EXHIBIT 10.6
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EXECUTION COPY
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INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (as amended, restated and/or
otherwise modified from time to time in accordance with the terms hereof, this
"AGREEMENT") is entered into as of September 21, 2001 by and among WACHOVIA
BANK, N.A., as Securitization Agent for certain secured parties to the Blue
Ridge Facility (as defined below) (in such capacity, the "SECURITIZATION AGENT")
and as Agent for the banks party to the Bank Facility (defined below)
(individually and in such capacity, the "BANK AGENT"), TBSPV, INC. (the "SPC")
and XXXXXX & XXXXX CORPORATION, ("T&B").
PRELIMINARY STATEMENTS
A. T&B, the Bank Agent, and Wachovia Securities, Inc. have
entered into that certain letter agreement dated as of August 22, 2001 (the
"LETTER AGREEMENT") with the intention of exercising commercially reasonable
efforts to bring together a syndicate of banks willing to issue commitments to
fund the credit facility as described in the Letter Agreement (as the same may
become the subject of definitive documentation and as it may be further amended,
supplemented, or otherwise modified from time to time, the "BANK FACILITY"). In
connection with a prior credit facility and, following the termination of such
prior facility, to secure all of T&B's obligations to the Bank Agent (including
without limitation obligations with respect to letters of credit issued by the
Bank Agent), T&B and the Bank Agent entered into that certain Borrower Security
Agreement, dated as of July 1, 2001 (as the same may be amended, supplemented,
restated, replaced or otherwise modified from time to time, the "SECURITY
AGREEMENT") pursuant to which T&B has granted to the Bank Agent a security
interest in, among other things, all of T&B's right, title and interest in and
to all accounts receivable, bank accounts into which collections and proceeds
thereof are deposited and all proceeds thereof, equipment and inventory (the
"BANK COLLATERAL").
B. Pursuant to that certain Receivables Transfer Agreement,
dated as of September 21, 2001, by and between T&B and the sellers named therein
(as the same may be amended, restated or otherwise modified from time to time,
the "RECEIVABLES TRANSFER AGREEMENT"), T&B has purchased, and agreed to purchase
from time to time, Receivables arising from the sale of goods or rendition of
services by certain of its subsidiary parties thereto (the "SUBSIDIARY
RECEIVABLES") including initially OCAL, Inc.
C. Pursuant to that certain Receivables Contribution
Agreement, dated as of September 21, 2001, by and between T&B and the SPC (as
the same may be amended, restated or otherwise modified from time to time, the
"RECEIVABLES CONTRIBUTION AGREEMENT"), T&B has contributed, and agreed to
contribute, to the SPC all of its right, title and interest in and to all of its
accounts receivable and all collections and related security with respect
thereto, each lockbox and collection account into which proceeds of receivables
are deposited, and all other rights and payments relating to such accounts
receivable and all proceeds thereof each of which would otherwise constitute
Bank Collateral (the "CONTRIBUTED ASSETS"). T&B has agreed to repurchase certain
of the Contributed Assets from time to time pursuant to the
Receivables Contribution Agreement (together with the Related Security therefor,
the "RECONVEYED ASSETS").
D. Pursuant to that certain Receivables Purchase Agreement,
dated as of September 21, 2001, by and among the SPC, as seller, T&B, as master
servicer, Blue Ridge Asset Funding Corporation, as purchaser ("BLUE RIDGE") and
the Securitization Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "BLUE RIDGE FACILITY"), the SPC has sold an
undivided percentage ownership in the Contributed Assets and has granted a first
priority perfected security interest therein to the Securitization Agent (the
"SECURITIZATION COLLATERAL"). Under the Blue Ridge Facility, the SPC, under
certain circumstances, is required to repurchase Receivables for which it is
deemed to have received a "Collection" as defined therein (together with the
Related Security therefor, the "REPURCHASED ASSETS") and the Repurchased Assets
are in turn reconveyed to T&B and become Reconveyed Assets.
