PARENT GUARANTY
EXECUTION
COPY
This PARENT GUARANTY (this “Guaranty Agreement”)
is made as of the 30th day of
November, 2010, by RBC BEARINGS INCORPORATED, a Delaware corporation (together
with its successors and assigns, the “Parent Guarantor”),
in favor of JPMORGAN CHASE BANK, N.A., a national banking association (“JPMCB”), as
Administrative Agent (as hereinafter defined).
RECITALS
WHEREAS,
Roller Bearing Company of America, Inc., a Delaware corporation (the “Borrower”), the
Parent Guarantor, the lenders party thereto (the “Lenders”), JPMCB, as
LC Issuer and JPMCB, as administrative agent (together with its successors and
assigns, the “Administrative
Agent”), are parties to a Credit Agreement, dated as of November 30, 2010
(as amended, restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”), pursuant to which the Lenders and the LC Issuer have agreed
to make available certain financial accommodations (by means of making loans and
issuing letters of credit) to or for account of the Borrower or the Credit
Parties (as defined therein), as applicable;
WHEREAS, the Borrower is a direct
Subsidiary of the Parent Guarantor; and
WHEREAS, it is a condition precedent to
the Lenders’ and the LC Issuer’s obligations to make available to the Borrower
the loans and other financial accommodations under the Credit Agreement that the
Parent Guarantor shall have executed and delivered this Guaranty
Agreement,
NOW, THEREFORE, in consideration of
these premises and in order to induce the Lenders and the LC Issuer to make
loans and other financial accommodations available to the Borrower under the
Credit Agreement, the Parent Guarantor hereby agrees with the Administrative
Agent, for the benefit of the Lenders, the LC Issuer, the Administrative Agent
and any other holder of (a) with respect to the Borrower, the Obligations and
all obligations owing to the Designated Hedge Creditors under Designated Hedge
Agreements or to any Lender or any Affiliate thereof under Banking Services
Agreements, (b) with respect to the Parent Guarantor, the Guaranteed Obligations
(as defined herein) and (c) in each case, all present and future obligations of
the Parent Guarantor and the Borrower to the Administrative Agent under the
Credit Agreement and the other Loan Documents (the “Secured
Creditors”) as follows:
SECTION 1. Definitions. The
capitalized terms used herein which are defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
SECTION 2. Guaranty. The
Parent Guarantor hereby irrevocably and unconditionally guarantees the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of
(a) all Obligations of the Borrower and of all other sums now or hereafter owed
by the Borrower to the Administrative Agent or any of the other Secured
Creditors under the Credit Agreement or any of the other Loan Documents and (b)
all obligations of the Borrower and its Subsidiaries owing to any Designated
Hedge Creditor under any Designated Hedge Agreement or to any Lender or
Affiliate thereof under any Banking Services Agreement (together all such
obligations in clauses (a) and (b) being referred to herein as the “Guaranteed
Obligations”), and, in each case, agrees to pay any and all expenses
(including reasonable counsel fees and including expenses) incurred by the
Administrative Agent in enforcing any rights under this Guaranty
Agreement.
SECTION 3. Maximum Liability.
Solely in the event it is necessary for the enforceability of this Guaranty
Agreement, the maximum liability of the Parent Guarantor under this Guaranty
Agreement shall be limited to the extent, if any, required so that its
obligations hereunder shall not be subject to avoidance under Section 548 of the
Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act,
Uniform Fraudulent Conveyance Act or similar statute or common
law. In determining the limitations, if any, on the amount of the
Parent Guarantor’s obligations hereunder pursuant to the preceding sentence, it
is the intention of the parties hereto that any rights of subrogation or
contribution which the Parent Guarantor may have under this Guaranty Agreement,
any other agreement or applicable law shall be taken into account.
SECTION 4. Guaranty Absolute. The
Parent Guarantor guarantees that the Guaranteed Obligations will be paid
strictly in accordance with the terms of the Credit Agreement and the other Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any other Secured Creditor with respect
thereto. The liability of the Parent Guarantor under this Guaranty
Agreement shall be absolute and unconditional irrespective of:
(a)
any
lack of validity or enforceability of the Credit Agreement, the other Loan
Documents or any other agreement or instrument relating
thereto;
(b)
any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations, or any other amendment or waiver of or any
consent to departure from the Credit Agreement, the other Loan Documents or any
other agreement or instrument relating thereto;
(c) any
exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any other guaranty, for all
or any of the Guaranteed Obligations;
(d) failure
by the Administrative Agent to take any steps to perfect and maintain its
interest in, or preserve its rights to, any security or collateral for the
Guaranteed Obligations;
(e)
the
Administrative Agent’s or any Lender’s election in any proceeding instituted
under Chapter 11 of Title 11 of the United States Code (11 U.S.C. §101
et seq.) (the “Bankruptcy Code”), or
the application of Section 1111(b)(2) of the Bankruptcy
Code;
(f)
any
borrowing or grant of a security interest under Section 364 of the
Bankruptcy Code; or
(g)
any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or any guarantor.
