EXHIBIT 10.33
Supplement No. 2 (this "Supplement") dated as of April 5, 2007, to the
Security Agreement dated as of November 30, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the "Security Agreement")
among Altra Industrial Motion, Inc., a Delaware corporation ("Company"), each of
the parties listed as "Grantors" on the signature pages thereto and those
additional entities that thereafter become grantors thereunder (collectively,
jointly and severally, "Grantors" and each individually "Grantor"), and THE BANK
OF NEW YORK COMPANY, N.A., in its capacity as Collateral Agent for the Holders
(together with its successors and assigns in such capacity, "Collateral Agent").
WITNESSETH:
WHEREAS, pursuant to that certain Indenture dated of November 30, 2004 (as
amended, restated, supplemented or otherwise modified from time to time,
including all exhibits and schedules thereto, the "Indenture") among Company,
each of the Guarantors named therein ("Guarantors"), and the Bank of New York
Trust Company, N.A., as Trustee and Collateral Agent, Company has issued to the
Holders its 9% Senior Secured Notes Due 2011, and may issue from time to time
additional notes in connection with the provisions of the Indenture (as same may
be amended and restated, supplemented or otherwise modified from time to time,
collectively, the "Notes") from time to time pursuant to the terms and
conditions thereof;
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Security Agreement and/or
the Indenture;
WHEREAS, the New Grantors (as hereinafter defined) have entered into this
Supplement in order to induce the Purchasers to purchase additional notes in the
aggregate principal amount of $105,000,000; and
WHEREAS, pursuant to Section 4.15 of the Indenture, new Domestic Restricted
Subsidiaries of Company, must execute and deliver to Collateral Agent certain
amendments to the Collateral Agreements, including the Security Agreement, and
the execution and delivery of such amendment thereof by the undersigned new
Grantor or Grantors (collectively, the "New Grantors") may be accomplished by
the execution and delivery of this Supplement in favor of Collateral Agent, for
the benefit of the Trustee, Collateral Agent and the Holders.
NOW, THEREFORE, for and in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each New Grantor hereby agrees as follows:
1. In accordance with Section 24 of the Security Agreement, each New
Grantor, by its signature below, becomes a "Grantor" under the Security
Agreement with the same force and effect as if originally named therein as a
"Grantor" and each New Grantor hereby (a) agrees to all of the terms and
provisions of the Security Agreement applicable to it as a "Grantor" thereunder
and (b) represents and warrants that the representations and warranties made by
it as a "Grantor" thereunder are true and correct on and as of the date hereof.
In furtherance of the foregoing, each New Grantor, as security for the payment
and performance in full of the Secured Obligations, does hereby grant, assign,
and pledge to Collateral Agent, for the benefit of the Trustee, Collateral Agent
and the Holders, a security interest in and security title to the assets of such
New Grantor of the type described in Section 2 of the Security Agreement to
secure the full and prompt payment of the Secured Obligations, including,
without limitation, any interest thereon, plus reasonable attorneys' fees and
expenses if the Secured Obligations represented by the Security Agreement are
collected by law, through an attorney-at-law, or under advice therefrom to the
extent such fees and expenses are required to be paid by the Borrowers under the
Credit Agreement. Schedule 1, "Copyrights," Schedule 2, "Intellectual Property
Licenses," Schedule 3, "Patents," Schedule 4, "Pledged Companies," Schedule 5,
"Trademarks," Schedule 6, "Commercial Tort Claims," Schedule 7, "Owned Real
Property," and Schedule 8, "List of Uniform Commercial Code Filing
Jurisdictions," attached hereto supplement Schedule 1, Schedule 2, Schedule 3,
Schedule 4, Schedule 5,
Schedule 6, Schedule 7, and Schedule 8, respectively, to the Security Agreement
and shall be deemed a part thereof for all purposes of the Security Agreement.
Each reference to a "Grantor" in the Security Agreement shall be deemed to
include each New Grantor. The Security Agreement is incorporated herein by
reference.
2. Each New Grantor represents and warrants to the Trustee, Collateral
Agent and the Holders that this Supplement has been duly executed and delivered
by such New Grantor and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except as enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws affecting creditors' rights generally
and general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
3. This Supplement may be executed in multiple counterparts, each of which
shall be deemed to be an original, but all such separate counterparts shall
together constitute but one and the same instrument. Delivery of a counterpart
hereof by facsimile transmission or by e-mail transmission shall be as effective
as delivery of a manually executed counterpart hereof.