E. The parties are entering into this Agreement to set forth
certain of their understandings with respect to the Securitization Collateral
and the Bank Collateral. "BANK PRIORITY COLLATERAL" means all of the property in
which the Bank Agent is now or hereafter granted a security interest, other than
the Securitization Priority Collateral. "SECURITIZATION PRIORITY COLLATERAL"
means all of the Subsidiary Receivables, Contributed Assets, Collections of such
Subsidiary Receivables and Contributed Assets, each Lock -Box, each Collection
Account, all Related Security, all other rights and payments relating thereto
and all proceeds thereof, (as defined herein or in the Receivables Purchase
Agreement), other than the Reconveyed Assets and the Repurchased Assets and the
related security and proceeds thereof.
ACCORDINGLY, IN CONSIDERATION OF THE FOREGOING AND THE MUTUAL
COVENANTS HEREINAFTER SET FORTH, THE PARTIES HERETO AGREE AS FOLLOWS:
SECTION 1. SECURITY INTERESTS.
(a) Pursuant to the Security Agreement, T&B has granted a first
priority perfected security interest in the Bank Collateral to the Bank Agent,
for the benefit of the Lender Group (as defined in the Bank Facility). In
accordance with the Security Agreement, the Bank Agent has agreed to release
such portions of the Bank Collateral as may from time to time constitute
Securitization Priority Collateral from the security interest granted to the
Bank Agent.
(b) Pursuant to the Receivables Contribution Agreement, T&B has
transferred to the SPC all Contributed Assets.
(c) Pursuant to the Blue Ridge Facility, the SPC has granted a first
priority perfected security interest in the Securitization Priority Collateral
to the Securitization Agent, for the benefit of the Secured Parties (as defined
in the Blue Ridge Facility).
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(d) Each of the parties hereto hereby acknowledges that the
Securitization Agent, for the benefit of the Secured Parties, has a first
priority perfected security interest in all of the Securitization Priority
Collateral and agrees not to object or contest in any administrative, legal or
equitable action or proceeding (including, without limitation, any insolvency,
bankruptcy, receivership, liquidation, reorganization, winding up, readjustment,
composition or other similar proceeding relating to T&B, OCAL, Inc., the SPC or
their respective property) or object to or contest in any other manner the
validity, priority or perfection of such security interest. The Bank Agent
hereby expressly acknowledges that pursuant to the Security Agreement, the Bank
Agent has released all Securitization Priority Collateral from the security
interest of the Bank Agent; PROVIDED, however, at any time that any of the
Securitization Priority Collateral becomes Repurchased Assets or Reconveyed
Assets, then such assets shall no longer be deemed to be Securitization Priority
Collateral, the security interest of the Bank Agent therein shall automatically
reattach, and the Repurchased Assets or the Reconveyed Assets as the case may be
shall be deemed to be Bank Priority Collateral.
(e) Each of the parties hereto hereby acknowledges that the Bank Agent,
for the benefit of the Lender Group has a first priority perfected security
interest in all of the Bank Collateral and agrees not to object to or contest in
any administrative, legal or equitable action or proceeding (including, without
limitation, any insolvency, bankruptcy, receivership, liquidation,
reorganization, winding up, readjustment, composition or other similar
proceeding relating to T&B, or its property) or object to or contest in any
other manner the validity, priority or perfection of such security interest.
(f) The Bank Agent hereby agrees, for the benefit of the Securitization
Agent, for the benefit of the Secured Parties, that it will not amend, modify,
restate or replace any provision of, or add any provision to, the Security
Agreement or the Bank Facility which related directly and specifically to the
Securitization Priority Collateral without the prior written consent of the
Securitization Agent.
