SECURITY AGREEMENT
EXHIBIT 10.21
SECURITY AGREEMENT (this “Agreement”) dated as of September 26, 2006 by and between
AMERICAN COLOR GRAPHICS FINANCE, LLC, a Delaware limited liability company, having a place of
business at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 (the “Grantor”), and BANK OF
AMERICA, N.A., a national banking association, as collateral agent (in such capacity, the
“Collateral Agent” for the Secured Parties (as defined herein)), in consideration of the
mutual covenants contained herein and benefits to be derived herefrom.
WITNESSETH:
Reference is made to that certain Credit Agreement dated as of even date herewith (as the same
may be amended, modified, supplemented or restated hereafter, the “Credit Agreement”) by,
among others, (i) the Grantor, as borrower, (ii) the Lenders named therein, and (iii) Bank of
America, N.A., as Administrative Agent and Collateral Agent for the Lenders, and as Swingline
Lender.
The Lenders have agreed to make Loans to the Borrower pursuant to, and upon the terms and
subject to the conditions specified in, the Credit Agreement and the Contribution Agreement. The
obligation of the Lenders to make Loans is conditioned on, among other things, the execution and
delivery by the Grantor of an agreement in the form hereof to secure the Obligations.
Accordingly, the Grantor and the Collateral Agent, on behalf of itself and each other Secured
Party (and each of their respective successors and assigns) hereby agree as follows:
ARTICLE 1
Definitions
1.1 Generally. Unless the context otherwise requires, all capitalized terms used but
not defined herein shall have the meanings set forth in the Credit Agreement, and all references to
the UCC shall mean the Uniform Commercial Code as in effect from time to time in the State of New
York; provided, however, that if a term is defined in Article 9 of the UCC
differently from in another Article thereof, the term shall have the meaning set forth in Article
9, and provided further that if by reason of mandatory provisions of law,
perfection, or the effect of perfection or non-perfection, of the Security Interest in any
Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than New York, “UCC” means the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection
or effect of perfection or non-perfection or availability of such remedy, as the case may be.
1.2 Definition of Certain Terms Used Herein. As used herein, the following terms
shall have the following meanings:
“Accessions” shall have the meaning given that term in the UCC.
“Account Debtor” shall have the meaning given that term in the UCC.
“Blue Sky Laws” shall have the meaning assigned to such term in Section 6.1 of this
Agreement.
“Cash Collateral Account” shall have the meaning set forth in the Credit Agreement.
“Chattel Paper” shall have the meaning given that term in the UCC.
“Collateral” shall mean all of the Grantor’s right, title and interest in and to (a)
all Transferred Receivables and the Related Assets; (b) all cash and cash equivalents, Collections,
Financial Assets, Investment Property, Securities Entitlements and other Instruments or amounts
credited or deposited from time to time in any Lockbox, Concentration Account, the Cash Collateral
Account or the Disbursement Account; (c) all rights under the Contribution Agreement, the Servicing
Agreement, the Control Agreement, the Intercreditor Agreement and other related documents; (d) all
rights under all of the Transferred Receivables and related agreements, including rentals,
termination payments, casualty payments, termination rights, rights to compel performance and
guarantees, in each case, to the extent they relate to the Transferred Receivables; (e) all
insurance proceeds payable to Borrower in respect of the Transferred Receivables and any other
collateral and all proceeds of the voluntary or involuntary disposition of any of the Transferred
Receivables; (f) without limitation of clauses (a), (b), (c), (d) and (e) above, all Accounts,
Chattel Paper, Contracts, Documents, Equipment, Fixtures, Goods, Instruments, Inventory, Letter of
Credit Rights, Investment Property, General Intangibles, Payment Intangibles, Software, Supporting
Obligations, Securities Accounts, Securities Entitlements and Deposit Accounts of Grantor (in each
case, as such items are defined in the UCC); (g) all Commercial Tort Claims of Grantor; and (h) all
income, payments, Accessions to and Proceeds of the foregoing, including interest, rents, profits
and products.
“Collateral Agent’s Rights and Remedies” shall have the meaning assigned to such term
in Section 8.8.
“Commercial Tort Claim” shall have the meaning given that term in the UCC.
“Concentration Account” shall have the meaning set forth in the Credit Agreement.
“Contracts” shall have the meaning given that term in the UCC.
“Contribution Agreement” shall have the meaning set forth in the Credit Agreement.
“Control Agreement” shall have the meaning set forth in the Credit Agreement.
“Credit Agreement” shall have the meaning assigned to such term in the preliminary
statement of this Agreement.
“Deposit Account” shall have the meaning given that term in the UCC and shall also
include all demand, time, savings, passbook, or similar accounts maintained with a bank or other
financial institution.
2
“Disbursement Account” shall have the meaning set forth in the Credit Agreement.
“Documents” shall have the meaning given that term in the UCC.
“Equipment” shall include, without limitation, “equipment” as defined in the UCC, and
also all furniture, store fixtures, motor vehicles, rolling stock, machinery, office equipment,
plant equipment, tools, dies, molds, and other goods, property, and assets which are used and/or
were purchased for use in the operation or furtherance of the Grantor’s business, and any and all
Accessions or additions thereto, and substitutions therefor.
“Financial Asset” shall have the meaning given that term in the UCC.
