Exhibit 10.32
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INTERCREDITOR AND LIEN SUBORDINATION AGREEMENT
among
XXXXX FARGO FOOTHILL, INC.,
as Lender,
HSBC BANK USA,
as Collateral Agent,
PHIBRO ANIMAL HEALTH CORPORATION,
and certain of its SUBSIDIARIES,
as Borrowers and Guarantors
Dated as of October 21, 2003
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INTERCREDITOR AND LIEN SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND LIEN SUBORDINATION AGREEMENT dated as of October
21, 2003 (this "Agreement") is made by and among XXXXX FARGO FOOTHILL, INC., as
senior secured lender (the "Original Lender") under and pursuant to the Loan
Agreement (as hereinafter defined), HSBC BANK USA, solely in its capacity as
collateral agent under the Indenture Loan Documents (as hereinafter defined) (in
such capacity, together with its successors and assigns (if any) in such
capacity, the "Collateral Agent"), PHIBRO ANIMAL HEALTH CORPORATION, a New York
corporation (the "Parent" ) and those certain subsidiaries of the Parent party
hereto (the "Subsidiaries" and, together with the Parent, the "Credit Parties").
RECITALS
A. Certain of the Credit Parties, certain other foreign subsidiaries (the
"Foreign Indenture Obligors") of the Parent (including, among others, Philipp
Brothers Netherlands III B.V. (the "Dutch Issuer" and, together with the Parent,
the "Issuers")), the Collateral Agent, and HSBC, in its capacity as Trustee (in
such capacity, together with its successors and assigns (if any) in such
capacity, the "Trustee"), have entered into an Indenture, dated as of October
21, 2003 (as amended, restated, supplemented or otherwise modified from time to
time in conformance with the provisions of this Agreement, the "Indenture"),
pursuant to which the Issuers have issued 105,000 Units (and, together with any
additional units that may be issued from time to time thereunder or exchanged
therefor or for such additional units, the "Units"), consisting of $85,000,000
aggregate principal amount of 13.0% Senior Secured Notes due 2007 issued by the
Parent (and, together with any additional notes that may be issued by the Parent
from time to time thereunder or exchanged therefor or for such additional notes,
the "U.S. Notes") and $20,000,000 aggregate principal amount of 13.0% Senior
Secured Notes due 2007 issued by the Dutch Issuer (and, together with any
additional notes that may be issued by the Dutch Issuer from time to time
thereunder or exchanged therefor or for such additional notes, the "Dutch Notes"
and, together with the U.S. Notes, the "Notes"). The repayment of the Indenture
Secured Obligations (as hereinafter defined) is secured by, among other things,
security interests in and liens on the assets and properties described in the
Domestic Collateral Agreements (as defined in the Indenture) dated as of the
date hereof (in each case, as amended, restated, supplemented or otherwise
modified from time to time in conformance with the provisions of this Agreement,
the "Indenture Domestic Collateral Agreements" and, together with the Indenture
and all Control Agreements (as defined in the U.S. Security Agreement (as
defined in the Indenture)) executed and delivered in connection therewith, the
"Indenture Agreements"), made by certain of the Credit Parties in favor of the
Collateral Agent for the benefit of the Collateral Agent, the Trustee, and the
Noteholders.
B. The Credit Parties and the Original Lender have entered into a Loan and
Security Agreement dated as of October 21, 2003 (the "Original Loan Agreement")
and
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the Credit Parties and the Original Lender have entered into those certain
guaranties, guarantor security agreements (as amended, restated, supplemented or
otherwise modified from time to time in conformance with the provisions of this
Agreement, the "Security Documents") pursuant to which the Original Lender
agreed, upon the terms and conditions stated therein, to make loans and advances
to and to issue letters of credit for the account of the Credit Parties up to
the principal amount of $40,000,000 (of which no more than $25,000,000 would be
available for the issuance of letters of credit and no more than $15,000,000
would be available for advances), together with the fees, interest, expenses and
other obligations due under the Original Loan Agreement. The repayment of the
Obligations (as that term is defined in the Original Loan Agreement) is secured
by first priority security interests in and liens on the Collateral (as defined
below).
C. The Original Lender and the Collateral Agent desire to enter into this
Agreement concerning the respective rights of the Lender and the Collateral
Agent with respect to the priority of their respective security interests in and
liens on the Collateral (as defined below).
D. The terms of the Indenture permit the Parent and the other Credit
Parties to enter into the Lender Loan Documents (as defined below), subject to
compliance with certain conditions, and in connection therewith authorize and
direct the Collateral Agent to enter into a subordination agreement
substantially in the form of this Agreement.
E. In order to induce the Original Lender to extend credit to the Credit
Parties and for purposes of certain conditions precedent and covenants of the
Original Loan Agreement, the Original Lender and the Collateral Agent hereby
agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Terms Defined Above and in the Recitals. As used in this
Agreement, the following terms shall have the respective meanings indicated in
the opening paragraph hereof and in the above Recitals:
"Agreement"
"Collateral Agent"
"Credit Parties"
"Dutch Issuer"
"Dutch Notes"
"Foreign Indenture Obligors"
"HSBC"
"Indenture"
"Indenture Domestic Collateral Agreements"
"Indenture Agreements"
"Issuers"
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"Notes"
"Original Lender"
"Original Loan Agreement"
"Parent"
"Security Documents"
"Subsidiaries"
"Trustee"
"U.S. Notes"
"Units"
Section 1.02 Original Loan Agreement Definitions. All capitalized terms
which are used but not defined herein shall have the same meaning as in the
Original Loan Agreement, as in effect on the date hereof.
Section 1.03 Other Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Bank Product Obligations" means all obligations, liabilities,
contingent reimbursement obligations, fees, and expenses owing by the Credit
Parties to any Bank Product Provider (as that term is defined in the Original
Loan Agreement) pursuant to or evidenced by the Bank Product Agreements (as that
term is defined in the Original Loan Agreement) and irrespective of whether for
the payment of money, whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter arising, and including all such amounts
that Credit Parties are obligated to reimburse the Original Lender as a result
of the Original Lender purchasing participations from, or executing indemnities
or reimbursement obligations to, a Bank Product Provider with respect to the
Bank Products (as that term is defined in the Original Loan Agreement) provided
by such Bank Product Provider to the Credit Parties.
"Bank Product Reserve" means, as of any date of determination, the
lesser of (a) $10,000,000 and (b) the total Bank Product Obligations
outstanding.
"Bankruptcy Code" means title 11 of the United States Code.
"Capital Stock" means (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of property of, the issuing
Person.
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"Cash Collateral" means any Collateral consisting of cash or cash
equivalents, any security entitlement (as defined in the New York Commercial
Code) and any financial assets (as defined in the New York Commercial Code).
"Collateral" means all of each Credit Party's right, title and
interest in, to, and under all property and assets of the Credit Parties,
including without limitation, all "Collateral" as defined in the Loan Agreement;
provided, however, that the term "Collateral" shall not include any property or
asset of any Foreign Indenture Obligor.
"Collateral Agent Standstill Notice" means a written notice from or
on behalf of Lender to the Collateral Agent stating that an Event of Default has
occurred and is continuing and stating that such written notice is a "Collateral
Agent Standstill Notice".