(g) The Securitization Agent hereby agrees that, notwithstanding
anything to the contrary contained in the documents and agreements relating to
the Blue Ridge Facility, (i) T&B may pledge to the Bank Agent all of its right,
title and interest in and to its equity interests in the SPC, together with all
dividends and other rights relating thereto provided that the Securitization
Agent shall have the right to review any such pledge agreement prior to its
execution to confirm that the provisions of such pledge agreement are consistent
with the provisions set forth in Exhibit A hereto and to require the parties
thereto to make such changes as the Securitization Agent may require to make the
provisions of such pledge agreement consistent with the provisions of Exhibit A
hereof, (ii) T&B and each of its subsidiaries may grant to the Bank Agent a
security interest in all personal property, including without limitation,
inventory, equipment, Repurchased Assets, and Reconveyed Assets, but excluding
all personal property constituting Securitization Priority Collateral, and (iii)
the security interests granted under the Security Agreement, other than the Bank
Accounts, as defined therein, and other than the collateral subject to the
Release, as defined therein, and excluding all personal property constituting
Securitization Priority Collateral may continue to secure the obligations of T&B
to the Bank Agent.
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SECTION 2. COOPERATION
(a) In the event that the Securitization Agent shall be deemed to have
a first priority perfected security interest in any of the Bank Priority
Collateral at any time hereafter, the Securitization Agent shall (i) promptly
notify all other parties to this Agreement and (ii) take any and all steps
necessary to have such first priority perfected security interest released or
assigned to the Bank Agent, on behalf of the banks party to the Security
Agreement.
(b) In the event that the Bank Agent shall be deemed to have a first
priority perfected security interest in any of the Securitization Priority
Collateral at any time hereafter, the Bank Agent shall (i) promptly notify all
other parties to this Agreement and (ii) take any and all steps necessary to
have such first priority perfected security interest released or assigned to the
Securitization Agent.
(c) Subject to the provisions of the Blue Ridge Facility that limit
and/or restrict payments and/or distributions of funds, upon receipt of notice
that the Bank Facility has become effective and written direction from T&B to do
so (the "PAYMENT DIRECTION NOTICE"), all cash of SPC shall, pursuant to a cash
management system instituted by T&B for itself and its Affiliates, be
transferred to an account over which the Bank Agent maintains control; provided,
however, the Bank Agent agrees that its interest in any and all such funds not
constituting T&B Cash Assets (as defined below) shall be subject to the prior
interest of the Securitization Agent and, in furtherance thereof, the Bank Agent
agrees that it shall act as bailee of the Securitization Agent with respect to
any such cash or other proceeds thereof at any time on deposit in any such
account. Each of the Securitization Agent and the Bank Agent agrees to enter
into such further written agreement or agreements as may be reasonably necessary
to evidence the foregoing. Payments or distributions of funds representing (i)
cash distributed, if any, by SPC to T&B as a return on T&B's investment in the
SPC whether by dividend or otherwise, (ii) the compensation for servicing
provided by the T&B to the SPC and (iii) collections or proceeds of any
Repurchased Assets or Reconveyed Assets (collectively, items described in
clauses (i) through (iii) being the "T&B CASH ASSETS") shall also be transferred
to an account over which the Bank Agent maintains control, and in such cases,
the proviso in the first sentence of this Section 2(c) shall not apply. T&B
acknowledges and agrees that so long as the Bank Facility remains in effect, the
Payment Direction Notice may not be changed or amended without the prior written
consent of the Bank Agent.
(d) The Securitization Agent shall, and shall cause the Master Servicer
to hold in trust for the Bank Agent, all Collections with respect to Repurchased
Assets and Reconveyed Assets and to remit all such Collections in accordance
with the provisions of subsection (c) above.
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SECTION 3. REPRESENTATIONS.
Each of the parties hereto represents and warrants to the other parties
that (a) its execution, delivery and performance of this Agreement has been duly
authorized by all necessary corporate proceedings, (b) the execution, delivery
and performance by it of this Agreement is within its corporate powers and does
not conflict with its charter, by-laws or operating agreement or with any law,
rule, regulation, writ or order binding upon it or its properties, and (c) this
Agreement constitutes its legally valid and enforceable obligation, enforceable
against it in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally or by general
principles of equity.