4. Except as expressly supplemented hereby, the Security Agreement shall
remain in full force and effect.
5. Notwithstanding anything to the contrary contained herein, this
Supplement shall not be effective until the execution and delivery of the Fifth
Supplemental Indenture dated as of the date hereof, entered into by the Company,
the Guarantors signatory thereto, the New Guarantors (as defined therein), and
the Trustee, at which time this Supplement shall be effective immediately
without any further action.
6. This Supplement shall be construed in accordance with and governed by
the laws of the State of New York, without regard to the conflict of laws
principles thereof.
[SIGNATURE PAGES FOLLOW]
2
IN WITNESS WHEREOF, each New Grantor and Collateral Agent have duly
executed this Supplement to the Security Agreement as of the day and year first
above written.
NEW GRANTORS:
TB WOOD'S INCORPORATED,
a Pennsylvania corporation, as a New
Grantor
By: /s/ William T. Fejes, Jr.
------------------------------------
Name: William T. Fejes, Jr.
----------------------------------
Title: President, CEO and Director
---------------------------------
PLANT ENGINEERING CONSULTANTS, LLC,
a Tennessee limited liability company,
as a New Grantor
By: /s/ William T. Fejes, Jr.
------------------------------------
Name: William T. Fejes, Jr.
---------------------------------
Title: President
---------------------------------
TB WOOD'S ENTERPRISES, INC.,
a Delaware corporation, as a New Grantor
By: /s/ Joseph C. Horvath
------------------------------------
Name:Joseph C. Horvath
-----------------------------------
Title:President and Treasurer
----------------------------------
TB WOOD'S CORPORATION,
a Delaware corporation, as a New Grantor
By: /s/ William T. Fejes, Jr.
------------------------------------
Name: William T. Fejes, Jr.
----------------------------------
Title: President, CEO and Director
---------------------------------
COLLATERAL AGENT:
THE BANK OF NEW YORK TRUST COMPANY,
N.A., as Collateral Agent
By: /s/ Sandee Parks
----------------------------------
Name: Sandee Parks
----------------------------------
Title: Vice President
---------------------------------
[SIGNATURE PAGE OF SUPPLEMENT TO SECURITY AGREEMENT]
SCHEDULE 1
COPYRIGHTS
None.
i
SCHEDULE 2
INTELLECTUAL PROPERTY LICENSES
Trademark Licenses:
1. Agreement between T.B. Wood's Sons Company and Nabeya Kogyo Co., Ltd.,
dated April 8, 1986.
2. Agreement between T.B. Wood's Sons Company and Daido-Sprag Ltd., dated
December 13, 1994.
3. Agreement between T.B. Wood's Incorporated and Daido Precision Ltd.,
dated April 1, 2000.
4. License Agreement between Plant Engineering Consultants, Inc. and TB
Wood's Enterprises, Inc. dated January 1, 2000.
5. License Agreement between Societe Industrielle de Transmissions d/b/a
Texrope and T.B. Wood's Sons Company dated July 1, 1972.
6. Addendum Number 1 to the License Agreement between TB Wood's Sons
company and Societe Industrielle de Transmissions d/b/a Texrope, dated
June 18, 1982.
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SCHEDULE 3
PATENTS
REGISTRATION REGISTRATION
GRANTOR COUNTRY PATENT NO. DATE
------- ------------- -------------------- ------------ ------------
TB Wood's Incorporated United States Housing for Motor D343,387 1/18/1994
Control Equipment
TB Wood's Incorporated United States Combination of a 5,465,804 11/14/1995
Power Steering Pump
and Air Conditioning
Compressor in an
Automotive Vehicle
TB Wood's Incorporated United States Shaft Mountable 5,304,101 4/19/1994
Bushing and Hub for
Industrial Power
Transmissions
TB Wood's Incorporated United States Precision Winding 6,311,920 11/6/2001
Method and Apparatus
TB Wood's Incorporated United States Flexible Coupling 5,611,732 3/18/1997
with End Stress
Relief Structure
iii
SCHEDULE 4
PLEDGED COMPANIES
NUMBER OF CLASS OF PERCENTAGE OF CERTIFICATE PERCENTAGE OF
NAME OF PLEDGOR NAME OF PLEDGED COMPANY SHARES/UNITS INTERESTS CLASS OWNED NOS. CLASS PLEDGED
--------------- --------------------------- --------------- --------------- ------------- ----------- -------------
Altra Industrial Motion, TB Wood's Corporation 1,000 common 100% C-1 100%
Inc.
