EXHIBIT 10.40
INTERCOMPANY SUBORDINATION AGREEMENT
THIS INTERCOMPANY SUBORDINATION AGREEMENT, made and entered into as of
April 5, 2007 (this "Subordination Agreement"), by and among, TB Wood's
Corporation, a Delaware corporation ("Parent"), TB Wood's Incorporated, a
Pennsylvania corporation ("TBWI"), Plant Engineering Consultants, LLC, a
Tennessee limited liability company ("Plant"), TB Wood's Enterprises, Inc., a
Delaware corporation ("Enterprises", and together with Parent, TBWI and Plant,
the "Subordinating Creditors" and each a "Subordinating Creditor"), and Wells
Fargo Foothill, Inc., a California corporation, as the arranger and
administrative agent (together with any successor(s) thereto in such capacity,
the "Agent") under the Credit Agreement referenced below. Unless otherwise
defined herein, all capitalized terms used herein shall have the respective
meanings assigned to such terms in the Credit Agreement, dated as of April 5,
2007 (as amended, modified, supplemented or restated from time to time, the
"Credit Agreement"), by and among Borrowers, the lenders signatory thereto (the
"Lenders") and Agent.
WITNESSETH:
WHEREAS, Borrowers or Guarantors or any of their respective Restricted
Subsidiaries may have borrowed, or may desire to borrow, certain sums from a
Subordinating Creditor as permitted by the Credit Agreement;
WHEREAS, Borrowers desire to borrow certain sums from the Secured
Parties (as defined herein) pursuant to the Credit Agreement; and
WHEREAS, as a condition to entering into the Credit Agreement, each of
the Subordinating Creditors agrees that any loan extended to Borrowers,
Guarantors, or any of their respective Restricted Subsidiaries (each, an
"Applicable Debtor" and, collectively, the "Applicable Debtors") will be
subordinated to the Senior Debt (as defined herein), as more fully provided in
this Subordination Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each of the Subordinating Creditors hereby agrees with the Secured
Parties as follows:
1. Subordination. Subject to the terms hereof, each of the
Subordinating Creditors hereby subordinates and defers, to the extent and in the
manner set forth herein, the payment (including, without limitation, in any
Insolvency Proceeding (as defined herein)) of any and all Indebtedness which may
be now or hereafter owing by any Applicable Debtor to any such Subordinating
Creditor (whether by reason of subrogation rights of such Subordinating Creditor
or otherwise) as may be evidenced by any promissory notes and/or any other
documents, instruments or agreements now or hereafter executed and delivered by
any Applicable Debtor to any Subordinating Creditor (all such amounts, notes,
documents, instruments, and agreements being hereinafter referred to as the
"Subordinated Debt") to the prior Discharge of Senior Debt (as defined below).
1
"Bankruptcy Code" means the United States Bankruptcy Code, as in
effect from time to time.
"Discharge of Senior Debt" means payment and satisfaction in full in
cash of any and all Senior Debt (as defined below) which may be now or hereafter
owing to any Secured Party (as defined below) by any Applicable Debtor,
including, with respect to amounts available to be drawn under outstanding
letters of credit issued under the Credit Agreement or any other Loan Document
(or indemnities issued pursuant thereto in respect of outstanding letters of
credit), delivery of cash to be held as collateral for such letters of credit or
backstop letters of credit in respect thereof in compliance with the terms of
the Credit Agreement, in each case, after or concurrently with the termination
of the Credit Agreement and the termination of all obligations and commitments
to make loans, advances or otherwise extend credit thereunder.
"Insolvency Proceeding" means any proceeding commenced by or against
any Applicable Debtor under any provision of the Bankruptcy Code or under any
other state or federal bankruptcy or insolvency law, assignments for the benefit
of creditors, formal or informal moratoria, compositions, extensions generally
with creditors, or proceedings seeking reorganization, arrangement, or other
similar relief and including the appointment of a trustee, receiver,
administrative receiver, administrator or similar officer.
"Secured Party" means Agent or any member of the Lender Group.
