EXHIBIT 10.49
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of May 30, 2002, among ROLLER BEARING
COMPANY OF AMERICA, INC., a Delaware corporation ("BORROWER"), the other Credit
Parties signatory hereto (each "Guarantor" collectively "Guarantors", Borrower
and each Guarantor are sometimes collectively referred to herein as "Grantors"
and individually as a "Grantor"), and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation, individually and in its capacity as Agent for Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the
date hereof by and among Grantors, Agent and Lenders (including all annexes,
exhibits and schedules thereto, and as from time to time amended, restated,
supplemented or otherwise modified, the "CREDIT AGREEMENT"), Lenders have agreed
to make the Loans and to incur Letter of Credit Obligations on behalf of
Borrower;
WHEREAS, the Guarantors have guaranteed the Obligations of Borrower
under the Credit Agreement and will benefit directly from the Loans and
financial accommodations provided thereunder; and
WHEREAS, in order to induce Agent and Lenders to enter into the Credit
Agreement and other Loan Documents and to induce Lenders to make the Loans and
to incur Letter of Credit Obligations as provided for in the Credit Agreement,
Grantors have agreed to grant a continuing Lien on the Collateral (as
hereinafter defined) to secure the Obligations;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS.
a. All capitalized terms used but not otherwise defined herein have
the meanings given to them in the Credit Agreement or in ANNEX A thereto. All
other terms contained in this Security Agreement, unless the context indicates
otherwise, have the meanings provided for by the Code to the extent the same are
used or defined therein.
b. "Uniform Commercial Code jurisdiction" means any jurisdiction
that has adopted all or substantially all of Article 9 as contained in the 2000
Official Text of the Uniform Commercial Code, as recommended by the National
Conference of Commissioners on Uniform State Laws and the American Law
Institute, together with any subsequent amendments or modifications to the
Official Text.
2. GRANT OF LIEN.
a. To secure the prompt and complete payment, performance and
observance of all of the Obligations, each Grantor hereby grants, assigns,
conveys, mortgages, pledges, hypothecates and transfers to Agent, for itself and
the benefit of Lenders, a Lien upon all of its
right, title and interest in, to and under all personal property and other
assets, whether now owned by or owing to, or hereafter acquired by or arising in
favor of such Grantor (including under any trade names, styles or derivations
thereof), and whether owned or consigned by or to, or leased from or to, such
Grantor, and regardless of where located (all of which being hereinafter
collectively referred to as the "Collateral"), including:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all General Intangibles (including payment intangibles and
Software);
(v) all Goods (including Inventory, Equipment and Fixtures);
(vi) all Instruments;
(vii) all Investment Property;
(viii) all Deposit Accounts, of any Grantor, including all
Blocked Accounts, Concentration Accounts, Disbursement
Accounts, and all other bank accounts and all deposits
therein;
(ix) all money, cash or cash equivalents of any Grantor;
(x) all Supporting Obligations and Letter-of-Credit Rights of
any Grantor; and
(xi) to the extent not otherwise included, all Proceeds, tort
claims, insurance claims and other rights to payments not
otherwise included in the foregoing and products of the
foregoing and all accessions to, substitutions and
replacements for, and rents and profits of, each of the
foregoing.
b. In addition, to secure the prompt and complete payment,
performance and observance of the Obligations and in order to induce Agent and
Lenders as aforesaid, each Grantor hereby grants to Agent, for itself and the
benefit of Lenders, a right of setoff against the property of such Grantor held
by Agent or any Lender, consisting of property described above in SECTION 2(a)
now or hereafter in the possession or custody of or in transit to Agent or any
Lender, for any purpose, including safe keeping, collection or pledge, for the
account of such Grantor, or as to which such Grantor may have any right or
power.
3. AGENT'S AND LENDERS' RIGHTS: LIMITATIONS ON AGENT'S AND LENDERS'
OBLIGATIONS.
a. It is expressly agreed by Grantors that, anything herein to the
contrary notwithstanding, each Grantor shall remain liable under each of its
Contracts and each of its
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Licenses to observe and perform all the conditions and obligations to be
observed and performed by it thereunder. Neither Agent nor any Lender shall have
any obligation or liability under any Contract or License by reason of or
arising out of this Security Agreement or the granting herein of a Lien thereon
or the receipt by Agent or any Lender of any payment relating to any Contract or
License pursuant hereto. Neither Agent nor any Lender shall be required or
obligated in any manner to perform or fulfill any of the obligations of any
Grantor under or pursuant to any Contract or License, or to make any payment, or
to make any inquiry as to the nature or the sufficiency of any payment received
by it or the sufficiency of any performance by any party under any Contract or
License, or to present or file any claims, or to take any action to collect or
enforce any performance or the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
b. Agent may at any time after an Event of Default has occurred and
is continuing without prior notice to any Grantor, notify Account Debtors and
other Persons obligated on the Collateral that Agent has a security interest
therein, and that payments shall be made directly to Agent. Furthermore, if
Agent determines that Account Debtors' contra-accounts or set-off rights may
cause an Event of Default or Borrowing Availability to be less than zero, Agent
may notify Account Debtors that Agent has a security interest therein, and that
payments shall be made directly to Agent. In such circumstances and upon the
request of Agent, each Grantor shall so notify Account Debtors and other Persons
obligated on Collateral. Once any such notice has been given to any Account
Debtor or other Person obligated on the Collateral, the affected Grantor shall
not give any contrary instructions to such Account Debtor or other Person
without Agent's prior written consent.
c. Agent may at any time in Agent's own name, in the name of a
nominee of Agent or in the name of any Grantor communicate (by mail, telephone,
facsimile or otherwise) with Account Debtors, parties to Contracts and obligors
in respect of Instruments to verify with such Persons, to Agent's satisfaction,
the existence, amount terms of, and any other matter relating to, Accounts,
Instruments, Chattel Paper and/or payment intangibles. If an Event of Default
shall have occurred and be continuing, each Grantor, at its own expense, shall
cause the independent certified public accountants then engaged by such Grantor
to prepare and deliver to Agent and each Lender at any time and from time to
time promptly upon Agent's reasonable request the following reports with respect
to each Grantor: (i) a reconciliation of all Accounts; (ii) an aging of all
Accounts; (iii) trial balances; and (iv) a test verification of such Accounts as
Agent may reasonably request. Each Grantor, at its own expense, shall deliver to
Agent the results of each physical verification, if any, which such Grantor may
in its discretion have made, or caused any other Person to have made on its
behalf, of all or any portion of its Inventory.
