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Exhibit 10.6
SECURITY AGREEMENT
This SECURITY AGREEMENT dated as of December 8, 2000 (this "AGREEMENT")
is entered into among CITICORP USA, INC. ("CITICORP") having an office at 599
Lexington Avenue, New York, NY 10043, as agent (the "AGENT"), for GENERAL
ELECTRIC CAPITAL CORPORATION, FOR ITSELF AND AS AGENT FOR CERTAIN PARTICIPANTS
("GE CAPITAL"), having an office at 10 South LaSalle Street, Chicago IL 60603,
and PRECISION PARTNERS, INC., a Delaware corporation, GALAXY INDUSTRIES
CORPORATION, a Michigan corporation, MID STATE MACHINE PRODUCTS, a Maine
corporation, NATIONWIDE PRECISION PRODUCTS CORP., a New York corporation, and
GENERAL AUTOMATION, INC., an Illinois corporation (each individually a "GRANTOR"
and collectively, the "GRANTORS").
PRELIMINARY STATEMENTS
1. The Grantors are "Loan Parties" under that certain Credit
Agreement, dated as of March 19, 1999 (as amended, modified or supplemented from
time to time, the "CREDIT AGREEMENT"), among Precision Partners, Inc., Precision
Partners Holding Company, Mid State Machine Products, Galaxy Industries
Corporation, Certified Fabricators, Inc., General Automation, Inc., Nationwide
Precision Products Corp., Gillette Machine & Tool Co., Inc., the Lenders,
Citicorp USA, Inc., as administrative agent (the "ADMINISTRATIVE AGENT"), Bank
of America, N.A. (successor to NationsBank, N.A.), as syndication agent, and
SunTrust Bank, Atlanta, as documentation agent. All capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Credit Agreement.
2. As security for the Secured Obligations (as defined in the
Security Agreement, dated as of March 19, 1999 (the "SECURITY AGREEMENT") made
by the Borrower and the Subsidiary Guarantors in favor of the Administrative
Agent), among other things, the Grantors granted to the Administrative Agent a
security interest in and pledge of each Grantor's right, title and interest in
the Pledged Collateral (used herein as defined in the Security Agreement
excluding, however, the GE Capital Equipment Collateral as defined below and any
rights, title or interest in real property (other than fixtures) of the
Grantors).
3. The Grantors other than Precision Partners, Inc. are the
borrowers and Precision Partners, Inc. is the guarantor under a Loan, Security
and Guaranty Agreement dated as of the date hereof (as amended, modified or
supplemented from time to
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time, the "GE CAPITAL LOAN AGREEMENT"; the GE Capital Loan Agreement and the
other documents executed or delivered in connection therewith are referred to
herein as the "GE CAPITAL LOAN DOCUMENTS"). The obligations of the Grantors
under the GE Capital Loan Documents are referred to herein as the "GE CAPITAL
OBLIGATIONS".
4. As a condition precedent to the effectiveness of the GE
Capital Loan Agreement, the Grantors are required to execute and deliver this
Agreement.
5. The Administrative Agent, GE Capital and the Agent have
entered into an Intercreditor Agreement dated as of even date herewith (as
amended, modified or supplemented from time to time, the "INTERCREDITOR
AGREEMENT") wherein, among other things, GE Capital has appointed the Agent to
serve as its agent under this Agreement for the purpose of enforcing the rights
and remedies of GE Capital hereunder. The Administrative Agent has agreed to act
as Agent for the purposes of this Agreement.
NOW, THEREFORE, in consideration of these premises and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Grantors hereby agree with the Agent as follows:
SECTION 1. GRANT OF SECURITY INTEREST. As security for the GE Capital
Obligations, the Grantors transfer and assign to the Agent, for the benefit of
GE Capital, and grant to the Agent, for the benefit of GE Capital, a lien on and
security interest in the Pledged Collateral, subject to existing liens in favor
of the Administrative Agent and any other Permitted Liens.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures and the
Pledged Collateral is collateral security for the prompt payment or performance
in full when due, whether at stated maturity, by acceleration or otherwise, of
all the GE Capital Obligations and all renewals thereof, whether for principal
(up to $22,770,826.00), and, to the extent related thereto, interest, fees,
expenses or otherwise, whether now existing or hereafter arising (THE "GE
CAPITAL SECURED OBLIGATIONS").
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Grantors
represent, warrant and covenant as follows:
(a) ORGANIZATION AND POWERS. Each Grantor is a corporation duly
organized, validly existing and in
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good standing under the laws of the jurisdiction in which it was
organized, and has all requisite corporate power and authority to own
and operate its properties, to carry on its business as now conducted
and proposed to be conducted and to enter into this Agreement and
carry out the transactions contemplated hereby.
