EXHIBIT 10.3
PLEDGE AND SECURITY AGREEMENT
DATED AS OF DECEMBER 22, 2005
BETWEEN
EACH OF THE GRANTORS PARTY HERETO
AND
THE BANK OF NEW YORK,
AS THE COLLATERAL AGENT
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TABLE OF CONTENTS
PAGE
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(11) SECTION 1. DEFINITIONS; GRANT OF SECURITY.......................... 1
1.1 General Definitions............................................... 1
1.2 Definitions; Interpretation....................................... 7
(12) SECTION 2. GRANT OF SECURITY....................................... 8
2.1 Grant of Security................................................. 8
2.2 Certain Limited Exclusions........................................ 9
(13) SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE........ 9
3.1 Security for Obligations.......................................... 9
3.2 Grantors Remain Liable............................................ 9
(14) SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS............ 10
4.1 Generally......................................................... 10
4.2 Equipment and Inventory........................................... 13
4.3 Receivables....................................................... 14
4.4 Investment Related Property....................................... 16
4.5 Material Contracts................................................ 21
4.6 Letter of Credit Rights........................................... 22
4.7 Intellectual Property............................................. 23
4.8 Commercial Tort Claims............................................ 20
(15) SECTION 5. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES;
ADDITIONAL GRANTORS.................................. 27
5.1 Access; Right of Inspection....................................... 27
5.2 Further Assurances................................................ 27
5.3 Additional Grantors............................................... 28
(16) SECTION 6. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT............. 28
6.1 Power of Attorney................................................. 28
6.2 No Duty on the Part of Collateral Agent or Secured Parties........ 29
(17) SECTION 7. REMEDIES................................................ 23
7.1 Generally......................................................... 23
7.2 Application of Proceeds........................................... 31
7.3 Sales on Credit................................................... 31
7.4 Deposit Accounts.................................................. 24
7.5 Investment Related Property....................................... 32
7.6 Intellectual Property............................................. 34
7.7 Cash Proceeds..................................................... 34
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(18) SECTION 8. COLLATERAL AGENT........................................ 34
(19) SECTION 9. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS......... 35
(20) SECTION 10. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM......... 36
(21) SECTION 11. MISCELLANEOUS.......................................... 36
SCHEDULE 4.1 -- GENERAL INFORMATION
SCHEDULE 4.2 -- LOCATION OF EQUIPMENT AND INVENTORY
SCHEDULE 4.4 -- INVESTMENT RELATED PROPERTY
SCHEDULE 4.5 -- MATERIAL CONTRACTS
SCHEDULE 4.6 -- DESCRIPTION OF LETTERS OF CREDIT
SCHEDULE 4.7 -- INTELLECTUAL PROPERTY - EXCEPTIONS
SCHEDULE 4.8 -- COMMERCIAL TORT CLAIMS
EXHIBIT A -- PLEDGE SUPPLEMENT
EXHIBIT B -- FORM OF GRANT OF TRADEMARK SECURITY INTEREST
EXHIBIT C -- FORM OF GRANT OF COPYRIGHT SECURITY INTEREST
EXHIBIT D -- FORM OF GRANT OF PATENT SECURITY INTEREST
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NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST
GRANTED TO THE COLLATERAL AGENT PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF
ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT HEREUNDER ARE SUBJECT TO THE
PROVISIONS OF THE INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 22, 2005 (AS
AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE
"INTERCREDITOR AGREEMENT"), BY AND AMONG AUTOCAM CORPORATION, A MICHIGAN
CORPORATION, CITICORP NORTH AMERICA, INC., AS FIRST LIEN COLLATERAL AGENT, THE
BANK OF NEW YORK, AS SECOND LIEN COLLATERAL AGENT, AND CERTAIN OTHER PERSONS
PARTY THERETO OR THAT MAY BECOME PARTY THERETO FROM TIME TO TIME. IN THE EVENT
OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT AND THIS
AGREEMENT, THE TERMS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL AS
BETWEEN THE FIRST LIEN COLLATERAL AGENT AND THE COLLATERAL AGENT.
This PLEDGE AND SECURITY AGREEMENT, dated as of December 22, 2005 (this
"AGREEMENT"), between EACH OF THE UNDERSIGNED, whether as an original signatory
hereto or as an Additional Grantor (as herein defined) (each, a "GRANTOR"), and
THE BANK OF NEW YORK, as collateral agent for the Secured Parties (as herein
defined) (in such capacity as collateral agent, the "COLLATERAL AGENT").
RECITALS:
WHEREAS, reference is made to that certain Term Loan and Guaranty
Agreement, dated as of the date hereof (as it may be amended, restated,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
by and among AUTOCAM CORPORATION, a Michigan corporation ("COMPANY"), TITAN
HOLDINGS, INC., a Delaware corporation ("HOLDINGS"), certain Subsidiaries of
Company, as Guarantors, the Lenders party thereto from time to time, ▇▇▇▇▇▇▇
▇▇▇▇▇ CREDIT PARTNERS L.P. ("GSCP") as Lead Arranger, Sole Book Runner and
Syndication Agent, THE BANK OF NEW YORK, as Administrative Agent and Collateral
Agent;
WHEREAS, subject to the terms and conditions of the Credit Agreement,
certain Grantors may enter into one or more Hedge Agreements with one or more
Lender Counterparties;
WHEREAS, pursuant to the First Lien Credit Agreement and First Lien
Security Agreement, Grantors have incurred and may in the future incur
Indebtedness and created security interests in favor of First Lien Collateral
Agent, which security interests, pursuant to the provisions of the Intercreditor
Agreement, are senior to the security interests created hereby; and
WHEREAS, in consideration of the extensions of credit and other
accommodations of Lenders and Lender Counterparties as set forth in the Credit
Agreement and the Hedge Agreements, respectively, each Grantor has agreed to
secure such Grantor's obligations under the Credit Documents and the Hedge
Agreements as set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, each Grantor and the Collateral Agent
agree as follows:
SECTION 1. DEFINITIONS; GRANT OF SECURITY.
1.1 GENERAL DEFINITIONS. In this Agreement, the following terms shall have
the following meanings:
"ACCOUNT DEBTOR" shall mean each Person who is obligated on a
Receivable or any Supporting Obligation related thereto.
"ACCOUNTS" shall mean all "accounts" as defined in Article 9 of the
UCC.
"ADDITIONAL GRANTORS" shall have the meaning assigned in Section 5.3.
"AGREEMENT" shall have the meaning set forth in the preamble.
"ASSIGNED AGREEMENTS" shall mean all agreements and contracts to which
such Grantor is a party as of the date hereof, or to which such Grantor becomes
a party after the date hereof, including, without limitation, each Material
Contract, as each such agreement may be amended, supplemented or otherwise
modified from time to time.
"CASH PROCEEDS" shall have the meaning assigned in Section 7.7.
"CHATTEL PAPER" shall mean all "chattel paper" as defined in Article 9
of the UCC, including, without limitation, "electronic chattel paper" or
"tangible chattel paper", as each term is defined in Article 9 of the UCC.
"COLLATERAL" shall have the meaning assigned in Section 2.1.
"COLLATERAL AGENT" shall have the meaning set forth in the preamble.
"COLLATERAL RECORDS" shall mean books, records, ledger cards, files,
correspondence, customer lists, blueprints, technical specifications, manuals,
computer software, computer printouts, tapes, disks and related data processing
software and similar items that at any time evidence or contain information
relating to any of the Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon.
"COLLATERAL SUPPORT" shall mean all property (real or personal)
assigned, hypothecated or otherwise securing any Collateral and shall include
any security agreement or other agreement granting a lien or security interest
in such real or personal property.
"COMMERCIAL TORT CLAIMS" shall mean all "commercial tort claims" as
defined in Article 9 of the UCC, including, without limitation, all commercial
tort claims listed on Schedule 4.8 (as such schedule may be amended or
supplemented from time to time).
"COMMODITIES ACCOUNTS" (i) shall mean all "commodity accounts" as
defined in Article 9 of the UCC that are (a) maintained at Comerica or (b) have
a principle balance with a value in excess of $200,000 for such account and
$1,000,000 in the aggregate for all such accounts and (ii) shall include,
without limitation, all of the accounts listed on Schedule 4.4 under the heading
"COMMODITIES ACCOUNTS" (as such schedule may be amended or supplemented from
time to time).
"COMPANY" shall have the meaning set forth in the recitals.
"CONTROLLED FOREIGN CORPORATION" shall mean "controlled foreign
corporation" as defined in the Tax Code. For avoidance of doubt, Autocam Europe
B.V. and Autocam France, SARL are not Controlled Foreign Corporations.
"COPYRIGHT LICENSES" shall mean any and all agreements providing for
the granting of any right in or to Copyrights (whether such Grantor is licensee
or licensor thereunder) including, without limitation, each agreement referred
to in Schedule 4.7(B) (as such schedule may be amended or supplemented from time
to time).
"COPYRIGHTS" shall mean all United States, and foreign copyrights
(including Community designs), including but not limited to copyrights in
software and databases, and all mask works (as defined under 17 U.S.C. 901 of
the U.S. Copyright Act), whether registered or unregistered, and, with respect
to any and all of the foregoing: (i) all registrations and applications therefor
including, without limitation, the registrations and applications applied for
thereon in the United States and any state thereof and in foreign countries
referred to in Schedule 4.7(A) (as such schedule may be amended or supplemented
from time to time), (ii) all extensions and renewals thereof, (iii) all rights
corresponding thereto throughout the world, (iv) all rights to ▇▇▇ for past,
present and future infringements thereof, and (v) all Proceeds of the foregoing,
including, without limitation, licenses, royalties, income, payments, claims,
damages and proceeds of suit.
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"CREDIT AGREEMENT" shall have the meaning set forth in the recitals.
"DEPOSIT ACCOUNT CONTROL AGREEMENT" means an agreement establishing
the Collateral Agent's "control" of a deposit account for purposes of Article 9
of the UCC in a form reasonably satisfactory to the Collateral Agent.
"DEPOSIT ACCOUNTS" (i) shall mean all "deposit accounts" as defined in
Article 9 of the UCC that are (a) maintained at Comerica or (b) have a principal
balance with a value in excess of $200,000 for such account and $1,000,000 in
the aggregate for all such accounts and (ii) shall include, without limitation,
all of the accounts listed on Schedule 4.4 under the heading "Deposit Accounts"
(as such schedule may be amended or supplemented from time to time).
"DOCUMENTS" shall mean all "documents" as defined in Article 9 of the
UCC.
"EQUIPMENT" shall mean: (i) all "equipment" as defined in Article 9 of
the UCC, (ii) all machinery, manufacturing equipment, data processing equipment,
computers, office equipment, furnishings, furniture, appliances, fixtures and
tools (in each case, regardless of whether characterized as equipment under the
UCC) and (iii) all accessions or additions thereto, all parts thereof, whether
or not at any time of determination incorporated or installed therein or
attached thereto, and all replacements therefor, wherever located, now or
hereafter existing, including any fixtures.
"FIRST LIEN SECURITY AGREEMENT" shall mean the Pledge and Security
Agreement dated as of June 21, 2004 by and among Company, Holdings, certain
Subsidiaries of Company and First Lien Collateral Agent, as amended from time to
time.
"GENERAL INTANGIBLES" (i) shall mean all "general intangibles" as
defined in Article 9 of the UCC, including "payment intangibles" also as defined
in Article 9 of the UCC and (ii) shall include, without limitation, all interest
rate or currency protection or hedging arrangements, all tax refunds, all
licenses, permits, concessions and authorizations, all Assigned Agreements and
all Intellectual Property (in each case, regardless of whether characterized as
general intangibles under the UCC).
"GOODS" (i) shall mean all "goods" as defined in Article 9 of the UCC
and (ii) shall include, without limitation, all Inventory and Equipment (in each
case, regardless of whether characterized as goods under the UCC).
"GRANT" means a Grant of Trademark Security Interest, substantially in
the form of Exhibit B annexed hereto, and a Grant of Patent Security Interest,
substantially in the form of Exhibit C annexed hereto, and/or a Grant of
Copyright Security Interest, substantially in the form of Exhibit D annexed
hereto.
"GRANTORS" shall have the meaning set forth in the preamble.
"INSTRUMENTS" shall mean all "instruments" as defined in Article 9 of
the UCC.
"INSURANCE" shall mean (i) all insurance policies covering any or all
of the Collateral (regardless of whether the Collateral Agent is the loss payee
thereof) and (ii) any key man life insurance policies.
"INTELLECTUAL PROPERTY" shall mean, collectively, the Copyrights, the
Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the
Trademark Licenses, the Trade Secrets, and the Trade Secret Licenses.
"INTERCOMPANY INDEBTEDNESS" shall mean all Indebtedness of any Grantor
to another Grantor.
"INVENTORY" shall mean (i) all "inventory" as defined in Article 9 of
the UCC and (ii) all goods held for sale or lease or to be furnished under
contracts of service or so leased or furnished, all raw materials, work in
process, finished goods, and materials used or consumed in the manufacture,
packing, shipping, advertising,
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selling, leasing, furnishing or production of such inventory or otherwise used
or consumed in any Grantor's business; all goods in which any Grantor has an
interest in mass or a joint or other interest or right of any kind; and all
goods which are returned to or repossessed by any Grantor, all computer programs
embedded in any goods and all accessions thereto and products thereof (in each
case, regardless of whether characterized as inventory under the UCC).
"INVESTMENT ACCOUNTS" shall mean the Securities Accounts, Commodities
Accounts and Deposit Accounts.
"INVESTMENT RELATED PROPERTY" shall mean: (i) all "investment
property" (as such term is defined in Article 9 of the UCC) and (ii) all of the
following (regardless of whether classified as investment property under the
UCC): all Pledged Equity Interests, Pledged Debt, the Investment Accounts and
certificates of deposit.
"LENDER" shall have the meaning set forth in the recitals.
"LETTER OF CREDIT RIGHT" shall mean "letter-of-credit right" as
defined in Article 9 of the UCC.
"MATERIAL IMPAIRMENT" means a material adverse effect on the value of
any material Collateral or the rights of the Collateral Agent (acting for the
benefit of the Secured Parties) in respect thereof, including the rights to levy
legal process or to sell such Collateral upon foreclosure.
"MONEY" shall mean "money" as defined in the UCC.
"PATENT LICENSES" shall mean all agreements providing for the granting
of any right in or to Patents (whether such Grantor is licensee or licensor
thereunder) including, without limitation, each agreement referred to in
Schedule 4.7(D) (as such schedule may be amended or supplemented from time to
time).
