FINISHED GOODS SECURITY AGREEMENT, dated December 13, 2004, effective as of
December 10, 2004 (the "Effective Time") (the "Agreement"), by and between
ROSENBOOM MACHINE & TOOL, INC., an Iowa corporation (the "Debtor"), and GREEN
MANUFACTURING, INC., a Delaware corporation (the "Secured Party").
R E C I T A L S:
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WHEREAS, the Debtor and the Secured Party have executed and delivered that
certain Asset Purchase Agreement of even date among each of the Debtor and the
Secured Party and certain other parties (the "APA"), pursuant to which, among
other things, the Debtor has acquired certain assets from the Secured Party
previously used by the Secured Party in the operation of the Secured Party's
Hydraulic Cylinder Division (the "Division");
WHEREAS, the Debtor and the Secured Party have entered into a Finished
Goods Inventory Purchase Agreement of even date (the "Inventory Purchase
Agreement");
WHEREAS, the Secured Party desires to obtain security for the Debtor's
obligations now existing, or hereafter arising, under the Inventory Purchase
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery of the
Inventory Purchase Agreement by the Secured Party, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the Debtor, the Debtor hereby agrees with the Secured Party that, during such
time as the Debtor shall be directly or contingently indebted, liable or
obligated to the Secured Party under Inventory Purchase Agreement in any manner
whatsoever, the Secured Party shall have the following rights, and the Debtor
shall have the following obligations:
1. As security for the due and punctual payment of any and all of the
present and future Obligations of the Debtor (as defined in Section 2 below),
the Debtor hereby assigns, mortgages, pledges, hypothecates, transfers, sets
over and grants to the Secured Party a first lien on and security interest in
(a) all of the Collateral (as defined in Section 3 below), whether now or
hereafter existing or acquired, and (b) all present and future products and
proceeds of the Collateral.
2. As used herein, the term "Obligations" means any and all indebtedness,
obligations, agreements, liabilities and guarantees of any kind of the Debtor to
the Secured Party, howsoever evidenced, now existing or hereafter arising, and
whether direct or indirect, acquired outright or conditionally, absolute or
contingent, joint, several or independent, secured or unsecured, due or not due,
held or to be held, contractual or tortious, relating to the payment of money or
to non-monetary performance, liquidated or unliquidated, arising by operation of
law or otherwise, and whether or not of a nature presently contemplated by the
parties or subsequently agreed to by them arising under the Inventory Purchase
Agreement.
3. As used herein, the term "Collateral" means all of the assets and
property of any kind sold, assigned, transferred or conveyed, or to be sold,
assigned, transferred or conveyed, to the Debtor pursuant to the terms of the
Inventory Purchase Agreement, as more fully set forth therein, Accounts, as
hereinafter defined, and all present and future products and proceeds of the
foregoing.
4. The Debtor represents and warrants that: (a) no financing statement
(other than any which may have been filed on behalf of the Secured Party or
which evidences a security interest that is validly, and will continually be
validly, subordinated to that of the Secured Party) relating to any of the
Collateral is on file in any public office; (b) the chief executive office of
the Debtor (if any), and the Collateral are respectively located at the
address(es) set forth at the end of this Agreement, and the Debtor will not
change such location without prior written notice to and consent of the Secured
Party; (c) the Debtor's type of entity, jurisdiction of organization, and
identification number (if assigned by the Secretary of State of the Debtor's
state of organization) are set forth at the end of this Agreement; and (d) the
Debtor has not created, and is not aware of, any security interest, lien or
encumbrance on or affecting the Collateral other than created hereby or
expressly referred to in the parenthetical clause in subclause 4(a) hereof.
5. The Debtor assumes all liability and responsibility in connection with
all Collateral acquired by the Debtor; and the obligation of the Debtor to pay
all Obligations shall in no way be affected or diminished by reason of the fact
that any such Collateral may be lost, destroyed, stolen, damaged or for any
reason whatsoever unavailable to the Debtor.
