EXHIBIT 10(z)
AMENDMENT TO LOAN AGREEMENT
This AMENDMENT TO LOAN AGREEMENT (together with all amendments and
modifications hereto, the "Agreement)", dated as of October 26th, 1995, is by
and among FIRST FIDELITY BANK, N.A., a national banking association with offices
located at Broad and Walnut Streets, Philadelphia, PA 19109-1199 (the "Bank"),
CENTRAL SPRINKLER COMPANY, a Pennsylvania business corporation with offices
located at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000 (the "Borrower"), CENTRAL
SPRINKLER CORPORATION, a Pennsylvania business corporation with offices located
at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("Corporation"), and CENTRAL
SPRINK, INC., a California business corporation with offices located at 000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("Sprink", and together with
Corporation, the "Guarantors", and together with the Borrower, the "Obligors").
Background
A. The Bank, the Guarantors, and the Borrower entered into that certain
loan agreement, dated as of April 15, 1994 (together with all amendments and
modifications thereto, the "Loan Agreement"), pursuant to which the Bank agreed
to make available to the Borrower a term loan in the original principal amount
of $10,000,000.00 (the "Loan").
B. In connection with the Loan Agreement and in order to evidence the
Loan, the Borrower executed and delivered to the Bank that certain Term Loan
Note, dated as of April 15, 1994 (together with all amendments and modifications
thereto, the "Note"), in favor of the Bank in the original principal amount of
$10,000,000.00.
C. In connection with the execution and delivery of the Loan Agreement
and the Note and in order to secure the prompt payment and performance of the
Borrower's obligations thereunder, Corporation executed and delivered to the
Bank that certain Guaranty, dated as of April 15, 1994 (together with all
amendments and modifications thereto, "Corporation Guaranty").
D. In connection with the execution and delivery of the Loan Agreement
and the Note and in order to secure the prompt payment and performance of the
Borrower's obligations thereunder, Sprink executed and delivered to the Bank
that certain Guaranty, dated as of April 15, 1994 (together with all amendments
and modifications thereto, "Sprink Guaranty", and together with Corporation
Guaranty, the "Guarantees").
E. The Loan Agreement, the Note, the Guarantees, and all of the
documents, instruments and agreements executed and delivered in connection
therewith, together with all amendments and modifications thereto, shall be
referred to hereinafter as the "Loan Documents".
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F. The Bank, the Borrower, and the Guarantors, pursuant to the terms
hereof, wish to amend certain of the terms of the Loan Documents.
NOW THEREFORE, incorporating the foregoing Background herein by
reference and for other good and valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. Defined Terms. Terms used herein which are capitalized but not
defined herein shall have the meanings ascribed to such terms in the Loan
Agreement.
2. Amendments.
(a) The defined term "Consolidated Funded Indebtedness" contained
in Section 1.01 of the Loan Agreement is hereby amended and restated in its
entirety as follows:
"Consolidated Funded Indebtedness" means all obligations of the
Company for borrowed money, including, without limitation (and without
duplication): (a) all obligations, contingent or otherwise, of the
Company in connection with all letter of credit facilities (whether or
not drawn), acceptance facilities, or other similar facilities issued
for the account of the Company; (b) all obligations of the Company
evidenced by bonds, debentures, or other similar instruments; (c) all
indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by the
Company; (d) all capital lease obligations of the Company; (e) all
guarantees, endorsements (other than for collection or deposit in the
ordinary course of business); and (f) all debt referred to in clause
(a) through (e) above secured by (or for which the holder of such debt
has existing rights, contingent or otherwise, to be secured by) any
lien, security interest, or other charge or encumbrance upon or in
property (including, without limitation, accounts and contract rights)
owned by such person; provided, however that: (i) trade indebtedness,
tax and other accruals, and deferred compensation occurring in the
ordinary course of the Company's business shall be specifically
excluded from the foregoing definition; and (ii) the greater of: (A)
the aggregate outstanding amount of indebtedness under the bonds
referred to in Section 5.12(i), and (B) the maximum aggregate amount of
indebtedness for which Central Castings Corporation, the Company or the
Guarantors is obligated under the letters of credit which secure such
bonds, shall be used for purposes of calculation Consolidated Funded
Indebtedness.
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(b) Section 5.11 of the Loan Agreement is hereby amended by: (i)
deleting the word "or" which appears at the end of Subsection (h) thereof; (ii)
deleting the period at the end of subsection (i) thereof; and (iii) substituting
the following for the period deleted pursuant to clause (ii) above:
; or
(j) Liens created to secure indebtedness permitted pursuant to
Section 5.12(i) hereof.
