EXHIBIT 4.13
[CONFORMED AS EXECUTED]
INTERCREDITOR AGREEMENT
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THIS INTERCREDITOR AGREEMENT, dated as of the 24th day of March, 1998,
by and among Fleet National Bank in its capacity as administrative agent for
itself and any other "Term Lender" from time to time party to the "Term Loan
Agreement" as those terms are defined below (together with any successor thereto
under the Term Loan Agreement (provided that such successor shall be bound by
the terms hereof), the "Term Administrative Agent"), and BT Commercial
Corporation, in its capacity as agent for itself and any other "Revolver Lender"
from time to time party to the "Revolver Credit Agreement" as those terms are
defined below ("BTCC").
R E C I T A L S
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X. Xxxxx X. Xxxxxxxxx Company (the "Borrower") has entered into the
Term Loan Agreement, pursuant to which the Term Lenders have made available to
the Borrower a term loan facility in the aggregate principal amount of
approximately $100,000,000;
B. The Borrower has entered into the Revolver Credit Agreement,
pursuant to which the Revolver Lenders have made available to the Borrower a
revolving credit facility in the aggregate amount of $220,000,000;
C. The obligations of the Borrower under the Term Loan Agreement are
secured by mortgages, liens and security interests in substantially all of
Borrower's property, plant and equipment, all as more specifically set forth in
the Term Loan Agreement and the other Term Loan Documents;
D. The obligations of the Borrower under the Revolver Credit
Agreement are secured by inventory, receivables and all assets relating thereto,
as more specifically set forth in the Revolver Credit Agreement and the other
documents delivered in connection therewith; and
E. The Revolver Agent and the Term Administrative Agent wish to enter
into this Agreement setting forth their agreement (i) as to the relative
priorities of the respective mortgages, liens and security interests in the
assets of the Borrower securing the respective obligations of the Borrower under
the Term Loan Documents and the Revolver Credit Documents and (ii) as to certain
related matters.
A G R E E M E N T
- - - - - - - - -
In consideration of the premises and the mutual covenants and
conditions herein contained, the Term Administrative Agent, for itself and on
behalf of the Term Lenders, and the Revolver Agent, for itself and on behalf of
the Revolver Lenders, intending to be legally bound, agree as follows:
1. Definitions. In addition to those terms elsewhere expressly
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defined in this Agreement, as used herein, the following terms shall be defined
as set forth below:
"Borrower" has the meaning set forth in the Recitals.
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"BT Account" means an account, maintained by the Revolver Agent at
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Bankers Trust Company, into which all available funds in the Concentration
Account are transferred on every Business Day to be applied to payments of the
Revolver Obligations.
"BTCC" has the meaning set forth in the introductory paragraph.
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"Business Day" means any day that is not a Saturday, a Sunday, a day
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on which banks are required or authorized to be closed in the State of New York
or a day on which the Revolver Agent or the Term Administrative Agent is closed
for business.
"Collateral" means, collectively, the Revolver Collateral and the Term
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Collateral.
"Collateral Account of the Term Loan Agreement" means, collectively,
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the cash collateral accounts of the Borrower and its Subsidiaries that are
parties to the Term Security Agreement, maintained with, and in the sole
dominion and control of, the Term Administrative Agent for the benefit of the
Secured Parties (as such term is defined in the Term Security Agreement),
established pursuant to the Term Security Agreement.
"Collection Account" means the account, established at an institution
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selected by the Borrower and acceptable to BTCC pursuant to the Collection Bank
Agreement, into which funds on deposit in the relevant Sub-Collection Account
shall be transferred pursuant to the Revolver Credit Agreement.
"Collection Agreements" means agreements between the Borrower, the
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Revolver Agent and financial institutions selected by the Borrower and
acceptable to BTCC which provide, among other things, for all receipts received
in respect of Revolver Accounts to be transferred at the end of each day from
each Sub-Collection Account to the appropriate Collection Account.
"Concentration Account" means an account established pursuant to a
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Concentration Account Agreement entered into among the Borrower, the Revolver
Agent and Bankers Trust Company, and into which all available amounts held in
the Collection Accounts shall be wired each Business Day.
"Concentration Account Agreement" means a concentration account
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agreement entered into among the Borrower, the Revolver Agent and Bankers Trust
Company establishing the Concentration Account.
"Disposition" means the sale, assignment, transfer, lease, conveyance
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or other disposition by the Borrower of any Xxxxxxxxx Property, including,
without limitation, an involuntary disposition as a result of a casualty or
condemnation.
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"Equipment" means any "equipment," as such term is defined in Section
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9-109(2) of the UCC, now owned or hereafter acquired by the Borrower or any of
its Subsidiaries that are parties to the Term Security Agreement or in which the
Borrower or such Subsidiary now has or hereafter acquires any rights and
wherever located, and, in any event, shall include, without limitation, all
equipment, machinery, apparatus or tools in all forms, including, without
limitation, (a) all plate processing, cutting, tube honing, burning, sawing,
shearing, grinding, polishing, hot-rolling, and cold-finishing equipment; (b)
all bar, tubing and pipe, plate, sheet and other metal product finishing
equipment; (c) all lighting and power equipment; (d) all heating, ventilating,
sprinkling, water, power and communications equipment; (e) all cleaning
equipment; (f) all lift, elevator and escalator equipment; (g) all electrical
equipment; and (h) all computer and other electronic data processing hardware,
integrated computer systems, central processing units, memory units, display
terminals, printers, features, computer elements, card readers, tape drives,
hard and soft disk drives, cables, electrical supply hardware, generators, power
equalizers, accessories and all peripheral devices and other related computer
hardware; and all firmware associated with all of the foregoing, wherever
located, together with all parts thereof and all accessions, additions,
attachments, improvements, substitutions and replacements thereto and therefor
and all accessories related thereto, and any of the foregoing which shall
constitute fixtures under applicable law, provided that the term "Equipment"
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shall exclude any items of Revolver Collateral.
"General Intangibles" means any "general intangibles," as such term is
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defined in the UCC.
"Governmental Agency" means (a) any international, foreign, federal,
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state, county or municipal government, or political subdivision thereof, (b) any
governmental agency, authority, board, bureau, commission, department or
instrumentality, (c) any court or administrative tribunal, (d) any non-
governmental agency or entity that is vested by a governmental agency with
applicable jurisdiction over a Person, or (e) any arbitration tribunal or other
non-governmental authority to whose jurisdiction a Person has given its general
consent.
"Inventory" means merchandise, inventory and goods, and all additions,
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substitutions and replacements thereof, wherever located, together with all
goods, supplies, incidentals, packaging materials, labels, materials and any
other items (other than Term Collateral) used or usable in manufacturing,
processing, packaging or shipping same; in all stages of production -- from raw
materials through work-in-process to finished goods -- and all products and
proceeds of whatever sort and wherever located and any portion thereof which may
be returned, rejected, reclaimed or repossessed by the Collateral Agent from the
Borrower's customers, and shall specifically include all "inventory" as such
term is defined in the UCC, now or hereafter owned by the Borrower, and in no
event shall the term "Inventory" include any items of Term Collateral.
"Xxxxxxxxx Property" means any and all Property of the Borrower and
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each of its Subsidiaries, or rights, title or interests of the Borrower or such
Subsidiary in Property, howsoever arising, acquired or obtained, whether now or
hereafter existing, whether tangible or intangible, whether real or personal,
and wherever located.
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"Xxxxxxxxx Real Property" means (i) all freehold real and immovable
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property now owned or hereafter acquired by the Borrower and each of its
Subsidiaries that is a party to a mortgage or a deed of trust delivered pursuant
to the Term Loan Agreement, together with all buildings, erections, improvements
and fixtures now or hereafter constructed or placed thereon or used in
connection therewith, and (ii) all leasehold property now or hereafter leased by
the Borrower or such Subsidiary, together with all buildings, erections,
improvements and fixtures now or hereafter constructed or placed thereon or used
in connection therewith.
