SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of August 13, 1999, between REPUBLIC
TECHNOLOGIES INTERNATIONAL, LLC, a Delaware limited liability company, (the
"Borrower"), REPUBLIC TECHNOLOGIES INTERNATIONAL HOLDINGS, LLC, a Delaware
limited liability company, (the "Parent"), RTI CAPITAL CORP., a Delaware
corporation, ("RTI Capital"), Bliss & Xxxxxxxx, LLC, a Delaware limited
liability company, ("Bliss"), and NimishIllen & Tuscarawas, LLC, a Delaware
limited liability company, ("Nimishillen" and, together with RTI Capital and
Nimishellen, the "Subsidiary Guarantors"), (the Borrower, the Parent and the
Subsidiary Guarantors being collectively referred to herein as the "Companies"
and individually as a "Company") and BANKBOSTON, N.A., a national banking
association, as administrative agent (hereinafter, in such capacity, the
"Agent") for itself and other banking institutions (hereinafter, collectively,
the "Banks") which are or may become parties to a Revolving Credit Agreement of
even date herewith (as amended and in effect from time to time, the "Credit
Agreement"), among the Companies, the Banks, the Agent and the other parties
thereto.
WHEREAS, it is a condition precedent to the Banks' making any loans or
otherwise extending credit to the Borrower under the Credit Agreement that the
Companies execute and deliver to the Agent, for the benefit of the Banks and the
Agent, a security agreement in substantially the form hereof; and
WHEREAS, the Companies wish to grant security interests in favor of the
Agent, for the benefit of the Banks and the Agent, as herein provided;
NOW, THEREFORE, in consideration of the promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein without definitions
shall have the respective meanings provided therefor in the Credit Agreement.
All terms defined in the Uniform Commercial Code of the Commonwealth of
Massachusetts and used herein shall have the same definitions herein as
specified therein; provided, however, that the term "instrument" shall be such
term as defined in Article 9 of the Uniform Commercial Code of such jurisdiction
rather than Article 3.
2. Grant of Security Interest.
2.1. Collateral Granted. Each Company hereby grants to the Agent,
for the benefit of the Banks and the Agent, to secure the payment and
performance in full of all of the Obligations of such Company, a security
interest in and so pledges and assigns to the Agent, for the benefit of
the Banks and the Agent, all of the following properties, assets and
rights of such Company, whether now owned or hereafter acquired or
arising, and all proceeds (including insurance proceeds) and products
thereof and all general
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intangibles, documents and instruments relating to any of the following
(all of the same being hereinafter called the "Collateral"):
(a) all inventory, including raw materials, work in progress
and finished goods;
(b) accounts, including accounts receivable, chattel paper,
and insurance refund claims and all other insurance claims and
proceeds to which the Agent is entitled pursuant to the provisions
of Section 8.7 of the Credit Agreement;
(c) all general intangibles (other than intellectual
property), including, without limitation, all rights to the payment
of money, to the extent relating to the Collateral described in (a)
and (b) above;
(d) all rights to all short term Investments described in
Section 9.3 of the Credit Agreement constituting Collateral
described in (a), (b), or (c) above or proceeds thereof, and to the
extent such Investments do not constitute Collateral for the Notes,
together with all income therefrom and increases therein; and
(e) all tangible personal property of every kind and nature
associated with or used in connection with the facility commonly
known as the "Cast Roll Facility" and located at 0000 Xxxxxxxxxx
Xxxx, X.X., Xxxxxx, Xxxx, including, without limitation, all
furniture, fixtures, equipment, raw materials, inventory, or other
goods (all of the foregoing of each Company described in this clause
(e) collectively referred to herein as the "Canton Fixed Assets"),
and all insurance refund claims and all other insurance claims, tort
claims, chattel paper and all general intangibles related to the
Canton Fixed Assets.
2.2. Delivery of Instruments, etc.
(a) Pursuant to the terms hereof, each Company has endorsed,
assigned and delivered to the Agent all negotiable or non-negotiable
instruments and chattel paper pledged by it hereunder, together with
instruments of transfer or assignment duly executed in blank as the
Agent may have specified. In the event that any Company shall, after
the date of this Agreement, acquire any other negotiable or
non-negotiable instruments or chattel paper to be pledged by it
hereunder, such Company shall forthwith endorse, assign and deliver
the same to the Agent, accompanied by such instruments of transfer
or assignment duly executed in blank as the Agent may from time to
time specify.
