EXHIBIT T3C.2
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (the "Agreement") is made and entered into
effective as of __________, 2004, by and among BANK ONE, N.A., a national
banking association ("Bank One"); XXXXX FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, solely in its capacity as Trustee (the "Trustee")
for the holders of certain New Notes (as hereinafter defined) issued pursuant to
a New Indenture (as hereinafter defined); Continental Conveyor and Equipment
Company, a Delaware corporation, and Xxxxxxx Conveyor Company, a Delaware
corporation (individually a "Borrower" or collectively the "Borrowers").
BACKGROUND
A. Bank One has heretofore made a secured loan (the "Original Bank One
Secured Loan") to Borrowers.
B. Borrowers are wholly owned subsidiaries of Continental Global Group,
Inc., a Delaware corporation (the "Company").
C. Company has heretofore issued certain Old Notes (as hereinafter
defined) to certain investors pursuant to a certain Old Indenture (as
hereinafter defined).
D. Borrowers guaranteed the obligations of Company under the Old Notes.
E. Company is in default of its obligations under the Old Notes, and
pursuant to a Restructuring Agreement (as hereinafter defined), Company has
agreed to exchange the Old Notes for the New Notes, subject to fulfillment of
the various terms and conditions of the Restructuring Agreement.
F. Borrowers are in violation of certain covenants of the Original Bank
One Secured Loan, and Borrowers have requested that Bank One waive such
violations and extend and modify certain terms of the Original Bank One Secured
Loan (such Original Bank One Secured Loan, as extended and modified, is
hereinafter referred to as the "Bank One Restated Secured Loan").
G. As a condition of the consummation of the Restructuring Agreement,
Company and the Trustee, on behalf of the holders of the New Notes, have
requested that Borrowers guarantee Company's obligations under the New Notes and
secure such guarantee by granting a subordinated second position security
interest in certain of their respective assets.
H. Under the terms of both the Original Bank One Secured Loan and the
Bank One Restated Secured Loan, Borrowers cannot grant any additional security
interests in their respective assets without the consent of Bank One.
I. Bank One is willing to grant such consent on the condition that the
Trustee, on behalf of the holders of the New Notes, agree to fully subordinate
any rights and claims they, or either of them, may have against Borrowers and
Borrower's assets pursuant to such guaranty, the New Note Security Agreement,
the New Note Mortgages or any other document granting a security interest or
lien therein or thereto, in accordance with the terms and provisions of this
Agreement.
NOW, THEREFORE, in consideration of the promises and mutual agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions. Capitalized terms used in this Agreement but not
defined elsewhere herein shall be defined as set forth below.
"Bank One" means Bank One, N.A., a national banking association, and
its successors and assigns.
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"Bank One Restated Secured Loan Agreement" means an Agreement or
Agreements entered into between Bank One and Borrowers with respect to the Bank
One Restated Secured Loan, and all modifications, amendments, restatements and
substitutions thereof and thereto from time to time.
"Bank One Senior Obligations" mean any and all obligations of every
kind or description whatsoever which may at any time be owing to Bank One by
Borrowers under the terms of the Bank One Restated Secured Loan and Mortgages.
"Borrowers" means Continental Conveyor and Equipment Company and
Xxxxxxx Conveyor Company, and "Borrower" means either one of such Companies.
"Closing Date" has the meaning set forth in Section 11 of the
Restructuring Agreement.
"Collateral" means the assets of Borrowers securing the New Notes
pursuant to the New Note Security Agreement and the New Note Mortgages,
including the assets of Borrowers which are subject to the security interests
which Borrowers have granted to Bank One pursuant to the Bank One Restated
Secured Loan Agreement, and the liens granted to Bank One pursuant to the
Mortgages.
"Exchange" means the exchange of the Old Notes for the New Notes.
"Exchange Offer" means the offer to be made by the Company to exchange
the Old Notes for cash and the New Notes.
"Mortgages" shall mean those certain mortgages, deeds of trust, and all
modifications, amendments, restatements and substitutions thereof and thereto,
heretofore, herewith or hereafter granting liens to Bank One to secure the
indebtedness evidenced by the Original Bank One Secured Loan and the Bank One
Restated Secured Loan Agreement.
