1
EXHIBIT 10.91
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SPECTRAN CORPORATION
SPECTRAN COMMUNICATION FIBER TECHNOLOGIES, INC.
SPECTRAN SPECIALTY OPTICS COMPANY
APPLIED PHOTONIC DEVICES, INC.
TO
FLEET NATIONAL BANK, as Trustee
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TRADEMARK SECURITY AGREEMENT
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DATED AS OF DECEMBER 1, 1996
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TRADEMARK SECURITY AGREEMENT
TRADEMARK SECURITY AGREEMENT (as may be amended, restated or otherwise
modified from time to time, this "AGREEMENT"), dated as of December 1, 1996,
among each of SPECTRAN CORPORATION (together, with its successors and assigns,
the "COMPANY"), a Delaware corporation, SPECTRAN COMMUNICATION FIBER
TECHNOLOGIES, INC., a Delaware corporation, SPECTRAN SPECIALTY OPTICS COMPANY, a
Delaware corporation, and APPLIED PHOTONIC DEVICES, INC., a Delaware corporation
(all of the foregoing (other than the Company), together with their respective
successors and assigns, referred to herein, individually, as a "GUARANTOR", and,
collectively, as the "GUARANTORS"; the Company and the Guarantors being
collectively referred to herein as the "OBLIGORS"), and FLEET NATIONAL BANK, a
national banking association, as security trustee under a certain Trust
Indenture (as may be amended, restated or otherwise modified from time to time,
the "TRUST INDENTURE"), dated as of the date hereof, among the Obligors, Fleet
National Bank (in its capacity as such security trustee, and together with any
successor or co-security trustee that becomes such in accordance with the
provisions of the Trust Indenture, the "TRUSTEE") and the other parties
signatory thereto.
1. PRELIMINARY STATEMENTS
1.1 The Liens granted herein to the Trustee by each of the Obligors are
for the ratable benefit of the Beneficiaries, as provided in the Trust
Indenture.
1.2 The Trustee is to act as trustee on behalf of the Beneficiaries in
accordance with the terms of the Trust Indenture and the other Security
Documents.
1.3 All acts and proceedings required by law and by the certificate or
articles of incorporation and bylaws of each of the Obligors necessary to
constitute this Agreement a valid and binding agreement for the uses and
purposes set forth herein, in accordance with its terms, have been done and
taken, and the execution and delivery hereof has been in all respects duly
authorized.
2. INTERPRETATION OF THIS AGREEMENT
2.1 TERMS DEFINED.
As used in this Agreement, the following terms have the respective
meanings set forth below or provided for in the section or other part of this
Agreement referred to immediately following such term (such definitions to be
equally applicable to both the singular and plural forms of the terms defined)
or, if not defined herein, then as defined in the Trust Indenture.
AGREEMENT, THIS -- introductory sentence.
BANK AGREEMENT -- has the meaning specified in the Trust Indenture.
BANK LENDER -- has the meaning specified in the Trust Indenture.
BENEFICIARY -- has the meaning specified in the Trust Indenture
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SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
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2 . INTERPRETATION OF THIS AGREEMENT
CODE -- means the Uniform Commercial Code as in effect from time to
time in any specified or applicable jurisdiction.
COLLATERAL -- Section 3.
COMPANY -- introductory sentence.
DEFAULT ASSIGNMENT -- Section 3.
EVENT OF DEFAULT -- has the meaning specified in the Trust Indenture.
GUARANTORS -- introductory sentence.
LENDING DOCUMENTS -- has the meaning specified in the Trust Indenture.
LIEN -- has the meaning specified in the Security Agreement.
OBLIGORS -- introductory sentence.
PERSON -- means an individual, a partnership, a corporation, a trust, a
limited liability company, an unincorporated organization, or a government or
agency or political subdivision thereof.
SECURED OBLIGATIONS -- has the meaning specified in the Trust
Indenture.
SECURITY AGREEMENT -- means that certain Security Agreement, dated as
of the date hereof, among each of the Obligors and the Trustee, together with
any acknowledgments and agreements delivered in connection therewith, as the
same may be amended, restated, modified or supplemented from time to time.
SECURITY DOCUMENTS -- has the meaning specified in the Trust Indenture.
SUBSIDIARY -- has the meaning specified in the Trust Indenture.
