EXHIBIT 10.56
EXECUTION COPY
COLLATERAL ASSIGNMENT dated as of August 4,
1999, as amended and restated as of March 3, 2003,
between SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC, a
Delaware limited liability company (the "Borrower"),
and JPMORGAN CHASE BANK, a New York banking
corporation ("JPMCB"), as collateral agent (in such
capacity, the "Collateral Agent") for the Secured
Parties. Capitalized terms used but not defined
herein, unless otherwise specified, shall have the
meanings assigned to such terms in the Security
Agreement (as defined herein).
W I T N E S S E T H:
WHEREAS, the Companies, certain lenders from time to time
party thereto (the "Lenders"), and JPMCB, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), are parties to the
Credit Agreement dated as of August 4, 1999, as amended and restated as of April
3, 2000;
WHEREAS, pursuant to the terms, conditions and provisions of
(a) the Indenture dated as of the date hereof (as amended, supplemented or
otherwise modified from time to time, the "Indenture"), among the Companies, the
Subsidiary Guarantors and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
trustee (the "Trustee"), and (b) the Purchase Agreement dated as of February 26,
2003, among the Companies, the Subsidiary Guarantors and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc., Credit Suisse First Boston Corporation, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (the "Initial Purchasers"), the Companies are
issuing $200,000,000 aggregate principal amount of 12% Senior Secured Notes due
2010 and may issue, from time to time, additional notes in accordance with the
provisions of the Indenture (collectively, the "Notes") which will be guaranteed
on a senior secured basis by each of the Subsidiary Guarantors;
WHEREAS, the Companies and certain Lenders under the Credit
Agreement referred to above have entered into an Amendment and Restatement
Agreement dated as of February 14, 2003 (the "Amendment and Restatement
Agreement"), to amend and restate the Credit Agreement referred to above as of
February 14, 2003 (such Credit Agreement, as further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") in order to, among
other things, permit, subject to certain terms and conditions, (a) the issuance
of the Notes by the Companies and (b) the amendment of the Security Documents to
provide for securing the Note Obligations thereunder;
WHEREAS, the parties hereto are parties to the Collateral
Assignment dated as of August 4, 1999, as amended, supplemented and modified
from time to time prior to the date hereof, and are entering into this Agreement
to effect the securing of the Note Obligations hereunder and other related
amendments contemplated by the Amendment and Restatement Agreement and the
Indenture;
WHEREAS, (a) the Companies, the Collateral Agent and the
Trustee have entered into a Collateral Sharing Agreement dated as of the date
hereof (the "Collateral Sharing Agreement") and (b) the Borrower and the
Collateral Agent have entered into a Security
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Agreement, amended and restated as of the date hereof (as amended, supplemented
or otherwise modified from time to time, the "Security Agreement"); and
WHEREAS, the Borrower has duly authorized the execution,
delivery and performance of this Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and obligations herein set forth and for other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
Borrower and the Collateral Agent, on behalf of itself and each Secured Party
(and each of their respective successors or assigns), hereby agree as follows:
SECTION 1. Collateral Assignment. As collateral security for
the Secured Obligations, the Borrower hereby assigns to the Collateral Agent,
its successors and assigns, for the ratable benefit of the Secured Parties, and
hereby grants to the Collateral Agent, its successors and assigns, for the
ratable benefit of the Secured Parties a security interest in, all of the
Borrower's right, title and interest in, to and under the following contracts
and instruments, as the same may be modified, amended or supplemented from time
to time:
(a) the Transition Agreements (as defined in the Credit
Agreement); and
(b) such other contracts and instruments of the Borrower as
the Collateral Agent shall designate from time to time to the Borrower
in writing unless such assignment is prohibited (i) by the terms
thereof, and the Borrower cannot reasonably obtain a waiver or an
amendment of such prohibition or (ii) by applicable law.
The contracts and instruments listed in clauses (a) and (b), as amended and in
effect from time to time, are referred to collectively as the "Assigned
Contracts". The security interest assigned by this Section 1 shall include (a)
any and all rights to receive and demand payments under any and all Assigned
Contracts, (b) any and all rights to receive and compel performance under any
and all Assigned Contracts, (c) the right to make all waivers, amendments,
determinations and agreements of or under any and all Assigned Contracts, (d)
the right to take such action, including commencement, conduct and consummation
of legal, administrative or other proceedings, as shall be permitted by the
Assigned Contracts or by law and (e) any and all other rights, interests and
claims now existing or hereafter arising under or in connection with any and all
Assigned Contracts.