(b) To the extent that any Company is a beneficiary under any
written letter of credit constituting Collateral now or hereafter
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issued in favor of such Company and pledged by it hereunder, such
Company shall deliver such letter of credit to the Agent. The Agent
shall from time to time, at the request and expense of such Company,
make such arrangements with such Company as are in the Agent's
reasonable judgment necessary and appropriate so that such Company
may make any drawing to which such Company is entitled under such
letter of credit, without impairment of the Agent's perfected
security interest in such Company's rights to proceeds of such
letter of credit or in the actual proceeds of such drawing. At the
Agent's request, such Company shall, for any such letter of credit,
whether or not written, now or hereafter issued in favor of such
Company as beneficiary, execute and deliver to the issuer and any
confirmer of such letter of credit an assignment of proceeds form,
in favor of the Agent and satisfactory to the Agent and such issuer
or (as the case may be) such confirmer, requiring the proceeds of
any drawing under such letter of credit to be paid directly to the
Agent for application as provided in the Credit Agreement.
2.3. Excluded Collateral. Notwithstanding the foregoing provisions
of this Section 2, such grant of security interest shall not extend to,
and the term "Collateral" shall not include, any chattel paper, general
intangibles and any intellectual property which are now or hereafter held
by any Company as licensee, lessee or otherwise, to the extent that (i)
such chattel paper, general intangibles and such intellectual property are
not assignable or capable of being encumbered as a matter of law or under
the terms of the license, lease or other agreement applicable thereto (but
solely to the extent that any such restriction shall be enforceable under
applicable law), without the consent of the licensor or lessor thereof or
other applicable party thereto and (ii) such consent has not been
obtained; provided, however, that the foregoing grant of security interest
shall extend to, and the term "Collateral" shall include, (A) any and all
proceeds of such chattel paper, general intangibles and such intellectual
property to the extent that the assignment or encumbering of such proceeds
is not so restricted and (B) upon any such licensor, lessor or other
applicable party consent with respect to any such otherwise excluded
chattel paper, general intangibles and such intellectual property being
obtained (including, without limitation, any such consent contained in the
Other Asset Intercreditor Agreement), thereafter such chattel paper,
general intangibles and such intellectual property as well as any and all
proceeds thereof that might have theretofore have been excluded from such
grant of a security interest and the term "Collateral".
2.4. Pledge Agreement. Concurrently herewith certain of the
Companies are executing and delivering to the United States Trust Company
of New York, a bank and trust company organized under the New York Bank
Law, as collateral agent (the "Collateral Agent") for the benefit of the
Banks, the Agent, the Noteholders, the Trustee and each of their
successors and assigns (collectively, the "Secured Parties") for the
benefit of the Secured
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Parties, a Master Pledge Agreement pursuant to which certain Companies are
pledging to the Collateral Agent, for the benefit of the Secured Parties,
all the shares of the capital stock or membership interests, as the case
may be, of the Companies' subsidiary or subsidiaries. Such pledge shall be
governed by the terms of such Master Pledge Agreement and not by the terms
of this Agreement.
3. Title to Collateral, etc. Each Company is the owner of the Collateral
pledged by it free from any adverse lien, security interest or other
encumbrance, except for the security interest created by this Agreement and
other liens permitted by the Credit Agreement. None of the Collateral
constitutes, or is the proceeds of, "farm products" as defined in Section
9-109(3) of the Uniform Commercial Code of the Commonwealth of Massachusetts.
None of the account debtors in respect of any accounts, chattel paper or general
intangibles and none of the obligors in respect of any instruments included in
the Collateral is a governmental authority subject to the Federal Assignment of
Claims Act, unless the relevant account is not included in the Borrowing Base.
4. Continuous Perfection. Each Company's place of business or, if more
than one, chief executive office is indicated on the Perfection Certificates
delivered to the Agent herewith (the "Perfection Certificates"). No Company will
change the same, or the name, identity or corporate structure of such Company in
any manner, without providing at least thirty (30) days prior written notice to
the Agent. The Collateral, to the extent not delivered to the Agent pursuant to
Section 2.2, will be kept at those locations listed on the Perfection
Certificates and no Company will remove the Collateral from such locations,
without providing at least thirty (30) days prior written notice to the Agent,
unless such Collateral is removed to another location in which the Agent has a
perfected security interest.