“Financing Statement” shall have the meaning given that term in the UCC.
“General Intangibles” shall have the meaning given that term in the UCC, and shall
also include, without limitation, all: Payment Intangibles; rights to payment for credit extended;
deposits; amounts due to the Grantor; credit memoranda in favor of the Grantor; warranty claims;
tax refunds and abatements; insurance refunds and premium rebates; all means and vehicles of
investment or hedging, including, without limitation, options, warrants, and futures contracts;
records; customer lists; telephone numbers; goodwill; causes of action; judgments; payments under
any settlement or other agreement; literary rights; rights to performance; royalties; license
and/or franchise fees; rights of admission; licenses; franchises; license agreements, including all
rights of the Grantor to enforce same; permits, certificates of convenience and necessity, and
similar rights granted by any governmental authority; internet addresses and domain names;
developmental ideas and concepts; proprietary processes; blueprints, drawings, designs, diagrams,
plans, reports, and charts; catalogs; technical data; computer software programs (including the
source and object codes therefor), computer records, computer software, rights of access to
computer record service bureaus, service bureau computer contracts, and computer data; tapes,
disks, semi-conductors chips and printouts; user, technical reference, and other manuals and
materials; patents, patent applications and patents pending; trade secret rights, copyrights,
copyright applications, mask work rights and interests, and derivative works and interests; trade
names, trademarks, trademark applications, service marks, and service xxxx applications, together
with all goodwill connected with and symbolized by any of the foregoing; all other general
intangible property of the Grantor in the nature of intellectual property; proposals; cost
estimates, and reproductions on paper, or otherwise, of any and all concepts or ideas, and any
matter related to, or connected with, the design, development, manufacture, sale, marketing,
leasing, or use of any or all property produced, sold, or leased, by or credit extended or
services performed, by the Grantor, whether intended for an individual customer or the general
business of the Grantor, or used or useful in connection with research by the Grantor.
“Indemnitee” shall have the meaning assigned to such term in Section 8.6 of this
Agreement.
“Instruments” shall have the meaning given that term in the UCC.
“Intercreditor Agreement” shall have the meaning set forth in the Credit Agreement.
3
“Inventory” shall have the meaning given that term in the UCC, and shall also include,
without limitation, all: (a) Goods which (i) are leased by a Person as lessor, (ii) are held by a
Person for sale or lease or to be furnished under a contract of service, (iii) are furnished by a
Person under a contract of service, or (iv) consist of raw materials, work in process, or materials
used or consumed in a business; (b) Goods of said description in transit; (c) Goods of said
description which are returned, repossessed and rejected; (d) packaging, advertising, and shipping
materials related to any of the foregoing; (e) all names, marks, and General Intangibles affixed or
to be affixed thereto or associated therewith; and (f) Documents which represent any of the
foregoing.
“Investment Property” shall have the meaning given that term in the UCC.
“Letter-of-Credit Right” shall have the meaning given that term in the UCC and shall
also mean any right to payment or performance under a letter of credit, whether or not the
beneficiary has demanded or is at the time entitled to demand payment or performance.
“Lockbox” shall have the meaning set forth in the Credit Agreement.
“Payment Intangible” shall have the meaning given that term in the UCC, and shall also
refer to any General Intangible under which the Account Debtor’s primary obligation is a monetary
obligation.
“Proceeds” shall include, without limitation, “Proceeds” as defined in the UCC and
each type of property described in the definition of Collateral.
“Related Assets” shall have the meaning set forth in the Contribution Agreement.
“Secured Parties” shall have the meaning set forth in the Credit Agreement.
“Securities Account” shall have the meaning given that term in the UCC.
“Securities Entitlement” shall have the meaning given that term in the UCC.
“Securities Act” shall have the meaning assigned to such term in Section 6.1 of this
Agreement.
“Security” shall have the meaning given that term in the UCC.
“Security Interest” shall have the meaning assigned to such term in Section 2.1 this
Agreement.
“Servicing Agreement” shall have the meaning set forth in the Credit Agreement.
“Software” shall have the meaning given that term in the UCC.
“Supporting Obligation” shall have the meaning given that term in the UCC and shall
also refer to a Letter-of-Credit Right or secondary obligation that supports the payment or
performance of an Account, Chattel Paper, a Document, a General Intangible, an Instrument, or
Investment Property.
4
“Transferred Receivables” shall have the meaning set forth in the Contribution
Agreement.
1.3 Rules of Interpretation. The rules of interpretation specified in Section 1.04 of
the Credit Agreement shall be applicable to this Agreement.
ARTICLE 2
Security Interest
2.1 Security Interest. As security for the payment or performance, as the case may
be, in full of the Obligations, the Grantor hereby bargains, assigns, mortgages, pledges,
hypothecates and transfers to the Collateral Agent, its successors and assigns, for the benefit of
the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the
benefit of the Secured Parties, a security interest in, all of the Grantor’s right, title and
interest in, to and under the Collateral (the “Security Interest”). Without limiting the
foregoing, the Grantor hereby designates the Collateral Agent as the Grantor’s true and lawful
attorney, exercisable by the Collateral Agent whether or not an Event of Default exists, with full
power of substitution, at the Collateral Agent’s option, for the purpose of filing one or more
Financing Statements, continuation statements, or to sign other documents for the purpose of
perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by the
Grantor, without the signature of the Grantor (the Grantor hereby appointing the Collateral Agent
as such Person’s attorney to sign such Person’s name to any such instrument or document, whether or
not an Event of Default exists), and naming the Grantor as debtor and the Collateral Agent as
secured party.
