EXHIBIT 10.25
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
THIS COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT, dated as
of March 31, 2000, is entered into by and among XXXXXX SERVICES CORPORATION, a
Delaware corporation ("Parent") and each of Parent's Subsidiaries identified on
the signature pages hereof (such Subsidiaries, together with Parent, are
referred to hereinafter each individually as a "Debtor" and individually and
collectively, jointly and severally, "Debtors"), FOOTHILL CAPITAL CORPORATION, a
California corporation (in its individual capacity "FOOTHILL"), the Revolver
Agent on behalf of the Tranche A Claimants, the Revolver Agent on behalf of the
Tranche B Claimants, the Secured PIK/Term Agent on behalf of the Secured PIK
Claimants, and the Secured PIK/Term Agent on behalf of the Secured Term
Claimants, FOOTHILL, not in its individual capacity, but solely as collateral
agent for the Tranche A Lenders (the "Tranche A Collateral Agent"); FOOTHILL,
not in its individual capacity, but solely as collateral agent for the Tranche B
Lenders (the "Tranche B Collateral Agent"); FOOTHILL, not in its individual
capacity, but solely as collateral agent for the Secured Term Lenders (the "Term
Lender Collateral Agent)"; and FOOTHILL, not in its individual capacity, but
solely as collateral agent for the Secured PIK Lenders (the "PIK Lender
Collateral Agent"; and the Tranche A Collateral Agent, the Tranche B Collateral
Agent, the Term Lender Collateral Agent and the PIK Lender Collateral Agent are
referred to collectively as the "Collateral Agents").
WHEREAS, each Debtor other than the Revolver Guarantors is a
party to that certain Loan Agreement (the "Revolving Loan Agreement"), of even
date herewith, with the financial institutions and funds identified therein as
the "Lenders" (consisting of the Tranche A Lenders and the Tranche B Lenders as
defined herein) and Foothill as arranger and Revolver Agent pursuant to which
the Revolver Lenders have agreed to make certain financial accommodations to
Debtors.
WHEREAS, the Canadian Guarantors are party to the Canadian
Guaranty in favor of Revolver Agent and the Revolver Lenders and the Revolver
Guarantors are party to the Revolver Guaranty in favor of Revolver Agent and the
Revolver Lenders.
WHEEREAS, Parent is party to that certain Credit Agreement
(the "Secured PIK/Term Credit Agreement"), of even date herewith, with the
Persons party to the Secured PIK/Term Credit Agreement as lenders (consisting of
the Secured Term Lenders and the Secured PIK Lenders as defined herein), and
Canadian Imperial Bank of Commerce as administrative agent for the Secured PIK
Lenders and the Secured Term Lenders (collectively, the "Secured PIK/Term
Lenders"), pursuant to which the Secured PIK/Term Lenders have agreed to make
certain financial accommodations to Parent.
WHEREAS, each Debtor (other than Parent) has executed that
certain Subsidiary Guaranty (the "Secured PIK/Term Guaranty"), of even date
herewith, in favor of Secured PIK/Term Agent and the Secured PIK/Term Lenders
respecting certain obligations of Parent owing to the Secured PIK/Term Lenders
under the Secured PIK/Term Credit Agreement.
WHEREAS, each Canadian Guarantor has executed that certain
Canadian Secured PIK/Term Guaranty (the "Canadian Secured PIK/Term Guaranty"),
of even date herewith, in favor of Secured PIK/Term Agent and the Secured
PIK/Term Lenders respecting certain obligations of Parent owing to the Secured
PIK/Term Lenders under the Secured PIK/Term Credit Agreement.
WHEREAS, to induce the Revolver Lenders and the Secured
PIK/Term Lenders to make the financial accommodations provided to Debtors
pursuant to the Revolving Loan Agreement and the Secured PIK/Term Credit
Agreement, and to collateralize their respective obligations under the Revolving
Loan Agreement, the Secured PIK/Term Credit Agreement, the Canadian Guaranty,
the Revolver Guaranty, the Secured PIK/Term Guaranty, and the Canadian Secured
PIK/Term Guaranty, and in order for each Debtor to pledge, grant, transfer, and
assign to each of the Collateral Agents (acting individually and not jointly)
security interests in the Collateral (as hereinafter defined) to secure its
respective Secured Obligations (as hereinafter defined), as provided herein,
each Debtor other than the Canadian Guarantors has executed and delivered that
certain Security Agreement of even date herewith (the "Security Agreement"),
each Canadian Guarantor has executed and delivered that certain Canadian
Security Agreement of even date herewith (the "Canadian Security Agreement") and
each Non-Canadian Guarantor has executed and delivered the Revolver Guarantor
Security Agreement, in favor of Tranche A Collateral Agent, the Tranche B
Collateral Agent, the Term Lender Collateral Agent and the PIK Lender Collateral
Agent; and
WHEREAS, the parties hereto desire to document their agreement
as to the relative priority of the liens granted by the Debtors to each of the
Collateral Agents in the Collateral herein described, as well as other matters
dealing with the liens of the Collateral Agents against the Collateral and the
enforcement and administration of those liens.
NOW THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
each intending to be bound hereby, the parties hereto agree as follows:
1. Definitions: Construction.
a. As used herein, the following terms shall have the meanings
respectively set forth after each:
"Advance" shall have the meaning set forth in the Revolving Loan
Agreement.
"Affiliate" shall mean, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of that Person, whether through the ownership of voting securities, by
contract, or otherwise.
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"Agreement" means this Collateral Agency and Intercreditor Agreement,
as it may from time to time be amended, modified, supplemented or restated in
writing in accordance with the provisions hereof.
"Asset" means any interest of a Person in any kind of property or
asset, whether real, personal or mixed real and personal, or whether tangible or
intangible.
"Bankruptcy Code" means the federal bankruptcy law of the United States
as from time to time in effect, currently as Title 11 of the United States Code.
Section references to current sections of the Bankruptcy Code shall refer to
comparable sections of any revised version thereof if section numbering is
changed.
"Bonding Lien Intercreditor Agreement" means an intercreditor agreement
which is substantially in the form of Exhibit "A" of this Agreement.
"Business Day" means any weekday that commercial banks in general are
open for the transaction of commercial banking business in New York City, and
that any Collateral Agent is open for business at its principal place of
business.
"Canadian Guarantors" means (a) PSI, (b) PAS, (c) Nortru, Ltd., an
Ontario corporation, (d) Allies Staffing Ltd., an Ontario corporation, (e)
ServTech Canada Inc., an. Ontario corporation, (f) Xxxxxx Investment Corp., an
Ontario corporation, (g) Recyclage d'Aluminium Quebec Inc., a Canadian
corporation, and (h) ST Delta Canada, Inc., an Ontario corporation.
"Canadian Guaranty" means that certain Guaranty (governed by the laws
of Ontario) of even date with this Agreement, executed and delivered by the
Canadian Guarantors in favor of Revolver Agent, and for the benefit of the
Revolver Lenders.
"Canadian Secured PIK/Term Guaranty" shall have the meaning set forth
in the preamble to this Agreement.
"Canadian Security Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Claimants" means the Secured Term Claimants, the Secured PIK
Claimants, the Tranche A Claimants, and the Tranche B Claimants.
"Claims" means the Collateral Agent Claims, the Secured Term Claims,
the Secured PIK Claims, the Tranche A Claims, and the Tranche B Claims. Each
reference to each of the Collateral Agent Claims, the Secured Term Claims, the
Secured PIK Claims, the Tranche A Claims and the Tranche B Claims shall be a
reference to a separate class of claims.
"Closing Date" shall have the meaning set forth in the Revolving Loan
Agreement.
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"Collateral" means all Assets of Debtors or any of them now or
hereafter subject to a lien or security interest in favor of any Collateral
Agent for the benefit of all or part of Claimants, as their respective interests
lie, including but not limited to the Proceeds.
"Collateral Agents" shall have the meaning set forth in the preamble of
this agreement.
"Collateral Agent Claims" means any and all "claims" (used in its
broadest sense, as contemplated by and defined in Section 101(5) of the
Bankruptcy Code, but without regard to whether such claim would be disallowed
under the Bankruptcy Code) now or hereafter arising or existing under or
relating to this Agreement or any Security Document in favor of any Collateral
Agent or any Subagent acting as such.
"Collateral Agent Obligations" means any and all obligations of any one
or more of Debtors to any Collateral Agent or any Subagent acting as such with
respect to all or any part of the Collateral Agent Claims, including obligations
of payment and obligations of performance, whether joint, several, or joint and
several, whether fixed or indeterminate, due or not yet due, continent or
non-contingent, matured or unmatured, liquidated or unliquidated, or disputed or
undisputed, whether under a guaranty or otherwise, and whether arising under
contract, in tort, by law, or otherwise.
"Collections" means any collections of, on, or with respect to
Collateral, and any proceeds of any foreclosure, sale, exchange, disposition of,
or other realization upon any Collateral, received by any Collateral Agent, any
Subagent, any Representative, or any Claimant during any Formal Default Period.
"Cross-Default" means an Event of Default or Unmatured Event of Default
under the Underlying Transactional Documents pertaining to a class of Claims
that is premised upon, and that would not exist but for, (a) the existence of an
Event of Default or Unmatured Event of Default under the Underlying
Transactional Documents pertaining to a different class of Claims, (b) the
giving of a Formal Event of Default Notice by the Representative of a different
class of Claims, (c) the existence of a Formal Default Period based upon the
giving of a Formal Event of Default Notice by the Representative of a different
class of Claims, (d) the giving of notice by the Representative of a different
class of Claims of an election to accelerate the maturity of such Claims, or (e)
the giving of a notice to any Collateral Agent by a Debtor, or by a
Representative of a different class of Claims, pursuant to the first sentence of
the section hereof entitled "Defaults."
"Debtors" means Parent, and each of Parent's Subsidiaries identified on
the signature pages hereof.
"Domestic Subsidiaries" means those Persons listed on Schedule 1.
"Event of Default" means a Revolver Event of Default or a Secured
PIK/Term Event of Default.
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"Excess Cash on Hand" means cash on hand in the bank accounts of
Debtors and Cash Equivalents held by Debtors at any time to the extent in excess
of the average daily balance of cash on hand in the bank accounts of Debtors and
Cash Equivalents held by Debtors for the immediately preceding 60 calendar days.
"First Escrow" shall have the meaning set forth in Section 5.e. of this
Agreement.
"Foothill" shall have the meaning set forth in the preamble of this
Agreement.
"Forced Disposition Proceeds" means the Net Cash Proceeds of
dispositions under subsection (f) (dealing generally with dispositions of Assets
in connection with a condemnation proceeding or casualty loss covered by
insurance) of the definition of Permitted Dispositions in the Revolving Loan
Agreement and the Secured PIK/Term Credit Agreement and any other monies
received as payment for any loss under any insurance policy (other than.
liability insurance policies) or as payment of any award or compensation for
condemnation or taking by eminent domain, but, in each case, only to the extent
such Net Cash Proceeds or monies are not utilized to fund the cost of repairs,
replacements, or restorations as authorized under the section of this Agreement
entitled Distribution of Proceeds of Casualty Losses, Condemnation, etc.
"Foreign Asset Sales" shall have the meaning set forth in the Secured
PIK/Term Credit Agreement.
"Foreign Subsidiaries" means those Persons listed on Schedule 2.
"Foreign Subsidiary Proceeds" means (I) the Net Cash Proceeds received
by a Debtor from Foreign Asset Sales by non-Debtor foreign Subsidiaries of such
Debtor (but only to the extent that payment of any such Net Cash Proceeds as a
dividend or other equity distribution directly or indirectly to a Debtor would
not be in violation of applicable law in effect at the relevant time or the
organizational documents of such non-Debtor foreign Subsidiary or any other
contract restricting the payment of such dividend or distribution in effect on
the date hereof), (ii) in each case reduced by the amount of any taxes based
upon income or earnings that would be incurred by any Debtor or any other
Subsidiary as a result of such Net Cash Proceeds being distributed or dividended
to the relevant Debtor, (iii) but only to the extent that the aggregate amount
of all such Net Cash Proceeds, as reduced by such tax considerations, in any one
year period exceeds 51,000,000.
"Formal Default Period" means any period of time during which any
Formal Event of Default Notice is effective in accordance with the provisions
hereof relating to the giving and effectiveness of Formal Event of Default
Notices. A Formal Default Period also means any period of time commencing on a
Revolver Termination Date (other than as a result of the repayment in full of
the Revolver Obligations) and continuing thereafter until such time, if any, as
the Tranche A Claimants and the Tranche B Claimants have reinstated their
commitment to provide loans and other financial accommodations to Debtors. A
Formal Default Period also means any period of time commencing on an Insolvency
Date and
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continuing thereafter until such time, if any, as the underlying insolvency
proceeding has been dismissed or otherwise terminated.
"Formal Event of Default Notice" means a written notification given by
a Representative (on behalf of the Claimants represented by such Representative)
to each Collateral Agent and the other Representatives, in accordance with the
provisions hereof for the giving of notices, which written notification gives
specific and express notice to each Collateral Agent and the other
Representatives of the occurrence and continuance of an Event of Default under
the relevant Underlying Transactional Documents that relate to the Claims of the
Claimants represented by the Representative giving such notice, specifying in
reasonable detail the known particulars of such Event of Default; provided that
a written notification that otherwise would be a "Formal Event of Default
Notice" within the meaning of the foregoing definition shall not be a "Formal
Event of Default Notice" if it clearly states therein that it is not a Formal
Event of Default Notice.
"Indemnified Amount" means any amount payable by any Claimant to any
Collateral Agent or any Subagent (or recoverable by any Collateral Agent or any
Subagent from Collateral or proceeds of Collateral or Collections) pursuant to
the indemnity and reimbursement provisions of the section hereof entitled
"Indemnification of Collateral Agents by Claimants."
"Insolvency Date" shall mean the first date as of which any Collateral
Agent or the Revolver Agent shall have been given notice of the fact that any
Debtor has become the subject of any voluntary or involuntary bankruptcy,
insolvency, reorganization, receivership, liquidation, conservatorship, or like
proceeding, or has made a general assignment for the benefit of creditors.
"Intercreditor and Subordination Agreement" means an intercreditor and
subordination agreement which is substantially in the form of Exhibit "B" of
this Agreement.