5. No Liens. Except for the security interest herein granted and liens
permitted by the Credit Agreement, each Company shall be the owner of the
Collateral pledge by it hereunder free from any lien, security interest or other
encumbrance, and each Company shall defend the same against all claims and
demands of all persons at any time claiming the same or any interests therein
adverse to the Agent or any of the Banks. No Company shall pledge, mortgage or
create, or suffer to exist a security interest in the Collateral in favor of any
person other than the Agent, for the benefit of the Banks and the Agent, except
for liens permitted by the Credit Agreement.
6. No Transfers. No Company will sell or offer to sell or otherwise
transfer the Collateral or any interest therein except for (i) sales of
inventory in the ordinary course of business, (ii) sales or other dispositions
of obsolescent items of equipment in the ordinary course of business consistent
with past practices, and (iii) as otherwise permitted by the Credit Agreement.
7. Maintenance of Collateral; Compliance with Law. Each Company will keep
the Collateral in good order and repair and will not use the same in violation
of law or any policy of insurance thereon except where the failure to do so
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would not reasonably be expected to have a Material Adverse Effect. The Agent,
or its designee, may inspect, wherever located, the Collateral at such
reasonable times and intervals as the Agent may request. Each Company will pay
promptly when due all taxes, assessments, governmental charges and levies upon
the Collateral or incurred in connection with the use or operation of such
Collateral or incurred in connection with this Agreement, except as permitted by
Section 8.8 of the Credit Agreement. Each Company has at all times operated, and
each Company will continue to operate, its business in compliance with all
applicable provisions of the federal Fair Labor Standards Act, as amended, and
with all applicable provisions of federal, state and local statutes and
ordinances dealing with the control, shipment, storage or disposal of hazardous
materials or substances, except where failure to do so would not have a Material
Adverse Effect.
8. Collateral Protection Expenses; Preservation of Collateral.
8.1. Expenses Incurred by Agent. In its discretion, the Agent may
discharge taxes and other encumbrances at any time levied or placed on any
of the Collateral, make repairs thereto and pay any necessary filing fees.
The Companies jointly and severally agree to reimburse the Agent on demand
for any and all expenditures so made. The Agent shall have no obligation
to any Company to make any such expenditures, nor shall the making thereof
relieve any Company of any default.
8.2. Agent's Obligations and Duties. Anything herein to the contrary
notwithstanding, each Company shall remain liable under each contract or
agreement comprised in the Collateral to be observed or performed by such
Company thereunder. Neither the Agent nor any Bank shall have any
obligation or liability under any such contract or agreement by reason of
or arising out of this Agreement or the receipt by the Agent or any Bank
of any payment relating to any of the Collateral, nor shall the Agent or
any Bank be obligated in any manner to perform any of the obligations of
any Company under or pursuant to any such contract or agreement, to make
inquiry as to the nature or sufficiency of any payment received by the
Agent or any Bank in respect of the Collateral or as to the sufficiency of
any performance by any party under any such contract or agreement, to
present or file any claim, to take any action to enforce any performance
or to collect the payment of any amounts which may have been assigned to
the Agent or to which the Agent or any Bank may be entitled at any time or
times. The Agent's sole duty with respect to the custody, safe keeping and
physical preservation of the Collateral in its possession, under Section
9-207 of the Uniform Commercial Code of the Commonwealth of Massachusetts
or otherwise, shall be to deal with such Collateral in the same manner as
the Agent deals with similar property for its own account.
9. Securities and Deposits. The Agent may at any time during an Event of
Default, at its option, transfer to itself or any nominee any securities
constituting Collateral, receive any income thereon and hold such income as
additional Collateral or apply it to the Obligations. The Agent may at any time
during an Event of
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Default, demand, xxx for, collect, or make any settlement or compromise which it
deems desirable with respect to the Collateral. Regardless of the adequacy of
Collateral or any other security for the Obligations, any deposits or other sums
at any time credited by or due from the Agent or any Bank to any Company may at
any time be applied to or set off against any of the Obligations.