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"New A Notes" means the Company's 9% Series A Senior Secured Notes, to
be issued pursuant to the New Indenture, in the original aggregate principal
amount of up to Sixty-Five Million Dollars ($65,000,000).
"New B Notes" means the Company's 13% Series B Senior Secured Notes, to
be issued pursuant to the New Indenture, in the original aggregate principal
amount of up to Ten Million Dollars ($10,000,000).
"New Indenture" means the Indenture to be entered into among the
Company, each Subsidiary Guarantor (as defined in the New Indenture) and the
Trustee, relating to the New Notes.
"New Note Holders" mean the holders of the New Notes.
"New Notes" means the New A Notes and New B Notes.
"New Note Mortgages" means those certain mortgages, deeds of trust, and
all modifications, amendments, restatements and substitutions thereof and
thereto, heretofore, herewith or hereafter granting liens in real property to
the Trustee to secure the indebtedness evidenced by the New Notes and the New
Indenture.
"New Note Security Agreement" means that certain Security Agreement
between Borrowers, Company and the Trustee whereby Borrowers shall grant a
security interest in the Collateral to secure the obligations guaranteed by the
Borrowers under the New Indenture, which security interest is subordinated to
that of Bank One in accordance with the terms hereof.
"Old Indenture" means the Indenture, dated as of April 1, 1997, among
the Company, each Subsidiary Guarantor (as defined therein) and the Xxxxx Fargo
Bank, National Association (as successor by consolidation to Xxxxx Fargo Bank
Minnesota, National Association, formerly known as Norwest Bank Minnesota,
National Association), as trustee, relating to the Old Notes.
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"Old Notes" means the Company's 11% Series A Senior Notes due 2007 and
the Company's 11% Series B Senior Notes due 2007 issued pursuant to the Old
Indenture, in the aggregate principal amount of One Hundred Twenty Million
Dollars ($120,000,000).
"Original Bank One Secured Loan" shall mean that certain Amended and
Restated Credit Facility and Security Agreement dated July 25, 2002, as amended,
modified and extended.
"Person" means any individual or any partnership, corporation, joint
venture, limited liability company or other unincorporated organization or
entity or any association, trust, or governmental unit.
"Pledged Collateral" means any Collateral in the possession or control
of Bank One (or its agents or bailees), to the extent that possession or control
thereof is necessary to perfect a lien thereon under the Uniform Commercial
Code.
"Restructuring Agreement" means that certain Restructuring Agreement
dated as of July 22, 2004 by and between Continental Global Group, Inc., a
Delaware Corporation, N.E.S. Investment Co. and Wayzata Investment Partners LLC
(as amended).
"Trustee" means Xxxxx Fargo Bank, National Association, solely in its
capacity as trustee for the New Note Holders, or, if a successor trustee is
appointed pursuant to the New Indenture, such successor from and after its
appointment.
2. Rights in Collateral.
2.01 Consent to Security Interest. Upon the terms and
conditions set forth herein, Bank One hereby consents to the grant by Borrowers
of a security interest in the Collateral in favor of the Trustee for the benefit
of the holders of the New Notes, to secure Borrowers' obligations under the New
Notes and the Indenture.
2.02. Perfection and Priority of Security Interests. (a) Any
and all security interests, assignments, pledges and other liens, charges or
encumbrances now existing or
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hereafter created or arising in favor of the Trustee in the Collateral with
respect to the New Note Security Agreement and the New Note Mortgages, are
expressly junior in priority, operation and effect to any and all security
interests, assignments, pledges and other secured claims, liens, charges or
encumbrances now existing or hereafter created or arising in favor of Bank One
with respect to the security interests and liens in and to the Collateral
granted under the Bank One Restated Secured Loan Agreement and Mortgages,
notwithstanding anything to the contrary contained in any agreement or filing to
which the Trustee may now or hereafter be a party, and irrespective of the time,
order or method of attachment or perfection of any financing statements or other
security interests, assignments, pledges and other liens, charges or
encumbrances or any defect or deficiency or alleged defect or deficiency in any
of the foregoing.
