Attached files
Exhibit 4.6
Execution Copy
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of January 29, 2010, among ACCELLENT INC., a Maryland corporation (the “Company”), each of the subsidiaries of the Company listed on Annex A hereto (each such undersigned subsidiary being a “Subsidiary Grantor” and, collectively, the “Subsidiary Grantors”; the Subsidiary Grantors and the Company are referred to collectively, jointly and severally, as the “Grantors”), and THE BANK OF NEW YORK MELLON, as notes collateral agent (in such capacity, the “Notes Collateral Agent”) pursuant to an indenture, dated as of the date hereof (as the same may be amended, supplemented or otherwise modified from time to time, the “Indenture”), among the Company, each Guarantor (as defined in the Indenture) and THE BANK OF NEW YORK MELLON, as trustee (the “Trustee”) and as Notes Collateral Agent on behalf of the holders of the Notes (as defined below) (the “Holders”).
WITNESSETH:
WHEREAS, pursuant to the Indenture, the Company has issued, or will issue $400 million principal amount of 8 3/8% senior secured notes due 2017 (together with any Additional Notes issued pursuant to the Indenture, the “Notes”) upon the terms and subject to the conditions set forth therein;
WHEREAS, pursuant to the Indenture, each Guarantor party thereto has unconditionally and irrevocably guaranteed, as primary obligor and not merely as surety, to the Trustee, for the benefit of the Secured Parties the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations;
WHEREAS, The Bank of New York Mellon has been appointed to serve as Notes Collateral Agent under the Indenture and, in such capacity, to enter into this Agreement;
WHEREAS, each Grantor will receive substantial benefits from the execution, delivery and performance of the obligations under the Indenture and the Notes and each is, therefore, willing to enter into this Agreement;
WHEREAS, this Agreement is made by the Grantors in favor of the Notes Collateral Agent for the benefit of the Secured Parties to secure the payment and performance in full when due of the Obligations; and
WHEREAS, each Subsidiary Grantor is a Domestic Subsidiary of the Company;
NOW, THEREFORE, in consideration of the premises and to induce the Trustee and the Notes Collateral Agent to enter into the Indenture and induce the Holders to purchase and hold the Notes, the Grantors hereby agree with the Notes Collateral Agent, for the benefit of the Secured Parties, as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the Indenture and used herein shall have the meanings given to them in the Indenture and all terms defined in the Uniform Commercial
Code from time to time in effect in the State of New York (the “NY UCC”) and not defined herein (or in the Indenture) shall have the meanings specified therein; provided, however, unless otherwise specified herein, that to the extent that the NY UCC is used to define any term used herein and if such term is defined differently in different Articles of the NY UCC, the definition of such term contained in Article 9 of the NY UCC shall govern.
(b) The following terms shall have the following meanings:
“Chattel Paper” shall mean all “chattel paper” as such term is defined in Article 9 of the NY UCC.
“Collateral” shall have the meaning assigned to such term in Section 2.
“Commercial Tort Claims” means “commercial tort claims,” as such term is defined in the NY UCC, and includes those commercial tort claims listed on Schedule 7.
“Control Agreement” means with respect any Deposit Account or Securities Account maintained by any Grantor, an agreement, in form and substance reasonably satisfactory to the Notes Collateral Agent, among such Grantor, an institution maintaining such Grantor’s account, the Notes Collateral Agent and any other parties thereto.
“Copyright License” means any written agreement, now or hereafter in effect, granting any right to any third party under any copyright now or hereafter owned by any Grantor (including all Copyrights) or that any Grantor otherwise has the right to license, or granting any right to any Grantor under any copyright now or hereafter owned by any third party, and all rights of any Grantor under any such agreement, including those listed on Schedule 1.
“copyrights” means, with respect to any Person, all of the following now owned or hereafter acquired by such Person: (i) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise, and (ii) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office.
“Copyrights” means all copyrights now owned or hereafter acquired by any Grantor, including those listed on Schedule 2.
“Deposit Accounts” shall mean all “deposit accounts,” as such term is defined in Article 9 of the NY UCC.
“Discharge of Obligations” shall mean the discharge or defeasance of the Notes in accordance with Article VIII or Article IX of the Indenture.
“Documents” shall mean all “documents,” as such term is defined in Article 9 of the NY UCC.
“Equipment” shall mean all “equipment,” as such term is defined in Article 9 of the NY UCC, now or hereafter owned by any Grantor or to which any Grantor has rights and, in any event, shall include all machinery, equipment, furnishings, movable trade fixtures and vehicles now or hereafter owned by any Grantor or to which any Grantor has rights and any and all additions, substitutions and replacements of any of the foregoing, wherever located, together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.
2
“Excluded Accounts” shall mean (a) (i) zero balance disbursement Deposit Accounts, (ii) Deposit Accounts which solely hold “trust moneys” to be remitted to governmental authorities, (iii) Deposit Accounts containing funds deposited solely for self-funded third-party administered employee medical care plans, (iv) any Deposit Account or Securities Account established solely to hold the proceeds of any sale of Notes Priority Collateral to the extent required pursuant to the terms of the Secured Notes Indenture and (v) Deposit Accounts exclusively used for funding zero balance disbursement Deposit Accounts in respect of payroll, payroll taxes and other employee wage and benefit payments and (b) other Deposit Accounts which do not contain more than $50,000 the aggregate at any time.
“Excluded Assets” shall mean the collective reference to:
(a) any property or asset only to the extent and for so long as the grant of a security interest in such property or asset is prohibited by any applicable law or requires a consent not obtained of any governmental authority pursuant to applicable law;
(b) any right, title or interest in any permit, license or contract held by any Grantor or to which any Grantor is a party or any of its right, title or interest thereunder, in each case only to the extent and for so long as the terms of such permit, license or contract validly prohibits the creation by such Grantor of a security interest in such permit, license or contract in favor of the Notes Collateral Agent (after giving effect to Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code (or any successor provisions) of any relevant jurisdiction or any other applicable law (including Title 11 of the United States Code) or principles of equity);
(c) Capital Stock of a Person that constitutes a Subsidiary (other than a Wholly-Owned Subsidiary) the pledge of which would violate a contractual obligation to the owners of the other Capital Stock of such Person that is binding on or relating to such Capital Stock;
(d) any equipment (and proceeds thereof) of any Grantor that is subject to a purchase money Lien or Capital Lease Obligation permitted under the Indenture to the extent the documents relating to such purchase money Lien or Capital Lease Obligation would not permit such equipment or real property (and proceeds thereof) to be subject to the Liens created under the Security Documents; provided, that immediately upon the ineffectiveness, lapse or termination of any such restriction, such equipment or real property shall cease to be an “Excluded Asset”;
(e) assets of any Grantor located outside of the United States to the extent a Lien on such assets cannot be created and perfected under United States federal or state law;
(f) any Equity Interests and other securities of a Subsidiary to the extent that the pledge of such Equity Interests and other securities results in the Issuer being required to file separate financial statements of such Subsidiary with the SEC pursuant to Rule 3-16 of Regulation S-X under the Securities Act, but only to the extent necessary to not be subject to such requirement,
(g) After-Acquired Property subject to Permitted Liens described in clause (8) or (9) of the definition of Permitted Liens in the Indenture so long as the documents governing such Permitted Liens do not permit any other Liens on such After-Acquired Property;
3
(h) (i) any Voting Stock representing in excess of 65% of the issued and outstanding Voting Stock in any Foreign Subsidiary; and
(i) notwithstanding any recording of the Notes Collateral Agent’s Security Interest in the United States Patent and Trademark Office, United States Copyright Office or other registry office in any other jurisdiction, any “intent-to-use” Trademark application to the extent and for so long as creation by a Grantor of a security interest therein would result in the invalidity, unenforceability or loss by such Grantor of any rights therein; provided that upon submission and acceptance by the United States Patent and Trademark Office 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 cease to constitute Excluded Assets;
provided, however, that Excluded Assets will not include (a) any proceeds, substitutions or replacements of any Excluded Assets referred to above (unless such proceeds, substitutions or replacements would constitute Excluded Assets) or (b) any asset which secures Senior Credit Facilities Debt.
