Exhibit 4.15
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT is dated as of March 13, 1997 and is made
by and among ▇▇▇▇▇ & ▇▇▇▇▇ COMPANY, a Delaware corporation ( the "Borrower"),
and EACH OF THE CORPORATIONS LISTED ON THE ATTACHED SUBSIDIARIES SCHEDULE I
(the "Subsidiaries" being collectively referred to herein together with
Borrower as the "Companies" and individually as a "Company"), and for the
benefit of PNC BANK, NATIONAL ASSOCIATION (the "Lender"). Each capitalized
term used herein shall, unless otherwise defined herein, have the same
meaning given to such term in the Credit Agreement of even date herewith (as
it may hereafter be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement") by and among the Borrower, each of
the Guarantors party thereto (as defined in the Credit Agreement) and the
Lender.
WITNESSETH THAT:
WHEREAS, pursuant to the Credit Agreement, the Lender intends to make or
has made Revolving Credit Loans to the Borrower as provided therein;
WHEREAS, the Companies are now or may hereafter become indebted to each
other (all present and future indebtedness of the Companies to each other,
whether created directly or acquired by assignment or otherwise, and interest
and premiums, if any, thereon and other amounts payable in respect thereof
are hereinafter collectively referred to as the "SUBORDINATED DEBT"); and
WHEREAS, the obligation of the Lender to make Revolving Credit Loans is
subject to the condition, among others, that the Companies subordinate the
Subordinated Debt to the Obligations of the Loan Parties to the Lender
pursuant to the Loan Documents (the "SENIOR DEBT") in the manner set forth
herein.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
covenant and agree as follows:
1. SUBORDINATED DEBT SUBORDINATED TO SENIOR DEBT. The recitals set
forth above are hereby incorporated by reference. All Subordinated Debt
shall be subordinate and subject in right of payment to the prior
indefeasible payment in full of all Senior Debt pursuant to the provisions
contained herein.
2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. Upon any
distribution of assets of any Company (a) in the event of any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation,
reorganization, assignment for the benefit of creditors or other similar case
or proceeding in connection therewith, relative to any such Company or to its
assets, or (b) after the occurrence and during the continuance of an Event of
Default or Potential Default under the Credit Agreement or any liquidation,
dissolution or other winding up of any such Company, whether voluntary or
involuntary and whether or not involving insolvency or
bankruptcy, or (c) in the event of any assignment for the benefit of
creditors or any marshalling of assets and liabilities of any such Company (a
Company distributing assets as set forth herein being referred to in such
capacity as a "DISTRIBUTING COMPANY"), then and in any such event the Lender
shall be entitled to receive indefeasible payment in full of all amounts due
at the time of such event and which are incurred by the Lender thereafter
which are payable by the Borrower under the Credit Agreement(whether or not
an Event of Default has occurred under the terms of the Loan Documents or the
Senior Debt has been declared due and payable prior to the date on which it
would otherwise have become due and payable) on or in respect of any and all
Senior Debt before the holder of any Subordinated Debt owed by the
Distributing Company is entitled to receive any payment on account of the
principal of or interest on such Subordinated Debt, and to that end the
Lender shall be entitled to receive, for application to the payment of the
Senior Debt, any payment or distribution of any kind or character, whether in
cash, property or securities, which may be payable or deliverable in respect
of the Subordinated Debt owed by the Distributing Company in any such case,
proceeding, dissolution, liquidation or other winding up or event.
3. NO COMMENCEMENT OF ANY PROCEEDING. Each Company agrees that, so
long as the Senior Debt shall remain unpaid, it will not commence, or join
with any creditor other than the Lender in commencing, any collection or
enforcement proceeding against any other Company, including, but not limited
to, those described in Section 2 hereof, or any other enforcement action of
any kind against any Company in respect of the Subordinated Debt.
4. PRIOR PAYMENT OF SENIOR DEBT UPON ACCELERATION OF SUBORDINATED
DEBT. If any portion of the Subordinated Debt owed by any Company becomes or
is declared due and payable before its stated maturity based upon a defualt
or an event of default under any loan document evidencing the Subordinated
Debt, then and in such event the Lender shall be entitled to receive
indefeasible payment in full of all amounts due and to become due on or in
respect of the Senior Debt (whether or not an Event of Default has occurred
under the terms of the Credit Agreement or the Senior Debt has been declared
due and payable prior to the date on which it would otherwise have become due
and payable) before the holder of any such Subordinated Debt is entitled to
receive any payment thereon.
