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Exhibit 10.40
SUBORDINATED INDEBTEDNESS
INTERCREDITOR AGREEMENT
AGREEMENT ("AGREEMENT"), dated as of August 29, 2000, by and among
TransTechnology Corporation, a Delaware corporation (the "BORROWER"), each
subsidiary of the Borrower that is a signatory hereto (the "EXISTING
GUARANTORS"), each additional subsidiary that from time to time executes a
xxxxxx to this Agreement together with the Existing Guarantors, (the
"GUARANTORS"), X. X. Xxxxxxx Mezzanine Fund, L.P., a Delaware limited
partnership ("WMF"), Albion Alliance Mezzanine Fund I, L.P. ("ALBION I"), a
Delaware limited partnership, Albion Alliance Mezzanine Fund II, L.P. ("ALBION
II"), a Delaware limited partnership, The Equitable Life Assurance Society of
the United States ("EQUITABLE"), a New York corporation, Fleet Corporate
Finance, Inc. ("FLEET"), a Massachusetts corporation and Citizens Capital
Inc.("CITIZENS", and together with Albion I, Albion II, Equitable and Fleet,
collectively the "CO-INVESTORS"), a Massachusetts corporation. WMF and the
Co-Investors are sometimes collectively referred to herein as the "SUBORDINATED
NOTEHOLDERS." The Guarantors and the Borrowers are sometimes collectively
referred to herein as the "OBLIGORS."
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower is the obligor of, and WMF is the holder of, a
16% Senior Subordinated Promissory Note due August 29, 2005 in the principal
amount of $30,000,000 (together with all notes issued in substitution or
replacement thereof, the "WMF SUBORDINATED NOTE"), which WMF purchased from the
Borrower pursuant to the Securities Purchase Agreement (the "SECURITIES PURCHASE
AGREEMENT"), dated as of the date hereof, among the Borrower, WMF and the
Co-Investors (the indebtedness evidenced by the WMF Subordinated Note, together
with all other obligations guaranteed to WMF by the Guarantors pursuant to the
Guaranty, by and among the Subordinated Noteholders and the Existing Guarantors,
dated the date hereof (the "GUARANTY") shall hereinafter be referred to as the
"WMF SUBORDINATED OBLIGATIONS");
WHEREAS, the Borrower is the obligor of, and Albion I is the holder of,
a 16% Senior Subordinated Promissory Note due August 29, 2005 in the principal
amount of $4,000,000 (together with all notes issued in substitution or
replacement thereof, the "ALBION I SUBORDINATED NOTE"), which Albion I purchased
from the Borrower pursuant to the Securities Purchase Agreement (the
indebtedness evidenced by the Albion I Subordinated Note, together with all
other obligations guaranteed by the Guarantors to Albion I pursuant to the
Guaranty, shall hereinafter be referred to as the "ALBION I SUBORDINATED
OBLIGATIONS"); and
WHEREAS, the Borrower is the obligor of, and Albion II is the holder
of, a 16% Senior Subordinated Promissory Note due August 29, 2005 in the
principal amount of $8,500,000 (together with all notes issued in substitution
or replacement thereof, the "ALBION II SUBORDINATED NOTE"), which Albion II
purchased from the Borrower pursuant to the Securities Purchase Agreement (the
indebtedness evidenced by the Albion II Subordinated Note, together with all
other obligations guaranteed by the Guarantors to Albion II pursuant to the
Guaranty, shall hereinafter be referred to as the "ALBION II SUBORDINATED
OBLIGATIONS"); and
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WHEREAS, the Borrower is the obligor of, and Equitable is the holder
of, a 16% Senior Subordinated Promissory Note due August 29, 2005 in the
principal amount of $12,500,000 (together with all notes issued in substitution
or replacement thereof, the "EQUITABLE SUBORDINATED NOTE"), which Equitable
purchased from the Borrower pursuant to the Securities Purchase Agreement (the
indebtedness evidenced by the Equitable Subordinated Note, together with all
other obligations guaranteed by the Guarantors to Equitable pursuant to the
Guaranty, shall hereinafter be referred to as the "EQUITABLE SUBORDINATED