(b) The Trustee, on behalf of itself and the holders of the
New Notes, hereby acknowledges that the Bank One Senior Obligations represent,
in part, indebtedness that is revolving in nature and that the amount thereof
that may be outstanding at any time or from time to time may be increased or
reduced (even to $0) and subsequently reborrowed, and that the terms of the Bank
One Senior Obligations may be modified, extended, amended, restated,
compromised, supplemented, terminated, waived or released from time to time, and
the aggregate amount of the Bank One Senior Obligations may be increased,
renewed, replaced or refinanced, all without notice to or consent by the Trustee
and without affecting the provisions hereof. The lien priorities provided in
this Section 2.02 shall not be altered or otherwise affected by any amendment,
modification, supplement, extension, increase, replacement, renewal, restatement
or refinancing of either the Bank One Senior Obligations, the New Indenture, the
New Note Security Agreement, the New Note Mortgages, or any portion thereof, nor
by any action that Bank One or the Trustee may take or fail to take in respect
of the Collateral.
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(c) For purposes of perfecting the Trustee's security interest
in the Collateral and the proceeds thereof, the parties hereby acknowledge that
the Borrowers will, at their sole cost and expense, perform any and all acts and
execute and file such UCC-1 financing statements and mortgage deeds or deeds of
trust covering the Collateral as shall be necessary or advisable to in order to
grant and make effective the security interest and/or liens of the Trustee in
and to the Collateral. The parties agree that all UCC-1 financing statements,
mortgage deeds or deeds of trust or similar such documents, filed to make
effective and maintain the Trustee's security interests and/or liens in the
Collateral shall be in form satisfactory to Bank One and shall contain the
notation substantially a follows: "The interest of the [Secured Party]
[Mortgagee] in the [collateral] [real property] described herein is junior and
subordinate to the interests of Bank One and its successors and assigns, under
that certain [Amended and Restated Bank One Loan and Security Agreement]
[Mortgage Deed] (as amended, supplemented or otherwise modified from time to
time) with Borrowers, pursuant to that certain Intercreditor Agreement among
Bank One, N.A., Xxxxx Fargo Bank, National Association, as Trustee, Continental
Conveyor and Equipment Company and Xxxxxxx Conveyor Company (as amended,
supplemented or otherwise modified from time to time)."
(d) The arrangements described in paragraphs (a), (b) and (c)
above shall in no way be construed as imposing any duties or other obligations
on Bank One other than to transfer to the Trustee (or as a court of competent
jurisdiction may otherwise direct) the proceeds, if any, that remain following a
sale, transfer or other disposition of all or any portion of the Collateral by
Bank One and the payment and satisfaction in full of any and all Bank One Senior
Obligations or, if Bank One shall still be in possession of all or any part of
the Collateral after such payment and satisfaction in full, the Collateral or
such part thereof remaining, without representation or warranty on the part of
Bank One. At all times until the Bank One Senior Obligations shall have
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been paid and satisfied in full and in cash, Bank One shall be entitled to sell,
transfer or otherwise dispose of or deal with the Collateral as provided in the
Bank One Restated Loan Agreement and/or Mortgages without regard to the security
interest and/or lien of the Trustee therein, or any rights to which the Trustee
would otherwise be entitled as a result of such security interest and/or lien,
the only obligation of Bank One to the Trustee in respect thereof being to
promptly deliver to the Trustee (unless otherwise directed in writing by the
Trustee or by a court of competent jurisdiction) any proceeds remaining from
such sale, transfer or other disposition of any part or all of the Collateral
after such payment and satisfaction in full and in cash of the Bank One Senior
Obligations or, if Bank One shall still be in possession of all or any part of
the Collateral after such payment and satisfaction in full, the Collateral or
such part thereof remaining, without representation or warranty on the part of
Bank One, provided that nothing contained in this sentence shall be construed to
give rise to, nor shall the Trustee have, any claims whatsoever against Bank One
on account of any act or omission to act in connection with the exercise of any
right or remedy of Bank One with respect to the Collateral (other than with
respect to any claims that may arise as a result of the failure of Bank One,
after the payment and satisfaction in full of the Bank One Senior Obligations,
to deliver any remaining Collateral or proceeds thereof to the Trustee). Without
the prior written consent of Bank One, the Trustee shall not, and shall not
attempt to, exercise any rights of enforcement with respect to (A) the Bank One
security interest and/or lien in the Collateral or (B) the Trustee's security
interest and/or lien in the Collateral, whether pursuant to the New Note
Security Agreement, the New Note Mortgages or otherwise, until the payment and
satisfaction in full of the Bank One Senior Obligations; provided, that, subject
to all rights of Bank One under this Agreement, including without limitation
Bank One's prior right to all proceeds derived from the sale or other
disposition of any part or all of the Collateral, in the event Bank One has
instituted and is then
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maintaining any proceedings or action to foreclose and enforce Bank One's liens
and security interests with respect to any part or all of the Collateral, then
the Trustee may file protective pleadings in such proceedings and actions to
assert its junior lien and security interests in the Collateral so long as the
Trustee does not interfere with or impede such action or proceeding of Bank One.