5. NO PAYMENT WHEN SENIOR DEBT IN DEFAULT. If any Event of Default
under the Credit Agreement shall have occurred and be continuing or such an
Event of Default would result from or exist after giving effect to a payment
with respect to any portion of the Subordinated Debt, unless the Lender shall
have consented to or waived the same, so long as any of the Senior Debt shall
remain outstanding, no payment shall be made by the Company owing such
Subordinated Debt on account of principal or interest on any portion of the
Subordinated Debt.
6. PAYMENT PERMITTED IF NO DEFAULT. Nothing contained in this
Agreement shall prevent any of the Companies, at any time, except during the
pendency of any of the conditions described in Sections 2, 4 and 5, from
making the regularly scheduled payments of the Subordinated Debt, or the
retention thereof by any of the Companies of any money deposited with it for
the regularly scheduled payments of or on account of the Subordinated Debt.
-2-
7. RECEIPT OF PROHIBITED PAYMENTS. If, notwithstanding the foregoing
provisions of Sections 2, 4, 5 and 6, a Company which is owed Subordinated
Debt by a Distributing Company shall have received any payment or
distribution of assets from the Distributing Company of any kind or
character, whether in cash, property or securities, other than as expressly
permitted by the terms of this Agreement, then and in such event such payment
or distribution shall be held in trust for the benefit of the Lender, shall
be segregated from other funds and property held by such Company, and shall
be forthwith paid over to the Lender in the same form as so received (with
any necessary endorsement) to be applied (in the case of cash) to or held as
collateral (in the case of non-cash property) for the payment or prepayment
of the Senior Debt in accordance with the terms of the Credit Agreement.
8. RIGHTS OF SUBROGATION. Each Company agrees that no payment or
distribution to the Lender pursuant to the provisions of this Agreement shall
entitle the Company to exercise any rights of subrogation in respect thereof
until the Senior Debt shall have been indefeasibly paid in full and the
Commitment under the Credit Agreement shall have terminated.
9. INSTRUMENTS EVIDENCING SUBORDINATED DEBT. At the request of the
Lender, each Company shall cause each instrument which now or hereafter
evidences all or a portion of the Subordinated Debt to be conspicuously
marked as follows:
"This instrument is subject to the terms of a Subordination Agreement
dated as of March 13, 1997, in favor of PNC Bank, National Association,
which Subordination Agreement is incorporated herein by reference.
Notwithstanding any contrary statement contained in the within instrument,
no payment on account of the principal thereof or interest thereon shall
become due or payable except in accordance with the express terms of said
Subordination Agreement."
At the Lender's request, each Company will further ▇▇▇▇ its books of account
in such a reasonable manner as shall be effective to give proper notice to
the effect of this Agreement.
10. AGREEMENT SOLELY TO DEFINE RELATIVE RIGHTS. The purpose of this
Agreement is solely to define the relative rights of the Companies, on the
one hand, and the Lender, on the other hand. Nothing contained in this
Agreement is intended to or shall prevent the Companies from exercising all
remedies otherwise permitted by applicable law upon default under any
agreement pursuant to which the Subordinated Debt is created, subject to
Sections 2, 3, 4, 5 and 6 hereof, including, without limitation, the rights
under this Agreement of the Lender to receive cash, property or securities
otherwise payable or deliverable with respect to the Subordinated Debt.
11. NO IMPLIED WAIVERS OF SUBORDINATION. No right of the Lender to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of any
Company, by any act or failure to act by the Lender, or by any non-compliance
by any Company with the terms, provisions and covenants of any agreement
pursuant to which the Subordinated Debt is created, regardless of any
knowledge thereof the Lender may have or be otherwise charged with. Each
Company by its acceptance hereof agrees that, so long as there is Senior Debt
outstanding or any Commitment is in effect under the Credit Agreement, such
Company shall not agree to sell, assign, pledge, encumber or otherwise
dispose
-3-
of, the obligations of the Subordinated Debt, other than by means of payment
of such Subordinated Debt according to its terms, without the prior written
consent of the Lender.
Without in any way limiting the generality of the foregoing paragraph,
in accordance with the Credit Agreement, the Lender, at any time and from
time to time, without the consent of or notice to the Companies, except to
the extent required by the Credit Agreement or other Loan Documents, without
incurring responsibility to the Companies and without impairing or releasing
the subordination provided in this Agreement or the obligations hereunder of
the Companies to the Lender, may do any one or more of the following: (i)
change the manner, place or terms of payment, or extend the time of payment,
renew or alter the Senior Debt or otherwise amend, restate, supplement or
otherwise modify the Senior Debt or the Credit Agreement; (ii) release any
person liable in any manner for the payment or collection of the Senior Debt;
and (iii) exercise or refrain from exercising any rights against any of the
Companies and any other person or entity.
