SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 8)
SPS Technologies, Inc.
____________________________________________________________
(Name of Issuer)
Common Stock, Par Value $1.00 Per Share
____________________________________________________________
(Title of Class and Securities)
784626 10 3
___________________________________________________________
(CUSIP Number of Class of Securities)
John F. Keane
Tinicum Enterprises, Inc.
990 Stewart Avenue
Garden City, New York 11530
(516) 222-2874
_____________________________________________________________
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copy to:
Paul T. Schnell, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
(212) 735-3000
December 16, 1994
____________________________________________________________
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the
subject of this Statement because of Rule d-1(b)(3) or
(4), check the following box: ( )
Check the following box if a fee is being paid with this
Statement: ( )
SCHEDULE 13D
CUSIP No. 784626 10 3
_________________________________________________________________
(1) NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
TINICUM ENTERPRISES, INC. 13-3506390
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) ( )
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
WC, BK
_________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
__________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 245,480
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 245,480
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
245,480
_________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
4.36%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
CO
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 784626 10 3
_________________________________________________________________
(1) NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
TINICUM INVESTORS 13-3466414
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) ( )
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
WC, BK
_________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
__________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 252,234
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 252,234
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
252,234
_________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
4.48%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
PN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 784626 10 3
_________________________________________________________________
(1) NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
RUTCO INCORPORATED 13-3527510
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) ( )
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
WC, BK
_________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
__________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 45,255
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 45,255
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
45,255
_________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
.80%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
CO
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 784626 10 3
_________________________________________________________________
(1) NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
RIT CAPITAL PARTNERS plc
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) ( )
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
WC
_________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
__________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED KINGDOM
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 0
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 132,311
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 0
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
132,311
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
132,311
_________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
2.35%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
IV
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 784626 10 3
_________________________________________________________________
(1) NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
PUTNAM L. CRAFTS, JR. ###-##-####
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) ( )
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
PF
_________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
__________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 100,000
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 100,000
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
100,000
_________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
1.78%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
IN
_________________________________________________________________
SCHEDULE 13D
CUSIP No. 784626 10 3
_________________________________________________________________
(1) NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
JAMES H. KASSCHAU ###-##-####
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) ( )
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
PF
_________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
__________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 10,000
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 10,000
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,000
_________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
.18%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
IN
_________________________________________________________________
This statement amends and supplements the State-
ment on Schedule 13D (the "Schedule 13D") filed with the
Securities and Exchange Commission (the "Commission") by
Tinicum Enterprises, Inc., a Delaware corporation, Tinicum
Investors, a Delaware general partnership, RUTCO Incorporat-
ed, a Delaware corporation, Tinicum Foreign Investments
Corporation, a Delaware corporation, Tinicum Associates,
G.P., a Delaware general partnership, RIT Capital Partners
plc, a United Kingdom corporation, J. Rothschild Capital
Management Limited, a United Kingdom corporation, St.
James's Place Capital plc, a United Kingdom corporation, Mr.
Putnam L. Crafts, Jr. and Mr. James H. Kasschau in connec-
tion with their ownership of shares of common stock, par
value $1.00 per share (the "Shares"), of SPS Technologies,
Inc., a Pennsylvania corporation. Unless otherwise defined
herein, all capitalized terms used herein shall have the
meanings ascribed to them in the Schedule 13D.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 is hereby amended and supplemented by adding the
following:
As Associates and Foreign will not be purchasing
Shares as contemplated by the Standby Agreement, and do not
otherwise own or plan to own any Shares, each has ceased to
be a reporting person for purpose of this Schedule 13D.
Hereinafter, the terms "Reporting Persons" and the "Tinicum
Reporting Entities" shall not include Associates or Foreign.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 is hereby amended and supplemented by adding the
following:
The Share purchases by Enterprises, Investors and
RUTCO, as described in Item 5 below, were paid, or will be
paid for, with working capital and from borrowings in the
ordinary course of business under a revolving line of credit
agreement with Republic National Bank of New York (the "Line
of Credit"). The Line of Credit has a principal amount of
$5,000,000 and bears interest at the prime rate in effect,
from time to time, at Republic National Bank of New York.
