ACCESS AND SECURITY AGREEMENT
EXHIBIT
10.21
This
ACCESS AND SECURITY AGREEMENT (this “Agreement”)
is
made on November 17, 2006 by and between Xxxxxx International, Inc., a Delaware
corporation (“Xxxxxx”),
and
Titanium Metals Corporation, a Delaware corporation (“TIMET”).
WHEREAS,
Xxxxxx has excess capacity at its 4-High “Xxxxxxx” rolling mill located at its
plant in Kokomo, Indiana and desires to monetize such excess
capacity;
WHEREAS,
in furtherance of its continuing operations and business objectives, TIMET
requires the services capable of being provided by Xxxxxx and the use of
the
aforementioned 4-High “Xxxxxxx” rolling mill, and requires such services in such
capacities, for such duration and on such demand as, for all practical purposes,
can only be provided by Xxxxxx and the use of the aforementioned 4-High
“Xxxxxxx” rolling mill;
WHEREAS,
in furtherance of its desire to utilize its excess capacity of the 4-High
Mill,
Xxxxxx wishes to make to TIMET the capacity commitments described herein
and to
agree to supply TIMET with Titanium Conversion Services, as defined in and
pursuant to the terms and conditions of that certain Conversion Services
Agreement of even date herewith by and between TIMET and Xxxxxx, the form
of
which is attached hereto as Exhibit A (the “Conversion
Agreement”);
WHEREAS,
in order for Xxxxxx to make the commitment and agreements set forth in the
Conversion Agreement, Xxxxxx must reserve and not fully utilize the capacity
of
the 4-High Mill, and Xxxxxx is willing and able to do so only if such excess
capacity is monetized such that Xxxxxx does not suffer economic harm by
reserving such excess capacity for TIMET;
WHEREAS,
TIMET has agreed to monetize such excess capacity by paying the Fee (as defined
below) to Xxxxxx in exchange for Xxxxxx' execution of the Conversion Agreement
and performance thereunder;
WHEREAS,
Xxxxxx acknowledges that any delay in the performance of the Titanium Conversion
Services or any default by Xxxxxx under the Transaction Documents (as defined
below) may cause TIMET irreparable harm and, therefore, Xxxxxx has agreed
to
provide to TIMET the rights and protections set forth in the Transaction
Documents; and
WHEREAS,
TIMET acknowledges that Xxxxxx cannot reserve the excess capacity of the
4-High
Mill for the benefit of TIMET without TIMET’s monetization of such excess
capacity without causing Xxxxxx irreparable harm, and that any failure of
such
monetization, whether by reason of TIMET's default under the Transaction
Documents or otherwise, may cause Xxxxxx irreparable harm.
NOW,
THEREFORE, in consideration of the foregoing, the agreements, covenants,
representations and warranties of the parties set forth herein and in the
other
Transaction Documents, and other good and valuable consideration, the receipt
and sufficiency of which are acknowledged, Xxxxxx and TIMET agree as
follows:
1. Defined
Terms.
The
following terms have the indicated meanings, unless the context otherwise
requires:
(a) “Acceleration
Event”
shall
mean the exercise by TIMET of its rights under Section 5.3(a) of the Conversion
Agreement.
(b) “Access
Period”
has
the
meaning set forth in Section 4(a).
(c) “Additional
Contracts”
means
all Contracts that relate or pertain both to (i) the Mill, the Equipment,
the
Intellectual Property or the performance of the Titanium Conversion Services
and
(ii) other assets or operations of Xxxxxx.
(d) “Agreement”
has
the
meaning set forth in the introduction hereto.
(e) “Bankruptcy
Proceeding”
means
any case, action, proceeding, petition or filing, voluntary or involuntary,
under the Federal Bankruptcy Code or any similar state or federal law now
or
hereafter in effect pertaining to bankruptcy, reorganization, insolvency,
composition, restructuring, dissolution, liquidation, receivership,
custodianship, or adjustment of debts.
(f) “Change
in Control”
has
the
meaning set forth in the Conversion Agreement.
(g) “Claims”
has
the
meaning set forth in Section 4(b)(ii).
(h) “Code”
means
the Uniform Commercial Code as in effect in the State of Indiana as of the
date
of this Agreement.
(i) “Collateral”
has
the
meaning set forth in Section 3(a).
(j) “Conversion
Agreement”
has
the
meaning set forth in the recitals hereto.
(k) “Contract
Rights”
means
all rights of Xxxxxx (including to payment) arising under each Contract that
relate or pertain only to the Mill, the Equipment, the Intellectual Property
for
Titanium Conversion Services or the performance of the Titanium Conversion
Services.
(l) “Contracts”
means
all service agreements (including utility services and supply agreements),
permits and licenses, operating agreements, maintenance, training, operational
and procedural manuals, leases and contract rights, choses in action or causes
of action or claims in each case as to all of the foregoing with respect
to the
Equipment, the Mill, the Intellectual Property or the performance of Titanium
Conversion Services, documents which evidence rights to Equipment, Intellectual
Property or any portion of the Mill, guaranty or warranty claims with respect
to
Equipment, Intellectual Property or the Mill, and the Proceeds of all of
the
foregoing, other than the Transaction Documents.
(m) “Debt
Obligations”
means,
collectively, (i) any outstanding principal balance under the Option Note
and any accrued and unpaid interest thereon, if any; (ii) the entire
unearned portion of the Fee; (iii) the amount of any Liquidated Damages (as
defined in the Conversion Agreement); (iv) the amount of any Termination
Fee (as
defined in the Conversion Agreement); (v) the amount of any Non-Compete
Amendment Fee (as defined in the Conversion Agreement); and (vi) any
amounts owed by Xxxxxx under Section 5.1 of the Conversion
Agreement.
(n) “Default”
means
any of the following events:
(i) If
TIMET
fails at any time to have a legal, valid, binding and enforceable first priority
lien on the Collateral or any portion thereof that is caused by reason of
an act
or omission of Xxxxxx (provided, however that a Permitted Encumbrance will
not
cause or be deemed to cause a default hereunder);
(ii) Violation
of any of the terms, obligations, covenants or conditions set forth in Sections
11(b) or (c); or
(iii) The
failure of Xxxxxx to pay when due any principal of or other amount due on
the
Debt Obligations, which failure continues for five (5) days after the date
such
payment becomes due;
(o) “Equipment”
means
all of the equipment located at the Mill of any kind, nature and description,
whether affixed to real property or not, as well as all additions to,
substitutions for, replacements of or accessions to any of the foregoing
items
and all attachments, components, parts (including spare parts), and accessories
whether installed thereon or affixed thereto in each case to the extent used
in
or related to the performance of the Titanium Conversion Services, including
but
not limited to the equipment listed on Exhibit B
attached
hereto, but excluding any equipment that may be temporarily located at the
Mill
such as forklifts, golf carts, hand tools and other portable equipment that
is
used in connection with the Mill and other assets of Xxxxxx.
(p) “Fee”
has
the
meaning set forth in Section 2(c).
(q) “Xxxxxx”
has
the
meaning set forth in the introduction hereto.
(r) “Xxxxxx
Bankruptcy Event”
means
any of the following events: (i) Xxxxxx consents to the filing of, or
commences or consents to the commencement of, any Bankruptcy Proceeding;
(ii) any Bankruptcy Proceeding shall have been filed against Xxxxxx and the
same is not withdrawn, dismissed, canceled or terminated within ninety (90)
days
of such filing; (iii) Xxxxxx is adjudicated bankrupt or insolvent or a
petition for reorganization of it is granted; (iv) a receiver, liquidator
or trustee of it or of any of Xxxxxx’ properties shall be appointed;
(v) Xxxxxx shall make an assignment for the benefit of its creditors or
shall admit in writing the inability to pay its debts generally as they become
due; or (vi) Xxxxxx otherwise institutes or causes to be instituted any
proceeding for its termination or dissolution.