2.2 No Assumption of Liability. The Security Interest is granted as security only and
shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or
modify, any obligation or liability of the Grantor with respect to or arising out of the
Collateral.
ARTICLE 3
Representations and Warranties
The Grantor represents and warrants to the Collateral Agent and the other Secured Parties
that:
3.1 Title and Authority. The Grantor has good and valid rights in, and title to, the
Collateral with respect to which it has purported to grant a Security Interest hereunder and has
full power and authority to grant to the Collateral Agent the Security Interest in such Collateral
pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of
this Agreement, without the consent or approval of any other Person other than any consent or
approval which has been obtained.
5
3.2 Validity and Priority of Security Interest. The Security Interest constitutes (a)
a legal and valid security interest in all of the Collateral securing the payment and performance
of the Obligations, and (b) upon the filing of appropriate financing statements or upon the
Collateral Agent obtaining control of the Collateral, a perfected security interest in all of the
Collateral. The Security Interest is and shall be prior to any other Lien on any of the
Collateral, subject only to those Permitted Encumbrances which have priority under Applicable Law.
3.3 Absence of Other Liens. The Collateral is owned by the Grantor free and clear of
any Lien, except for Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement.
Except as provided in the Loan Documents, the Grantor has not filed or consented to the filing of
(a) any Financing Statement or analogous document under the UCC or any other Applicable Law
covering any Collateral, (b) any assignment in which the Grantor assigns any Collateral or any
security agreement or similar instrument covering any Collateral with the United States Patent and
Trademark Office or the United States Copyright Office or (c) any assignment in which the Grantor
assigns any Collateral or any security agreement or similar instrument covering any Collateral with
any foreign governmental, municipal or other office, which Financing Statement or analogous
document, assignment, security agreement or similar instrument is still in effect, except, in each
case, for Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement.
3.4 Consignments. The Grantor has no possession of any property on consignment.
ARTICLE 4
Covenants
4.1 Change of Name; Location of Collateral; Records; Place of Business. The Grantor
agrees promptly to notify the Collateral Agent of (i) any change in its legal name or in any trade
name used to identify it in the conduct of its business or in the ownership of its properties, (ii)
any change in the location of its chief executive office, its principal place of business, any
office in which it maintains books or records relating to Collateral owned by it, or any office or
facility at which Collateral owned by it is located, including the establishment of any such new
office or facility, (iii) any change in its identity or organizational structure, (iv) any change
in its Federal Taxpayer Identification Number or organizational number, if any, assigned to it by
its state of organization, or (v) the acquisition by the Grantor of any property for which
additional filings or recordings are necessary to perfect and maintain the Collateral Agent’s
Security Interest therein. Upon receipt of such notice, Collateral Agent shall promptly make all
filings under the UCC or otherwise that are required in order for the Collateral Agent to continue
at all times following such change to have a valid, legal and perfected first priority security
interest in all of the Collateral, and the Grantor agrees not to effect or permit any change
referred to in the preceding sentence until all such filings have been made by the Collateral
Agent.
4.2 Protection of Security. The Grantor shall, at its own cost and expense, take any
and all actions reasonably necessary to defend title to the Collateral against all Persons and to
defend the Security Interest of the Collateral Agent in the Collateral and the priority thereof
against any Lien not expressly permitted pursuant to Section 6.02 of the Credit Agreement.
6
4.3 Further Assurances. The Grantor agrees, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further instruments and documents and take
all such actions as the Collateral Agent may from time to time reasonably request to assure,
preserve, protect and perfect the Security Interest and the rights and remedies created hereby,
including the payment of any fees and taxes required in connection with the execution and delivery
of this Agreement, the granting of the Security Interest and the filing of any Financing Statements
or other documents in connection herewith or therewith. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any promissory note or other
instrument, the Grantor shall notify the Collateral Agent and upon the request of the Collateral
Agent, such note or instrument shall be immediately pledged and delivered to the Collateral Agent,
duly endorsed in a manner satisfactory to the Collateral Agent.
4.4 Taxes; Encumbrances. At its option, the Collateral Agent may discharge past due
taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time
levied or placed on the Collateral and not permitted pursuant to Section 6.02 of the Credit
Agreement, and may take any other action which the Collateral Agent may deem necessary or desirable
to repair, maintain or preserve any of the Collateral to the extent the Grantor fails to do so as
required by the Credit Agreement or this Agreement, and the Grantor agrees to reimburse the
Collateral Agent on demand for any payment made or any expense incurred by the Collateral Agent
pursuant to the foregoing authorization; provided that the making of any such payments or
the taking of any such action by the Collateral Agent shall not be deemed to constitute a waiver of
any Default or Event of Default arising from the Grantor’s failure to have made such payments or
taken such action. Nothing in this Section 4.4 shall be interpreted as excusing the Grantor from
the performance of any covenants or other promises of the Grantor with respect to taxes,
assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set
forth herein or in the other Loan Documents.