"PATENTS" shall mean all United States and foreign patents and
certificates of invention, or similar industrial property rights, and
applications for any of the foregoing, including, but not limited to: (i) each
patent and patent application referred to in Schedule 4.7(C) hereto (as such
schedule may be amended or supplemented from time to time), (ii) all reissues,
divisions, continuations, continuations-in-part, extensions, renewals, and
reexaminations thereof, (iii) all rights corresponding thereto throughout the
world, (iv) all inventions and improvements described therein, (v) all rights
(but not obligations) to ▇▇▇ for past, present and future infringements thereof,
(vi) all licenses, claims, damages, and proceeds of suit arising therefrom, and
(vii) all Proceeds of the foregoing, including, without limitation, licenses,
royalties, income, payments, claims, damages, and proceeds of suit.
"PLEDGE SUPPLEMENT" shall mean any supplement to this agreement in
substantially the form of Exhibit A.
"PLEDGED DEBT" shall mean all Indebtedness owed to such Grantor,
including, without limitation, all Intercompany Indebtedness and Indebtedness
described on Schedule 4.4(A) under the heading "Pledged Debt" (as such schedule
may be amended or supplemented from time to time), issued by the obligors named
therein, the instruments evidencing such Indebtedness, and all interest, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such Indebtedness.
"PLEDGED EQUITY INTERESTS" shall mean all Pledged Stock, Pledged LLC
Interests, Pledged Partnership Interests and Pledged Trust Interests.
"PLEDGED LLC INTERESTS" shall mean all interests acquired in any
limited liability company including, without limitation, all limited liability
company interests listed on Schedule 4.4(A) under the heading "Pledged LLC
Interests" (as such schedule may be amended or supplemented from time to time)
and the certificates, if any, representing such limited liability company
interests and any interest of such Grantor on the books and records of such
limited liability company or on the books and records of any securities
intermediary pertaining to
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such interest and all dividends or other distributions from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such limited liability company interests.
"PLEDGED PARTNERSHIP INTERESTS" shall mean all interests acquired in
any general partnership, limited partnership, limited liability partnership or
other partnership including, without limitation, all partnership interests
listed on Schedule 4.4(A) under the heading "Pledged Partnership Interests" (as
such schedule may be amended or supplemented from time to time) and the
certificates, if any, representing such partnership interests and any interest
of such Grantor on the books and records of such partnership or on the books and
records of any securities intermediary pertaining to such interest and all
dividends or other distributions from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
partnership interests.
"PLEDGED STOCK" shall mean all shares of capital stock owned by such
Grantor, including, without limitation, all shares of capital stock described on
Schedule 4.4(A) under the heading "Pledged Stock" (as such schedule may be
amended or supplemented from time to time), and the certificates, if any,
representing such shares and any interest of such Grantor in the entries on the
books of the issuer of such shares or on the books of any securities
intermediary pertaining to such shares, and all dividends or other distributions
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such shares.
"PLEDGED TRUST INTERESTS" shall mean all interests acquired in a
Delaware business trust or other statutory trust including, without limitation,
all trust interests listed on Schedule 4.4(A) under the heading "Pledged Trust
Interests" (as such schedule may be amended or supplemented from time to time)
and the certificates, if any, representing such trust interests and any interest
of such Grantor on the books and records of such trust or on the books and
records of any securities intermediary pertaining to such interest and all
dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of such
trust interests.
"PROCEEDS" shall mean: (i) all "proceeds" as defined in Article 9 of
the UCC, (ii) payments or distributions made with respect to any Investment
Related Property and (iii) whatever is receivable or received when Collateral or
proceeds are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary.
"RECEIVABLES" shall mean all rights to payment, whether or not earned
by performance, for goods or other property sold, leased, licensed, assigned or
otherwise disposed of, or services rendered or to be rendered, including,
without limitation all such rights constituting or evidenced by any Account,
Chattel Paper or Instrument, together with all of Grantor's rights, if any, in
any goods or other property giving rise to such right to payment and all
Collateral Support and Supporting Obligations related thereto and all
Receivables Records.
"RECEIVABLES RECORDS" shall mean (i) all original copies of all
documents, instruments or other writings or electronic records or other Records
evidencing the Receivables, (ii) all books, correspondence, credit or other
files, Records, ledger sheets or cards, invoices, and other papers relating to
Receivables, including, without limitation, all tapes, cards, computer tapes,
computer discs, computer runs, record keeping systems and other papers and
documents relating to the Receivables, whether in the possession or under the
control of Grantor or any computer bureau or agent from time to time acting for
Grantor or otherwise, (iii) all evidences of the filing of financing statements
and the registration of other instruments in connection therewith, and
amendments, supplements or other modifications thereto, notices to other
creditors or secured parties, and certificates, acknowledgments, or other
writings, including, without limitation, lien search reports, from filing or
other registration officers, (iv) all credit information, reports and memoranda
relating thereto and (v) all other written or nonwritten forms of information
related in any way to the foregoing or any Receivable.
"RECORD" shall have the meaning specified in Article 9 of the UCC.
"SECURED OBLIGATIONS" shall have the meaning assigned in Section 3.1.
"SECURED PARTIES" shall mean the Agents, the Lenders and the Lender
Counterparties and shall include, without limitation, all former Agents, Lenders
and Lender Counterparties to the extent that any Obligations
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owing to such Persons were incurred while such Persons were Agents, Lenders or
Lender Counterparties and such Obligations have not been paid or satisfied in
full.
"SECURITIES ACCOUNT CONTROL AGREEMENT" means an agreement establishing
the Collateral Agent's "control" of a securities account or a commodities
account for purposes of Article 9 of the UCC in a form reasonably satisfactory
to the Collateral Agent.
"SECURITIES ACCOUNTS" (i) shall mean all "securities accounts" as
defined in Article 8 of the UCC that are (a) maintained at Comerica or (b) have
a principle balance with a value in excess of $200,000 for such account and
$1,000,000 in the aggregate for all such accounts and (ii) shall include,
without limitation, all of the accounts listed on Schedule 4.4(A) under the
heading "Securities Accounts" (as such schedule may be amended or supplemented
from time to time).
"SECURITIES ENTITLEMENTS" shall mean all "securities entitlements" as
defined in Article 8 of the UCC.
"SUPPORTING OBLIGATION" shall mean all "supporting obligations" as
defined in Article 9 of the UCC.
"TAX CODE" shall mean the United States Internal Revenue Code of 1986,
as amended from time to time.
"TRADEMARK LICENSES" shall mean any and all agreements providing for
the granting of any right in or to Trademarks (whether such Grantor is licensee
or licensor thereunder) including, without limitation, each agreement referred
to in Schedule 4.7(F) (as such schedule may be amended or supplemented from time
to time).
"TRADEMARKS" shall mean all United States, and foreign trademarks,
trade names, corporate names, company names, business names, fictitious business
names, Internet domain names, service marks, certification marks, collective
marks, logos, other source or business identifiers, designs and general
intangibles of a like nature, all registrations and applications for any of the
foregoing including, but not limited to: (i) the registrations and applications
referred to in Schedule 4.7(E) (as such schedule may be amended or supplemented
from time to time), (ii) all extensions or renewals of any of the foregoing,
(iii) all of the goodwill of the business connected with the use of and
symbolized by the foregoing, (iv) the right to ▇▇▇ for past, present and future
infringement or dilution of any of the foregoing or for any injury to goodwill,
and (v) all Proceeds of the foregoing, including, without limitation, licenses,
royalties, income, payments, claims, damages, and proceeds of suit.
"TRADE SECRET LICENSES" shall mean any and all agreements providing
for the granting of any right in or to Trade Secrets (whether such Grantor is
licensee or licensor thereunder) including, without limitation, each agreement
referred to in Schedule 4.7(G) (as such schedule may be amended or supplemented
from time to time).
"TRADE SECRETS" shall mean all trade secrets and all other
confidential or proprietary information and know-how whether or not such Trade
Secret has been reduced to a writing or other tangible form, including all
documents and things embodying, incorporating, or referring in any way to such
Trade Secret, including but not limited to: (i) the right to ▇▇▇ for past,
present and future misappropriation or other violation of any Trade Secret, and
(ii) all Proceeds of the foregoing, including, without limitation, licenses,
royalties, income, payments, claims, damages, and proceeds of suit.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of New York or, when the context implies, the Uniform
Commercial Code as in effect from time to time in any other applicable
jurisdiction.
"UNCERTIFICATED SECURITIES CONTROL AGREEMENT" means an agreement
establishing the Collateral Agent's "control" of uncertificated securities for
purposes of Article 9 of the UCC in a form reasonably satisfactory to the
Collateral Agent.
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"UNITED STATES" shall mean the United States of America.
1.2 DEFINITIONS; INTERPRETATION. All capitalized terms used herein
(including the preamble and recitals hereto) and not otherwise defined herein
shall have the meanings ascribed thereto in the Credit Agreement or, if not
defined therein, in the UCC. References to "Sections," "Exhibits" and
"Schedules" shall be to Sections, Exhibits and Schedules, as the case may be, of
this Agreement unless otherwise specifically provided. Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. The use herein of the word "include" or "including", when following
any general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth immediately
following such word or to similar items or matters, whether or not nonlimiting
language (such as "without limitation" or "but not limited to" or words of
similar import) is used with reference thereto, but rather shall be deemed to
refer to all other items or matters that fall within the broadest possible scope
of such general statement, term or matter. If any conflict or inconsistency
exists between this Agreement and the Credit Agreement, the Credit Agreement
shall govern. All references herein to provisions of the UCC shall include all
successor provisions under any subsequent version or amendment to any Article of
the UCC.
SECTION 2. GRANT OF SECURITY.
2.1 GRANT OF SECURITY. Each Grantor hereby grants to the Collateral Agent
for the ratable benefit of the Secured Parties a security interest in and
continuing lien on all of such Grantor's right, title and interest in, to and
under all personal property of such Grantor including, but not limited to the
following, in each case whether now owned or existing or hereafter acquired or
arising and wherever located (all of which, except as provided in Section 2.2,
being hereinafter collectively referred to as the "COLLATERAL"):
(a) Accounts;
(b) Chattel Paper;
(c) Documents;
(d) General Intangibles;
(e) Goods;
(f) Instruments;
(g) Insurance;
(h) Intellectual Property;
(i) Investment Related Property;
(j) Letter of Credit Rights;
(k) Money;
(l) Receivables and Receivable Records;
(m) Commercial Tort Claims;
(n) to the extent not otherwise included above, all Collateral
Records, Collateral Support and Supporting Obligations relating to any of the
foregoing; and
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(o) to the extent not otherwise included above, all Proceeds,
products, Accessions, rents and profits of or in respect of any of the
foregoing.
2.2 CERTAIN LIMITED EXCLUSIONS. Notwithstanding anything contained in
Section 2.1 hereof or anything else herein to the contrary, in no event shall
the Collateral include, and no Grantor shall be deemed to have granted a
security interest in, any of such Grantor's right, title or interest (a) in any
Intellectual Property if the grant of such security interest shall constitute or
result in (i) the abandonment, invalidation or rendering unenforceable any
right, title or interest of any Grantor therein, or (ii) the breach or
termination pursuant to the terms of, or a default under, any Intellectual
Property or (iii) the violation of any applicable law; (b) in any General
Intangible if the grant of such security interest (i) shall be prohibited by any
contract, agreement, instrument or indenture governing such General Intangible,
(ii) would give any other party to such contract, agreement, instrument or
indenture the right to terminate its obligations thereunder or (iii) is
permitted only with the consent of another party to such contract, if such
consent has not been obtained; (c) in any lease, license, contract, property
rights or agreement to which any Grantor is a party or any of its rights or
interests thereunder if the grant of such security interest shall constitute or
result in (i) the abandonment, invalidation or unenforceability of any right,
title or interest of any Grantor therein or (ii) in a breach or termination
pursuant to the terms of, or a default under, any such lease, license, contract,
property rights or agreement; in each case of clauses (a), (b) and (c), other
than to the extent that any such term would be rendered ineffective pursuant to
Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or
provisions) of any relevant jurisdiction or any other applicable law (including
the Bankruptcy Code) or principles of equity, provided, however that such
security interest shall attach, immediately at such time as and to the extent
severable, to any portion of such Intellectual Property, General Intangible,
lease, license, contract, property rights or agreement that does not result or
no longer results in any of the consequences specified in (a)(i), (ii) or (iii),
(b)(i), (ii) or (iii) or (c)(i) or (ii) above; (d) in the capital stock of
Autocam France, Sarl; or (e) in any of the outstanding capital stock of a
Controlled Foreign Corporation representing in excess of 65% of the voting power
of all classes of capital stock of such Controlled Foreign Corporation entitled
to vote; provided that immediately upon the amendment of the Tax Code to allow
the pledge of capital stock representing a greater percentage of the voting
power of capital stock in a Controlled Foreign Corporation without adverse tax
consequences, the Collateral shall include, and the security interest granted by
each Grantor shall attach to, such greater percentage of capital stock of each
Controlled Foreign Corporation.
SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.
3.1 SECURITY FOR OBLIGATIONS. This Agreement secures, and the Collateral is
collateral security for, the prompt and complete payment or performance in full
when due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including the payment of amounts that would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. Section 362(a) (and any successor provision
thereof)), of all Obligations with respect to every Grantor (the "SECURED
OBLIGATIONS").
3.2 GRANTORS REMAIN LIABLE. Anything contained herein to the contrary
notwithstanding, but subject to the transfer of Pledged Equity Interests to the
Collateral Agent or its nominee upon foreclosure after an Event of Default:
(a) each Grantor shall remain liable under any partnership agreement
or limited liability company agreement relating to any Pledged Partnership
Interest or Pledged LLC Interest, any Assigned Agreement and/or any other
contracts and agreements included in the Collateral, to the extent set forth
therein, to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed;
(b) the exercise by the Collateral Agent of any of its rights
hereunder shall not release any Grantor from any of its duties or obligations
under the contracts and agreements included in the Collateral; and
(c) neither the Collateral Agent nor any Lender nor Lender
Counterparty shall have any obligation or liability under any partnership
agreement or limited liability company agreement relating to any Pledged
Partnership Interests or Pledged LLC Interests, any Assigned Agreement or any
other contracts and agreements included in the Collateral by reason of this
Agreement, nor shall the Collateral Agent, any Lender or any
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Lender Counterparty be obligated to perform any of the obligations or duties of
any Grantor thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
Neither the Collateral Agent, any Lender, any Lender Counterparty nor any
purchaser at a foreclosure sale under this Agreement shall be obligated to
assume any obligation or liability under any partnership agreement or limited
liability company agreement relating to any Pledged Partnership Interests or
Pledged LLC Interests, any Assigned Agreement or any other contracts and
agreements included in the Collateral unless the Collateral Agent, any Lender,
any Lender Counterparty or any such purchaser otherwise expressly agrees in
writing to assume any or all of said obligations.
SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS.