TRADEMARKS -- means and includes
(a) all foreign and United States (including, without
limitation, each individual state thereof) trademarks, trademark
applications and registrations, trade names, trade styles, service
marks, prints and labels on which said trademarks, trade names, trade
styles and service marks appear or have appeared, designs and general
intangibles of like nature, and all improvements to each of the
foregoing, including, without limitation, those listed on Schedule A
and those further provided for in Section 4.3, and any and all rights
pertaining to any of the foregoing;
(b) all proceeds of the foregoing (including, without
limitation, license royalties and proceeds of infringement suits);
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SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
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2. INTERPRETATION OF THIS AGREEMENT
(c) all general intangibles associated with the foregoing,
including, without limitation, all goodwill associated with the
foregoing and with the business of the Obligor to which the foregoing
relates;
(d) the right to sue for past, present and future
infringements; all rights corresponding thereto; and
(e) all reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof.
TRUSTEE -- introductory sentence.
TRUST INDENTURE -- introductory sentence.
2.2 HEADINGS; INDEPENDENT CONSTRUCTION.
(a) SECTION HEADINGS ETC. The titles of the Sections of this
Agreement appear as a matter of convenience only, do not constitute a
part hereof and shall not affect the construction hereof. The words
"herein," "hereof," "hereunder" and "hereto" refer to this Indenture as
a whole and not to any particular Section or other subdivision.
References to Sections are, unless otherwise specified, references to
Sections of this Agreement. References to Annexes, Schedules, Exhibits
and Attachments are, unless otherwise specified, references to Annexes,
Schedules, Exhibits and Attachments attached to this Agreement.
(b) CONSTRUCTION. Each covenant contained herein shall be
construed (absent an express contrary provision herein) as being
independent of each other covenant contained herein, and compliance
with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with one or more other
covenants.
2.3 SEPARATE AGREEMENTS.
Notwithstanding that this Agreement is among each of the Obligors and
the Trustee, this Agreement shall be construed and interpreted as a separate
Agreement between each Obligor, respectively, and the Trustee, and any whole or
partial invalidity of this Agreement in respect of any Obligor shall not have
any effect on the validity or enforceability of this Agreement as among each
other Obligor, respectively, as the case may be, and the Trustee.
2.4 PARTIAL INVALIDITY.
The unenforceability or invalidity of any provision or provisions of
this Agreement shall not render any other provision or provisions contained in
this Agreement unenforceable or invalid.
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SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
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2. INTERPRETATION OF THIS AGREEMENT
2.5 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE INTERNAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, EXCEPT TO THE EXTENT
THAT THE PERFECTION OF THE LIENS IN AND TO THE COLLATERAL ARE GOVERNED BY THE
LAWS OF ANY JURISDICTION OTHER THAN THE COMMONWEALTH OF MASSACHUSETTS.
3. GRANT OF SECURITY INTEREST
As security for the payment by each Obligor of the Secured Obligations
and the performance by such Obligor of its other obligations and undertakings
under this Agreement and under the other Lending Documents, each Obligor does
hereby grant, bargain, convey, assign, transfer, mortgage, hypothecate, pledge,
confirm and grant a continuing security interest to the Trustee in and to all
Trademarks in which such Obligor has any right title or interest, in each case,
whether presently existing or hereafter acquired (such Property being referred
to as the "COLLATERAL"). Simultaneously with the signing of this Agreement, each
Obligor shall execute and deliver the Trademark Assignments attached as Exhibit
1 (collectively, the "DEFAULT ASSIGNMENT"). The Trustee shall hold the Default
Assignment until an Event of Default occurs, at which time the Trustee may use
the Default Assignment as described in this Agreement.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS CONCERNING TRADEMARKS
4.1 TRADEMARKS; ETC.
Each Obligor represents, warrants and covenants that:
(a) Schedule A completely and accurately lists all Trademarks
in which such Obligor has any right, title or interest as of the date
of its execution and delivery of this Agreement;
(b) each of such Trademarks is subsisting and has not been
adjudged invalid or unenforceable, in whole or in part;
(c) each of such Trademarks is valid and enforceable;
(d) such Obligor is the sole and exclusive owner of the entire
right, title and interest in and to each of such Trademarks, free and
clear of any Liens, charges and encumbrances, including without
limitation, licenses, shop rights and covenants by such Obligor not to
sue third persons;
(e) such Obligor has the unqualified right to enter into this
Agreement and perform its obligations hereunder and has entered and
will enter into such written agreements with each of its present and
future employees, agents and consultants as will enable it to comply
with the covenants herein contained; and
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SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
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4. REPRESENTATIONS, WARRANTIES AND COVENANTS CONCERNING TRADEMARKS
(f) such Obligor has used, and will continue to use for the
duration of this Agreement, consistent standards of quality in its
manufacture of products and inventory sold under the Trademarks.