"Senior Debt", as used herein, shall mean any and all Obligations,
including, without limitation, any and all now existing and future indebtedness,
obligations or liabilities of the Applicable Debtors under the Credit Agreement
to the Secured Parties, whether direct or indirect, absolute or contingent,
secured or unsecured, arising under, or in connection with, the Credit Agreement
or any other Loan Documents (including, without limitation, any guaranty
executed in connection therewith) in favor of the Secured Parties, as each of
the foregoing may be from time to time amended, modified, waived, supplemented,
extended, renewed, deferred, refinanced, replaced, refunded or restated, in
whole or in part, in accordance with the terms and conditions thereof, by
operation of law or otherwise, including any and all expenses (including,
without limitation, reasonable attorneys' fees and disbursements), premiums,
fees and charges incurred in connection therewith and any interest thereon,
including, without limitation, any post-petition interest accruing on such
Senior Debt after any Applicable Debtor becomes subject to an Insolvency
Proceeding (whether or not such interest is allowable or enforceable against
such Applicable Debtor or recoverable against such Applicable Debtor or its
bankruptcy estate), whether by means of an adequate protection payment or
otherwise. For all purposes hereunder, Senior Debt shall also include all
indebtedness, obligations and liabilities of the Applicable Debtors to repay any
amounts previously paid by the Applicable Debtors pursuant to the Credit
Agreement, which amounts have been returned to the Applicable Debtors or to a
trustee by any Secured Party pursuant to Sections 547 or 548 of the Bankruptcy
Code or otherwise under other applicable legislation.
2. Covenants. Without limiting any other provision of this
Subordination Agreement, each of the Subordinating Creditors hereby covenants
and agrees that, until such time as this Subordination Agreement is terminated
as provided herein, such Subordinating Creditor will not, except to the extent
expressly permitted by Sections 8, 9, and 10 hereof, assert
2
any right which it may have to setoff against the Subordinated Debt any amounts
which are or may be owing by such Subordinating Creditor to any Applicable
Debtor, and that until such time as this Subordination Agreement is terminated
as provided herein, and except to the extent expressly permitted by Sections 8,
9, and 10 hereof, such Subordinating Creditor will not directly or indirectly:
(a) demand or receive payment of; exchange, forgive, or modify; request or
obtain collateral or security or guarantees for; or Commence Legal Action (as
defined in Section 11 hereof) in respect of the Subordinated Debt, or (b) sell,
assign, transfer, endorse, pledge, encumber or otherwise dispose of (whether by
means of participation or otherwise) any portion of the Subordinated Debt or any
interest therein to any Person without the prior written consent of the Agent,
it being understood that each such assignee and transferee shall be bound in all
respects by the terms and conditions of this Subordination Agreement.
3. Inducement. This Subordination Agreement is executed as an
inducement to the Secured Parties to make loans or advances to Borrowers or
otherwise to extend credit or financing accommodations to Borrowers, and to
enter into the Loan Documents and to continue a financing arrangement with
Borrowers and is executed in consideration of the Agent and Lenders entering
into the Loan Documents and continuing such financing arrangement.
4. Continuing Agreement. This Subordination Agreement (a) may be
terminated only upon the occurrence of the Discharge of Senior Debt, (b) is a
continuing agreement of subordination, (c) shall be binding upon the
Subordinating Creditors, the Applicable Debtors and their respective successors,
transferees and assigns, and (d) shall inure to the benefit of the Secured
Parties and be enforceable by the Agent, for the benefit of the Secured Parties,
and each their respective successors, transferees and assigns, unless such
successors, assignees and transferees are not parties to the Credit Agreement as
permitted therein. Without limiting the generality of the foregoing, the Secured
Parties may assign or otherwise transfer the Senior Debt to any other Person,
and such other Person shall thereupon become vested with all the rights and
benefits in respect thereof granted to the Secured Parties herein or otherwise,
subject to Section 13.1 of the Credit Agreement. This Subordination Agreement
shall continue to be effective (or, if previously terminated, reinstated), if at
any time any payment of any of the Senior Debt is rescinded or must otherwise be
returned by any Secured Party in connection with any Insolvency Proceeding or
otherwise, all as though such payment had not been made.