“Final Date” shall mean the date upon which there has been a Discharge of Obligations with respect to the Indenture.
“Fixtures” means “fixtures,” as such term is defined in the NY UCC.
“General Intangibles” shall mean all “general intangibles,” as such term is defined in Article 9 of the NY UCC and, in any event, including with respect to any Grantor, all contracts, agreements, instruments and indentures in any form, and portions thereof, to which such Grantor is a party or under which such Grantor has any right, title or interest or to which such Grantor or any property of such Grantor is subject, as the same may from time to time be amended, supplemented or otherwise modified, including (a) all rights of such Grantor to receive moneys due and to become due to it thereunder or in connection therewith, (b) all rights of such Grantor to receive proceeds of any insurance, indemnity, warranty or guarantee with respect thereto, (c) all claims of such Grantor for damages arising out of any breach of or default under thereunder and (d) all rights of such Grantor to terminate, amend, supplement, modify or exercise rights or options thereunder, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder.
“Guarantors” shall mean each Grantor other than the Company.
“Grantor” shall have the meaning assigned to such term in the preamble hereto.
“Instruments” shall mean all “instruments,” as such term is defined in Article 9 of the NY UCC.
“Intellectual Property” shall mean all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise now owned or hereafter acquired, including (a) all information used or useful arising from the business including all goodwill, trade secrets, trade secret rights, know-how, customer lists, processes of production, ideas, confidential business information, techniques, processes, formulas and all other proprietary information, and (b) the Copyrights, the Patents, the Trademarks and the Licenses and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
“Investment Property” shall mean all “investment property,” as such term is defined in the NY UCC, and, in any event, including with respect to any Grantor, Securities (whether certificated or uncertificated), Security Entitlements, Securities Accounts, Commodity Contracts and Commodity Accounts of any Grantor, whether now or hereafter acquired by any Grantor.
4
“License” shall mean any Patent License, Trademark License, Copyright License or other license or sublicense to which any Grantor is a party.
“Notes Collateral Agent” shall have the meaning assigned to such term in the preamble hereto.
“Note Documents” means the Notes, the Guarantees, the Indenture, the Security Documents and the Intercreditor Agreement.
“Notes Obligations” shall mean the collective reference to (i) all obligations, liabilities and indebtedness (including, without limitation, principal, premium, interest (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Grantor at the rate provided for in the respective documentation, whether or not such claim for post-petition interest is allowed in any such proceeding)) owing to the Notes Collateral Agent, the Trustee and the Holders under the Notes, the Indenture and the other Note Documents and the due performance and compliance by the Grantors with all of the terms, conditions and agreements contained in the Notes, the Indenture and the other Note Documents; (ii) any and all sums advanced by the Notes Collateral Agent in accordance with the Indenture or any of the other Note Documents in order to preserve the Collateral or preserve its security interest in the Collateral; (iii) in the event of any proceedings for the collection or enforcement of any indebtedness, obligations, or liabilities of the Grantors referred to in clause (i) above, the reasonable expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Notes Collateral Agent of its rights hereunder, together with reasonable attorneys’ fees and court costs.
“NY UCC” has the meaning assigned to such term in Section 1(a).
“Patent License” means any written agreement, now or hereafter in effect, granting to any third party any right to make, use or sell any invention on which a patent, now or hereafter owned by any Grantor (including all Patents) or that any Grantor otherwise has the right to license, is in existence, or granting to any Grantor any right to make, use or sell any invention on which a patent, now or hereafter owned by any third party, is in existence, and all rights of any Grantor under any such agreement, including those listed on Schedule 3.
“patents” means, with respect to any Person, all of the following now owned or hereafter acquired by such Person: (a) all letters patent of the United States or the equivalent thereof in any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any similar offices in any other country, and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.
“Patents” means all patents now owned or hereafter acquired by any Grantor, including those listed on Schedule 4.
5
“Proceeds” shall mean all “proceeds,” as such term is defined in Article 9 of the NY UCC and, in any event, shall include with respect to any Grantor, any consideration received from the sale, exchange, license, lease or other disposition of any asset or property that constitutes Collateral, any value received as a consequence of the possession of any Collateral and any payment received from any insurer or other person or entity as a result of the destruction, loss, theft, damage or other involuntary conversion of whatever nature of any asset or property that constitutes Collateral, and shall include (a) all cash and negotiable instruments received by or held on behalf of the Notes Collateral Agent, (b) any claim of any Grantor against any third party for (and the right to sue and recover for and the rights to damages or profits due or accrued arising out of or in connection with) (i) past, present or future infringement of any Patent now or hereafter owned by any Grantor, or licensed under a Patent License, (ii) past, present or future infringement or dilution of any Trademark now or hereafter owned by any Grantor or licensed under a Trademark License or injury to the goodwill associated with or symbolized by any Trademark now or hereafter owned by any Grantor, (iii) past, present or future breach of any License and (iv) past, present or future infringement of any Copyright now or hereafter owned by any Grantor or licensed under a Copyright License and (c) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.
“Required Secured Parties” shall mean holders of a majority in an aggregate principal amount of the Notes then outstanding voting as a single class, subject in all cases to Section 9.02 of the Indenture.
“Secured Obligations” means the collective reference to the Notes Obligations.
“Secured Parties” means (i) the Holders; (ii) the Trustee and (iii) the Notes Collateral Agent.
“Security Agreement” shall mean this Security Agreement, as the same may be amended, supplemented or otherwise modified from time to time.
“Security Interest” shall have the meaning assigned to such term in Section 2.
“Supporting Obligations” means “supporting obligations,” as such term is defined in the NY UCC, and, in any event, including with respect to any Grantor, letters of credit and guaranties issued for the benefit of such Grantor in support of Accounts, Chattel Paper, documents, General Intangibles, Instruments or Investment Property.
“Trademark License” means any written agreement, now or hereafter in effect, granting to any third party any right to use any trademark now or hereafter owned by any Grantor (including any Trademark) or that any Grantor otherwise has the right to license, or granting to any Grantor any right to use any trademark now or hereafter owned by any third party, and all rights of any Grantor under any such agreement, including those listed on Schedule 5.
“trademarks” means, with respect to any Person, all of the following now owned or hereafter acquired by such Person: (i) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof (if any), and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all extensions or renewals thereof, (ii) all goodwill associated therewith or symbolized thereby and (iii) all other assets, rights and interests that uniquely reflect or embody such goodwill.
6
“Trademarks” means all trademarks now owned or hereafter acquired by any Grantor, including those listed on Schedule 6 hereto.
(c) The words “hereof’, “herein”, “hereto” and “hereunder” and words of similar import when used in this Security Agreement shall refer to this Security Agreement as a whole and not to any particular provision of this Security Agreement, and Section, subsection and Schedule references are to this Security Agreement unless otherwise specified. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.”
(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(e) Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.
2. Grant of Security Interest.
(a) Each Grantor hereby bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates and transfers to the Notes Collateral Agent, for the benefit of the Secured Parties, and hereby grants to the Notes Collateral Agent, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in all of the following property now owned or hereafter acquired by such Grantor or in which such Grantor now has or at any time in future may acquire any right, title or interest (collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Commercial Tort Claims listed on Schedule 7;
(iv) all Deposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vii) all Fixtures;
(viii) all General Intangibles;
(ix) all Instruments;
(x) all Intellectual Property;
(xi) all Inventory;
(xii) all Investment Property;
(xiii) books and records pertaining to the assets described in this Section 2(a);
7
(xiv) all letters of credit and letter of credit rights;
(xv) all Supporting Obligations; and
(xvi) to the extent not otherwise included, all Proceeds and products of any and all of the foregoing.
