programming rights, hosting rights, test
rights, improvement rights, renewal rights and indemnification
rights and any substitutions, replacements, improvements, error
corrections, updates and new versions of any of the foregoing
("Computer Software");
(v) all confidential and proprietary information, including,
without limitation, confidential and proprietary know-how, trade
secrets, manufacturing and production processes and techniques,
inventions, research and development information, databases and
data, including, without limitation, technical data, financial,
marketing and business data, pricing and cost information, business
and marketing plans and customer and supplier lists and information
(collectively, "Trade Secrets"), and all other intellectual,
industrial and intangible property of such type, including, without
limitation, industrial designs and mask works;
(vi) all registrations and applications for registration for
any of the foregoing, together with all reissues, divisions,
continuations, continuations-in-part, extensions, renewals and
reexaminations thereof;
(vii) all rights in the foregoing provided by international
treaties or conventions, all rights corresponding thereto throughout
the world and all other rights of any kind whatsoever of such
Grantor accruing thereunder or pertaining thereto;
(viii) all agreements, permits, consents, orders and
franchises relating to the license, ownership, development, use or
disclosure of any of the foregoing to which such Grantor, now or
hereafter, is a party or a beneficiary and all rights in any of the
foregoing ("IP Agreements"); and
(ix) any and all claims for damages and injunctive relief for
past, present and future infringement, dilution, misappropriation,
violation, misuse or breach with respect to any of the foregoing,
with the right, but not the obligation,
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to xxx for and collect, or otherwise recover, all proceeds and
damages relating thereto;
(r) all books and records (including, without limitation, customer
lists, credit files, printouts and other computer output materials and records)
of such Grantor pertaining to any of the Collateral;
(s) all other tangible and intangible personal property of whatever
nature whether or not covered by Article 9 of the UCC; and
(t) all Proceeds of, collateral for, income, royalties and other
payments now or hereafter due and payable with respect to, and Supporting
Obligations relating to, any and all of the Collateral and, to the extent not
otherwise included, all payments under insurance (whether or not the
Administrative Agent is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Collateral;
provided that notwithstanding anything to the contrary in this Agreement, this
Agreement shall not constitute a grant of a security interest in (A) motor
vehicles the perfection of a security interest in which is excluded from the UCC
in the relevant jurisdiction, (B) any Letter-of-Credit Rights to the extent any
Grantor is required by applicable law to apply the Proceeds of such
Letter-of-Credit Rights for a specified purpose or (C) any General Intangible,
Investment Property or other such rights of a Grantor arising under any
contract, lease, instrument, license or other document if (but only to the
extent that) the grant of a security interest therein would (x) constitute a
violation of a valid and enforceable restriction in respect of such General
Intangible, Investment Property or other such rights in favor of a third party
or under any law, regulation, permit, order or decree of any Governmental
Authority, unless and until all required consents shall have been obtained (for
the avoidance of doubt, the restrictions described herein are not negative
pledges or similar undertakings in favor of a lender or other financial
counterparty) or (y) expressly give any other party in respect of any such
contract, lease, instrument, license or other document, the right to terminate
its obligations thereunder; provided however, that the limitation set forth in
clause (C) above shall not affect, limit, restrict or impair the grant by a
Grantor of a security interest pursuant to this Agreement in any such Collateral
to the extent that an otherwise applicable prohibition or restriction on such
grant is rendered ineffective by any applicable law, including the UCC. Each
Grantor shall, if requested to do so by the Administrative Agent, use
commercially reasonable efforts to obtain any such required consent that is
reasonably obtainable with respect to Collateral which the Administrative Agent
reasonably determines to be material.
The Company agrees to grant a security interest over 65% of its Equity Interests
in any Australian Foreign Subsidiary (with the Equity Interests in the
Australian Foreign Subsidiary to be identified in the Australian security
instrument) on such terms as are agreed between the Company and the
Administrative Agent. For the avoidance of doubt and notwithstanding Section
1(ii), it is acknowledged by and between the Company and the Administrative
Agent that the provisions of this section and the other provisions of this
Agreement shall not create any security interest of any nature in the Equity
Interests in any Australian Foreign Subsidiary for so long as in the reasonable
determination of the Administrative Agent the creation of such security
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interest pursuant to this Agreement would result in adverse tax or duty
consequences under Australian law to the Company or the Restricted Subsidiaries
or any of the Secured Parties.
SECTION 2. Security for Obligations. This Agreement secures, in the
case of each Grantor, the payment of all Obligations of such Grantor now or
hereafter existing, whether direct or indirect, absolute or contingent, and
whether for principal, reimbursement obligations, interest, fees, premiums,
penalties, indemnifications, contract causes of action, costs, expenses or
otherwise (all such Obligations being the "Secured Obligations").
SECTION 3. Grantors Remain Liable. Anything herein to the contrary
notwithstanding, (a) each Grantor shall remain liable under the contracts and
agreements included in such Grantor's Collateral to the extent set forth therein
to perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (b) the exercise by the Administrative
Agent of any of the rights hereunder shall not release any Grantor from any of
its duties or obligations under the contracts and agreements included in the
Collateral and (c) no Secured Party shall have any obligation or liability under
the contracts and agreements included in the Collateral by reason of this
Agreement or any other Finance Document, nor shall any Secured Party be
obligated to perform any of the obligations or duties of any Grantor thereunder
or to take any action to collect or enforce any claim for payment assigned
hereunder.
SECTION 4. Delivery and Control of Security Collateral.
(a) All certificates representing or evidencing the Pledged Equity
and all instruments representing or evidencing the Pledged Debt shall be
delivered to and held by or on behalf of the Administrative Agent pursuant
hereto and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance reasonably satisfactory to the Administrative Agent.
During the continuation of an Event of Default and subject to Section 4(c), the
Administrative Agent shall have the right, at any time in its discretion and
without notice to any Grantor, to (i) transfer to or to register in the name of
the Administrative Agent or any of its nominees any or all of the Security
Collateral, subject only to the revocable rights specified in Section 10(a),
(ii) exchange certificates or instruments representing or evidencing Security
Collateral for certificates or instruments of smaller or larger denominations,
and (iii) convert Security Collateral consisting of Financial Assets credited to
any Securities Account to Security Collateral consisting of Financial Assets
held directly by the Administrative Agent, and to convert Security Collateral
consisting of Financial Assets held directly by the Administrative Agent to
Security Collateral consisting of Financial Assets credited to any Securities
Account.
(b) During the continuation of an Event of Default and subject to
Section 4(c), promptly upon the request of the Administrative Agent, with
respect to any Security Collateral in which any Grantor has any right, title or
interest and that constitutes an Uncertificated Security, such Grantor will
cause the issuer thereof either (i) to register the Administrative Agent as the
registered owner of such Security or (ii) to agree in an authenticated record
with such Grantor and the Administrative Agent that such issuer will comply with
instructions with respect to such Security Collateral originated by the
Administrative Agent without further consent of such Grantor, such authenticated
record to be in form and substance satisfactory to the Administrative
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Agent. During the continuation of an Event of Default and subject to Section
4(c), with respect to any Security Collateral in which any Grantor has any
right, title or interest and that is not an Uncertificated Security, promptly
upon the request of the Administrative Agent, such Grantor will notify each such
issuer of Pledged Equity that such Pledged Equity is subject to the security
interest granted hereunder.
