Exhibit 10.13





Exhibit 10.13




SECURITY AGREEMENT (DOMESTIC)




This SECURITY AGREEMENT (DOMESTIC) (this “Agreement”), dated as of July 26, 2011,
among the Persons listed on the signature pages hereof as “Grantors” and those additional
entities that hereafter become parties hereto by executing the form of Joinder attached hereto as
Annex 1 (each, a “Grantor” and collectively, the “Grantors”), and WELLS
FARGO CAPITAL FINANCE, INC., a California corporation (“WFCF”), in its capacity as agent
for the Lender Group and the Bank Product Providers (in such capacity, together with its successors
and assigns in such capacity, “Agent”).



W I T N E S S E T H:




WHEREAS, Agent and certain lenders party thereto, on the one hand, and Oclaro, Inc., a
Delaware corporation, as parent (“Parent”), and Oclaro Technology Limited, a company
incorporated under the laws of England and Wales, as borrower (“Borrower”) together with
certain of its subsidiaries, also as borrowers, on the other hand, are parties to that certain
Credit Agreement, dated as of August 2, 2006 (as amended, supplemented, or otherwise modified from
time to time prior to the Closing Date, the “Original Credit Agreement”);



WHEREAS, in order to secure the obligations under the Original Credit Agreement, Parent,
Borrower and certain of Parent’s subsidiaries entered into that certain Security Agreement, dated
as of August 2, 2006 (as amended, supplemented, or otherwise modified from time to time prior to
the Closing Date, the “Original Security Agreement”)



WHEREAS, Parent, Borrower, Agent, the lenders party thereto, as “Lenders” (such
Lenders, together with their respective successors and assigns in such capacity, each,
individually, a “Lender” and, collectively, the “Lenders”), have entered into that
certain Amended and Restated Credit Agreement of even date herewith (as amended, restated,
supplemented, or otherwise modified from time to time, the “Credit Agreement”), pursuant to
which Agent and the Lender Group have agreed to make certain financial accommodations available to
Borrower from time to time pursuant to the terms and conditions thereof; and



WHEREAS, in order to induce the Lender Group to enter into the Credit Agreement and the other
Loan Documents, to induce the Bank Product Providers to enter into the Bank Product Agreements, and
to induce the Lender Group and the Bank Product Providers to make financial accommodations to
Borrower as provided for in the Credit Agreement, the other Loan Documents and the Bank Product
Agreements, Grantors have agreed to grant or continue the grant of, as applicable, a security
interest in and to the Collateral in order to secure the prompt and complete payment, observance
and performance of the Secured Obligations.



NOW, THEREFORE, for and in consideration of the recitals made above and other good and
valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:



1. Defined Terms. All initially capitalized terms used herein (including in the
preamble and recitals hereof) without definition shall have the meanings ascribed thereto in the
Credit Agreement (including Schedule 1.1 thereto). Any terms (whether capitalized or lower case)
used in this Agreement that are defined in the Code shall be construed and defined as set forth in
the Code unless otherwise defined herein or in the Credit Agreement; provided,
however, that to the extent that the Code is used to define any term used herein and if
such term is defined differently in different Articles of the Code, the definition of such term
contained in Article 9 of the Code shall govern. In addition to those terms defined elsewhere in
this Agreement, as used in this Agreement, the following terms shall have the following meanings:




(a) “Account” means an account (as that term is defined in Article 9 of the Code).



(b) “Account Debtor” means an account debtor (as that term is defined in the Code).



Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.



 


 









 






(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 Credit
Agreement.



(g) “Bank Product Provider” has the meaning specified therefor in the Credit
Agreement.



(h) “Books” means books and records (including each Grantor’s Records indicating,
summarizing, or evidencing such Grantor’s assets (including the Collateral) or liabilities, each
Grantor’s Records relating to such Grantor’s business operations or financial condition, and each
Grantor’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), and
includes tangible chattel paper and electronic chattel paper.



(l) “Code” means the California Uniform Commercial Code, as in effect from time to
time; provided, however, that in the event that, by reason of mandatory provisions
of law, any or all of the attachment, perfection, priority, or remedies with respect to Agent’s
Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a
jurisdiction other than the State of California, the term “Code” shall mean the Uniform
Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the
provisions 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 in
the 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, in
form and substance reasonably satisfactory to Agent, each of which is executed and delivered by a
Grantor, Agent, and one of the Controlled Account Banks.



(r) “Controlled Account Bank” has the meaning specified therefor in Section
6(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 all
applications 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 with
respect thereto, including payments under all licenses entered into in connection therewith and
damages and payments for past, present, or future infringements thereof, (iv) the right to sue for
past, present, and future infringements thereof, and (v) all of each Grantor’s rights
corresponding thereto throughout the world.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


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(t) “Copyright Security Agreement” means each Copyright Security Agreement executed
and delivered by Grantors, or any of them, and Agent, in substantially the form of Exhibit
A.



(u) “Credit Agreement” has the meaning specified therefor in the recitals to this
Agreement.




(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 the
Code), and includes payment intangibles, contract rights, rights to payment, rights under Hedge
Agreements (including the right to receive payment on account of the termination (voluntarily or
involuntarily) of any such Hedge Agreements), rights arising under common law, statutes, or
regulations, choses or things in action, goodwill, Intellectual Property, Intellectual Property
Licenses, purchase orders, customer lists, monies due or recoverable from pension funds, route
lists, rights to payment and other rights under any royalty or licensing agreements, including
Intellectual Property Licenses, infringement claims, pension plan refunds, pension plan refund
claims, insurance premium rebates, tax refunds, and tax refund claims, interests in a partnership
or limited liability company which do not constitute a security under Article 8 of the Code, and
any other personal property other than Commercial Tort Claims, money, Accounts, Chattel Paper,
Deposit Accounts, goods, Investment Related Property, Negotiable Collateral, and oil, gas, or other
minerals before extraction.



(aa) “Grantor” and “Grantors” have the respective meanings specified therefor
in 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 Credit
Agreement.



(dd) “Intellectual Property” means any and all Patents, Copyrights, Trademarks, trade
secrets, know-how, inventions (whether or not patentable), algorithms, software programs (including
source 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 all
rights 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 Specified
Party 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 to
Intellectual Property owned or controlled by the Specified Party, in each case, including (A) any
software license agreements (other than license agreements for commercially available off-the-shelf
software that is generally available to the public which have been licensed to a Grantor pursuant
to end-user licenses), (B) the license agreements listed on Schedule 3, and (C) the right
to use any of the licenses or other similar rights described in this definition in connection with
the 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 the document
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 filed
separately with the Securities and Exchange Commission.




 


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(gg) “Investment Related Property” means (i) any and all investment property (as that
term is defined in the Code), and (ii) any and all of the following (regardless of whether
classified as investment property under the Code): all Pledged Interests, Pledged Operating
Agreements, and Pledged Partnership Agreements.



(hh) “Joinder” means each Joinder to this Agreement executed and delivered by Agent
and each of the other parties listed on the signature pages thereto, in substantially the form of
Annex 1.




(ii) “Lender Group” has the meaning specified therefor in the Credit Agreement.



(jj) “Lender” and “Lenders” have the respective meanings specified therefor in
the 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 and
patent 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 with
respect thereto, including payments under all licenses entered into in connection therewith and
damages and payments for past, present, or future infringements thereof, (iv) the right to sue for
past, present, and future infringements thereof, and (v) all of each Grantor’s rights corresponding
thereto throughout the world.



(pp) “Patent Security Agreement” means each Patent Security Agreement executed and
delivered 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 “Pledged
Company”, together with each other Person, all or a portion of whose Stock is acquired or otherwise
owned by a Grantor after the Closing Date.



(tt) “Pledged Interests” means all of each Grantor’s right, title and interest in and
to all of the Stock, to the extent such Stock constitutes Collateral, now owned or hereafter
acquired by such Grantor, regardless of class or designation, including in each of the Pledged
Companies, and all substitutions therefor and replacements thereof, all proceeds thereof and all
rights relating thereto, also including any certificates representing the Stock, the right to
receive any certificates representing any of the Stock, all warrants, options, share appreciation
rights and other rights, contractual or otherwise, in respect thereof and the right to receive all
dividends, distributions of income, profits, surplus, or other compensation by way of income or
liquidating distributions, in cash or in kind, and all cash, instruments, and other property from
time to time received, receivable, or otherwise distributed in respect of or in addition to, in
substitution 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 the document
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 filed
separately with the Securities and Exchange Commission.




 


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(uu) “Pledged Interests Addendum” means a Pledged Interests Addendum substantially in
the 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, and
remedies under the limited liability company operating agreements of each of the Pledged Companies
that are limited liability companies.



(xx) “Pledged Partnership Agreements” means all of each Grantor’s rights, powers, and
remedies 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 or
hereafter 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 is
stored 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 the
present 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 case
of 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 allowed
or 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 the
Code).



(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 defined
in the Code), and includes letters of credit and guaranties issued in support of Accounts, Chattel
Paper, 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 service
marks 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 respect
thereto, including payments under all licenses entered into in connection therewith and damages and
payments 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 business
symbolized by the foregoing or connected therewith, and (vi) all of each Grantor’s rights
corresponding thereto throughout the world.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


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(jjj) “Trademark Security Agreement” means each Trademark Security Agreement executed
and delivered by Grantors, or any of them, and Agent, in substantially the form of Exhibit
D.



(kkk) “Triggering Event” means, as of any date of determination, that an Event of
Default 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 a
beneficiary issued at the request of [***] as support for accounts with respect to purchases of
product by [***] from Borrower.



2. Grant of Security. Each Grantor hereby unconditionally grants, assigns, and
pledges to Agent, for the benefit of each member of the Lender Group and each of the Bank Product
Providers, to secure the Secured Obligations, a continuing security interest (hereinafter referred
to as the “Security Interest”) in all of such Grantor’s right, title, and interest in and
to 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 or
hereafter come into the possession, custody, or control of Agent (or its agent or designee) or any
other member of the Lender Group; and


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


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(m) all of the proceeds (as such term is defined in the Code) and products, whether tangible
or intangible, of any of the foregoing, including proceeds of insurance or Commercial Tort Claims
covering or relating to any or all of the foregoing, and any and all Accounts, Books, Chattel
Paper, Deposit Accounts, Equipment, Fixtures, General Intangibles, Inventory, Investment Related
Property, Negotiable Collateral, Supporting Obligations, money, or other tangible or intangible
property resulting from the sale, lease, license, exchange, collection, or other disposition of any
of the foregoing, the proceeds of any award in condemnation with respect to any of the foregoing,
any rebates or refunds, whether for taxes or 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 the foregoing
(the “Proceeds”). Without limiting the generality of the foregoing, the term “Proceeds”
includes whatever is receivable or received when Investment Related Property or proceeds are sold,
exchanged, collected, or otherwise disposed of, whether such disposition is voluntary or
involuntary, and includes proceeds of any indemnity or guaranty payable to any Grantor or Agent
from time to time with respect to any of the Investment Related Property. Notwithstanding the
foregoing 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 the
terms of such contract lease, permit, license, charter or license agreement, or applicable law with
respect thereto, the valid grant of a security interest or lien therein to Agent is prohibited as a
matter of law or under the terms of such contract (including where the violation of any such
prohibition 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 of
the other party to such contract, lease, permit license, charter or license agreement has not been
or 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 of
the Code or other applicable law, or (b) so as to limit, impair or otherwise affect Agent’s
continuing security interests in and liens upon any rights or interests of a Grantor in or to
monies due or to become due under any described contract, lease permit, license, charter or license
agreement (including any Accounts), or (c) to limit, impair, or otherwise affect Agent’s continuing
security interests in and liens upon any rights or interest of a Grantor in and to any proceeds
from 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 Stock
represents more than 65% of the outstanding voting Stock of any such CFC that is a first tier
Subsidiary of Parent or other Loan Party or 0% of the outstanding voting Stock of any Subsidiary of
such first tier Subsidiary of Parent or other Loan Party, and (y) pledging or hypothecating more
than the foregoing amount of the total outstanding voting Stock of such CFC would result in adverse
tax consequences or the costs to the Grantors of providing such pledge or perfecting the security
interests created thereby are unreasonably excessive (as determined by Agent in consultation with
Borrower) in relation to the benefits of Agent and the Lenders of the security or guarantee
afforded thereby (which pledge, if reasonably requested by Agent, shall be governed by the laws of
the jurisdiction of such Subsidiary), or (iii) any United States intent-to-use trademark
applications to the extent that, and solely during the period in which, the grant of a security
interest therein would impair the validity or enforceability of such intent-to-use trademark
applications under applicable federal law, provided that upon submission and acceptance by the PTO
of 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 the
payment 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 amounts
which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to
Agent, the Lender Group, the Bank Product Providers or any of them, but for the fact that they are
unenforceable or not allowable (in whole or in part) as a claim in an Insolvency Proceeding
involving any Grantor due to the existence of such Insolvency Proceeding.