"Junior Secured Lender Pre-Authorized Sales" shall mean sales which are
both: (I) authorized pursuant to subparagraphs (h) (dealing with scheduled
dispositions) and (I) (dealing generally with sales of Assets which do not
exceed $50 million in amount during any rolling 12 month period, and which do
not exceed $10 million in amount in connection with any single Asset sale or
series of related sales of Assets) of the definition of Permitted Dispositions
in the Secured PIK/Term Credit Agreement, and (ii) authorized by any consent, if
necessary, of the Revolver Lenders (which consent is to be given or withheld
under the provisions of the Revolver Loan Documents dealing with the making of
such decisions), but Junior Secured Lender Pre-Authorized Sales shall not
include the disposition of any assets in connection with the sale of the UK
Metals Shares.
"Junior Secured Lender Pre-Authorized Sales Proceeds" shall mean the
Net Cash Proceeds of the Junior Secured Lender Pre-Authorized Sales.
"Material Default" means an Event of Default that would not exist but
for the failure by any one or more Debtors to pay money due to one or more
Claimants or
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Representatives when due, whether principal, interest, fees, or otherwise, and
whether at maturity, following acceleration, or otherwise.
"Net Cash Proceeds" means the cash proceeds of a disposition of an
Asset or Assets, including cash proceeds from any non-cash consideration
received in connection with such a disposition, less all direct costs of such
sale or other disposition, including brokers' fees, other professional fees,
filing fees, recording fees and recording taxes (but not including taxes based
upon income or earnings incurred as a result of gain realized on the relevant
disposition) and the amount of any indebtedness secured by such Assets required
to be paid as a condition to such sale.
"Net UK Proceeds" shall have the meaning set forth in Section 5.e. of
this Agreement.
"Non-Canadian Guarantors" means Arc Dust Processing (Barbados) Limited,
a Barbados corporation, and Xxxxxx International Development Inc., a Barbados
corporation.
"Non-Debtor Party or Beneficiary" means, with respect to any Underlying
Transactional Document, (a) any Person that is a party thereto and that is not a
Debtor, and (b) any Person holding a Claim arising thereunder or related thereto
that is not a Debtor (without regard to whether such Claimant is a party
thereto).
"Obligations" means, collectively, the Collateral Agent Obligations,
the Secured Term Obligations, the Secured PIK Obligations, the Tranche A
Obligations, and the Tranche B Obligations.
"Parent" means Xxxxxx Services Corporation, a Delaware corporation.
"Permitted Distress Sales" shall have the meaning set forth in Section
5.c. of this Agreement.
"Person" shall mean and include natural persons, corporations, limited
partnerships, general partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts, or other organizations, irrespective of whether they are legal entities,
and governments and agencies and political subdivisions thereof.
"Phencorp Loan" means the outstanding amount of the loan (including
accrued interest) made available by Phencorp International Finance Inc. to
Xxxxxx Services (Europe) Limited pursuant to the terms of the loan agreement
dated January 23, 1997 between Phencorp International Finance Inc. and Xxxxxx
Services (Europe) Limited, as amended and as novated to Xxxxxx Enterprises Inc.
"PIK Lender Collateral Agent" shall have the meaning set forth in the
preamble of this Agreement.
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"PIK Loans" shall mean the senior secured accreting convertible loans
owed by Parent under the terms of the Secured PIK/Term Loan Documents.
"Plan of Reorganization" shall have the meaning set forth in the
Revolver Loan Documents.
"Prepetition Lenders" shall mean those entities holding Class 6 claims
under the Plan of Reorganization.
"Proceeds" means all present and future "proceeds" (as defined in the
UCC) of Collateral, whether or not received by any Debtor, including without
limitation insurance proceeds arising from or relating to Collateral.
"Receiver" means Ernst & Young Inc. in its capacity as receiver under
the Companies' Creditors Arrangement Act (Canada) and interim receiver under the
Bankruptcy and Insolvency Act (Canada).
"Representative" means the Revolver Agent or the Secured PIK/Term
Agent, as the case maybe.
"Revolver Agent" means Foothill in its capacity as agent under the
Revolver Loan Documents, or any successor Representative designated by the
Tranche A Claimants and Tranche B Claimants to the Tranche A Collateral Agent
and the Tranche B Collateral Agent, as the case may be, with a copy of any such
successor designation notice to be sent to Debtors and to the Representatives.
"Revolver Claimants" shall mean the "Lenders" (as defined in the
Revolving Loan Agreement).
"Revolver Commitments" shall mean the "Commitments" (as defined in the
Revolving Loan Agreement).
"Revolver Event of Default" means any defined event of default under
the Revolver Loan Documents (after giving effect to any applicable grace or cure
periods, and after the giving of any required notices).
"Revolver Guarantors" means any or all of the Canadian Guarantors or
the Non-Canadian Guarantors, as the context requires.
"Revolver Guarantor Security Agreement" means that certain Security
Agreement (governed by the laws of New York) executed and delivered by the
Revolver Guarantors in favor of (i) the Tranche A Collateral Agent and the
Tranche B Collateral Agent, for the benefit of the Revolver Lenders and (ii) the
Term Lender Collateral Agent and the PIK Lender Collateral Agent for the benefit
of the Secured PIK/Term Lenders.
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"Revolver Guaranty" means that certain General Continuing Guaranty
(governed by the laws of New York) executed and delivered by the Revolver
Guarantors in favor of Revolver Agent, and of each of the Revolver Lenders.
"Revolver Lender Pre-Authorized Sales" shall mean sales which are
authorized pursuant to subparagraphs (h) (dealing with scheduled dispositions)
and (i) (dealing generally with sales of Assets which do not exceed $25 million
in amount during any rolling 12 month period, and which do not exceed $5 million
in amount in connection with any single Asset sale or series of related sales of
Assets) of the definition of Permitted Dispositions in the Revolving Loan
Agreement, but not including the disposition of any assets in connection with
the sale of the UK Metals Shares.
"Revolver Lender Pre-Authorized Sales Proceeds" shall mean the Net Cash
Proceeds of the Revolver Lender Pre-Authorized Sales.
"Revolver Lenders" shall mean the Lenders, as defined in the Revolving
Loan Agreement.
"Revolver Loan Documents" means those documents and agreements
described on Schedule 3, as they may from time to time be amended, modified,
supplemented, restated, or replaced.
"Revolver Obligations" shall mean the "Obligations" (as defined in the
Revolving Loan Agreement) in a principal amount not to exceed $190,000,000, plus
all interest (to the extent accrued on principal of no more than $190,000,000),
fees, expenses and other amounts not consisting of principal when accrued,
whether or not those amounts have been converted to principal as a result of
making Advances under the Revolver Loan Documents in order to pay such amounts.
"Revolver Overlimit Obligations" shall mean the "Obligations" (as
defined in the Revolving Loan Agreement) in excess of the Revolver Obligations.
"Revolver Termination Date" shall mean the first Business Day following
the date, if any, as of which either the Tranche A Claimants or the Tranche B
Claimants shall have suspended or terminated their commitment to provide further
loans or other financial accommodations to Debtors; provided that, if a Revolver
Termination Date occurs as the result of a suspension by either the Tranche A
Claimants or the Tranche B Claimants of the provision of loans or other
financial accommodations to Debtors, and if the Tranche A Claimants and the
Tranche B Claimants shall have reinstated the Revolver Commitments within
fifteen (15) Business Days of having suspended them, then the Formal Default
Period that commenced on such Revolver Termination Date automatically shall
cease upon such reinstatement, retroactively, as if such Revolver Termination
Date never had occurred (and any shifts in priorities or rights to receive
Collections that would have been applicable during such Formal Default Period
shall not be applicable), provided, also, that the retroactive elimination of
such Formal Default Period shall not terminate or affect any other Formal
Default Period, or any rights or priorities premised thereon, that may exist as
the result of any other event or
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occurrence (except to the extent, if any, that such other Formal Default Period
is based solely upon the existence of a Cross-Default that is deemed cured,
waived, or rescinded pursuant to the provisions of the section hereof entitled
"Cross-Defaults," and that such Formal Default Period ceases to be effective
pursuant to the provisions of the section hereof entitled "Formal Event of
Default Notices; Effectiveness and Duration of Formal Default Periods");
provided, further, that if either the Tranche A Claimants or the Tranche B
Claimants suspend their Revolver Commitments and later reinstate them, but such
reinstatement does not occur within fifteen (15) Business Days, the subsequent
reinstatement still will have the effect of terminating the related Formal
Default Period that commenced on the related Revolver Termination Date, but such
reinstatement will not in that event be retroactive, will not affect any rights
that arose during such Formal Default Period, and will not terminate or affect
any other Formal Default Period, or any rights or priorities premised thereon,
that may exist as the result of any other event or occurrence (except to the
extent, if any, that such other Formal Default Period is based solely upon the
existence of a Cross-Default that is deemed cured, waived, or rescinded pursuant
to the provisions of the section hereof entitled "Cross-Defaults," and that such
Formal Default Period ceases to be effective pursuant to the provisions of the
section hereof entitled "Formal Event of Default Notices; Effectiveness and
Duration of Formal Default Periods"). All of the foregoing notwithstanding, a
"Revolver Termination Date" shall not be deemed to have occurred if the Tranche
A Claimants and the Tranche B Claimants are continuing to advance to Debtors on
a limited basis, such as against collections, or if the financial accommodations
from them to the Debtors have been replaced or refinanced by another lender.
"Revolving Loan Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Second Escrow" shall have the meaning set forth in Section 5.e. of
this Agreement.
"Secured Obligations" shall have the meaning set forth in the Security
Agreement.
"Secured PIK Claimant" means any Person at any time holding all or any
part of the Secured PIK Claims, including any successor, assignee, or subrogee
(but excluding any Debtor).
"Secured PIK Claims" means any and all "claims" (used in its broadest
sense, as contemplated by and defined in Section 101(5) of the Bankruptcy Code,
but without regard to whether such claims would be disallowed under the
Bankruptcy Code) now or hereafter arising or existing under or relating to the
Secured PIK/Term Loan Documents in favor of any Non-Debtor Party or Beneficiary
with respect to the PIK Loans provided for in the Secured PIK/Term Loan
Documents.
"Secured PIK Lenders" mean the holders of the Secured PIK Obligations.
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"Secured PIK Obligations" means any and all obligations of any one or
more of Debtors to any one or more of the Secured PIK Claimants with respect to
all or any part of the Secured PIK Claims, including obligations of payment and
obligations of performance, whether joint, several, or joint and several,
whether fixed or indeterminate, due or not yet due, contingent or
non-contingent, matured or unmatured, liquidated or unliquidated, or disputed or
undisputed, whether under a guaranty or otherwise, and whether arising under
contract, in tort, by law, or otherwise.
"Secured PIK/Term Agent" means Canadian Imperial Bank of Commerce, or
any successor Representative designated by the Secured Term Claimants and
Secured PIK Claimants to the Term Lender Collateral Agent and PIK Lender
Collateral Agent, with a copy of any such successor designation notice to be
sent to Debtors and to the Representatives.
"Secured PIK/Term Credit Agreement" shall have the meaning set forth in
the preamble to this Agreement.
"Secured PIK/Term Event of Default" means any defined event of default
under the Secured PIK/Term Loan Documents (after giving effect to any applicable
grace or cure periods, and after the giving of any required notices).
"Secured PIK/Term Guaranty" shall have the meaning set forth in the
preamble to this Agreement.
"Secured PIK/Term Lenders" shall have the meaning set forth in the
preamble of this Agreement.
"Secured PIK/Term Loan Documents" means those documents and agreements
described on Schedule 5, as they may from time to time be amended, modified,
supplemented, restated, or replaced.
"Secured Tern Claimants" means any Person at any time holding all or
any part of the Secured Term Claims, including any successor, assignee, or
subrogee (but excluding any Debtor).
"Secured Term Claims" means any and all "claims" (used in its broadest
sense, as contemplated by and defined in Section 101(5) of the Bankruptcy Code,
but without regard to whether such claims would be disallowed under the
Bankruptcy Code) now or hereafter arising or existing under or relating to the
Secured PIK/Term Loan Documents in favor of any Non-Debtor Party or Beneficiary
with respect to the "Term Loans" provided for in the Secured PIK/Term Loan
Documents.
"Secured Tern Lenders" means the holders of the Secured Term
Obligations.
"Secured Term Obligations" means any and all obligations of any one or
more of Debtors to any one or more of the Secured Term Claimants with respect to
all or any part of the Secured Term Claims, including obligations of payment and
obligations of performance, whether joint, several, or joint and several,
whether fixed or indeterminate, due or not yet due,
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contingent or non-contingent, matured or unmatured, liquidated or unliquidated,
or disputed or undisputed, whether under a guaranty or otherwise, and whether
arising under contract, in tort, by law, or otherwise.
"Security Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Security Documents" means all security agreements, assignments,
mortgages, deeds of trust, pledges, and other security documents, if any,
pursuant to which any one or more of Debtors have granted, or herewith or
hereafter grant, to any Collateral Agent, for the benefit of all or any part of
the Claimants, or to any Claimant or Claimants, or to any representative acting
on behalf of any one or more Claimants, a security interest in or lien on all or
any part of the Collateral to secure all or any part of the Obligations,
including those documents and agreements described on Schedule 4, as they may
from time to time be amended, modified, supplemented, restated, or replaced.
"Subagent" shall have the meaning provided in the section hereof
entitled "Authority of Collateral Agents to Act; Delegation to Subagents."
"Term Lender Collateral Agent" shall have the meaning set forth in the
preamble of this Agreement.
"Tranche A Advance Availability" shall have the meaning set forth in
the Revolving Loan Agreement.
"Tranche A Claimants" means any Person at any time holding all or any
part of the Tranche A Claims, including any successor, assignee, or subrogee
(but excluding any Debtor).
"Tranche A Claims" means any and all "claims" (used in its broadest
sense, as contemplated by and defined in Section 101(5) of the Bankruptcy Code,
but without regard to whether such claim would be disallowed under the
Bankruptcy Code) now or hereafter arising or existing under or relating to the
Revolver Loan Documents in favor of any Non-Debtor Party or Beneficiary with
respect to the Revolver Loan Documents (including Foothill) other than the
Tranche B Claims.
"Tranche A Collateral Agent" shall have the meaning set forth in the
preamble of this Agreement.
"Tranche A Commitment" shall have the meaning set forth in the
Revolving Loan Agreement.
