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Exhibit 10.21
SHARING AGREEMENT
THIS SHARING AGREEMENT is dated as of December 31, 1999, among the
financial institutions identified as "Banks" on the signature pages hereof
(together with their successors and assigns, the "BANKS"), and the holders of
the Notes identified as "Noteholders" on the signature pages hereof (together
with their respective successors and assigns, the "NOTEHOLDERS" and, together
with the Banks, the "LENDERS"). Capitalized terms used herein have the
respective meanings ascribed thereto in Section 2 of this Agreement.
1. PRELIMINARY STATEMENT
1.1. Pursuant to that certain Credit Agreement (together with any
amendment, modification or replacement thereof, the "CREDIT AGREEMENT"), dated
as of October 18, 1999, the Banks have agreed to make loans to CIRCOR
International, Inc., a Delaware corporation (the "COMPANY"), in an aggregate
principal amount up to $110,000,000.
1.2. Pursuant to the terms and conditions of certain Note Purchase
Agreements (together with any amendment, modification or replacement thereof,
collectively, the "NOTE PURCHASE AGREEMENT"), dated as of October 19, 1999, the
Noteholders have purchased from the Company its 8.23% Senior Notes due October
19, 2006, in the aggregate principal amount of $75,000,000 (together with any
amendment, modification or replacement thereof, the "NOTES").
1.3. The Bank Subsidiary Guarantors have jointly and severally
guaranteed to each Bank and to ING (U.S.) Capital LLC, in its capacity as agent
under the Credit Agreement (together with its successors and assigns in such
capacity, the "BANK AGENT"), pursuant to the terms of Section 6 of the Credit
Agreement, the Bank Guarantied Obligations.
1.4. The Noteholder Subsidiary Guarantors have jointly and severally
guaranteed to each holder of the Notes, pursuant to the terms of Section 22 of
the Note Purchase Agreement, the Noteholder Guarantied Obligations.
1.5. The Banks and the Noteholders wish to define certain of their
rights and obligations with respect to each other as set forth in this
Agreement.
2. INTERPRETATION OF THIS AGREEMENT
2.1 DEFINED TERMS.
As used in this Agreement, capitalized terms have the respective
meanings specified below or set forth in the section of this Agreement referred
to immediately following such term (such definitions, unless otherwise expressly
provided, to be equally applicable to both the singular and plural forms of the
terms defined):
ACCELERATION EVENT -- means the acceleration of the maturity
of any amounts due under the Credit Agreement or the Note Purchase Agreement.
AGREEMENT, THIS -- means this Sharing Agreement, as it may be
amended, modified, supplemented or restated from time to time.
APPLICABLE AMOUNT -- means, in respect of any outstanding
amount of Guarantied Obligations owed to any Lender, such amount to the extent
that (a) in the case of principal amounts, such principal amount does not
represent any portion of principal amounts held by all Banks in excess of
$110,000,000 or held by all Noteholders in excess of $75,000,000 and (b) the
claim representing such outstanding amount has not been rendered unenforceable
because of (i) actions of such Lender (including, without limitation, actions
that have resulted in an equitable subordination of such Lender's claim against
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a Subsidiary Guarantor liable in respect of such Guarantied Obligation) or (ii)
a failure of such Lender to file a proof of such claim in any insolvency or
reorganization proceeding.
BANK AGENT -- has the meaning set forth in Section 1.3 of this
Agreement.
BANKS -- has the meaning set forth in the first paragraph of
this Agreement.
BANK GUARANTIED OBLIGATIONS -- means, collectively, all
amounts payable by the Bank Subsidiary Guarantors to the Banks pursuant to the
terms of the Credit Agreement.
BANK SUBSIDIARY GUARANTORS -- means each of CIRCOR, Inc.,
CIRCOR IP Holding Co., Circle Seal Controls, Inc., Circle Seal Corporation, Go
Regulator, Inc., Hoke, Inc., KF Industries, Inc., KF Sales Corporation, Leslie
Controls, Inc., Spence Engineering Company, Inc., and each other subsidiary of
the Company that may hereafter become a guarantor of the Bank Guarantied
Obligations in connection with the transactions contemplated by the Credit
Agreement.