(c) Nothing in Sections 4(a) or 4(b) shall be construed to require
any Grantor to enter into any control agreement with respect to any Deposit
Account or Securities Account.
SECTION 5. Maintaining Electronic Chattel Paper, Transferable
Records and Letter-of-Credit Rights and Giving Notice of Commercial Tort Claims.
So long as any Loan or any other Obligation of any Loan Party under any Loan
Document shall remain unpaid, any Letter of Credit shall be outstanding or any
Lender shall have any Commitment:
(a) During the continuation of an Event of Default, promptly upon
the request of the Administrative Agent, each Grantor will maintain (i) all
Electronic Chattel Paper so that the Administrative Agent has control of the
Electronic Chattel Paper in the manner specified in Section 9-105 of the UCC and
(ii) all transferable records so that the Administrative Agent has control of
the transferable records in the manner specified in Section 16 of the Uniform
Electronic Transactions Act, as in effect in the jurisdiction governing such
transferable record ("UETA"); and
(b) Each Grantor will give prompt notice to the Administrative Agent
of any Commercial Tort Claim individually in excess of $2,500,000 that may arise
in the future and will promptly execute or otherwise authenticate a supplement
to this Agreement, and otherwise take all necessary action, to subject such
Commercial Tort Claim to the first priority security interest created under this
Agreement.
SECTION 6. Representations and Warranties. Each Grantor represents
and warrants as follows:
(a) Such Grantor's exact legal name, as defined in Section 9-503(a)
of the UCC, is correctly set forth in Schedule I hereto. Such Grantor is located
(within the meaning of Section 9-307 of the UCC) and has its chief executive
office in the state or jurisdiction set forth in Schedule I hereto. The
information set forth in Schedule I hereto with respect to such Grantor is true
and accurate in all material respects.
(b) All Pledged Equity consisting of Certificated Securities has
been delivered to the Administrative Agent in accordance herewith; provided that
the Certificated Securities which are to be delivered to the Administrative
Agent within 30 days after the Closing Date, as specified in Schedule III
hereto, shall have been delivered within such time period or within such longer
period of time as the Administrative Agent may deem appropriate.
(c) Such Grantor is the legal and beneficial owner of the Collateral
of such Grantor free and clear of any Lien, claim, option or right of others,
except for the security interest created under this Agreement, subject to Liens
permitted under Section 7.01 of the Credit Agreement.
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(d) The Pledged Equity issued by the Company or any of its
Subsidiaries has been duly authorized and validly issued and is fully paid and
non assessable or the equivalent under applicable law.
(e) The Pledged Equity pledged by such Grantor constitutes the
percentage of the issued and outstanding Equity Interests of the issuers thereof
indicated on Schedule III hereto.
(f) Schedule IV lists all Intellectual Property owned by such
Grantor in its own name on the date hereof.
(g) On the Closing Date each Grantor has executed and delivered to
the Administrative Agent (i) an agreement, in substantially the form set forth
in Exhibit B hereto or otherwise in form and substance reasonably satisfactory
to the Administrative Agent (a "Copyright Security Agreement"), (ii) an
agreement, in substantially the form set forth in Exhibit C hereto or otherwise
in form and substance reasonably satisfactory to the Administrative Agent (a
"Patent Security Agreement") and (iii) an agreement, in substantially the form
set forth in Exhibit D hereto or otherwise in form and substance reasonably
satisfactory to the Administrative Agent (a "Trademark Security Agreement" and,
together with each Copyright Security Agreement and each Patent Security
Agreement, the "Intellectual Property Security Agreements"), in each case for
recording the security interest granted hereunder to the Administrative Agent in
such Intellectual Property Collateral with the U.S. Patent and Trademark Office
or the U.S. Copyright Office, as applicable.
(h) (i) This Agreement creates in favor of the Administrative Agent
for the benefit of the Secured Parties a valid security interest in all the
Collateral of each Grantor, securing the payment of the Secured Obligations of
such Grantor; (ii) upon the filing of a UCC financing statement in the UCC
filing office in the jurisdiction set forth in Schedule I under the heading
"Jurisdiction of Organization" with respect to such Grantor, naming such Grantor
as the debtor, the Administrative Agent as the secured party and including the
collateral description set forth in Schedule VI, all actions necessary to
perfect the security interest in the Collateral of such Grantor created under
this Agreement with respect to which a Lien may be perfected by filing pursuant
to the UCC, including without limitation unregistered Copyrights (all such
Collateral, "Filing Collateral") shall have been duly made or taken and be in
full force and effect, and the Lien created under this Agreement in such
Grantor's Filing Collateral shall be perfected; (iii) upon the timely
recordation of a Copyright Security Agreement naming such Grantor as the grantor
and the Administrative Agent as the secured party with the U.S. Copyright
Office, all actions necessary to perfect the security interest in the Collateral
of such Grantor consisting of the registered Copyrights described therein and
applicable IP Agreements with respect thereto ("Copyright Collateral") shall
have been duly made or taken and be in full force and effect, and the Lien
created under this Agreement in such Grantor's Copyright Collateral shall be
perfected; and (iv) to the extent the filing in subsection (ii) above is
insufficient for perfection, upon the timely recordation of a Patent Security
Agreement and Trademark Security Agreement naming such Grantor as the grantor
and the Administrative Agent as the secured party with the U.S. Patent and
Trademark Office, all actions necessary to perfect the security interest in the
Collateral of such Grantor consisting of the registered Patents and Trademarks
(and applications therefore) described therein and applicable IP Agreements with
respect thereto ("Patent
9
Collateral" and "Trademark Collateral," respectively) shall have been duly made
or taken and be in full force and effect, and the Lien created under this
Agreement in such Grantor's Patent Collateral and Trademark Collateral shall be
perfected.
(i) Except as could not reasonably be expected to have a Material
Adverse Effect:
(i) The operation of such Grantor's business as currently
conducted and as contemplated to be conducted and the use of the
Intellectual Property Collateral in connection therewith do not
conflict with, infringe, misappropriate, dilute, misuse or otherwise
violate the intellectual property rights of any third party.
(ii) The registered Intellectual Property Collateral (and
applications therefor) are subsisting and have not been adjudged
invalid or unenforceable in whole or part, and to such Grantor's
knowledge, is valid and enforceable. There are no uses of any item
of Intellectual Property Collateral by a Grantor or any Affiliate of
a Grantor that could be expected to lead to such item becoming
invalid or unenforceable (or in case of a trade secret, lose its
competitive value).
(iii) Such Grantor has made or performed all required filings,
recordings and other acts and has paid all required fees and taxes
to maintain and protect its interest in its registered Intellectual
Property Collateral (and applications therefor) in full force and
effect in the United States, and to protect and maintain its
interest therein including, without limitation, recordations of any
of its interests in the Patents and Trademarks with the U.S. Patent
and Trademark Office and recordation of any of its interests in the
Copyrights with the U.S. Copyright Office.
(iv) (A) None of the Trade Secrets of such Grantor has been
used, divulged, disclosed or appropriated to the detriment of such
Grantor for the benefit of any other Person other than such Grantor;
(B) no employee, independent contractor or agent of such Grantor has
misappropriated any trade secrets of such Grantor; and (C) no
employee, independent contractor or agent of such Grantor is in
default or breach of any term of any employment agreement,
non-disclosure agreement, assignment of inventions agreement or
similar agreement or contract relating in any way to the protection,
ownership, licensing, development, or use of such Grantor's
Intellectual Property Collateral.
