PLEDGE AND SECURITY AGREEMENT
Exhibit
4.3
Execution
Version
This
PLEDGE
AND SECURITY AGREEMENT
(as
amended, supplemented, restated or otherwise modified from time to time, this
“Agreement”)
dated
as of December 19, 2006 by and between Acquicor Technology, Inc., a Delaware
corporation (the “Grantor”)
and
U.S. Bank National Association, a banking association, acting in the capacity
of
collateral agent for the benefit of the Secured Parties (as defined below)
(the
“Collateral
Agent”).
Capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in the Indenture (as hereinafter
defined)
RECITALS:
WHEREAS,
Grantor
and U.S. Bank National Association, as trustee (the “Trustee”),
have
entered into that certain Indenture dated as of the date hereof (as amended,
supplemented, restated or otherwise modified from time to time, the
“Indenture”),
pursuant to which the Grantor is issuing on the date hereof $145,000,000 in
aggregate principal amount of its 8% Convertible Senior Notes due December
31,
2011 (the “Notes”);
WHEREAS,
the
Grantor, the Collateral Agent, the Trustee and U.S. Bank National Association,
as escrow agent (the “Escrow
Agent”)
have
entered into that certain Escrow Agreement dated as of the date hereof (as
amended, supplemented, restated or otherwise modified from time to time, the
“Escrow
Agreement”),
pursuant to which the Grantor has placed the gross proceeds of the Notes into
a
securities account (the “Pledge
Account”)
maintained at the Securities Intermediary’s account office located at 00
Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000, registered in the name of the Grantor,
as
entitlement holder, and designated as Account No. 108067001, Reference:
“Acquicor 8% Convertible Senior Notes”;
WHEREAS,
as
security for the full and final payment and performance of the Secured
Obligations (as defined below), the Grantor has entered into this Agreement,
pursuant to which the Grantor will grant a security interest in or pledge the
Collateral (as defined below), which Collateral is governed by the terms of
the
Escrow Agreement; and
WHEREAS,
the
Grantor will direct the Escrow Agent to deliver control of the Collateral to
the
Collateral Agent and to otherwise take such actions Collateral Agent may
reasonably require to provide the Collateral Agent with a perfected security
interest in the Collateral.
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AGREEMENT:
NOW,
THEREFORE,
in
consideration of the premises and the agreements, provisions and covenants
contained herein, the Grantor and Collateral Agent agree as
follows:
1. DEFINITIONS.
All
capitalized terms used herein without definition shall have the meanings given
to such terms in the Indenture. As used herein, “UCC”
means
the Uniform Commercial Code as enacted and in effect in the State of New York.
Terms defined in the UCC and not otherwise defined herein have the meanings
specified in the UCC. The term “instrument,” as used herein, means “instrument”
as defined in Article 9 of the UCC. The following terms shall have the meanings
set forth below:
“Control
Agreement”
shall
mean the Securities Account Control Agreement dated as of the date hereof among
the Grantor, the Collateral Agent and the Securities Intermediary, in form
and
substance satisfactory to the Collateral Agent, and any amendment, modification,
supplement or restatement thereof.
“Initial
Purchasers”
shall
mean CRT Capital Group LLC and Xxxxxxx & Company, LLC or such other
subsequent holders of the Notes.
“Securities
Intermediary”
shall
mean U.S. Bank National Association, a national banking association, acting
in
the capacity of securities intermediary.
“Secured
Parties”
shall
mean the Initial Purchases and any subsequent Holders.
2. THE
SECURITY INTEREST.
In
order to secure the payment and performance in full of all the Secured
Obligations (as hereinafter defined), the Grantor hereby pledges and grants
to
the Collateral Agent a continuing security interest in, and collaterally assigns
to the Collateral Agent its interest in, the following properties, assets and
rights of the Grantor, wherever located, whether now owned or hereafter acquired
or arising (all of the same being hereinafter called, collectively, the
“Collateral”):
(a) Pledge
Account.
The
Pledge Account itself, all rights of the Grantor against the Securities
Intermediary or any clearing broker for the Securities Intermediary in
connection with the Pledge Account, and all securities, stocks, bonds, mutual
fund shares, United States Treasury instruments and other investment property
and financial assets now or hereafter reflected as maintained in the Pledge
Account, together with any and all proceeds, replacements or substitutions
therefore and including without limitation, the following types of assets
maintained in the Pledge Account (collectively, the “Pledged Securities”):
(i) Securities.