6. As long as this Agreement shall remain in effect, the Debtor agrees:
(a) that if the Secured Party so demands in writing at any time
following an Event of Default, as hereinafter defined, (i) all proceeds of the
Collateral shall be delivered to the Secured Party promptly upon their receipt
in a form satisfactory to the Secured Party, and (ii) all chattel paper,
instruments and documents pertaining to the Collateral shall be delivered to the
Secured Party at the time and place and in the manner in which specified in the
Secured Party's demand;
(b) in order to enable the Secured Party to comply with the law of any
jurisdiction, including state, federal and foreign, applicable to any security
interest granted hereby or to the Collateral, to execute and deliver upon
request, in form acceptable to the Secured Party, any financing statement,
notice, statement, instrument, document, agreement or other paper and/or to
perform any act requested by the Secured Party which may be necessary to create,
perfect, preserve, validate or otherwise protect such security interest or to
enable the Secured Party to exercise and enforce the Secured Party's rights
hereunder or with respect to such security interest;
(c) promptly to pay any filing fees or other costs in connection with
(i) the filing or recordation of such financing statements or any other papers
described above, and (ii) such searches of the public records as the Secured
Party in its sole discretion shall require;
(d) that the Secured Party is authorized to file or record any such
financing statements or other papers without the signature of the Debtor if
permitted by applicable law;
(e) that the Secured Party may file a photographic or other
reproduction of this Agreement in lieu of a financing statement in any filing
office where it is permissible to do so;
(f) except for the security interest granted hereby, the Debtor shall
keep the Collateral and proceeds and products thereof free and clear of any
security interests, liens or encumbrances of any kind, the Debtor shall promptly
pay, when due, all taxes and transportation,
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storage and warehousing charges and fees affecting or arising out of the
Collateral and shall defend the Collateral against all claims and demands of all
persons at any time claiming the same or any interest therein adverse to the
Secured Party;
(g) at all times to keep all insurable Collateral insured at the
expense of the Debtor to the Secured Party's satisfaction against loss by fire,
theft and any other risk to which the Collateral may be subject; all policies
shall be endorsed in favor of the Secured Party, with losses payable to the
Secured Party, and, if the Secured Party so requests, shall be deposited with
the Secured Party; and in any event, such policies will provide that each
insurer will give the Secured Party not less than thirty (30) days' notice in
writing prior to the exercise of any right of cancellation; in the event the
Debtor fails to maintain any insurance, the Secured Party may (but shall not be
obligated to) place such insurance and pay the premium therefor, in which event
the Debtor will pay the Secured Party such premium with interest; the Secured
Party may apply any proceeds of such insurance which may be received by it
toward payment of the Obligations, whether or not due, in such order of
application as the Secured Party may determine;
(h) that the Secured Party's duty with respect to the Collateral shall
be solely to use reasonable care in the custody and preservation of Collateral
in its possession; the Secured Party shall not be obligated to take any steps
necessary to preserve any rights in any of the Collateral against prior parties,
and the Debtor hereby agrees to take such steps; the Debtor shall pay to the
Secured Party all costs and expenses, including filing and reasonable attorneys'
fees, incurred by the Secured Party in connection with the custody, care,
preservation or collection of the Collateral; the Secured Party may, but is not
obligated to, exercise any and all rights of conversion or exchange or similar
rights, privileges and options relating to the Collateral; the Secured Party
shall have no obligation to sell or otherwise realize upon any of the Collateral
as herein authorized, and shall not be responsible for any failure to do so or
for any delay in so doing. IN THE EVENT OF ANY LITIGATION WITH RESPECT TO ANY
MATTER CONNECTED WITH THIS AGREEMENT, THE OBLIGATIONS, THE COLLATERAL, OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT APPLICABLE HERETO OR TO ANY ONE OR MORE
OF THEM IN ANY RESPECT, THE DEBTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY, INCLUDING, BUT NOT LIMITED TO, ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS OR ACTIONS OF THE SECURED PARTY RELATING TO THE
ADMINISTRATION OF THE OBLIGATIONS OR ENFORCEMENT OF THE INVENTORY PURCHASE
AGREEMENT, AND THE DEBTOR AGREES THAT IT WILL NOT SEEK TO CONSOLIDATE ANY SUCH
ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. THE DEBTOR CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE
SECURED PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE SECURED PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER;
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(i) that the Debtor will permit the Secured Party, by its officers and
agents, to have access to and examine at all reasonable times the properties,
minute books and other corporate records, and books of account and financial
records of the Debtor in any way relevant to the Collateral, the Obligations,
the Inventory Purchase Agreement, and this Agreement and the transactions
contemplated hereby;
(j) that the Debtor will promptly notify the Secured Party upon the
occurrence of any default, as provided in this Agreement, of which the Debtor
has knowledge, and will promptly provide to the Secured Party all other
information reasonably requested by the Secured Party;
(k) that the Debtor will not sell, transfer, lease or otherwise
dispose of any of the Collateral or any interest therein, or offer to do so, or
permit anything to be done to impair the value of the Collateral or the security
interest granted to the Secured Party hereunder, provided, however, that the
Debtor may sell products in the ordinary course of its business to unaffiliated
third parties. The Secured Party shall have the right, by written notice to the
Debtor, to terminate the Debtor's authority to sell, lease, otherwise transfer,
manufacture, process or assemble, or furnish under contracts of service, any or
all of the products of the Debtor.
7. (a) Upon the occurrence of an Event of Default as defined in Section 8
hereof, the Debtor agrees as follows: (i) the Debtor will not, without first
obtaining the written consent of the Secured Party, renew or extend the time of
payment of any Account; (ii) the Debtor will promptly notify the Secured Party
in writing of any compromise, settlement or adjustment with respect to an
Account and will forthwith account therefor to the Secured Party in cash for the
amount thereof without demand or notice; (iii) the Debtor will stamp, in form
and manner satisfactory to the Secured Party, its accounts receivable ledger and
other books and records pertaining to the Accounts, with an appropriate
reference to the security interest of the Secured Party in the Accounts; (iv)
upon request, the Debtor will furnish to the Secured Party original or other
papers relating to the sale of merchandise or the performance of labor or
services which created any Account; (v) the Debtor may collect the Accounts,
subject to the discretion and control of the Secured Party, but the Secured
Party may, without cause or notice, curtail or terminate such authority at any
time; (vi) the proceeds of the Accounts, when collected by the Debtor, whether
consisting of cash, checks, notes, drafts, money orders, commercial paper of any
kind whatsoever, or other documents, received in payment of the Accounts shall
be promptly remitted by the Debtor to the Secured Party, in precisely the form
received, except for endorsement by the Debtor when required; (vii) such
proceeds until remitted to the Secured Party, as aforesaid, shall be held in
trust by the Debtor for, and as the property of, the Secured Party and shall not
be commingled with other funds, money or property; (viii) proceeds of the
Accounts will be received by the Secured Party subject to final collection and
receipt of proceeds in cash or by unconditional credit to and acceptance by the
Secured Party; (ix) the Secured Party shall apply, in its absolute discretion,
all collections received by it on the Accounts toward the payment of any of the
Obligations whether due or not due; (x) the Debtor will promptly notify the
Secured Party in writing of the return or rejection of any merchandise
represented by the Accounts, and the Debtor shall forthwith account therefor to
the Secured Party in cash without demand or notice and until such payment has
been received by the Secured Party, the Debtor will receive and hold all such
merchandise separate and apart, in trust for and subject to the security
interest in favor of the Secured Party; (xi) the Secured Party is authorized to
sell, for the Debtor's account and sole risk, all or any part of such
merchandise in the manner and under the terms and conditions hereinafter set
forth.
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(b) The Debtor represents and warrants to the Secured Party that the
Debtor is the sole owner of the Accounts, and no one has or claims to have an
interest of any kind therein or thereto; each of the debtors named in every such
Account is indebted to the Debtor in the amount and on the terms indicated in
the invoice and schedule of Accounts; each Account is bona fide and arises out
of the performance of labor or services or the sale and delivery or lease of
merchandise or both, and none of the Accounts is now, nor will at any time in
the future become, contingent upon the fulfillment of any contract or conditions
whatsoever, nor subject to any defense, offset or counterclaim.