(v) No Grantor or Intellectual Property Collateral is subject
to any outstanding consent, settlement, decree, order, injunction,
judgment or ruling restricting the use of any Intellectual Property
Collateral by such Grantor or any of its Affiliates or that would
impair the validity or enforceability of such Intellectual Property
Collateral.
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SECTION 7. Further Assurances.
(a) Each Grantor agrees that from time to time, at the expense of
such Grantor, such Grantor will promptly execute and deliver, or otherwise
authenticate, all further instruments and documents, and take all further action
that may be reasonably necessary or desirable, or that the Administrative Agent
may reasonably request, in order to perfect and protect any pledge or security
interest granted or purported to be granted by such Grantor hereunder or to
enable the Administrative Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral of such Grantor.
(b) Each Grantor hereby authorizes the Administrative Agent to file
one or more financing or continuation statements, and amendments thereto,
including, without limitation, one or more financing statements indicating that
such financing statements cover all assets or all personal property (or words of
similar effect) of such Grantor, in each case without the signature of such
Grantor, and regardless of whether any particular asset described in such
financing statements falls within the scope of the UCC or the granting clause of
this Agreement. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law. Each Grantor
ratifies its authorization for the Administrative Agent to have filed such
financing statements, continuation statements or amendments filed prior to the
date hereof.
(c) Notwithstanding anything to the contrary in this Agreement or
any other Collateral Document, this Agreement shall be subject to the provisions
of Section 6.12(d) of the Credit Agreement.
SECTION 8. Post-Closing Changes; Bailees; Collections on Assigned
Agreements and Accounts.
(a) No Grantor will change its name, type of organization,
jurisdiction of organization, organizational identification number (if any) or
location from those set forth in Schedule I hereto without first giving at least
5 days' (or such lesser period of time as the Administrative Agent may agree)
prior written notice to the Administrative Agent and taking all action
reasonably required by the Administrative Agent for the purpose of perfecting or
protecting the security interest granted by this Agreement.
(b) During the continuation of an Event of Default, if any
Collateral of any Grantor is at any time in the possession or control of a
warehouseman, bailee or agent the Company will promptly notify the
Administrative Agent and, upon the request of the Administrative Agent, such
Grantor will (i) notify such warehouseman, bailee or agent of the security
interest created hereunder and (ii) instruct such warehouseman, bailee or agent
to hold all such Collateral solely for the Administrative Agent's account
subject only to the Administrative Agent's instructions.
(c) Except as otherwise provided in this subsection (c), each
Grantor will continue to collect, at its own expense, all amounts due or to
become due such Grantor under the Accounts. In connection with such collections,
such Grantor may take (and, at the Administrative Agent's direction during the
continuation of an Event of Default, shall take) such
11
commercially reasonable actions as such Grantor (or the Administrative Agent)
may deem reasonably necessary or advisable to enforce collection thereof;
provided that the Administrative Agent shall have the right, at any time upon
the occurrence and during the continuance of an Event of Default and upon
written notice to such Grantor of its intention to do so, to notify the obligors
under any Accounts of the assignment of such Accounts to the Administrative
Agent and to direct such obligors to make payment of all amounts due or to
become due to such Grantor thereunder directly to the Administrative Agent and,
upon such notification and at the expense of such Grantor, to enforce collection
of any such Accounts, to adjust, settle or compromise the amount or payment
thereof, in the same manner and to the same extent as such Grantor might have
done, and to otherwise exercise all rights with respect to such Accounts,
including, without limitation, those set forth in Section 9-607 of the UCC.
After receipt by any Grantor of the notice from the Administrative Agent
referred to in the proviso to the preceding sentence, all amounts and Proceeds
(including, without limitation, instruments) received by such Grantor in respect
of the Accounts of such Grantor shall be received in trust for the benefit of
the Administrative Agent hereunder, shall be segregated from other funds of such
Grantor and shall be either ERROR! BOOKMARK NOT DEFINED. released to such
Grantor to the extent permitted under the terms of the Credit Agreement so long
as no Event of Default shall have occurred and be continuing or ERROR! BOOKMARK
NOT DEFINED. if any Event of Default shall have occurred and be continuing,
applied as provided in Section 8.03 of the Credit Agreement.
SECTION 9. As to Intellectual Property Collateral.
(a) Except to the extent failure to act could not reasonably be
expected to have a Material Adverse Effect, with respect to registration or
pending application of each item of its Intellectual Property Collateral for
which such Grantor has standing to do so, each Grantor agrees to take, at its
expense, all steps, including, without limitation, in the U.S. Patent and
Trademark Office, the U.S. Copyright Office and any other governmental authority
located in the United States, to (i) maintain the validity and enforceability of
any registered Intellectual Property Collateral (or applications therefor) and
maintain such Intellectual Property Collateral in full force and effect, and
(ii) pursue the registration and maintenance of each Patent, Trademark, or
Copyright registration or application, now or hereafter included in such
Intellectual Property Collateral of such Grantor, including, without limitation,
the payment of required fees and taxes, the filing of responses to office
actions issued by the U.S. Patent and Trademark Office, the U.S. Copyright
Office or other governmental authorities, the filing of applications for renewal
or extension, the filing of affidavits under Sections 8 and 15 of the U.S.
Trademark Act, the filing of divisional, continuation, continuation-in-part,
reissue and renewal applications or extensions, the payment of maintenance fees
and the participation in interference, reexamination, opposition, cancellation,
infringement and misappropriation proceedings.
(b) Except as could not be reasonably expected to have a Material
Adverse Effect, no Grantor shall do or permit any act or knowingly omit to do
any act whereby any of its Intellectual Property Collateral may lapse, be
terminated, or become invalid or unenforceable or placed in the public domain
(or in case of a trade secret, lose its competitive value).
(c) Except where failure to do so could not reasonably be expected
to cause a Material Adverse Effect, each Grantor shall take all steps to
preserve and protect each item of its Intellectual Property Collateral,
including, without limitation, maintaining the quality of any and
12
all products or services used or provided in connection with any of the
Trademarks, consistent with the quality of the products and services as of the
date hereof, and taking all steps necessary to ensure that all licensed users of
any of the Trademarks abide by the applicable license's terms with respect to
the standards of quality.
(d) Each Grantor agrees that, should it obtain an ownership or other
interest in any Intellectual Property Collateral after the Closing Date
("After-Acquired Intellectual Property") (i) the provisions of this Agreement
shall automatically apply thereto, and (ii) any such After-Acquired Intellectual
Property and, in the case of Trademarks, the goodwill symbolized thereby, shall
automatically become part of the Intellectual Property Collateral subject to the
terms and conditions of this Agreement with respect thereto.
(e) Once every fiscal quarter of the Company, with respect to issued
or registered Patents (or published applications therefor) or Trademarks (or
applications therefor), and once every month, with respect to registered
Copyrights, each Grantor shall sign and deliver to the Administrative Agent an
appropriate Intellectual Property Security Agreement with respect to all
applicable Intellectual Property owned or exclusively licensed by it as of the
last day of such period, to the extent that such Intellectual Property is not
covered by any previous Intellectual Property Security Agreement so signed and
delivered by it. In each case, it will promptly cooperate as reasonably
necessary to enable the Administrative Agent to make any necessary or reasonably
desirable recordations with the U.S. Copyright Office or the U.S. Patent and
Trademark Office, as appropriate.
