TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
6
PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
7
Executed this
day of December, 2010.
VONAGE NETWORK LLC
VONAGE MARKETING LLC
VONAGE WORLDWIDE INC.
VONAGE INTERNATIONAL INC.
NOVEGA VENTURE PARTNERS, INC.
VONAGE APPLICATIONS INC.,
as Guarantors
By:
Name:
Kurt Rogers
Title:
Vice President & Secretary
DSP LLC,
as Guarantor
By:
Name:
Kurt Rogers
Title:
President
S-1
Accepted and Agreed:
BANK OF AMERICA, N.A,
as Administrative Agent
By:
Name:
Title:
S-2
EXHIBIT F
FORM OF SECURITY AGREEMENT
[See attached]
F - 1
Form of Security Agreement
Execution Version
SECURITY AGREEMENT
By
VONAGE AMERICA INC.
and
VONAGE HOLDINGS CORP.,
as the Borrowers
and
THE GUARANTORS PARTY HERETO
and
BANK OF AMERICA, N.A.,
as Administrative Agent
Dated as of December 14, 2010
TABLE OF CONTENTS
Page
PREAMBLE
1
RECITALS
1
AGREEMENT
2
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1.
DEFINITIONS
2
SECTION 1.2.
INTERPRETATION
8
SECTION 1.3.
RESOLUTION OF DRAFTING AMBIGUITIES
8
SECTION 1.4.
PERFECTION CERTIFICATE
8
ARTICLE II
GRANT OF SECURITY AND SECURED OBLIGATIONS
SECTION 2.1.
GRANT OF SECURITY INTEREST
9
SECTION 2.2.
FILINGS
10
ARTICLE III
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;
USE OF COLLATERAL
SECTION 3.1.
DELIVERY OF CERTIFICATED SECURITIES COLLATERAL
11
SECTION 3.2.
PERFECTION OF UNCERTIFICATED SECURITIES COLLATERAL
11
SECTION 3.3.
FINANCING STATEMENTS AND OTHER FILINGS; MAINTENANCE OF PERFECTED SECURITY
INTEREST
12
SECTION 3.4.
OTHER ACTIONS
12
SECTION 3.5.
JOINDER OF ADDITIONAL GUARANTORS
15
SECTION 3.6.
SUPPLEMENTS; FURTHER ASSURANCES
15
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.1.
TITLE
16
SECTION 4.2.
VALIDITY OF SECURITY INTEREST
16
-ii-
SECTION 4.3.
DEFENSE OF CLAIMS
17
SECTION 4.4.
OTHER FINANCING STATEMENTS
17
SECTION 4.5.
LOCATION OF INVENTORY AND EQUIPMENT
17
SECTION 4.6.
DUE AUTHORIZATION AND ISSUANCE
17
SECTION 4.7.
CONSENTS, ETC.
17
SECTION 4.8.
COLLATERAL
17
SECTION 4.9.
INSURANCE
18
ARTICLE V
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL
SECTION 5.1.
PLEDGE OF ADDITIONAL SECURITIES COLLATERAL
18
SECTION 5.2.
VOTING RIGHTS; DISTRIBUTIONS; ETC.
18
SECTION 5.3.
DEFAULTS, ETC.
19
SECTION 5.4.
CERTAIN AGREEMENTS OF PLEDGORS AS ISSUERS AND HOLDERS OF EQUITY INTERESTS
20
ARTICLE VI
CERTAIN PROVISIONS CONCERNING INTELLECTUAL
PROPERTY COLLATERAL
SECTION 6.1.
GRANT OF INTELLECTUAL PROPERTY LICENSE
20
SECTION 6.2.
PROTECTION OF ADMINISTRATIVE AGENT'S SECURITY
21
SECTION 6.3.
AFTER-ACQUIRED PROPERTY
21
SECTION 6.4.
LITIGATION
22
ARTICLE VII
CERTAIN PROVISIONS CONCERNING RECEIVABLES
SECTION 7.1.
MAINTENANCE OF RECORDS
22
SECTION 7.2.
LEGEND
23
SECTION 7.3.
MODIFICATION OF TERMS, ETC.
23
SECTION 7.4.
COLLECTION
23
ARTICLE VIII
TRANSFERS
SECTION 8.1.
TRANSFERS OF COLLATERAL
24
-iii-