Exhibit 10(z)(3)
SECURITY AGREEMENT
(BORROWER)
1. THE SECURITY. The undersigned, ▇▇▇▇▇▇▇▇, Inc. (the "Pledgor")
hereby assigns and grants to Union Bank of California, N.A. as Administrative
Agent (the "Agent") on behalf of the Lenders as defined in the Revolving/Term
Loan Credit Agreement dated July 6, 2004, by and among the Pledgor, each lender
from time to time party thereto, and Union Bank of California, N.A., as
Administrative Agent and L/C Issuer (all as defined therein (the "Credit
Agreement") (the Agent and each of the Lenders hereinafter collective referred
to as "Lenders") a security interest in the following described property now
owned or hereafter acquired by the Pledgor ("Collateral"):
(a) All accounts, contract rights, chattel paper,
instruments, deposit accounts, and general intangibles, including all amounts
due to the Pledgor from a factor; and all returned or repossessed goods which,
on sale or lease, resulted in an account or chattel paper.
(b) All inventory, including all materials, work in process
and finished goods.
(c) All equipment and fixtures of every type.
(d) All of the Pledgor's deposit accounts with the Lenders
The Collateral shall include any renewals or rollovers of the deposit accounts,
any successor accounts, and any general intangibles and choses in action arising
therefrom or related thereto.
(e) All instruments, notes, chattel paper, documents, and
certificates of deposit of every type The Collateral shall include all liens,
security agreements, leases and other contracts securing or otherwise relating
to the foregoing.
(f) All general intangibles, including, but not limited to,
(i) all patents, and all unpatented or unpatentable inventions; (ii) all
trademarks, service marks, and trade names; (iii) all copyrights and literary
rights; (iv) all computer software programs; (v) all mask works of semiconductor
chip products; (vi) all trade secrets, proprietary information, customer lists,
manufacturing, engineering and production plans, drawings, specifications,
processes and systems The Collateral shall include all good will connected with
or symbolized by any of such general intangibles; all contract rights,
documents, applications, licenses, materials and other matters related to such
general intangibles; all tangible property embodying or incorporating any such
general intangibles; and all chattel paper and instruments relating to such
general intangibles.
(g) All negotiable and nonnegotiable documents of title
covering any Collateral.
(h) All accessions, attachments and other additions to the
Collateral, and all tools, parts and equipment used in connection with the
Collateral.
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(i) All substitutes or replacements for any Collateral, all
cash or noncash proceeds, product, rents and profits of any Collateral, all
income, benefits and property receivable on account of the Collateral, all
rights under warranties and insurance contracts covering the Collateral, and any
causes of action relating to the Collateral.
(j) All books and records pertaining to any Collateral,
including but not limited to any computer-readable memory and any computer
hardware or software necessary to process such memory ("Books and Records").
THE FOREGOING NOTWITHSTANDING, (1) AT NO TIME SHALL THE TERM
"COLLATERAL" INCLUDE MORE THAN 65% OF THE ISSUED AND OUTSTANDING CAPITAL STOCK
OF ▇▇▇▇▇▇▇▇ U.K., LIMITED; AND (2) THE TERM "COLLATERAL" SHALL NOT INCLUDE ANY
MEMBERSHIP INTERESTS OF PLEDGOR IN ▇▇▇▇▇▇▇▇, EDC, LLC, A DELAWARE LIMITED
LIABILITY COMPANY ("EDC"), UNTIL THE EARLIER OF (X) RECEIPT OF CONSENT TO SUCH
PLEDGE FROM BANK OF AMERICA, N.A. (TOGETHER WITH ITS SUCCESSORS AND ASSIGNS,
"BOFA"), OR (Y) SUCH TIME AS THE LOAN (AS DEFINED IN PARAGRAPH 8 TO THE LIMITED
LIABILITY COMPANY AGREEMENT OF EDC DATED AS OF MARCH 15, 2004) IS NO LONGER
OUTSTANDING.