(f) Nothing in this Agreement prevents any Grantor from
discontinuing the use or maintenance of any of its Intellectual Property
Collateral to the extent permitted by the Credit Agreement if such Grantor
determines in its reasonable business judgment that such discontinuance is
desirable in the conduct of its business.
SECTION 10. Voting Rights; Dividends; Etc.(a) So long as no Event of
Default shall have occurred and be continuing:
(i) Each Grantor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Security
Collateral of such Grantor or any part thereof for any purpose;
provided that such Grantor will not exercise or refrain from
exercising any such right if such action would have a material
adverse effect on the value of the Security Collateral or any part
thereof.
(ii) Each Grantor shall be entitled to receive and retain any
and all dividends, interest and other distributions paid in respect
of the Security Collateral of such Grantor if and to the extent that
the payment thereof is not otherwise prohibited by the terms of the
Loan Documents; provided that any and all non-cash dividends,
interest and other distributions paid or payable in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Security
Collateral, shall be, and shall be forthwith delivered to the
Administrative Agent to hold as, Security Collateral and shall, if
received by such Grantor, be received in trust for the benefit of
the Administrative Agent, be segregated from the other property or
funds of such
13
Grantor and be forthwith delivered to the Administrative Agent as
Security Collateral in the same form as so received (with any
necessary endorsement).
(iii) The Administrative Agent will execute and deliver (or
cause to be executed and delivered) to each Grantor all such proxies
and other instruments as such Grantor may reasonably request for the
purpose of enabling such Grantor to exercise the voting and other
rights that it is entitled to exercise pursuant to paragraph (i)
above and to receive the dividends or interest payments that it is
authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) All rights of each Grantor (x) to exercise or refrain from
exercising the voting and other consensual rights that it would
otherwise be entitled to exercise pursuant to Section 10(a)(i)
shall, upon notice to such Grantor by the Administrative Agent,
cease and (y) to receive the dividends, interest and other
distributions that it would otherwise be authorized to receive and
retain pursuant to Section 10(a)(ii) shall automatically cease, and
all such rights shall thereupon become vested in the Administrative
Agent, which shall thereupon have the sole right to exercise or
refrain from exercising such voting and other consensual rights and
to receive and hold as Security Collateral such dividends, interest
and other distributions.
(ii) All dividends, interest and other distributions that are
received by any Grantor contrary to the provisions of paragraph (i)
of this Section 10(b) shall be received in trust for the benefit of
the Administrative Agent, shall be segregated from other funds of
such Grantor and shall be forthwith paid over to the Administrative
Agent as Security Collateral in the same form as so received (with
any necessary endorsement).
SECTION 11. Transfers and Other Liens; Additional Shares.
(a) Each Grantor agrees that it will not (i) sell, license,
exchange, assign or otherwise transfer or dispose of, or grant any rights or
options with respect to, any of the Collateral, except to the extent permitted
under the Credit Agreement, or (ii) create or suffer to exist any Lien upon or
with respect to any of the Collateral of such Grantor except for the pledge,
assignment and security interest created under this Agreement and other Liens
permitted under the Credit Agreement.
(b) Each Grantor agrees that it will (i) cause each issuer of the
Pledged Equity pledged by such Grantor not to issue any Equity Interests or
other Securities in addition to or in substitution for the Pledged Equity issued
by such issuer, except to such Grantor (or for director's qualifying shares and
shares issued to foreign nationals to the extent required by applicable law),
and (ii) pledge promptly upon its acquisition thereof, any and all additional
Equity Interests or other Securities (subject to Section 1(o)(ii) with respect
to Voting Foreign Stock).
14
SECTION 12. Administrative Agent Appointed Attorney-in-Fact. Each
Grantor hereby irrevocably appoints the Administrative Agent such Grantor's
attorney in fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor or otherwise, from time to time, upon the occurrence
and during the continuance of an Event of Default, in the Administrative Agent's
discretion, to take any action and to execute any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Agreement, including, without limitation:
(a) to obtain and adjust insurance required to be paid to the
Administrative Agent,
(b) to ask for, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral,
(c) to receive, indorse and collect any drafts or other instruments,
documents and Chattel Paper, in connection with clause (a) or (b) above, and
(d) to file any claims or take any action or institute any
proceedings that the Administrative Agent may deem necessary or desirable for
the collection of any of the Collateral or otherwise to enforce compliance with
the terms and conditions of any Assigned Agreement or the rights of the
Administrative Agent with respect to any of the Collateral.
SECTION 13. Administrative Agent May Perform. If any Grantor fails
to perform any agreement contained herein, the Administrative Agent may, but
without any obligation to do so and without notice, itself perform, or cause
performance of, such agreement, and the reasonable out-of-pocket expenses of the
Administrative Agent incurred in connection therewith shall be payable by such
Grantor under Section 16.
SECTION 14. Administrative Agent's Duties. The powers conferred on
the Administrative Agent hereunder are solely to protect the Secured Parties'
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the safe custody of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or not any Secured Party has
or is deemed to have knowledge of such matters, or as to the taking of any
necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral. The Administrative Agent shall be deemed to have
exercised reasonable care in the custody and preservation of any Collateral in
its possession if such Collateral is accorded treatment substantially equal to
that which it accords its own property, and will not be liable or responsible
for any loss or damage to any Collateral, or for any diminution in the value
thereof, by reason of any act or omission of any sub-agent or bailee selected by
the Administrative Agent in good faith, except to the extent that such liability
arises from the Administrative Agent's gross negligence or willful misconduct.
15
SECTION 15. Remedies. If any Event of Default shall have occurred
and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party upon
default under the UCC (whether or not the UCC applies to the affected
Collateral) and also may: (i) require each Grantor to, and each Grantor hereby
agrees that it will at its expense and upon request of the Administrative Agent
forthwith, assemble all or part of the Collateral as directed by the
Administrative Agent and make it available to the Administrative Agent at a
place and time to be designated by the Administrative Agent that is reasonably
convenient to both parties; (ii) without notice except as specified below, sell
the Collateral or any part thereof in one or more parcels at public or private
sale, at any of the Administrative Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the Administrative
Agent may deem commercially reasonable; (iii) occupy any premises owned or, to
the extent lawful and permitted, leased by any of the Grantors where the
Collateral or any part thereof is assembled or located for a reasonable period
in order to effectuate its rights and remedies hereunder or under law, without
obligation to such Grantor in respect of such occupation; and (iv) exercise any
and all rights and remedies of any of the Grantors under or in connection with
the Collateral, or otherwise in respect of the Collateral, including, without
limitation, (a) any and all rights of such Grantor to demand or otherwise
require payment of any amount under, or performance of any provision of, the
Assigned Agreements, the Accounts and the other Collateral, (b)withdraw, or
cause or direct the withdrawal, of all funds with respect to the Deposit
Accounts and (c) exercise all other rights and remedies with respect to the
Assigned Agreements, the Accounts and the other Collateral, including, without
limitation, those set forth in Section 9-607 of the UCC. The Administrative
Agent shall give the applicable Grantors at least ten (10) Business Days'
written notice of the time and place of any public sale or the time after which
any private sale is to be made and each Grantor agrees that such notice shall
constitute reasonable notification. The Administrative Agent shall not be
obligated to make any sale of Collateral regardless of notice of sale having
been given. The Administrative Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was so
adjourned.