(c) Section 5.12(h) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
(h) indebtedness under unsecured lines of credit, provided that
such indebtedness shall not exceed $40,000,000 in the aggregate at any
time; and
(d) Section 5.12 of the Loan Agreement is hereby amended by adding
a new subsection (i) which states as follows:
(i) Central Castings Corporation, a Subsidiary of the Company,
shall be permitted to obtain up to approximately $11,440,000 of
financing for the acquisition and improvement of certain foundry assets
located in Xxxxxxx County, Alabama, through the issuance of industrial
revenue bonds supported by a letter or letters of credit issued by the
Bank, subject to the agreement of Central Castings Corporation (which
obligation shall be guaranteed by the Company and the Guarantors), to
reimburse the Bank for any and all draws under such letter(s) of
credit.
(e) Section 5.13 of the Loan Agreement is hereby amended by: (i)
deleting the word "and" which appears at the end of Subsection (d) thereof; (ii)
deleting the period at the end of subsection (e) thereof; and (iii) substituting
the following for the period deleted pursuant to clause (ii) above:
; and
(f) guarantees of the indebtedness permitted pursuant to Section
5.12(i) hereof.
3. Conditions Precedent. The effectiveness of this Agreement and the
Bank's obligations hereunder are conditioned upon the satisfaction of the
following conditions precedent:
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(a) The Obligors shall have delivered to the Bank this Agreement
duly executed by each of the Obligors.
(b) All proceedings required to be taken by the Obligors in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Bank and its counsel, and the Bank
shall have received all such counterpart originals or certified or other copies
of such documents as the Bank may reasonably request.
(d) The Obligors shall have executed and delivered to the Bank such
other documents, instruments and agreements as the Bank may reasonably request.
4. Representations and Warranties. In order to induce the Bank to enter
into this Agreement, the Obligors hereby represent and warrant to the Bank as
follows:
(a) The representations and warranties contained in the Loan
Documents are true and correct on and as of the date of this Agreement and after
giving effect hereto, no Event of Default will be in existence or will occur as
a result of giving effect hereto.
(b) The execution, delivery and performance of this Agreement will
not violate any provision of any law or regulation or of any writ or decree of
any court or governmental instrumentality, or any of the Obligors' certificate
or articles of incorporation, by-laws, or other similar organizational
documents.
(c) Each of the Obligors has the power to execute, deliver and
perform this Agreement and each of the documents, instruments and agreements to
be executed and/or delivered in connection herewith and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement
and each of the documents, instruments and agreements executed and/or delivered
in connection herewith and the performance of the Loan Agreement as amended
hereby.
(d) The execution, delivery and performance of this Agreement and
each of the documents, instruments and agreements to be executed and/or
delivered in connection herewith does not require the consent of any other party
or the consent, license, approval or authorization of, or registration or
declaration with, any governmental body, authority, bureau or agency and the
Loan Documents, this Agreement and each of the documents, instruments and
agreements executed and/or delivered in connection herewith constitute legal,
valid and binding obligations of each of the Obligors, enforceable in accordance
with their respective terms, subject to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and except as enforcement may be subject to general equitable principles.
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5. Reaffirmation. Except as amended hereby, all of the terms, covenants
and conditions of the Loan Agreement and each of the other Loan Documents
(including, but not limited to, provisions relating to any authority granted to
the Bank to confess judgment against the Borrower and any waiver of the right to
trial by jury, if any) are ratified, reaffirmed and confirmed and shall continue
in full force and effect as therein written and are not intended to be
re-enacted as of the above date, but rather to be effective as of the original
date of such documents. Each of the Guarantors hereby reaffirms and ratifies all
of the terms, covenants, and conditions contained in each of their respective
Guarantees and confirms that such Guarantees are binding and enforceable against
the Guarantors as if such Guarantees had been executed as of the date hereof.
6. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Obligors and the Bank and their respective successors and
assigns; provided, however, that the Obligors may not assign any of their
rights, nor delegate any of their obligations, under this Agreement without the
prior written consent of the Bank and any purported assignment or delegation
absent such consent shall be void. The Bank may at any time assign or otherwise
transfer (by participation or otherwise) any or all of its rights, or delegate
any or all of its obligations, hereunder.
7. Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts and by the different parties on separate counterparts.