4. Grantors Remain Liable.



(a) Anything herein to the contrary notwithstanding, (a) each of the Grantors shall remain
liable under the contracts and agreements included in the Collateral, including the Pledged
Operating Agreements and the Pledged Partnership Agreements, to perform all of the duties and
obligations thereunder to the same extent as if this Agreement had not been executed, (b) the
exercise by Agent or any other member of the Lender Group of any of the rights hereunder shall not
release any Grantor from any of its duties or obligations under such contracts and agreements
included in the Collateral, and (c) none of the members of the Lender Group shall



Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


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have any
obligation or liability under such contracts and agreements included in the Collateral by reason of this Agreement, nor shall any of the members of the Lender Group be
obligated to perform any of the obligations or duties of any Grantors thereunder 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 this Agreement, the Credit
Agreement, or any other Loan Document, Grantors shall have the right to possession and enjoyment of
the Collateral for the purpose of conducting the ordinary course of their respective businesses,
subject to and upon the terms hereof and of the Credit Agreement and the other Loan Documents.
Without limiting the generality of the foregoing, it is the intention of the parties hereto that
record and beneficial ownership of the Pledged Interests, including all voting, 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 the applicable Grantor of
Agent’s election to exercise such rights with respect to the Pledged Interests pursuant to
Section 15.



(b) Grantors shall be entitled to receive and retain any and all dividends and/or
distributions 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 and
all additional shares or instruments or other property received, receivable, or otherwise
distributed 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 the
Pledged 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 similar
corporate reorganization;



(iii) cash paid with respect to, payable, or otherwise distributed on redemption of, or in
exchange for, any Stock of the Pledged Companies, and



(iv) after the occurrence and during the continuance of an Event of Default and receipt of
notice from Agent of the intent to exercise rights under this clause (iv), all dividends and
distributions in respect of any Stock of the Pledged Companies (including cash dividends other than
those described in subparagraphs (ii) and (iii) above),



shall be forthwith delivered to Agent to hold as Collateral and shall, if received by Grantors, be
received in trust for the benefit of Agent, for the ratable benefit of the Lender Group and the
Bank Product Provider, be segregated from the other property or funds of Grantors, and be forthwith
delivered 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 actions
described in Section 8, as Agent may require.



5. Representations and Warranties. Each Grantor hereby represents and warrants to
Agent, for the benefit of the Lender Group and the Bank Product Providers, which representations
and warranties shall be true, correct, and complete, in all material respects (except that such
materiality qualifier shall not be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof), as of the Closing Date, and shall be
true, correct, and complete, in all material respects (except that such materiality qualifier shall
not be applicable to any representations and warranties that already are qualified or modified by
materiality in the text thereof), as of the date of the making of each Advance (or other extension
of credit) made thereafter, as though made on and as of the date of such Advance (or other
extension of credit) (except to the extent that such representations and warranties relate solely
to an earlier date, in which case such representations and warranties shall be true, correct and
complete in all material respects as of such earlier date) and such representations and warranties
shall survive the execution and delivery of this Agreement:



(a) The exact legal name of each of the Grantors is set forth on the signature pages of this
Agreement or a written notice provided to Agent pursuant to Section 6.5 of the Credit
Agreement.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


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(b) Schedule 7 sets forth all Real Property owned by any of the Grantors as of the
Closing Date.



(c) As of the Closing Date: (i) Schedule 2 provides a complete and correct list of all
registered Copyrights owned by any Grantor, all applications for registration of Copyrights owned
by any Grantor, and all other Copyrights owned by any Grantor and material to the conduct of the
business of any Grantor; (ii) Schedule 3 provides a complete and correct list of all
Intellectual Property Licenses entered into by any Grantor pursuant to which (A) any Grantor has
provided any license or other rights in Intellectual Property owned or controlled by such Grantor
to any other Person or (B) any Person has granted to any Grantor any license or other rights in
Intellectual Property owned or controlled by such Person that is material to the business of such
Grantor, including any Intellectual Property that is incorporated in any Inventory, software, or
other product marketed, sold, licensed, or distributed by such Grantor; (iii) Schedule 4
provides a complete and correct list of all Patents owned by any Grantor and all applications for
Patents owned by any Grantor; and (iv) Schedule 5 provides a complete and correct list of
all registered Trademarks owned by any Grantor, all applications for registration of Trademarks
owned by any Grantor, and all other Trademarks owned by any Grantor and material to the conduct of
the business of any Grantor.



(d) (i) (A) to each Grantor’s knowledge, such Grantor owns exclusively or holds licenses in
all Intellectual Property that is necessary to the conduct of its business, and (B) all employees
and contractors of each Grantor who were involved in the creation or development of any
Intellectual Property for such Grantor that is necessary to the business of such Grantor have
signed agreements containing assignment of Intellectual Property rights to such Grantor and
obligations of confidentiality;



(ii) to each Grantor’s knowledge, no Person has infringed or misappropriated or is currently
infringing or misappropriating any Intellectual Property rights owned by such Grantor, in each
case, that either individually or in the aggregate could reasonably be expected to result in a
Material Adverse Change;



(iii) except as set forth on Schedule 9, (A) to each Grantor’s knowledge, (1) such
Grantor has never infringed or misappropriated and is not currently infringing or misappropriating
any 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 or
is currently infringing or misappropriating any Intellectual Property rights of any Person, in each
case, except where such infringement either individually or in the aggregate could not reasonably
be expected to result in a Material Adverse Change, and (B) there are no pending, or to any
Grantor’s knowledge, threatened infringement or misappropriation claims or proceedings pending
against any Grantor, and no Grantor has received any notice or other communication of any actual or
alleged infringement or misappropriation of any Intellectual Property rights of any Person except
where such infringement claims, proceedings, or notices either individually or in the aggregate
could 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 the
conduct of its business are valid, subsisting and enforceable and in compliance with all legal
requirements, filings, and payments and other actions that are required to maintain such
Intellectual Property in full force and effect, and



(v) each Grantor has taken reasonable steps to maintain the confidentiality of and otherwise
protect and enforce its rights in all trade secrets owned by such Grantor that are necessary in the
business of such Grantor.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


9









 





(e) This Agreement creates a valid security interest in the Collateral of each Grantor, to the
extent a security interest therein can be created under the Code, securing the payment of the
Secured Obligations. Except to the extent a security interest in the Collateral cannot be
perfected by the filing of a
financing statement under the Code, all filings and other actions necessary or desirable to
perfect and protect such security interest have been duly taken or will have been taken upon the
filing of financing statements listing each applicable Grantor, as a debtor, and Agent, as secured
party, in the jurisdictions listed next to such Grantor’s name on Schedule 8. Upon the
making of such filings, Agent shall have a first priority perfected security interest in the
Collateral of each Grantor (subject to Permitted Liens) to the extent such security interest can be
perfected by the filing of a financing statement. Upon filing of the Copyright Security Agreement
with the United States Copyright Office, filing of the Patent Security Agreement and the Trademark
Security Agreement with the PTO, and the filing of appropriate financing statements in the
jurisdictions listed on Schedule 8, all action necessary or desirable 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 as such as against any and all
creditors of and purchasers from any Grantor. All action by any Grantor necessary to protect and
perfect such security interest on each item of Collateral has been duly taken.



(f) (i) Except for the Security Interest created hereby, each Grantor is and will at all times
be the sole holder of record and the legal and beneficial owner, free and clear of all Liens other
than Permitted Liens, of the Pledged Interests indicated on Schedule 6 as being owned by
such Grantor and, when acquired by such Grantor, any Pledged Interests acquired after the Closing
Date; (ii) all of the Pledged Interests are duly authorized, validly issued, fully paid and
nonassessable and the Pledged Interests constitute or will constitute the percentage of the issued
and outstanding Stock of the Pledged Companies of such Grantor identified on Schedule 6 as
supplemented 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, to
the extent constituting Collateral, pledged by such Grantor to Agent as provided herein; (iv) all
actions necessary or desirable to perfect and establish the first priority of (subject to Permitted
Liens), or otherwise protect, Agent’s Liens in the Investment Related Property, to the extent
constituting Collateral, and the proceeds thereof, have been duly taken, upon (A) the execution and
delivery of this Agreement; (B) the taking of possession by Agent (or its agent or designee) of any
certificates representing the Pledged Interests, together with undated powers (or other documents
of transfer acceptable to Agent) endorsed in blank by the applicable Grantor; (C) the filing of
financing statements in the applicable jurisdiction set forth on Schedule 8 for such
Grantor with respect to the Pledged Interests of such Grantor that are not represented by
certificates, and (D) with respect to any Securities Accounts, the delivery of Control Agreements
with respect thereto; and (v) each Grantor has delivered to and deposited with Agent all
certificates representing the Pledged Interests owned by such Grantor to the extent such Pledged
Interests are represented by certificates, and undated powers (or other documents of transfer
acceptable to Agent) endorsed in blank with respect to such certificates. None of the Pledged
Interests owned or held by such Grantor has been issued or transferred in violation of any
securities registration, securities disclosure, or similar laws of any jurisdiction to which such
issuance or transfer may be subject.



(g) No consent, approval, authorization, or other order or other action by, and no notice to
or filing with, any Governmental Authority or any other Person is required (i) for the grant of a
Security Interest by such Grantor in and to the Collateral pursuant to this Agreement or for the
execution, 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 Governmental
Authority is required for the exercise by Agent of the voting or other rights provided for in this
Agreement with respect to the Investment Related Property or the remedies in respect of the
Collateral pursuant to this Agreement, except as may be required in connection with such
disposition of Investment Related Property by laws affecting the offering and sale of securities
generally. No consent, approval, authorization, or other order or action by, and no notice to, any
Person is required for the exercise by Agent of the voting or other rights provided for in this
Agreement with respect to the Investment Related Property or the remedies in respect of the
Collateral pursuant to this Agreement. No Intellectual Property License of any Grantor that is
necessary to the conduct of such Grantor’s business requires any consent of any other Person in
order for such Grantor to grant the security interest granted hereunder in such Grantor’s right,
title or interest in or to such Intellectual Property License.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


10









 





(h) As to all limited liability company or partnership interests, issued under any Pledged
Operating Agreement or Pledged Partnership Agreement, each Grantor hereby represents and warrants
that the Pledged Interests issued pursuant to such agreement (A) are not dealt in or traded on
securities 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 Pledged
Operating Agreements, the Pledged Partnership Agreements, or any other agreements governing any of
the Pledged Interests issued under any Pledged Operating Agreement or Pledged Partnership
Agreement, provide that such Pledged Interests are securities governed by Article 8 of the Uniform
Commercial Code as in effect in any relevant jurisdiction.



