EXHIBIT 4.8
COLLATERAL SECURITY AGREEMENT
This COLLATERAL SECURITY AGREEMENT is entered into as of November 6,
2000 (the "Security Agreement"), by and between Ampex Corporation, a Delaware
corporation with a chief executive office located at 000 Xxxxxxxx, Xxxxxxx Xxxx,
Xxxxxxxxxx 00000 ("Debtor"), and DDJ Capital Management, LLC as agent (the
"Holders' Agent") for the ratable benefit of the holders from time to time of
the Senior Discount Notes referred to below (the "Holders").
Preliminary Statement
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Ampex Data Systems Corporation, a Delaware corporation ("Data Systems") is
a wholly-owned subsidiary of Debtor. Pursuant to a Note Purchase Agreement
dated as of November 6, 2000 (the "Note Purchase Agreement") between Data
Systems, Debtor, the Holders' Agent, and the purchasers of Senior Discount Notes
referred to therein (the "Purchasers"), Data Systems has issued and sold to the
Purchasers $8,919,555.56 aggregate principal amount at maturity of the Senior
Discount Notes of Data Systems (the "Discount Notes").
In order to induce the Purchasers to purchase the Discount Notes, Debtor
has agreed to secure the payment and performance of all of the obligations of
Data Systems and Debtor under the Note Purchase Agreement by granting to the
Holders' Agent, for the ratable benefit of the Holders (in such capacity, the
"Secured Party"), a security interest in the Collateral (as defined below).
In consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. The terms used herein have the meanings given to them in
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the text hereof, in SCHEDULE 1 hereto and in the UCC (defined below).
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2. GRANT OF SECURITY INTEREST. To secure the Obligations, Debtor hereby
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grants to the Secured Party a continuing security interest in, general lien on
and right of set-off against the Collateral. If, before the Obligations have
been satisfied in full, the Debtor shall enter into any license agreements
providing for the payment to Debtor of any royalty income for the licensing by
Debtor of any patents now or hereafter owned by Debtor, then: (a) Debtor shall
give the Secured Party prompt written notice thereof; (b) SCHEDULE 2 hereto
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shall be amended to include such license agreements as "License Agreements"
hereunder; and (c) Debtor shall execute and
deliver to Secured Party such additional instruments and documents, including
UCC-1 financing statements, as are necessary or appropriate or as Secured Party
may reasonably request to evidence its interest in the Collateral attributable
to such License Agreements.
3. COLLATERAL IN DEBTOR'S POSSESSION. Until the occurrence of an Event
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of Default, Debtor reserves the right to receive and hold the Collateral,
including without limitation all Collateral Revenues, and if Secured Party
receives any such Collateral or Collateral Revenues prior to an Event of
Default, Secured Party shall promptly pay and deliver the same to Debtor. Prior
to an Event of Default, Secured Party shall not contact any of the licensees
under any License Agreements.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Debtor hereby
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represents, warrants and covenants to Secured Party as follows, except that with
respect to the following representations, warranties and covenants, each of
Debtor and Secured Party hereby acknowledges that the License Agreements with
Hitachi, Ltd. and Toshiba prohibit the assignments by Debtor of its rights
thereunder:
4.1 Power and Authority. Debtor has full corporate power, authority and
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the legal right to grant to the Secured Party the security interest in the
Collateral granted hereunder; and to execute, deliver and perform its
obligations hereunder. This Security Agreement has been duly and validly
executed and delivered by Debtor, and constitutes Debtor's legal, valid and
binding obligation, enforceable against Debtor in accordance with its terms.
4.2 Title to Collateral. Debtor has and will maintain good and
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marketable title to the Collateral, free and clear of all liens, claims,
encumbrances or rights of others (other than the security interest granted to
the Secured Party hereunder). There is no financing statement (or similar
statement, agreement, pledge, mortgage, notice or registration), lien (including
any federal or state tax lien), suit (including any action, proceeding, or other
litigation pending, or to Debtor's knowledge, threatened) or judgment (including
any award, injunction, order) filed with, registered, indexed or recorded in any
public office, court, arbitration panel, administrative agency or regulatory
authority, directly or indirectly, naming or encumbering or covering or
involving any of the Collateral. Each of the License Agreements is genuine and
in all respects what it reports to be and, to Debtor's knowledge, represents the
genuine, valid and binding obligations of each licensee thereunder, evidences
true and undisputed obligations enforceable in accordance with its terms, and is
in compliance and conforms with all applicable federal, state and local laws and
applicable laws of any jurisdiction outside of the United States in effect on
the date hereof.