Each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute one and the same agreement. This
Agreement shall be deemed to have been executed and delivered when the Bank has
received counterparts hereof executed by all parties listed on the signature
page(s) hereto.
8. Amendment and Waiver. No amendment of this Agreement, and no waiver
of any one or more of the provisions hereof shall be effective unless set forth
in a writing and signed by the parties hereto.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Pennsylvania without
reference to conflict of law principles.
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10. Severability. Any provision of this Agreement that is held to be
inoperative, unenforceable, voidable or invalid in any jurisdiction shall, as to
that jurisdiction, be ineffective, unenforceable, void or invalid without
affecting the remaining provisions in that or any other jurisdiction, and to
this end the provisions of this Agreement are declared to be severable.
11. Judicial Proceedings. Each party to this Agreement agrees that any
suit, action or proceeding, whether claim or counterclaim, brought or instituted
by any party hereto or any successor or assign of any party, on or with respect
to this Agreement, the documents, instruments and agreements executed in
connection herewith, the Loan Documents or the dealings of the parties with
respect hereto and thereto, shall be tried only by a court and not by a jury.
EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. Further, each party waives
any right it may have to claim or recover, in any such suit, action or
proceeding, any special, exemplary, punitive or consequential damages or damages
other than, or in addition to, actual damages. THE OBLIGORS ACKNOWLEDGE AND
AGREE THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND
THAT THE BANK WOULD NOT ENTER INTO THIS AGREEMENT IF THE WAIVERS SET FORTH IN
THIS SECTION WERE NOT A PART OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
ATTEST: CENTRAL SPRINKLER COMPANY
By: /s/Xxxx X. Xxxxxx By: /s/Xxxxxx X. Xxxxx
---------------------------- ----------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Secretary Title: V.P. - Finance
ATTEST: CENTRAL SPRINKLER CORPORATION
By: /s/Xxxx X. Xxxxxx By: /s/Xxxxxx X. Xxxxx
---------------------------- ----------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Secretary Title: V.P. - Finance
ATTEST: CENTRAL SPRINK, INC.
By: /s/Xxxx X. Xxxxxx By: /s/Xxxxxx X. Xxxxx
---------------------------- ----------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Secretary Title: V.P. - Finance
FIRST FIDELITY BANK, N.A.
By:
----------------------------------
Name:
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AMENDMENT TO LOAN AGREEMENT
---------------------------
THIS AMENDMENT TO LOAN AGREEMENT (this "Amendment") made as of March
31, 1995 by and among FIRST FIDELITY BANK, NATIONAL ASSOCIATION (the "Bank") and
CENTRAL SPRINKLER COMPANY, a Pennsylvania corporation (the "Company"), CENTRAL
SPRINKLER CORPORATION, a Pennsylvania corporation ("Parent") and CENTRAL SPRINK,
INC., a California corporation ("CSI; Parent and CSI being hereinafter referred
to collectively as "Guarantors").
BACKGROUND
----------
A. The Company, the Guarantors and the Bank are parties to a loan
agreement dated as of April 15, 1994 (together with all amendments and
modifications thereto, the "Loan Agreement"), pursuant to which the Bank has
made a $10,000,000 term loan to the Company which is guaranteed by each
Guarantor pursuant to a guaranty agreement in favor of the Bank dated April 15,
1994 (together with all amendments and modifications thereto, the "Guaranty
Agreements").
B. Pursuant to the terms hereof, the Company and the Bank have agreed
to modify the terms of the Loan Agreement on the terms and subject to the
conditions set forth herein, and the Guarantors have agreed to ratify and
confirm the Guaranty Agreements.
C. Any capitalized terms used in this Amendment which are not defined
herein, but which are defined in the Loan Agreement, shall have the meanings
given to those terms in the Loan Agreement. The term "Loan Documents" as used in
the Loan Agreement shall be deemed to include this Amendment and the
Subordination Agreement (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual promises contained
herein and intending to be legally bound, the parties hereto covenant and agree
as set forth below.
1. Amendments.
(a) The definition of "Subsidiary" in Section 1.01 of the Loan
Agreement is hereby amended and restated to read in its entirety as follows:
"Subsidiary" means, as to any designated corporation, any
other corporation the shares of stock of which, having ordinary
voting power (other than stock having such power only by reason
of the happening of a contingency) to elect a majority of the
board of directors or other managers of such other corporation,
are at the time owned, or the management of which is otherwise
controlled by the designated corporation, directly or indirectly
through one or more intermediaries or both."