TB Wood's Corporation TB Wood's Incorporated 1,125,000 common 100% 2 100%
TB Wood's Incorporated Plant Engineering 100% membership LLC membership 100% n/a 100%
Consultants, LLC interest interests
TB Wood's Incorporated TB Wood's Enterprises, Inc. 3,000 common 100% 2 100%
TB Wood's Incorporated Industrial Blaju, S.A. de 50,000 common 100% 1 65%
C.V.
TB Wood's Incorporated T.B. Wood's Canada Ltd. 5,255 common 100% 1014 65%
TB Wood's Incorporated Berges Electronic GmBH 100% 65%
iv
SCHEDULE 5
TRADEMARKS
APPLICATION/
REGISTRATION
GRANTOR COUNTRY MARK NO. APP/REG DATE
------- ------------- -------------- ------------- ------------
TB Wood's United States ALL-PRO 75/290,731/ 5/12/1997/
Enterprises, Inc. 2,165,737 6/16/1998
TB Wood's United States BRAKETRON 73/254,657/ 3/19/1980/
Enterprises, Inc. 1,164,393 8/11/1981
TB Wood's United States DECK 73/581,633/ 2/7/1986/
Enterprises, Inc. (stylized) 1,409,209 9/16/1986
TB Wood's United States DISC-O-TORQUE 72/285,224/ 11/20/1967/
Enterprises, Inc. 859,264 10/29/1968
TB Wood's Mexico DURA-FLEX 267,615/ 6/9/1997/
Enterprises, Inc. 552,086 6/26/1997
TB Wood's United States DURA-FLEX 73/158,649/ 2/13/1978/
Enterprises, Inc. 1,116,828 4/24/1979
TB Wood's United States E-FLOW 75/280,015/ 4/23/1997/
Enterprises, Inc. 2,169,361 6/30/1998
TB Wood's United States E-trAC 73/491,494/ 7/24/1984/
Enterprises, Inc. (Stylized) 1,333,061 4/30/1985
TB Wood's United States E-TROL+PLUS 75/273,178/ 4/11/1997/
Enterprises, Inc. 2,156,683 5/12/1998
TB Wood's United States FIRST IN 73/526,310/ 3/11/1985/
Enterprises, Inc. COUPLINGS 1,361,466 9/24/1985
TB Wood's Canada FORMFLEX 352,690/
Enterprises, Inc. 215,307 8/23/1991
TB Wood's United States FORM-FLEX 75/273,175/ 4/11/1997/
Enterprises, Inc. 2,152,362 4/21/1998
v
APPLICATION/
REGISTRATION
GRANTOR COUNTRY MARK NO. APP/REG DATE
------- ------------- -------------- ------------- ------------
TB Wood's United States IMD 75/272,935/ 4/11/1997/
Enterprises, Inc. 2,261,432 7/13/1999
TB Wood's United States NLS 75/273,181/ 4/11/1997/
Enterprises, Inc. 2,152,366 4/21/1998
TB Wood's Canada PDA-TRAC 1,210,875/ 3/24/2004/
Enterprises, Inc. TMA669,532 8/9/2006
TB Wood's Mexico PDA-TRAC 862222/ 4/21/2004/
Enterprises, Inc. 862222 4/21/2004
TB Wood's United States PDA-TRAC 78/329,999 11/19/2003/
Enterprises, Inc. 2,986,366 8/16/2005
TB Wood's United States PETRO-TRAC 78/052,072/ 3/8/2001/
Enterprises, Inc. 2,641,082 10/22/2002
TB Wood's United States POOLE 75/251,697/ 2/28/1997/
Enterprises, Inc. 2,191,918 9/29/1998
TB Wood's Mexico QT POWER CHAIN 573133/ 10/20/2002/
Enterprises, Inc. 818826 1/26/2004
TB Wood's United States QT POWER CHAIN 76/403,299/ 5/2/2002/
Enterprises, Inc. 2,723,745 6/10/2003
TB Wood's United States ROTO-CAM 72/285,223/ 11/20/1967/
Enterprises, Inc. 859,263 10/29/1968
