“Notwithstanding anything herein to the
contrary, the liens and security interests granted to the Agent
pursuant to this Agreement and the exercise of any right or remedy
by the Agent hereunder, are subject to the limitations and
provisions of the Intercreditor Agreement dated as of December 29,
2006 (as amended, restated, supplemented or otherwise modified from
time to time, the “Intercreditor Agreement”), among
Bank of America, N.A., The Bank of New York Mellon Trust Company,
N.A. (formerly The Bank of New York Trust Company, N.A.), Neenah
Foundry Company and the Subsidiaries of Neenah Foundry Company
party thereto. In the event of any conflict between the terms of
the Intercreditor Agreement and the terms of this Agreement, the
terms of the Intercreditor Agreement shall
govern”.
THIS SECURITY
AGREEMENT (this “Agreement”) is made as of the 30th day
of September, 2008 by the undersigned Lien Grantor (the “Lien
Grantor”) in favor of The Bank of New York Mellon Trust
Company, N.A. (formerly The Bank of New York Trust Company, N.A.)
for the benefit of the Secured Parties (as defined below). Certain
capitalized terms as used herein are defined in Section 1
hereof. Unless otherwise defined herein, capitalized terms used
herein and defined in the Indenture (as defined below) shall be
used herein as therein defined or, if not defined in the Indenture,
as defined in the Code (as defined below).
WHEREAS, Neenah
Foundry Company (the “Issuer”) and The Bank of New York
Mellon Trust Company, N.A. (formerly The Bank of New York Trust
Company, N.A.), as trustee and collateral agent (in such capacity,
the “Agent”), have entered into an Indenture, dated as
of December 29, 2006 (as amended, restated, supplemented or
otherwise modified from time to time, the “Indenture”),
providing for the issuance of the 9 1 /2%
Senior Secured Notes due 2017 (“Notes”) of the Issuer,
all as contemplated therein (with the holders from time to time of
Notes being referred to herein as the “Noteholders”
and, together with the Agent, as the “Secured
Parties”);
WHEREAS, the
Issuer, various financial institutions from time to time party
thereto and Bank of America, N.A., as administrative agent and
collateral agent (in such capacity, the “ABL Agent”),
are party to and amended and restated loan and security agreement,
dated as of the date hereof (as so amended and restated and as the
same may be further amended, restated, supplemented or otherwise
modified from time to time, the “ABL
Agreement”);
WHEREAS, pursuant
to the Note Guaranty, each Guarantor has jointly and severally
guaranteed to the Secured Parties the payment when due of all the
Obligations;
WHEREAS, it is a
condition precedent to the issuance of Notes by the Issuer that the
Lien Grantor shall have executed and delivered to the Agent this
Agreement;
WHEREAS, the Lien
Grantor will obtain benefits from the issuance of Notes by the
Issuer under the Indenture and, accordingly, desires to execute
this Agreement in order to satisfy the condition described in the
preceding recital;
NOW, THEREFORE, in
consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement:
“ABL
Agent” shall have the meaning provided to such term in the
recitals hereto.
“ABL
Agreement” shall have the meaning provided to such term in
the recitals hereto.
“Account
Debtor” shall have the meaning provided to such term in the
ABL Agreement as in effect on the date hereof.
“Agreement”
shall have the meaning provided to such term in the
preamble.
“Cash
Collateral Account” shall have the meaning provided to such
term in Section 5.1.
“Cash
Distributions” shall mean dividends, interest and other
distributions and payments (including proceeds of liquidation, sale
or other disposition) made or received in cash upon or with respect
to any Collateral.
State of New York;
provided that, if perfection or the effect of perfection or
non-perfection or the priority of any Lien granted hereunder on any
Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than New York, “Code” shall
mean the Uniform Commercial Code as in effect from time to time in
such other jurisdiction for purposes of the provisions hereof
relating to such perfection, effect of perfection or non-perfection
or priority.
“Collateral”
shall mean all of the Property and interests in Property described
in Section 2 of this Agreement, and all other property that
now or hereafter secures the payment and performance of any of the
Obligations.
