<EXHIBIT> EXHIBIT 10.19
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement"), dated as of
December 26, 1997, is by and among PCD INC., a Massachusetts
corporation with a principal place of business at 2 Technology
Drive, Centennial Park, Peabody, Massachusetts 01960 (the
"Borrower"); EMERSON ELECTRIC CO., a Missouri corporation with a
principal place of business at 8000 West Florissant, P.O. Box
4100, St. Louis, Missouri 63136 (the "Subordinated Creditor");
and FLEET NATIONAL BANK, a national banking association organized
under the laws of the United States and having an office at One
Federal Street, Boston, Massachusetts 02110 (hereinafter the
"Agent") as Agent for itself and each of the other Lenders
(collectively, with the Agent in its role as a Lender, the
"Lenders", and individually, a "Lender") who now and/or hereafter
become parties to the hereinafter defined Loan Agreement.
RECITALS.
On December 26, 1997, the Lenders, pursuant to that certain
Loan Agreement dated as of December 26, 1997 by and among the
Borrower, the Agent and the Lenders (as amended and in effect
from time to time, including any replacement agreement therefor,
the "Loan Agreement") agreed, upon the terms and subject to the
conditions contained therein, to make loans and otherwise extend
credit to the Borrower in an aggregate principal amount of up to
$90,000,000.
On December 26, 1997, the Subordinated Creditor, pursuant to
(i) that certain Subordinated Debenture (as amended and in effect
from time to time, including any replacement agreement therefor,
the "Subordinated Debenture") and (ii) that certain Subordinated
Debenture and Warrant Purchase Agreement (as amended and in
effect from time to time, including any replacement agreement
therefor, the "Subordinated Debenture Purchase Agreement")
agreed, upon the terms and subject to the conditions contained
therein, to make loans to the Borrower in an aggregate principal
amount of $25,000,000.
It is a condition precedent to the Lenders' willingness to
make the Loans and otherwise extend credit to the Borrower
pursuant to the Loan Agreement and the Notes that the Borrower
and the Subordinated Creditor enter into this Agreement with the
Agent, and, in order to induce the Lenders to make the Loans and
otherwise extend credit to the Borrower pursuant to the Loan
Agreement and the Notes, the Borrower and the Subordinated
Creditor have agreed to enter into this Agreement with the Agent.
NOW, THEREFORE, in consideration of the foregoing, the
mutual agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS. Terms not otherwise defined herein have
the same respective meanings given to them in the Loan Agreement.
In addition, the following terms shall have the following
meanings:
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AFFILIATE. Singly and collectively, any Person who,
directly or indirectly, is in control of, is controlled by, or is
under common control with, any party hereto. For purposes of
this definition, a Person shall be deemed to be "controlled by" a
party hereto if such party, or any Person with an ownership
interest in such party, possesses, directly or indirectly, power
either to (i) vote 66.67% or more of the securities having
ordinary voting power for the election of directors of such
Person or (ii) direct or cause the direction of the management
and policies of such Person whether by contract or otherwise. A
charitable trust established by a party hereto (or by an
Affiliate of a party hereto) shall be deemed to be an "Affiliate"
as used herein.
SENIOR DOCUMENTS. Collectively, the Loan Agreement, the
Notes, the Security Documents, the other Financing Documents and
any and all guaranties, documents granting security interests,
mortgages and other Liens directly or indirectly guarantying or
securing any of the Senior Indebtedness, and any and all other
documents or instruments evidencing or further guarantying or
securing directly or indirectly any of the Senior Indebtedness,
whether now existing or hereafter created, as each may be amended
(subject to the limitations set forth herein) from time to time.
SENIOR INDEBTEDNESS. All Indebtedness and other Obligations
of the Borrower to the Agent and/or any of the Lenders from time
to time outstanding arising in connection with the Senior
Documents.
SUBORDINATED DOCUMENTS. The Subordinated Debenture, the
Subordinated Debenture Purchase Agreement and any other
promissory note and any other agreement, instrument or document
executed by the Borrower in favor of the Subordinated Creditor
evidencing Indebtedness of the Borrower to the Subordinated
Creditor, and any and all guaranties and documents granting
security interests, mortgages and other Liens, if any, directly
or indirectly guarantying or securing any of the Subordinated
Indebtedness, and any and all other documents or instruments, if
any, evidencing or further guarantying or securing directly or
indirectly any of the Subordinated Indebtedness, whether now
existing or hereafter created.