(b) OWNERSHIP OF COLLATERAL; LIENS. The Grantors own the
Pledged Collateral free and clear of any Lien other than Permitted Liens,
the senior Liens in favor of the Administrative Agent and the junior
security interest granted hereby, and the Grantors will defend the
Pledged Collateral against all other claims and demands.
(c) CORPORATE EXISTENCE. Each Grantor shall maintain its
corporate existence and continue in, and substantially limit its
operations to, the same lines of business as the Grantors presently
conduct.
(d) MAINTENANCE OF PLEDGED COLLATERAL. The Grantors shall at
all times maintain the Pledged Collateral in good working order and
condition, ordinary wear and tear excepted.
(e) BOOKS AND RECORDS, INSPECTIONS. The Grantors shall maintain
books and records pertaining to the Pledged Collateral in such detail,
form and scope as is consistent with good business practices, and shall
provide the Agent and GE Capital access to the premises of the Grantors
at any time and from time to time, during normal business hours and upon
reasonable notice under the circumstances, for the purposes of (i)
inspecting and copying (at the Grantors' expense) any and all records of
the Grantors relating or pertaining to the Pledged Collateral or (ii)
inspecting the Pledged Collateral.
(f) CASUALTY LOSS. The Grantors shall promptly notify the Agent
and GE Capital of any material damage to, destruction of, or lawful or
unlawful taking of any of the Pledged Collateral and shall diligently
file and prosecute any claim or claims for any award or payment in
connection with any such event.
SECTION 4. FURTHER ASSURANCES.
(a) Each Grantor agrees that from time to time, at its expense,
it will promptly execute and deliver all further instruments and
documents, and take all further actions that may be necessary or
desirable, or (i) that
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the Agent may reasonably request or (ii) that, subject to the terms of
the Intercreditor Agreement, GE Capital may reasonably request, in
order to perfect and protect any security interest granted or
purported to be granted hereby or to enable (x) the Agent to exercise
and enforce, for the benefit of GE Capital, its rights and remedies
hereunder, or (y) GE Capital, subject to the terms of the
Intercreditor Agreement, to exercise and enforce its rights and
remedies hereunder, with respect to any Pledged Collateral. Without
limiting the generality of the foregoing, each Grantor will: (i)
execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be
necessary or desirable, or as the Agent or GE Capital may reasonably
request, in order to perfect and preserve the security interests
granted or purported to be granted to the Agent hereby and (ii) at the
Agent's or GE Capital's request, appear in and defend any action or
proceeding that may affect such Grantor's title to or the Agent's or
GE Capital's security interest in the Pledged Collateral, provided
that GE Capital's rights under this sentence shall be subject to the
terms of the Intercreditor Agreement.
(b) Each Grantor hereby authorizes the Agent to file one or
more financing or continuation statements, and amendments thereto,
relative to all or any part of the Pledged Collateral without the
signature of the Grantors. A carbon, photographic or other reproduction
of this Agreement or financing statement signed by the Grantors shall be
sufficient as a financing statement.
SECTION 5. THE AGENT APPOINTED ATTORNEY-IN-FACT. Each Grantor hereby
irrevocably appoints the Agent as such Grantor's attorney-in-fact, with full
authority in the place and stead of such Grantor and in the name of such
Grantor, the Agent or otherwise, upon the occurrence and continuance of an Event
of Default described in Section 7, in the Agent's discretion to take any action
and to execute any instrument that the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation:
(a) to ask, demand, collect, sue for, recover, compound,
receive and give acquittance and receipt for monies due and to become due
under or in respect of any of the Pledged Collateral;
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(b) to file any claim or take any action or institute any
proceedings that the Agent may deem necessary or desirable for the
collection of any of the Pledged Collateral or otherwise to enforce the
rights of the Agent with respect to any of the Pledged Collateral; and
(c) generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Pledged Collateral as
fully and completely as though the Agent were the absolute owner thereof
for all purposes, and to do, at the Agent's option and the Grantors'
expense, at any time, or from time to time, all acts and things that the
Agent deems necessary to protect, preserve or realize upon the Pledged
Collateral and the Agent's security interest therein, in order to effect
the intent of this Agreement, all as fully and effectively as such
Grantor might do.
SECTION 6. THE AGENT'S DUTIES AND LIABILITIES.
(a) The powers conferred on the Agent hereunder are solely to
protect GE Capital's interest in the Pledged Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the safe
custody of any Pledged Collateral in its possession and the accounting
for monies actually received by it hereunder, the Agent shall have no
duty as to any Pledged Collateral or as to the taking of any necessary
steps to preserve rights against prior parties or any other rights
pertaining to any Pledged Collateral. The Agent shall be deemed to
exercise reasonable care in the custody and preservation of such Pledged
Collateral if such Pledged Collateral is accorded treatment substantially
equal to that which the Agent accords its own property.