"Law" means, when used in connection with any Person, collectively,
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all international, foreign, federal, state and local statutes, treaties, rules,
regulations, standards, guidelines, ordinances, codes, orders and judgments (or
any official interpretation of any of the foregoing) issued by any Governmental
Agency applicable to that Person.
"Lien" means any mortgage, deed of trust, deed to secure debt, pledge,
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hypothecation, assignment for security, security interest, encumbrance, lien or
charge of any kind, whether voluntarily incurred or arising by operation of Law,
by statute, by contract, or otherwise, affecting any Property, including any
agreement to grant any of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature of a security interest, and/or the
filing of or agreement to give any financing statement (other than a
precautionary financing statement with respect to a lease that is not in the
nature of a security interest) under the UCC or comparable Law of any
jurisdiction as in effect on the date hereof with respect to any Property.
"Patent" or "Patents" means one or all of the following now owned or
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hereafter acquired by the Borrower or in which the Borrower now has or hereafter
acquires any rights, including, without limitation, pursuant to any Patent
License, and wherever located: (a) all letters patent of the United States or
any other country and all applications for letters patent of the United States
or any other country, (b) all reissues, reexaminations, continuations,
continuations-in-part, divisions, and extensions of any of the foregoing, and
(c) all inventions claimed and disclosed in the Patents and any and all trade
secrets and know-how related thereto.
"Patent License" means any written agreement granting any right to
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make, use, sell and/or practice any invention or discovery that is the subject
matter of a Patent now owned or hereafter acquired by the Borrower or in which
the Borrower now has or hereafter acquires any rights.
"Person" means any entity, whether an individual, trustee,
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corporation, general partnership, limited partnership, joint stock company,
trust, estate, unincorporated organization, business association, tribe, firm,
joint venture, Governmental Agency, or otherwise.
"Proceeds" means "Proceeds," as such term is defined in Section 9-
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306(1) of the UCC and, in any event, shall include, without limitation, (a) any
and all Proceeds of any insurance, indemnity, warranty or guaranty payable to
either the Term Administrative Agent or the Revolver Agent or the Borrower or
any of its Subsidiaries that is a party to a Security Document from time to time
with respect to any of the Collateral, (b) any and all payments (in any form
whatsoever) made or due and payable to the Borrower or such Subsidiary from time
to time in connection with any requisition, confiscation, condemnation, seizure
or forfeiture of all or any part of the
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Collateral by any Governmental Agency (or any Person acting under color of
governmental authority) and (c) any and all other amounts from time to time paid
or payable under or in connection with any of the Collateral.
"Property" means any interest in any kind of property or asset,
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whether real, personal or mixed, tangible or intangible.
"Receivables" means any "account" as such term is defined in the UCC,
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now or hereafter owned by the Borrower and, in any event, includes, but is not
limited to, all of the Borrower's rights to payment for goods sold or leased or
services performed by the Borrower, whether now in existence or arising from
time to time hereafter, including, without limitation, rights evidenced by an
account, note, contract, security agreement, chattel paper, or other evidence of
indebtedness or security, together with (a) all security pledged, assigned,
hypothecated or granted to or held by the Borrower to secure the foregoing, (b)
all of the Borrower's right, title and interest in and to any goods, the sale of
which gave rise thereto, (c) all guarantees, endorsements and indemnifications
on, or of, any of the foregoing, (d) all powers of attorney for the execution of
any evidence of indebtedness or security or other writing in connection
therewith, (e) all books, records, ledger cards, and invoices relating thereto,
(f) all notices to Interest Rate Protection Creditors or secured parties, and
certificates from filing or other registration officers, (g) all credit
information, reports and memoranda relating thereto, and (h) all other writings
related in any way to the foregoing.
"Remedial Action" means any claim, proceeding or action to foreclose
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upon, take possession or control of, sell, lease or otherwise dispose of or in
any other manner realize, take steps to realize or seek to realize upon, the
whole or any part of any Xxxxxxxxx Property, whether pursuant to the UCC, by
foreclosure, by setoff, by self-help repossession, by notification to account
debtors, by deed in lieu of foreclosure, by exercise of power of sale, by
judicial action or otherwise, or the exercise of any other remedies with respect
to any Xxxxxxxxx Property available under any of the Security Documents, or
under applicable Law.
"Revolver Accounts" means, with respect to any Person, all present and
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future accounts, contract rights and other rights to payment for goods sold or
leased (whether or not delivered) or for services rendered which are not
evidenced by an instrument or chattel paper, whether or not they have been
earned by performance, and any letter of credit, guarantee, security interest or
other security issued or granted to secure payment by an account debtor.
"Revolver Agent" means BTCC in its capacity as agent for the Revolver
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Lenders under the Revolver Credit Agreement and not in its individual capacity,
any successor agent to BTCC under the Revolver Credit Agreement and any other
agent, trustee or representative of the Revolver Lenders serving in such
capacity from time to time and, if there is no such agent, trustee or
representative, "Revolver Agent" means, collectively, the Revolver Lenders.
"Revolver Collateral" has the meaning set forth in Section 3.1(a).
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"Revolver Credit Agreement" means (a) the Amended and Restated Credit
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Agreement, dated as of March 3, 1993, amended and restated as of March 24, 1998,
among Xxxxx X. Xxxxxxxxx Holding Company, Inc., the Borrower, Bankers Trust
Company, as Issuing Bank, and BT Commercial Corporation, as Syndication Agent
and Agent, as such agreement may be amended, amended and restated, renewed,
extended, restructured, refinanced, supplemented, or otherwise modified from
time to time (subject to the Term Loan Agreement); and (b) any credit agreement,
loan agreement, note purchase agreement, indenture or other agreement, document
or instrument refinancing, refunding or otherwise replacing the Revolver Credit
Agreement, or any other agreement deemed a Revolver Credit Agreement under
clause (a) or (b) hereof, whether or not with the same agent, trustee,
representative lenders or holders and, subject to the provisions of the next
succeeding sentence, irrespective of any change in the terms and conditions
thereof (subject to the Term Loan Agreement); provided, that, any such
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agreement, document or instrument effecting any such refunding, refinancing or
replacement expressly provides that it is deemed to be a "Revolver Credit
Agreement" hereunder and that the lenders thereunder and their agent(s), if any,
shall be bound by the terms hereof. Without limiting the generality of the
foregoing, the term "Revolver Credit Agreement" shall include any amendment,
amendment and restatement, renewal, extension, restructuring, supplement or
modification to any Revolver Credit Agreement and all refundings, refinancings
and replacements of any Revolver Credit Agreement including any agreement (i)
extending the maturity of any Revolver Obligations; (ii) adding or deleting
issuers, borrowers or guarantors thereunder; (iii) increasing the amount of
Revolver Obligations incurred thereunder or available to be borrowed thereunder;
or (iv) otherwise altering the terms and conditions thereof (subject to the Term
Loan Agreement); provided, that any such agreement, document or instrument
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effecting any such refunding, refinancing or replacement expressly provides that
it is deemed to be a "Revolver Credit Agreement" hereunder and that the lenders
thereunder and their agent(s), if any, shall be bound by the terms hereof.
"Revolver Credit Documents" means the Revolver Credit Agreement, the
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Revolver Security Documents, and all documents, agreements, instruments and
certificates now or hereafter executed and delivered in connection with the
Revolver Credit Agreement, except as released prior to or in accordance with the
execution of the Revolver Credit Agreement.
"Revolver Interest Rate Obligations" means, collectively, at any time,
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all debts, liabilities and obligations of the Borrower, whether now or hereafter
existing, incurred in connection with the Interest Rate Agreements (as such term
is defined in the Revolver Security Documents as in effect on the date hereof)
entered into with the Interest Rate Protection Creditors (as such term is
defined in the Revolver Security Documents as in effect on the date hereof).
