(c) “Agent” has the meaning specified therefor in the preamble to this Agreement.(d) “Agent’s Lien” has the meaning specified therefor in the Credit Agreement.(e) “Agreement” has the meaning specified therefor in the preamble to this Agreement.(f) “Bank Product Obligations” has the meaning specified therefor in the CreditAgreement.(g) “Bank Product Provider” has the meaning specified therefor in the CreditAgreement.(h) “Books” means books and records (including each Grantor’s Records indicating,summarizing, or evidencing such Grantor’s assets (including the Collateral) or liabilities, eachGrantor’s Records relating to such Grantor’s business operations or financial condition, and eachGrantor’s goods or General Intangibles related to such information).(i) “Borrower” has the meaning specified therefor in the recitals to this Agreement.(j) “Cash Equivalents” has the meaning specified therefor in the Credit Agreement.(k) “Chattel Paper” means chattel paper (as that term is defined in the Code), andincludes tangible chattel paper and electronic chattel paper.(l) “Code” means the California Uniform Commercial Code, as in effect from time totime; provided, however, that in the event that, by reason of mandatory provisionsof law, any or all of the attachment, perfection, priority, or remedies with respect to Agent’sLien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in ajurisdiction other than the State of California, the term “Code” shall mean the UniformCommercial Code as enacted and in effect in such other jurisdiction solely for purposes of theprovisions thereof relating to such attachment, perfection, priority, or remedies.(m) “Collateral” has the meaning specified therefor in Section 2.(n) “Collections” has the meaning specified therefor in the Credit Agreement.(o) “Commercial Tort Claims” means commercial tort claims (as that term is defined inthe Code), and includes those commercial tort claims listed on Schedule 1.(p) “Controlled Account” has the meaning specified therefor in Section 6(k).(q) “Controlled Account Agreements” means those certain cash management agreements, inform and substance reasonably satisfactory to Agent, each of which is executed and delivered by aGrantor, Agent, and one of the Controlled Account Banks.(r) “Controlled Account Bank” has the meaning specified therefor in Section6(k).(s) “Copyrights” means any and all rights in any works of authorship, including (i)copyrights and moral rights, (ii) copyright registrations and recordings thereof and allapplications in connection therewith including those listed on Schedule 2, (iii) income,license fees, royalties, damages, and payments now and hereafter due or payable under and withrespect thereto, including payments under all licenses entered into in connection therewith anddamages and payments for past, present, or future infringements thereof, (iv) the right to sue forpast, present, and future infringements thereof, and (v) all of each Grantor’s rightscorresponding thereto throughout the world.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(t) “Copyright Security Agreement” means each Copyright Security Agreement executedand delivered by Grantors, or any of them, and Agent, in substantially the form of ExhibitA.(u) “Credit Agreement” has the meaning specified therefor in the recitals to thisAgreement.(v) “Deposit Account” means a deposit account (as that term is defined in the Code).(w) “Equipment” means equipment (as that term is defined in the Code).(x) “Event of Default” has the meaning specified therefor in the Credit Agreement.(y) “Fixtures” means fixtures (as that term is defined in the Code).(z) “General Intangibles” means general intangibles (as that term is defined in theCode), and includes payment intangibles, contract rights, rights to payment, rights under HedgeAgreements (including the right to receive payment on account of the termination (voluntarily orinvoluntarily) of any such Hedge Agreements), rights arising under common law, statutes, orregulations, choses or things in action, goodwill, Intellectual Property, Intellectual PropertyLicenses, purchase orders, customer lists, monies due or recoverable from pension funds, routelists, rights to payment and other rights under any royalty or licensing agreements, includingIntellectual Property Licenses, infringement claims, pension plan refunds, pension plan refundclaims, insurance premium rebates, tax refunds, and tax refund claims, interests in a partnershipor limited liability company which do not constitute a security under Article 8 of the Code, andany other personal property other than Commercial Tort Claims, money, Accounts, Chattel Paper,Deposit Accounts, goods, Investment Related Property, Negotiable Collateral, and oil, gas, or otherminerals before extraction.(aa) “Grantor” and “Grantors” have the respective meanings specified thereforin the preamble to this Agreement.(bb) “Guaranty” has the meaning specified therefor in the Credit Agreement.(cc) “Insolvency Proceeding” has the meaning specified therefor in the CreditAgreement.(dd) “Intellectual Property” means any and all Patents, Copyrights, Trademarks, tradesecrets, know-how, inventions (whether or not patentable), algorithms, software programs (includingsource code and object code), processes, product designs, industrial designs, blueprints, drawings,data, customer lists, URLs and domain names, specifications, documentations, reports, catalogs,literature, and any other forms of technology or proprietary information of any kind, including allrights therein and all applications for registration or registrations thereof.(ee) “Intellectual Property Licenses” means, with respect to any Person (the“Specified Party”), (i) any licenses or other similar rights provided to the SpecifiedParty in or with respect to Intellectual Property owned or controlled by any other Person, and (ii)any licenses or other similar rights provided to any other Person in or with respect toIntellectual Property owned or controlled by the Specified Party, in each case, including (A) anysoftware license agreements (other than license agreements for commercially available off-the-shelfsoftware that is generally available to the public which have been licensed to a Grantor pursuantto end-user licenses), (B) the license agreements listed on Schedule 3, and (C) the rightto use any of the licenses or other similar rights described in this definition in connection withthe enforcement of the Lender Group’s rights under the Loan Documents.(ff) “Inventory” means inventory (as that term is defined in the Code).Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(gg) “Investment Related Property” means (i) any and all investment property (as thatterm is defined in the Code), and (ii) any and all of the following (regardless of whetherclassified as investment property under the Code): all Pledged Interests, Pledged OperatingAgreements, and Pledged Partnership Agreements.(hh) “Joinder” means each Joinder to this Agreement executed and delivered by Agentand each of the other parties listed on the signature pages thereto, in substantially the form ofAnnex 1.(ii) “Lender Group” has the meaning specified therefor in the Credit Agreement.(jj) “Lender” and “Lenders” have the respective meanings specified therefor inthe recitals to this Agreement.(kk) “Loan Document” has the meaning specified therefor in the Credit Agreement.(ll) “Negotiable Collateral” means letters of credit, letter-of-credit rights,instruments, promissory notes, drafts and documents (as each such term is defined in the Code).(mm) “Obligations” has the meaning specified therefor in the Credit Agreement.(nn) “Parent” has the meaning specified therefor in the recitals to this Agreement.(oo) “Patents” means patents and patent applications, including (i) the patents andpatent applications listed on Schedule 4, (ii) all continuations, divisionals,continuations-in-part, re-examinations, reissues, and renewals thereof and improvements thereon,(iii) all income, royalties, damages and payments now and hereafter due or payable under and withrespect thereto, including payments under all licenses entered into in connection therewith anddamages and payments for past, present, or future infringements thereof, (iv) the right to sue forpast, present, and future infringements thereof, and (v) all of each Grantor’s rights correspondingthereto throughout the world.(pp) “Patent Security Agreement” means each Patent Security Agreement executed anddelivered by Grantors, or any of them, and Agent, in substantially the form of Exhibit B.(qq) “Permitted Liens” has the meaning specified therefor in the Credit Agreement.(rr) “Person” has the meaning specified therefor in the Credit Agreement.(ss) “Pledged Companies” means each Person listed on Schedule 6 as a “PledgedCompany”, together with each other Person, all or a portion of whose Stock is acquired or otherwiseowned by a Grantor after the Closing Date.(tt) “Pledged Interests” means all of each Grantor’s right, title and interest in andto all of the Stock, to the extent such Stock constitutes Collateral, now owned or hereafteracquired by such Grantor, regardless of class or designation, including in each of the PledgedCompanies, and all substitutions therefor and replacements thereof, all proceeds thereof and allrights relating thereto, also including any certificates representing the Stock, the right toreceive any certificates representing any of the Stock, all warrants, options, share appreciationrights and other rights, contractual or otherwise, in respect thereof and the right to receive alldividends, distributions of income, profits, surplus, or other compensation by way of income orliquidating distributions, in cash or in kind, and all cash, instruments, and other property fromtime to time received, receivable, or otherwise distributed in respect of or in addition to, insubstitution of, on account of, or in exchange for any or all of the foregoing.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(uu) “Pledged Interests Addendum” means a Pledged Interests Addendum substantially inthe form of Exhibit C.(vv) “Pledged Note” has the meaning set forth in Section 5(i).(ww) “Pledged Operating Agreements” means all of each Grantor’s rights, powers, andremedies under the limited liability company operating agreements of each of the Pledged Companiesthat are limited liability companies.(xx) “Pledged Partnership Agreements” means all of each Grantor’s rights, powers, andremedies under the partnership agreements of each of the Pledged Companies that are partnerships.(yy) “Proceeds”has the meaning specified therefor in Section 2.(zz) “PTO” means the United States Patent and Trademark Office.(aaa) “Real Property” means any estates or interests in real property now owned orhereafter acquired by any Grantor or any Subsidiary of any Grantor and the improvements thereto.(bbb) “Records” means information that is inscribed on a tangible medium or which isstored in an electronic or other medium and is retrievable in perceivable form.(ccc) “Rescission” has the meaning specified therefor in Section 6(k).(ddd) “Secured Obligations” means each and all of the following: (a) all of thepresent and future obligations of each of the Grantors arising from, or owing under or pursuant to,this Agreement, the Credit Agreement, or any of the other Loan Documents (including any Guaranty),(b) all Bank Product Obligations, and (c) all other Obligations of Borrower (including, in the caseof each of clauses (a), (b) and (c), reasonable attorneys fees and expenses and any interest, fees,or expenses that accrue after the filing of an Insolvency Proceeding, regardless of whether allowedor allowable in whole or in part as a claim in any Insolvency Proceeding).