2. THE INDEBTEDNESS. The Collateral secures and will secure all
Indebtedness of the Pledgor to the Lenders For the purposes of this Agreement,
"Indebtedness" means all loans, advances and extensions of credit made by the
Lenders to the Pledgor and all other obligations and liabilities of the Pledgor
to the Lenders arising under the Credit Agreement, whether now existing or
hereafter incurred or created, and including any obligation or liability arising
pursuant to any Swap Contract (as defined in the Credit Agreement) entered into
with the Lenders and/or any Affiliate of the Lenders.
3. PLEDGOR'S COVENANTS. The Pledgor represents, covenants and
warrants that unless compliance is waived by the Required Lenders in writing:
(a) The Pledgor will properly preserve the Collateral;
defend the Collateral against any adverse claims and demands; and keep accurate
Books and Records.
(b) Pledgor's chief executive office is located, in the
state specified on the signature page hereof In addition, Pledgor is
incorporated in or organized under the laws of the state specified on such
signature page Pledgor shall give Agent at least thirty (30) days notice before
changing its residence or its chief executive office or state of incorporation
or organization The current locations of Collateral are set forth on Schedule 1
attached hereto The Pledgor will notify, the Agent at the end of each fiscal
quarter in writing of any change in the location of any Collateral in excess of
$250,000, including the Books and Records.
(c) The Pledgor will notify the Agent in writing prior to
any change in the Pledgor's name, identity or business structure.
(d) Unless otherwise agreed, the Pledgor has not granted and
will not grant any security interest in any of the Collateral except to the
Agent; and will keep the Collateral free of all liens, claims, security
interests and encumbrances of any kind or nature
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except the security interest of the Agent on behalf of the Lenders or as
otherwise permitted by the Credit Agreement.
(e) The Pledgor will promptly notify the Agent in writing of
any event which diminishes the value of the Collateral by $500,000 or more, the
ability of the Pledgor or the Agent to dispose of the Collateral, or the rights
and remedies of the Agent in relation thereto, including, but not limited to,
the levy of any legal process against any Collateral in connection with the
collection of an obligation in excess of the Threshold Amount.
(f) The Pledgor shall pay all costs necessary to preserve,
defend, enforce and collect the Collateral, including but not limited to taxes,
assessments, insurance premiums, repairs, rent, storage costs and expenses of
sales, and any costs to perfect the Agent's security interest Without waiving
the Pledgor's default for failure to make any such payment, the Agent at its
option may pay any such costs and expenses, discharge encumbrances on the
Collateral, and pay for insurance of the Collateral, and such payments shall be
a part of the Indebtedness and bear interest at the rate set out in the
Indebtedness The Pledgor agrees to reimburse the Agent on demand for any costs
so incurred.
(g) Until the Agent exercises its rights to make collection,
the Pledgor will diligently collect all Collateral.
(h) If any Collateral is or becomes the subject of any
registration certificate, certificate of deposit or negotiable document of
title, including any warehouse receipt or ▇▇▇▇ of lading, the Pledgor shall, if
an Event of Default has occurred and is continuing, immediately deliver such
document to the Agent, together with any necessary endorsements.
(i) The Pledgor will not sell, lease, or otherwise dispose
of any Collateral except to the extent permitted by Section 7.05 of the Credit
Agreement.
(j) The Pledgor will maintain and keep in force insurance
covering the Collateral against fire and extended coverages, to the extent that
any Collateral is of a type which can be so insured Such insurance shall require
losses to be paid on a replacement cost basis, be issued by insurance companies
acceptable to the Agent and include a loss payable endorsement in favor of the
Agent in a form reasonably acceptable to the Agent.
(k) The Pledgor will not attach any Collateral having an
aggregate value in excess of $250,000 to any real property or fixture in a
manner which might cause such Collateral to become a part thereof unless the
Pledgor first obtains the written consent of any owner, holder of any lien on
the real property or fixture, or other person having an interest in such
property to the removal by the Agent of the Collateral from such real property
or fixture Such written consent shall be in form and substance acceptable to the
Agent and shall provide that the Agent has no liability to such owner, holder of
any lien, or any other person.