5. Rights in Insolvency Proceedings. Each of the Subordinating
Creditors hereby authorizes and empowers the Agent, for the benefit of the
Lenders, in any Insolvency Proceeding to file a proof of claim on behalf of such
Subordinating Creditor with respect to the Subordinated Debt (a) if such
Subordinating Creditor fails to file such proof of claim prior to thirty (30)
days before the expiration of the time period during which such claims must be
submitted, or (b) if the Agent, in its Permitted Discretion, believes that any
statements or assertions in a proof of claim filed by such Subordinating
Creditor are not consistent with the terms and conditions hereof; provided,
however, that any failure of the Agent to file such proof of claim shall not be
deemed to be a waiver by the Agent or any Secured Party of any of the rights and
benefits granted herein by such Subordinating Creditor. Each Subordinating
Creditor shall provide the Agent with a copy of any proof of claim filed by such
Subordinating Creditor in any Insolvency Proceeding. Each Subordinating Creditor
hereby irrevocably grants the Agent the sole and exclusive authority and power
in any Insolvency Proceeding, unless and until this Subordination Agreement is
terminated in accordance with its terms: (a) to accept and receive any payment
or
3
distribution which may be payable or deliverable at any time upon or in respect
of the Subordinated Debt; and (b) to take such other action as may be necessary
or advisable to effectuate the foregoing. Each Subordinating Creditor shall
provide to the Agent all information and documents necessary to present claims
or seek enforcement as described in the immediately preceding sentence. Each of
the Subordinating Creditors hereby agrees that, while it shall retain the right
to vote its claims and, except as otherwise provided in this Subordination
Agreement, otherwise act in any Insolvency Proceeding relative to the related
Applicable Debtor (including, without limitation, the right to vote to accept or
reject any plan of partial or complete liquidation, reorganization, arrangement,
composition, or extension), such Subordinating Creditor shall not: (i) take any
action or vote in any way so as to directly or indirectly challenge or contest
(A) the validity or the enforceability of the Credit Agreement, the other Loan
Documents, or the liens and security interests granted to the Secured Parties
with respect to the Senior Debt, (B) the rights and duties of the Secured
Parties established in the Credit Agreement or any other Loan Documents, or (C)
the validity or enforceability of this Subordination Agreement; (ii) seek, or
acquiesce in any request, to dismiss any Insolvency Proceeding or to convert an
Insolvency Proceeding under chapter 11 of the Bankruptcy Code to a case under
chapter 7 of the Bankruptcy Code; (iii) seek, or acquiesce in any request for,
the appointment of a trustee or examiner with expanded powers for the related
Applicable Debtor; (iv) propose, vote in favor of or otherwise approve a plan of
reorganization, arrangement or liquidation, or file any motion or pleading in
support of any plan of reorganization, arrangement or liquidation, unless it
provides for the Discharge of Senior Debt or unless the Secured Parties have
approved of the treatment of their claims with respect to the Senior Debt under
such plan; (v) object to the treatment under a plan of reorganization or
arrangement of the Secured Parties' claims with respect to the Senior Debt; (vi)
seek relief from the automatic stay of Section 362 of the Bankruptcy Code or any
other stay in any Insolvency Proceeding in respect of any portion of the
Collateral; or (vii) directly or indirectly oppose any relief requested or
supported by the Secured Parties, including any sale or other disposition of
property free and clear of the liens and security interests of the Subordinating
Creditors under Section 363(f) of Title 11 of the United States Code or any
other similar provision of applicable law.
6. No Liability. None of the Secured Parties shall in any event be
liable for: (a) any failure to prove the Subordinated Debt; (b) any failure to
exercise any rights with respect thereto; (c) any failure to collect any sums
payable thereon; or (d) any impairment or nonpayment of the Subordinated Debt
that results, directly or indirectly, from the exercise by the Secured Parties
of any of their rights or remedies under this Subordination Agreement, the
Credit Agreement, the other Loan Documents or under applicable law.
7. Subordination Rights Not Impaired by Acts or Omissions of the
Applicable Debtors or Secured Parties. No right of the Secured Parties to
enforce subordination as provided in this Subordination Agreement will at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of any Applicable Debtor or by any act or failure to act by any Secured
Party, or by any noncompliance by the Subordinating Creditors or any agent
thereof with the terms of this Subordination Agreement, regardless of any
knowledge thereof with which any such Person may have or otherwise be charged.