This
Guaranty Agreement shall continue to be effective or shall be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Administrative Agent or any
Secured Creditor upon the insolvency, bankruptcy or reorganization of the
Borrower or otherwise, all as though such payment had not been
made.
The
obligations of the Parent Guarantor hereunder are independent of the obligations
of the Borrower or any other guarantor for any part of the Guaranteed
Obligations and a separate action or actions may be brought and prosecuted
against the Parent Guarantor whether or not action is brought against the
Borrower or such other guarantor for any part of the Guaranteed Obligations and
whether or not the Borrower or such other such guarantor are joined in any such
action or actions. This Guaranty is a guaranty of payment and not of
collection.
SECTION 5. Waiver. The
Parent Guarantor hereby waives, to the extent permitted by applicable law,
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty Agreement and any
requirement that the Administrative Agent protect, secure, perfect or insure any
security interest or lien or any property subject thereto or exhaust any right
or take any action against the Borrower or any other person or entity or any
collateral.
SECTION 6. Subrogation. Until
all Guaranteed Obligations have been paid in full in cash and each Lender’s
Commitments under the Credit Agreement are terminated, the Parent Guarantor
shall have no right of subrogation, reimbursement or contribution and hereby
waives any right to enforce any remedy which any Secured Creditor now has or may
hereafter have against the Borrower, any endorser or any other guarantor, of all
or any part of the Guaranteed Obligations, and the Parent Guarantor hereby
waives any benefit of, and any right to participate in, any security or
collateral given to the Administrative Agent to secure payment of the Guaranteed
Obligations or any other liability of the Borrower to any Secured
Creditor. The Parent Guarantor also waives all setoffs and
counterclaims and all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and notices
of acceptance of this Guaranty Agreement. The Parent Guarantor
further waives, to the extent permitted by applicable law, all notices of the
existence, creation or incurring of new or additional indebtedness, arising
either from additional loans extended to the Borrower or otherwise, and also
waives all notices that the principal amount, or any portion thereof, and/or any
interest on any instrument or document evidencing all or any part of the
Guaranteed Obligations is due, notices of any and all proceedings to collect
from the maker, any endorser or any other guarantor of all or any part of the
Guaranteed Obligations, or from anyone else, and, to the extent permitted by
law, notices of exchange, sale, surrender or other handling of any security or
other collateral given to the Administrative Agent or any Lender to secure
payment of the Guaranteed Obligations.
SECTION 7. Financial Condition of Borrower. The
Parent Guarantor hereby assumes responsibility for keeping itself informed of
the financial condition of the Borrower and circumstances bearing upon the risk
of nonpayment of the Guaranteed Obligations or any part thereof that diligent
inquiry would reveal and the Parent Guarantor hereby agrees that the
Administrative Agent shall not have any duty to advise the Parent Guarantor of
information known to the Administrative Agent regarding such condition or any
such circumstances. In the event the Administrative Agent, in its
sole discretion, undertakes at any time or from time to time to provide any such
information to the Parent Guarantor, the Administrative Agent shall not be under
any obligation (i) to undertake any investigation not a part of its regular
business routine, (ii) to disclose any information which, pursuant to accepted
or reasonable commercial finance practices, the Administrative Agent wishes to
maintain confidential or (iii) to make any other or future disclosures of such
information or any other information to the Parent Guarantor.
SECTION 8. Marshaling of Assets. The
Parent Guarantor consents and agrees that the Administrative Agent shall not be
under any obligation to marshal any assets in favor of the Parent Guarantor or
against or in payment of any or all of the Guaranteed Obligations. The Parent
Guarantor further agrees that, to the extent that the Borrower makes a payment
or payments to the Administrative Agent or any Lender, or the Administrative
Agent or any Lender receives any proceeds of collateral, which payment or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to the
Borrower, its estate, trustee, receiver or any other party, including, without
limitation, the Parent Guarantor, under any bankruptcy law, state or federal
law, common law or equitable cause, then to the extent of such payment or
repayment, the Guaranteed Obligations or part thereof which has been paid,
reduced or satisfied by such amount shall be reinstated and continued in full
force and effect as of the date such initial payment, reduction or satisfaction
occurred.
SECTION 9. Authorization. The
Administrative Agent and the Secured Creditors are hereby authorized, without
notice or demand and without affecting the liability of the Parent Guarantor
hereunder, from time to time, to (i) renew, extend, accelerate or otherwise
change the time for payment of, or other terms relating to, the Guaranteed
Obligations, or otherwise modify, amend or change (but only in accordance with
the terms thereof) the Credit Agreement or the other Loan Documents (other than
this Guaranty Agreement), or any other promissory note or other agreement,
document or instrument now or hereafter executed by the Borrower or the Parent
Guarantor and delivered to the Administrative Agent or any Lender;
(ii) accept partial payments on the Guaranteed Obligations; (iii) take
and hold security or collateral for the payment of this Guaranty Agreement, any
other guarantees of the Guaranteed Obligations or other liabilities of the
Borrower and the Guaranteed Obligations guaranteed hereby or thereby, and
exchange, enforce, waive and release any such security or collateral;
(iv) apply such security or collateral and direct the order or manner of
sale thereof as in its discretion it may determine; and (v) settle,
release, compromise, collect or otherwise liquidate the Guaranteed Obligations
and any security or collateral therefor in any manner, without affecting or
impairing the obligations of the Parent Guarantor hereunder.