Notwithstanding anything to the contrary contained in clauses (i) through (xvi) above, the security interest created by this Agreement shall not extend to, and the term “Collateral” shall not include, any Excluded Assets. For the avoidance of doubt, this Security Agreement shall not be deemed, or construed or interpreted to include, a pledge of any Pledged Shares or Pledge Debt (each as defined in the Pledge Agreement).
(b) Each Grantor hereby irrevocably authorizes the Notes Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements with respect to the Collateral or any part thereof and amendments thereto that contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor. Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner such as “all assets” or “all personal property, whether now owned or hereafter acquired.” Each Grantor agrees to provide such information to the Notes Collateral Agent promptly upon request.
Each Grantor also ratifies its authorization for the Notes Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof.
The Notes Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Notes Collateral Agent as secured party.
The Security Interests are granted as security only and shall not subject the Notes Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral.
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 the Secured Parties, but for the fact that they are unenforceable or not allowable (in whole or in part) as a claim in an insolvency or bankruptcy proceeding involving any Grantor due to the existence of such insolvency or bankruptcy proceeding.
It is understood and agreed, except as provided in Section 4.5, that the Security Interests in cash, Deposit Accounts and Investment Property created hereunder shall not prevent the Grantors from using such assets in the ordinary course of their respective businesses.
8
3. Representations And Warranties.
Each Grantor hereby represents and warrants to the Notes Collateral Agent and each Secured Party that:
3.1. Title; No Other Liens. Except for the Security Interest granted to the Notes Collateral Agent for the benefit of the Secured Parties pursuant to this Security Agreement and the Liens permitted by the Indenture, such Grantor owns each item of the Collateral free and clear of any and all Liens or claims of others. No security agreement, financing statement or other public notice with respect to all or any part of the Collateral that evidences a Lien securing any material Indebtedness is on file or of record in any public office, except such as have been filed in favor of the Notes Collateral Agent, for the benefit of the Secured Parties, pursuant to this Security Agreement or are permitted by the Indenture.
3.2. Perfected First Priority Liens. The Security Interests granted pursuant to this Security Agreement (i) will constitute valid perfected Security Interests in the Collateral (as to which perfection may be obtained by the filings or other actions described in clauses (A) or (B) or (C) below) in favor of the Notes Collateral Agent, for the benefit of the Secured Parties, as collateral security for the Secured Obligations, upon (A) the filing of all financing statements naming each Grantor as “debtor” and the Notes Collateral Agent as “secured party” and describing the Collateral in the applicable filing offices, (B) delivery of all Instruments, Chattel Paper and certificated Securities to the Notes Collateral Agent, and (C) completion of the filing, registration and recording of a fully executed agreement in the form hereof (or a supplement hereto) with the United States Copyright Office and the United States Patent and Trademark Office (as applicable), and the filing of appropriate financing statements as described in the foregoing clause (A) (such filing, registration and recording being all action necessary or desirable to perfect the Security Interest in and on each Grantor’s Patents, Trademarks, or Copyrights and such perfected Security Interest is enforceable as such as against any and all creditors of and purchasers from any Grantor, subject to the effects of bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general equitable principles) and (ii) are prior to all other Liens on the Collateral other than Permitted Liens.
3.3. Legal Name; Jurisdiction. (a) Set forth on Schedule 9 hereto is (i) the legal name of such Grantor, (ii) the jurisdiction of incorporation or organization of such Grantor, (iii) the true and correct location of the chief executive office and principal place of business and any office in which it maintains books or records relating to Collateral owned by it, (iv) the identity or type of organization or corporate structure of such Grantor and (v) the Federal Taxpayer Identification Number and organizational number (if applicable) of such Grantor.
(b) As of the date hereof (i) Schedule 1 hereto sets forth all of each Grantor’s Copyright Licenses, (ii) Schedule 2 hereto sets forth, in proper form for filing with the United States Copyright office, all of each Grantor’s Copyrights (and all applications therefor), (iii) Schedule 3 hereto sets forth all of each Grantor’s Patent Licenses, (iv) Schedule 4 hereto sets forth, in proper form for filing with the United States Patent and Trademark Office, all of each Grantor’s Patents (and all applications therefor), (v) Schedule 5 hereto sets forth all of each Grantor’s Trademark Licenses and (vi) Schedule 6 hereto sets forth, in proper form for filing with the United States Patent and Trademark Office, all of each Grantor’s Trademarks (and all applications therefor).
9
4. Covenants.
Each Grantor hereby covenants and agrees with the Notes Collateral Agent that, from and after the date of this Security Agreement until the Secured Obligations under the Note Documents are paid in full:
4.1. Maintenance of Perfected Security Interest; Further Documentation. (a) Such Grantor shall maintain the Security Interest created by this Security Agreement as a perfected Security Interest having at least the priority described in subsection 3.1 and shall defend such Security Interest against the claims and demands of all Persons whomsoever, in each case subject to subsection 4.1(e).
(b) Within 30 days after the end of each calendar quarter, such Grantor will deliver to the Notes Collateral Agent (i) copies of all such certificates of title issued during such calendar quarter with the notation thereon of the Notes Collateral Agent’s Security Interest created hereunder in the items of Equipment covered hereby and (ii) a written supplement hereto substantially in the form of Annex 2 hereto with respect to any additional Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses acquired by such Grantor after the date hereof, all in reasonable detail.
(c) Each Grantor agrees that at any time and from time to time, at the expense of such Grantor, it will execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents), which may be required under any applicable law, or which the Notes Collateral Agent may reasonably request, in order (i) to grant, preserve, protect and perfect the validity and priority of the Security Interests created or intended to be created hereby or (ii) to enable the Notes Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to any Collateral, including the filing of any financing or continuation statements under the Uniform Commercial Code in effect in any jurisdiction with respect to the Security Interests created hereby, all at the expense of such Grantor.
(d) Notwithstanding anything in this subsection 4.1 to the contrary, (i) with respect to any assets acquired by such Grantor after the date hereof that are required by the Indenture to be subject to the Lien created hereby or (ii) with respect to any Person that, subsequent to the date hereof, becomes a “Guarantor” under and as defined in the Indenture, the relevant Grantor after the acquisition or creation thereof shall promptly take all actions required by the Indenture or this subsection 4.1.
(e) Notwithstanding anything to the contrary herein, no Grantor shall be required to perfect the Security Interests granted by this Security Agreement (including Security Interests in cash, cash accounts and Investment Property) by any means other than by (i) filings pursuant to the Uniform Commercial Codes of the relevant State(s), (ii) filings approved by United States government offices (or other applicable foreign jurisdictions) with respect to Intellectual Property, (iii) in the case of Collateral that constitutes Tangible Chattel Paper, Instruments or Negotiable Documents in excess of $500,000 or any Certificated Securities, possession by the Notes Collateral Agent in the United States or (iv) obtaining Control Agreements over Deposit Accounts and Securities Accounts other than Excluded Accounts. No Grantor shall be required to complete any filings or other action with respect to the perfection of Security Interests in any jurisdiction outside the United States except as provided in the foregoing clause (ii).
4.2. Changes in Locations, Name, etc. Each Grantor will furnish to the Notes Collateral Agent prompt (but in any event within ten Business Days of the applicable change) written notice of any change (i) in its legal name, (ii) in its jurisdiction of incorporation or organization, (iii) in its identity or type of organization or corporate structure, (iv) in the case of any Grantor that is not a registered organization, in its chief executive office or principal place of business or (v) in its Federal Taxpayer Identification Number or organizational identification number. Each Grantor agrees promptly (but in any event within ten Business Days of the applicable change) to provide the Notes Collateral Agent with certified organizational documents reflecting any of the changes described in the first sentence of this paragraph. Each Grantor agrees not to effect or permit any change referred to in the first sentence of this paragraph unless all filings have been made under the Uniform Commercial Code or otherwise that
10
are required in order for the Notes Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral having at least the priority described in subsection 3.2. Each Grantor also agrees promptly to notify the Notes Collateral Agent if any material portion of the Collateral is damaged or destroyed.