(l) The Pledgor will, at its expense, diligently prosecute
all patent, trademark or service ▇▇▇▇ or copyright applications pending on or
after the date hereof, will maintain in effect all material issued patents and
will renew all material trademark and service ▇▇▇▇ registrations, including
payment of any and all maintenance and renewal fees relating thereto The Pledgor
also will promptly make application on any material registerable but
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unregistered trademarks and service marks The Pledgor will at its expense
protect and defend all rights in the Collateral against any claims and demands
of all persons other than the Agent and the Lenders and will, at its expense,
enforce all rights in the Collateral against any and all infringers of the
Collateral Except as permitted by the Credit Agreement, the Pledgor will not
license or transfer any of the Collateral except with the Agent's prior written
consent.
4. ADDITIONAL OPTIONAL REQUIREMENTS. The Pledgor agrees that the
Agent may at its option at any time:
(a) Require the Pledgor to deliver to the Agent (i) copies
of or extracts from the Books and Records, and (ii) information, as Agent
reasonably requests, concerning any material contracts or other matters
affecting the Collateral.
(b) Examine the Collateral, including the Books and Records,
and make copies of or extracts from the Books and Records, and for such purposes
enter at any reasonable time upon the property where any Collateral or any Books
and Records are located.
(c) Require the Pledgor to deliver to the Agent any
instruments or chattel paper which are part of the Collateral to the extent
required therefor pursuant to Section 3(h).
(d) If an Event of Default has occurred and is continuing,
notify any account debtors, any buyers of the Collateral, or any other persons
of the Agent's and the Lenders' interest in the Collateral.
5. DEFAULTS. An Event of Default under the Credit Agreement shall
be a default hereunder.
6. LENDERS' REMEDIES AFTER DEFAULT In the event of any default,
the Agent and the Lenders may do any one or more of the following:
(a) Declare any Indebtedness immediately due and payable,
without notice or demand.
(b) Enforce the security interest given hereunder pursuant
to the Uniform Commercial Code and any other applicable law.
(c) Enforce the security interest of the Lenders in any
deposit account of the Pledgor maintained with any Lender by applying such
account to the Indebtedness.
(d) Require the Pledgor to obtain the prior written consent
of the Lenders to any sale, lease, agreement to sell or lease, or other
disposition of any Collateral consisting of inventory, other than in the
ordinary course of business.
(e) Require the Pledgor to segregate all collections and
proceeds of the Collateral so that they are capable of identification and
deliver daily such collections and proceeds to the Agent in kind.
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(f) Require the Pledgor to direct all account debtors to
forward all payments and proceeds of the Collateral to a post office box under
the Agent's exclusive control.
(g) Require the Pledgor to assemble the Collateral,
including the Books and Records, and make them available to the Lenders at a
place designated by the Lenders.
(h) Enter upon the property where any Collateral, including
any Books and Records, are located and take possession of such Collateral and
such Books and Records, and use such property (including any buildings and
facilities) and any of the Pledgor's equipment, if the Lenders deem such use
necessary or advisable in order to take possession of, hold, preserve, process,
assemble, prepare for sale or lease, market for sale or lease, sell or lease, or
otherwise dispose of, any Collateral.
(i) Demand and collect any payments on and proceeds of the
Collateral In connection therewith the Pledgor irrevocably authorizes the Agent
to endorse or sign the Pledgor's name on all checks, drafts, collections,
receipts and other documents, and to take possession of and open the mail
addressed to the Pledgor and remove therefrom any payments and proceeds of the
Collateral.
(j) Grant extensions and compromise or settle claims with
respect to the Collateral for less than face value, all without prior notice to
the Pledgor.
(k) Use or transfer any of the Pledgor's rights and
interests in any Intellectual Property now owned or hereafter acquired by the
Pledgor, if the Agent deems such use or transfer necessary or advisable in order
to take possession of, hold, preserve, process, assemble, prepare for sale or
lease, market for sale or lease, sell or lease, or otherwise dispose of, any
Collateral The Pledgor agrees that any such use or transfer shall be without any
additional consideration to the Pledgor As used in this paragraph, "Intellectual
Property" includes, but is not limited to, all trade secrets, computer software,
service marks, trademarks, trade names, trade styles, copyrights, patents,
applications for any of the foregoing, customer lists, working drawings,
instructional manuals, and rights in processes for technical manufacturing,
packaging and labeling, in which the Pledgor has any right or interest, whether
by ownership, license, contract or otherwise.