(eee) “Securities Account” means a securities account (as that term is defined in theCode).(fff) “Security Interest” has the meaning specified therefor in Section 2.(ggg) “Stock” has the meaning specified therefor in the Credit Agreement.(hhh) “Supporting Obligations” means supporting obligations (as such term is definedin the Code), and includes letters of credit and guaranties issued in support of Accounts, ChattelPaper, documents, General Intangibles, instruments or Investment Related Property.(iii) “Trademarks” means any and all trademarks, trade names, registered trademarks,trademark applications, service marks, registered service marks and service mark applications,including (i) the trade names, registered trademarks, trademark applications, registered servicemarks and service mark applications listed on Schedule 5, (ii) all renewals thereof, (iii)all income, royalties, damages and payments now and hereafter due or payable under and with respectthereto, including payments under all licenses entered into in connection therewith and damages andpayments for past or future infringements or dilutions thereof, (iv) the right to sue for past,present and future infringements and dilutions thereof, (v) the goodwill of each Grantor’s businesssymbolized by the foregoing or connected therewith, and (vi) all of each Grantor’s rightscorresponding thereto throughout the world.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(jjj) “Trademark Security Agreement” means each Trademark Security Agreement executedand delivered by Grantors, or any of them, and Agent, in substantially the form of ExhibitD.(kkk) “Triggering Event” means, as of any date of determination, that an Event ofDefault has occurred as of such date.(lll) “URL” means “uniform resource locator,” an internet web address.(mmm) [***](nnn) [***] means an irrevocable commercial letter of credit reflecting Borrower as abeneficiary issued at the request of [***] as support for accounts with respect to purchases ofproduct by [***] from Borrower.2. Grant of Security. Each Grantor hereby unconditionally grants, assigns, andpledges to Agent, for the benefit of each member of the Lender Group and each of the Bank ProductProviders, to secure the Secured Obligations, a continuing security interest (hereinafter referredto as the “Security Interest”) in all of such Grantor’s right, title, and interest in andto the following, whether now owned or hereafter acquired or arising and wherever located (the“Collateral”):(a) all of such Grantor’s Accounts;(b) all of such Grantor’s Books;(c) all of such Grantor’s Chattel Paper;(d) all of such Grantor’s Deposit Accounts;(e) all of such Grantor’s Equipment and Fixtures;(f) all of such Grantor’s General Intangibles;(g) all of such Grantor’s Inventory;(h) all of such Grantor’s Investment Related Property;(i) all of such Grantor’s Negotiable Collateral;(j) all of such Grantor’s Supporting Obligations;(k) all of such Grantor’s Commercial Tort Claims;(l) all of such Grantor’s money, Cash Equivalents, or other assets of such Grantor that now orhereafter come into the possession, custody, or control of Agent (or its agent or designee) or anyother member of the Lender Group; andConfidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(m) all of the proceeds (as such term is defined in the Code) and products, whether tangibleor intangible, of any of the foregoing, including proceeds of insurance or Commercial Tort Claimscovering or relating to any or all of the foregoing, and any and all Accounts, Books, ChattelPaper, Deposit Accounts, Equipment, Fixtures, General Intangibles, Inventory, Investment RelatedProperty, Negotiable Collateral, Supporting Obligations, money, or other tangible or intangibleproperty resulting from the sale, lease, license, exchange, collection, or other disposition of anyof the foregoing, the proceeds of any award incondemnation with respect to any of the foregoing, any rebates or refunds, whether for taxesor otherwise, and all proceeds of any such proceeds, or any portion thereof or interest therein,and the proceeds thereof, and all proceeds of any loss of, damage to, or destruction of the above,whether insured or not insured, and, to the extent not otherwise included, any indemnity, warranty,or guaranty payable by reason of loss or damage to, or otherwise with respect to any of theforegoing (the “Proceeds”). Without limiting the generality of the foregoing, the term“Proceeds” includes whatever is receivable or received when Investment Related Property or proceedsare sold, exchanged, collected, or otherwise disposed of, whether such disposition is voluntary orinvoluntary, and includes proceeds of any indemnity or guaranty payable to any Grantor or Agentfrom time to time with respect to any of the Investment Related Property. Notwithstanding theforegoing the term Collateral shall not include (i) any rights or interest in any contract, lease,permit, license, charter or license agreement covering personal property of a Grantor if under theterms of such contract lease, permit, license, charter or license agreement, or applicable law withrespect thereto, the valid grant of a security interest or lien therein to Agent is prohibited as amatter of law or under the terms of such contract (including where the violation of any suchprohibition would result in the termination of the applicable contract), lease, permit, license,charter or license agreement and such prohibition has not been or is not waived or the consent ofthe other party to such contract, lease, permit license, charter or license agreement has not beenor is not otherwise obtained; provided, that, the foregoing exclusion shall in no way be construed(a) to apply if any described prohibition is unenforceable under Section 9-406, 9-407, or 9-408 ofthe Code or other applicable law, or (b) so as to limit, impair or otherwise affect Agent’scontinuing security interests in and liens upon any rights or interests of a Grantor in or tomonies due or to become due under any described contract, lease permit, license, charter or licenseagreement (including any Accounts), or (c) to limit, impair, or otherwise affect Agent’s continuingsecurity interests in and liens upon any rights or interest of a Grantor in and to any proceedsfrom the sale, license, lease, or other dispositions of any such contract, lease, permit, license,charter, license agreement, (ii) voting Stock of any CFC, solely to the extent that (x) such Stockrepresents more than 65% of the outstanding voting Stock of any such CFC that is a first tierSubsidiary of Parent or other Loan Party or 0% of the outstanding voting Stock of any Subsidiary ofsuch first tier Subsidiary of Parent or other Loan Party, and (y) pledging or hypothecating morethan the foregoing amount of the total outstanding voting Stock of such CFC would result in adversetax consequences or the costs to the Grantors of providing such pledge or perfecting the securityinterests created thereby are unreasonably excessive (as determined by Agent in consultation withBorrower) in relation to the benefits of Agent and the Lenders of the security or guaranteeafforded thereby (which pledge, if reasonably requested by Agent, shall be governed by the laws ofthe jurisdiction of such Subsidiary), or (iii) any United States intent-to-use trademarkapplications to the extent that, and solely during the period in which, the grant of a securityinterest therein would impair the validity or enforceability of such intent-to-use trademarkapplications under applicable federal law, provided that upon submission and acceptance by the PTOof an amendment to allege use pursuant to 15 U.S.C. Section 1060(a) (or any successor provision),such intent-to-use trademark application shall be considered Collateral.3. Security for Secured Obligations. The Security Interest created hereby secures thepayment and performance of the Secured Obligations, whether now existing or arising hereafter.Without limiting the generality of the foregoing, this Agreement secures the payment of all amountswhich constitute part of the Secured Obligations and would be owed by Grantors, or any of them, toAgent, the Lender Group, the Bank Product Providers or any of them, but for the fact that they areunenforceable or not allowable (in whole or in part) as a claim in an Insolvency Proceedinginvolving any Grantor due to the existence of such Insolvency Proceeding.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
4. Grantors Remain Liable.(a) Anything herein to the contrary notwithstanding, (a) each of the Grantors shall remainliable under the contracts and agreements included in the Collateral, including the PledgedOperating Agreements and the Pledged Partnership Agreements, to perform all of the duties andobligations thereunder to the same extent as if this Agreement had not been executed, (b) theexercise by Agent or any other member of the Lender Group of any of the rights hereunder shall notrelease any Grantor from any of its duties orobligations under such contracts and agreements included in the Collateral, and (c) none ofthe members of the Lender Group shall have any obligation or liability under such contracts andagreements included in the Collateral by reason of this Agreement, nor shall any of the members ofthe Lender Group be obligated to perform any of the obligations or duties of any Grantorsthereunder or to take any action to collect or enforce any claim for payment assigned hereunder.Until an Event of Default shall occur and be continuing, except as otherwise provided in thisAgreement, the Credit Agreement, or any other Loan Document, Grantors shall have the right topossession and enjoyment of the Collateral for the purpose of conducting the ordinary course oftheir respective businesses, subject to and upon the terms hereof and of the Credit Agreement andthe other Loan Documents. Without limiting the generality of the foregoing, it is the intention ofthe parties hereto that record and beneficial ownership of the Pledged Interests, including allvoting, consensual, dividend, and distribution rights, shall remain in the applicable Grantor until(i) the occurrence and continuance of an Event of Default and (ii) Agent has notified theapplicable Grantor of Agent’s election to exercise such rights with respect to the PledgedInterests pursuant to Section 15.