(c) The Debtor will maintain accurate and complete records of the
Accounts and will make the same available to the Secured Party at any time upon
demand. The Secured Party is entitled, at any time in its sole discretion, to
notify the account debtors of the Debtor to make payment upon the Accounts
directly to the Secured Party.
(d) For purposes of this Agreement, an "Account" or "Accounts" of the
Debtor shall mean (i) all accounts (as defined in the UCC) of the Debtor arising
out of the sale of Purchased Inventory, as defined in the Inventory Purchase
Agreement, on or after the date of this Agreement; and (ii) with respect to the
Collateral or any part thereof, all of the Debtor's present and future accounts,
contract rights, general intangibles and chattel paper and all other rights to
the payment of money arising out of the sale (or lease) of goods that are
Collateral, all proceeds thereof and all liens, securities, guarantees,
remedies, and privileges pertaining thereto, together with all rights and liens
of the Debtor in and to such goods, including returned or repossessed goods, and
all rights and property of any kind forming the subject matter of any of the
Accounts, including the right of stoppage in transit.
8. Upon non-payment or non-performance when due of any of the Obligations,
or upon the failure of the Debtor to perform any agreement on its part to be
performed hereunder, or by the terms of any other related agreement covering the
Obligations, including, but not limited to, the Inventory Purchase Agreement, or
in case the Secured Party deems itself insecure, or it appears at any time that
any representation in any financial or other statement of the Debtor (delivered
to the Secured Party by or on behalf of the Debtor) is untrue or omits any
material fact, or if a material adverse change shall occur in the financial
condition of the Debtor, or if the Debtor (or any endorser, guarantor or surety
of or upon any of the Obligations) shall die or (being a partnership, limited
liability company or corporation) shall be dissolved or shall become insolvent
(however evidenced), or upon the suspension of the Debtor, or upon the issuance
of any warrant, process, or order of attachment, garnishment or lien and/or the
filing of a lien as a result thereof against any of the property of the Debtor
(or any endorser, guarantor or surety of or upon any of the Obligations), or
upon the making by the Debtor (or any endorser, guarantor or surety) of an
assignment for the benefit of creditors under any bankruptcy, reorganization,
arrangement of debt, insolvency, readjustment of debt, composition,
receivership, liquidation or dissolution law or statute of any jurisdiction,
then in any such event (each an "Event of Default"), (a) all Obligations shall
become at once due and payable, without notice, presentment, demand for payment
or protest, which are hereby expressly waived; (b) the Secured Party is
authorized to take possession of the Collateral and, for that purpose may enter,
with the aid and assistance of any person or persons, any premises where the
Collateral, or any part thereof is, or may be, placed and remove same; (c) the
Secured Party may require the Debtor
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to assemble the Collateral and to make it available to the Secured Party at a
place designated by the Secured Party which is reasonably convenient to the
Secured Party and the Debtor; (d) the Secured Party shall have the right from
time to time to sell, resell, assign, transfer and deliver all or any part of
the Collateral, at any broker's board or exchange, or at public or private sale
or otherwise, at the option of the Secured Party, for cash or on credit for
future delivery, in such parcel or parcels and at such time or times and at such
place or places, and upon such terms and conditions as the Secured Party may
deem proper, and in connection therewith may grant options and may impose
reasonable conditions such as requiring any purchaser to represent that any
stock constituting part of the Collateral is being purchased for investment
purposes only, all without (except as shall be required by applicable statute
and cannot be waived) advertisement or demand upon the Debtor or right of
redemption to the Debtor, which are hereby expressly waived; unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Secured Party will give the
Debtor reasonable notice of the time and place of any such public sale or of the
time after which any private sale or any other intended disposition thereof is
to be made, and the Debtor agrees that ten (10) days' prior notice shall be
deemed reasonable notice; (e) upon each such sale, the Secured Party may, unless
prohibited by applicable statute which cannot be waived, purchase all or any
part of the Collateral being sold, free from and discharged of all trusts,
claims, rights of redemption and equities of the Debtor, which are hereby waived