4.1 GENERALLY.
(a) Representations and Warranties. Each Grantor hereby represents and
warrants on the Closing Date that:
(i) it owns the Collateral purported to be owned by it or
otherwise has the rights it purports to have in each item of Collateral
and, as to all Collateral whether now existing or hereafter acquired, will
continue to own or have such rights in each item of the Collateral, in each
case free and clear of any and all Liens, rights or claims of all other
Persons, including, without limitation, liens arising as a result of such
Grantor becoming bound (as a result of merger or otherwise) as debtor under
a security agreement entered into by another Person other than Permitted
Liens;
(ii) it has indicated on Schedule 4.1(A) (as such schedule may be
amended or supplemented from time to time): (w) the type of organization of
such Grantor, (x) the jurisdiction of organization of such Grantor, (y) its
Federal Taxpayer Identification Number and (z) the jurisdiction of the
chief executive office or its sole place of business.
(iii) the full legal name of such Grantor is as set forth on
Schedule 4.1(A) and it has not done in the last five (5) years, and does
not do, business under any other name (including any trade-name or
fictitious business name) except for those names set forth on Schedule
4.1(B) (as such schedule may be amended or supplemented from time to time);
(iv) except as provided on Schedule 4.1(C), it has not changed
its name, jurisdiction of organization, chief executive office or sole
place of business or its corporate structure in any way (e.g., by merger,
consolidation, change in corporate form or otherwise) within the past five
(5) years;
(v) it has not within the last five (5) years become bound
(whether as a result of merger or otherwise) as debtor under a security
agreement entered into by another Person, which has not heretofore been
terminated other than the agreements identified on Schedule 4.1(D) hereof
(as such schedule may be amended or supplemented from time to time);
(vi) with respect to each agreement identified on Schedule
4.1(D), it has indicated on Schedule 4.1(A) and Schedule 4.1(B) the
information required pursuant to Section 4.1(a)(ii), (iii) and (iv) with
respect to the debtor under each such agreement;
(vii) (u) upon the filing of all UCC financing statements naming
each Grantor as "debtor" and the Collateral Agent as "secured party" and
describing the Collateral in the filing offices set forth opposite such
Grantor's name on Schedule 4.1(E) hereof (as such schedule may be amended
or supplemented from time to time) and other filings delivered by each
Grantor, (v) upon delivery of all Instruments, Chattel Paper and
certificated Pledged Equity Interests and Pledged Debt to either the
Collateral Agent or the First Lien Collateral Agent acting as agent/bailee
for the Collateral Agent pursuant to the terms of the Intercreditor
Agreement, (w) upon sufficient identification of Commercial Tort Claims,
(x) upon execution of a control agreement establishing the Collateral
Agent's "control" (within the
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meaning of Section 9-104 or 9-106 of the UCC, as applicable) with respect
to any Investment Account, (y) upon consent of the issuer with respect to
Letter of Credit Rights, and (z) in the case of the Intellectual Property,
in addition to the filing of such UCC financing statements, the recordation
of a Grant with the applicable intellectual property registries, including
but not limited to the United States Patent and Trademark Office and the
United States Copyright Office, the security interests granted to the
Collateral Agent hereunder constitute valid and perfected Second Priority
Liens on all of the Collateral;
(viii) all actions and consents, including all filings, notices,
registrations and recordings necessary for the exercise by the Collateral
Agent of the voting or other rights provided for in this Agreement or the
exercise of remedies in respect of the Collateral have been made or
obtained, except such action or consents which if not made or obtained
could not reasonably be expected to result in a Material Impairment;
(ix) other than the financing statements filed in favor of the
Collateral Agent, no effective UCC financing statement, fixture filing or
other instrument similar in effect under any applicable law covering all or
any part of the Collateral is on file in any filing or recording office
except for (x) financing statements for which proper termination statements
have been delivered to the Collateral Agent for filing or for which pay-off
and Lien release letters containing authority to file such termination
statements have been delivered to the Collateral Agent and (y) financing
statements filed in connection with Permitted Liens;
(x) no authorization, approval or other action by, and no notice
to or filing with, any Governmental Authority or regulatory body is
required for either (i) the pledge or grant by any Grantor of the Liens
purported to be created in favor of the Collateral Agent hereunder or (ii)
the exercise by Collateral Agent of any rights or remedies in respect of
any Collateral (whether specifically granted or created hereunder or
created or provided for by applicable law), except (A) for the filings
contemplated by clause (vii) above, (B) which if not made or obtained could
not reasonably be expected to result in a Material Impairment, and (C) as
may be required, in connection with the disposition of any Investment
Related Property, by laws generally affecting the offering and sale of
Securities; and
(xi) except as could not reasonably be expected to result in a
Material Impairment, all information supplied by any Grantor with respect
to any of the Collateral (in each case taken as a whole with respect to any
particular Collateral) is accurate and complete in all material respects.
(b) Covenants and Agreements. Each Grantor hereby covenants and agrees
that until the payment in full of all Secured Obligations:
(i) except for the security interest created by this Agreement,
it shall not create or suffer to exist any Lien upon or with respect to any
of the Collateral, except Permitted Liens, and such Grantor shall defend
the Collateral against all Persons at any time claiming any interest
therein;
(ii) it shall not produce, use or permit any Collateral to be
used (a) in violation of any provision of this Agreement or (b) except as
could not reasonably be expected to result in a Material Impairment,
unlawfully or in violation of any applicable statute, regulation or
ordinance or any policy of insurance covering the Collateral;
(iii) it shall not change its name, type of organization,
jurisdiction of organization, Federal Taxpayer Identification Number or
corporate structure in any way (e.g., by merger, consolidation, change in
corporate form or otherwise) unless it shall (a) promptly after such change
or establishment notify the Collateral Agent in writing, by executing and
delivering to the Collateral Agent a completed Pledge Supplement, together
with all Supplements to Schedules thereto, of any such change or
establishment, identifying such new proposed name, jurisdiction of
organization, Federal Taxpayer Identification Number or corporate structure
and providing the Collateral Agreement certified copies of any relevant
filings and such other information in connection therewith as the
Collateral Agent may reasonably request and (b) take all actions necessary
or advisable, in the reasonable judgment of Collateral Agent, to
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maintain the continuous validity, perfection and the same or better
priority of the Collateral Agent's security interest in the Collateral
intended to be granted and agreed to hereby;
(iv) to the extent required by the Credit Agreement, it shall pay
promptly when due all property and other taxes, assessments and
governmental charges or levies imposed upon, and all claims (including
claims for labor, materials and supplies) against, the Collateral, except
to the extent the validity thereof is being contested in good faith;
provided, such Grantor shall in any event pay such taxes, assessments,
charges, levies or claims not later than five (5) days prior to the date of
any proposed sale under any judgment, writ or warrant of attachment entered
or filed against such Grantor or any of the Collateral as a result of the
failure to make such payment;
(v) [intentionally deleted];
(vi) it shall not take or permit any action which could
materially impair the Collateral Agent's rights in the Collateral;
(vii) it shall not sell, transfer or assign (by operation of law
or otherwise) any Collateral except as otherwise in accordance with the
Credit Agreement; and
(viii) in the event any Person becomes its Domestic Subsidiary,
such Grantor shall (a) promptly cause such Domestic Subsidiary to become an
Additional Grantor pursuant to Section 5.3, (b) promptly take all actions
necessary to grant and to perfect (with respect to Intellectual Property to
the extent such perfection and priority may be achieved by filings made in
the United States) a Second Priority security interest in the Collateral
consisting of personal property of such Domestic Subsidiary in favor of
Collateral Agent for the benefit of the Secured Parties in respect of such
Collateral in accordance with this Agreement, and (c) subject to the
provisions of the Intercreditor Agreement, promptly cause each Person
holding Capital Stock of such Domestic Subsidiary to take all actions
necessary to grant and to perfect a Second Priority security interest in
favor of Collateral Agent for the benefit of the Secured Parties in respect
of all such Capital Stock.
4.2 Equipment and Inventory.
(a) Representations and Warranties. Each Grantor represents and
warrants on the Closing Date that:
(i) all of the Equipment and Inventory included in the Collateral
is located only at the locations specified in Schedule 4.2 (as such
schedule may be amended or supplemented from time to time), except for (A)
Inventory which, in the ordinary course of business, (i) is in transit
from, or has been purchased by a Grantor and not yet shipped by, a supplier
to a Grantor, (ii) is in transit to, or has been delivered to but not yet
paid for by, a customer or (iii) which has been delivered by a Grantor to a
subcontractor for secondary processing and (B) other mobile goods,
Equipment or Inventory with an aggregate net book value of up to
$2,000,000;
(ii) except as could not reasonably be expected to result in a
Material Impairment, any Goods now or hereafter produced by any Grantor
included in the Collateral have been and will be produced in compliance
with the requirements of the Fair Labor Standards Act, as amended; and
(iii) except as set forth on Schedule 4.2(A) (as such schedule
may be amended or supplemented from time to time), none of the Inventory or
Equipment (except for mobile goods, Equipment or Inventory with an
aggregate net book value of up to $1,000,000) is in the possession of an
issuer of a negotiable document (as defined in Section 7-104 of the UCC)
therefor or otherwise in the possession of a bailee or a warehouseman.
(b) Covenants and Agreements. Each Grantor covenants and agrees that
until the payment in full of all Secured Obligations:
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(i) it shall keep correct and accurate records of the Inventory,
as is customarily maintained under similar circumstances by Persons of
established reputation engaged in similar business, and in any event in
conformity with GAAP;
(ii) it shall not deliver any Document evidencing any Equipment
and Inventory to any Person other than the issuer of such Document to claim
the Goods evidenced therefor, the Collateral Agent, or the First Lien
Collateral Agent;
(iii) if any Equipment or Inventory is in possession or control
of any third party (other than a supplier, customer or subcontractor in the
ordinary course of business as described in Section 4.2(a)(i), above),
each Grantor shall, as a condition to entering into any such arrangement in
respect of Equipment or Inventory in an aggregate net book value exceeding
$2,000,000 at any time and otherwise upon request of the Collateral Agent,
join with the Collateral Agent in notifying the third party of the
Collateral Agent's security interest and using commercially reasonable
efforts to obtain an acknowledgment from the third party that it is holding
the Equipment and Inventory for the benefit of the Collateral Agent;
(iv) At any time when an Event of Default has occurred and is
continuing, subject to the Intercreditor Agreement upon written request of
Collateral Agent, each Grantor shall instruct each subcontractor then
holding Inventory for processing to hold such Inventory for the account of
Collateral Agent and subject to the instructions of the Collateral Agent;
(v) with respect to any Equipment with net book value in excess
of $100,000 individually or $1,000,000 in the aggregate which 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, upon the reasonable request of the
Collateral Agent, (A) it shall provide the Collateral Agent information
with respect to any such Equipment, (B) it shall 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, and (C) it shall deliver to the Collateral Agent
copies of all such applications or other documents filed during such
calendar quarter and copies of all such certificates of title issued during
such calendar quarter indicating the security interest created hereunder in
the items of Equipment covered thereby.
4.3 Receivables.
(a) Representations and Warranties. Each Grantor represents and
warrants on the Closing Date that: no Receivable in excess of $100,000
individually or $500,000 in the aggregate is evidenced by, or constitutes, an
Instrument or Chattel Paper which has not been delivered to, or otherwise
subjected to the control of, the Collateral Agent to the extent required by, and
in accordance with Section 4.3(c);
(b) Covenants and Agreements: Each Grantor hereby covenants and agrees
that until the payment in full of all Secured Obligations:
(i) it shall keep and maintain at its own cost and expense
satisfactory and complete records of the Receivables as is customarily
maintained under similar circumstances by Persons of established reputation
engaged in similar business, and in any event in conformity with GAAP
including, but not limited to, the originals of all documentation with
respect to all such Receivables and records of all payments received and
all credits granted on such Receivables, all merchandise returned and all
other dealings therewith;
(ii) it shall not amend, modify, terminate or waive any provision
of any Receivable in any manner that could reasonably be expected to have a
Material Adverse Effect. Other than in the ordinary course of business as
generally conducted by it, and except as otherwise provided in subsection
(v) below, during the continuance of an Event of Default, such Grantor
shall not (w) grant any
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extension or renewal of the time of payment of any Receivable, (x)
compromise or settle any dispute, claim or legal proceeding with respect to
any Receivable for less than the total unpaid balance thereof, (y) release,
wholly or partially, any Person liable for the payment thereof, or (z)
allow any credit or discount thereon;
(iii) except as otherwise provided in this subsection, each
Grantor shall continue to collect all amounts due or to become due to such
Grantor under the Receivables and any Supporting Obligation and diligently
exercise each material right it may have under any Receivable, any
Supporting Obligation or Collateral Support, in each case, at its own
expense, and in connection with such collections and exercise, such Grantor
shall take such action as such Grantor or after the occurrence and during
the continuance of an Event of Default, subject to the provisions of the
Intercreditor Agreement, the Collateral Agent, may deem necessary or
advisable. Notwithstanding the foregoing, subject to the provisions of the
Intercreditor Agreement, the Collateral Agent shall have the right at any
time following the occurrence and during the continuation of an Event of
Default to notify, or require any Grantor to notify, any Account Debtor of
the Collateral Agent's security interest in the Receivables and any
Supporting Obligation and, in addition, at any time following the
occurrence and during the continuation of an Event of Default, subject to
the Intercreditor Agreement, the Collateral Agent may: (1) direct the
Account Debtors under any Receivables to make payment of all amounts due or
to become due to such Grantor thereunder directly to the Collateral Agent;
(2) notify, or require any Grantor to notify, each Person maintaining a
lockbox or similar arrangement to which Account Debtors under any
Receivables have been directed to make payment to remit all amounts
representing collections on checks and other payment items from time to
time sent to or deposited in such lockbox or other arrangement directly to
the Collateral Agent; and (3) enforce, at the expense of such Grantor,
collection of any such Receivables and to adjust, settle or compromise the
amount or payment thereof, in the same manner and to the same extent as
such Grantor might have done. If the Collateral Agent notifies any Grantor
that it has elected to collect the Receivables in accordance with the
preceding sentence, any payments of Receivables received by such Grantor
shall be forthwith (and in any event within two (2) Business Days)
deposited by such Grantor in the exact form received, duly indorsed by such
Grantor to the Collateral Agent if required, in a Securities Account or
Deposit Account maintained under the sole dominion and control of the
Collateral Agent, and until so turned over, all amounts and proceeds
(including checks and other instruments) received by such Grantor in
respect of the Receivables, any Supporting Obligation or Collateral Support
shall be received in trust for the benefit of the Collateral Agent
hereunder and shall be segregated from other funds of such Grantor and such
Grantor shall not adjust, settle or compromise the amount or payment of any
Receivable, or release wholly or partly any Account Debtor or obligor
thereof, or allow any credit or discount thereon; and
(iv) it shall use commercially reasonable efforts to keep in full
force and effect any Supporting Obligation or Collateral Support relating
to any Receivable.