(s) “Intellectual
Property”
means
all now existing or hereafter acquired patents, trademarks, copyrights,
inventions, licenses, discoveries, processes, know-how, techniques, trade
secrets, designs, specifications and the like (regardless of whether such
items
are now patented or registered, or registerable, or patentable in the future),
and all technical, engineering, or other information and knowledge, production
data and drawings, in each case to the extent used in, necessary for or related
to the operation of the Mill and the Equipment or the performance of Titanium
Conversion Services, including without limitation, all items, rights and
property defined as Intellectual Property under 11 U.S.C. Section 101, as
amended from time to time.
(t) “Intellectual
Property for Titanium Conversion Services”
means
all Intellectual Property that relates or pertains only to the Mill, the
Equipment or the performance of the Titanium Conversion Services.
(u) “License”
has
the
meaning set forth in Section 5.
(v) “Mill”
means
the 4-High “Xxxxxxx” rolling mill located in Building R-55 on the Real Estate,
and all licenses, easements and appurtenances relating thereto, wherever
located
on the Real Estate, and any easements necessary for access thereto or necessary
to deliver, store or ship materials thereto, and any fixtures or equipment
located at the Real Estate which are primarily related to, and/or integral
or
primarily used in connection with the operation of the Mill, consisting of
all
pumps, pipes, plumbing, cleaning, call and sprinkler systems, fire extinguishing
apparatuses and equipment, heating, ventilating, plumbing, incinerating,
electrical, air conditioning and air cooling equipment and systems, pollution
control equipment, security systems disposals, water, gas, electrical, storm
and
sanitary sewer facilities, utility lines and equipment, all water tanks,
water
supply, water power sites, fuel stations, fuel tanks, fuel supply, and all
other
structures, together with all accessions, appurtenances, additions,
replacements, betterments and substitutions for any of the
foregoing.
(w) “Obligations”
means
the Debt Obligations together with Xxxxxx’ obligations under the Transaction
Documents.
(x) “Operating
Assets”
means
the Mill, the Contract Rights, the Equipment, the Intellectual Property for
Titanium Conversion Services, the Real Estate and all Proceeds
thereof.
(y) “Option”
has
the
meaning set forth in the Conversion Agreement.
(z) “Option
Note”
has
the
meaning set forth in the Conversion Agreement.
(aa) “Permitted
Encumbrances”
means:
(i) Liens
in
favor of TIMET;
(ii) Encumbrances
consisting of minor easements, zoning restrictions, or other restrictions
on the
use of real property that do not (individually or in the aggregate) materially
affect the value of the Operating Assets or materially impair the ability
of
Xxxxxx to use the Operating Assets, and none of which is violated in any
material respect by existing or proposed structures or land use;
(iii) Liens
for
taxes, assessments, or other governmental charges which are not delinquent
or
which are being contested in good faith and for which adequate reserves have
been established; and
(iv) Liens
of
mechanics, materialmen, warehousemen, carriers, or other similar statutory
liens
securing obligations that are not yet due and are incurred in the ordinary
course of business; and liens resulting from good faith deposits to secure
payments of workers’ compensation or other social security programs or to secure
the performance of tenders, statutory obligations, surety and appeal bonds,
bids, or contracts (other than for payment of indebtedness), or leases of
any
Operating Assets made in the ordinary course of business.
(bb) “Person”
means
any individual, corporation, limited or general partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization, government authority or other entity.
(cc) “Proceeds”
shall
have the meaning provided it under Section 9-102(a)(65) of the Code and,
in any
event, shall include, but not be limited to: (i) any and all proceeds of
any
insurance, indemnity, warranty, or guaranty payable to Xxxxxx from time to
time
with respect to any of the Collateral; (ii) any and all payments (in any
form
whatsoever) made or due and payable to Xxxxxx from time to time in connection
with any requisition, confiscation, condemnation, seizure, or forfeiture
of all
or any part of the Collateral by any governmental body, authority, bureau,
or
agency (or any Person acting under color of governmental authority): and
(iii)
any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
(dd) “Real
Estate”
means
the real property on which Building R-55 at Xxxxxx’ operations on the south side
of Xxxxxxxxxx Street in Kokomo, Indiana is located including leasehold
interests, together with the building and all other improvements located
thereon, the legal description for which is set forth on Exhibit C
hereto,
and all licenses, easements and appurtenances relating thereto, wherever
located
on such real property, and any fixtures or equipment located at the Real
Estate
which are primarily related to, and/or integral or primarily used in connection
with the operation of the Real Estate, consisting of all pumps, pipes, plumbing,
cleaning, call and sprinkler systems, fire extinguishing apparatuses and
equipment, heating, ventilating, plumbing, incinerating, electrical, air
conditioning and air cooling equipment and systems, pollution control equipment,
security systems disposals, water, gas, electrical, storm and sanitary sewer
facilities, utility lines and equipment, all water tanks, water supply, water
power sites, fuel stations, fuel tanks, fuel supply, and all other structures,
together with all accessions, appurtenances, additions, replacements,
betterments and substitutions for any of the foregoing, and any easements
necessary for access thereto or to deliver, store or ship materials
thereto.
(ee) “Right
of Access”
has
the
meaning set forth in Section 4(a).
(ff) “Secured
Facility Event”
means
that a Secured Lender has declared Xxxxxx to be in default of Xxxxxx’
obligations to such Secured Lender, the Secured Lender has accelerated all
such
obligations to such Secured Lender, and Xxxxxx has (i) failed to cure such
default such that such obligations are no longer accelerated, or (ii) provide
adequate assurance reasonably acceptable to TIMET of Xxxxxx' continuing ability
to perform under the terms of the Transaction Documents.
(gg) “Secured
Lender”
means
Wachovia Capital Finance Corporation (Central), an Illinois corporation,
as
agent, for itself and the parties from time to time to the loan agreement
as
lenders, collectively, together with their respective successors and assigns,
herein, or any lender or lenders from time to time hereafter holding instruments
representing Xxxxxx’ indebtedness, the obligations under which are secured by a
pledge of substantially all of Xxxxxx’ assets, other than the indebtedness
created by the Conversion Agreement.
(hh) “Titanium
Conversion Services”
has
the
meaning set forth in the Conversion Agreement.
(ii) “TIMET”
has
the
meaning set forth in the introduction hereto.
(jj) “TIMET
Bankruptcy Event”
means
any of the following events: (i) TIMET consents to the filing of, or
commences or consents to the commencement of, any Bankruptcy Proceeding;
(ii) any Bankruptcy Proceeding shall have been filed against TIMET and the
same is not withdrawn, dismissed, canceled or terminated within ninety (90)
days
of such filing; (iii) TIMET is adjudicated bankrupt or insolvent or a
petition for reorganization of it is granted; (iv) a receiver, liquidator
or trustee of it or of any of TIMET’s properties shall be appointed;
(v) TIMET shall make an assignment for the benefit of its creditors or
shall admit in writing the inability to pay its debts generally as they become
due; or (vi) TIMET otherwise institutes or causes to be instituted any
proceeding for its termination or dissolution.
(kk) “Transaction
Documents”
means,
collectively, the Conversion Agreement, the Option Note, this Agreement and
any
other document or instrument delivered in connection herewith or
therewith.
2. Capacity
Commitments, Termination of Standstill Agreement, Fee and Option
Note.
(a) Capacity
Commitments.
