EXHIBIT 10.47
AMENDMENT dated June 25, 2002 TO INTERCREDITOR AND SUBORDINATION
AGREEMENT, dated as of October 9, 1997 ("Original Seller Subordination
Agreement"), among the Subordinated Lenders (as hereinafter defined), CPI
Aerostructures Inc., a New York corporation (hereafter "Holdings" or "CPI"),
Kolar, Inc., a Delaware corporation (hereafter the "Borrower" or "Kolar, Inc."),
and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as
administrative agent (together with its successors and assigns in such capacity,
the "Administrative Agent") for the Senior Lenders.
RECITALS
A. Holdings, the Borrower and the Administrative Agent heretofore entered into a
Credit Agreement (the "Original Credit Agreement") dated as of October 9, 1997,
pursuant to which Chase Manhattan Bank and Mellon Bank, N.A as Lenders
("Original Lenders") made certain term loans to Kolar, Inc., designated therein
as "Tranche A Term Loans" and "Tranche B Term Loans" aggregating $10,375,000.
Holdings is the guarantor of Borrower's obligations under the Tranche A and
Tranche B Loans. As of the date hereof, the outstanding principal balance of the
Tranche A Loan is $931,570 and the outstanding principal balance of the Tranche
B Loan is $275,462.
B. As permitted under the Original Credit Agreement, the Original Lenders
provided lines of credit ("Line of Credit Loans") to Holdings and Borrower, as
co-borrowers, originally aggregating $1,000,000, and increasing to $1,700,000.
C. The Subordinated Obligations represented by the Seller Note (as defined in
the Original Seller Subordination Agreement) are currently subordinated to the
Tranche A and Tranche B Loans and to the Line of Credit Loans and pursuant to
the Original Seller Subordination Agreement, all of the said Loans are secured
pursuant to the Guarantee and Collateral Agreement made by Holdings, the
Borrower in favor of the Administrative Agent dated as of October 9, 1997.
D. Certain terms of the Original Credit Agreement have previously been changed
by certain amendments and waivers, pursuant to which, among other matters, the
repayment terms applicable to the Tranche A and Tranche B Loans have been
changed.
E. JPMorgan Chase Bank holds indebtedness of Borrower in the principal amount of
$704,484.41 representing the net deficiency ("Deficiency Debt") arising from the
sale by an affiliate of JPMorgan Chase Bank of certain equipment previously
leased by said affiliate to Borrower.
F. The parties to the Original Credit Agreement have agreed to amend and restate
the Original Credit Agreement, the purpose of such Amendment and Restatement
being, among other matters:
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1. to convert the existing Tranche A Loan and outstanding Line of
Credit Loans into a single Tranche A Loan aggregating $2,631,570 and having a
maturity date of June 30, 2003, as to which Holdings shall be a direct
co-Borrower with Kolar, Inc.; and
2. to include the Deficiency Debt within the indebtedness of the
Borrower covered by the Original Credit Agreement (as so amended and restated)
and to convert the Deficiency Debt into a term loan having a maturity date of
June 30, 2003 and designated in the Amended and Restated Credit Agreement as the
"Tranche C Loan" having a security interest in all of the assets of Holdings and
the Borrower, which Tranche C Loan shall be subordinated to the Tranche A and
Tranche B Loans as to payment and as to such security interest, subject to the
terms of this Agreement;.
G. The Subordinated Lenders have agreed that the Seller Note and the
Subordinated Obligations shall continue to be subordinated and junior in right
of payment to the Tranche A and Tranche B Loans and in addition shall be
subordinated and junior in right of payment to the Tranche C Loan, and for such
purpose are entering into this Amendment and are contemporaneously herewith
executing an amended and restated Seller Note as defined below.
H. Capitalized term used herein, other than those defined or redefined below,
shall have the meanings ascribed to them in the Original Subordination
Agreement.
NOW THEREFORE, in consideration of the agreement of the Senior Lenders,
the Administrative Agent and the other parties to the Original Credit Agreement
to execute deliver and perform the Amended and Restated Credit Agreement, and
for other good and valuable consideration, the parties hereto hereby agree that
the Original Seller Subordination Agreement shall be amended as follows:
1. Definitions.
(a) The following definitions set forth in section 1(b) of the Original
Seller Subordination Agreement shall be amended in their entirety to read as
follows:
"KMI": Ralok, Inc., formerly known as Kolar Machine, Inc.