"Tranche A Lenders" shall have the meaning set forth in the Security
Agreement.
"Tranche A Obligations" means any and all obligations of any one or
more of Debtors to any one or more of the Tranche A Claimants with respect to
all or any part of the
12
Tranche A Claims, including obligations of payment and obligations of
performance, whether joint, several, or joint and several, whether fixed or
indeterminate, due or not yet due, contingent or non-contingent, matured or
unmatured, liquidated or unliquidated, or disputed or undisputed, whether under
a guaranty, letter of credit reimbursement agreement, or otherwise, and whether
arising under contract, in tort, by law, or otherwise.
"Tranche B Availability" shall have the meaning set forth in the
Revolving Loan Agreement.
"Tranche B Claimants" means any Person at any time holding all or any
part of the Tranche B Claims, including any successor, assignee, or subrogee
(but excluding any Debtor).
"Tranche B Claims" means any and all "claims" (used in its broadest
sense, as contemplated by and defined in Section 101(5) of the Bankruptcy Code,
but without regard to whether such claim would be disallowed under the
Bankruptcy Code) now or hereafter arising, existing under or relating to the
Revolver Obligations that are payable to, or for the account of, or owed to, any
Tranche B Claimant or any other Person on account of the Tranche B Facility
(including any fees, costs, or expenses under the Revolver Loan Documents that
are identified to the Tranche B Facility).
"Tranche B Collateral Agent" shall have the meaning set forth in the
preamble of this Agreement.
"Tranche B Commitment" shall have the meaning set forth in the
Revolving Loan Agreement.
"Tranche B Lenders" shall have the meaning set forth in the Security
Agreement.
"Tranche B Obligations" means any and all obligations of any one or
more of Debtors to any one or more of the Tranche B Claimants with respect to
all or any part of the Tranche B Claims, including obligations of payment and
obligations of performance, whether joint, several, or joint and several,
whether fixed or indeterminate, due or not yet due, contingent or
non-contingent, matured or unmatured, liquidated or unliquidated, or disputed or
undisputed, whether under a guaranty, letter of credit reimbursement agreement,
or otherwise, and whether arising under contract, in tort, by law, or otherwise.
"UCC" means the Uniform Commercial Code of the State of New York, as in
effect from time to time.
"UK Metals" means Xxxxxx Services (Europe) Limited.
"UK Metals Shares" means all the issued and outstanding shares of UK
Metals.
"Underlying Transactional Documents" means the Revolver Loan Documents
and the Secured PIK/Term Loan Documents.
13
"Unmatured Event of Default" means an Unmatured PIK/Term Event of
Default or an Unmatured Revolver Event of Default.
"Unmatured PIK/Term Event of Default" means the occurrence of an event
that, with either the passage of time or the giving of notice, or both, would
constitute a Secured PIK/Term Event of Default.
"Unmatured Revolver Event of Default" means the occurrence of an event
that, with either the passage of time or the giving of notice, or both, would
constitute a Revolver Event of Default.
2. Construction. Any term used herein that is defined in the UCC shall
have the meaning ascribed to such term in the UCC, unless specifically otherwise
defined herein. Any capitalized term not defined herein shall have the meaning
ascribed to that term in the Revolver Loan Documents unless otherwise indicated.
Unless the context of this Agreement clearly requires otherwise, references to
the plural include the singular, references to the singular include the plural,
the part includes the whole, the terms "includes" and "including" are not
limiting, and the term "or" has 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. Section and schedule references are to this
Agreement unless otherwise specified. All schedules hereto are incorporated
herein by this reference.
3. Appointment of Collateral Agents. The Revolver Agent on behalf of the
Tranche A Claimants hereby appoints the Tranche A Collateral Agent as the
collateral agent for the Tranche A Claimants with respect to the Collateral and
the Security Documents and authorizes the Tranche A Collateral Agent to hold the
security interests in and liens upon the Collateral in favor of the Tranche A
Claimants in the Tranche A Collateral Agent's name for the benefit of the
Tranche A Claimants.
The Revolver Agent on behalf of the Tranche B Claimants hereby appoints
the Tranche B Collateral Agent as the collateral agent for the Tranche B
Claimants with respect to the Collateral and the Security Documents and
authorizes the Tranche B Collateral Agent to hold the security interests in and
liens upon the Collateral in favor of the Tranche B Claimants in the Tranche B
Collateral Agent's name for the benefit of the Tranche B Claimants.
The Secured PIK/Term Agent on behalf of the Secured PIK Claimants
hereby appoints the PIK Lender Collateral Agent as the collateral agent for the
Secured PIK Claimants with respect to the Collateral and the Security Documents
and authorizes the PIK Lender Collateral Agent to hold the security interests in
and liens upon the Collateral in favor of the Secured PIK Claimants in the PIK
Lender Collateral Agent's name for the benefit of the Secured PIK Claimants; and
The Secured PIK/Term Agent on behalf of the Secured Term Claimants
hereby appoints the Term Lender Collateral Agent as the collateral agent for the
Secured Term Claimants with respect to the Collateral and the Security Documents
and authorizes the Term
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Lender Collateral Agent to hold the security interests in and liens upon the
Collateral in favor of the Secured Term Claimants in the Term Lender Collateral
Agent's name for the benefit of the Secured Term Claimants.
Further, the Claimants and their Representatives hereby authorize each
Collateral Agent to appoint Subagents as herein provided. Claimants and the
Representatives agree that all liens and security interests in Collateral
securing any of the Obligations shall be administered by and through the
respective Collateral Agent and such Collateral Agent's Subagents in accordance
with the provisions of this Agreement. If, as of the date hereof, or at any time
in the future, any Claimant or Representative at any time holds a lien or
security interest on Collateral in its own name which secures the repayment of
the Obligations, it agrees to assign such lien or security interest, without
warranty or recourse, to such Collateral Agent (to be held by such Collateral
Agent as the collateral agent for each of the Claimants or for their
Representatives on behalf of such Claimants).
4. Security Interests and Lien Priorities. The priorities of the security
interests and liens among the Claimants set forth in this section are subject to
prior perfected security interests or liens of Persons other than any Collateral
Agent or Claimants in the Collateral, if any, that may exist outside this
Agreement, as permitted under the Revolving Loan Agreement and the Secured
PIK/Term Credit Agreement. Notwithstanding (a) the date, manner or order of
perfection of the security interests and liens, and whether or not such security
interest and liens are perfected (but subject to the section hereof entitled
"Applicability of Priorities"), (b) the provisions of the UCC or any other
applicable law or decision, (c) the provisions of any contract (other than this
Agreement) in effect between any of the Claimants (or their Representatives on
their behalf), on the one hand, and, on the other hand, any one or more of
Debtors, and (d) whether any of the Claimants or any agent or bailee thereof
holds possession of any part or all of the Collateral, the following, as among
the Claimants, shall be the relative priority of the security interests and
liens of the Claimants, or of a Collateral Agent on their behalf, in the
Collateral:
(i) First, until payment in full of all Tranche A Claims and the
payment in full of the Collateral Agent Claims owing to the
Tranche A Collateral Agent (but not including the Revolver
Overlimit Obligations), all liens and security interests held by
the Tranche A Collateral Agent on behalf of itself and the
Tranche A Claimants;
(ii) Second, after payment in full of both the Tranche A Claims and
the payment in full of the Collateral Agent Claims owing to the
Tranche A Collateral Agent (but not including the Revolver
Overlimit Obligations), and until payment in full of all Tranche
B Claims and the payment in full of the Collateral Agent Claims
owing to the Tranche B Collateral Agent (but not including the
Revolver Overlimit Obligations), all liens and security interests
held by the Tranche B Collateral Agent on behalf of itself and
the Tranche B Claimants;
15
(iii) Third, after payment in full of the Tranche B Claims and the
payment in full of the Collateral Agent Claims owing to the
Tranche B Collateral Agent (but not including the Revolver
Overlimit Obligations), and until payment in full of the Secured
PIK Claims, the Secured Term Claims and the Collateral Agent
Claims owing to the Term Lender Collateral Agent and the PIK
Lender Collateral Agent, all liens and security interests in
favor of the Term Lender Collateral Agent and the PIK Lender
Collateral Agent on account of Collateral Agent Claims held by
them, and, on an equal and ratable basis, all liens and security
interests held by the Term Lender Collateral Agent on behalf of
the Secured Term Claimants and all liens and security interests
held by the PIK Lender Collateral Agent on behalf of the Secured
PIK Claimants, with the right to share ratably in proportion to
the amount of their respective Claims in any distribution of
Collections relating thereto;
(iv) Fourth, after payment in full of the Secured PIK Claims, the
Secured Term Claims and the Collateral Agent Claims owing to the
Term Lender Collateral Agent and the PIK Lender Collateral Agent,
and until payment in full of all Revolver Overlimit Obligations
owing to the Tranche A Lenders, all liens and security interests
in favor of the Tranche A Collateral Agent in favor of the
Tranche A Lenders on account of the Revolver Overlimit
Obligations; and
(v) Fifth, after payment in full of the Revolver Overlimit
Obligations owing to the Tranche A Lenders, all liens and
security interests in favor of the Tranche B Collateral Agent in
favor of the Tranche B Lenders on account of the Revolver
Overlimit Obligations.
For purposes of the foregoing, "payment in full" means payment of all
amounts owing under the Revolver Loan Documents or the Secured PIK/Term Loan
Documents, as applicable, according to the terms thereof, including loan fees,
service fees, professional fees, interest (and specifically including interest
accrued after the commencement of any Insolvency Proceeding), default interest,
interest on interest, and expense reimbursements, whether or not the same would
be or is ultimately allowed or disallowed in whole or in part in any Insolvency
Proceeding.
If the Claims of any class of Claimants holding a level of priority
with respect to the Collateral are fully paid in full and satisfied, then each
class of Claimants with a junior level of priority thereupon shall be elevated
one level of priority with respect to the Collateral for all purposes hereof.
5. Authorization for Voluntary Asset Sales, Release of Liens, and
Distribution of Sale Proceeds of Collateral in Connection With Dispositions.
Debtors shall promptly turn over to the Collateral Agent representing
the class of Claimants holding the first lien on or security interest in the
Collateral the Revolver Lender
16
Pre-Authorized Sales Proceeds, the Junior Secured Lender Pre-Authorized Sales
Proceeds, the Forced Disposition Proceeds, and the Net Cash Sale Proceeds of
Permitted Distress Sales and such Collateral Agent will promptly distribute such
proceeds in accordance with the terms of this Agreement. Debtors shall promptly
cause cash in an amount equal to the amount of Foreign Subsidiary Proceeds to be
paid to the Collateral Agent representing the class of Claimants holding the
first lien on or security interest in the Collateral and such Collateral Agent
will promptly distribute such proceeds in accordance with the terms of this
Agreement. Notwithstanding anything to the contrary contained in this Agreement
or any of the Underlying Transactional Documents, no Collateral Agent shall be
required to monitor, analyze or review any Foreign Asset Sales and no Collateral
Agent shall have any responsibility with respect to the distribution of Foreign
Subsidiary Proceeds unless and until such Foreign Subsidiary Proceeds are
delivered to such Collateral Agent for distribution under the terms of this
Agreement.
a. Distribution of Net Cash Sale Proceeds of Certain Asset Sales
Pre-Authorized by Revolver Lenders. Certain Foreign Subsidiary Proceeds and
Certain Forced Disposition Proceeds. The Debtors have covenanted, pursuant to
Section 7.4 of the Revolving Loan Agreement, that they will not dispose of any
of their Assets, other than pursuant to the "Permitted Dispositions", the
"Canadian Transactions" and the "Permitted Transactions", all as defined in the
Revolving Loan Agreement. The Revolver Lender Pre-Authorized Sales constitute a
portion of such Permitted Dispositions. So long as no Unmatured Event of Default
or Revolver Event of Default is outstanding, the Revolver Lender Pre-Authorized
Sale Proceeds, Foreign Subsidiary Proceeds and Forced Disposition Proceeds shall
be distributed: (i) first, to the Revolver Representative to pay the Revolver
Obligations in an amount necessary to create $5 million in Tranche A Advance
Availability and/or Tranche B Availability, unless either (x) the sum of Tranche
A Advance Availability, Tranche B Availability, and Excess Cash on Hand, after
giving effect to the distribution of the Revolver Lender Pre-Authorized Sales
Proceeds, Foreign Subsidiary Proceeds or Forced Disposition Proceeds, as the
case may be, is greater than $5 million on the date of receipt by Debtors of
such Revolver Lender Pre-Authorized Sale Proceeds, Foreign Subsidiary Proceeds
or Forced Disposition Proceeds, or (y) Excess Cash on Hand plus the average of
the sum of Tranche A Advance Availability and Tranche B Availability for the 10
Business Day period immediately preceding such date is greater than $5 million;
(ii) second, to the Secured PIK/Term Agent to pay the Secured Term Obligations
and the Secured PIK Obligations, with such payments to be applied to amounts
coming due thereon in the order of maturity in a maximum amount as to each
disposition of seventy five percent (75%) of the Revolver Lender Pre-Authorized
Sales Proceeds, Foreign Subsidiary Proceeds or Forced Disposition Proceeds, as
the case may be, and in a maximum amount of $18,750,000 in any rolling twelve
month period; and (iii) third, at the sole and exclusive direction and
instructions of the Representative of the class of Claimants (in accordance with
whatever governance procedure is applicable to their rights inter se) holding
the first lien on or security interest in such Collateral at the time of such
sale (with no reduction in the Revolver Commitments to the extent that any
proceeds are used to pay Revolver Obligations unless Revolver Lenders elect to
reduce the Revolver Commitments, in which case the Revolver Commitments will be
reduced (with the reductions as between the Tranche A Commitments and the
Tranche B Commitments to be as provided in the Revolver
17
Loan Documents) to the extent the Net Cash Proceeds of such sale are utilized to
pay principal of the Revolver Obligations, or such lesser amount specified by
the Revolver Lenders). Any Revolver Lender Pre-Authorized Sales Proceeds,
Foreign Subsidiary Proceeds or Forced Disposition Proceeds not distributed under
this subparagraph a, shall be distributed under subparagraph b or subparagraph
c, below.