(A) All
securities, certificated or uncertificated, including without limitation all
stocks, bonds, U.S. Treasury bills or instruments, securities entitlements,
certificates of deposit or other time deposits, and investment company or other
mutual or money market fund shares, in each case now or hereafter owned by
the
Grantor or by third parties who have authorized the Grantor to pledge such
securities for indebtedness outstanding to the Grantor and which now are or
hereafter may be maintained in or credited to the Pledge Account; and (B) any
security entitlements and any and all assets or property from time to time
credited to the Pledge Account, including without limitation any cash deposits
and any other assets of the types described in clause (A) above, evidenced
or
appearing on the books and records of the Securities Intermediary, including
without limitation items in transit by mail or carrier or in the possession
of
any third party (including any Federal Reserve Bank) acting for safekeeping,
as
agent for collection or transmission, or otherwise;
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(ii) Instruments.
All
instruments, whether negotiable or non-negotiable, tangible or in electronic
form, made payable to or endorsed to the Grantor or in which the Grantor has
an
interest, including without limitation, due bills, dividend payment claims,
checks and other writings of every kind or description evidencing a right to
the
payment of money however established or created and which now are or hereafter
may be maintained in or credited to the Pledge Account;
(iii) Other
Property.
All
other property of any kind, tangible or intangible, of the Grantor maintained
in
or comprising the Pledge Account at any time or from time to time, including
without limitation all deposit accounts, securities accounts, cash, documents,
letter of credit rights, advices of credit, warehouse or other receipts,
insurance claims and proceeds, chattel paper (tangible or electronic), contract
rights or rights to the payment of money;
(b) Rights
and Remedies.
All
remedies and privileges pertaining to the Collateral, subject to the terms
hereof; and
(c) Proceeds.
All
proceeds of every kind or nature, and in whatever form (including both cash
and
non-cash) received now or in the future upon the sale or other disposition
of
the Collateral, including without limitation insurance proceeds, all cash
payments or other property received as dividends, interest, or other proceeds,
distribution rights or accretions of any kind, and any and all cash or non-cash
property received in exchange for or in respect of any of the above described
Collateral pursuant to any sale, disposition, merger, reorganization, exchange,
stock split, dividend, distribution or similar event or
transaction.
The
foregoing Collateral shall be treated as “financial assets” as defined in
Article 8 of the UCC and shall include all “investment property” as defined in
Article 9 of the UCC.
3. OBLIGATIONS.
The
Grantor hereby agrees that the Collateral shall be 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 of any
and
all obligations
and liabilities of every kind, direct or indirect, absolute or contingent,
due
or to become due, now existing or hereafter arising, under or in connection
with
the Notes, the Indenture or this Agreement (all of the foregoing, the
“Secured
Obligations”).
4. RIGHTS
AND DUTIES AS TO COLLATERAL.
(a) The
Collateral Agent hereby agrees that it shall only deliver a Notice of Exclusive
Control (as defined in the Control Agreement), or give to the Securities
Intermediary any entitlement orders and other instructions as to the transfer,
redemption, withdrawal, disposition or investment of any of the Collateral,
after the occurrence and continuance of an Event of Default.
