Back to top

SECURITY AGREEMENT

Security Agreement

SECURITY AGREEMENT | Document Parties: NEENAH ENTERPRISES, INC. | Bank of America, N.A., The Bank | Bank of New York Mellon Trust Company, N.A. | Bank of New York Trust Company, N.A. You are currently viewing:
This Security Agreement involves

NEENAH ENTERPRISES, INC. | Bank of America, N.A., The Bank | Bank of New York Mellon Trust Company, N.A. | Bank of New York Trust Company, N.A.

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: SECURITY AGREEMENT
Governing Law: New York     Date: 10/6/2008
Law Firm: Quarles Brady    

SECURITY AGREEMENT, Parties: neenah enterprises  inc. , bank of america  n.a.  the bank , bank of new york mellon trust company  n.a. , bank of new york trust company  n.a.
50 of the Top 250 law firms use our Products every day

Exhibit 10.2

EXECUTION VERSION

“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”.

SECURITY AGREEMENT

     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).

W I T N E S S E T H:

     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.

Security Agreement

 


 

     “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:

Security Agreement

 


 

 

(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.  SECURITY INTEREST .

     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:

Security Agreement

 


 

 

(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;

Security Agreement

 


 

 

(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 Other Collateral .

          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

Security Agreement

 


 

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,

Security Agreement

 


 

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


 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more