4.2 NO INCONSISTENT AGREEMENTS.
Until all of the Secured Obligations shall have been satisfied in full
and no Bank Lender is obligated to make a further advances under the Bank
Agreement, no Obligor will, without the prior written consent of the Majority
Beneficiaries, enter into any agreement (including, without limitation, a
license agreement) that is inconsistent with such Obligor's obligations under
this Agreement.
4.3 AFTER-ACQUIRED TRADEMARKS SUBJECT TO THIS AGREEMENT.
(a) If while any Secured Obligation is outstanding or any Bank
Lender is obligated to make advances under the Bank Agreement, any
Obligor shall obtain rights to any new Trademark, or become entitled to
the benefit of any Trademark, the same shall automatically (without any
action on the part of such Obligor) be deemed subject to this Agreement
and included within the term "TRADEMARK". Such Obligor shall give the
Trustee prompt written notice of any such after-acquired Trademark.
(b) Each Obligor grants the Trustee a power-of-attorney,
irrevocable so long as any Secured Obligation remains outstanding or
any Bank Lender is obligated to make any advances under the Bank
Agreement, to modify this Agreement from time to time by amending
Schedule A (without requirement of any consent or further action on the
part of any Obligor) to include any and all future Trademarks to which
any Obligor shall have any right, title or interest.
4.4 LICENSE.
Unless and until there shall have occurred and be continuing an Event
of Default, the Trustee hereby grants to each Obligor the exclusive,
nontransferable right and license to make, have made, use and sell its inventory
under its Trademarks for such Obligor's own benefit and account and for no other
purpose. Each Obligor agrees that it will not, without the prior written consent
of the Trustee, sell or assign its interest in, or grant any sublicense under,
the license granted to it in this Section 4.4, except as set forth in Schedule
4.4.
4.5 TRADEMARK APPLICATIONS; ENFORCEMENT RIGHTS.
Each Obligor shall have the duty to prosecute diligently any trademark
application pending as of the date of this Agreement or thereafter and to
preserve and maintain all rights in trademark applications and trademarks which
constitute the Trademarks, in each case, until the Secured Obligations shall
have been paid in full and no Bank Lender is obligated to make a further advance
under the Bank Agreement. Any expenses incurred in connection with such an
application shall be borne by such Obligor. No Obligor shall abandon any
Trademark without the consent of the Trustee. Each Obligor shall further enter
into such agreements with its
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SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
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4. REPRESENTATIONS, WARRANTIES AND COVENANTS CONCERNING TRADEMARKS
employees, and take such other reasonable measures, as are necessary to insure
that such Obligor shall have and enjoy all rights to apply for, register and
use, subject to Section 4.3, Trademarks designed or created by such employees in
the ordinary course of their employment; provided that such Obligor may fairly
compensate such employees for having created such Trademarks.
4.6 FURTHER ASSURANCES.
So long as any Secured Obligation is outstanding or any Bank Lender is
obligated to make an advance under the Bank Agreement, each Obligor, at its
expense, will timely execute, acknowledge, deliver, file and record, or will
cause to be executed, acknowledged, delivered, filed or recorded, all such
further instruments, agreements, assignments and assurances (including, without
limitation, registrations of assignments with the United States Patent and
Trademark Office) as may be necessary or appropriate (and, in any event, as may
be reasonably requested by the Trustee):
(a) to preserve and continue in force each of the Trademarks
and to pay any and all fees and out of pocket expenses in connection
therewith (including, without limitation, payment of such maintenance
fees, if any, as may be imposed by the United States Patent and
Trademark Office); and
(b) to subject to this Agreement, and to preserve, continue
and protect the Lien of this Agreement on, and the rights of the
Trustee in and to, the Trademarks, including, without limitation, any
Trademarks acquired after the date of this Agreement.