The Line of Credit was not made available for the specific
purpose of acquiring Shares. A copy of the Line of Credit is
filed herewith as Exhibit 13 and is incorporated herein by
reference.
The Share purchases by each of Mr. Crafts and Mr.
Kasschau, as described in Item 5 below, were paid, or will
be paid for, with the personal funds of each.
ITEM 5. INTEREST AND SECURITIES OF THE ISSUER.
Item 5(a) is hereby amended and supplemented by adding
the following:
As described in Item 5(c) below, as of the close
of business on December 21, 1994, the Reporting Persons
beneficially owned in the aggregate 785,280 Shares, which
represent approximately 13.93% of the 5,636,359 Shares
outstanding on such date. For purposes of this Schedule 13D,
the Underlying Shares purchased or to be purchased by Enter-
prises, Investors, RUTCO, Mr. Crafts and Mr. Kasschau are
assumed to be beneficially owned by such persons as of
December 21, 1994 and have been treated as outstanding for
purposes of calculating the percent of class beneficially
owned by the Reporting Persons. In accordance with Rule 13d-
5(b)(1) of the General Rules and Regulations under the
Exchange Act, Enterprises, Investors, RUTCO, RIT, JRCML,
SJPC, Mr. Crafts and Mr. Kasschau as a group may be deemed
to beneficially own such Shares. As of the close of busi-
ness on December 21, 1994, Enterprises, Investors, RUTCO,
RIT, JRCML, SJPC, Mr. Crafts and Mr. Kasschau have direct
beneficial ownership of 245,480, 252,234, 45,255, 132,311, 0,
0, 100,000 and 10,000 Shares, respectively.
Item 5(b) is hereby amended and supplemented by adding
the following:
Each of the Tinicum Reporting Persons has the sole
power to vote or to direct the vote and the sole power to
dispose or to direct the disposition of the Shares of which
it has direct beneficial ownership.
Item 5(c) is hereby amended and supplemented by adding
the following:
Enterprises, Investors and Mr. Crafts acquired
directly from the Issuer, upon the exercise of Rights on
December 16, 1994, 21,400, 7,391 and 8,409 Shares, respec-
tively, at a price of $24.50 per Share, for total consider-
ation of approximately $524,300, $181,080 and $206,021,
respectively. Enterprises and RUTCO acquired on the open
market on December 19, 1994, 10,080 and 2,520 Shares, re-
spectively, at a price of $24.875 per Share (excluding
commissions), for total consideration of approximately
$250,740 and $62,685 (excluding commissions), respectively.
The Reporting Persons have been notified by the
Issuer that 231,180 Underlying Shares had not been sub-
scribed for as of the Expiration Date of the Rights Offer-
ing. Pursuant to the terms and subject to the conditions of
the Standby Agreement, and in satisfaction of the Standby
Purchasers' obligation to purchase the unsold Underlying
Shares thereunder, Investors, RUTCO, Mr. Crafts and Mr.
Kasschau will acquire directly from the Issuer, on December
23, 1994, 170,939, 42,735, 7,506 and 10,000 Shares, at a
price of $24.50 per Share, for total consideration of ap-
proximately $4,188,006, $1,047,008, $183,897 and $245,000,
respectively.
A copy of the Standby Agreement was previously
filed as an exhibit to this Schedule 13D and is incorporated
herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 is hereby amended and supplemented by adding the
following exhibits:
Exhibit Description
Exhibit 13 Revolving Line of Credit Agreement
with Republic National Bank of New
York
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: December 21, 1994
TINICUM ENTERPRISES, INC.