(i) There is no default, breach, violation or event of acceleration existing under any
promissory 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 of
time or the giving of notice, or both, would constitute a default, breach, violation or event of
acceleration under any Pledged Note. No Grantor that is an obligee under a Pledged Note has waived
any default, breach, violation or event of acceleration under such Pledged Note.



(j) Each Grantor shall have made all payments, filings and recordations necessary to protect
and maintain its interest in such Grantor’s Intellectual Property Rights in the United States or
any 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 all
necessary documents, including all applications for registration of Copyrights, Patents and
Trademarks that are material to the conduct of such Grantor’s business.



(k) Each Grantor has and enforces a policy requiring all employees, consultants and
contractors to execute appropriate assignment agreements, pursuant to which each such employee,
consultant or contractor assigns to such Grantor all of its rights, including all Intellectual
Property Rights, in and to all ideas, inventions, processes, works of authorship and other work
products that relate to such Grantor’s business and that were conceived, created, authored or
developed during the term of such employee’s, consultant’s or contractor’s employment or engagement
by such Grantor. Other than as set forth in Schedules 2, 3, 4 and 5, no past or present employee or
contractor of any Grantor has any ownership interest, license, permission or other right in or to
any 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 any
Grantor, (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 of
any Intellectual Property Rights that are material to the conduct of its business is invalid or
unenforceable or that the use by such Grantor of any such Intellectual Property Rights does or may
violate the rights of any Person. To the best of each Grantor’s knowledge, there is currently no
infringement or unauthorized use of any item of Intellectual Property Rights contained on Schedules
2, 3, 4 or 5.



6. Covenants. Each Grantor, jointly and severally, covenants and agrees with Agent
that from and after the date of this Agreement and until the date of termination of this Agreement
in 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 Chattel
Paper, in each case, to the extent constituting Collateral and having an aggregate value or face
amount of $250,000 or more for all such Negotiable Collateral, Investment Related Property, or
Chattel Paper, the Grantors shall promptly (and in any event within two (2) Business Days after
receipt thereof), notify Agent thereof, and if and to the extent that perfection or priority of
Agent’s Security Interest is dependent on or enhanced by possession, the applicable Grantor,
promptly (and in any event within two (2) Business Days) after request by Agent, shall execute such
other documents and instruments as shall be requested by Agent or, if applicable, endorse and
deliver physical
possession of such Negotiable Collateral, Investment Related Property, or Chattel Paper to
Agent, together with such undated powers (or other relevant document of transfer acceptable to
Agent) endorsed in blank as shall be requested by Agent, and shall do such other acts or things
deemed necessary or desirable by Agent to protect Agent’s Security Interest therein;


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


11









 






(b) Chattel Paper.



(i) Promptly (and in any event within two (2) Business Days) after request by Agent, each
Grantor shall take all steps reasonably necessary to grant Agent control of all electronic Chattel
Paper in accordance with the Code and all “transferable records” as that term is defined in Section
16 of the Uniform Electronic Transaction Act and Section 201 of the federal Electronic Signatures
in Global and National Commerce Act as in effect in any relevant jurisdiction, to the extent that
the 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 extent
constituting Collateral (which retention of possession shall be subject to the extent permitted
hereby and by the Credit Agreement), promptly upon the request of Agent, such Chattel Paper and
instruments shall be marked with the following legend: “This writing and the obligations evidenced
or secured hereby are subject to the Security Interest of Wells Fargo Capital Finance, Inc., as
Agent 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 obtain
an authenticated Control Agreement (which may include a Controlled Account Agreement), from each
bank maintaining a Deposit Account for such Grantor;



(ii) Except to the extent otherwise excused by the Credit Agreement, each Grantor shall obtain
an authenticated Control Agreement, from each issuer of uncertificated securities, securities
intermediary, or commodities intermediary issuing or holding any financial assets or commodities to
or for any Grantor to the extent included in the Collateral;



(iii) Except to the extent otherwise excused by the Credit Agreement, each Grantor shall
obtain an authenticated Control Agreement with respect to all of such Grantor’s investment
property;



(d) Letter-of-Credit Rights. If the Grantors (or any of them) are or become the
beneficiary 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 or
value 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 thereof
and, promptly (and in any event within two (2) Business Days) after request by Agent, enter into a
tri-party agreement with Agent and the issuer or confirming bank with respect to letter-of-credit
rights assigning such letter-of-credit rights to Agent and directing all payments thereunder to
Agent’s Account, all in form and substance satisfactory to Agent; provided, however, that
solely 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;



(e) Commercial Tort Claims. If the Grantors (or any of them) obtain Commercial Tort
Claims having a value, or involving an asserted claim, in the amount of $250,000 or more in the
aggregate 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), notify
Agent upon incurring or otherwise obtaining such Commercial Tort Claims and, promptly (and in any
event within two (2) Business Days) after request by Agent, amend Schedule 1 to describe
such Commercial Tort Claims in a manner that reasonably
identifies such Commercial Tort Claims and which is otherwise reasonably satisfactory to
Agent, and hereby authorizes the filing of additional financing statements or amendments to
existing financing statements describing such Commercial Tort Claims, and agrees to do such other
acts or things deemed necessary or desirable by Agent to give Agent a first priority, perfected
security interest in any such Commercial Tort Claim;


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


12









 





(f) Government Contracts. Other than any Account or Chattel Paper the value of which
does not at any one time exceed $100,000 or Accounts and Chattel paper the aggregate value of which
does not at any one time exceed $250,000, if any Account or Chattel Paper arises out of a contract
or contracts with the United States of America or any department, agency, or instrumentality
thereof, Grantors shall promptly (and in any event within two (2) Business Days of the creation
thereof) notify Agent thereof and, promptly (and in any event within two (2) Business Days) after
request by Agent, execute any instruments or take any steps reasonably required by Agent in order
that 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 written
notice 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 Patent
and Trademark Office or any similar office or agency in any jurisdiction and the United States
Copyright Office or any similar office or agency in any jurisdiction, each Grantor shall execute
and deliver to Agent one or more Copyright Security Agreements, Trademark Security Agreements, or
Patent 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 necessary
in the conduct of such Grantor’s business, to protect and diligently enforce and defend at such
Grantor’s expense its Intellectual Property, to the extent commercially reasonable to do so as
determined 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 all
damages 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 the
Trademarks 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 date
hereof or hereafter until the termination of this Agreement, (D) to take all reasonable and
necessary 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 and
filing 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 the
creation or development of such Intellectual Property to sign agreements containing assignment of
Intellectual Property rights and obligations of confidentiality. Each Grantor further agrees not
to abandon any Intellectual Property or Intellectual Property License that is necessary in the
conduct of such Grantor’s business. Each Grantor hereby agrees to take the steps described in this
Section 6(g)(ii) with respect to all new or acquired Intellectual Property which is
included in the Collateral, to the extent commercially reasonable to do so, to which it or any of
its Subsidiaries is now or later becomes entitled that is necessary in the conduct of such
Grantor’s business;



(iii) Grantors acknowledge and agree that the Lender Group shall have no duties with respect
to any Intellectual Property or Intellectual Property Licenses of any Grantor. Without limiting
the generality of this Section 6(g)(iii), Grantors acknowledge and agree that no member of
the Lender Group shall be under any obligation to take any steps necessary to preserve rights in
the Collateral consisting of Intellectual Property or Intellectual Property Licenses against any
other Person, but any member of the Lender Group may do so at its option from and after the
occurrence and during the continuance of an Event of Default, and all expenses incurred in
connection 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 be chargeable to the Loan Account;


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


13









 





(iv) Grantors shall have no duty to register with the U.S. Copyright Office any unregistered
copyrights (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 register
such 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 Copyright
Security Agreement, or such other documentation as Agent deems necessary in order to perfect and
continue perfected Agent’s Liens on such copyrights following such registration;



(v) On each date on which a Compliance Certificate is delivered by Borrower pursuant to
Section 5.1 of the Credit Agreement, each Grantor shall provide Agent with a written report
of all new Patents or Trademarks that are registered or the subject of pending applications for
registrations, and of all Intellectual Property Licenses that are material to the conduct of such
Grantor’s business, in each case, which were acquired, registered, or for which applications for
registration were filed by any Grantor during the prior period and any statement of use or
amendment to allege use with respect to intent-to-use trademark applications. In the case of such
registrations or applications therefor, which were acquired by any Grantor, each such Grantor shall
file the necessary documents with the appropriate Governmental Authority identifying the applicable
Grantor 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 to
identify such Patent and Trademark registrations and applications therefor (with the exception of
Trademark applications filed on an intent-to-use basis for which no statement of use or amendment
to allege use has been filed) and Intellectual Property Licenses as being subject to the security
interests created thereunder;



(vi) Anything to the contrary in this Agreement notwithstanding, in no event shall any
Grantor, either itself or through any agent, employee, licensee, or designee, file an application
for the registration of any Copyright with the United States Copyright Office or any similar office
or 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 from
the United States Copyright Office of notice of registration of any Copyright, each Grantor shall
promptly (but in no event later than three (3) Business Days following such receipt) notify (but
without duplication of any notice required by Section 6(g)(vii) Agent of such registration
by delivering, or causing to be delivered, to Agent, documentation sufficient for Agent to perfect
Agent’s Liens on such Copyright. If any Grantor acquires from any Person any Copyright registered
with the United States Copyright Office or an application to register any Copyright with the United
States Copyright Office, such Grantor shall promptly (but in no event later than three (3) Business
Days following such acquisition) notify Agent of such acquisition and deliver, or cause to be
delivered, 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 any
Grantor, each such Grantor shall promptly (but in no event later than three (3) Business Days
following such acquisition) file the necessary documents with the appropriate Governmental
Authority identifying the applicable Grantor as the owner (or as a co-owner thereof, if such is the
case) of such Copyrights; and



(vii) Each Grantor shall take, to the extent commercially reasonable, steps to maintain the
confidentiality of, and otherwise protect and enforce its rights in, the Intellectual Property that
is necessary in the conduct of such Grantor’s business, including, as applicable (A) protecting the
secrecy and confidentiality of its confidential information and trade secrets by having and
enforcing a policy requiring all current employees, consultants, licensees, vendors and contractors
with access to such information to execute appropriate confidentiality agreements; (B) taking
actions 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 and
applications of which it is the owner or licensee by having and enforcing a policy
requiring any licensees (or sublicensees) of such source code to enter into license agreements
with commercially reasonable use and non-disclosure restrictions.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


14









 





(viii) Each Grantor agrees to take all necessary steps, including making all necessary
payments and filings in connection with registration, maintenance, and renewal of each Grantor’s
Patents 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 Pledged
Interests after the Closing Date, it shall promptly (and in any event within two (2) Business Days
of acquiring or obtaining such Collateral) deliver to Agent a duly executed Pledged Interests
Addendum identifying such Pledged Interests;



(ii) Upon the occurrence and during the continuance of an Event of Default, following the
request of Agent, all sums of money and property paid or distributed in respect of the Investment
Related Property constituting Collateral that are received by any Grantor shall be held by the
Grantors in trust for the benefit of Agent segregated from such Grantor’s other property, and such
Grantor 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 other
material 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 with
respect to any Pledged Interests, Pledged Operating Agreement, or Pledged Partnership Agreement, or
enter into any agreement or permit to exist any restriction with respect to any Pledged Interests
if the same is prohibited pursuant to the Loan Documents;



(v) Each Grantor agrees that it will cooperate with Agent in obtaining all necessary approvals
and making all necessary filings under federal, state, local, or foreign law to effect the
perfection of the Security Interest on the Investment Related Property which is Collateral or to
effect any sale or transfer thereof;



(vi) As to all limited liability company or partnership interests, issued under any Pledged
Operating Agreement or Pledged Partnership Agreement, each Grantor hereby covenants that the
Pledged Interests issued pursuant to such agreement (A) are not and shall not be dealt in or traded
on securities exchanges or in securities markets, (B) do not and will not constitute investment
company 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 any
other agreements governing any of the Pledged Interests issued under any Pledged Operating
Agreement or Pledged Partnership Agreement, provide or shall provide that such Pledged Interests
are securities governed by Article 8 of the Uniform Commercial Code as in effect in any relevant
jurisdiction.