10. Notification to Account Debtors and Other Obligors. If an Event of
Default shall have occurred and be continuing, each Company shall, at the
request of the Agent, notify account debtors on accounts, chattel paper and
general intangibles of such Company pledged by it hereunder and obligors on
instruments pledged by it hereunder for which such Company is an obligee of the
security interest of the Agent in any account, chattel paper, general intangible
or instrument and that payment thereof is to be made directly to the Agent or to
any financial institution designated by the Agent as the Agent's agent therefor
(except to the extent that such payment is already being made to the Agent to
the satisfaction of the Agent), and the Agent may itself, if an Event of Default
shall have occurred and be continuing, without notice to or demand upon any
Company, so notify such account debtors and obligors. After the making of such a
request or the giving of any such notification, each Company shall hold any
proceeds of collection received by such Company of accounts, chattel paper,
general intangibles and instruments pledged by it hereunder as trustee for the
Agent, for the benefit of the Banks and the Agent, without commingling the same
with other funds of any Company and shall turn the same over to the Agent in the
identical form received, together with any necessary endorsements or
assignments. The Agent shall apply the proceeds of collection received by the
Agent of accounts, chattel paper, general intangibles and instruments pledged by
a Company to the Obligations in accordance with the Credit Agreement, such
proceeds to be immediately entered after final payment in cash or solvent
credits of the items giving rise to them.
11. Further Assurances. Each Company, at its own expense, shall do, make,
execute and deliver all such additional and further acts, things, deeds,
assurances and instruments as the Agent may reasonably require more completely
to vest in and assure to the Agent and the Banks their respective rights
hereunder or in any of the Collateral, including, without limitation, (i)
executing, delivering and, where appropriate, filing financing statements and
continuation statements under the Uniform Commercial Code, (ii) if available,
after taking reasonable steps within the power of such Company, obtaining
governmental and other third party consents and approvals, including without
limitation any consent of any licensor, lessor or other applicable party
referred to in Section 2.3, (iii) if available, after taking reasonable steps
within the power of such Company, obtaining waivers from mortgagees and
landlords and (iv) taking all actions required by Sections 8-313 and 8-321 of
the Uniform Commercial Code (1990) or Sections 8-106 and 9-115 of the Uniform
Commercial Code (1994), as applicable in each relevant jurisdiction, with
respect to certificated and uncertificated securities.
12. Power of Attorney.
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12.1. Appointment and Powers of Agent. Each Company hereby
irrevocably constitutes and appoints the Agent and any officer or agent
thereof, with full power of substitution, as its true and lawful
attorneys-in-fact with full irrevocable power and authority in the place
and stead of such Company or in the Agent's own name, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate
action and to execute any and all documents and instruments that may be
necessary or desirable to accomplish the purposes of this Agreement and,
without limiting the generality of the foregoing, hereby gives said
attorneys the power and right, on behalf of such Company, without notice
to or assent by any Company, to do the following (it being agreed that no
such Person shall exercise such power except during the continuation of an
Event of Default):
(a) upon the occurrence and during the continuance of an Event
of Default, generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral in such
manner as is consistent with the Uniform Commercial Code of the
Commonwealth of Massachusetts and as fully and completely as though
the Agent were the absolute owner thereof for all purposes, and to
do at such Company' expense, at any time, or from time to time, all
acts and things which the Agent deems necessary to protect, preserve
or realize upon the Collateral and the Agent's security interest
therein, in order to effect the intent of this Agreement, all as
fully and effectively as such Company might do, including, without
limitation, (i) the filing and prosecuting of registration and
transfer applications with the appropriate federal or local agencies
or authorities with respect to trademarks, copyrights and patentable
inventions and processes and (ii) the execution, delivery and
recording, in connection with any sale or other disposition of any
Collateral, of the endorsements, assignments or other instruments of
conveyance or transfer with respect to such Collateral; and
(b) to file such financing statements with respect hereto,
with or without such Company's signature, or a photocopy of this
Agreement in substitution for a financing statement, as the Agent
may deem appropriate and to execute in such Company's name such
financing statements and amendments thereto and continuation
statements which may require such Company's signature.
12.2. Ratification by Companies. To the extent permitted by law,
each Company hereby ratifies all that said attorneys shall lawfully do or
cause to be done by virtue hereof. This power of attorney is a power
coupled with an interest and shall be irrevocable.