The Secured Parties may extend, renew, modify or amend any terms of the Senior
Debt or any security therefor or guaranty thereof and grant any waiver, release
or consent in respect of, or release, sell or exchange such security and
otherwise deal freely with the Applicable Debtors and their respective
Affiliates, all without
4
notice to or consent from the Subordinating Creditors and without in any way
impairing or affecting this Subordination Agreement.
8. Payments to the Subordinating Creditors. Subject to Sections 9 and
10 of this Subordination Agreement, until this Subordination Agreement shall
have been terminated in accordance with the terms and conditions hereof, the
Applicable Debtors may make payment on, on account of or in respect of the
Subordinated Debt.
9. No Payment to Subordinating Creditors When Senior Debt in Default.
(a) No Applicable Debtor may pay the principal of, premium, if
any, or interest on, or make any other payment in respect of, the Subordinated
Debt if a Default or Event of Default on the Senior Debt shall have occurred and
be continuing unless and until such Default or Event of Default shall have been
cured or waived or shall have ceased to exist or a Discharge of Senior Debt
shall have occurred.
(b) If any payment or distribution of assets of any Applicable
Debtor of any kind or character, whether in cash, property or securities
(including, without limitation, any issuance of securities by such Applicable
Debtor), is received by any Subordinating Creditor as a payment in respect of
the Subordinated Debt at a time when such payment or distribution should not
have been made in accordance with subsection (a) of this Section 9, such payment
or distribution shall be received and held in trust for and shall be paid over
immediately to the Agent or its representative (for the benefit of the Secured
Parties) for application to the payment of the Senior Debt until the Discharge
of Senior Debt shall have occurred.
(c) The provisions of this Section 9 shall not apply to any
payments with respect to which Section 10 would be applicable.
10. Subordinated Debt Subordinated to Prior Payment of All Senior Debt
in Insolvency Proceeding. Upon any payment or distribution of assets of any
Applicable Debtor of any kind, whether in cash, property or securities
(including, without limitation, any issuance of securities by an Applicable
Debtor), in connection with any Insolvency Proceeding:
(a) the Secured Parties shall first be entitled to receive
payment in full in cash of all Senior Debt before the Subordinating Creditors
shall be entitled to receive any payment or other distribution of assets in
respect of the Subordinated Debt;
(b) any payment or distribution of assets of any Applicable
Debtor of any kind or character, whether in cash, property or securities
(including, without limitation, any issuance of securities by such Applicable
Debtor) to which the Subordinating Creditors would be entitled except for the
provisions of this Subordination Agreement will be paid by such Applicable
Debtor, the liquidating trustee or agent or such other Person making such a
payment or distribution directly to the Agent (for the benefit of the Secured
Parties) to the extent necessary to effect the Discharge of Senior Debt; and
(c) if, notwithstanding the foregoing, any payment or
distribution of assets of any Applicable Debtor of any kind or character,
whether in cash, property or securities (including, without limitation, any
issuance of securities by such Applicable Debtor), is received
5
by a Subordinating Creditor as payment in respect of the Subordinated Debt
before the occurrence of the Discharge of Senior Debt, such payment or
distribution shall be received and held in trust for and shall be paid over
immediately to the Agent or its representative (for the benefit of the Secured
Parties) for application to the payment of the Senior Debt until the Discharge
of Senior Debt has occurred.
11. No Enforcement or Commencement of Any Proceedings. Each of the
Subordinating Creditors hereby agrees that, so long as any Senior Debt shall
remain unpaid, or the Credit Agreement shall be in effect, such Subordinating
Creditor will not (a) except to the extent expressly permitted by Sections 8, 9
and 10 of this Subordination Agreement, take, demand, receive or accept any
payment of the Subordinated Debt, and the Applicable Debtors shall not give,
make or permit any such payment, or (b) commence, prosecute, assert, participate
in or bring, or join with any other creditor of the Applicable Debtors (other
than the Agent) in commencing, prosecuting, asserting, participating in or
bringing, any sort of action, suit or proceeding (including, without limitation,
any Insolvency Proceeding) either at law or in equity for the enforcement,
collection or realization on the whole, or any part of the Subordinated Debt or
any collateral, security or guarantees (if any) which is security for the
Subordinated Debt, or accelerate, demand or otherwise make due and payable prior
to the original due date thereof any payment of the Subordinated Debt (except
pursuant to a modification or amendment of the terms of such Subordinated Debt
that is permitted under the Credit Agreement), (c) possess any assets of any
Applicable Debtor pursuant to a legal action or other legal proceeding, or (d)
send any notice to or otherwise seek to obtain payment directly from any account
debtor of any Applicable Debtor (clauses (a) through (d) inclusive,
collectively, "Commence Legal Action").