4.3 Perfected Security Interest. The execution and delivery of this
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Security Agreement and the grant by Debtor of a security interest in the
Collateral hereunder creates a valid security interest in the Collateral which
has attached and is enforceable and which, upon filing of the Financing
Statements with the Secretary of State of the State of California (which is the
only jurisdiction in which Financing Statements are required to be filed), will
be perfected and subject to no prior or equal security interest.
4.4 Maintenance of the Collateral. Debtor shall keep and maintain the
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Collateral, shall duly and timely fulfill and perform all obligations on its
part to be fulfilled or performed under or in connection with the License
Agreements, and shall not take any action or omit to take any action that could
reasonably be expected to impair its rights thereunder. Debtor shall use its
best efforts to collect or cause to be collected from the licensees named in
each License Agreement, as and when due, any and all amounts owing under or on
account of such License Agreement (including, without limitation, any payments
thereunder which are delinquent, such amounts to be collected in accordance with
generally accepted lawful collection procedures), and apply forthwith upon
receipt thereof all such amounts as are so collected to the outstanding balance
payable under such License Agreement. Except as contemplated hereby, Debtor
shall not, without Secured Party's written consent, sell, assign, lease,
transfer, hypothecate, mortgage, incur, permit or suffer to exist a lien upon,
or otherwise dispose of any of the Collateral, and nothing in this Security
Agreement shall be deemed a consent by the Secured Party to any such action
except as expressly permitted herein. Debtor shall maintain the security
interest created by Debtor under this Security Agreement and will defend the
Collateral against and take such other action as is necessary to remove any
other lien on the Collateral except as permitted hereunder.
4.5 Chief Executive Office; Records. Debtor shall keep and maintain
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its chief executive office at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx. Debtor
shall keep and maintain at its chief executive office, at its own cost and
expense, to the reasonable satisfaction of Secured Party, complete and accurate
records relating to the License Agreements, including, but not limited to,
records of all payments received and all credits granted thereon, and all other
dealings in connection therewith. Debtor shall make all such records available
or deliver to Secured Party or its representatives, from time to time, both
promptly following Secured Party's request and immediately following an Event of
Default, all at Debtor's own cost and expense. If Secured Party shall so
request, upon an Event of Default the Debtor shall promptly (i) legend, register
and record, in form and substance satisfactory to Secured Party, the License
Agreements and other books, records and documents evidencing or pertaining
thereto, with an appropriate reference to the interest of the
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Secured Party therein and (ii) notify the licensee with respect thereto to make
payments directly to the Secured Party.
4.6 No Violation of Law; Indemnity. Debtor has not and shall not
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acquire, obtain, hold, possess, maintain, use, sell, transfer, grant, pledge, or
dispose (for purposes of this section, collectively "Debtor's use") of any of
the Collateral in violation of any statute, law, rule, ordinance, regulation,
policy, procedure, injunction, award, decree, judgment, contract, agreement,
understanding, or right or interest of any other Person (for purposes of this
section collectively "violation"), and to Debtor's knowledge no such violation
has been made by any other Person and no basis for a claim of any such violation
exists. Debtor shall indemnify and hold Secured Party harmless from and against
any such violation, or any other loss, liability, damage, cost or expense
whatsoever arising out of or in connection with Debtor's use of any of the
Collateral.
4.7 License Agreements. Schedule 2 hereto lists each License
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Agreement in effect as of the date hereof pursuant to which the Debtor received
during 1999, or expects to receive during 2000 or 2001, any patent royalties,
license fees or similar payments. The aggregate amount of all patent royalties,
license fees or similar payments received by Debtor during its 1999 fiscal year
pursuant to the License Agreements was approximately $13.3 million, of which not
more than $350,000 was attributable to the License Agreements with Hitachi, Ltd.
and Toshiba.
5. EVENTS OF DEFAULT. The occurrence of any "Event of Default" under the
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Note Purchase Agreement shall constitute an "Event of Default" hereunder.