5. DEFAULT REMEDIES, ETC.
5.1 DEFAULT REMEDIES.
(a) GENERAL. If an Event of Default exists, the Trustee may
(i) exercise all of the rights and remedies conferred
in this Agreement, in the Trust Indenture and in the other
Lending Documents, and
(ii) exercise all of the rights and remedies of a
secured party under the Code and all of the rights and
remedies in this Agreement or otherwise available at law or in
equity.
(b) REMEDIES CUMULATIVE. All of the Trustee's rights and
remedies with respect to the Trademarks, whether established hereby or
by the Security Agreement, or by any other agreement or by law, shall
be cumulative and may be exercised singularly or concurrently. Without
limiting the foregoing, this Agreement is executed in furtherance of,
and supplementary to, the provisions of the Security Agreement, the
terms and conditions of which are incorporated hereby as if set forth
in full herein. In the event any provision of the Security Agreement
conflicts with any provision of this Agreement, the provisions of the
Security Agreement shall prevail and this Agreement shall be deemed
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SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
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5. DEFAULT REMEDIES, ETC.
to have been modified to the extent necessary to conform to the
provisions of the Security Agreement.
(c) UCC AND OTHER REMEDIES. If an Event of Default exists, the
Trustee may exercise all of the rights and remedies of a secured party
under the Code and all of the rights and remedies conferred in this
Agreement, in the Security Agreement or in any other Lending Document,
it being expressly understood that no such remedy is intended to be
exclusive of any other remedy or remedies, but each and every remedy
shall be cumulative and shall be in addition to every other remedy
given in this Agreement, in the Security Agreement or in any other
Lending Document or now or hereafter existing at law or in equity or by
statute, and may be exercised from time to time as often as may be
deemed expedient by the Trustee. Without limiting the generality of the
foregoing, each Obligor does further authorize the Trustee and does
hereby irrevocably make, constitute and appoint the Trustee and any
officer or agent thereof, with full power of substitution, as such
Obligor's true and lawful attorney-in-fact with full power, in its own
name or in the name of the Beneficiaries, upon the occurrence and
continuance of an Event of Default, to:
(i) file the Default Assignment immediately, and to
take ownership of the Trademarks and exercise all rights
associated with the ownership of the Trademarks;
(ii) terminate immediately the license granted to any
or all of the Obligors pursuant to Section 4.4, and to use the
Trademarks exclusively;
(iii) pay or discharge any taxes, Liens, security
interests or other encumbrances in respect of the Trademarks;
(iv) receive payment of, receipt for, settle,
compromise or adjust and give discharges and releases for or
in respect of any and all moneys, claims and other amounts due
and to become due at any time under or in respect of the
Trademarks; and
(v) without demand of performance and without other
notice (except as set forth in 5.1(d)) or demand whatsoever
to the Obligor, all of which are hereby expressly waived, and
without advertisement, sell at public or private sale or
otherwise realize upon, in Massachusetts or elsewhere, the
whole or from time to time any part of the Trademarks, or any
interest that any or all of the Obligors may have therein.
(d) NOTICE OF SALE. Each Obligor and the Trustee agree that
ten (10) days' notice to the Obligors of any public or private sale or
other disposition of the Trademarks shall be reasonable notice thereof,
and such sale shall be at such reasonable locations as the Trustee
shall designate in such notice. Any other requirement of notice, demand
or advertisement for sale is, to the extent permitted by law, waived by
each Obligor. The Trustee shall have the right to bid at any such sale
on behalf of any one or more of the
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SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
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5. DEFAULT REMEDIES, ETC.
Beneficiaries (who shall also have the right to bid individually).
Proceeds arising from any such sale shall be applied in the manner set
forth in the Trust Indenture.
(e) ACTION IN TRUSTEE'S NAME. If any Event of Default exists,
the Trustee shall have the right, but shall in no way be obligated to,
bring suit in its own name to enforce the Trademarks and any license
thereunder, in which event each Obligor shall at the request of the
Trustee do any and all lawful acts and execute any and all proper
documents reasonably required by the Trustee in aid of such
enforcement, and the Obligors shall jointly and severally, promptly
upon demand, reimburse and indemnify the Trustee for all reasonable out
of pocket costs and expenses incurred by the Trustee in the exercise of
its rights under this Section 5.1(e).