OBLIGATIONS"); and
WHEREAS, the Borrower is the obligor of, and Fleet is the holder of, a
16% Senior Subordinated Promissory Note due August 29, 2005 in the principal
amount of $12,500,000 (together with all notes issued in substitution or
replacement thereof, the "FLEET SUBORDINATED NOTE"), which Fleet purchased from
the Borrower pursuant to the Securities Purchase Agreement (the indebtedness
evidenced by the Fleet Subordinated Note, together with all other obligations
guaranteed by the Guarantors to Fleet pursuant to the Guaranty, shall
hereinafter be referred to as the "FLEET SUBORDINATED OBLIGATIONS"); and
WHEREAS, the Borrower is the obligor of, and Citizens is the holder of,
a 16% Senior Subordinated Promissory Note due August 29, 2005 in the principal
amount of $7,500,000 (together with all notes issued in substitution or
replacement thereof, the "CITIZENS SUBORDINATED NOTE" and, together with the WMF
Subordinated Note, the Albion I Subordinated Note, the Albion II Subordinated
Note, the Equitable Subordinated Note and the Fleet Subordinated Note,
collectively, the "SUBORDINATED NOTES"), which Citizens purchased from the
Borrower pursuant to the Securities Purchase Agreement (the indebtedness
evidenced by the Citizens Subordinated Note, together with all other obligations
guaranteed by the Guarantors to Citizens pursuant to the Guaranty, the WMF
Subordinated Obligations, the Albion I Subordinated Obligations, the Albion II
Subordinated Obligations, the Equitable Subordinated Obligations and the Fleet
Subordinated Obligations, shall hereinafter be referred to, collectively, as the
"SUBORDINATED OBLIGATIONS"); and
WHEREAS, it is in the best interests of the Obligors, WMF and the
Co-Investors to enter into this Agreement in order to set forth, among other
things, the relative rights of WMF and the Co-Investors with respect to the
payments on and distributions in respect of the Subordinated Obligations.
NOW, THEREFORE, in consideration of the above premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. RANKING. The Subordinated Obligations shall rank PARI PASSU
(based upon principal then outstanding) to each other in right of payment and
distribution of any cash, securities or other assets. In furtherance of, and not
in limitation of, the other provisions of this Agreement, any reference in this
Agreement to "payment" or "distribution" in respect of the Subordinated
Obligations shall include, without limitation, any direct or indirect payment of
principal or interest with respect thereto (including, without limitation, in
connection with any mandatory or optional prepayment provisions); any direct or
indirect payment or recovery on any
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claim as a holder relating to or arising out of any Subordinated Note, or any
interest therein, in each case by or on behalf of any Obligor from any source of
any kind or character, by set-off or otherwise; and any direct or indirect
depositing of funds for the defeasance of any of the Subordinated Obligations,
any sinking fund, or any payment on account of mandatory or optional prepayment
or redemption provisions or any payments made in connection with the retirement
of or purchase and sale of any of the Subordinated Notes by any Obligor from the
holder thereof.
SECTION 2. RATABLE RETIREMENT OR ACQUISITION OF SUBORDINATED NOTES.
Without the prior unanimous written consent of all the holders of the
Subordinated Notes then outstanding, none of the Obligors nor any of their
respective subsidiaries or affiliates shall prepay, redeem, or otherwise
purchase, retire or acquire, directly or indirectly, any Subordinated Note
UNLESS such Obligor, subsidiary or affiliate shall have offered (and shall have
the necessary funds readily available) to prepay, redeem or otherwise purchase,
retire or acquire, as the case may be, the same proportion of all of the
Subordinated Notes then outstanding, in each case upon the same terms and
conditions.