(e) In the event a proceeding under Title 11 of the U.S. Code
(the "Bankruptcy Code") or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law shall be commenced by or against any
Borrower, the Trustee shall not file any objection based upon the failure to
provide adequate protection for its junior lien and/or security interest to any
motion filed in such proceeding seeking: (i) authorization for such Borrower
under Section 363 of the Bankruptcy Code (or the analogous provision of such
other law) to use cash collateral (as defined therein) to the extent that Bank
One has given its consent, (ii) authorization for such Borrower under Section
364 of the Bankruptcy Code (or the analogous provision of such other law) to
incur secured indebtedness and priority administration indebtedness to Bank One
or an affiliate of Bank One for loans (a "Bank One DIP Loan") that may be made
by Bank One or an affiliate of Bank One to such Borrower after the commencement
and/or termination of such proceedings, and to secure the repayment and
performance of such post-petition indebtedness (and interest thereon and costs
and expenses in connection therewith) by granting to Bank One or such affiliate
of Bank One a first-priority security interest in and a first-priority lien on
any part or all the Collateral, (iii) authorization for such Borrower under
Section 364 of the Bankruptcy Code (or the analogous provision of such other
law), to grant to Bank One or such affiliate of Bank One a first priority
security interest in and a first-priority lien on any part or all the Collateral
and (iv) authorization for such Borrower under the Bankruptcy Code to grant Bank
One adequate protection, whether in the form of cash payments, accrued interest
or otherwise, in
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connection with the use of cash collateral or in connection with the
transactions contemplated by clauses (i) through (iii) hereof; provided, however
that nothing contained in this Section 2.02(e) or Section 2.03 shall prohibit
the Trustee from (and, with respect to clauses (x) and (z) following, Bank One
agrees not to object to the Trustee): (w) offering, obtaining from other sources
and/or participating in post-petition financing to the Borrower, (x) seeking
adequate protection solely in the form of a priority claim under the Bankruptcy
Code subordinate to any similar claim now or hereafter held by Bank One or an
affiliate of Bank One, provided such priority claim is subject to the terms of
this Agreement, (y) objecting to the reasonableness of the terms of any proposed
Bank One DIP Loan, or (z) requesting a replacement lien subordinate to any lien
now or hereafter held by Bank One or an affiliate of Bank One, provided such
replacement lien is subject to the provisions of this Agreement.