12. Action Against. If the Subordinating Creditors, in violation of
this Subordination Agreement, shall Commence Legal Action against an Applicable
Debtor, such Applicable Debtor may interpose as a defense or dilatory plea the
making of this Subordination Agreement, and the Secured Parties are hereby
irrevocably authorized to intervene and to interpose such defense or plea in
their names or in the name of the related Applicable Debtor. If the
Subordinating Creditors shall attempt to enforce, collect or realize upon any
Subordinated Debt or any collateral, security or guarantees (if any) securing
the Subordinated Debt in violation of this Subordination Agreement, the
Applicable Debtors may, by virtue of this Subordination Agreement, restrain any
such enforcement, collection or realization, or upon failure to do so, the
Secured Parties may restrain such enforcement, collection or realization, either
in their own names or in the name of the Applicable Debtors.
13. Lien Subordination. Each Subordinating Creditor hereby confirms
that, regardless of (a) the relative date, time, method, manner or order of
grant, attachment or the perfection of any security interest or lien granted to
any Secured Party or any Subordinating Creditor in respect of all or any portion
of any collateral, (b) the order of filing or recordation of financing
statements, mortgages or other security documents, (c) any provision of the
Uniform Commercial Code, any other applicable law or anything in the
Subordinated Loan Documents (as hereinafter defined) to the contrary, (d)
whether the liens securing the Senior Debt are valid, enforceable, void,
avoidable, subordinated, disputed, or allowed, or (e) any other circumstance
whatsoever, the security interests and liens upon the Collateral granted or to
be granted from time to time pursuant to the Credit Agreement and the other Loan
Documents or any other agreements or instruments covering Senior Debt shall in
all respects be first priority and senior
6
security interests and liens and any security interests and liens upon the
Collateral granted or to be granted from time to time pursuant to the
Subordinated Loan Documents or any other agreements or instruments covering the
Subordinated Debt shall in all respects be junior and subordinate to such
security interests and liens upon the Collateral granted pursuant to the terms
of the Credit Agreement and the other Loan Documents.
14. Release of Liens. In the event of any private or public sale or
other disposition of all or any portion of the Collateral by or with the consent
of the Agent, on behalf of the Secured Parties, or as otherwise permitted by the
Credit Agreement, at any time prior to the date upon which the Discharge of
Senior Debt shall have occurred, each Subordinating Creditor agrees that such
sale or disposition will be free and clear of the liens and security interests
securing the Subordinated Debt (if any) of such Subordinating Creditor and, if
the sale or other disposition includes Equity Interests (as defined below) in
any Applicable Debtor, such Subordinating Creditor agrees to release the
entities whose Equity Interests are sold from all Subordinated Debt so long as
the Agent also releases the entities whose Equity Interests are sold or disposed
of from all Senior Debt. In furtherance thereof, each Subordinating Creditor
agrees that (a) the Agent is authorized to file any and all Uniform Commercial
Code lien releases and/or terminations of the liens and security interests in
respect of property of the Applicable Debtor held by such Subordinating Creditor
in connection with such a sale or other disposition, and (b) it will execute any
and all lien and security interest releases or other documents necessary to
release liens on property of the Applicable Debtor reasonably requested by the
Agent in connection therewith. For purposes hereof, "Equity Interests" means
Capital Stock (as defined below) and all warrants, options, or other rights to
acquire Capital Stock (but excluding any debt security that is convertible into,
or exchangeable for, Capital Stock), and "Capital Stock" means (i) in the case
of a corporation, corporate stock, (ii) in the case of an association or
business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iii) in the case of a
partnership or limited liability company, partnership or membership interests
(whether general or limited), and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of property of, the issuing Person.