SECTION 3. PERMITTED PAYMENTS. Regularly scheduled payments of interest
due under each of the Subordinated Notes shall be deemed to have been made in
compliance with Sections 1 and 2 of this Agreement if such payments of interest
shall be contemporaneously made with respect to all of the Subordinated Notes.
No provision in this Agreement shall prohibit or otherwise affect the obligation
of the Company to pay when due such interest payments.
SECTION 4. LIMITATION ON REMEDIES. The Subordinated Noteholders agree
among themselves that for so long as any Subordinated Obligations remain
outstanding, without the prior written consent of the holders of at least a
majority of the then outstanding aggregate principal amount of Subordinated
Notes, which shall include at least two holders of Subordinated Notes which are
not affiliates (the "Requisite Subordinated Noteholders"), none of the holders
of Subordinated Notes (in each case in its capacity as such a holder) may:
(a) declare, or join in the declaration by any person or entity
other than the Requisite Subordinated Noteholders of, any Subordinated
Obligations to be due and payable prior to the maturity thereof or otherwise
accelerate the maturity of the principal of any Subordinated Obligations,
accrued interest thereon or other amounts due thereunder or with respect
thereto; or
(b) take any other action against any Obligor in connection with
the Subordinated Obligations, including, without limitation, commencing any
administrative, legal or equitable action against any Obligor (including,
without limitation, filing and joining in the filing of any insolvency petition
against any Obligor).
In the event that the Requisite Subordinated Noteholders take any of the
foregoing actions, such actions shall bind all holders of the Subordinated
Obligations and any proceeds derived therefrom shall be distributed to the
Subordinated Noteholders in accordance with the terms of this Agreement.
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Notwithstanding anything to the contrary contained herein, if there is a
default in the payment of interest, principal, or premium when due under any of
the Subordinated Obligations (a "Payment Default"), and the Payment Default (i)
is not cured or (ii) if the Requisite Subordinated Noteholders have not
accelerated the Subordinated Obligations, within thirty (30) days from the date
the Subordinated Noteholders are able to take any action with respect to a
Payment Default under the Subordination and Intercreditor Agreement of even date
hereof among the Subordinated Noteholders, the Borrower, and certain
subsidiaries thereof, and Fleet National Bank, as Agent, as amended from time to
time, or within one hundred eighty (180) days from the date of the Payment
Default, whichever is earlier, then any Subordinated Noteholder that purchased a
Subordinated Note on the date hereof, or any transferee of a Subordinated
Noteholder that holds one or more Subordinated Notes in the principal amount of
at least $5,000,000 may accelerate the Subordinated Obligations under the
Subordinated Note held by such Subordinated Noteholder, as provided for therein.
SECTION 5. AMENDMENTS OF SUBORDINATED OBLIGATIONS.
(a) Notwithstanding any provision in any of the Loan Documents (as
hereinafter defined) to the contrary, no amendment, supplement or Modification
of or to any provision in any Loan Document, or any waiver of any such provision
or consent to any departure by any party from the terms of any such provision
may be made orally. The term "Loan Documents" means the documents governing the
Subordinated Obligations, including, without limitation, the Subordinated Notes,
but excluding this Agreement (the amendment of which is governed by Section 12
hereof).
(b) Notwithstanding any provision in any of the Loan Documents to
the contrary, any (i) amendment, supplement or modification to any Loan
Document, (ii) consent under any Loan Document or (iii) waiver of any provision
(collectively, "Modification") of any Loan Document shall be effective as to all
of the holders of Subordinated Notes if given pursuant to a written agreement
signed by the Obligors and the Requisite Subordinated Noteholders in accordance
with the requirements of Section 11.4 of the Purchase Agreement;
(c) Any amendment, supplement or modification of or to any
provision of the Subordinated Obligations, any waiver of any provision of the
Subordinated Notes, and any consent to any departure by any party from the terms
of any provision of the Subordinated Notes, shall (i) apply to all the
Subordinated Obligations and Subordinated Notes and (ii) be effective only in
the specific instance and for the specific purpose for which made or given.