4. REPRESENTATIONS AND WARRANTIES. Each Grantor represents and warrants
that:
a. Each Grantor has rights in and the power to transfer each item of
the Collateral upon which it purports to xxxxx x Xxxx hereunder free and clear
of any and all Liens other than Permitted Encumbrances.
b. No effective security agreement, financing statement, equivalent
security or Lien instrument or continuation statement covering all or any part
of the Collateral is on file or of record in any public office, except such as
may have been filed (i) by any Grantor in favor
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of Agent pursuant to this Security Agreement or the other Loan Documents, and
(ii) in connection with any other Permitted Encumbrances.
c. This Security Agreement is effective to create a valid and
continuing Lien on and, upon the filing of the appropriate financing statements
listed on SCHEDULE I hereto, a perfected Lien in favor of Agent, for itself and
the benefit of Lenders, on the Collateral with respect to which a Lien may be
perfected by filing pursuant to the Code. Such Lien is prior to all other Liens,
except Permitted Encumbrances, and is enforceable as such as against any and all
creditors of Grantor (other than beneficiaries of the Permitted Encumbrances).
d. SCHEDULE II-A hereto lists all Instruments, Letter of Credit
Rights and Chattel Paper of each Grantor. All action by any Grantor necessary or
desirable to protect and perfect the Lien of Agent on each item set forth on
SCHEDULE II-B (including the delivery of all originals thereof to Agent and the
legending of all Chattel Paper as required by SECTION 5(b) hereof) has been duly
taken. The Lien of Agent, for the benefit of Agent and Lenders, on the
Collateral listed on SCHEDULE II-B hereto is prior to all other Liens, except
Permitted Encumbrances, and is enforceable as such against any and all creditors
of Grantor (other than beneficiaries of the Permitted Encumbrances)..
e. Each Grantor's name as it appears in official filings in the
state of its incorporation or other organization, the type of entity of each
Grantor (including corporation, partnership, limited partnership or limited
liability company), organizational identification number issued by each
Grantor's state of incorporation or organization or a statement that no such
number has been issued, each Grantor's state of organization or incorporation,
the location of each Grantor's chief executive office, principal place of
business, offices, all warehouses and premises where Collateral is stored or
located, and the locations of its books and records concerning the Collateral
are set forth on SCHEDULE III-A, SCHEDULE III-B, SCHEDULE III-C, SCHEDULE III-D,
SCHEDULE III-E, SCHEDULE III-F, SCHEDULE III-G, or SCHEDULE III-H, respectively,
hereto. Each Grantor has only one state of incorporation or organization.
f. With respect to the Accounts, except as specifically disclosed
(x) in the most recent Collateral Report delivered to Agent, or (y) in writing
to Agent, (i) they represent bona fide sales of Inventory or rendering of
services to Account Debtors in the ordinary course of each Grantor's business
and are not evidenced by a judgment, Instrument or Chattel Paper; (ii) there are
no setoffs, claims or disputes existing or asserted with respect thereto and no
Grantor has made any agreement with any Account Debtor for any extension of time
for the payment thereof, any compromise or settlement for less than the full
amount thereof, any release of any Account Debtor from liability therefor, or
any deduction therefrom except a discount or allowance allowed by such Grantor
in the ordinary course of its business for prompt payment and disclosed to
Agent; (iii) to each Grantor's knowledge, there are no facts, events or
occurrences which in any way impair the validity or enforceability thereof or
could reasonably be expected to reduce the amount payable thereunder as shown on
any Grantor's books and records and any invoices, statements and Collateral
Reports delivered to Agent and Lenders with respect thereto; (iv) no Grantor has
received any notice of proceedings or actions which are threatened or pending
against any Account Debtor which might result in any adverse change in such
Account Debtor's financial condition; and (v) no Grantor has knowledge that any
Account Debtor is unable generally to pay its debts as they become due. Further
with respect to the
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Accounts (x) the amounts shown on all invoices, statements and Collateral
Reports which may be delivered to the Agent with respect thereto are actually
and absolutely owing to such Grantor as indicated thereon and are not in any way
contingent; (y) no payments have been or shall be made thereon except payments
immediately delivered to the applicable Blocked Accounts or the Agent as
required pursuant to the terms of ANNEX C to the Credit Agreement; and (z) to
each Grantor's knowledge, all Account Debtors have the capacity to contract.
g. With respect to any Inventory scheduled or listed on the most
recent Collateral Report delivered to Agent, (i) such Inventory is located at
one of the applicable Grantor's locations set forth on SCHEDULE III-A, SCHEDULE
III-B, SCHEDULE III-C, SCHEDULE III-D, SCHEDULE III-E, SCHEDULE III-F, SCHEDULE
III-G, or SCHEDULE III-H hereto, as applicable, (ii) no such Inventory is now,
or shall at any time or times hereafter be stored at any other location without
except (A) locations added in connection with a Permitted Acquisition, or (B)
otherwise with Agent's prior consent, and if Agent gives such consent, each
applicable Grantor will concurrently therewith obtain, to the extent required by
the Credit Agreement, bailee, landlord and mortgagee agreements in form
reasonably acceptable to Agent, (iii) the applicable Grantor has good,
indefeasible and merchantable title to such Inventory and such Inventory is not
subject to any Lien or security interest or document whatsoever except for the
Lien granted to Agent, for the benefit of Agent and Lenders, and except for
Permitted Encumbrances, (iv) except as specifically disclosed in the most recent
Collateral Report delivered to Agent, such Inventory is Eligible Inventory of
good and merchantable quality, free from any material defects, (v) such
Inventory is not subject to any licensing, patent, royalty, trademark, trade
name or copyright agreements with any third parties which would require any
consent of any third party upon sale or disposition of that Inventory or the
payment of any monies to any third party upon such sale or other disposition,
and (vi) the completion of manufacture, sale or other disposition of such
Inventory by Agent following an Event of Default shall not require the consent
of any Person and shall not constitute a breach or default under any contract or
agreement to which any Grantor is a party or to which such Inventory is subject.
h. No Grantor has any interest in, or title to, any Patent,
Trademark or Copyright except as set forth in SCHEDULE IV-A, SCHEDULE IV-B, or
SCHEDULE IV-C hereto. This Security Agreement is effective to create a valid and
continuing Lien on and, upon timely filing of the Copyright Security Agreements
with the United States Copyright Office and timely filing of the Patent Security
Agreements and the Trademark Security Agreements with the United State Patent
and Trademark Office, perfected Liens in favor of Agent on each Grantor' s
Patents, Trademarks and Copyrights and such perfected Liens are enforceable as
such as against any and all creditors of any Grantor.