(i) Real Property; Fixtures. Each Grantor covenants and agrees that upon the
acquisition 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 in
any event within two (2) Business Days of acquisition) notify Agent of the acquisition of such Real
Property and will grant to Agent, for the benefit of the Lender Group and the Bank Product
Providers, a first priority Mortgage on each fee interest in Real Property now or hereafter owned
by such Grantor and shall deliver such other documentation and opinions, in form and substance
satisfactory to Agent, in connection with the grant of such Mortgage as Agent shall request in its
Permitted Discretion, including title insurance policies, financing statements, fixture filings and
environmental audits and such Grantor shall pay all recording costs, intangible taxes and other
fees 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 the Collateral shall remain
personal property regardless of the manner of its attachment or affixation to real property;


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


15









 





(j) Transfers and Other Liens. Grantors shall not (i) sell, assign (by operation of
law or otherwise) or otherwise dispose of, or grant any option with respect to, any of the
Collateral, except as expressly permitted by the Credit Agreement, or (ii) create or permit to
exist any Lien upon or with respect to any of the Collateral of any Grantor, except for Permitted
Liens. The inclusion of Proceeds in the Collateral shall not be deemed to constitute Agent’s
consent to any sale or other disposition of any of the Collateral except as expressly permitted in
this Agreement or the other Loan Documents;




(k) Controlled Accounts.



(i) Each Grantor who maintains any cash balances shall (A) establish and maintain cash
management services of a type and on terms reasonably satisfactory to Agent at one or more of the
banks set forth on Schedule 6(k) (each a “Controlled Account Bank”), and shall take
reasonable steps to ensure that all of its and its Subsidiaries’ Account Debtors forward payment of
the amounts owed by them directly to such Controlled Account Bank, and (B) deposit or cause to be
deposited promptly, and in any event no later than the first Business Day after the date of receipt
thereof, all of their Collections (including those sent directly by their Account Debtors to a
Grantor) into a bank account of such Grantor (each, a “Controlled Account”) at one of the
Controlled Account Banks.



(ii) Each Grantor who maintains any cash balances shall establish and maintain Controlled
Account Agreements with Agent and the applicable Controlled Account Bank, in form and substance
reasonably acceptable to Agent. Each such Controlled Account Agreement shall provide, among other
things, that (A) the Controlled Account Bank will comply with any instructions originated by Agent
directing the disposition of the funds in such Controlled Account without further consent by the
applicable Grantor, (B) the Controlled Account Bank waives, subordinates, or agrees not to exercise
any rights of setoff or recoupment or any other claim against the applicable Controlled Account
other than for payment of its service fees and other charges directly related to the administration
of such Controlled Account and for returned checks or other items of payment, and (C) (1) with
respect 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 Controlled
Account to the Agent’s Account and (2) with respect to Controlled Accounts of any non-Borrower
Grantor, upon the instruction of Agent (an “Activation Instruction”), the Controlled
Account Bank will forward by daily sweep all amounts in the applicable Controlled Account to the
agent’s Account. Agent agrees not to issue an Activation Instruction with respect to such
Controlled Accounts unless a Triggering Event has occurred at the time such Activation Instruction
is issued. Agent agrees to use commercially reasonable efforts to rescind an Activation
Instruction (the “Rescission”) if: (x) the Triggering Event upon which such Activation
Instruction was issued has been waived in writing in accordance with the terms of the Credit
Agreement, and (y) no additional Triggering Event has occurred and is continuing prior to the date
of the Rescission or is reasonably expected to occur on or immediately after the date of the
Rescission.



(iii) So long as no Default or Event of Default has occurred and is continuing, Borrower may
amend Schedule 6(k) to add or replace a Controlled Account Bank or Controlled Account;
provided, however, that (A) such prospective Controlled Account Bank shall be
reasonably satisfactory to Agent, and (B) prior to the time of the opening of such Controlled
Account, the applicable Grantor and such prospective Controlled Account Bank shall have executed
and delivered to Agent a Controlled Account Agreement. Each Grantor shall close any of its
Controlled Accounts (and establish replacement Controlled Account accounts in accordance with the
foregoing sentence) as promptly as practicable and in any event within forty-five (45) days of
notice from Agent that the operating performance, funds transfer, or availability procedures or
performance of the Controlled Account Bank with respect to Controlled Account Accounts or Agent’s
liability under any Controlled Account Agreement with such Controlled Account Bank is no longer
acceptable in Agent’s reasonable judgment.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


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7. Relation to Other Security Documents. The provisions of this Agreement shall be
read 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 this
Agreement and a provision in the Credit Agreement, such provision of the Credit Agreement shall
control.



(b) Patent, Trademark, Copyright Security Agreements. The provisions of the Copyright
Security Agreements, Trademark Security Agreements, and Patent Security Agreements are supplemental
to 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 or
remedies of Agent hereunder. In the event of any conflict between any provision in this Agreement
and a provision in a Copyright Security Agreement, Trademark Security Agreement or Patent Security
Agreement, 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 promptly
execute and deliver all further instruments and documents, and take all further action, that Agent
may reasonably request, in order to perfect and protect the Security Interest granted hereby, to
create, perfect or protect the Security Interest purported to be granted hereby or to enable Agent
to 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, or
amendments thereto, and such Grantor will execute and deliver to Agent such other instruments or
notices, as Agent may reasonably request, in order to perfect and preserve the Security Interest
granted or purported to be granted hereby.



(c) Each Grantor authorizes Agent at any time and from time to time to file, transmit, or
communicate, 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) that
contain any information required by part 5 of Article 9 of the Code for the sufficiency or filing
office acceptance. Each Grantor also hereby ratifies any and all financing statements or
amendments previously filed by Agent in any jurisdiction.



(d) Each Grantor acknowledges that it is not authorized to file any financing statement or
amendment or termination statement with respect to any financing statement filed in connection with
this Agreement without the prior written consent of Agent, subject to such Grantor’s rights under
Section 9-509(d)(2) of the Code.



9. Agent’s Right to Perform Contracts, Exercise Rights, etc. Upon the occurrence and
during the continuance of an Event of Default, Agent (or its designee) (a) may proceed to perform
any and all of the obligations of any Grantor contained in any contract, lease, or other agreement
constituting Collateral and exercise any and all rights of any Grantor therein contained as fully
as such Grantor itself could, (b) shall have the right to use any Grantor’s rights under
Intellectual Property Licenses constituting Collateral in connection with the enforcement of
Agent’s rights hereunder, including the right to prepare for sale and sell any and all Inventory
and 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 in
the name of Agent or any of its nominees.




Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


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10. Agent Appointed Attorney-in-Fact. Each Grantor hereby irrevocably appoints Agent
its attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of
such Grantor or otherwise, at such time as an Event of Default has occurred and is continuing under
the Credit Agreement, to
take any action and to execute any instrument which Agent may reasonably deem necessary or
advisable to accomplish the purposes of this Agreement, including:



(a) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in connection with the Accounts or any other
Collateral of such Grantor;



(b) to receive and open all mail addressed to such Grantor and to notify postal authorities to
change 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, Negotiable
Collateral or Chattel Paper;



(d) to file any claims or take any action or institute any proceedings which Agent may deem
necessary or desirable for the collection of any of the Collateral of such Grantor or otherwise to
enforce 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 the
purchase 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, in
each case constituting Collateral, including but not limited to any labels, Patents, Trademarks,
trade names, URLs, domain names, industrial designs, Copyrights, or advertising matter, in
preparing for sale, advertising for sale, or selling Inventory or other Collateral and to collect
any 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 and
Intellectual Property Licenses and, if Agent shall commence any such suit, the appropriate Grantor
shall, at the request of Agent, do any and all lawful acts and execute any and all proper documents
reasonably required by Agent in aid of such enforcement.



To the extent permitted by law, each Grantor hereby ratifies all that such attorney-in-fact
shall lawfully do or cause to be done by virtue hereof. This power of attorney is coupled with an
interest and shall be irrevocable until this Agreement is terminated.



11. Agent May Perform. If any Grantor fails to perform any agreement contained
herein, Agent may itself perform, or cause performance of, such agreement, and the reasonable
expenses of Agent incurred in connection therewith shall be payable, jointly and severally, by
Grantors.



12. Agent’s Duties. The powers conferred on Agent hereunder are solely to protect
Agent’s interest in the Collateral, for the benefit of the Lender Group and the Bank Product
Providers, and shall not impose any duty upon Agent to exercise any such powers. Except for the
safe custody of any Collateral in its actual possession and the accounting for moneys actually
received by it hereunder, Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights pertaining to any
Collateral. Agent shall be deemed to have exercised reasonable care in the custody and
preservation of any Collateral in its actual possession if such Collateral is accorded treatment
substantially equal to that which Agent accords its own property.



13. Collection of Accounts, General Intangibles and Negotiable Collateral. At any
time upon the occurrence and during the continuance of an Event of Default, Agent or Agent’s
designee 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 benefit
of 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 Grantor directly, and any collection costs and
expenses shall constitute part of such Grantor’s Secured Obligations under the Loan Documents.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


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14. Disposition of Pledged Interests by Agent. None of the Pledged Interests existing
as of the date of this Agreement are, and none of the Pledged Interests hereafter acquired on the
date of acquisition thereof will be, registered or qualified under the various federal or state
securities laws of the United States and disposition thereof after an Event of Default may be
restricted to one or more private (instead of public) sales in view of the lack of such
registration. Each Grantor understands that in connection with such disposition, Agent may
approach only a restricted number of potential purchasers and further understands that a sale under
such circumstances may yield a lower price for the Pledged Interests than if the Pledged Interests
were registered and qualified pursuant to federal and state securities laws and sold on the open
market. Each Grantor, therefore, agrees that: (a) if Agent shall, pursuant to the terms of this
Agreement, 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 recognized
brokerage or investment firm (but shall not be obligated to seek such advice and the failure to do
so shall not be considered in determining the commercial reasonableness of such action) as to the
best manner in which to offer the Pledged Interest or any portion thereof for sale and as to the
best price reasonably obtainable at the private sale thereof; and (b) such reliance shall be
conclusive 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, at
its option, and with two (2) Business Days prior written notice to any Grantor, and in addition to
all rights and remedies available to Agent under any other agreement, at law, in equity, or
otherwise, exercise all voting rights, or any other ownership or consensual rights (including any
dividend or distribution rights) in respect of the Pledged Interests owned by such Grantor, but
under 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 Grantor
hereby appoints Agent, such Grantor’s true and lawful attorney-in-fact and IRREVOCABLE PROXY to
vote such Pledged Interests in any manner Agent deems advisable for or against all matters
submitted or which may be submitted to a vote of shareholders, partners or members, as the case may
be. The power-of-attorney and proxy granted hereby is coupled with an interest and shall be
irrevocable.



(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 materially
adversely affect the rights of Agent, the other members of the Lender Group, or the Bank Product
Providers, or the value of the Pledged Interests.