4.3. Notices. Each Grantor will advise the Notes Collateral Agent promptly, in reasonable detail, of any Lien of which it has knowledge (other than the Security Interests created hereby or Liens permitted under the Indenture) on any of the Collateral which would adversely affect, in any material respect, the ability of the Notes Collateral Agent to exercise any of its remedies hereunder.
4.4. Special Covenants with Respect to Equipment. (a) Each Grantor shall, promptly after the acquisition by such Grantor of any item of Equipment that is covered by a certificate of title under a statute of any jurisdiction under the law of which indication of a Security Interest on such certificate is required as a condition of perfection thereof, execute and file with the registrar of motor vehicles or other appropriate authority in such jurisdiction an application or other document requesting the notation or other indication of the Security Interest created hereunder on such certificate of title; provided that the foregoing filing requirement shall not be applicable to the extent the value of such Equipment covered by a certificate of title is less than $500,000.
(b) Upon the occurrence and during the continuation of any Event of Default, all insurance payments in respect of such Equipment shall be paid to and applied by Notes Collateral Agent as specified in subsection 5.4 hereof.
(c) At the Notes Collateral Agent’s request at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall deliver to the Notes Collateral Agent the certificates of title covering each item of Equipment the perfection of which is governed by the notation on the certificate of title of the Notes Collateral Agent’s Security Interest created hereunder.
4.5. Control Agreements. (a) On or before the 60th day following the Closing Date (or, if earlier, at the same time any control agreements are entered into with respect to the ABL Collateral), each Grantor shall execute and deliver to the Notes Collateral Agent Control Agreements for each Deposit Account and Securities Account maintained by such Grantor other than Excluded Accounts (each a “Collateral Deposit Account”), which Deposit Accounts and Securities Accounts as of the Closing Date are identified as such on Schedule 8. Except to the extent otherwise excused by this Security Agreement or the Indenture, each Grantor shall obtain an authenticated Control Agreement, (i) from each bank maintaining a Deposit Account (other than an Excluded Account) opened or acquired by such Grantor after the Closing Date, (ii) from each issuer of uncertificated securities, securities intermediary or commodities intermediary issuing or holding any financial assets or commodities acquired by any Grantor after the Closing Date and (iii) with respect to all of such Grantor’s investment property.
(b) Before opening or replacing any Collateral Deposit Account, other Deposit Account or Securities Account (other than an Excluded Account) (and at the same time any control agreements are entered into with respect to the ABL Collateral), each Grantor shall cause each bank or financial institution in which it seeks to open a Deposit Account or Securities Account, to enter into a Control Agreement with the Notes Collateral Agent in order to give the Notes Collateral Agent Control of such Deposit Account or Securities Account.
4.6. Commercial Tort Claims. Each Grantor shall promptly, and in any event within ten Business Days after the same is acquired by it, notify the Notes Collateral Agent of any Commercial Tort Claims acquired by it which could reasonably be expected to result in award damages in excess of $1,000,000, in writing signed by such Grantor providing the brief details thereof and grant to the Notes Collateral Agent in such writing a security interest therein and in the Proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Notes Collateral Agent.
11
5. Remedial Provisions.
5.1. Certain Matters Relating to Accounts. (a) At any time after the occurrence and during the continuance of an Event of Default and after giving written notice to the Company and any other relevant Grantor, the Notes Collateral Agent shall have the right to make test verifications of the Accounts in any manner and through any medium that it reasonably considers advisable, and each Grantor shall furnish all such assistance and information as the Notes Collateral Agent may require in connection with such test verifications. The Notes Collateral Agent shall have the absolute right to share any information it gains from such inspection or verification with any Secured Party.
(b) The Notes Collateral Agent hereby authorizes each Grantor to collect such Grantor’s Accounts and the Notes Collateral Agent may curtail or terminate said authority at any time after the occurrence and during the continuance of an Event of Default. If required in writing by the Notes Collateral Agent at any time after the occurrence and during the continuance of an Event of Default, any payments of Accounts, when collected by any Grantor, (i) shall be forthwith (and, in any event, within two Business Days) deposited by such Grantor in the exact form received, duly endorsed by such Grantor to the Notes Collateral Agent if required, in a Collateral Account maintained under the sole dominion and control of and on terms and conditions reasonably satisfactory to the Notes Collateral Agent, subject to withdrawal by the Notes Collateral Agent for the account of the Secured Parties only as provided in subsection 5.5, and (ii) until so turned over, shall be held by such Grantor in trust for the Notes Collateral Agent and the Secured Parties, segregated from other funds of such Grantor. Each such deposit of Proceeds of Accounts shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.
(c) At the Notes Collateral Agent’s request at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall deliver to the Notes Collateral Agent all original and other documents evidencing, and relating to, the agreements and transactions which gave rise to the Accounts, including all original orders, invoices and shipping receipts.
(d) Upon the occurrence and during the continuance of an Event of Default, a Grantor shall not grant any extension of the time of payment of any of the Accounts, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any person liable for the payment thereof, or allow any credit or discount whatsoever thereon if the Notes Collateral Agent shall have instructed the Grantors not to grant or make any such extension, credit, discount, compromise, or settlement under any circumstances during the continuance of such Event of Default.
5.2. Communications with Obligors; Grantors Remain Liable. (a) Subject to the terms of the Intercreditor Agreement, the Notes Collateral Agent in its own name or in the name of others may at any time after the occurrence and during the continuance of an Event of Default, after giving notice to the relevant Grantor of its intent to do so, communicate with obligors under the Accounts to verify with them to the Notes Collateral Agent’s satisfaction the existence, amount and terms of any Accounts. The Notes Collateral Agent shall have the absolute right to share any information it gains from such inspection or verification with any Secured Party.
(b) Upon the written request of the Notes Collateral Agent at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall notify obligors on the Accounts that the Accounts have been assigned to the Notes Collateral Agent for the benefit of the Secured Parties and that payments in respect thereof shall be made directly to the Notes Collateral Agent.
12
(c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each of the Accounts to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. Neither the Notes Collateral Agent nor any Secured Party shall have any obligation or liability under any Account (or any agreement giving rise thereto) by reason of or arising out of this Security Agreement or the receipt by the Notes Collateral Agent or any Secured Party of any payment relating thereto, nor shall the Notes Collateral Agent or any Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Account (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
5.3. Proceeds to be Turned Over To Notes Collateral Agent. In addition to the rights of the Collateral Agent and the Secured Parties specified in subsection 5.1 with respect to payments of Accounts, subject to the terms of the Intercreditor Agreement, if an Event of Default shall occur and be continuing and the Notes Collateral Agent so requires by notice in writing to the relevant Grantor, all Proceeds received by any Grantor consisting of cash, checks and other near-cash items shall be held by such Grantor in trust for the Notes Collateral Agent and the Secured Parties, segregated from other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to the Notes Collateral Agent in the exact form received by such Grantor (duly endorsed by such Grantor to the Notes Collateral Agent, if required). All Proceeds received by the Notes Collateral Agent hereunder shall be held by the Notes Collateral Agent in a Collateral Deposit Account maintained under its sole dominion and control and on terms and conditions reasonably satisfactory to the Notes Collateral Agent. All Proceeds while held by the Notes Collateral Agent in a Collateral Deposit Account (or by such Grantor in trust for the Notes Collateral Agent and the Secured Parties) shall continue to be held as collateral security for all the Secured Obligations and shall not constitute payment thereof until applied as provided in subsection 5.4.
