Exhibit 10.16
LANDLORD'S WAIVER
WHEREAS, ARMCO, INC., ("Landlord"), is the owner of certain real
estate located at 000 Xxxxx Xxxx, Xxxxxxxxxxx, XX 00000 (the "Premises"), which
Premises are presently leased to UNIVERSAL STAINLESS & ALLOY PRODUCTS, INC. (the
tenant under such lease and referred to hereinafter as the "Tenant"), pursuant
to a lease dated as of August 15, 1994 (said lease, together with all
amendments, extensions, renewals, substitutions and replacements thereof or
thereto, the "Lease"); and
WHEREAS, PNC Bank, National Association (together with its successors and
assigns, the "Bank") has agreed to make certain credit facilities available to
the Tenant pursuant to that certain Second Amended and Restated Credit Agreement
dated as of January 30, 1998 by and between the Tenant and the Bank (the Second
Amended and Restated Credit Agreement, together with all exhibits, schedules,
amendments, extensions, renewals, substitutions and replacements thereto and
thereof is hereinafter referred to as the "Credit Agreement") and in connection
therewith, the Tenant is required to grant liens and security interests to the
Bank in all of its tangible and intangible property, including but not limited
to all of its general intangibles, goods, chattel paper, documents, instruments,
accounts, equipment, fixtures and inventory, and all additions, replacements,
improvements and renewals thereto, and all accessions, parts, accessories and
appurtenances related thereto, and all products and proceeds thereof
(collectively the "Collateral"); and
WHEREAS, the Bank is willing to extend credit to the Tenant only if the
Landlord subordinates and waives as to the Bank any statutory or contractual
lien the Landlord may now have or hereafter acquire with respect to said
Collateral.
NOW, THEREFORE, in consideration of the premises (each of which is
incorporated herein by reference) and the mutual promises contained herein and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and with the intent to be legally bound hereby, the
Landlord agrees as follows:
1. The Landlord agrees that any and all liens (both statutory and
contractual), arising under or by virtue of the Lease, including, but not
limited to, the right to levy, distrain, xxx, execute or sell for unpaid rent,
which the Landlord now has or may hereafter acquire on, in or with respect to
any or all of the Collateral shall be subordinate and inferior to the liens and
security interests in or with respect to any or all of the Collateral in favor
of the Bank. Until the Bank shall be paid in full for the monies owed it by the
Tenant and the Credit Agreement terminated, the Landlord hereby waives any right
the Landlord might otherwise have to subrogation to the right of the Bank or to
the marshalling of the Tenant's assets.
2. The Landlord agrees that all Collateral now or hereafter pledged to the
Bank or in which the Bank has or is granted a lien or security interest shall,
at all times, be
EXHIBIT G
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considered to be personal property and shall not constitute fixtures or become a
part of the Premises, so long as any monies are owing to the Bank by the Tenant.
3. The Landlord agrees that the Bank, through its authorized agents or
representatives, upon the occurrence of an Event of Default under the Credit
Agreement, may enter upon the Premises, and any other premises of the Landlord
where any of the Collateral may be found, at any time and from time to time, for
purposes of removing any or all of the Collateral and/or conducting on the
Premises a sale or sales of any or all of the Collateral, and the Bank shall
have no obligation to the Landlord except the obligation to pay to the Landlord
a rental for the Premises at a rate per month set forth in the Lease for the
period beginning on the date the Bank notifies the Landlord of the Bank's intent
to enter upon the Premises and to possess the Collateral and ending on the date
the Bank notifies Landlord that the Bank has completed its use of the Premises
for the removal and/or sale or sales of the Collateral. The Landlord
acknowledges that all Collateral removed from the Premises shall be free and
clear of any lien, claim or interest of the Landlord.
4. The Landlord warrants that the Landlord is not aware of any facts
indicating that the Lease is in default. The Landlord agrees to give the Bank
written notice of the termination of the Lease or the occurrence of any event
which itself or which, with the giving of notice or the passage of time or both,
would constitute a default under the Lease or which otherwise would or could
result in the creation of any right or remedy of the Landlord to terminate the
Lease or any lease covering all or any part of the Premises or to accelerate any
rent due thereunder or to take possession of the Premises or any or all of the
Collateral. The Landlord will provide the Bank ten (10) business days prior
written notice of the intention of the Landlord to file a notice of distraint.
Any and each such notice shall be sent by the Landlord to the Bank, Attention:
Xxxx X. Xxxxxxxxxx, Energy, Metals and Mining Segment, PNC Bank, National
Association, One PNC Plaza, 2nd Floor, 000 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000.
5. The Bank may at any time and from time to time, without affecting the
validity or effect of this Landlord's Waiver, extend the terms of payment of any
or all of the indebtedness of the Tenant to the Bank, or alter the performance
of any of the terms and conditions of any agreement, document or instrument
evidencing or securing any or all of such indebtedness, without the consent of
the Landlord and without giving notice thereof to the Landlord. The Bank's
failure to comply with the notice provisions of this paragraph shall not
constitute a breach of any contract or otherwise subject the Bank to any
liability.
6. THIS LANDLORD'S WAIVER SHALL BE CONSTRUED AND GOVERNED UNDER THE LAWS OF
THE COMMONWEALTH OF PENNSYLVANIA. If any provision of this Landlord's Waiver
shall be unenforceable under applicable law or under a holding of a court of
competent jurisdiction, such provision shall be deemed ineffective and deleted
to the extent of such unenforceability without affecting or impairing any other
provision hereof.
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7. The Landlord and the Tenant specifically acknowledge that by execution of
this Landlord's Waiver they intend to create rights in favor of the Bank to
enforce the terms of this Landlord's Waiver against the Landlord or the Tenant
or both, and the Bank shall be justified in relying upon the terms and
provisions of this Landlord's Waiver.
8. The benefits and burdens of this Landlord's Waiver shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties hereto, and no other person, firm, corporation or entity shall have or
acquire any right, benefit, interest or priority under, or as a result of the
existence of, this Landlord's Waiver. The Landlord hereby agrees to make this
Landlord's Waiver known to any transferee of the Premises and any person who may
have or acquire any right or interest in the Premises.
9. This Landlord's Waiver may be executed in two or more counterparts, each of
which when executed by the Tenant and the Landlord shall be regarded as an
original; and all such counterparts shall constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the undersigned, with the intent to be legally bound
hereby, have caused this Landlord's Waiver to be executed by their respective
duly authorized officers as of the 30th day of January, 1998.
TENANT:
WITNESS: UNIVERSAL STAINLESS & ALLOY
PRODUCTS, INC., a Delaware corporation
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxx X. XxXxxxx
________________________________ By:__________________________________ (SEAL)
Name:
Xxxx X. XxXxxxx
Name:______________________________________
Director Employee Relations/
General Counsel
Title:_____________________________________
WITNESS: PNC BANK, NATIONAL
ASSOCIATION
/s/ Xxxxxxx Xxxxxxxxxxx /s/ Xxxx X. Xxxxxxxxxx
________________________________ By:__________________________________ (SEAL)
Name:
Xxxx X. Xxxxxxxxxx
Name:______________________________________
Vice President
Title:_____________________________________
LANDLORD:
WITNESS: ARMCO, INC.
/s/ X.X. Xxxxxx, Xx. /s/ X. X. Xxxxxxx
________________________________ By:__________________________________ (SEAL)
Name:
Xxxxx X. Xxxxxxx
Name:______________________________________
Vice President
Title:_____________________________________
BF 78644.4 - 01/28/98
000011 - 016885
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(Tenant)
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF ALLEGHENY )
On this, the 25th day of February, 1998, before me, the undersigned officer,
personally appeared Xxxx X. XxXxxxx, who acknowledged himself to be the
Corporate Secretary/General Counsel of UNIVERSAL STAINLESS & ALLOY PRODUCTS,
INC., a Delaware corporation, and that he as such Corporate Secretary/General
Counsel, being authorized to do so, executed the foregoing instrument for the
purpose therein contained by signing the name of the Corporation by himself as
Corporate Secretary/General Counsel.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxx X. Xxxxx
________________________________
Notary Public
My Commission Expires: September 10, 2001
BF 78644.4 - 01/28/98
000011 - 016885
(Bank)
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF ALLEGHENY )
On this, the 30th day of January, 1998, before me, the undersigned officer,
personally appeared Xxxx X. Xxxxxxxxxx, who acknowledged himself to be a Vice
President of PNC Bank, National Association, a national banking association, and
that he as such officer, being authorized to do so, executed the foregoing
instrument for the purpose therein contained by signing the name of the
corporation by himself as Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxx X. XxXxxxx
________________________________
Notary Public
My Commission Expires: May 19, 2001
BF 78644.4 - 01/28/98
000011 - 016885
(Landlord)
STATE OF PENNSYLVANIA )
) SS:
COUNTY OF ALLEGHENY )
On this, the 20th day of February, 1998, before me, the undersigned officer,
personally appeared Xxxxx X. Xxxxxxx, who acknowledged himself to be the Vice
President of ARMCO, INC., and that he as such Vice President, being authorized
to do so, executed the foregoing instrument for the purpose therein contained by
signing the name of the corporation by himself as Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxx X. Xxxxxx
________________________________
Notary Public
My Commission Expires: July 4, 1998
BF 78644.4 01/28/98
000011 - 016885