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 of
the Collateral, in addition to other rights and remedies provided for herein, in the other Loan
Documents, or otherwise available to it, all the rights and remedies of a secured party on default
under the Code or any other applicable law. Without limiting the generality of the foregoing, each
Grantor expressly agrees that, in any such event, Agent without demand of performance or other
demand, advertisement or notice of any kind (except a notice specified below of time and place of
public 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 Code
or any other applicable law), may take immediate possession of all or any portion of the Collateral
and (i) require Grantors to, and each Grantor hereby agrees that it will at its own expense and
upon request of Agent forthwith, assemble all or part of the Collateral as directed by Agent and
make it available to Agent at one or more locations where such Grantor regularly maintains
Inventory, and (ii) without



Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


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notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any of Agent’s offices or elsewhere, for cash, on credit, and upon such
other terms as Agent may deem commercially reasonable. Each Grantor agrees that, to the extent
notice of sale shall be required by law, at least ten (10) days notice to the applicable Grantor of
the time and place of any public sale or the time after which any private sale is to be made shall
constitute reasonable notification and specifically such notice shall constitute a reasonable
“authenticated notification of disposition” within the meaning of Section 9-611 of the Code. Agent
shall not be obligated to make any sale of Collateral regardless of notice of sale having been
given. Agent may adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at the time and place
to which it was so adjourned. Each Grantor agrees that the internet shall constitute a “place” for
purposes of Section 9-610(b) of the Code. Each Grantor agrees that any sale of Collateral to a
licensor pursuant to the terms of a license agreement between such licensor and a Grantor is
sufficient to constitute a commercially reasonable sale (including as to method, terms, manner, and
time) within the meaning of Section 9-610 of the Code.



(b) Agent is hereby granted a non-exclusive license or other right to use, without liability
for royalties or any other charge, each Grantor’s Intellectual Property to the extent constituting
Collateral, including but not limited to, any labels, Patents, Trademarks, trade names, URLs,
domain names, industrial designs, Copyrights, and advertising matter, whether owned by any Grantor
or 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 for
sale, advertising for sale and selling any Collateral, and each Grantor’s rights under all licenses
and 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 Loan
Documents, or otherwise available to it under applicable law and without the requirement of notice
to or upon any Grantor or any other Person (which notice is hereby expressly waived to the maximum
extent permitted by the Code or any other applicable law), (i) with respect to any Grantor’s
Deposit 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 of
such Deposit Account to or for the benefit of Agent, and (ii) with respect to any Grantor’s
Securities Accounts in which Agent’s Liens are perfected by control under Section 9-106 of the
Code, instruct the securities intermediary maintaining such Securities Account for the applicable
Grantor 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 recognized
market 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 of
any sale of, collection from, or other realization upon all or any part of the Collateral shall be
applied against the Secured Obligations in the order set forth in the Credit Agreement. In the
event the proceeds of Collateral are insufficient to satisfy all of the Secured Obligations in
full, each Grantor shall remain jointly and severally liable for any such deficiency.



(e) Each Grantor hereby acknowledges that the Secured Obligations arise out of a commercial
transaction, and agrees that if an Event of Default shall occur and be continuing Agent shall have
the right to an immediate writ of possession without notice of a hearing. Agent shall have the
right to the appointment of a receiver for the properties and assets of each Grantor, and each
Grantor hereby consents to such rights and such appointment and hereby waives any objection such
Grantor 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 of
the Lender Group, or any Bank Product Provider as provided for in this Agreement, the other Loan
Documents or any Bank Product Agreement now or hereafter existing at law or in equity or by statute
or 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 Product
Agreements or now or hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Agent, any other member of the Lender Group, or any Bank
Product Provider, of any one or more of such rights, powers, or
remedies shall not preclude the simultaneous or later exercise by Agent, such other member of
the Lender Group or such Bank Product Provider of any or all such other rights, powers, or
remedies.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


20









 





18. Marshaling. Agent shall not be required to marshal any present or future
collateral security (including but not limited to the Collateral) for, or other assurances of
payment of, the Secured Obligations or any of them or to resort to such collateral security or
other assurances of payment in any particular order, and all of its rights and remedies hereunder
and in respect of such collateral security and other assurances of payment shall be cumulative and
in addition to all other rights and remedies, however existing or arising. To the extent that it
lawfully may, each Grantor hereby agrees that it will not invoke any law relating to the marshaling
of collateral which might cause delay in or impede the enforcement of Agent’s rights and remedies
under this Agreement or under any other instrument creating or evidencing any of the Secured
Obligations or under which any of the Secured Obligations is outstanding or by which any of the
Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it
lawfully 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 and
against all claims, lawsuits and liabilities (including reasonable attorneys fees) growing out of
or resulting from this Agreement (including enforcement of this Agreement) or any other Loan
Document to which such Grantor is a party, except claims, losses or liabilities resulting from the
gross negligence or willful misconduct of the party seeking indemnification as determined by a
final non-appealable order of a court of competent jurisdiction. This provision shall survive the
termination of this Agreement and the Credit Agreement and the repayment of the Secured
Obligations.



(b) Grantors, jointly and severally, shall, upon demand, pay to Agent (or Agent, may charge to
the Loan Account) all the Lender Group Expenses which Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or operation of, or, upon an
Event of Default, the sale of, collection from, or other realization upon, any of the Collateral in
accordance with this Agreement and the other Loan Documents, (iii) the exercise or enforcement of
any of the rights of Agent hereunder or (iv) the failure by any Grantor to perform or observe any
of 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 OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
AGREEMENTS BETWEEN THE PARTIES. No waiver of any provision of this Agreement, and no consent to
any departure by any Grantor herefrom, shall in any event be effective unless the same shall be in
writing and signed by Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No amendment of any provision of
this Agreement shall be effective unless the same shall be in writing and signed by Agent and each
Grantor to which such amendment applies.



21. Addresses for Notices. All notices and other communications provided for
hereunder shall be given in the form and manner and delivered to Agent at its address specified in
the Credit Agreement, and to any of the Grantors at their respective addresses specified in the
Credit Agreement or Guaranty, as applicable, or, as to any party, at such other address as shall be
designated by such party in a written notice to the other party.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


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22. Continuing Security Interest: Assignments under Credit Agreement. This Agreement
shall create a continuing security interest in the Collateral and shall (a) remain in full force
and effect until the Obligations have been paid in full in accordance with the provisions of the
Credit Agreement and the Commitments have expired or have been terminated, (b) be binding upon each
Grantor, and their respective successors and assigns, and (c) inure to the benefit of, and be
enforceable by, Agent, and its successors,
transferees and assigns. Without limiting the generality of the foregoing clause (c), any
Lender may, in accordance with the provisions of the Credit Agreement, assign or otherwise transfer
all or any portion of its rights and obligations under the Credit Agreement to any other Person,
and such other Person shall thereupon become vested with all the benefits in respect thereof
granted to such Lender herein or otherwise. Upon payment in full of the Secured Obligations in
accordance with the provisions of the Credit Agreement and the expiration or termination of the
Commitments, the Security Interest granted hereby shall terminate and all rights to the Collateral
shall revert to Grantors or any other Person entitled thereto. At such time, Agent will authorize
the filing of appropriate termination statements to terminate such Security Interests. No transfer
or renewal, extension, assignment, or termination of this Agreement or of the Credit Agreement, any
other Loan Document, or any other instrument or document executed and delivered by any Grantor to
Agent nor any additional Advances or other loans made by any Lender to Borrower, nor the taking of
further security, nor the retaking or re-delivery of the Collateral to Grantors, or any of them, by
Agent, nor any other act of the Lender Group or the Bank Product Providers, or any of them, shall
release any Grantor from any obligation, except a release or discharge executed in writing by Agent
in accordance with the provisions of the Credit Agreement. Agent shall not by any act, delay,
omission or otherwise, be deemed to have waived any of its rights or remedies hereunder, unless
such waiver is in writing and signed by Agent and then only to the extent therein set forth. A
waiver by Agent of any right or remedy on any occasion shall not be construed as a bar to the
exercise of any such right or remedy which Agent would otherwise 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 RELATED
HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.



(b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, 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 BE
BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH
ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND EACH GRANTOR WAIVE, TO
THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM
NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH
THIS SECTION 23(b).



(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH
GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF
THIS 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 into
this Agreement by executing and delivering in favor of Agent a Joinder to this Agreement in
substantially the form of Annex 1. Upon the execution and delivery of Annex 1 by
any such new Subsidiary, such Subsidiary shall become a Grantor
hereunder with the same force and effect as if originally named as a Grantor herein. The
execution and delivery of any instrument adding an additional Grantor as a party to this Agreement
shall not require the consent of any Grantor hereunder. The rights and obligations of each Grantor
hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor
hereunder.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


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25. Agent. Each reference herein to any right granted to, benefit conferred upon or
power exercisable by the “Agent” shall be a reference to Agent, for the benefit of each member of
the 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 of
counterparts and by different parties on separate counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement
by telefacsimile or other electronic method of transmission shall be equally as effective as
delivery of an original executed counterpart of this Agreement. Any party delivering an executed
counterpart of this Agreement by telefacsimile or other electronic method of transmission also
shall deliver an original executed counterpart of this Agreement but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and binding effect of
this 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 ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such provision in any
other jurisdiction. Each provision of this Agreement shall be severable from every other provision
of this Agreement for the purpose of determining the legal enforceability of any specific
provision.



(c) Headings and numbers have been set forth herein for convenience only. Unless the contrary
is compelled by the context, everything contained in each Section applies equally to this entire
Agreement.



(d) Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against
any 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 according
to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of
all parties hereto.



(e) The pronouns used herein shall include, when appropriate, either gender and both singular
and plural, and the grammatical construction of sentences shall conform thereto.


Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


23









 





(f) Unless the context of this Agreement clearly requires otherwise, references to the plural
include 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, the
inclusive 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 any
particular provision of this Agreement. Section, subsection, clause, schedule, and exhibit
references herein are to this Agreement unless otherwise specified. Any reference in this
Agreement to any agreement, instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, 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 the
same 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 the
satisfaction, repayment, or payment in full of the Secured Obligations shall mean the repayment in
full in cash or immediately available funds (or, (a) in the case of contingent
reimbursement obligations 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 payment of any termination amount then applicable (or which would or could become
applicable as a result of the repayment of the other Secured Obligations) under Hedge Agreements
provided by Hedge Providers) other than (i) unasserted contingent indemnification Secured
Obligations, (ii) any Bank Product Obligations (other than Hedge Obligations) that, at such time,
are allowed by the applicable Bank Product 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 to remain outstanding without being required to be repaid. Any
reference herein to any Person shall be construed to include such Person’s successors and assigns.
Any requirement of a writing contained herein shall be satisfied by the transmission of a Record.



(g) All of the annexes, schedules and exhibits attached to this Agreement shall be deemed
incorporated herein by reference.



[signature pages follow]



Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


24









 





IN WITNESS WHEREOF, the undersigned parties hereto have caused this Agreement to be executed
and delivered as of the day and year first above written.



	 	 	 	 	 
	GRANTORS:	

OCLARO, INC.

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	OCLARO TECHNOLOGY, INC.

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	OCLARO (NEW JERSEY), INC.

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	OCLARO PHOTONICS, INC.

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO SECURITY AGREEMENT]



 


 









 





	 	 	 	 	 
	 	OCLARO (NORTH AMERICA), INC.

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MINTERA CORPORATION

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	AGENT: WELLS FARGO CAPITAL FINANCE, INC., a

California corporation

 	 
	 	By:  
	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


26









 







ANNEX 1 TO SECURITY AGREEMENT




FORM OF JOINDER





Joinder No.
 _____ 
(this “Joinder”), dated as of                     , to the Security
Agreement, dated as of July 26, 2011(as amended, restated, supplemented, or otherwise modified from
time to time, the “Security Agreement”), by and among each of the parties listed on the
signature pages thereto and those additional entities that thereafter become parties thereto
(collectively, jointly and severally, “Grantors” and each, individually, a
“Grantor”) and WELLS FARGO CAPITAL FINANCE, INC., a California corporation
(“WFCF”), in its capacity as agent for the Lender Group and the Bank Product Providers (in
such capacity, together with its successors and assigns in such capacity, “Agent”).



