Security Agreement - Finisar Corp. and Fleet National Bank
SECURITY AGREEMENT
THIS AGREEMENT made as of November 4, 1998, by and between FINISAR
CORPORATION, a California corporation with a principal place of business at 274
Ferguson Drive, Mountain View, California 94043 ("Debtor") and FLEET NATIONAL
BANK, a national banking association organized under the laws of the United
States having an office at One Federal Street, Mail Stop: MA OF DO7A, Boston,
Massachusetts 02110, as Agent for itself and each of the other Lenders who are
now or hereafter become parties to the hereinafter defined Loan Agreement
("Secured Party"). Capitalized terms used but not expressly defined herein
shall have the meanings assigned thereto in said Loan Agreement.
SECTION 1. RECITALS.
(a) Secured Party, Debtor and the Lenders have entered into that
certain Loan Agreement dated on or about the date hereof (as the same may be
amended from time to time, the "Loan Agreement") pursuant to the terms of which
Lenders have agreed to make loans to Debtor as set forth therein.
SECTION 2. THE SECURITY INTERESTS.
(a) In order to secure (i) payment and performance of all of the
obligations of Debtor under the Loan Agreement, under the Notes and under the
other Financing Documents, (ii) the performance of all of the obligations of
Debtor to Secured Party contained herein, and (iii) the payment of all other
future advances and other obligations of Debtor to Secured Party and/or the
Lenders, including, without limitations, any future loans and advances made to
Debtor by Secured Party and/or the Lenders prior to, during or following any
(a) application by Debtor for or consent by Debtor to the appointment of a
receiver, trustee or liquidator of Debtor's property, (b) admission by Debtor in
writing of its inability to pay or failure generally to pay its respective debts
as they mature, (c) general assignment by Debtor for the benefit of creditors,
(d) adjudication of Debtor as bankrupt or (e) filing by Debtor of a voluntary
petition in bankruptcy or a petition or an answer seeking reorganization or an
arrangement with creditors or to take advantage of any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debts, dissolution or
liquidation statute, or an answer admitting the material allegations of a
petition filed against it in a proceeding under any such law (any of the
foregoing shall hereinafter be referred to as a "Bankruptcy Event"), any
interest accruing under the Notes and/or the Loan Agreement after the
commencement of a Bankruptcy Event to the extent permitted by applicable law,
and any and all other indebtedness, liabilities and obligations of Debtor to
Secured Party and/or the Lenders of every kind and description, direct, indirect
or contingent, now or hereafter existing, due or to become due (all of the
foregoing being hereinafter called the "Obligations"), Debtor hereby grants to
Secured Party for the benefit of the Lenders a continuing security interest in
the following described fixtures and personal property (hereinafter collectively
called the "Collateral"):
All fixtures and all tangible and intangible personal property of Debtor,
whether now owned or hereafter acquired by Debtor, or in which Debtor may now
have or hereafter acquire an interest, including, without limitations, (a) all
equipment (including all machinery, tools and
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furniture), inventory and goods (each as defined in the Uniform Commercial
Code, if so defined therein); (b) all accounts, accounts receivable, other
receivables, contract rights, chattel paper, and general intangibles
(including, without limitations, trademarks, trademark registrations,
trademark registration applications, servicemarks, servicemark registrations,
servicemark registration applications, goodwill, tradenames, trade secrets,
patents, patent applications, leases, licenses, permits, copyrights,
copyright registrations, copyright registration applications, moral rights,
any other proprietary rights, exclusionary rights or intellectual property
and any renewals and extensions associated with any of the foregoing, as each
of the foregoing may be secured under the laws now or hereafter in force and
effect in the United States of America or any other jurisdiction) of Debtor
(each as defined in the Uniform Commercial Code, if so defined therein); (c)
all instruments, documents of title, policies and certificates of insurance,
securities (whether certificated or uncertificated) and other investment
property (as defined in the Uniform Commercial Code), bank deposits, deposit
accounts, checking accounts and cash of Debtor, (d) all accessions, additions
or improvements to, all replacements, substitutions and parts for, and all
proceeds and products of, all of the foregoing and (e) all books, records and
documents relating to any of the foregoing; provided, however, this
definition of Collateral shall specifically exclude (i) equipment leased from
or financed by third parties and (ii) non-assignable contract and license
rights, all in accordance with the Loan Agreement.