“Computer
Hardware and Software” shall mean all of the Lien
Grantor’s rights (including rights as licensee and lessee)
with respect to (i) computer and other electronic data
processing hardware, including all integrated computer systems,
central processing units, memory units, display terminals,
printers, computer elements, card readers, tape drives, hard and
soft disk drives, cables, electrical supply hardware, generators,
power equalizers, accessories, peripheral devices and other related
computer hardware; (ii) all Software and all software programs
designed for use on the computers and electronic data processing
hardware described in clause (i) above, including all
operating system software, utilities and application programs in
any form (source code and object code in magnetic tape, disk or
hard copy format or any other listings whatsoever); (iii) any
firmware associated with any of the foregoing; and (iv) any
documentation for hardware, Software and firmware described in
clauses (i), (ii) and (iii) above, including flow charts,
logic diagrams, manuals, specifications, training materials, charts
and pseudo codes.
“Environmental
Laws” shall have the meaning provided to such term in the ABL
Agreement as in effect on the date hereof.
“Event of
Default” shall have the meaning provided to such term in
Section 6.1.
“Intellectual
Property” shall have the meaning provided to such term in the
ABL Agreement as in effect on the date hereof.
“Intellectual
Property Mortgages” shall mean the Intellectual Property
Mortgages entered into between the Agent and the Lien Grantor in
respect of the Intellectual Property described therein for the
purpose of establishing the Agent’s Liens with respect to
such Intellectual Property.
“Lien
Grantor” shall have the meaning provided to such term in the
preamble.
“Liquid
Investment” means a Permitted Investment (other than
commercial paper) that matures within 30 days after it is
first included in the Collateral.
“Mortgage”
shall mean a mortgage creating the Lien on real property in favor
of the Agent for the benefit of the Secured Parties and with such
changes in the form thereof as the Agent shall request for the
purpose of conforming to local practice for similar instruments in
the jurisdiction where such real property is located.
“Noteholders”
shall have the meaning provided to such term in the recitals
hereto.
“Noteholder
Documents” shall mean, collectively, this Agreement, the
Indenture, the Note Guaranty, the Perfection Certificate and all
other agreements, instruments and documents now or hereafter
executed and/or delivered by the Lien Grantor to the Agent or any
other Secured Party in order to evidence or secure the Obligations,
as each may be amended, restated, supplemented or otherwise
modified from time to time.
“Notes”
shall have the meaning provided to such term in the recitals
hereto.
“Obligations”
shall mean, as to the Lien Grantor, all principal of all Notes
outstanding from time to time, all interest on such Notes
(including Post-Petition Interest), all other obligations with
respect to the Notes and all other advances, debts, liabilities,
obligations, covenants and duties arising, due or payable from the
Lien Grantor to the Agent or any other Secured Party of any kind or
nature, present or future, in each case arising under the Note
Guaranty, the Indenture or any of the other Noteholder Documents to
which the Lien Grantor is a party, whether direct or indirect
(including those acquired by assignment), absolute or contingent,
primary or secondary, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, attorneys’
fees and any other sums chargeable to the Lien Grantor under the
Note Guaranty, this Agreement or any of the other Noteholder
Documents.
“Perfection
Certificate” shall mean a certificate substantially in the
form of Exhibit A hereto, completed and supplemented with
the schedules contemplated thereby to the satisfaction of the
Agent, and signed by an officer of the Lien Grantor.
“Permitted
Investments” shall mean investments in:
|
|
(a)
|
|
direct obligations of, or
obligations the principal of and interest on which are
unconditionally guaranteed by, the United States (or by any agency
thereof to the extent such obligations are backed by the full faith
and credit of the United States), in each case maturing within one
year from the date of acquisition thereof;
|
|
|
|
|
|
|
|
(b)
|
|
commercial paper maturing within
270 days from the date of acquisition thereof and having, at
such date of acquisition, the highest credit rating obtainable from
S&P or from Moody’s;
|
|
|
|
|
|
|
|
(c)
|
|
certificates of deposit,
banker’s acceptances and time deposits maturing within
180 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States or any State thereof
which has a combined capital and surplus and undivided profits of
at least $500,000,000; and
|
|
|
|
|
|
|
|
(d)
|
|
fully collateralized repurchase
agreements with a term of not more than 30 days for securities
described in clause (a) above and entered into with a
financial institution satisfying the criteria described in clause
(c) above.
|
“Personal
Property Collateral” shall mean all property included in the
Collateral except Real Property Collateral.