2.03. No Interference; Right to Instruct; Payment Over;
Reinstatement; Permitted Actions; Voting; Absolute Stand Still. (a) The Trustee
shall (i) not take or cause to be taken any action, the purpose or effect of
which is, or could be, to make or cause any security interest and/or lien of the
Trustee to be or become pari passu with, or to give the Trustee any preference
or priority relative to, the Bank One security interest and/or lien or Bank One
Senior Obligations with respect to the Collateral or any part thereof, (ii) not
interfere, hinder or delay, in any manner, whether by judicial proceedings or
otherwise, any sale, transfer or other disposition of any part or all of the
Collateral by Bank One, (iii) have no right to (A) direct Bank One to exercise
any right, remedy or power with respect to the Collateral or (B) consent to the
exercise by Bank One of any right, remedy or power with respect to the
Collateral, (iv) not institute any suit or assert in any suit, bankruptcy,
insolvency or other proceeding any claim against Bank One seeking damages from
or other relief by way of specific performance, instructions or otherwise, with
respect to, and Bank One shall not be liable for, any action taken or omitted to
be taken by
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Bank One with respect to the Collateral, (v) not, unless consented
to by Bank One, commence, prosecute or maintain judicial or nonjudicial
foreclosure or execution proceedings (except to the extent permitted by the
proviso to the last sentence of Section 2.02(d)) with respect to, seek to have a
trustee, receiver, liquidator or similar official appointed for or over, attempt
any action to take possession of, seek adequate protection (except as permitted
under Section 2.02(e) or in connection with any request by the Borrowers to
incur secured indebtedness or priority administrative indebtedness to any party
other than Bank One), seek relief of stay with respect to, exercise any right,
remedy or power with respect to, or otherwise take any action to enforce its
interest in or realize upon, the Collateral (other than filing a proof of claim)
until all the Bank One Senior Obligations shall have been paid and satisfied in
full and Bank One has no further commitments to advance funds to or for the
benefit of Borrowers, (vi) not seek to, and Trustee (on behalf of the holders of
the New Notes) hereby waives any right to, have the Collateral or any part
thereof marshaled upon any foreclosure or other disposition of the Collateral,
(vii) not attempt, directly or indirectly, whether by judicial proceedings or
otherwise, to challenge the enforceability of any provision of this Agreement,
(viii) not, if a proceeding under the Bankruptcy Code or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law shall be
commenced by or against any Borrower prior to the time when the Bank One Senior
Obligations have been paid in full, object to the allowance of Bank One's claims
consistent with the terms of the Bank One Restated Secured Loan Agreement, (ix)
immediately give Bank One written notice in the event or upon the occurrence of
any default by Company and/or Borrowers under the terms of the New Notes or the
New Indenture, which notice shall describe the default and recite the
corresponding default section or sections under the New Notes and/or New
Indenture (a "New Note Default Notice"), and (x) not, in the event of a default
by Company of any of its obligations under the New Notes or the New Indenture,
and if pursuant to
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such New Notes and New Indenture, the Trustee is entitled to, and elects to,
accelerate the indebtedness evidenced by the New Notes, proceed against
Borrowers or any one of them under the New Note Security Agreement or otherwise
or to attempt to collect from Borrowers any portion of such indebtedness and,
without limiting the generality of the foregoing, not institute any legal
proceeding or take any other action in any court against Borrowers, or any one
of them, until the first to occur of:
(w) the date that all the Bank One Senior Obligations have
been paid and satisfied in full and Bank One has no further
commitments to advance funds to or for the benefit of
Borrowers, or
(x) one-hundred twenty (120) days after the
earlier of:
(1) a default under the New Indenture resulting from
a default under the Bank One Restated Secured Loan
Agreement; or
(2) the date any New Note Default Notice is delivered
by the Trustee to Bank One where the default under
the New Notes or New Indenture is caused by any
default other than either a cross-default to the Bank
One Restated Secured Loan Agreement or non-payment of
interest on, or liquidated damages, if any, with
respect to the New Notes; provided, that such 120 day
period shall toll during the period of any waiver of
any default contemplated in this subsection (x); and,
provided, further, that upon cure of any default
contemplated in this subsection (x), such 120 day
period shall be reset and begin anew upon the
occurrence of any subsequent default; or
(y) ninety (90) days after the date any New Note Default
Notice is delivered to Bank One where the default under the
New Notes or New Indenture is caused by
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a default for non-payment of interest on, or liquidated
damages, if any, with respect to the New Notes; provided, that
such 90 day period shall toll during the period of any waiver
of any default contemplated in this subsection (y); and,
provided, further, that upon cure of any default contemplated
in this subsection (y), such 90 day period shall be reset and
begin anew upon the occurrence of any subsequent default and
the delivery of a New Note Default Notice with respect
thereto; or
(z) one or more i) parties to a contract (including a
financing contract) with the Company or either of the
Borrowers gives notice of default pertaining to money due and
(to the extent they have the right to under such contract)
accelerates their respective claim, and/or files a complaint
in a court of competent jurisdiction, and/or ii) suppliers of
goods or services to the Company or either of the Borrowers
files a complaint in a court of competent jurisdiction,
against the Company, the Borrowers and/or any one or all of
their assets, seeking recovery on a debt or obligation in the
case of the foregoing clauses i) and/or ii) in an amount of
not less than $500,000 (in any single action or collectively
in the aggregate).