Xxxxxx
agrees: (i) to reserve for the benefit of and dedicate to TIMET or its
designee(s) adequate capacity at the Mill and the other Operating Assets
necessary to provide the Titanium Conversion Services in accordance with
and
subject to all terms of the Conversion Agreement, including
the Maximum Monthly Volume and the Maximum Annual Volume
(as each
such term is defined in the Conversion Agreement); and (ii) not to engage
in any activity or transaction that is prohibited by Section 11.1 of the
Conversion Agreement (as such term may be amended by the Non-Compete Amendment
(as defined in the Conversion Agreement)).
(b) Termination
of Standstill Agreement.
Effective as of the date hereof, the provisions of the carryover paragraph
on
pages 3 and 4 of the Confidentiality Agreement, dated November 21, 2005,
between
TIMET and Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, Inc. are hereby terminated
and of no further force or effect.
(c) Fee.
As
consideration for (i) the capacity reservations and commitments described
in
Section 2(a) above and in the Conversion Agreement, (ii) the termination of
the standstill provisions as described in Section 2(b) above and (iii) the
Option to order additional Conversion Services granted to TIMET pursuant
to
Section 2.1(b) of the Conversion Agreement, concurrently herewith, TIMET
agrees to pay to Xxxxxx an advance fee of $50,000,000 (the “Fee”)
in
immediately payable U.S. funds in accordance with the wiring instructions
provided by Xxxxxx. The Fee shall be deemed earned by Xxxxxx during the term
of
the Conversion Agreement in equal amounts on the first twenty (20) anniversaries
of the date hereof. Upon being deemed earned as set forth in the preceding
sentence, the earned portion of the Fee shall be nonrefundable to TIMET.
In the
event that a Xxxxxx Successor (as defined in the Conversion Agreement) exercises
the option with respect to the Non-Compete Amendment (as defined in the
Conversion Agreement), the unearned portion of the Fee shall be reduced by
the
Non-Compete Amendment Fee (as defined in the Conversion Agreement), and the
amortization of the remaining unearned portion of the Fee shall be adjusted
based upon the remaining anniversaries of this Agreement. Notwithstanding
the
foregoing, the Fee shall not be deemed earned by Xxxxxx (i) from and after
the
time that TIMET has exercised any of its rights under Section 8(b) or (ii)
during (but not before or after) an Access Period if for any reason TIMET
does
not have in all material respects all of its rights set forth in Section
4.
Xxxxxx shall be required to repay the unearned portion of the Fee only in
accordance with the requirements of the Transaction Documents.
(d) Option
Note.
Upon
the exercise of the Option under the Conversion Agreement, under the terms
and
conditions set forth in the Conversion Agreement, Xxxxxx will execute the
Option
Note in the form attached to the Conversion Agreement as Exhibit B.
3. Grant
of Lien and Security Interests.
(a) First
Priority Lien Interest.
As
security for the Obligations, Xxxxxx hereby grants to TIMET a continuing
first
priority security interest in the Operating Assets, whether now owned or
hereafter acquired by Xxxxxx, or in which Xxxxxx now has or at any time in
the
future may acquire any right, title or interest (the “Collateral”).
On or
prior to the date hereof, (i) any applicable loan documents have been amended
to
reflect the first priority of the lien created hereunder and are otherwise
in
the form approved by TIMET, and (ii) any liens superior to the first priority
lien created hereunder have been released in forms reasonably acceptable
to
TIMET, and such documents will be delivered to TIMET within three (3) business
day from the date hereof.
(b) Financing
Statements.
Xxxxxx
hereby authorizes TIMET to file one or more financing statements, and amendments
thereto, relating to the Collateral.
(c) Non-disturbance.
On or
prior to the date hereof, Xxxxxx and any mortgagee or other party holding
an
interest in the Real Estate shall execute a non-disturbance agreement or
similar
agreement in favor of TIMET in form reasonably acceptable to TIMET, and such
documents will be delivered to TIMET within three (3) business day from the
date
hereof.
4. Right
of Access.
(a) General.
Upon
the occurrence of a Xxxxxx Bankruptcy Event or a Secured Facility Event,
TIMET
or its agreed-upon designee(s) shall have a right, but not the obligation,
to
use and occupy the Operating Assets to perform any or all of the Titanium
Conversion Services (the “Right
of Access”),
subject to the Maximum Monthly Volume and the Maximum Annual Volume, for
a
period commencing upon the Xxxxxx Bankruptcy Event or Secured Facility Event,
as
the case may be, and ending at the earlier of (i) the expiration of the term
of
the Conversion Agreement or (ii) the termination of the Right of Access pursuant
to Section 4(d), subject to reinstatement as set forth therein (the
“Access
Period”).
TIMET
may invoke the Right of Access by delivering written notice to Xxxxxx indicating
TIMET’s intention to invoke the Right of Access. TIMET shall have no right to
sell, transfer, or dispose of the Operating Assets as part of the Right of
Access.
(b) TIMET’s
Obligations.
If
TIMET invokes the Right of Access for itself or its designee(s), TIMET and
its
designee shall:
(i) Use
reasonable care in the custody and preservation of the Operating
Assets;
(ii) Indemnify,
defend and hold Xxxxxx and its officers, directors, employees and agents
harmless from any and all costs, expenses (including reasonable attorneys’
fees), losses, damages, liabilities or claims (collectively, “Claims”)
with
respect to injury to or death of persons occurring on the Real Estate to
the
extent arising out of the willful misconduct or gross negligence of TIMET
or its
officers, directors, employees or agents to the extent such Claims arise
or
accrue during an Access Period; and
(iii) Subject
to TIMET’s or its designee’s right to use and occupy the Operating Assets during
an Access Period, afford Xxxxxx any access requested by Xxxxxx to the Operating
Assets provided that such access does not in any material way interfere with
the
performance of the Titanium Conversion Services.
(c) If
TIMET
invokes its Right of Access for itself or its designee(s):
(i) Xxxxxx
shall use commercially-reasonable efforts to continue to employ those of
its
employees that TIMET determines are necessary or appropriate to perform the
Titanium Conversion Services;
(ii) If
TIMET
is required to retain personnel to perform Titanium Conversion Services or
incurs any other costs or expenses to perform Xxxxxx’ obligations under the
Conversion Agreement, all such personnel and other costs and expenses shall
be
credited against the payments due to Xxxxxx under the Conversion Agreement;
provided, however, that such credits in a single week may not exceed the
weekly
average cost to Xxxxxx in the prior fiscal year for similar personnel and
cost
and expenses, and any such excess shall be the sole responsibility of
TIMET.
(iii) Xxxxxx
shall indemnify, defend and hold TIMET, its designee(s) and their respective
officers, directors, employees and agents harmless from any and all Claims
to
the extent such Claims (1) arise or accrue prior to the commencement of an
Access Period or (2) arise or accrue during an Access Period and are not
covered
by Section 4(b)(ii).
(d) Right
to Terminate.
TIMET
shall have the absolute right to terminate the Right of Access upon twenty
(20)
days’ written notice to Xxxxxx. Xxxxxx shall have the right to cure a Xxxxxx
Bankruptcy Event or Secured Facility Event the occurrence of which gave rise
to
the Right of Access. Upon the completion of such cure and Xxxxxx’ providing
notice thereof to TIMET along with evidence that such Xxxxxx Bankruptcy Event
or
Secured Facility Event, as the case may be, has been cured in form reasonably
satisfactory to TIMET, the Right of Access shall be deemed terminated.
Notwithstanding the foregoing, TIMET shall have the absolute right to reinvoke
the Right of Access at any time after the occurrence of a subsequent Xxxxxx
Bankruptcy Event or Secured Facility Event giving rise to the Right of Access
by
delivering written notice to Xxxxxx indicating TIMET’s intention to reinvoke the
Right of Access.
(e) Irreparable
Harm; Limitation of Notice.