b. Distribution of Net Cash Sale Proceeds of Certain Asset Sales
Pre-Authorized by Secured Term Lenders and Secured PIK Lenders, Certain Foreign
Subsidiary Proceeds and Certain Forced Disposition Proceeds. The Debtors have
covenanted, pursuant to Section 6.04 of the Secured PIK/Term Credit Agreement,
that they will not dispose of any of their Assets, other than pursuant to the
"Permitted Dispositions", the "Canadian Transactions" and the "Permitted
Transactions", all as defined in the Secured PIK/Term Credit Agreement. The
Junior Secured Lender Pre-Authorized Sales constitute a portion of such
Permitted Dispositions. So long as no Unmatured Revolver Event of Default or
Revolver Event of Default is outstanding, the Junior Secured Lender
Pre-Authorized Sales Proceeds, together with any Revolver Lender Pre-Authorized
Sales Proceeds, Foreign Subsidiary Proceeds and Forced Disposition Proceeds not
distributed under the preceding subparagraph a, in a maximum aggregate amount of
$25 million in any rolling twelve month period, shall be distributed at the sole
and exclusive direction and instructions of the Representative of the class of
Claimants (in accordance with whatever governance procedure is applicable to
their rights inter se) holding the first lien on or security interest in such
Collateral at the time of such sale (with no reduction in the Revolver
Commitments to the extent that any proceeds are used to pay Revolver Obligations
unless Revolver Lenders elect to reduce the Revolver Commitments, in which case
the Revolver Commitments will be reduced (with the reductions as between the
Tranche A Commitments and the Tranche B Commitments to be as provided in the
Revolver Loan Documents) to the extent the Net Cash Proceeds of such sale are
utilized to pay principal of the Revolver Obligations, or such lesser amount
specified by the Revolver Lenders). Any Revolver Lender Pre-Authorized Sales
Proceeds, Junior Secured Lender Pre-Authorized Sales Proceeds, Foreign
Subsidiary Proceeds or Forced Disposition Proceeds not distributed under this
subparagraph b, shall be distributed under subparagraph c, below.
c. Permitted Distress Sales; Distribution of Undistributed Proceeds. If
a Revolver Event of Default is outstanding, any consent required under the terms
of the Underlying Transactional Documents to Revolver Lender Pre-Authorized
Sales or Junior Secured Lender Pre-Authorized Sales shall be given or withheld
at the sole and exclusive direction and instructions of the Representative of
the class of Claimants (in accordance with whatever governance procedure is
applicable to their rights inter se) holding the first lien on or security
interest in the Collateral (if such consent is given, "Permitted Distress
Sales"). No less than 75% of the Revolver Lender Pre-Authorized Sales Proceeds,
Junior Secured Lender Pre-Authorized Sales Proceeds, Foreign Subsidiary Proceeds
or Forced Disposition Proceeds not distributed under subparagraphs a or b, above
(either because the maximum amounts under such subparagraphs have been exceeded
or because such proceeds have been received during the existence of an Unmatured
Revolver Event of Default or Revolver Event of Default) and Net Cash Proceeds of
such Permitted Distress Sales shall be applied to the Claims held by the lender
group holding the first lien on or security interest in such Collateral at the
time of the receipt of such proceeds (with a commensurate reduction in the
Revolver Commitments (with
18
the reductions as between the Tranche A Commitments and the Tranche B
Commitments to be as provided in the Revolver Loan Documents) to the extent such
proceeds are utilized to pay principal of the Revolver Obligations), until such
Claims are paid in full. Such lender group shall determine the distribution of
the remaining 25% of such proceeds.
d. Deemed Consent to Release of Liens in Connection with Approved Asset
Sales. No sale of Assets authorized as a Revolver Lender Pre-Authorized Sale,
Junior Secured Lender Pre-Authorized Sale or Permitted Distress Sale
(collectively, "Permitted Sales") shall constitute an Unmatured Event of Default
or an Event of Default. Each class of Claimants and their respective
Representatives shall be deemed to have instructed each applicable Collateral
Agent to release its liens as to the assets subject to Permitted Sales and to
take such other actions as are necessary or desirable to facilitate the
Permitted Sales. Collateral Agents are hereby granted a power of attorney from
the Revolver Claimants, the Secured PIK Claimants and Secured Term Claimants,
and their respective Representatives authorizing the applicable Collateral Agent
to release the liens and security interests of the Tranche A Collateral Agent,
the Tranche B Collateral Agent, the Secured PIK Collateral Agent and Secured
Term Collateral Agent in any assets subject to any Permitted Sale.
e. Distribution of Proceeds of Sale of Certain United Kingdom
Operations. This paragraph applies only to the extent that no Unmatured Revolver
Event of Default or Revolver Event of Default is existing at the time of such
sale. Notwithstanding Subsection 5.a. and Subsection 5.b. of this Agreement, the
net cash proceeds of the sale of the UK Metals Shares, together with the
proceeds from the repayment of the Phencorp Loan, that are received by the
Receiver no later than July 31, 2000 (collectively the "Net UK Proceeds"), when
distributed by the Receiver, plus, without duplication, the funds released from
the First Escrow and Second Escrow (as defined below) when released, shall be
distributed to the Secured PIK/Term Representative on account of the Secured
Term Obligations with such payments to be applied to the amounts coming due
thereon in the order of maturity. The Net UK Proceeds are estimated to be
approximately 31,000,000 British Pounds, less adjustments and closing costs
currently estimated at approximately $1,500,000. The relevant purchase agreement
currently provides for an escrow to be funded in the amount of 500,000 British
Pounds in order to pay potential post-closing adjustments to the purchase price
if the net assets of UK Metals are less than 17,500,000 British Pounds (the
"First Escrow"). In addition, a second escrow will be established (the "Second
Escrow") involving only Debtors and the Term Lender Collateral Agent (and not
the purchaser of the UK Metals Shares) to be funded in the amount of 1,200,000
British Pounds from the Net UK Proceeds for the purpose of paying post-closing
adjustments to the purchase price if the net assets of UK Metals are less than
17,500,000 British Pounds and if the First Escrow is insufficient to cover such
adjustments. Funds in the Second Escrow shall be released to the purchaser of
the UK Metals Shares or the Secured PIK/Term Representative, as applicable, at
the same time as funds are released from the First Escrow. The amount of any
post-closing adjustments to the purchase price in excess of the amounts in the
First Escrow and the Second Escrow will be paid by Debtors to Purchaser. Debtors
shall cause any amounts in excess of $6,000,000 (which amount is net of the
amount that Xxxxxx Services Corp. contributed to PSC (Europe) Limited to
purchase assets of UK Metals which are not included in the sale to the purchaser
of the UK Metals Shares) withdrawn from UK Metals or any of its Subsidiaries in
calendar year 2000, to be deposited into the
19
Second Escrow. Debtors shall cause any assets (other than assets sold in the
ordinary course) that are not sold to the purchaser of the UK Metals Shares, to
be transferred to PSC (Europe) Limited or other entity to receive the assets of
the United Kingdom operations not sold. After resolution and funding of the
post-closing adjustments referred to above, any amounts received by Debtors on
account of upward adjustments to the purchase price and any amounts remaining in
the First Escrow and Second Escrow shall be distributed to the Secured PIK/Term
Representative on account of the Secured Term Obligations with such payments to
be applied to amounts coming due thereon in the order of maturity.
6. Distribution of Collections Relating to Collateral During a Formal
Default Period. During the existence and continuance of any Formal Default
Period, any Collections shall be distributed among the Claimants (after
recouping, offsetting, or deducting any Indemnified Amounts due any Collateral
Agent or any Subagent that are entitled to be recouped, offset, or deducted (see
the section hereof entitled "Indemnity of Collateral Agents by Debtors")),
through their Representatives, in accordance with their respective priorities
therein as provided for in the section of this Agreement entitled "Security
Interest and Lien Priorities," with no distribution to a lower level of priority
until all Claims of the higher levels of priority are fully paid or otherwise
satisfied in accordance with the terms of the relevant Underlying Transactional
Documents except as expressly provided in the section of this Agreement entitled
"Authorization for Voluntary Asset Sales, Release of Liens, and Distribution of
Sale Proceeds of Collateral in Connection With Dispositions" or as otherwise
expressly provided herein. If any Collateral Agent (or a Subagent) shall have
distributed Collections due to Claimants of a particular class to the
Representative of such class for further distribution by such Representative to
such Claimants, such Collateral Agent (or such Subagent) shall be relieved from
all further responsibility for such Collections so distributed, and shall not be
responsible for the ultimate distribution of such Collections by such
Representative to such Claimants. If any Collateral Agent (or a Subagent) is
unable to ascertain to whom Collections should be distributed, such Collateral
Agent (or such Subagent) may commence an interpleader action or other
appropriate proceeding to resolve the question of who is entitled to such
Collections, with the expense of any such action or proceeding to be
reimbursable in the same manner as other expenses of the Collateral Agents (or a
Subagent) provided for hereinbelow.
7. Distribution of Proceeds of Casualty Losses, Condemnation, etc..
Debtors shall give each Collateral Agent prompt notice of any condemnation or
eminent domain proceedings or any material loss covered by insurance. The
Representative or Collateral Agent representing the class of Claimants holding
the first lien on or security interest in such Collateral shall have the
exclusive right to adjust any losses payable under any such insurance policies,
without any liability to Debtors whatsoever in respect of such adjustments;
provided, however, prior to the occurrence and continuance of a Revolver Event
of Default, Debtors shall have the right to adjust any losses payable under any
such insurance policies involving amounts of less than $5,000,000. Any monies
received as payment for any loss under any insurance policy mentioned above
(other than liability insurance policies) or as payment of any award or
compensation for condemnation or taking by eminent domain, shall (i) if no
Revolver Event of Default has occurred and is continuing and if such proceeds
are $5,000,000 or less, at the request of Parent, be paid over to Parent or the
applicable Debtor for application solely to
20
the cost of repairs, replacements, or restorations, and (ii) in all other cases,
any such monies received (which monies constitute Forced Disposition Proceeds)
shall be distributed as provided in Section 5 hereof entitled "Authorization for
Voluntary Asset Sales, Release of Liens, and Distribution of Sale Proceeds of
Collateral in Connection With Dispositions" or, at the option of the
Representative representing the class of Claimants holding the first lien on or
security interest in such Collateral, be disbursed under staged terms
satisfactory to such Representative for application solely to the cost of
repairs, replacements, or restorations. All repairs, replacements, or
restorations shall be effected within one year after the date of receipt of such
proceeds (or as otherwise agreed with such Representative) and shall be of a
value at least equal to the value of the items or property destroyed prior to
such damage or destruction; provided that if any portion of such proceeds are
not applied to the cost of repairs, replacements or restoration within such one
year period, such remaining portion not used shall be distributed as Forced
Disposition Proceeds under Section 5 hereof.
8. Authority of Collateral Agents to Act; Delegation to Subagents. Each
of the Claimants and each of their Representatives (acting on behalf of the
represented Claimants) hereby appoints and authorizes the Tranche A Collateral
Agent, the Tranche B Collateral Agent, the PIK Lender Collateral Agent and the
Term Lender Collateral Agent, as the case may be, to take such action as agent
on its behalf and to exercise such powers and discretion under this Agreement
and the Security Documents as are delegated to each Collateral Agent by the
terms hereof and thereof, together with such powers as are reasonably incidental
thereto. Without limiting the foregoing, each Claimant and each Representative
(acting on behalf of the Claimants it represents) hereby expressly authorizes
the respective Collateral Agent to execute and perform each Collateral Agent's
respective obligations under this Agreement and each of the Security Documents
to which such Collateral Agent is a party, and to exercise all rights, powers,
and remedies that such Collateral Agent may have hereunder or thereunder, or
that may be incidental thereto. As to any matters within the scope of such
Collateral Agent's agency and not expressly provided for by this Agreement or
the Security Documents, such Collateral Agent shall not be required to exercise
any discretion or take any action, but shall be required to act or to refrain
from acting with respect to any Collateral or with respect to the provisions of
the Security Documents relating to same (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Representative of
the class of Claimants that has a first priority interest hereunder with respect
to the Collateral, and (except as otherwise expressly provided herein) such
instructions shall be binding upon all of the Claimants, their Representatives,
and their successors, assigns, and participants; provided, however, that such
Collateral Agent shall not be required to take any action that exposes such
Collateral Agent to personal liability or that is contrary to this Agreement,
the Security Documents, or applicable law. Each Collateral Agent agrees to give
to each Representative prompt notice of each notice given to such Collateral
Agent by any Debtor or Representative pertaining to the Collateral or pursuant
to the terms hereof or of the Security Documents. Each Collateral Agent (or any
applicable Subagent) agrees, in connection with any notice of sale or
disposition of Collateral that is given by such Collateral Agent (or such
Subagent) pursuant to the UCC, concurrently to send to each Representative a
copy of such notice.
Further to facilitate the taking of actions with respect to Collateral,
or in pursuance of the terms of this Agreement and of the Security Documents,
any Collateral
21
Agent, acting with the consent of the relevant Representative(s), may, from time
to time, appoint one or more subagents (hereinafter, collectively, "Subagents")
with respect to all or a portion of the Collateral and/or with respect to
certain matters pertaining to all or a portion of the Collateral. Any such
Subagent, when acting within the scope of its subagency provided for herein,
shall have the rights and powers of the Collateral Agent that appointed such
Subagent, as are set forth in the document establishing such subagency, shall
enjoy the full benefits and protections of all provisions hereof applicable to
such Collateral Agent, and shall be subject to and responsible for the
obligations and duties of such Collateral Agent hereunder and under the
Underlying Transactional Documents insofar as they pertain to the rights being
exercised by such Subagent. Any reference in this Agreement to a Subagent shall
refer to a Subagent of such Collateral Agent appointed pursuant to this section
and acting within the scope of such subagency. Any reference in this Agreement
to a Collateral Agent, in the context of any provision relating to any
Collateral or the exercise of rights or remedies with respect thereto, shall be
deemed to refer also to any Subagent of such Collateral Agent that is appointed
hereunder with respect to such Collateral. To the extent that the rights,
powers, duties, responsibilities, or obligations of a Collateral Agent have been
delegated hereunder to a Subagent, such Collateral Agent may leave to such
Subagent the exercise (or non-exercise) and performance (or non-performance) of
such rights, powers, duties, responsibilities, and obligations; it shall not be
the duty or responsibility of such Collateral Agent to ensure that any such
Subagent in fact exercises or performs such rights, powers, duties,
responsibilities, or obligations; it shall not be the duty or responsibility of
such Collateral Agent to oversee, direct, assist, monitor, evaluate, supervise,
consult with, or report upon or with respect to the actions or inaction of, any
Subagent in connection with its exercise (or non-exercise) or performance (or
non-performance) of such rights, powers, duties, responsibilities, or
obligations; and such Collateral Agent shall not under any circumstances have
any responsibility or liability for the actions or inaction of any Subagent, or
any agent, employee or contractor of any Subagent, in connection with the
exercise (or non-exercise) or performance (or non-performance) of any of such
rights, powers, duties, responsibilities, or obligations. The Subagent
appointments provided for herein shall continue notwithstanding any resignation
or replacement of any Collateral Agent, and shall be binding upon any successor
Collateral Agent.