"Collateral Agent Standstill Period" has the meaning set forth in
Section 2.03.
"Control Collateral" means any Collateral consisting of a
certificated security (as defined in the New York Commercial Code), investment
property (as defined in the New York Commercial Code), a deposit account (as
defined in the New York Commercial Code and any other Collateral as to which a
Lien may be perfected through possession or control by the secured party, or any
agent therefor.
"Discharge of Loan Agreement Secured Obligations" means payment in
full in cash of the Loan Agreement Secured Obligations (other than Loan
Agreement Secured Obligations consisting of contingent indemnification
obligations under the Lender Loan Documents) up to (but not in excess of) the
Maximum Lender Priority Debt Amount including, with respect to amounts available
to be drawn under outstanding letters of credit issued thereunder (or
indemnities issued pursuant thereto in respect of outstanding letters of
credit), delivery of cash collateral or backstop letters of credit in respect
thereof in compliance with the terms of the Loan Agreement, in each case, after
or concurrently with termination of all commitments to extend credit thereunder.
"DIP Financing" has the meaning set forth in Section 6.01.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Indenture Event of Default" means an event of default under the
Indenture Loan Documents.
"Indenture Loan Documents" shall mean the Indenture, the Units, the
Notes, the Indenture Agreements, and such other agreements, instruments and
certificates as defined or referred to in the Indenture.
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"Indenture Secured Obligations" shall mean all indebtedness
represented by the Units, the Notes, together with interest, premiums, fees,
costs and expenses in respect thereof (including, without limitation, attorneys
fees and disbursements and including interest accrued after the initiation of
any Insolvency Proceeding, whether or not allowed or allowable in any Insolvency
Proceeding).
"Insolvency Proceeding" means any proceeding commenced by or against
any Person under any provision of the Bankruptcy Code or under any other state,
federal or foreign bankruptcy or insolvency law, assignments for the benefit of
creditors, formal or informal moratoria, compositions, extensions generally with
creditors, or proceedings seeking reorganization, arrangement, or other similar
relief.
"Lender" means the Original Lender, together with all successors,
assigns, transferees, participants, replacement or refinancing lenders, of the
Original Lender, including any Person designated as a Lender under any Loan
Agreement; provided, that for purposes of this Agreement, the Collateral Agent
shall be entitled to deal only with the Original Lender until such time as the
Original Lender shall have assigned to another Lender all of its rights and
obligations hereunder to such other Lender pursuant to an assignment, notice of
which has been provided by the Original Lender to the Collateral Agent and until
receipt thereof, Collateral Agent shall not be liable for any such dealings
(including the turning over of any Collateral or proceeds thereof to the
Original Lender at a time when any other Lender and not the Original Lender was
entitled thereto).
"Lender Loan Documents" means the Loan Agreement, the Security
Documents, the "Loan Documents" as defined in the Original Loan Agreement, the
collateral documents and instruments executed and delivered in connection
therewith or in connection with any other Loan Agreement hereunder, and such
other agreements, instruments and certificates as defined in a Loan Agreement.
"Lien" means any interest in an asset securing an obligation owed
to, or a claim by, any Person other than the owner of the asset, irrespective of
whether (a) such interest is based on the common law, statute, or contract, (b)
such interest is recorded or perfected, and (c) such interest is contingent upon
the occurrence of some future event or events or the existence of some future
circumstance or circumstances. Without limiting the generality of the foregoing,
the term "Lien" includes the lien or security interest arising from a mortgage,
deed of trust, encumbrance, pledge, hypothecation, assignment, deposit
arrangement, security agreement, conditional sale or trust receipt, or from a
lease, consignment, or bailment for security purposes and also includes
reservations, exceptions, encroachments, easements, rights-of-way, covenants,
conditions, restrictions, leases, and other title exceptions and encumbrances
affecting Real Property. In addition, as used in this Agreement, the term "Lien"
means a Lien of the Collateral Agent or the Lender solely in respect of all or
any portion of the Collateral and not in respect of any asset or property of any
Foreign Indenture Obligor.
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"Lien Priority" means with respect to any Lien of the Lender or the
Collateral Agent in the Collateral, the order of priority of such Lien as
specified in Section 2.01.
"Loan Agreement" means the Original Loan Agreement as amended,
restated, modified, renewed, refunded, replaced, or refinanced in whole or in
part from time to time, including any agreement extending the maturity of,
consolidating, otherwise restructuring (including adding Subsidiaries or
affiliates of the Parent or any other Persons as parties thereto) or refinancing
all or any portion of the Obligations or Commitments as those terms are defined
in the Original Loan Agreement (or in any other agreement that itself is a Loan
Agreement hereunder) and whether by the same or any other agent, lender, or
group of lenders and whether or not increasing the amount of indebtedness that
may be incurred thereunder.
"Loan Agreement Secured Obligations" means all Obligations and all
other amounts owing or due under the terms of a Loan Agreement and the other
Lender Loan Documents, including any and all amounts payable under or in respect
of the Lender Loan Documents, as amended, restated, modified, renewed, refunded,
replaced, or refinanced in whole or in part from time to time, including
principal, premium, interest, fees, attorneys' fees, costs, charges, expenses,
reimbursement obligations, any obligation to post cash collateral in respect of
letters of credit or indemnities in respect thereof, indemnities, guarantees,
and all other amounts payable thereunder or in respect thereof (including, in
each case, all amounts accruing on or after the commencement of any Insolvency
Proceeding relating to any Credit Party or any other Person irrespective of
whether a claim for all or any portion of such amounts is allowable or allowed
in any Insolvency Proceeding).
"Loan Documents" means the Lender Loan Documents and the Indenture
Loan Documents.
"Maximum Lender Priority Debt Amount" means, as of any date of
determination, (a) the undrawn amount of all outstanding letters of credit plus
unreimbursed drawings in respect thereof that are Loan Agreement Secured
Obligations as of such date up to, but not in excess of, $25,000,000, plus (b)
the principal amount of Advances (as that term is defined in the Original Loan
Agreement) or revolving loans under any Loan Agreement as of such date up to,
but not in excess of, $15,000,000, plus (c) any premium, interest, fees,
attorneys' fees, costs, charges, expenses, indemnities, and all other amounts
payable under a Loan Agreement or other Lender Loan Documents or in respect of
the Loan Agreement Secured Obligations (including, without duplication, all
guaranties in respect thereof), plus (d) the Bank Product Obligations not to
exceed the Bank Product Reserve; and including, for each amount specified in
clauses (a), (b), (c), and (d) all amounts accruing on or after the commencement
of any Insolvency Proceeding relating to any Credit Party or any other Person
irrespective of whether a
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claim for all or any portion of such amount is allowable or allowed in any
Insolvency Proceeding.
"Notes" means the Domestic Notes and the Dutch Notes.
"Noteholders" means each of the holders of the Units and/or the
Notes.
"Party" means Lender and Collateral Agent.
"Person" means any natural person, corporation, limited liability
company, limited partnership, general partnership, limited liability
partnership, joint venture, trust, land trust, business trust, or other
organization, irrespective of whether such organization is a legal entity, and
shall include a government and any agency or political subdivision thereof.