"Revolver Lenders" means, collectively, the holders from time to time
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of the Revolver Obligations.
"Revolver Lenders' Lien" means a Lien now or hereafter granted to, or
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obtained by, the Revolver Lenders or the Credit Agreement Agent for the benefit
of the Revolver Lenders on any Revolver Collateral as security for the payment
and performance of any Revolver Obligations.
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"Revolver Obligations" means, collectively, at any time, (a) all
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debts, liabilities and obligations of the Borrower, whether now or hereafter
existing, incurred in connection with the Revolver Credit Documents and (b) all
Revolver Interest Rate Obligations, in each case, at such time.
"Revolver Security Documents" means, collectively, any and all
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documents executed in connection with the Revolver Credit Agreement or in
furtherance thereof, pursuant to which the Borrower grants to the Revolver
Lenders (whether through the Revolver Agent or otherwise) a Lien on the Revolver
Collateral, as the same may be amended, modified, supplemented or acknowledged
from time to time to the extent, and only to the extent, that such amendment,
modification, supplement or acknowledgment is permitted by the Revolver Credit
Agreement and the Term Loan Agreement.
"Security Documents" means, collectively, the Revolver Security
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Documents and the Term Security Documents.
"Sub-Collection Account" means an account established by the Borrower
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for the collection of amounts received by the Borrower from any account debtor,
in addition to cash received from any other source, made in respect of Revolver
Accounts.
"Subsidiary" means any Person of which at least a majority of the
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capital stock or other ownership interest having ordinary voting power for the
election of directors or other governing body of said Person is owned by the
Borrower, directly or through one or more Subsidiaries.
"Term Administrative Agent" has the meaning set forth in the
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introductory paragraph.
"Term Collateral" has the meaning set forth in Section 3.1(b).
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"Term Lenders" mean the financial institutions party from time to time
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to the Term Loan Agreement.
"Term Lenders' Lien" means a Lien now or hereafter granted to, or
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obtained by, the Term Lenders or the Term Administrative Agent for the benefit
of the Term Lenders on any Term Collateral, as security for the payment and
performance of any Term Obligations.
"Term Loan Agreement" means (a) the Term Loan Agreement, dated as of
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March 24, 1998, among the Borrower, DLJ Capital Funding, Inc., as Syndication
Agent, Bankers Trust Company, as Documentation Agent, the Term Administrative
Agent and the Term Lenders party thereto, as such agreement may be amended,
amended and restated, renewed, extended, restructured, refinanced, supplemented,
or otherwise modified from time to time (subject to the Revolver Credit
Agreement); and (b) any credit agreement, loan agreement, note purchase
agreement, indenture or other agreement, document or instrument refinancing,
refunding or otherwise replacing the Term Loan Agreement, or any other agreement
deemed a Term Loan Agreement under clause (a) or (b) hereof, whether or not with
the same agent, trustee, representative lenders or holders and, subject to the
provisions of the next succeeding sentence,
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irrespective of any change in the terms and conditions thereof (subject to the
Revolver Credit Agreement); provided, that any such agreement, document or
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instrument effecting any such refunding, refinancing or replacement expressly
provides that it is deemed to be a "Term Loan Agreement" hereunder and that the
lenders thereunder and their agent(s), if any, shall be bound by the terms
hereof. Without limiting the generality of the foregoing, the term "Term Loan
Agreement" shall include any amendment, amendment and restatement, renewal,
extension, restructuring, supplement or modification to any Term Loan and all
refundings, refinancings and replacements of any Term Loan including any
agreement (i) extending the maturity of any Term Obligations; (ii) adding or
deleting issuers, borrowers or guarantors thereunder; (iii) increasing the
amount of Revolver Obligations incurred thereunder or available to be borrowed
thereunder; or (iv) otherwise altering the terms and conditions thereof (subject
to the Revolver Credit Agreement); provided, that any such agreement, document
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or instrument effecting any such refunding, refinancing or replacement expressly
provides that it is deemed to be a "Term Loan Agreement" hereunder.
"Term Loan Documents" means the Term Loan Agreement and all documents,
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agreements, instruments and certificates now or hereafter executed and delivered
in connection with the Term Loan Agreement, except as released prior to or in
accordance with the execution of the Term Loan Agreement.
"Term Obligations" means, collectively, at any time all debts,
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liabilities and obligations of the Borrower, whether now or hereafter existing,
arising pursuant to the terms of the Term Loan Documents at such time.
"Term Security Agreement" means the security agreement executed
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pursuant to the Term Loan Agreement.
"Term Security Documents" means, collectively, any and all documents
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executed in connection with the Term Loan Agreement or in furtherance thereof,
pursuant to which the Borrower grants to the Term Lenders (whether through the
Term Administrative Agent or otherwise) a Lien on the Term Collateral, and, to
the extent permitted pursuant to the terms of this Agreement, as the same may be
amended, modified or supplemented from time to time to the extent, and only to
the extent, that such amendment, modification or supplement is permitted by the
Term Loan Agreement and the Revolver Credit Agreement.
"Trademark" or "Trademarks" means any trademarks and service marks now
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held or hereafter acquired by the Borrower (including, without limitation,
pursuant to any Trademark License), which are registered in the United States
Patent and Trademark Office, as well as any unregistered marks used by the
Borrower in the United States and trade dress including logos and/or designs in
connection with which any of these registered or unregistered marks are used.
"Trademark License" means any written agreement granting any right to
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use any Trademark or Trademark registration now owned or hereafter acquired by
the Borrower or in which the Borrower now has or hereafter acquires any rights.
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"UCC" means the Uniform Commercial Code as in effect on the date
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hereof in the State of New York, or, if another jurisdiction is specified in
this Agreement, the Uniform Commercial Code as in effect from time to time in
such jurisdiction.
2. Consents. Subject to the terms and conditions of this Agreement
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(including, without limitation, Section 4.2 hereof):
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(a) The Revolver Agent, for itself and on behalf of the Revolver
Lenders, consents to (i) the execution and delivery of the Term Loan
Agreement and each Term Security Document, in each case as in effect on the
date hereof, (ii) the incurrence of all Term Obligations and (iii) the
granting of all Term Lenders' Liens; and
(b) The Term Administrative Agent, for itself and on behalf of the
Term Lenders, consents to (i) the execution and delivery of the Revolver
Credit Agreement and each Revolver Security Document, in each case as in
effect on the date hereof, (ii) the incurrence of all Revolver Obligations
and (iii) the granting of all Revolver Lenders' Liens.
3. Priority of Liens; Remedial Actions; Other Agreements.
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3.1 Priority of Liens. The Revolver Lenders' Liens and the Term
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Lenders' Liens shall, as between the Revolver Lenders and the Term Lenders, have
the following priorities:
(a) The Revolver Lenders' Liens in all that Xxxxxxxxx Property set
forth and described on Schedule A hereto (the "Revolver Collateral") shall
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be first priority Liens in such Property.
(b) The Term Lenders' Liens in all that Xxxxxxxxx Property set forth
and described on Schedule B hereto (the "Term Collateral") shall be first
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priority Liens in such Property.
The foregoing provisions shall be effective at all times during the term of this
Agreement, notwithstanding: (i) the initiation of any bankruptcy, moratorium,
reorganization or other solvency proceeding with respect to the Borrower or the
grantor or pledgor of any Collateral; (ii) the priorities which would otherwise
result from the order of creation, attachment or perfection of any such Lien;
(iii) the taking of possession of any of the Xxxxxxxxx Property by the Revolver
Agent, the Term Administrative Agent, any Revolver Lender or any Term Lender;
(iv) the filing of any financing statement or the recording of any mortgage or
other instrument in any recording office; (v) the order in which any of the
Revolver Obligations or the Term Obligations are created; (vi) whether any such
Lien is now perfected, hereafter ceases to be perfected, is avoidable by any
bankruptcy trustee or otherwise is set aside invalidated or lapses; or (vii) any
other matter whatsoever; and shall continue in full force and effect unless and
until this Agreement shall have terminated in accordance with Section 5 hereof.