W I T N E S S E T H:




WHEREAS, pursuant to that certain Amended and Restated Credit Agreement dated as of July 26,
2011 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit
Agreement”) by and among Oclaro, Inc., a Delaware corporation (“Parent”), and Oclaro Technology
Limited, a company incorporated under the laws of England and Wales, as borrower
(“Borrower”), the lenders party thereto as “Lenders” (such Lenders, together with
their respective successors and assigns in such capacity, each, individually, a “Lender”
and, collectively, the “Lenders”), and Agent, the Lender Group has agreed to make certain
financial accommodations available to Borrower from time to time pursuant to the terms and
conditions thereof; and



WHEREAS, initially capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Security Agreement or, if not defined therein, in the
Credit Agreement; and



WHEREAS, Grantors have entered into the Security Agreement in order to induce the Lender Group
to make certain financial accommodations to Borrower; and



WHEREAS, pursuant to Section 5.11 of the Credit Agreement and Section 24 of
the Security Agreement, certain Subsidiaries of the Loan Parties, must execute and deliver certain
Loan Documents, including the Security Agreement, and the joinder to the Security Agreement by the
undersigned new Grantor or Grantors (collectively, the “New Grantors”) may be accomplished
by the execution of this Joinder in favor of Agent, for the benefit of the Lender Group and the
Bank Product Providers; and



WHEREAS, each New Grantor (a) is [an Affiliate] [a Subsidiary] of Borrower and, as such, will
benefit by virtue of the financial accommodations extended to Borrower by the Lender Group or the
Bank Product Providers and (b) by becoming a Loan Party will benefit from certain rights granted to
the Loan Parties pursuant to the terms of the Loan Documents and the Bank Product Agreements;



NOW, THEREFORE, for and in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, each New Grantor
hereby agrees as follows:



1. In accordance with Section 24 of the Security Agreement, each New Grantor, by its
signature below, becomes a “Grantor” under the Security Agreement with the same force and effect as
if originally named therein as a “Grantor” and each New Grantor hereby (a) agrees to all of the
terms and provisions of the Security Agreement applicable to it as a “Grantor” thereunder and (b)
represents and warrants that the representations and warranties made by it as a “Grantor”
thereunder are true and correct in all material respects (except that such materiality qualifier
shall not be applicable to any representations and warranties that are already qualified or
modified by materiality in the text thereof) on and as of the date hereof. In furtherance of the
foregoing, each New Grantor does



[SIGNATURE PAGE TO SECURITY AGREEMENT]



 


 









 






hereby unconditionally grant, assign, and pledge to Agent, for the benefit of the Lender Group and the Bank Product Providers, to secure the Secured Obligations,
a continuing security interest in and to all of such New Grantor’s right, title and interest in and
to the Collateral. Schedule 1, “Commercial Tort Claims”, Schedule 2, “Copyrights”,
Schedule 3, “Intellectual Property Licenses”, Schedule 4, “Patents”, Schedule
5, “Trademarks”, Schedule 6, “Pledged Companies”, Schedule 6(k), “Controlled
Account Banks”, Schedule 7, “Owned Real Property”, Schedule 8, “List of Uniform
Commercial Code Filing Jurisdictions”, and Schedule 9, “Intellectual Property
Infringement/Misappropriation” attached hereto supplement Schedule 1, Schedule 2, Schedule 3,
Schedule 4, Schedule 5, Schedule 6, Schedule 6(k), Schedule 7, Schedule 8, and Schedule 9,
respectively, to the Security Agreement and shall be deemed a part thereof for all purposes of the
Security Agreement. Each reference to a “Grantor” in the Security Agreement shall be deemed to
include each New Grantor. The Security Agreement is incorporated herein by reference. Each New
Grantor authorizes Agent at any time and from time to time to file, transmit, or communicate, as
applicable, financing statements and amendments thereto (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) that contain any
information required by part 5 of Article 9 of the Code for the sufficiency or filing office
acceptance. Each New Grantor also hereby ratifies any and all financing statements or amendments
previously filed by Agent in any jurisdiction in connection with the Loan Documents.




2. Each New Grantor represents and warrants to Agent, the Lender Group and the Bank Product
Providers that this Joinder has been duly executed and delivered by such New Grantor and
constitutes its legal, valid, and binding obligation, enforceable against it in accordance with its
terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium, or other similar laws affecting creditors’ rights generally and
general principles of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).



3. This Joinder is a Loan Document. This Joinder may be executed in any number of
counterparts and by different parties on separate counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Joinder. Delivery of an executed counterpart of this Joinder by
telefacsimile or other electronic method of transmission shall be equally as effective as delivery
of an original executed counterpart of this Joinder. Any party delivering an executed counterpart
of this Joinder by telefacsimile or other electronic method of transmission also shall deliver an
original executed counterpart of this Joinder but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of this Joinder.




4. The Security Agreement, as supplemented hereby, shall remain in full force and effect.



5. THE VALIDITY OF THIS JOINDER, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND
THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.



6. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS JOINDER
SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
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 BE BROUGHT, AT AGENT’S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND EACH NEW GRANTOR WAIVE, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON
CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS
SECTION 6.


 


 









 





7. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH NEW GRANTOR HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS JOINDER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH NEW
GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF
THIS JOINDER MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]



 


 









 





IN WITNESS WHEREOF, the parties hereto have caused this Joinder to the Security Agreement to
be executed and delivered as of the day and year first above written.



	 	 	 	 	 
	NEW GRANTORS: 	 [NAME OF NEW GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	[NAME OF NEW GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	AGENT: 	 WELLS FARGO CAPITAL FINANCE,
INC., a California corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



[SIGNATURE PAGE TO JOINDER NO. ___ TO SECURITY AGREEMENT]




 


 









 







EXHIBIT A




COPYRIGHT SECURITY AGREEMENT





This COPYRIGHT SECURITY AGREEMENT (this “Copyright Security Agreement”) is made this

 _____ 
day of
 _____, 20
 _____, by and among Grantors listed on the signature pages hereof
(collectively, jointly and severally, “Grantors” and each individually “Grantor”),
and WELLS FARGO CAPITAL FINANCE, INC., a California corporation(“WFCF”), in its capacity as
agent for the Lender Group and the Bank Product Providers (in such capacity, together with its
successors and assigns in such capacity, “Agent”).



W I T N E S S E T H:




WHEREAS, pursuant to that certain Amended and Restated Credit Agreement dated as of July 26,
2011 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit
Agreement”) by and among Oclaro, Inc., a Delaware corporation (“Parent”), and Oclaro Technology
Limited, a company incorporated under the laws of England and Wales, as borrower
(“Borrower”), the lenders party thereto as “Lenders” (such Lenders, together with
their respective successors and assigns in such capacity, each, individually, a “Lender”
and, collectively, the “Lenders”), and Agent, the Lender Group has agreed to make certain
financial accommodations available to Borrower from time to time pursuant to the terms and
conditions thereof; and



WHEREAS, the members of the Lender Group are willing to make the financial accommodations to
Borrower as provided for in the Credit Agreement, but only upon the condition, among others, that
Grantors shall have executed and delivered to Agent, for the benefit of the Lender Group and the
Bank Product Providers, that certain Security Agreement (Domestic), dated as of July 26, 2011, 2011
(including all annexes, exhibits or schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the “Security Agreement”); and



WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to
Agent, for the benefit of the Lender Group and the Bank Product Providers, this Copyright Security
Agreement;



NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantors hereby agree as follows:



1. DEFINED TERMS. All initially capitalized terms used but not otherwise defined
herein have the meanings given to them in the Security Agreement or, if not defined therein, in the
Credit Agreement.



2. GRANT OF SECURITY INTEREST IN COPYRIGHT COLLATERAL. Each Grantor hereby
unconditionally grants, assigns, and pledges to Agent, for the benefit each member of the Lender
Group and each of the Bank Product Providers, to secure the Secured Obligations, a continuing
security interest (referred to in this Copyright Security Agreement as the “Security
Interest”) in all of such Grantor’s right, title and interest in and to the following, whether
now owned or hereafter acquired or arising and subject to any exclusions set forth in the Security
Agreement (collectively, the “Copyright Collateral”):



(a) all of such Grantor’s Copyrights and Copyright Intellectual Property Licenses to which it
is a party including those referred to on Schedule I;



(b) all renewals or extensions of the foregoing; and


 


 









 





(c) all products and proceeds of the foregoing, including any claim by such Grantor against
third parties for past, present or future infringement of any Copyright or any Copyright
exclusively licensed under any Intellectual Property License, including the right to receive
damages, or the right to receive license fees, royalties, and other compensation under any
Copyright Intellectual Property License.



3. SECURITY FOR SECURED OBLIGATIONS. This Copyright Security Agreement and the
Security Interest created hereby secures the payment and performance of the Secured Obligations,
whether now existing or arising hereafter. Without limiting the generality of the foregoing, this
Copyright Security Agreement secures the payment of all amounts which constitute part of the
Secured Obligations and would be owed by Grantors, or any of them, to Agent, the Lender Group, the
Bank Product Providers or any of them, whether or not they are unenforceable or not allowable due
to the existence of an Insolvency Proceeding involving any Grantor.



4. SECURITY AGREEMENT. The Security Interest granted pursuant to this Copyright
Security Agreement is granted in conjunction with the security interests granted to Agent, for the
benefit of the Lender Group and the Bank Product Providers, pursuant to the Security Agreement.
Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to
the Security Interest in the Copyright Collateral made and granted hereby are more fully set forth
in the Security Agreement, the terms and provisions of which are incorporated by reference herein
as if fully set forth herein. To the extent there is any inconsistency between this Copyright
Security Agreement and the Security Agreement, the Security Agreement shall control.



5. AUTHORIZATION TO SUPPLEMENT. Grantors shall give Agent prior written notice of no
less than three (3) Business Days before filing any additional application for registration of any
copyright and prompt notice in writing of any additional copyright registrations granted therefor
after the date hereof. Without limiting Grantors’ obligations under this Section, Grantors hereby
authorize Agent unilaterally to modify this Copyright Security Agreement by amending Schedule
I to include any future United States registered copyrights or applications therefor which
constitute Collateral of each Grantor. Notwithstanding the foregoing, no failure to so modify this
Copyright Security Agreement or amend Schedule I shall in any way affect, invalidate or
detract from Agent’s continuing security interest in all Collateral, whether or not listed on
Schedule I.



6. COUNTERPARTS. This Copyright Security Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Copyright Security Agreement. Delivery of an executed counterpart
of this Copyright Security Agreement by telefacsimile or other electronic method of transmission
shall be equally as effective as delivery of an original executed counterpart of this Copyright
Security Agreement. Any party delivering an executed counterpart of this Copyright Security
Agreement by telefacsimile or other electronic method of transmission also shall deliver an
original executed counterpart of this Copyright Security Agreement but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and binding effect of
this Copyright Security Agreement.



7. CONSTRUCTION. This Copyright Security Agreement is a Loan Document. Unless the
context of this Copyright Security Agreement clearly requires otherwise, references to the plural
include 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, the
inclusive meaning represented by the phrase “and/or”. The words “hereof”, “herein”, “hereby”,
“hereunder”, and similar terms in this Copyright Security Agreement refer to this Copyright
Security Agreement as a whole and not to any particular provision of this Copyright Security
Agreement. Section, subsection, clause, schedule, and exhibit references herein are to this
Copyright Security Agreement unless otherwise specified. Any reference in this Copyright Security
Agreement to any agreement, instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, thereto


 


2









 






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 the same 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 the satisfaction, repayment, or
payment in full of the Secured Obligations shall mean the repayment in full in cash or immediately
available funds (or, (a) in the case of contingent reimbursement obligations 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 payment of any termination
amount then applicable (or which would or could become applicable as a result of the repayment of
the other Secured Obligations) under Hedge Agreements provided by Hedge Providers) other than (i)
unasserted contingent indemnification Secured Obligations, (ii) any Bank Product Obligations (other
than Hedge Obligations) that, at such time, are allowed by the applicable Bank Product 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 to remain outstanding
without being required to be repaid. Any reference herein to any Person shall be construed to
include such Person’s successors and permitted assigns. Any requirement of a writing contained
herein shall be satisfied by the transmission of a Record.