5.4. Application of Proceeds. Subject to the terms of the Intercreditor Agreement, the Notes Collateral Agent shall apply the proceeds of any collection or sale of the Collateral as well as any Collateral consisting of cash, at any time after receipt, in accordance with Section 6.13 of the Indenture.
Upon any sale of the Collateral by the Notes Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Notes Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Notes Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
5.5. Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, and subject to the terms of the Intercreditor Agreement, the Notes Collateral Agent may exercise in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party upon default under the NY UCC or any other applicable law and also may without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange broker’s board or at any of the Notes Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such price or prices and upon such other terms as are commercially reasonable irrespective of the impact of any such sales on the market price of the Collateral. The Notes Collateral Agent shall be authorized at any such
13
sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers of Collateral to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and, upon consummation of any such sale, the Notes Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay and/or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Notes Collateral Agent shall have the right upon any such public sale, and, to the extent permitted by law, upon any such private sale, to purchase the whole or any part of the Collateral so sold, and the Notes Collateral Agent may subject pay the purchase price by crediting the amount thereof against the Secured Obligations. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days’ notice to such 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. The Notes Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Notes Collateral 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. To the extent permitted by law, each Grantor hereby waives any claim against the Notes Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Notes Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Each Grantor further agrees, at the Notes Collateral Agent’s request, to assemble the Collateral and make it available to the Notes Collateral Agent at places which the Notes Collateral Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The Notes Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this subsection 5.5 in accordance with the provisions of subsection 5.4.
(b) Upon the occurrence and during the continuance of an Event of Default, the Notes Collateral 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 and exercise any and all rights of any Grantor therein contained as fully as such Grantor itself could and (b) shall have the right to use any Grantor’s rights under Licenses in connection with the enforcement of the Notes Collateral 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. The Notes Collateral Agent is hereby granted a license or other right to use, without liability for royalties or any other charge, each Grantor’s Intellectual Property, 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 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 the Notes Collateral Agent.
(c) 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 the Notes Collateral Agent shall have the right to an immediate writ of possession without notice of a hearing. The Notes Collateral 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 the Notes Collateral Agent.
14
(d) Each right, power, and remedy of the Notes Collateral Agent as provided for in this Security Agreement or in the other Note Documents or 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 Security Agreement and the other Note Documents or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by the Notes Collateral Agent, of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by any Agent of any or all such other rights, powers, or remedies.
5.6. Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay the Secured Obligations and the fees and disbursements of any attorneys employed by the Notes Collateral Agent or any Secured Party to collect such deficiency.
5.7. Amendments, etc. with Respect to the Secured Obligations: Waiver of Rights. Each Grantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Grantor and without notice to or further assent by any Grantor, (a) any demand for payment of any of the Secured Obligations made by the Notes Collateral Agent or any other Secured Party may be rescinded by such party and any of the Secured Obligations continued, (b) the Secured Obligations, or the liability of any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by the Notes Collateral Agent or any other Secured Party, (c) the Indenture, Notes, the other Note Documents and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, and (d) any collateral security, guarantee or right of offset at any time held by the Notes Collateral Agent or any other Secured Party for the payment of the Secured Obligations may be sold, exchanged, waived, surrendered or released. Neither the Notes Collateral Agent nor any other Secured Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Secured Obligations or for this Security Agreement or any property subject thereto. When making any demand hereunder against any Grantor, the Notes Collateral Agent or any other Secured Party may, but shall be under no obligation to, make a similar demand on the Company or any Grantor or grantor, and any failure by the Notes Collateral Agent or any other Secured Party to make any such demand or to collect any payments from the Company or any Grantor or grantor or any release of the Company or any Grantor or grantor shall not relieve any Grantor in respect of which a demand or collection is not made or any Grantor not so released of its several obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of the Notes Collateral Agent or any other Secured Party against any Grantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
6. The Notes Collateral Agent.
6.1. Notes Collateral Agent’s Appointment as Attorney-in-Fact. etc. (a) Each Grantor hereby appoints, which appointment is irrevocable and coupled with an interest, effective upon and during occurrence of an Event of Default, the Notes Collateral Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or otherwise, for the purpose of carrying out the terms of this Security Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Security Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Notes Collateral Agent the power and right, on behalf of such Grantor, either in the Notes Collateral Agent’s name or in the name of such Grantor or otherwise, without assent by such Grantor, to do any or all of the following, in each case after and during the occurrence of an Event of Default and after written notice by the Notes Collateral Agent of its intent to do so (it being understood that the Notes Collateral Agent has no obligation to take any such action):
(i) take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Account or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Notes Collateral Agent for the purpose of collecting any and all such moneys due under any Account or with respect to any other Collateral whenever payable;
15
(ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and, papers as the Notes Collateral Agent may request to evidence the Notes Collateral Agent’s and the Secured Parties’ Security Interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or threatened against the Collateral;
(iv) execute, in connection with any sale provided for in subsection 5.5, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral;
(v) obtain and adjust insurance required to be maintained by such Grantor or paid to the Notes Collateral Agent pursuant to subsection 4.4;
(vi) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Notes Collateral Agent or as the Notes Collateral Agent shall direct;
(vii) ask or demand for, collect and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral;
(viii) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral;
(ix) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral;
(x) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral (with such Grantor’s consent to the extent such action or its resolution could “materially affect such Grantor or any of its Affiliates in any manner other than with respect to its continuing rights in such Collateral);
(xi) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Notes Collateral Agent may deem appropriate (with such Grantor’s consent to the extent such action or its resolution could materially affect such Grantor or any of its Affiliates in any manner other than with respect to its continuing rights in such Collateral);
16
(xii) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Notes Collateral Agent shall in its sole discretion determine; and
(xiii) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Notes Collateral Agent were the absolute owner thereof for all purposes, and do, at the Notes Collateral Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things that the Notes Collateral Agent deems necessary to protect, preserve or realize upon the Collateral and the Notes Collateral Agent’s and the Secured Parties’ Security Interests therein and to effect the intent of this Security Agreement, all as fully and effectively as such Grantor might do.
Anything in this subsection 6.1(a) to the contrary notwithstanding, the Notes Collateral Agent agrees that it will not exercise any rights under the power of attorney provided for in this subsection 6.1(a) unless an Event of Default shall have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its agreements contained herein, the Notes Collateral Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement.
(c) The expenses of the Notes Collateral Agent incurred in connection with actions undertaken as provided in this subsection 6.1, together with interest thereon at a rate per annum equal to the highest rate per annum at which interest would then be payable on any Notes, from the date of payment by the Notes Collateral Agent to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Notes Collateral Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies contained in this Security Agreement are coupled with an interest and are irrevocable until this Security Agreement is terminated and the Security Interests created hereby are released.
6.2. Duty of Notes Collateral Agent. The Notes Collateral Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of the NY UCC or otherwise, shall be to deal with it in the same manner as the Notes Collateral Agent deals with similar property for its own account. The Notes Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Notes Collateral Agent accords its own property. Neither the Notes Collateral Agent, any Secured Party nor any of their respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Notes Collateral Agent and the Secured Parties hereunder are solely to protect the Notes Collateral Agent’s and the Secured Parties’ interests in the Collateral and shall not impose any duty upon the Notes Collateral Agent or any Secured Party to exercise any such powers. The Notes Collateral Agent and the Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct.
17
Beyond the exercise of reasonable care in the custody thereof, the Notes Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Notes Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Notes Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Notes Collateral Agent in good faith.
The Notes Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence, bad faith or willful misconduct on the part of the Notes Collateral Agent, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
Notwithstanding anything in this Agreement to the contrary and for the avoidance of doubt, the Notes Collateral Agent shall have no duty to act outside of the United States in respect of any Collateral located in the jurisdiction other than the United States.