(f) EXPENSES. The Obligors jointly and severally will pay to
the Trustee all out of pocket expenses (including court costs and
reasonable attorneys' fees and expenses) of, or incident to, the
enforcement of any of the provisions of this Agreement (including,
without limitation, the filing of the Default Assignment) and all other
charges due against the Trademarks including, without limitation,
taxes, assessments, security interests, Liens or encumbrances upon the
Trademarks and any expenses, including transfer or other taxes, arising
in connection with any sale, transfer or other disposition of the
Trademarks.
5.2 OTHER ENFORCEMENT RIGHTS.
The Trustee may proceed to protect and enforce this Agreement by suit
or suits or proceedings in equity, at law or in bankruptcy, and whether for the
specific performance of any covenant or agreement in this Agreement contained or
in execution or aid of any power in this Agreement granted, or for foreclosure
under this Agreement, or for the appointment of a receiver or receivers for the
Trademarks or any part thereof, for the recovery of judgment for the obligations
secured by this Agreement or for the enforcement of any other proper, legal or
equitable remedy available under applicable law.
5.3 APPLICATION OF PROCEEDS.
The proceeds of any exercise of rights with respect to the Trademarks,
or any part thereof, and the proceeds and the avails of any remedy under this
Agreement shall be paid to and applied in accordance with the provisions of the
Trust Indenture. If there is a deficiency, the Obligors jointly and severally
shall, subject always to the other provisions of this Agreement, remain liable
therefor and shall forthwith pay the amount of any such deficiency to the
Trustee.
6. MISCELLANEOUS
6.1 COMMUNICATIONS.
All communications under this Agreement shall be in writing and shall
be made to the Persons and addresses, and in the manner, provided in the Trust
Indenture.
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SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
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6. MISCELLANEOUS
6.2 WAIVER AND AMENDMENT.
No provision of this Agreement will be waived, amended, modified or
supplemented except by a written instrument executed by the Obligors and the
Trustee in accordance with the Trust Indenture.
6.3 SURVIVAL.
All warranties, representations, certifications and covenants made by
the Obligors in this Agreement and in the other Lending Documents or in any
certificate or other document or instrument delivered by it or on behalf of it
under this Agreement or any other Lending Document shall be considered to have
been relied upon by the Trustee and each holder of the Secured Obligations and
shall survive the delivery to each holder of Secured Obligations of any
instrument or other document evidencing the same regardless of any investigation
made by the Trustee, any of the Beneficiaries or on their behalf. All statements
in any such certificate or other instrument shall constitute warranties and
representations by the Obligors under this Agreement. This Agreement shall be
binding upon the Obligors and inure to the benefit of and be enforceable by the
Trustee and the Beneficiaries.
6.4 SUCCESSORS AND ASSIGNS.
Whenever any of the parties to this Agreement is referred to, such
reference shall be deemed to include the successors and assigns of such party,
and all the covenants, promises and agreements in this Agreement contained by or
on behalf of any of the Obligors, or by or on behalf of the Trustee, shall bind
and inure to the benefit of the respective successors and assigns of such
parties whether so expressed or not.
6.5 ADDITIONAL PARTIES.
Any Person which becomes a Subsidiary after the Closing Date and which
is required, pursuant to the Trust Indenture or any other Lending Document, to
become a party to this Agreement shall execute and deliver a duplicate original
of this Agreement and, upon acceptance thereof by the Trustee, such Subsidiary
shall become an "Obligor" under this Agreement for all purposes and shall be
deemed to have made the covenants and agreements of each Obligor set forth
herein as of the date of the execution and delivery of such acknowledgment and
agreement (including, without limitation, the grant of the security interest
contained in Section 3) and shall comply with all other obligations to be
performed by an Obligor party hereto.