SECTION 6. EXCESS PAYMENTS AND DISTRIBUTIONS RECEIVED. If a
Subordinated Noteholder shall have received any payment or distribution of cash,
securities or other assets in respect of the Subordinated Obligations in
contravention of the terms of this Agreement (any such payment or distribution,
shall be referred to as an "Excess Payment"), then and in such event such Excess
Payment shall be received and held in trust for and shall be promptly paid over
or delivered to the Subordinated Noteholders entitled to such Excess Payment in
such amounts and proportions in accordance with and pursuant to the terms of
this Agreement. If,
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after a Subordinated Noteholder (the "Payor Subordinated Noteholder") shall have
paid any Excess Payment to another Subordinated Noteholder (each such
Subordinated Noteholder shall be referred to as a "Payee Subordinated
Noteholder") pursuant to this Section 6, such Excess Payment shall have been
rescinded or must otherwise be returned by the Payor Subordinated Noteholder, in
whole or in part, because of the insolvency, bankruptcy or reorganization of any
Obligor or for any similar reason, then each such Payee Subordinated Noteholder
shall repay to the Payor Subordinated Noteholder an amount equal to such Payee
Subordinated Noteholder's pro rata portion of the Excess Payment that has been
so rescinded or must otherwise be returned. For purposes of this Section 6 the
"pro rata portion" of the Excess Payment that shall be required to be returned
by a Payee Subordinated Noteholder shall equal the amount of the Excess Payment
that has been so rescinded or must otherwise be returned multiplied by a
fraction, the numerator of which shall be the amount of the Excess Payment paid
by the Payor Subordinated Noteholder to such Payee Subordinated Noteholder and
the denominator of which is the aggregate amount of the Excess Payment paid by
the Payor Subordinated Noteholder to all Payee Subordinated Noteholders. No
interest payment made as contemplated by Section 3 shall be deemed to be an
Excess Payment.
SECTION 7. LEGEND; FURTHER ASSURANCES.
(a) The Subordinated Noteholders and the Borrower will cause each
Subordinated Note and instrument (if any) evidencing the Subordinated
Obligations to be endorsed with the following legend:
"THE SUBORDINATED INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT
RANKS PARI PASSU WITH CERTAIN OTHER SUBORDINATED INDEBTEDNESS OF THE
MAKER AND IS OTHERWISE SUBJECT TO CERTAIN OTHER RESTRICTIONS SET FORTH
IN THAT CERTAIN SUBORDINATED INDEBTEDNESS INTERCREDITOR AGREEMENT,
DATED AS OF AUGUST 29, 2000, BY AND AMONG THE MAKER HEREOF, THE PAYEE
NAMED HEREIN, CERTAIN OTHER HOLDER(S) OF INDEBTEDNESS OF THE MAKER AND
THE GUARANTORS OF SUCH INDEBTEDNESS, AS SUCH AGREEMENT MAY BE AMENDED
FROM TIME TO TIME."
(b) Each of the Subordinated Noteholders and the Guarantor will
cause the Guarantees to be endorsed with the following legend:
"THE OBLIGATIONS GUARANTEED HEREBY AND THE OBLIGATION
HEREUNDER TO GUARANTY SUCH OBLIGATIONS ARE SUBJECT TO THE RESTRICTIONS
SET FORTH IN THAT CERTAIN SUBORDINATED INDEBTEDNESS INTERCREDITOR
AGREEMENT, DATED AS OF AUGUST 29, 2000, BY AND AMONG THE HOLDERS OF
SUCH OBLIGATIONS, THE GUARANTORS HEREUNDER AND THE PARENT OF SUCH
GUARANTORS, AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME."