4.5 Assignment of Security Interest.
(a) If at any time the Grantor shall take a security interest in any property of an Account
Debtor or any other Person to secure payment and performance of an Account, the Grantor shall
promptly assign such security interest to the Collateral Agent. Such assignment need not be filed
of public record unless necessary to continue the perfected status of the security interest against
creditors of, and transferees from, the Account Debtor or other Person granting the security
interest.
(b) To the extent that the Grantor is a beneficiary under any written letter of credit now or
hereafter issued in favor of the Grantor, the Grantor shall deliver such letter of credit to the
Collateral Agent. The Collateral Agent shall from time to time, at the request and expense of the
Grantor, make such arrangements with the Grantor as are in the Collateral Agent’s reasonable
judgment necessary and appropriate so that the Grantor may make any drawing to which the Grantor is
entitled under such letter of credit, without impairment of the Collateral Agent’s perfected
security interest in the Grantor’s rights to proceeds of such letter of credit or in the actual
proceeds of such drawing. At the Collateral Agent’s request, the Grantor shall, for any letter of
credit, whether or not written, now or hereafter issued in favor of the Grantor as beneficiary,
execute and deliver to the issuer and any confirmer of such letter of credit an assignment of
proceeds form, in favor of the Collateral Agent and satisfactory to the Collateral Agent and such
issuer or (as the case may be) such confirmer, requiring the proceeds of any drawing under such
letter of credit to be paid directly to the Collateral Agent.
7
4.6 Continuing Obligations of the Grantor. The Grantor shall remain liable to observe
and perform all the conditions and obligations to be observed and performed by it under each
contract, agreement or instrument relating to the Collateral, all in accordance with the terms and
conditions thereof, and the Grantor agrees to indemnify and hold harmless the Collateral Agent and
the Secured Parties from and against any and all liability for such performance.
4.7 Use and Disposition of Collateral. The Grantor shall not make or permit to be
made an assignment, pledge or hypothecation of the Collateral or shall grant any other Lien in
respect of the Collateral or shall grant control (as defined in the UCC) of any Collateral to any
third person, except as expressly permitted by Section 6.02 of the Credit Agreement. Except as
expressly permitted in the Credit Agreement, the Grantor shall not make or permit to be made any
transfer of the Collateral, and the Grantor shall remain at all times in possession of the
Collateral owned by it, except that the Grantor may use and dispose of the Collateral in any lawful
manner not inconsistent with the provisions of this Agreement, the Credit Agreement or any other
Loan Document.
4.8 [Reserved].
4.9 Commercial Tort Claims. If the Grantor shall at any time acquire a Commercial
Tort Claim, the Grantor shall promptly notify the Collateral Agent in writing of the details
thereof and the Grantor shall take such actions as the Collateral Agent shall reasonably request in
order to grant to the Collateral Agent, for the ratable benefit of the Secured Parties, a perfected
and first priority security interest therein and in the Proceeds thereof.
4.10 Legend. The Grantor shall legend, in form and manner reasonably satisfactory to
the Collateral Agent, its Accounts and its books, records and documents evidencing or pertaining
thereto with an appropriate reference to the fact that such Accounts have been assigned to the
Collateral Agent for the benefit of the Secured Parties and that the Collateral Agent has a
security interest therein.
ARTICLE 5
Collections
5.1 Collections. The Grantor shall at all times comply with the Cash Receipts
provisions of Section 2.22 of the Credit Agreement and the Grantor shall cause the Servicer to
comply at all times with the provisions of the Servicing Agreement with respect to the
administration of Collections.
5.2 Power of Attorney. The Grantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as the
Grantor’s true and lawful agent and attorney-in-fact, and in such capacity the Collateral Agent
shall have the right, with power of substitution for the Grantor and in the Grantor’s name or
otherwise, for the use and benefit of the Collateral Agent and the other Secured Parties, (a) at
any time, whether or not a Default or Event of Default has occurred, to take actions required to be
taken by the Grantor under Section 2.1 of this Agreement, and (b) as permitted under the Credit
Agreement, (i) to take actions required to be taken by the Grantor under Section 5.1 of this
8
Agreement, (ii) to receive, endorse, assign and/or deliver any and all notes, acceptances,
checks, drafts, money orders or other evidences of payment relating to the Collateral or any part
thereof; (iii) to demand, collect, receive payment of, give receipt for and give discharges and
releases of all or any of the Collateral; (iv) to sign the name of the Grantor on any invoices,
schedules of Collateral, freight or express receipts, or bills of lading storage receipts,
warehouse receipts or other documents of title relating to any of the Collateral; (v) to sign the
name of the Grantor on any notice to the Grantor’s Account Debtors; (vi) to sign the name of the
Grantor on any proof of claim in bankruptcy against Account Debtors, and on notices of lien, claims
of mechanic’s liens, or assignments or releases of mechanic’s liens securing the Accounts; (vii) to
sign change of address forms to change the address to which the Grantor’s mail is to be sent to
such address as the Collateral Agent shall designate; (viii) to receive and open the Grantor’s
mail, remove any Proceeds of Collateral therefrom and turn over the balance of such mail either to
the Borrower or to any trustee in bankruptcy or receiver of the Grantor, or other legal
representative of the Grantor whom the Collateral Agent determines to be the appropriate person to
whom to so turn over such mail; (ix) to commence and prosecute any and all suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise
realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (x)
to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all
or any of the Collateral; (xi) to take all such action as may be necessary to obtain the payment of
any letter of credit and/or banker’s acceptance of which the Grantor is a beneficiary; (xii) to
repair, manufacture, assemble, complete, package, deliver, alter or supply goods, if any, necessary
to fulfill in whole or in part the purchase order of any customer of the Grantor; (xiii) to use,
license or transfer any or all General Intangibles of the Grantor; and (xiv) to use, sell, assign,
transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the
Collateral, and to do all other acts and things necessary to carry out the purposes of this
Agreement, as fully and completely as though the Collateral Agent were the absolute owner of the
Collateral for all purposes; provided, however, that nothing herein contained shall be construed as
requiring or obligating the Collateral Agent or any other Secured Party to make any commitment or
to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent
or any other Secured Party, or to present or file any claim or notice. It is understood and agreed
that the appointment of the Collateral Agent as the agent and attorney-in-fact of the Grantor for
the purposes set forth above is coupled with an interest and is irrevocable until such time as the
Obligations have been indefeasibly paid in full in cash and satisfied and the Security Interest has
been terminated in accordance with Section 8.13 hereof.