With respect to any Collateral within the scope of its subagency, each
Subagent of a Collateral Agent may act without the necessity of consulting with
or notifying such Collateral Agent. If a Subagent is acting in accordance with
this Agreement with respect to Collateral within the scope of its subagency,
none of any Collateral Agent, any other Representative, or any Claimant shall
interfere with the actions of such Subagent or take contrary actions with
respect to such Collateral. In connection with any disposition of Collateral by
a Subagent acting within the scope of its subagency (but only to the extent that
the Collateral Agent that appointed such subagent has such authority), such
Subagent shall have full power and authority to sign bills of sale or other
documents of transfer that effect a transfer of all right, title and interest of
Debtors in and to such Collateral free of all security interests and liens of
any Collateral Agent, the Representatives, and any Claimant (provided that such
security interests and liens shall attach to and continue in "proceeds" (as
defined in the UCC) of such Collateral). From time to time, if and as reasonably
requested by any
22
Subagent, any party hereto (including without limitation any Collateral Agent)
will sign such documents or agreements, and take such other steps (including
without limitation the surrender of stock certificates, the re-registration of
stock certificates in the name of Subagents, and the making of governmental
filings that are needed to effect transfers of stock), that are not inconsistent
with the provisions hereof or the terms of the applicable Underlying
Transactional Documents, as may be necessary or appropriate to confirm the
authority and ability of such Subagent to dispose of Collateral within the scope
of its subagency free of any security interests and liens of any Collateral
Agent, the Representatives, and the Claimants (provided that such security
interests and liens shall attach to and continue in "proceeds" (as defined in
the UCC) of such Collateral).
Subject to the terms of the applicable Security Documents, any
disposition of Collateral by any Collateral Agent or any Subagent acting within
the scope of its subagency shall effect a disposition of all right, title, and
interest of Debtors in such Collateral free of any security interest or lien of
any Collateral Agent, the Representatives, and the Claimants, with the rights of
the Claimants to attach to and continue in the "proceeds" (as defined in the
UCC) of such disposition. No disposition of Collateral shall be made by any
Collateral Agent or any Subagent unless notice of disposition shall have been
given by the party making the disposition in compliance with the Security
Documents and all applicable provisions of law.
9. Authorization for Collateral Agents to Enter Into Intercreditor
Agreement Regarding Bonding Claims. Representatives, on behalf of themselves and
the Claimants that they represent, hereby authorize and direct each Collateral
Agent to enter into a Bonding Lien Intercreditor Agreement, substantially in the
form of Exhibit "A" attached hereto and incorporated herein by reference,
providing for, among other things, the confirmation of the priority of the liens
and security interests of the Surety (as defined therein) over the liens and
security interests of the Collateral Agents as to Bonded Contract Assets and
Bonded Contract Receivables (both as defined therein), and the confirmation of
the priority of the liens and security interests of the Collateral Agents over
the liens and security interests of the Surety as to all other Collateral.
Representatives and Claimants further authorize each Collateral Agent to enter
into any necessary or desirable modifications and amendments to such
Intercreditor Agreement with the consent of the Representative of the class of
Claimants that has a first priority interest hereunder with respect to the
Collateral, provided such modifications and amendments are consistent with the
terms of this Agreement.
10. Authorization for Collateral Agents to Enter Into Intercreditor and
Subordination Agreement Regarding Prepetition Retained Debt Claims and
Subordination Agreement Regarding the Letters of Credit Issued in Favor of
Canadian Imperial Bank of Commerce. Representatives, on behalf of themselves and
the Claimants that they represent, hereby authorize and direct each Collateral
Agent to enter into an Intercreditor and Subordination Agreement, substantially
in the form of Exhibit "B" attached hereto and incorporated herein by reference,
confirming the priority of the liens and security interests of the Collateral
Agents as to the Collateral and the priority in right of payment of the Claims
over the liens and security interests of the Prepetition Lenders in the
Collateral and over the claims of the Prepetition Lenders against the Debtors,
to the extent set forth in such Intercreditor and Subordination Agreement.
Representatives and Claimants further authorize
23
each Collateral Agent to enter into any necessary or desirable modifications and
amendments to such Intercreditor Agreement with the consent of the
Representative of the class of Claimants that has a first priority interest
hereunder with respect to the Collateral. Representatives, on behalf of
themselves and the Claimants that they represent, hereby authorize and direct
each Collateral Agent to enter into that certain Subordination Agreement,
substantially in the form of Exhibit "C" attached hereto and incorporated herein
by reference, dealing with the rights of Canadian Imperial Bank of Commerce with
respect to letters of credit written in its favor, as well as its right to draw
upon letters of credit written in its favor.
11. Collateral Agents' Reliance. Without limiting any other provision
hereof that is protective of any Collateral Agent, except as otherwise
specifically provided in any Underlying Transactional Documents, each Collateral
Agent (and any Subagent) shall not be liable for any action taken or omitted to
be taken by it under or in connection with this Agreement or any Security
Document, except for its own gross negligence or willful misconduct. Without
limiting the generality of the foregoing, each Collateral Agent (and any
Subagent): (a) may treat any Person believed by it to be the holder of any Claim
as the holder thereof until such Collateral Agent (or such Subagent) receives
and accepts a written notification from such Person or its Representative,
notifying such Collateral Agent of the transfer or assignment of such claim to
an assignee, which notice shall identify the name and address of such assignee;
(b) may treat any Person believed by it to be the Representative of a class of
Claims as the continuing Representative of such class of Claims until such
Collateral Agent (or such Subagent) receives and accepts a notification from
such Person that a new Representative has been designated for such class of
Claims, which notice shall identify the name and address of such new
Representative; (c) may consult with legal counsel, independent public
accountants, and other advisors and experts selected by it, and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants, advisors, or experts;
(d) makes no warranty or representation to any Claimant and shall not be
responsible to any Claimant for any statements, warranties, or representations
made in or in connection with this Agreement or any Security Document; (e) shall
not have any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants, or conditions of this Agreement or any of the
Security Documents on the part of any Person party thereto or to inspect the
Collateral or any Asset (including the books and records) of any Debtor; (f)
shall not be responsible to any Claimant for the due execution, legality,
validity, enforceability, genuineness, sufficiency, or value of any Security
Document or any other instrument or document furnished pursuant hereto or
thereto, or any Collateral; (g) shall incur no liability under or in respect of
this Agreement, any Security Document, or any Collateral by acting upon any
notice, consent, certificate, or other instrument or writing (which may be sent
by telegram, cable, telefacsimile, or telex) believed by it to be genuine and
signed or sent by the proper Person; and (h) shall not, except as otherwise
provided below in this paragraph, have any duty to take actions to perfect liens
or security interests, or to monitor, continue in effect, or renew the
perfection thereof, and may choose, without incurring any liability hereunder,
not to perfect (or take steps to reperfect or continue in effect the perfection
of) particular liens or security interests if it deems such perfection not to be
appropriate or cost-effective (for example, by way of illustration but not by
way of limitation, if such perfection would be unduly expensive, complicated,
time-consuming, or impractical, or
24
if the relative value of the affected Collateral is not deemed sufficient to
warrant taking the steps that would be necessary to perfect (or to reperfect or
to continue or monitor perfection), or if any Collateral Agent (or any Subagent)
shall have agreed with Debtors or any of them to refrain from perfecting a lien
or security interest absent defined conditions (such as the occurrence of an
Event of Default)). The foregoing subpart (h) of this paragraph notwithstanding,
if any Collateral Agent (or a Subagent) has not taken action to perfect,
reperfect, or continue the perfection of, a lien or security interest in
specific Collateral, for any reason, and if the holders of the Claims with a
first, second or third priority in such Collateral wish for such lien or
security interest to be perfected, reperfected, or continued, and so instruct
their Representative, then such Representative in turn may by written notice to
the relevant Collateral Agent (or the relevant Subagent) request that the
relevant Collateral Agent (or the relevant Subagent) take specific actions
expressly delineated in such notice, with respect to specific Collateral
identified in such notice, to perfect, reperfect, or continue the perfection of,
liens or security interests therein; and, upon receipt by the relevant
Collateral Agent (or the relevant Subagent) of such written notice, the relevant
Collateral Agent (or the relevant Subagent) promptly shall either (x) take the
requested actions or similar appropriate actions, or (y) if the relevant
Collateral Agent (or the relevant Subagent) determines that the requested
actions are inappropriate (whether by reason of cost, immateriality,
impracticability, illegality, conflict with the Security Documents, or
otherwise), notify the Representative that gave such notice of such Collateral
Agent's (or such Subagent's) decision not to take such actions, and of the basis
of such decision. The foregoing subpart (h) of this paragraph notwithstanding:
(i) neither any Collateral Agent nor any Subagent affirmatively shall take any
action to terminate any existing financing statement, mortgage, or other
registration or filing that relates to the perfection of any security interest
or lien on Collateral, other than (A) with the written consent of all of the
Representatives, or (B) in conformity with and as permitted by the provisions of
the Security Documents, any other Underlying Transactional Document or this
Agreement, including, without limitation, in connection with any sale, transfer
or other disposition permitted by any Underlying Transactional Document (without
regard to subpart (h) of this paragraph); and (ii) neither any Collateral Agent
nor any Subagent affirmatively shall take any action to release any existing
security interest or lien on Collateral granted pursuant to any of the Security
Documents, other than (Q) with the written consent of all of the
Representatives, or (R) in conformity with and as permitted by the provisions of
the Security Documents, any Underlying Transactional Document or this Agreement,
(without regard to subpart (h) of this paragraph), including without limitation,
in connection with any sale, transfer or other disposition permitted by any
Underlying Transactional Document.
12. Acknowledgements Regarding Limitations on Collateral Subject to the
Perfected Liens of Collateral Agents. Without limiting any other provision
hereof that is protective of any Collateral Agent, each Claimant and each
Representative separately acknowledges that each Collateral Agent, after
consultation of certain of the Claimants and Debtors, has determined that
certain steps necessary and/or desirable to perfect the liens and/or enforcement
rights of such Collateral Agent should not be taken, because of time and expense
constraints and for other reasons, and that each Claimant and each
Representative has been advised as to the limitations upon the scope of such
Collateral Agent's perfected liens, has been advised as to steps such Collateral
Agent has determined should not be taken to perfect such Collateral
25
Agent's liens and security interests and/or enforcement rights, and has
independently concluded that Claimant is willing to proceed with the
transactions contemplated by this Agreement and the Underlying Transactional
Documents notwithstanding the limitations upon the perfection and/or enforcement
rights of each Collateral Agent as a result of such determinations. In general,
each Claimant acknowledges its familiarity with, and agreement to proceed
notwithstanding, the facts that: (i) Collateral Agents have relied upon the
Debtors to identify, inventory and provide valuations of the real and personal
properties owned by the Debtors, and relevant information regarding such real
and personal property, without obtaining independent corroboration or
verification of such information provided by the Debtors; (ii) Collateral Agents
have relied upon Debtors and counsel to Debtors to identify and provide relevant
information with respect to Debtor's ownership rights with respect to, and with
respect to prior liens and other encumbrances upon title to, the real and
personal properties owned by Debtors without obtaining independent searches of
such titles, liens and other encumbrances and without obtaining independent
information regarding the relevant information relating to such titles, liens
and other encumbrances; (iii) Collateral Agents have selectively honored the
requests of Debtors that Collateral Agents not expend the resources necessary to
perfect liens upon assets of the Debtors represented by Debtors to be of less
than material value given the magnitude of the Obligations; (iv) Collateral
Agents have honored the requests of Debtors that certain Affiliates of Debtors
not be financially responsible for the Obligations. In particular, each Claimant
acknowledges its familiarity with, and agreement to proceed notwithstanding each
of the matters set forth on Schedule 6 attached hereto with respect to such
matters.
13. Non-Reliance by Claimants. Each Claimant hereby acknowledges that
it has, independently of and without reliance upon any Collateral Agent, any
Subagent, any Representative, or any other Claimant, and based upon such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into the transactions evidenced by the Underlying
Transactional Documents, the Security Documents, and this Agreement. Each
Claimant also acknowledges that it will, independently of and without reliance
upon any Collateral Agent, any Subagent, any Representative, or any other
Claimant, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own independent credit decisions
in taking or omitting to take action under or in connection with the Claims.
None of any Collateral Agent, any Subagent, or any Representative shall be
required to keep itself informed as to the performance or observance by Debtors
or any other Persons of their obligations to any Claimant, or to inspect the
Collateral or the Assets or books and records of Debtors, of any of their
Affiliates, or of any other Person. Except for notices and other information
expressly required to be furnished to Claimants by any Collateral Agent (or any
Subagent) hereunder, the Collateral Agents and their Subagents shall not have
any duty or responsibility to provide any Claimant with any credit or other
information concerning the affairs, financial condition, or business of Debtors
or their Affiliates that may come into the possession of any Collateral Agent or
any Subagent or any of their Affiliates. Except as provided in the sentence next
following this sentence, the Collateral Agents (and their Subagents) shall not
be a trustee for, and shall not have any fiduciary or quasi-fiduciary duty to,
Claimants and shall not be liable to any Claimant except for gross negligence in
the performance of, or willful breach of, its undertakings hereunder.
26
The preceding sentence notwithstanding, for the limited purpose of holding and
distributing or applying Collections or any other amounts received pursuant to
the terms of this Agreement, each Collateral Agent and any Subagent of each
Collateral Agent shall hold such Collections in trust for the benefit of all
Claimants, in accordance with their rights and priorities provided for herein,
and shall act as a fiduciary of Claimants (or of their Representatives acting on
their behalf) with respect to such Collections.