By: /s/ James H. Kasschau
James H. Kasschau
President
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: December 21, 1994
TINICUM INVESTORS
By: /s/ Eric M. Ruttenberg
Eric M. Ruttenberg
Managing Partner
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: December 21, 1994
RUTCO INCORPORATED
By: /s/ James H. Kasschau
James H. Kasschau
President
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: December 21, 1994
TINICUM FOREIGN INVESTMENTS CORPORATION
By: /s/ James H. Kasschau
James H. Kasschau
President
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: December 21, 1994
TINICUM ASSOCIATES, G.P.
By: Tinicum Associates, Inc.,
Managing Partner
By: /s/ James H. Kasschau
James H. Kasschau
President
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: December 21, 1994
RIT CAPITAL PARTNERS plc
By: /s/ J.W.P. Johnston
J.W.P. Johnston
Alternate Director for The Hon. C.P. Gibson
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: December 21, 1994
J. ROTHSCHILD CAPITAL MANAGEMENT LIMITED
By: /s/ J.W.P. Johnston
J.W.P. Johnston
Alternate Director for The Hon. C.P. Gibson
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: December 21, 1994
ST. JAMES'S PLACE CAPITAL plc
By: /s/ J.W.P. Johnston
J.W.P. Johnston
Company Secretary
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: December 21, 1994
/s/ Putnam L. Crafts, Jr.
Putnam L. Crafts, Jr.
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: December 21, 1994
/s/ James H. Kasschau
James H. Kasschau
EXHIBIT INDEX
Exhibit Description Page
Exhibit 13 Revolving Line of Credit
Agreement with Republic
National Bank of New York
EXHIBIT 13
DEMAND GRID NOTE
New York, New York
$5,000,000.00 Date: February 24, 1994
ON DEMAND, the undersigned ("Maker") promises to pay
to the order of REPUBLIC NATIONAL BANK OF NEW YORK
("Bank") at the principal office of Bank located at 452
Fifth Avenue, New York, New York 10018 or at any of its
other banking offices in New York as Bank may designate
by written notice to Maker, the principal sum of FIVE MILLION
DOLLARS, or so much thereof as shall be advanced by Bank
to Maker, in Bank's sole discretion, and not repaid,
together with interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof
until the date on which this Note is paid in full, at the
rate set forth below.
Interest on the unpaid principal of this Note will
be due and payable when demand is made for payment of the
principal of this Note and (indicate whichever is
applicable):
[ ] on the last day of each month.
[ ] on the ( ) day of each ( ).
Prior to the date that demand is made for payment of
the principal hereof, this Note shall bear interest at a
rate (the "Contract Rate") equal to (indicate whichever
is applicable):
[ ] a fixed rate of ( ) percent per annum.
[x] a fluctuating rate of 0 percent per annum
above the Reference Rate (as defined
below), such rate to change without notice
from time to time with each change in the
Reference Rate.
After demand is made for payment of the principal of this
Note, interest under this Note shall be payable on demand
and shall accrue at a fluctuating rate per annum equal to
2 percent per annum above (i) if the Contract Rate is a
fixed rate, the Contract Rate, or (ii) if the Contract
Rate is a fluctuating rate, the greater from time to time
(x) the Contract Rate in effect on the date that the
principal became due and (y) the Contract Rate that would
have been in effect from time to time if the principal
had not become due. If Maker is a corporation, interest
shall be calculated on the basis of a 360-day year for
actual days elapsed. In no event shall the interest rate
applicable at any time to this Note exceed the maximum
rate permitted by law. As used herein, "Reference Rate"
means the rate established by Bank from time to time at
its principal domestic office as its reference lending
rate for domestic commercial loans. Bank may make loans
to customers above, at or below the Reference Rate.
This Note evidences loans made by Bank to Maker in
Bank's sole discretion, from time to time. The unpaid
principal balance of this Note at any time shall be the
total amount advanced by Bank to Maker in Bank's sole
discretion, less the total amount of principal payments
made hereon by Maker. The date and amount of each such
loan and each payment on account of principal thereof may
be endorsed by Bank on the grid attached to and made a
part of this Note, and when so endorsed shall represent
evidence thereof binding upon Maker in the absence of
manifest error. Any failure by Bank to so endorse shall
in no way mitigate or discharge the obligation of Maker
to repay any loans actually made. Maker may prepay this
Note in whole at any time with all accrued interest to
the date of prepayment. So long as Maker is not in
default under this Note, Maker may prepay this Note in
part at any time with accrued interest to the of
prepayment on the principal amount prepaid.