SUBORDINATED INDEBTEDNESS. All Indebtedness and other
obligations, whether for principal, interest, premium, fees,
costs, expenses and other amounts in respect of the Subordinated
Documents or any other obligations owing by the Borrower to the
Subordinated Creditor, in each case, whether direct or indirect,
absolute or contingent, due or to become due, now existing or
hereafter arising.
2. GENERAL. The Subordinated Indebtedness and any and all
of the Subordinated Documents shall be and hereby are
subordinated to, and the payment thereof is deferred, until the
full and final payment in cash of the Senior Indebtedness in the
maximum principal amount of $90,000,000 (plus an additional
amount of principal of up to $10,000,000), the interest thereon
and all fees, expenses, indemnification reimbursements,
indemnitees and other charges in connection therewith owing under
any of the Financing Documents (including, without limitation,
any and all interest accruing or out of pocket costs or expenses
incurred after the date of any filing by or against the Borrower
or any guarantor of the Senior Indebtedness ("Guarantor")
pursuant to a Bankruptcy Proceeding (as such term is defined in
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Section 7(a) hereof) regardless of whether the Agent's or any
Lender's claim therefor is allowed or allowable in the case or
proceeding relating thereto), whether now or hereafter incurred
or owed by the Borrower and/or any Guarantor, and any obligation
of the Lenders to advance funds to the Borrower pursuant to the
terms of the Senior Documents has terminated. Notwithstanding
the immediately preceding sentence, the Borrower shall be
permitted to pay, and the Subordinated Creditor shall be
permitted to receive, regularly scheduled payments of interest
(and regularly scheduled payments of principal only as provided
in subsection (ii) below) on the Subordinated Indebtedness so
long as:
(i) such payments of regularly scheduled interest
are made not more frequently than once in any calendar quarter;
(ii) the Borrower may apply any net cash proceeds
from the sale or issuance of any class of the Borrower's or any
Subsidiary's equity securities to reduce the then-outstanding
balance of the Subordinated Indebtedness (including any
prepayment premiums in connection therewith as provided in the
Subordinated Documents);
(iii) such payments are made only after the
payment by the Borrower to the Agent, for the benefit of the
Lenders, of any amounts then due and payable pursuant to the
terms of the Senior Documents;
(iv) at the time of each such payment, no Event of
Default of any nature shall have occurred and be continuing with
respect to the Senior Indebtedness, or under any of the Senior
Documents and no Event of Default shall occur or be created as a
result of such payment.
3. LEGEND. The Subordinated Creditor covenants, represents
and warrants to the Agent: (a) that the Subordinated
Indebtedness is represented by the Subordinated Documents which
shall bear a legend reading "This Subordinated Debenture is
subject to a Subordination Agreement dated as of December 26,
1997 by and among PCD Inc., Emerson Electric Co. and Fleet
National Bank, as Agent for itself and the other Lenders"; (b)
that at no time hereafter will any part of the Subordinated
Indebtedness be represented by any negotiable instruments or
other writing, except such as comply with the provisions of (a)
herein; (c) that it has not made any prior transfer, encumbrance
or assignment of any part of the Subordinated Indebtedness; and
(d) that it will not further subordinate any part of the
Subordinated Indebtedness except to or in favor of the Agent.
4. ENFORCEMENT. The Subordinated Creditor will not take or
omit to take any action or assert any claim with respect to the
Subordinated Indebtedness or otherwise which is contrary to the
provisions of this Agreement. Without limiting the foregoing,
the Subordinated Creditor will not, until the Senior Indebtedness
has been finally paid in full in cash, assert, collect or enforce
the Subordinated Indebtedness or any part thereof, initiate,
commence or join any Bankruptcy Proceeding or take any action to
foreclose or realize upon the Subordinated Indebtedness or any
part thereof or enforce any of the Subordinated Documents;
PROVIDED, HOWEVER, that the Subordinated Creditor shall be
permitted to obtain equity securities in the Borrower by the
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exercise of its so-called "conversion" rights as set forth in
Section 6 of the Subordinated Debenture (the "Conversion").