14. Defaults. No Collateral Agent shall be deemed to have knowledge of
the occurrence of an Event of Default or an Unmatured Event of Default unless a
Collateral Agent has received notice from a Representative or a Debtor
specifying the occurrence of such Event of Default or an Unmatured Event of
Default and stating that such notice is a "Notice of Default" (or satisfying the
requirements of a Formal Event of Default Notice). In the event that a
Collateral Agent receives such a notice of the occurrence of an Event of Default
or an Unmatured Event of Default, such Collateral Agent shall give prompt notice
thereof to the Representatives. Such Collateral Agent shall (subject to any
overriding provision hereof, and subject in particular to the provisions hereof
pertaining to delegation of authority to Subagents) take such action pertaining
to any given Collateral with respect to such Event of Default or Unmatured Event
of Default as shall be directed by the Representative of the class of Claimants
that holds the first lien thereon or security interest therein (subject to the
terms of the applicable Underlying Transactional Documents), provided that,
unless and until such Collateral Agent shall have received such directions, such
Collateral Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem necessary to protect or preserve the
Collateral.
15. Formal Event of Default Notices; Effectiveness and Duration of
Formal Default Periods. Following the occurrence and during the continuance of
any Event of Default relating to a class of Claims, the Claimants with respect
to such class of Claims (in accordance with whatever governance procedure is
applicable to their rights inter se) may instruct (but are not required to
instruct, and may refrain or forebear from doing so if they so elect) their
Representative to give a Formal Event of Default Notice to each Collateral Agent
and to the other Representatives, and such Representative forthwith upon
receiving such an instruction shall give such Formal Event of Default Notice to
each Collateral Agent, the other Representatives in accordance with the
provisions hereof applicable to the giving of notices. A Formal Event of Default
Notice shall become effective commencing on the first Business Day following the
day that it is deemed given by the notice provisions of this Agreement and shall
remain effective so long as the Event of Default upon which it is premised has
not been cured or waived. It is possible for more than one Formal Event of
Default Notice to have been given and to be effective for concurrent or
overlapping periods. For all purposes of this Agreement, a "Formal Default
Period" shall be deemed to exist at any time that any Formal Event of Default
Notice remains in effect, or otherwise as provided in the definition of such
term contained in the section hereof entitled "Definitions: Construction." If
any Representative shall have previously given a Formal Event of Default Notice
and thereafter shall determine that the underlying Event of Default has been
cured or waived, or thereafter shall have been instructed by the requisite
Claimants of the class of Claims represented by such Representative (with
reference to the provisions of the relevant Underlying Transactional Documents
that govern the
27
rights of such Representative and such Claimants inter se) to rescind such
Formal Event of Default Notice, such Representative shall endeavor promptly to
notify each Collateral Agent, the other Representatives that such Formal Event
of Default Notice no longer remains effective.
16. Rights as a Claimant. With respect to any Claims due it, if any,
the Persons defined herein to be the Collateral Agents (and any successor Person
acting as a Collateral Agent and any Subagent), in its capacity as a Claimant
under the Underlying Transactional Documents (if and to the extent that it is or
may be or become a Claimant), shall have the same rights and powers hereunder as
any other Claimant and may exercise the same as though it were not a Collateral
Agent (or a Subagent), and the term "Claimant" or "Claimants" shall, unless
otherwise expressly indicated, include such Person (and any successor Person
acting as a Collateral Agent and any Subagent) in its individual capacity. The
Person defined herein to be a Collateral Agent (and any successor acting as a
Collateral Agent and any Subagent), as if it were not a Collateral Agent (or a
Subagent), and its Affiliates may (without having to account therefor to any
Claimant) accept deposits from, lend money to, act as trustee under indentures
of and generally engage in any kind of banking, trust, or other business with
any Debtor or any of their Affiliates and may accept fees and other
consideration from any Debtor or any of their Affiliates for services rendered
in connection with this Agreement or otherwise without having to account for the
same to Claimants.
17. Indemnification of Collateral Agents by Claimants. Each Claimant
hereby agrees to indemnify and hold its respective Collateral Agent (and its
Subagents) harmless (to the extent not reimbursed on demand by Debtors, except
that no such prior demand on Debtors need be made before enforcing the indemnity
contained in this section if any Collateral Agent or any Subagent is barred from
making such prior demand, such as by the operation of the automatic stay of the
Bankruptcy Code), in accordance with the sharing arrangement described below in
this section, from and against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments, demands, damages, costs,
disbursements, or expenses (including attorneys' fees and expenses) of any kind
or nature whatsoever which are imposed on, incurred by, or asserted against its
respective Collateral Agent (or any of its Subagents) in its capacity as such in
any way relating to or arising out of this Agreement or the Security Documents,
or as a result of any action taken or omitted to be taken by such Collateral
Agent (or any of its Subagents) pursuant to the provisions of this Agreement or
of the Security Documents; provided, however, that no Claimant shall be liable
for any portion of any such losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, damages, costs, disbursements,
or expenses resulting from the gross negligence or willful misconduct of any
Collateral Agent (or any Subagent). Without limiting the generality of the
foregoing, each Claimant authorizes its respective Collateral Agent (or its
Subagents) to deduct, recoup and offset from any Collections otherwise payable
to such Claimant and coming into the possession, custody or control of such
Collateral Agent (or such Subagent) any Indemnified Amount owing to such
Collateral Agent (and its Subagents), to the extent any Debtor would otherwise
be obligated to pay such amount. Without limiting the generality of the
foregoing, each Claimant hereby agrees, in accordance with the sharing
arrangement described below in this section, to reimburse its respective
Collateral Agent (and any of its Subagents) promptly following its demand for
any out-of-pocket expenses (including the fees
28
and expenses of any attorneys, accountants, advisers, or experts retained or
consulted by such Collateral Agent (or any of its Subagents) in accordance with
the provisions hereof) incurred by such Collateral Agent (or any of its
Subagents) in connection with the preparation, execution, delivery,
administration, modification, amendment, or enforcement (whether through
negotiations, legal proceedings, or otherwise) of, or legal advice in respect of
its rights or responsibilities under, this Agreement or the Security Documents,
to the extent that such Collateral Agent (or any of its Subagents) is not
reimbursed on demand for such amounts by Debtors (except that no prior demand
upon Debtors need be made before enforcing the indemnity contained in this
section if such demand would be barred, such as by the provisions of the
automatic stay of the Bankruptcy Code). Each Claimant's obligations under this
paragraph shall survive the termination of this Agreement and the discharge of
Debtors' Obligations to Claimants with respect to any indemnity claims then
existing or thereafter arising that are based on transactions, events, or
occurrences that transpired prior to such termination or discharge, provided,
that no indemnitor under this paragraph shall be required to indemnify any
Collateral Agent (or any Subagent) for matters relating solely to transactions,
events, or occurrences that transpired after such indemnitor had terminated its
participation hereunder in accordance with the provisions hereof. Any
Indemnified Amount due to any Collateral Agent (or any Subagent) shall be shared
by the Claimants represented by such Collateral Agent (to the extent not paid by
Debtors) ratably in proportion to their respective Claims represented by such
Collateral Agent; provided, that, for the purposes of making the foregoing
allocations and calculations, there shall be excluded any Claimant that has
fully terminated its participation hereunder in accordance with the provisions
hereof and that is no longer obligated to indemnify its respective Collateral
Agent (or any of its Subagents) under this paragraph [for any indemnity claims
arising after the date of the termination of such participation that are based
on transactions, events or occurrences that transpired after such termination or
discharge.] Any Indemnified Amount paid by any Claimant that Debtors are
obligated to reimburse but that has not yet been reimbursed by Debtors or
recouped from Collections shall be added to and shall become a part of the Claim
of such Claimant. To assist any Collateral Agent in recovering any Indemnified
Amounts due from Claimants of a particular class, the Representative of such
class of Claimants agrees, if and as requested in writing by such Collateral
Agent, to cooperate in promptly providing to such Collateral Agent, and promptly
to provide to such Collateral Agent upon such written request, any information
known to or in the possession of such Representative with respect to the
identities, locations, addresses, or telephone numbers of the Claimants of such
class, and Debtors hereby expressly consent to and authorize the providing of
such information by the Representatives to such Collateral Agent; provided that
nothing in this sentence shall imply any affirmative obligation of any
Representative to assist any Collateral Agent in collecting any Indemnified
Amount from any Claimant (beyond the provision of such information), nor shall
anything in this sentence imply that any Representative is promising to answer
for the obligation of any Claimant to pay any Indemnified Amount.
18. Failure to Act .
Except for action expressly required of the Collateral Agents or any
Subagent hereunder, each of the Collateral Agents and their Subagents shall in
all cases be fully justified in failing or refusing to act hereunder unless they
shall be indemnified to their reasonable
29
satisfaction by one or more Claimants or Representatives against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
19. No Joint Venture. Nothing contained in this Agreement, and no
action taken by any Claimant, any Representative, any Collateral Agent, or any
Subagent pursuant hereto or in connection herewith or pursuant to or in
connection with the Security Documents shall be deemed to constitute Claimants
or Representatives, together or with or without any Collateral Agent or any
Subagent, a partnership, association, joint venture, or other entity.
20. No Third Parties Benefited (Other Than Claimants). Except for all
of the Claimants, who are intended and third party beneficiaries of this
Agreement, no Person not a party hereto shall be an intended or third party
beneficiary hereof. Debtors are parties hereto for the sole purpose of
acknowledging the existence of, consenting to, and agreeing to be bound by, the
provisions hereof (including without limitation the provisions hereof that
impose payment, reimbursement, or indemnity obligations upon Debtors or any of
them in favor of the Collateral Agents and Subagents), but nothing herein shall
provide any Debtor with any rights other than or in addition to the rights of
Debtors provided for in the Underlying Transactional Documents, nor shall the
provisions hereof in any event be construed as modifying, or excusing any Debtor
from complying with, the provisions of the Underlying Transactional Documents.
Except as expressly set forth herein, nothing herein shall be construed to
provide any Claimant or Collateral Agent with any rights against any Debtor in
addition to or inconsistent with the rights of the Claimants provided for in the
Underlying Transactional Documents.
21. Resignation by or Removal of the Collateral Agents. Any Collateral
Agent may resign at any time as a Collateral Agent under this Agreement and the
Security Documents by giving five days written notice thereof to the relevant
Representatives and Debtors, and may be removed at any time for good cause
shown. An actual conflict between different classes of claimants shall be deemed
to be good cause by the relevant Representative. Upon any such resignation or
removal, the relevant Representative, after consultation with Parent, shall have
the right to appoint a successor to such Collateral Agent. If no such successor
Collateral Agent shall have been so appointed by any such Representative, or a
successor Collateral Agent appointed by any such Representative shall not have
accepted such appointment, in either case within thirty (30) days after the
retiring Collateral Agent's giving of notice of resignation or the
Representative's removal of the retiring Collateral Agent, then the retiring
Collateral Agent may, on behalf of the relevant Representative and Claimants,
appoint a successor to such Collateral Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any state thereof
having a combined capital and surplus of at least Fifty Million Dollars
($50,000,000). Subject to the sentence next following this sentence, upon
acceptance of any appointment as the relevant Collateral Agent hereunder by a
successor Collateral Agent, such successor Collateral Agent shall thereupon
succeed to and become vested with all of the obligations, rights, powers,
privileges, and duties of the retiring Collateral Agent, and the retiring
Collateral Agent shall assign to the successor Collateral Agent, without
warranty or recourse, all its rights hereunder and under the Security Documents,
including all rights with respect to liens on or security interests in
Collateral, and including all documentation necessary or appropriate to reflect
such assignment of record in all
30
appropriate filing offices and jurisdictions, and thereupon shall be discharged
from its duties and obligations under this Agreement and the Security Documents.
The foregoing sentence notwithstanding, if (A) any Collateral Agent has given
notice of resignation pursuant to the provisions of this section, (B) the
relevant Representative has not appointed a successor to such Collateral Agent
pursuant to the provisions of this section, or such successor Collateral Agent
has not accepted the appointment, (C) the resigning Collateral Agent has
attempted with reasonable diligence for at least 30 days to locate a successor
Collateral Agent that meets the criteria of this section and has been unable to
find such a successor Collateral Agent that is willing to accept such
appointment, and (D) not less than 60 days have elapsed since the giving by the
resigning Collateral Agent of its written notice of resignation, then, if all
such conditions exist, the resigning Collateral Agent may thereupon or
thereafter notify the Representatives and Debtors in writing that the resigning
Collateral Agent's resignation shall become effective on the fifth Business Day
following the date such notice is given, whereupon such resignation shall become
effective upon such fifth Business Day as aforesaid (unless rescinded by the
resigning Collateral Agent prior to such fifth Business Day) and the resigning
Collateral Agent, at such time as its resignation becomes effective as
aforesaid, shall be discharged from all further duties and obligations under
this Agreement and the Security Documents, except only that if a successor
Collateral Agent thereafter is appointed and accepts such appointment, the
resigned Collateral Agent shall cooperate in assigning to such successor
Collateral Agent, without warranty or recourse, and at no expense to the
resigned Collateral Agent, all its rights hereunder and under the Security
Documents, including all rights with respect to liens on or security interests
in Collateral, and including all documentation necessary or appropriate to
reflect such assignment of record in all appropriate filing offices and
jurisdictions. After any retiring Collateral Agent's resignation or removal
hereunder as a Collateral Agent, the provisions of this Agreement shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was a
Collateral Agent under this Agreement. Should any resignation of a Collateral
Agent become effective in accordance with the provisions of this section at a
time when no successor Collateral Agent has been appointed and has accepted such
appointment: (X) Nevertheless, the priorities of security interests and liens on
Collateral provided for herein shall continue to be fully applicable; and, (Y)
If requested in writing by any one or more of the Subagents, the retiring
Collateral Agent will assign, or partially assign, outstanding financing
statements, mortgages, and the like, and deliver possession of pledged
Collateral such as stock certificates, to the Subagents in such fashion as to
attempt, to the extent practicable, to cause each Subagent to become the
assignee and successor secured party of the resigning Collateral Agent with
respect to the Collateral as to which such Subagent was the subagent of the
resigning Collateral Agent in accordance with the terms hereof.