XXXXXX
ACKNOWLEDGE THAT TIMET MAY SUFFER IRREPARABLE HARM IF TIMET INVOKES THE RIGHT
OF
ACCESS AND XXXXXX FAILS TO COOPERATE WITH TIMET IN ALLOWING TIMET TO EXERCISE
THE RIGHT OF ACCESS UNDER THIS AGREEMENT OR IF TIMET IS OTHERWISE PREVENTED
FROM
EXERCISING SUCH RIGHT. ACCORDINGLY, PROVIDED THAT XXXXXX RECEIVES AT LEAST
FORTY-EIGHT (48) HOURS’ ACTUAL NOTICE OF ANY REQUEST FOR HEARINGS IN CONNECTION
WITH PROCEEDINGS INSTITUTED BY TIMET, XXXXXX WAIVES, TO THE FULLEST EXTENT
POSSIBLE UNDER APPLICABLE LAW, THE RIGHT TO NOTICE IN EXCESS OF FORTY-EIGHT
(48)
HOURS IN CONNECTION WITH ANY JUDICIAL PROCEEDINGS INSTITUTED BY TIMET TO
ENFORCE
THE RIGHT OF ACCESS.
5. License.
Xxxxxx
hereby grants TIMET a non-exclusive worldwide, irrevocable, fully paid, and
in
the event TIMET exercises its rights under Section 8(b) hereof, fully
transferable, right and license to use any Intellectual Property necessary
or
helpful for the performance of the Titanium Conversion Services for use by
TIMET
or a sublicensee (the “License”).
TIMET’s right to use the License shall include the right to grant one or more
third parties sublicenses for the performance of the Titanium Conversion
Services, provided, however, that any sublicensee must satisfy the terms
of this
Agreement, including Section 15, and sublicensing will have no effect on
TIMET’s obligations under this Agreement.
(a) Right
to Use License.
Although the License is being granted to TIMET as of the date set forth above,
TIMET agrees that, except as set forth under Section 5(e) below, neither
it nor
its sublicensees will utilize the License unless TIMET invokes the Right
to
Access and then TIMET and its sublicensee will only use the License
(i) during an Access Period and (ii) in connection with the
performance of the Titanium Conversion Services using the Operating
Assets.
(b) No
Royalty.
For all
purposes, Xxxxxx has been fully paid for the License and other rights granted
to
TIMET under this Agreement (except as otherwise provided in this Agreement)
and
no royalties, fees, payments, charges or other consideration shall be due
from
TIMET on account of the License or this Agreement or TIMET’s (or sublicensee’s)
use of the License or other rights granted pursuant to this Agreement. The
above
is not intended to relieve TIMET in any way of payment obligations under
the
Conversion Agreement.
(c) Protection
of Ownership.
TIMET
and its sublicensees, if any, shall treat and preserve the Intellectual Property
in accordance with the same practices employed by TIMET to safeguard its
own
intellectual property against unauthorized use and disclosure and, except
as set
forth under Section 5(e) below, will only use such information, data and
trade
secrets during an Access Period in connection with producing the Titanium
Conversion Services. The foregoing obligations of TIMET shall not be applicable
to information that is now or becomes hereafter available to the public through
no action, conduct, admission or fault of TIMET. Except as set forth under
Section 5(e) below, without waiving any rights under the Conversion Agreement,
which rights, if any, are expressly reserved, no such sub-licensees shall
have
any rights respecting the continued use of intellectual property upon
termination of an Access Period. The provisions of this Section 5(c) shall
survive termination of this Agreement.
(d) Sale
of Intellectual Property.
Nothing
contained herein shall prevent Xxxxxx from marketing and selling the
Intellectual Property subject to all rights of TIMET granted under this
Section 5.
(e) Transferability.
In the
event that TIMET exercises its rights under Section 8(b) hereof, TIMET
shall be permitted to transfer the License in connection with any sale, transfer
or other disposition of the Operating Assets. Each transferee of the License
shall obtain all of TIMET’s rights to the License hereunder. Each transferee
shall be required to use the License in connection with its use of the Operating
Assets, and any further transfer or assignment of the License may occur only
in
connection with a further sale, transfer or other disposition of the Operating
Assets.
6. Protection
of Performance.
TIMET
shall have the unlimited right to, among other things, enter into discussions,
negotiations, and agreements regarding the performance of the Titanium
Conversion Services by any potential alternative supplier(s), including without
limitation, any current or former agents, consultants, directors, employees,
or
officers of Xxxxxx so long as such parties are not subject to restrictions
under
a noncompetition agreement.
7. Rights
of TIMET; Limitations on TIMET’s Obligations.
Unless
TIMET exercises the Right of Access, in which case TIMET shall have the
obligations as are expressly provided in this Agreement, except as provided
by
applicable law, TIMET shall not have any obligation or liability by reason
of or
arising out of this Agreement. In no event shall TIMET be required or obligated
in any manner to perform or fulfill any of the obligations of Xxxxxx under
any
of the Transaction Documents.
8. TIMET’s
Remedies.
(a) Right
of Access.
Upon a
Xxxxxx Bankruptcy Event or a Secured Facility Event, TIMET may exercise the
Right of Access only on the terms and conditions set forth of Section 4.
Further, in connection with TIMET’s rights and remedies under this Agreement and
the other Transaction Documents:
(i) Xxxxxx
waives any right it may have to require TIMET to foreclose its security
interests and liens and/or reduce the Debt Obligations to a monetary
sum;
(ii) If
TIMET
exercises the Right of Access, TIMET’s use and occupancy of the Operating Assets
will not be deemed to be acceptance of such assets in satisfaction of the
Debt
Obligations; and
(iii) Except
as
otherwise provided herein, all of TIMET’s rights and remedies under this
Agreement are cumulative and not exclusive of any rights and remedies under
any
other agreement or under applicable law; provided, however, that if TIMET
exercises its rights under Section 8(b) hereof, it shall no longer be permitted
to exercise the, or must terminate any current, Right of Access.
(b) Right
to Repayment of the Debt Obligations and Foreclose on the
Collateral.
(i) In
addition to the remedies set forth in Section 8(a), upon a Default or an
Acceleration Event, TIMET, at TIMET’s option, may declare due and payable the
Debt Obligations, without notice, demand or presentment, all of which are
hereby
waived, and upon such declaration, the same shall become and shall be
immediately due and payable, and TIMET shall have the right to foreclose
on the
Collateral or otherwise enforce all liens or security interests securing
payment
of the Debt Obligations, or any part thereof, and offset against the Debt
Obligations any sum or sums owed by TIMET to Xxxxxx and exercise any powers
and
any and all other remedies permitted by Indiana law or provided in this
Agreement or in any other Transaction Documents. Failure of TIMET to exercise
the options set forth in this Section 8(b) shall not constitute a waiver of
the right to exercise the same upon the occurrence of a subsequent Default
or
Acceleration Event. Xxxxxx acknowledges that the power of sale granted by
this
Agreement may be exercised by TIMET without prior judicial hearing.
(ii) Upon
a
Default or an Acceleration Event, and provided that any access under a Right
of
Access is not continuing, TIMET is authorized prior or subsequent to the
institution of any foreclosure proceedings by private power of sale or otherwise
to enter upon the Real Estate, or any part thereof, to take possession of
the
Operating Assets and of all books, records and accounts relating exclusively
to
the Operating Assets, to have access at any reasonable time upon TIMET’s request
to review or make copies or facsimiles of any books, records and accounts
that
relate in part to the Operating Assets and in part to any other assets of
Xxxxxx, and to exercise without interference from Xxxxxx any and all rights
which Xxxxxx has with respect to the management, possession, operation,
protection or preservation of the Operating Assets, including the right to
operate the same for the account of Xxxxxx and to deduct from the proceeds
thereof all costs, expenses and liabilities of every character incurred by
TIMET
in collecting such proceeds and in managing, operating, maintaining, protecting
or preserving the Operating Assets and to apply the remainder of such proceeds
on the Debt Obligations secured hereby in such manner as TIMET may elect.