Until the Senior Indebtedness has been finally paid in full in
cash, the Subordinated Creditor shall have no right of
subrogation, reimbursement or indemnity whatsoever from any
assets of the Borrower or any guarantor of or provider of
collateral security for the Senior Indebtedness.
5. PAYMENTS HELD IN TRUST. In the event that any payment
or distribution, in the form of cash, collateral or otherwise
(except for the equity securities in the Borrower received by the
Subordinated Creditor pursuant to the Conversion), with respect
to the Subordinated Indebtedness is received by the Subordinated
Creditor, or the Subordinated Creditor obtains any cash or other
assets of the Borrower or any Guarantor as a result of any
administrative, legal or equitable actions, in any such case
contrary to the terms of this Agreement, the Subordinated
Creditor will hold in trust and immediately pay over to the
Agent, in the same form as received, such payment or
distribution, with appropriate endorsements, for application to
the Senior Indebtedness and any such other assets or collateral
for the Senior Indebtedness until the Senior Indebtedness has
been finally paid in full.
6. DEFENSE TO ENFORCEMENT. If the Subordinated Creditor in
contravention of the terms of this Agreement, shall commence,
prosecute or participate in any suit, action or proceeding
against the Borrower or any Guarantor, then the Borrower or any
Guarantor may interpose as a defense or plea the making of this
Agreement, and the Agent may intervene and interpose such defense
or plea in its name or in the name of the Borrower or any
Guarantor. If the Subordinated Creditor, in contravention of the
terms of this Agreement, shall attempt to collect any of the
Subordinated Indebtedness or enforce any of the Subordinated
Documents (other than the Conversion), then the Agent or the
Borrower may, by virtue of this Agreement, restrain the
enforcement thereof in the name of the Agent or in the name of
the Borrower or any Guarantor.
7. BANKRUPTCY, ETC.
(a) At any meeting of creditors of the Borrower or any
Guarantor or in the event of any case or proceeding, voluntary or
involuntary, for the distribution, division or application of all
or part of the assets of the Borrower or any Guarantor or the
proceeds thereof, whether such case or proceeding be for the
liquidation, dissolution or winding up of the Borrower or any
Guarantor or its business, a receivership, insolvency or
bankruptcy case or proceeding, an assignment for the benefit of
creditors or a proceeding by or against the Borrower or any
Guarantor for relief under the federal Bankruptcy Code or any
other bankruptcy, reorganization or insolvency law or any other
law relating to the relief of debtors, readjustment of
indebtedness, reorganization, arrangement, composition or
extension or marshalling of assets or otherwise (each of the
foregoing being herein called a "Bankruptcy Proceeding"), the
Agent is hereby irrevocably authorized at any such meeting or in
any such proceeding to receive or collect any cash or other
assets of the Borrower or such Guarantor distributed, divided or
applied by way of dividend or payment, or any securities issued
on account of any Subordinated Indebtedness (other than equity
securities of the Borrower received by the Subordinated Creditor
pursuant to the Conversion), and apply such cash to or to hold
such other assets or securities as collateral for the Senior
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Indebtedness, and to apply to the Senior Indebtedness any cash
proceeds of any realization upon such other assets or securities
that the Agent in its discretion elects to effect, until all of
the Senior Indebtedness shall have been finally paid in full in
cash, rendering to the Subordinated Creditor any surplus to which
the Subordinated Creditor is then entitled; provided, however,
that the Agent shall provide the Subordinated Creditor with a
reasonably detailed written accounting of such cash or other
assets received or collected on account of the Subordinated
Indebtedness by the Agent and the application by the Agent
thereof.