(b) Grantors shall be entitled to receive and retain any and all dividends and/ordistributions paid in respect of the Stock of the Pledged Companies; provided, however,that, except as permitted under the Credit Agreement, any and all:(i) dividends and distributions paid or payable other than in cash in respect of, and any andall additional shares or instruments or other property received, receivable, or otherwisedistributed in respect of, or in exchange for the Stock of the Pledged Companies;(ii) dividends and distributions paid or payable in cash in respect of any Stock of thePledged Companies in connection with a partial or total liquidation or dissolution, merger,consolidation of any Pledged Company, or any exchange of stock, conveyance of assets, or similarcorporate reorganization;(iii) cash paid with respect to, payable, or otherwise distributed on redemption of, or inexchange for, any Stock of the Pledged Companies, and(iv) after the occurrence and during the continuance of an Event of Default and receipt ofnotice from Agent of the intent to exercise rights under this clause (iv), all dividends anddistributions in respect of any Stock of the Pledged Companies (including cash dividends other thanthose described in subparagraphs (ii) and (iii) above),shall be forthwith delivered to Agent to hold as Collateral and shall, if received by Grantors, bereceived in trust for the benefit of Agent, for the ratable benefit of the Lender Group and theBank Product Provider, be segregated from the other property or funds of Grantors, and be forthwithdelivered to Agent as Collateral in the same form as so received (with any necessary endorsement),and, if deemed necessary by Agent, Grantors shall take such actions, including the actionsdescribed in Section 8, as Agent may require.5. Representations and Warranties. Each Grantor hereby represents and warrants toAgent, for the benefit of the Lender Group and the Bank Product Providers, which representationsand warranties shall be true, correct, and complete, in all material respects (except that suchmateriality qualifier shall not be applicable to any representations and warranties that alreadyare qualified or modified by materiality in the text thereof), as of the Closing Date, and shall betrue, correct, and complete, in all material respects (except that such materiality qualifier shallnot be applicable to any representations and warranties that already are qualified or modified bymateriality in the text thereof), as of the date of the making of each Advance (or other extensionof credit) made thereafter, as though made on and as of the date of such Advance (or otherextension of credit) (except to the extent that such representations and warranties relate solelyto an earlier date, in which case such representations and warranties shall be true, correct andcomplete in all material respects as of such earlier date) and such representations and warrantiesshall survive the execution and delivery of this Agreement:Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(a) The exact legal name of each of the Grantors is set forth on the signature pages of thisAgreement or a written notice provided to Agent pursuant to Section 6.5 of the CreditAgreement.(b) Schedule 7 sets forth all Real Property owned by any of the Grantors as of theClosing Date.(c) As of the Closing Date: (i) Schedule 2 provides a complete and correct list of allregistered Copyrights owned by any Grantor, all applications for registration of Copyrights ownedby any Grantor, and all other Copyrights owned by any Grantor and material to the conduct of thebusiness of any Grantor; (ii) Schedule 3 provides a complete and correct list of allIntellectual Property Licenses entered into by any Grantor pursuant to which (A) any Grantor hasprovided any license or other rights in Intellectual Property owned or controlled by such Grantorto any other Person or (B) any Person has granted to any Grantor any license or other rights inIntellectual Property owned or controlled by such Person that is material to the business of suchGrantor, including any Intellectual Property that is incorporated in any Inventory, software, orother product marketed, sold, licensed, or distributed by such Grantor; (iii) Schedule 4provides a complete and correct list of all Patents owned by any Grantor and all applications forPatents owned by any Grantor; and (iv) Schedule 5 provides a complete and correct list ofall registered Trademarks owned by any Grantor, all applications for registration of Trademarksowned by any Grantor, and all other Trademarks owned by any Grantor and material to the conduct ofthe business of any Grantor.(d) (i) (A) to each Grantor’s knowledge, such Grantor owns exclusively or holds licenses inall Intellectual Property that is necessary to the conduct of its business, and (B) all employeesand contractors of each Grantor who were involved in the creation or development of anyIntellectual Property for such Grantor that is necessary to the business of such Grantor havesigned agreements containing assignment of Intellectual Property rights to such Grantor andobligations of confidentiality;(ii) to each Grantor’s knowledge, no Person has infringed or misappropriated or is currentlyinfringing or misappropriating any Intellectual Property rights owned by such Grantor, in eachcase, that either individually or in the aggregate could reasonably be expected to result in aMaterial Adverse Change;(iii) except as set forth on Schedule 9, (A) to each Grantor’s knowledge, (1) suchGrantor has never infringed or misappropriated and is not currently infringing or misappropriatingany Intellectual Property rights of any Person, and (2) no product manufactured, used, distributed,licensed, or sold by or service provided by such Grantor has ever infringed or misappropriated oris currently infringing or misappropriating any Intellectual Property rights of any Person, in eachcase, except where such infringement either individually or in the aggregate could not reasonablybe expected to result in a Material Adverse Change, and (B) there are no pending, or to anyGrantor’s knowledge, threatened infringement or misappropriation claims or proceedings pendingagainst any Grantor, and no Grantor has received any notice or other communication of any actual oralleged infringement or misappropriation of any Intellectual Property rights of any Person exceptwhere such infringement claims, proceedings, or notices either individually or in the aggregatecould not reasonably be expected to result in a Material Adverse Change;(iv) to each Grantor’s knowledge after reasonable inquiry, all registered Copyrights,registered Trademarks, and issued Patents that are owned by such Grantor and necessary in to theconduct of its business are valid, subsisting and enforceable and in compliance with all legalrequirements, filings, and payments and other actions that are required to maintain suchIntellectual Property in full force and effect, and(v) each Grantor has taken reasonable steps to maintain the confidentiality of and otherwiseprotect and enforce its rights in all trade secrets owned by such Grantor that are necessary in thebusiness of such Grantor.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(e) This Agreement creates a valid security interest in the Collateral of each Grantor, to theextent a security interest therein can be created under the Code, securing the payment of theSecured Obligations. Except to the extent a security interest in the Collateral cannot beperfected by the filing of a financing statement under the Code, all filings and other actionsnecessary or desirable to perfect and protect such security interest have been duly taken or willhave been taken upon the filing of financing statements listing each applicable Grantor, as adebtor, and Agent, as secured party, in the jurisdictions listed next to such Grantor’s name onSchedule 8. Upon the making of such filings, Agent shall have a first priority perfectedsecurity interest in the Collateral of each Grantor (subject to Permitted Liens) to the extent suchsecurity interest can be perfected by the filing of a financing statement. Upon filing of theCopyright Security Agreement with the United States Copyright Office, filing of the Patent SecurityAgreement and the Trademark Security Agreement with the PTO, and the filing of appropriatefinancing statements in the jurisdictions listed on Schedule 8, all action necessary ordesirable to protect and perfect the Security Interest in and to on each Grantor’s Patents,Trademarks, or Copyrights has been taken and such perfected Security Interest is enforceable assuch as against any and all creditors of and purchasers from any Grantor. All action by anyGrantor necessary to protect and perfect such security interest on each item of Collateral has beenduly taken.(f) (i) Except for the Security Interest created hereby, each Grantor is and will at all timesbe the sole holder of record and the legal and beneficial owner, free and clear of all Liens otherthan Permitted Liens, of the Pledged Interests indicated on Schedule 6 as being owned bysuch Grantor and, when acquired by such Grantor, any Pledged Interests acquired after the ClosingDate; (ii) all of the Pledged Interests are duly authorized, validly issued, fully paid andnonassessable and the Pledged Interests constitute or will constitute the percentage of the issuedand outstanding Stock of the Pledged Companies of such Grantor identified on Schedule 6 assupplemented or modified by any Pledged Interests Addendum or any Joinder to this Agreement; (iii)such Grantor has the right and requisite authority to pledge, the Investment Related Property, tothe extent constituting Collateral, pledged by such Grantor to Agent as provided herein; (iv) allactions necessary or desirable to perfect and establish the first priority of (subject to PermittedLiens), or otherwise protect, Agent’s Liens in the Investment Related Property, to the extentconstituting Collateral, and the proceeds thereof, have been duly taken, upon (A) the execution anddelivery of this Agreement; (B) the taking of possession by Agent (or its agent or designee) of anycertificates representing the Pledged Interests, together with undated powers (or other documentsof transfer acceptable to Agent) endorsed in blank by the applicable Grantor; (C) the filing offinancing statements in the applicable jurisdiction set forth on Schedule 8 for suchGrantor with respect to the Pledged Interests of such Grantor that are not represented bycertificates, and (D) with respect to any Securities Accounts, the delivery of Control Agreementswith respect thereto; and (v) each Grantor has delivered to and deposited with Agent allcertificates representing the Pledged Interests owned by such Grantor to the extent such PledgedInterests are represented by certificates, and undated powers (or other documents of transferacceptable to Agent) endorsed in blank with respect to such certificates. None of the PledgedInterests owned or held by such Grantor has been issued or transferred in violation of anysecurities registration, securities disclosure, or similar laws of any jurisdiction to which suchissuance or transfer may be subject.(g) No consent, approval, authorization, or other order or other action by, and no notice toor filing with, any Governmental Authority or any other Person is required (i) for the grant of aSecurity Interest by such Grantor in and to the Collateral pursuant to this Agreement or for theexecution, delivery, or performance of this Agreement by such Grantor. No consent, approval,authorization, or other order or other action by, and no notice to or filing with, any GovernmentalAuthority is required for the exercise by Agent of the voting or other rights provided for in thisAgreement with respect to the Investment Related Property or the remedies in respect of theCollateral pursuant to this Agreement, except as may be required in connection with suchdisposition of Investment Related Property by laws affecting the offering and sale of securitiesgenerally. No consent, approval, authorization, or other order or action by, and no notice to, anyPerson is required for the exercise by Agent of the voting or other rights provided for in thisAgreement with respect to the Investment Related Property or the remedies in respect of theCollateral pursuant to this Agreement. No IntellectualProperty License of any Grantor that is necessary to the conduct of such Grantor’s businessrequires any consent of any other Person in order for such Grantor to grant the security interestgranted hereunder in such Grantor’s right, title or interest in or to such Intellectual PropertyLicense.