6.3. Authority of Notes Collateral Agent. Each Grantor acknowledges that the rights and responsibilities of the Notes Collateral Agent under this Security Agreement with respect to any action taken by the Notes Collateral Agent or the exercise or non-exercise by the Notes Collateral Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Security Agreement shall, as between the Notes Collateral Agent and the Secured Parties, be governed by the Indenture and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Notes Collateral Agent and the Grantors, the Notes Collateral Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
6.4. Security Interest Absolute. All rights of the Notes Collateral Agent here under, the security interest and all obligations of the Grantors hereunder shall be absolute and unconditional.
6.5. Continuing Security Interest; Assignments Under the Indenture; Release. (a) This Security Agreement shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Grantor and the successors and assigns thereof and shall inure to the benefit of the Notes Collateral Agent and the other Secured Parties and their respective successors, indorsees, transferees and permitted assigns until all Secured Obligations and the obligations of each Grantor under this Security Agreement shall have been satisfied by payment in full. In addition, the security interests granted hereunder shall terminate and be released, in whole or in part, as to Note Obligations under the Indenture, as provided in the Indenture (including Sections 10.06, 12.03 and 12.09 thereof).
18
(b) In connection with any termination or release pursuant to foregoing paragraph (a), the Notes Collateral Agent shall execute and deliver to any Grantor, at such Grantor’s expense, all documents that such Grantor shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this subsection 6.5 shall be without recourse to or warranty by the Notes Collateral Agent.
6.6. Reinstatement. This Security Agreement shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Secured Obligations is rescinded or must otherwise be restored or returned by the Notes Collateral Agent or any other Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company or any other Credit Party, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Company or any other Credit Party or any substantial part of its property, or otherwise, all as though such payments had not been made.
7. Notes Collateral Agent As Agent.
(a) The Bank of New York Mellon has been appointed to act as Notes Collateral Agent under the Indenture by the Secured Parties. The Notes Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including the release or substitution of Collateral), solely in accordance with this Security Agreement, the Indenture and the Intercreditor Agreement, provided that the Notes Collateral Agent shall exercise, or refrain from exercising, any remedies provided for in Section 5 in accordance with the instructions of Required Secured Parties. In furtherance of the foregoing provisions of this subsection 7(a), each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Notes Collateral Agent for the benefit of the Secured Parties in accordance with the terms of this subsection 7(a).
(b) The Notes Collateral Agent shall at all times be the same Person that is the “Notes Collateral Agent” under and as defined in the Indenture. For the avoidance of doubt, written notice of resignation by the “Notes Collateral Agent” (under and as defined in the Indenture) pursuant to the Indenture shall also constitute notice of resignation as Notes Collateral Agent under this Security Agreement; removal of the “Notes Collateral Agent” (under and as defined in the Indenture) shall also constitute removal as Notes Collateral Agent under this Security Agreement; and appointment of a successor “Notes Collateral Agent” (under and as defined in the Indenture) pursuant the Indenture shall also constitute appointment of a successor Notes Collateral Agent under this Security Agreement. Upon the acceptance of any appointment as “Notes Collateral Agent” (under and as defined in the Indenture) pursuant to the Indenture by a successor Notes Collateral Agent, that successor Notes Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Notes Collateral Agent under this Security Agreement, and the retiring or removed Notes Collateral Agent under this Security Agreement shall promptly (i) transfer to such successor Notes Collateral Agent all sums, securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Notes Collateral Agent under this Security Agreement, and (ii) execute and deliver to such successor Notes Collateral Agent or otherwise authorize the filing of such amendments to financing statements and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Notes Collateral Agent of the Security Interests created hereunder, whereupon such re tiring or removed Notes Collateral Agent shall be discharged from its duties and obligations under this Security Agreement. After any retiring or removed Notes Collateral Agent’s resignation or removal hereunder as Notes Collateral Agent, the provisions of this Security Agreement
19
shall inure to its benefit as to any actions taken or omitted to be taken by it under this Security Agreement while it was Notes Collateral Agent hereunder. Notwithstanding anything to the contrary, upon the occurrence of Discharge of Obligations with respect to the Indenture, the Required Secured Parties shall be entitled to appoint a successor Notes Collateral Agent under this Security Agreement and the other Security Documents.
8. Miscellaneous.
8.1. Amendments in Writing. None of the terms or provisions of this Security Agreement may be waived, amended, supplemented or otherwise modified except by a written instrument executed by the affected Grantor and the Notes Collateral Agent in accordance with Section 9.01 or 9.02, as applicable, of the Indenture.
8.2. Notices. All notices, requests and demands pursuant hereto shall, if to the Notes Collateral Agent, Trustee or any Holder, be made in accordance with the Indenture (whether or not then in effect). All communications and notices hereunder to any Subsidiary Grantor shall be given to it in care of the Company at the Company’s address set forth in Section 14.02 of the Indenture (whether or not then in effect).
8.3. No Waiver by Course of Conduct; Cumulative Remedies. Neither the Notes Collateral Agent nor any Secured Party shall by any act (except by a written instrument pursuant to subsection 8.1 hereof), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising, on the part of the Notes Collateral Agent or any other Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Notes Collateral Agent or any other Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that the Notes Collateral Agent or such other Secured Party would otherwise have on any future occasion. The rights, remedies, powers and privileges herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
8.4. Enforcement Expenses; Indemnification. (a) Each Grantor agrees to pay any and all expenses (including all reasonable fees and disbursements of counsel) that may be paid or incurred by any Secured Party in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Secured Obligations and/or enforcing any rights with respect to, or collecting against, such Grantor under this Security Agreement.
(b) Each Grantor agrees to pay, and to save the Notes Collateral Agent and the Secured Parties harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Security Agreement.
(c) Each Grantor agrees to pay, and to save the Notes Collateral Agent and the Secured Parties harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Security Agreement to the extent the Company would be required to do so pursuant to subsection 12.12 of the Indenture (whether or not then in effect).
20
(d) The agreements in this subsection 8.4 shall survive repayment of the Secured Obligations and all other amounts payable under the Indenture, Notes and the other Note Documents.
8.5. Successors and Assigns. The provisions of this Security Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Grantor may assign, transfer or delegate any of its rights or obligations under this Security Agreement except pursuant to a transaction permitted by the Indenture and any such prohibited assignment shall be absolutely void.
8.6. Counterparts. This Security Agreement may be executed by one or more of the parties to this Security Agreement on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Security Agreement signed by all the parties shall be lodged with the Notes Collateral Agent and the Company.
8.7. Severability. Any provision of this Security Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
8.8. Section Headings. The Section headings used in this Security Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
8.9. Integration. This Security Agreement represents the agreement of each of the Grantors with respect to the subject matter hereof and there are no promises, undertakings, representations or warranties by the Notes Collateral Agent or any other Secured Party relative to the subject matter hereof not expressly set forth or referred to herein or in the other Note Documents.
8.10. GOVERNING LAW. THE VALIDITY OF THIS SECURITY AGREEMENT AND THE OTHER NOTE DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER NOTE DOCUMENT IN RESPECT OF SUCH OTHER NOTE DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
8.11. Submission To Jurisdiction Waivers. Each Grantor hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Security Agreement and the other Note Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;
21
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Grantor at its address referred to in subsection 8.2 or at such other address of which the Notes Collateral Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right of the Notes Collateral Agent or any other Secured Party to effect service of process in any other manner permitted by law or shall limit the right of the Notes Collateral Agent or any Secured Party to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this subsection 8.11 any special, exemplary, punitive or consequential damages.
8.12. Acknowledgments. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this Security Agreement and the other Note Documents to which it is a party;
(b) neither the Notes Collateral Agent nor any other Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Security Agreement or the other Note Documents, and the relationship between the Grantors, on the one hand, and the Notes Collateral Agent and the other Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Note Documents or otherwise exists by virtue of the transactions contemplated hereby among the Holders and any other Secured Party or among the Grantors and the Holders and any other Secured Party.