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(b) The
Collateral Agent may at any time collect and receive, and at its option apply
to
the Secured Obligations after the occurrence and continuance of an Event of
Default, any distribution in cash or otherwise payable with respect to the
Collateral and may demand, xxx for, receive and collect or make any compromise
or settlement with reference to any Collateral. At its option, the Collateral
Agent may pay for insurance for the Collateral and any charges, taxes,
assessments, liens, and other reasonable expenses as it deems reasonably
desirable to protect, maintain, preserve or collect the Collateral and all
such
expenses incurred will be chargeable to the Collateral. The Collateral Agent,
at
any time, may have the Collateral transferred into its name or that of a nominee
and receive the income thereon and notify the obligor(s) on any Collateral
to
make payments due, or to become due, directly to the Collateral Agent. For
the
purpose of perfecting the Collateral Agent’s security interest in the
Collateral, the Grantor will hold the Collateral in the Pledge Account subject
to the Control Agreement. In order to perfect its security interest in the
Collateral, the Collateral Agent may register the pledge of any such Collateral
with its issuer by sending them a copy of this Agreement; notify a financial
intermediary (including itself), a clearing corporation or third person of
its
security interest by sending them a copy of this Agreement; or transfer US
government securities recorded on its books in the name of the Grantor to the
Collateral Agent’s own account or that of a nominee. Beyond the exercise of
reasonable care to assure the safe custody of Collateral, the Collateral Agent
shall be under no duty or liability to collect the Collateral or the income
thereon or to protect or preserve rights pertaining thereto, and shall be
relieved of all responsibility for the Collateral upon surrendering it to the
Grantor. The Collateral Agent shall be deemed to have exercised reasonable
care
in the custody and preservation of any Collateral in its possession if the
Collateral Agent accords such Collateral treatment substantially equal to that
which the Collateral Agent accords to its own property. The Grantor agrees
to
indemnify and hold the Collateral Agent harmless against any loss or damage
the
Collateral Agent may suffer and any expense it may incur or claim asserted
against it as a result of dealing with the Collateral or any other action it
may
take in reliance upon any provision of this Agreement except for any such
portion of any such loss or damage caused solely by reason of the Collateral
Agent’s gross negligence or willful misconduct. Upon demand, the Grantor will
pay to the Collateral Agent the amount of any and all reasonable out-of-pocket
expenses which the Collateral Agent may incur in connection with (i) the
exercise or enforcement of any of the rights of the Collateral Agent under
this
Agreement or (ii) the failure by the Grantor to perform or observe any of its
agreements or obligations under this Agreement.
(c) Anything
herein to the contrary notwithstanding, the Grantor shall remain liable under
each contract or agreement comprised in the Collateral to be observed or
performed by the Grantor thereunder. The Collateral Agent shall not have any
obligation or liability under any such contract or agreement by reason of or
arising out of this Agreement or the receipt by the Collateral Agent of any
payment relating to any of the Collateral, nor shall the Collateral Agent be
obligated in any manner to perform any of the obligations of the Grantor under
or pursuant to any such contract or agreement, to make inquiry as to the nature
or sufficiency of any payment received by the Collateral Agent in respect of
the
Collateral or as to the sufficiency of any performance by any party under any
such contract or agreement, to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to the Collateral Agent or to which
the Collateral Agent may be entitled at any time or times.
(d) With
respect to any Collateral consisting of securities, whether certificated or
uncertificated, or other investment property now or hereafter held by the
Grantor through the Securities Intermediary, the Grantor shall cause the
Securities Intermediary, pursuant to an agreement in form and substance
reasonably satisfactory to the Collateral Agent, to agree to comply with
entitlement orders or other instructions from the Collateral Agent to the
Securities Intermediary as to such securities or other investment property,
without further consent of the Grantor, in accordance with and pursuant to
the
terms of the Control Agreement. In order to perfect its security interest in
the
Collateral, the Collateral Agent may transfer U.S. government securities
recorded on its books in the name of the Grantor to the Collateral Agent’s own
account or that of a nominee.
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(e) The
parties hereto hereby agree that so long as no Event of Default has occurred,
the Grantor, through the Escrow Agent, shall be permitted to invest the
Collateral pursuant to the terms set forth in the Escrow Agreement.
5. REPRESENTATIONS,
WARRANTIES, AND COVENANTS OF THE GRANTOR.
The
Grantor hereby represents, warrants, and covenants as follows:
(a) The
Grantor is the legal and equitable owner of the Collateral and holds the
Collateral free and clear of all liens, charges, encumbrances and security
interests of every kind and nature whatsoever except for the security interest
granted hereunder to the Collateral Agent; provided, however, that the
Collateral is governed by the terms of the Escrow Agreement. The Grantor has
good right and legal authority to assign, deliver and/or create a security
interest in the Collateral and shall defend its title to the Collateral against
all claims of all other persons or entities. The Grantor (i) shall be solely
responsible for the payment of, and shall promptly pay and discharge, or shall
cause to be paid and discharged, all taxes, assessments and other governmental
charges or levies, liens, premiums and other charges imposed upon the Collateral
or upon the income from the Collateral, (ii) shall file in a timely manner
all
tax returns and reports required to be filed in connection therewith and (iii)
shall indemnify and hold the Collateral Agent harmless from and against all
such
taxes, assessments and other governmental charges or levies (including interest
and penalties) and all costs and expenses incurred by the Collateral Agent
in
connection therewith. The Grantor further agrees not to assign this Agreement,
not to assign, lease or grant any option or similar right with respect to,
any
of the Collateral or any part thereof, and not to create, incur, assume or
suffer to exist any mortgage, pledge, security interest, lien or other charge
or
encumbrance upon, any of the Collateral, or enter into any agreement preventing
it from encumbering any the Collateral, other than pledges and security
interests in favor of the Collateral Agent.