(b) The Subordinated Creditor covenants and agrees
with the Agent that the Subordinated Creditor shall not, to the
extent prohibited by Section 4 hereof, commence or join with any
other creditor or creditors of the Borrower or any Guarantor in
commencing any Bankruptcy Proceeding against the Borrower or any
Guarantor. At any Bankruptcy Proceeding, if all Senior
Indebtedness has not been finally paid in full at the time, the
Agent, in addition to all other rights set forth in this
Agreement, is hereby authorized, which authorization shall be
irrevocable except upon the express written waiver of the Agent,
at any such meeting or any such proceeding: (i) to evidence
claims comprising the Subordinated Indebtedness either in its own
name, the name of the Subordinated Creditor, by proof of debt,
proof of claim, suit or otherwise, following notice from the
Agent to the Subordinated Creditor of a requirement to evidence
any such claim and the failure on the part of the Subordinated
Creditor to take any required action within 10 Business Days
following such notice or any shorter period as may be necessary
to protect such claim (ii) to vote claims comprising the
Subordinated Indebtedness to accept or reject any plan of partial
or complete liquidation, reorganization, arrangement, composition
or extension; and (iii) to collect any assets or securities or
distributed securities (other than equity securities of the
Borrower received by the Subordinated Creditor pursuant to the
Conversion) issued on account of the Subordinated Indebtedness
until such time as the Senior Indebtedness has been paid in full.
(c) If the Borrower or any Guarantor shall become
subject to a proceeding under the Bankruptcy Code and if the
Agent desires (i) to permit the Borrower or any Guarantor, under
either Section 363 or Section 364 of the Bankruptcy Code, to use
cash collateral in the ordinary course of its business, including
without limitation, to make any permitted payments on the Senior
Indebtedness and/or (ii) to provide financing to the Borrower or
any Guarantor to be used in the ordinary course of its business,
the Subordinated Creditor agrees as follows: (A) adequate notice
to the Subordinated Creditor shall be deemed to have been given
to Subordinated Creditor if the Subordinated Creditor receives
notice two (2) Business Days prior to the entry of the order
approving such financing, and (B) no objection will be raised by
the Subordinated Creditor to any such financing on the ground of
a failure to provide "adequate protection" for the Subordinated
Creditor' junior Lien on the security provided the Subordinated
Creditor retains a Lien on and security interest in the post-
petition security to the extent and with the same priority as
existed prior to the commencement of the Bankruptcy Proceeding.
Notwithstanding anything to the contrary contained herein, the
Subordinated Creditor shall be entitled to assert a claim
pursuant to Section 507(b) of the Bankruptcy Code. For purposes
of this Section, notice of a proposed financing or use of cash
collateral shall be deemed given when given, in the manner
prescribed by this Agreement, to the Subordinated Creditor or its
counsel.
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8. LIENS PROHIBITED.
The Subordinated Indebtedness shall at all times during
the term hereof remain unsecured.
In furtherance of the foregoing, the Subordinated
Creditor agrees that, within five (5) Business Days following the
Agent's written request therefor, the Subordinated Creditor will
execute, deliver and file any and all termination statements,
mortgage discharges, Lien releases and other agreements and
instruments as the Agent reasonably deems necessary or
appropriate. Furthermore, the Subordinated Creditor hereby
irrevocably appoints each of the Agent, and its respective
successors and assigns, and its respective officers, with full
power of substitution, the true and lawful attorney(s) of the
Subordinated Creditor for the purpose of effecting any such
executions, deliveries and filings if and to the extent that the
Subordinated Creditor shall have failed to perform such
obligations pursuant to the foregoing provisions within such five
(5) Business Day period, which power of attorney shall be deemed
to be coupled with an interest.
9. AGENT'S FREEDOM OF DEALING. Without affecting the
rights of the Agent hereunder, and except as otherwise set forth
herein, the Subordinated Creditor agrees and consents: (a) to
waive, and does hereby waive, any and all notice of the receipt
and acceptance by the Agent of this Agreement or of the creation,
renewal, extension or accrual of any of the Senior Indebtedness,
present or future, in whole or in part, by any of the Lenders or
of the reliance by the Agent and/or the Lenders on this Agreement
at any time; and (b) with respect to the Senior Indebtedness and
any and all collateral therefor or guaranties thereof, that the
Borrower, the Agent and the Lenders may agree to increase the
amount of the Senior Indebtedness (subject, however, to the
limitation on Senior Indebtedness set forth in the first sentence
of Section 2 hereof) or otherwise modify the terms of any of the
Senior Indebtedness, and the Agent may grant extensions of the
time of payment or performance to and make compromises, including
releases of collateral or guaranties, and settlements with the
Borrower and all other Persons, in each case without the consent
of the Subordinated Creditor or the Borrower and without
affecting the agreements of the Subordinated Creditor or the
Borrower contained in this Agreement; and (c) to waive, and does
hereby waive, all presentment for payment, protest and notice of
nonpayment and protest of negotiable or other instruments to
which the Subordinated Creditor may be a party.