“Property”
shall mean any interest of the Lien Grantor in any kind of property
or asset, whether real, personal or mixed, or tangible or
intangible.
“Post-Petition
Interest” shall mean any interest that accrues after the
commencement of any case, proceeding or other action relating to
the bankruptcy, insolvency or reorganization of the Lien Grantor
(or would accrue but for the operation of applicable bankruptcy or
insolvency laws), whether or not such interest is allowed or
allowable as a claim in any such proceeding.
“Real
Property Collateral” shall mean all real Property included in
the Collateral.
“Secured
Parties” shall have the meaning provided to such term in the
recitals hereto.
The foregoing
definitions shall be equally applicable to the singular and plural
of the defined terms.
2.1 Security
Interest in Collateral. To secure the prompt payment and
performance to the Agent and each other Secured Party of the
Obligations, the Lien Grantor hereby grants to the Agent, for the
benefit of the Secured Parties, a continuing Lien upon all of the
Lien Grantor’s assets, including all of the following
Property and interests in Property of the Lien Grantor, whether now
owned or existing or hereafter created, acquired or arising and
wheresoever located:
|
|
(a)
|
|
Accounts;
|
|
|
|
|
|
|
|
(b)
|
|
Certificated Securities;
|
|
|
|
|
|
|
|
(c)
|
|
Chattel Paper;
|
|
|
|
|
|
|
|
(d)
|
|
Computer Hardware and Software and
all rights with respect thereto, including, any and all licenses,
options, warranties, service contracts, program services, test
rights, maintenance rights, support rights, improvement rights,
renewal rights and indemnifications, and any substitutions,
replacements, additions or model conversions of any of the
foregoing;
|
|
|
|
|
|
|
|
(e)
|
|
Contract Rights;
|
|
|
|
|
|
|
|
(f)
|
|
Deposit Accounts;
|
|
|
|
|
|
|
|
(g)
|
|
Documents;
|
|
|
|
|
|
|
|
(h)
|
|
Equipment;
|
|
|
|
|
|
|
|
(i)
|
|
Financial Assets;
|
|
|
|
|
|
|
|
(j)
|
|
Fixtures;
|
|
|
|
|
|
|
|
(k)
|
|
General Intangibles, including
Payment Intangibles and Software;
|
|
|
|
|
|
|
|
(l)
|
|
Goods (including all of its
Equipment, Fixtures and Inventory), and all accessions, additions,
attachments, improvements, substitutions and replacements thereto
and therefor;
|
|
|
|
|
|
|
|
(m)
|
|
Instruments;
|
|
|
|
|
|
|
|
(n)
|
|
Intellectual Property;
|
|
|
|
|
|
|
|
(o)
|
|
Inventory;
|
|
|
|
|
|
|
|
(p)
|
|
Investment Property;
|
|
|
|
|
|
|
|
(q)
|
|
money (of every jurisdiction
whatsoever);
|
|
|
|
|
|
|
|
(r)
|
|
Letter-of-Credit Rights;
|
|
|
|
|
|
|
|
(s)
|
|
Payment Intangibles;
|
|
|
|
|
|
|
|
(t)
|
|
Security Entitlements;
|
|
|
|
|
|
|
|
(u)
|
|
Software;
|
|
|
(v)
|
|
Supporting Obligations;
|
|
|
|
|
|
|
|
(w)
|
|
Uncertificated Securities;
and
|
|
|
|
|
|
|
|
(x)
|
|
to
the extent not included in the foregoing, all other personal
property of any kind or description;
|
together with
all books, records, writings, data bases, information and other
property relating to, used or useful in connection with, or
evidencing, embodying, incorporating or referring to any of the
foregoing, and all Proceeds, products, offspring, rents, issues,
profits and returns of and from any of the foregoing; provided,
that to the extent that the provisions of any lease, license,
contract, permit, Document or Instrument expressly prohibit (which
prohibition is enforceable under applicable law) any assignment
thereof (unless such prohibition specifically excludes from its
scope an assignment for collateral security purposes) or the grant
of the Lien therein, (i) the Agent will not enforce its Lien
in the Lien Grantor’s rights under such lease, license,
contract, permit, Document or Instrument (other than in respect of
the Proceeds thereof) for so long as such prohibition continues,
and (ii) to the extent a violation of any such prohibition
caused by the Lien under this Section 2.1 would allow the
counterparty to any such lease, license, contract, permit, Document
or Instrument to terminate the same under applicable law, then such
lease, license, contract, permit, Document or Instrument (other
than in respect of the Proceeds thereof) shall not constitute
Collateral for so long as such prohibition continues; it being
understood that upon request of the Agent, the Lien Grantor will in
good faith use reasonable efforts to obtain consent for the
creation of the Lien in favor of the Agent (and to the
Agent’s enforcement of the Lien) in any lease, license,
contract, permit, Document or Instrument that prohibits any
assignment thereof or the grant of the Lien therein; and
provided , further , that no Lien is granted in any
“intent to use” trademark applications until such time
as a verified statement of use is filed.