(b) All payments received by any Grantor under or in connection with
any Assigned Agreement or otherwise in respect of the Collateral shall be
received in trust for the benefit of the Administrative Agent, shall be
segregated from other funds of such Grantor and shall be forthwith paid over to
the Administrative Agent in the same form as so received (with any necessary
endorsement).
(c) The Administrative Agent may, without notice to any Grantor
except as required by law and at any time or from time to time, charge, set off
and otherwise apply all or any part of the Secured Obligations against any funds
held with respect to any Deposit Account.
(d) If the Administrative Agent shall determine to exercise its
right to sell all or any of the Security Collateral of any Grantor pursuant to
this Section 15, each Grantor agrees that, upon request of the Administrative
Agent, such Grantor will, at its own expense, do or
16
cause to be done all such other acts and things as may be necessary to make such
sale of such Security Collateral or any part thereof valid and binding and in
compliance with applicable law.
(e) The Administrative Agent is authorized, in connection with any
sale of the Security Collateral pursuant to this Section 15, to deliver or
otherwise disclose to any prospective purchaser of the Security Collateral: (i)
any registration statement or prospectus, and all supplements and amendments
thereto; (ii) any information and projections; and (iii) any other information
in its possession relating to such Security Collateral.
(f) Each Grantor acknowledges the impossibility of ascertaining the
amount of damages that would be suffered by the Secured Parties by reason of the
failure by such Grantor to perform any of the covenants contained in subsection
(d) above and, consequently, agrees that, if such Grantor shall fail to perform
any of such covenants, it will pay, as liquidated damages and not as a penalty,
an amount equal to the value of the Security Collateral upon demand by the
Administrative Agent of compliance with subsection (d) above.
SECTION 16. Indemnity and Expenses.
(a) Each Grantor agrees to indemnify, defend and save and hold
harmless each Secured Party and each of their Affiliates and their respective
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against, and shall pay on demand, any and all claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable fees
and expenses of counsel that may be incurred by or asserted or awarded against
any Indemnified Party, in each case arising out of or in connection with or
resulting from this Agreement (including, without limitation, enforcement of
this Agreement), except to the extent such claim, damage, loss, liability or
expense has resulted from such Indemnified Party's gross negligence or willful
misconduct.
(b) Each Grantor will upon demand pay to the Administrative Agent
the amount of any and all reasonable out-of-pocket expenses, including, without
limitation, the reasonable fees and expenses of its counsel and of any experts
and agents, that the Administrative Agent may incur in connection with (i) the
administration of this Agreement, or(ii) the custody, preservation, use or
operation of, or the sale of, collection from or other realization upon, any of
the Collateral of such Grantor.
(c) Each Grantor will upon demand pay to the Administrative Agent
the amount of any and all out-of-pocket expenses, including, without limitation,
the fees, disbursements and other charges of counsel in connection with (i) the
exercise or enforcement of any of the rights of the Administrative Agent or the
other Secured Parties hereunder or (ii) the failure by such Grantor to perform
or observe any of the provisions hereof.
SECTION 17. Amendments; Waivers; Additional Grantors; Etc.
(a) No amendment or waiver of any provision of this Agreement, and
no consent to any departure by any Grantor herefrom, shall in any event be
effective unless the same shall be in writing and signed by each Grantor to
which such amendment or waiver is to apply and the Administrative Agent (with
the consent of the requisite number of Lenders specified in the Credit
Agreement), and then such waiver or consent shall be effective only in the
17
specific instance and for the specific purpose for which given. No failure on
the part of the Administrative Agent or any other Secured Party to exercise, and
no delay in exercising any right hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right.
(b) Upon the execution and delivery, or authentication, by any
Person of a security agreement supplement in substantially the form of Exhibit A
hereto (each a "Security Agreement Supplement"), (i) such Person shall be
referred to as an "Additional Grantor" and shall be and become a Grantor
hereunder, and each reference in this Agreement and the other Loan Documents to
"Grantor" shall also mean and be a reference to such Additional Grantor, and
each reference in this Agreement and the other Loan Documents to "Collateral"
shall also mean and be a reference to the Collateral of such Additional Grantor,
and (ii) the supplemental schedules I through V attached to each Security
Agreement Supplement shall be incorporated into and become a part of and
supplement Schedules I through VI, respectively, hereto, and the Administrative
Agent may attach such supplemental schedules to such Schedules; and each
reference to such Schedules shall mean and be a reference to such Schedules as
supplemented pursuant to each Security Agreement Supplement.
SECTION 18. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic or telecopy
communication or facsimile transmission) and mailed, telegraphed, telecopied,
telexed, faxed or delivered to it, if to any Grantor, addressed to it in care of
the Company at the Company's address specified in Schedule 10.02 of the Credit
Agreement, if to the Administrative Agent, at its address specified in Schedule
10.02 of the Credit Agreement. All such notices and other communications shall
be deemed to be given or made at such time as shall be set forth in Section
10.02 of the Credit Agreement. Delivery by telecopier of an executed counterpart
of any amendment or waiver of any provision of this Agreement or of any Security
Agreement Supplement or Schedule hereto shall be effective as delivery of an
original executed counterpart thereof.
SECTION 19. Continuing Security Interest; Assignments under the
Credit Agreement. This Agreement shall create a continuing security interest in
the Collateral and shall (a) remain in full force and effect until the latest of
ERROR! BOOKMARK NOT DEFINED. the payment in full in cash of the Secured
Obligations other than Obligations with respect to Secured Hedge Agreements and
Cash Management Obligations not yet due and payable, ERROR! BOOKMARK NOT
DEFINED. the Maturity Date and ERROR! BOOKMARK NOT DEFINED. the cash
collateralization or back-stop (on terms satisfactory to the Administrative
Agent), termination or expiration of all Letters of Credit, (b) be binding upon
each Grantor, its successors and assigns and (c) inure, together with the rights
and remedies of the Administrative Agent hereunder, to the benefit of the
Secured Parties and their permitted respective successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any Lender
may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitments, the Loans owing to it and the Note or Notes, if
any, held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such Lender
herein or otherwise, in each case as provided in Section 10.07 of the Credit
Agreement.
18
SECTION 20. Release; Termination.
(a) Upon any sale, lease, transfer or other disposition of any item
of Collateral of any Grantor permitted by, and in accordance with, the terms of
the Loan Documents to any Person other than Holdings, the Company or any
Domestic Subsidiary that is a Restricted Subsidiary or upon the effectiveness of
any consent to the release of the security interest granted hereby in any
Collateral pursuant to Section 9.11 of the Credit Agreement, the Lien created
under this Agreement on such Collateral (but not on any Proceeds thereof) shall
automatically terminate. Upon the release of any Grantor from its Guaranty, if
any, in accordance with the terms of the Loan Documents, the Lien created under
this Agreement on the Collateral of such Grantor shall automatically terminate
and such Grantor shall automatically be released from its obligations hereunder.