(b) The
Grantor agrees to deliver to the Securities Intermediary and place under the
Collateral Agent’s control any and all stock dividends, warrants, options,
rights, substituted shares or other securities distributed on account of the
Collateral or received on account of the exercise by the Grantor of any option,
warrant or right appertaining to any security constituting part of the
Collateral. In case such a distribution of stock dividends, warrants, options,
rights, substituted shares or other securities is made directly to the
Collateral Agent, the Grantor will execute such assignments and other documents
as the Collateral Agent may require in order to adequately make such
distribution part of the Collateral hereunder.
(c) The
Grantor represents and warrants that the Escrow Agent is authorized on behalf
of
the Grantor to purchase assets for, and invest and dispose of assets in the
Pledge Account, to give instructions with respect to the purchase, investment
or
disposition of any assets in the Pledge Account and take all other actions
with
respect to the Pledge Account in accordance with the terms of the Escrow
Agreement. The Grantor agrees to be bound by any action taken by the Escrow
Agent in connection therewith and covenants that it will not revoke the
authority of the Escrow Agent to take the foregoing actions without also
providing prior written notice to the Collateral Agent of such revocation.
Until
such time as the Collateral Agent receives an effective written notice from
the
Grantor that the Grantor has revoked the Escrow Agent’s authority as set forth
herein, the Collateral Agent shall at all times be entitled to rely on all
instructions, requests and actions of the Escrow Agent as if such instructions,
requests and/or actions were being made directly by the Grantor, and the term
“Grantor” shall, for such purposes, include the Escrow Agent acting on the
Grantor’s behalf.
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(d) The
Grantor covenants and agrees to execute and deliver such additional instruments
and take such further action as the Collateral Agent may reasonably request
solely to effect the purpose of this Agreement and the other Offering Documents,
including without limitation, causing the Escrow Agent or the relevant issuer
of
any securities to be included as Collateral from time to time and/or other
required parties (including transfer agents and securities intermediaries)
to
execute and deliver to the Collateral Agent such control agreements, letters
of
direction or other documents or agreements as the Collateral Agent may
reasonably require in order to perfect (including by control) its security
interest in the Collateral.
(e) Except
as
the Collateral Agent may otherwise permit in its discretion and with respect
to
which there are in effect appropriate control agreements or other documents
as
the Collateral Agent may from time to time require, all Collateral will be
maintained with the Collateral Agent, the Securities Intermediary or the Escrow
Agent, subject to the Control Agreement and the Escrow Agreement as
applicable.
6. ATTORNEY-IN-FACT.
The
Collateral Agent, its successors and assigns and any duly authorized officer
thereof are hereby irrevocably appointed by the Grantor as the Grantor’s
attorney-in-fact, with full authority in the place and stead of the Grantor
and
in the name of the Grantor or otherwise, from time to time in the Collateral
Agent’s reasonable discretion at any time to take any and all action and to
execute any instrument or other assurance which the Collateral Agent may deem
reasonably necessary or advisable to accomplish the purposes of this Agreement,
including: (a) to ask, demand, collect, xxx for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under or
in
respect of any of the Collateral; (b) to receive, endorse and collect any drafts
or other instruments in connection with clause (a); (c) to execute and do all
such assurances, acts and things which the Grantor is required to do under
the
covenants and provisions of this Agreement; and (d) to take any and all actions
as the Collateral Agent may reasonably determine to be necessary or advisable
for the purpose of establishing, maintaining, preserving or protecting the
security interest constituted by this Agreement or any of the rights, remedies,
powers or privileges of the Collateral Agent under this Agreement. To the extent
permitted by law, the Grantor hereby ratifies all that such attorney shall
lawfully do or cause to be done by virtue hereof. This power of attorney is
a
power coupled with an interest and shall be irrevocable. Without limiting the
foregoing, the Collateral Agent is hereby authorized to file in any filing
office in any Uniform Commercial Code jurisdiction any initial financing
statements and amendments thereto that (a) indicate the Collateral as assets
of
the Grantor subject to the Collateral Agent’s lien and security interest,
regardless of whether any particular asset comprising the Collateral falls
within the scope of Article 9 of the Uniform Commercial Code of the jurisdiction
in which the financing statement is filed, with such Collateral description
used
by the Collateral Agent to have the most encompassing definition applicable
under Article 9 of the Uniform Commercial Code of the applicable jurisdiction
and consistent with the intent of this Agreement, and (b) provide any other
information required by part 5 of Article 9 of the Uniform Commercial Code
of
any jurisdiction for the sufficiency or filing office acceptance of any
financing statement or amendment, including whether the Grantor is an
organization or individual, the type of organization and any organizational
identification number issued to the Grantor. The Grantor agrees to furnish
any
such information to the Collateral Agent promptly upon the Collateral Agent’s
request. The Grantor also ratifies its authorization for the Collateral Agent
to
have filed in any Uniform Commercial Code jurisdiction any like initial
financing statements or amendments thereto if filed prior to the date
hereof.
