THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
5
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 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.
[Signature Pages Follow]
6
IN WITNESS WHEREOF, each Guarantor and the Administrative Agent have caused this
Guaranty to be duly executed and delivered by their duly authorized officers as
of the date first above written.
[EACH GUARANTOR], as Guarantor By:
Name:
Title:
Signature Page to Guaranty
Accepted and Agreed:
JPMORGAN CHASE BANK, N.A,
as Administrative Agent
By:
Name:
Title:
Signature Page to Guaranty
EXHIBIT J
FORM OF SECURITY AGREEMENT
[Attached.]
EXECUTION COPY
SECURITY AGREEMENT
By
VONAGE AMERICA INC.
and
VONAGE HOLDINGS CORP.,
as the Borrowers
and
THE GUARANTORS PARTY HERETO
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Dated as of July 29, 2011
TABLE OF CONTENTS
Page
PREAMBLE
1
RECITALS
1
AGREEMENT
1
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1.
DEFINITIONS
2
SECTION 1.2.
INTERPRETATION
7
SECTION 1.3.
RESOLUTION OF DRAFTING AMBIGUITIES
7
SECTION 1.4.
PERFECTION CERTIFICATE
7
ARTICLE II
GRANT OF SECURITY AND
SECURED OBLIGATIONS
SECTION 2.1.
GRANT OF SECURITY INTEREST
7
SECTION 2.2.
FILINGS
9
ARTICLE III
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;
USE OF COLLATERAL
SECTION 3.1.
DELIVERY OF CERTIFICATED SECURITIES COLLATERAL
9
SECTION 3.2.
PERFECTION OF UNCERTIFICATED SECURITIES COLLATERAL
10
SECTION 3.3.
FINANCING STATEMENTS AND OTHER FILINGS; MAINTENANCE OF PERFECTED SECURITY
INTEREST
10
SECTION 3.4.
OTHER ACTIONS
10
SECTION 3.5.
JOINDER OF ADDITIONAL GUARANTORS
13
SECTION 3.6.
SUPPLEMENTS; FURTHER ASSURANCES
13
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.1.
TITLE
14
SECTION 4.2.
VALIDITY OF SECURITY INTEREST
14
SECTION 4.3.
DEFENSE OF CLAIMS
14
SECTION 4.4.
OTHER FINANCING STATEMENTS
14
SECTION 4.5.
LOCATION OF INVENTORY AND EQUIPMENT
14
SECTION 4.6.
DUE AUTHORIZATION AND ISSUANCE
15
SECTION 4.7.
CONSENTS, ETC.
15
SECTION 4.8.
COLLATERAL
15
SECTION 4.9.
INSURANCE
15
ARTICLE V
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL
SECTION 5.1.
PLEDGE OF ADDITIONAL SECURITIES COLLATERAL
15
SECTION 5.2.
VOTING RIGHTS; DISTRIBUTIONS; ETC.
16
SECTION 5.3.
DEFAULTS, ETC.
17
SECTION 5.4.
CERTAIN AGREEMENTS OF PLEDGORS AS ISSUERS AND HOLDERS OF EQUITY INTERESTS
17
ARTICLE VI
CERTAIN PROVISIONS CONCERNING INTELLECTUAL
PROPERTY COLLATERAL
SECTION 6.1.
GRANT OF INTELLECTUAL PROPERTY LICENSE
17
SECTION 6.2.
PROTECTION OF ADMINISTRATIVE AGENT'S SECURITY
18
SECTION 6.3.
AFTER-ACQUIRED PROPERTY
18
SECTION 6.4.
LITIGATION
19
ARTICLE VII
CERTAIN PROVISIONS CONCERNING
RECEIVABLES
SECTION 7.1.
MAINTENANCE OF RECORDS
19
SECTION 7.2.
LEGEND
19
SECTION 7.3.
MODIFICATION OF TERMS, ETC.
19
SECTION 7.4.
COLLECTION
20
ARTICLE VIII
TRANSFERS
SECTION 8.1.