6.6 SUBJECT TO TRUST INDENTURE.
Any and all rights granted to the Trustee under this Agreement are to
be held and exercised by the Trustee as trustee for the benefit of the
Beneficiaries, pursuant to the provisions of the Trust Indenture. To the extent
set forth in the Lending Documents and any other document or instrument creating
or evidencing any Secured Obligation, each of the Beneficiaries shall be a
beneficiary of the terms of this Agreement. Any and all obligations under this
Agreement of the parties to this Agreement, and the rights and indemnities
granted to the Trustee
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SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
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6. MISCELLANEOUS
under this Agreement, are created and granted subject to, and in furtherance
(and not in limitation) of, the terms of the Trust Indenture. Nothing in this
Agreement expressed or implied is intended or shall be construed to give to any
Person other than the Obligors, the Beneficiaries and the Trustee any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
covenant, condition or provision herein contained, and all such covenants,
conditions and provisions are and shall be held to be for the sole and exclusive
benefit of the Obligors, the Beneficiaries and the Trustee.
6.7 TERM OF AGREEMENT.
This Agreement shall be and remain in full force and effect until
terminated in accordance with the Trust Indenture; provided, that all
indemnities of the Obligors contained in this Agreement shall survive, and
remain operative and in full force and effect regardless of, the termination of
this Agreement.
6.8 ENTIRE AGREEMENT.
This Agreement constitutes the final written expression of all of the
terms hereof and is a complete and exclusive statement of those terms.
6.9 EXECUTION IN COUNTERPART.
This Agreement may be executed in one or more counterparts and shall be
effective when at least one counterpart shall have been executed by each party
to this Agreement, and each set of counterparts which, collectively, show
execution by each party to this Agreement shall constitute one duplicate
original.
[Remainder of page blank. Next page is signature page.]
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SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
13
IN WITNESS WHEREOF, each Obligor has caused this Agreement to be
executed by an authorized officer, and Fleet National Bank, as Trustee, has
caused this Agreement to be executed by an authorized officer, all as of the day
and year first above written.
Signed, sealed and delivered SPECTRAN CORPORATION
in the presence of:
/s/ Brian M. Hand
- ----------------------------
Name: Brian M. Hand By /s/ Bruce A. Cannon
------------------------
Name: Bruce A. Cannon
Title: Secretary
/s/ Ellen M. Grace
- ----------------------------
Name: Ellen M. Grace
SPECTRAN COMMUNICATION FIBER
TECHNOLOGIES, INC.
/s/ Brian M. Hand
- ----------------------------
Name: Brian M. Hand By /s/ Bruce A. Cannon
------------------------
Name: Bruce A. Cannon
Title: Secretary
/s/ Ellen M. Grace
- ----------------------------
Name: Ellen M. Grace
SPECTRAN SPECIALTY OPTICS COMPANY
/s/ Brian M. Hand
- ----------------------------
Name: Brian M. Hand By /s/ Bruce A. Cannon
------------------------
Name: Bruce A. Cannon
Title: Secretary
/s/ Ellen M. Grace
- ----------------------------
Name: Ellen M. Grace
APPLIED PHOTONIC DEVICES, INC.
/s/ Brian M. Hand
- ----------------------------
Name: Brian M. Hand By /s/ Bruce A. Cannon
------------------------
Name: Bruce A. Cannon
Title: Secretary
/s/ Ellen M. Grace
- ----------------------------
Name: Ellen M. Grace
SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
14
FLEET NATIONAL BANK, as Trustee
/s/ Ellen M. Grace By /s/ Michael T. Quaile
- ---------------------------- --------------------------
Name: Ellen M. Grace
Name: Michael T. Quaile
Title: Corporate Trust Officer
/s/ David Silber
- ----------------------------
Name: David Silber
SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
15
STATE OF CONNECTICUT )
) SS.
COUNTY OF HARTFORD )
On December 26, before me, the undersigned, a notary public in and for
said County and State, duly commissioned and sworn, personally appeared Bruce A.
Cannon, personally known to me or proved to me to be on the basis of
satisfactory evidence to be the person who executed the within instrument as the
Secretary of SPECTRAN CORPORATION, a Delaware corporation, and acknowledged that
such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Lori L. Bridwell
-------------------------------------
Notary Public in and for the
County of Hartford,
State of Connecticut
My Commission Expires: Nov. 30, 2000
[SEAL]
STATE OF CONNECTICUT )
) SS.
COUNTY OF HARTFORD )
On December 26, before me, the undersigned, a notary public in and for
said County and State, duly commissioned and sworn, personally appeared Bruce A.