Requests for loans to Maker from Bank and directions
as to the deposition of the proceeds thereof may be given
orally (including by telephone) or in writing to Bank by
the officers of Maker or other persons authorized to
borrow on Maker's behalf by borrowing resolutions of
Maker's Board of Directors heretofore delivered to Bank,
as such resolutions may be amended or superseded from
time to time, provided that any such amending or
superseding resolutions shall have been certified by the
Secretary or an Assistant Secretary of Maker, and a copy
thereof, so certified, shall have been delivered to an
officer of Bank at its office for payment. Bank may
conclusively rely on the authorities contained in said
resolutions. Any such loan so made shall be conclusively
presumed to have been made to or for the benefit of Maker
and Maker shall be liable in respect thereof when made in
accordance with any such request or direction, or when
deposited to any account of Maker with Bank, even though
persons other than those authorized to borrow on behalf
of Maker may have authority to draw against such account.
Bank may rely on any such request or direction which it
believes to be genuine, and Bank shall be fully protected
in so doing without any duty to make further inquiry as
to such genuineness or in otherwise acting in good faith
in the premises. By making a request for a loan, Maker
shall be deemed to be representing to Bank that all of
the representations and warranties of Maker set forth in
this Note are true and correct as of the date of such
request as if made on and as of such date and shall also
be deemed to be representing and warranting to Bank that
on such date Maker is not in breach of any of its
covenants to Bank set forth in this Note or in any other
document or instruments of Maker to Bank and no event of
default has occurred and is continuing with respect to
any Obligations (as defined below).
This Note shall be payable in lawful money of the
United States of America in immediately available funds.
Except as otherwise provided herein with respect to
prepayments, all payments on this Note shall be applied
to the payment of accrued interest before being applied
to the payment of principal. Any payment which is
required to be made on a day which is not a banking
business day in the City of New York shall be payable on
the next succeeding banking business day and such
additional time shall be included in the computation of
interest. In the event that any other obligations are
due at any time that Bank receives a payment from Maker
on account of this Note or any such other Obligations,
Bank may apply such payment to amounts due under this
Note or any such other Obligations in such manner as
Bank, in its discretion, elects, regardless of any
instructions from Maker to the contrary.
Maker acknowledges that this Note is an obligation
which is payable on demand and that notwithstanding
anything to the contrary in any other instrument,
agreement or other document to which Maker and/or Bank is
a party, the enumeration in any such document of specific
events of default, conditions and/or covenants relating
to the loan evidenced by this Note or to any other
Obligation, shall not be construed to qualify, define or
otherwise limit in any way Bank's right, power or
ability, at any time, to make demand for payment of the
principal of and interest on this Note, and Maker agrees
that the occurrence of any event of default or breach of
any condition or covenant in any such document is not the
only basis for demand to be made on this Note.
To induce Bank, in its sole discretion, to make
loans to Maker, Maker represents, warrants and covenants
to Bank that (i) Maker is duly incorporated and validly
existing in good standing under the laws of the
jurisdiction of its incorporation, with full power and
authority to make, deliver and perform this Note; (ii)
the execution, delivery and performance by Maker of this
Note have been duly authorized by all necessary corporate
action and do not and will not violate or conflict with
its charter or by-laws or any law, rule, regulation or
order binding on Maker or any agreement or instrument to
which Maker is a party or which may be binding on Maker;
(iii) this Note has been fully executed by an authorized
officer of Maker and constitutes a legal, valid, binding
and enforceable obligation of Maker; (iv) no
authorization, consent, approval, license, exemption of
or filing or registration with, any court or government
or governmental agency is or will be necessary to the
valid execution, delivery or performance by Maker of this
Note; (v) the loans evidenced by this Note will be used
solely for working capital purposes; (vi) there are no
pending or threatened actions, suits or proceedings
against or affecting Maker by or before any court,
commission, bureau or other governmental agency or
instrumentality, which, individually or in the aggregate,
if determined adversely to Maker, would have a material
adverse effect on the business, properties, operations,
or condition, financial or otherwise, of Maker; and (vii)
the most recent financial statements of Maker heretofore
delivered to Bank are complete and correct and since the
date thereof there has not occurred any material adverse
change in the financial condition or operations of Maker
from that shown on said financial statements.