5.3 No Obligation to Act. The Collateral Agent shall not be obligated to do any of
the acts or to exercise any of the powers authorized by Section 5.2, but if the Collateral Agent
elects to do any such act or to exercise any of such powers, it shall not be accountable for more
than it actually receives as a result of such exercise of power, and shall not be responsible to
the Grantor for any act or omission to act except for any act or omission to act as to which there
is a final determination made in a judicial proceeding (in which proceeding the Collateral Agent
has had an opportunity to be heard) which determination includes a specific finding that the
subject act or omission to act had constituted gross negligence, willful misconduct or actual bad
faith. The provisions of Section 5.2 shall in no event relieve the Grantor of any of its
obligations hereunder or under any other Loan Document with respect to the Collateral or any part
thereof or impose any obligation on the Collateral Agent or any other Secured Party to proceed in
any particular manner with respect to the Collateral or any part thereof, or in any way limit the
exercise by the Collateral Agent or any other Secured Party of any other or further right which it
9
may have on the date of this Agreement or hereafter, whether hereunder, under any other Loan
Document, by law or otherwise.
ARTICLE 6
Remedies
6.1 Remedies upon Default. Upon the occurrence of an Event of Default, it is agreed
that the Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in
addition to all other rights and remedies, the rights and remedies of a secured party under the UCC
or other Applicable Law. Without limiting the foregoing, upon the occurrence of an Event of
Default, the rights and remedies of the Collateral Agent shall include, without limitation, the
right to take any of or all the following actions at the same or different times:
(a) With respect to any Collateral consisting of Accounts, General Intangibles
(including Payment Intangibles), Letter-of-Credit Rights, Instruments, Chattel Paper,
Documents, and Investment Property, the Collateral Agent may collect the Collateral with or
without the taking of possession of any of the Collateral.
(b) With respect to any Collateral consisting of Accounts, the Collateral Agent may (i)
demand, collect and receive any amounts relating thereto, as the Collateral Agent may
determine; (ii) commence and prosecute any actions in any court for the purposes of
collecting any such Accounts and enforcing any other rights in respect thereof; (iii)
defend, settle or compromise any action brought and, in connection therewith, give such
discharges or releases as the Collateral Agent may reasonably deem appropriate; (iv) without
limiting the Collateral Agent’s rights set forth in Section 5.2 hereof, receive, open and
dispose of mail addressed to the Grantor and endorse checks, notes, drafts, acceptances,
money orders, bills of lading, warehouse receipts or other instruments or documents
evidencing payment, shipment or storage of the goods giving rise to such Accounts or
securing or relating to such Accounts, on behalf of and in the name of the Grantor; and (v)
sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise
rights in respect of, any such Accounts or the goods or services which have given rise
thereto, as fully and completely as though the Collateral Agent were the absolute owner
thereof for all purposes.
(c) With respect to any Collateral consisting of Investment Property, the Collateral
Agent may (i) exercise all rights of the Grantor with respect thereto, including without
limitation, the right to exercise all voting and corporate rights at any meeting of the
shareholders of the Issuer of any Investment Property and to exercise any and all rights of
conversion, exchange, subscription or any other rights, privileges or options pertaining to
any Investment Property as if the Collateral Agent was the absolute owner thereof, including
the right to exchange, at its discretion, any and all of any Investment Property upon the
merger, consolidation, reorganization, recapitalization or other readjustment of the Issuer
thereof, all without liability except to account for property actually received as provided
in Section 5.3 hereof; (ii) transfer such Collateral at any time to itself, or to its
nominee, and receive the income thereon and hold the same as Collateral hereunder or apply
it to the Obligations; and (iii) demand, xxx for, collect or make any compromise or
settlement it deems desirable. The Grantor recognize that (a)
10
the Collateral Agent may be unable to effect a public sale of all or a part of the
Investment Property by reason of certain prohibitions contained in the Securities Act of
1933, 15 U.S.C. §77, (as amended and in effect, the “Securities Act”) or the
Securities laws of various states (the “Blue Sky Laws”), but may be compelled to
resort to one or more private sales to a restricted group of purchasers who will be obliged
to agree, among other things, to acquire the Investment Property for their own account, for
investment and not with a view to the distribution or resale thereof, (b) that private sales
so made may be at prices and upon other terms less favorable to the seller than if the
Investment Property were sold at public sales, (c) that neither the Collateral Agent nor any
Secured Party has any obligation to delay sale of any of the Investment Property for the
period of time necessary to permit the Investment Property to be registered for public sale
under the Securities Act or the Blue Sky Laws, and (d) that private sales made under the
foregoing circumstances shall be deemed to have been made in a commercially reasonable
manner.