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7. RIGHTS
WITH RESPECT TO COLLATERAL AFTER AN EVENT OF DEFAULT.
Upon
the occurrence and during the continuation of an Event of Default, all rights
of
the Grantor to exercise any voting and other consensual rights which it would
otherwise be entitled to exercise with respect to the Collateral shall cease,
and all such voting and other consensual rights shall thereupon become vested
in
the Collateral Agent who shall thereafter have the sole right to exercise such
voting and other consensual rights without notice to the Grantor.
8. RECORDS
OF COLLATERAL.
The
Grantor hereby authorizes the Collateral Agent to keep the official record
of
all instruments, securities, accounts or other property which may, as a result
of reinvestment, substitution, or sale upon or prior to maturity or otherwise,
from time to time constitute Collateral. Such records shall be presumed to
be
true and correct absent manifest error. The Grantor authorizes the Collateral
Agent to access all books and records relating to the Pledge Account on a daily
basis.
9. INTENTIONALLY
DELETED.
10. RIGHTS
AND REMEDIES OF THE COLLATERAL AGENT.
Upon
the occurrence of and continuance of an Event of Default, or at any time
thereafter, without further notice or demand, the Collateral Agent may declare
this Agreement to be in default and thereafter shall have all the rights and
remedies of a secured party afforded by the Uniform Commercial Code as then
in
effect in the State of New York or afforded by other applicable law and shall
have the right to set off against the Pledge Account regardless of the adequacy
of any other Collateral, and to sell, resell, assign and deliver or otherwise
dispose of any or all of the Collateral at a private or public sale for cash
or
credit or both upon such terms at such place or places, at such time or times
and to such entities or other persons as the Collateral Agent thinks expedient
all without demand for performance by the Grantor or any notice or advertisement
whatsoever except as expressly provided herein or as may otherwise be required
by law. Where reasonable notification of the time and place of such sale or
other disposition is required by law, such requirement shall be met if the
Collateral Agent gives to the Grantor not less than five (5) days notice in
writing mailed, postage prepaid, to the last address of the Grantor known to
it,
of the time and place of any public sale of the Collateral or after which any
private sale or intended disposition is to be made, provided,
however, that the Collateral Agent may dispose of the Collateral without notice
if the Collateral threatens to decline speedily in clause or is of a type
customarily sold on a recognized market. The Collateral Agent may cause all
or
any part of the Collateral held by it to be transferred into its name or the
name of its nominee or nominees and, for such purpose, without limitation upon
any other rights or remedies available to the Collateral Agent, may give
instruction for such effect to any issuer of any of the Collateral or any broker
or other financial intermediary or book-entry custodian in possession of any
of
the Collateral or upon whose books any of the Collateral is then registered.
The
Collateral Agent may purchase the Collateral at a public sale and if the
Collateral is of a type customarily sold in a recognized market or the subject
of widely distributed standard price quotations, the Collateral Agent may
purchase the Collateral at a private sale. The Grantor acknowledges that some
or
all of the Collateral which is not traded on a nationally recognized exchange
may be sold at a private sale at prices less favorable than those which could
be
obtained at a public sale and the Collateral Agent shall not be required to
wait
for completion of any registration of any investment property in order to comply
with state securities laws prior to liquidating any Collateral. All commissions
and charges relating to sale of any Collateral shall constitute Secured
Obligations secured by the Collateral and shall be payable upon demand. After
deducting all costs and expenses of collection, storage, custody, sale or other
disposition and delivery and all other charges against the Collateral, the
residue of the proceeds of any such sale or other disposition shall be applied
to the payment of the Secured Obligations in order of preference as the
Collateral Agent may determine, with any remaining balance returned to the
Grantor.
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11. TERMINATION.