22. Notices. Subject to the last sentence of this section, all notices
given pursuant hereto shall be in writing and shall be given by First-Class
Mail, by hand delivery, by overnight courier service, by electronic mail (at
such email addresses as the parties may designate to each other in accordance
herewith), or by telefacsimile. Notices shall be deemed given on the earlier of
five Business Days after being deposited in the United States Mail, properly
addressed, with postage prepaid, or the date of actual receipt. The parties'
addresses for notice, and telephone and facsimile numbers, appear adjacent to
their signatures below.
31
Any party prospectively may change its address for notice, or its telephone or
facsimile number, by written notice to the other parties in compliance with this
section. ANY NOTICE REQUIRED OR PERMITTED TO BE GIVEN HEREUNDER TO FOOTHILL IN
ITS CAPACITY AS EACH OF THE COLLATERAL AGENTS SHALL NOT BE EFFECTIVE UNLESS A
COPY THEREOF CONCURRENTLY IS GIVEN TO FOOTHILL'S COUNSEL, XXXXXXX, XXXXXXX &
XXXXXXXX, 000 XXXXX XXXX XXXXXX, XXXXX 0000, XXX XXXXXXX, XXXXXXXXXX 00000, TO
THE ATTENTION OF XXXX XXXXXXX HILSON, ESQUIRE, AND XXXXXXX X. XXXXXXX, ESQUIRE,
WHOSE TELEPHONE NUMBER IS (000) 000-0000, AND WHOSE FACSIMILE NUMBER IS (213)
745-3345.
23. Enforcement Actions and Proceedings. All foreclosures, collections
and other enforcement actions and proceedings with respect to Collateral
(including after the commencement of a bankruptcy case or other Insolvency
Proceeding by any Debtor) shall be conducted at the sole and exclusive direction
and instructions of the Representative of the class of Claimants (in accordance
with whatever governance procedure is applicable to their rights inter se)
holding the first lien on or security interest in such Collateral by the
Collateral Agent representing such class of Claimants in accordance with the
terms of the Underlying Transactional Documents. Claimant or Representative
shall act independently to foreclose upon, collect, dispose of or otherwise
enforce rights with respect to the Collateral. Nothing in this Agreement shall
be construed to provide any Collateral Agent with the right to commence the
exercise of rights to foreclose or otherwise realize upon the Collateral at an
earlier date than provided in the Underlying Transactional Documents.
24. Effect of Bankruptcy. This Agreement shall be and remain
enforceable notwithstanding any bankruptcy or other insolvency proceeding by or
against Debtors. Except as set forth in the section herein entitled
"Applicability of Priorities", nothing herein shall affect or limit the right of
any Claimant or any Representative to file a proof of claim in any bankruptcy or
other insolvency proceeding by or against any Debtor, or to vote its Claim, or
to appear and be heard with respect to any matter, or to file motions or seek
relief from the automatic stay; provided that all provisions hereof with respect
to priorities of security interests and liens, distribution of Collections, and
limitations on who may exercise, or control the exercise of, remedies with
respect to Collateral, shall continue in full force and effect during any such
bankruptcy or insolvency proceeding.
25. Applicability of Priorities. The priorities provided for herein
with respect to security interests and liens are applicable only to the extent
that such security interests and liens are enforceable and have not been
avoided; if a security interest or lien is judicially determined to be
unenforceable or is judicially avoided with respect to one or more Claims or any
part thereof, the priorities provided for herein shall not be available to such
security interest or lien to the extent that it is avoided or determined to be
unenforceable. The foregoing notwithstanding, each Representative and Claimant
covenants and agrees for the benefit of each other Representative and Claimant
that it shall not directly or indirectly challenge, object to, or attack, or
directly or indirectly seek to minimize, impair, prime (including attempting to
obtain a lien senior in priority to the lien of any Collateral Agent in any
Insolvency Proceeding), disallow or avoid (including as to all of the foregoing
without
32
limitation, by proposing a plan of reorganization or other formal or informal
restructuring of the financial affairs of any Debtor that provides for any such
impairment, priming, disallowance, etc.) either: (i) any security interest or
lien to the extent that it secures any Claim or (ii) the entitlement of any
Claimant to recover the full amount of its Claim according to the terms stated
in the Underlying Transactional Documents relating to such Claim.
26. Waiver of Right to Require Marshaling. Each Claimant and each
Representative hereby expressly waives any right that it otherwise might have to
require any Collateral Agent or any other Claimant or Representative to marshal
Assets or to resort to Collateral in any particular order or manner, whether
provided for by common law or statute, provided that this paragraph shall not
override any specific provision of this Agreement. Neither any Collateral Agent
nor any Claimant nor Representative shall be required to enforce any guaranty or
any security interest or lien given by any Person other than a Debtor as a
condition precedent or concurrent to the taking of any enforcement action with
respect to the Collateral.
27. Perfection of Possessory Liens and Security Interests. For the
limited purpose of perfecting liens or security interests in those types or
items of Collateral in which a lien or security interest may be perfected by
possession, each Collateral Agent hereby appoints each other Collateral Agent
and each Claimant and Representative, and each Claimant and Representative
hereby appoints each other Claimant and Representative, as its agent for the
limited purpose of possessing on its behalf any such Collateral that may come
into the possession of such other Claimant from time to time, and each Claimant
agrees to act as each other's agent, and as such Collateral Agent's agent, for
such limited purpose of perfecting the other's lien or security interest by
possession through an agent, provided that no Claimant or Representative shall
incur any liability to such Collateral Agent or any other Claimant or
Representative by virtue of acting as another's agent hereunder, and any
Claimant or Representative may relinquish possession of Collateral in its
possession without the consent of any other Claimant, without the consent of
such Collateral Agent, and without incurring liability to such Collateral Agent
or any other Claimant or Representative, unless there is an express written
agreement to the contrary in effect between such Collateral Agent and the
affected Claimants or Representatives.
28. Amendments, Modifications, and Increases. Each Claimant and
Representative may enter into amendments, modifications, supplements, renewals,
replacements, restatements, or extensions of its Underlying Transactional
Documents with Debtors, without in any way affecting their respective rights and
obligations under this Agreement; provided that, neither subparagraphs (f), (g)
and (i) of the definition of Permitted Dispositions, nor the defined terms used
therein, nor Section 7.4, of the Revolving Loan Agreement may be amended without
the express written consent of the Secured PIK/Term Agent; provided further that
neither subparagraphs (f), (g) and (i) of the definition of Permitted
Dispositions, nor the defined terms used therein, nor Section 6.04, of the
Secured PIK/Term Credit Agreement may be amended without the express written
consent of the Revolver Agent; provided further that until all Revolver
Obligations have been fully terminated as provided in the following section, no
financial covenants,
33
cross-default provisions, change of control provisions or the like may be added
to the Secured PIK/Term Loan Documents in addition to such financial covenants,
cross default provisions, change of control provisions and the like contained
therein on the date of this Agreement, unless similar financial covenants,
cross-default provisions, change of control provisions or the like have been
added to the Revolving Loan Agreement and such financial covenants,
cross-default provisions and the like are less restrictive than those added to
the Revolving Loan Agreement (except change of control provisions which shall be
identical) by a margin (as determined on a basis acceptable to the Revolver
Agent) reflective of the margin for other financial covenants, cross-default
provisions and the like in place as of the date of this Agreement, and provided
further that until all Revolver Obligations have been fully terminated as
provided in the following section, the Secured PIK/Term Loan Documents may not
hereafter be amended so as to impose greater financial performance or payment
obligations (including, without limitation, provisions dealing with mandatory
prepayments from excess cash flow of Debtors) and/or more restrictive
limitations upon Debtors (by revision of the financial covenants, cross-default
provisions or the like or revision of the defined terms bearing upon the same),
unless the Revolving Loan Agreement has been amended to impose financial
performance or payment obligations and/or limitations upon Debtors which are
more restrictive (by a margin reflective of those in effect for other such
provisions as of the date of this Agreement and otherwise acceptable to
Revolving Agent) than the proposed amendments to the Secured PIK/Term Loan
Documents; and provided further that nothing herein constitutes a waiver by any
Claimant of the requirement that Debtors comply with the covenants of the
Underlying Transactional Documents. Should any Claimant cease extending further
credit to Debtors, this Agreement nevertheless shall continue in effect as to
the outstanding Claims of each Claimant until this Agreement is terminated as
set forth in the section hereof entitled "Termination."
29. Termination. This Agreement is a continuing agreement, and, unless
each Collateral Agent and all Claimants have specifically consented in writing
to its earlier termination, this Agreement shall remain in full force and effect
in all respects until such time as all Claims are fully paid in cash or
otherwise satisfied in full in accordance with the terms of the relevant
Underlying Transactional Documents, none of the Claimants has any further
commitment to extend further loans, letters of credit, or other financial
accommodations to any Debtor, and each of the Representatives has instructed the
relevant Collateral Agent to release or terminate the security interests and
liens in favor of such Collateral Agent to the extent that they secure Claims of
the group of Claimants represented by such Representative; except that any party
may terminate its participation in this Agreement, and (except as otherwise
provided hereinabove in the section hereof entitled "Indemnification of
Collateral Agents by Claimants" with respect to the survival under certain
circumstances of certain indemnities) shall have no further rights, duties,
obligations or liabilities following such termination (which shall not affect
the rights inter se of the remaining parties as to which this Agreement has not
been terminated), by giving notice of such termination to each other remaining
party hereto, if each of the following conditions is satisfied: (a) the party
giving such notice of termination shall have been paid in full with respect to
its Claims, or such Claims shall have been otherwise satisfied in accordance
with the terms of the relevant Underlying Transactional Documents; (b) the party
giving such notice of termination shall not have any further agreement or
commitment to extend further loans, consignments, letters of credit, or other
financial accommodations to any Debtor; (c) the party giving such notice of
termination shall not have
34
any non-contingent unsatisfied obligations or liabilities under this Agreement;
and (d) the party giving such notice of termination shall acknowledge in such
notice that it waives and relinquishes any claim of any security interest or
lien in any of the Collateral.
30. Modifications in Writing. No amendment, modification, supplement,
termination, consent, or waiver of or to any provision of this Agreement nor any
consent to any departure therefrom shall in any event be effective unless the
same shall be in writing and signed by or on behalf of the parties to be bound
thereby. Without limiting the generality of the foregoing, any Claimants or
Representatives may modify their rights inter se without the necessity of
obtaining the consent of any other Person, but any such modification of rights
shall not modify the rights or obligations hereunder of any Person not a party
to any such agreement. Any waiver of any provision of this Agreement, or any
consent to any departure from the terms of any provisions of this Agreement,
shall be effective only in the specific instance and for the specific purpose
for which given. If less than all of the parties hereto should enter into a
written agreement modifying their rights inter se, they will endeavor to provide
copies of such modification to all other parties hereto, but will have no
liability for any failure to do so.
31. Waivers; Failure or Delay. No failure or delay on the part of any
party hereto in the exercise of any power, right, remedy, or privilege under
this Agreement shall impair such power, right, remedy, or privilege or shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such power, right, remedy or privilege preclude any other or further exercise of
any other power, right, remedy or privilege. The waiver of any such right,
power, remedy, or privilege with respect to particular facts and circumstances
shall not be deemed to be a waiver with respect to other facts and
circumstances.
32. Cross-Defaults. If an acceleration of the maturity of the subject
loan, an Event of Default or an Unmatured Event of Default arising under an
Underlying Transactional Document pertaining to a class of Claims is cured,
waived, or rescinded, then any Cross-Defaults occasioned by such acceleration,
Event of Default or Unmatured Event of Default likewise conclusively shall be
deemed to have been cured, waived, or rescinded; and shall not affect any other
Event of Default or Unmatured Event of Default that is an independent default
and not merely a Cross-Default.
33. Headings. Section headings used in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any purpose or affect the construction of this Agreement.
34. GOVERNING LAW, CONSENT TO JURISDICTION, AND WAIVER OF RIGHT TO JURY
TRIAL. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK
AND THE VALIDITY OF THIS AGREEMENT, AND THE CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO, SHALL BE DETERMINED
UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. THE PARTIES HERETO CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF ANY
FEDERAL OR
00
XXXXX XXXXX XXXXXXX XX XXX XXXX XXXXXX, XXX XXXX, TO ADJUDICATE ANY LEGAL
PROCEEDING THAT RELATES TO THIS AGREEMENT, THE INTERPRETATION HEREOF, ANY
DISPUTE ARISING HEREUNDER, OR ANY CONTENTION THAT ANY PARTY HERETO HAS BREACHED
ANY PROVISION HEREOF. THE PARTIES HERETO EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING THAT RELATES TO THIS AGREEMENT, THE INTERPRETATION
HEREOF, ANY DISPUTE ARISING HEREUNDER, OR ANY CONTENTION THAT ANY PARTY HERETO
HAS BREACHED ANY PROVISION HEREOF, EVEN IF SUCH LEGAL PROCEEDING INCLUDES OTHER
CLAIMS THAT DO NOT RELATE TO THIS AGREEMENT.
35. Severability of Provisions. Any provision of this Agreement which
is illegal, invalid, prohibited, or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such illegality,
invalidity, prohibition, or unenforceability without invalidating or impairing
the remaining provisions hereof or affecting the validity or enforceability of
such provision in any other jurisdiction.
36. Complete Agreement. This Agreement is intended by the parties as a
final expression of their agreement regarding the subject matter hereof and is
intended as a complete statement of the terms and conditions of their agreement
regarding the subject matter hereof.
37. Successors and Assigns. This Agreement is binding upon and inures
to the benefit of the successors and assigns of the parties hereto. Each party
agrees to maintain a copy of this Agreement together with its copies of the
credit documents relating to its Claim. Each Claimant expressly reserves its
right to transfer or assign its Claim (subject to any limitation that may exist
in any such credit documents), in whole or in part, together with its rights
hereunder, provided that, prior to transferring or assigning any interest in its
Claim to any Person, each Claimant shall disclose to such Person the existence
and contents of this Agreement, shall provide to such Person a complete and
legible copy hereof, and shall advise such Person that such Claimant's security
interest in or lien on the Collateral, or its beneficial interest in any such
lien or security interest held in the name of a Collateral Agent, is subject to
the terms hereof.
38. Attorneys Fees and Disbursements. In the event of any dispute
concerning the meaning or interpretation of this Agreement that results in
litigation, or in the event of any litigation by a party to enforce the
provisions hereof, the prevailing party shall be entitled to recover from the
non-prevailing party or parties its reasonable attorneys fees and disbursements,
and any actual court costs incurred.