All
such costs, expenses and liabilities incurred by TIMET in collecting such
proceeds and in managing, operating, maintaining, protecting or preserving
the
Operating Assets, if not paid out of proceeds as hereinabove provided, shall
constitute a demand obligation owing by Xxxxxx and shall bear interest from
the
date that is ten (10) days after TIMET notifies Xxxxxx in writing of expenditure
until the date paid at the maximum lawful interest rate under applicable
law,
all of which shall constitute a portion of the Debt Obligations. If necessary
to
obtain the possession provided for above, TIMET may invoke any and all legal
remedies to dispossess Xxxxxx, including specifically one or more actions
for
forcible entry and detainer, trespass to try title and restitution. IN
CONNECTION WITH ANY ACTION TAKEN BY TIMET PURSUANT TO THIS SECTION 8(b)(ii),
TIMET SHALL NOT BE LIABLE FOR ANY LOSS SUSTAINED BY XXXXXX RESULTING FROM
ANY
FAILURE TO OPERATE THE OPERATING ASSETS, OR ANY PART THEREOF, OR FROM ANY
OTHER
ACT OR OMISSION OF TIMET IN MANAGING THE OPERATING ASSETS (REGARDLESS OF
WHETHER
SUCH LOSS IS CAUSED BY THE NEGLIGENCE OF TIMET OR ANY STRICT LIABILITY) UNLESS
SUCH LOSS IS CAUSED BY THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, BAD
FAITH OR ILLEGAL ACTION OF TIMET, NOR SHALL TIMET BE OBLIGATED TO PERFORM
OR
DISCHARGE ANY OBLIGATION, DUTY OR LIABILITY UNDER ANY AGREEMENT RELATING
TO THE
OPERATING ASSETS OR ANY PART THEREOF OR UNDER OR BY REASON OF THIS AGREEMENT
OR
THE EXERCISE OF RIGHTS OR REMEDIES HEREUNDER. XXXXXX SHALL AND DOES HEREBY
AGREE
TO INDEMNIFY AND DEFEND TIMET FOR, AND TO HOLD TIMET HARMLESS FROM, ANY AND
ALL
LIABILITY, LOSS OR DAMAGE WHICH MAY OR MIGHT BE INCURRED BY TIMET UNDER ANY
SUCH
AGREEMENT OR UNDER OR BY REASON OF THIS AGREEMENT OR THE EXERCISE OF RIGHTS
OR
REMEDIES HEREUNDER AND FROM ANY AND ALL CLAIMS AND DEMANDS WHATSOEVER WHICH
MAY
BE ASSERTED AGAINST TIMET BY REASON OF ANY ALLEGED OBLIGATIONS OR UNDERTAKINGS
ON ITS PART TO PERFORM OR DISCHARGE ANY OF THE TERMS, COVENANTS OR AGREEMENTS
CONTAINED IN ANY SUCH AGREEMENT, REGARDLESS OF WHETHER SUCH LIABILITY, LOSS,
DAMAGE, CLAIMS OR DEMANDS ARE THE RESULT OF THE NEGLIGENCE OF TIMET OR ANY
STRICT LIABILITY, UNLESS SUCH LOSS IS CAUSED BY THE GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, FRAUD, BAD FAITH OR ILLEGAL ACTION OF TIMET. Should TIMET incur
any
such liability, the amount thereof, including costs, expenses and reasonable
attorney’s fees, shall be secured hereby and Xxxxxx shall reimburse TIMET within
ten (10) days after written demand therefor. Nothing in this Section 8(b)(ii)
shall impose any duty, obligation or responsibility upon TIMET for the control,
care, management or repair of the Operating Assets, nor for the carrying
out of
any of the terms and conditions of any such agreement; nor shall it operate
to
make TIMET responsible or liable for any waste committed on the Operating
Assets
by any parties or for any dangerous or defective condition of the Operating
Assets, OR FOR ANY NEGLIGENCE IN THE MANAGEMENT, UPKEEP, REPAIR OR CONTROL
OF
THE OPERATING ASSETS RESULTING IN LOSS OR INJURY OR DEATH TO ANY LICENSEE,
EMPLOYEE OR STRANGER OR ANY STRICT LIABILITY. Xxxxxx hereby assents to, ratifies
and confirms any and all actions of TIMET with respect to the Operating Assets
taken under this Section 8(b)(ii), other than any actions constituting TIMET’s
gross negligence, willful misconduct, fraud, bad faith or illegal action.
For
purposes of this paragraph, the term “TIMET” shall include the directors,
officers, employees, attorneys and agents of TIMET and any persons or entities
owned or controlled by, owning or controlling, or under common control or
affiliated with TIMET.
(iii) In
addition to all other remedies herein provided for, Xxxxxx agrees that upon
a
Default or an Acceleration Event, and provided that any access under a Right
of
Access is not continuing, TIMET shall as a matter of right be entitled to
the
appointment of a receiver or receivers for all or any part of the Operating
Assets, whether such receivership be incident to a proposed sale of such
assets
or otherwise, and without regard to the value of the Operating Assets or
the
solvency of any person or persons liable for the payment of the Debt Obligations
secured hereby, and Xxxxxx does hereby consent to the appointment of such
receiver or receivers, waives any and all defenses to such appointment and
agrees not to oppose any application therefor by TIMET, but nothing herein
is to
be construed to deprive TIMET of any other right, remedy or privilege it
may now
have under the law to have a receiver appointed. Any money advanced by TIMET
in
connection with any such receivership shall be a demand obligation owing
by
Xxxxxx to TIMET and shall bear interest from the date that is ten (10) days
after written notice from TIMET after such advancement by TIMET until the
date
paid at the maximum lawful interest rate under applicable law, and all of
which
shall be a part of the Debt Obligations and shall be secured by this Agreement
and by any other instrument securing the Debt Obligations.
(iv) TIMET
shall have the right to become the purchaser at any sale held by TIMET or
any
trustee or substitute or successor or by any receiver or public officer,
and in
such event TIMET shall have the right to credit upon the amount of the bid
made
therefor, to the extent necessary to satisfy such bid, the Debt Obligations
owing to TIMET.
(v) Upon
a
Default or an Acceleration Event, TIMET may exercise its rights of enforcement
with respect to the Collateral under the Code, as amended, and in conjunction
with, in addition to or in substitution for those rights and
remedies:
(1) TIMET
may
enter upon the Real Property to take possession of, assemble and collect
the
Collateral or to render it unusable; and
(2) written
notice mailed to Xxxxxx as provided herein ten (10) days prior to the date
of
public sale of the Collateral or prior to the date after which private sale
of
the Collateral will be made shall constitute reasonable notice; and
(3) any
sale
made pursuant to the provisions of this paragraph shall be deemed to have
been a
public sale conducted in a commercially reasonable manner if held
contemporaneously with the sale of the Collateral under power of sale as
provided herein upon giving the same notice with respect to the sale of the
Collateral hereunder as is required for such sale of the Collateral under
power
of sale; and
(4) in
the
event of a foreclosure sale, whether made by the TIMET or its designee,
successor or substitute under the terms hereof, or under judgment of a court,
the Collateral may, at the option of TIMET, be sold as a whole; and
(5) it
shall
not be necessary that TIMET take possession of the Collateral or any part
thereof prior to the time that any sale pursuant to the provisions of this
paragraph is conducted and it shall not be necessary that the Collateral
or any
part thereof be present at the location of such sale; and
(6) prior
to
application of proceeds of disposition of the Collateral to the Debt
Obligations, such proceeds shall be applied to the reasonable expenses of
retaking, holding, preparing for sale or lease, selling, leasing and the
like
and the reasonable attorney’s fees and legal expenses incurred by TIMET;
and
(7) any
and
all statements of fact or other recitals made in any xxxx of sale or assignment
or other instrument evidencing any foreclosure sale hereunder as to nonpayment
of the indebtedness or as to the occurrence of any default, or as to TIMET
having declared all of such indebtedness to be due and payable, or as to
notice
of time, place and terms of sale and of the properties to be sold having
been
duly given, or as to any other act or thing having been duly done by TIMET,
shall be taken as prima facie evidence of the truth of the facts so stated
and
recited; and
(8) TIMET
may
appoint or delegate any one or more persons as agent to perform any act or
acts
necessary or incident to any sale held by TIMET, including the sending of
notices and the conduct of the sale, but in the name and on behalf of
TIMET.