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(h) As to all limited liability company or partnership interests, issued under any PledgedOperating Agreement or Pledged Partnership Agreement, each Grantor hereby represents and warrantsthat the Pledged Interests issued pursuant to such agreement (A) are not dealt in or traded onsecurities exchanges or in securities markets, (B) do not constitute investment company securities,and (C) are not held by such Grantor in a securities account. In addition, none of the PledgedOperating Agreements, the Pledged Partnership Agreements, or any other agreements governing any ofthe Pledged Interests issued under any Pledged Operating Agreement or Pledged PartnershipAgreement, provide that such Pledged Interests are securities governed by Article 8 of the UniformCommercial Code as in effect in any relevant jurisdiction.(i) There is no default, breach, violation or event of acceleration existing under anypromissory note (as defined in the Code) constituting Collateral and pledged hereunder (each a“Pledged Note”) and no event has occurred or circumstance exists which, with the passage oftime or the giving of notice, or both, would constitute a default, breach, violation or event ofacceleration under any Pledged Note. No Grantor that is an obligee under a Pledged Note has waivedany default, breach, violation or event of acceleration under such Pledged Note.(j) Each Grantor shall have made all payments, filings and recordations necessary to protectand maintain its interest in such Grantor’s Intellectual Property Rights in the United States orany other jurisdiction that are material to the conduct of such Grantor’s business, including (i)making all necessary registration, maintenance, and renewal fee payment and (ii) filing allnecessary documents, including all applications for registration of Copyrights, Patents andTrademarks that are material to the conduct of such Grantor’s business.(k) Each Grantor has and enforces a policy requiring all employees, consultants andcontractors to execute appropriate assignment agreements, pursuant to which each such employee,consultant or contractor assigns to such Grantor all of its rights, including all IntellectualProperty Rights, in and to all ideas, inventions, processes, works of authorship and other workproducts that relate to such Grantor’s business and that were conceived, created, authored ordeveloped during the term of such employee’s, consultant’s or contractor’s employment or engagementby such Grantor. Other than as set forth in Schedules 2, 3, 4 and 5, no past or present employee orcontractor of any Grantor has any ownership interest, license, permission or other right in or toany Intellectual Property Rights that are material to the conduct of any such Grantor’s business,except that solely to the extent necessary for the conduct of their work for or on behalf of anyGrantor, (i) employees of each Grantor may have permission to use Intellectual Property Rights and(ii) contractors may have permission to use or license rights in the Intellectual Property.(l) (k) No claim has been made and is continuing or threatened that the use by any Grantor ofany Intellectual Property Rights that are material to the conduct of its business is invalid orunenforceable or that the use by such Grantor of any such Intellectual Property Rights does or mayviolate the rights of any Person. To the best of each Grantor’s knowledge, there is currently noinfringement or unauthorized use of any item of Intellectual Property Rights contained on Schedules2, 3, 4 or 5.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
6. Covenants. Each Grantor, jointly and severally, covenants and agrees with Agentthat from and after the date of this Agreement and until the date of termination of this Agreementin accordance with Section 22:(a) Possession of Collateral. In the event that any Collateral, including Proceeds,is evidenced by or consists of Negotiable Collateral, Investment Related Property, or ChattelPaper, in each case, to the extent constituting Collateral and having an aggregate value or faceamount of $250,000 or more for allsuch Negotiable Collateral, Investment Related Property, or Chattel Paper, the Grantors shallpromptly (and in any event within two (2) Business Days after receipt thereof), notify Agentthereof, and if and to the extent that perfection or priority of Agent’s Security Interest isdependent on or enhanced by possession, the applicable Grantor, promptly (and in any event withintwo (2) Business Days) after request by Agent, shall execute such other documents and instrumentsas shall be requested by Agent or, if applicable, endorse and deliver physical possession of suchNegotiable Collateral, Investment Related Property, or Chattel Paper to Agent, together with suchundated powers (or other relevant document of transfer acceptable to Agent) endorsed in blank asshall be requested by Agent, and shall do such other acts or things deemed necessary or desirableby Agent to protect Agent’s Security Interest therein;(b) Chattel Paper.(i) Promptly (and in any event within two (2) Business Days) after request by Agent, eachGrantor shall take all steps reasonably necessary to grant Agent control of all electronic ChattelPaper in accordance with the Code and all “transferable records” as that term is defined in Section16 of the Uniform Electronic Transaction Act and Section 201 of the federal Electronic Signaturesin Global and National Commerce Act as in effect in any relevant jurisdiction, to the extent thatthe aggregate value or face amount of such electronic Chattel Paper equals or exceeds $250,000;(ii) If any Grantor retains possession of any Chattel Paper or instruments to the extentconstituting Collateral (which retention of possession shall be subject to the extent permittedhereby and by the Credit Agreement), promptly upon the request of Agent, such Chattel Paper andinstruments shall be marked with the following legend: “This writing and the obligations evidencedor secured hereby are subject to the Security Interest of Wells Fargo Capital Finance, Inc., asAgent for the benefit of the Lender Group and the Bank Product Providers”;(c) Control Agreements.(i) Except to the extent otherwise excused by the Credit Agreement, each Grantor shall obtainan authenticated Control Agreement (which may include a Controlled Account Agreement), from eachbank maintaining a Deposit Account for such Grantor;(ii) Except to the extent otherwise excused by the Credit Agreement, each Grantor shall obtainan authenticated Control Agreement, from each issuer of uncertificated securities, securitiesintermediary, or commodities intermediary issuing or holding any financial assets or commodities toor for any Grantor to the extent included in the Collateral;(iii) Except to the extent otherwise excused by the Credit Agreement, each Grantor shallobtain an authenticated Control Agreement with respect to all of such Grantor’s investmentproperty;(d) Letter-of-Credit Rights. If the Grantors (or any of them) are or become thebeneficiary of any one letter of credit, other than a [***] L/C, having a face amount or value of$100,000 or more, or one or more letters of credit, other than a [***] L/C, having a face amount orvalue of $200,00 or more in the aggregate, then the applicable Grantor or Grantors shall promptly(and in any event within two (2) Business Days after becoming a beneficiary), notify Agent thereofand, promptly (and in any event within two (2) Business Days) after request by Agent, enter into atri-party agreement with Agent and the issuer or confirming bank with respect to letter-of-creditrights assigning such letter-of-credit rights to Agent and directing all payments thereunder toAgent’s Account, all in form and substance satisfactory to Agent; provided, however, thatsolely with respect to [***] L/Cs, so long as no Event of Default has occurred and is continuing,Grantors shall not be required to enter into the above referenced tri-party agreement;Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(e) Commercial Tort Claims. If the Grantors (or any of them) obtain Commercial TortClaims having a value, or involving an asserted claim, in the amount of $250,000 or more in theaggregate for all Commercial Tort Claims, then the applicable Grantor or Grantors shall promptly(and in any event within two (2) Business Days of obtaining such Commercial Tort Claim), notifyAgent upon incurring or otherwise obtaining such Commercial Tort Claims and, promptly (and in anyevent within two (2) Business Days) after request by Agent, amend Schedule 1 to describesuch Commercial Tort Claims in a manner that reasonably identifies such Commercial Tort Claims andwhich is otherwise reasonably satisfactory to Agent, and hereby authorizes the filing of additionalfinancing statements or amendments to existing financing statements describing such Commercial TortClaims, and agrees to do such other acts or things deemed necessary or desirable by Agent to giveAgent a first priority, perfected security interest in any such Commercial Tort Claim;(f) Government Contracts. Other than any Account or Chattel Paper the value of whichdoes not at any one time exceed $100,000 or Accounts and Chattel paper the aggregate value of whichdoes not at any one time exceed $250,000, if any Account or Chattel Paper arises out of a contractor contracts with the United States of America or any department, agency, or instrumentalitythereof, Grantors shall promptly (and in any event within two (2) Business Days of the creationthereof) notify Agent thereof and, promptly (and in any event within two (2) Business Days) afterrequest by Agent, execute any instruments or take any steps reasonably required by Agent in orderthat all moneys due or to become due under such contract or contracts shall be assigned to Agent,for the benefit of the Lender Group and the Bank Product Providers, and shall provide writtennotice thereof under the Assignment of Claims Act or other applicable law;(g) Intellectual Property.