SECTION 2. Agreements, Representations and Warranties. The
Borrower further agrees, represents and warrants to the Collateral Agent and
the Secured Parties that:
(a) as of the date hereof, the Assigned Contracts are in full
force and effect, there being no default thereunder by the Borrower. The
Borrower will not permit any waiver, supplement, amendment, change or
modification to be made to the Assigned Contracts, without the written consent
of the Collateral Agent, except as permitted in accordance with Section 6.11(b)
of the Credit Agreement and the Indenture (to the extent consistent with the
Collateral Sharing Agreement); and
(b) it has the right, power and authority to grant to the
Collateral Agent a security interest in its right, title and interest in and to
the Assigned Contracts. It has not heretofore hypothecated, assigned, mortgaged,
pledged, encumbered or otherwise transferred its right, title or interest under
the Assigned Contracts in any manner to any person other than the Collateral
Agent and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as collateral agent
for
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the holders of the Senior Secured Notes due 2008 issued by the Borrower and
Holdings, nor will it do so at any time hereafter without the Collateral Agent's
prior written consent in each instance, except for assignments, mortgages,
pledges or encumbrances permitted or not prohibited by the Credit Agreement and
the Indenture. Any such assignment, mortgage, pledge or encumbrance without the
Collateral Agent's consent shall be void and of no force or effect.
SECTION 3. No Obligations for Collateral Agent. The Borrower
specifically acknowledges and agrees that the Collateral Agent does not assume,
and shall have no responsibility for, the performance of any obligations to be
performed under or with respect to the Assigned Contracts or by it, and it
hereby agrees to indemnify and hold harmless the Collateral Agent with respect
to any and all claims by any person relating to such obligations. The
Collateral Agent, in its discretion, may file or record this Agreement. The
Collateral Agent agrees to notify the Borrower promptly after any such filing
or recording.
SECTION 4. Remedies upon Default. Upon the commencement and
during the continuance of an Event of Default, the Collateral Agent may, at its
option, without notice to or demand upon the Borrower (both of which are hereby
waived for the purpose of this Section 4), in addition to all other rights and
remedies provided under any other Security Document, the Collateral Sharing
Agreement, the Senior Loan Documents and the Indenture Documents, in its own
name or the name of the Borrower, demand, ▇▇▇ upon or otherwise enforce the
Assigned Contracts to the same extent as if the Collateral Agent were the party
named in the Assigned Contracts, and exercise all other rights of the Borrower
under the Assigned Contracts in such manner as it may determine. Any moneys
actually received by the Collateral Agent pursuant to the exercise of any of
the rights and remedies granted in this Collateral Assignment shall be applied
as provided in the Security Agreement.
SECTION 5. Reimbursement of Collateral Agent. (a) The Borrower
agrees to pay upon demand to the Collateral Agent the amount of any and all
reasonable expenses, including the reasonable fees, disbursements and other
charges of its counsel and of any experts or agents, that the Collateral Agent
may incur in connection with (i) the administration of this Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Assigned Contracts, (iii) the exercise,
enforcement or protection of any of the rights of the Collateral Agent
hereunder or (iv) the failure of the Borrower to perform or observe any of the
provisions hereof applicable to it.
(b) Without limitation of its indemnification obligations
under the other Security Documents, the Collateral Sharing Agreement, the Senior
Loan Documents or the Indenture Documents, the Borrower agrees to indemnify the
Collateral Agent and the other Indemnitees against, and hold each of them
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable fees, disbursements and other charges of counsel,
incurred by or asserted against any of them arising out of, in any way connected
with, or as a result of the execution, delivery or performance of this Agreement
or any claim, litigation, investigation or proceeding relating hereto or to any
of the Assigned Contracts, whether or not any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
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(c) Any amounts payable as provided hereunder shall be
additional Secured Obligations secured hereby and by the other Security
Documents. The provisions of this Section 5 shall remain operative and in full
force and effect regardless of the termination of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Secured Obligations, the invalidity or unenforceability of any term or
provision of this Agreement, any other Security Document, the Collateral Sharing
Agreement, any Senior Loan Document or any Indenture Document, or any
investigation made by or on behalf of the Collateral Agent or any other Secured
Party. All amounts due under this Section 5 shall be payable upon written demand
therefor and shall bear interest at the rate specified in Section 2.13(c) of the
Credit Agreement.