(vi) All
remedies herein expressly provided for are cumulative of any and all other
remedies existing at law or in equity and are cumulative of any and all other
remedies provided for in any other instrument securing the payment of the
Debt
Obligations, or any part thereof, or otherwise benefiting TIMET, and TIMET
shall, in addition to the remedies herein provided, be entitled to avail
itself
of all such other remedies as may now or hereafter exist at law or in equity
for
the enforcement of the covenants herein and the foreclosure of the liens
and
security interests evidenced hereby, and the resort to any remedy provided
for
hereunder or under any such other instrument or provided for by law shall
not
prevent the concurrent or subsequent employment of any other appropriate
remedy
or remedies.
(vii) To
the
fullest extent permitted by law, TIMET may resort to any security given by
this
Agreement or to any other security now existing or hereafter given to secure
the
payment of the Debt Obligations, in whole or in part, and in such portions
and
in such order as may seem best to TIMET in its sole and uncontrolled discretion,
and any such action shall not in anywise be considered as a waiver of any
of the
rights, benefits, liens or security interests evidenced by this
Agreement.
(viii) To
the
full extent Xxxxxx may do so, Xxxxxx agrees that it will not at any time
insist
upon, plead, claim or take the benefit or advantage of any law now or hereafter
in force pertaining to the rights and remedies of sureties or redemption,
and
Xxxxxx, for itself and its representatives, successors and assigns, and for
any
and all persons ever claiming any interest in the Operating Assets, to the
extent permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of intention to mature
or
declare due the whole of the secured indebtedness, notice of election to
mature
or declare due the whole of the secured indebtedness, notices as provided
for
under the Code, and all rights to a marshaling of the assets of Xxxxxx,
including the Operating Assets, or to a sale in inverse order of alienation
in
the event of foreclosure of the liens and security interests hereby created.
Xxxxxx shall not have or assert any right under any statute or rule of law
pertaining to the marshaling of assets, sale in inverse order of alienation,
the
exemption of homestead, the administration of estates of decedents or other
matters whatever to defeat, reduce or affect the right of TIMET under the
terms
of this Agreement to a sale of the Operating Assets for the collection of
the
secured indebtedness without any prior or different resort for collection,
or
the right of TIMET under the terms of this Agreement to the payment of such
Obligations out of the proceeds of sale of the Operating Assets in preference
to
every other claimant whatever. If any law referred to in this paragraph and
now
in force, of which Xxxxxx or their representatives, successors and assigns
and
such other persons claiming any interest in the Operating Assets might take
advantage despite this paragraph, shall hereafter be repealed or cease to
be in
force, such law shall not thereafter be deemed to preclude the application
of
this paragraph. Without limiting the foregoing, Xxxxxx and any surety or
guarantor of the indebtedness secured hereby waives, to the maximum extent
not
prohibited under applicable law, the following: (1) any requirement that
TIMET
first take any action whatsoever against Xxxxxx or any other party, or file
any
claim in the event of Xxxxxx’ bankruptcy, in order to enforce the obligations of
Xxxxxx under this Agreement or any other Transaction Document, (2) failure
to
protect, preserve or resort to any Collateral, (3) failure of TIMET to
notify Xxxxxx of any assignment of the Transaction Documents or any part
thereof, (4) all rights if Xxxxxx or any other person is found not liable
for
the Debt Obligations secured hereby or any part thereof for any reason, and
regardless of any joinder of Xxxxxx or any other person in any action to
obtain
payment or performance of any or all of the indebtedness secured hereby,
and
(5) all rights and defenses in connection with any full or partial release
of the liability of Xxxxxx. Xxxxxx authorizes TIMET, without notice to or
consent of Xxxxxx, and without affecting Xxxxxx’ liability hereunder, from time
to time to change the terms under any document (other those to which Xxxxxx
is a
party), including, without limitation, exchanging, enforcing, waiving or
releasing any security with regard to the Debt Obligations, releasing any
other
guarantor or exercising or refraining from exercising any right or remedy
of
TIMET.
(ix) Upon
a
Default or an Acceleration Event, Xxxxxx shall be liable for reimbursing
TIMET
for all expenses incurred by TIMET as a result of such Default or Acceleration
Event, including, but not limited to, all travel costs, third-party appraisal
fees, report preparation and testing fees, consultants’ fees and reasonable
legal fees and expenses.
(x) Xxxxxx
agrees that any disclaimer of warranties in a foreclosure sale of any or
all of
the Collateral will not render the sale commercially unreasonable.
9. Injunctive
Relief.
GIVEN
THAT TIMET MAY INCUR SIGNIFICANT DAMAGES IF XXXXXX FAILS TO TIMELY SATISFY
ITS
OBLIGATIONS TO TIMET AND TIMET’S OPERATIONS MAY BE NEGATIVELY IMPACTED, AND
BECAUSE TIMET DOES NOT HAVE AN ADEQUATE REMEDY AT LAW AND WOULD BE IRREPARABLY
HARMED BY SUCH EVENTS AND BECAUSE THE OPERATING ASSETS ARE UNIQUE, AND BECAUSE
XXXXXX IS OBTAINING INTELLECTUAL PROPERTY/KNOW-HOW FROM TIMET THAT WOULD
COMPETITIVELY HARM TIMET, XXXXXX AGREES THAT TIMET SHALL BE ENTITLED TO
INJUNCTIVE RELIEF (BOTH PROHIBITIVE AND MANDATORY) IN CONNECTION WITH ANY
DEFAULT BY XXXXXX UNDER THIS AGREEMENT OR THE TRANSACTION DOCUMENTS TO AFFORD
TIMET ITS RIGHT OF ACCESS UNDER THIS AGREEMENT, IN ADDITION TO ALL OTHER
RIGHTS
AND REMEDIES IN LAW OR AT EQUITY.
10. Representations
and Warranties.
Xxxxxx
represents and warrants to TIMET that:
(a) Title;
No Other Security Interests.
Except
for the security interest granted under this Agreement to TIMET and the
Permitted Encumbrances, Xxxxxx owns the Collateral free and clear of any
and all
security interests or claims.
(b) Address;
Etc.
Xxxxxx’
chief executive office is set forth in Section 22 and the location of the
Collateral is described in Exhibit C
and
neither location shall not be changed without prior written notice to TIMET
(but
any such change or the failure of the Collateral to be located at such address
shall not exclude any of the Collateral from being subject to the security
interest granted therein). Xxxxxx must immediately advise TIMET in writing
of
any change in its name, trade name, address, state of organization, or form
of
organization. Xxxxxx’ exact name, entity type and organizational number issued
by the Secretary of State of Delaware are set forth on the first page
hereof.
(c) Trade
Names.
Any and
all trade names under which Xxxxxx transacts any part of its business, and
all
former names of Xxxxxx used since 1986, are those that have been previously
disclosed to TIMET in writing.
(d) Accuracy
of Information.
All
information, certificates, or statements given to TIMET under this Agreement
are
true and complete in all material respects.
11. Covenants.
Xxxxxx
covenants and agrees with TIMET that from and after the date of this Agreement
until the Debt Obligations are paid in full:
(a) Further
Documentation.