(b) All Collateral consisting of accounts receivable, contract rights,
instruments, chattel paper and general intangibles (each as defined in the
Uniform Commercial Code) of Debtor arising from the sale, delivery or provision
of goods and/or services, including, without limitation, all documents, notes,
drafts and acceptances, now owned by Debtor as well as any and all thereof that
may be hereafter acquired by Debtor and in and to all returned or repossessed
goods arising from or relating to any contract rights, accounts or other
proceeds of any sale or other disposition of inventory, are sometimes
hereinafter collectively called the "Customer Receivables".
(c) The security interests granted pursuant to this SECTION 2 (the
"Security Interests") are granted as security only and shall not subject Secured
Party to, or transfer or in any way affect or modify, any obligation or
liability of Debtor under any of the Collateral or any transaction which gave
rise thereto.
SECTION 3. DELIVERY OF PLEDGED SECURITIES, CHATTEL PAPER AND DATABASE.
All securities including, without limitations, shares of stock and
negotiable promissory notes, of Debtor, whether now owned or hereafter acquired
by Debtor, shall be delivered to Secured Party by Debtor simultaneously with the
delivery hereof or, with respect to after acquired securities, promptly after
the same have been acquired by Debtor (which securities are hereinafter called
the "Pledged Securities") shall be in suitable form for transfer by delivery, or
shall be accompanied by duly executed undated instruments of transfer or
assignments in blank all in form and substance satisfactory to Secured Party.
EXHIBIT A attached hereto and made a part hereof sets forth a complete
description of all securities owned by Debtor on the date hereof. Secured Party
may at any time or from time to time, at its sole discretion, require Debtor to
cause any chattel paper included in the Customer Receivables to be delivered to
Secured Party or any successor agent or representative designated by it for the
purpose of causing a legend referring to
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the Security Interests to be placed on such chattel paper and upon any
ledgers or other records concerning the Customer Receivables.
SECTION 4. FILING: FURTHER ASSURANCES.
Debtor will, at its expense, execute, deliver, file and record (in such
manner and form as Secured Party may reasonably require), or permit Secured
Party to file and record, any financing statements, any carbon, photographic or
other reproduction of a financing statement or this Security Agreement (which
shall be sufficient as a financing statement hereunder), any specific
assignments or other paper that may be reasonably necessary or desirable, or
that Secured Party may reasonably request, in order to create, preserve, perfect
or validate any Security Interest or to enable Secured Party to exercise and
enforce its rights hereunder with respect to any of the Collateral. Debtor
hereby irrevocably appoints Secured Party as Debtor's attorney-in-fact to
execute in the name and behalf of Debtor such additional financing statements as
Secured Party may reasonably request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF DEBTOR.
Debtor hereby represents and warrants to Secured Party that (a) Debtor
is, or to the extent that certain of the Collateral is to be acquired after the
date hereof, will be, the owner of the Collateral free from any adverse Lien
except as permitted under the Loan Agreement; (b) except for financing
statements relating to Liens against Debtor specifically described in and
permitted by the Loan Agreement, no financing statement covering the Collateral
is on file in any public office, other than the financing statements filed
pursuant to this Security Agreement; (c) all information, representations and
warranties contained in the Perfection Certificate attached hereto as EXHIBIT B
and made a part hereof are true, accurate and complete in all material respects
on the date hereof, and (d) there are no restrictions upon the voting rights or
the transfer of all or any of the Pledged Securities (other than as may appear
on the face of any certificate evidencing any of the Pledged Securities or as
may be imposed by any state or local agency or government) and Debtor has the
right to vote, pledge, grant the Security Interest in and otherwise transfer the
Pledged Securities free of any encumbrances (other than applicable restrictions
imposed by any state or local agency or government or Federal or state
securities laws or regulations).
SECTION 6. COVENANTS OF DEBTOR.