6. REMEDIES.
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6.1 Cumulative Rights and Remedies. Upon the occurrence of an Event of
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Default, the Secured Party shall have the rights, powers and remedies (i)
granted to secured parties under the UCC or other applicable Uniform Commercial
Code; (ii) granted to the Secured Party under any other applicable statute, law,
rule or regulation; and (iii) granted to the Secured Party under this Security
Agreement (including without limitation the right to cause the registration of
this Security Agreement with the United States Patent and Trademark Office), the
Note Purchase Agreement or any other agreement between the Debtor and the
Secured Party. In addition, all such rights, powers and remedies shall be
cumulative and not alternative. Any single or partial exercise of, or
forbearance, failure or delay in exercising any right, power or remedy shall not
be, nor shall any such single or partial exercise of, or forbearance, failure or
delay be deemed to be a limitation, modification or waiver of any right, power
or remedy and shall not preclude the further exercise
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thereof; and every right power and remedy of the Secured Party shall continue in
full force and effect until such right, power and remedy is specifically waived
by an instrument in writing executed and delivered with respect to each such
waiver by the Secured Party.
6.2 Additional Rights of the Secured Party. Without limiting the
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provisions of section 6.1, upon an Event of Default, the Secured Party may, from
time to time, in its discretion, and without Debtor's assent, without
advertisements or notices of any kind (except for the notice specified in
section 6.4 below regarding notice required in connection with a public or
private sale), or demand for performance or other demand, or obligation or
liability (except to account for amounts actually received) to Debtor or any
other Person (all such advertisements, notices and demands, obligation and
liabilities, if any, hereby being expressly waived and discharged to the extent
permitted by law), forthwith and subject to all applicable laws and regulations,
enter any premises, with or without the assistance of other persons or legal
process, require Debtor to account for (including accounting for any products
and proceeds of any Collateral), segregate, assemble, make available and deliver
to Secured Party or its representatives, take possession of, collect, transfer
and receive, recover, appropriate, foreclose, extend payment of, adjust,
compromise, settle, release any claims included in, and do all other acts or
things necessary or, in Secured Party's judgment appropriate, to protect,
maintain, preserve and realize upon the Collateral and any products and proceeds
thereof, in whole or in part, exercise all rights, powers and interests with
respect to any and all Collateral, and sell, assign, license, pledge, transfer,
negotiate (including, without limitation, endorse checks, drafts, orders, or
instruments), deliver or otherwise dispose (by contract, option(s) or otherwise)
the Collateral or any part thereof. Any such disposition may be in one or more
public or private sales, at such price, for cash or credit (or for future
delivery without credit risk) and upon such other terms and conditions, and at
such locations, as it deems appropriate, with the right of the Secured Party (to
the extent permitted by law upon any such sale or sales, public or private) to
purchase the whole or any part of said Collateral, free of any right, claim or
equity of redemption (such rights, claims and equity of redemption, if any,
hereby being expressly waived). Notwithstanding that the Secured Party, whether
in its own behalf or on behalf of another or others, may continue to hold the
Collateral, and regardless of the value thereof, or may delay or fail to dispose
thereof, unless and then only to the extent that the Secured Party proposes to
retain the Collateral in satisfaction of the Obligations by written notice in
accordance with the UCC, Debtor shall be and remain liable for the payment in
full of any balance of the Obligations at any time unpaid.
6.3 Application of Proceeds. The Secured Party may apply the net proceeds,
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if any, of any collection, receipt, recovery, appropriation, foreclosure or
realization, or from any sale, assignment, license, pledge, transfer, delivery
or disposition, after deducting all costs and expenses (including
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reasonable attorneys' fees, court costs and legal expenses) incurred therein or
with respect to the care, safekeeping, custody, maintenance, protection,
administration or otherwise of any and all of Collateral or in any way relating
to the rights of the Secured Party under this Security Agreement: (i) first, to
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the satisfaction of the Obligations, in whole or in part, in such order as the
Secured Party may, in its discretion, elect; (ii) second, to the payment,
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satisfaction or discharge of any other indebtedness or obligation of Debtor as
required by any law, rule or regulation; and (iii) lastly, the surplus, if any,
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to Debtor.
6.4 Required Notice of Sale. In exercising its rights, powers and remedies
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as secured party, the Secured Party agrees to give Debtor ten (10) days' notice
of the time and place of any public sale of Collateral or of the time after
which any private sale of Collateral may take place, unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market. Debtor agrees that such period and notice is
commercially reasonable under the circumstances.