2.2.1
Commercial Tort Claims . The Lien Grantor shall promptly
notify the Agent in writing upon having a Commercial Tort Claim
that arises after the Issue Date against any third party and, upon
request of the Agent, promptly enter into an amendment to this
Agreement and do such other acts or things reasonably deemed
necessary by the Agent to give the Agent a security interest in any
such Commercial Tort Claim. The Lien Grantor represents and
warrants that as of the date of this Agreement, to its knowledge,
it does not possess any Commercial Tort Claims.
2.2.2
Other Collateral . The Lien Grantor shall promptly
(i) notify the Agent in writing upon acquiring or otherwise
obtaining any Collateral after the date hereof that consists of
Deposit Accounts, Investment Property or Letter-of-Credit Rights in
(or relating to) an amount in excess of $250,000 or Electronic
Chattel Paper in (or relating to) an amount in excess of $1,000,000
and, upon the request of the Agent, promptly execute such other
documents, and do such other acts or things deemed appropriate by
the Agent to deliver to the Agent control with respect to such
Collateral; (ii) notify the Agent in writing upon acquiring or
otherwise obtaining any Collateral after the date hereof that
consists of Documents or Instruments in (or relating to) an amount
in excess of $250,000 and, upon the request of the Agent, will
promptly execute such
other
documents, and do such other acts or things deemed appropriate by
the Agent to deliver to the Agent possession of such Documents
which are negotiable and Instruments, and, with respect to
nonnegotiable Documents, to have such nonnegotiable Documents
issued in the name of the Agent; (iii) notify the Agent in
writing upon acquiring or otherwise obtaining any Collateral after
the date hereof that consists of motor vehicles and other Goods
subject to a certificate of title statute having an amount in
excess of $250,000 and, upon the request of the Agent, promptly
deliver such certificates of title, execute such other documents,
and do such other acts or things deemed appropriate by the Agent to
cause the Agent to have a perfected security interest with respect
to such Collateral; and (iv) with respect to any Collateral
having a value in excess of $250,000 that is in the possession of a
third party, other than Certificated Securities and Goods covered
by a Document, obtain an acknowledgement from the third party that
it is holding the Collateral for the benefit of the
Agent.
2.2.3
Lien Perfection; Further Assurances . The Lien Grantor shall
execute such instruments, assignments or documents as are necessary
to perfect the Agent’s Lien upon any of the Collateral and
shall take such other action as may be required to perfect or to
continue the perfection of the Agent’s Lien upon the
Collateral. Unless prohibited by applicable law, the Lien Grantor
hereby authorizes the Agent to execute and file any such financing
statement, including, without limitation, financing statements that
indicate the Collateral (i) as all assets of the Lien Grantor
or words of similar effect, or (ii) as being of an equal or
lesser scope, or with greater or lesser detail, than as set forth
in Section 2.1, on the Lien Grantor’s behalf. The Lien
Grantor also hereby ratifies its authorization for the Agent to
have filed in any jurisdiction any like financing statements or
amendments thereto if filed prior to the date hereof. The parties
agree that a carbon, photographic or other reproduction of this
Agreement shall be sufficient as a financing statement and may be
filed in any appropriate office in lieu thereof. At the
Agent’s request, the Lien Grantor shall also promptly execute
or cause to be executed and shall deliver to the Agent any and all
documents, instruments and agreements reasonably deemed necessary
by the Agent to give effect to or carry out the terms of the
Noteholder Documents.