Debtor hereby covenants and agrees with Secured Party that Debtor
(a) will defend the Collateral against all claims and demands of all persons at
any time claiming any interest therein other than that of Secured Party, other
than in respect of Permitted Encumbrances; (b) will provide Secured Party with
prompt written notice of (i) any change in the office where Debtor maintains its
books and records pertaining to the Customer Receivables, and (ii) the movement
or location of a material amount of Collateral to or at any address other than
as set forth in EXHIBIT B attached hereto; (c) will immediately notify Secured
Party of any event causing a substantial loss or diminution in the value of all
or any material part of the Collateral and the amount or an estimate of the
amount of such loss or diminution; (d) will have and maintain insurance at all
times in accordance with the provisions of the Loan Agreement; (e) except in the
ordinary course of business or as otherwise permitted under the Loan Agreement,
will not sell or
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offer to sell or otherwise assign transfer or dispose of the Collateral or
any interest therein, without the prior written consent of Secured Party; (f)
will keep the Collateral free from any adverse Lien (other than Liens
permitted under the Loan Agreement); and (g) will not use the Collateral in
violation of the Loan Agreement or this Agreement.
SECTION 7. RECORDS RELATING TO COLLATERAL.
Debtor will keep its records concerning the Collateral, including the
Customer Receivables and all chattel paper included in the Customer Receivables,
at the location(s) set forth in EXHIBIT B attached hereto or at such other place
or places of business of which Secured Party shall have been notified in writing
no less than ten (10) days in advance. Debtor will hold and preserve such
records and chattel paper and will, to the extent provided in the Loan
Agreement, (a) permit representatives of Secured Party at any time during normal
business hours to examine and inspect the Collateral and to make abstracts from
such records and chattel paper, and (b) furnish to Secured Party such
information and reports regarding the Collateral as Secured Party may from time
to time reasonably request.
SECTION 8. RECORD OWNERSHIP OF PLEDGED SECURITIES.
Upon the occurrence and during the continuance of an Event of Default,
Secured Party may cause any or all of the Pledged Securities to be transferred
of record into the name of Secured Party (or a designee of Secured Party) in a
manner consistent with applicable law.
SECTION 9. RIGHT TO RECEIVE DISTRIBUTIONS ON PLEDGED SECURITIES.
Unless an Event of Default shall have occurred and be continuing, Debtor
shall be entitled, from time to time, to collect and receive for its own use all
dividends, interest and other payments and distributions made upon or with
respect to the Pledged Securities, except:
(i) dividends of stock;
(ii) dividends payable in securities or other property (except
cash dividends);
(iii) other securities issued with respect to or in lieu of the
Pledged Securities (whether upon conversion of the convertible securities
included therein or through stock split, spin-off, split-off, reclassification,
merger, consolidation, sale of assets, combination of shares or otherwise).
All of the foregoing, together with all new, substituted or additional shares of
capital stock, warrants, options or other rights, or other securities issued in
addition to or in respect of all or any of the Pledged Securities shall be
delivered to Secured Party hereunder as required by SECTION 3 hereof, to be held
as Collateral pursuant to the terms hereof in the same manner as the Pledged
Securities delivered to Secured Party on the date hereof.
SECTION 10. RIGHT TO VOTE PLEDGED SECURITIES.
Unless an Event of Default shall have occurred and be continuing, Debtor
shall have the right, from time to time, to vote and to give consents,
ratifications and waivers with respect to the
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Pledged Securities and to exercise conversion rights with respect to the
convertible securities included therein, and Secured Party shall, upon
receiving a written request from Debtor accompanied by a certificate signed
by Debtor's principal financial officer stating that no Event of Default has
occurred, deliver to Debtor or as specified in such request such proxies,
powers of attorney, consents, ratifications and waivers in respect of any
Pledged Securities which are registered in Secured Party's name, and make
such arrangements with respect to the conversion of convertible securities as
shall be specified in Debtor's request, such arrangements to be in form and
substance reasonably satisfactory to Secured Party.
If an Event of Default shall have occurred and be continuing, and
provided Secured Party elects to exercise the rights hereinafter set forth by
notice to Debtor of such election, Secured Party shall have the right, to the
extent permitted by law, and Debtor shall take all such action as may be
necessary or reasonably appropriate to give effect to such right, to vote and to
give consents, ratifications and waivers and take any other action with respect
to all the Pledged Securities with the same force and effect as if Secured Party
were the absolute and sole owner thereof.
SECTION 11. GENERAL AUTHORITY.