7. POWER OF ATTORNEY. Debtor hereby irrevocably constitutes and appoints
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the Secured Party or any officer or agent thereof, with full power of
substitution, as Debtor's true and lawful attorney-in-fact with full irrevocable
power and authority in Debtor's place and stead and in Debtor's name or in its
own name, upon an Event of Default and from time to time thereafter in the
Secured Party's discretion, to take any and all action, to do any and all
things, including without limitation, to execute, endorse, deliver and file any
and all writings, documents, instruments, notices, statements (including,
without limitation, financing statements), applications and registrations
(including, without limitation, registrations with the United States Patent and
Trademark Office), checks, drafts, acceptances, money orders, or other evidence
of payment or proceeds, which may be or become necessary or desirable in the
sole discretion of the Secured Party to accomplish the terms, purposes and
intent of this Security Agreement. Said attorney or designee shall not be
liable for any acts of commission or omission, nor for any error of judgment or
mistake of fact or law, unless and then only to the extent that the same
constitutes its gross negligence or willful misconduct. This power is coupled
with an interest and is irrevocable.
8. INDEMNIFICATION. Debtor hereby indemnifies, saves and holds harmless
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the Secured Party from and against all expenses, costs, liabilities, losses or
damages, including, without limitation, reasonable attorney's fees and expenses,
suffered or incurred by the Secured Party arising out of or in connection with
this Security Agreement or the transactions contemplated hereby. Without
limiting the foregoing, Debtor will pay to the Secured Party all expenses
(including reasonable attorney's fees and expenses) of, or incidental to, the
enforcement of any of the
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provisions hereof or of any of the Obligations, or any actual or attempted sale,
assignment, license or other disposition of, or any exchange, enforcement,
collection, compromise or settlement of any of the Collateral or receipt of the
proceeds thereof in accordance with the terms of this Security Agreement, and
for the care of the Collateral and defending or asserting the rights and claims
of the Secured Party in respect thereof, by litigation or otherwise, including
expense of insurance, and all such expenses shall be deemed to be included in
Debtor's Obligations.
9. OBLIGATIONS ABSOLUTE. Debtor's Obligations shall be absolute,
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unconditional and irrevocable and shall be paid or satisfied strictly in
accordance with their respective terms under all circumstances whatsoever,
including without limitation: (i) the invalidity or unenforceability of all or
any or any part of this Security Agreement or the Note Purchase Agreement, or
any consent, waiver, amendment or modification hereof or thereof; (ii) the
existence of any claim, setoff, defense or other right which Debtor may have at
any time against the Secured Party or any other Person, whether in connection
with this Security Agreement, the Note Purchase Agreement, the License
Agreements or the transactions contemplated hereby or thereby; or (iii) the
loss, theft, damage, destruction or unavailability to Debtor of the Collateral
for any reason whatsoever, it being understood and agreed that the Debtor
retains all liability and responsibility with respect to the Collateral.
10. BINDING AGREEMENT; ASSIGNMENT. This Security Agreement shall bind and
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inure to the benefit of the parties hereto, their respective, heirs, executors,
administrators, successors and permitted assigns. Debtor may not, in whole or
in part, directly or indirectly, assign this Security Agreement or its rights
hereunder or delegate its duties hereunder without, in each instance, the
specific prior written consent of the Secured Party, which consent may be
withheld or delayed in the Secured Party's sole discretion.
11. FURTHER ASSURANCES. Debtor agrees, at any time and from time to time,
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at Debtor's sole cost and expense, to obtain, procure, execute and deliver, file
and affix such further agreements, bills of sale and assignment, instruments,
documents, notices, statements (including financing statements), powers
(including stock and bond powers, and powers of attorney), tax stamps and
information, and to do or cause to be done all such further acts and things
(including the execution, delivery and filing of financing statements on Form
UCC-1, payment of filing fees and transfer, gains and recording taxes) as the
Secured Party may reasonably request, from time to time, in its discretion, and
to pay all fees, costs and expenses relating thereto. Upon Debtor's failure to
abide by and comply with its obligations under this section 11, in addition to
its other rights and remedies, the Secured Party may, in its sole discretion and
to the extent it deems necessary, advisable
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or appropriate, take or cause such action to be taken or thing to be done as
required hereby and under the UCC and the costs incurred in connection therewith
shall be deemed to be included in Debtor's Obligations. Without limiting the
foregoing, Debtor authorizes Secured Party, to the extent permitted under the
UCC, to execute, file or file without Debtor's signature any and all financing
statements, amendments thereto and continuations thereof as the Secured Party
deems necessary or appropriate and Debtor shall pay, indemnify Secured Party for
and hold Secured Party harmless from and against any and all costs and expenses
in connection therewith.