(c) Delivery and Control of Receivables. Subject to the provisions of
the Intercreditor Agreement, with respect to any Receivables in excess of
$100,000 individually or $500,000 in the aggregate that is evidenced by, or
constitutes, Chattel Paper or Instruments, each Grantor shall cause each
originally executed copy thereof to be delivered to the Collateral Agent (or its
agent or designee) appropriately indorsed to the Collateral Agent or indorsed in
blank: (i) with respect to any such Receivables in existence on the date hereof,
on or prior to the date hereof and (ii) with respect to any such Receivables
hereafter arising, within ten (10) days of such Grantor acquiring rights
therein. Subject to the provisions of the Intercreditor Agreement, with respect
to any Receivables in excess of $100,000 individually or $500,000 in the
aggregate which would constitute "electronic chattel paper" under Article 9 of
the UCC, each Grantor shall use commercially reasonable efforts to give the
Collateral Agent control over such Receivables (within the meaning of Section
9-105 of the UCC): (i) with respect to any such Receivables in existence on the
date hereof, on or prior to the date hereof and (ii) with respect to any such
Receivables hereafter arising, within ten (10) days of such Grantor acquiring
rights therein. Subject to the provisions of the Intercreditor Agreement, any
Receivable that is evidenced by, or constitutes, Chattel Paper or Instruments or
would constitute "electronic chattel paper" under Article 9 of the UCC not
otherwise required to be delivered or subjected to the control of the Collateral
Agent in accordance with this subsection (c) shall be delivered or subjected to
such control upon request of the Collateral Agent at any time during the
continuance of an Event of Default.
4.4 Investment Related Property.
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4.4.1 INVESTMENT RELATED PROPERTY GENERALLY
(a) Covenants and Agreements. Each Grantor hereby covenants and agrees
that until the payment in full of all Secured Obligations:
(i) subject to the limitation described in Section 2.2(d) with
respect to the capital stock of any Controlled Foreign Corporation, in the
event it acquires rights in any Investment Related Property constituting
Pledged Equity Interests or Pledged Debt or otherwise with an aggregate net
book value in excess of $500,000 after the date hereof, it shall deliver to
the Collateral Agent a completed Pledge Supplement, together with all
Supplements to Schedules thereto, reflecting such new Investment Related
Property and all other Investment Related Property. Notwithstanding the
foregoing, it is understood and agreed that the security interest of the
Collateral Agent shall attach to all Investment Related Property
immediately upon any Grantor's acquisition of rights therein and shall not
be affected by the failure of any Grantor to deliver a supplement to
Schedule 4.4 as required hereby;
(ii) except as provided in the next sentence, in the event such
Grantor receives any dividends, interest or distributions on any Investment
Related Property, or any securities or other property upon the merger,
consolidation, liquidation or dissolution of any issuer of any Investment
Related Property, then (a) such dividends, interest or distributions and
securities or other property shall be included in the definition of
Collateral without further action and (b) such Grantor shall within ten
(10) days take all steps, if any, necessary or advisable to ensure the
validity, perfection, priority and, if applicable, control of the
Collateral Agent over such Investment Related Property (including, without
limitation, delivery thereof to the Collateral Agent) and pending any such
action such Grantor shall be deemed to hold such dividends, interest,
distributions, securities or other property in trust for the benefit of the
Collateral Agent and shall be segregated from all other property of such
Grantor. Notwithstanding the foregoing, so long as no Event of Default
shall have occurred and be continuing or shall be caused thereby, the
Collateral Agent authorizes each Grantor to retain all cash dividends and
distributions and all payments of interest and principal;
(iii) each Grantor consents to the grant by each other Grantor of
a security interest in all Investment Related Property to the Collateral
Agent.
(b) Delivery and Control.
(i) Each Grantor agrees that with respect to any Investment
Related Property in which it currently has rights it shall comply with the
provisions of this Section 4.4.1(b) on or before the Closing Date and with
respect to any Investment Related Property hereafter acquired by such
Grantor it shall comply with the provisions of this Section 4.4.1(b)
promptly upon acquiring rights therein, in each case in form and substance
reasonably satisfactory to the Collateral Agent. Subject to the provisions
of the Intercreditor Agreement, with respect to any Investment Related
Property that is represented by a certificate or that is an "instrument"
(other than any Investment Related Property credited to a Securities
Account) it shall cause such certificate or instrument to be delivered to
the Collateral Agent, indorsed in blank by an "effective indorsement" (as
defined in Section 8-107 of the UCC), regardless of whether such
certificate constitutes a "certificated security" for purposes of the UCC.
Subject to the provisions of the Intercreditor Agreement, with respect to
any Investment Related Property that is an "uncertificated security" for
purposes of the UCC (other than any "uncertificated securities" credited to
a Securities Account), it shall use commercially reasonable efforts to
cause the issuer of such uncertificated security to either (i) register the
Collateral Agent as the registered owner thereof on the books and records
of the issuer or (ii) execute an Uncertificated Securities Control
Agreement, pursuant to which such issuer agrees to comply with the
Collateral Agent's instructions with respect to such uncertificated
security without further consent by such Grantor.
(c) Voting and Distributions.
(i) So long as no Event of Default shall have occurred and be
continuing, except as otherwise provided under the covenants and agreements
relating to investment related property in this Agreement or elsewhere
herein or in the Credit Agreement, each Grantor shall be entitled to
exercise or
14
refrain from exercising any and all voting and other consensual rights
pertaining to the Investment Related Property or any part thereof,
provided, no Grantor shall exercise or refrain from exercising any such
right (1) if the Collateral Agent shall have notified such Grantor that, in
the Collateral Agent's reasonable judgment, such action would have a
Material Adverse Effect; or (2) for any purpose inconsistent with the terms
of this Agreement or the Credit Agreement;
(ii) the Collateral Agent shall promptly execute and deliver (or
cause to be executed and delivered) to each Grantor all proxies, and other
instruments as such Grantor may from time to time reasonably request for
the purpose of enabling such Grantor to exercise the voting and other
consensual rights when and to the extent which it is entitled to exercise
pursuant to clause (ii) above; and
(iii) Subject to the provisions of the Intercreditor Agreement,
upon the occurrence and during the continuation of an Event of Default:
(A) all rights of each Grantor to exercise or refrain from exercising
the voting and other consensual rights which it would otherwise
be entitled to exercise pursuant hereto shall cease and all such
rights shall thereupon become vested in the Collateral Agent who
shall thereupon have the sole right but not the obligation to
exercise such voting and other consensual rights; and
(B) in order to permit the Collateral Agent to exercise the voting
and other consensual rights which it may be entitled to exercise
pursuant hereto and to receive all dividends and other
distributions which it may be entitled to receive hereunder: (1)
each Grantor shall promptly execute and deliver (or cause to be
executed and delivered) to the Collateral Agent all proxies,
dividend payment orders and other instruments as the Collateral
Agent may from time to time reasonably request and (2) each
Grantor acknowledges that the Collateral Agent may utilize the
power of attorney set forth in Section 6.1.
4.4.2 PLEDGED EQUITY INTERESTS
(a) Representations and Warranties. Each Grantor hereby represents and
warrants on the Closing Date that:
(i) Schedule 4.4(A) (as such schedule may be amended or
supplemented from time to time) sets forth under the headings "Pledged
Stock, "Pledged LLC Interests," "Pledged Partnership Interests" and
"Pledged Trust Interests," respectively, all of the Pledged Stock, Pledged
LLC Interests, Pledged Partnership Interests and Pledged Trust Interests
owned by any Grantor and such Pledged Equity Interests constitute the
percentage of issued and outstanding shares of stock, percentage of
membership interests, percentage of partnership interests or percentage of
beneficial interest of the respective issuers thereof indicated on such
Schedule;
(ii) except as set forth on Schedule 4.4(B), it has not acquired
any equity interests of another entity or substantially all the assets of
another entity within the past five (5) years;
(iii) it is the record and beneficial owner of the Pledged Equity
Interests free of all Liens, rights or claims of other Persons other than
Permitted Liens and except as described in Schedule 4.4(A), there are no
outstanding warrants, options or other rights to purchase, or shareholder,
voting trust or similar agreements outstanding with respect to, or property
that is convertible into, or that requires the issuance or sale of, any
Pledged Equity Interests;
(iv) without limiting the generality of Section 4.1(a)(v), except
as described in Schedule 4.4(A), no consent of any Person including any
other general or limited partner, any other member of a limited liability
company, any other shareholder or any other trust beneficiary is necessary
or desirable in connection with the creation, perfection or second priority
status of the security interest of the Collateral Agent in any Pledged
Equity Interests or the exercise by the Collateral Agent of the voting or
other rights provided for in this Agreement or the exercise of remedies in
respect thereof;
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(v) except as described in Schedule 4.4(A), none of the Pledged
LLC Interests nor Pledged Partnership Interests are or represent interests
in issuers that: (a) are registered as investment companies or (b) are
dealt in or traded on securities exchanges or markets; and
(vi) except as described in Schedule 4.4(A), none of the Pledged
LLC Interests and Pledged Partnership Interests are or represent interests
in issuers that have opted to be treated as securities under the uniform
commercial code of any jurisdiction.
(b) Covenants and Agreements. Each Grantor hereby covenants and agrees
that until the payment in full of the Secured Obligations:
(i) without the prior written consent of the Collateral Agent, it
shall not vote to enable or take any other action to: (a) other than as
permitted under the Credit Agreement, permit any issuer of any Pledged
Equity Interest to issue any additional stock, partnership interests,
limited liability company interests or other equity interests of any nature
or to issue securities convertible into or granting the right of purchase
or exchange for any stock or other equity interest of any nature of such
issuer, (b) other than as permitted under the Credit Agreement, permit any
issuer of any Pledged Equity Interest to dispose of all or a material
portion of their assets, (c) waive any default under or breach of any
material terms of any organizational document relating to the issuer of any
Pledged Equity Interest or the terms of any Pledged Debt, or (d) cause any
issuer of any Pledged Partnership Interests or Pledged LLC Interests which
are not securities (for purposes of the UCC) on the date hereof to elect or
otherwise take any action to cause such Pledged Partnership Interests or
Pledged LLC Interests to be treated as securities for purposes of the UCC
unless such Grantor shall promptly notify the Collateral Agent in writing
of any such election or action and, in such event, shall take all steps
necessary or advisable to establish the Collateral Agent's "control"
thereof;
(ii) [intentionally deleted];
(iii) without the prior written consent of the Collateral Agent
or as permitted under the Credit Agreement, it shall not permit any issuer
of any Pledged Equity Interest to merge or consolidate unless (i) such
issuer creates a security interest that is perfected by a filed financing
statement (that is not effective solely under section 9-508 of the UCC) in
collateral in which such new debtor has or acquires rights, and (ii) all
the outstanding capital stock or other equity interests of the surviving or
resulting corporation, limited liability company, partnership or other
entity is, upon such merger or consolidation, pledged hereunder; provided
that if the surviving or resulting Grantors upon any such merger or
consolidation involving an issuer which is a Controlled Foreign
Corporation, then such Grantor shall only be required to pledge equity
interests in accordance with Section 2.2; and
(iv) each Grantor consents to the grant by each other Grantor of
a security interest in all Investment Related Property to the Collateral
Agent and, without limiting the foregoing, consents to the transfer of any
Pledged Partnership Interest and any Pledged LLC Interest to the Collateral
Agent or its nominee following an Event of Default and to the substitution
of the Collateral Agent or its nominee as a partner in any partnership or
as a member in any limited liability company with all the rights and powers
related thereto.
4.4.3 PLEDGED DEBT
(a) Representations and Warranties. Each Grantor hereby represents and
warrants on the Closing Date that Schedule 4.4 (as such schedule may be amended
or supplemented from time to time) sets forth under the heading "Pledged Debt"
all of the Pledged Debt that constitutes Intercompany Indebtedness and otherwise
is in excess of $500,000 individually or $1,000,000 in the aggregate owned by
such Grantor and all of such Pledged Debt has been duly authorized,
authenticated or issued, and delivered and is the legal, valid and binding
obligation of the issuers thereof subject to the effect of applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting rights of creditors and general principles of equity and is not in
default and constitutes all of the issued and outstanding Intercompany
Indebtedness owned by such Grantor.
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(b) Covenants and Agreements. Each Grantor hereby covenants and agrees
that until the payment in full of all Secured Obligations it shall notify the
Collateral Agent of any default under any Pledged Debt that has caused, either
in any individual case or in the aggregate, a Material Adverse Effect.
4.4.4 INVESTMENT ACCOUNTS
(a) Representations and Warranties. Each Grantor hereby represents and
warrants on the Closing Date that:
(i) Schedule 4.4 hereto (as such schedule may be amended or
supplemented from time to time) sets forth under the headings "Securities
Accounts" and "Commodities Accounts," respectively, all of the Securities
Accounts and Commodities Accounts in which each Grantor has an interest.
Each Grantor is the sole entitlement holder of each such Securities Account
and Commodity Account, and such Grantor has not consented to, and is not
otherwise aware of, any Person (other than the Collateral Agent pursuant
hereto or First Lien Collateral Agent) having "control" (within the
meanings of Sections 8-106 and 9-106 of the UCC) over, or any other
interest in, any such Securities Account or Commodity Account or securities
or other property credited thereto, except to the extent such control would
constitute a Permitted Lien;
(ii) Schedule 4.4 hereto (as such schedule may be amended or
supplemented from time to time) sets forth under the headings "Deposit
Accounts" all of the Deposit Accounts in which each Grantor has an
interest. Each Grantor is the sole account holder of each such Deposit
Account and such Grantor has not consented to, and is not otherwise aware
of, any Person (other than the Collateral Agent pursuant hereto and the
First Lien Collateral Agent) having either sole dominion and control
(within the meaning of common law) or "control" (within the meanings of
Section 9-104 of the UCC) over, or any other interest in, any such Deposit
Account or any money or other property deposited therein, except to the
extent such control would constitute a Permitted Lien; and
(iii) Each Grantor has taken all actions necessary or desirable,
including those specified in Section 4.4.4(c), to: (a) establish the
Collateral Agent's "control" (within the meanings of Sections 8-106 and
9-106 of the UCC) over any portion of the Investment Related Property
constituting Securities Accounts, Securities Entitlements or Commodities
Accounts (each as defined in the UCC); and (b) to establish the Collateral
Agent's "control" (within the meaning of Section 9-104 of the UCC) over all
Deposit Accounts.
(b) Covenant and Agreement. Each Grantor hereby covenants and agrees
with the Collateral Agent and each other Secured Party that until the payment in
full of all Secured Obligations it shall not close or terminate any Investment
Account without the prior consent of the Collateral Agent and unless a successor
or replacement account has been established with the consent of the Collateral
Agent with respect to which successor or replacement account a control agreement
has been entered into by the appropriate Grantor, Collateral Agent and
securities intermediary or depository institution at which such successor or
replacement account is to be maintained in accordance with the provisions of
Section 4.4.4(c).