"Seller Note": the 8% Convertible Subordinated Promissory
Note, dated October 9, 1997, issued by the Borrower to KMI, as amended
and restated as of the date hereof (hereafter the "Amended and Restated
Seller Note") together with any replacement thereof in whole or in
part, in each case as amended, supplemented or otherwise modified from
time to time hereafter.
"Senior Credit Agreement": the Credit Agreement, dated as of
October 9, 1997, among Holdings, the Borrower, the Administrative Agent
and the Lenders parties thereto from time to time, as such Credit
Agreement has heretofore been amended and is being amended and restated
in the Amended and Restated Credit Agreement executed and delivered as
of the date hereof, and as the same may be further amended,
supplemented or otherwise modified from time to time, together with any
one or more successive increases, renewals, extensions, refundings,
deferrals, restructurings, replacements or refinancings of, or
additions to, the arrangements provided in such Credit Agreement or
Amended and Restated Credit Agreement (whether provided by the original
Administrative Agent and Lenders under such Amended and Restated Credit
Agreement or a successor Administrative Agent or other Lenders).
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"Subordinated Lender Pari Passu Share" as defined in Section
2(f), as added by this Amendment..
"Senior Loans": the loans made by the Senior Lenders (or any
of them) to Holdings or the Borrower in connection with the Senior
Credit Agreement (including, for avoidance of doubt, the Tranche C
Loan) or the Additional Senior Debt.
"Subordinated Loan Documents": the collective reference to the
Seller Note, the Subordinated Guarantee, the Subordinated Security
Documents and any other documents or instruments that from time to time
evidence the Subordinated Obligations or secure or support payment or
performance thereof, all as the same have previously been amended, are
being amended contemporaneously herewith or are hereafter amended with
the consent of the Administrative Agent.
(b) The following definitions are added:
This "Agreement" refers to the Original Seller Subordination
Agreement, as previously amended, as amended by this amendment as it
may hereafter be amended with the consent of the Administrative Agent.
"Original Seller Subordination Agreement" as defined in the
Introduction to this Amendment.
"Restated Note" means the Amended and Restated Seller Note
being executed by Ralok, Inc. contemporaneously herewith.
"Tranche C Lenders" means the Lender or Lenders under the
Senior Credit Agreement holding all or a portion of the Tranche C Loan.
"Tranche C Loan" as defined in Recital E (2).
(c) Definitions included in the Original Seller Subordination Agreement
which are not specifically amended hereby shall continue to apply to the
Original Seller Subordination Agreement as amended hereby.
2. Tranche C Subordination Modification in Certain Events
(a) Section 2 of the Original Seller Subordination Agreement is
modified by adding, at the end thereof, an additional subsection 2(f) which
reads as follows:
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"(f) (i) Notwithstanding the forgoing, if, pursuant to the
Seller Note, the maturity date of the Seller Note is extended to a date
which is after September 28, 2005 (respectively, the "Trigger
Extension" and the "Trigger Extension Date"), then any payments made to
a Lender or the Administrative Agent in respect of the Tranche C Loan
(the "Tranche C Payment") after the Trigger Extension Date, whether of
principal or interest, shall be shared by the Tranche C Lenders with
the Subordinated Lenders, pro rata in accordance with the respective
aggregates of the principal and interest outstanding (A) pursuant to
the Seller Note and (B) in respect of the Tranche C Loan on the date
such Tranche C Payment is received. Any amount payable to the
Subordinated Lenders pursuant to the preceding sentence is referred to
as the "Subordinated Lender Pari Passu Share."