8.13. Additional Grantors. Each Subsidiary of the Company that becomes a “Guarantor” under and as defined in the Indenture shall become a Grantor, with the same force and effect as if originally named as a Grantor herein, for all purposes of this Agreement upon execution and delivery by such Subsidiary of a Supplement substantially in the form of Annex 1 hereto. The execution and delivery of any instrument adding an additional Grantor as a party to this Security Agreement shall not require the consent of any other Grantor hereunder. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Security Agreement or the release of any existing Grantor from its rights and obligations hereunder.
8.14. Intercreditor Agreement; Delivery of ABL Priority Collateral.
Notwithstanding anything herein to the contrary, the Liens and security interests granted to the Notes Collateral Agent pursuant to this Security Agreement and the exercise of any right or remedy by the Notes Collateral Agent hereunder, are subject to the provisions of the Intercreditor Agreement, dated as of January 29, 2010 (as amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), among the ABL Agent, The Bank of New York Mellon, as Senior Secured Notes Agent, and following the execution of a Junior Secured Debt Joinder Agreement (as
22
defined therein), the Junior Secured Debt Agent (as defined therein). In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Security Agreement, the terms of the Intercreditor Agreement shall govern and control. Without limiting the generality of the foregoing, and notwithstanding anything herein to the contrary, all rights and remedies of the Notes Collateral Agent (and the Secured Parties) shall be subject to the terms of the Intercreditor Agreement, and, with respect to any ABL Priority Collateral (as such term is defined in the Intercreditor Agreement) until the Discharge of ABL Obligations (as such term is defined in the Intercreditor Agreement), any obligation of any Grantor hereunder or under any other Security Document with respect to the delivery or control of any ABL Priority Collateral, the novation of any lien on any certificate of title, bill of lading or other document, the giving of any notice to any bailee or other Person, the provision of voting rights or the obtaining of any consent of any Person shall be deemed to be satisfied if such Grantor complies with the requirements of the similar provision of the applicable ABL Loan Document (as such term is defined in the Intercreditor Agreement). Until the Discharge of ABL Obligations, the delivery of any ABL Priority Collateral to, or the control of any ABL Priority Collateral by, the ABL Collateral Agent pursuant to the ABL Loan Documents shall satisfy any delivery or control requirement hereunder or under any other Security Document; provided, however, that notwithstanding anything to the contrary herein, each Grantor shall be required to deliver to the Notes Collateral Agent Control Agreements in accordance with Section 4.5.
8.15. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH GRANTOR AND THE NOTES COLLATERAL AGENT HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS SECURITY AGREEMENT OR ANY OF THE OTHER NOTE DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH GRANTOR AND THE NOTES COLLATERAL AGENT 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 SECURITY AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
8.16. Capacity of Notes Collateral Agent. The Bank of New York Mellon is entering into this Agreement in its capacity as “notes collateral agent” under the Indenture and the rights, powers, privileges and protections afforded to the “notes collateral agent” under the Indenture shall also apply to The Bank of New York Mellon as the Notes Collateral Agent hereunder. The Holders have expressly authorized and instructed the Notes Collateral Agent to execute and deliver this Agreement.
8.17. Incorporation by Reference. In connection with its execution and acting hereunder Notes Collateral Agent is entitled to all rights, privileges, benefits, protections, immunities and indemnities provided to it under the Indenture.
[signature pages follow]
23
IN WITNESS WHEREOF, each of the undersigned has caused this Security Agreement to be duly executed and delivered as of the date first above written.
| ACCELLENT INC. | ||||||
| By: | ||||||
| /s/ Craig Campbell | ||||||
| Name: | Craig Campbell | |||||
| Title: | Vice President, Chief Accounting Officer & Controller | |||||
| ACCELLENT LLC AMERICAN TECHNICAL MOLDING, INC. BRIMFIELD ACQUISITION, LLC BRIMFIELD PRECISION, LLC CE HUNTSVILLE, LLC G&D, LLC KELCO ACQUISITION LLC MACHINING TECHNOLOGY GROUP, LLC MEDSOURCE TECHNOLOGIES HOLDINGS, LLC MEDSOURCE TECHNOLOGIES PITTSBURGH, INC. MEDSOURCE TECHNOLOGIES, LLC MEDSOURCE TECHNOLOGIES, NEWTON INC. MEDSOURCE TRENTON LLC MICRO-GUIDE, INC. NATIONAL WIRE & STAMPING, INC. NOBLE-MET LLC PORTLYN, LLC SPECTRUM MANUFACTURING, INC. THERMAT ACQUISITION, LLC UTI HOLDING COMPANY UTI HOLDINGS, LLC VENUSA, LTD. | ||||
| By: | ||||
| /s/ Craig Campbell | ||||
| Name: | Craig Campbell | |||
| Title: | Vice President and Assistant Treasurer | |||
| THE BANK OF NEW YORK MELLON, | ||||||
| By: | ||||||
| /s/ Mary Miselis | ||||||
| Name: | Mary Miselis | |||||
| Title: | Vice President | |||||
ANNEX 1 TO THE
SECURITY AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Security Agreement dated as of January 29, 2010 (the “Security Agreement”), among ACCELLENT INC., a Maryland corporation (the “Company”), each of the subsidiaries of the Company listed on Annex A thereto (each such undersigned subsidiary being a “Subsidiary Grantor” and, collectively, the “Subsidiary Grantors”; the Subsidiary Grantors and the Company are referred to collectively, jointly and severally, as the “Grantors”), and THE BANK OF NEW YORK MELLON, as notes collateral agent (in such capacity, the “Notes Collateral Agent”) for the Secured Parties
A. Reference is made to the Indenture, dated as of January 29, 2010 (as the same may be amended, supplemented or otherwise modified from time to time, the “Indenture”), among the Company, each Guarantor (as defined in the Indenture) and THE BANK OF NEW YORK MELLON, as trustee (the “Trustee”) and as Notes Collateral Agent on behalf of the holders of the Notes (the “Holders”).
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement.
C. The Grantors have entered into the Security Agreement in order to induce the Trustee and the Notes Collateral Agent to enter into the Indenture and to induce the Holders to purchase and hold the Notes.
D. Section 8.13 of the Security Agreement provides that each Subsidiary of the Company that becomes a “Guarantor” under and as defined in the Indenture shall become a Grantor, with the same force and effect as if originally named as a Grantor therein, for all purposes of the Security Agreement upon execution and delivery by such Subsidiary of an instrument in the form of this Supplement. Each undersigned Subsidiary (each a “New Grantor”) is executing this Supplement in accordance with the requirements of the Security Agreement to become a Subsidiary Grantor under the Security Agreement as consideration for purchase and holding of the Notes by the Holders.
Accordingly, the Notes Collateral Agent and the New Grantors agree as follows:
SECTION 1. In accordance with subsection 8.13 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 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 on and as of the date hereof. In furtherance of the foregoing, each New Grantor, as security for the payment and performance in full of the Secured Obligations, does hereby bargain, sell, convey, assign, set over, mortgage, pledge, hypothecate and transfer to the Notes Collateral Agent, for the benefit of the Secured Parties, and hereby grants to the Notes Collateral Agent, for the benefit of the Secured Parties, a Security Interest in all of the Collateral of such New Grantor, in each case whether now or hereafter existing or in which now has or hereafter acquires an interest. Each reference to a “Grantor” in the Security Agreement shall be deemed to include each New Grantor. The Security Agreement is hereby incorporated herein by reference.
SECTION 2. Each New Grantor represents and warrants to the Notes Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed by one or more of the parties to this Supplement on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Supplement signed by all the parties shall be lodged with the Notes Collateral Agent and the Company. This Supplement shall become effective as to each New Grantor when the Notes Collateral Agent shall have received counterparts of this Supplement that, when taken together, bear the signatures of such New Grantor and the Notes Collateral Agent.