8. THE VALIDITY OF THIS COPYRIGHT SECURITY AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING
HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA.



9. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS COPYRIGHT
SECURITY AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, 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 BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT
ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND
EACH GRANTOR WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT
THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT
IN ACCORDANCE WITH THIS SECTION 9.



10. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH
GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF
THIS COPYRIGHT SECURITY AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.



[SIGNATURE PAGE FOLLOWS]



 


3









 





IN WITNESS WHEREOF, the parties hereto have caused this Copyright Security Agreement to be
executed and delivered as of the day and year first above written.



	 	 	 	 	 
	GRANTORS:  	                                                            

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	



AGENT: 	ACCEPTED AND ACKNOWLEDGED BY:



 WELLS FARGO CAPITAL FINANCE, INC.,

a California corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 


 












 





EXHIBIT B




PATENT SECURITY AGREEMENT





This PATENT SECURITY AGREEMENT (this “Patent Security Agreement”) is made this
 _____ 
day
of                     , 20
 _____, by and among the Grantors listed on the signature pages hereof (collectively,
jointly and severally, “Grantors” and each individually “Grantor”), and WELLS FARGO
CAPITAL FINANCE, INC., a California corporation (“WFCF”), in its capacity as agent for the
Lender Group and the Bank Product Providers (in such capacity, together with its successors and
assigns in such capacity, “Agent”).



W I T N E S S E T H:




WHEREAS, pursuant to that certain Amended and Restated Credit Agreement dated as of July 26,
2011 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit
Agreement”) by and among Oclaro, Inc., a Delaware corporation (“Parent”), and Oclaro Technology
Limited, a company incorporated under the laws of England and Wales, as borrower
(“Borrower”), the lenders party thereto as “Lenders” (such Lenders, together with
their respective successors and assigns in such capacity, each, individually, a “Lender”
and, collectively, the “Lenders”), and Agent, the Lender Group has agreed to make certain
financial accommodations available to Borrower from time to time pursuant to the terms and
conditions thereof; and



WHEREAS, the members of Lender Group are willing to make the financial accommodations to
Borrower as provided for in the Credit Agreement, but only upon the condition, among others, that
the Grantors shall have executed and delivered to Agent, for the benefit of the Lender Group and
the Bank Product Providers, that certain Security Agreement (Domestic), dated as of July 26, 2011
(including all annexes, exhibits or schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the “Security Agreement”); and



WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to
Agent, for the benefit of the Lender Group and the Bank Product Providers, this Patent Security
Agreement;



NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Grantor hereby agrees as follows:



1. DEFINED TERMS. All initially capitalized terms used but not otherwise defined
herein have the meanings given to them in the Security Agreement or, if not defined therein, in the
Credit Agreement.



2. GRANT OF SECURITY INTEREST IN PATENT COLLATERAL. Each Grantor hereby
unconditionally grants, assigns, and pledges to Agent, for the benefit each member of the Lender
Group and each of the Bank Product Providers, to secure the Secured Obligations, a continuing
security interest (referred to in this Patent Security Agreement as the “Security
Interest”) in all of such Grantor’s right, title and interest in and to the following, whether
now owned or hereafter acquired or arising and subject to any exclusions set forth in the Security
Agreement (collectively, the “Patent Collateral”):



(a) all of its Patents and Patent Intellectual Property Licenses to which it is a party
including those referred to on Schedule I;



(b) all divisionals, continuations, continuations-in-part, reissues, reexaminations, or
extensions of the foregoing; and


 


2









 





(c) all products and proceeds of the foregoing, including any claim by such Grantor against
third parties for past, present or future infringement of any Patent or any Patent exclusively
licensed under any Intellectual Property License, including the right to receive damages, or right
to receive license fees, royalties, and other compensation under any Patent Intellectual Property
License.



3. SECURITY FOR SECURED OBLIGATIONS. This Patent Security Agreement and the Security
Interest created hereby secures the payment and performance of the Secured Obligations, whether now
existing or arising hereafter. Without limiting the generality of the foregoing, this Patent
Security Agreement secures the payment of all amounts which constitute part of the Secured
Obligations and would be owed by Grantors, or any of them, to Agent, the Lender Group, the Bank
Product Providers or any of them, whether or not they are unenforceable or not allowable due to the
existence of an Insolvency Proceeding involving any Grantor.



4. SECURITY AGREEMENT. The Security Interest granted pursuant to this Patent Security
Agreement is granted in conjunction with the security interests granted to Agent, for the benefit
of the Lender Group and the Bank Product Providers, pursuant to the Security Agreement. Each
Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the
Security Interest in the Patent Collateral made and granted hereby are more fully set forth in the
Security Agreement, the terms and provisions of which are incorporated by reference herein as if
fully set forth herein. To the extent there is any inconsistency between this Patent Security
Agreement and the Security Agreement, the Security Agreement shall control.



5. AUTHORIZATION TO SUPPLEMENT. If any Grantor shall obtain rights to any new patent
application or issued patent or become entitled to the benefit of any patent application or patent
for any divisional, continuation, continuation-in-part, reissue, or reexamination of any existing
patent or patent application, the provisions of this Patent Security Agreement shall automatically
apply thereto. Grantors shall give prompt notice in writing to Agent with respect to any such new
patent rights. Without limiting Grantors’ obligations under this Section, Grantors hereby
authorize Agent unilaterally to modify this Patent Security Agreement by amending Schedule
I to include any such new patent rights which constitute Collateral of each Grantor.
Notwithstanding the foregoing, no failure to so modify this Patent Security Agreement or amend
Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security
interest in all Collateral, whether or not listed on Schedule I.



6. COUNTERPARTS. This Patent Security Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Patent Security Agreement. Delivery of an executed counterpart of
this Patent Security Agreement by telefacsimile or other electronic method of transmission shall be
equally as effective as delivery of an original executed counterpart of this Patent Security
Agreement. Any party delivering an executed counterpart of this Patent Security Agreement by
telefacsimile or other electronic method of transmission also shall deliver an original executed
counterpart of this Patent Security Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of this Patent
Security Agreement.



7. CONSTRUCTION. This Patent Security Agreement is a Loan Document. Unless the
context of this Patent Security Agreement clearly requires otherwise, references to the plural
include 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, the
inclusive meaning represented by the phrase “and/or”. The words “hereof”, “herein”, “hereby”,
“hereunder”, and similar terms in this Patent Security Agreement refer to this Patent Security
Agreement as a whole and not to any particular provision of this Patent Security Agreement.
Section, subsection, clause, schedule, and exhibit references herein are to this Patent Security
Agreement unless otherwise specified. Any reference in this Patent Security Agreement to any
agreement, instrument, or document shall include all alterations, amendments,


 


3









 






changes, extensions,
modifications, renewals, replacements, substitutions, joinders, and supplements, 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 the same 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 the satisfaction, repayment, or
payment in full of the Secured Obligations shall mean the repayment in full in cash or immediately
available funds (or, (a) in the case of contingent reimbursement obligations 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 payment of any termination
amount then applicable (or which would or could become applicable as a result of the repayment of
the other Secured Obligations) under Hedge Agreements provided by Hedge Providers) other than (i)
unasserted contingent indemnification Secured Obligations, (ii) any Bank Product Obligations (other
than Hedge Obligations) that, at such time, are allowed by the applicable Bank Product 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 to remain outstanding
without being required to be repaid. Any reference herein to any Person shall be construed to
include such Person’s successors and permitted assigns. Any requirement of a writing contained
herein shall be satisfied by the transmission of a Record.



8. THE VALIDITY OF THIS PATENT SECURITY AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING
HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA.



9. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS PATENT
SECURITY AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, 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 BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT
ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND
EACH GRANTOR WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT
THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT
IN ACCORDANCE WITH THIS SECTION 9.



10. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH
GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF
THIS PATENT SECURITY AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.



[SIGNATURE PAGE FOLLOWS]



 


4









 





IN WITNESS WHEREOF, the parties hereto have caused this Patent Security Agreement to be
executed and delivered as of the day and year first above written.



	 	 	 	 	 
	GRANTORS:  	 	 
	 
	 	By:  	

 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	



AGENT: 	ACCEPTED AND ACKNOWLEDGED BY:



WELLS FARGO CAPITAL FINANCE, INC.,

a California corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO PATENT SECURITY AGREEMENT]




 


 









 







EXHIBIT C




PLEDGED INTERESTS ADDENDUM





This
Pledged Interests Addendum, dated as of                      _____, 20
 _____ 
(this “Pledged Interests
Addendum”), is delivered pursuant to Section 6 of the Security Agreement referred to below.
The undersigned hereby agrees that this Pledged Interests Addendum may be attached to that certain
Security Agreement (Domestic), dated as of July 26, 2011, (as amended, restated, supplemented, or
otherwise modified from time to time, the “Security Agreement”), made by the undersigned,
together with the other Grantors named therein, to WELLS FARGO CAPITAL FINANCE, INC., a California
corporation, as Agent. Initially capitalized terms used but not defined herein shall have the
meaning ascribed to such terms in the Security Agreement or, if not defined therein, in the Credit
Agreement. The undersigned hereby agrees that the additional interests listed on Schedule
I shall be and become part of the Pledged Interests pledged by the undersigned to Agent in the
Security Agreement and any pledged company set forth on Schedule I shall be and become a
“Pledged Company” under the Security Agreement, each with the same force and effect as if
originally named therein.



This Pledged interests Addendum is a Loan Document. Delivery of an executed counterpart of
this Pledged Interests Addendum by telefacsimile or other electronic method of transmission shall
be equally as effective as delivery of an original executed counterpart of this Pledged Interests
Addendum. If the undersigned delivers an executed counterpart of this Pledged Interests Addendum
by telefacsimile or other electronic method of transmission, the undersigned shall also deliver an
original executed counterpart of this Pledged Interests Addendum but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and binding effect of
this Pledged Interests Addendum.



The undersigned hereby certifies that the representations and warranties set forth in Section
5 of the Security Agreement of the undersigned are true and correct as to the Pledged Interests
listed herein on and as of the date hereof.



THE VALIDITY OF THIS PLEDGED INTERESTS ADDENDUM, THE CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING
HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA.



THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS PLEDGED
INTERESTS ADDENDUM SHALL BE TRIED AND LITIGATED ONLY IN THE STATE, AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, 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 BE BROUGHT,
AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND EACH GRANTOR WAIVE, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON
CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS
PARAGRAPH.


 


 









 





TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
PLEDGED INTERESTS ADDENDUM OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT
AND EACH GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS PLEDGED
INTERESTS ADDENDUM MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.



[SIGNATURE PAGE FOLLOWS]



 


2









 





IN WITNESS WHEREOF, the undersigned has caused this Pledged Interests Addendum to be executed
and delivered as of the day and year first above written.



	 	 	 	 	 
	 	[                    ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 












 







EXHIBIT D




TRADEMARK SECURITY AGREEMENT





This TRADEMARK SECURITY AGREEMENT (this “Trademark Security Agreement”) is made this

 _____ 
day of                     , 20_____, by and among Grantors listed on the signature pages hereof
(collectively, jointly and severally, “Grantors” and each individually “Grantor”),
and WELLS FARGO CAPITAL FINANCE, INC., a California corporation (“WFCF”), in its capacity
as agent for the Lender Group and the Bank Product Providers (in such capacity, together with its
successors and assigns in such capacity, “Agent”).