TB Wood's United States ROTO-CONE 72/015,359/ 9/10/1956/
Enterprises, Inc. 676,279 3/31/1959
TB Wood's Canada SPEEDLIGN 1,223,603/ 7/14/2004/
Enterprises, Inc. TMA665,131 5/29/2006
TB Wood's Mexico SPEEDLIGN 666,531/ 7/14/04/
Enterprises, Inc. 896,028 8/23/05
TB Wood's United States SPEEDLIGN 78/350,700/ 1/12/2004/
Enterprises, Inc. 2,991,827 9/6/2005
TB Wood's United States S-TRAC 75/272,936/ 4/11/1997/
Enterprises, Inc. 2,257,668 6/29/1999
vi
APPLICATION/
REGISTRATION
GRANTOR COUNTRY MARK NO. APP/REG DATE
------- ------------- -------------- ------------- ------------
TB Wood's United States SUPERSTART 74/104,389/ 10/9/1990/
Enterprises, Inc. 1,686,040 5/12/1992
TB Wood's United States SURE GRIP 71/640,418/ 1/6/1953/
Enterprises, Inc. (stylized) 645,415 5/14/1957
TB Wood's Great Britain SUREFLEX B998,327/ 9/13/1993
Enterprises, Inc. B998,327
TB Wood's Australia SURE-FLEX B375,472/ 5/13/1982/
Enterprises, Inc. B375,472 5/13/1989
TB Wood's Canada SURE-FLEX 645,519/ 11/23/1989/
Enterprises, Inc. 380,915 3/1/1991
TB Wood's Japan SURE-FLEX 40,343/1982/ 5/12/1982/
Enterprises, Inc. 1,923,250 12/24/1986
TB Wood's Switzerland SURE-FLEX 405,626/ 9/14/1992/
Enterprises, Inc. 405,626 9/14/1992
TB Wood's United States SURE-FLEX 72/043,720/ 1/9/1958/
Enterprises, Inc. (stylized) 668,649 10/21/1958
TB Wood's Japan SUREFLEX 7-700836/ 1/13/1995/
Enterprises, Inc. and Katakana 1,740,974 1/23/1995
TB Wood's United States SURE-GRIP 71/575,508/ 3/15/1949/
Enterprises, Inc. 646,423 6/4/1957
TB Wood's United States SURE-GRIP 73/136,699/ 8/8/1977/
Enterprises, Inc. 1,109,150 12/19/1978
TB Wood's United States TRUETUBE 75/273,177/ 4/11/1997/
Enterprises, Inc. 2,152,364 4/21/1998
TB Wood's United States ULTRACON 72/300,318/ 6/13/1968/
Enterprises, Inc. 862,655 12/31/1968
TB Wood's United States ULTRACON II 75/273,179/ 4/11/1997/
Enterprises, Inc. 2,150,835 4/14/1998
TB Wood's United States ULTRA-HELIX 75/559,570/ 9/25/1998/
Enterprises, Inc. 2,351,349 5/23/2000
vii
APPLICATION/
REGISTRATION
GRANTOR COUNTRY MARK NO. APP/REG DATE
------- ------------- -------------- ------------- ------------
TB Wood's United States ULTRA-V 73/001,734/ 10/9/1973/
Enterprises, Inc. 1,001,969 1/21/1975
TB Wood's United States ULTRA-V 73/003,203/ 10/10/1973/
Enterprises, Inc. 1,001,970 1/21/1975
TB Wood's United States U-TROL 73/104,511/ 10/26/1976/
Enterprises, Inc. 1,070,167 7/26/1977
TB Wood's United States VAR-A-CONE 75/273,180/ 4/11/1997/
Enterprises, Inc. 2,152,365 4/21/1998
TB Wood's United States W TB WOOD'S 75/107,136/ 5/20/1996/
Enterprises, Inc. (and design) 2,059,245 5/6/1997
TB Wood's Canada WIN-TRAC 1,210,868/ 3/24/2004/
Enterprises, Inc. TMA664,172 5/12/2006
TB Wood's Community WIN-TRAC 3.828.019/ 5/20/2004/
Enterprises, Inc. Trademark 3.828.019 11/15/2005
TB Wood's Mexico WIN-TRAC 653047 4/21/2004
Enterprises, Inc.