BANKRUPTCY EVENT OF DEFAULT -- means the occurrence of any
event described in Sections 10(f) and (g) of the Credit Agreement or Sections
11(g) and (h) of the Note Purchase Agreement.
COMPANY -- has the meaning set forth in Section 1.1 of this
Agreement.
CREDIT AGREEMENT -- has the meaning set forth in Section 1.1
of this Agreement.
DISTRIBUTION AGENT -- has the meaning set forth in Section
3.3(a) of this Agreement.
GUARANTIED OBLIGATIONS -- means, collectively, the Bank
Guarantied Obligations and the Noteholder Guarantied Obligations.
LENDERS -- has the meaning set forth in the first paragraph of
this Agreement.
NOTE PURCHASE AGREEMENT -- has the meaning set forth in
Section 1.2 of this Agreement.
NOTEHOLDER GUARANTIED OBLIGATIONS -- means, collectively, all
amounts payable by the Noteholder Subsidiary Guarantors to the Noteholders
pursuant to the terms of the Note Purchase Agreement.
NOTEHOLDERS -- has the meaning set forth in the first
paragraph of this Agreement.
NOTEHOLDER SUBSIDIARY GUARANTORS -- means each of CIRCOR,
Inc., CIRCOR IP Holding Co., Circle Seal Controls, Inc., Circle Seal
Corporation, Go Regulator, Inc., Hoke, Inc., KF Industries, Inc., KF Sales
Corporation, Leslie Controls, Inc., Spence Engineering Company, Inc., and each
other subsidiary of the Company that may hereafter become a guarantor of the
Noteholder Guarantied Obligations in connection with the transactions
contemplated by the Note Purchase Agreement.
NOTES -- has the meaning set forth in Section 1.2 of this
Agreement.
NOTICE OF DEFAULT -- means a written notification given by or
on behalf of the Company certifying that a Sharing Event has occurred and is
continuing.
PERSON -- means an individual, partnership, corporation
(including a business trust), limited liability company or partnership, joint
stock company, trust, unincorporated association, joint venture, governmental
agency or other authority.
PRO RATA SHARE -- means, in respect of any Lender, its
share of all payments made in respect of Guarantied Obligations made after
the occurrence of a Sharing Event assuming all such payments shall have been
distributed to all Lenders as follows:
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FIRST, to all Lenders pro rata based on the respective then
outstanding Applicable Amounts of principal and interest accrued to
each Lender in respect of Guarantied Obligations until all such
Applicable Amounts to all Lenders have been fully paid.
NEXT, to all Lenders pro rata based on the respective then
outstanding Applicable Amounts of any other amounts (including, without
limitation, Make-Whole Amounts (as defined in the Note Purchase
Agreement) and fees) owed to each Lender in respect of the Guarantied
Obligations until all such Applicable Amounts to all Lenders have been
fully paid.
RECEIVING LENDER -- has the meaning set forth in Section
3.2(a) of this Agreement.
REQUISITE LENDERS -- means
(a) the holder or holders of (i) with respect
to any amendment to this Agreement as provided in Section 5.5 hereof, 100% of
the aggregate principal amount of the Bank Guarantied Obligations and (ii) with
respect to all other matters, at least 66 2/3% of the aggregate principal amount
of the Bank Guarantied Obligations, in each case from time to time outstanding,
and
(b) the holder or holders of (i) with respect
to any amendment to this Agreement as provided in Section 5.5 hereof, 100% of
the aggregate principal amount of the Notes and (ii) with respect to all other
matters, at least 66 2/3% of the aggregate principal amount of the Notes, in
each case from time to time outstanding.
SHARING EVENT -- means an Acceleration Event or a Bankruptcy
Event of Default.
SHARED PAYMENT -- has the meaning set forth in Section 3.2(a)
of this Agreement.
SUBSIDIARY GUARANTOR -- means each of the Bank Subsidiary
Guarantors and the Noteholder Subsidiary Guarantors.
2.2 CERTAIN OTHER TERMS.
The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. Section references are to
this Agreement unless otherwise specified. All terms defined in this Agreement
in the singular shall have comparable meanings when used in the plural, and vice
versa, unless otherwise specified.