(b) In the event of a sale, transfer or other disposition of
the Collateral in accordance with the provisions of the Bank One Restated
Secured Loan Agreement, the Mortgages, or pursuant to any judicial or
nonjudicial foreclosure proceedings with respect to the Collateral undertaken by
or on behalf of Bank One, any security interest or lien of the Trustee in such
Collateral shall terminate and be released automatically and without further
action to the extent that the lien of Bank One in such Collateral is released.
The Trustee shall promptly execute and deliver to Bank One all necessary
instruments and documents to evidence such termination and release and/or
provide written authorization to Bank One to execute and/or file
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such termination and release. Notwithstanding the foregoing, the Trustee shall
not be deemed to release or terminate the security interest or lien of the
Trustee on any proceeds of the sale, transfer or disposition of Collateral to
the extent that any such proceeds are in excess of the amount paid or payable to
Bank One to satisfy in full all the Bank One Senior Obligations.
(c) If the Trustee shall obtain possession of any of the
Collateral, shall realize any payment in respect of the Collateral or shall
realize any payment or receive any distribution not permitted under this
Agreement, in each case prior to the time when the Bank One Senior Obligations
have been paid in full, then the Trustee shall hold such Collateral, payment or
distribution in trust for Bank One, and promptly following Trustee's receipt of
written request from Bank One, transfer such Collateral, payment or distribution
to Bank One (accompanied by any necessary endorsement). If, at any time, all or
part of any payment with respect to the Bank One Senior Obligations previously
made is rescinded for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of Borrower or any other Person), the
Trustee shall, following Trustee's receipt of written request from Bank One,
promptly turn any Collateral then held by it over to Bank One, and the
provisions set forth in this Agreement (including without limitation, the
subordination provisions set forth herein) shall continue to be effective or be
reinstated, as the case may be, as if such payment had not been made, until the
payment and satisfaction in full of the Bank One Senior Obligations.
3. Bailee for Perfection.
(a) Bank One agrees to hold the Pledged Collateral that is part of the
Collateral in its possession or control (or in the possession or control of its
agents or bailees) as bailee for the Trustee and any assignee solely for the
purpose of perfecting the security interest granted in such Pledged Collateral
pursuant to the New Note Security Agreement, subject to the terms and conditions
of Sections 2 and 3.
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(b) Until the discharge in full of the Bank One Senior Obligations has
occurred, Bank One shall be entitled to deal with the Pledged Collateral in
accordance with the terms of the Bank One Restated Secured Loan Agreement and
Mortgages as if the security interests and/or liens of the Trustee did not
exist. The rights of the Trustee shall at all times be subject to the terms of
this Agreement and to Bank One's rights under the Bank One Restated Secured Loan
Agreement and Mortgages.
(c) Bank One shall have no obligation whatsoever to the Trustee or any
New Note Holder to assure that the Pledged Collateral is genuine or owned by any
of the Borrowers or to preserve rights or benefits of any Person except as
expressly set forth in Sections 2 and 3. The duties or responsibilities of Bank
One under this Section 3 shall be limited solely to holding the Pledged
Collateral as bailee for the Trustee for purposes of perfecting the lien held by
the Trustee.
(d) Bank One shall not have by reason of this Agreement or any other
document a fiduciary relationship in respect of the Trustee or any New Note
Holder.
(e) Upon the payment in full of the Bank One Senior Obligations and the
termination of any other obligation of Bank One to advance funds to any
Borrower, Bank One shall deliver to the Trustee the remaining Pledged Collateral
(if any) together with any necessary endorsements (or otherwise allow the
Trustee to obtain control of such Pledged Collateral) or as a court of competent
jurisdiction may otherwise direct.
4. Miscellaneous.
4.01. Authority. The Trustee warrants and represents to Bank One
that the Trustee has the full power and authority to enter into, execute and
deliver the New Indenture.
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4.02. Notices. All notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
a) Bank One, N.A.
00 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
XX XX0-0000
Xxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Vice President
with a copy to:
Xxxxx & Berne LLP
0000 X. Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn: Xxxx X. Xxxxxxxxx
b) Xxxxx Fargo Bank, National Association
Corporate Trust Services
MAC N9303-120
0xx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Corporate Trust
c) Continental Conveyor & Equipment Company
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
and
Xxxxxxx Conveyor Company
U.S. Xxxxx 000
Xxxxxx, Xxxxx Xxxxxxxx 00000
with a copy to:
Xxxxxx Xxxxxxx & Xxxxxxx LLP
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn: Xxxxx Xxxxxx, Esq.