At any
time and from time to time, upon the written request of TIMET, and at Xxxxxx’
sole expense, Xxxxxx will promptly and duly execute and deliver to TIMET
any and
all such further instruments and documents and take such further action as
TIMET
may reasonably request for the purpose of obtaining the full benefits of
this
Agreement and of the rights and powers herein granted.
(b) Sales
or Dispositions of Assets.
Xxxxxx
will not sell or otherwise dispose of or encumber the Collateral, except
for
Permitted Encumbrances, without the written consent of TIMET; provided, however,
that the foregoing shall not be deemed to restrict a Change in
Control.
(c) Limitations
on Liens.
Xxxxxx
shall not permit or grant any liens (voluntary or involuntary) on any portion
of
the Collateral, except Permitted Encumbrances.
(d) Maintenance
of Insurance.
Xxxxxx
will at all times comply with the provisions of Section 7.1 of the Conversion
Agreement.
(e) Right
of Inspection; Cooperation.
In
addition to any rights TIMET may have under the Conversion Agreement, TIMET
and
its representatives shall, at TIMET’s expense, upon reasonable request and at
reasonable times, have the right to enter into and upon any premises where
any
of the Collateral is located for the purpose of inspecting the same, observing
the use thereof or otherwise protecting TIMET’s interests therein.
(f) Notice
of Default.
Xxxxxx
will provide immediate notice to TIMET, by way of facsimile transmission
and
overnight express mail service, of its or its attorneys’ or agents’ receipt of
any notice of default under Xxxxxx’ agreements with any secured creditors
including but not limited to taxing authorities. Xxxxxx hereby grants to
TIMET
the option, but not the obligation, to exercise whatever rights to cure defaults
that Xxxxxx has under such agreements or by law.
(g) Xxxxxx
Bankruptcy Event.
If a
Xxxxxx Bankruptcy Event occurs, Xxxxxx will support any request by TIMET
to lift
any stay imposed by any court (bankruptcy or otherwise) that might block
or
impede TIMET’s exercise of the Right of Access.
(h) Additional
Contracts.
Upon a
Default, Xxxxxx Bankruptcy Event, Secured Facility Event or Acceleration
Event,
Xxxxxx covenants and agrees (i) to provide or otherwise make available to
TIMET,
its affiliates, designee(s), successors and permitted assigns all rights,
privileges and benefits arising under any Additional Contract; (ii) to provide
notice of renewal, termination, breach or threatened breach of any Additional
Contract; and (iii) to provide notice of any lapse, revocation or threat
of
revocation of any permit or license that constitutes an Additional Contract.
Xxxxxx hereby grants TIMET the option, but not the obligation, upon a Default,
Xxxxxx Bankruptcy Event, Secured Facility Event or Acceleration Event, (x)
to
exercise whatever rights to cure any breach that Xxxxxx has under any Additional
Contract or by law and (y) to approach directly any party to an Additional
Contract for the purpose of arranging to obtain directly from such party
all
rights, privileges and benefits arising under such Additional Contract that
relate or pertain to the Mill, the Equipment, the Real Estate or the performance
of the Titanium Conversion Services.
12. Xxxxxx’
Remedies.
Upon
(a) TIMET’s consent to the filing of, or TIMET’s commencement or consent to the
commencement of, or a court’s entry of an order for relief in any TIMET
Bankruptcy Event under Chapter 7 of Xxxxx 00, Xxxxxx Xxxxxx Code; (b) a TIMET
Bankruptcy Event in which the Conversion Agreement is rejected by order of
a
court or by operation of law; or (c) the termination of the Conversion Agreement
by TIMET for any reason other than an Event of Default (as defined in the
Conversion Agreement) or TIMET’s exercise of its rights under Section 8(b) of
this Agreement, the entire unearned portion of the Fee shall be deemed fully
earned by Xxxxxx and nonrefundable to TIMET.
13. Lessor
Acknowledgments.
Upon
the request of TIMET, Xxxxxx will use commercially reasonable efforts to
deliver
to TIMET acknowledgements of the lessors of leased Operating Assets to TIMET’s
rights hereunder, in the form attached hereto as Schedule 13.
14. Term.
The
rights granted to TIMET under this Agreement shall continue until the expiration
of the term of the Conversion Agreement.
15. Confidential
Information and Data.
Without
limiting TIMET’s rights under this Agreement, to the extent the Operating Assets
include, or TIMET or its designee(s) otherwise comes into possession of or
becomes aware of, Xxxxxx’ trade secrets or proprietary information during
TIMET’s exercise of the Right of Access, TIMET and its designee(s) must (a) keep
the information, data, and trade secrets confidential; and (b) only use the
information, data, and trade secrets during an Access Period in connection
with
performing the Titanium Conversion Services. The provisions of this
Section 15 shall survive the termination of this Agreement. TIMET
acknowledges and agrees that Xxxxxx will suffer irreparable harm if TIMET
or its
designee(s) violate or breach their obligations under this Section 15. TIMET
agrees that Xxxxxx shall be entitled to injunctive relief (both prohibitive
and
mandatory) in connection with any violations by TIMET or its designee(s)
of
their obligations under this Section 15.
16. Indemnification.
Xxxxxx
shall indemnify TIMET and each of its affiliates and designees and their
respective officers, directors, employees, attorneys, and agents from, and
hold
each of them harmless against, any and all Claims which any of them may become
subject which directly or indirectly arise from or relate to (a) TIMET’s
exercise of any rights or remedies set forth in the Transaction Documents,
(b) any breach by Xxxxxx of any representation, warranty, covenant, or
other agreement contained in any of the Transaction Documents, (c) the
presence, release, threatened release, disposal, removal, or cleanup of any
hazardous material located on, about, within, or affecting any of the properties
or assets of Xxxxxx, or (d) any investigation, litigation, or other
proceeding, including, without limitation, any threatened investigation,
litigation, or other proceeding, relating to any of the foregoing; provided
that
such indemnity shall not be available to the extent that such losses,
liabilities, claims, damages, penalties, judgments, disbursements, costs,
expenses or fees resulted from the gross negligence or willful misconduct
of
TIMET or any other indemnitee. WITHOUT
LIMITING ANY PROVISION OF THIS AGREEMENT OR OF ANY OTHER TRANSACTION DOCUMENT,
IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH PERSON TO BE
INDEMNIFIED UNDER THIS SECTION SHALL BE INDEMNIFIED FROM AND HELD HARMLESS
AGAINST ANY AND ALL CLAIMS ARISING OUT OF OR RESULTING FROM THE SOLE OR
CONTRIBUTORY NEGLIGENCE OF SUCH PERSON.
17. Severability.
Should
any provision of this Agreement be held invalid, prohibited or unenforceable
in
any one jurisdiction it shall, as to that jurisdiction only, be ineffective
to
the extent of such holding without invalidating the remaining provisions
of this
Agreement, and any such holding does not invalidate or render unenforceable
that
provision in any other jurisdiction wherein it would be valid and
enforceable.
18. Authorization.
The
parties executing this Agreement as representatives warrant that they have
the
power and authority to execute this Agreement on behalf of the entity that
they
represent and that their signatures bind said entities to the terms of this
Agreement.
19. Section
Headings.
The
Section headings used in this Agreement are for convenience of reference
only
and are not to affect the construction hereof or be taken into consideration
in
the interpretation of this Agreement. All references to Sections and Schedules
are to Sections and Schedules in or to this Agreement unless otherwise
specified.
20. No
Waiver; Cumulative Remedies.