(b) The first paragraph of Section 5.12 of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
"5.12 Neither the Company nor any Guarantor will, or will
permit any Subsidiary of the Company or any Subsidiary of any
Guarantor to, incur, create or permit to exist any Consolidated
Funded Indebtedness, without the prior written consent of the
Bank, except that the Company and the Guarantors may incur,
create or permit to exist the following:"
(c) The first paragraph of Section 5.13 of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
"Neither the Company nor any Guarantor will, or will permit
any Subsidiary of the Company or any Subsidiary of any Guarantor
to, guarantee or otherwise become liable or responsible for
Consolidated Funded Indebtedness or other obligations of any
other Person, contingent or otherwise, without the written
consent of the Bank, except that the Company and the Guarantors
may incur, create or permit to exist the following:"
(d) Section 5.15, 5.16, 5.17 and 5.18 of the Loan Agreement are
hereby amended and restated in their entirety to read as follows:
"5.15. The Parent and its consolidated Subsidiaries will
maintain a consolidated Tangible Net Worth of at least
$37,000,000 at March 31, 1995, June 30, 1995, and September 30,
1995 and $41,000,000 at December 31, 1995 and at the end of each
fiscal quarter thereafter, to be tested in connection with the
delivery of quarterly financial statements pursuant to Section
5.01.
5.16. The Parent and its consolidated Subsidiaries will
maintain a ratio of consolidated current assets to consolidated
current liabilities not less than 1.3 to 1.0 at March 31, 1995,
June 30, 1995, and September 30, 1995; 1.5 to 1.0 at December 31,
1995, March 31, 1996, June 30, 1996, and September 30, 1996; and
1.75 to 1.0 at December 31, 1996 and at the end of each fiscal
quarter thereafter, to be tested in connection with the delivery
of quarterly financial statements pursuant to Section 5.01.
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5.17. The Parent and its consolidated Subsidiaries will
maintain at all times (a) a ratio of (i) cash, Investments and
accounts receivable to (ii) current liabilities not less than 0.7
to 1.0 at March 31, 1995, June 30, 1995 and September 30, 1995,
and 0.87 to 1.0 at December 31, 1995 at the end of each fiscal
quarter thereafter, and (b) cash and Investments in an amount not
less than $5,000,000, to be tested on a quarterly basis in
connection with the delivery of financial statements pursuant to
Section 5.01.
5.18 The Parent and its consolidated Subsidiaries will
maintain a ratio of (a) Consolidated Funded Indebtedness, to (b)
consolidated Tangible Net Worth not greater than 1.5 to 1.0 at
March 31, 1995, June 30, 1995, and September 30, 1995; 1.37 to
1.0 at December 31, 1995, March 31, 1996, June 30, 1996 and
September 30, 1996; and 1.2 to 1.0 at December 31, 1996 and at
the end of each fiscal quarter thereafter, to be tested in
connection with the delivery of quarterly financial statements
pursuant to Section 5.01."
(e) In addition to the Indebtedness permitted pursuant to Section
5.12 of the Loan Agreement, the Bank hereby approves the borrowing by the
Company of $11,750,000 from its affiliate, CSC Finance Company, which is
evidenced by a promissory note, a copy of which is attached hereto as Exhibit
"A" (the "Finance Note"), provided that the indebtedness of the Company under
the Finance Note shall at all time be unsecured and shall be subordinated to the
indebtedness of the Company to the Bank under the Loan Agreement pursuant to a
subordination agreement in the form attached hereto as Exhibit "B" (the
"Subordination Agreement").
(f) In addition to the Indebtedness permitted pursuant to Section
5.12 of the Loan Agreement and the Liens permitted pursuant to Section 5.11 of
the Loan Agreement, the Company's wholly-owned Subsidiary, Central Castings
Corporation, an Alabama corporation, shall be permitted to obtain up to
$10,000,000 of financing for the acquisition of and improvement of certain
foundry assets in Xxxxxxx County, Alabama, through the issuance of industrial
revenue bonds supported by a letter of credit issued by the Bank (with another
participating financial institution), subject to the agreement of Central
Castings Corporation (guaranteed by the Company, the Parent and CSI), to
reimburse the Bank for all draws under such letter of credit.