12.3. No Duty on Agent. The powers conferred on the Agent hereunder
are solely to protect the interests of the Agent and the Banks in the
Collateral and shall not impose any duty upon the Agent to exercise any
such powers. The Agent shall be accountable only for the amounts that it
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actually receives as a result of the exercise of such powers and neither
it nor any of its officers, directors, employees or agents shall be
responsible to any Company for any act or failure to act, except for the
Agent's own gross negligence or willful misconduct.
13. Remedies. If an Event of Default shall have occurred and be
continuing, the Agent may, without notice to or demand upon any Company, declare
this Agreement to be in default, and the Agent shall thereafter have in any
jurisdiction in which enforcement hereof is sought, in addition to all other
rights and remedies, the rights and remedies of a secured party under the
Uniform Commercial Code, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Agent may, so far as the
Companies can give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom. The Agent may in its
discretion require any number or all of the Companies to assemble all or any
part of the Collateral at such location or locations within the state(s) of any
Company's principal office(s) or at such other locations as the Agent may
designate. Unless the Collateral is perishable or threatens to decline speedily
in value or is of a type customarily sold on a recognized market, the Agent
shall give to the Companies at least ten (10) Business Days prior written notice
of the time and place of any public sale of Collateral or of the time after
which any private sale or any other intended disposition is to be made. Each
Company hereby acknowledges that ten (10) Business Days prior written notice of
such sale or sales shall be reasonable notice. In addition, each Company waives
any and all rights that it may have to a judicial hearing in advance of the
enforcement of any of the Agent's rights hereunder, including, without
limitation, its right following an Event of Default to take immediate possession
of the Collateral and to exercise its rights with respect thereto. To the extent
that any of the Obligations are to be paid or performed by a person other than
any Company, such Company waives and agrees not to assert any rights or
privileges which it may have under Section 9-112 of the Uniform Commercial Code
of the Commonwealth of Massachusetts.
14. No Waiver, etc. Each Company waives demand, notice, protest, notice of
acceptance of this Agreement, notice of loans made, credit extended, Collateral
received or delivered or other action taken in reliance hereon and all other
demands and notices of any description. With respect to both the Obligations and
the Collateral, each Company assents to any extension or postponement of the
time of payment or any other indulgence, to any substitution, exchange or
release of or failure to perfect any security interest in any Collateral, to the
addition or release of any party or person primarily or secondarily liable, to
the acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as the
Agent may deem advisable. The Agent shall have no duty as to the collection or
protection of the Collateral or any income thereon, nor as to the preservation
of rights against prior parties, nor as to the preservation of any rights
pertaining thereto beyond the safe custody thereof as set forth in Section 8.2.
The Agent shall not be deemed to have waived any of its rights upon or under the
Obligations or the Collateral unless such waiver shall be in writing and signed
by the Agent with the consent of the Majority Banks. No delay
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or omission on the part of the Agent in exercising any right shall operate as a
waiver of such right or any other right. A waiver on any one occasion shall not
be construed as a bar to or waiver of any right on any future occasion. All
rights and remedies of the Agent with respect to the Obligations or the
Collateral, whether evidenced hereby or by any other instrument or papers, shall
be cumulative and may be exercised singularly, alternatively, successively or
concurrently at such time or at such times as the Agent deems expedient.
15. Marshalling. Neither the Agent nor any Bank shall be required to
marshal any present or future collateral security (including but not limited to
this Agreement and the Collateral) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Agent hereunder and of the Agent or any Bank in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, each Company hereby agrees that it will not invoke any law relating to the
marshalling of collateral which might cause delay in or impede the enforcement
of the Agent's rights under this Agreement or under any other instrument
creating or evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
each Company hereby irrevocably waives the benefits of all such laws.
16. Proceeds of Dispositions; Expenses. The Companies jointly and
severally promise to pay to the Agent on demand any and all reasonable expenses,
including reasonable attorneys' fees and disbursements, incurred or paid by the
Agent in protecting, preserving or enforcing the Agent's rights under or in
respect of any of the Obligations or any of the Collateral. After deducting all
of said expenses, the residue of any proceeds of collection or sale of the
Obligations or Collateral shall, to the extent actually received in cash, be
applied to the payment of the Obligations in such order or preference as is
provided in the Credit Agreement, proper allowance and provision being made for
any Obligations not then due. Upon the final payment and satisfaction in full of
all of the Obligations and after making any payments required by Section
9-504(1)(c) of the Uniform Commercial Code of the Commonwealth of Massachusetts,
any excess shall be returned to the Companies, and each Company shall remain
liable for any deficiency in the payment of the Obligations.