Cannon, personally known to me or proved to me to be on the basis of
satisfactory evidence to be the person who executed the within instrument as the
Secretary of SPECTRAN COMMUNICATION FIBER TECHNOLIGIES, INC., a Delaware
corporation, and acknowledged that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Lori L. Bridwell
-------------------------------------
Notary Public in and for the
County of Hartford,
State of Connecticut
My Commission Expires: Nov. 30, 2000
[SEAL]
SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
16
STATE OF CONNECTICUT )
) SS.
COUNTY OF HARTFORD )
On December 26, before me, the undersigned, a notary public in and for
said County and State, duly commissioned and sworn, personally appeared Bruce A.
Cannon, personally known to me or proved to me to be on the basis of
satisfactory evidence to be the person who executed the within instrument as the
Secretary of SPECTRAN SPECIALTY OPTICS COMPANY, a Delaware corporation, and
acknowledged that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Lori L. Bridwell
-------------------------------------
Notary Public in and for the
County of Hartford,
State of Connecticut
My Commission Expires: Nov. 30, 2000
[SEAL]
STATE OF CONNECTICUT )
) SS.
COUNTY OF HARTFORD )
On December 26, before me, the undersigned, a notary public in and for
said County and State, duly commissioned and sworn, personally appeared Bruce A.
Cannon, personally known to me or proved to me to be on the basis of
satisfactory evidence to be the person who executed the within instrument as the
Secretary of APPLIED PHOTONIC DEVICES, INC., a Delaware corporation, and
acknowledged that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Lori L. Bridwell
-------------------------------------
Notary Public in and for the
County of Hartford,
State of Connecticut
My Commission Expires: Nov. 30, 2000
[SEAL]
SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
17
STATE OF CONNECTICUT )
) SS.
COUNTY OF HARTFORD )
On December 23, 1996, before me, the undersigned, a notary public in
and for said County and State, duly commissioned and sworn, personally appeared
Michael T. Quaile, personally known to me or proved to me to be on the basis of
satisfactory evidence to be the person who executed the within instrument as the
Corporate Trust Officer of FLEET NATIONAL BANK, a national banking association,
and acknowledged that such national banking association executed the same as
security trustee thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Lori L. Bridwell
-------------------------------------
Notary Public in and for the
County of Hartford,
State of Connecticut
My Commission Expires:
[SEAL]
LORI L. BRIDWELL
NOTARY PUBLIC
MY COMMISSION EXPIRES NOV. 30, 2000
SPECTRAN CORPORATION TRADEMARK SECURITY AGREEMENT
18
Schedule A to Trademark Security Agreement
Existing Trademarks
See attached list.
19
Pannie & Edmonds
October 28, 1998
Page 1
- ------------------------------------------------------------------------
SPECTRAN CORPORATION
TRADEMARK REPORT
- ------------------------------------------------------------------------
AVIOPTICS Ref: 003686-0074-999 UNITED STATES
SPECTRAN SPECIALTY OPTICS COMPANY
App No: 75/093106 APR 22, 1996 PENDING APP.
Classes: 9
9 FIBER OPTIC CABLE
- ------------------------------------------------------------------------
FLIGHTGUIDE Ref: 003686-0073-999 UNITED STATES
SPECTRAN SPECIALTY OPTICS COMPANY
App No: 75/039555 JAN 03, 1996 PENDING APP.
Classes: 9
9 FIBER OPTIC CABLE
- ------------------------------------------------------------------------
SPECTRAGUIDE Ref: 00336-0007-999 UNITED STATES
SPECTRAN CORPORATION
Reg No: 1,324,144 MAR 12, 1985 REGISTERED
App No: 437,452 AUG 01, 1983
RENEWAL DUE: MAR 12, 2005
Classes: 9
9 FIBER LIGHT GUIDES FOR USE IN DATA COMMUNICATIONS
- ------------------------------------------------------------------------
SPECTRAN AND DESIGN Ref: 00386-0047-999 UNITED STATES
SPECTRAN CORPORATION
Reg No: 1,753,738 FEB 23, 1993 REGISTERED
App No: 74/285779 JUN 17, 1992
[SPECTRAN RENEWAL DUE: FEB 23, 2003
LOGO] SEC. 8 &/OR 15: FEB 23, 1999
Classes: 9
9 OPTICAL FIBERS
- ------------------------------------------------------------------------
STC AND DESIGN Ref: 00386-0011-999 UNITED STATES
SPECTRAN CORPORATION
Reg No: 1,394,757 MAY 27, 1986 ABANDONED
App No: 564,860 OCT 24, 1985
[SPECTRAN
CORPORATION
LOGO]
Classes: 9
9 FIBER OPTICS EQUIPMENT, NAMELY, GLASS CAPILLARY FIBERS
AND GLASS COATED WIRE
- ------------------------------------------------------------------------
20
Pannie & Edmonds
October 28, 1998
Page 2
- ------------------------------------------------------------------------
SPECTRAN CORPORATION
TRADEMARK REPORT
- ------------------------------------------------------------------------
ULTRASIL Ref: 003586-0075-999 UNITED STATES
SPECTRAN SPECIALTY OPTICS COMPANY
App No: 75/039656 JAN 03, 1996 PENDING APP.