10. MODIFICATION OR SALE OF THE SUBORDINATED
INDEBTEDNESS. The Subordinated Creditor will not, without the
prior written consent of the Agent, at any time while this
Agreement is in effect, modify in any material respect any of the
terms of the Subordinated Debenture or the Subordinated Debenture
Purchase Agreement; provided that the following amendments or
modifications shall be deemed to be per se material modifications
and to require the prior written consent of the Agent.
(i) any increase in the principal amount of the
Subordinated Indebtedness;
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(ii) any shortening of the maturity of the Subordinated
Indebtedness (including by way of acceleration) or any change in
any of the payment provisions, if any, or any other alteration of
the repayment provisions of the Subordinated Indebtedness in any
respect;
(iii) any increase in the interest rate, fees or premium
applicable to the Subordinated Indebtedness;
(iv) any change in any of the subordination provisions,
including, without limitation, any further subordination of the
Subordinated Indebtedness to any other indebtedness;
(v) the requirement of any lien or other security for, or
guaranty of, the Subordinated Indebtedness;
(vi) any change in any Subordinated Document which could
materially increase the Subordinated Creditor's rights or could
adversely affect the Agent or the Borrower or the rights and
remedies of the Agent against the Borrower.
The Subordinated Creditor shall not sell, transfer, pledge,
assign, hypothecate or otherwise dispose of any or all of the
Subordinated Indebtedness to any Person, PROVIDED, HOWEVER that
assignments of the Subordinated Indebtedness to an Affiliate of
the Subordinated Creditor shall be permitted so long as such
Affiliate of the Subordinated Creditor has in a writing,
satisfactory in form and substance to the Agent, become a party
hereto and succeeded to the rights and is bound by all of the
obligations of the Subordinated Creditor hereunder (and in the
event the Affiliate shall be a charitable trust, evidence
reasonably satisfactory to the Agent that the charitable trust
may become a party hereto without contravening the terms of said
charitable trust). In the case of any such disposition by the
Subordinated Creditor, the Subordinated Creditor will notify the
Agent at least 10 days prior to the date of any of such intended
disposition.
11. BORROWER'S OBLIGATIONS ABSOLUTE. Nothing contained in
this Agreement shall impair, as between the Borrower and the
Subordinated Creditor, the obligation of the Borrower to pay to
the Subordinated Creditor all amounts payable in respect of the
Subordinated Indebtedness as and when the same shall become due
and payable in accordance with the terms thereof, or prevent the
Subordinated Creditor (except as expressly otherwise provided in
this Agreement) from exercising all rights, powers and remedies
otherwise permitted by the Subordinated Documents and by
applicable law upon a default in the payment of the Subordinated
Indebtedness or under any Subordinated Document, all, however,
subject to the rights of the Agent as set forth in this
Agreement.
12. SUBROGATION. Subject to the final payment in full of
all Senior Indebtedness, the Subordinated Creditor shall be
subrogated to the rights of the Agent and holders of the Senior
Indebtedness to receive payments or distributions of assets of
the Borrower made on account of the Senior Indebtedness until the
Subordinated Indebtedness shall be paid in full. For the
purposes of such subrogation, no payments or distributions to the
Agent or the holders of the Senior Indebtedness of any cash,
property or securities to which the Subordinated Creditor would
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be entitled except for the provisions of this Agreement, and no
payment over pursuant to the provisions of this Agreement to the
Agent or the holders of the Senior Indebtedness by the
Subordinated Creditor, shall as between the Borrower and the
creditors of the Borrower, other than the Agent and the holders
of the Senior Indebtedness and the Subordinated Creditor, be
deemed to be a payment by the Borrower to or on account of Senior
indebtedness.
13. MARSHALLING. Neither the Agent nor the Lenders shall
be under any obligation to marshall any assets in payment of any
or all of the Senior Indebtedness. The Subordinated Creditor
further waives any and all rights with respect to marshaling.