(b) The Agent and GE Capital shall not be liable to the
Grantors (i) for any loss or damage sustained by them, or (ii) for any
loss, damage, depreciation or other diminution in the value of any of the
Pledged Collateral that may occur as a result of or in connection with or
that is in any way related to (x) any exercise by the Agent or GE Capital
of any right or remedy under this Agreement or (y) any other act of or
failure to act by the Agent or GE Capital, except to the extent that the
same shall be determined by a judgment of a court of competent
jurisdiction to be the result of acts or omissions on the part of the
Agent or GE Capital constituting gross negligence or
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willful misconduct.
(c) No claim may be made by the Grantors against the Agent, GE
Capital or their respective affiliates, partners, directors, officers,
employees, attorneys or agents for any special, indirect, or
consequential damages in respect of any breach or wrongful conduct
(whether the claim therefor is based on contract, tort or duty imposed by
law) in connection with, arising out of or in any way related to the
transactions contemplated and relationship established by this Agreement,
or any act, omission or event occurring in connection therewith; and the
Grantors hereby waive, release and agree not to sue upon any such claim
for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
SECTION 7. EVENTS OF DEFAULT. The occurrence of any Event of Default
under and as defined in the GE Capital Loan Agreement as in effect on the date
hereof, or if any representation or warranty made by any Grantor in Section 3 of
this Agreement shall prove to have been inaccurate in any material respect as of
the date hereof, or the occurrence of any breach, which is not cured within 30
days following notice to the Grantors from the Agent or GE Capital, of any
covenant contained in Section 3 of this Agreement shall constitute an "Event of
Default".
SECTION 8. REMEDIES. If any Event of Default shall have occurred and be
continuing, the Agent may, subject to the Intercreditor Agreement, exercise in
respect of the Pledged Collateral, (a) all the rights and remedies of a secured
party in default under the Code, whether or not the Code applies to the affected
Pledged Collateral, (b) all of the rights and remedies provided for in this
Agreement and any other agreement between the Grantors and (i) the Agent for the
benefit of GE Capital or (ii) GE Capital and (c) such other rights and remedies
as may be provided by law or otherwise (such rights and remedies of the Agent
for the benefit of GE Capital or of GE Capital to be cumulative and
non-exclusive).
SECTION 9. APPLICATION OF PROCEEDS. Subject to the terms of the
Intercreditor Agreement, and except as expressly provided elsewhere in this
Agreement, all proceeds received by the Agent in respect of any sale of,
collection from or other realization upon all or any part of the Pledged
Collateral may,
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in the discretion of the Agent, be held by the Agent as Pledged Collateral for,
or then, or at any other time thereafter applied, in full or in part by the
Agent against the GE Capital Secured Obligations in the following order of
priority:
(a) To the payment of all costs and expenses of such sale,
collection or other realization and all other expenses, liabilities and
advances made or incurred by the Agent in connection therewith and all
amounts for which the Agent is entitled to indemnification hereunder and
all advances made by the Agent hereunder for the account of the Grantors
and for the payment of all costs and expenses paid or incurred by the
Agent in connection with the exercise of any right or remedy hereunder;
(b) To the payment of the Credit Agreement Obligations (used
herein as defined in the Intercreditor Agreement) in such order as the
Administrative Agent shall elect;
(c) To the payment of the GE Capital Secured Obligations in
such order as GE Capital shall elect; and
(d) To the payment to or upon the order of the Grantors, or
whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, any surplus then remaining from such
proceeds.
SECTION 10. INDEMNITY AND EXPENSES.
(a) The Grantors agree to indemnify the Agent and GE Capital
from and against any and all claims, losses and liabilities arising out
of or resulting from this Agreement (including, without limitation,
enforcement of this Agreement), except claims, losses or liabilities of
the Agent or GE Capital resulting from the Agent's or GE Capital's gross
negligence or willful misconduct, as the case may be.
(b) The Grantors will, upon demand, pay to the Agent and GE
Capital the amount of any and all reasonable expenses, including the
reasonable fees and disbursements of counsel to the Agent and GE Capital,
and of any experts and agents, that the Agent and GE Capital may incur in
connection with (i) the administration of this Agreement, (ii) the
custody, preservation, use or operation of, or the sale of, collection
from, or other realization upon, any of the Pledged Collateral, (iii) the
exercise or enforcement
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of any of the rights of the Agent hereunder or (iv) the failure by the
Grantors to perform or observe any of the provisions hereof.