5. COVENANTS. Each Grantor covenants and agrees with Agent, for the
benefit of Agent and Lenders, that from and after the date of this Security
Agreement and until the Termination Date:
a. FURTHER ASSURANCES: PLEDGE OF INSTRUMENTS; CHATTEL PAPER.
(i) At any time and from time to time, upon the written
request of Agent and at the sole expense of Grantors, each
Grantor shall promptly and duly execute and deliver any
and all such further
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instruments and documents and take such further actions as
Agent may reasonably deem desirable to obtain the full
benefits of this Security Agreement and of the rights and
powers herein granted, including (A) using commercially
reasonable efforts to secure all consents and approvals
necessary or appropriate for the assignment to or for the
benefit of Agent of any License or Contract held by such
Grantor and to enforce the security interests granted
hereunder; and (B) filing any financing or continuation
statements under the Code with respect to the Liens
granted hereunder or under any other Loan Document as to
those jurisdictions that are not Uniform Commercial Code
jurisdictions.
(ii) If requested by Agent, each Grantor shall deliver to Agent
all Collateral consisting of negotiable Documents,
certificated securities, Chattel Paper and Instruments (in
each case, accompanied by stock powers, allonges or other
instruments of transfer executed in blank) promptly after
such Credit Party receives the same.
(iii) Each Grantor shall, in accordance with the terms of the
Credit Agreement, obtain or use commercially reasonable
efforts to obtain waivers or subordinations of Liens from
landlords and mortgagees, and each Credit Party shall in
all instances obtain signed acknowledgements of Agent's
Liens from bailees having possession of any Grantor's
Goods that they hold for the benefit of Agent.
(iv) Each Grantor that is or becomes the beneficiary of a
letter of credit shall promptly, and in any event within
two (2) Business Days after becoming a beneficiary, notify
Agent thereof and enter into a tri-party agreement with
Agent and the issuer and/or confirmation bank with respect
to Letter-of-Credit Rights assigning such Letter-of-Credit
Rights to Agent and directing all payments thereunder to
the Collection Account, all in form and substance
reasonably satisfactory to Agent.
(v) If requested by Agent, each Grantor shall take all steps
necessary to grant the Agent control of all electronic
chattel paper in accordance with the Code and all
"transferable records" as defined in each of the Uniform
Electronic Transactions Act and the Electronic Signatures
in Global and National Commerce Act.
(vi) Each Grantor hereby irrevocably authorizes the Agent at
any time and from time to time to file in any filing
office in any Uniform Commercial Code jurisdiction any
initial financing statements and amendments thereto that
(a) indicate the Collateral (i) as all assets of such
Grantor or words of similar effect, regardless of whether
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any particular asset comprised in the Collateral falls
within the scope of Article 9 of the Code or such
jurisdiction, or (ii) as being of an equal or lesser scope
or with greater detail, and (b) contain any other
information required by part 5 of Article 9 of the Code
for the sufficiency or filing office acceptance of any
financing statement or amendment, including (i) whether
such Grantor is an organization, the type of organization
and any organization identification number issued to such
Grantor, and (ii) in the case of a financing statement
filed as a fixture filing or indicating Collateral as
as-extracted collateral or timber to be cut, a sufficient
description of real property to which the Collateral
relates. Each Grantor agrees to furnish any such
information to the Agent promptly upon request. Each
Grantor also ratifies its authorization for the Agent to
have filed in any Uniform Commercial Code jurisdiction any
initial financing statements or amendments thereto if
filed prior to the date hereof.
b. MAINTENANCE OF RECORDS. Grantors shall keep and maintain, at
their own cost and expense, satisfactory and complete records of the Collateral,
including a record of any and all payments received and any and all credits
granted with respect to the Collateral and all other dealings with the
Collateral. Grantors shall xxxx their books and records pertaining to the
Collateral to evidence this Security Agreement and the Liens granted hereby. If
any Grantor retains possession of any Chattel Paper or Instruments with Agent's
consent, such Chattel Paper and Instruments shall be marked with the following
legend: "This writing and the obligations evidenced or secured hereby are
subject to the security interest of General Electric Capital Corporation, as
Agent, for the benefit of Agent and certain Lenders."
c. COVENANTS REGARDING PATENT, TRADEMARK AND COPYRIGHT COLLATERAL.
(i) Grantors shall notify Agent immediately if they know or
have reason to know that any application or registration
relating to any Patent, Trademark or Copyright (now or
hereafter existing) that is material to the conduct of its
business may become abandoned or dedicated, or of any
adverse determination or development (including the
institution of, or any such determination or development
in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or
any court) regarding any Grantor's ownership of any
Patent, Trademark or Copyright that is material to the
conduct of its business, its right to register the same,
or to keep and maintain the same.
(ii) In no event shall any Grantor, either itself or through
any agent, employee, licensee or designee, file an
application for the registration of any Patent, Trademark
or Copyright with the United States Patent and Trademark
Office, the United States Copyright Office or any similar
office or agency without giving Agent prior
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written notice thereof, and, upon request of Agent,
Grantor shall execute and deliver any and all Patent
Security Agreements, Copyright Security Agreements or
Trademark Security Agreements as Agent may request to
evidence Agent's Lien on such Patent, Trademark or
Copyright, and the General Intangibles of such Grantor
relating thereto or represented thereby.