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3.2 Remedial Actions. Unless and until this Agreement shall have
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been terminated in accordance with Section 5 hereof, the Revolver Agent and the
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Term Administrative Agent shall have the right, as between themselves, to take
or fail to take Remedial Actions with respect to any Collateral as follows:
(a) The Revolver Agent shall have the sole and exclusive right to
take or fail to take any Remedial Action with respect to the Revolver
Collateral as provided in the Revolver Security Documents or under
applicable Law in any manner deemed appropriate by the Revolver Agent or
the Revolver Lenders in its or their sole discretion, and neither the Term
Administrative Agent nor any Term Lender shall take any Remedial Action
with respect to the Revolver Collateral without the prior written consent
of the Revolver Agent;
(b) The Term Administrative Agent shall have the sole and exclusive
right to take or fail to take any Remedial Action with respect to the Term
Collateral as provided in the Term Security Documents or under applicable
Law in any manner deemed appropriate by the Term Administrative Agent or
the Term Lenders in its or their sole discretion, and neither the Revolver
Agent nor any Revolver Lender shall take any Remedial Action with respect
to the Term Collateral without the prior written consent of the Term
Administrative Agent; and
(c) The Revolver Agent shall have the sole and exclusive right to
adjust settlement of, and collect the Proceeds of, any and all insurance
insuring the Revolver Collateral and the Term Administrative Agent shall
have the sole and exclusive right to adjust settlement of and collect the
Proceeds of, any and all insurance insuring the Term Collateral. Any such
Proceeds received shall be promptly distributed in accordance with Section
3.3 hereof.
Notwithstanding the foregoing, nothing contained in this Section 3.2 shall
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prohibit the Revolver Agent, the Revolver Lenders, the Term Administrative Agent
or the Term Lenders from filing a proof of claim in any case involving the
Borrower, as debtor, under Title 11 of the United States Code, as amended, nor
from intervening or participating in any other judicial proceeding to the extent
necessary to establish or preserve its interests, subject in each case to the
provisions of this Agreement.
3.3 Priority on Distribution of Proceeds of Collateral. In the event
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of:
(a) any distribution of any Xxxxxxxxx Property upon the bankruptcy,
arrangement, receivership, assignment for the benefit of creditors or any
other action or proceeding involving the readjustment of the obligations
and indebtedness of the Borrower or any of its Subsidiaries that is a party
to a Security Document, or the application of any Xxxxxxxxx Property to the
payment thereof;
(b) any distribution of the Xxxxxxxxx Property upon the liquidation
or dissolution of the Borrower or any Subsidiary of the Borrower that is a
party to a Security
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Document, or the winding up of the assets or business of the Borrower or
any such Subsidiary of the Borrower;
(c) any realization by any of the Revolver Agent, the Term
Administrative Agent, the Revolver Lenders or the Term Lenders with respect
to the Revolver Lenders' Liens or the Term Lenders' Liens, respectively,
whether through a Remedial Action or otherwise; or
(d) any Disposition of any Xxxxxxxxx Property, to the extent that any
part of the proceeds of such Disposition are required to be applied to any
of the Revolver Obligations or the Term Obligations or held by the Revolver
Agent or the Term Administrative Agent in accordance with the provisions of
the Revolver Credit Documents, the Term Loan Documents, or the provisions
of this Agreement;
then, in any such event, as between the Revolver Lenders and the Term Lenders
(i) all of the Revolver Collateral and any Proceeds thereof so distributed,
applied or realized upon shall be distributed or paid to (or retained by) the
Revolver Agent for application to the Revolver Obligations to the extent of the
Revolver Lenders' Liens therein, and, after the payment in full in cash of all
Revolver Obligations then due and owing, the remaining amount of such Proceeds
shall be distributed or paid to (or retained by) the Term Administrative Agent
or any Term Lenders for application to the Term Obligations and (ii) all of the
Term Collateral and any Proceeds thereof distributed, applied or realized upon
shall be distributed or paid to (or retained by) the Term Administrative Agent
for application to the Term Obligations to the extent of the Term Lenders' Liens
therein and, after the payment in full in cash of all Term Obligations then due
and owing, the remaining amount of such Proceeds shall be distributed or paid to
(or retained by) the Revolver Agent or any Lender for application to the
Revolver Obligations. Any amounts paid to the Revolver Agent and the Term
Administrative Agent shall be allocated to the Revolver Lenders and the Term
Lenders, respectively, in accordance with the terms of the Revolver Credit
Documents and the Term Loan Documents, respectively.
3.4 Parties to Hold Proceeds in Trust. In the event that:
---------------------------------
(a) the Revolver Agent or any Revolver Lender obtains possession of
any of the Term Collateral or receives any Proceeds from any Remedial
Action with respect to Term Collateral or any Disposition of Term
Collateral described in Section 3.3 hereof or as a result of its Lien on
-----------
any Term Collateral at any time prior to payment in full of all Term
Obligations; or
(b) the Term Administrative Agent or any Term Lender obtains
possession of any of the Revolver Collateral or receives any Proceeds from
any Remedial Action with respect to Revolver Collateral or Disposition of
Revolver Collateral described in Section 3.3 hereof or as a result of its
-----------
Lien on any Revolver Collateral at any time prior to payment in full of all
Revolver Obligations;
then, in any such event, the party receiving such Proceeds shall (unless
otherwise provided by Law) hold the same in trust for the party entitled to
receive the same and promptly notify and pay
11
over the same to such party for application to the Revolver Obligations (in the
case of the Revolver Agent) and to the Term Obligations (in the case of the Term
Administrative Agent).
3.5 Payment Invalidated. In the event that any of the Revolver
-------------------
Obligations or Term Obligations shall be paid in full in cash and subsequently,
for whatever reason (including but not limited to, an order or judgment for
disgorgement of a preference under Title 11 of the United States Code, or any
similar Law, or the settlement of any claim in respect thereof), formerly paid
or satisfied Revolver Obligations or Term Obligations become unpaid or
unsatisfied, the terms and conditions of this Agreement shall be reinstated,
notwithstanding any prior termination of this Agreement pursuant to Section 5,
---------
and all provisions of this Agreement shall again be operative until all such
obligations are again paid in full in cash.
3.6 Notice of Acceleration; Notice of Remedial Action. Each of the
-------------------------------------------------
Revolver Agent and the Term Administrative Agent agrees to deliver to the other:
(a) In the case of the Revolver Agent, (i) prompt written notice of
the acceleration of the Revolver Obligations pursuant to the Revolver
Credit Documents (such notice to be provided in the same manner and
substantially contemporaneously with any notice provided to the Borrower)
and (ii) prompt written notice of any Remedial Action with respect to
Revolver Collateral; and
(b) In the case of the Term Administrative Agent, (i) prompt written
notice of the acceleration of the Term Obligations pursuant to the Term
Loan Documents (such notice to be provided in the same manner and
substantially contemporaneously with any notice provided to the Borrower)
and (ii) prompt written notice of any Remedial Action with respect to Term
Collateral.
3.7 Contesting Liens. Each of the Revolver Agent, for itself and on
----------------
behalf of the Revolver Lenders, and the Term Administrative Agent, for itself
and on behalf of the Term Lenders, agrees that it shall not contest the
validity, perfection, priority or enforceability of any Revolver Lenders' Lien
in Revolver Collateral, in the case of the Term Administrative Agent and the
Term Lenders, or any Term Lenders' Lien in Term Collateral, in the case of the
Revolver Agent and the Revolver Lenders, so long as such Lien is purported to be
-- ---- --
effective under the Security Document pursuant to which such Lien was purported
to have been created or granted.