Debtor hereby irrevocably appoints Secured Party Debtor's lawful
attorney, with full power of substitution, in the name of Debtor, for the sole
use and benefit of Secured Party, its successors and assigns, but at Debtor's
expense, to exercise, all or any of the following powers with respect to all or
any of the Collateral during the existence and continuance of any Event of
Default:
(i) to demand, sue for, collect, receive and give acquittance
for any and all monies due or to become due;
(ii) to receive, take, endorse, assign and deliver all checks,
notes, drafts, securities, documents and other negotiable and non-negotiable
instruments and chattel paper taken or received by Secured Party;
(iii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto;
(iv) to sell, transfer, assign or otherwise deal in or with the
same or the proceeds or avails thereof or the related goods securing the
Customer Receivables, as fully and effectually as if Secured Party were the
absolute owner thereof;
(v) to extend the time of payment of any or all thereof and to
make any allowance and other adjustments with reference thereto;
(vi) to discharge any taxes or Liens at any time placed thereon;
and
(vii) to execute any document or form, in the name of Debtor,
which may be necessary or desirable in connection with any sale of Pledged
Securities by Secured Party, including without limitation Form 144 promulgated
by the Securities and Exchange Commission;
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provided, that Secured Party shall give Debtor not less than ten (10) days'
prior written notice of the time and place of any sale or other intended
disposition of any of the Collateral.
SECTION 12. EVENTS OF DEFAULT.
Debtor shall be in default under this Security Agreement upon the
occurrence of any Event of Default under the Loan Agreement.
SECTION 13. REMEDIES UPON EVENT OF DEFAULT.
If any Event of Default shall have occurred and be continuing, Secured
Party may exercise all the rights and remedies of a secured party under the
Uniform Commercial Code. Secured Party may require Debtor to assemble all or
any part of the Collateral and make it available to Secured Party at a place to
be designated by Secured Party which is reasonably convenient. Secured Party
shall give Debtor ten (10) days' written notice of its intention to make any
public or private sale or sale at a broker's board or on a securities exchange
of the Collateral. At any such sale the Collateral may be sold in one lot as an
entirety or in separate parcels, as Secured Party may determine. Secured Party
shall not be obligated to make any such sale pursuant to any such notice. To
the extent permitted by law, Secured Party may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the same may be adjourned. Secured
Party, instead of exercising the power of sale herein conferred upon it, may
proceed by a suit or suits at law or in equity to foreclose the Security
Interests and sell the Collateral, or any portion thereof, under a judgment or
decree of a court or courts of competent jurisdiction.
SECTION 14. APPLICATION OF COLLATERAL AND PROCEEDS.
The proceeds of any sale of, or other realization upon, all or any part
of the Collateral shall be applied in the following order of priorities:
(a) first, to pay the expenses of such sale or other realization, including
reasonable attorneys' fees, and all expenses, liabilities and advances incurred
or made by Secured Party in connection therewith, and any other unreimbursed
expenses for which Secured Party may be reimbursed pursuant to SECTION 15;
(b) second, to the payment of the Obligations in such order of priority as
Secured Party, in its sole discretion, shall determine and (c) finally, to pay
to Debtor, or its successors or assigns, or as a court of competent jurisdiction
may direct, any surplus then remaining from such proceeds.
SECTION 15. EXPENSES; SECURED PARTY'S LIEN.
Debtor will forthwith upon demand pay to Secured Party: (a) the amount
of any taxes which Secured Party may have been required to pay by reason of the
Security Interests (including any applicable transfer and personal property
taxes but excluding taxes in respect of Secured Party's income and profits) or
to free any of the Collateral from any Lien thereon and (b) the amount of any
and all reasonable costs and expenses, including the reasonable fees and
disbursements of its counsel and of any agents not regularly in its employ,
which Secured Party may incur in connection with (i) the collection or other
disposition of any of the Collateral,
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(ii) the exercise by Secured Party of any of the powers conferred upon it
hereunder, (iii) any default on Debtor's part hereunder or (iv) any
Bankruptcy Event.
SECTION 16. TERMINATION OF SECURITY INTERESTS; RELEASE OF COLLATERAL.