14. TERMINATION OF SUBORDINATION. This Agreement shall
continue in full force and effect, and the obligations and
agreements of the Subordinated Creditor and the Borrower
hereunder shall continue to be fully operative, until all of the
Senior Indebtedness shall have been paid and satisfied in full in
cash and such full payment and satisfaction shall be final and
not avoidable. To the extent that the Borrower or any Guarantor
or provider of collateral for the Senior Indebtedness makes any
payment on the Senior Indebtedness that is subsequently
invalidated, declared to be fraudulent (except on account of
actual fraud) or preferential or set aside or is required to be
repaid to a trustee, receiver or any other party under any
Bankruptcy Proceeding (such payment being hereinafter referred to
as a "Voided Payment"), then to the extent of such Voided
Payment, that portion of the Senior Indebtedness that had been
previously satisfied by such Voided Payment shall be revived and
continue in full force and effect as if such Voided Payment had
never been made. In the event that a Voided Payment is recovered
from the Agent or any Lender, an Event of Default shall be deemed
to have existed and to be continuing under the Loan Agreement
from the date of the Agent's or such Lender's initial receipt of
such Voided Payment until the full amount of such Voided Payment
is restored to the Agent and/or such Lender. During any
continuance of any such Event of Default, this Agreement shall be
in full force and effect with respect to the Subordinated
Indebtedness. To the extent that the Subordinated Creditor has
received any payments with respect to the Subordinated
Indebtedness subsequent to the date of the Agent's or such
Lender's initial receipt of such Voided Payment and such payments
have not been invalidated, declared to be fraudulent or
preferential or set aside or required to be repaid to a trustee,
receiver, or any other party under any bankruptcy act, state or
federal law, common law or equitable cause, the Subordinated
Creditor shall be obligated and hereby agrees that any such
payment so made or received (other than equity securities of the
Borrower received by the Subordinated Creditor pursuant to the
Conversion) shall be deemed to have been received in trust for
the benefit of the Agent and/or such Lender to the same extent as
is provided under Section 5 hereof, and the Subordinated Creditor
hereby agrees to pay to the Agent, upon demand, the full amount
so received by the Subordinated Creditor during such period of
time to the extent necessary fully to restore to the Agent and/or
such Lender the amount of such Voided Payment. Upon the payment
and satisfaction in full in cash of all of the Senior
Indebtedness, which payment shall be final and not avoidable,
this Agreement will automatically terminate without any
additional action by any party hereto.
15. NOTICES. All notices and other communications which
are required and may be given pursuant to the terms of this
Agreement shall be in writing and shall be sufficient and
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effective in all respects if given in writing or telecopied,
delivered or mailed by registered or certified mail, postage
prepaid, as follows:
(a) If to the Agent:
Fleet National Bank
One Federal Street
Boston, Massachusetts 02109
Attention: Thomas W. Davies, Senior Vice
President
Telecopy: 617) 346-1633
With a copy to:
Hinckley, Allen & Snyder
28 State Street
Boston, Massachusetts 02109
Attention: Malcolm Farmer III, Esquire
Telecopy: (617) 345-9020
(b) If to the Subordinated Creditor:
Emerson Electric Co.
8000 West Florissant
P.O. Box 4100
St. Louis, Missouri 63136
Attention: H.M. Smith
Telecopy: (314) 553-3713
With a copy to:
Bryan Cave, LLP
One Metropolitan Square
211 North Broadway, Suite 3600
St. Louis, Missouri 63102
Attention: James L. Nouss, Jr., Esquire
Telecopy: (314) 259-2020
(c) If to the Borrower:
PCD Inc.
2 Technology Drive
Peabody, Massachusetts 01960-7977
Attention: President
Telecopy: (978) 532-6800
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With a copy to:
Hill & Barlow
One International Place
Boston, Massachusetts 02110-2607
Attention: Thomas C. Chase, Esquire
Telecopy: (617) 428-3500
or such other address or addresses as any party hereto shall have
designated by written notice to the other parties hereto. Notices
shall be deemed given and effective upon the earlier to occur of
(i) the third day following deposit thereof in the U.S. mail or
(ii) receipt by the party to whom such notice is directed.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS AND SHALL BE A SEALED INSTRUMENT UNDER SUCH LAWS.