"Proceeds" means (i) all "proceeds" as defined in Article 9 of the
New York Commercial Code with respect to the Collateral, and (ii) whatever is
recoverable or recovered when Collateral is sold, exchanged, collected, or
disposed of, whether voluntarily or involuntarily.
"Real Property" means any estates or interests in real property and
the improvements thereto.
"Recovery" has the meaning set forth in Section 5.03.
Section 1.04 Rules of Construction. Unless the context of this Agreement
clearly requires otherwise, references to the plural include the singular,
references to the singular include the plural, the term "including" is not
limiting, and the term "or" has, except where otherwise indicated, the inclusive
meaning represented by the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement.
Article, section, subsection, clause, schedule, and exhibit references herein
are to this Agreement unless otherwise specified. Any reference in this
Agreement to any agreement, instrument, or document shall include all
alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements thereto and thereof, as
applicable (subject to any restrictions on such alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions,
joinders, and supplements set forth herein). Any reference herein to any Person
shall be construed to include such Person's successors and assigns.
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ARTICLE II.
LIEN PRIORITY
Section 2.01 Agreement to Subordinate. Notwithstanding the date, time,
method, manner or order of grant, attachment, or perfection of any Liens granted
to the Collateral Agent, the Trustee, or the Noteholders in respect of all or
any portion of the Collateral or of any Liens granted to the Lender in respect
of all or any portion of the Collateral, or the order or time of filing or
recordation of any document or instrument for perfecting the Liens in favor of
Lender or the Collateral Agent (or the Trustee or any Noteholder) in any
Collateral or any provision of the Uniform Commercial Code, any other applicable
law, the Loan Documents or any other circumstance whatsoever, each of the Lender
and the Collateral Agent, on behalf of itself, the Trustee, and the Noteholders,
hereby agrees that:
(a) (i) any Lien in respect of all or any portion of the Collateral
now or hereafter held by or on behalf of the Collateral Agent, the Trustee, or
any Noteholder that secures all or any portion of the Indenture Secured
Obligations, shall in all respects be junior and subordinate to all Liens
granted to the Lender in the Collateral to secure all or any portion of the Loan
Agreement Secured Obligations up to (but not in excess of) the Maximum Lender
Priority Debt Amount, and (ii) any Lien in respect of all or any portion of the
Collateral now or hereafter held by or on behalf of the Lender that secures all
or any portion of the Loan Agreement Secured Obligations in excess of the
Maximum Lender Priority Debt Amount, shall in all respects be junior and
subordinate to all Liens granted to the Collateral Agent, the Trustee or any
Noteholder in the Collateral to secure all or any portion of the Indenture
Secured Obligations,
(b) (i) any Lien in respect of all or any portion of the Collateral
now or hereafter held by or on behalf of the Lender that secures all or any
portion of the Loan Agreement Secured Obligations up to (but not in excess of)
the Maximum Lender Priority Debt Amount shall in all respects be senior and
prior to all Liens granted to the Collateral Agent (or the Trustee or any
Noteholder) in the Collateral to secure all or any portion of the Indenture
Secured Obligations, and (ii) any Lien in respect of all or any portion of the
Collateral now or hereafter held by or on behalf of the Collateral Agent, the
Trustee, or any Noteholder that secures all or any portion of the Indenture
Secured Obligations, shall in all respects be senior and prior to all Liens
granted to the Lender in the Collateral to secure all or any portion of the Loan
Agreement Secured Obligations in excess of the Maximum Lender Priority Debt
Amount.
The Collateral Agent, for and on behalf of itself, the Trustee and
the Noteholders, acknowledges and agrees that, concurrently herewith, the Lender
has been granted Liens upon all of the Collateral in which the Collateral Agent
has been granted Liens and the Collateral Agent hereby consents thereto. The
Lender acknowledges and agrees that the Collateral Agent, for the benefit of
itself, the Trustee, and the Noteholders,
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has been granted Liens upon all of the Collateral in which Lender has been
granted Liens and the Lender hereby consents thereto. The subordination of Liens
in the Collateral (up to the Maximum Lender Priority Debt Amount) by the
Collateral Agent, on behalf of itself, the Trustee, and the Noteholders in favor
of the Lender herein shall not be deemed to subordinate the Collateral Agent's
Liens to the Liens of any other Person. The subordination of Liens in the
Collateral (in excess of the Maximum Lender Priority Debt Amount) in favor of
the Collateral Agent, for the benefit of itself, the Trustee and the Noteholders
herein shall not be deemed to subordinate the Lender's Liens to the Liens of any
other Person.
Section 2.02 Waiver of Right to Contest Liens. The Collateral Agent
agrees, on behalf of itself, the Trustee, and the Noteholders, that it and they
shall not (and hereby waives, on behalf of itself, the Trustee and the
Noteholders any right to) take any action to contest or challenge (or assist or
support any other Person in contesting or challenging), directly or indirectly,
whether or not in any proceeding (including in any Insolvency Proceeding), the
validity, priority, enforceability, or perfection of the Liens of the Lender in
respect of the Collateral. The Collateral Agent, for itself, the Trustee, and on
behalf of the Noteholders, agrees that none of the Collateral Agent, the
Trustee, or the Noteholders will take any action that would hinder any exercise
of remedies undertaken by the Lender under the Lender Loan Documents in respect
of the Collateral, including any public or private sale, lease, exchange,
transfer, or other disposition of the Collateral, whether by foreclosure or
otherwise. The Collateral Agent, for itself, the Trustee, and on behalf of the
Noteholders, hereby waives any and all rights it, the Trustee, or the
Noteholders may have as a junior lien creditor or otherwise to contest, protest,
object to, interfere with the manner in which the Lender seeks to enforce the
Liens in any portion of the Collateral (it being understood and agreed that the
terms of this Agreement shall govern with respect to the Collateral, even if any
portion of the Liens securing the Loan Agreement Secured Obligations are
avoided, disallowed, set aside, or otherwise invalidated in any judicial
proceeding or otherwise). The Lender agrees that it shall not (and hereby waives
any right to) take any action to contest or challenge (or assist or support any
other Person in contesting or challenging), directly or indirectly, whether or
not in any proceeding (including in any Insolvency Proceeding), the validity,
priority, enforceability, or perfection of the Liens of the Collateral Agent in
respect of the Collateral.
Section 2.03 Collateral Agent Remedies Standstill. At any time after
the occurrence and during the continuation of an Event of Default under any of
the Lender Loan Documents, the Lender may send a Collateral Agent Standstill
Notice to the Collateral Agent. The Collateral Agent, on behalf of itself, the
Trustee, and the Noteholders, agrees that from and after the date of its receipt
of any Collateral Agent Standstill Notice, none of the Collateral Agent, the
Trustee, or any Noteholder will exercise any of its rights or remedies in
respect of the collection on, set off against, marshalling of, or foreclosure on
the Collateral or any other right relating to any Collateral (including the
exercise of any voting rights relating to any Capital Stock
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constituting Collateral) under the Indenture Loan Documents, applicable law or
otherwise as a secured creditor and will not take or receive any Collateral in
connection with the exercise of any such right or remedy (including recoupment
or set-off), whether under the Indenture Loan Documents, applicable law, in an
Insolvency Proceeding or otherwise unless and until (a) the Lender has expressly
waived or acknowledged the cure of the applicable Event of Default in writing or
the Discharge of the Loan Agreement Secured Obligations shall have occurred, or
(b) 210 days shall have elapsed from the date of the Collateral Agent's receipt
of such Collateral Agent Standstill Notice, except with respect to any
Collateral as to which the Lender is diligently exercising its rights or
remedies as a secured creditor to effect the collection, foreclosure, sale, or
other realization upon or disposition of such Collateral. The time period during
which the Collateral Agent is not permitted to exercise rights or remedies under
this section is referred to herein as the "Collateral Agent Standstill Period".