3.
REPRESENTATIONS AND WARRANTIES . The Lien Grantor represents
and warrants that:
3.1 The Lien
Grantor is duly organized, validly existing and in good standing
under the laws of the jurisdiction identified as its jurisdiction
of organization in the Perfection Certificate.
3.2 The Lien
Grantor has good and marketable title to all its Collateral
(subject to exceptions that are, in the aggregate, not material),
free and clear of any Liens other than Permitted Liens.
3.3 The Lien
Grantor has not performed any acts that might prevent the Agent
from enforcing any of the provisions of the Noteholder Documents or
that would limit the Agent in any such enforcement. No financing
statement, security agreement, mortgage or similar or equivalent
document or instrument covering all or part of the Collateral owned
by the Lien Grantor is on file or of record in any jurisdiction in
which such filing or recording would be effective to perfect or
record the Lien on such Collateral, except financing statements,
mortgages or other similar or equivalent documents with respect to
Permitted Liens. After the Issue Date,
no Collateral
owned by the Lien Grantor will be in the possession or under the
control of any other Person having a claim thereto or security
interest therein, other than a Permitted Lien.
3.4 The
Agent’s Liens on all Personal Property Collateral owned by
the Lien Grantor (a) have been validly created, (b) will
attach to each item of such Collateral on the Issue Date (or, if
the Lien Grantor first obtains rights thereto on a later date, on
such later date) and (c) when so attached, will secure the
Obligations.
3.5 When the
relevant Mortgages have been duly executed and delivered, the
Agent’s Liens on all Real Property Collateral owned by the
Lien Grantor as of the Issue Date granted thereunder will have been
validly created and will secure the Obligations. When such
Mortgages have been duly recorded, the Liens will rank prior to all
other Liens (except Permitted Liens) on such Real Property
Collateral.
3.6 The Lien
Grantor has delivered the Perfection Certificate to the Agent. The
information set forth therein is correct and complete as of the
Issue Date. Within 60 days after the Issue Date, the Lien
Grantor will furnish to the Agent a file search report from each
relevant UCC filing office listed in the Perfection Certificate,
showing the filing made at such filing office to perfect the
Agent’s Liens on the Collateral.
3.7 When UCC
financing statements describing the Collateral set forth in
Exhibit D to the Perfection Certificate have been filed in the
offices specified in such Perfection Certificate, the Agent’s
Liens granted hereunder will constitute perfected security
interests in the Personal Property Collateral owned by the Lien
Grantor to the extent that a security interest therein may be
perfected by filing pursuant to the Code in such jurisdictions,
prior to all Liens and rights of others therein except Permitted
Liens. Except for (a) the filing of such UCC financing
statements, (b) the filing of the Intellectual Property
Mortgages and (c) the due recordation of the Mortgages, no
registration, recordation or filing with any governmental body,
agency or official is required in connection with the execution or
delivery of the Noteholder Documents or is necessary for the
validity or enforceability thereof or for the perfection or due
recordation of the Liens granted hereunder or for the enforcement
of the Liens.
4.
COVENANTS . The Lien Grantor covenants and agrees as
follows:
4.1 Location of
Collateral. All Collateral, other than Goods in transit, motor
vehicles, Goods in the possession of employees in the ordinary
course of business and other miscellaneous immaterial items of
Collateral not having a value that exceeds $250,000 in the
aggregate for all Grantors (as defined in the Intercreditor
Agreement), will at all times be kept by the Lien Grantor, or a
bailee, distributor, consignee, warehousemen or similar party of
the Lien Grantor, at one or more of the business locations set
forth in Exhibit B to the Perfection Certificate, as updated
by the Lien Grantor providing prior written notice to the Agent of
any new location.
4.2 Insurance
of Collateral .
4.2.1
The Lien Grantor shall maintain and pay f
|