3.8 Further Assurances. (a) From time to time during the term
------------------
hereof, each of the Revolver Agent and the Term Administrative Agent, at the
reasonable request of the other party, shall execute and deliver such other
documents and instruments and take such other actions, as shall reasonably be
necessary to carry out the intentions or to facilitate the performance of this
Agreement including, without limitation, in connection with any Remedial Action
of which such Person has received notice in accordance with the terms hereof;
(b) Each of the Revolver Agent and the Borrower hereby acknowledge
and agree that the Revolver Collateral does not include any Collateral Account
of the Term Loan Agreement and covenant to execute and file, within three (3)
weeks of the date hereof, solely at the Borrower's expense (the Borrower hereby
agreeing to comply with the requirements of this
12
Section 3.8(b) by executing the acknowledgment attached to this Agreement), all
UCC amendments to the Form UCC-1 financing statements evidencing the Revolving
Lenders' Liens necessary to exclude from the description of the collateral
covered thereby each Collateral Account of the Term Loan Agreement. Furthermore,
each of the Revolver Agent and the Borrower acknowledges and agrees that,
notwithstanding the content of any filed Form UCC-1 financing statements
(existing on the date hereof), such Form UCC-1 financing statements do not
include any items of the Term Collateral or perfect a Revolver Lenders' Lien
therein.
3.9 Access to Collateral. (a) Each of the Revolver Agent and the
--------------------
Term Administrative Agent agrees to allow the other and its respective agents
and employees reasonable access to any Xxxxxxxxx Property in its possession or
under its control, including, without limitation, any Xxxxxxxxx Real Property
and any customer lists, software, data bases, business records data and other
books and records of the Borrower pertaining to any of the Collateral, for the
purposes of any Remedial Action then permitted by this Agreement and the
relevant Security Documents and the Borrower, on its behalf and on behalf of any
of its Subsidiaries party to any Security Documents, by acknowledging receipt of
this Agreement consents to such access. In the event such utilization of the
Term Collateral is solely for the purpose of removing and/or realizing on
Revolver Collateral, the Revolver Lenders shall indemnify the Term Lenders from
all damage to or deterioration of the Term Collateral during such utilization,
normal wear and tear excepted;
(b) In the event such utilization of the Term Collateral is for the
purpose of processing and converting raw materials (including work-in-process)
into finished goods, the Revolver Lenders shall, in addition to the indemnity
referenced in paragraph (a) above, pay to the Term Lenders the incremental costs
(i.e., those costs which are directly attributable to the Revolver Agent's
----
utilization of such Term Collateral over and above any such costs the Term
Lenders would have incurred whether or not the Revolver Agent had so utilized
the Term Collateral) incurred by the Term Lenders on account of utility rates
and similar charges and any increased insurance costs which the Term Lenders are
required to pay as a result of such utilization;
(c) Nothing in this Section 3.10 shall prevent the Term
------------
Administrative Agent or the Revolver Agent from entering into a contract of
sale, transfer or other disposition of, or otherwise foreclosing on, any of the
Term Collateral or Revolver Collateral, respectively, so long as such contract
provides, or such foreclosure is subject to providing, the Revolver Agent or the
Term Administrative Agent, as the case may be, with the same access to such
Collateral (including the execution and delivery of any agreements between third
parties and the Revolver Agent to preserve the Revolver Agent's or any Revolver
Lender's access to the Revolver Collateral during the period described in clause
(f) below) as provided by this Section 3.9.
-----------
(d) The Term Administrative Agent agrees that it shall not take any
action, legal, contractual or otherwise, or commence any legal proceeding to
prevent the Revolver Agent's use of the Term Collateral as provided in this
Section 3.9 or the Revolver Agent's non-exclusive use of any Patents, Patent
-----------
Licenses or General Intangibles necessary or desirable to convert raw materials
constituting Revolver Collateral into inventory, to the extent that the Borrower
has granted the Revolver Agent the right to use any such property for such
purpose.
13
(e) The Revolver Agent agrees that it shall not take any action,
legal, contractual or otherwise, or commence any legal proceeding to prevent the
Term Administrative Agent's use of the Revolver Collateral as provided in this
Section 3.9 or the Term Administrative Agent's non-exclusive use of any Patents,
-----------
Patent Licenses or General Intangibles necessary or desirable to dispose of
equipment constituting Term Collateral, to the extent that the Borrower has
granted the Term Administrative Agent the right to do so.
(f) Notwithstanding anything to the contrary in this Section 3.9, (i)
-----------
the utilization (including, without limitation, the access, occupation and use)
of the Term Collateral by the Revolver Agent shall be permitted for a period not
to exceed (x) ninety (90) days from the date the Revolver Agent takes any
Remedial Action or receives notice from the Term Administrative Agent that the
Term Administrative Agent has taken or intends to take any Remedial Action or
(y) such shorter period as is necessary for the Revolver Agent to complete
Revolver Collateral consisting of work-in-process, to store Revolver Collateral
constituting Inventory and to otherwise remove such Revolver Collateral from the
Xxxxxxxxx Real Property in which the Term Administrative Agent is purported to
have a Lien and complete the Revolver Agent's exercise of remedies in respect
thereof.
3.10 Trademark Licenses. (a) The Term Administrative Agent consents
------------------
to the granting by the Borrower to the Revolver Agent of a nonexclusive license
to use each Trademark of the Borrower to enable them to manufacture and sell the
Revolver Collateral. Such license and such right shall be world-wide and
royalty free. The Revolver Agent covenants and agrees that it will use
reasonable efforts after the acceleration of the Revolver Obligations to obtain
possession of the Revolver Collateral and to promptly terminate such license
with respect to any Trademark by notice to the Term Administrative Agent at the
time any such Property (in the judgment of the Revolver Agent) is no longer
necessary or desirable in connection with the manufacture or sale of the
Revolver Collateral.
(b) The Revolver Agent consents to the granting by the Borrower to
the Term Administrative Agent of a nonexclusive license to use each Trademark of
the Borrower to enable the Term Administrative Agent to remove and realize on
the Term Collateral. Such license and such right shall be world-wide and royalty
free.
(c) The Revolver Agent acknowledges that it has no security interests
in any intellectual property, including but not limited to Trademarks and
Trademark Licenses, and, accordingly, shall not have any right to assign,
convey, transfer or grant licenses and sublicenses in the Trademarks and the
Trademark Licenses to any other Person, other than, subject to the limitations
of this Section 3.10, in connection with the uses permitted by Section 3.10(a)
------------ ---------------
above to any Person acquiring any of the Revolver Collateral from the Revolver
Agent in connection with the exercise by the Revolver Agent of its rights as a
secured creditor of the Borrower with respect to such Inventory (unless such
Person agrees to be bound by the terms of this Section 3.10 as if it were the
Revolving Agent), and any purported assignment, conveyance, transfer or grant
(except as expressly permitted herein) shall be void.
(d) The Term Administrative Agent acknowledges that it has no
security interests in any intellectual property, including but not limited to
Trademarks and Trademark
14
Licenses, and, accordingly, shall not have any right to assign, convey, transfer
or grant licenses and sublicenses in the Trademarks and the Trademark Licenses
to any other Person, other than in connection with the uses permitted by Section
-------
3.10(b) above to any Person acquiring any of the Term Collateral from the Term
-------
Administrative Agent in connection with the exercise by the Term Administrative
Agent of its rights as a secured creditor of the Borrower with respect to such
Term Collateral (unless such Person agrees to be bound by the terms of this
Section 3.10 as if it were the Term Administrative Agent), and any purported
assignment, conveyance, transfer or grant (except as expressly permitted herein)
shall be void.