2. Representations and Warranties. In order to induce the Bank to
execute this Amendment, the Company makes the following representations and
warranties to the Bank:
(a) Upon the effectiveness of this Amendment, there will be no
Default or Event of Default existing under the Loan Agreement;
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(b) The Company has the power and authority to execute and deliver
this Amendment and has taken all necessary action to authorize the execution,
delivery and performance thereof; and
(c) The Loan Agreement, as modified and amended by this Amendment,
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency or other laws of general application relating to or
affecting the enforcement of creditors' rights and except as enforcement is
subject to general equitable principles.
3. Conditions. Prior to or concurrently with the execution of this
Amendment, the Company shall deliver to the Bank the Subordination Agreement
duly executed by the Company and CSC Finance Company. In addition, within ten
(10) Business Days after the date of this Amendment, the Company shall deliver
to the Bank the following in form and substance satisfactory to the Bank:
(a) copies of the resolutions of the Board of Directors of the
Company and each Guarantor authorizing the Company's and each Guarantor's
execution and delivery of this Amendment, the performance of the transactions
contemplated hereby and thereby, and all such other and further actions in
connection herewith as may be necessary and proper, which copies shall be
certified as of the date hereof, by the Company's and each Guarantor's secretary
or assistant secretary as being true, correct and complete;
(b) certificate, as of the date hereof, by the Company's and each
Guarantor's secretary or assistant secretary as to the incumbency and signatures
of the officers signing this Amendment; and
(c) the items required under (a) and (b) above with respect to the
execution of the Subordination Agreement by CSC Finance Company.
4. Ratification and Confirmation. Except as amended hereby, the
Company ratifies and confirms all of the terms and provisions of the Loan
Agreement and the documents executed by the Company in accordance therewith, all
of which shall remain in full force and effect. The Guarantors, by executing
this Amendment below, hereby ratify and confirm the Guaranty dated April 15,
1994 executed by a each of them in favor of the Bank with respect to the Loan
Agreement as amended by this Amendment.
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5. Miscellaneous.
(a) Expenses. The Company agrees to pay all out-of-pocket costs
and expenses of the Bank, including, without limitation, all attorneys' fees and
expenses in connection with the negotiation and preparation of this Amendment
and the completion of the transactions contemplated hereby.
(b) Binding Effect. This Amendment shall be binding upon and shall
inure to the benefit of the Bank, the Company and the Guarantors, and their
respective successors and assigns, subject, however, to the restrictions set
forth in Section 8.06 of the Loan Agreement.
(c) Counterparts. This Amendment may be executed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument, but all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their authorized officers as of the day and year first above
written.
ATTEST CENTRAL SPRINKLER COMPANY
/s/Xxxxxxx X. Xxxx By: /s/Xxxxxx X. Xxxxx
---------------------------- ----------------------------------
Name: Xxxxxx X. Xxxxx
Title: V.P. Finance
ATTEST CENTRAL SPRINKLER CORPORATION, as
Guarantor
/s/Xxxxxxx X. Xxxx By: /s/Xxxxxx X. Xxxxx
---------------------------- ----------------------------------
Name: Xxxxxx X. Xxxxx
Title: V.P. Finance
ATTEST CENTRAL SPRINK, INC., as
Guarantor
/s/Xxxxxxx X. Xxxx By: /s/Xxxxxx X. Xxxxx
---------------------------- ----------------------------------
Name: Xxxxxx X. Xxxxx
Title: V.P.
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION
By:
----------------------------------
Name:
Title:
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EXHIBIT A
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$11,750,000.00 December 21, 1994
FOR VALUE RECEIVED, Central Sprinkler Company, a Pennsylvania
corporation ("Maker"), hereby promises to pay to the order of CSC Finance
Company, a Delaware corporation ("Payee"), the amount of ELEVEN MILLION SEVEN
HUNDRED FIFTY THOUSAND DOLLARS ($11,750,000), with interest thereon at the rate
per annum equal to the prime rate charged by CoreStates Bank, N.A. or its
successor.
Interest accruing on this Note shall be paid quarterly in arrears
beginning January 31, 1995. The principal amount of this Note, together with all
interest that has then accrued thereon, shall be payable ON DEMAND upon the
holder of this Note providing the Maker fifteen days' written notice.
This Note may be prepaid in whole or in part at any time and from time
to time without premium or penalty.
Payment received hereunder shall be applied first to the payment of
interest and then to the payment of principal, unless otherwise agreed by the
holder of this Note.
Both principal and interest payments shall be made in lawful money of
the United States at such place as the holder of this Note may from time to time
direct.
This Note may be assigned by Payee or any subsequent holder hereof at
any time.
