Exhibit 10.2
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement"), dated as of June 30,
2008, is made by Xxxxx X. Xxxxxxx XX (the "Subordinated Creditor"), for the
benefit of XXXXX FARGO BANK, NATIONAL ASSOCIATION (with its participants,
successors and assigns, "Xxxxx Fargo").
Ronson Corporation, a New Jersey corporation, Ronson Consumer Products
Corporation, a New Jersey corporation, Ronson Aviation, Inc., a New Jersey
corporation and Ronson Corporation of Canada (Ltd.), a corporation organized
under the laws of Ontario, Canada (collectively, the "Company"), are now or
hereafter may be indebted to Xxxxx Fargo on account of loans or the other
extensions of credit or financial accommodations from Xxxxx Fargo to the
Company, or to any other person under the guaranty or endorsement of the
Company.
The Subordinated Creditor has made or may make loans or grant other
financial accommodations to the Company.
As a condition to making any loan or extension of credit to the
Company, Xxxxx Fargo has required that the Subordinated Creditor subordinate the
payment of the Subordinated Creditor's loans and other financial accommodations
to the payment of any and all indebtedness of the Company to Xxxxx Fargo.
Assisting the Company in obtaining credit accommodations from Xxxxx Fargo and
subordinating his interests pursuant to the terms of this Agreement are in the
Subordinated Creditor's best interest.
ACCORDINGLY, in consideration of the loans and other financial
accommodations that have been made and may hereafter be made by Xxxxx Fargo for
the benefit of the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Subordinated
Creditor hereby agrees as follows:
1. Definitions. As used herein, the following terms have the meanings
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set forth below:
"Company Default" means a Default or Event of Default as
defined in any agreement or instrument evidencing, governing, or issued
in connection with Xxxxx Fargo Indebtedness, including, but not limited
to, the Credit Agreement, or any default under or breach of any such
agreement or instrument.
"Collateral" means all collateral now or hereafter securing
payment of Xxxxx Fargo Indebtedness, including all proceeds thereof.
"Credit Agreement" means that certain Credit and Security
Agreement dated as of May 30, 2008, by and between the Company and
Xxxxx Fargo as the same may be amended, supplemented or restated from
time to time.
"Lien" means any security interest, mortgage, deed of trust,
pledge, lien, charge, encumbrance, title retention agreement or
analogous instrument or device, including the interest of each lessor
under any capitalized lease and the interest of any bondsman under any
payment or performance bond, in, of or on any assets or properties of a
Person, whether now owned or hereafter acquired and whether arising by
agreement or operation of law.
"Xxxxx Fargo Indebtedness" is used herein in its most
comprehensive sense and means any and all advances, debts, obligations
and liabilities of the Company to Xxxxx Fargo, heretofore, now or
hereafter made, incurred or created, whether voluntary or involuntary
and however arising, whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, including under
any swap, derivative, foreign exchange, hedge, deposit, treasury
management or other similar transaction or arrangement at any time
entered into by the Company with Xxxxx Fargo, and whether the Company
may be liable individually or jointly with others, or whether recovery
upon such Indebtedness may be or hereafter becomes unenforceable.
"Subordinated Indebtedness" means all obligations arising
under the Subordinated Note.
"Subordinated Note" means that certain Subordinated Demand
Promissory Note, dated as of June 30, 2008, made by Ronson Corporation
and payable to the order of the Subordinated Creditor in the original
principal amount of $225,000, a copy of which is attached hereto as
Exhibit A, together with all renewals, extensions and modifications
thereof and any note or notes issued in substitution therefor.
2. Subordination. The payment of all of the Subordinated Indebtedness
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is hereby expressly subordinated to the extent and in the manner hereinafter set
forth to the payment in full of Xxxxx Fargo Indebtedness; and regardless of any
priority otherwise available to the Subordinated Creditor by law or by
agreement, Xxxxx Fargo shall hold a first priority Lien in the Collateral, and
any Lien claimed therein by the Subordinated Creditor shall be and remain fully
subordinate for all purposes to the Lien of Xxxxx Fargo therein for all purposes
whatsoever. The Subordinated Indebtedness shall continue to be subordinated to
Xxxxx Fargo Indebtedness even if Xxxxx Fargo Indebtedness is deemed unsecured,
under-secured, subordinated, avoided or disallowed under the United States
Bankruptcy Code or other applicable law.