Upon the repayment and performance in full of all the Obligations and the
expiration or termination of any obligations of Secured Party to advance funds
to Debtor, or upon the sale of any Collateral which is permitted under the Loan
Agreement or as otherwise consented to in writing by Secured Party, the Security
Interests on such sold Collateral shall terminate and all rights to the
Collateral shall revert to Debtor. Upon any such termination of the Security
Interests or release of Collateral, Secured Party will execute and deliver to
Debtor such documents as Debtor shall reasonably request to evidence the
termination of the Security Interests or the release of such Collateral, as the
case may be. Notwithstanding the foregoing, this Security Agreement shall be
reinstated if at any time any payment made or value received with respect to an
Obligation is rescinded, invalidated, declared to be fraudulent or preferential,
or set aside or is required to be repaid to a trustee, receiver or any other
party under any case or proceeding, voluntary or involuntary, for the
distribution, division or application of all or part of the assets of Debtor or
the proceeds thereof whether such case or proceeding be for the liquidation,
dissolution or winding up of Debtor or their respective businesses, a
receivership, insolvency or bankruptcy case or proceeding, an assignment for the
benefit of creditors or a proceeding by or against Debtor for relief under the
federal Bankruptcy Code or any other bankruptcy, reorganization or insolvency
law or any other law relating to the relief of debtors, readjustment of
indebtedness, reorganization, arrangement, composition or extension or
marshalling of assets or otherwise, all as though such payment had not been made
or value received.
SECTION 17. NOTICES.
All notices, requests, demands and other communications provided for
hereunder shall be in writing and mailed or telefaxed or delivered to the
applicable party in the manner set forth in SECTION 9.6 of the Loan Agreement.
SECTION 18. ADDITIONAL PROVISION REGARDING PLEDGED SECURITIES.
With respect to any Pledged Securities which are delivered to the Secured
Party pursuant to a separate pledge agreement, to the extent any provisions of
that pledge agreement are inconsistent with the terms of this Security
Agreement, the terms of that separate pledge agreement will govern.
SECTION 19. MISCELLANEOUS.
(a) No failure on the part of Secured Party to exercise, and no delay
in exercising, and no course of dealing with respect to, any right, power or
remedy under this Security Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise by Secured Party of any right, power or
remedy under this Security Agreement preclude any other right, power or remedy.
The remedies in this Security Agreement are cumulative and are not exclusive of
any other remedies provided by law. Neither this Security Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally but
only by a statement in
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writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought;
(b) This Security Agreement shall be construed in accordance with and
governed by the laws of The Commonwealth of Massachusetts, except as otherwise
required by mandatory provisions of law and except to the extent that remedies
provided by the laws of any state other than The Commonwealth of Massachusetts
with respect to Collateral located in any such other state are governed by the
laws of said state; and
(c) This Security Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same Security Agreement.
SECTION 20. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
(a) Except to the extent prohibited by applicable law, Debtor
irrevocably:
(i) agrees that any suit, action, or other legal proceeding
arising out of this Security Agreement or any of the Loans may be brought in the
courts of record of The Commonwealth of Massachusetts or any other state(s) in
which any of the Collateral is located or the courts of the United States
located in The Commonwealth of Massachusetts or any other state(s) in which any
of the Collateral is located;
(ii) consents to the jurisdiction of each such court in any such
suit, action or proceeding; and
(iii) waives any objection which it may have to the laying of
venue of such suit, action or proceeding in any of such courts.
For such time as any of the Obligations of Debtor to Secured Party shall
be unpaid in whole or in part and/or the Commitment is in effect, Debtor
irrevocably designates the registered agent or agent for service of process of
the Debtor as reflected on the records of the Secretary of State of California
as its registered agent, and, in the absence thereof the Secretary of State of
State of California, as its agent to accept and acknowledge on its behalf
service of any and all process in any such suit, action or proceeding brought in
any such court and agrees and consents that any such service of process upon
such agent and written notice of such service to Debtor by registered or
certified mail shall be taken and held to be valid personal service upon Debtor
regardless of where Debtor shall then be doing business and that any such
service of process shall be of the same force and validity as if service were
made upon it according to the laws governing the validity and requirements of
such service in each such state and waives any claim of lack of personal service
or other error by reason of any such service. Any notice, process, pleadings or
other papers served upon the aforesaid designated agent shall, within three (3)
Business Days after such service, be sent by the method provided therefor under
SECTION 9.6 of the Loan Agreement to the Debtor at its address set forth in the
Loan Agreement. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY IN THE EVENT OF ANY DISPUTE BETWEEN THE DEBTOR AND SECURED PARTY WITH
RESPECT TO THE FINANCING DOCUMENTS AND/OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREBY.