TB Wood's United States WIN-TRAC 78/306,778/ 9/29/2003/
Enterprises, Inc. 2,961,309 6/7/2005
TB Wood's Mexico WOOD'S WORK 573134/ 10/30/2002/
Enterprises, Inc. 904275 11/30/2002
TB Wood's United States WOOD'S@WORK 76/402,992/ 5/2/2002/
Enterprises, Inc. 2,801,090 12/30/2003
TB Wood's Sons Germany FORM-FLEX D 36648 7W2/ 9/22/1983/
Company 1,053,953 9/23/1983
TB Wood's Sons Germany SUREFLEX W24959/ 4/5/1973/
Company 926 107 12/17/1974
TB Wood's Argentina DURA-FLEX 2,066,443/ 1/23/1997/
Incorporated 1,783,301 3/27/2000
TB Wood's Community DURA-FLEX 507.277 2/7/1997
Incorporated Trademark
viii
APPLICATION/
REGISTRATION
GRANTOR COUNTRY MARK NO. APP/REG DATE
------- ------------- -------------- ------------- ------------
TB Wood's Japan DURA-FLEX 27318/97/ 3/17/1997/
Incorporated 4,166,483 7/10/1998
TB Wood's Malaysia DURA-FLEX 97/01971 2/19/1997
Incorporated
TB Wood's Taiwan DURA-FLEX (86)5713/ 2/1/1997/
Incorporated 807300 7/1/1998
TB Wood's Japan FORMFLEX 41,517/85/ 8/19/1987/
Incorporated 1,975,830 8/19/1997
TB Wood's Venezuela PETRO-TRAC 2001-016447/ 9/7/2001/
Incorporated P-245856 8/22/2003
TB Wood's Canada QT POWER CHAIN 1,157,003/ 10/25/2002/
Incorporated TMA623,038 10/20/2004
TB Wood's France SPEEDLIGN 717,131/ 6/19/1974/
Incorporated 1,286,266 6/19/1974
TB Wood's Germany SPEEDLIGN 935,511/
Incorporated 935,511 6/10/1974
TB Wood's Great Britain SPEEDLIGN 99999/
Incorporated 1,029,397 5/13/1974
TB Wood's Singapore SUREFLEX 2556/82/ 5/21/1982/
Incorporated T82/02556B 5/21/1982
TB Wood's Benelux SURE-FLEX 0316801/ 10/20/1972/
Incorporated 0316801 10/20/1972
TB Wood's Brazil SURE-FLEX 810,942,631/ 8/23/1982/
Incorporated 810,942,631 3/19/1995
TB Wood's France SURE-FLEX 02 3 196 347/ 11/27/2002/
Incorporated 02 3 196 347 11/27/2002
TB Wood's Italy SURE-FLEX MI2003002784/ 9/25/1992/
Incorporated 654849 9/25/1974
TB Wood's Canada WOOD'S@WORK 1,157,004/ 10/25/2002/
Incorporated TMA626,975 11/29/2004
ix
SCHEDULE 6
COMMERCIAL TORT CLAIMS
None.
x
SCHEDULE 7
OWNED REAL PROPERTY
TB WOOD'S INCORPORATED
Main offices, warehouse Mechanical Division manufacturing plant:
440 North Fifth Street
Chambersburg, PA 17201
Electronics Division Offices and manufacturing plant
3181 Black Gap Road
Chambersburg, PA 17201
801 E. Industrial Ave.
Mt. Pleasant, Michigan 48858
2000 Clovis Baker Road
San Marcos, TX 78666
Houser Road
Greene, PA
xi
SCHEDULE 8
LIST OF UNIFORM COMMERCIAL CODE FILING JURISDICTIONS
Grantor Jurisdictions
------- -------------
TB Wood's Corporation Delaware
TB Wood's Incorporated Pennsylvania
Plant Engineering Consultants, LLC Tennessee
TB Wood's Enterprises, Inc. Delaware
xii