(iii) Grantors shall take all actions necessary or requested by
Agent to maintain and pursue each application, to obtain
the relevant registration and to maintain the registration
of each of the Patents, Trademarks and Copyrights (now or
hereafter existing), including the filing of applications
for renewal, affidavits of use, affidavits of
non-contestability and opposition and interference and
cancellation proceedings, unless the applicable Grantor
shall determine that such Patent, Trademark or Copyright
is not material to the conduct of its business.
(iv) In the event that a Grantor becomes aware of any of the
Patent, Trademark or Copyright Collateral is infringed
upon, or misappropriated or diluted by a third party, such
Grantor shall notify Agent of the same and, unless such
Patent, Trademark or Copyright Collateral is not material
to the conduct of its business or as otherwise consented
by Agent, shall enter into a supplement to this Security
Agreement granting to Agent a Lien on a commercial tort
claim (as defined in the Code) related thereto. Such
Grantor shall, unless such Grantor shall reasonably
determine that such Patent, Trademark or Copyright
Collateral is not material to the conduct of its business,
promptly xxx for infringement, misappropriation or
dilution and to recover any and all damages for such
infringement, misappropriation or dilution, and shall take
such other actions as Agent shall deem appropriate under
the circumstances to protect such Patent, Trademark or
Copyright Collateral.
d. INDEMNIFICATION. In any suit, proceeding or action brought by
Agent or any Lender relating to any Collateral for any sum owing with respect
thereto or to enforce any rights or claims with respect thereto, each Grantor
will save, indemnify and keep Agent and Lenders harmless from and against all
expense (including reasonable attorneys' fees and expenses), loss or damage
suffered by reason of any defense, setoff, counterclaim, recoupment or reduction
of liability whatsoever of the Account Debtor or other Person obligated on the
Collateral, arising out of a breach by any Grantor of any obligation thereunder
or arising out of any other agreement, indebtedness or liability at any time
owing to, or in favor of, such obligor or its successors from such Grantor,
except in the case of Agent or any Lender, to the extent such expense, loss, or
damage is attributable solely to the gross negligence or willful misconduct of
Agent or such Lender as finally determined by a court of competent jurisdiction.
All such obligations of Grantors shall be and remain enforceable against and
only against Grantors and shall not be enforceable against Agent or any Lender.
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e. LIMITATION ON LIENS ON COLLATERAL. No Grantor will create, permit
or suffer to exist, and each Grantor will defend the Collateral against, and
take such other action as is necessary to remove, any Lien on the Collateral
except Permitted Encumbrances, and will defend the right, title and interest of
Agent and Lenders in and to any of such Grantor's rights under the Collateral
against the claims and demands of all Persons whomsoever (other than the
beneficiaries of the Permitted Encumbrances.
f. NOTICES. Each Grantor will advise Agent promptly, in reasonable
detail, of any Lien (other than Permitted Encumbrances) or claim made or
asserted against any of the Collateral of which such Grantor is aware.
g. GOOD STANDING CERTIFICATES. If requested by Agent, but not more
frequently than once during each calendar quarter, each Grantor shall provide to
Agent a certificate of good standing from its state of incorporation or
organization.
h. NO REINCORPORATION. Without limiting the prohibitions on mergers
involving the Grantors contained in the Credit Agreement, no Grantor shall
reincorporate or reorganize itself under the laws of any jurisdiction other than
the jurisdiction in which it is incorporated or organized as of the date hereof
without the prior written consent of Agent.
i. TERMINATIONS; AMENDMENTS NOT AUTHORIZED. Each Grantor
acknowledges that it is not authorized to file any financing statement or
amendment or termination statement with respect to any financing statement
evidencing a Lien granted hereunder without the prior written consent of Agent
and agrees that it will not do so without the prior written consent of Agent,
subject to such Grantor's rights under Section 9-509(d)(2) of the Code.
j. AUTHORIZED TERMINATIONS. Agent will promptly deliver to each
Grantor for filing or authorize each Grantor to prepare and file termination
statements and releases in accordance with SECTION 11.2(e) of the Credit
Agreement.
6. AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
On the Closing Date each Grantor shall execute and deliver to Agent a
power of attorney (the "POWER OF ATTORNEY") substantially in the form attached
hereto as Exhibit A. The power of attorney granted pursuant to the Power of
Attorney is a power coupled with an interest and shall be irrevocable until the
Termination Date. The powers conferred on Agent, for the benefit of Agent and
Lenders, under the Power of Attorney are solely to protect Agent's interests
(for the benefit of Agent and Lenders) in the Collateral and shall not impose
any duty upon Agent or any Lender to exercise any such powers. Agent agrees that
(a) except for the powers granted in clause (h) of the Power of Attorney, it
shall not exercise any power or authority granted under the Power of Attorney
unless an Event of Default has occurred and is continuing, and (b) Agent shall
account for any moneys received by Agent in respect of any foreclosure on or
disposition of Collateral pursuant to the Power of Attorney provided that none
of Agent or any Lender shall have any duty as to any Collateral, and Agent and
Lenders shall be accountable only for amounts that they actually receive as a
result of the exercise of such powers. NONE OF AGENT, LENDERS OR THEIR
RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES
SHALL BE RESPONSIBLE TO ANY
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GRANTOR FOR ANY ACT OR FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR OTHERWISE,
EXCEPT IN RESPECT OF DAMAGES ATTRIBUTABLE SOLELY TO THEIR OWN GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION, NOR FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL
DAMAGES.