In addition to and not in limitation of the foregoing, Maker further
agrees, subject only to any limitation imposed by applicable law, to pay all
expenses, including reasonable attorneys' fees and legal expenses, incurred by
the holder of this Note in endeavoring to collect any amounts payable hereunder
which are not paid when due.
Presentment for payment, demand, protest, dishonor and notice of
dishonor are hereby waived.
This Note shall be governed by and construed and enforced in accordance
with the laws of Delaware.
CENTRAL SPRINKLER COMPANY
Attest:
By: /s/Xxxxxx X. Xxxxxxxxx By: /s/Xxxxxx X. Xxxxx
----------------------------- --------------------------
Title: Assistant Secretary Title: President
EXHIBIT B
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SUBORDINATION AGREEMENT
-----------------------
THIS SUBORDINATION AGREEMENT, dated as of March 31, 1995, is among
CENTRAL SPRINKLER COMPANY, a Pennsylvania corporation (the "Borrower"),
FIRST FIDELITY BANK, NATIONAL ASSOCIATION, a national banking association (the
"Bank"), and CSC FINANCE COMPANY, a Delaware corporation ("Subordinated
Creditor").
BACKGROUND
----------
WHEREAS, the Bank and the Borrower are parties to a Loan Agreement,
dated as of April 15, 1994 (together with all amendments and modifications
thereto, the "Loan Agreement"), providing, subject to the terms and conditions
thereof, for a loan made by the Bank to the Borrower in the amount of
$10,000,000 (the "Loan"), which indebtedness is further evidenced by a Term
Loan Note in the principal amount of $10,000,000 dated April 15, 1994 (the
"Note"); and
WHEREAS, except as otherwise herein expressly provided terms defined
in the Note and Loan Agreement and used herein shall have the same meaning
when used herein; and
WHEREAS, the Bank has agreed to enter into that certain amendment to
Loan Agreement dated as of the date hereof and to continue the extension of
credit provided for in the Loan Agreement, and the Subordinated Creditor has
agreed as required by the Loan Agreement to subordinate the Subordinated Debt
to the Bank Debt (as each of such terms is hereinafter defined) in the manner
and to the extent hereinafter provided.
NOW, THEREFORE, incorporating the foregoing by reference, and for
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Subordination. The Subordinated Creditor hereby agrees that, except
as and to the extent hereinafter provided, all Subordinated Debt is and shall
be subordinate and subject in right of payment to the prior payment in full of
the following obligations to the Bank (all such obligations to the Bank being
referred to herein as the "Bank Debt"): (i) the Loan and other obligations of
the Borrower to the Bank under the Loan Agreement and the Note, and (ii) all
reimbursement obligations of Central Castings Corporation, a wholly-owned
subsidiary of the Borrower, and the Borrower, with respect to any letter of
credit which may be issued by the Bank to support a bond issue, including,
without limitation, all obligations of the Borrower or Central Castings
Corporation in respect of interest, fees and/or expenses accruing before or
after the commencement of any bankruptcy, insolvency, or similar proceedings
with respect to the Borrower or Central Castings Corporation. The Subordinated
Creditor further agrees that it will not ask, demand, xxx for, take or receive
from the Borrower, or from any guarantor or surety of the Subordinated Debt or
any portion thereof, by set-off or in any other manner, payment of, and the
Borrower hereby agres that it will not pay or give, the whole or any part of the
Subordinated Debt, or any security therefor, unless or until all the Bank Debt
shall have been fully paid. The Subordinated Creditor hereby directs the
Borrower to, and the Borrower agrees that it will, make such prior payment of
the Bank Debt to Bank. As used herein, "Subordinated Debt" shall mean all
obligations for borrowed money of the Borrower or any subsidiary or affiliate
thereof to the Subordinated Creditor, whether now existing or hereafter
arising, including without limitation, all such obligations in respect of (1)
the note dated December 21, 1994 payable by the Borrower to the Subordinated
Creditor in the amount of $11,750,000 and any documents in connection therewith
between the Borrower and the Subordinated Creditor (the "Subordinated Note");
(ii) interest accruing on any such obligations before or after the commencement
of any bankruptcy, insolvency, or similar proceeding with respect to the
Borrower. The obligations of the Borrower to the Subordinated Creditor shall
remain Subordinated Debt notwithstanding any increase or decrease in the Bank
Debt. Subordinated Debt shall include any obligations of the Borrower to the
Subordinated Creditor which are modifications, renewals or refinancings of
obligations which constitute Debt.