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(c) Each of the Subordinated Noteholders and the Obligors will at
its expense and at any time and from time to time promptly execute and deliver
all further instruments and documents and take all further actions (including,
without limitation, obtaining any consents, exemptions or authorizations) that
may be necessary in order to protect any right or interest granted or purported
to be granted hereunder or to enable each of the Subordinated Noteholders to
exercise and enforce their rights and remedies hereunder.
SECTION 8. AGREEMENT BY THE OBLIGORS. Each of the Obligors agrees that
it will not make any payment or distribution in respect of any of the
Subordinated Obligations, or take any other action, in contravention of the
provisions of this Agreement. The obligations of the Obligors hereunder are
joint and several.
SECTION 9. OBLIGATIONS HEREUNDER NOT AFFECTED. All rights and interest
of the Subordinated Noteholders hereunder, and all agreements and obligations of
the Subordinated Noteholders and the Obligors hereunder, shall remain in full
force and effect irrespective of:
(a) any lack of validity or enforceability of any document
evidencing or relating to the Subordinated Obligations;
(b) any change in the time, manner or place of payment of, or any
other term of, all or any of the Subordinated Obligations, or any other
amendment or waiver of or any consent to departure from any of the documents
evidencing or relating to the Subordinated Obligations (whether or not effected
in accordance with the provisions of this Agreement);
(c) any failure of any Subordinated Noteholder to assert any claim
or to enforce any right or remedy against any other party hereto under the
provisions of this Agreement or any other document evidencing or relating to the
Subordinated Obligations;
(d) any reduction, limitation, impairment or termination of the
Subordinated Obligations for any reason (other than the defense of payment in
full of all of the Subordinated Obligations), including, without limitation, any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to (and each Obligor hereby waives any right to or claim of) any defense
(other than the defense of payment in full of the Subordinated Obligations) or
set off, counterclaim, recoupment or termination whatsoever by reason of
invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any
Subordinated Obligations; and
(e) any other circumstances which might otherwise constitute a
defense (other than the defense of payment in full in cash of all of the
Subordinated Obligations) available to, or a discharge of, any Obligor in
respect of the Subordinated Obligations or the Subordinated Noteholders in
respect of this Agreement.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Subordinated Obligations is
rescinded or must otherwise be returned
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by any Subordinated Noteholder upon the insolvency, bankruptcy or reorganization
of any Obligor or otherwise, all as though such payment had not been made.
SECTION 10. RELATIVE RIGHTS. This Agreement defines the relative rights
of the Subordinated Noteholders. Nothing in this Agreement shall: (a) impair, as
between the Obligors, on the one hand, and the Subordinated Noteholders, on the
other hand, the absolute and unconditional obligations of the Obligors pursuant
to the Subordinated Obligations, including, without limitation, the obligation
to pay principal and interest (including, without limitation, default interest)
on the Subordinated Notes in accordance with their respective terms or in the
case of the Guarantors, in accordance with the Guaranty; or (b) subject to the
terms of this Agreement, prevent the Subordinated Noteholders from exercising
their available remedies upon a default or event of default under the
Subordinated Notes.
SECTION 11. REPRESENTATIONS AND WARRANTIES.
(a) Each of the Obligors hereby jointly and severally represent and
warrant as follows:
(i) the execution, delivery and performance by each Obligor of
this Agreement is within its corporate power, has been duly authorized by all
necessary corporate action, and does not contravene its certificate of
incorporation or by-laws or any material contractual restriction, law or
governmental regulation or court decree order binding on or affecting such
Obligor; and
(ii) this Agreement constitutes a legal, valid and binding
obligation of each Obligor, enforceable in accordance with its terms (subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing).