4. Reliance, Waivers, Etc.
-----------------------
4.1 Creation of Future Obligations. (a) All of the Revolver
------------------------------
Obligations shall be deemed to have been funded by the Revolver Lenders and
incurred by the Borrower in reliance upon this Agreement, and the Term
Administrative Agent and each Term Lender expressly waive notice to the Term
Administrative Agent or any Term Lender of the acceptance of the agreements set
forth herein, notice of reliance on such agreements and notice of the creation
of any of the Revolver Obligations after the date hereof, and agree that the
Revolver Lenders shall be entitled to rely upon the agreements set forth herein
at all times in creating the Revolver Obligations.
(b) All of the Term Obligations shall be deemed to have been funded
by the Term Lenders and incurred by the Borrower in reliance upon this
Agreement, and the Revolver Agent and each Revolver Lender expressly waive
notice to the Revolver Agent or any Revolver Lender of the acceptance of the
agreements set forth herein, notice of reliance on such agreements and notice of
the creation of any of the Term Obligations after the date hereof and agree that
the Term Lenders shall be entitled to rely upon the agreements set forth herein
at all times in creating the Term Obligations.
4.2 Responsibility for Credit Decisions; No Duty to Inform Other
------------------------------------------------------------
Parties. (a) The Term Administrative Agent has, independently and without
-------
reliance on the Revolver Agent, any Revolver Lender or the directors, officers,
agents, employees or attorneys of any thereof, and instead in reliance upon
information supplied to it on behalf of the Borrower and upon such other
information as it has deemed appropriate (including, without limitation, all
such information as it deemed advisable with respect to the Borrower's
compliance or non-compliance with any environmental Laws), made its own
independent decision to enter into the Term Loan Documents and to serve as Term
Administrative Agent thereunder; and the Term Administrative Agent shall, for
itself and on behalf of the Term Lenders, independently and without reliance
upon the Revolver Agent, any Revolver Lender or the directors, officers, agents,
employees or attorneys of any thereof, continue to make its own independent
analysis and decisions in acting or not acting under the Term Loan Documents.
(b) The Revolver Agent has, independently and without reliance on the
Term Administrative Agent, any Term Lender or the directors, officers, agents,
employees or attorneys of any thereof, and instead in reliance upon information
supplied to it on behalf of the Borrower and upon such other information as it
has deemed appropriate (including, without limitation, all such information as
it deemed advisable with respect to the Borrower's compliance or non-compliance
with any environmental Laws), made its own independent decision to enter into
the
15
Revolver Credit Documents and to serve as the Revolver Agent thereunder and the
Revolver Agent shall, for itself and on behalf of the Revolver Lenders,
independently and without reliance upon the Term Administrative Agent, any Term
Lender or the directors, officers, agents, employees or attorneys of any
thereof, continue to make its own independent analysis and decisions in acting
or not acting under the Revolver Credit Documents.
(c) Neither the Revolver Agent nor any Revolver Lender shall have any
present or future duty or responsibility to the Term Administrative Agent or any
Term Lender to advise the Term Administrative Agent or any Term Lender of
information known to the Revolver Agent or any Revolver Lender regarding the
financial condition of the Borrower or of any circumstances bearing upon the
risk of nonpayment of the Revolver Obligations or the Term Obligations and the
Term Administrative Agent and each Term Lender acknowledges that neither the
Revolver Agent nor any Revolver Lender has made any representations or
warranties to the Term Administrative Agent or any Term Lender with respect to
the due execution, delivery, validity or enforceability of the Revolver Credit
Documents, the validity or perfection of the Revolver Lenders' Liens, the
validity or enforceability of the Revolver Obligations, the existence, condition
or value of any of the Revolver Lenders' Collateral or as to any other matter
whatsoever. If, notwithstanding the foregoing, any such information is conveyed
by the Revolver Agent or any Revolver Lender to the Term Administrative Agent or
any Term Lender, neither the Revolver Agent nor any Revolver Lender shall have
any responsibility to the Term Administrative Agent or any Term Lender for the
accuracy or completeness of any such information, nor any continuing duty or
responsibility to advise the Term Administrative Agent or any Term Lender of any
inaccuracy in such information that is subsequently discovered, or of any
updated or subsequent information, whether or not of like kind.
(d) Neither the Term Administrative Agent nor any Term Lender shall
have any present or future duty or responsibility to the Revolver Agent or any
Revolver Lender to advise the Revolver Agent or any Revolver Lender of
information known to the Term Administrative Agent or any Term Lender regarding
the financial condition of the Borrower or of any circumstances bearing upon the
risk of nonpayment of the Term Obligations or the Revolver Obligations and the
Revolver Agent on behalf of itself and each Revolver Lender acknowledges that
neither the Term Administrative Agent nor any Term Lender has made any
representations or warranties to the Revolver Agent or any Revolver Lender with
respect to the due execution, delivery, validity or enforceability of the Term
Loan Documents, the validity or perfection of the Term Lenders' Liens, the
validity or enforceability of the Term Obligations, the existence, condition or
value of any of the Term Collateral or as to any other matter whatsoever. If,
notwithstanding the foregoing, any such information is conveyed by the Term
Administrative Agent or any Term Lender to the Revolver Agent or any Revolver
Lender, neither the Term Administrative Agent nor any Term Lender shall have any
responsibility to the Revolver Agent or any Revolver Lender for the accuracy or
completeness of any such information, nor any continuing duty or responsibility
to advise the Revolver Agent or any Revolver Lender of any inaccuracy in such
information that is subsequently discovered, or of any updated or subsequent
information, whether or not of like kind.
16
4.3 Order of Enforcement of Remedial Actions. Subject to all of the
----------------------------------------
terms and conditions of this Agreement, including, without limitation, Section
-------
3.3 hereof:
---
(a) The Revolver Agent and the Revolver Lenders shall have the right
at any and all times to determine the order in which (i) any Remedial
Action or other recourse is sought against the Borrower or any other
obligor with respect to the Revolver Obligations, and (ii) any or all of
the Revolver Lenders' Liens shall be enforced; and the Term Administrative
Agent, on behalf of itself and each Term Lender, hereby waives any and all
rights to require that the Revolver Agent pursue or exhaust any rights or
remedies with respect to the Borrower or any Xxxxxxxxx Property prior to
exercising its rights and remedies with respect to the Revolver Collateral
or in any other manner to require the marshaling of assets or security in
connection with the exercise by the Revolver Agent or any Revolver Lender
of any Remedial Action with respect to the Revolver Obligations and the
Revolver Collateral.
(b) The Term Administrative Agent and the Term Lenders shall have the
right at any and all times to determine the order in which (i) any Remedial
Action or other recourse is sought against the Borrower or any other
obligor with respect to the Term Obligations, and (ii) any or all of the
Term Lenders' Liens shall be enforced; and the Revolver Agent, on behalf of
itself and the Revolver Lenders, hereby waives any and all rights to
require that the Term Administrative Agent pursue or exhaust any rights or
remedies with respect to the Borrower or any Xxxxxxxxx Property prior to
exercising its rights and remedies with respect to Term Collateral or in
any other manner to require the marshaling of assets or security in
connection with the exercise by the Term Administrative Agent or any Term
Lender of any Remedial Action with respect to Term Obligations and Term
Collateral.