SECTION 4. Each New Grantor hereby represents and warrants that (a) set forth on Schedule I attached hereto is a true and correct schedule of the location of any and all Collateral of such New Grantor, (b) set forth under its signature hereto is (i) the legal name of such New Grantor, (ii) the jurisdiction of incorporation or organization of such New Grantor, (iii) the true and correct location of the chief executive office and principal place of business and any office in which it maintains books or records relating to Collateral owned by it, (iv) the identity or type of organization or corporate structure of such New Grantor and (v) the Federal Taxpayer Identification Number and organizational number of such New Grantor and (c) as of the date hereof (i) Schedule II hereto sets forth all of each New Grantor’s Copyright Licenses, (ii) Schedule III hereto sets forth, in proper form for filing with the United States Copyright office, all of each New Grantor’s Copyrights (and all applications therefor), (iii) Schedule IV hereto sets forth all of each New Grantor’s Patent Licenses, (iv) Schedule V hereto sets forth, in proper form for filing with the United States Patent and Trademark Office, all of each New Grantor’s Patents (and all applications therefor), (v) Schedule VI hereto sets forth all of each New Grantor’s Trademark Licenses and (vi) Schedule VII hereto sets forth, in proper form for filing with the United States Patent and Trademark Office, all of each New Grantor’s Trademarks (and all applications therefor).
SECTION 5. Except as expressly supplemented hereby, the Security Agreement shall remain in full force and effect.
SECTION 6. THE VALIDITY OF THIS SUPPLEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Any provision of this Supplement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and in the Security Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All notices, requests and demands pursuant hereto shall be made in accordance with Section 8.2 of the Security Agreement. All communications and notices hereunder to each New Grantor shall be given to it in care of the Company at the Company’s address set forth in Section 14.02 of the Indenture (whether or not then in effect).
SECTION 9. Each New Grantor agrees to reimburse the Notes Collateral Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Notes Collateral Agent.
IN WITNESS WHEREOF, each New Grantor and the Notes Collateral Agent have duly executed this Supplement to the Security Agreement as of the day and year first above written.
| [NAME OF NEW GRANTOR] | ||||||
| By: | ||||||
|
| ||||||
| Name: | ||||||
| Title: | ||||||
| THE BANK OF NEW YORK MELLON, | ||||||
| By: | ||||||
|
| ||||||
| Name: | ||||||
| Title: | ||||||
ANNEX 2 TO THE
SECURITY AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Security Agreement dated as of January 29, 2010 (the “Security Agreement”), among ACCELLENT INC., a Maryland corporation (the “Company”), each of the subsidiaries of the Company listed on Annex A hereto (each such undersigned subsidiary being a “Subsidiary Grantor” and, collectively, the “Subsidiary Grantors”; the Subsidiary Grantors and the Company are referred to collectively, jointly and severally, as the “Grantors”), and THE BANK OF NEW YORK MELLON, as notes collateral agent (in such capacity, the “Notes Collateral Agent”) for the Secured Parties
A. Reference is made to the Indenture, dated as of the date hereof (as the same may be amended, supplemented or otherwise modified from time to time, the “Indenture”), among the Company, each Guarantor (as defined in the Indenture) and THE BANK OF NEW YORK MELLON, as trustee (the “Trustee”) and as Notes Collateral Agent on behalf of the holders of the Notes (the “Holders”).
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement.
C. The Grantors have entered into the Security Agreement in order to induce the Trustee and the Notes Collateral Agent to enter into the Indenture and to induce the Holders to purchase and hold the Notes.
D. Pursuant to Section 4.1(b) of the Security Agreement, within 30 days after the end of each calendar quarter, each Grantor has agreed to deliver to the Notes Collateral Agent a written supplement substantially in the form of Annex 2 thereto with respect to any additional registrations and applications for Copyrights, Patents and Trademarks and any material exclusive Licenses acquired by such Grantor after the date of the Indenture. The Grantors have identified the additional registrations and applications for Copyrights, Patents and Trademarks and material exclusive Licenses acquired by such Grantors after the date of the Indenture set forth on Schedule I, II, III, IV, V, VI, VII and VIII hereto. The undersigned Grantors are executing this Supplement in order to facilitate supplemental filings to be made by the Notes Collateral Agent with the United States Copyright Office and the United States Patent and Trademark Office of any registrations and applications for Copyrights, Patents and Trademarks.
Accordingly, the Notes Collateral Agent and the Grantors agree as follows:
SECTION 1. (a) Schedule 1 of the Security Agreement is hereby supplemented, as applicable, by the information set forth in Schedule I hereto, (b) Schedule 2 of the Security Agreement is hereby supplemented, as applicable, by the information set forth in Schedule II hereto, (c) Schedule 3 of the Security Agreement is hereby supplemented, as applicable, by the information set forth in Schedule III hereto, (d) Schedule 4 of the Security Agreement is hereby supplemented, as applicable, by the information set forth in Schedule IV hereto, (e) Schedule 5 of the Security Agreement is hereby supplemented, as applicable, by the information set forth in Schedule V hereto and (f) Schedule 6 of the Security Agreement is hereby supplemented, as applicable, by the information set forth in Schedule VI hereto.
SECTION 2. Each Grantor hereby represents and warrants that the information set forth on Schedules I, II, III, IV, V and VI hereto is true and correct.
1
SECTION 3. This Supplement may be executed by one or more of the parties to this Supplement on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Supplement signed by all the parties shall be lodged with the Notes Collateral Agent and the Company. This Supplement shall become effective as to each Grantor when the Notes Collateral Agent shall have received counterparts of this Supplement that, when taken together, bear the signatures of such Grantor and the Notes Collateral Agent.
SECTION 4. Except as expressly supplemented hereby, the Security Agreement shall remain in full force and effect.
SECTION 5. THE VALIDITY OF THIS SUPPLEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Any provision of this Supplement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and in the Security Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All notices, requests and demands pursuant hereto shall be made in accordance with Section 8.2 of the Security Agreement. All communications and notices hereunder to each Grantor shall be given to it in care of the Company at the Company’s address set forth in Section 14.02 of the Indenture (whether or not then in effect).
SECTION 8. Each Grantor agrees to reimburse the Notes Collateral Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Notes Collateral Agent.
2
IN WITNESS WHEREOF, each Grantor and the Notes Collateral Agent have duly executed this Supplement to the Security Agreement as of the day and year first above written.
| [GRANTOR] | ||||||
| By: |
| |||||
| Name: | ||||||
| Title: | ||||||
| THE BANK OF NEW YORK MELLON, | ||||||||
| By: | ||||||||
|
| ||||||||
| Name: | ||||||||
| Title: | ||||||||
3
ANNEX A
TO THE SECURITY AGREEMENT
SUBSIDIARY GRANTORS
SCHEDULE 1
TO THE SECURITY AGREEMENT
COPYRIGHT LICENSES
SCHEDULE 2
TO THE SECURITY AGREEMENT
COPYRIGHTS
SCHEDULE 3
TO THE SECURITY AGREEMENT
PATENT LICENSES
SCHEDULE 4
TO THE SECURITY AGREEMENT
PATENTS
SCHEDULE 5
TO THE SECURITY AGREEMENT
TRADEMARKS LICENSES
SCHEDULE 6
TO THE SECURITY AGREEMENT
TRADEMARK
SCHEDULE 7
TO THE SECURITY AGREEMENT
COMMERCIAL TORT CLAIMS
SCHEDULE 8
TO THE SECURITY AGREEMENT
DEPOSIT ACCOUNTS
SECURITIES ACCOUNTS
SCHEDULE 9
TO THE SECURITY AGREEMENT
GRANTOR INFORMATION