The Administrative Agent will, at such Grantor's expense, execute and deliver to
such Grantor such documents as such Grantor shall reasonably request to evidence
any release of the Lien created under this Agreement on any Collateral pursuant
to this Section 20(a); provided that such Grantor shall have delivered to the
Administrative Agent a written request therefor describing the item of
Collateral and the terms of the sale, lease, transfer or other disposition in
reasonable detail, and a certificate of such Grantor to the effect that the
transaction is in compliance with the Loan Documents and as to such other
matters as the Administrative Agent may request. The Administrative Agent shall
be authorized to rely on any such certificate without independent investigation.
(b) Upon the latest of (i) the payment in full in cash of the
Secured Obligations other than Obligations with respect to Secured Hedge
Agreements and Cash Management Obligations not yet due and payable and
contingent indemnification obligations not yet accrued and payable, (ii) the
Maturity Date and (iii) the cash collateralization or back-stop (on terms
reasonably satisfactory to the Administrative Agent), termination or expiration
of all Letters of Credit, the Lien on all Collateral created under this
Agreement shall terminate and all rights to the Collateral shall revert to the
applicable Grantor. Upon any such termination, the Administrative Agent will, at
the applicable Grantor's expense, execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such termination.
SECTION 21. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
SECTION 22. The Mortgages. In the event that any of the Collateral
hereunder is also subject to a valid and enforceable Lien under the terms of any
Mortgage and the terms of such Mortgage are inconsistent with the terms of this
Agreement, then with respect to such Collateral, the terms of such Mortgage
shall be controlling in the case of Fixtures and real estate leases, letting and
licenses of, and contracts and agreements relating to the lease of, real
property, and the terms of this Agreement shall be controlling in the case of
all other Collateral.
19
SECTION 23. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH GRANTOR
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH GRANTOR IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO.
(c) EACH GRANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.
SECTION 24. Severability. If any provision of any Loan Document is
invalid or unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (i) the other provisions of the Loan Documents shall remain in
full force and effect in such jurisdiction and shall be liberally construed in
favor of the Administrative Agent and the Secured Parties in order to carry out
the intentions of the parties thereto as nearly as may be possible and (ii) the
invalidity or unenforceability of such provision in such jurisdiction shall not
affect the validity or enforceability thereof in any other jurisdiction.
[Signature Pages to Follow]
IN WITNESS WHEREOF, each Grantor has caused this Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
UGS CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
Address for Notices:
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
UGS HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
Address for Notices:
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
UGS PLM SOLUTIONS INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
Address for Notices:
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
UGS PLM ASIA/PACIFIC INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
Address for Notices:
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
UGS EUROPEAN HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
Address for Notices:
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
UGS JAPANESE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
Address for Notices:
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
EXHIBIT A TO THE
SECURITY AGREEMENT
FORM OF SECURITY AGREEMENT SUPPLEMENT
[Date of Security Agreement Supplement]
JPMorgan Chase Bank,
as the Administrative Agent for the
Secured Parties referred to in the
Credit Agreement referred to below
___________________________
___________________________
Attn: _____________________
UGS CORP.
Ladies and Gentlemen:
Reference is made to (i) the Credit Agreement dated as of May 27,
2004 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among UGS Corp., a Delaware corporation,
as a Borrower, the Overseas Borrowers from time to time party thereto, UGS
Holdings, Inc., a Delaware corporation ("Holdings"), the Lenders party thereto,
JPMorgan Chase Bank, as the L/C Issuer, the Swing Line Lender and the
Administrative Agent (together with any successor administrative agent, the
"Administrative Agent"), and the other Agents named therein, and (ii) the
Security Agreement dated as of May 27, 2004 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Security Agreement")
made by the Grantors from time to time party thereto in favor of the
Administrative Agent for the Secured Parties. Terms defined in the Credit
Agreement or the Security Agreement and not otherwise defined herein are used
herein as defined in the Credit Agreement or the Security Agreement.
Section 1. Grant of Security. The undersigned hereby grants to the
Administrative Agent, for the ratable benefit of the Secured Parties, a security
interest in, all of its right, title and interest in and to all of the
Collateral of the undersigned, whether now owned or hereafter acquired by the
undersigned, wherever located and whether now or hereafter existing or arising,
including, without limitation, the property and assets of the undersigned set
forth on the attached supplemental schedules to the Schedules to the Security
Agreement.
Section 2. Security for Obligations. The grant of a security
interest in the Collateral by the undersigned under this Security Agreement
Supplement and the Security Agreement secures the payment of all Obligations of
the undersigned now or hereafter existing under or in respect of the Finance
Documents, whether direct or indirect, absolute or contingent,
2
and whether for principal, reimbursement obligations, interest, premiums,
penalties, fees, indemnifications, contract causes of action, costs, expenses or
otherwise.
Section 3. Supplements to Security Agreement Schedules. The
undersigned has attached hereto supplemental Schedules I through VI to Schedules
I through VI, respectively, to the Security Agreement, and the undersigned
hereby certifies, as of the date first above written, that such supplemental
schedules have been prepared by the undersigned in substantially the form of the
equivalent Schedules to the Security Agreement and are complete and correct in
all material respects.
Section 4. Representations and Warranties. The undersigned hereby
makes each representation and warranty set forth in Section 6 of the Security
Agreement (as supplemented by the attached supplemental schedules) as of the
date hereof.
Section 5. Obligations Under the Security Agreement. The undersigned
hereby agrees, as of the date first above written, to be bound as a Grantor by
all of the terms and provisions of the Security Agreement to the same extent as
each of the other Grantors. The undersigned further agrees, as of the date first
above written, that each reference in the Security Agreement to an "Additional
Grantor" or a "Grantor" shall also mean and be a reference to the undersigned.
Section 6. Governing Law. This Security Agreement Supplement shall
be governed by, and construed in accordance with, the laws of the State of New
York.
Very truly yours,
[NAME OF ADDITIONAL GRANTOR]
By: _______________________________________
Title:
Address for Notices:
_________________________________
_________________________________
_________________________________
EXHIBIT B TO THE
SECURITY AGREEMENT
FORM OF COPYRIGHT SECURITY AGREEMENT
This Copyright Security Agreement (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Copyright Security
Agreement") dated _________, 20__ is made by the Persons listed on the signature
pages hereof (collectively, the "Grantors") in favor of JPMorgan Chase Bank, as
administrative agent (the "Administrative Agent") for the Secured Parties (as
defined in the Credit Agreement referred to below).
WHEREAS, UGS Corp., a Delaware corporation (to be merged with and
into UGS PLM Solutions Inc.), has entered into a Credit Agreement dated as of
May 27, 2004 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") with UGS Holdings, Inc., a
Delaware corporation ("Holdings"), JPMorgan Chase Bank, as the L/C Issuer, the
Swing Line Lender and the Administrative Agent, the other Agents named therein
and the Lenders (including the Overdraft Loan Facility Lender) party thereto.
WHEREAS, as a condition precedent to the making of the Loans and the
issuance of Letters of Credit by the Lenders under the Credit Agreement and
entry into Secured Hedge Agreements by the Hedge Banks from time to time, each
Grantor has executed and delivered that certain Security Agreement dated as of
May 27, 2004 made by the Grantors to the Administrative Agent (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"Security Agreement"). Terms defined in the Security Agreement and not otherwise
defined herein are used herein as defined in the Security Agreement.