(i) Upon the request of Agent, in order to facilitate filings with the United States Patentand Trademark Office or any similar office or agency in any jurisdiction and the United StatesCopyright Office or any similar office or agency in any jurisdiction, each Grantor shall executeand deliver to Agent one or more Copyright Security Agreements, Trademark Security Agreements, orPatent Security Agreements to further evidence Agent’s Lien on such Grantor’s Patents, Trademarks,or Copyrights, and the General Intangibles of such Grantor relating thereto or represented thereby;(ii) Each Grantor shall have the duty, with respect to Intellectual Property that is necessaryin the conduct of such Grantor’s business, to protect and diligently enforce and defend at suchGrantor’s expense its Intellectual Property, to the extent commercially reasonable to do so asdetermined in its reasonable business judgment, including (A) to diligently enforce and defend,including promptly suing for infringement, misappropriation, or dilution and to recover any and alldamages for such infringement, misappropriation, or dilution, and filing for opposition,interference, and cancellation against conflicting Intellectual Property rights of any Person, (B)to prosecute diligently any trademark application or service mark application that is part of theTrademarks pending as of the date hereof or hereafter until the termination of this Agreement, (C)to prosecute diligently any patent application that is part of the Patents pending as of the datehereof or hereafter until the termination of this Agreement, (D) to take all reasonable andnecessary action to preserve and maintain all of such Grantor’s Trademarks, Patents, Copyrights,Intellectual Property Licenses, and its rights therein, including paying all maintenance fees andfiling of applications for renewal, affidavits of use, and affidavits of noncontestability, and (E)to require all employees, consultants, and contractors of each Grantor who were involved in thecreation or development of such Intellectual Property to sign agreements containing assignment ofIntellectual Property rights and obligations of confidentiality. Each Grantor further agrees notto abandon any Intellectual Property or Intellectual Property License that is necessary in theconduct of such Grantor’s business. Each Grantor hereby agrees to take the steps described in thisSection 6(g)(ii) with respect to all new or acquired Intellectual Property which isincluded in the Collateral, to the extent commercially reasonable to do so, to which it or any ofits Subsidiaries is now or later becomes entitled that is necessary in the conduct of suchGrantor’s business;Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(iii) Grantors acknowledge and agree that the Lender Group shall have no duties with respectto any Intellectual Property or Intellectual Property Licenses of any Grantor. Without limitingthe generality of this Section 6(g)(iii), Grantors acknowledge and agree that no member ofthe Lender Group shall be under any obligation to take any steps necessary to preserve rights inthe Collateral consisting of Intellectual Property or Intellectual Property Licenses against anyother Person, but any member of the Lender Group may do so at its option from and after theoccurrence and during the continuance of an Event of Default, and all expenses incurred inconnection therewith (including reasonable fees and expenses of attorneys and other professionals)in accordance with the Credit Agreement, shall be for the sole account of Borrower and shall bechargeable to the Loan Account;(iv) Grantors shall have no duty to register with the U.S. Copyright Office any unregisteredcopyrights (whether in existence on the Closing Date or thereafter acquired, arising, or developed)unless (i) Borrower provides Agent with written notice of the applicable Grantor intent to registersuch copyrights not less than 30 days prior to the date of the proposed registration, and (ii)prior to such registration, the applicable Grantor execute and deliver to Agent an CopyrightSecurity Agreement, or such other documentation as Agent deems necessary in order to perfect andcontinue perfected Agent’s Liens on such copyrights following such registration;(v) On each date on which a Compliance Certificate is delivered by Borrower pursuant toSection 5.1 of the Credit Agreement, each Grantor shall provide Agent with a written reportof all new Patents or Trademarks that are registered or the subject of pending applications forregistrations, and of all Intellectual Property Licenses that are material to the conduct of suchGrantor’s business, in each case, which were acquired, registered, or for which applications forregistration were filed by any Grantor during the prior period and any statement of use oramendment to allege use with respect to intent-to-use trademark applications. In the case of suchregistrations or applications therefor, which were acquired by any Grantor, each such Grantor shallfile the necessary documents with the appropriate Governmental Authority identifying the applicableGrantor as the owner (or as a co-owner thereof, if such is the case) of such Intellectual Property.In each of the foregoing cases, the applicable Grantor shall promptly cause to be prepared,executed, and delivered to Agent supplemental schedules to the applicable Loan Documents toidentify such Patent and Trademark registrations and applications therefor (with the exception ofTrademark applications filed on an intent-to-use basis for which no statement of use or amendmentto allege use has been filed) and Intellectual Property Licenses as being subject to the securityinterests created thereunder;(vi) Anything to the contrary in this Agreement notwithstanding, in no event shall anyGrantor, either itself or through any agent, employee, licensee, or designee, file an applicationfor the registration of any Copyright with the United States Copyright Office or any similar officeor agency in another country without giving Agent written notice thereof at least three (3)Business Days prior to such filing and complying with Section 6(g)(i). Upon receipt fromthe United States Copyright Office of notice of registration of any Copyright, each Grantor shallpromptly (but in no event later than three (3) Business Days following such receipt) notify (butwithout duplication of any notice required by Section 6(g)(vii) Agent of such registrationby delivering, or causing to be delivered, to Agent, documentation sufficient for Agent to perfectAgent’s Liens on such Copyright. If any Grantor acquires from any Person any Copyright registeredwith the United States Copyright Office or an application to register any Copyright with the UnitedStates Copyright Office, such Grantor shall promptly (but in no event later than three (3) BusinessDays following such acquisition) notify Agent of such acquisition and deliver, or cause to bedelivered, to Agent, documentation sufficient for Agent to perfect Agent’s Liens on such Copyright.In the case of such Copyright registrations or applications therefor which were acquired by anyGrantor, each such Grantor shall promptly (but in no event later than three (3) Business Daysfollowing such acquisition) file the necessary documents with the appropriate GovernmentalAuthority identifying the applicable Grantor as the owner (or as a co-owner thereof, if such is thecase) of such Copyrights; andConfidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(vii) Each Grantor shall take, to the extent commercially reasonable, steps to maintain theconfidentiality of, and otherwise protect and enforce its rights in, the Intellectual Property thatis necessary in the conduct of such Grantor’s business, including, as applicable (A) protecting thesecrecy and confidentiality of its confidential information and trade secrets by having andenforcing a policy requiring all current employees, consultants, licensees, vendors and contractorswith access to such information to execute appropriate confidentiality agreements; (B) takingactions reasonably necessary to ensure that no trade secret falls into the public domain; and (C)protecting the secrecy and confidentiality of the source code of all software programs andapplications of which it is the owner or licensee by having and enforcing a policy requiring anylicensees (or sublicensees) of such source code to enter into license agreements with commerciallyreasonable use and non-disclosure restrictions.(viii) Each Grantor agrees to take all necessary steps, including making all necessarypayments and filings in connection with registration, maintenance, and renewal of each Grantor’sPatents and Trademarks that are material to the conduct of each Grantor’s business.(h) Investment Related Property.(i) If any Grantor shall acquire, obtain, receive or become entitled to receive any PledgedInterests after the Closing Date, it shall promptly (and in any event within two (2) Business Daysof acquiring or obtaining such Collateral) deliver to Agent a duly executed Pledged InterestsAddendum identifying such Pledged Interests;(ii) Upon the occurrence and during the continuance of an Event of Default, following therequest of Agent, all sums of money and property paid or distributed in respect of the InvestmentRelated Property constituting Collateral that are received by any Grantor shall be held by theGrantors in trust for the benefit of Agent segregated from such Grantor’s other property, and suchGrantor shall deliver it forthwith to Agent in the exact form received;(iii) Each Grantor shall promptly deliver to Agent a copy of each material notice or othermaterial communication received by it in respect of any Pledged Interests;(iv) No Grantor shall make or consent to any amendment or other modification or waiver withrespect to any Pledged Interests, Pledged Operating Agreement, or Pledged Partnership Agreement, orenter into any agreement or permit to exist any restriction with respect to any Pledged Interestsif the same is prohibited pursuant to the Loan Documents;(v) Each Grantor agrees that it will cooperate with Agent in obtaining all necessary approvalsand making all necessary filings under federal, state, local, or foreign law to effect theperfection of the Security Interest on the Investment Related Property which is Collateral or toeffect any sale or transfer thereof;(vi) As to all limited liability company or partnership interests, issued under any PledgedOperating Agreement or Pledged Partnership Agreement, each Grantor hereby covenants that thePledged Interests issued pursuant to such agreement (A) are not and shall not be dealt in or tradedon securities exchanges or in securities markets, (B) do not and will not constitute investmentcompany securities, and (C) are not and will not be held by such Grantor in a securities account.In addition, none of the Pledged Operating Agreements, the Pledged Partnership Agreements, or anyother agreements governing any of the Pledged Interests issued under any Pledged OperatingAgreement or Pledged Partnership Agreement, provide or shall provide that such Pledged Interestsare securities governed by Article 8 of the Uniform Commercial Code as in effect in any relevantjurisdiction.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(i) Real Property; Fixtures. Each Grantor covenants and agrees that upon theacquisition of any fee interest in Real Property having a value in excess of $500,000, it will,subject to Section 5.11 and Section 5.12 of the Credit Agreement, promptly (and inany event within two (2) Business Days of acquisition) notify Agent of the acquisition of such RealProperty and will grant to Agent, for the benefit of the Lender Group and the Bank ProductProviders, a first priority Mortgage on each fee interest in Real Property now or hereafter ownedby such Grantor and shall deliver such other documentation and opinions, in form and substancesatisfactory to Agent, in connection with the grant of such Mortgage as Agent shall request in itsPermitted Discretion, including title insurance policies, financing statements, fixture filings andenvironmental audits and such Grantor shall pay all recording costs, intangible taxes and otherfees and costs (including reasonable attorneys fees and expenses) incurred in connection therewith.Each Grantor acknowledges and agrees that, to the extent permitted by applicable law, all of theCollateral shall remain personal property regardless of the manner of its attachment or affixationto real property;(j) Transfers and Other Liens. Grantors shall not (i) sell, assign (by operation oflaw or otherwise) or otherwise dispose of, or grant any option with respect to, any of theCollateral, except as expressly permitted by the Credit Agreement, or (ii) create or permit toexist any Lien upon or with respect to any of the Collateral of any Grantor, except for PermittedLiens. The inclusion of Proceeds in the Collateral shall not be deemed to constitute Agent’sconsent to any sale or other disposition of any of the Collateral except as expressly permitted inthis Agreement or the other Loan Documents;(k) Controlled Accounts.