SECTION 6. Collateral Agent Appointed Attorney-in-Fact. Upon
the occurrence and during the continuation of an Event of Default, the
Collateral Agent shall have the right, as the true and lawful attorney-in-fact
and agent of the Borrower, with power of substitution for the Borrower and in
the Borrower's name, the Collateral Agent's name or otherwise for the use and
benefit of the Collateral Agent (a) to receive, endorse, assign and/or deliver
any and all notes, acceptances, checks, drafts, money orders or other evidences
of payment relating to the Assigned Contracts or any part thereof; (b) to
demand, collect, receive payment of, give receipt for and give discharges and
releases of all or any of the Assigned Contracts; (c) to sign the name of the
Borrower on any invoice or ▇▇▇▇ of lading relating to any of the Assigned
Contracts; (d) to commence and prosecute any and all suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect or otherwise realize on all or any of the Assigned Contracts or to
enforce any rights in respect of any Assigned Contracts; (e) to settle,
compromise, compound, adjust or defend any actions, suits or proceedings
relating to all or any of the Assigned Contracts; and (f) to use, sell, assign,
transfer, pledge, make any agreement with respect to or otherwise deal with all
or any of the Assigned Contracts, and to do all other acts and things necessary
to carry out the purposes of this Collateral Assignment, as fully and
completely as though the Collateral Agent were the Borrower named in the
Assigned Contracts; provided that nothing herein contained shall be construed
as requiring or obligating the Collateral Agent or any Secured Party to make
any commitment or to make any inquiry as to the nature or sufficiency of any
payment received by the Collateral Agent or any Secured Party, or to present or
file any claim or notice, or to take any action with respect to the Assigned
Contracts or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken or omitted to be
taken by the Collateral Agent or any Secured Party with respect to the Assigned
Contracts or any part thereof shall give rise to any defense, counterclaim or
offset in favor of the Borrower or to any claim or action against the
Collateral Agent or any Secured Party. It is understood and agreed that the
appointment of the Collateral Agent as the agent and attorney-in-fact of the
Borrower for the purposes set forth above is coupled with an interest and is
irrevocable. The provisions of this Section 6 shall in no event relieve the
Borrower of any of its obligations hereunder or under the other Security
Documents, the Collateral Sharing Agreement, the Senior Loan Documents or the
Indenture Documents with respect to the Assigned Contracts or any part thereof
or impose any obligation on the Collateral Agent or any Secured Party to
proceed in any particular manner with respect to the Assigned Contracts or any
part thereof, or in any way limit the exercise by the Collateral Agent or any
Secured Party of any other or further right that it may have on the date of
this Collateral Assignment or hereafter, whether hereunder, under the other
Security Documents, the Collateral Sharing Agreement, the Senior Loan Documents
or the Indenture Documents, by law or otherwise.
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SECTION 7. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the Collateral Agent and the other Secured Parties under the other
Security Documents, the Collateral Sharing Agreement, the Senior Loan Documents
or the Indenture Documents, as applicable, are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any
provisions of this Agreement, any other Security Document, the Collateral
Sharing Agreement, any Senior Loan Document or any Indenture Document or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Collateral Agent and the Borrower with respect to
which such waiver, amendment or modification is to apply, subject to the terms
of the Collateral Sharing Agreement.
SECTION 8. Security Interest Absolute. All rights of the
Collateral Agent hereunder and all obligations of the Borrower hereunder shall
be absolute and unconditional irrespective of (a) any lack of validity or
enforceability of any other Security Document, the Collateral Sharing
Agreement, any Senior Loan Document or any Indenture Document, any agreement
with respect to any of the Secured Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any change in the time, manner
or place of payment of, or in any other term of, all or any of the Secured
Obligations, or any other amendment or waiver of or any consent to any
departure from any other Security Document, the Collateral Sharing Agreement,
any Senior Loan Document or any Indenture Document or any other agreement or
instrument relating to any of the foregoing, (c) any exchange, release or
non-perfection of any Lien on other collateral, or any release or amendment or
waiver of or consent under or departure from any guarantee, securing or
guaranteeing all or any of the Secured Obligations, or (d) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower in respect of the Secured Obligations or this
Agreement.