(b) Each of the Subordinated Noteholders represents as to itself
and not as to any other Noteholder as follows:
(i) such Subordinated Noteholder owns the Subordinated Note
issued to it as described in the recitals hereto free and clear of any security
interest, mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or otherwise), charge against or interest in
property, or other priority or preferential arrangement of any kind or nature
whatsoever, to secure payment of a debt or performance of an obligation other
than, with respect to WMF, pursuant to the pledge of the WMF Subordinated Notes
pursuant to the terms of the partnership agreements or other agreements of WMF
pursuant to which WMF issued any bonds, promissory notes or other evidences of
indebtedness;
(ii) the execution, delivery and performance by each
Subordinated Noteholder of this Agreement is within such party's individual,
corporate or partnership or limited liability company (as the case may be)
powers, has been duly authorized
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by all necessary organizational action, and does not contravene any provision of
its organizational documents or any material contractual restriction, law or
governmental regulation or court decree or order binding on or affecting such
party and, if such Subordinated Noteholder is an individual, such individual is
at least 18 years of age; and
(iii) this Agreement constitutes a legal, valid and binding
obligation of each Subordinated Noteholder, enforceable in accordance with its
terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing).
SECTION 12. AMENDMENTS, WAIVERS. No amendment, modification, supplement
or waiver of any provision of this Agreement nor consent or any departure by the
Subordinated Noteholders or the Obligors herefrom shall in any event be
effective unless the same shall be in writing and signed by the party or parties
hereto against whom enforcement of such amendment, waiver or consent is sought,
and then such waiver, amendment or consent shall be effective only in the
specific instance and for the specific purpose for which given. Any waiver,
forbearance, failure or delay by a Subordinated Noteholder in exercising, or the
exercise or beginning of exercise by a Subordinated Noteholder of, any right,
power or remedy, simultaneous or later, shall not preclude the further,
simultaneous or later exercise thereof, and every right, power or remedy of a
Subordinated Noteholder shall continue in full force and effect until such
right, power or remedy is specifically waived in a writing executed by such
Subordinated Noteholder. Notwithstanding any provision in this Agreement to the
contrary, the parties acknowledge that (i) the provisions set forth in Section 4
hereof are solely for the benefit of and inure to the Subordinated Noteholders,
and, as such, may be amended by a writing signed by the Subordinated Noteholder
against whom enforcement of such amendment, waiver or consent is sought, without
the consent of the Obligors except with respect to the definition of Requisite
Noteholders and (ii) no amendment, modification, supplement or waiver of or to
any provision of Section 5 nor consent to any departure by the Subordinated
Noteholders or the Obligors from any provision of Section 5 shall in any event
be effective unless the same shall be in writing and signed by all of the
holders of the Subordinated Notes then outstanding.
SECTION 13. EXPENSES. Each Subordinated Noteholder (the "Indemnifying
Subordinated Noteholder") agrees to pay, upon demand, to the other Subordinated
Noteholders, any and all reasonable costs and expenses, including, without
limitation, reasonable attorneys' fees and disbursements that the other
Subordinated Noteholders may incur in connection with the exercise or
enforcement of any of the rights or interests of such other Subordinated
Noteholders hereunder in respect of a breach by such Indemnifying Subordinated
Noteholder of any of its obligations or agreements hereunder. The Obligors agree
to pay, upon demand, to the Subordinated Noteholders, as applicable, any and all
reasonable costs and expenses, including, without limitation, reasonable
attorneys' fees and disbursements that the Subordinated Noteholders may incur in
connection with the exercise or enforcement of all rights or interests of the
Subordinated Noteholders hereunder in respect of a breach by any Obligor of any
of its obligations or agreements hereunder.
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SECTION 14. ADDRESS FOR NOTICES. All notices, demands and other
communications provided for or permitted hereunder shall be made in writing and
shall be by registered or certified first-class mail, return receipt requested,
telecopier (with receipt confirmed), courier service or personal delivery:
if to the Obligors:
c/o TransTechnology Corporation
000 Xxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Telecopier: (000)000-0000
Attention: Xx. Xxxxxx Xxxxxxx
with a copy to:
Xxxx Xxxxxx & Parks, LLP
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: F. Xxxxxx X'Xxxxx, Esq.