(d) [Reserved].
(e) With or without legal process and with or without prior notice or demand for
performance, the Collateral Agent may enter upon, occupy, and use any premises owned or
occupied by the Grantor, and may exclude the Grantor from such premises or portion thereof
as may have been so entered upon, occupied, or used by the Collateral Agent until this
Agreement has been terminated in accordance with Section 8.13 hereof. The Collateral Agent
shall not be required to remove any of the Collateral from any such premises upon the
Collateral Agent’s taking possession thereof, and may render any Collateral unusable to the
Grantor. In no event shall the Collateral Agent be liable to the Grantor for use or
occupancy by the Collateral Agent of any premises pursuant to this Section 6.1, nor for any
charge (such as wages for the Grantor’s employees and utilities) incurred in connection with
the Collateral Agent’s exercise of the Collateral Agent’s Rights and Remedies (as defined
herein) hereunder.
(f) The Collateral Agent may require the Grantor to assemble the Collateral and make it
available to the Collateral Agent at the Grantor’s sole risk and expense at a place or
places which are reasonably convenient to both the Collateral Agent and such Grantor.
(g) The Grantor agrees that the Collateral Agent shall have the right, subject to
Applicable Law, to sell or otherwise dispose of all or any part of the Collateral, at public
or private sale, for cash, upon credit or for future delivery as the Collateral Agent shall
deem appropriate. Each purchaser at any such sale shall hold the property sold absolutely,
free from any claim or right on the part of the Grantor.
(h) Unless the Collateral is perishable or threatens to decline speedily in value, or
is of a type customarily sold on a recognized market (in which event the Collateral Agent
shall provide the Grantor such notice as may be practicable under the circumstances), the
Collateral Agent shall give the Grantor at least ten (10) days’ prior written notice, by
authenticated record, of the date, time and place of any proposed public sale, and of the
date after which any private sale or other disposition of the Collateral may be made, which
notice shall describe the Collateral that is the subject of the intended sale, state the
method of the intended sale and state that the Grantor is entitled to an
11
accounting of the Obligations and state the charge, if any, for such accounting. The
Grantor agrees that such written notice shall satisfy all requirements for notice to the
Grantor which are imposed under the UCC or other Applicable Law with respect to the exercise
of the Collateral Agent’s rights and remedies upon default. The Collateral Agent shall not
be obligated to make any sale or other disposition of any Collateral if it shall determine
not to do so, regardless of the fact that notice of sale or other disposition of such
Collateral shall have been given. The Collateral Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without further
notice, be made at the time and place to which the same was so adjourned.
(i) Any public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Collateral Agent may fix and state in the notice of such
sale. At any sale or other disposition, the Collateral, or portion thereof, to be sold may
be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in
its sole and absolute discretion) determine. If any of the Collateral is sold, leased, or
otherwise disposed of by the Collateral Agent on credit, the Obligations shall not be deemed
to have been reduced as a result thereof unless and until payment is finally received
thereon by the Collateral Agent.
(j) At any public (or, to the extent permitted by Applicable Law, private) sale made
pursuant to this Section 6.1, the Collateral Agent or any other Secured Party may bid for or
purchase, free (to the extent permitted by Applicable Law) from any right of redemption,
stay, valuation or appraisal on the part of the Grantor, the Collateral or any part thereof
offered for sale and may make payment on account thereof by using any claim then due and
payable to the Collateral Agent or such other Secured Party from the Grantor on account of
the Obligations as a credit against the purchase price, and the Collateral Agent or such
other Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of
such property without further accountability to the Grantor therefor.
(k) For purposes hereof, a written agreement to purchase the Collateral or any portion
thereof shall be treated as a sale thereof. The Collateral Agent shall be free to carry out
such sale pursuant to such agreement and the Grantor shall not be entitled to the return of
the Collateral or any portion thereof subject thereto, notwithstanding the fact that after
the Collateral Agent shall have entered into such an agreement all Events of Default shall
have been remedied and the Obligations paid in full.
(l) As an alternative to exercising the power of sale herein conferred upon it, the
Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the
Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or
decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver.
(m) To the extent permitted by Applicable Law, the Grantor hereby waives all rights of
redemption, stay, valuation and appraisal which the Grantor now has or may at any time in
the future have under any rule of law or statute now existing or hereafter enacted.
12
6.2 Application of Proceeds. After the occurrence of an Event of Default, the
Collateral Agent shall apply the proceeds of any collection or sale of the Collateral, as well as
any Collateral consisting of cash, or any Collateral granted under any other of the Security
Documents as set forth in Section 2.23(d) of the Credit Agreement. Upon any sale or other
disposition of the Collateral by the Collateral Agent (including pursuant to a power of sale
granted by statute or under a judicial proceeding), the receipt of the purchase money by the
Collateral Agent or of the officer making the sale or other disposition shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold or otherwise disposed of and
such purchaser or purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Collateral Agent or such officer or be answerable in any way for
the misapplication thereof.