SECTION 4. NOTICES.
All notices required to be given hereunder shall be given by telephone
promptly confirmed in writing by facsimile, and shall be effective when received
at the address set forth on the signature pages hereof. Any party may change its
address for notice by written notice to the other parties hereto.
SECTION 5. NO PROCEEDINGS.
Each of the parties hereto (other than the Administrator with respect
to the SPC) agrees that it will not institute against the SPC or Blue Ridge
(each, a "PROTECTED PARTY"), or join any person in instituting against any
Protected Party, any case or other proceeding under any applicable bankruptcy,
insolvency, reorganization, debt arrangement, dissolution or other similar law
now or hereafter in effect so long as one year and one day shall not have
elapsed since the payment in full of, (a) in the case of Blue Ridge, any
commercial paper notes or other indebtedness issued by such Protected Party and
(b) in the case of the SPC, payment in full of its obligations in respect of the
Blue Ridge Facility.
SECTION 6. MISCELLANEOUS.
(a) AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement, nor consent to any departure by any party herefrom, shall in any
event be effective unless the same shall be in writing and signed by all of the
parties hereto, and, in the case of a waiver, shall be effective only in the
specific instance and for the specific purpose for which given.
(b) BINDING EFFECT. This Agreement shall become effective when it shall
have been executed and delivered by each of the parties hereto and thereafter
shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns.
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(c) GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HERETO HEREBY AGREES TO THE
NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT LOCATED WITHIN THE STATE OF NEW
YORK. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY
OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
(d) EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.
(e) WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE BETWEEN
THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT
WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
WACHOVIA BANK, N.A.,
as Securitization Agent for the Blue
Ridge Facility
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WACHOVIA BANK, N.A.,
as Individually and as Securitization
Agent for the Bank Facility
By: /s/ W. Xxxxxx Xxxxxx
--------------------------------------
Name: W. Xxxxxx Xxxxxx
Title: Senior Vice President
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn:
Telephone:
Facsimile:
XXXXXX & XXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
with a copy to:
Xxxxxx & Xxxxx Corporation
Attn: Vice President - General Counsel
0000 X& X Xxxxxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
TBSPV, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
0000 X&X Xxxxxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxx Corporation
Attn: Vice President - General Counsel
0000 X& X Xxxxxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
EXHIBIT A
PROVISIONS TO BE INCLUDED IN PLEDGE AGREEMENT
Section __ STOCK OF TBSPV, INC.; LIMITATION ON ACTIONS. The
parties hereto acknowledge that the pledge hereunder of the capital stock
("TBSPV STOCK") of TBPSV, Inc. ("TBSPV") is prohibited by the terms of that
certain Receivables Purchase Agreement dated as of September 21, 2001 (the
"PURCHASE AGREEMENT") among TBSPV, as Seller, Xxxxxx & Xxxxx Corporation, as
Master Servicer, Blue Ridge Asset Funding Corporation, as Purchaser and Wachovia
Bank, N.A., as Securitization Agent (the "SECURITIZATION AGENT"), as the same
may be amended, supplemented, restated or otherwise modified from time to time.
To induce Blue Ridge and the Securitization Agent to permit
the pledge of the TBSPV Stock, the parties hereto agree to the following
limitations.