From and after the earliest to occur of (i) the Collateral Agent's receipt of
such waiver or cure notice, (ii) the date on which the Discharge of the Loan
Agreement Secured Obligations shall have occurred, or (iii) the elapsing of such
210th day period, any of the Collateral Agent, the Trustee, or any Noteholder
may commence to exercise any of its rights and remedies as a secured creditor
with respect to the Collateral under the Indenture Loan Documents, applicable
law or otherwise (subject to the provisions of this Agreement, including Section
4.02 hereof and except with respect to any such Collateral as to which the
Lender is effecting the collection, foreclosure, sale or other realization upon
or disposition of or is otherwise exercising its secured creditor remedies
diligently and in good faith). The Lender may only send 3 Collateral Agent
Standstill Notices prior to the Maturity Date whether delivered hereunder or
under any corresponding provision of any other agreement similar hereto that may
be delivered pursuant to Section 7.16)and the Lender may not send a subsequent
Collateral Agent Standstill Notice consecutive days have elapsed following the
last day of a Collateral Agent Standstill period.
Section 2.04 Exercise of Rights.
(a) No Other Restrictions. Except as expressly set forth in this
Agreement, each of the Collateral Agent, the Trustee, the Noteholders, and the
Lender shall have any and all rights and remedies it may have as a creditor
under applicable law, including the rights to exercise all rights and remedies
in foreclosure or otherwise with respect to any of the Collateral; provided,
however, that any such exercise by the Collateral Agent, the Trustee or the
Noteholders, and any collection or sale of all or any portion of the Collateral
by the Collateral Agent, the Trustee or the Noteholders, shall be subject to the
Liens of the Lender on the Collateral to the extent provided in Section 2.01 and
to the provisions of this Agreement including Section 4.02 hereof. In exercising
rights and remedies with respect to the Collateral, the Lender may enforce the
provisions of the Lender Loan Documents and exercise remedies thereunder, all in
such order and in such manner as it may determine in the exercise of its sole
discretion. Such exercise and
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enforcement shall include the sale, lease, license, or other disposition of all
or any portion of the Collateral by private or public sale or any other means
permissible under applicable law; provided, that the Lender agrees to provide
copies of any notices that it is required under applicable law to deliver to the
Credit Parties to the Collateral Agent; provided further, that the failure to
provide any such copies to the Collateral Agent shall not impair any of the
Lender's rights hereunder.
(b) Collateral Agent's Release of Liens. In the event of any such
private or public sale of the Collateral, Collateral Agent agrees, on behalf of
itself, the Trustee, and the Noteholders, that such sale will be free and clear
of the Liens on any such Collateral securing the Indenture Secured Obligations
and, if the sale or other disposition includes the Equity Interests in any
Credit Party which are subject to any Liens securing the Indenture Secured
Obligations, agrees to release the entities whose Equity Interests are sold from
all Indenture Secured Obligations so long as Lender also releases the entities
whose Equity Interests are sold from all Loan Agreement Secured Obligations. In
furtherance thereof, Collateral Agent agrees that it will execute any and all
Lien releases or other documents reasonably requested by Lender with respect to
the Collateral in connection therewith, so long as the proceeds from such sale
or other disposition of the Collateral are applied in accordance with the terms
of this Agreement.
(c) No Waiver of Collateral Agent's Rights. Subject to Section 3.01,
the Collateral Agent, the Trustee and the Noteholders may exercise, and nothing
herein shall constitute a waiver of, any right it may have at law or equity to
receive notice of, or to commence or join with any creditor in commencing any
Insolvency Proceeding or to join or participate in, any action or proceeding or
other activity described in Section 3.01; provided, however, that exercise of
any such right by the Collateral Agent shall be subject to all of the terms and
conditions of this Agreement, including the obligation to turn over Collateral
and Proceeds to the Lender for application to the Loan Agreement Secured
Obligations as provided in Section 4.02.
(d) Collateral Agent's Right to File Claims to Prevent Waiver
Thereof. The Collateral Agent may make such demands or file such claims in
respect of the Indenture Secured Obligations as may be necessary to prevent the
waiver or bar of such claims under applicable statutes of limitations or other
statutes, court orders or rules of procedure, but except as provided in this
Section 2.04, the Collateral Agent shall not take any actions restricted by this
Agreement in respect of the Collateral until the Discharge of Loan Agreement
Secured Obligations shall have occurred.
(e) Rights of Collateral Agent Following the Discharge of Loan
Agreement Secured Obligations. Following the Discharge of Loan Agreement Secured
Obligations, the other provisions of this Section 2.04 shall apply to the
Collateral Agent, for the benefit of itself, the Trustee and the Noteholders as
if it was the Lender and the Lender was the Collateral Agent, mutatis mutandis.
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ARTICLE III.
ACTIONS OF THE PARTIES
Section 3.01 Limitation on Certain Actions by the Collateral Agent.
Notwithstanding any other provision hereof, during any Collateral Agent
Standstill Period prior to the date that the Discharge of Loan Agreement Secured
Obligations occurs, the Collateral Agent will not:
(a) commence receivership or foreclosure proceedings against any
Credit Party in respect of any Collateral;
(b) sell, collect, transfer or dispose of any Collateral or
Proceeds; or
(c) notify third party account debtors to make payment in respect of
Collateral directly to it or any of its agents or other Persons acting on its
behalf.
Section 3.02 Agent for Perfection. Each of the Lender and the Collateral
Agent, for and on behalf of itself, the Trustee, and each Noteholder, as
applicable, agree to hold all Control Collateral and Cash Collateral that is
part of the Collateral in its respective possession, custody, or control (or in
the possession, custody, or control of agents or bailees for either, as
applicable) as agent for the other solely for the purpose of perfecting the
security interest granted to each in such Control Collateral or Cash Collateral
subject to the terms and conditions of this Section 3.02. None of the Lender,
the Collateral Agent, the Trustee, or the Noteholders, as applicable, shall have
any obligation whatsoever to the others to assure that the Control Collateral is
genuine or owned by any Credit Party or any other Person or to preserve rights
or benefits of any Person. The duties or responsibilities of the Lender and the
Collateral Agent under this Section 3.02 are and shall be limited solely to
holding or maintaining control of the Control Collateral and the Cash Collateral
as agent for the other for purposes of perfecting the Lien held by the
Collateral Agent or the Lender, as applicable. The Lender is not and shall not
be deemed to be a fiduciary of any kind for the Collateral Agent, the Trustee,
the Noteholders or any other Person. The Collateral Agent is not and shall not
be deemed to be a fiduciary of any kind for the Lender. In the event that (a)
any of the Collateral Agent, the Trustee, or any Noteholder receives any
Proceeds or Collateral in contravention of the Lien Priority, or (b) the Lender
receives any Collateral or Collateral Proceeds in contravention of the Lien
Priority, it shall promptly pay over such Proceeds or Collateral, as applicable,
to (i) in the case of clause (a), the Lender, or (ii) in the case of clause (b),
the Collateral Agent, in the same form as received with any necessary
endorsements, for application in accordance with the provisions of Section 4.02
of this Agreement.