W I T N E S S E T H:




WHEREAS, pursuant to that certain Amended and Restated Credit Agreement dated as of July 26,
2011 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit
Agreement”) by and among Oclaro, Inc., a Delaware corporation (“Parent”), and Oclaro Technology
Limited, a company incorporated under the laws of England and Wales, as borrower
(“Borrower”), the lenders party thereto as “Lenders” (such Lenders, together with
their respective successors and assigns in such capacity, each, individually, a “Lender”
and, collectively, the “Lenders”), and Agent, the Lender Group has agreed to make certain
financial accommodations available to Borrower from time to time pursuant to the terms and
conditions thereof; and



WHEREAS, the members of the Lender Group are willing to make the financial accommodations to
Borrower as provided for in the Credit Agreement, but only upon the condition, among others, that
Grantors shall have executed and delivered to Agent, for the benefit of Lender Group and the Bank
Product Providers, that certain Security Agreement (Domestic), dated as of July 26, 2011 (including
all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the “Security Agreement”); and



WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to
Agent, for the benefit of Lender Group and the Bank Product Providers, this Trademark Security
Agreement;



NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Grantor hereby agrees as follows:



1. DEFINED TERMS. All initially capitalized terms used but not otherwise defined
herein have the meanings given to them in the Security Agreement or, if not defined therein, in the
Credit Agreement.



2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL. Each Grantor hereby
unconditionally grants, assigns, and pledges to Agent, for the benefit each member of the Lender
Group and each of the Bank Product Providers, to secure the Secured Obligations, a continuing
security interest (referred to in this Trademark Security Agreement as the “Security
Interest”) in all of such Grantor’s right, title and interest in and to the following, whether
now owned or hereafter acquired or arising and subject to any exclusions set forth in the Security
Agreement (collectively, the “Trademark Collateral”):



(a) all of its Trademarks and Trademark Intellectual Property Licenses to which it is a party
including those referred to on Schedule I;



(b) all goodwill of the business connected with the use of, and symbolized by, each Trademark
and each Trademark Intellectual Property License; and


 












 





(c) all products and proceeds (as that term is defined in the Code) of the foregoing,
including any claim by such Grantor against third parties for past, present or future (i)
infringement or dilution of any Trademark or any Trademarks exclusively licensed under any
Intellectual Property License, including right to receive any damages, (ii) injury to the goodwill
associated with any Trademark, or (iii) right to receive license fees, royalties, and other
compensation under any Trademark Intellectual Property License.



3. SECURITY FOR SECURED OBLIGATIONS. This Trademark Security Agreement and the
Security Interest created hereby secures the payment and performance of the Secured Obligations,
whether now existing or arising hereafter. Without limiting the generality of the foregoing, this
Trademark Security Agreement secures the payment of all amounts which constitute part of the
Secured Obligations and would be owed by Grantors, or any of them, to Agent, the Lender Group, the
Bank Product Providers or any of them, whether or not they are unenforceable or not allowable due
to the existence of an Insolvency Proceeding involving any Grantor.



4. SECURITY AGREEMENT. The Security Interest granted pursuant to this Trademark
Security Agreement is granted in conjunction with the security interests granted to Agent, for the
benefit of the Lender Group and the Bank Product Providers, pursuant to the Security Agreement.
Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to
the Security Interest in the Trademark Collateral made and granted hereby are more fully set forth
in the Security Agreement, the terms and provisions of which are incorporated by reference herein
as if fully set forth herein. To the extent there is any inconsistency between this Trademark
Security Agreement and the Security Agreement, the Security Agreement shall control.



5. AUTHORIZATION TO SUPPLEMENT. If any Grantor shall obtain rights to any new
trademarks, the provisions of this Trademark Security Agreement shall automatically apply thereto.
Grantors shall give prompt notice in writing to Agent with respect to any such new trademarks or
renewal or extension of any trademark registration. Without limiting Grantors’ obligations under
this Section, Grantors hereby authorize Agent unilaterally to modify this Trademark Security
Agreement by amending Schedule I to include any such new trademark rights which constitute
Collateral of each Grantor. Notwithstanding the foregoing, no failure to so modify this Trademark
Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from
Agent’s continuing security interest in all Collateral, whether or not listed on Schedule
I.



6. COUNTERPARTS. This Trademark Security Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Trademark Security Agreement. Delivery of an executed counterpart
of this Trademark Security Agreement by telefacsimile or other electronic method of transmission
shall be equally as effective as delivery of an original executed counterpart of this Trademark
Security Agreement. Any party delivering an executed counterpart of this Trademark Security
Agreement by telefacsimile or other electronic method of transmission also shall deliver an
original executed counterpart of this Trademark Security Agreement but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and binding effect of
this Trademark Security Agreement.



7. CONSTRUCTION. This Copyright Security Agreement is a Loan Document. Unless the
context of this Trademark Security Agreement clearly requires otherwise, references to the plural
include 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, the
inclusive meaning represented by the phrase “and/or”. The words “hereof”, “herein”, “hereby”,
“hereunder”, and similar terms in this Trademark Security Agreement refer to this Trademark
Security Agreement as a whole and not to any particular provision of this Trademark Security
Agreement. Section, subsection, clause, schedule, and exhibit references herein are to this
Agreement unless otherwise specified. Any reference in this Trademark Security Agreement to any
agreement, instrument, or document shall include all


 


2









 






alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, 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 the same 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 the satisfaction, repayment, or
payment in full of the Secured Obligations shall mean the repayment in full in cash or immediately
available funds (or, (a) in the case of contingent reimbursement obligations 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 payment of any termination
amount then applicable (or which would or could become applicable as a result of the repayment of
the other Secured Obligations) under Hedge Agreements provided by Hedge Providers) other than (i)
unasserted contingent indemnification Secured Obligations, (ii) any Bank Product Obligations (other
than Hedge Obligations) that, at such time, are allowed by the applicable Bank Product 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 to remain outstanding
without being required to be repaid. Any reference herein to any Person shall be construed to
include such Person’s successors and permitted assigns. Any requirement of a writing contained
herein shall be satisfied by the transmission of a Record.



8. THE VALIDITY OF THIS TRADEMARK SECURITY AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING
HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA.



9. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS TRADEMARK
SECURITY AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, 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 BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT
ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND
EACH GRANTOR WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT
THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT
IN ACCORDANCE WITH THIS SECTION 9.



10. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH
GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF
THIS TRADEMARK SECURITY AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


 


3









 





11. Amendment and Restatement of Original Security Agreement. This Agreement
constitutes an amendment and restatement of the Original Security Agreement effective from and
after the Closing Date. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby are not intended by the parties to be, and shall not constitute, a
novation or an accord and satisfaction of the
Obligations or any other obligations owing to Agent or the Lenders under the Original Security
Agreement, Original Credit Agreement or any other loan document executed in connection therewith.
Each of the parties hereto hereby acknowledges and agrees that the grant of the security interests
in the Collateral pursuant to this Agreement and in any other Loan Document (unless explicitly
agreed to by Agent in writing) is not intended to, nor shall it be construed, as constituting a
release of any prior security interests granted by any Loan Party under the Original Security
Agreement or otherwise in favor of Agent for the benefit of itself, the Lenders, Issuing Lender,
Underlying Issuer and the Bank Product Providers in or to any Collateral or any other Property of
such Loan Party, but is intended to constitute a restatement and reconfirmation of the prior
security interests granted by the Loan Parties in favor of Agent for the benefit of itself, the
Lenders, Issuing Lender, Underlying Issuer and the Bank Product Providers in and to the Collateral
and a grant of a new security interest in any Collateral that is not included in the prior security
grants by the Loan Parties and in favor of Agent for the benefit of itself, the Lenders, Issuing
Lender, Underlying Issuer and the Bank Product Providers to the extent such grant was not included
in the prior security grants..



[SIGNATURE PAGE FOLLOWS]



 


4









 





IN WITNESS WHEREOF, the parties hereto have caused this Trademark Security Agreement to be
executed and delivered as of the day and year first above written.



	 	 	 	 	 
	GRANTORS:  	 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	


AGENT: 	ACCEPTED AND ACKNOWLEDGED BY:



WELLS FARGO CAPITAL FINANCE, INC.,

a California corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




 














 





SCHEDULE 1




Commercial Tort Claims




None.




Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


 









 








SCHEDULE 2




Copyrights




[***]




Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


 









 








SCHEDULE 3




Intellectual Property Licenses




[***]




Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


 









 








SCHEDULE 4




Patents




[***100 pages redacted***]




Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


 









 








SCHEDULE 5




Trademarks




[***10 pages redacted***]




Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


 









 








SCHEDULE 6




Pledged Companies





	 	 	 	 	Certificate(s)	 	Number of
	Name of Pledgor	 	Name of Pledged Company	 	Number	 	Shares/Units
	[***]

	 	Bookham Nominees Limited, a company incorporated under
the laws of England and Wales
	 	[***]
	 	[***]
	[***]

	 	Oclaro Technology Ltd, a limited liability company
incorporated under the laws of England and Wales
	 	[***]
	 	[***]
	[***]

	 	New Focus GmbH, a corporation organized under the laws
of Germany
	 	[***]
	 	[***]
	[***]

	 	Avanex International Corporation, a Delaware corporation
	 	[***]
	 	[***]
	[***]

	 	Avanex U.S.A. Corporation, a Delaware corporation
	 	[***]
	 	[***]
	[***]

	 	Oclaro (Thailand) Limited, a Thai company
	 	[***]
	 	[***]
	[***]

	 	Avanex Communications Technologies Co. Ltd, a company
organized under the laws of the People’s Republic of
China
	 	[***]
	 	[***]
	[***]

	 	Avanex France OIF S.A., a French company
	 	[***]
	 	[***]
	[***]

	 	Rio Sub 1, Inc., a Delaware corporation
	 	[***]
	 	[***]
	[***]

	 	Oclaro (North America), Inc., a Delaware corporation
	 	[***]
	 	[***]
	[***]

	 	Mintera Corporation, a Delaware corporation
	 	[***]
	 	[***]




Confidential treatment is being requested for portions of this document. This copy of the
document 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 filed separately with the Securities and Exchange Commission.




 


 









 






	 	 	 	 	 	 	 
	 	 	 	 	Certificate(s)	 	Number of
	Name of Pledgor	 	Name of Pledged Company	 	Number	 	Shares/Units
	[***]

	 	Oclaro Technology, Inc., a Delaware corporation
	 	[***]
	 	[***]
	[***]

	 	Oclaro Photonics, Inc., a Delaware corporation
	 	[***]
	 	[***]
	[***]

	 	Mintera Corporation, a Delaware corporation
	 	[***]
	 	[***]
	[***]

	 	Oclaro Israel limited, an Israeli corporation
	 	[***]
	 	[***]
	[***]

	 	Oclaro Korea, Inc., a Korean corporation
	 	[***]
	 	[***]






Confidential treatment is being requested for portions of this document. This copy of the
document 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 filed separately with the Securities and Exchange Commission.




 


 









 








SCHEDULE 6(k)




Controlled Account Banks




Wells Fargo Bank N.A.

420 Montgomery St, San Francisco, CA 94163




Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


 









 








SCHEDULE 7




Owned Real Property




None.




Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


 









 








SCHEDULE 8




List of UCC Filing Jurisdictions




	 	 	 	 	 
	GRANTOR	 	JURISDICTION	 
	Mintera Corporation
	 	Delaware
	Oclaro, Inc.
	 	Delaware
	Oclaro (New Jersey), Inc.
	 	Delaware
	Oclaro (North America), Inc.
	 	Delaware
	Oclaro Photonics, Inc.
	 	Delaware
	Oclaro Technology, Inc.
	 	Delaware






Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.




 


 









 








SCHEDULE 9




Intellectual Property Infringement/Misappropriation




[***]




Confidential treatment is being requested for portions of this document. This copy of the document
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 filed
separately with the Securities and Exchange Commission.