(i) Each Grantor who maintains any cash balances shall (A) establish and maintain cashmanagement services of a type and on terms reasonably satisfactory to Agent at one or more of thebanks set forth on Schedule 6(k) (each a “Controlled Account Bank”), and shall takereasonable steps to ensure that all of its and its Subsidiaries’ Account Debtors forward payment ofthe amounts owed by them directly to such Controlled Account Bank, and (B) deposit or cause to bedeposited promptly, and in any event no later than the first Business Day after the date of receiptthereof, all of their Collections (including those sent directly by their Account Debtors to aGrantor) into a bank account of such Grantor (each, a “Controlled Account”) at one of theControlled Account Banks.(ii) Each Grantor who maintains any cash balances shall establish and maintain ControlledAccount Agreements with Agent and the applicable Controlled Account Bank, in form and substancereasonably acceptable to Agent. Each such Controlled Account Agreement shall provide, among otherthings, that (A) the Controlled Account Bank will comply with any instructions originated by Agentdirecting the disposition of the funds in such Controlled Account without further consent by theapplicable Grantor, (B) the Controlled Account Bank waives, subordinates, or agrees not to exerciseany rights of setoff or recoupment or any other claim against the applicable Controlled Accountother than for payment of its service fees and other charges directly related to the administrationof such Controlled Account and for returned checks or other items of payment, and (C) (1) withrespect to Controlled Accounts of Borrower, commencing on the date 14 days after the Closing Date,the Controlled Account Bank will forward by daily sweep all amounts in the applicable ControlledAccount to the Agent’s Account and (2) with respect to Controlled Accounts of any non-BorrowerGrantor, upon the instruction of Agent (an “Activation Instruction”), the ControlledAccount Bank will forward by daily sweep all amounts in the applicable Controlled Account to theagent’s Account. Agent agrees not to issue an Activation Instruction with respect to suchControlled Accounts unless a Triggering Event has occurred at the time such Activation Instructionis issued. Agent agrees to use commercially reasonable efforts to rescind an ActivationInstruction (the “Rescission”) if: (x) the Triggering Event upon which such ActivationInstruction was issued has been waived in writing in accordance with the terms of the CreditAgreement, and (y) no additional Triggering Event has occurred and is continuing prior to the dateof the Rescission or is reasonably expected to occur on or immediately after the date of theRescission.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(iii) So long as no Default or Event of Default has occurred and is continuing, Borrower mayamend Schedule 6(k) to add or replace a Controlled Account Bank or Controlled Account;provided, however, that (A) such prospective Controlled Account Bank shall bereasonably satisfactory to Agent, and (B) prior to the time of the opening of such ControlledAccount, the applicable Grantor and such prospective Controlled Account Bank shall have executedand delivered to Agent a Controlled Account Agreement. Each Grantor shall close any of itsControlled Accounts (and establish replacement Controlled Account accounts in accordance with theforegoing sentence) as promptly as practicable and in any event within forty-five (45) days ofnotice from Agent that the operating performance, funds transfer, or availability procedures orperformance of the Controlled Account Bank with respect to Controlled Account Accounts or Agent’sliability under any Controlled Account Agreement with such Controlled Account Bank is no longeracceptable in Agent’s reasonable judgment.7. Relation to Other Security Documents. The provisions of this Agreement shall beread and construed with the other Loan Documents referred to below in the manner so indicated.(a) Credit Agreement. In the event of any conflict between any provision in thisAgreement and a provision in the Credit Agreement, such provision of the Credit Agreement shallcontrol.(b) Patent, Trademark, Copyright Security Agreements. The provisions of the CopyrightSecurity Agreements, Trademark Security Agreements, and Patent Security Agreements are supplementalto the provisions of this Agreement, and nothing contained in the Copyright Security Agreements,Trademark Security Agreements, or the Patent Security Agreements shall limit any of the rights orremedies of Agent hereunder. In the event of any conflict between any provision in this Agreementand a provision in a Copyright Security Agreement, Trademark Security Agreement or Patent SecurityAgreement, such provision of this Agreement shall control.8. Further Assurances.(a) Each Grantor agrees that from time to time, at its own expense, such Grantor will promptlyexecute and deliver all further instruments and documents, and take all further action, that Agentmay reasonably request, in order to perfect and protect the Security Interest granted hereby, tocreate, perfect or protect the Security Interest purported to be granted hereby or to enable Agentto exercise and enforce its rights and remedies hereunder with respect to any of the Collateral.(b) Each Grantor authorizes the filing by Agent of financing or continuation statements, oramendments thereto, and such Grantor will execute and deliver to Agent such other instruments ornotices, as Agent may reasonably request, in order to perfect and preserve the Security Interestgranted or purported to be granted hereby.(c) Each Grantor authorizes Agent at any time and from time to time to file, transmit, orcommunicate, as applicable, financing statements and amendments (i) describing the Collateral as“all personal property of debtor” or “all assets of debtor” or words of similar effect, (ii)describing the Collateral as being of equal or lesser scope or with greater detail, or (iii) thatcontain any information required by part 5 of Article 9 of the Code for the sufficiency or filingoffice acceptance. Each Grantor also hereby ratifies any and all financing statements oramendments previously filed by Agent in any jurisdiction.(d) Each Grantor acknowledges that it is not authorized to file any financing statement oramendment or termination statement with respect to any financing statement filed in connection withthis Agreement without the prior written consent of Agent, subject to such Grantor’s rights underSection 9-509(d)(2) of the Code.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
9. Agent’s Right to Perform Contracts, Exercise Rights, etc. Upon the occurrence andduring the continuance of an Event of Default, Agent (or its designee) (a) may proceed to performany and all of the obligations of any Grantor contained in any contract, lease, or other agreementconstituting Collateral and exercise any and all rights of any Grantor therein contained as fullyas such Grantor itself could, (b) shall have the right to use any Grantor’s rights underIntellectual Property Licenses constituting Collateral in connection with the enforcement ofAgent’s rights hereunder, including the right to prepare for sale and sell any and all Inventoryand Equipment now or hereafter owned by any Grantor and now or hereafter covered by such licenses,and (c) shall have the right to request that any Stock that is pledged hereunder be registered inthe name of Agent or any of its nominees.10. Agent Appointed Attorney-in-Fact. Each Grantor hereby irrevocably appoints Agentits attorney-in-fact, with full authority in the place and stead of such Grantor and in the name ofsuch Grantor or otherwise, at such time as an Event of Default has occurred and is continuing underthe Credit Agreement, to take any action and to execute any instrument which Agent may reasonablydeem necessary or advisable to accomplish the purposes of this Agreement, including:(a) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance andreceipts for moneys due and to become due under or in connection with the Accounts or any otherCollateral of such Grantor;(b) to receive and open all mail addressed to such Grantor and to notify postal authorities tochange the address for the delivery of mail to such Grantor to that of Agent;(c) to receive, indorse, and collect any drafts or other instruments, documents, NegotiableCollateral or Chattel Paper;(d) to file any claims or take any action or institute any proceedings which Agent may deemnecessary or desirable for the collection of any of the Collateral of such Grantor or otherwise toenforce the rights of Agent with respect to any of the Collateral;(e) to repair, alter, or supply goods, if any, necessary to fulfill in whole or in part thepurchase order of any Person obligated to such Grantor in respect of any Account of such Grantor;(f) to use any Intellectual Property or Intellectual Property Licenses of such Grantor, ineach case constituting Collateral, including but not limited to any labels, Patents, Trademarks,trade names, URLs, domain names, industrial designs, Copyrights, or advertising matter, inpreparing for sale, advertising for sale, or selling Inventory or other Collateral and to collectany amounts due under Accounts, contracts or Negotiable Collateral of such Grantor; and(g) Agent, on behalf of the Lender Group or the Bank Product Providers, shall have the right,but shall not be obligated, to bring suit in its own name to enforce the Intellectual Property andIntellectual Property Licenses and, if Agent shall commence any such suit, the appropriate Grantorshall, at the request of Agent, do any and all lawful acts and execute any and all proper documentsreasonably required by Agent in aid of such enforcement.To the extent permitted by law, each Grantor hereby ratifies all that such attorney-in-factshall lawfully do or cause to be done by virtue hereof. This power of attorney is coupled with aninterest and shall be irrevocable until this Agreement is terminated.11. Agent May Perform. If any Grantor fails to perform any agreement containedherein, Agent may itself perform, or cause performance of, such agreement, and the reasonableexpenses of Agent incurred in connection therewith shall be payable, jointly and severally, byGrantors.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