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ARTICLE IV.
NOTICES AND APPLICATION OF PROCEEDS
Section 4.01 Notices of Exercise. Concurrently with any exercise by the
Collateral Agent of any of its rights and remedies under the Indenture Loan
Documents following the occurrence of any Indenture Event of Default, the
Collateral Agent shall give notice of such exercise to the Lender and shall only
exercise such rights or remedies in a manner consistent with the terms of this
Agreement. Concurrently with any exercise by the Lender of any of its rights and
remedies under the Lender Loan Documents following the occurrence of any Event
of Default, the Lender shall give notice of such exercise to the Collateral
Agent and shall only exercise such rights or remedies in a manner consistent
with the terms of this Agreement.
Section 4.02 Application of Proceeds.
(a) Revolving Nature of Loan Agreement Secured Obligations. As long
as the Lender is not exercising any of its remedies as a secured creditor under
the Lender Loan Documents and including during any Collateral Agent Standstill
Period, the Lender may apply any and all of the Proceeds in accordance with the
provisions of the Lender Loan Documents, subject to the provisions of this
Agreement, including Sections 3.02 and 4.02 hereof. The Collateral Agent, for
and on behalf of itself, the Trustee, and the Noteholders, expressly
acknowledges and agrees that (a) any such application of the Proceeds or the
release of any Lien by the Lender upon any portion of the Collateral in
connection with a Permitted Disposition (as that term is defined in the Loan
Agreement) shall not be considered to be the exercise of remedies under this
Agreement; and (b) all Proceeds received by Lender in connection therewith may
be applied, reversed, reapplied, credited or reborrowed, in whole or in part, as
Loan Agreement Secured Obligations without reducing the Maximum Lender Priority
Debt Amount.
(b) Turnover of Cash Collateral After Payment. Upon the Discharge of
the Loan Agreement Secured Obligations, the Lender shall deliver to the
Collateral Agent or execute such documents as the Collateral Agent may
reasonably request to cause the Collateral Agent to have control over any Cash
Collateral or Control Collateral still in Lender's possession, custody or
control in the same form as received, with any necessary endorsements or as a
court of competent jurisdiction may otherwise direct, to be applied by the
Collateral Agent to the Indenture Secured Obligations in the manner prescribed
by the Indenture. Proceeds from any exercise by the Lender or the Collateral
Agent, as applicable, of any of their respective secured creditor rights or
remedies under any of the Loan Documents, under applicable law, or otherwise
with respect to any Collateral or Proceeds, shall be (a) until the Discharge of
the Loan Agreement Secured Obligations, retained by the Lender or promptly
turned over by the Collateral Agent, the Trustee, or any Noteholder, as the case
may be, to the Lender in the same form as received, with any necessary
endorsements, (b) after the Discharge of the Loan
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Agreement Secured Obligations and until all Indenture Secured Obligations have
been paid in full in cash, retained by the Collateral Agent or promptly turned
over by the Lender to the Collateral Agent in the same form as received, with
any necessary endorsements, and (c) if there are any Loan Agreement Secured
Obligations outstanding in excess of the Maximum Lender Priority Debt Amount
after the payment in full in cash of all Indenture Secured Obligations, it shall
be retained by the Lender or promptly turned over by the Collateral Agent to the
Lender in the same form as received, with any necessary endorsements.
(c) Application of Proceeds. The Lender and the Collateral Agent
hereby agree that all Collateral and all Proceeds received by either of them
upon the exercise of any their secured creditor rights or remedies under any of
the Loan Documents, applicable law, or otherwise shall be applied,
first, ratably to the payment of costs and expenses of the Lender,
or of the Collateral Agent, the Trustee, and the Noteholders, as applicable, in
connection with such exercise,
second, to the payment of the Loan Agreement Secured Obligations up
to (but not in excess of) the Maximum Lender Priority Debt Amount,
third, to the payment of the Indenture Secured Obligations in the
manner prescribed by the Indenture, and
fourth, to the payment of any Loan Agreement Secured Obligations in
excess of the Maximum Lender Priority Debt Amount.
In exercising remedies, whether as a secured creditor or otherwise, the Lender
shall have no obligation or liability to the Collateral Agent, the Trustee, or
to any Noteholder and the Collateral Agent shall have no obligation or liability
to the Lender regarding the adequacy of any Proceeds or for any action or
omission save and except solely an action or omission that breaches the express
obligations undertaken by each Party under the terms of this Agreement.
Section 4.03 Specific Performance. Each of the Lender and the Collateral
Agent is hereby authorized to demand specific performance of this Agreement,
whether or not the Parent, any Subsidiary or any Credit Party shall have
complied with any of the provisions of any of the Loan Documents, at any time
when the other shall have failed to comply with any of the provisions of this
Agreement applicable to it; provided, however, the remedy of specific
performance shall not be available, and the asserting party shall be free to
assert any and all legal defenses it may possess, if such remedy would result
in, or otherwise constitute, a violation of the Employee Retirement Income
Security Act of 1974, as amended. Each of the Lender and the Collateral Agent
hereby irrevocably waives any defense based on the adequacy of a remedy at law,
which might be asserted as a bar to such remedy of specific performance.
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ARTICLE V.
INTERCREDITOR ACKNOWLEDGEMENTS AND WAIVERS
Section 5.01 Notice of Acceptance and Other Waivers.
(a) All Loan Agreement Secured Obligations at any time made or
incurred by any Credit Party shall be deemed to have been made or incurred in
reliance upon this Agreement, and the Collateral Agent, on behalf of itself, the
Trustee, and the Noteholders, hereby waives (i) notice of acceptance, or proof
of reliance, by the Lender of this Agreement, and (ii) notice of the existence,
renewal, extension, accrual, creation, or non-payment of all or any part of the
Loan Agreement Secured Obligations. Neither the Lender nor any of its
affiliates, directors, officers, employees, or agents shall be liable for
failure to demand, collect, or realize upon any of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral or to take any other action whatsoever with regard to the
Collateral or any part thereof, except as specifically provided in this
Agreement. If the Lender honors (or fails to honor) a request by the any Credit
Party for an extension of credit pursuant to the Loan Agreement or any of the
Lender Loan Documents, whether Lender has knowledge that the honoring of (or
failure to honor) any such request would constitute a default under the terms of
the Indenture or any Indenture Loan Document or an act, condition, or event
that, with the giving of notice or the passage of time, or both, would
constitute such a default, or if Lender otherwise should exercise any of its
contractual rights or remedies under the Lender Loan Documents (subject to the
express terms and conditions hereof), Lender shall not have any liability
whatsoever to the Collateral Agent, the Trustee or any Noteholder as a result of
such action, omission, or exercise (so long as any such exercise does not breach
the express terms and provisions of this Agreement). The Lender will be entitled
to manage and supervise its loans and extensions of credit under the Loan
Agreement and other Lender Loan Documents as the Lender may, in its sole
discretion, deem appropriate, and the Lender may manage its loans and extensions
of credit without regard to any rights or interests that the Collateral Agent,
the Trustee, or any of the Noteholders have in the Collateral or otherwise
except as otherwise expressly set forth in this Agreement. The Collateral Agent,
on behalf of itself, the Trustee, and the Noteholders, agrees that the Lender
shall not incur any liability as a result of a sale, lease, license, or other
disposition of the Collateral, or any part thereof, pursuant to the Lender Loan
Documents conducted in accordance with mandatory provisions of applicable law.