SECTION 11. CONTINUING SECURITY INTEREST. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall (a) remain in
full force and effect until the indefeasible payment in full of (i) the Credit
Agreement Obligations upon which payment the Agent will resign as agent
hereunder and GE Capital shall thereupon be deemed the secured party hereunder
and (ii) the GE Capital Secured Obligations, (b) be binding upon the Grantors,
their successors and assigns and (c) inure, together with the rights and
remedies of the Agent hereunder for the benefit of GE Capital, to the benefit of
the Agent and its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), GE Capital may assign or otherwise
transfer the GE Capital Loan Documents, in accordance with the terms of the
Intercreditor Agreement and the GE Capital Loan Agreement, to any other person
or entity, and such other benefits in respect thereof granted to GE Capital
herein or otherwise. Upon the indefeasible payment in full of the GE Capital
Secured Obligations, the security interest granted hereby shall terminate and
all rights to the Pledged Collateral shall revert to the Grantors. Upon any such
termination, the Agent will, at the Grantors' expense, execute and deliver to
the Grantors such documents as the Grantors shall reasonably request to evidence
such termination.
SECTION 12. AMENDMENTS; ETC. No amendment or waiver of any provision of
this Agreement nor consent to any departure by the Grantors herefrom shall in
any event be effective unless the same shall be in writing and signed by the
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 13. ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing (including by telecopier) and mailed
or telecopied or delivered to the Grantors, addressed to or in care of Precision
Partners, Inc. at its address specified after the signature of Precision
Partners, Inc. hereto, or to the Agent at its address specified after its
signature hereto, or as to any party at such other address as shall be
designated by such party in a written notice to each other party complying as to
delivery with the terms of this Section. All such notices and other
communications shall, when mailed, be effective three Business Days after being
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deposited in the mails, postage paid and addressed as aforesaid or, when
telecopied, when received.
SECTION 14. CONSENT TO JURISDICTION. All judicial proceedings brought
against the Grantors with respect to this Agreement may be brought in any state
or federal court of competent jurisdiction in the State of New York and, by
execution and delivery of this Agreement, each Grantor accepts for itself and in
connection with the Pledged Collateral, generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any judgment rendered thereby in connection with this Agreement.
SECTION 15. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO CONFLICT OF LAW PRINCIPLES THEREOF. Unless otherwise
defined herein, terms used in Article 9 of the Uniform Commercial Code in the
State of New York are used herein as therein defined.
SECTION 16. WAIVER OF JURY TRIAL. THE AGENT, GE CAPITAL AND THE
GRANTORS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY DOCUMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 17. HEADINGS. Section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement or be given any substantive effect.
SECTION 18. SEVERABILITY. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same agreement. Any such counterpart, when
delivered by telecopier, shall have the same force and effect as an original
manually executed counterpart.
SECTION 20. INTERCREDITOR AGREEMENT. This Agreement is subject in all
respects to the provisions of the Intercreditor Agreement which shall control
the terms hereof in the event of any inconsistency.
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IN WITNESS WHEREOF, the Grantors and the Agent have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
PRECISION PARTNERS, INC.
By: /s/ Frank Reilly
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Name: Frank Reilly
Title: Executive Vice President
and Cheif Financial Officer
5605 N. MacArthur Blvd.
Suite 760
Irving, TX 75038
Attention: Frank R. Reilly
Telecopy: (972) 580-1551
GALAXY INDUSTRIES CORPORATION
By: /s/ Frank Reilly
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Name: Frank Reilly
Title: Vice President
41150 Joy Road
Plymouth, MI 48170
MID STATE MACHINE PRODUCTS
By: /s/ Frank Reilly
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Name: Frank Reilly
Title: Vice President
1501 Verti Drive
Winslow, ME 04901
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NATIONWIDE PRECISION PRODUCTS CORP.
By: /s/ Frank Reilly
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Name: Frank Reilly
Title: Vice President
200 Tech Park Drive
Henrietta, NY 14623
GENERAL AUTOMATION, INC.
By: /s/ Frank Reilly
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Name: Frank Reilly
Title: Vice President
3300 Oakton Street
Skokie, IL 60076
CITICORP USA, INC., acting solely
in its capacity as Agent for GE
Capital
By: /s/ Michael Becker
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Name: Michael Becker
Title:
599 Lexington Avenue
New York, NY 10043
Attention: Mr. Michael Becker
Telecopy: (212) 793-4782
with a copy to:
General Electric Capital
Corporation
401 Merritt Seven
Second Floor
Norwalk, Connecticut 06856
Attention: Mr. Jeff Fitts
Telecopy: (203) 229-1992
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