12. Agent’s Duties. The powers conferred on Agent hereunder are solely to protectAgent’s interest in the Collateral, for the benefit of the Lender Group and the Bank ProductProviders, and shall not impose any duty upon Agent to exercise any such powers. Except for thesafe custody of any Collateral in its actual possession and the accounting for moneys actuallyreceived by it hereunder, Agent shall have no duty as to any Collateral or as to the taking of anynecessary steps to preserve rights against prior parties or any other rights pertaining to anyCollateral. Agent shall be deemed to have exercised reasonable care in the custody andpreservation of any Collateral in its actual possession if such Collateral is accorded treatmentsubstantially equal to that which Agent accords its own property.13. Collection of Accounts, General Intangibles and Negotiable Collateral. At anytime upon the occurrence and during the continuance of an Event of Default, Agent or Agent’sdesignee may (a) notify Account Debtors of any Grantor that the Accounts, General Intangibles,Chattel Paper or Negotiable Collateral of such Grantor have been assigned to Agent, for the benefitof the Lender Group and the Bank Product Providers, or that Agent has a security interest therein,and (b) collect the Accounts, General Intangibles and Negotiable Collateral of any Grantordirectly, and any collection costs and expenses shall constitute part of such Grantor’s SecuredObligations under the Loan Documents.14. Disposition of Pledged Interests by Agent. None of the Pledged Interests existingas of the date of this Agreement are, and none of the Pledged Interests hereafter acquired on thedate of acquisition thereof will be, registered or qualified under the various federal or statesecurities laws of the United States and disposition thereof after an Event of Default may berestricted to one or more private (instead of public) sales in view of the lack of suchregistration. Each Grantor understands that in connection with such disposition, Agent mayapproach only a restricted number of potential purchasers and further understands that a sale undersuch circumstances may yield a lower price for the Pledged Interests than if the Pledged Interestswere registered and qualified pursuant to federal and state securities laws and sold on the openmarket. Each Grantor, therefore, agrees that: (a) if Agent shall, pursuant to the terms of thisAgreement, sell or cause the Pledged Interests or any portion thereof to be sold at a private sale,Agent shall have the right to rely upon the advice and opinion of any nationally recognizedbrokerage or investment firm (but shall not be obligated to seek such advice and the failure to doso shall not be considered in determining the commercial reasonableness of such action) as to thebest manner in which to offer the Pledged Interest or any portion thereof for sale and as to thebest price reasonably obtainable at the private sale thereof; and (b) such reliance shall beconclusive evidence that Agent has handled the disposition in a commercially reasonable manner.15. Voting and Other Rights in Respect of Pledged Interests.(a) Upon the occurrence and during the continuation of an Event of Default, (i) Agent may, atits option, and with two (2) Business Days prior written notice to any Grantor, and in addition toall rights and remedies available to Agent under any other agreement, at law, in equity, orotherwise, exercise all voting rights, or any other ownership or consensual rights (including anydividend or distribution rights) in respect of the Pledged Interests owned by such Grantor, butunder no circumstances is Agent obligated by the terms of this Agreement to exercise such rights,and (ii) if Agent duly exercises its right to vote any of such Pledged Interests, each Grantorhereby appoints Agent, such Grantor’s true and lawful attorney-in-fact and IRREVOCABLE PROXY tovote such Pledged Interests in any manner Agent deems advisable for or against all matterssubmitted or which may be submitted to a vote of shareholders, partners or members, as the case maybe. The power-of-attorney and proxy granted hereby is coupled with an interest and shall beirrevocable.(b) For so long as any Grantor shall have the right to vote the Pledged Interests owned by it,such Grantor covenants and agrees that it will not, without the prior written consent of Agent,vote or take any consensual action with respect to such Pledged Interests which would materiallyadversely affect the rights of Agent, the other members of the Lender Group, or the Bank ProductProviders, or the value of the Pledged Interests.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
16. Remedies. Upon the occurrence and during the continuance of an Event of Default:(a) Agent may, and, at the instruction of the Required Lenders, shall exercise in respect ofthe Collateral, in addition to other rights and remedies provided for herein, in the other LoanDocuments, or otherwise available to it, all the rights and remedies of a secured party on defaultunder the Code or any other applicable law. Without limiting the generality of the foregoing, eachGrantor expressly agrees that, in any such event, Agent without demand of performance or otherdemand, advertisement or notice of any kind (except a notice specified below of time and place ofpublic or private sale) to or upon any Grantor or any other Person (all and each of which demands,advertisements and notices are hereby expressly waived to the maximum extent permitted by the Codeor any other applicable law), may take immediate possession of all or any portion of the Collateraland (i) require Grantors to, and each Grantor hereby agrees that it will at its own expense andupon request of Agent forthwith, assemble all or part of the Collateral as directed by Agent andmake it available to Agent at one or more locations where such Grantor regularly maintainsInventory, and (ii) without notice except as specified below, sell the Collateral or any partthereof in one or more parcels at public or private sale, at any of Agent’s offices or elsewhere,for cash, on credit, and upon such other terms as Agent may deem commercially reasonable. EachGrantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) daysnotice to the applicable Grantor of the time and place of any public sale or the time after whichany private sale is to be made shall constitute reasonable notification and specifically suchnotice shall constitute a reasonable “authenticated notification of disposition” within the meaningof Section 9-611 of the Code. Agent shall not be obligated to make any sale of Collateralregardless of notice of sale having been given. Agent may adjourn any public or private sale fromtime to time by announcement at the time and place fixed therefor, and such sale may, withoutfurther notice, be made at the time and place to which it was so adjourned. Each Grantor agreesthat the internet shall constitute a “place” for purposes of Section 9-610(b) of the Code. EachGrantor agrees that any sale of Collateral to a licensor pursuant to the terms of a licenseagreement between such licensor and a Grantor is sufficient to constitute a commercially reasonablesale (including as to method, terms, manner, and time) within the meaning of Section 9-610 of theCode.(b) Agent is hereby granted a non-exclusive license or other right to use, without liabilityfor royalties or any other charge, each Grantor’s Intellectual Property to the extent constitutingCollateral, including but not limited to, any labels, Patents, Trademarks, trade names, URLs,domain names, industrial designs, Copyrights, and advertising matter, whether owned by any Grantoror with respect to which any Grantor has rights under license, sublicense, or other agreements(including any Intellectual Property License), as it pertains to the Collateral, in preparing forsale, advertising for sale and selling any Collateral, and each Grantor’s rights under all licensesand all franchise agreements shall inure to the benefit of Agent.(c) Agent may, in addition to other rights and remedies provided for herein, in the other LoanDocuments, or otherwise available to it under applicable law and without the requirement of noticeto or upon any Grantor or any other Person (which notice is hereby expressly waived to the maximumextent permitted by the Code or any other applicable law), (i) with respect to any Grantor’sDeposit Accounts in which Agent’s Liens are perfected by control under Section 9-104 of the Code,instruct the bank maintaining such Deposit Account for the applicable Grantor to pay the balance ofsuch Deposit Account to or for the benefit of Agent, and (ii) with respect to any Grantor’sSecurities Accounts in which Agent’s Liens are perfected by control under Section 9-106 of theCode, instruct the securities intermediary maintaining such Securities Account for the applicableGrantor to (A) transfer any cash in such Securities Account to or for the benefit of Agent, or (B)liquidate any financial assets in such Securities Account that are customarily sold on a recognizedmarket and transfer the cash proceeds thereof to or for the benefit of Agent.(d) Any cash held by Agent as Collateral and all cash proceeds received by Agent in respect ofany sale of, collection from, or other realization upon all or any part of the Collateral shall beapplied against the Secured Obligations in the order set forth in the Credit Agreement. In theevent the proceeds of Collateral are insufficient to satisfy all of the Secured Obligations infull, each Grantor shall remain jointly and severally liable for any such deficiency.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(e) Each Grantor hereby acknowledges that the Secured Obligations arise out of a commercialtransaction, and agrees that if an Event of Default shall occur and be continuing Agent shall havethe right to an immediate writ of possession without notice of a hearing. Agent shall have theright to the appointment of a receiver for the properties and assets of each Grantor, and eachGrantor hereby consents to such rights and such appointment and hereby waives any objection suchGrantor may have thereto or the right to have a bond or other security posted by Agent.17. Remedies Cumulative. Each right, power, and remedy of Agent, any other member ofthe Lender Group, or any Bank Product Provider as provided for in this Agreement, the other LoanDocuments or any Bank Product Agreement now or hereafter existing at law or in equity or by statuteor otherwise shall be cumulative and concurrent and shall be in addition to every other right,power, or remedy provided for in this Agreement, the other Loan Documents and the Bank ProductAgreements or now or hereafter existing at law or in equity or by statute or otherwise, and theexercise or beginning of the exercise by Agent, any other member of the Lender Group, or any BankProduct Provider, of any one or more of such rights, powers, or remedies shall not preclude thesimultaneous or later exercise by Agent, such other member of the Lender Group or such Bank ProductProvider of any or all such other rights, powers, or remedies.18. Marshaling. Agent shall not be required to marshal any present or futurecollateral security (including but not limited to the Collateral) for, or other assurances ofpayment of, the Secured Obligations or any of them or to resort to such collateral security orother assurances of payment in any particular order, and all of its rights and remedies hereunderand in respect of such collateral security and other assurances of payment shall be cumulative andin addition to all other rights and remedies, however existing or arising. To the extent that itlawfully may, each Grantor hereby agrees that it will not invoke any law relating to the marshalingof collateral which might cause delay in or impede the enforcement of Agent’s rights and remediesunder this Agreement or under any other instrument creating or evidencing any of the SecuredObligations or under which any of the Secured Obligations is outstanding or by which any of theSecured Obligations is secured or payment thereof is otherwise assured, and, to the extent that itlawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.19. Indemnity and Expenses.(a) Each Grantor agrees to indemnify Agent and the other members of the Lender Group from andagainst all claims, lawsuits and liabilities (including reasonable attorneys fees) growing out ofor resulting from this Agreement (including enforcement of this Agreement) or any other LoanDocument to which such Grantor is a party, except claims, losses or liabilities resulting from thegross negligence or willful misconduct of the party seeking indemnification as determined by afinal non-appealable order of a court of competent jurisdiction. This provision shall survive thetermination of this Agreement and the Credit Agreement and the repayment of the SecuredObligations.(b) Grantors, jointly and severally, shall, upon demand, pay to Agent (or Agent, may charge tothe Loan Account) all the Lender Group Expenses which Agent may incur in connection with (i) theadministration of this Agreement, (ii) the custody, preservation, use or operation of, or, upon anEvent of Default, the sale of, collection from, or other realization upon, any of the Collateral inaccordance with this Agreement and the other Loan Documents, (iii) the exercise or enforcement ofany of the rights of Agent hereunder or (iv) the failure by any Grantor to perform or observe anyof the provisions hereof.20. Merger, Amendments; Etc. THIS AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS,REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OFPRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTENAGREEMENTS BETWEEN THE PARTIES. No waiver of any provision of this Agreement, and no consent toany departure by any Grantor herefrom, shall in any event be effective unless the same shall be inwriting and signed by Agent, and thensuch waiver or consent shall be effective only in the specific instance and for the specificpurpose for which given. No amendment of any provision of this Agreement shall be effective unlessthe same shall be in writing and signed by Agent and each Grantor to which such amendment applies.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