(l) Have a receiver appointed by any court of competent
jurisdiction to take possession of the Collateral The Pledgor hereby consents to
the appointment of such a receiver and agrees not to oppose any such
appointment.
(m) Take such measures as the Agent may deem necessary or
advisable to take possession of, hold, preserve, process, assemble, insure,
prepare for sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, and the Pledgor hereby irrevocably constitutes and
appoints the Agent as the Pledgor's attorney-in-fact to perform all acts and
execute all documents in connection therewith.
(n) Without notice or demand to the Pledgor, set off and
apply against any and all of the Indebtedness any and all deposits (general or
special, time or demand, provisional or final) and any other indebtedness, at
any time held or owing by any Lender or any
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of the Lenders' agents or affiliates to or for the credit of the account of the
Pledgor or any guarantor or endorser of the Pledgor's Indebtedness.
7. MISCELLANEOUS.
(a) Any waiver, express or implied, of any provision
hereunder and any delay or failure by the Agent or Lenders to enforce any
provision shall not preclude the Lenders from enforcing any such provision
thereafter.
(b) The Pledgor shall, at the request of the Agent, execute
such other agreements, documents, instruments, or financing statements in
connection with this Agreement as the Agent may reasonably deem necessary To the
extent permitted by applicable law, a carbon, photographic or other reproduction
of this Agreement or any financing statement covering the Collateral shall be
sufficient as a financing statement The Pledgor hereby irrevocably constitutes
and appoints the Agent as the Pledgor's attorney-in-fact to sign any financing
statement or other document which must be executed or filed to perfect or
continue perfected, maintain the priority of or provide notice of the Lenders'
security interest in the Collateral and file any such financing statements and
other documents by electronic means with or without a signature as authorized or
required by applicable law or filing procedures.
(c) All notes, security agreements, subordination agreements
and other documents executed by the Pledgor or furnished to the Agent in
connection with this Agreement must be in form and substance satisfactory to the
Agent.
(d) This Agreement shall be governed by and construed
according to the laws of the State of California, to the jurisdiction of which
the parties hereto submit.
(e) All rights and remedies herein provided are cumulative
and not exclusive of any rights or remedies otherwise provided by law Any single
or partial exercise of any right or remedy shall not preclude the further
exercise thereof or the exercise of any other right or remedy.
(f) All terms not defined herein are used as set forth in
the Uniform Commercial Code.
(g) In the event of any action by the Agent or the Lenders
to enforce this Agreement or to protect the security interest of the Lenders in
the Collateral, or to take possession of, hold, preserve, process, assemble,
insure, prepare for sale or lease, market for sale or lease, sell or lease, or
otherwise dispose of, any Collateral, the Pledgor agrees to pay promptly the
costs and expenses thereof, together with reasonable attorney's fees and
allocated costs for inhouse legal services.
(h) This Agreement shall constitute a continuing agreement,
applying to all future as well as existing transactions, whether or not of the
character contemplated at the date of this Agreement, and if all transactions
between the Lenders and the Pledgor shall be closed at any time, shall be
equally applicable to any new transactions thereafter.
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(i) The Agent's and the Lenders' rights hereunder shall
inure to the benefit of its successors and assigns In the event of any
assignment or transfer by any Lender of any of the Indebtedness or the
Collateral, the Agent thereafter shall be fully discharged from any
responsibility with respect to the Collateral so assigned or transferred, but
the Agent shall retain all rights and powers hereby given with respect to any of
the Indebtedness or the Collateral not so assigned or transferred All
representations, warranties and agreements of the Pledgor if more than one are
joint and several and all shall be binding upon the personal representatives,
heirs, successors and assigns of the Pledgor.
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This Agreement is executed as of the date first written above.
UNION BANK OF CALIFORNIA, ▇.▇. ▇▇▇▇▇▇▇▇, INC.
As Administrative Agent
By:_________________________________ By:__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:______________________________ Its: Executive Vice President, Chief
Operating Officer, Chief Financial
Officer, Chief Accounting Officer and
Treasurer
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Address of Pledgor:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Pledgor's state of incorporation
or organization (if Pledgor is a corporation, partnership,
limited liability company or other registered entity): Delaware