and released; provided, however, that the Secured Party at any time, before or
after the occurrence of any Event of Default, may, but shall not be obligated
to, transfer into or out of its own name or that of its nominee all or any of
the Collateral which is instruments, stocks, bonds, and other securities, and
the Secured Party or its nominee may demand, sue for, collect, receive and hold
as like Collateral any or all interest, dividends and income thereon, and if any
securities are held in the name of the Secured Party or its nominee, the Secured
Party may, after the occurrence of any such events, exercise all voting and
other rights pertaining thereto as if the Secured Party were the absolute owner
thereof; but the Secured Party shall not be obligated to demand payment of,
protest, or take any steps necessary to preserve any rights in any such
Collateral against prior parties, or take any action whatsoever in regard to any
such Collateral, all of which the Debtor assumes and agrees to do. Without
limiting the generality of the foregoing, the Secured Party shall not be
obligated to take any action in connection with any conversion, call,
redemption, retirement or any other event relating to any of such Collateral,
unless the Debtor gives written notice to the Secured Party that such action
shall be taken not more than thirty (30) days prior to the time such action may
first be taken and not less than ten (10) days prior to the expiration of the
time during which such action may be taken; (f) the Secured Party's obligations,
if any, to give additional (or to continue) financial accommodations of any kind
to the Debtor shall immediately terminate; and (g) in addition to the rights and
remedies given to the Secured Party hereunder or otherwise, the Secured Party
shall have all of the rights and remedies of a secured party under the Uniform
Commercial Code of the Governing State. As used in this Agreement, "Governing
State" shall mean the state indicated as such below.
9. In the case of each such sale or of any proceedings to collect any of
the Obligations, the Debtor shall pay all costs and expenses of every kind for
collection, sale or delivery, including, but not limited to, reasonable
attorneys' fees, and after deducting such costs and expenses from the proceeds
of sale or collection, the Secured Party may apply any residue to pay any of the
Obligations, and the Debtor will continue to be liable to the Secured Party for
any deficiency with interest. The Secured Party shall have the right,
exercisable in its sole and absolute discretion, to retain any surplus
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from any such sale or collection as additional security until the expiration and
complete satisfaction of all of the Obligations, whether then existing or
thereafter arising.
10. The Secured Party may, but is not obligated to, (a) demand, sue for,
collect or receive any money or property at any time due, payable or receivable
on account of or in exchange for any obligations securing any of the
Obligations; (b) compromise and settle with any person liable on such
obligation, and/or (c) extend the time of payment of, or otherwise change, the
terms thereof, as to any party liable thereon; all without incurring
responsibility to the Debtor or affecting any of the Obligations.
11. (a) In order to effectuate the terms and provisions hereof, the Debtor
hereby designates and appoints the Secured Party and its designees or agents as
attorney-in-fact of the Debtor, irrevocably and with power of substitution, with
authority to receive, open and dispose of all mail addressed to the Debtor, to
notify the Post Office authorities to change the address for delivery of mail
addressed to the Debtor to such address as the Secured Party may designate; to
endorse the name of the Debtor on any notes, acceptances, checks, drafts, money
orders, instruments or other evidence of payment or proceeds of the Collateral
that may come into the Secured Party's possession; to sign the name of the
Debtor on any invoices, documents, drafts against, and notices (which also may
direct, among other things, that payment be made directly to the Secured Party)
to Account debtors or obligors of the Debtor, assignments and requests for
verification of Accounts; to execute proofs of claim and loss; to execute any
endorsements, assignments, or other instruments of conveyance or transfer; to
adjust and compromise any claims under insurance policies; to execute releases;
and to do all other acts and things necessary and advisable in the sole
discretion of the Secured Party to carry out and enforce this Agreement. All
acts of said attorney or designee are hereby ratified and approved, and said
attorney or designee shall not be liable for any acts of commission or omission,
nor for any error of judgment or mistake of fact or law. This power of attorney,
being coupled with an interest, is irrevocable while any of the Obligations
shall remain unpaid.