(c) Delivery and Control
(i) With respect to any Investment Related Property consisting of
Securities Accounts or Securities Entitlements, it shall cause the
securities intermediary maintaining such Securities Account or Securities
Entitlement to enter into a Securities Account Control Agreement pursuant
to which it shall agree to comply with the Collateral Agent's "entitlement
orders" without further consent by such Grantor. With respect to any
Investment Related Property that is a "Deposit Account," it shall cause the
depositary institution maintaining such account to enter into a Deposit
Account Control Agreement, pursuant to which the Collateral Agent shall
have both sole dominion and control over such Deposit Account (within the
meaning of the common law) and "control" (within the meaning of Section
9-104 of the UCC) over such Deposit Account. Each Grantor shall have
entered into such control agreement or agreements with respect to: (i) any
Securities Accounts, Securities Entitlements or Deposit Accounts that exist
on the Closing Date, as of or prior to the Closing Date and (ii) any
Securities Accounts, Securities
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Entitlements or Deposit Accounts that are created or acquired after the
Closing Date, as of or prior to the deposit or transfer of any such
Securities Entitlements or funds, whether constituting moneys or
investments, into such Securities Accounts or Deposit Accounts.
(ii) In addition to the foregoing, if any issuer of any
Investment Related Property is located in a jurisdiction outside of the
United States, each Grantor shall take such additional actions, including,
without limitation, using commercially reasonable efforts to cause the
issuer to register the pledge on its books and records or making such
filings or recordings, in each case as may be necessary or advisable, under
the laws of such issuer's jurisdiction to insure the validity, perfection
and priority of the security interest of the Collateral Agent. Subject to
the provisions of the Intercreditor Agreement, upon the occurrence and
during the continuance of an Event of Default, the Collateral Agent shall
have the right, without notice to any Grantor, to transfer all or any
portion of the Investment Related Property to its name or the name of its
nominee or agent. In addition, subject to the provisions of the
Intercreditor Agreement, the Collateral Agent shall have the right at any
time during the continuance of an Event of Default, without notice to any
Grantor, to exchange any certificates or instruments representing any
Investment Related Property for certificates or instruments of smaller or
larger denominations.
4.5 Material Contracts.
(a) Covenants and Agreements. Each Grantor hereby covenants and agrees
that until the payment in full of the Secured Obligations:
(i) after the occurrence and during the continuance of an Event
of Default, the applicable Grantor shall furnish to the Collateral Agent
true and complete copies (including any amendments or supplements thereof)
of all Material Contracts to which it is a party; and
(ii) subject to the provisions of the Intercreditor Agreement,
after the occurrence and during the continuance of an Event of Default, the
Collateral Agent may upon written notice to the applicable Grantor, notify,
or require any Grantor to notify, the counterparty to make all payments
under the Material Contracts directly to the Collateral Agent.
4.6 LETTER OF CREDIT RIGHTS.
(a) Representations and Warranties. Except with respect to letters of
credit issued under the First Lien Credit Agreement, each Grantor hereby
represents and warrants on the Closing Date that:
(i) all material letters of credit to which such Grantor has
rights as the beneficiary in an amount in excess of $100,000 are listed on
Schedule 4.6 (as such schedule may be amended or supplemented from time to
time) hereto; and
(ii) it has used or will use commercially reasonable efforts to
obtain the consent of each issuer of any material letter of credit to the
assignment of the proceeds of the letter of credit to the Collateral Agent
(subject to the provisions of the Intercreditor Agreement) and such Grantor
has not consented to, and is not otherwise aware of, any Person (other than
the Collateral Agent pursuant hereto and the First Lien Collateral Agent)
having "control" (within the meaning of Section 9-107 of the UCC) over, or
any other interest in any of the Grantor's rights in respect thereof.
(b) Covenants and Agreements. Except with respect to letters of credit
issued under the First Lien Credit Agreement, each Grantor hereby covenants and
agrees that, until the payment in full of all Secured Obligations, with respect
to any material letter of credit referred to in (a)(i) above hereafter arising
it will use commercially reasonable efforts to obtain the consent of the issuer
thereof to the assignment of the proceeds of the letter of credit to the
Collateral Agent (subject to the provisions of the Intercreditor Agreement) and
shall deliver to the Collateral Agent a completed Pledge Supplement, together
with all Supplements to Schedules thereto.
4.7 INTELLECTUAL PROPERTY.
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(a) Representations and Warranties. Except as disclosed in Schedule
4.7(H) (as such schedule may be amended or supplemented from time to time), each
Grantor hereby represents and warrants on the Closing Date that:
(i) Schedule 4.7 (as such schedule may be amended or supplemented
from time to time) sets forth a true and complete list of (i) all United
States, state and foreign registrations of and applications for Patents,
Trademarks, and Copyrights owned by each Grantor and material to the
business of each Grantor and (ii) all Patent Licenses, Trademark Licenses
and Copyright Licenses material to the business of each Grantor;
(ii) it has executed and delivered to the Collateral Agent, the
applicable Grants for all Copyrights, Patents and Trademarks owned by such
Grantor, including, but not limited to, all Copyrights, Patents and
Trademarks on Schedule 4.7 (as such schedule may be amended or supplemented
from time to time);
(iii) it is the sole and exclusive owner of the entire right,
title, and interest in and to or has the valid right to use the
Intellectual Property on Schedule 4.7 (as such schedule may be amended or
supplemented from time to time) listed under its respective name, and owns
all other Intellectual Property used in or necessary to conduct its
business, as currently conducted except where the failure to own or right
to use in the aggregate could not be reasonably expected to have a Material
Adverse Effect;
(iv) its Intellectual Property is subsisting and has not been
adjudged invalid or unenforceable, in whole or in part, except as could not
reasonably be expected to have a Material Adverse Effect, and each Grantor
has performed all acts and has paid all renewal, maintenance, and other
fees and taxes required to maintain each and every registration and
application of Intellectual Property in full force and effect, except where
the failure to do so could reasonably be expected to have a Material
Adverse Effect;
(v) its Intellectual Property is valid and enforceable in all
material respects; no holding, decision, or judgment has been rendered in
any action or proceeding before any court or administrative authority
challenging the validity of, such Grantor's right to register, or such
Grantor's rights to own or use, any Intellectual Property except as could
not reasonably be expected to have a Material Adverse Effect and no such
action or proceeding is pending or, to such Grantor's knowledge,
threatened;
(vi) the conduct of its business does not infringe upon any
trademark, patent, copyright, trade secret or similar intellectual property
right owned or controlled by a third party and no written claim has been
made that the use of any material Intellectual Property owned or used by
any Grantor (or any of its respective licensees) violates the asserted
rights of any third party except, in each case, as could not reasonably be
expected to have a Material Adverse Effect; and
(vii) except for Permitted Liens or as otherwise permitted under
the Credit Agreement, each Grantor has not made a previous assignment, sale
or transfer constituting a present or future assignment, sale or transfer
of any Intellectual Property for purposes of granting a security interest
or as Collateral that has not been terminated or released. There is no
effective financing statement or other document or instrument now executed,
or on file or recorded in any public office, granting a security interest
in or otherwise encumbering any part of the Intellectual Property, other
than in favor of the Collateral Agent or Permitted Liens.
(b) Covenants and Agreements. Each Grantor hereby covenants and agrees
as follows until the payment in full of the Secured Obligations:
(i) it shall take all commercially reasonable steps in the United
States Patent and Trademark Office, the United States Copyright Office, any
state registry or any foreign counterpart of the foregoing, to pursue any
application and maintain any registration of each Trademark, Patent, and
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Copyright owned by any Grantor, the maintenance of or registration of which
is material to its business which is now or shall become included in the
Intellectual Property including, but not limited to, those items on
Schedule 4.7(A), (C) and (E) (as each may be amended or supplemented from
time to time);
(ii) it shall promptly (but, except in the case of (II) below, in
no event more than thirty (30) days after any Grantor obtains knowledge
thereof) report to the Collateral Agent (x) the filing of any application
to register any Intellectual Property with the United States Patent and
Trademark Office, the United States Copyright Office, or any state registry
or foreign counterpart of the foregoing (whether such application is filed
by such Grantor or through any agent, employee, licensee, or designee
thereof) and (y) the registration of any Intellectual Property by any such
office, in each case by executing and delivering to the Collateral Agent
(I) a completed Pledge Supplement, together with all Supplements to
Schedules thereto, and (II) upon the request of the Collateral Agent, an
applicable Grant for recordation with respect thereto in the applicable
intellectual property registries, including but not limited to the United
States Patent and Trademark Office and the United States Copyright Office,
provided, the failure of any Grantor to execute the Pledge Supplement or
submit a Grant for recordation with respect to any additional Intellectual
Property shall not impair the security interest of the Collateral Agent
therein or otherwise adversely affect the rights and remedies of the
Collateral Agent hereunder with respect thereto;
(iii) except with the prior consent of the Collateral Agent or as
permitted under the Credit Agreement, it shall not execute, and there will
not be on file in any public office, any financing statement or other
document or instruments, except financing statements or other documents or
instruments filed or to be filed in favor of the Collateral Agent and it
shall not sell, assign, transfer, license, grant any option, or create or
suffer to exist any Lien upon or with respect to the Intellectual Property,
except for Permitted Liens or as otherwise permitted under the Credit
Agreement;
(iv) it shall hereafter use commercially reasonable efforts so as
not to permit the inclusion in any contract to which it hereafter becomes a
party of any provision that could or might in any way materially impair or
prevent the creation of a security interest in, or the assignment of, such
Grantor's rights and interests in any property included within the
definitions of any Intellectual Property acquired under such contracts;
(v) it shall take all commercially reasonable steps to protect
the secrecy of all Trade Secrets relating to the products and services sold
or delivered under or in connection with the Intellectual Property,
including entering into confidentiality agreements with employees and
labeling and restricting access to secret information and documents, except
to the extent that a Trade Secret is no longer material or necessary to the
business of such Grantor;
(vi) it shall continue to collect, at its own expense, all
amounts due or to become due to such Grantor in respect of the Intellectual
Property or any portion thereof. In connection with such collections, any
Grantor may take (and, at the Collateral Agent's reasonable direction,
shall take) such action as such Grantor or, subject to the Intercreditor
Agreement, after the occurrence and during the continuance of an Event of
Default, the Collateral Agent may deem reasonably necessary or advisable to
enforce collection of such amounts. Notwithstanding the foregoing, the
Collateral Agent shall have the right at any time after the occurrence and
during the continuance of an Event of Default, to notify, or require any
Grantor to notify, any obligors with respect to any such amounts of the
existence of the security interest created hereby.
4.8 COMMERCIAL TORT CLAIMS
(a) Representations and Warranties. Each Grantor hereby represents and
warrants on the Closing Date that Schedule 4.8 (as such schedule may be amended
or supplemented from time to time) sets forth all Commercial Tort Claims in
excess of $250,000 individually or $1,000,000 in the aggregate of each Grantor;
and
(b) Covenants and Agreements. Each Grantor hereby covenants and agrees
that until the payment in full of the Secured Obligations with respect to any
Commercial Tort Claim in excess of $250,000 individually or $1,000,000 in the
aggregate hereafter arising it shall deliver to the Collateral Agent a completed
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Pledge Supplement, together with all Supplements to Schedules thereto,
identifying such new Commercial Tort Claims.
SECTION 5. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL
GRANTORS.
5.1 ACCESS; RIGHT OF INSPECTION. The Collateral Agent shall at reasonable
times with reasonable notice have full and free access during normal business
hours and without unreasonable disruption of business to all the books,
correspondence and records of each Grantor, and the Collateral Agent and its
representatives may examine the same, take extracts therefrom and make
photocopies thereof, and each Grantor agrees to render to the Collateral Agent,
at such Grantor's cost and expense, such clerical and other assistance as may be
reasonably requested with regard thereto. The Collateral Agent and its
representatives shall at reasonable times with reasonable notice also have the
right during normal business hours and without unreasonable disruption of
business to enter any premises of each Grantor and inspect any property of each
Grantor where any of the Collateral of such Grantor granted pursuant to this
Agreement is located for the purpose of inspecting or exhibiting the same,
observing its use or otherwise protecting its interests therein. The Collateral
Agent shall (and shall cause all of its representatives to) keep all information
regarding the Grantors or obtained from any of the Grantors confidential in
accordance with Section 10.17 of the Credit Agreement.
5.2 Further Assurances.
(a) Each Grantor agrees that from time to time, at the expense of such
Grantor, that it shall promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that the Collateral Agent may reasonably request, in order to create and/or
maintain the validity, perfection or priority of and protect any security
interest granted or purported to be granted hereby or to enable the Collateral
Agent to exercise and enforce its rights and remedies hereunder with respect to
any Collateral. Without limiting the generality of the foregoing, each Grantor
shall:
(i) file such financing or continuation statements, or amendments
thereto, and execute and deliver such other agreements, instruments,
endorsements, powers of attorney or notices, as may be necessary or
desirable, or as the Collateral Agent may reasonably request, in order to
perfect and preserve the security interests granted or purported to be
granted hereby;
(ii) take all actions necessary to ensure the recordation of
appropriate evidence of the liens and security interest granted hereunder
in the Intellectual Property with any intellectual property registry in the
United States which said Intellectual Property is registered or in which an
application for registration is pending including, without limitation, the
United States Patent and Trademark Office, the United States Copyright
Office, the various Secretaries of State, and the foreign counterparts of
any of the foregoing; and
(iii) at the Collateral Agent's request, appear in and defend any
action or proceeding that may affect such Grantor's title to or the
Collateral Agent's security interest in all or any part of the Collateral.
(b) Each Grantor hereby authorizes the Collateral Agent to file a
Record or Records, including, without limitation, financing or continuation
statements, and amendments thereto, in any jurisdictions and with any filing
offices as the Collateral Agent may determine, in its sole discretion, are
necessary or advisable to perfect the security interest granted to the
Collateral Agent herein. 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 as
the Collateral Agent may determine, in its sole discretion, is necessary,
advisable or prudent to ensure the perfection of the security interest in the
Collateral granted to the Collateral Agent herein, including, without
limitation, describing such property as "all assets" or "all personal property,
whether now owned or hereafter acquired." Each Grantor shall furnish to the
Collateral Agent from time to time statements and schedules further identifying
and describing the Collateral and such other reports in connection with the
Collateral as the Collateral Agent may reasonably request, all in reasonable
detail.
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(c) Each Grantor hereby authorizes the Collateral Agent to modify this
Agreement after obtaining such Grantor's approval of or signature to such
modification by amending Schedule 4.7 (as such schedule may be amended or
supplemented from time to time) to include reference to any right, title or
interest in any existing Intellectual Property or any Intellectual Property
acquired or developed by any Grantor after the execution hereof or to delete any
reference to any right, title or interest in any Intellectual Property in which
any Grantor no longer has or claims any right, title or interest.