Bank shall have a continuing lien and/or right of
setoff on, and is hereby granted a security interest in,
all deposits (general and special) and credits with Bank
or any Bank Affiliate of any Maker and indorser, and may
apply all or part of the same to any Obligations, at any
time or times, without notice. Bank shall have a
continuing lien on, and is hereby granted a security
interest in, all property of every Maker and indorser and
the proceeds thereof held or received by or for Bank or
any Bank Affiliate for any purpose, whether or not for
the express purpose of serving as collateral security for
the Obligations. As used in this Note, the term "Bank
Affiliate" includes any individual, partnership or
corporation acting as nominee or agent for Bank, and any
corporation or bank which is directly or indirectly owned
or controlled by, or under common control with, Bank.
Any notice of disposition of property shall be deemed
reasonable if mailed at least five days before such
disposition to the last address of Maker or indorser on
Bank's records. If the Obligations evidenced by this
Note are secured by a security agreement and/or other
security documents which Maker has separately delivered
to Bank (whether or not such documents make specific
reference to this Note), reference to such documents is
made for a description of the collateral provided thereby
and of the rights of Maker and Bank therein. The rights
and remedies of Bank provided hereunder are cumulative
with the rights and remedies available to Bank under any
other instruments or agreements or under applicable law.
As used in this Note, the term "Obligations" means all
amounts payable under this Note and any and all other
indebtedness, obligations and liabilities of Maker to
Bank, and all claims of Bank against Maker, now existing
or hereafter arising, direct or indirect (including
participations or any interest of Bank in indebtedness of
Maker to others), acquired outright, conditionally, or as
collateral security from another, absolute or contingent,
joint or several, secured or unsecured, matured or
unmatured, monetary or non-monetary, arising out of
contract or tort, liquidated or unliquidated, arising by
operation of law or otherwise, and all extensions,
renewals, refundings, replacements and modifications of
any of the foregoing.
In case any principal of or interest on this Note is
not paid when due, each Maker and indorser shall be
jointly and severally liable for all costs of enforcement
and collection of this Note incurred by Bank or any other
holder of this Note, including but not limited to
reasonable attorneys' fees, disbursements and court
costs. In addition, in the event of a default hereunder,
Maker shall pay all reasonable attorneys' fees and
disbursements incurred by Bank in obtaining advice as to
its rights and remedies in connection with such default.
Maker and each indorser hereby separately waive
presentment, notice of dishonor, protest and notice of
protest, and any or all other notices or demands (other
than demand for payment) in connection with the delivery,
acceptance, performance, default, endorsement or
guarantee of this Note. The liability of any Maker or
indorser hereunder shall be unconditional and shall not
be in any manner affected by any indulgence whatsoever
granted or consented to by the holder hereof, including,
but not limited to any extension of time, renewal, waiver
or other modification. Any failure of the holder to
exercise any right hereunder shall not be construed as a
waiver of the right to exercise the same or any other
right at any time and from time to time thereafter. Bank
or any holder may accept late payments, or partial
payments, even though marked "payment in full" or
containing words of similar import or other conditions,
without waiving any of its rights. No amendment,
modification or waiver of any provision of this Note nor
consent to any departure by Maker therefrom shall be
effective, irrespective of any course of dealing, unless
the same shall be in writing and signed by Bank, and then
such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which
given. This Note cannot be changed or terminated orally
or by estoppel or waiver or by any alleged oral
modification regardless of any claimed partial
performance referable thereto.