7. REMEDIES: RIGHTS UPON DEFAULT.
a. In addition to all other rights and remedies granted to it under
this Security Agreement, the Credit Agreement, the other Loan Documents and
under any other instrument or agreement securing, evidencing or relating to any
of the Obligations, if any Event of Default shall have occurred and be
continuing, Agent may exercise all rights and remedies of a secured party under
the Code. Without limiting the generality of the foregoing, each Grantor
expressly agrees that in any such event Agent, without demand of performance or
other demand, advertisement or notice of any kind (except the notice specified
below of time and place of public or private sale) to or upon such Grantor or
any other Person (all and each of which demands, advertisements and notices are
hereby expressly waived to the maximum extent permitted by the Code and other
applicable law), may forthwith enter upon the premises of such Grantor where any
Collateral is located through self-help, without judicial process, without first
obtaining a final judgment or giving such Grantor or any other Person notice and
opportunity for a hearing on Agent's claim or action and may collect, receive,
assemble, process, appropriate and realize upon the Collateral, or any part
thereof, and may forthwith sell, lease, license, assign, give an option or
options to purchase, or sell or otherwise dispose of and deliver said Collateral
(or contract to do so), or any part thereof, in one or more parcels at a public
or private sale or sales, at any exchange at such prices as it may deem
acceptable, for cash or on credit or for future delivery without assumption of
any credit risk. Agent or any Lender shall have the right upon any such public
sale or sales and, to the extent permitted by law, upon any such private sale or
sales, to purchase for the benefit of Agent and Lenders, the whole or any part
of said Collateral so sold, free of any right or equity of redemption, which
equity of redemption each Grantor hereby releases. Such sales may be adjourned
and continued from time to time with or without notice. Agent shall have the
right to conduct such sales on any Grantor's premises or elsewhere and shall
have the right to use any Grantor's premises without charge for such time or
times as Agent deems necessary or advisable.
If any Event of Default shall have occurred and be continuing, each
Grantor further agrees, at Agent's request, to assemble the Collateral and make
it available to Agent at a place or places designated by Agent which are
reasonably convenient to Agent and such Grantor, whether at such Grantor's
premises or elsewhere. Until Agent is able to effect a sale, lease, or other
disposition of Collateral, Agent shall have the right to hold or use Collateral,
or any part thereof, to the extent that it deems appropriate for the purpose of
preserving Collateral or its value or for any other purpose deemed appropriate
by Agent. Agent shall have no obligation to any Grantor to maintain or preserve
the rights of such Grantor as against third parties with respect to Collateral
while Collateral is in the possession of Agent. Agent may, if it so elects, seek
the appointment of a receiver or keeper to take possession of Collateral and to
enforce any of Agent's remedies (for the benefit of Agent and Lenders), with
respect to such appointment without prior notice or hearing as to such
appointment. Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale to the Obligations as
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provided in the Credit Agreement, and only after so paying over such net
proceeds, and after the payment by Agent of any other amount required by any
provision of law, need Agent account for the surplus, if any, to any Grantor. To
the maximum extent permitted by applicable law, each Grantor waives all claims,
damages, and demands against Agent or any Lender arising out of the
repossession, retention or sale of the Collateral except such as arise solely
out of the gross negligence or willful misconduct of Agent or such Lender as
finally determined by a court of competent jurisdiction. Each Grantor agrees
that ten (10) days prior notice by Agent of the time and place of any public
sale or of the time after which a private sale may take place is reasonable
notification of such matters. Grantors shall remain liable for any deficiency if
the proceeds of any sale or disposition of the Collateral are insufficient to
pay all Obligations, including any attorneys' fees and other expenses incurred
by Agent or any Lender to collect such deficiency.
b. Except as otherwise specifically provided herein, each Grantor
hereby waives presentment, demand, protest or any notice (to the maximum extent
permitted by applicable law) of any kind in connection with this Security
Agreement or any Collateral.
c. To the extent that applicable law imposes duties on the Agent to
exercise remedies in a commercially reasonable manner, each Grantor acknowledges
and agrees that it is not commercially unreasonable for the Agent (i) to fail to
incur expenses reasonably deemed significant by the Agent to prepare Collateral
for disposition or otherwise to complete raw material or work in process into
finished goods or other finished products for disposition, (ii) to fail to
obtain third party consents for access to Collateral to be disposed of, or to
obtain or, if not required by other law, to fail to obtain governmental or third
party consents for the collection or disposition of Collateral to be collected
or disposed of, (iii) to fail to exercise collection remedies against Account
Debtors or other Persons obligated on Collateral or to remove Liens on or any
adverse claims against Collateral, (iv) to exercise collection remedies against
Account Debtors and other Persons obligated on Collateral directly or through
the use of collection agencies and other collection specialists, (v) to
advertise dispositions of Collateral through publications or media of general
circulation, whether or not the Collateral is of a specialized nature, (vi) to
contact other Persons, whether or not in the same business as the Grantor, for
expressions of interest in acquiring all or any portion of such Collateral,
(vii) to hire one or more professional auctioneers to assist in the disposition
of Collateral, whether or not the Collateral is of a specialized nature, (viii)
to dispose of assets in wholesale rather than retail markets, (ix) to disclaim
disposition warranties, such as title, possession or quiet enjoyment, (x) to
purchase insurance or credit enhancements to insure the Agent against risks of
loss, collection or disposition of Collateral or to provide to the Agent a
guaranteed return from the collection or disposition of Collateral, or (xi) to
the extent deemed appropriate by the Agent, to obtain the services of other
brokers, investment bankers, consultants and other professionals to assist the
Agent in the collection or disposition of any of the Collateral. Each Grantor
acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive
indications of what actions or omissions by the Agent would not be commercially
unreasonable in the Agent's exercise of remedies against the Collateral and that
other actions or omissions by the Agent shall not be deemed commercially
unreasonable solely on account of not being indicated in this Section 7(c).
Without limitation upon the foregoing, nothing contained in this Section 7(c)
shall be construed to grant any rights to any Grantor or to impose any duties on
Agent that would not have been granted or imposed by this Security Agreement or
by applicable law in the absence of this Section 7(c).
11
d. Neither the Agent nor the Lenders shall be required to make any
demand upon, or pursue or exhaust any of their rights or remedies against, any
Grantor, any other obligor, guarantor, pledgor or any other Person with respect
to the payment of the Obligations or to pursue or exhaust any of their rights or
remedies with respect to any Collateral therefor or any direct or indirect
guarantee thereof. Neither the Agent nor the Lenders shall be required to
marshal the Collateral or any guarantee of the Obligations or to resort to the
Collateral or any such guarantee in any particular order, and all of its and
their rights hereunder or under any other Loan Document shall be cumulative. To
the extent it may lawfully do so, each Grantor absolutely and irrevocably waives
and relinquishes the benefit and advantage of, and covenants not to assert
against the Agent or any Lender, any valuation, stay, appraisement, extension,
redemption or similar laws and any and all rights or defenses it may have as a
surety now or hereafter existing which, but for this provision, might be
applicable to the sale of any Collateral made under the judgment, order or
decree of any court, or privately under the power of sale conferred by this
Security Agreement, or otherwise.
8. GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY COLLATERAL. For the
purpose of enabling Agent to exercise rights and remedies under SECTION 7 hereof
(including, without limiting the terms of SECTION 7 hereof, in order to take
possession of, hold, preserve, process, assemble, prepare for sale, market for
sale, sell or otherwise dispose of Collateral) at such time and for so long as
Agent shall be lawfully entitled to exercise such rights and remedies, each
Grantor hereby grants to Agent, for the benefit of Agent and Lenders, a
nonexclusive license (exercisable without payment of royalty or other
compensation to such Grantor) to use, license or sublicense any intellectual
property now owned or hereafter acquired by such Grantor, and wherever the same
may be located, and including in such license access to all media in which any
of the licensed items may be recorded or stored and to all computer software and
programs used for the compilation or printout thereof.
9. LIMITATION ON AGENT'S AND LENDERS' DUTY IN RESPECT OF COLLATERAL.
Agent and each Lender shall use reasonable care with respect to the Collateral
in its possession or under its control. Neither Agent nor any Lender shall have
any other duty as to any Collateral in its possession or control or in the
possession or control of any Agent or nominee of Agent or such Lender, or any
income thereon or as to the preservation of rights against prior parties or any
other rights pertaining thereto.
10. REINSTATEMENT. This Security Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
any Grantor for liquidation or reorganization, should any Grantor become
insolvent or make an assignment for the benefit of any Creditor or Creditors or
should a receiver or trustee be appointed for all or any significant part of any
Grantor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Obligations, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee of the Obligations,
whether as a "voidable preference," "fraudulent conveyance," or otherwise, all
as though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
12
11. NOTICES. Except as otherwise provided herein, whenever it is provided
herein that any notice, demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon any of the parties by any
other party, or whenever any of the parties desires to give and serve upon any
other party any communication with respect to this Security Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and shall be given in the manner, and deemed received, as
provided for in the Credit Agreement.
12. SEVERABILITY. Whenever possible, each provision of this Security
Agreement shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision of this Security Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this Security
Agreement. This Security Agreement is to be read, construed and applied together
with the Credit Agreement and the other Loan Documents which, taken together,
set forth the complete understanding and agreement of Agent, Lenders and
Grantors with respect to the matters referred to herein and therein.
13. NO WAIVER; CUMULATIVE REMEDIES. Neither Agent nor any Lender shall by
any act, delay, omission or otherwise be deemed to have waived any of its rights
or remedies hereunder, and no waiver shall be valid unless in writing, signed by
Agent and then only to the extent therein set forth. A waiver by Agent of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Agent would otherwise have had on any future occasion.
No failure to exercise nor any delay in exercising on the part of Agent or any
Lender, any right, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this security agreement may be waived, altered, modified
or amended except by an instrument in writing, duly executed by Agent and
Grantors.
14. LIMITATION BY LAW. All rights, remedies and powers provided in this
Security Agreement may be exercised only to the extent that the exercise thereof
does not violate any applicable provision of law, and all the provisions of this
Security Agreement are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent
necessary so that they shall not render this Security Agreement invalid,
unenforceable, in whole or in part, or not entitled to be recorded, registered
or filed under the provisions of any applicable law.
15. TERMINATION OF THIS SECURITY AGREEMENT. Subject to SECTION 10 hereof,
this Security Agreement shall terminate upon the Termination Date.
16. SUCCESSORS AND ASSIGNS. This Security Agreement and all Obligations of
Grantors hereunder shall be binding upon the successors and assigns of each
Grantor (including any debtor-in-possession on behalf of such Grantor) and
shall, together with the rights and remedies of Agent, for the benefit of Agent
and Lenders, hereunder, inure to the benefit of Agent and
13
Lenders, all future holders of any instrument evidencing any of the Obligations
and their respective successors and assigns. No sales of participations, other
sales, assignments, transfers or other dispositions of any agreement governing
or instrument evidencing the Obligations or any portion thereof or interest
therein shall in any manner impair the Lien granted to Agent, for the benefit of
Agent and Lenders, hereunder. No Grantor may assign, sell, hypothecate or
otherwise transfer any interest in or Obligation under this Security Agreement.
17. COUNTERPARTS. This Security Agreement may be authenticated in any
number of separate counterparts, each of which shall collectively and separately
constitute one agreement. This Security Agreement may be authenticated by manual
signature, facsimile or, if approved in writing by Agent, electronic means, all
of which shall be equally valid.
18. GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE
LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, THIS SECURITY AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE,
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH GRANTOR HEREBY
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY,
CITY OF NEW YORK, NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN GRANTORS, AGENT AND LENDERS PERTAINING
TO THIS SECURITY AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER
ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, PROVIDED, THAT AGENT, LENDERS AND GRANTORS ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW
YORK COUNTY, AND, PROVIDED, FURTHER, NOTHING IN THIS AGREEMENT SHALL BE DEEMED
OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN
ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR
THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
AGENT. EACH GRANTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH GRANTOR
HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. EACH GRANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND
OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO SUCH GRANTOR AT THE ADDRESS SET FORTH ON ANNEX I TO THE CREDIT
AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
14
19. WAIVER OF JURY TRIAL. Because disputes arising in connection with
complex financial transactions are most quickly and economically resolved by an
experienced and expert person and the parties wish applicable state and federal
laws to apply (rather than arbitration rules), the parties desire that disputes
arising hereunder or relating hereto be resolved by a judge applying such
applicable laws. Therefore, to achieve the best combination of the benefits of
the judicial system and of arbitration, the parties hereto waive all right to
trial by jury in any action, suit or proceeding brought to resolve any dispute,
whether sounding in contract, tort, or otherwise, among Agent, Lenders, and
Grantors arising out of, connected with, related to, or incidental to the
relationship established in connection with, this Security Agreement or any of
the other loan documents or the transactions related hereto or thereto.