The
Parties shall not by any act, delay, indulgence, omission, or otherwise be
deemed to have waived any right or remedy under this Agreement or of any
breach
of the terms and conditions of this Agreement. A waiver by the Parties of
any
right or remedy under this Agreement on any one occasion shall not be construed
as a bar to any right or remedy that the Parties would otherwise have had
on a
subsequent occasion. No failure to exercise nor any delay in exercising on
the
part of either Party of any right, power, or privilege under this Agreement,
shall operate as a waiver, nor shall any single or partial exercise of any
right, power or privilege under this Agreement preclude any other or future
exercise thereof or the exercise of any other right, power or privilege.
The
rights and remedies under this Agreement are cumulative, may be exercised
singly
or concurrently, and are not exclusive of any rights and remedies provided
by
any other agreements or applicable law.
21. Waivers
and Amendments; Successors and Assigns.
No term
or provision of this Agreement may be waived, altered, modified, or amended
except by a written instrument, duly executed by Xxxxxx and TIMET. This
Agreement and all of Xxxxxx’ obligations are binding upon the successors and
assigns of Xxxxxx, and together with the rights and remedies of TIMET under
this
Agreement, inure to the benefit of TIMET and its successors and assigns.
Xxxxxx
may not assign or transfer any right or obligation under this Agreement without
the prior written consent of TIMET. Notwithstanding the foregoing, Xxxxxx
shall
be permitted to assign this Agreement to its successor in connection with
a
Change in Control provided that such successor assumes all of Xxxxxx’
obligations under this Agreement and each of the other Transaction
Documents.
22. Governing
Law and Forum.
Except
with respect to the creation, perfection, priority and enforcement of the
liens
and security interests created hereby, which shall be construed in accordance
with and governed by the laws of the State of Indiana, this Agreement shall
be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware. Each of the parties hereby irrevocably submits to the
jurisdiction of the courts of the State of Delaware or the United States
District Court for the District of Delaware, over any suit, action or proceeding
arising out of or relating to this Agreement and covenants and agrees that
such
courts shall have exclusive jurisdiction over any such suit, action or
proceeding. Each party irrevocably waives, to the fullest extent permitted
under
applicable law, any objections it may now or hereafter have to the venue
of any
suit, action or proceeding brought in such court and any claim that the same
has
been brought in an inconvenient forum.
23. Notices.
All
notices, requests, and other communications that are required or may be given
under this Agreement must be in writing, and shall be deemed to have been
given
on the date of delivery, if delivered by hand, telecopy or courier, or three
days after mailing, if mailed by certified or registered mail, postage prepaid,
return receipt requested, addressed as set forth below (which addresses may
be
changed, from time to time, by notice given in the manner provided in this
Section 23):
If
to
Xxxxxx, to: Xxxxxx
International, Inc.
0000
Xxxx
Xxxx Xxxxxx
X.X.
Xxx
0000
Xxxxxx,
Xxxxxxx 00000-0000
Attn:
Xxxxxx Xxxxxx, Chief Financial Officer
Facsimile:
(000) 000-0000
Attn:
Xxxxx X. Xxxxxx, V.P. - General Counsel
Facsimile:
(000) 000-0000
with
a
copy to: Ice
Xxxxxx LLP
Xxx
Xxxxxxxx Xxxxxx
00xx
Xxxxx
Xxxxxxxxxxxx,
XX 00000-0000
Attn:
Xxxxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
If
to
TIMET, to: Titanium
Metals Corporation
3
Lincoln
Centre
0000
XXX
Xxxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Facsimile:
(000) 000-0000
Attention:
General Counsel
with
a
copy to: Xxxxx
Liddell & Xxxx LLP
0000
Xxxx
Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxx X. Xxxxxxxxxxx, Esq.
Xxxx
Xxxxxxxxx, Esq.
24. No
Intended Third Party Beneficiary.
The
parties hereto acknowledge and agree that, other than the rights of the
indemnitees named herein, the rights and interests of the parties under this
Agreement are intended to benefit solely the parties to this
Agreement.
25. Effectiveness
of this Agreement.
This
Agreement shall be effective upon the completion of the following
conditions:
(i)
TIMET’s perfection of its first priority interest in the Collateral;
and
(ii)
TIMET’s payment of the Fee.
26. Counterparts.
This
Agreement may be executed in any number of counterparts and by each party
hereto
on separate counterparts, each of which when so executed and delivered shall
be
an original, but all of which together shall constitute one and the same
instrument, and it shall not be necessary in making proof of this Agreement
to
produce or account for more than one such counterpart. For purposes of this
Agreement, signatures obtained by facsimile shall constitute original
signatures.
27. Entire
Agreement; Conflicts.
This
Agreement together with the other Transaction Documents and the exhibits
and
schedules hereto and thereto, and any other agreements executed in connection
herewith or therewith, constitutes the entire understanding of the parties
in
connection with the subject matter hereof. The terms and conditions of the
Conversion Agreement shall be unaffected by this Agreement. To the extent
any
term or condition of this Agreement is inconsistent or in conflict with the
terms of any Transaction Document, the terms of this Agreement shall govern
and
control.
28. CONSULTATION
WITH COUNSEL.
THE
PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE BEEN GIVEN THE OPPORTUNITY TO CONSULT
WITH COUNSEL BEFORE EXECUTING THIS AGREEMENT AND ARE EXECUTING SUCH AGREEMENT
WITHOUT DURESS OR COERCION AND WITHOUT RELIANCE ON ANY REPRESENTATIONS,
WARRANTIES OR COMMITMENTS OTHER THAN THOSE REPRESENTATIONS, WARRANTIES AND
COMMITMENTS SET FORTH IN THIS AGREEMENT.
29. WAIVER
OF JURY TRIAL.
THE
PARTIES HERETO ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL
RIGHT, BUT THAT THIS RIGHT MAY BE WAIVED. THE PARTIES EACH HEREBY KNOWINGLY,
VOLUNTARILY AND WITHOUT COERCION, WAIVE ALL RIGHTS TO A TRIAL BY JURY OF
ALL
DISPUTES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR ANY OTHER AGREEMENTS
BETWEEN THE PARTIES. NO PARTY SHALL BE DEEMED TO HAVE RELINQUISHED THE BENEFIT
OF THIS WAIVER OF JURY TRIAL UNLESS SUCH RELINQUISHMENT IS IN A WRITTEN
INSTRUMENT SIGNED BY THE PARTY TO WHICH SUCH RELINQUISHMENT WILL BE
CHARGED.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
XXXXXX
INTERNATIONAL, INC.
By: /s/XXXXXXX X.
XXXXX
Name:
Xxxxxxx X. Xxxxx
Title:
President & CEO
TITANIUM
METALS CORPORATION
By: /s/XXXXX X. X'XXXXX
Name:
Xxxxx X. X'Xxxxx
Title:
Chief Financial Officer
DALLAS:
589241.00002: 1547388v2
SCHEDULE
13
LESSOR’S
ACKNOWLEDGMENT AND CONSENT
While
not
a party to the Access and Security Agreement (the “Access Agreement”) between
Titanium Metals Corporation (“TIMET”) and Xxxxxx International, Inc. (“Xxxxxx”)
dated November 17, 2006 the undersigned leases certain real estate and/or
equipment to Xxxxxx and, in such capacity, the undersigned acknowledges,
consents to, and agrees with, and agrees to be bound by, the terms and
conditions of the foregoing Agreement, including TIMET’s right to use the
Operating Assets during an Access Period. Capitalized terms used herein and
not
otherwise defined shall have the meanings assigned to such terms in the Access
Agreement.
LESSOR
By:
Name:
Title:
DALLAS:
589241.00002: 1547388v2
EXHIBIT
A
FORM
OF CONVERSION AGREEMENT
DALLAS:
589241.00002: 1547388v2
EXHIBIT
B
EQUIPMENT
DALLAS:
589241.00002: 1547388v2
EXHIBIT
C
REAL
PROPERTY