5.3 ADDITIONAL GRANTORS. From time to time subsequent to the date hereof,
additional Persons may become parties hereto as additional Grantors (each, an
"ADDITIONAL GRANTOR"), by executing a Counterpart Agreement. Upon delivery of
any such counterpart agreement to the Collateral Agent, notice of which is
hereby waived by Grantors, each Additional Grantor shall be a Grantor and shall
be as fully a party hereto as if Additional Grantor were an original signatory
hereto. Each Additional Grantor shall deliver to the Collateral Agent, together
with such Counterpart Agreement, a completed Pledge Supplement, together with
all Supplements to Schedules thereto, reflecting all personal property to which
it has rights that will be deemed Collateral pursuant to Section 2.1. Each
Grantor expressly agrees that its obligations arising hereunder shall not be
affected or diminished by the addition or release of any other Grantor
hereunder, nor by any election of the Collateral Agent not to cause any
Subsidiary of the Company to become an Additional Grantor hereunder. This
Agreement shall be fully effective as to any Grantor that is or becomes a party
hereto regardless of whether any other Person becomes or fails to become or
ceases to be a Grantor hereunder.
SECTION 6. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT.
6.1 POWER OF ATTORNEY. Each Grantor hereby irrevocably appoints the
Collateral Agent (such appointment being coupled with an interest) as such
Grantor's attorney-in-fact, with full authority in the place and stead of such
Grantor and in the name of such Grantor, the Collateral Agent or otherwise, from
time to time in the Collateral Agent's reasonable discretion to take any action
and to execute any instrument that the Collateral Agent may deem reasonably
necessary or advisable to accomplish the purposes of this Agreement in each
case, subject to the provisions of the Intercreditor Agreement, including,
without limitation, the following:
(a) upon the occurrence and during the continuance of any Event of
Default, to obtain and adjust insurance required to be maintained by such
Grantor or paid to the Collateral Agent pursuant to the Credit Agreement;
(b) upon the occurrence and during the continuance of any Event of
Default, to ask for, demand, collect, ▇▇▇ for, recover, compound, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(c) upon the occurrence and during the continuance of any Event of
Default, to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clause (b) above;
(d) upon the occurrence and during the continuance of any Event of
Default, to file any claims or take any action or institute any proceedings that
the Collateral Agent may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Collateral Agent
with respect to any of the Collateral;
(e) to prepare and file any UCC financing statements against such
Grantor as debtor;
(f) to prepare, sign, and file for recordation in any intellectual
property registry, appropriate evidence of the lien and security interest
granted herein in the Intellectual Property in the name of such Grantor as
assignor;
(g) upon the occurrence and during the continuance of any Event of
Default, to take or cause to be taken all actions necessary to perform or comply
or cause performance or compliance with the terms of this Agreement, including,
without limitation, to pay or discharge taxes or Liens (other than Permitted
Liens) levied or
22
placed upon or threatened against the Collateral, the legality or validity
thereof and the amounts necessary to discharge the same to be determined by the
Collateral Agent in its sole discretion, any such payments made by the
Collateral Agent to become obligations of such Grantor to the Collateral Agent,
due and payable immediately without demand; and
(h) upon the occurrence and during the continuance of any Event of
Default, generally to sell, transfer, pledge, make any agreement with respect to
or otherwise deal with any of the Collateral as fully and completely as though
the Collateral Agent were the absolute owner thereof for all purposes, and to
do, at the Collateral Agent's option and such Grantor's expense, at any time or
from time to time, all acts and things that the Collateral Agent deems
reasonably necessary to protect, preserve or realize upon the Collateral and the
Collateral Agent's security interest therein in accordance with the terms of
this Agreement, all as fully and effectively as such Grantor might do.
6.2 NO DUTY ON THE PART OF COLLATERAL AGENT OR SECURED PARTIES. The powers
conferred on the Collateral Agent hereunder are solely to protect the interests
of the Secured Parties in the Collateral and shall not impose any duty upon the
Collateral Agent or any Secured Party to exercise any such powers. The
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 or their Affiliates' officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their gross negligence or willful misconduct.
SECTION 7. REMEDIES.
7.1 GENERALLY. Subject to the provisions of the Intercreditor Agreement:
(a) If any Event of Default shall have occurred and be continuing, the
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 at
law or in equity, all the rights and remedies of a secured party under the UCC
(whether or not the UCC applies to the affected Collateral) to collect, enforce
or satisfy any Secured Obligations then owing, whether by acceleration or
otherwise, and also may pursue any of the following separately, successively or
simultaneously:
(i) require any Grantor to, and each Grantor hereby agrees that
it shall at its expense and promptly upon request of the Collateral Agent
forthwith, assemble all or part of the Collateral as directed by the
Collateral Agent and make it available to the Collateral Agent at a place
to be designated by the Collateral Agent that is reasonably convenient to
both parties;
(ii) enter onto the property where any Collateral is located and
take possession thereof with or without judicial process;
(iii) prior to the disposition of the Collateral, store, process,
repair or recondition the Collateral or otherwise prepare the Collateral
for disposition in any manner to the extent the Collateral Agent deems
appropriate; and
(iv) without notice except as specified below or under the UCC,
sell, assign, lease, license (on an exclusive or nonexclusive basis) or
otherwise dispose of the Collateral or any part thereof in one or more
parcels at public or private sale, at any of the Collateral Agent's offices
or elsewhere, for cash, on credit or for future delivery, at such time or
times and at such price or prices and upon such other terms as the
Collateral Agent may deem commercially reasonable.
(b) The Collateral Agent or any Secured Party may be the purchaser of
any or all of the Collateral at any public or private (to the extent such
portion of the Collateral being privately sold is of a kind that is customarily
sold on a recognized market or the subject of widely distributed standard price
quotations) sale in accordance with the UCC and the Collateral Agent, as
collateral agent for and representative of the Secured Parties, shall be
entitled, for the purpose of bidding and making settlement or payment of the
purchase price for all or any portion of the Collateral sold at any such sale
made in accordance with the UCC, to use and apply any of the
23
Secured Obligations as a credit on account of the purchase price for any
Collateral payable by the Collateral Agent at such sale. 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 applicable law) all rights of redemption, stay and/or appraisal
which it now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. Each Grantor agrees that, to the
extent notice of sale shall be required by law, at least ten (10) 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
Collateral Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The 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. Each Grantor agrees that it would
not be commercially unreasonable for the Collateral Agent to dispose of the
Collateral or any portion thereof by using Internet sites that provide for the
auction of assets of the types included in the Collateral or that have the
reasonable capability of doing so, or that match buyers and sellers of assets.
Each Grantor hereby waives any claims against the Collateral Agent and the
Secured Parties 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
which might have been obtained at a public sale, even if the Collateral Agent
accepts the first offer received and does not offer such Collateral to more than
one offeree. If the proceeds of any sale or other disposition of the Collateral
are insufficient to pay all the Secured Obligations, Grantors shall be liable
for the deficiency and the reasonable fees of any attorneys employed by the
Collateral Agent to collect such deficiency. Each Grantor further agrees that a
breach of any of the covenants contained in this Section will cause irreparable
injury to the Collateral Agent, that the Collateral Agent has no adequate remedy
at law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section shall be specifically enforceable against
such Grantor, and such Grantor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants except for
a defense that no default has occurred giving rise to the Secured Obligations
becoming due and payable prior to their stated maturities. Nothing in this
Section shall in any way alter the rights of the Collateral Agent hereunder.
(c) The Collateral Agent may sell the Collateral without giving any
warranties as to the Collateral. The Collateral Agent may specifically disclaim
or modify any warranties of title or the like. This procedure will not be
considered to adversely effect the commercial reasonableness of any sale of the
Collateral.
(d) The Collateral Agent shall have no obligation to marshal any of
the Collateral.
7.2 APPLICATION OF PROCEEDS. Except as expressly provided elsewhere in this
Agreement, and subject to the provisions of the Intercreditor Agreement, all
proceeds received by the Collateral Agent in respect of any sale, any collection
from, or other realization upon all or any part of the Collateral shall be
applied in full or in part by the Collateral Agent against, the Secured
Obligations in the following order of priority: first, to the payment of all
reasonable costs and expenses of such sale, collection or other realization,
including reasonable out-of-pocket expenses of the Collateral Agent paid or
payable to its agents and counsel, and all other expenses, liabilities and
advances made or incurred by the Collateral Agent in connection therewith, and
all amounts for which the Collateral Agent is entitled to indemnification
hereunder (in its capacity as the Collateral Agent and not as a Lender) and all
advances made by the Collateral Agent hereunder for the account of the
applicable Grantor, and to the payment of all costs and expenses paid or
incurred by the Collateral Agent in connection with the exercise of any right or
remedy hereunder or under the Credit Agreement, all in accordance with the terms
hereof or thereof; second, to the extent of any excess of such proceeds, to the
payment of all other Secured Obligations for the ratable benefit of the Lenders
and the Lender Counterparties; and third, to the extent of any excess of such
proceeds, to the payment to or upon the order of such Grantor or to whosoever
may be lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
7.3 SALES ON CREDIT. If Collateral Agent sells any of the Collateral upon
credit, Grantor will be credited only with payments actually made by purchaser
and received by Collateral Agent and applied to indebtedness of the purchaser.
In the event the purchaser fails to pay for the Collateral, Collateral Agent may
resell the Collateral and Grantor shall be credited with proceeds of the sale.
7.4 DEPOSIT ACCOUNTS.
24
Subject to the provisions of the Intercreditor Agreement, if any Event of
Default shall have occurred and be continuing, the Collateral Agent may apply
the balance from any Deposit Account or instruct the bank at which any Deposit
Account is maintained to pay the balance of any Deposit Account to or for the
benefit of the Collateral Agent.
7.5 INVESTMENT RELATED PROPERTY.
Each Grantor recognizes that, by reason of certain prohibitions contained
in the Securities Act and applicable state securities laws, the Collateral Agent
may be compelled, with respect to any sale of all or any part of the Investment
Related Property conducted without prior registration or qualification of such
Investment Related Property under the Securities Act and/or such state
securities laws, to limit purchasers to those who will agree, among other
things, to acquire the Investment Related Property for their own account, for
investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges that any such private sale may be at prices and on terms
less favorable than those obtainable through a public sale without such
restrictions (including a public offering made pursuant to a registration
statement under the Securities Act) and, notwithstanding such circumstances,
each Grantor agrees that any such private sale shall be deemed to have been made
in a commercially reasonable manner and that the Collateral Agent shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Investment Related Property for the period of time necessary to permit the
issuer thereof to register it for a form of public sale requiring registration
under the Securities Act or under applicable state securities laws, even if such
issuer would, or should, agree to so register it. If the Collateral Agent
determines to exercise its right to sell any or all of the Investment Related
Property, upon written request, each Grantor shall and shall cause each issuer
of any Pledged Stock to be sold hereunder, each partnership and each limited
liability company from time to time to furnish to the Collateral Agent all such
information as the Collateral Agent may request in order to determine the number
and nature of interest, shares or other instruments included in the Investment
Related Property which may be sold by the Collateral Agent in exempt
transactions under the Securities Act and the rules and regulations of the
Securities and Exchange Commission thereunder, as the same are from time to time
in effect.
7.6 INTELLECTUAL PROPERTY.
(a) Anything contained herein to the contrary notwithstanding, but
subject to the provisions of the Intercreditor Agreement, upon the occurrence
and during the continuation of an Event of Default:
(i) the Collateral Agent shall have the right (but not the
obligation) to bring suit or otherwise commence any action or proceeding in
the name of any Grantor, the Collateral Agent or otherwise, in the
Collateral Agent's sole discretion, to enforce any Intellectual Property,
in which event such Grantor shall, at the request of the Collateral Agent,
do any and all lawful acts and execute any and all documents required by
the Collateral Agent in aid of such enforcement and such Grantor shall
promptly, upon demand, reimburse and indemnify the Collateral Agent and the
Secured Parties as provided in Section 10 hereof in connection with the
exercise of its rights under this Section, and, to the extent that the
Collateral Agent shall elect not to bring suit to enforce any Intellectual
Property as provided in this Section, each Grantor agrees to use all
commercially reasonable efforts, whether by action, suit, proceeding or
otherwise, to prevent the infringement of any of the Intellectual Property
by others;
(ii) upon written demand from the Collateral Agent, each Grantor
shall grant, assign, convey or otherwise transfer to the Collateral Agent
an absolute assignment of all of such Grantor's right, title and interest
in and to the Intellectual Property and shall execute and deliver to the
Collateral Agent such documents as are necessary or appropriate to carry
out the intent and purposes of this Agreement;
(iii) each Grantor agrees that such an assignment and/or
recording shall be applied to reduce the Secured Obligations outstanding
only to the extent that the Collateral Agent (or any Secured Party)
receives cash proceeds in respect of the sale of, or other realization
upon, the Intellectual Property;
(iv) within five (5) Business Days after written notice from the
Collateral Agent, each Grantor shall make available to the Collateral
Agent, to the extent within such Grantor's power and
25
authority, such personnel in such Grantor's employ on the date of such
Event of Default as the Collateral Agent may reasonably designate, by name,
title or job responsibility, to permit such Grantor to continue, directly
or indirectly, to produce, advertise and sell the products and services
sold or delivered by such Grantor under or in connection with the
Trademarks or Trademark Licenses, such persons to be available to perform
their prior functions on the Collateral Agent's behalf and to be
compensated by the Collateral Agent at such Grantor's expense on a per
diem, pro-rata basis consistent with the salary and benefit structure
applicable to each as of the date of such Event of Default; and
(v) the Collateral Agent shall have the right to notify, or
require each Grantor to notify, any obligors with respect to amounts due or
to become due to such Grantor in respect of the Intellectual Property, of
the existence of the security interest created herein, to direct such
obligors to make payment of all such amounts directly to the Collateral
Agent, and, upon such notification and at the expense of such Grantor, to
enforce collection of any such amounts and to adjust, settle or compromise
the amount or payment thereof, in the same manner and to the same extent as
such Grantor might have done.
(b) If (i) an Event of Default shall have occurred and, by reason of
cure, waiver, modification, amendment or otherwise, no longer be continuing,
(ii) no other Event of Default shall have occurred and be continuing, (iii) an
assignment or other transfer to the Collateral Agent of any rights, title and
interests in and to the Intellectual Property shall have been previously made
and shall have become absolute and effective, and (iv) the Secured Obligations
shall not have become immediately due and payable, upon the written request of
any Grantor, the Collateral Agent shall promptly execute and deliver to such
Grantor, at such Grantor's sole cost and expense, such assignments or other
transfer as may be necessary to reassign to such Grantor any such rights, title
and interests as may have been assigned to the Collateral Agent as aforesaid,
subject to any disposition thereof that may have been made by the Collateral
Agent; provided, after giving effect to such reassignment, the Collateral
Agent's security interest granted pursuant hereto, as well as all other rights
and remedies of the Collateral Agent granted hereunder, shall continue to be in
full force and effect; and provided further, the rights, title and interests so
reassigned shall be free and clear of any other Liens granted by or on behalf of
the Collateral Agent and the Secured Parties.