(a) Anything herein or the Security Agreement to the contrary
notwithstanding:
(i) Prior to the date that is one year and one day
after the Final Payout Date (as defined in the Purchase Agreement), the
[COLLATERAL AGENT], for itself and for the [AGENT] and the Lenders,
agrees that, upon exercising its rights with respect to the TBSPV
Stock, it will not, without the prior written consent of the
Securitization Agent, take any action adverse to the interests of Blue
Ridge and/or the Securitization Agent, including, without limitation,
(A) causing TBSPV to violate or breach any term or provision in any
Transaction Documents (as defined in the Purchase Agreement), (B)
amending or altering any of TBSPV's organizational documents, or (C)
causing TBSPV to incur any debt, other than, in each case, as may be
allowed in the Transaction Documents; PROVIDED, that any prepayment or
termination of the Purchase Agreement in accordance with the terms of
the Transaction Documents (as defined in the Purchase Agreement) shall
not be deemed adverse to the interests of Blue Ridge and/or the
Securitization Agent;
(ii) Prior to the Final Payout Date, (A) in the event
that the [COLLATERAL AGENT] receives any payments or funds constituting
Securitization Priority Collateral (as defined in the Intercreditor
Agreement dated as of September 21, 2001 by and among the
Securitization Agent, the Bank Agent, TBSPV and Xxxxxx & Xxxxx
Corporation, the [COLLATERAL AGENT] shall hold such payments or funds
in trust for the benefit of the Securitization Agent, and shall
promptly transfer such payments or funds to the Securitization Agent
and (B) the [COLLATERAL AGENT], for itself and for the [AGENT] and the
Lenders, agrees that, upon exercising its rights with respect to the
TBSPV Stock, it will not, without the prior written consent of the
Securitization Agent make any dividends or distributions on such
Pledged Collateral;
(iii) Prior to the Final Payout Date, (A) this
Section __ shall not be amended, modified or supplemented without the
prior written consent of the Securitization Agent, which consent shall
be at the sole discretion of the Securitization Agent, and the
provisions of this Section __ shall be contained in any agreement that
amends and restates this Agreement and (B) the Lenders and the [Agent]
agree that no such party shall enter into any additional agreement that
would adversely affect the rights of the Securitization Agent set forth
in Section [_](a) hereof; and
(iv) Prior to the date that is one year and one day
after the Final Payout Date (as defined in the Purchase Agreement),
neither the [COLLATERAL AGENT], [AGENT] nor any Lender shall object to
or contest in any administrative, legal or equitable action or
proceeding (including, without limitation, any insolvency, bankruptcy,
receivership, liquidation, reorganization, winding up, readjustment,
composition or other similar proceeding relating to T&B or TBSPV or
their respective property) or object to or contest in any other manner
(1) the interests of TBSPV and its successors and assigns in any of the
assets transferred by Xxxxxx & Xxxxx Corporation to TBSPV pursuant to
the Transaction Documents and/or (2) the interests of the
Securitization Agent, the Purchaser and/or any Liquidity Bank (as
defined in the Purchase Agreement) in the Securitization Priority
Collateral. Neither the [COLLATERAL AGENT], [AGENT] nor any Lender
shall object to or contest in any manner the receipt of any payment by
the Securitization Agent, the Purchaser and/or any Liquidity Bank with
respect to the Securitization Priority Collateral in accordance with
the terms of the Transaction Documents for the satisfaction of the
Aggregate Unpaids.
The provisions of this Section __ shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of the Aggregate
Unpaids (as defined in the Purchase Agreement) is rescinded or must otherwise be
returned by the Securitization Agent or the Purchaser (as such term is defined
in the Purchase Agreement) upon the insolvency, bankruptcy or reorganization of
Xxxxxx & Xxxxx Corporation or TBSPV or otherwise, all as though such payment had
not been made;
(b) The Securitization Agent shall be a third-party beneficiary
with respect to this Section __.
(c) The provisions of this Section __ provide for relative rights of
the Collateral Agent and the Securitization Agent for the benefit of the Secured
Parties (as defined in the Transaction Documents) and are not intended for the
benefit of Xxxxxx & Xxxxx Corporation, nor shall such provisions limit or modify
the obligations of Xxxxxx & Xxxxx Corporation under the Loan Documents and the
Transaction Documents, respectively.