This
Agreement shall terminate upon the earlier of (i) the termination of the Escrow
Agreement and (ii) the payment in full of the Secured Obligations, and the
Collateral Agent shall, at the Grantor’s request and expense, (a) return such
Collateral to the Grantor in the possession or control of the Collateral Agent
as has not theretofore been disposed of pursuant to the provisions hereof,
together with any moneys or other property at the time held by the Collateral
Agent hereunder, and (b) promptly
file a UCC-3 termination statement (if applicable), and execute and deliver
to
the Grantor or its designees such other documents acknowledging the termination
of this Agreement as shall be reasonably requested by Grantor.
12. WAIVERS.
The
Grantor waives, to the fullest extent permitted by law, presentment, notice,
protest, notice of acceptance of this Agreement, notice of any credit or other
financial accommodations extended, extensions granted, Collateral received
or
delivered, or any other action taken in reliance thereon, all demands and
notices in connection with the delivery, acceptance, performance, default or
enforcement of any note, or other evidence of indebtedness for which any of
the
Collateral is pledged, and all other demand and notices of any description,
and
assents to any extension or postponement of the time of payment or any other
such indulgence to any substitution, exchange or release of Collateral and
to
the addition or release of any person primarily or secondarily liable except
as
otherwise expressly provided herein or in the Indenture.
13. NOTICES.
Except
as otherwise provided herein, notice to or demand upon the Grantor or the
Collateral Agent shall be deemed to have been sufficiently given or served
for
all purposes thereof, if mailed, postage prepaid:
(a) if
to the
Grantor:
to
its
address shown on the records of the Collateral Agent from time to
time.
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(b) if
to the
Collateral Agent:
|
U.S.
Bank National Association
00
Xxxxxxxxxx Xxx.
Xx.
Xxxx, Xxxxxxxxx 00000
Attn:
Xxxxxxx Xxxxxxxx
Facsimile
No.: (000) 000-0000
Telephone
No.: (000) 000-0000
|
or
to
such other address as the party to whom such notice is directed may have
designated in writing to the other parties hereto.
14. WAIVER
OF JURY TRIAL.
Except
as prohibited by law, neither the Grantor nor the Collateral Agent, nor any
assignee or successor of the Grantor or the Collateral Agent, shall seek a
jury
trial in any lawsuit, proceeding, counterclaim or any other litigation procedure
based upon or arising out of this Agreement, any note executed in connection
herewith, or any other related document or agreement. Neither the Grantor nor
the Collateral Agent will seek to consolidate any such action, in which a jury
trial has been waived, with any other action in which a jury trial has not
been
waived. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCUSSED BY THE PARTIES
HERETO, AND THE PROVISIONS HEREOF SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY
HERETO HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE
PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
15. MISCELLANEOUS.
No
delay or omission on the part of the Collateral Agent in exercising any right
or
remedy shall operate as a waiver thereof of any other right or remedy. Waiver
on
any one occasion shall not be construed as a bar to or waiver of any right
or
remedy on any future occasion. All of the Collateral Agent’s rights and
remedies, whether evidenced hereby or by any other agreement, instrument or
paper, shall be cumulative and may be exercised singularly or concurrently,
and
nothing herein shall be deemed to limit in any way any rights the Collateral
Agent might otherwise have under any other instrument or by law, including,
without limiting the generality thereof, the right to negotiate any note or
other instrument together with any Collateral specifically described therein.
This Agreement and the security interest granted hereby shall terminate as
set
forth in Section 11 hereof. The invalidity or unenforceability of any one or
more phrases, clauses or sections of this Agreement shall not affect the
validity or enforceability of the remaining portions of it. If this Agreement
is
signed by two or more persons, it shall constitute the joint and several
obligation of each of such persons.
This
instrument shall be governed by the law (other than the conflict of laws rules)
of the State of New York. The Grantor hereby consents to the jurisdiction of
the
courts of the State of New York and the United States District Court for the
Southern District of New York for the purpose of any suit, action, or other
proceeding arising out of its obligations hereunder.
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| ACQUICOR TECHNOLOGY INC., as Grantor | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxx | |
|
Name: Xxxxxxx X. Xxxxxx |
||
| Title: Chairman and Chief Executive Officer | ||
|
U.S.
BANK NATIONAL ASSOCIATION, as
Collateral
Agent
|
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxxx | |
|
Name: Xxxxxxx Xxxxxxxx |
||
| Title: Vice President | ||
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