(b) None of Collateral Agent, Trustee, or any of the Noteholders nor
any of their affiliates, directors, officers, employees, or agents shall be
liable for failure to demand, collect, or realize upon any of the Collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral or to take any other action whatsoever with regard to
the Collateral or any part thereof, except as specifically provided in this
Agreement. If Collateral Agent, Trustee, or any of the Noteholders should
exercise any of their contractual rights or remedies under the Indenture
15
Agreements (subject to the express terms and conditions hereof), none of
Collateral Agent, Trustee, or any of the Noteholders shall have any liability
whatsoever to the Lender as a result of such action, omission, or exercise (so
long as any such exercise does not breach the express terms and provisions of
this Agreement). The Collateral Agent, Trustee, and Noteholders will be entitled
to manage and supervise their loans and extensions of credit under the Indenture
Agreements as they may, in their sole discretion, deem appropriate, and they may
manage their loans and extensions of credit without regard to any rights or
interests that the Lender has in the Collateral or otherwise except as otherwise
expressly set forth in this Agreement. Subject to Section 2.03, the Lender
agrees that none of the Collateral Agent, the Trustee, or the Noteholders shall
incur any liability as a result of a sale, lease, license, or other disposition
of the Collateral, or any part thereof, pursuant to the Indenture Agreements
conducted in accordance with mandatory provisions of applicable law.
Section 5.02 Modifications to Lender Loan Documents and Indenture
Agreements.
(a) The Collateral Agent, on behalf of itself, the Trustee, and the
Noteholders, hereby agrees that, without affecting the obligations of the
Collateral Agent, the Trustee and the Noteholders hereunder, the Lender may, at
any time and from time to time, in its sole discretion without the consent of or
notice to the Collateral Agent, the Trustee or any Noteholder (except to the
extent such notice or consent is required pursuant to the express provisions of
this Agreement), and without incurring any liability to the Collateral Agent,
the Trustee or any Noteholder or impairing or releasing the subordination
provided for herein, amend, restate, supplement, replace, refinance, extend,
consolidate, restructure, or otherwise modify the Loan Agreement or any of the
Lender Loan Documents in any manner whatsoever, including, to
(i) change the manner, place, time, or terms of payment or
renew or alter, all or any of the Loan Agreement Secured Obligations
or otherwise amend, restate, supplement, or otherwise modify in any
manner, or grant any waiver or release with respect to, all or any
part of the Loan Agreement Secured Obligations or any of the Lender
Loan Documents,
(ii) retain or obtain a Lien on any property of any Person to
secure any of the Loan Agreement Secured Obligations, and in that
connection to enter into any additional Lender Loan Documents,
(iii) amend, or grant any waiver, compromise or release with
respect to, or consent to any departure from, any guaranty or other
obligations of any Person obligated in any manner under or in
respect of the Loan Agreement Secured Obligations,
(iv) release its Lien on any Collateral or other property,
16
(v) exercise or refrain from exercising any rights against any
Credit Party or any other Person,
(vi) retain or obtain the primary or secondary obligation of
any other Person with respect to any of the Loan Agreement Secured
Obligations, and
(vii) otherwise manage and supervise the Loan Agreement
Secured Obligations as the Lender shall deem appropriate.
(b) The Lender hereby agrees that Collateral Agent, on behalf of
itself, the Trustee, and the Noteholders may, at any time and from time to time,
in its sole discretion without the consent of or notice to the Lender (except to
the extent such notice or consent is required pursuant to the express provisions
of this Agreement), and without incurring any liability to the Lender or
impairing or releasing the subordination provided for herein, amend, restate,
supplement, replace, refinance, extend, consolidate, restructure, or otherwise
modify the Indenture Agreements in any manner whatsoever, provided, however,
that in no event shall Collateral Agent, the Trustee, or any Noteholder obtain a
Lien on any assets of any Credit Party not subject to a Lien in favor of Lender
unless (i) Lender also obtains a Lien on such assets or (ii) Lender declines in
a writing to Collateral Agent to obtain a Lien on such assets.
(c) Notwithstanding anything to the contrary herein, this Section
5.02 shall not be construed to constitute a waiver by the Collateral Agent, the
Trustee, or any Noteholder of Section 4.12 of the Indenture.
(d) Notwithstanding anything to the contrary herein, in no event
shall Indebtedness represented by any units or notes issued pursuant to the
Indenture, including any Units or Notes (or represented by any other evidence of
indebtedness for borrowed money under the Units, the Notes, the Indenture or the
guarantees related thereto) at any time exceed an aggregate principal amount
equal to $105,000,000.
Section 5.03 Reinstatement and Continuation of Agreement.
(a) If Lender is required in any Insolvency Proceeding or otherwise
to turn over or otherwise pay to the estate of the Parent, any of its
Subsidiaries, any Credit Party or any other Person any amount (a "Recovery"),
then the Loan Agreement Secured Obligations shall be reinstated to the extent of
such Recovery. If this Agreement shall have been terminated prior to such
Recovery, this Agreement shall be reinstated in full force and effect, and such
prior termination shall not diminish, release, discharge, impair, or otherwise
affect the obligations of the parties hereto from such date of reinstatement.
All rights, interests, agreements, and obligations of the Collateral Agent, the
Trustee, the Lender, and the Noteholders under this Agreement shall remain in
full force and effect and shall continue irrespective of the commencement of, or
any discharge, confirmation, conversion, or dismissal of any Insolvency
Proceeding by or against Parent, any of its
17
Subsidiaries or any Credit Party or any other circumstance which otherwise might
constitute a defense available to, or a discharge of the Parent, any Subsidiary
or any Credit Party in respect of the Loan Agreement Secured Obligations. No
priority or right of the Lender shall at any time be prejudiced or impaired in
any way by any act or failure to act on the part of the Credit Party, any of its
Subsidiaries or any Credit Party or by the noncompliance by any Person with the
terms, provisions, or covenants of the Loan Agreement, the Indenture or any of
the other Loan Documents, regardless of any knowledge thereof which the Lender
may have.
(b) If Collateral Agent, the Trustee, or any Noteholder is required
in any Insolvency Proceeding or otherwise to turn over or otherwise pay to the
estate of any Credit Party or any other Person a Recovery, then the Indenture
Secured Obligations shall be reinstated to the extent of such Recovery. No
priority or right of the Collateral Agent, the Trustee, or any Noteholder shall
at any time be prejudiced or impaired in any way by any act or failure to act on
the part of the Borrower, any of its Subsidiaries or any Guarantor or by the
noncompliance by any Person with the terms, provisions, or covenants of the Loan
Agreement, the Indenture or any of the other Indenture Agreements, regardless of
any knowledge thereof which the Collateral Agent, the Trustee, or any Noteholder
may have.