17. WAIVER OF JURY TRIAL. THE SUBORDINATED CREDITOR, THE
AGENT, AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
EXCEPT AS PROHIBITED BY LAW, THE AGENT, THE SUBORDINATED CREDITOR
AND THE BORROWER HEREBY WAIVES ANY RIGHT WHICH IT MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING
SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. THE SUBORDINATED CREDITOR, THE AGENT AND THE BORROWER
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE
OTHER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
18. WAIVER. Except as otherwise provided herein, no
waiver shall be deemed to have been made by the Subordinated
Creditor or the Agent of any of its respective rights hereunder
unless the same shall be in writing and duly signed by its duly
authorized officers and each waiver, if any, shall be a waiver
only with respect to the specific instance involved and shall in
no way impair the rights of the Subordinated Creditor or the
Agent in any other respect at any time. No executory agreement
shall be effective to change or modify or to discharge, in whole
or in part, this Agreement, unless such executory agreement is in
writing and duly signed by the duly authorized officers of the
Agent, or the Subordinated Creditor, as the case may be.
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19. SPECIFIC PERFORMANCE. The Subordinated Creditor and
the Agent agree that each shall be authorized to demand specific
performance of the provisions set forth in this Agreement,
whether or not the Borrower shall have complied with the
provisions hereof applicable to it, at any time when the other
shall have failed to comply with any such provision hereof
applicable to it. Each of the Agent and the Subordinated
Creditor hereby irrevocably waives any defense based on the
adequacy of a remedy at law which might be asserted as a bar to
the remedy of specific performance brought in any action relating
hereto. The Subordinated Creditor further waives all demands and
notices (except any such demand or notice required to be given by
the terms of this Agreement) in connection with the exercise of
the Agent's rights hereunder and assents (except as may be
otherwise provided herein) to any renewal, extension or
postponement of the time of payment of Senior Indebtedness or any
indulgence with respect thereto, any substitution, exchange or
release of collateral for or any guaranty of the Senior
Indebtedness and to the addition or release of any Person
primarily or secondarily liable thereon; and agrees to the
provisions of any instrument, security or other writing,
evidencing Senior Indebtedness.
20. COSTS AND EXPENSES. The Borrower agrees to pay to the
Agent on demand all expenses of every kind, including reasonable
attorneys' fees, which the Agent or any Lender may incur in
enforcing or endeavoring to enforce any of its rights hereunder.
21. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and assigns.
22. MISCELLANEOUS. This Agreement may be executed in
several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an
original, and all of which together shall constitute one
instrument. In proving this Agreement, it shall not be necessary
to produce or account for more than one such counterpart signed
by the party against which enforcement is sought. The Agent may,
in its sole and absolute discretion, waive any provisions of this
Agreement benefiting the Agent; provided, however, that such
waiver shall be effective only if in writing and signed by the
Agent and shall be limited to the specific provision or
provisions expressly so waived. This Agreement shall be binding
upon the successors and assigns of the Agent, the Subordinated
Creditor and the Borrower and shall inure to the benefit of the
Agent, the Agent's successors and assigns, any lender or lenders
refunding or refinancing any of the Senior Indebtedness and their
respective successors and assigns, but shall not otherwise create
any rights or benefits for any third party. In the event that
any lender or lenders refund or refinance any of the Senior
Indebtedness, such refunding or refinancing shall be
substantially on the same terms and conditions as provided in the
Financing Documents, (as the same are permitted to be modified by
the terms of Section 9 hereof), and this Agreement shall be
amended to the extent necessary to reflect the agreements and
instruments in favor of such lender or lenders and to the related
definitions contained therein.
(Signatures appear on the next page)
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
Witness: PCD Inc.
/s/ David Horne By: /s/ John L. Dwight Jr.
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David Horne John L. Dwight Jr.
Chairman of the Board,
President and Chief
Executive Officer
Witness: Emerson Electric Co.
By: /s/ J. D. Switzer
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J. D. Switzer
Senior Vice President - Development
Witness: Fleet National Bank, as Agent for
itself and the other Lenders
/s/ Christopher Nelson By: /s/ Thomas W. Davies
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Christopher Nelson Thomas W. Davies
Senior Vice President
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