(c) Solely for the purpose of enabling the Collateral Agent to
exercise rights and remedies under this Section 7 after an Event of Default has
occurred and is continuing and at such time as the Collateral Agent shall be
entitled under the terms of the Intercreditor Agreement and lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants so long as an
Event of Default has occurred and is continuing, to the Collateral Agent, to the
extent it has the right to do so, an irrevocable, nonexclusive license
(exercisable without payment of royalty or other compensation to such Grantor),
subject, in the case of Trademarks, to the grant of sufficient rights to quality
control and inspection in favor of such Grantor to avoid the risk of
invalidation of said Trademarks, to use, operate under, license, or sublicense
any Intellectual Property now owned or hereafter acquired by such Grantor, and
wherever the same may be located.
7.7 CASH PROCEEDS. In addition to the rights of the Collateral Agent
specified in Section 4.3 with respect to payments of Receivables and Section
7.6(a)(v) with respect to payments in respect of Intellectual Property, all
proceeds of any Collateral received by any Grantor consisting of cash, checks
and other near-cash items (collectively, "CASH PROCEEDS") (i) except as
specified in clause (ii), shall be applied by such Grantor in a manner not
inconsistent with the Credit Agreement and the Intercreditor Agreement, and (ii)
if an Event of Default shall have occurred and be continuing, subject to the
provisions of the Intercreditor Agreement shall be held by such Grantor in trust
for the Collateral Agent, and if so directed by the Collateral Agent in writing,
shall segregate such Cash Proceeds from other funds of such Grantor, and shall,
following receipt of such written direction, forthwith upon receipt by such
Grantor, turn over to the Collateral Agent such Cash Proceeds in the exact form
received by such Grantor (duly indorsed by such Grantor to the Collateral Agent,
if required), which Cash Proceeds may, in the sole discretion of the Collateral
Agent, (A) be held by the Collateral Agent for the ratable benefit of the
Secured Parties, as collateral security for the Secured Obligations (whether
matured or unmatured) and/or (B) then or at any time thereafter may be applied
by the Collateral Agent against the Secured Obligations then due and owing.
SECTION 8. COLLATERAL AGENT.
26
The Collateral Agent has been appointed to act as Collateral Agent
hereunder and under the Intercreditor Agreement by Lenders and, by their
acceptance of the benefits hereof, the other Secured Parties. Subject to the
provisions of the Intercreditor Agreement, the 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, without limitation, the release or substitution of
Collateral), solely in accordance with this Agreement, the Credit Agreement and
the Intercreditor Agreement; provided, the Collateral Agent shall, after payment
in full of all Obligations under the Credit Agreement and the other Credit
Documents, exercise, or refrain from exercising, any remedies provided for
herein in accordance with the instructions of the holders of a majority of the
aggregate notional amount (or, with respect to any Hedge Agreement that has been
terminated in accordance with its terms, the amount then due and payable
(exclusive of expenses and similar payments but including any early termination
payments then due) under such Hedge Agreement) under all Hedge Agreements. In
furtherance of the foregoing provisions of this Section, 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 Collateral Agent for the benefit of
Secured Parties in accordance with the terms of this Section. Collateral Agent
shall at all times be the same Person that is Administrative Agent under the
Credit Agreement. Written notice of resignation by Administrative Agent pursuant
to subsection 9.7 of the Credit Agreement shall also constitute notice of
resignation as Collateral Agent under this Agreement; removal of Administrative
Agent pursuant to Section 9.7 of the Credit Agreement shall also constitute
removal of Collateral Agent under this Agreement and appointment of a successor
Administrative Agent pursuant to subsection 9.7 of the Credit Agreement shall
also constitute appointment of a successor Collateral Agent under this
Agreement. Upon the acceptance of any appointment as Administrative Agent under
subsection 9.7 of the Credit Agreement by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Collateral Agent
under this Agreement. Upon the acceptance of any appointment as Collateral Agent
hereunder by a successor Collateral Agent, that successor Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring or removed Collateral Agent under this Agreement, and
the retiring or removed Collateral Agent under this Agreement shall promptly (i)
transfer to such successor 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 Collateral Agent under this Agreement, and (ii) execute and deliver to
such successor 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
Collateral Agent of the security interests created hereunder, whereupon such
retiring or removed Collateral Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring or removed Collateral
Agent's resignation or removal hereunder as the Collateral Agent, the provisions
of this Agreement shall inure to its benefit as to any actions taken or omitted
to be taken by it under this Agreement while it was the Collateral Agent
hereunder.
SECTION 9. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS.
This Agreement shall create a continuing security interest in the
Collateral and shall remain in full force and effect until the payment in full
of all Secured Obligations, be binding upon each Grantor, its successors and
assigns, and inure, together with the rights and remedies of the Collateral
Agent hereunder, to the benefit of the Collateral Agent and its successors,
transferees and assigns for the benefit and on behalf of the Secured Parties.
Without limiting the generality of the foregoing, but subject to the terms of
the Credit Agreement, any Lender may assign or otherwise transfer any Loans held
by it to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to Lenders herein or otherwise.
Upon the payment in full of all Secured Obligations, the security interest
granted hereby shall terminate hereunder and of record and all rights to the
Collateral shall revert to Grantors. Upon any such termination the Collateral
Agent shall, at Grantors' expense, reasonably promptly upon request by Grantor,
execute and deliver to Grantors such documents as Grantors shall reasonably
request to evidence such termination.
If any of the Collateral shall be sold, transferred or otherwise disposed
of by any Grantor in a transaction permitted by the Credit Agreement, then the
Collateral Agent, at the request and sole expense of such Grantor, shall execute
and deliver to such Grantor all releases or other documents reasonably necessary
or desirable for the release of the Liens created hereby or by any other Credit
Document on such Collateral. In the case of any such sale,
27
transfer or disposal of any property constituting Collateral in a transaction
not constituting an "Asset Sale" under (and as defined in the Credit Agreement)
the Liens created hereby on such property shall be automatically released
(without need for further action by any person or entity). At the request and
sole expense of the Company, a Guarantor Subsidiary shall be released from its
obligations hereunder and under any other Credit Document in the event that all
the Capital Stock or substantially all of the assets of such Subsidiary
Guarantor shall be sold, transferred or otherwise disposed of in a transaction
permitted by the Credit Agreement (including by way of merger or consolidation).
SECTION 10. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM.
The powers conferred on the Collateral Agent hereunder are solely to
protect its interest, for the benefit and on behalf of the Secured Parties, in
the Collateral and shall not impose any duty upon it to exercise any such
powers. Except for the exercise of reasonable care in the custody of any
Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Collateral Agent shall have no duty as to any Collateral or as
to the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral. The Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which the Collateral Agent accords its own property.
Neither the Collateral Agent nor any of its directors, officers, employees or
agents shall be liable for failure to take or delay in taking action under this
Agreement except to the extent such delay or failure arises from the gross
negligence or willful misconduct of the Collateral Agent or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
any Grantor or otherwise. If any Grantor fails to perform any agreement
contained herein, the Collateral Agent may so long as an Event of Default has
occurred and is continuing itself perform, or cause performance of, such
agreement, and the expenses of the Collateral Agent incurred in connection
therewith shall be payable by each Grantor under Section 10.2 of the Credit
Agreement.
SECTION 11. MISCELLANEOUS.
Any notice required or permitted to be given under this Agreement shall be
given in accordance with Section 10.1 of the Credit Agreement. No failure or
delay on the part of the Collateral Agent in the exercise of any power, right or
privilege hereunder or under any other Credit Document shall impair such power,
right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power,
right or privilege. All rights and remedies existing under this Agreement and
the other Credit Documents are cumulative to, and not exclusive of, any rights
or remedies otherwise available. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or would otherwise be within the limitations of, another covenant
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists. This Agreement shall be binding upon and
inure to the benefit of the Collateral Agent and Grantors and their respective
successors and assigns. No Grantor shall, without the prior written consent of
the Collateral Agent given in accordance with the Credit Agreement, assign any
right, duty or obligation hereunder. This Agreement and the other Credit
Documents embody the entire agreement and understanding between Grantors and the
Collateral Agent and supersede all prior agreements and understandings between
such parties relating to the subject matter hereof and thereof. Accordingly, the
Credit Documents may not be contradicted by evidence of prior, contemporaneous
or subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
28
CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE
NEW YORK GENERAL OBLIGATION LAWS).
SECTION 12. INTERCREDITOR AGREEMENT.
(a) Prior to the First Lien Obligations (as such term is defined in
the Intercreditor Agreement) being paid in full, the requirements of this
Agreement to deliver Collateral to Collateral Agent hereunder shall be deemed
satisfied by delivery of such Collateral to First Lien Collateral Agent or to
any other person acting as agent for Collateral Agent.
(b) Prior to the First Lien Obligations (as such term is defined in
the Intercreditor Agreement) being paid in full, the requirements of this
Agreement to hold or "control" (within the meaning of Sections 8-106, 9-104 or
9-106 of the UCC) Collateral for, on behalf of or for the account of Collateral
Agent hereunder shall be deemed satisfied if such Collateral is held or
controlled for, on behalf of or for the account of First Lien Collateral Agent
or by any other person acting as agent for Collateral Agent.
(c) Except as otherwise specifically provided herein, the provisions
set forth in the Intercreditor Agreement shall operate either as additions to or
modifications of the obligations of the parties hereunder, as the context may
require. In the event of any conflict between this Agreement and the
Intercreditor Agreement, the provisions of the Intercreditor Agreement shall
prevail.
29
IN WITNESS WHEREOF, each Grantor and the Collateral Agent have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
AUTOCAM CORPORATION
AUTOCAM-PAX, INC.
AUTOCAM SOUTH CAROLINA, INC.
AUTOCAM GREENVILLE, INC.
AUTOCAM ACQUISITION, INC.
AUTOCAM LASER TECHNOLOGIES, INC.
AUTOCAM-HAR, INC.
AUTOCAM INTERNATIONAL, LTD.
AUTOCAM INTERNATIONAL SALES CORPORATION
TITAN HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer and Secretary
S-1
THE BANK OF NEW YORK,
as the Collateral Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-2
AUTOCAM EUROPE, B.V.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, on behalf of
Autocam Corporation
Title: Managing Director
S-3
EXHIBIT A
TO PLEDGE AND SECURITY AGREEMENT
FORM OF PLEDGE SUPPLEMENT
This PLEDGE SUPPLEMENT, dated [mm/dd/yy], is delivered by [NAME OF GRANTOR]
a [NAME OF STATE OF INCORPORATION] [Corporation] (the "GRANTOR") pursuant to the
Pledge and Security Agreement, dated as of December 22, 2005 (as it may be from
time to time amended, restated, modified or supplemented, the "SECURITY
AGREEMENT"), among AUTOCAM CORPORATION, TITAN HOLDINGS, INC. and the other
Grantors named therein, and THE BANK OF NEW YORK, as the Collateral Agent.
Capitalized terms used herein not otherwise defined herein shall have the
meanings ascribed thereto in the Security Agreement.
Grantor hereby confirms the grant to the Collateral Agent set forth in the
Security Agreement of, and does hereby grant to the Collateral Agent, a security
interest in all of Grantor's right, title and interest in and to all Collateral
to secure the Secured Obligations, in each case whether now or hereafter
existing or in which Grantor now has or hereafter acquires an interest and
wherever the same may be located. Grantor represents and warrants that the
attached Supplements to Schedules accurately and completely set forth all
additional information required pursuant to the Security Agreement and hereby
agrees that such Supplements to Schedules shall constitute part of the Schedules
to the Security Agreement.
IN WITNESS WHEREOF, Grantor has caused this Pledge Supplement to be duly
executed and delivered by its duly authorized officer as of [MM/DD/YY].
[NAME OF GRANTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-1
EXHIBIT B TO
PLEDGE AND SECURITY AGREEMENT
[FORM OF GRANT OF TRADEMARK SECURITY INTEREST]
GRANT OF TRADEMARK SECURITY INTEREST
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST
GRANTED TO THE COLLATERAL AGENT PURSUANT TO THIS GRANT OF TRADEMARK SECURITY
INTEREST AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT
HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT, DATED AS
OF DECEMBER 22, 2005 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME, THE "INTERCREDITOR AGREEMENT"), BY AND AMONG AUTOCAM
CORPORATION, A MICHIGAN CORPORATION, CITICORP NORTH AMERICA, INC., AS FIRST LIEN
COLLATERAL AGENT, THE BANK OF NEW YORK, AS SECOND LIEN COLLATERAL AGENT, AND
CERTAIN OTHER PERSONS PARTY THERETO OR THAT MAY BECOME PARTY THERETO FROM TIME
TO TIME. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR
AGREEMENT AND THIS GRANT OF TRADEMARK SECURITY INTEREST, THE TERMS OF THE
INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL AS BETWEEN THE FIRST LIEN
COLLATERAL AGENT AND THE COLLATERAL AGENT.