ARTICLE 7
Perfection of Security Interest
7.1 Perfection by Filing. This Agreement constitutes an authenticated record, and
the Grantor hereby authorizes the Collateral Agent, pursuant to the provisions of Sections 2.1 and
5.2, to file one or more financing or continuation statements, and amendments thereto, relative to
all or any part of the Collateral, in such filing offices as the Collateral Agent shall deem
appropriate, and the Grantor shall pay the Collateral Agent’s reasonable costs and expenses
incurred in connection therewith. The Grantor hereby further agrees that a carbon, photographic,
or other reproduction of this Agreement shall be sufficient as a Financing Statement and may be
filed as a Financing Statement in any and all jurisdictions.
7.2 Other Perfection, Etc. The Grantor shall at any time and from time to time take
such steps as the Collateral Agent may reasonably request for the Collateral Agent (a) to obtain an
acknowledgment, in form and substance reasonably satisfactory to the Collateral Agent, of any
bailee having possession of any of the Collateral that the bailee holds such Collateral for the
Collateral Agent, (b) to obtain “control” of any Investment Property, Deposit Accounts,
Letter-of-Credit Rights or electronic Chattel Paper (as such terms are defined in the UCC), with
any agreements establishing control to be in form and substance satisfactory to the Collateral
Agent, and (c) otherwise to insure the continued perfection of the Collateral Agent’s security
interest in any of the Collateral with the priority described in Section 3.2 and of the
preservation of its rights therein.
7.3 Savings Clause. Nothing contained in this Article VII shall be construed to
narrow the scope of the Collateral Agent’s Security Interest in any of the Collateral or the
perfection or priority thereof or to impair or otherwise limit any of the Collateral Agent’s Rights
and Remedies hereunder except (and then only to the extent) as mandated by the UCC.
13
ARTICLE 8
Miscellaneous
8.1 Notices. All communications and notices hereunder shall (except as otherwise
expressly permitted herein) be in writing and given as provided in Section 9.01 of the Credit
Agreement.
8.2 Grant of Non-Exclusive License. In addition to (and not in limitation of) the
Security Interest granted by the Grantor in Section 2.1 hereof, upon the occurrence of an Event of
Default, the Grantor hereby grants to the Collateral Agent a royalty free, non-exclusive,
irrevocable license, to use, apply, and affix any trademark, trade name, logo, or the like in which
the Grantor now or hereafter has rights, such license being with respect to the Collateral Agent’s
exercise of the Collateral Agent’s Rights and Remedies hereunder.
8.3 Security Interest Absolute. All rights of the Collateral Agent hereunder, the
Security Interest and all obligations of the Grantor hereunder shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Loan
Document, any agreement with respect to any of the Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any other Loan Document, or any other agreement
or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from the Guaranty or any other
guarantee, securing or guaranteeing all or any of the Obligations, or (d) any other circumstance
that might otherwise constitute a defense available to, or a discharge of, the Grantor in respect
of the Obligations or this Agreement.
8.4 Survival of Agreement. All covenants, agreements, representations and warranties
made by the Grantor herein and in any other Loan Document and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this Agreement or any other
Loan Document shall be considered to have been relied upon by the Collateral Agent and the other
Secured Parties and shall survive the execution and delivery of this Agreement and the other Loan
Documents and the making of any Loans, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Agents or any Lender may have had notice or knowledge
of any Default or incorrect representation or warranty at the time any credit is extended under the
Loan Agreement, and shall continue in full force and effect as long as the Obligations are
outstanding and unpaid, and as long as the Commitments have not expired or terminated.
8.5 Binding Effect; Several Agreement; Assignments. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the successors and
assigns of such party, and all covenants, promises and agreements by or on behalf of the Grantor
that are contained in this Agreement shall bind and inure to the benefit of the Grantor and its
respective successors and assigns. This Agreement shall be binding upon the Grantor and the
Collateral Agent and their respective successors and assigns, and shall inure to the benefit of the
Grantor, the Collateral Agent and the other Secured Parties and their respective successors and
assigns, except that the Grantor shall not have the right to assign or transfer its rights or
obligations hereunder or any interest herein or in the Collateral (and any such attempted
14
assignment or transfer shall be void) except as expressly permitted by this Agreement or the
Credit Agreement.
8.6 Collateral Agent’s Fees and Expenses; Indemnification.
(a) Without limiting any of its obligations under the Credit Agreement or the other Loan
Documents, the Grantor agrees to pay all reasonable out-of-pocket expenses incurred by the
Collateral Agent, including the reasonable fees, charges and disbursements of any counsel and any
outside consultants for the Collateral Agent, in connection with (i) the administration of this
Agreement, (ii) the custody or preservation of, or the sale of, collection from or other
realization upon any of the Collateral, (iii) the exercise, enforcement or protection of any of the
Collateral Agent’s Rights and Remedies hereunder or (iv) the failure of the Grantor to perform or
observe any of the provisions hereof.