2. Payments Permitted on Subordinated Debt. Anything in this
Subordination Agreement to the contrary notwithstanding, the Borrower may make
the following payments on the Subordinated Note: regularly scheduled payments of
interest not in excess of the rate presently provided for in the Subordinated
Note so long as no Event of Default, as defined in the Note or the Loan
Agreement, has occurred, will occur with the passage of time or giving of notice
or both.
Except as provided in this Paragraph 2, the Borrower shall make no
other or additional payments on the Subordinated Debt.
3. Liens and Security Interests. The Borrower and the Subordinated
Creditor represent, warrant and covenant that the Subordinated Debt is unsecured
and shall at all times remain unsecured.
4. Distributions. In furtherance of, and to make effective, the
subordination provided for herein, the Subordinated Creditor further agrees as
follows:
(a) In the event of any distribution, division, or application, partial
or complete, voluntary or involuntary, by operation of law or otherwise, of all
or any part of the assets of the Borrower or the proceeds thereof, to creditors
of the Borrower, or upon any indebtedness of the Borrower, by reason of the
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liquidation, dissolution or other winding up, partial or complete, of the
Borrower or its business, or any sale, receivership, insolvency or bankruptcy
proceedings, or assignment for the benefit of creditors, or any proceeding by or
against the Borrower for any relief under any bankruptcy or insolvency law or
laws related to the relief of debtors, the adjustment of indebtedness,
arrangements, reorganizations, compositions, or extensions, then and in any such
event:
(1) Any payment or distribution of any kind or character, whether in
cash, securities or any other property which but for this Subordination
Agreement would be payable or deliverable upon or with respect to any or all of
the Subordinated Debt, shall instead be paid or delivered directly to Bank for
application on the Bank Debt, whether then due or not due, until the Bank Debt
shall have first been fully paid and satisfied; and
(2) The Subordinated Creditor hereby irrevocably authorizes and
empowers Bank to take any and all actions necessary or appropriate, in its name
or in the name of the Subordinated Creditor, to enforce any and all claims upon
or with respect to the Subordinated Debt, including without limitation, voting
claims and filing appropriate proof of claims, and to demand, xxx for, collect
and receive any and all payments or distributions that may be payable or
deliverable at any time upon or with respect to the Subordinated Debt.
Notwithstanding the foregoing, this provision shall not serve to impose any
affirmative obligation on the part of the Bank or its successors and assigns to
take any action or pursue any claim on behalf of the Subordinated Creditor.
Subordinated Creditor shall not attempt to hold the Bank liable and hereby
waives any claims or cause of action it may otherwise have against the Bank as a
result of any action taken or not taken by the Bank to enforce any and all
claims in respect of the Subordinated Debt.
(b) Should any payment not permitted under Section 2 hereof or
distribution of security or proceeds of any security by received by the
Subordinated Creditor upon or in respect of the Subordinated Debt prior to the
payment in full of the Bank Debt, the Subordinated Creditor will forthwith
deliver the same to Bank in precisely the form received (except for the
endorsement or assignment of the Subordinated Creditor where necessary) for
application on the Bank Debt, whether then due or not due, and, until so
delivered, the same shall be held in trust by the Subordinated Creditor as
property of Bank. In the event of the failure of the Subordinated Creditor to
make any such endorsement or assignment, Bank, or any of its officers or
employees, are hereby irrevocably appointed as attorney-in-fact for Subordinated
Creditor and is authorized to make such endorsement or assignment on behalf of
Subordinated Creditor.
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(c) The Subordinated Creditor agrees that it will not transfer, assign,
pledge or encumber the Subordinated Debt or any part thereof or any instrument
evidencing the same unless such instruments evidencing the same and the
instrument of assignment specifically provide that the holder or assignee takes
the Subordinated Debt subject to the provisions of this Subordination Agreement.