SECTION 9. Termination. This Agreement shall terminate when
all the Obligations (other than those specified in clauses (c) and (d) of the
definition thereof) and the Note Obligations have been indefeasibly paid in
full, the Lenders have no further commitment to lend under the Credit
Agreement, the LC Exposure (as defined in the Credit Agreement) has been
reduced to zero and the Issuing Bank has no further commitment to issue Letters
of Credit under the Credit Agreement. Upon such termination, the Collateral
Agent shall take such action as the Borrower shall reasonably request at the
expense of the Borrower to reassign and deliver to the Borrower, without
recourse or warranty, the Assigned Contracts and related documents, if any, in
which the Collateral Agent shall have any interest under this Collateral
Assignment and which shall then be held by the Collateral Agent or be in its
possession and the Borrower's obligations hereunder and the security interest
of the Collateral Agent in the Assigned Contracts shall terminate. In
connection with any termination or release, the Collateral Agent shall execute
and deliver to the Borrower, at the Borrower's expense, all UCC termination
statements and similar
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documents that the Borrower shall reasonably request to evidence such
termination. Any execution and delivery of termination statements or documents
pursuant to this Section 9 shall be without recourse to or warranty by the
Collateral Agent.
SECTION 10. Notices. All communications and notices hereunder
shall (except as otherwise expressly permitted herein) be in writing and given
as provided in Section 7.01 of the Security Agreement.
SECTION 11. Further Assurances. The Borrower covenants to
execute and deliver to the Collateral Agent, promptly after demand, such
additional assurances, writings or other instruments as may reasonably be
required by the Collateral Agent to effectuate the purposes hereof.
SECTION 12. Binding Effect: Several Agreement; Assignments.
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party,
and all covenants, promises and agreements by or on behalf of the Borrower that
are contained in this Agreement shall bind and inure to the benefit of its
successors and assigns. This Agreement shall become effective as to the
Borrower when a counterpart hereof executed on behalf of the Borrower shall
have been delivered to the Collateral Agent and a counterpart hereof shall have
been executed on behalf of the Collateral Agent, and thereafter shall be
binding upon the Borrower and the Collateral Agent and their respective
successors and assigns, and shall inure to the benefit of the Borrower, the
Collateral Agent and the other Secured Parties and their respective successors
and assigns, except that the Borrower shall have no right to assign or transfer
its rights or obligations hereunder or any interest herein (and any such
assignment or transfer shall be void) except as expressly contemplated by this
Agreement, the other Security Documents, the Collateral Sharing Agreement, the
Senior Loan Documents or the Indenture Documents.
SECTION 13. Survival of Agreement: Severability. (a) All
covenants, agreements, representations and warranties made by the Borrower
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the Collateral Agent and the other Secured Parties and shall
survive the making by the Lenders of the Loans, the issuance of Letters of
Credit by the Issuing Bank, the execution and delivery to the Lenders of any
notes evidencing such Loans, and the purchase and resale of the Notes by the
Initial Purchasers regardless of any investigation made by the Secured Parties
or on their behalf, and shall continue in full force and effect until this
Agreement shall terminate.
(b) In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties 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 14. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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SECTION 15. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract (subject to Section
12), and shall become effective as provided in Section 12. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
SECTION 16. Jurisdiction; Consent to Service of Process. (a)
The Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, any other Security Document, the Collateral Sharing
Agreement, any Senior Loan Document or any Indenture Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State
or, to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect
any right that the Collateral Agent or any other Secured Party may otherwise
have to bring any action or proceeding relating to this Agreement, any other
Security Document, the Collateral Sharing Agreement, any Senior Loan Document
or any Indenture Document against the Borrower or its properties in the courts
of any jurisdiction.
(b) The Borrower irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement, any other Security
Document, the Collateral Sharing Agreement, any Senior Loan Document or any
Indenture Document in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 17. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT ANY OTHER SECURITY
DOCUMENT, THE COLLATERAL SHARING AGREEMENT, ANY SENIOR LOAN DOCUMENT OR ANY
INDENTURE DOCUMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 17.
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SECTION 18. Rules of Interpretation. The rules of
interpretation specified in Section 1.03 of the Security Agreement shall be
applicable to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SEMICONDUCTOR COMPONENTS
INDUSTRIES, LLC,
By
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
JPMORGAN chase BANK, as Collateral
Agent,
By
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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