20. SECTION TITLES. The Section titles contained in this Security
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the Agreement between the parties hereto.
21. NO STRICT CONSTRUCTION. The parties hereto have participated jointly
in the negotiation and drafting of this Security Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Security
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Security Agreement.
22. ADVICE OF COUNSEL. Each of the parties represents to each other party
hereto that it has discussed this Security Agreement and, specifically, the
provisions of SECTION 18 and SECTION 19, with its counsel.
23. BENEFIT OF LENDERS. All Liens granted or contemplated hereby shall be
for the benefit of Agent, individually, and Lenders, and all proceeds or
payments realized from Collateral in accordance herewith shall be applied to the
Obligations in accordance with the terms of the Credit Agreement.
15
IN WITNESS WHEREOF, each of the parties hereto has caused this
Security Agreement to be executed and delivered by its duly authorized officer
as of the date first set forth above.
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Duly Authorized Signatory
ROLLER BEARING COMPANY OF AMERICA,
INC., AS BORROWER
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
INDUSTRIAL TECTONICS BEARINGS
CORPORATION, as Grantor
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
RBC NICE BEARINGS INC., as Grantor
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
[Signature Page to the Security Agreement]
BREMEN BEARINGS, INC., as Grantor
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
TYSON BEARING COMPANY, INC., as Grantor
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
RBC LINEAR PRECISION PRODUCTS, INC., as
Grantor
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
XXXXXX BEARING COMPANY, INC., as Grantor
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
RBC OKLAHOMA, INC., as Grantor
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
[Signature Page to the Security Agreement]
SCHEDULE I
to
SECURITY AGREEMENT
FILING JURISDICTIONS
SCHEDULE II
to
SECURITY AGREEMENT
INSTRUMENTS
CHATTEL PAPER
AND
LETTER OF CREDIT RIGHTS
[TO BE COMPLETED BY GRANTORS]
SCHEDULE III-A
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING ROLLER BEARING COMPANY OF AMERICA, INC.
("RBC") COLLATERAL
I. Grantor's official name:
-------------------------
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company):
III. Organizational identification number issued by Grantor's state of
incorporation or organization or a statement that no such number has been
issued:
IV. State or Incorporation or Organization of RBC:
V. Chief Executive Office and principal place of business of RBC:
VI. Corporate Offices of RBC:
VII. Warehouses:
VIII. Other Premises at which Collateral is Stored or Located:
IX. Locations of Records Concerning Collateral:
[TO BE COMPLETED BY GRANTORS]
SCHEDULE III-B
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING INDUSTRIAL TECTONICS BEARINGS CORPORATION
("INDUSTRIAL") COLLATERAL
I. Grantor's official name:
-----------------------
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company):
III. Organizational identification number issued by Grantor's state of
incorporation or organization or a statement that no such number has been
issued:
IV. State or Incorporation or Organization:
V. Chief Executive Office and principal place of business of Industrial:
VI. Corporate Offices of Industrial:
VII. Warehouses:
VIII. Other Premises at which Collateral is Stored or Located:
IX. Locations of Records Concerning Collateral:
[TO BE COMPLETED BY GRANTORS]
SCHEDULE III-C
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING RBC NICE BEARINGS, INC. ("RBC
NICE")COLLATERAL
I. Grantor's official name:
-------------------------
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company):
III. Organizational identification number issued by Grantor's state of
incorporation or organization or a statement that no such number has been
issued:
IV. State or Incorporation or Organization:
V. Chief Executive Office and principal place of business of RBC Nice
VI. Corporate Offices of RBC Nice:
VII. Warehouses:
VIII. Other Premises at which Collateral is Stored or Located:
IX. Locations of Records Concerning Collateral:
[TO BE COMPLETED BY GRANTORS]
SCHEDULE III-D
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING BREMEN BEARINGS, INC. ("BREMEN") COLLATERAL
I. Grantor's official name:
-------------------------
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company):
III. Organizational identification number issued by Grantor's state of
incorporation or organization or a statement that no such number has been
issued:
IV. State or Incorporation or Organization:
V. Chief Executive Office and principal place of business of Bremen:
VI. Corporate Offices of Bremen:
VII. Warehouses:
VIII. Other Premises at which Collateral is Stored or Located:
IX. Locations of Records Concerning Collateral:
[TO BE COMPLETED BY GRANTORS]
SCHEDULE III-E
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING TYSON BEARING COMPANY, INC. ("TYSON")
COLLATERAL
I. Grantor's official name:
-------------------------
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company):
III. Organizational identification number issued by Grantor's state of
incorporation or organization or a statement that no such number has been
issued:
IV. State or Incorporation or Organization:
V. Chief Executive Office and principal place of business of Tyson:
VI. Corporate Offices of Tyson:
VII. Warehouses:
VIII. Other Premises at which Collateral is Stored or Located:
IX. Locations of Records Concerning Collateral:
[TO BE COMPLETED BY GRANTORS]
SCHEDULE III-F
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING RBC LINEAR PRODUCTS, INC. ("RBC LINEAR")
COLLATERAL
I. Grantor's official name:
-------------------------
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company):
III. Organizational identification number issued by Grantor's state of
incorporation or organization or a statement that no such number has been
issued:
IV. State or Incorporation or Organization:
V. Chief Executive Office and principal place of business of RBC Linear:
VI. Corporate Offices of RBC Linear:
VII. Warehouses:
VIII. Other Premises at which Collateral is Stored or Located:
IX. Locations of Records Concerning Collateral:
[TO BE COMPLETED BY GRANTORS]
SCHEDULE III-G
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING XXXXXX BEARING COMPANY, INC. ("XXXXXX")
COLLATERAL
I. Grantor's official name:
-------------------------
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company):
III. Organizational identification number issued by Grantor's state of
incorporation or organization or a statement that no such number has been
issued:
IV. State or Incorporation or Organization:
V. Chief Executive Office and principal place of business of Xxxxxx:
VI. Corporate Offices of Xxxxxx:
VII. Warehouses:
VIII. Other Premises at which Collateral is Stored or Located:
IX. Locations of Records Concerning Collateral:
[TO BE COMPLETED BY GRANTORS]
SCHEDULE III-H
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING RBC OKLAHOMA, INC. ("RBC OKLAHOMA")
COLLATERAL
I. Grantor's official name:
-------------------------
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company):
III. Organizational identification number issued by Grantor's state of
incorporation or organization or a statement that no such number has been
issued:
IV. State or Incorporation or Organization:
V. Chief Executive Office and principal place of business of RBC Oklahoma:
VI. Corporate Offices of RBC Oklahoma:
VII. Warehouses:
VIII. Other Premises at which Collateral is Stored or Located:
IX. Locations of Records Concerning Collateral:
[TO BE COMPLETED BY GRANTORS]
SCHEDULE IV-A
to
SECURITY AGREEMENT
PATENTS, TRADEMARKS AND COPYRIGHTS
RBC INDUSTRIAL
[TO BE COMPLETED BY GRANTORS]
SCHEDULE IV-B
to
SECURITY AGREEMENT
PATENTS, TRADEMARKS AND COPYRIGHTS
RBC NICE BREMEN TYSON
SCHEDULE IV-C
to
SECURITY AGREEMENT
PATENTS, TRADEMARKS AND COPYRIGHTS
RBC LINEAR XXXXXX RBC OKLAHOMA
EXHIBIT A
POWER OF ATTORNEY
This Power of Attorney is executed and delivered by
______________________, a _____________________ corporation ("Grantor") to
General Electric Capital Corporation, a Delaware corporation (hereinafter
referred to as "Attorney"), as Agent for the benefit of Agent and Lenders, under
a Credit Agreement and a Security Agreement, both dated as of May ____, 2002,
and other related documents (the "Loan Documents"). No person to whom this Power
of Attorney is presented, as authority for Attorney to take any action or
actions contemplated hereby, shall be required to inquire into or seek
confirmation from Grantor as to the authority of Attorney to take any action
described below, or as to the existence of or fulfillment of any condition to
this Power of Attorney, which is intended to grant to Attorney unconditionally
the authority to take and perform the actions contemplated herein, and Grantor
irrevocable waives any right to commence any suit or action, in law or equity,
against any person or entity which acts in reliance upon or acknowledges the
authority granted under this Power of Attorney. The power of attorney granted
hereby is coupled with an interest, and may not be revoked or canceled by
Grantor without Attorney' s written consent.
Grantor hereby irrevocably constitutes and appoints Attorney (and all
officers, employees or Agents designated by Attorney), with full power of
substitution, as Grantor's true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Grantor and in the
name of Grantor or in its own name, from time to time in Attorney's discretion,
to take any and all appropriate action and to execute and deliver any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of the Loan Documents and, without limiting the generality of the
foregoing, Grantor hereby grants to Attorney the power and right, on behalf of
Grantor, without notice to or assent by Grantor, and at any time, to do the
following: (a) change the mailing address of Grantor, open a post office box on
behalf of Grantor, open mail for Grantor, and ask, demand, collect, give
acquittances and receipts for, take possession of, endorse any invoices, freight
or express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, and notices in connection with any property
of Grantor; (b) effect any repairs to any asset of Grantor, or continue or
obtain any insurance and pay all or any part of the premiums therefor and costs
thereof, and make, settle and adjust all claims under such policies of
insurance, and make all determinations and decisions with respect to such
policies; (c) pay or discharge any taxes, liens, security interests, or other
encumbrances levied or placed on or threatened against Grantor or its property;
(d) defend any suit, action or proceeding brought against Grantor if Grantor
does not defend such suit, action or proceeding or if Attorney believes that
Grantor is not pursuing such defense in a manner that will maximize the recovery
to Attorney, and settle, compromise or adjust any suit, action, or proceeding
described above and, in connection therewith, give such discharges or releases
as Attorney may deem appropriate; (e) file or prosecute any claim, litigation,
suit or proceeding in any court of competent jurisdiction or before any
arbitrator, or take any other action otherwise deemed appropriate by Attorney
for the purpose of collecting any and all such moneys due to Grantor whenever
payable and to enforce any other right in respect of Grantor's property; (f)
cause the certified public accountants then engaged by Grantor to
prepare and deliver to Attorney at any time and from time to time, promptly upon
Attorney's request, the following reports: (1) a reconciliation of all accounts,
(2) an aging of all accounts, (3) trial balances, (4) test verifications of such
accounts as Attorney may request, and (5) the results of each physical
verification of inventory; (g) communicate in its own name with any party to any
Contract with regard to the assignment of the right, title and interest of such
Grantor in and under the Contracts and other matters relating thereto; (h) to
file such financing statements with respect to the Security Agreement, with or
without Grantor's signature, or to file a photocopy of the Security Agreement in
substitution for a financing statement, as the Agent may deem appropriate and to
execute in Grantor's name such financing statements and amendments thereto and
continuation statements which may require the Grantor's signature; and (i)
execute, in connection with any sale provided for in any Loan Document, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral and to otherwise direct such sale or resale, all as
though Attorney were the absolute owner of the property of Grantor for all
purposes, and to do, at Attorney's option and Grantor's expense, at any time or
from time to time, all acts and other things that Attorney reasonably deems
necessary to perfect, preserve, or realize upon Grantor's property or assets and
Attorney's Liens thereon, all as fully and effectively as Grantor might do.
Grantor hereby ratifies, to the extent permitted by law, all that said Attorney
shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney is executed by Grantor, and
Grantor has caused its seal to be affixed pursuant to the authority of its board
of directors this _____________ day of May, 2002.
[ GRANTOR ]
---------------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
NOTARY PUBLIC CERTIFICATE
On this _____ day of May, 2002, [officer's name] who is personally
known to me appeared before me in his/her capacity as the [title] of [Grantor]
("Grantor") and executed on behalf of Grantor the Power of Attorney in favor of
General Electric Capital Corporation to which this Certificate is attached.
----------------------------------------
Notary Public