5. Continuing Subordination, etc. The subordination effected by this
Subordination Agreement is a continuing subordination, and the Subordinated
Creditor hereby agrees that at any time and from time to time, without notice to
and without impairing or affecting the subordination provisions of this
Subordination Agreement or the obligations of the Subordinated Creditor
hereunder:
(a) The time for the Borrower's performance of or compliance with any
of its obligations, covenants or agreements contained in the Note, the Loan
Agreement and any other documents provided for thereby may be extended or such
performance or compliance may be waived by Bank;
(b) Any of the acts mentioned in the Note, the Loan Agreement and any
other documents provided for thereby may be done;
(c) The Note, the Loan Agreement and any other documents provided for
thereby may be amended for the purpose of adding any provisions thereto or
changing in any manner the rights of Bank or the Borrower thereunder;
(d) Payment of the Bank Debt or any portion thereof may be extended or
the Note may be renewed in whole or in part; and
(e) The maturity of any of the Bank Debt may be accelerated, and any
collateral security, guarantee or surety therefor may be exchanged, sold,
surrendered, released, modified or otherwise dealt with in accordance with the
terms of any present or future agreement between the Borrower or any guarantor
or surety and Bank, including any agreement permitting the Bank to take
unilateral action with respect thereto; and
(f) The amount of the Bank Debt to which the Subordinated Debt is
subordinated may be increased.
6. Waiver of Notice. The Subordinated Creditor hereby unconditionally
waives notice of the incurring of the Bank Debt or any part thereof in reliance
by the Bank upon the subordination of the Subordinated Debt to the Bank Debt.
7. Representations and Warranties. The Subordinated Creditor hereby
represents and warrants that: (i) it has the necessary power and capacity to
make and perform this Subordination Agreement and such making and performance
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have been duly authorized by all necessary action on the part of the
Subordinated Creditor; (ii) the making and performance by the Subordinated
Creditor of this Subordination Agreement does not and will not violate any
provision of law or regulation or result in the breach of, or constitute a
default or require any consent under, or result in the creation of any lien,
charge or encumbrance upon any of its properties, revenues or assets pursuant to
any indenture or other agreement or instrument to which it is a party or by
which any of its properties xxx be bound; and (iii) this Subordination Agreement
is the legal, valid and binding obligation of the Subordinated Creditor in
accordance with its terms.
8. Default under Agreement. In the event of a breach of this Agreement
by the Borrower or the Subordinated Creditor, the Bank, at its option, may
accelerate the maturity of any or all of the Bank Debt.
9. No Waiver and Counterparts.
(a) No failure on the part of Bank to exercise, no delay in exercising,
and no course of dealing with respect to, any right or remedy hereunder will
operate as a waiver thereof; nor will any single or partial exercise of any
right or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right or remedy. This Subordination Agreement may not be
amended or modified except by written agreement of the Subordinated Creditor,
the Borrower and the Bank. No consent or waiver hereunder shall be valid unless
in writing and signed by Bank.
(b) This Subordination Agreement may be executed in any number of
identical counterparts each of which, when executed by one of the parties
hereto, shall be considered to be an original.
10. Successors and Assigns. This Subordination Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto, and their respective heirs, executors,
administrators, successors and assigns.
11. Governing Law. This Subordination Agreement shall be construed in
accordance with and governed by the internal laws of the Commonwealth of
Pennsylvania.
12. Entire Agreement. This subordination Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior and contemporary agreements, commitments and
understandings between the parties with respect to the subject matter hereof.
-5-
13. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceabiality of any other
provision.
14. Notices. Every notice and communication under this Agreement shall
be in writing and shall be given bya either (i) hand-delivry, (ii) first class
mail (postage prepaid), (iii) reliable overnight commercial courier (charges
prepaid), or (iv) telecopy or other means of electronic transmission, if
confirmed promptly bya any of the methods specified in clauses (i), (ii) and
(iii) of this sentence, to the following addresses:
If to the Subordinated Creditor:
CSC Finance Company
0000 X. Xxxxxx Xx., Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Fax: 000-000-0000
If to the Borrower:
Central Sprinkler Company
000 X. Xxxxxx Xxx.
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Fax: 000-000-0000
If to the Bank:
First Fidelity Bank, National Association
Xxxxx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Vice President
Fax: 000-000-0000
Notice given by telecopy or other means of electronic transmission
shall be deemed to have been given and received when sent. Notice by overnight
courier shall be deemed to have been given and received on the date scheduled
for delivery. Notice by mail shall be deemed to have been given and received
three (3) calendar days after the date first deposited in the United States
Mail. Notice by hand delivery shall be deemed to have been given and received
upon delivery.
A party may change its address by giving written notice to the other
parties as specified herein.
IN WITNESS WHEREOF, this Subordination Agreement has been duly
executed as of the day and year first above written.
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CSC FINANCE COMPANY, as
Subordinated Creditor
By: /s/Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
---------------------------
CENTRAL SPRINKLER COMPANY, as
Borrower
By: /s/Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
---------------------------
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
By: /s/Xxxxxx X. Xxxxxxxx
----------------------
Title: Executive V.P.
-------------------