Any notice from Bank to Maker or any indorser shall
be deemed given when delivered to Maker or such indorser
by hand or when deposited in the United States mail and
addressed to Maker or such indorser at the last address
of Maker or such indorser appearing on Bank's records.
This Note shall be governed by and construed in
accordance with the laws of the State of New York
applicable to instruments made and to be performed wholly
within that state. If any provision of this Note is held
to be illegal or unenforceable for any reason whatsoever,
such illegality or unenforceability shall not affect the
validity of any other provision hereof.
MAKER AND EACH INDORSER AGREE THAT ANY ACTION,
DISPUTE, PROCEEDING, CLAIM OR CONTROVERSY BETWEEN MAKER
OR SUCH INDORSER AND BANK, WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE ("DISPUTE" OR "DISPUTES") SHALL, AT
BANK'S ELECTION, WHICH ELECTION MAY BE MADE AT ANY TIME
PRIOR TO THE COMMENCEMENT OF A JUDICIAL PROCEEDING BY
BANK, OR IN THE EVENT OF A JUDICIAL PROCEEDING INSTITUTED
BY MAKER OR SUCH INDORSER AT ANY TIME PRIOR TO THE LAST
DAY TO ANSWER AND/OR RESPOND TO A SUMMONS AND/OR
COMPLAINT MADE BY MAKER OR SUCH INDORSER, BE RESOLVED BY
ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS
PARAGRAPH AND SHALL, AT THE ELECTION OF BANK, INCLUDE ALL
DISPUTES ARISING OUT OF OR IN CONNECTION WITH (1) THIS
NOTE OR ANY RELATED AGREEMENTS OR INSTRUMENTS, (2) ALL
PAST, PRESENT AND FUTURE AGREEMENTS INVOLVING MAKER OR
SUCH INDORSER AND BANK, (3) ANY TRANSACTION RELATED TO
THIS NOTE AND ALL PAST, PRESENT AND FUTURE TRANSACTIONS
INVOLVING MAKER OR SUCH INDORSER AND BANK, AND (4) ANY
ASPECT OF THE PAST, PRESENT OR FUTURE RELATIONSHIP OF
MAKER OR SUCH INDORSER AND BANK. Bank may elect to
require arbitration of any Dispute with Maker or any
indorser without thereby being required to arbitrate all
Disputes between Bank and Maker or such indorser. Any
such Dispute shall be resolved by binding arbitration in
accordance with Article 75 of the New York Civil Practice
Law and Rules and the Commercial Arbitration Rules of the
American Arbitration Association ("AAA"). In the event
of any inconsistency between such Rules and these
arbitration provisions, these provisions shall supersede
such Rules. All statutes of limitations which would
otherwise be applicable shall apply to any arbitration
proceeding under this paragraph. In any arbitration
proceeding subject to this paragraph, the arbitration
panel (the "arbitrator") is specifically empowered to
decide (by documents only, or with a hearing, at the
arbitrator's sole discretion) pre-hearing motions which
are substantially similar to pre-hearing motions to
dismiss and motions for summary adjudication. In any
such arbitration proceeding, the arbitrator shall not
have the power or authority to award punitive damages to
any party. Judgment upon the award rendered may be
entered in any court having jurisdiction. Whenever an
arbitration is required, the parties shall select an
arbitrator in the manner provided in this paragraph. No
provision of, nor the exercise of any rights under, this
paragraph shall limit the right of Bank (1) to foreclose
against any real or personal property collateral through
judicial foreclosure, by the exercise of the power of
sale under a deed of trust, mortgage or other security
agreement or instrument, pursuant to applicable
provisions of the Uniform Commercial Code, or otherwise
herein pursuant to applicable law, (2) to exercise self-
help remedies including but not limited to setoff and
repossession, or (3) to request and obtain from a court
having jurisdiction before, during or after the pendency
of any arbitration, provisional or ancillary remedies and
relief including but not limited to injunctive or
mandatory relief or the appointment of a receiver. The
institution and maintenance of an action or judicial
proceeding for, or pursuit of, provisional or ancillary
remedies or exercise of self-help remedies shall not
constitute a waiver of the right of Bank, even if Bank is
the plaintiff, to submit the Dispute to arbitration if
Bank would otherwise have such right. Whenever an
arbitration is required under this paragraph, the
arbitrator shall be selected, except as otherwise herein
provided, in accordance with the Commercial Arbitration
Rules of the AAA. A single arbitrator shall decide any
claim of $100,000 or less and he or she shall be an
attorney with at least five years' experience. Where the
claim of any party exceeds $100,000, the Dispute shall be
decided by a majority of three arbitrators, at least two
of whom shall be attorneys (at least one of whom shall
have not less than five years' experience representing
commercial banks). The arbitrator shall have the power
to award recovery of all costs and fees (including
attorneys' fees, administrative fees, arbitrator's fees,
and court costs) to the prevailing party. In the event
of any Dispute governed by this paragraph, each of the
parties shall, subject to the award of the arbitrator,
pay an equal share of the arbitrator's fees.