17. Overdue Amounts. Until paid, all amounts due and payable by any
Company hereunder shall be a debt secured by the Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
18. Governing Law; Consent to Jurisdiction. THIS AGREEMENT IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. Each Company
agrees that any suit for the enforcement of this Agreement may be brought in the
courts of the
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Commonwealth of Massachusetts or any federal court sitting therein and consents
to the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon such Company by mail at the address specified in
Section 20 of the Credit Agreement. Each Company hereby waives any objection
that it may now or hereafter have to the venue of any such suit or any such
court or that such suit is brought in an inconvenient court.
19. Waiver of Jury Trial. EACH COMPANY WAIVES ITS RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF
ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, each Company waives
any right which it may have to claim or recover in any litigation referred to in
the preceding sentence any special, exemplary, punitive or consequential damages
or any damages other than, or in addition to, actual damages. Each Company (i)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers and (ii) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent or any Bank is a
party, the Agent and the Banks are relying upon, among other things, the waivers
and certifications contained in this Section 19.
20. Termination. At such time as all of the Obligations have been finally
paid and satisfied in full in cash and the commitments have been terminated,
this Security Agreement shall terminate and the Agent shall, upon the written
request and at the expense of the Company, execute and deliver to the Company
all releases, assignments and other instruments as may be necessary or proper to
terminate the Agent's security interest granted hereunder, as fully as if this
Security Agreement had not been made, subject to any disposition of all or any
part thereof that may have been made by the Agent pursuant hereto. Upon the sale
of any Collateral in accordance with the provisions of the Credit Agreement, the
Agent shall, upon the written request and at the expense of the Company, execute
and deliver to the Company, all releases, assignments and other instruments as
may be necessary or proper to terminate the Agent's security interest in such
Collateral. Notwithstanding the foregoing, this Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by the Agent, any Co-Agent or any Bank in respect of the Obligations is
rescinded or must otherwise be restored or returned by the Agent, any Co-Agent
or any Bank upon insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower, upon the appointment of any intervenor or
conservator of, or trustee or similar official for the Borrower or any
substantial part of its assets, or otherwise, all as though such payments had
not been made.
21. Concerning Revised Article 9 of the Uniform Commercial Code. The
parties acknowledge and agree to the following provisions of this Agreement in
anticipation of the possible application, in one or more jurisdictions to
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the transactions contemplated hereby, of the revised Article 9 of the Uniform
Commercial Code in the form or substantially in the form approved in 1998 by the
American Law Institute and the National Conference of Commissioners on Uniform
State Law ("Revised Article 9").
21.1. Perfection by Filing. The Agent may at any time and from time
to time, pursuant to the provisions of Section 12, file financing
statements, continuation statements and amendments thereto that describe
the Collateral as all assets of each Company of the kind pledged hereunder
and which contain any other information required by Part 5 of Revised
Article 9 for the sufficiency or filing office acceptance of any financing
statement, continuation statement or amendment, including whether such
Company is an organization, the type of organization and any organization
identification number issued to such Company. Each Company agrees to
furnish any such information to the Agent promptly upon request. Any such
financing statements, continuation statements or amendments may be signed
by the Agent on behalf of any Company, as provided in Section 12, and may
be filed at any time in any jurisdiction whether or not Revised Article 9
is then in effect in that jurisdiction.
21.2. Other Perfection, etc. Each Company shall at any time and from
time to time, whether or not Revised Article 9 is in effect in any
particular jurisdiction, take such steps as the Agent may reasonably
request for the Agent (a) use reasonable efforts to obtain an
acknowledgement, in form and substance satisfactory to the Agent, of any
bailee having possession of any of the Collateral that the bailee holds
such Collateral for the Agent, (b) use reasonable efforts to obtain
"control" of any Collateral consisting of investment property, deposit
accounts, letter-of-credit rights or electronic chattel paper (as such
terms are defined in Revised Article 9 with corresponding provisions in
Rev. Sections 9-104, 9-105, 9-106 and 9-107 relating to what constitutes
"control" for such items of Collateral), with any agreements establishing
control to be in form and substance satisfactory to the Agent, and (c)
otherwise to insure the continued perfection and priority of the Agent's
security interest in any of the Collateral and of the preservation of its
rights therein, whether in anticipation and following the effectiveness of
Revised Article 9 in any jurisdiction.