15. Endorsement of Note; Other Documents. Each of the Subordinating
Creditors agrees to mark all agreements, bonds, debentures, notes or other
similar instruments relating to the Subordinated Debt (the "Subordinated Loan
Documents") and all other evidences of, or instruments relating to, Subordinated
Debt with a notation in substantially the following form:
"THIS NOTE IS SUBJECT TO THE TERMS AND PROVISIONS OF THE SUBORDINATION
AGREEMENT EXECUTED BY THE PAYEE AND THE OTHER PARTIES THERETO IN FAVOR
OF WELLS FARGO FOOTHILL, INC. DATED AS OF APRIL 5, 2007,"
and to deliver proof of such notation to the Agent. If, upon the occurrence and
during the continuation of an Event of Default, the Agent requires the
possession of any of the Subordinated Loan Documents in order to present claims
or seek enforcement against the Applicable Debtors for payment under the
Subordinated Loan Documents in accordance with the provisions of this
Subordination Agreement, the Subordinating Creditors agree, subject to the terms
hereof, to
7
endorse and deliver such Subordinated Loan Documents to the Agent. The
Subordinating Creditors and the Applicable Debtors will at their expense and at
any time and from time to time promptly execute and deliver all further
instruments and documents and take all further action that may be reasonably
necessary to protect any right or interest of the Secured Parties granted
hereunder or to enable the Secured Parties to exercise and enforce their rights
and remedies hereunder.
16. Modifications to the Subordinated Loan Documents. Except as
otherwise expressly permitted under the Credit Agreement or any other applicable
Loan Document, none of the Subordinated Loan Documents shall be amended or
otherwise modified without obtaining the prior written consent of the Agent, or
as otherwise permitted under the Credit Agreement, so as to provide for (a) any
increase in the rate of interest charged thereunder as in effect on the date
hereof, (b) any increase in the principal amount or any installment due
thereunder, (c) any reduction of the maturity date of any payment of principal
or interest, (d) the granting or obtaining of any collateral security or
obtaining any lien on any collateral or (e) any other amendment or modification
which would result in a Material Adverse Change with respect to the operations
of the Applicable Debtors, the Agent's security interests in the Collateral or
the claims of the Secured Parties.
17. No Impairment of Applicable Debtors' Obligations. Subject to all
of the Secured Parties' rights as provided in this Subordination Agreement,
nothing contained in this Subordination Agreement shall impair, as between the
Applicable Debtors, on the one hand, and the Subordinating Creditors, on the
other hand, the obligation of the Applicable Debtors, which is unconditional and
absolute, to pay the Subordinated Debt to the Subordinating Creditors as and
when all or any portion thereof shall become due and payable in accordance with
its terms or prevent the Subordinating Creditors, upon any default under the
Subordinated Debt, from exercising all rights, powers and remedies otherwise
provided therein or by applicable law.
18. Subrogation. Until the Discharge of Senior Debt shall have
occurred and this Subordination Agreement is terminated as provided herein, the
Subordinating Creditors shall not assert or be entitled to any subrogation
rights. Subject to the immediately preceding sentence, if any payment or
distribution to which any of the Subordinating Creditors would otherwise have
been entitled (but for the provisions of this Subordination Agreement) shall
have been turned over to the Agent or otherwise applied to the payment of the
Senior Debt pursuant to the provisions of this Subordination Agreement, then
such Subordinating Creditor shall be entitled to receive from the Agent any
payments or distributions received by the Secured Parties in excess of the
amount sufficient to effect the Discharge of Senior Debt, and upon such
Discharge of Senior Debt shall be subrogated (without any representation by, or
any recourse whatsoever to, the Secured Parties) to all rights of the Secured
Parties to receive all further payments or distributions applicable to the
Senior Debt or the Subordinated Debt until the Subordinated Debt shall have been
paid in full. For purposes of the Subordinating Creditors' subrogation rights
hereunder, payments to the Secured Parties with respect to the Senior Debt which
the Subordinating Creditors would have been entitled to receive with respect to
the Subordinated Debt but for the provisions of this Subordination Agreement
shall not, as between the Applicable Debtors, their respective creditors (other
than the Secured Parties) and the Subordinating Creditors, be deemed payments
with respect to the Senior Debt.