(b) Without limiting any of its indemnification obligations under the Credit Agreement or the
other Loan Documents, the Grantor shall indemnify each Secured Party and each Related Party of any
Secured Party (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,
including the reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result
of, (i) the execution or delivery or performance of this Agreement or any other Loan Document, the
performance by the Grantor of its obligations under this Agreement or any other Loan Document, or
the consummation of the transactions contemplated by the Loan Documents or any other transactions
contemplated hereby, or (ii) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing or to the Collateral, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses resulted from the gross negligence or willful
misconduct of any Indemnitee or any Affiliate of an Indemnitee (or of any officer, director,
employee, advisor or agent of such Indemnitee or any such Indemnitee’s Affiliates). In connection
with any indemnified claim hereunder, the Indemnitee shall be entitled to select its own counsel
and the Grantor shall promptly pay the reasonable fees and expenses of such counsel.
(c) Any such amounts payable as provided hereunder shall be additional Obligations secured
hereby and by the other Security Documents. All amounts due under this Section 8.6 shall be
payable promptly after written demand therefor.
8.7 Governing Law; Jurisdiction; Consent to Service of Process.
(a) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO
THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND
THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF
15
THE GENERAL OBLIGATIONS LAW BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES).
(b) The Grantor agrees that any suit for the enforcement of this Agreement or any other Loan
Document may be brought in any New York state or federal court sitting in New York County as the
Collateral Agent may elect in its sole discretion and consents to the non-exclusive jurisdiction of
such courts. The Grantor hereby waives any objection which it may now or hereafter have to the
venue of any such suit or any such court or that such suit is brought in an inconvenient forum.
The Grantor agrees that any action commenced by the Grantor asserting any claim or counterclaim
arising under or in connection with this Agreement or any other Loan Document shall be brought
solely in any New York state or federal court sitting in New York County as the Collateral Agent
may elect in its sole discretion and consents to the exclusive jurisdiction of such courts with
respect to any such action.
(c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01 of the Credit Agreement. Nothing in this Agreement or any
other Loan Document will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
8.8 Waivers; Amendment.
(a) The rights, remedies, powers, privileges, and discretions of the Collateral Agent
hereunder (herein, the “Collateral Agent’s Rights and Remedies”) shall be cumulative and
not exclusive of any rights or remedies which it would otherwise have. No delay or omission by the
Collateral Agent in exercising or enforcing any of the Collateral Agent’s Rights and Remedies shall
operate as, or constitute, a waiver thereof. No waiver by the Collateral Agent of any Event of
Default or of any Default under any other agreement shall operate as a waiver of any other Event of
Default or other Default hereunder or under any other agreement. No single or partial exercise of
any of the Collateral Agent’s Rights or Remedies, and no express or implied agreement or
transaction of whatever nature entered into between the Collateral Agent and any Person, at any
time, shall preclude the other or further exercise of the Collateral Agent’s Rights and Remedies.
No waiver by the Collateral Agent of any of the Collateral Agent’s Rights and Remedies on any one
occasion shall be deemed a waiver on any subsequent occasion, nor shall it be deemed a continuing
waiver. The Collateral Agent’s Rights and Remedies may be exercised at such time or times and in
such order of preference as the Collateral Agent may determine. The Collateral Agent’s Rights and
Remedies may be exercised without resort or regard to any other source of satisfaction of the
Obligations. No waiver of any provisions of this Agreement or any other Loan Document or consent
to any departure by the Grantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand on the Grantor in
any case shall entitle the Grantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to a written agreement entered into between the Collateral Agent and the Grantor subject
to any consent required in accordance with Section 9.02 of the Credit Agreement.
16
8.9 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS
OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH OF THE PARTIES HERETO REPRESENTS
THAT IT HAS REVIEWED THIS WAIVER AND IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
8.10 Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
8.11 Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
8.12 Headings. Article and Section headings used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.
8.13 Termination; Release of Collateral. Except for those provisions which expressly
survive the termination thereof, the Credit Agreement, this Agreement and the Security Interest
granted herein shall terminate when all the Obligations have been paid in full in cash and
performed in full and the Lenders have no further commitment to lend, at which time the Collateral
Agent shall execute or authorize and deliver to the Grantor, at the Grantor’s expense, all UCC
termination statements and similar documents that the Grantor shall reasonably request to evidence
such termination; provided, however, that the Credit Agreement, this Agreement, and the
Security Interest granted herein shall be reinstated if at any time payment, or any part thereof,
of any Obligation is rescinded or must otherwise be restored by any Secured Party upon the
bankruptcy or reorganization of the Grantor, and provided further that the Security
Interest granted herein shall not terminate as to any indemnification obligation of the Grantor
which expressly survives the termination of the Credit Agreement and this Agreement, including,
without limitation, the obligations of the Borrower set forth in Section 9.03 of the Credit
Agreement and the obligations of the Grantor set forth in Section 8.6 of this Agreement. Any
execution and delivery of termination statements or documents pursuant to this Section 8.13 shall
be without recourse to, or warranty by, the Collateral Agent.
[SIGNATURE PAGES FOLLOW]
17
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement under seal as of the
day and year first above written.
| GRANTOR: | AMERICAN COLOR GRAPHICS FINANCE, LLC |
|||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | President & Chief Executive Officer | |||
| COLLATERAL AGENT: | BANK OF AMERICA, N.A. |
|||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