(b) The Debtor hereby grants to the Secured Party (and its agents,
representatives or assigns) a fully-paid, royalty-free, worldwide right and
license to, upon and during the continuance of an Event of Default (unless
appropriately waived in writing in accordance with this Agreement), use, or sell
or otherwise transfer, any and all of the Collateral which may bear or utilize
any of the Debtor's or any of its divisions' names, tradenames, trademarks,
patents or other intellectual property.
12. All options, powers and rights granted to the Secured Party hereunder
or under any promissory note, instrument, document or other writing delivered to
the Secured Party shall be cumulative and shall be in addition to any other
options, powers or rights which the Secured Party may now or hereafter have as a
secured party under the Uniform Commercial Code of the Governing State or under
any other applicable law or otherwise. All security interests and the related
rights and remedies granted to the Secured Party hereunder or under any other
instrument, document or writing delivered to the Secured Party by the Debtor
shall be cumulative; provided, however, that, in the event of an inconsistency
between the terms of the security interest and the related rights and remedies
granted hereunder and the terms of the security interest and the related rights
and remedies granted to the Secured Party under any other instrument, document
or writing, the grant most favorable to the Secured Party shall control.
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13. No delay on the part of the Secured Party in exercising any of its
options, powers, or rights, or partial or single exercise thereof, shall
constitute a waiver thereof. Neither this Agreement nor any provision hereof may
be modified, changed, waived, discharged or terminated orally, but only by an
instrument in writing, signed by the party against whom enforcement of the
modification, change, waiver, discharge or termination is sought. The Secured
Party shall have the right, for and in the name, place and stead of the Debtor,
to execute endorsements, assignments or other instruments of conveyance or
transfer with respect to any of the Collateral.
14. Notice of acceptance of this Agreement by the Secured Party is hereby
waived. This Agreement shall be immediately binding upon the Debtor and its
successors and assigns, whether or not the Secured Party signs this Agreement.
15. It is the intention of the parties that the security interest provided
for herein shall attach to after-acquired as well as existing Collateral, and
the Obligations covered by this Agreement shall include any other obligation,
indebtedness, agreement, guarantee or liability of any kind of the Debtor to the
Secured Party, whether now existing or hereafter arising, whether monetary or
non-monetary, whether or not similar to prior or existing obligations or
liabilities, and howsoever evidenced, all to the maximum extent permitted by the
Uniform Commercial Code of the Governing State.
16. Unless the context otherwise requires, or unless otherwise defined
herein all terms used herein which are defined in the Uniform Commercial Code of
the Governing State shall have the meanings therein stated.
17. For the purpose of Section 9.402(1) of the Uniform Commercial Code, the
address of the Debtor specified below under the caption "Chief Executive Office"
may be designated as the Debtor's mailing address.
18. This Agreement shall be construed in accordance with, and be governed
by, the law of the Governing State (excluding the laws applicable to conflicts
or choice of law).
19. GOVERNING STATE: Ohio, except for perfection, as appropriate.
20. Upon receipt of an affidavit of an officer of the Secured Party as to
the loss, theft, destruction or mutilation of this Agreement or any other
security document which is not of public record, and, in the case of any such
loss, theft, destruction or mutilation, upon cancellation of such agreement or
other security document, the Debtor will issue, in lieu thereof, a replacement
agreement or other security document.
21. The Secured Party shall have the unrestricted right at any time or from
time to time, and without the Debtor's consent, to assign all or any portion of
its rights and obligations hereunder to one or more other persons or entities
(each, an "Assignee"), and the Debtor agrees that it shall execute, or cause to
be executed, such documents, including but not limited to, amendments hereto and
to any other documents executed in connection herewith or pursuant hereto
(collectively the "Collateral And Security Documents") as the Secured Party
shall deem necessary to effect the
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foregoing. Upon the execution and delivery of appropriate assignment
documentation, amendments and any other documentation required by the Secured
Party in connection with such assignment, and the payment by the Assignee of the
purchase price agreed to by the Secured Party and such Assignee, such Assignee
shall have all of the rights and obligations of the Secured Party hereunder (and
under any and all other Collateral And Security Documents) to the extent that
such rights and obligations have been assigned by the Secured Party pursuant to
the assignment documentation between the Secured Party and such Assignee, and
the Secured Party shall be released from its obligations hereunder and
thereunder to a corresponding extent.