Classes: 9
9 OPTIC FIBER
- ------------------------------------------------------------------------
V-SYSTEM Ref: 003586-0078-999 UNITED STATES
SPECTRAN SPECIALTY OPTICS COMPANY
App No: 75/039657 JAN 03, 1996 PENDING APP.
Classes: 9
9 OPTICAL FIBER CABLING SYSTEM COMPRISED OF OPTIC FIBER,
CONNECTORS AND TERMINATION SET, NAMELY CLAMP TOOL, CLEAVE
TOOL, BUFFER STRIPPING TOOL AND JACKET STRIPPING TOOL
- ------------------------------------------------------------------------
21
Schedule A to Trademark Security Agreement
Existing Trademarks
See attached list.
22
SCHEDULE 4.4
The SpecTran trademark has been sublicensed to General Photonics, LLC.
Schedule 4.4-1
23
EXHIBIT 1
TRADEMARK ASSIGNMENT
WHEREAS, [NAME OF OBLIGOR], a [________] corporation, (the "OBLIGOR") owns
and has used in its business certain trademarks which are registered or for
which a registration has been applied for, as listed in Schedule A hereto; and
WHEREAS, an "Event of Default" has occurred under the terms of the Trust
Indenture, dated as of December 1, 1996, among the Obligor, certain of its
affiliates, and FLEET NATIONAL BANK, in its capacity as security trustee (the
"TRUSTEE") and the Trademark Security Agreement, dated as of December 1, 1996,
among the Obligor, certain of its affiliates and the Trustee (collectively, the
"SECURITY DOCUMENTS"); and
WHEREAS, the Trustee, pursuant to its rights as a secured party under the
Security Documents, and pursuant to and in exercise of its rights as a secured
party under the Massachusetts Uniform Commercial Code, has chosen to exercise
its rights upon default;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the Obligor does hereby absolutely sell, assign, transfer and convey
unto the Trustee all of the Obligor's right, title and interest in and to:
(i) the trademarks, together with the goodwill of the business
symbolized by the trademarks, the registrations and applications thereof
as set forth on Schedule A attached hereto;
(ii) all trade names, trade styles, service marks, prints and labels
on which said trademarks, trade names, trade styles and service marks have
appeared or appear, designs and general intangibles of like nature; and
(iii) all proceeds of the foregoing (including, without limitation,
license royalties and proceeds of infringement suits).
IN WITNESS WHEREOF, [NAME OF OBLIGOR] has caused this Trademark Assignment
to be duly executed by its duly authorized officer as of ____________ ___,
199__.
[NAME OF OBLIGOR]
By:____________________________
Name:
Title:
SPECTRAN CORPORATION Exhibit 1-1 TRADEMARK SECURITY AGREEMENT
24
STATE OF _______________ )
) ss.
COUNTY OF _____________ )
On _______________, before me, the undersigned, a notary public in and for
said County and State, duly commissioned and sworn, personally appeared
_____________________________, personally known to me or proved to me to be on
the basis of satisfactory evidence to be the person who executed the within
instrument as the ___________________________________ of
_________________________, a _______________ corporation, and acknowledged that
such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for the
County of ____________________,
State of ______________________
My Commission Expires: __________________
[SEAL]
SPECTRAN CORPORATION Exhibit 1-2 TRADEMARK SECURITY AGREEMENT
25
SCHEDULE A
TRADEMARKS AND TRADEMARK APPLICATIONS AND REGISTRATIONS
SPECTRAN CORPORATION Schedule A-1 TRADEMARK SECURITY AGREEMENT