MAKER AND EACH INDORSER AGREE THAT ANY ACTION, SUIT
OR PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS NOTE
MAY BE INITIATED AND PROSECUTED IN THE STATE OR FEDERAL
COURTS, AS THE CASE MAY BE, LOCATED IN NEW YORK COUNTY,
NEW YORK AND ANY ARBITRATION PROCEEDING PURSUANT HERETO
SHALL BE CONDUCTED IN NEW YORK, NEW YORK. MAKER AND EACH
INDORSER CONSENT TO AND SUBMIT TO THE EXERCISE OF
JURISDICTION OVER ITS PERSON BY ANY SUCH COURT HAVING
JURISDICTION OVER THE SUBJECT MATTER, WAIVE PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENT THAT
ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL
DIRECTED TO MAKER OR SUCH INDORSER AT ITS ADDRESS SET
FORTH BELOW OR TO ANY OTHER ADDRESS AS MAY APPEAR IN
BANK'S RECORDS AS THE ADDRESS OF MAKER OR SUCH INDORSER.
IN ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR
ARISING OUT OF THIS NOTE, BANK, MAKER AND EACH INDORSER
WAIVE TRIAL BY JURY, AND MAKER AND EACH INDORSER ALSO
WAIVER (I) THE RIGHT TO INTERPOSE ANY SET-OFF OR
COUNTERCLAIM OF ANY NATURE OR DESCRIPTION, (II) ANY
OBJECTION BASED ON FORUM NON CONVENIENS OR VENUE, AND
(III) ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES.
Bank is authorized to fill in any blank spaces and
to otherwise complete this Note and correct any patent
errors herein.
Donald H. Ruttenberg By: /s/ Eric Ruttenberg
Eric M. Ruttenberg under POA
John C. Ruttenberg By: /s/ Eric Ruttenberg
Eric M. Ruttenberg under POA
Eric M. Ruttenberg By: /s/ Eric Ruttenberg
Katherine T. Ruttenberg By: /s/ Eric Ruttenberg
Eric M. Ruttenberg under POA
Hattie Ruttenberg By: /s/ Eric Ruttenberg
Eric M. Ruttenberg under POA
Tinicum Investors By: /s/ Eric Ruttenberg
Eric M. Ruttenberg - General
Partner
Tinicum Enterprises, By: /s/ J.H. Kasschau
Inc. James H. Kasschau - President
Tinicum Foreign By: /s/ J.H. Kasschau
Investments Corp. James H. Kasschau - President
RUTCO Incorporated By: /s/ J.H. Kasschau
James H. Kasschau - President
Tinicum Associates, By: /s/ J.H. Kasschau
Inc. James H. Kasschau - President
Tinicum Associates, By: /s/ J.H. Kasschau
G.P. James H. Kasschau - President
Tinicum Associates, Inc.
(Managing General Partner)