4.4 Waiver of Liability for Actions Taken with Respect to Obligations
-----------------------------------------------------------------
and Collateral. (a) Except as provided in Section 3.9(b), neither the Revolver
-------------- --------------
Agent nor any Revolver Lender shall have any liability to the Term
Administrative Agent or any Term Lender for, and the Term Administrative Agent,
on behalf of itself and each Term Lender, hereby waives to the extent permitted
by applicable Law any claim, right, action or cause of action which it may now
or hereafter have against the Revolver Agent or any Revolver Lender (including,
without limitation, any and all claims, rights, actions or causes of action that
the Term Administrative Agent or any Term Lender may otherwise have against the
Agent or any Revolver Lender under Sections 9-207, 9-504 and 9-507 of the UCC)
arising out of, any and all actions which any Revolver Lender or the Revolver
Agent, in good faith, takes or omits to take with respect to the Revolver
Obligations, any obligor with respect to the Revolver Obligations or any
Revolver Collateral, including, without limitation, actions with respect to: the
creation, perfection or continuation of Liens with respect to any Revolver
Collateral; any Remedial Action or Disposition of any Revolver Collateral; the
release of any Revolver Collateral; the custody, valuation, protection,
preservation, use or depreciation of any Revolver Collateral; the realizing upon
or failure to realize upon any Revolver Collateral; or the collection of the
Revolver Obligations. To the extent that any of the foregoing waivers is not
permitted by applicable Law, the Term Administrative Agent agrees that the
applicable standard by which any non-waivable rights, duties or claims are to be
measured shall be that neither the Revolver Agent nor any Revolver Lender shall
have any
17
liability or responsibility to the Term Administrative Agent or to any Term
Lenders for any actions or omissions other than actions or omissions
constituting gross negligence or willful misconduct.
(b) Neither the Term Administrative Agent nor any Term Lender shall
have any liability to the Revolver Agent or the Revolver Lenders for, and the
Revolver Agent, on behalf of itself and each Revolver Lender, hereby waives any
claim, right, action or cause of action which it may now or hereafter have
against the Term Administrative Agent or any Term Lender (including, without
limitation, any and all claims, rights, actions or causes of action that the
Revolver Agent or any Revolver Lender may otherwise have against the Term
Administrative Agent or any Term Lender under Sections 9-207, 9-504 and 9-507 of
the UCC) arising out of, any and all actions which the Term Administrative Agent
or any Term Lender, in good faith, takes or omits to take with respect to the
Term Obligations, any obligor with respect to the Term Obligations or any Term
Collateral, including, without limitation, actions with respect to: the
creation, perfection or continuation of Liens with respect to any Term
Collateral; any Remedial Action or Disposition of any Term Collateral; the
release of any Term Collateral; the custody, valuation, protection,
preservation, use or depreciation of any Term Collateral; the realizing upon or
failure to realize upon any Term Collateral; or the collection of the Term
Obligations. To the extent that any of the foregoing waivers is not permitted
by applicable Law, the Revolver Agent agrees that the applicable standard by
which any non-waivable rights, duties or claims are to be measured shall be that
neither the Term Administrative Agent nor any Term Lender shall have any
liability or responsibility to the Revolver Agent or to any Revolver Lender for
any actions or omissions other than actions or omissions constituting gross
negligence or willful misconduct.
5. Term. This Agreement shall be irrevocable and shall remain in
----
full force and effect until (i) all of the letters of credit issued pursuant to
the Revolver Credit Agreement have been terminated or cash collateralized and
the loans, notes and unpaid letter of credit drawings, together with interest,
fees and all other Revolver Obligations incurred thereunder are paid in full in
cash, all obligations to extend further advances pursuant to the Revolver Credit
Agreement have been terminated and all Revolver Interest Rate Obligations have
been paid in full and the related agreements terminated, subject to Section 3.5
-----------
hereof or (ii) the loans and notes, together with interest, fees and all other
Term Obligations incurred under the Term Loan Agreement are paid in full in cash
and all obligations to extend further advances pursuant to the Term Loan
Agreement have been terminated, subject to Section 3.5 hereof; provided,
----------- --------
however, that (x) the obligations of the Revolver Agent and the Revolver Lenders
-------
under Section 3.9(b) shall survive for a period of sixty (60) days following the
--------------
termination of this Agreement and, if any claim thereunder is asserted prior to
the expiration of such sixty (60) day period, shall survive thereafter, solely
as to such claim, until such claim has been fully resolved or until the
expiration of such statute of limitations applicable thereto and (y) as set
forth in Sections 3.9(c), 3.10(a) and 3.10(c), the rights of the Revolver Agent
--------------- ------- -------
pursuant to Sections 3.9 and 3.10 and the rights of the Term Administrative
------------ ----
Agent pursuant to Section 3.10 shall continue to apply in accordance with the
------------
terms thereof notwithstanding any sale of the Revolver Collateral or the Term
Collateral, as applicable. At the time of such termination, (a) if such
termination occurs pursuant to clause (i) of the preceding sentence, the
Revolver Agent shall (x) deliver to the Term Administrative Agent any Collateral
then in its possession unless the Term Administrative Agent advises the Revolver
Agent that possession of such Collateral by the Term Administrative Agent is not
required pur-
18
suant to the Term Security Documents and (y) terminate or assign to the Term
Administrative Agent any landlords' agreements, warehouse operators' agreements
and similar agreements in favor of the Revolver Agent pertaining to the
Collateral; and (b) if such termination occurs pursuant to clause (ii) of the
preceding sentence, the Term Administrative Agent shall (x) deliver to the
Revolver Agent any Collateral then in its possession unless the Revolver Agent
advises the Term Administrative Agent that possession of such Collateral by the
Revolver Agent is not required pursuant to the Revolver Security Documents and
(y) terminate or assign to the Revolver Agent any landlords' agreements,
warehouse operators' agreements and similar agreements in favor of the Term
Administrative Agent pertaining to the Collateral; and (c) if such termination
occurs pursuant to clauses (i) and (ii) concurrently, then each of the Revolver
Agent and the Term Administrative Agent shall (x) deliver to the Borrower any
Collateral then in its possession and (y) terminate any landlords' agreements,
warehouse operators' agreements and similar agreements in its favor pertaining
to the Collateral.
6. Representations and Warranties. (a) Each of the Revolver Agent
------------------------------
and the Term Administrative Agent represents and warrants to the other that (i)
it has all requisite power and authority to execute, deliver and perform under
this Agreement, (ii) the execution, delivery and performance by it of this
Agreement have been duly authorized by all requisite corporate or other action,
(iii) pursuant to the terms of the Revolver Credit Agreement, the Revolver Agent
has been granted all requisite authority to bind the Revolver Lenders and
pursuant to the terms of the Term Loan Agreement, the Term Administrative Agent
has been granted all requisite authority to bind the Term Lenders by their
respective execution and delivery of this Agreement and (iv) pursuant to the
terms of the Revolver Credit Agreement and the Term Loan Agreement, no further
consent or approval on the part of the Revolver Lenders or the Term Lenders, as
the case may be, is or will be required in connection with the execution,
delivery and performance of this Agreement;
(b) The Revolver Agent represents and warrants that it is a duly
organized and validly existing banking corporation under the laws of the State
of New York;
(c) The Term Administrative Agent represents and warrants that it is
a duly organized and validly existing national banking association.
(d) By its acknowledgment hereof, the Borrower hereby agrees to pay
the reasonable costs and expenses incurred by the Revolver Agent and the Term
Administrative Agent in connection with the termination of this Agreement,
including, but not limited to the termination or assignment of the Revolver
Collateral by the Revolver Agent and the Term Collateral by the Term
Administrative Agent, respectively.
7. Miscellaneous.
-------------
7.1 Notices. Whenever it is provided herein that any notice, demand,
-------
request, consent, approval, declaration or other communication shall or may be
given to or served upon either of the parties by the other, or whenever either
of the parties desires to give or serve upon the other any such communication
with respect to this Agreement, each such notice, demand, request, consent,
approval, declaration or other communication shall be in writing and either
shall
19
be delivered in person with receipt acknowledged, delivered by reputable
overnight courier or telecopied and confirmed immediately in writing by a copy
mailed by registered or certified mail, return receipt requested, postage
prepaid, or mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
if to the Revolver Agent at:
BT Commercial Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
if to the Term Administrative Agent at:
Fleet National Bank
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, on the date of delivery by reputable overnight
courier service, on the date of telecopier transmission (so long as electronic
confirmation of receipt thereof is received) or three (3) Business Days after
the same shall have been deposited with the United States mail. Failure or
delay in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to the persons designated above to receive
copies shall in no way adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
7.2 Entire Agreement; Amendment. This Agreement constitutes the
---------------------------
entire agreement between the Revolver Agent and the Term Administrative Agent
with respect to the subject matter hereof and supersedes all prior negotiations,
understandings and agreements between the Revolver Agent and the Term
Administrative Agent in respect of such subject matter, whether written or oral.