(ii) In order to give effect to the preceding
paragraph, if a Trigger Extension occurs and any Tranche C Lender or
the Administrative Agent receives a Tranche C Payment after the Trigger
Extension Date, such Tranche C Lender or the Administrative Agent shall
be deemed to have received such payment in trust for the Subordinated
Lenders to the extent of the Subordinated Lender Pari Passu Share. The
Tranche C Lender or the Administrative Agent, as the case may be, shall
give the Subordinated Lenders written notice of such receipt within
five (5) business days of such receipt and shall, within ten (1)
business days of such receipt, pay over to the Subordinated Lenders
Subordinated Lender Pari Passu Share. Notwithstanding the forgoing, the
obligation of a Tranche C Lender or the Administrative Agent to pay
over a Subordinated Lender Pari Passu Share to the Subordinated Lenders
shall be subject to any obligation which may be imposed by law upon the
Tranche C Lender or the Administrative Agent otherwise to dispose of a
Tranche C Payment, including any obligation so imposed in accordance
with any proceeding or obligation (including but not limited to a
proceeding or obligation under the United States Bankruptcy Code)
arising out of or in connection with an Insolvency Event.
3. Additional Provisions Concerning Subordination
(a) Section 3(a) of the Original Seller Subordination Agreement is
amended to read as follows:
"(1) all Senior Obligations shall be paid in full before any
payment or distribution is made with respect to the Subordinated
Obligations; provided, however, that the Subordinated Lender shall be
entitled to payment of the Subordinated Lender Pari Passu Share under
the circumstances described in Section 2(f)."
(b) Section 3(c) of the Original Seller Subordination Agreement is
amended to read as follows:
"(c) If any payment or distribution, whether consisting of
money, property or securities, shall be collected or received by any
Subordinated Lender in respect of the Subordinated Obligations, except
payments permitted to be made at the time of payment as expressly
provided in Section 2(b), such Subordinated Lender forthwith shall
deliver the same to the Administrative Agent for the account of the
Senior Lenders, in the form received, duly indorsed to the
Administrative Agent, if required, to be applied to the payment or
prepayment of the Senior Obligations until the Senior Obligations are
paid in full; provided, however, that if the Tranche A and Tranche B
Loans have been paid in full, the Subordinated Lenders shall be
entitled to retain an amount equal to the Subordinated Lender Pari
Passu Share with respect to payments made under the circumstances
described in Section 2(f). Until so delivered, such payment or
distribution shall be held in trust by such Subordinated Lender as the
property of the Administrative Agent, for the account of the Senior
Lenders, segregated from other funds and property held by such
Subordinated Lenders."
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4. Rights in Collateral
(a) Subsection 4(b)(2) of the Original Seller Subordination Agreement
is amended to read as follows:
"(2) Second, to the payment in full of all Senior Obligations
in such order as the Administrative Agent may elect in its sole
discretion; provided, however, that if the Tranche A and Tranche B
Loans have been paid in full, the Subordinated Lenders shall be
entitled to payment of the Subordinated Lender Pari Passu Share with
respect to payments made in respect of the Tranche C Loan under the
circumstances described in Section 2(f)."
5. Subrogation. Section 5 of the Original Seller Subordination
Agreement is amended to add the following sentence at the end thereof:
"Notwithstanding the foregoing, if all of the Tranche A and
Tranche B Loans have been paid in full and a Trigger Extension shall
have occurred, the Subordinated Lenders shall be subrogated to the
rights of the Senior Lenders (1) to the extent of the Subordinated
Lender Pari Passu Share notwithstanding that the Tranche C Loan has not
been paid in full, and (2) to the extent of the entire remaining amount
due under the Seller Note after the Tranche C Loan has been paid in
full.
6. Representations and Warranties.
In order to induce the Administrative Agent and the Lenders to enter
into this Amendment to the Original Seller Subordination Agreement, each of the
Borrowers hereby jointly and severally represent and warrant to the
Administrative Agent and each Lender that:
(a) (1) the Amended and Restated Seller Note has been issued to and
accepted by it for good and valuable consideration, (2) the Amended and Restated
Seller Note is held by such Subordinated Lender free and clear of any security
interests, liens, charges or encumbrances whatsoever arising from, through or
under such Subordinated Lender, other than the interest of the Senior Lenders
under the Original Seller Subordination Agreement as amended hereby, (3) the
Amended and Restated Seller Note is payable solely and exclusively to such
Subordinated Lender and to no other Person, and (4) the Seller Note as so
amended constitutes the only evidence of the obligations evidenced thereby;
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(b) such Subordinated Lender has the corporate power and authority and
the legal right to execute and deliver and to perform its obligations under this
Amendment and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Agreement;
(c) this Amendment constitutes the legal, valid and binding obligations
of such Subordinated Lender;
(d) the execution, delivery and performance of this Amendment and the
Amended and Restated Seller Note will not violate any provision of any law, rule
or regulation or any contractual obligation of such Subordinated Lender and will
not result in the creation or imposition of any lien on any of the properties or
revenues of such Subordinated Lender pursuant to any law, rule or regulation
affecting or any contractual obligation of such Subordinated Lender, except the
interest of the Senior Lenders under this Agreement; and
(e) no consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or governmental authority and no consent of any other
Person (including, without limitation, any stockholder or creditor of such
Subordinated Lender), is required in connection with the execution, delivery,
performance, validity or enforceability of this Amendment and the Amended and
Restated Seller Note.
7. No Representation by Administrative Agent. Neither the
Administrative Agent nor any Senior Lender has made, and n one of them hereby or
otherwise makes to the Subordinated Lenders, any representations or warranties,
express, or implied, nor does the Administrative Agent or any Senior Lender
assume any liability to any Subordinated Lender with respect to: (a) the
financial or other condition of obligors in respect of the Senior Obligations or
the Subordinated Obligations, (b) the enforceability, validity, value or
collectibility of the Senior Obligations or the Subordinated Obligations, any
collateral therefor, or any guarantee or security which may have been granted in
connection with any of the Senior Obligations or the Subordinated Obligations or
(c) Holdings' or the Borrower's title or right to transfer any collateral or
security.
8. Expenses. Holdings and the Borrower, jointly and severally,
agree to pay or reimburse the Administrative Agent and each Senior Lender, upon
demand, for all its costs and expenses in connection with the negotiation and
execution of this Amendment and the Amended and Restated Seller Note.
9. Notices. Section 19 of the Original Seller Subordination
Agreement is amended to change addresses to which notices shall be given, as
follows:
If the Administrative Agent: JPMorgan Chase Bank
395 North Service Road
Suite 302
Melville, New York 11747
Attn: Relationship Manager -
CPI Aerostructures, Inc.
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If to Holdings: CPI Aerostructures, Inc.
200A Executive Drive
Edgewood, NY 11717
Attn: Edward J. Fred, President
Fax: (516) 586-5840
If to the Borrower: Kolar, Inc.
200A Executive Drive
Edgewood, NY 11717
Attn: Edward J. Fred, President
Fax: (516) 586-5840
If to the Subordinated Lender: Ralok, Inc.
c/o Daniel Liquori
1001 Bay Road, #210C
Vero Beach, Florida 32963
With a copy to: David Holstein
Green & Seifter, Attorneys, PLLC.
900 One Lincoln Center
Syracuse, New York 13202
Fax:( 315) 422-3549
10. Counterparts. This Amendment may be executed by one or more of
the parties on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the counterparts of this Amendment signed by all the parties shall be lodged
with the Administrative Agent.
11. Integration. This Amendment to Original Seller Subordination
Agreement represents the agreement of the Administrative Agent and the Senior
Lenders and the Subordinated Lenders with respect to the subject matter hereof
and there are no promises or representations by the Administrative Agent or any
Senior Lender or any Subordinated Lender relative to the subject matter hereof
not reflected herein.
Signature Page Follows
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to Intercreditor and Subordination Agreement to be duly executed and
delivered as of the day and year first above written.
RALOK, INC.
By: /s/ Daniel Liguori
------------------
Name: Daniel Liguori
Title: President
CPI AEROSTRUCTURES, INC.
By: /s/ Edward J. Fred
------------------
Name: Edward J. Fred
Title: President
KOLAR, INC.
By: /s/ Edward J. Fred
-------------------
Name: Edward J. Fred
Title: Executive Vice President
JPMorgan Chase Bank, as Administrative Agent
By: /s/ Lucille McArdle
-------------------
Name: Lucille McArdle
Title: Vice President
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