22. The Debtor and the Secured Party acknowledge and agree to the following
provisions in anticipation of the possible application, in one or more
jurisdictions, to 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").
(a) In applying the law of any jurisdiction in which Revised Article 9
is in effect, the Collateral consists of the assets of the Debtor as described
in Section 3 hereinabove, whether or not within the scope of Revised Article 9.
The Collateral shall include, but not be limited to, the following categories of
assets as defined in Revised Article 9: goods (including inventory, equipment
and any accessions thereto), instruments (including promissory notes),
documents, accounts (including health-care-insurance receivables), chattel paper
(whether tangible or electronic), deposit accounts, letter-of-credit rights
(whether or not the letter of credit is evidenced by a writing), commercial tort
claims, securities and all other investment property, general intangibles
(including payment intangibles and software), supporting obligations and any and
all proceeds of any thereof, wherever located, whether now owned and hereafter
acquired. If the Debtor shall at any time, whether or not Revised Article 9 is
in effect in any particular jurisdiction, acquire a commercial tort claim, as
defined in Revised Article 9 and such commercial tort claim is a component of
the Collateral as described in Section 3 hereinabove, the Debtor shall
immediately notify the Secured Party in a writing signed by the Debtor of the
brief details thereof and grant to the Secured Party in such writing a security
interest therein and in the proceeds thereof, all upon the terms of this
Agreement, with such writing to be in form and substance satisfactory to the
Secured Party.
(b) The Secured Party may at any time and from time to time, file
financing statements, continuation statements and amendments thereto that
describe the Collateral and the assets included therein, 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 the Debtor is an organization, the type of
organization and any organization identification number issued to the Debtor.
The Debtor agrees to furnish any such information to the Secured Party promptly
upon request. Any such financing statement, continuation statements or
amendments may be signed by the Secured Party on behalf of the Debtor, and may
be filed at any time in any jurisdiction whether or not Revised Article 9 is
then in effect in that jurisdiction.
(c) The Debtor shall at any time from time to time, whether or not
revised Article 9 is in effect in any particular jurisdiction, take such steps
as the Secured Party may reasonably request for the Secured Party (i) to obtain
an acknowledgment, in form and substance satisfactory to
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the Secured Party, of any bailee having possession of any of the Collateral that
the bailee holds such Collateral for the Secured Party, (ii) to obtain "control"
of any 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. ss.ss. 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 Secured
Party, and (iii) otherwise to insure the continued perfection and priority of
the Secured Party'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.
(d) Nothing contained in this Section 22 shall be construed to narrow
the scope of the Secured Party'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 Secured Party hereunder except
(and then only to the extent) mandated by Revised Article 9 to the extent then
applicable.
[Signatures appear on following page]
10
IN WITNESS WHEREOF, the undersigned have executed this Agreement or
have caused these presents to be executed and delivered by their proper
corporate officer or officers and caused their proper corporate seal to be
hereto affixed, as of the Effective Time.
ROSENBOOM MACHINE & TOOL, INC.
By:/s/ Brian Rosenboom
------------------------------------------
Brian Rosenboom, Vice President
GREEN MANUFACTURING, INC.
By:/s/ Joseph A. Molino, Jr.
------------------------------------------
Joseph A. Molino, Jr., Vice President
Chief Executive Office of Debtor:
Address:
Rosenboom Machine & Tool, Inc.
1530 Western Avenue
Sheldon, Iowa 51201
Other Business Addresses of Debtor:
- ----------------------------------
(if none, state "None")
None
Location of Collateral:
- ----------------------
1032 South Maple Street
Bowling Green, Ohio 43402
Type of Entity of Debtor:
- ------------------------
Corporation
Jurisdiction of Organization of Debtor:
- --------------------------------------
Iowa
Organization Identification Number of Debtor (if any):
- -----------------------------------------------------
103648