This Agreement may be amended, modified or supplemented only by a written
instrument executed by the Revolver Agent and the Term Administrative Agent.
20
7.3 WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. (a) EACH OF THE
---------------------------------------------
PARTIES HERETO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT.
(b) EACH OF THE PARTIES HERETO SUBMITS FOR ITSELF AND ITS PROPERTY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT HEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE COURTS OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK LOCATED IN NEW YORK
COUNTY OF THE STATE OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF.
7.4 Severability. Wherever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
7.5 Survival. The representations and warranties of the parties in
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this Agreement shall survive the execution, delivery and acceptance hereof by
the parties hereto until the termination of this Agreement pursuant to Section 5
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hereof but subject to Section 3.5 hereof.
7.6 Counterparts. This Agreement may be executed in any number of
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counterparts, all of which, taken together, shall constitute one and the same
instrument, and either of the parties hereto may execute this Agreement by
signing any such counterpart.
7.7 GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
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RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE.
7.8 Parties. This Agreement shall be binding upon, and shall inure
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to the benefit of, the parties hereto, the Revolver Lenders from time to time
party to the Revolver Credit Agreement, the Term Lenders from time to time party
to the Term Loan Agreement and their respective successors and assigns;
provided, however, that any successor Revolver Agent or Term Administrative
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Agent shall expressly assume the obligations of such party hereunder.
7.9 No Third Party Beneficiaries. Nothing contained in this
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Agreement shall he deemed to indicate that this Agreement has been entered into
for the benefit of the Borrower or any other Person except for the parties
hereto, the Revolver Lenders, the Term Lenders and their respective successors
and assigns.
7.10 Legend. Each of the Revolver Credit Documents and the Term Loan
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Documents shall be made specifically subject to the terms and conditions of this
Agreement.
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7.11 Section Titles. The Section titles contained in this Agreement
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are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
* * *
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SCHEDULE A
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REVOLVER COLLATERAL
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All of the following Xxxxxxxxx Property (in the case of items (c), (e)
and (f) below, to the extent necessary to realize on the Revolver Collateral
(including, but not limited to, the sale or marketing of the Revolver
Collateral)), whether now existing or hereafter acquired by the Borrower,
arising or created and wheresoever located unless specifically excluded pursuant
to the relevant Revolver Security Documents:
(a) each and every Receivable;
(b) all Inventory;
(c) all of the Borrower's Collection Accounts and Sub-Collection
Accounts, all moneys, securities and instruments deposited or required to
be deposited in such Collection Accounts and Sub-Collection Accounts;
(d) the Concentration Account and all moneys, securities and
instruments deposited or required to be deposited in such Concentration
Account;
(e) each Collection Agreement to which the Borrower is a party and
each other agreement entered into by the Borrower with any Collection Bank
and all rights of the Borrower under each such agreement;
(f) the Concentration Account Agreement and each other agreement
entered into by such Borrower with the Concentration Account Bank and all
rights of the Borrower under each such agreement;
(g) the BT Account and all moneys, securities, and instruments
deposited or required to be deposited in the BT Account;
(h) all books, records, writings, data bases, information and other
property relating to, used or useful in connection with, evidencing,
embodying, incorporating or referring to, any of the foregoing and not to
any of the Term Collateral; and
(i) all Proceeds and products of any and all of the foregoing,
provided, that, without limitation on any of the foregoing, the term
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"Revolver Collateral" shall not include the Term Collateral.
SCHEDULE B
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TERM COLLATERAL
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All of the following Xxxxxxxxx Property, whether now existing or hereafter
acquired by the Borrower or any of its present or future Subsidiaries that is a
party to any Term Security Document, arising or created and wheresoever located
unless specifically excluded pursuant to the relevant Term Security Documents,
including, without limitation:
(a) all Equipment;
(b) all general intangibles relating to the Equipment;
(c) each Collateral Account of the Term Loan Agreement and all funds
held therein and all certificates and instruments, if any, from time to
time representing or evidencing any Collateral Account of the Term Loan
Agreement;
(d) all investments, if any, from time to time in any Collateral
Account of the Term Loan Agreement; all certificates and instruments, if
any, from time to time representing or evidencing such investments; all
securities, instruments, security entitlements, financial assets and
investment property; and all interest, earnings and proceeds in respect
thereof;
(e) all Xxxxxxxxx Real Property in which a Lien is purported to have
been granted in favor of the Term Administrative Agent pursuant to a Term
Security Document;
(f) all books, records, writings, data bases, information and other
property relating to, used or useful in connection with, evidencing,
embodying, incorporating or referring to, any of the foregoing and not to
any of the Revolver Collateral; and
(g) all rents, profits, returns, income and proceeds of and from any
and all of the foregoing Term Collateral (including proceeds which
constitute property of the types described in clauses (a), (b), (c), (d),
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(e) and (f), proceeds deposited from time to time in any Collateral Account
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of the Term Loan Agreement of the Borrower or any of such Subsidiary, and,
to the extent not otherwise included, all payments under insurance (whether
or not the Term Administrative Agent is the loss payee thereof), or any
indemnity, warranty or guaranty, payable by reason of loss or damage to or
otherwise, in each case with respect to any of the foregoing Term
Collateral); provided, that, without limitation on any of the foregoing,
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the term "Term Collateral" shall not include the Revolver Collateral.
IN WITNESS WHEREOF, this Agreement has been signed and sealed by the
undersigned duly authorized signatories of the parties hereto as of the date and
year first above written.
BT COMMERCIAL CORPORATION,
as Revolver Agent
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
FLEET NATIONAL BANK,
as Term Administrative Agent
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
Xxxxx X. Xxxxxxxxx Company, a Delaware corporation, (a) acknowledges
receipt of a copy of this Agreement and agrees to the provisions hereof; (b)
agrees to cooperate with the parties hereto by granting all Liens, and by taking
all such other actions, as are contemplated by this Agreement; (c) acknowledges
that, as provided by Section 7.9 hereof, it is not a third party beneficiary
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hereof, and has no rights hereunder; (d) acknowledges and consents to the
priority of the liens purported to be established by this Agreement, as in
effect on the effective date of the Term Loan Agreement; (e) agrees not to
object to the enforcement by the Revolver Agent against the Term Administrative
Agent or the Term Administrative Agent against the Revolver Agent of any of the
respective rights granted to them pursuant to Section 3.9(a) hereof, as in
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effect on the effective date of the Term Loan Agreement; (f) agrees to the
provisions in Sections 3.10(a) and 3.10(b), as in effect on the effective date
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of the Term Loan Agreement, pursuant to which the Borrower agrees to certain
sales of Collateral and the commercial reasonableness thereof; and (g) agrees
not to assert any provision hereof as a defense to any Remedial Action (except
to the extent that the provisions of this Agreement are expressly referred to in
or incorporated in the Revolver Credit Documents or the Term Loan Documents as a
limitation on its obligations thereunder or on the Revolver Agent's, Revolver
Lenders', the Term Administrative Agent's or the Term Lenders' rights
thereunder) nor to assert any such provision as a counterclaim or basis for set-
off or recoupment against any party hereto. Such acknowledgments and agreements
by Xxxxx X. Xxxxxxxxx Company do not, however, constitute any amendment,
modification, or waiver by them or either of them of any provision of the
Revolver Credit Documents or the Term Loan Documents or any right available to
them or either of them thereunder.
XXXXX X. XXXXXXXXX COMPANY
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial
Officer