12. ADDITIONAL SUBSIDIARIES. The Companies covenant and agree that each
of them shall cause any Subsidiary (including, without limitation, each
direct or indirect Subsidiary) which it creates or acquires after the date
hereof to become a party to this Agreement by executing a joinder to this
Agreement in a form of the Guarantor Joinder attached to the Credit Agreement
as Exhibit 1.1(G)(1) promptly after such Company acquires or creates such
Subsidiary.
13. CONTINUING FORCE AND EFFECT. This Agreement shall continue in
force until all of the Senior Debt is indefeasibly paid in full and the
Commitments under the Credit Agreement have terminated, it being contemplated
that this Agreement be of a continuing nature.
14. MODIFICATION, AMENDMENTS OR WAIVERS. Any and all agreements
amending or changing any provision of this Agreement or the rights of the
Lender hereunder, and any and all waivers or consents to any departures from
the due performance of the Companies hereunder shall be made only by written
agreement, waiver or consent signed by the Lender and the Loan Parties.
15. EXPENSES. To the extent set forth in and subject to the Credit
Agreement, the Companies each unconditionally and jointly and severally agree
upon demand to pay to the Lender the amount of any and all reasonable and
necessary out-of-pocket costs, expenses and disbursements, including but not
limited to reasonable fees and expenses of counsel, which may be incurred by
the Lender in connection with (a) the exercise or enforcement of any of the
rights of the Lender hereunder, or (b) the failure by the Companies to
perform or observe any of the provisions hereof.
16. SEVERABILITY. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall,
as to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
-4-
17. GOVERNING LAW. This Agreement shall be a contract under the
internal laws of the Commonwealth of Pennsylvania and for all purposes shall
be construed in accordance with the laws of said Commonwealth without giving
effect to its conflicts of law principles.
18. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of the Lender, and its successors and assigns, and the obligations of the
Companies shall be binding upon their respective successors and assigns. The
duties and obligations of each of the Companies may not be delegated or
transferred by it.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
each of which, when executed and delivered, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
20. ATTORNEYS-IN-FACT. Each Company hereby authorizes and empowers the
Lender, at its election and in the name of either itself, or in the name of
each Company after the occurrence and during the continuance of an Event of
Default, to execute and file proofs and documents and take any other action
the Lender may deem advisable in good faith to enforce the Lender's interests
relating to the Subordinated Debt created hereunder and their right of
enforcement thereof as set forth herein, and to that end the Companies hereby
irrevocably make, constitute and appoint the Lender, its officers, employees
and Lenders, or any of them, with full power of substitution, as the true and
lawful attorney-in-fact and agent of such Company and with full power for
such Company and in the name, place and stead of such Company for the purpose
of carrying out the provisions of this Agreement and taking any action and
executing, delivering, filing and recording any instruments which the Lender
may deem necessary or advisable in good faith to accomplish the purposes
hereof, which power of attorney, being given for security, is coupled with an
interest and irrevocable. Each Company hereby ratifies and confirms and
agrees to ratify and confirm all action taken by the Lender, its officers,
employees or agents pursuant to and in accordance with the foregoing power of
attorney.
21. REMEDIES. In the event of a breach by any of the Companies in the
performance of any of the terms of this Agreement, the Lender may demand
specific performance of this Agreement and seek injunctive relief and may
exercise any other remedy available at law or in equity, it being recognized
that the remedies of the Lender at law may not fully compensate the Lender
for the damages it may suffer in the event of a breach hereof.
22. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. EACH COMPANY HEREBY
IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF THE COURT OF COMMON
PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA AND THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA. EACH COMPANY HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH COMPANY (i) ACKNOWLEDGES
THAT IT HAS BEEN REPRESENTED BY COUNSEL IN CONNECTION WITH THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, (ii)
-5-
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE LENDER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (iii) ACKNOWLEDGES
THAT THE ENTERING INTO OF THE CREDIT AGREEMENT BY THE LENDER HAS BEEN INDUCED
BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS SET FORTH IN THIS
SECTION.
[Signatures Appear on the Next Page.]
-6-
[SIGNATURE PAGE 1 OF 1 TO SUBORDINATION AGREEMENT]
WITNESS the due execution hereof as of the day and year first above written.
▇▇▇▇▇ & ▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and
Chief Financial Officer
EACH OF THE SUBSIDIARIES LISTED
ON THE ATTACHED SCHEDULE I
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and
Chief Financial Officer of each
of the Subsidiaries listed on
Schedule I
-7-