12. TERM. This Security Agreement shall commence on the date hereof and
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shall terminate upon the indefeasible payment and performance in full of all of
the Obligations. Upon termination of this Security Agreement, at the request
and expense of the Debtor, the Secured Party will promptly execute and deliver
to the Debtor a proper instrument or instruments (including UCC termination
statements on Form UCC-3) acknowledging the satisfaction and termination of this
Security Agreement, and will duly assign, transfer and deliver to the Debtor
(without recourse and without any representation or warranty) such of the
Collateral as may be in the possession of the Secured Party that has not
theretofore been sold or otherwise applied or released pursuant to this Security
Agreement.
13. MISCELLANEOUS.
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13.1 Amendments, Consents, Authorizations. None of the terms or provisions
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of this Security Agreement may be waived, altered, modified, or amended except
in each instance by a specific written instrument duly executed by the party to
be charged. Without limiting the foregoing, no action or omission to act shall
be deemed to be a consent, authorization, representation or agreement of any
party hereto, under the UCC or otherwise, unless, in each instance, the same is
in a specific writing signed by such party.
13.2 Notices. All notices under this Security Agreement shall be in
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writing and shall be deemed effective if made in accordance with and as provided
in the Note Purchase Agreement.
13.3 Governing Law. This Security Agreement shall be governed by and
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construed in accordance with the laws of the State of California applicable to
contracts made and wholly performed in the State of California.
13.4 WAIVER OF RIGHT TO JURY TRIAL. EACH OF DEBTOR AND SECURED PARTY
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HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM, CAUSE OF
ACTION, COUNTERCLAIM OR OTHER PROCEEDING BASED UPON
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OR ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT, THE NOTE PURCHASE
AGREEMENT, THE VALIDITY OR ENFORCEABILITY OF THIS SECURITY AGREEMENT, THE NOTE
PURCHASE AGREEMENT OR ANY PROVISIONS HEREOF OR THEREOF, OR THE TRANSACTIONS
CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT.
13.5 Severability. If and to the extent that any provision of this
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Security Agreement shall be held invalid and unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provisions hereof.
13.6 Captions. The headings, titles and captions used herein are for
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convenience only and shall not effect the construction of this Security
Agreement or any term or provision hereof.
[END OF TEXT]
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IN WITNESS WHEREOF, each of the parties hereto has executed and delivered
this Security Agreement and as of the date first set forth above.
AMPEX CORPORATION
By:___________________________
Name:
Title:
DDJ CAPITAL MANAGEMENT, LLC, as
Agent for the ratable benefit of the holders
from time to time of the Senior Discount
Notes
By:____________________________
Name:
Title: Managing Member
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SCHEDULE 1
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DEFINITIONS
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"Collateral" means all of the right, title and interest now owned or
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hereafter acquired by Debtor, as licensor under the License Agreements,
including, without limitation, Debtor's rights to receive all royalties, license
fees and other payments thereunder and all accounts receivable arising in
connection therewith; and all additions thereto, substitutions therefor and
replacements thereof, all royalty and other receivables, income, interest,
dividends, distributions and earnings thereon or other monies or revenues
derived therefrom ("Collateral Revenues"); and all products and proceeds of the
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foregoing.
"Collateral Revenues" has the meaning accorded to such term in the
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definition of Collateral.
"Event of Default" has the meaning accorded to such term in section 5
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hereof.
"Financing Statements" means the financing statements on Form UCC-1,
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covering the security interest in the Collateral granted by the Debtor to the
Secured Party hereunder.
"License Agreements" means the patent license agreements (and any and all
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amendments, modifications and supplements thereto entered into by Debtor after
the date hereof) listed in SCHEDULE 2 hereto, as such SCHEDULE 2 may be amended
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from time to time in accordance with the terms and conditions of this Security
Agreement.
"Obligations" means all indebtedness, obligations and liabilities of Debtor
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or Data Systems to the Secured Party arising under or in connection with this
Security Agreement, the Note Purchase Agreement, or any other agreement between
Debtor or Data Systems and the Secured Party, including, without limitation,
obligations of Debtor or Data Systems to pay (or reimburse the Secured Party
for) all costs and expenses (including reasonable attorneys' fees) incurred by
the Secured Party in obtaining, maintaining, protecting and preserving the
Collateral or its security interest therein, foreclosing, retaking, holding,
preparing for sale, selling, licensing or otherwise disposing or realizing on
the Collateral or in exercising its rights hereunder or as secured party under
the UCC, or any other applicable law, regulation or rule, now or hereafter
existing.
"Person" means any individual, corporation, partnership, association, firm,
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or other entity.
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"UCC" means the Uniform Commercial Code of the State of California.
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