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SECTION 21. SEVERABILITY.
If any provision hereof is invalid or unenforceable in any jurisdiction,
the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of Secured Party.
IN WITNESS WHEREOF, this Security Agreement has been executed by the
parties hereto all as of the day and year first above written.
FINISAR CORPORATION
By:
-------------------------------
Jerry S. Rawls, President
FLEET NATIONAL BANK, as Agent for
itself and the other Lenders
By:
-------------------------------
Matthew M. Glauninger
Senior Relationship Manager and
Vice President
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EXHIBIT A
SECURITIES OWNED BY DEBTOR
None
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EXHIBIT B
PERFECTION CERTIFICATE
The following information is being provided to Fleet National Bank, in
its capacity as Agent and as Lender ("Fleet") in connection with a proposed loan
to Finisar Corporation ("Borrower"). The information provided in this
Perfection Certificate must be completed and forwarded to Fleet and its counsel,
Hinckley, Allen & Snyder prior to the drafting of any loan documentation:
1. The exact legal name of Borrower is: FINISAR CORPORATION; and
Borrower has not conducted business under any other corporate name except for
those listed below:
(a) Flix Op Corporation
(b)
------------------------------
2. Borrower's Tax ID Number is: 94-3038428.
3. Borrower uses in its business, or has used at any time during the
last five years, and owns the following trade names:
(a) Finisar Corporation
(b)
------------------------------
4. Borrower was formed as a corporation on April 16, 1987, under the
laws of State of California and is in good standing under those laws.
5. FOR CORPORATIONS: The senior officers of Borrower are:
(a) Frank Levinson, CEO
(b) Jerry Rawls, President
6. FOR LIMITED PARTNERSHIPS: The general partner and all limited
partners of Borrower are:
(a)
------------------------------
(b)
------------------------------
7. FOR LIMITED LIABILITY COMPANIES: The Managing Member and all of
the other members of Borrower are:
(a)
------------------------------
(b)
------------------------------
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8. Borrower is qualified to transact business in the following
states:
(a) California
(b)
------------------------------
9. The General Partner/Managing Member is qualified to transact
business in the following states:
(a)
------------------------------
(b)
------------------------------
10. Borrower has places of business at:
(a) 274 Ferguson Drive, Mountain View, CA
(b) 582 Market Street, San Francisco, CA
11. Borrower maintains its records concerning the Collateral,
including the Customer Receivables and all chattel paper included in Customer
Receivables, at:
(a) 274 Ferguson Drive, Mountain View, CA
(b) 582 Market Street, San Francisco, CA
12. Borrower owns or has an interest in personal property located at:
(a) 274 Ferguson Drive, Mountain View, CA
(b) 582 Market Street, San Francisco, CA
13. Borrower owns or has an interest in real property located at
(please note whether such interest is a fee or leased interest):
(a) 274 Ferguson Drive, Mountain View, CA (leased)
(b) 582 Market Street, San Francisco, CA (leased)
14. Borrower is the owner of the following securities:
(a)
------------------------------
(b)
------------------------------
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15. Borrower is the registered owner of the following Copyrights:
REGISTRATION NUMBER TITLE
(a)
(b)
16. Borrower is the registered owner of the following Patents
(please include applications pending):
REGISTRATION OR SERIAL NUMBER PATENT DESCRIPTION
(a) Please see Attachment A
(b)
17. Borrower is the registered owner of the following Trademarks
(please include applications pending):
TRADEMARK/SERVICEMARK REGISTRATION OR SERIAL NUMBER
(a) Please see Attachment B
(b)
18. Borrower is the owner of the following Contracts, Leases,
Licenses and Permits:
(a) Please see Attachment C
(b)
19. EXISTING DEBT:
(a) The Borrower is party to the following existing financing:
(i) Loan from Cupertino National Bank and Trust for
$1,000,000 dated July 16, 1997
(ii) Loan from Cupertino National Bank and Trust for
$500,000 dated July 16, 1997
(b) The following financing statements naming Borrower as
"Debtor" are on file:
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LOCATION DATE FILE NUMBER COLLATERAL
(c) The following mortgages/deeds of trust are of record naming
Borrower as "Mortgagor/Grantor":
(i)
------------------------------
(ii)
------------------------------
20. The Borrower will be represented by the following counsel in
connection with the above financing:
GENERAL COUNSEL:
Blair W. Stewart, Jr.