3. PAYMENTS, ETC.
3.1 EVENT OF DEFAULT; RECEIPT OF SHARED PAYMENT. Promptly after the
occurrence of a Sharing Event the Company shall give a Notice of Default to each
Noteholder and each Bank of the occurrence of such Sharing Event.
3.2 SHARING OF PAYMENTS.
(a) Each Lender (a "RECEIVING LENDER") agrees that if it shall obtain,
at any time after a Sharing Event shall have occurred, any payment of any kind
on any of the Guarantied Obligations owed to it (including, without limitation,
any payment resulting from a setoff of a deposit account or any payment or
distribution made in the context of any insolvency or reorganization proceeding)
and, as a result of such payment, such Receiving Lender shall have received
payments (net of any expenses that may be incurred by such Receiving Lender in
obtaining or preserving such payments) representing a greater percentage of such
Guarantied Obligations owing to such Receiving Lender than the percentage
represented by the payments received after such Sharing Event by any other
Lender on the Guarantied Obligations owing to such other Lender, it shall
promptly purchase from the other Lenders direct interests in the Guarantied
Obligations owing to such other Lenders (without assuming any obligations of
such other Lenders) in such amounts to the end that all Lenders will have
received their Pro Rata Shares of all payments made in
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respect of Guarantied Obligations after the occurrence of such Sharing Event
(each such purchase of direct interests, a "SHARED PAYMENT").
(b) Prior to the distribution of Shared Payments to the other Lenders,
each Receiving Lender shall hold all Shared Payments received by it for the
benefit of all Lenders. Any interest earned on such Shared Payments prior to the
distribution of same shall be for the account of all Lenders.
(c) For the avoidance of doubt, the parties hereto agree that (i) any
payments made by the Company in respect of the Guarantied Obligations shall not
be subject to sharing pursuant to this Agreement and (ii) any payments made by a
Subsidiary Guarantor shall not be subject to sharing pursuant to this Agreement
prior to the occurrence of a Sharing Event.
3.3 DISTRIBUTION AGENT.
(a) APPOINTMENT. All distributions of Shared Payments shall be
made (i) by the receiver, custodian, trustee, examiner or the like appointed by
the court in any related insolvency or reorganization proceeding initiated or
occurring after the occurrence of A BANKRUPTCY Event of Default (such Person
acting in such capacity, the "DISTRIBUTION AGENT"), or, (ii) if no such Person
exists, or if such Person refuses to undertake to make such distributions as
Distribution Agent hereunder, the Requisite Lenders shall promptly appoint a
Distribution Agent to distribute Shared Payments to the Lenders. If no
Distribution Agent shall have been appointed by the Requisite Lenders and
accepted appointment in the manner hereinafter provided within 30 days after the
occurrence of a Sharing Event, any Lender may petition any court of competent
jurisdiction for the appointment of the Distribution Agent.
(b) ACCEPTANCE OF APPOINTMENT. The Distribution Agent
appointed pursuant to Section 3.3(a)(ii) shall execute, acknowledge and deliver
to each Lender an instrument, satisfactory to the Requisite Lenders, accepting
such appointment and agreeing to be bound by the terms of this Agreement.
(c) REMITTANCE AND DISTRIBUTION. Upon the appointment of the
Distribution Agent, each Receiving Lender shall remit any Shared Payment
received by it to the Distribution Agent for distribution in accordance with
Section 3.2 hereof. Upon receipt of any Shared Payment, the Distribution Agent
shall calculate the amount of such Shared Payment distributable to each Lender
pursuant to Section 3.2 hereof as of the date the Receiving Lender received such
Shared Payment and remit such amount to each Lender, accompanied by computations
in reasonable detail showing the manner of calculation of the amounts
distributable to each Lender pursuant to Section 3.2 hereof.