21.3. Other Provisions. In applying the law of any jurisdiction in
which Revised Article 9 is in effect, the following references to sections
in this Agreement to existing Article 9 of that jurisdiction shall be to
the Revised Article 9 Section of that jurisdiction indicated below:
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Agreement Section Existing Article 9 Revised Article 9
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3 Section 9-103(3) Rev. Section 9-102(a)(34)
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8.2 Section 9-207 Rev. Section 9-207
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11 Sections 8-106 and Rev. Sections 8-106 and 9-106
9-115 (1994)
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-12-
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16 Section 9-504(1)(c) Rev. Sections 9-608(a)(1)(C)
and 9-615(a)(3)
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21.4. Savings Clause. Nothing contained in this Section 21 shall be
construed to narrow the scope of the Agent's security interest in any of
the Collateral or the perfection or priority thereof or to impair or
otherwise limit any of the rights, powers, privileges or remedies of the
Agent or any Bank hereunder except (and then only to the extent) mandated
by Revised Article 9 to the extent then applicable.
22. Miscellaneous. The headings of each section of this Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon each
Company and its respective successors and assigns, and shall inure to the
benefit of the Agent, the Banks and their respective successors and assigns. If
any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein. Each
Company acknowledges receipt of a copy of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, each Company has caused
this Agreement to be duly executed as of the date first above written.
REPUBLIC TECHNOLOGIES INTERNATIONAL, LLC
By:________________________________
Title:
REPUBLIC TECHNOLOGIES INTERNATIONAL
HOLDINGS, LLC
By:________________________________
Title:
RTI CAPITAL CORP.
By:________________________________
Title:
Bliss & Xxxxxxxx, LLC
By:________________________________
Title:
Nimishillen & Tuscarawas, LLC
By:________________________________
Title:
Accepted:
BANKBOSTON, N.A., as Agent,
By:___________________________
Title:
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF _______________________)
) ss.
COUNTY OF ______________________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of August, 1999, personally appeared
_________________________ to me known personally, and who, being by me duly
sworn, deposes and says that he is the [____________________] of Republic
Technologies International, LLC and that said instrument was signed and sealed
on behalf of said corporation by authority of its [______________], and said
[____________________] acknowledged said instrument to be the free act and deed
of said corporation.
______________________________
Notary Public
My commission expires:
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF _______________________)
) ss.
COUNTY OF ______________________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of August, 1999, personally appeared
_________________________ to me known personally, and who, being by me duly
sworn, deposes and says that he is the [____________________] of Republic
Technologies International Holdings, LLC and that said instrument was signed and
sealed on behalf of said corporation by authority of its [_____________], and
said [____________________] acknowledged said instrument to be the free act and
deed of said corporation.
______________________________
Notary Public
My commission expires:
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF _______________________)
) ss.
COUNTY OF ______________________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of August, 1999, personally appeared
_________________________ to me known personally, and who, being by me duly
sworn, deposes and says that he is the [____________________] of RTI Capital
Corp., and that said instrument was signed and sealed on behalf of said
corporation by authority of its Board of Directors, and said
[____________________] acknowledged said instrument to be the free act and deed
of said corporation.
______________________________
Notary Public
My commission expires:
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF _______________________)
) ss.
COUNTY OF ______________________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of August, 1999, personally appeared
_________________________ to me known personally, and who, being by me duly
sworn, deposes and says that he is the [____________________] of Bliss &
Xxxxxxxx, LLC, and that said instrument was signed and sealed on behalf of said
corporation by authority of its [_______________], and said
[____________________] acknowledged said instrument to be the free act and deed
of said corporation.
______________________________
Notary Public
My commission expires:
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF _______________________)
) ss.
COUNTY OF ______________________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of August, 1999, personally appeared
_________________________ to me known personally, and who, being by me duly
sworn, deposes and says that he is the [____________________] of Nimishillen &
Tuscarawas, LLC, and that said instrument was signed and sealed on behalf of
said corporation by authority of its [____________], and said
[____________________] acknowledged said instrument to be the free act and deed
of said corporation.
______________________________
Notary Public
My commission expires:
