ESCROW AGREEMENT
ESCROW AGREEMENT dated as of the 28th day of October, 1997,
among CENTRAL CPVC CORPORATION as "Borrower," XXXXX BROTHERS XXXXXXXX & CO. as
"Bank" and XXXXX BROTHERS XXXXXXXX & CO. as "Escrow Agent"; this Escrow
Agreement is also joined in by CENTRAL SPRINKLER CORPORATION, CENTRAL SPRINKLER
COMPANY, and CENTRAL CASTINGS CORPORATION as "Guarantors."
BACKGROUND
Under a Term Loan Agreement (the "Loan Agreement"; capitalized
terms not otherwise defined in this Agreement will have the meanings the Loan
Agreement gives to those terms) dated May 30, 1997, the Bank made a term loan
(the "Loan") to the Borrower in the original principal amount of $7,500,000. The
Bank has decided that it cannot maintain the Loan on its existing terms because
of new requirements imposed on the Guarantors by their bank lenders. The Bank is
willing, however, to keep the Loan outstanding while the Borrower seeks to
refinance it, provided that the Borrower deposits into escrow, on the terms set
forth below, funds in the amount of the outstanding principal balance of the
Loan.
Borrower, Bank, and Escrow Agent now wish to enter into this
agreement providing for the appointment of an escrow agent to hold such escrowed
funds and to set forth the terms and conditions under which such funds held in
escrow shall be disbursed.
AGREEMENT
NOW THEREFORE, intending to be legally bound hereby, the
parties hereto agree as follows:
1. Appointment of Escrow Agent. Bank and Borrower hereby
jointly appoint Escrow Agent as the escrow agent under this Escrow Agreement and
Escrow Agent hereby accepts such appointment and agrees to hold all of the funds
deposited into escrow with it pursuant to this Agreement, together with all
interest and income thereon and other proceeds thereof, including proceeds of
the sale or maturity of investments constituting any of the assets held by
Escrow Agent hereunder (collectively, the "Escrow Money") in accordance with the
terms hereof and to perform its other duties hereunder.
2. Establishment of Escrow. Escrow Agent hereby
acknowledges receipt of $7,500,000 paid to it by wire transfer by
or on behalf of Borrower as the initial Escrow Money. Escrow
Agent shall hold the Escrow Money in segregated account No. 246- 208-3, entitled
"Central CPVC Corporation/Xxxxx Brothers Xxxxxxxx & Co. Escrow Account," and
invest and disburse it pursuant to the terms of this Agreement. Borrower hereby
grants to Bank a lien on and security interest in the Escrow Money as security
for the performance by Borrower of its obligations under the Loan Agreement and
the other Loan Documents.
3. Investment of Escrow Money. Until all of the Escrow Money
shall have been disbursed as provided in this Agreement, Escrow Agent shall
invest the same in a money market mutual fund or interest bearing bank account
or in such other investments as Bank and Borrower may from time to time choose
by mutual agreement. All income earned on the Escrow Money shall accumulate in
the Escrow Account and shall be treated as income of Borrower for income tax
purposes. Whenever required by this Agreement to disburse any of the Escrow
Money, Escrow Agent shall promptly liquidate sufficient investments to permit
such disbursement to be made; provided, however, that if the liquidation of any
investment would result in a loss, Escrow Agent, upon the direction of the party
to whom such disbursement is to be made, shall delay such payment as provided by
the direction of such party. Escrow Agent shall, upon the request of any other
party hereto, made not more frequently than monthly, promptly provide such party
with an accounting of the Escrow Money and of all debits and credits thereto.
Such accounting shall also describe the face value and maturity dates of any
investment of the Escrow Money.
4. Disposition of Escrow Money. Escrow Agent shall disburse
the Escrow Money pursuant to the mutual written directions of Bank and Borrower,
or, in the absence of such directions, pursuant to Section 5 hereof.
5. Delivery of Escrow Money by Escrow Agent.
(a) On the earlier of (i) the date on which the
Bank accelerates the Loan by written notice to the Borrower because of
Borrower's failure to pay principal or interest on the Loan when due (after
taking into account any applicable notice and grace period under the Loan
Agreement), (ii) the date on which a petition under the United States Bankruptcy
Code is filed by or against the Borrower or any Guarantor, or (iii) January 31,
1998 (the "Termination Date"), Escrow Agent shall deliver to Bank the Escrow
Money for application to the repayment of the unpaid principal and accrued
interest on the Loan. If after such application any Escrow Money remains, it
shall be disbursed to or as directed by the Borrower.
(b) If before the Termination Date the Bank
receives, from Borrower, Guarantors, or a refinancing source, good funds in the
amount of the outstanding principal balance of
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the Loan plus accrued interest, the Escrow Agent shall disburse the Escrow Money
to or as directed by the Borrower.
6. Resignation or Removal of Escrow Agent. Escrow
Agent may resign at any time upon 30 days' prior notice to Borrower and Bank,
and may be removed by the mutual consent of Borrower and Bank upon 30 days'
prior notice to Escrow Agent. Prior to the effective date of the resignation or
removal of Escrow Agent or any successor escrow agent, Borrower and Bank shall
jointly appoint a successor escrow agent to hold the Escrow Money, and any such
successor escrow agent shall execute and deliver to the predecessor escrow agent
an instrument accepting such appointment, upon which such successor agent shall,
without further act, become vested with all of the rights, powers and duties of
the predecessor escrow agent as if originally named herein. If no successor
escrow agent is appointed prior to the effective date of the termination or
resignation of the Escrow Agent, Escrow Agent may place all of the Escrow Money
at the disposal of a court and petition the court to act as the successor escrow
agent or to appoint another entity to act as the successor escrow agent.
7. Liability of Escrow Agent.
(a) The duties of Escrow Agent hereunder are
entirely administrative and not discretionary. Escrow Agent is obligated to act
only in accordance with written instructions received by it as provided in this
Agreement, is authorized hereby to comply with any orders, judgments or decrees
of any court or arbitration panel and shall not incur any liability as a result
of its compliance with such instructions, orders, judgments or decrees. Escrow
Agent may assume the due execution, validity and effectiveness of, and the truth
and accuracy of any information contained in, any instrument or other document
presented to it which Escrow Agent shall in good faith believe to be genuine,
and to have been signed or presented by the persons or parties purporting to
sign or present the same.
(b) Escrow Agent shall have no liability under,
or duty to inquire into, the terms and provisions of any other agreement between
any of the parties hereto. In the event that any of the terms and provisions of
any other agreement conflict or are inconsistent with any of the terms and
provisions of this Agreement, the terms and provisions of this Agreement in
respect of Escrow Agent's rights and duties shall govern and control in all
respects.
(c) If Escrow Agent shall be uncertain as to its
duties or rights hereunder, it shall be entitled to refrain from taking any
action other than to keep safely all property held in escrow pursuant hereto
until it shall be directed otherwise in a writing signed by Bank and Borrower,
or by an order of a court of
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competent jurisdiction. Escrow Agent may consult with counsel of its choice,
including in-house counsel, and shall not be liable for any action taken,
suffered, or omitted by it in accordance with the advice of such counsel. Escrow
Agent shall not be required to institute legal proceedings of any kind and shall
not be required to defend any legal proceedings which may be instituted against
it in respect of the subject matter of this Agreement unless requested to do so
by another party hereto and indemnified to its reasonable satisfaction against
the costs and expenses of such defense.
(d) Borrower and Bank hereby waive any suit,
claim, demand or cause of action of any kind which either one or both may have
to assert against Escrow Agent arising out of or relating to the execution or
performance by Escrow Agent of this Escrow Agreement, unless such suit, claim,
demand or cause of action is based upon the willful misconduct, gross
negligence, or bad faith of Escrow Agent or Escrow Agent's failure to perform an
express obligation hereunder. Escrow Agent and its partners shall be indemnified
and held harmless against any and all liabilities, including judgments, costs
and reasonable counsel fees, for anything done or omitted by Escrow Agent in the
performance of this Escrow Agreement except as a result of the willful
misconduct, bad faith or gross negligence of Escrow Agent or Escrow Agent's
failure to perform an express obligation hereunder. All such reimbursements and
indemnifications shall be paid by Borrower.
8. Notices. All notices hereunder shall be in writing and
shall be sufficiently given if hand-delivered, sent by documented overnight
delivery service or registered or certified mail, postage prepaid, return
receipt requested or by telegram, fax or telecopy (confirmed by U.S. mail),
receipt acknowledged, addressed as set forth below or to such other person
and/or at such other address as may be furnished in writing by any party hereto
to the other. Any such notice shall be deemed to have been given as of the date
received, in the case of personal delivery, or on the date shown on the receipt
or confirmation therefor, in all other cases.
(a) If to Bank:
Xxxxx Brothers Xxxxxxxx & Co.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Deputy Manager
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(b) If to Borrower or Guarantors:
c/o Central Sprinkler Corporation
000 X. Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx,
Executive Vice President
(c) If to Escrow Agent:
Xxxxx Brothers Xxxxxxxx & Co.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Deputy Manager
9. Entire Agreement and Modification. This Agreement
constitutes the entire agreement between the parties hereto with respect to the
matters contemplated herein and supersedes all prior agreements and
understandings with respect thereto. Any amendment, modification, or waiver of
this Agreement shall not be effective unless in writing. Neither the failure nor
any delay on the part of any party to exercise any right, remedy, power, or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power, or privilege
with respect to any occurrence be construed as a waiver of any right, remedy,
power, or privilege with respect to any other occurrence.
10. Governing Law. This Agreement is made pursuant to, and
shall be construed and enforced in accordance with, the internal laws of the
Commonwealth of Pennsylvania (and United States federal law, to the extent
applicable), without giving effect to otherwise applicable principles of
conflicts of law.
11. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original and all of
which, when taken together, shall be deemed to constitute but one and the same
Agreement.
12. Further Assurances. Each of the parties hereto shall
execute such further instruments and take such other actions as any other party
shall reasonably request in order to effectuate the purposes of this Agreement.
13. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns, heirs, executors, and administrators. If any provision of this
Agreement shall be or become illegal or unenforceable in whole or in part for
any reason
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whatsoever, the remaining provisions shall nevertheless be deemed
valid, binding and subsisting.
14. Joinder of Guarantors. The Guarantors have joined in the
execution of this Escrow Agreement to express their consent to its terms and to
confirm that their Guaranty remains in full force and effect.
IN WITNESS WHEREOF, this Escrow Agreement has been executed as
of the date and year first-above written.
CENTRAL CPVC CORPORATION
CENTRAL SPRINKLER CORPORATION
CENTRAL SPRINKLER COMPANY
CENTRAL CASTINGS CORPORATION
By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
as Executive Vice President
of each company
XXXXX BROTHERS XXXXXXXX & CO.,
as Bank and as Escrow Agent
By /s/ Xxxxx X. Xxxxxxx, Xx.
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Xxxxx X. Xxxxxxx, Xx.
Manager
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