3.4 INVALIDATED PAYMENTS.
If any amount paid by any Lender to the Distribution Agent for
distribution in accordance with the provisions of this Agreement is subsequently
required to be returned or repaid to any of the Subsidiary Guarantors or their
representatives or successors in interest, whether by court order, settlement or
otherwise, such Lender shall promptly notify the Distribution Agent and each
other Lender of such requirement, and request that the Distribution Agent notify
each of the Lenders thereof, and each Lender shall, promptly upon its receipt of
such notice from the Distribution Agent or any other Lender, pay to the
Distribution Agent the pro rata portion received by it of such amount, without
any interest thereon, for payment to the appropriate Subsidiary Guarantors or
their representatives or successors in interest. If any such amounts are
subsequently recovered by any Lender from any of the Subsidiary Guarantors or
their representatives or successors in interest, such Lender shall remit such
amounts to the Distribution Agent and the Distribution Agent shall redistribute
such amounts to the Lenders, without any interest thereon, on the same basis as
such amounts were originally distributed. The obligations of the Lenders and the
Distribution Agent under this Section 3.4 shall survive the repayment of the
Guarantied Obligations and termination of the Credit Agreement and the Note
Purchase Agreement.
3.5 RECEIVING LENDER TO BE SUBROGATED TO RIGHTS OF OTHER LENDERS.
Any Receiving Lender that has remitted any portion of a Shared Payment
received by it to the Distribution Agent as provided in Section 3.3(c) hereof
shall, to the extent of such remittance distributable
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to the other Lenders, be subrogated to the rights of each of such other Lenders
to receive payments from the Subsidiary Guarantors applicable to the Guarantied
Obligations owed to such other Lenders, until all Guarantied Obligations owed to
such Receiving Lender shall be paid in full, and for purposes of such
subrogation, no such payment received by such other Lenders shall, as between
the Subsidiary Guarantors or any of them, their respective creditors other than
the holders of any Guarantied Obligations, and the holders of any Guarantied
Obligations, be deemed to be a payment by any of the Subsidiary Guarantors to
such other Lenders or on account of their Guarantied Obligations, it being
understood that the provisions of this Section 3.5 are, and are intended, solely
for the purpose of defining the relative rights of the holders of the Guarantied
Obligations.
4. DISTRIBUTION AGENT
4.1 DISTRIBUTIONS AND CONSENTS.
In making the distributions to the Lenders provided for in Section 3
hereof, any Distribution Agent appointed pursuant to Section 3.3(a)(ii) may rely
upon information available to it or supplied by each Lender to it with respect
to the amount of Guarantied Obligations owing to such Lender, and such
Distribution Agent shall have no liability to any Lender for actions taken in
reliance on such information in the absence of its gross negligence or willful
misconduct. Each of the Lenders hereby agrees, on two business days' telephonic,
telegraphic, telexed or similar notice from a Distribution Agent appointed
pursuant to Section 3.3(a)(ii), to confirm to such Distribution Agent in
writing, including by telecopy of a signed confirmation or by telex, the
outstanding balance of the Guarantied Obligations, if any (and itemized as to
principal, interest, fees and other amounts, if any), owing to such Lender as of
the date or dates specified in such notice.
4.2 APPOINTMENT, POWERS OF DISTRIBUTION AGENT.
Each of the Lenders, by its acceptance thereof, hereby appoints and
authorizes the Distribution Agent to act as its agent hereunder with such powers
as are specifically delegated to the Distribution Agent by the terms of this
Agreement, together with such powers as are reasonably incidental thereto. The
Distribution Agent shall not have a fiduciary relationship in respect of any
Lender by reason of this Agreement.
4.3 LIABILITY.
A Distribution Agent appointed pursuant to Section 3.3(a)(ii) shall
have no duties to the Lenders under this Agreement except those expressly set
forth herein. Neither such Distribution Agent nor any of its officers,
directors, employees or agents shall be liable to any Lender for any action
taken or omitted by it or them hereunder or in connection herewith, unless
caused by its or their gross negligence or willful misconduct.
4.4 RESIGNATION OR REMOVAL OF DISTRIBUTION AGENT.
Any Distribution Agent appointed pursuant to Section 3.3(a)(ii) may
resign and be discharged of its duties hereunder by giving written notice
thereof to all holders of the Guarantied Obligations then outstanding. Such
resignation shall take effect at such time as a successor distribution agent
shall have been appointed and shall have duly accepted such appointment. Any
such Distribution Agent may be removed at any time with or without cause by the
Requisite Lenders. Upon any such resignation or removal, the Requisite Lenders
shall have the right to appoint a successor distribution agent. Upon the
acceptance of any appointment as distribution agent hereunder by a successor
distribution agent, such successor distribution agent shall thereupon succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring Distribution Agent. After any such retiring Distribution Agent's
resignation or removal hereunder as Distribution Agent, the provisions of this
Section 4 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Distribution
Agent.
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4.5 EMPLOYMENT OF AGENTS AND COUNSEL.
Any Distribution Agent appointed pursuant to Section 3.3(a)(ii) may
execute any of its duties as Distribution Agent hereunder by or through
employees, agents and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. A Distribution Agent appointed pursuant to
Section 3.3(a)(ii) shall be entitled to advice of counsel concerning all matters
pertaining to the agency hereby created and its duties hereunder.
4.6 RELIANCE ON DOCUMENTS; COUNSEL.
A Distribution Agent appointed pursuant to Section 3.3(a)(ii) shall be
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper Person or Persons, and, with
respect to legal matters, upon the opinion of counsel selected by the
Distribution Agent, which counsel may be employees of the Distribution Agent.
4.7 DISTRIBUTION AGENT'S REIMBURSEMENT AND INDEMNIFICATION.
The Company shall reimburse and indemnify any Distribution Agent
appointed pursuant to Section 3.3(a)(ii) for expenses incurred by the
Distribution Agent on behalf of the Lenders, in connection with the execution,
delivery, administration and enforcement of this Agreement and for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Distribution Agent in any way
relating to or arising out of this Agreement or any other document delivered in
connection herewith or the transactions contemplated hereby, or the enforcement
of any of the terms hereof, PROVIDED that the Company shall not be liable for
any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Distribution Agent. The obligations of the Company
under this Section 4.7 shall survive payment of the Guarantied Obligations and
termination of this Agreement. The Distribution Agent shall have no claim
against any Lender, or against any amounts held hereunder by the Distribution
Agent at any time which are payable to any Lender, for any amounts payable by
the Company pursuant to this Section 4.7 or for any other amounts owing to the
Distribution Agent in its capacity as such.
4.8 RIGHTS AS LENDER.
In the event any Distribution Agent appointed pursuant to Section
3.3(a)(ii), in its individual capacity, is a Lender, the Distribution Agent
shall have the same rights and powers hereunder in such capacity as any Lender
and may exercise the same as though it were not the Distribution Agent, and the
term "Lender" or "Lenders" shall, at any time when the Distribution Agent is a
Lender, unless the context otherwise indicates, include the Distribution Agent
in its individual capacity. Any Distribution Agent appointed pursuant to Section
3.3(a)(ii) in its individual capacity may accept deposits from, lend money to,
and generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement, with the Company or any of its
subsidiaries (including, without limitation, the Subsidiary Guarantors) in which
the Company or such subsidiary is permitted to participate with any other
Person. The Distribution Agent, in its individual capacity, is not obligated to
be a Lender.
5. MISCELLANEOUS
5.1 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, AND GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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5.2 LENDER CREDIT DECISION.
Each Lender acknowledges that it has, independently and without
reliance upon any other Lender or the Bank Agent and based on the financial
statements prepared by Company and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon any other Lender or the Bank Agent and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
5.3 COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original but all of which shall constitute one agreement, and
shall constitute a binding agreement when executed by each of the parties
hereto.
5.4 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto including any assignees of the
Guarantied Obligations. Each Lender agrees that it will not assign any of the
Guarantied Obligations absent an acknowledgment by the assignee thereof of the
terms of this Agreement, PROVIDED that the failure of any Lender to obtain such
acknowledgement shall not affect the effectiveness of the immediately preceding
sentence or of such assignment.
5.5 AMENDMENTS TO SHARING AGREEMENT, CREDIT AGREEMENT AND NOTE
PURCHASE AGREEMENT.
This Agreement may be amended only in a writing executed by the
Requisite Lenders. Neither this Section 5.5, nor any other provision of this
Agreement, shall in any way limit the ability of any Lender to waive, amend or
otherwise modify any document relating to the Bank Guarantied Obligations or the
Noteholder Guarantied Obligations (including, without limitation, increasing the
respective amounts thereof).
5.6 TERMINATION.
This Agreement shall terminate upon the payment in full of all
Guarantied Obligations and the termination of the Credit Agreement and the Note
Purchase Agreement.