3. Payments. Until all of Xxxxx Fargo Indebtedness has been paid in
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full and Xxxxx Fargo has released its Lien in the Collateral, the Subordinated
Creditor shall not, without Xxxxx Fargo's prior written consent, demand, receive
or accept any payment (whether of principal, interest or otherwise) from the
Company in respect of the Subordinated Indebtedness, or exercise any right of or
permit any setoff in respect of the Subordinated Indebtedness; provided,
however, so long as no Company Default has occurred and is continuing or will
occur as a result of or immediately following payment of any of the following
amounts, the Company may pay and the Subordinated Creditor may accept (1)
regularly scheduled payments of interest on the Subordinated Indebtedness at the
"Interest Rate" as such term is defined in the
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Subordinated Note in effect as of the date of this Agreement and set forth in
the copy of such note attached hereto as Exhibit A and (2) a principal payment
in respect of the Subordinated Indebtedness in the event and to the extent that
the reserve of $225,000 described in that certain letter agreement by and among
the Company and Xxxxx Fargo dated May 30, 2008, a copy of which is attached
hereto as Exhibit B, is released pursuant to the terms of such letter agreement.
4. Receipt of Prohibited Payments. If the Subordinated Creditor
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receives any payment on the Subordinated Indebtedness that the Subordinated
Creditor is not entitled to receive under the provisions of this Agreement, the
Subordinated Creditor will hold the amount so received in trust for Xxxxx Fargo
and will forthwith turn over such payment to Xxxxx Fargo in the form received
(except for the endorsement of the Subordinated Creditor where necessary) for
application to then-existing Xxxxx Fargo Indebtedness (whether or not due), in
such manner of application as Xxxxx Fargo may deem appropriate. If the
Subordinated Creditor exercises any right of setoff which the Subordinated
Creditor is not permitted to exercise under the provisions of this Agreement,
the Subordinated Creditor will promptly pay over to Xxxxx Fargo, in immediately
available funds, an amount equal to the amount of the claims or obligations
offset. If the Subordinated Creditor fails to make any endorsement required
under this Agreement, Xxxxx Fargo, or any of its officers or employees or agents
on behalf of Xxxxx Fargo, is hereby irrevocably appointed as the
attorney-in-fact (which appointment is coupled with an interest) for the
Subordinated Creditor to make such endorsement in the Subordinated Creditor's
name.
5. Action on Subordinated Indebtedness. The Subordinated Creditor will
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not commence any action or proceeding against the Company to recover all or any
part of the Subordinated Indebtedness, or join with any creditor (unless Xxxxx
Fargo shall so join) in bringing any proceeding against the Company under any
bankruptcy, reorganization, readjustment of debt, arrangement of debt
receivership, liquidation or insolvency law or statute of the federal or any
state government, or take possession of, sell, or dispose of any Collateral, or
exercise or enforce any right or remedy available to the Subordinated Creditor
with respect to any such Collateral, unless and until Xxxxx Fargo Indebtedness
has been paid in full and Xxxxx Fargo has released its Lien in the Collateral.
6. Action Concerning Collateral.
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(a) Notwithstanding any Lien now held or hereafter acquired by
the Subordinated Creditor, Xxxxx Fargo may take possession of, sell,
dispose of, and otherwise deal with all or any part of the Collateral,
and may enforce any right or remedy available to it with respect to the
Company or the Collateral, all without notice to or consent of the
Subordinated Creditor except as specifically required by applicable
law.
(b) In addition, and without limiting the generality of the
foregoing, if (i) a Company Default has occurred and is continuing,
(ii) the Company or the Lender intends to sell or otherwise dispose of
any Collateral to an unrelated third party outside the ordinary course
of business, (iii) Xxxxx Fargo has given written notice thereof to the
Subordinated Creditor, and (iv) the Subordinated Creditor has failed,
within ten (10) days after receipt of such notice, to purchase for cash
Xxxxx Fargo Indebtedness for the full
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amount thereof, the Subordinated Creditor shall be deemed to have
consented to such sale or disposition, to have released any Lien it may
have in such Collateral and to have authorized Xxxxx Fargo or its
agents to file partial releases (and any related financing statements
such as "in lieu" financing statements under Part 7 of Article 9 of the
Uniform Commercial Code) with respect to such Collateral.
(c) Xxxxx Fargo shall have no duty to preserve, protect, care
for, insure, take possession of, collect, dispose of, or otherwise
realize upon any of the Collateral, and in no event shall Xxxxx Fargo
be deemed the Subordinated Creditor's agent with respect to the
Collateral. All proceeds received by Xxxxx Fargo with respect to any
Collateral may be applied, first, to pay or reimburse Xxxxx Fargo for
all costs and expenses (including reasonable attorneys' fees) incurred
by Xxxxx Fargo in connection with the collection of such proceeds, and,
second, to any Xxxxx Fargo Indebtedness secured by Xxxxx Fargo's Lien
in that Collateral in any order that it may choose.
7. Bankruptcy and Insolvency. In the event of any receivership,
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insolvency, bankruptcy, assignment for the benefit of creditors, reorganization
or arrangement with creditors, whether or not pursuant to bankruptcy law, the
sale of all or substantially all of the assets of the Company, dissolution,
liquidation or any other marshalling of the assets or liabilities of the
Company, the Subordinated Creditor will file all claims, proofs of claim or
other instruments of similar character necessary to enforce the obligations of
the Company in respect of the Subordinated Indebtedness and will hold in trust
for Xxxxx Fargo and promptly pay over to Xxxxx Fargo in the form received
(except for the endorsement of the Subordinated Creditor where necessary) for
application to the then-existing Xxxxx Fargo Indebtedness, any and all moneys,
dividends or other assets received in any such proceedings on account of the
Subordinated Indebtedness, unless and until Xxxxx Fargo Indebtedness has been
paid in full and Xxxxx Fargo's Lien in the Collateral has been terminated. If
the Subordinated Creditor shall fail to take any such action, Xxxxx Fargo, as
attorney-in-fact for the Subordinated Creditor, may take such action on the
Subordinated Creditor's behalf. The Subordinated Creditor hereby irrevocably
appoints Xxxxx Fargo, or any of its officers or employees on behalf of Xxxxx
Fargo, as the attorney-in-fact for the Subordinated Creditor (which appointment
is coupled with an interest) with the power but not the duty to demand, xxx for,
collect and receive any and all such moneys, dividends or other assets and give
acquittance therefor and to file any claim, proof of claim or other instrument
of similar character, to vote claims comprising Subordinated Indebtedness to
accept or reject any plan of partial or complete liquidation, reorganization,
arrangement, composition or extension and to take such other action in Xxxxx
Fargo's own name or in the name of the Subordinated Creditor as Xxxxx Fargo may
deem necessary or advisable for the enforcement of the agreements contained
herein; and the Subordinated Creditor will execute and deliver to Xxxxx Fargo
such other and further powers-of-attorney or instruments as Xxxxx Fargo may
request in order to accomplish the foregoing. If Xxxxx Fargo desires to permit
the use of cash collateral or to provide post-petition financing to the Company,
the Subordinated Creditor shall not object to the same or assert that its
interests are not being adequately protected.
8. Restrictive Legend; Transfer of Subordinated Indebtedness. The
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Subordinated Creditor will cause the Subordinated Note and all other notes,
bonds, debentures or
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other instruments evidencing the Subordinated Indebtedness or any part thereof
to contain a specific statement thereon to the effect that the indebtedness
thereby evidenced is subject to the provisions of this Agreement, and the
Subordinated Creditor will xxxx its books conspicuously to evidence the
subordination effected hereby. Attached hereto is a true and correct copy of the
Subordinated Note bearing such legend. At the request of Xxxxx Fargo, the
Subordinated Creditor shall deposit with Xxxxx Fargo the Subordinated Note and
all of the other notes, bonds, debentures or other instruments evidencing the
Subordinated Indebtedness, which notes, bonds, debentures or other instruments
may be held by Xxxxx Fargo so long as any Xxxxx Fargo Indebtedness remains
outstanding or Xxxxx Fargo's Lien in the Collateral has not been terminated. The
Subordinated Creditor is the lawful holder of the Subordinated Note and has not
transferred any interest therein to any other person or entity. Without the
prior written consent of Xxxxx Fargo, the Subordinated Creditor will not assign,
transfer or pledge to any other person any of the Subordinated Indebtedness or
agree to a discharge or forgiveness of the same.
9. Continuing Effect. This Agreement shall constitute a continuing
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agreement of subordination, and Xxxxx Fargo may, without notice to or consent by
the Subordinated Creditor, modify any term of Xxxxx Fargo Indebtedness in
reliance upon this Agreement. Without limiting the generality of the foregoing,
Xxxxx Fargo may, at any time and from time to time, without the consent of or
notice to the Subordinated Creditor and without incurring responsibility to the
Subordinated Creditor or impairing or releasing any of Xxxxx Fargo's rights or
any of the Subordinated Creditor's obligations hereunder:
(a) change the interest rate or change the amount of payment
or extend the time for payment or renew or otherwise alter the terms of
any Xxxxx Fargo Indebtedness or any instrument evidencing the same in
any manner;
(b) sell, exchange, release or otherwise deal with any
property at any time securing payment of Xxxxx Fargo Indebtedness or
any part thereof;
(c) release anyone liable in any manner for the payment or
collection of Xxxxx Fargo Indebtedness or any part thereof;
(d) exercise or refrain from exercising any right against the
Company or any other person (including the Subordinated Creditor); and
(e) apply any sums received by Xxxxx Fargo, by whomsoever paid
and however realized, to Xxxxx Fargo Indebtedness in such manner as
Xxxxx Fargo shall deem appropriate.
10. No Commitment. None of the provisions of this Agreement shall be
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deemed or construed to constitute or imply any commitment or obligation on the
part of Xxxxx Fargo to make any future loans or other extensions of credit or
financial accommodations to the Company.
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The Subordinated Creditor hereby waives any and all right to require
the marshalling of assets in connection with the exercise of any of Xxxxx
Fargo's remedies permitted by applicable law or agreement.
11. Notice. All notices and other communications hereunder shall be in
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writing and shall be (i) personally delivered, (ii) transmitted by registered
mail, postage prepaid, or (iii) transmitted by telecopy, in each case addressed
to the party to whom notice is being given at its address as set forth below:
If to Xxxxx Fargo:
Xxxxx Fargo Business Credit
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Relationship Manager for Ronson Corporation
If to the Subordinated Creditor:
Xxxxx X. Xxxxxxx XX
Ronson Corporation
Corporate Park III
Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
Telecopier: : (000) 000-0000
or at such other address as may hereafter be designated in writing by that
party. All such notices or other communications shall be deemed to have been
given on (i) the date received if delivered personally, (ii) the date of posting
if delivered by mail, or (iii) the date of transmission if delivered by
telecopy.
12. Conflict in Agreements. If the subordination provisions of any
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instrument evidencing Subordinated Indebtedness conflict with the terms of this
Agreement, the terms of this Agreement shall govern the relationship between
Xxxxx Fargo and the Subordinated Creditor.
13. No Waiver. No waiver shall be deemed to be made by Xxxxx Fargo of
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any of its rights hereunder unless the same shall be in writing signed on behalf
of Xxxxx Fargo, and each such waiver, if any, shall be a waiver only with
respect to the specific matter or matters to which the waiver relates and shall
in no way impair the rights of Xxxxx Fargo or the obligations of the
Subordinated Creditor to Xxxxx Fargo in any other respect at any time.
14. Binding Effect; Acceptance. This Agreement shall be binding upon
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the Subordinated Creditor and the Subordinated Creditor's heirs, legal
representatives, successors and assigns and shall inure to the benefit of Xxxxx
Fargo and its participants, successors and assigns irrespective of whether this
or any similar agreement is executed by any other creditor of
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the Company. Notice of acceptance by Xxxxx Fargo of this Agreement or of
reliance by Xxxxx Fargo upon this Agreement is hereby waived by the Subordinated
Creditor.
15. Miscellaneous. The paragraph headings herein are included for
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convenience of reference only and shall not constitute a part of this Agreement
for any other purpose. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
16. Governing Law; Consent to Jurisdiction and Venue; Waiver of Jury
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Trial. This Agreement shall be governed by and construed in accordance with the
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substantive laws (other than conflict laws) of the State of New York. Each party
consents to the personal jurisdiction of the state and federal courts located in
the State of New York in connection with any controversy related to this
Agreement, waives any argument that venue in any such forum is not convenient,
and agrees that any litigation initiated by any of them in connection with this
Agreement may be venued in either the state or federal courts located in New
York County, New York. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED ON OR PERTAINING TO THIS AGREEMENT.
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IN WITNESS WHEREOF, the Subordinated Creditor has executed this
Agreement as of the date and year first above-written.
/s/ Xxxxx X. Xxxxxxx XX
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XXXXX X. XXXXXXX XX
Acknowledgment by Company
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The undersigned, being the Company referred to in the foregoing
Agreement, hereby (i) acknowledges receipt of a copy thereof, (ii) agrees to all
of the terms and provisions thereof, (iii) agrees to and with Xxxxx Fargo that
it shall make no payment on the Subordinated Indebtedness that the Subordinated
Creditor would not be entitled to receive under the provisions of the Agreement,
(iv) agrees that any such payment will constitute a default under Xxxxx Fargo
Indebtedness, and (v) agrees to xxxx its books conspicuously to evidence the
subordination of the Subordinated Indebtedness effected hereby.
RONSON CORPORATION
By /s/ Xxxxx X. Xxxxxxx XX
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Name: Xxxxx X. Xxxxxxx XX
Title: President and Chief Executive Officer
RONSON CONSUMER PRODUCTS CORPORATION
By /s/ Xxxxx X. Xxxxxxx XX
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Name: Xxxxx X. Xxxxxxx XX
Title: President and Chief Executive Officer
RONSON AVIATION, INC.
By /s/ Xxxxx X. Xxxxxxx XX
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Name: Xxxxx X. Xxxxxxx XX
Title: President and Chief Executive Officer
RONSON CORPORATION OF CANADA LTD.
By /s/ Xxxxx X. Xxxxxxx XX
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Name: Xxxxx X. Xxxxxxx XX
Title: President and Chief Executive Officer
EXHIBIT A
attach copy of Subordinated Note with following legend
"THIS INSTRUMENT IS SUBJECT TO THE TERMS OF A SUBORDINATION AGREEMENT BY XXXXX
X. XXXXXXX XX IN FAVOR OF XXXXX FARGO BANK, NATIONAL ASSOCIATION, DATED JUNE 30,
2008."