21. Addresses for Notices. All notices and other communications provided forhereunder shall be given in the form and manner and delivered to Agent at its address specified inthe Credit Agreement, and to any of the Grantors at their respective addresses specified in theCredit Agreement or Guaranty, as applicable, or, as to any party, at such other address as shall bedesignated by such party in a written notice to the other party.22. Continuing Security Interest: Assignments under Credit Agreement. This Agreementshall create a continuing security interest in the Collateral and shall (a) remain in full forceand effect until the Obligations have been paid in full in accordance with the provisions of theCredit Agreement and the Commitments have expired or have been terminated, (b) be binding upon eachGrantor, and their respective successors and assigns, and (c) inure to the benefit of, and beenforceable by, Agent, and its successors, transferees and assigns. Without limiting thegenerality of the foregoing clause (c), any Lender may, in accordance with the provisions of theCredit Agreement, assign or otherwise transfer all or any portion of its rights and obligationsunder the Credit Agreement to any other Person, and such other Person shall thereupon become vestedwith all the benefits in respect thereof granted to such Lender herein or otherwise. Upon paymentin full of the Secured Obligations in accordance with the provisions of the Credit Agreement andthe expiration or termination of the Commitments, the Security Interest granted hereby shallterminate and all rights to the Collateral shall revert to Grantors or any other Person entitledthereto. At such time, Agent will authorize the filing of appropriate termination statements toterminate such Security Interests. No transfer or renewal, extension, assignment, or terminationof this Agreement or of the Credit Agreement, any other Loan Document, or any other instrument ordocument executed and delivered by any Grantor to Agent nor any additional Advances or other loansmade by any Lender to Borrower, nor the taking of further security, nor the retaking or re-deliveryof the Collateral to Grantors, or any of them, by Agent, nor any other act of the Lender Group orthe Bank Product Providers, or any of them, shall release any Grantor from any obligation, except arelease or discharge executed in writing by Agent in accordance with the provisions of the CreditAgreement. Agent shall not by any act, delay, omission or otherwise, be deemed to have waived anyof its rights or remedies hereunder, unless such waiver is in writing and signed by Agent and thenonly to the extent therein set forth. A waiver by Agent of any right or remedy on any occasionshall not be construed as a bar to the exercise of any such right or remedy which Agent wouldotherwise have had on any other occasion.23. Governing Law.(a) THE VALIDITY OF THIS AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF,AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATEDHERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THESTATE OF CALIFORNIA.(b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THISAGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLELAW, FEDERAL COURTS, LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA; PROVIDED,HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BEBROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCHACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND EACH GRANTOR WAIVE, TOTHE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TOASSERT THE DOCTRINE OF FORUMNONCONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITHTHIS SECTION 23(b).Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVETHEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUTOF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORTCLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACHGRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITSJURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OFTHIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.24. New Subsidiaries. Pursuant to Section 5.11 of the Credit Agreement,certain Subsidiaries (whether by acquisition or creation) of any Grantor are required to enter intothis Agreement by executing and delivering in favor of Agent a Joinder to this Agreement insubstantially the form of Annex 1. Upon the execution and delivery of Annex 1 byany such new Subsidiary, such Subsidiary shall become a Grantor hereunder with the same force andeffect as if originally named as a Grantor herein. The execution and delivery of any instrumentadding an additional Grantor as a party to this Agreement shall not require the consent of anyGrantor hereunder. The rights and obligations of each Grantor hereunder shall remain in full forceand effect notwithstanding the addition of any new Grantor hereunder.25. Agent. Each reference herein to any right granted to, benefit conferred upon orpower exercisable by the “Agent” shall be a reference to Agent, for the benefit of each member ofthe Lender Group and each of the Bank Product Providers.26. Miscellaneous.(a) This Agreement is a Loan Document. This Agreement may be executed in any number ofcounterparts and by different parties on separate counterparts, each of which, when executed anddelivered, shall be deemed to be an original, and all of which, when taken together, shallconstitute but one and the same Agreement. Delivery of an executed counterpart of this Agreementby telefacsimile or other electronic method of transmission shall be equally as effective asdelivery of an original executed counterpart of this Agreement. Any party delivering an executedcounterpart of this Agreement by telefacsimile or other electronic method of transmission alsoshall deliver an original executed counterpart of this Agreement but the failure to deliver anoriginal executed counterpart shall not affect the validity, enforceability, and binding effect ofthis Agreement. The foregoing shall apply to each other Loan Document *mutatis mutandis*.(b) Any provision of this Agreement which is prohibited or unenforceable shall be ineffectiveto the extent of such prohibition or unenforceability without invalidating the remaining provisionshereof in that jurisdiction or affecting the validity or enforceability of such provision in anyother jurisdiction. Each provision of this Agreement shall be severable from every other provisionof this Agreement for the purpose of determining the legal enforceability of any specificprovision.(c) Headings and numbers have been set forth herein for convenience only. Unless the contraryis compelled by the context, everything contained in each Section applies equally to this entireAgreement.(d) Neither this Agreement nor any uncertainty or ambiguity herein shall be construed againstany member of the Lender Group or any Grantor, whether under any rule of construction or otherwise.This Agreement has been reviewed by all parties and shall be construed and interpreted accordingto the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions ofall parties hereto.Confidential treatment is being requested for portions of this document. This copy of thedocument filed as an exhibit omits the confidential information subject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this document has been filedseparately with the Securities and Exchange Commission.
 
 

 
(e) The pronouns used herein shall include, when appropriate, either gender and both singularand plural, and the grammatical construction of sentences shall conform thereto.(f) Unless the context of this Agreement clearly requires otherwise, references to the pluralinclude the singular, references to the singular include the plural, the terms “includes” and“including” are not limiting, and the term “or” has, except where otherwise indicated, theinclusive meaning represented by the phrase “and/or”. The words “hereof”, “herein”, “hereby”,“hereunder”, and similar terms in this Agreement refer to this Agreement as a whole and not to anyparticular provision of this Agreement. Section, subsection, clause, schedule, and exhibitreferences herein are to this Agreement unless otherwise specified. Any reference in thisAgreement to any agreement, instrument, or document shall include all alterations, amendments,changes, extensions, modifications, renewals, replacements, substitutions, joinders, andsupplements, thereto and thereof, as applicable (subject to any restrictions on such alterations,amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders,and supplements set forth herein). The words “asset” and “property” shall be construed to have thesame meaning and effect and to refer to any and all tangible and intangible assets and properties,including cash, securities, accounts, and contract rights. Any reference herein to thesatisfaction, repayment, or payment in full of the Secured Obligations shall mean the repayment infull in cash or immediately available funds (or, (a) in the case of contingent reimbursementobligations with respect to Letters of Credit, providing Letter of Credit Collateralization, and(b) in the case of obligations with respect to Bank Products (other than Hedge Obligations),providing Bank Product Collateralization) of all of the Secured Obligations (including the paymentof any termination amount then applicable (or which would or could become applicable as a result ofthe repayment of the other Secured Obligations) under Hedge Agreements provided by Hedge Providers)other than (i) unasserted contingent indemnification Secured Obligations, (ii) any Bank ProductObligations (other than Hedge Obligations) that, at such time, are allowed by the applicable BankProduct Provider to remain outstanding without being required to be repaid or cash collateralized,and (iii) any Hedge Obligations that, at such time, are allowed by the applicable Hedge Provider toremain outstanding without being required to be repaid. Any reference herein to any Person shallbe construed to include such Person’s successors and assigns. Any requirement of a writingcontained herein shall be satisfied by the transmission of a Record.(g) All of the annexes, schedules and exhibits attached to this Agreement shall be deemedincorporated herein by reference.[signature pages follow]IN WITNESS WHEREOF, the undersigned parties hereto have caused this Agreement to be executedand delivered as of the day and year first above written.**GRANTORS:**      **OCLARO TECHNOLOGY LIMITED,**