5.7 COOPERATION.
Each party hereto agrees to cooperate fully with the other parties
hereto, in the exercise of its reasonable judgment, to the end that the terms
and provisions of this Agreement may be promptly and fully carried out. Each
party hereto also agrees, from time to time, to execute and deliver any and all
other agreements, documents or instruments and to take such other actions, all
as may be reasonably necessary or desirable to effectuate the terms, provisions
and intent of this Agreement.
5.8 NO WAIVER.
No failure or delay on the part of any Lender in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy
hereunder.
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5.9 NOTICES.
All written communications provided for hereunder shall be sent (x) by
telecopier if the sender on the same day sends a confirming copy of such notice
by a recognized overnight delivery service, with charges prepaid, or (y) by
first class mail or nationwide overnight delivery service, with charges prepaid
(PROVIDED that any Notice of Default or copy thereof shall be sent by nationwide
overnight delivery service) and
(i) if to any Bank, addressed to such Bank at the address
specified for such communications in the Credit Agreement or at such other
address as such Bank shall have specified to the Banks, the Noteholders and the
Distribution Agent (if one exists) in writing,
(ii) if to any Noteholder, addressed to such Noteholder at
the address specified for such communications in Schedule A to the Note Purchase
Agreement, or at such other address as such Noteholder shall have specified to
the other Banks, the Noteholders and the Distribution Agent (if one exists) in
writing, and
(iii) if to any Distribution Agent appointed pursuant to
Section 3.3(a)(ii), addressed to the Distribution Agent at such address as the
Distribution Agent shall have specified to each Bank and each Noteholder in
writing.
5.10 THIRD PARTY BENEFICIARIES.
No Person, including, without limitation, the Subsidiary Guarantors and
the Company, other than the Lenders, the Distribution Agent and their respective
successors and assigns, shall have any rights under this Agreement.
5.11 SEVERABILITY.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
5.12 HEADINGS.
The descriptive headings of the several sections of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
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5.13 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW
YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT. NONE OF THE PARTIES HERETO SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION PROCEDURE BASED UPON OR
ARISING OUT OF OR OTHERWISE RELATED TO THIS AGREEMENT AND EACH OF THE PARTIES
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT
TO ANY SUCH JURY TRIAL AND ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF
FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY SUCH PROCEEDING IS
BROUGHT IN ACCORDANCE WITH THIS SECTION 5.13.
5.14 ENTIRE AGREEMENT.
This Agreement embodies the entire agreement and understanding among
the parties hereto and supersedes all prior agreements and understandings
relating to the subject matter hereof.
5.15 BANK AGENT MAY ACT.
Any act or obligation assigned to any Bank hereunder (other than the
obligation to share payments) may be exercised by the Bank Agent at the
direction or with the consent of such Bank.
[REMAINDER OF PAGE INTENTIONALLY BLANK. NEXT PAGE IS SIGNATURE PAGE.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first written above.
BANKS: ING (U.S.) CAPITAL LLC
By /s/ Gerlach Jacobs
----------------------------
Name: Gerlach Jacobs
Title: Director
FLEET NATIONAL BANK
f/k/a BANKBOSTON, N.A.
By /s/ Janet G. O'Donnell
------------------------------
Name: Janet G. O'Donnell
Title: Vice President
BROWN BROTHERS HARRIMAN & CO.