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Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
4.03. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO.
4.04. Further Assurances. Bank One, the Trustee, and Borrowers
agree to execute such further documentation and take such further action as
shall be reasonably necessary to fully effectuate the provisions of this
Agreement (and in the case of Bank One and the Trustee, at the expense of
Borrowers).
4.05. Modification of Agreement. (a) No modification or
amendment of any provision of this Agreement shall in any event be effective
unless the same shall be in writing and signed by Bank One and the Trustee.
(b) No waiver of any provision of this Agreement and no
consent to any departure by any party hereto from the provisions hereof shall be
effective unless such waiver or consent shall be set forth in a written
instrument executed by the party against which it is sought to be enforced, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice to or demand on any party hereto in
any case shall entitle such party to any other or further notice or demand in
the same, similar or other circumstances.
4.06. Successors and Assigns. (a) This Agreement shall be
binding on and inure to the benefit of the parties hereto, and their respective
successors and permitted assigns (including any assignee) of Bank One in
accordance with the terms of the Bank One Restated
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Secured Loan Agreement and the Trustee and the New Note Holders in accordance
with the terms of the New Indenture. The rights and obligations of Bank One and
the Trustee under this Agreement shall be assigned automatically (without the
need for execution of any document or any other action) to, and the term "Bank
One" or "Trustee" as used in this Agreement shall include, any assignee,
transferee or successor of such Bank One under the Bank One Restated Secured
Loan Agreement, or the Trustee under the New Indenture, as the case may be, in
accordance with the terms and upon the effectiveness of an assignment pursuant
to the Bank One Restated Secured Loan Agreement and the New Indenture, as the
case may be, and any such assignee, transferee or successor shall automatically
become a party to this Agreement. If required by any party to this Agreement,
such assignee, transferee or successor shall execute and deliver to the other
parties to this Agreement a written confirmation of its assumption of the
obligations of the assignor or transferor hereunder. Each of Bank One and the
Trustee agrees that it shall deliver a complete copy of this Agreement to any
potential assignee, transferee or successor of such Bank One or the Trustee
prior to the execution of any such assignment or transfer. Bank One may, without
the consent of the other parties hereto, sell one or more participations in the
Bank One Restated Secured Loan pursuant to the terms and conditions of the Bank
One Restated Secured Loan Agreement.
(b) Notwithstanding anything in this Agreement to the
contrary, expressed or implied, the agreements of Bank One and the Trustee
contained herein shall not be construed to confer upon any Person (including
Borrowers), other than Bank One and the other holders of Bank One Senior
Obligations, the Trustee, and, to the extent permitted by the terms and
provisions of the New Indenture, the New Note Holders, any legal or equitable
right, remedy or claim under or by reason of this Agreement.
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4.07. Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
4.08. Counterparts. This Agreement may be executed in more
than one counterpart, each of which shall constitute an original but all of
which, when taken together, shall constitute but one instrument. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
4.09. Headings. The section headings of this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
or construction of any provisions hereof.
4.10. Termination. This Agreement shall terminate
automatically upon the indefeasible payment in full in cash of the outstanding
Bank One Senior Obligations, but only if Bank One has no further commitments to
advance additional funds to Borrower; provided, however that Section 2.03(c),
Section 3, Section 4.02, Section 4.03, Section 4.04 and this Section 4.10 shall
survive, and remain operative and in full force and effect, regardless of the
termination of this Agreement.
4.11. Complete Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior representations, negotiations, writings,
memoranda and agreements.
4.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS
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AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective duly authorized
officers, all as of the day and year first above written.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, in its capacity as Trustee under
the New Indenture (the "Trustee")
By:
-----------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
BANK ONE, N.A. ("Bank One")
By:
-----------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
CONTINENTAL CONVEYOR &
EQUIPMENT COMPANY ("Borrower")
By:
-----------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
20
XXXXXXX CONVEYOR COMPANY
("Borrower")
By:
-----------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
21