ARTICLE VI.
INSOLVENCY PROCEEDINGS
Section 6.01 DIP Financing. If the Parent, any of its Subsidiaries or any
Credit Party shall be subject to any Insolvency Proceeding and the Lender shall
desire, prior to the Discharge of Loan Agreement Secured Obligations, to permit
the use of cash collateral or to permit Parent, any of its Subsidiaries or any
Credit Party to obtain financing under Section 363 or Section 364 of Title 11 of
the United States Code or any similar provision under the law applicable to any
Insolvency Proceeding ("DIP Financing") to be secured by all or any portion of
the Collateral, then the Collateral Agent, on behalf of itself, the Trustee, and
the Noteholders, agrees that it will raise no objection to such use of cash
collateral or DIP Financing and will not request adequate protection or any
other relief in connection with its or their interest in any such Collateral
except to the extent specified in Section 6.02. To the extent the Liens securing
the Loan Agreement Secured Obligations are subordinated or pari passu with such
DIP Financing, the Collateral Agent, for and on behalf of itself, the Trustee,
and the Noteholders, hereby agrees that its Liens in the Collateral shall be
subordinated to such DIP Financing (and all obligations relating thereto) up to
(but not in excess of) the Maximum Lender Priority Debt Amount upon the terms
and conditions specified in this Agreement. Until the Discharge of Loan
Agreement Secured Obligations has occurred, the Collateral Agent, on behalf of
itself, the Trustee, and the Noteholders, agrees that none of them shall seek
relief from the automatic stay or any other stay in any Insolvency Proceeding in
respect of the Collateral and will not provide or offer to provide any DIP
Financing secured by a
18
Lien senior to or pari passu with the Liens securing the Loan Agreement Secured
Obligations, in each case unless the Lender otherwise has provided its express
written consent.
Section 6.02 No Contest. The Collateral Agent, on behalf of itself, the
Trustee, and the Noteholders, agrees that, prior to the Discharge of Loan
Agreement Secured Obligations, none of them shall contest (or support any other
Person contesting) (a) any request by the Lender for adequate protection, or (b)
any objection by the Lender to any motion, relief, action, or proceeding based
on Lender claiming that their interests in the Collateral are not adequately
protected or any other similar request under any law applicable to an Insolvency
Proceeding. Notwithstanding the foregoing, in any Insolvency Proceeding, if the
Lender is granted adequate protection in the form of additional collateral in
connection with any DIP Financing or use of cash collateral under Section 363 or
Section 364 of Title 11 of the United States Code or any similar law applicable
to any Insolvency Proceeding, then the Collateral Agent, on behalf of itself,
the Trustee, or any of the Noteholders, may seek or request adequate protection
in the form of a Lien on such additional collateral, which Lien hereby is and
shall be deemed to be subordinated to the Liens securing the Loan Agreement
Secured Obligations up to (but not in excess of) the Maximum Lender Priority
Debt Amount and such DIP Financing (and all obligations relating thereto) on the
same basis as the Lien Priority. In the event the Collateral Agent, on behalf of
itself, the Trustee, and the Noteholders, seeks or requests adequate protection
and such adequate protection is granted in the form of Liens in respect of
additional collateral, then the Collateral Agent, on behalf of itself, the
Trustee, and each of the Noteholders, agrees that the Lender also shall be
granted a Lien on such additional collateral as security for the Loan Agreement
Secured Obligations (and for any such DIP Financing) and that any Lien on such
additional collateral securing the Indenture Secured Obligations shall be
subordinated to the Liens in respect of such additional collateral securing the
Loan Agreement Secured Obligations and any such DIP Financing and any other
Liens granted to the Lender as adequate protection on the same basis as the
other Liens securing the Indenture Secured Obligations are subordinated to the
Loan Agreement Secured Obligations under this Agreement up to the Maximum Lender
Priority Debt Amount. All such Liens granted to the Lender or to the Collateral
Agent in respect of such additional collateral shall be subject to the Lien
Priority. Nothing contained herein shall prohibit or in any way limit the
Lender, prior to the Discharge of Loan Agreement Secured Obligations, from
objecting in any Insolvency Proceeding or otherwise to any action taken by the
Collateral Agent, the Trustee or any of the Noteholders, including the seeking
by the Collateral Agent, the Trustee or any Noteholder of adequate protection or
the asserting by the Collateral Agent, the Trustee or any Noteholder of any of
its rights and remedies under the Indenture Loan Documents or otherwise.
Section 6.03 Asset Sales. The Collateral Agent agrees, on behalf of
itself, the Trustee, and the Noteholders, that it will not oppose any sale
consented to by Lender of pursuant to Section 363(f) of Title 11 of the United
States Code (or any similar provision
19
in any other applicable Bankruptcy Law) so long as the proceeds of such sale are
applied in accordance with this Agreement.
Section 6.04 Enforceability. The provisions of this Agreement are intended
to be and shall be enforceable under Section 510 of Title 11 of the United
States Code. The Lender and the Collateral Agent, on behalf of itself, the
Trustee, and the Noteholders, each agrees that all distributions that the
Lender, the Collateral Agent, the Trustee, or any Noteholder receives in any
Insolvency Proceeding on account of the Collateral shall be held in trust by
such Person and turned over to the Lender for application in accordance with
Section 4.02 of this Agreement. To the extent that any amounts received by the
Lender, the Collateral Agent, the Trustee, or any Noteholder are paid over in
connection with this provision, the obligations owed by the Credit Parties to
such Person will be deemed to be reinstated to the extent of the amounts so paid
over.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Rights of Subrogation. The Collateral Agent agrees that no
payment or distribution to the Lender pursuant to the provisions of this
Agreement shall entitle the Collateral Agent, the Trustee, or any Noteholder to
exercise any rights of subrogation in respect thereof until the Discharge of
Loan Agreement Secured Obligations shall have occurred. Following the Discharge
of Loan Agreement Secured Obligations, the Lender agrees to execute such
documents, agreements, and instruments as the Collateral Agent, the Trustee or
any Noteholder may reasonably request to evidence the transfer by subrogation to
any such Person of an interest in the Loan Agreement Secured Obligations
resulting from payments or distributions to the Lender by such Person, so long
as all costs and expenses (including all reasonable legal fees and
disbursements) incurred in connection therewith by the Lender are paid by such
Person upon request for payment thereof.
Section 7.02 Further Assurances. The Parties will, at their own expense
and at any time and from time to time, promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that either Party may reasonably request, in order to protect any
right or interest granted or purported to be granted hereby or to enable the
Lender or the Collateral Agent to exercise and enforce its rights and remedies
hereunder; provided, however, that no Party shall be required to pay over any
payment or distribution, execute any instruments or documents, or take any other
action referred to in this Section 7.02 to the extent that such action would
contravene any law, order or other legal requirement, and in the event of a
controversy or dispute, such Party may interplead any payment or distribution in
any court of competent jurisdiction, without further responsibility in respect
of such payment or distribution under this Section 7.02.
