Exhibit 10(i)(3)
SECURITY AGREEMENT
1. THE SECURITY. The undersigned, Xxxxxxxx, Inc. (the
"Pledgor") hereby assigns and grants to Bank of America, N.A. as Administrative
Agent (the "Agent") on behalf of the Lenders as defined in the Credit Agreement
dated April 24, 2003, by and among the Pledgor, each lender from time to time
party thereto, and Bank of America, 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.
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(h) All accessions, attachments and other additions
to the Collateral, and all tools, parts and equipment used in connection with
the Collateral.
(i) All substitutes or replacements for any
Collateral, all cash or non-cash 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, AT NO TIME SHALL THE TERM
"COLLATERAL" INCLUDE MORE THAN 65% OF THE ISSUED AND OUTSTANDING CAPITAL STOCK
OF XXXXXXXX U.K., LIMITED.
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
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the Collateral free of all liens, claims, security interests and encumbrances of
any kind or nature 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 xxxx 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
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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 xxxx 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 xxxx 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
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.
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(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.
(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
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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 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.
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(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 in-house 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.
(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.
This Agreement is dated as of April 24, 2003.
BANK OF AMERICA, X.X. XXXXXXXX, INC.
As Administrative Agent
By: /s/Xxx Xxxx By: /s/Xxxxxxx X. Xxxxx
Title: Vice President Title: Executive Vice President,
Chief Operating Officer and
Chief Financial Officer
By: ______________________________
Title: ___________________________
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Address of Pledgor:
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Pledgor's state of incorporation
or organization (if Pledgor is a corporation, partnership,
limited liability company or other registered entity): Delaware
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