WHEREAS, [NAME OF GRANTOR], a ___________ corporation ("GRANTOR"),
owns and uses in its business, and will in the future adopt and so use, various
intangible assets, including the Trademark Collateral (as defined below); and
WHEREAS, Autocam Corporation, a Michigan corporation ("COMPANY"), and
Titan Holdings, Inc., a Delaware corporation, have entered into a Term Loan and
Guaranty Agreement dated as of December 22, 2005 (said Term Loan and Guaranty
Agreement, as it may heretofore have been and as it may hereafter be further
amended, restated, supplemented or otherwise modified from time to time, being
the "CREDIT AGREEMENT") with the financial institutions named therein
(collectively, together with their respective successors and assigns party to
the Credit Agreement from time to time, the "LENDERS"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Partners L.P., as Syndication Agent, and The Bank of New York, as Administrative
Agent for the Lenders pursuant to which Lenders have made certain commitments,
subject to the terms and conditions set forth in the Credit Agreement, to extend
certain credit facilities to Company; and
WHEREAS, Company may from time to time enter, or may from time to time
have entered, into one or more interest rate swap agreement or currency swap
agreement or other similar agreements or arrangements (collectively, the "HEDGE
AGREEMENTS") with one or more Persons that are Lenders or Affiliates of Lenders
at the time such Hedge Agreements are entered into (in such capacity,
collectively, "LENDER COUNTERPARTIES"); and
[Insert if Grantor is a Subsidiary:] [WHEREAS, pursuant to Section 7
of the Credit Agreement, Grantor has guaranteed the prompt payment and
performance when due of all obligations of Company under the Credit Agreement
and the other Credit Documents and all obligations of Company under the Hedge
Agreements, including, without limitation, the obligation of Company to make
payments thereunder in the event of early termination thereof; and]
WHEREAS, pursuant to the terms of a Pledge and Security Agreement
dated as of December 22, 2005 (said Pledge and Security Agreement, as it may
heretofore have been and as it may hereafter be further amended, restated,
supplemented or otherwise modified from time to time, being the "SECURITY
AGREEMENT"; the capitalized terms used in this Grant of Trademark Security
Interest not otherwise defined herein shall have the respective meanings given
thereto in the Security Agreement), among Grantor, Collateral Agent and the
other grantors named therein, Grantor has created in favor of Secured Party a
security interest in, and Secured Party has become a secured creditor with
respect to, the Trademark Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, subject to the terms and
conditions of the Security Agreement, to evidence further the security
interest granted by Grantor to Secured Party pursuant to the Security
Agreement, Grantor hereby grants to Secured Party a security interest in
all of Grantor's right, title and interest in and to the following, in each
case whether now or hereafter existing or in which Grantor now has or
hereafter acquires an interest and wherever the same may be located (the
"TRADEMARK COLLATERAL"):
(i) all rights, title and interest (including rights acquired pursuant
to a license or otherwise) in and to all United States, and foreign
trademarks, trade names, corporate names, company names, business names,
fictitious
B-1
business names, Internet domain names, service marks, certification marks,
collective marks, logos, other source or business identifiers, designs and
general intangibles of a like nature, all registrations and applications
for any of the foregoing including, but not limited to: (a) the
registrations and applications referred to in Schedule A annexed hereto,
(b) all extensions or renewals of any of the foregoing, (c) all of the
goodwill of the business connected with the use of and symbolized by the
foregoing, and (d) the right to ▇▇▇ for past, present and future
infringement or dilution of any of the foregoing or for any injury to
goodwill; and
(ii) all proceeds, products, accessions, rents and profits of or from
any and all of the foregoing Trademark Collateral, including, without
limitation, licenses, royalties, income, payments, claims, damages, and
proceeds of suit. For purposes of this Grant of Trademark Security
Interest, the term "PROCEEDS" includes whatever is receivable or received
when Trademark Collateral or proceeds are sold, licensed, exchanged,
collected or otherwise disposed of, whether such disposition is voluntary
or involuntary.
Grantor does hereby further acknowledge and affirm that the rights and remedies
of Collateral Agent with respect to the security interest in the Trademark
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which are incorporated by reference herein as if
fully set forth herein.
[The remainder of this page is intentionally left blank.]
B-2
IN WITNESS WHEREOF, Grantor has caused this Grant of Trademark Security
Interest to be duly executed and delivered by its officer thereunto duly
authorized as of the __ day of _______, _____.
[NAME OF GRANTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-3
SCHEDULE A
TO
GRANT OF TRADEMARK SECURITY INTEREST
Trademark Registration/Appl. Registration/Appl.
Owner Description Number Date
----- ----------- ------------------ ------------------
B-A-1
EXHIBIT C TO
SECURITY AGREEMENT
[FORM OF GRANT OF COPYRIGHT SECURITY INTEREST]
GRANT OF COPYRIGHT SECURITY INTEREST
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST
GRANTED TO THE COLLATERAL AGENT PURSUANT TO THIS GRANT OF COPYRIGHT SECURITY
INTEREST AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT
HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT, DATED AS
OF DECEMBER 22, 2005 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME, THE "INTERCREDITOR AGREEMENT"), BY AND AMONG AUTOCAM
CORPORATION, A MICHIGAN CORPORATION, CITICORP NORTH AMERICA, INC., AS FIRST LIEN
COLLATERAL AGENT, THE BANK OF NEW YORK, AS SECOND LIEN COLLATERAL AGENT, AND
CERTAIN OTHER PERSONS PARTY THERETO OR THAT MAY BECOME PARTY THERETO FROM TIME
TO TIME. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR
AGREEMENT AND THIS GRANT OF COPYRIGHT SECURITY INTEREST, THE TERMS OF THE
INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL AS BETWEEN THE FIRST LIEN
COLLATERAL AGENT AND THE COLLATERAL AGENT.
WHEREAS, [NAME OF GRANTOR], a ___________ corporation ("GRANTOR"),
owns and uses in its business, and will in the future adopt and so use, various
intangible assets, including the Copyright Collateral (as defined below); and
WHEREAS, Autocam Corporation, a Michigan corporation ("COMPANY"), and
Titan Holdings, Inc., a Delaware corporation, have entered into a Term Loan and
Guaranty Agreement dated as of December 22, 2005 (said Term Loan and Credit
Agreement, as it may heretofore have been and as it may hereafter be further
amended, restated, supplemented or otherwise modified from time to time, being
the "CREDIT AGREEMENT") with the financial institutions named therein
(collectively, together with their respective successors and assigns party to
the Credit Agreement from time to time, the "LENDERS"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Partners L.P., as Syndication Agent, and The Bank of New York, as Administrative
Agent for the Lenders pursuant to which Lenders have made certain commitments,
subject to the terms and conditions set forth in the Credit Agreement, to extend
certain credit facilities to Company; and
WHEREAS, Company may from time to time enter, or may from time to time
have entered, into one or more interest rate swap agreement or currency swap
agreement or other similar agreements or arrangements (collectively, the "HEDGE
AGREEMENTS") with one or more Persons that are Lenders or Affiliates of Lenders
at the time such Hedge Agreements are entered into (in such capacity,
collectively, "LENDER COUNTERPARTIES"); and
[Insert if Grantor is a Subsidiary:] [WHEREAS, pursuant to Section 7
of the Credit Agreement, Grantor has guaranteed the prompt payment and
performance when due of all obligations of Company under the Credit Agreement
and the other Credit Documents and all obligations of Company under the Hedge
Agreements, including, without limitation, the obligation of Company to make
payments thereunder in the event of early termination thereof; and]
WHEREAS, pursuant to the terms of a Pledge and Security Agreement
dated as of December 22, 2005 (said Pledge and Security Agreement, as it may
heretofore have been and as it may hereafter be further amended, restated,
supplemented or otherwise modified from time to time, being the "SECURITY
AGREEMENT"; the capitalized terms used in this Grant of Trademark Security
Interest not otherwise defined herein shall have the respective meanings given
thereto in the Security Agreement), among Grantor, Collateral Agent and the
other grantors named therein, Grantor created in favor of Collateral Agent a
security interest in, and Collateral Agent has become a secured creditor with
respect to, the Copyright Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, subject to the terms and conditions
of the Security Agreement, to evidence further the security interest granted by
Grantor to Collateral Agent pursuant to the Security Agreement, Grantor hereby
grants to Collateral Agent a security interest in all of Grantor's right, title
and interest in and to the following, in each case whether now or hereafter
existing or in which Grantor now has or hereafter acquires an interest and
wherever the same may be located (the "COPYRIGHT COLLATERAL"):
(i) all rights, title and interest (including rights acquired pursuant
to a license or otherwise) under all United States, and foreign copyrights
(including Community designs), including but not limited to copyrights in
software and databases, and all Mask Works (as defined under 17 U.S.C. 901
of the U.S. Copyright Act), whether
C-1
registered or unregistered, and, with respect to any and all of the
foregoing: (i) all registrations and applications therefor including,
without limitation, the registrations and applications applied for thereon
in the United States and any state thereof and in foreign countries
referred to in Schedule A annexed hereto, (ii) all extensions and renewals
thereof, (iii) all rights corresponding thereto throughout the world, and
(iv) all rights to ▇▇▇ for past, present and future infringements thereof;
and
(ii) all proceeds, products, accessions, rents and profits of or from
any and all of the foregoing Copyright Collateral, including, without
limitation, licenses, royalties, income, payments, claims, damages, and
proceeds of suit. For purposes of this Grant of Copyright Security
Interest, the term "PROCEEDS" includes whatever is receivable or received
when Copyright Collateral or proceeds are sold, licensed, exchanged,
collected or otherwise disposed of, whether such disposition is voluntary
or involuntary.
Grantor does hereby further acknowledge and affirm that the rights and remedies
of Collateral Agent with respect to the security interest in the Copyright
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which are incorporated by reference herein as if
fully set forth herein.
IN WITNESS WHEREOF, Grantor has caused this Grant of Copyright Security
Interest to be duly executed and delivered by its officer thereunto duly
authorized as of the ___ day of ___________, _____.
[NAME OF GRANTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-2
SCHEDULE A
TO
GRANT OF COPYRIGHT SECURITY INTEREST
U.S. COPYRIGHT REGISTRATIONS:
Title Registration No Date of Issue Registered Owner
----- --------------- ------------- ----------------
FOREIGN COPYRIGHT REGISTRATIONS:
Country Title Registration No Date of Issue
------- ----- --------------- -------------
PENDING U.S. COPYRIGHT REGISTRATION APPLICATIONS:
Title Appl. No. Date of Application Copyright Claimant
----- --------- ------------------- ------------------
PENDING FOREIGN COPYRIGHT REGISTRATION APPLICATIONS:
Country Title Appl. No Date of Application
------- ----- -------- -------------------
C-A-1
EXHIBIT D TO
SECURITY AGREEMENT
[FORM OF GRANT OF PATENT SECURITY INTEREST]
GRANT OF PATENT SECURITY INTEREST
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST
GRANTED TO THE COLLATERAL AGENT PURSUANT TO THIS GRANT OF PATENT SECURITY
INTEREST AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT
HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT, DATED AS
OF DECEMBER 22, 2005 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME, THE "INTERCREDITOR AGREEMENT"), BY AND AMONG AUTOCAM
CORPORATION, A MICHIGAN CORPORATION, CITICORP NORTH AMERICA, INC., AS FIRST LIEN
COLLATERAL AGENT, THE BANK OF NEW YORK, AS SECOND LIEN COLLATERAL AGENT, AND
CERTAIN OTHER PERSONS PARTY THERETO OR THAT MAY BECOME PARTY THERETO FROM TIME
TO TIME. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR
AGREEMENT AND THIS GRANT OF PATENT SECURITY INTEREST, THE TERMS OF THE
INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL AS BETWEEN THE FIRST LIEN
COLLATERAL AGENT AND THE COLLATERAL AGENT.
WHEREAS, [NAME OF GRANTOR], a ___________ corporation ("GRANTOR"),
owns and uses in its business, and will in the future adopt and so use, various
intangible assets, including the Patent Collateral (as defined below); and
WHEREAS, Autocam Corporation, a Michigan corporation ("COMPANY"), and
Titan Holdings, Inc., a Delaware corporation, have entered into a Term Loan and
Guaranty Agreement dated as of December 22, 2005 (said Term Loan and Guaranty
Agreement, as it may heretofore have been and as it may hereafter be further
amended, restated, supplemented or otherwise modified from time to time, being
the "CREDIT AGREEMENT") with the financial institutions named therein
(collectively, together with their respective successors and assigns party to
the Credit Agreement from time to time, the "LENDERS"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Partners L.P., as Syndication Agent, and The Bank of New York, as Administrative
Agent for the Lenders pursuant to which Lenders have made certain commitments,
subject to the terms and conditions set forth in the Credit Agreement, to extend
certain credit facilities to Company; and
WHEREAS, Company may from time to time enter, or may from time to time
have entered, into one or more interest rate swap agreement or currency swap
agreement or other similar agreements or arrangements (collectively, the "HEDGE
AGREEMENTS") with one or more Persons that are Lenders or Affiliates of Lenders
at the time such Hedge Agreements are entered into (in such capacity,
collectively, "LENDER COUNTERPARTIES"); and
[Insert if Grantor is a Subsidiary:] [WHEREAS, pursuant to Section 7
of the Credit Agreement, Grantor has guaranteed the prompt payment and
performance when due of all obligations of Company under the Credit Agreement
and the other Credit Documents and all obligations of Company under the Hedge
Agreements, including, without limitation, the obligation of Company to make
payments thereunder in the event of early termination thereof; and]
WHEREAS, pursuant to the terms of a Pledge and Security Agreement
dated as of December 22, 2005 (said Pledge and Security Agreement, as it may
heretofore have been and as it may hereafter be further amended, restated,
supplemented or otherwise modified from time to time, being the "SECURITY
AGREEMENT"; the capitalized terms used in this Grant of Patent Security Interest
not otherwise defined herein shall have the respective meanings given thereto in
the Security Agreement), among Grantor, Collateral Agent and the other grantors
named therein, Grantor created in favor of Collateral Agent a security interest
in, and Collateral Agent has become a secured creditor with respect to, the
Patent Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, subject to the terms and conditions
of the Security Agreement, to evidence further the security interest granted by
Grantor to Collateral Agent pursuant to the Security Agreement, Grantor hereby
grants to Collateral Agent a security interest in all of Grantor's right, title
and interest in and to the following, in each case whether now or hereafter
existing or in which Grantor now has or hereafter acquires an interest and
wherever the same may be located (the "PATENT COLLATERAL"):
(i) all rights, title and interest (including rights acquired pursuant to a
license or otherwise) in and to all United States and foreign patents and
certificates of invention, or similar industrial property rights, and
applications for any of the foregoing, including, but not limited to: (i)
each patent and patent application referred to in Schedule A
D-1
annexed hereto, (ii) all reissues, divisions, continuations,
continuations-in-part, extensions, renewals, and reexaminations thereof,
(iii) all rights corresponding thereto throughout the world, (iv) all
inventions and improvements described therein, (v) all rights (but not
obligations) to ▇▇▇ for past, present and future infringements thereof, and
(vi) all licenses, claims, damages, and proceeds of suit arising therefrom;
(ii) all proceeds, products, accessions, rents and profits of or from any
and all of the foregoing Patent Collateral, including, without limitation,
licenses, royalties, income, payments, claims, damages, and proceeds of
suit. For purposes of this Grant of Patent Security Interest, the term
"PROCEEDS" includes whatever is receivable or received when Patent
Collateral or proceeds are sold, licensed, exchanged, collected or
otherwise disposed of, whether such disposition is voluntary or
involuntary.
Grantor does hereby further acknowledge and affirm that the rights and remedies
of Collateral Agent with respect to the security interest in the Patent
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which are incorporated by reference herein as if
fully set forth herein.
[The remainder of this page intentionally left blank.]
D-2
IN WITNESS WHEREOF, Grantor has caused this Grant of Patent Security
Interest to be duly executed and delivered by its officer thereunto duly
authorized as of the ___ day of ____________, _____.
[NAME OF GRANTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-3
EXECUTION COPY
SCHEDULE A
TO
GRANT OF PATENT SECURITY INTEREST
PATENTS ISSUED:
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
PATENTS PENDING:
Applicant's Date Application
Name Filed Number Invention Inventor
----------- ----- ----------- --------- --------
1