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Section 7.03 Representations. The Original Lender represents and warrants
to the Collateral Agent that it has the requisite power and authority under the
Original Loan Agreement to enter into, execute, deliver, and carry out the terms
of this Agreement on behalf of itself and the Lenders under the Original Loan
Agreement. The Collateral Agent represents and warrants that it has the
requisite power and authority under the Indenture to enter into, execute,
deliver, and carry out the terms of this Agreement on behalf of itself, the
Trustee, and the Noteholders.
Section 7.04 Amendments. No amendment or waiver of any provision of this
Agreement nor consent to any departure by any Party hereto shall be effective
unless it is in a written agreement executed by the Collateral Agent and the
Lender, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
Section 7.05 Addresses for Notices. All demands, notices and other
communications provided for hereunder shall be in writing and, if to the
Collateral Agent, mailed or sent by telecopy or delivered to it, addressed to it
as follows:
HSBC Bank USA
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 212.525.1300
Attention: Issuer Services
With a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: 212.262.1910
Attn: Xxx Xxxxx
and if to the Lender, mailed, sent or delivered thereto, addressed to it as
follows:
Xxxxx Fargo Foothill, Inc.
Xxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: 617.523.1697
Attention: Business Finance Division Manager
With a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: 213.627.0705
Attention: Xxxx Xxxxxxx Hilson, Esq.
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or as to any party at such other address as shall be designated by such party in
a written notice to the other parties complying as to delivery with the terms of
this Section 7.05. All such demands, notices and other communications shall be
effective, when mailed, two business days after deposit in the mails, postage
prepaid, when sent by telecopy, when receipt is acknowledged by the receiving
telecopy equipment (or at the opening of the next business day if receipt is
after normal business hours), or when delivered, as the case may be, addressed
as aforesaid.
Section 7.06 No Waiver, Remedies. No failure on the part of any Party to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 7.07 Continuing Agreement, Transfer of Secured Obligations. This
Agreement is a continuing agreement and shall (i) remain in full force and
effect until the Discharge of the Loan Agreement Secured Obligations shall have
occurred and the Indenture Secured Obligations shall have been paid in full,
(ii) be binding upon the Parties and their successors and assigns, and (iii)
inure to the benefit of and be enforceable by the Parties and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), the Lender or the Collateral Agent, the Trustee, or any
Noteholder may assign or otherwise transfer all or any portion of the Loan
Agreement Secured Obligations or the Indenture Secured Obligations, as
applicable, to any other Person (other than Parent, any Credit Party or any
Affiliate of Parent and any Subsidiary of Parent or any Credit Party), and such
other Person shall thereupon become vested with all the rights and obligations
in respect thereof granted to the Lender or the Collateral Agent, the Trustee,
or any Noteholder, as the case may be, herein or otherwise.
Section 7.08 Governing Law: Entire Agreement. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New York
except as otherwise preempted by applicable federal law. This Agreement
constitutes the entire agreement and understanding among the Parties with
respect to the subject matter hereof and supersedes any prior agreements,
written or oral, with respect thereto.
Section 7.09 Counterparts. This Agreement maybe executed in any number of
counterparts, and it is not necessary that the signatures of all Parties be
contained on any one counterpart hereof, each counterpart will be deemed to be
an original, and all together shall constitute one and the same document.
Section 7.10 No Third Party Beneficiary. This Agreement is solely for the
benefit of the Parties (and their permitted assignees). No other Person
(including Parent,
22
any Credit Party or any Affiliate of Parent and any Subsidiary of Parent or any
Credit Party) shall be deemed to be a third party beneficiary of this Agreement.
Section 7.11 Headings. The headings of the articles and sections of this
Agreement are inserted for purposes of convenience only and shall not be
construed to affect the meaning or construction of any of the provisions hereof
Section 7.12 Severability. If any of the provisions in this Agreement
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement and shall not invalidate the Lien Priority or any
other priority set forth in this Agreement.
Section 7.13 Collateral Agent Status. Nothing in this Agreement shall be
construed to operate as a waiver by the Collateral Agent, with respect to the
Parent, any of its Subsidiaries, any Credit Party, the Trustee, or any
Noteholder, of the benefit of any exculpatory rights, privileges, immunities,
indemnities, or reliance rights contained in the Indenture or any of the other
Indenture Loan Documents. For all purposes of this Agreement, the Collateral
Agent may (a) rely in good faith, as to matters of fact, on any representation
of fact believed by the Collateral Agent to be true (without any duty of
investigation) and that is contained in a written certificate of any authorized
representative of the Parent or of the Lender, and (b) assume in good faith
(without any duty of investigation), and rely upon, the genuineness, due
authority, validity, and accuracy of any certificate, instrument, notice, or
other document believed by it in good faith to be genuine and presented by the
proper person. Parent and Lender expressly acknowledge that the subordination
and related agreements set forth herein by the Collateral Agent are made solely
in its capacity as Collateral Agent under the Indenture with respect to the
Units and the Notes issued thereunder and the other Indenture Loan Documents and
are not made by the Collateral Agent in its individual commercial capacity.
Section 7.14 Acknowledgment. Each of Parent and each Credit Party hereby
acknowledges that it has received a copy of this Agreement and consents thereto,
and agrees to recognize all rights granted thereby to the Lender and the
Collateral Agent and will not do any act or perform any obligation which is not
in accordance with the agreements set forth in this Agreement. Each of Parent
and each Credit Party further acknowledges and agrees that it is not an intended
beneficiary or third party beneficiary under this Agreement.
Section 7.15 VENUE; JURY TRIAL WAIVER.
(a) THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING
IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE
AND FEDERAL COURTS LOCATED IN THE CITY OF NEW YORK OR THE SOUTHERN DISTRICT OF
NEW YORK, PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
23
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT LENDER'S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE LENDER ELECTS TO BRING SUCH
ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH PARTY
HERETO WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 7.15.
(b) EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH PARTY HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER
AND IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 7.16 Intercreditor Agreement. This Agreement is the Intercreditor
Agreement referred to in the Indenture. If this Agreement or all or any portion
of either Party's rights or obligations hereunder are assigned or otherwise
transferred to any other Person, such other Person shall execute and deliver an
agreement containing terms substantially identical to those contained in this
Agreement.
24
IN WITNESS WHEREOF, the Lender, the Collateral Agent, the Parent and each
other Credit Party has caused this Agreement to be duly executed and delivered
as of the date first above written.
LENDER: XXXXX FARGO FOOTHILL, INC.,
a California corporation
By: /s/ Xxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: VP
COLLATERAL AGENT: HSBC BANK USA,
solely in its capacity as Collateral Agent
(and not individually)
By: /s/ Herawattee Alli
------------------------------------
Name: Herawattee Alli
Title: Corporate Trust Officer
Parent:
PHIBRO ANIMAL HEALTH CORPORATION, INC.,
a New York corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President & Chief Financial Officer
Subsidiaries:
PHIBRO ANIMAL HEALTH HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
PRINCE AGRIPRODUCTS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
PHIBRO-TECH, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
PHIBRO ANIMAL HEALTH U.S., INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
PHIBROCHEM, INC.,
a New Jersey corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
WESTERN MAGNESIUM CORP.,
a California corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
CP CHEMICALS, INC.,
a New Jersey corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
PHIBRO CHEMICALS, INC.,
a New York corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