2. if to WMF
X. X. Xxxxxxx Mezzanine Fund, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxx
Xx. Xxxxxx X. X'Xxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
3.
If to Albion I
Albion Alliance Mezzanine Fund I, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to
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Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
4. If to Albion II
Albion Alliance Mezzanine Fund II, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
5. If to Equitable
The Equitable Life Assurance Society of the
United States
c/o Albion Alliance
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
6. if to Fleet
Fleet Corporate Finance, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
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with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
7. If to Citizens
Citizens Capital Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx, Esq.
or to such other address or addresses as shall have been furnished in writing to
the other parties hereto.
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial overnight courier service; if mailed, five business days
after being deposited in the mail, postage prepaid; and, if telecopied, when
receipt is electronically confirmed.
SECTION 15. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties made herein shall survive the execution and
delivery of this Agreement, any investigation by or on behalf of the parties
hereto and termination of this Agreement.
SECTION 16. SUBORDINATED NOTES OUTSTANDING. No Subordinated Notes held
by any Obligor or any of their respective affiliates shall be deemed to be
outstanding for purposes of this Agreement.
SECTION 17. ENTIRE AGREEMENT; SEVERABILITY. This Agreement is intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings
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in respect of the subject matter contained herein, other than those set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter,
including, without limitation, Section 7 of each of the Subordinated Notes. If
any of the provisions of this Agreement shall be held invalid or unenforceable,
this Agreement shall be construed as if not containing those provisions, and the
rights and obligations of the parties hereto shall be construed and enforced
accordingly.
SECTION 18. CONTINUING AGREEMENT; TRANSFER OF SUBORDINATED NOTES; NO
THIRD PARTY BENEFICIARIES. This Agreement shall (a) remain in full force and
effect until the Subordinated Obligations shall have been paid in cash in full,
(b) be binding upon the Subordinated Noteholders and the Obligors and their
respective successors, transferees and assigns whether so expressed or not, and
(c) inure to the benefit of and be enforceable by each of the Subordinated
Noteholders and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing, any Subordinated Noteholder may,
subject to the provisions of the Subordinated Note held by such Subordinated
Noteholder, assign or otherwise transfer, in whole or part, the Subordinated
Note held by it to any other person or entity and such other person or entity
shall thereupon become vested with all the rights in respect thereof granted to
such Subordinated Noteholders and shall become subject to all provisions of, and
assume all obligations of the assignor or transferor of such Subordinated Note
under this Agreement. This Agreement is not intended to confer upon any person
or entity other than the parties hereto any rights or remedies hereunder.
SECTION 19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAW OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS OR INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY
WITHIN SUCH STATE.
SECTION 20. FORUM SELECTION AND CONSENT TO JURISDICTION. EACH PARTY TO
THIS AGREEMENT HEREBY IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SUBORDINATED NOTES OR ANY
AGREEMENTS OR TRANSACTIONS RELATING THERETO MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF NEW YORK AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE
OF SUCH COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF
IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT FORUM. EACH
PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS ADDRESS
SET FORTH IN SECTION 14, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH
MAILING.
SECTION 21. POWER OF ATTORNEY. Each holder of Subordinated Notes does
hereby irrevocably constitute and appoint the Requisite Subordinated
Noteholders, and each of them, with full power of substitution, as such holder's
true and lawful attorneys-in-fact (each,
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an "Attorney-in-Fact"), in his, her or its name, place and stead, to execute,
acknowledge, swear to, deliver, file and record such (i) amendments as may be
approved by the Requisite Subordinated Noteholders as contemplated by Section 5
hereof and (ii) such other documents as are deemed necessary by the
Attorney-in-Fact to carry out fully the provisions of Section 5 and Section 6 of
this Agreement in accordance with the terms thereof. The grant of authority in
this Section 21 is a special power of attorney coupled with an interest in the
Attorney-in-Fact and shall survive the death or incapacity of any holder of
Subordinated Notes, may be exercised for such holder by a facsimile signature of
the Attorney-in-Fact, and shall survive any assignment by the holder of any
interest in the Subordinated Notes held by such holder. Obligors shall be
entitled to rely on the written notice of such attorney-in-fact in connection
with any matter contemplated by this Section 21.