Wilson Sonsini Goodrich & Rosati PC
650 Page Mill Road
Palo Alto, CA 94304
Tel: (650) 493-9300
Fax: (650) 493-6811
21. The Borrower will be using the following Title Insurance Company
and Surveyor:
TITLE COMPANY:
------------------------------
------------------------------
------------------------------
Attn:
-----------------------
Tel:
------------------------
Fax:
------------------------
SURVEYOR:
------------------------------
------------------------------
------------------------------
Attn:
-----------------------
Tel:
------------------------
Fax:
------------------------
REPEAT ABOVE INFORMATION FOR ALL BORROWING SUBSIDIARIES
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ATTACHMENT A
The following is a list of patents owned or submitted by the Company.
<TABLE>
<CAPTION>
PATENT PATENT FILING COUNTRY STATUS
------ NO. DATE ------- ------
------ ------
<S> <C> <C> <C> <C>
Integrated Coupler/Connector 4,881,789 05/26/88 USA Issued 11/21/89
2x2 Optical Bypass Switch 4,927,225 05/30/89 USA Issued 05/22/90
Semiconductor Laser Diode Controller and 5,019,769 09/14/90 USA Issued 05/28/91
Laser
"" 654825 Australia Issued 07/31/91
"" Japan-requested exam
07/13/98
"" 54811 European Community -
issued 09/17/97;
validated in
UK, France & Germany
System for Scheduling of Indexed and 5,404,505 11/01/91 USA Issued 04/04/95
Requested Database Information on Demand
"" 654885 Australia Issued 07/31/91
"" Canada Filed
"" European Community -
requested examiner 5-95
Multi-Mode High Speed Network Switch for 5,566,171 03/15/95 USA Issued 01/15/96
Node-to-Node Communication
High Speed Local Area Network 5,604,735 05/12/95 USA Issued 02/18/97
Multi-Protocol Dual Fiber Link Laser Diode Abandoned
Controller
CIP Multi-Protocol Dual Fiber Link Laser 09/05/97 USA Pending
Diode Controller
Light Mixing Device with Fiber Optic Output 5,271,079 USA Issued 12/14/93
Method and Apparatus for Simulating a Laser 5,247,532 09/21/93 USA Issued 09/21/93
Diode in a Fiber Optic Transmitter
</TABLE>
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<PAGE>
ATTACHMENT B
<TABLE>
<CAPTION>
TRADEMARK REG. NO. FILING DATE COUNTRY STATUS
<S> <C> <C> <C> <C>
Finisar 1,819,741 03/26/93 Intn'l Class 9 Issued 02/08/94
</TABLE>
16
<PAGE>
ATTACHMENT C
(1) The Company is party to the following real property leases and
subleases:
(a) Building Lease for 274 Ferguson Drive, Mountain View, CA,
dated April 30, 1997 between the Company and DM Group VIII
and DM Group VIII-E for a period beginning June 1, 1997 and
ending May 31, 2002.
(b) Individual Grant Deed for 3812 Brittany Lane, Glendale, CA,
dated June 6, 1995 between the Company and Mr. and Mrs. Jan
Lipson.
(2) The following licenses have been granted by the Company for use of
its intellectual property.
The Company is party to a license and supply agreement with Methode
Electronics regarding certain of the Company's products.
Many of the Company's products have imbedded software and by selling such
products, the Company implicitly grants a license to each purchaser to use the
software.
(3) The Company is party to the following contracts, agreements and
transactions which involve obligations of, or payments to, the Company in excess
of Fifty Thousand Dollars ($50,000):
(a) Equipment Lease Agreement with Hewlett-Packard starting
September 22, 1997
(b) Equipment Purchase Order with Hewlett-Packard dated
August 28, 1997
(c) Purchase Order for Hewlett Packard dated June 3, 1998
(d) Purchase Order for Fermi National Accelerator Laboratory
dated June 19, 1998
(e) Evaluation Agreement between Finisar and Anchor
Communications, Inc. dated July 14, 1998
17