8
19. Entire Agreement, etc. This Subordination Agreement embodies the
whole agreement of the parties with respect to the subject matter hereof and may
not be modified except in writing executed and delivered by the parties hereto.
The failure of the Secured Parties, or any one of them, to exercise any right
hereunder shall not be construed as a waiver of the right to exercise the same
or any other rights at any other time and from time to time thereafter, and such
rights shall be considered as cumulative rather than alternative. No knowledge
of any breach or other non-observance by the Subordinating Creditors of the
terms and provisions of this Subordination Agreement shall constitute a waiver,
nor a waiver of any obligations to be performed by the Subordinating Creditors
hereunder.
20. Notices. All notices and other communications hereunder shall be
sent in accordance with the provisions of, and to the addresses set forth in,
Section 11 of the Credit Agreement, and if to any Subordinating Creditor that is
not a party to the Credit Agreement, to the address set forth for the
Administrative Borrower in the Credit Agreement.
21. Construction. Except as otherwise expressly provided herein, the
rules of interpretation set forth in Section 1.4 of the Credit Agreement shall
apply mutatis mutandis to this Subordination Agreement.
22. CHOICE OF LAW; JURISDICTION; JURY TRIAL WAIVER; ETC. THIS
SUBORDINATION AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO AGREES THAT ANY
FEDERAL DISTRICT COURT IN THE STATE OF NEW YORK AND COUNTY OF NEW YORK OR ANY
STATE COURT LOCATED IN NEW YORK COUNTY, NEW YORK SHALL HAVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE PARTIES HERETO
PERTAINING DIRECTLY OR INDIRECTLY TO THIS SUBORDINATION AGREEMENT OR TO ANY
MATTER ARISING HEREFROM. EACH OF THE PARTIES HERETO EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED
IN SUCH COURT. EACH OF THE PARTIES HERETO WAIVES ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE VENUE OF ANY PROCEEDING IN ANY SUCH COURT OR THAT SUCH
PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR
CLAIM THE SAME. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO A JURY TRIAL AS
TO ANY DISPUTE UNDER THIS SUBORDINATION AGREEMENT.
23. Counterparts; Effectiveness. This Subordination Agreement and any
amendments, waivers, consents or supplements may be executed in any number of
counterparts (and by facsimile or other electronic transmission) and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
24. Severability. Any provision of this Subordination Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
9
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
25. Section Headings. The section headings used in this Subordination
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
[Signature Pages to follow]
10
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Subordination Agreement effective as of the date first above written.
SUBORDINATING CREDITORS: TB WOOD'S INCORPORATED,
a Pennsylvania corporation, as a
Subordinating Creditor
By: /s/ Joseph C. Horvath
------------------------------------
Name: Joseph C. Horvath
----------------------------------
Title: VP, CFO and Corporate Secretary
---------------------------------
PLANT ENGINEERING CONSULTANTS, LLC,
a Tennessee limited liability company,
as a Subordinating Creditor
By: /s/ Joseph C. Horvath
------------------------------------
Name: Joseph C. Horvath
----------------------------------
Title: VP, CFO and Corporate Secretary
---------------------------------
TB WOOD'S ENTERPRISES, INC.,
a Delaware corporation, as a
Subordinating Creditor
By: /s/ Joseph C. Horvath
------------------------------------
Name: Joseph C. Horvath
----------------------------------
Title: VP, CFO and Corporate Secretary
---------------------------------
TB WOOD'S CORPORATION,
a Delaware corporation, as a
Subordinating Creditor
By: /s/ Joseph C. Horvath
------------------------------------
Name: Joseph C. Horvath
----------------------------------
Title: VP, CFO and Corporate Secretary
---------------------------------
[SIGNATURE PAGE TO INTERCOMPANY SUBORDINATION AGREEMENT]
ACCEPTED AND AGREED TO
AS OF THE DATE FIRST ABOVE WRITTEN:
WELLS FARGO FOOTHILL, INC.,
a California corporation, as Agent
By: /s/ Vincent J. Egan, Jr.
------------------------------------
Name: Vincent J. Egan, Jr.
----------------------------------
Title: VP
---------------------------------
[SIGNATURE PAGE OF INTERCOMPANY SUBORDINATION AGREEMENT]