At any time upon the occurrence and
during the continuation of an Event of Default, the Administrative Agent or any
Lender may, in its sole discretion, without notice to the Parent Guarantor and
regardless of the acceptance of any security or collateral for the payment
hereof, appropriate and apply toward the payment of the Guaranteed Obligations
(i) any indebtedness due or to become due from the Administrative Agent or
any Lender to the Parent Guarantor, and (ii) any monies, credits or other
property belonging to the Parent Guarantor, at any time held by or coming into
the possession of the Administrative Agent or any Lender.
SECTION 10. Amendments, Etc. No
amendment or waiver of any provisions of this Guaranty Agreement nor consent to
any departure by the Parent Guarantor therefrom shall in any event be effective
unless the same shall be in writing and signed by the Parent Guarantor and the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which
given. No release or termination of this Guaranty Agreement shall be
effected unless the same shall be in writing and executed by the Parent
Guarantor and the Administrative Agent.
SECTION 11. No Waiver; Remedies. No
failure on the part of the Administrative Agent or any Lender to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 12. Right of Set-off. Upon
the occurrence and during the continuance of any Event of Default, the
Administrative Agent is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by the Administrative Agent or any Lender
to or for the credit or the account of the Parent Guarantor against any and all
of the obligations of the Parent Guarantor now or hereafter existing under this
Guaranty Agreement, irrespective of whether or not the Administrative Agent or
such Lender shall have made any demand under this Guaranty Agreement and
although such obligations may be contingent and unmatured. The
Administrative Agent agrees promptly to notify the Parent Guarantor after any
such set-off and application made by the Administrative Agent, as the case may
be, provided that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of the Administrative
Agent under this Section 12 are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Administrative Agent may have.
SECTION 13. Continuing Guaranty;
Transfer of Advances. This Guaranty Agreement is a continuing
guaranty and shall (i) remain in full force and effect until the Guaranteed
Obligations are paid in full in cash and each Lender’s Commitments under the
Credit Agreement are terminated, (ii) be binding upon the Parent Guarantor,
its successors and assigns (the Parent Guarantor shall not be permitted to
assign any Guaranteed Obligations without the prior written consent of the
Administrative Agent), and (iii) inure to the benefit of and be enforceable
by the Administrative Agent and its permitted successors, transferees and
assigns. Without limiting the generality of the foregoing
clause (iii), subject to the limitations set forth in the Credit Agreement,
the Administrative Agent may assign or otherwise transfer its role as
Administrative Agent to any other person or entity in accordance with the terms
of the Credit Agreement, and such other person or entity shall thereupon become
vested with all the rights in respect thereof granted to the Administrative
Agent herein or otherwise.
SECTION 14. Addresses for
Notices. All notices and other communications provided for
hereunder shall be given or made in accordance with, and shall be governed by,
the Credit Agreement.
SECTION 15. Waiver of Jury
Trial. EACH OF THE PARTIES TO THIS GUARANTY
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY
AMENDMENTS, WAIVERS OR OTHER MODIFICATIONS RELATING TO ANY OF THE FOREGOING), OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO HEREBY (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
GUARANTY AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS PARAGRAPH.
SECTION 16. Jurisdiction; Venue;
Inconvenient Forum.
(a) Jurisdiction. Any
legal action or proceeding with respect to this Guaranty Agreement or any other
Loan Document may be brought in the Supreme Court of the State of New York
sitting in New York County or in the United States District Court of the
Southern District of New York, and, by execution and delivery of this Guaranty
Agreement, the Parent Guarantor hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Parent Guarantor hereby further irrevocably consents to
the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to the Parent Guarantor at its address for notices
pursuant to Section 14, such service to become effective 30 days after such
mailing or at such earlier time as may be provided under applicable law. Nothing
herein shall affect the right of any Secured Creditor to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Parent Guarantor in any other jurisdiction.
(b) Venue; Inconvenient
Forum. The Parent Guarantor hereby irrevocably waives any
objection that it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Guaranty Agreement or any other Loan Document brought in the courts referred to
in Section 16(a) and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum
SECTION 17. GOVERNING
LAW. THIS GUARANTY AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARDS
TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW). THE PARENT GUARANTOR HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK GOVERNS THIS GUARANTY AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS.
[Remainder
of page intentionally left blank.]
IN WITNESS WHEREOF, the undersigned has
caused this Guaranty Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
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RBC
BEARINGS INCORPORATED
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/s/
Xxxxxx X. Xxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxx
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Title:
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Vice
President, CFO
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