WHEREAS, under the terms of the Security Agreement, the Grantors
have granted to the Administrative Agent, for the ratable benefit of the Secured
Parties, a security interest in, among other property, certain Copyrights of the
Grantors, and have agreed as a condition thereof to execute this Copyright
Security Agreement for recording with the U.S. Copyright Office and any other
appropriate governmental authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Grantor agrees as follows:
Section 1. Grant of Security. Each Grantor hereby grants to the
Administrative Agent for the ratable benefit of the Secured Parties a continuing
security interest in all of such Grantor's right, title and interest in and to
the following (all of the following items or types of property being herein
collectively referred to as the "Copyright Collateral"), whether now owned or
existing or hereafter acquired or arising:
(i) each Copyright owned by the Grantor, including, without
limitation, each Copyright registration and application therefor, referred
to in Schedule 1 hereto;
(ii) each exclusive Copyright license to which the Grantor is a
party, including, without limitation, each Copyright license referred to
in Schedule 1 hereto;
2
(iii) all registrations and applications for registration for any of
the foregoing;
(iv) all rights in the foregoing provided by international treaties
or conventions, all rights corresponding thereto throughout the world and
all other rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto; and
(v) any and all Proceeds of, collateral for, income, royalties and
other payments now or hereafter due and payable with respect to, and
Supporting Obligations relating to, any and all of the foregoing,
including, without limitation, all Proceeds of and revenues from any and
all claims for damages and injunctive relief for past, present and future
infringement, dilution, misappropriation, violation, misuse or breach with
respect to any of the foregoing, with the right, but not the obligation,
to xxx for and collect, or otherwise recover, all proceeds and damages
relating thereto.
Section 2. No Transfer of Grantor's Rights. Except to the extent
expressly permitted in the Credit Agreement, each Grantor agrees not to sell,
license, exchange, assign, or otherwise transfer or dispose of, or grant any
rights with respect to, or mortgage or otherwise encumber, any of the Copyright
Collateral.
Section 3. Security for Obligations. The grant of continuing
security interest in the Copyright Collateral by each Grantor under this
Copyright Security Agreement secures the payment of all Obligations of such
Grantor, now or hereafter existing under or in respect of the Finance Documents,
whether direct or indirect, absolute or contingent, and whether for principal,
reimbursement obligations, interest, premiums, penalties, fees,
indemnifications, contract causes of action, costs, expenses or otherwise.
Section 4. Recordation. Each Grantor authorizes and requests that
the Register of Copyrights and any other applicable government officer record
this Copyright Security Agreement.
Section 5. Execution in Counterparts. This Copyright Security
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 6. Grants, Rights and Remedies. This Copyright Security
Agreement has been executed and delivered by the Grantors for the purpose of
recording the grant of security interest herein with the U.S. Copyright Office.
The security interest granted hereby has been granted to the Administrative
Agent in connection with the Security Agreement and is expressly subject to the
terms and conditions thereof and does not modify its terms or conditions or
create any additional rights or obligations for any party thereto or hereto. The
Security Agreement (and all rights and remedies of the Administrative Agent
thereunder) shall remain in full force and effect in accordance with its terms.
Section 7. Governing Law. This Copyright Security Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
3
IN WITNESS WHEREOF, each Grantor has caused this Copyright Security
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
UGS CORP.
By: _______________________________________
Title:
Address for Notices:
___________________________________________
___________________________________________
UGS HOLDINGS, INC.
By: _______________________________________
Title:
Address for Notices:
___________________________________________
___________________________________________
[OTHER GRANTORS]
SCHEDULE 1
TO COPYRIGHT
SECURITY AGREEMENT
COPYRIGHTS
EXHIBIT C TO THE
SECURITY AGREEMENT
FORM OF PATENT SECURITY AGREEMENT
This Patent Security Agreement (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Patent Security
Agreement") dated __________, 20__ is made by the Persons listed on the
signature pages hereof (collectively, the "Grantors") in favor of JPMorgan Chase
Bank, as administrative agent (the "Administrative Agent") for the Secured
Parties (as defined in the Credit Agreement referred to below).
WHEREAS, UGS Corp., a Delaware corporation (to be merged with and
into UGS PLM Solutions Inc.), has entered into a Credit Agreement dated as of
May 27, 2004 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") with UGS Holdings, Inc., a
Delaware corporation ("Holdings"), JPMorgan Chase Bank, as the L/C Issuer, the
Swing Line Lender and the Administrative Agent, the other Agents named therein
and the Lenders (including the Overdraft Loan Facility Lender) party thereto.
WHEREAS, as a condition precedent to the making of the Loans and the
issuance of Letters of Credit by the Lenders under the Credit Agreement and
entry into Secured Hedge Agreements by the Hedge Banks from time to time, each
Grantor has executed and delivered that certain Security Agreement dated as of
May 27, 2004 made by the Grantors to the Administrative Agent (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"Security Agreement"). Terms defined in the Security Agreement and not otherwise
defined herein are used herein as defined in the Security Agreement.
WHEREAS, under the terms of the Security Agreement, the Grantors
have granted to the Administrative Agent, for the ratable benefit of the Secured
Parties, a security interest in, among other property, certain Patents of the
Grantors, and have agreed as a condition thereof to execute this Patent Security
Agreement for recording with the U.S. Patent and Trademark Office and any other
appropriate governmental authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Grantor agrees as follows:
Section 1. Grant of Security. Each Grantor hereby grants to the
Administrative Agent for the ratable benefit of the Secured Parties a continuing
security interest in all of such Grantor's right, title and interest in and to
the following (all of the following items or types of property being herein
collectively referred to as the "Patent Collateral"), whether now owned or
existing or hereafter acquired or arising:
(i) each Patent owned by the Grantor, including, without limitation,
each Patent referred to in Schedule 1 hereto;
(ii) each Patent license to which the Grantor is a party, including,
without limitation, each Patent license referred to in Schedule 2 hereto;
2
(iii) all issuances and applications for registration for any of
the foregoing, together with all reissues, divisions, continuations,
continuations-in-part, extensions and reexaminations thereof;
(iv) all rights in the foregoing provided by international
treaties or conventions, all rights corresponding thereto throughout the
world and all other rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto; and
(v) any and all Proceeds of, collateral for, income, royalties
and other payments now or hereafter due and payable with respect to, and
Supporting Obligations relating to, any and all of the foregoing,
including, without limitation, all Proceeds of and revenues from any and
all claims for damages and injunctive relief for past, present and future
infringement, dilution, misappropriation, violation, misuse or breach with
respect to any of the foregoing, with the right, but not the obligation,
to xxx for and collect, or otherwise recover, all proceeds and damages
relating thereto.
Section 2. No Transfer of Grantor's Rights. Except to the extent
expressly permitted in the Credit Agreement, each Grantor agrees not to sell,
license, exchange, assign, or otherwise transfer or dispose of, or grant any
rights with respect to, or mortgage or otherwise encumber, any of the Patent
Collateral.
Section 3. Security for Obligations. The grant of continuing
security interest in the Patent Collateral by each Grantor under this Patent
Security Agreement secures the payment of all Obligations of such Grantor, now
or hereafter existing under or in respect of the Finance Documents, whether
direct or indirect, absolute or contingent, and whether for principal,
reimbursement obligations, interest, premiums, penalties, fees,
indemnifications, contract causes of action, costs, expenses or otherwise.
Section 4. Recordation. Each Grantor authorizes and requests that
the Commissioner for Patents and any other applicable government officer record
this Patent Security Agreement.
Section 5. Execution in Counterparts. This Patent Security Agreement
may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 6. Grants, Rights and Remedies. This Patent Security
Agreement has been executed and delivered by the Grantors for the purpose of
recording the grant of security interest herein with the U.S. Patent and
Trademark Office. The security interest granted hereby has been granted to the
Administrative Agent in connection with the Security Agreement and is expressly
subject to the terms and conditions thereof and does not modify its terms or
conditions or create any additional rights or obligations for any party thereto
or hereto. The Security Agreement (and all rights and remedies of the
Administrative Agent thereunder) shall remain in full force and effect in
accordance with its terms.
Section 7. Governing Law. This Patent Security Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
3
IN WITNESS WHEREOF, each Grantor has caused this Patent Security
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
UGS CORP.
By: _______________________________________
Title:
Address for Notices:
___________________________________________
___________________________________________
UGS HOLDINGS, INC.
By: _______________________________________
Title:
Address for Notices:
___________________________________________
___________________________________________
___________________________________________
[OTHER GRANTORS]
SCHEDULE 1
TO PATENT
SECURITY AGREEMENT
[NAME OF GRANTOR]
PATENTS AND DESIGN PATENTS
PATENT NO. ISSUED EXPIRATION COUNTRY TITLE
---------- ------ ---------- ------- -----
PATENT APPLICATIONS
CASE NO. SERIAL NO. COUNTRY DATE FILING TITLE
-------- ---------- ------- ---- ------------
SCHEDULE 2
TO PATENT
SECURITY AGREEMENT
PATENT LICENSES
NAME OF PARTIES DATE OF SUBJECT
AGREEMENT LICENSOR/LICENSEE AGREEMENT MATTER
--------- ----------------- --------- ------
EXHIBIT D TO THE
SECURITY AGREEMENT
FORM OF TRADEMARK SECURITY AGREEMENT
This Trademark Security Agreement (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Trademark Security
Agreement") dated ___________, 20__ is made by the Persons listed on the
signature pages hereof (collectively, the "Grantors") in favor of JPMorgan Chase
Bank, as administrative agent (the "Administrative Agent") for the Secured
Parties (as defined in the Credit Agreement referred to below).
WHEREAS, UGS Corp., a Delaware corporation (to be merged with and
into UGS PLM Solutions Inc.), has entered into a Credit Agreement dated as of
May 27, 2004 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") with UGS Holdings, Inc., a
Delaware corporation ("Holdings"), JPMorgan Chase Bank, as the L/C Issuer, the
Swing Line Lender and the Administrative Agent, the other Agents named therein
and the Lenders (including the Overdraft Loan Facility Lender) party thereto.
WHEREAS, as a condition precedent to the making of the Loans and the
issuance of Letters of Credit by the Lenders under the Credit Agreement and
entry into Secured Hedge Agreements by the Hedge Banks from time to time, each
Grantor has executed and delivered that certain Security Agreement dated as of
May 27, 2004 made by the Grantors to the Administrative Agent (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"Security Agreement"). Terms defined in the Security Agreement and not otherwise
defined herein are used herein as defined in the Security Agreement.
WHEREAS, under the terms of the Security Agreement, the Grantors
have granted to the Administrative Agent, for the ratable benefit of the Secured
Parties, a security interest in, among other property, certain Trademarks of the
Grantors, and have agreed as a condition thereof to execute this Trademark
Security Agreement for recording with the U.S. Patent and Trademark Office and
any other appropriate governmental authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Grantor agrees as follows:
Section 1. Grant of Security. Each Grantor hereby grants to the
Administrative Agent for the ratable benefit of the Secured Parties a continuing
security interest in all of such Grantor's right, title and interest in and to
the following (all of the following items or types of property being herein
collectively referred to as the "Trademark Collateral"), whether now owned or
existing or hereafter acquired or arising:
(i) each Trademark owned by the Grantor (including, without
limitation, each Trademark registration and application therefore,
referred to in Schedule 1 hereto,
2
and all of the goodwill of the business connected with the use of or
symbolized by, each Trademark);
(ii) each Trademark license to which the Grantor is a party,
including, without limitation, each Trademark license referred to in
Schedule 2 hereto, and all of the goodwill of the business connected with
the use of, or symbolized by, each Trademark licensed pursuant thereto;
(iii) all registrations and applications for registration for
any of the foregoing, together with all renewals thereof;
(iv) all rights in the foregoing provided by international
treaties or conventions, all rights corresponding thereto throughout the
world and all other rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto; and
(v) any and all Proceeds of, collateral for, income, royalties
and other payments now or hereafter due and payable with respect to, and
Supporting Obligations relating to, any and all of the foregoing,
including, without limitation, all Proceeds of and revenues from any and
all claims for damages and injunctive relief for past, present and future
infringement, dilution, misappropriation, violation, misuse or breach with
respect to any of the foregoing, with the right, but not the obligation,
to xxx for and collect, or otherwise recover, all proceeds and damages
relating thereto.
Section 2. No Transfer of Grantor's Rights. Except to the extent
expressly permitted in the Credit Agreement, each Grantor agrees not to sell,
license, exchange, assign, or otherwise transfer or dispose of, or grant any
rights with respect to, or mortgage or otherwise encumber, any of the Trademark
Collateral.
Section 3. Security for Obligations. The grant of continuing
security interest in the Trademark Collateral by each Grantor under this
Trademark Security Agreement secures the payment of all Obligations of such
Grantor, now or hereafter existing under or in respect of the Finance Documents,
whether direct or indirect, absolute or contingent, and whether for principal,
reimbursement obligations, interest, premiums, penalties, fees,
indemnifications, contract causes of action, costs, expenses or otherwise.
Section 4. Recordation. Each Grantor authorizes and requests that
the Commissioner for Trademarks and any other applicable government officer
record this Trademark Security Agreement.
Section 5. Execution in Counterparts. This Trademark Security
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 6. Grants, Rights and Remedies. This Trademark Security
Agreement has been executed and delivered by the Grantors for the purpose of
recording the grant of security interest herein with the U.S. Patent and
Trademark Office. The security interest granted hereby has been granted to the
Administrative Agent in connection with the Security Agreement and is expressly
subject to the terms and conditions thereof and does not modify its terms or
3
conditions or create any additional rights or obligations for any party thereto
or hereto. The Security Agreement (and all rights and remedies of the
Administrative Agent thereunder) shall remain in full force and effect in
accordance with its terms.
Section 7. Governing Law. This Trademark Security Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, each Grantor has caused this Trademark Security
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
UGS CORP.
By: _______________________________________
Title:
Address for Notices:
___________________________________________
___________________________________________
UGS HOLDINGS, INC.
By: _______________________________________
Title:
Address for Notices:
___________________________________________
___________________________________________
[OTHER GRANTORS]
SCHEDULE 1
TO TRADEMARK
SECURITY AGREEMENT
U.S. TRADEMARK REGISTRATIONS
TRADEMARK REG. NO. REG. DATE
--------- -------- ---------
U.S. TRADEMARK APPLICATIONS
TRADEMARK REG. NO. REG. DATE
--------- -------- ---------
SCHEDULE 2
TO TRADEMARK
SECURITY AGREEMENT
TRADEMARK LICENSES
NAME OF PARTIES DATE OF SUBJECT
AGREEMENT LICENSOR/LICENSEE AGREEMENT MATTER
--------- ----------------- --------- -------