By /s/ Joseph E. Hall
-------------------------------
Name: Joseph E. Hall
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By /s/ David C. Hauglid
---------------------------------
Name: David C. Hauglid
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By /s/ Daniel R. Gillette
-----------------------------------
Name: Daniel R. Gillette
Title: Vice President
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NOTEHOLDERS: ALLSTATE LIFE INSURANCE COMPANY
By /s/ Ron Mendel
------------------------------
Name: Ron Mendel
Title: Senior Portfolio Manager
By /s/ David Walsh
------------------------------
Name: David Walsh
Title: Assistant Vice President
ALLSTATE INSURANCE COMPANY
By /s/ Ron Mendel
------------------------------
Name: Ron Mendel
Title: Senior Portfolio Manager
By /s/ David Walsh
------------------------------
Name: David Walsh
Title: Assistant Vice President
MINNESOTA LIFE INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By /s/ Frederick Feuerherm
------------------------------
Name: Frederick Feuerherm
Title: Vice President
FARM BUREAU LIFE INSURANCE
COMPANY OF MICHIGAN
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By /s/ Marilyn Froelich
------------------------------
Name: Marilyn Froelich
Title: Vice President
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INTER-STATE ASSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By /s/ Marilyn Froelich
------------------------------
Name: Marilyn Froelich
Title: Vice President
UNITY MUTUAL LIFE INSURANCE
COMPANY - ANNUITY PORTFOLIO
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By /s/ Marilyn Froelich
------------------------------
Name: Marilyn Froelich
Title: Vice President
NATIONAL TRAVELERS LIFE
COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By /s/ Marilyn Froelich
------------------------------
Name: Marilyn Froelich
Title: Vice President
MTL INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By /s/ Loren Haugland
------------------------------
Name: Loren Haugland
Title: Vice President
COLUMBIAN MUTUAL LIFE
INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By /s/ Loren Haugland
------------------------------
Name: Loren Haugland
Title: Vice President
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FARM BUREAU GENERAL INSURANCE
COMPANY OF MICHIGAN
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By /s/ Loren Haugland
------------------------------
Name: Loren Haugland
Title: Vice President
J. ROMEO & CO.
By /s/ Peter Coccia
------------------------------
Name: Peter Coccia
Title: Partner
17
<PAGE>
THE GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA
By /s/ Raymond J. Henry
------------------------------
Name: Raymond J. Henry
Title: Second Vice Prsident
THE CANADA LIFE ASSURANCE COMPANY
By /s/ Peter Coccia
--------------------
Name: Peter Coccia
Title: Partner
CANADA LIFE INSURANCE COMPANY OF
AMERICA
By /s/ Peter Coccia
--------------------
Name: Peter Coccia
Title: Partner
18
<PAGE>
CONSENT AND AGREEMENT
Each of the Company and the Subsidiary Guarantors identified below consents to
the provisions of the foregoing Sharing Agreement. In addition, the Company
agrees to perform its obligations under Section 4.7 thereof. Each of the Company
and the Subsidiary Guarantors acknowledges that no consent or other action by it
is necessary for any action to be taken under, or for any amendment of, the
foregoing Sharing Agreement, including, without limitation, the appointment of
the Distribution Agent or a successor distribution agent, except that the
Company's consent shall be necessary for any amendment to Section 4.7 thereof.
CIRCOR INTERNATIONAL, INC.
By /s/ David A. Bloss, Sr.
------------------------------
Name: David A. Bloss, Sr.
Title: Chairman, President & CEO
CIRCOR, INC.
By /s/ David A. Bloss, Sr.
------------------------------
Name: David A. Bloss, Sr.
Title: President
CIRCOR IP HOLDING CO.
By /s/ David A. Bloss, Sr.
------------------------------
Name: David A. Bloss, Sr.
Title: President
CIRCLE SEAL CONTROLS, INC.
By /s/ David A. Bloss, Sr.
------------------------------
Name: David A. Bloss, Sr.
Title: President
19
<PAGE>
CIRCLE SEAL CORPORATION
By /s/ David A. Bloss, Sr.
---------------------------
Name: David A. Bloss, Sr.
Title: President
GO REGULATOR, INC.
By /s/ David A. Bloss, Sr.
--------------------------
Name: David A. Bloss, Sr.
Title: President
HOKE, INC.
By /s/ David A. Bloss, Sr.
--------------------------
Name: David A. Bloss, Sr.
Title: President
KF INDUSTRIES, INC.
By /s/ David A. Bloss, Sr.
--------------------------
Name: David A. Bloss, Sr.
Title: President
KF SALES CORPORATION
By /s/ David A. Bloss, Sr.
---------------------------
Name: David A. Bloss, Sr.
Title: President
20
<PAGE>
LESLIE CONTROLS, INC.
By /s/ David A. Bloss, Sr.
---------------------------
Name: David A. Bloss, Sr.
Title: President
SPENCE ENGINEERING COMPANY, INC.
By /s/ David A. Bloss, Sr.
---------------------------
Name: David A. Bloss, Sr.
Title: President
21