SECTION 22. ADDITIONAL GUARANTORS. The Company shall cause any person
or entity that becomes a guarantor of any of the Subordinated Obligations to
execute a joinder to this Agreement pursuant to which such person or entity
shall be bound by the terms hereof applicable to the Guarantor.
SECTION 23. NOTES CONSTITUTING SUBORDINATED NOTES. For all purposes
under this Agreement, the term Subordinated Notes shall include all notes
(together with all notes issued in substitution or replacement thereof)
contemplated by the "PIK interest" provisions set forth in Section 2(b) of each
of the Subordinated Notes.
SECTION 24. SPECIFIC PERFORMANCE. The parties hereto agree that the
breach by any party of the provisions of this Agreement would result in
substantial damage to the other parties which would be difficult, if not
impossible, to ascertain, and by reason of that fact the parties agree that in
the event of any such breach, the non-breaching parties shall have the right to
enforce this Agreement by injunction or other proceeding in equity without the
posting of a bond or other security.
SECTION 25. SIGNATURES; EXECUTION IN COUNTERPARTS. Telefacsimile
transmissions of any executed original document and/or retransmission of any
executed telefacsimile transmission shall be deemed to be the same as the
delivery of an executed original. At the request of any party hereto, the other
parties hereto shall confirm telefacsimile transmissions by executing duplicate
original documents and delivering the same to the requesting party or parties.
This Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered as of the date first above written.
TRANSTECHNOLOGY CORPORATION
By: /S/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
Officer
X. X. XXXXXXX MEZZANINE FUND, L.P.
By: Xxxxxxx XX, L.L.C.,
By: /S/ XXXXXX X. XXXXXXXXX, XX.
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
A Managing Member
ALBION ALLIANCE MEZZANINE FUND I, L.P.
By: Albion Alliance, LLC, its
General Partner
By: /S/ XXXXX X. XXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
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ALBION ALLIANCE MEZZANINE FUND II, L.P
By: AA MEZZ II GP, LLC, its
General Partner
By: Albion Alliance, LLC, its
General Partner
By: /S/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES
By:/s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Investment Officer
FLEET CORPORATE FINANCE, INC.
By:/s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
CITIZENS CAPITAL INC.
By:/S/ XXXXXXX XXXXX
Name: Xxxxxxx Xxxxx
Title: Director
AEROSPACE RIVET
MANUFACTURERS CORPORATION
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
ELECTRONIC CONNECTIONS AND
ASSEMBLIES, INC.
By: /S/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
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XXXXXXX RING & WASHER, INC
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
NORCO, INC.
By: /S/ XXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
PALNUT FASTENERS, INC.
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
RANCHO TRANSTECHNOLOGY
CORPORATION
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
RETAINERS, INC.
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
XXXXXX, INC.
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
SSP INDUSTRIES
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
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SSP INTERNATIONAL SALES, INC.
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
TCR CORPORATION
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
TRANSTECHNOLOGY ACQUISITION CORPORATION
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
TRANSTECHNOLOGY XXXXXX INC.
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
TRANSTECHNOLOGY SYSTEMS
& SERVICES, INC.
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
TRANSTECHNOLOGY ENGINEERED
COMPONENTS, LLC
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
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TRANSTECHNOLOGY ENGINEERED
RINGS USA, INC.
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
TRANSTECHNOLOGY INTERNATIONAL
CORPORATION
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
TRANSTECHNOLOGY CANADA CORPORATION
By: /S/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
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