39. Authority of Representatives. Each Representative signing this
Agreement does so not only individually but also on behalf of each member of the
class of Claimants represented by such Representative. Each Representative
represents to each other party hereto that it has the authority to sign,
deliver, and perform this Agreement on behalf of each member of the class of
Claimants that it purports to represent, and to bind such class of Claimants
hereby. Any representation made herein by a Claimant that is not a signatory
hereto, and any
36
agreement or undertaking herein of any Claimant that is not a signatory hereto,
is made, agreed to, or undertaken on behalf of such Claimant by its
Representative.
40. No Abridgement of Subordination of Debt Provisions. Nothing herein
shall diminish, defeat, amend, modify or abridge any subordination of debt
agreement, turnover of payments or distributions agreement, waiver or
postponement of subrogation or reimbursement agreement, or other like agreement
that may have been made by any Claimant or any Representative in favor of any
other Person, it being intended that this Agreement relates only to priorities
of liens and security interests, distribution of Collections and other
"proceeds" (as defined in the UCC) of Collateral, control of the manner of
exercise of rights and remedies with respect to Collateral, and other related
matters expressly covered by the terms hereof, and does not affect any
contractual arrangements that may exist among some or all of the parties and/or
other Persons with respect to subordination of right to receive payment of debt,
or turnover of payments or distributions received in contravention of any such
Agreement.
41. No Implication That Secured Term Claims and Secured PIK Claims Are
Not Pari Passu. Nothing in this Agreement shall be construed or interpreted to
provide that the Claims of the Secured Term Claimants are anything other than on
a pari passu basis with the Claims of the Secured PIK Claimants; provided that
nothing in this section shall affect: (a) the provisions hereof with respect to
the priorities of security interests and liens, sharing of Collateral and
Collections, and the control of exercise of rights and remedies; (b) any
agreements that may exist among Claimants outside of this Agreement (without
implying that there are any); and (c) the potential effect of equitable
principles such as equitable subordination (without implying that such equitable
principles would or should be applicable in any circumstances).
42. Agreement to Enter Into Future Equivalent Agreements in Certain
Circumstances. Should any Claimant or class of Claimants transfer its or their
Claims, or should such Claims be refinanced, renewed, replaced or extended, it
is intended that this Agreement will bind successors, assigns and replacements
of the parties. Should it become necessary or desirable, however, to execute a
new agreement containing substantive terms equivalent to those of this Agreement
in all material respects (although the form of such new agreement or the parties
thereto may be different), to reflect such a realignment of parties, each party
hereto agrees to execute such a new agreement if requested to do so.
43. Counterparts. This Agreement may be executed and delivered in
counterparts, including facsimile counterpart signatures (to be followed in due
course by delivery of original signature counterparts), shall be effective when
each party has delivered its counterpart signature, and all counterparts taken
together shall be deemed a single original agreement.
44. Expenses of Collateral Agents and Subagents. Debtors, other than
the Canadian Guarantors, and each of them, jointly and severally, and the
Canadian Guarantors severally (and not jointly and severally), shall reimburse
any Collateral Agent or any Subagent on demand for any reasonable costs and
expenses incurred (with respect to each Canadian Guarantor, attributable to such
Canadian Guarantor or its specified Borrower) by such Collateral Agent(s) or any
Subagent in connection with the execution, delivery, administration,
37
amendment, workout, or enforcement of this Agreement or any of the Security
Documents, or in connection with the creation, attachment, perfection, release,
termination, monitoring, enforcement, or foreclosure of any lien or security
interest on any of the Collateral, including without limitation any costs and
expenses incurred in connection with any aspect of any bankruptcy or insolvency
proceeding affecting any Debtor (with respect to each Canadian Guarantor,
attributable to such Canadian Guarantor or its specified Borrower), and
including without limitation reasonable fees and disbursements of attorneys,
accountants, appraisers, consultants, and outside advisors and experts,
protective advances relating to Collateral, and other reasonable out-of-pocket
expenditures made pursuant to or permitted by this Agreement or the Security
Documents.
45. Indemnity of Collateral Agents and Subagents by Debtors. In
addition to the payment of expenses pursuant to the preceding section of this
Agreement Debtors, other than the Canadian Guarantors, and each of them, jointly
and severally, agree to, and the Canadian Guarantors severally agree to,
indemnify, exonerate, pay, and hold harmless the Collateral Agents and
Subagents, and the officers, directors, employees and agents of and counsel to
each of them (collectively the "Indemnitees" and individually an "Indemnitee")
from and against any and all liabilities, obligations, losses, damages, actions,
causes of action, judgments, suits, claims, costs, expenses, and disbursements
of any kind or nature whatsoever (including, without limitation, the reasonable
fees and disbursements of counsel for such Indemnitees in connection with any
investigative, administrative, or judicial proceeding, whether or not such
Indemnitee shall be designated a party thereto), which may be imposed on,
incurred by, or asserted against such Indemnitee, in any manner relating to or
arising out of the actions or inactions of any Collateral Agent or any Subagent
with respect to this Agreement or the Security Documents, or the consummation of
the transactions contemplated hereby and thereby (the "Indemnified
Liabilities"); provided, however, that Debtors shall have no obligation
hereunder with respect to Indemnified Liabilities arising from the gross
negligence or willful misconduct of any such Indemnitee. Each Indemnitee will
promptly notify Debtors of each event of which it has knowledge that may give
rise to a claim under the indemnification provisions of this section. If any
investigative, judicial, or administrative proceeding arising from any of the
foregoing is brought against any Indemnitee indemnified or intended to be
indemnified pursuant to this section, Debtors, to the extent and in the manner
directed by the Indemnitee or intended Indemnitee, will resist and defend such
action, suit, or proceeding or cause the same to be resisted and defended by
counsel designated by Debtors (which counsel shall be reasonably satisfactory to
the Indemnitee or intended Indemnitee). Each Indemnitee will use its best
efforts to cooperate in the defense of any such action, writ, or proceeding. To
the extent that the undertaking to indemnify, pay, and hold harmless set forth
in this section may be unenforceable because it is violative of any law or
public policy, Debtors shall make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities that is permissible under
the applicable law. The obligations of Debtors under this section shall survive
the termination of this Agreement and the Security Documents and the discharge
of Debtors' other obligations hereunder and thereunder. The indemnities set
forth herein are intended to include indemnification against the stated matters
notwithstanding the fact that such matters resulted from the negligence (other
than gross negligence) of an Indemnitee.
38
46. Credit Bids. In connection with any disposition of Collateral, the
relevant Collateral Agent or Subagent may credit bid Claims of any class only to
the extent that (a) the Representative of such class of Claims has authorized
such credit bid, and (b) if the Claims of such class are junior in priority to
the Claims of other class(es), the Representative(s) of such senior class(es)
shall have authorized the credit bidding of such senior class(es) of Claims.
47. Financial Assistance. Any other provision of this Agreement or any
of the Underlying Transactional Documents to the contrary notwithstanding, no
Canadian Guarantor shall have any direct liability under this Agreement in
respect of the obligations or default of any other Debtor that is not a
Specified Borrower (as defined in the Revolving Guaranty) of such Canadian
Guarantor. Nothing in this Agreement or any of the Underlying Transactional
Documents shall require or permit (i) the application of a payment made by a
Canadian Guarantor or (ii) the proceeds of collateral pledged by a Canadian
Guarantor, except on account of the obligation of such Canadian Guarantor.
48. Effective Date. Notwithstanding that this Agreement is expressed to
be dated as of March 31, 2000, it is agreed that this Agreement shall be deemed
to be delivered on and take effect as and from the Closing Date.
[Remainder of page left intentionally blank.]
39
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date first set forth above, intending to be legally bound hereby.
XXXXXX SERVICE CORPORATION
a Delaware Corporation, as one of the Debtors
By /s/ Xxxxx Xxxxx
---------------------------------------
Title Corporate Secretary
------------------------------------
Address for notices:
------------------------------------------
------------------------------------------
Attn: Chief Financial Officer
Telephone:
-----------------------
Facsimile:
-----------------------
GRS/LAKE XXXXXXX, LTD.,
a Louisiana limited partnership,
as one of the Debtors
By /s/ Xxxxx Xxxxx
---------------------------------------
Xxxxx Xxxxx
Corporate Secretary of
Allwaste Recovery Systems, Inc.
General Partner
Address for notices:
------------------------------------------
------------------------------------------
Attn: Chief Financial Officer
Telephone:
-----------------------
Facsimile:
-----------------------
GEORGIA RECOVERY SYSTEMS,
a Georgia partnership, as one of the Debtors
By /s/ Xxxxx Xxxxx
---------------------------------------
Xxxxx Xxxxx
Corporate Secretary of
Allwaste Recovery Systems, Inc.
General Partner
Address for notices:
------------------------------------------
------------------------------------------
Attn: Chief Financial Officer
Telephone:
-----------------------
Facsimile:
-----------------------
S-1
RESI ACQUISITION (DELAWARE) 21ST CENTURY ENVIRONMENTAL
CORPORATION, MANAGEMENT, INC. OF NEVADA,
a Delaware corporation a Nevada corporation
21ST CENTURY ENVIRONMENTAL ACE/ALL WASTE ENVIRONMENTAL
MANAGEMENT, INC. OF RHODE SERVICES OF INDIANA, INC.,
ISLAND, an Illinois corporation
a Rhode Island corporation
ADVANCED ENVIRONMENTAL ALLIES STAFFING LTD.,
SYSTEMS, INC., an Ontario corporation
a New York corporation
ALLWASTE TANK CLEANING, INC., ALL SAFETY AND SUPPLY INC.,
a Georgia corporation a Texas corporation
ALLWORTH, INC., ALLWASTE RECOVERY SYSTEMS, INC.,
an Alabama Corporation a Georgia corporation
ALRC, INC., APLC, INC.,
a Delaware corporation, a Delaware corporation,
ARC DUST PROCESSING (BARBADOS) XXXXXX SERVICES/BIRMINGHAM,
LIMITED, INC.,
a Barbados corporation an Alabama corporation
BURLINGTON ENVIRONMENTAL INC., BURLINGTON ENVIRONMENTAL INC.,
a Delaware corporation a Washington corporation
CAPPCO TUBULAR PRODUCTS USA, INC., CHEM-FAB, INC.,
a Georgia corporation a Texas corporation
CHEM-FREIGHT, INC., CHEMICAL POLLUTION CONTROL,
an Ohio corporation INC. OF NEW YORK - A 21ST CENTURY
ENVIRONMENTAL MANAGEMENT
COMPANY
a New York corporation
CHEMICAL POLLUTION CONTROL, CHEMICAL RECLAMATION
INC. OF FLORIDA - A 21ST CENTURY SERVICES, INC.,
ENVIRONMENTAL MANAGEMENT a Texas corporation
COMPANY
a Florida corporation
COUSINS WASTE CONTROL
CORPORATION,
an Ohio corporation
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
Corporate Secretary of the
above corporations
S-2
CYANOKEM INC., DEEP CLEAN, INC.,
a Michigan corporation a Michigan Corporation
DELTA MAINTENANCE, INC., XXXXXXX CORPORATION,
a Louisiana corporation a Nevada corporation
1ST HOLDING CORP., INDUSTRIAL SERVICES
a Colorado corporation TECHNOLOGIES, INC.,
a Colorado corporation
LUNTZ ACQUISITION (DELAWARE) JESCO INDUSTRIAL SERVIDCES, INC.,
CORPORATION, a Kentucky corporation
a Delaware corporation
LUNTZ CORPORATION, NORTHLAND ENVIRONMENTAL, INC.,
a Delaware corporation a Delaware corporation
NORTRU, INC., NORTRU, LTD.,
a Michigan corporation an Ontario corporation.
ONEIDA ASBESTOS ABATEMENT INC., ONEIDA ASBESTOS REMOVAL, INC.,
a Delaware corporation a New York corporation
XXXXXX AUTOMOTIVE, LTD., XXXXXX ANALYTICAL SERVICES, INC.,
a Pennsylvania corporation. an Ontario corporation
XXXXXX CHEMI-SOLV, INC., XXXXXX CORROSION SERVICES, INC.,
a Texas corporation a Nevada corporation
XXXXXX ENVIRONMENTAL SERVICES XXXXXX ENVIRONMENTAL SERVICES,
CORPORATION, INC.,
a Missouri corporation a Delaware corporation
XXXXXX HYDRO-ENGINEERRING & XXXXXX ENVIRONMENTAL
SERVICES, INC., (WASHINGTON) INC.,
a Texas corporation a Washington Corporation
XXXXXX INDUSTRIAL SERVICES (USA)
INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
Corporate Secretary of the
above corporations
S-3
XXXXXX INDUSTRIAL SERVICES XXXXXX INDUSTRIAL SERVICES OF
GROUP, INC., TEXAS, INC.,
a Delaware corporation a Texas corporation
XXXXXX INTERNATIONAL XXXXXX INVESTIIIENT CORP.,
DEVELOPMENT INC., an Ontario corporation
a Barbados corporation
XXXXXX/X.X. XXXXXXX, INC., XXXXXX MECHANICAL SERVICES
a Massachusetts corporation OF LOUISIANA, INC.,
a Louisiana corporation
XXXXXX METALS (NEW YORK), INC., XXXXXX METALS (USA), INC.,
a New York corporation an Ohio corporation
XXXXXX METALS, INC., XXXXXX METALS RECOVERY (USA)
an Ohio corporation INC.,
an Arizona corporation
XXXXXX OIL RECYCLING, INC., XXXXXX PLANT SERVICES, INC.,
a North Dakota corporation a Delaware corporation
XXXXXX RECLAMATION SERVICES, XXXXXX REFRACTORY SERVICES, INC.,
HOUSTON, INC., a Nevada corporation
a Texas corporation
XXXXXX SCAFFOLD CORPORATION, XXXXXX/SECO INDUSTRIES, INC.,
a Colorado corporation a Louisiana corporation
XXXXXX SERVICES INC., XXXXXX SERVICES
an Ontario corporation (PENNSYLVANIA), INC.,
a Pennsylvania corporation
XXXXXX SERVICES/ATLANTA, INC., XXXXXX SERVICES HAWAII, LTD.,
a Georgia corporation a Hawaii corporation
XXXXXX SERVICES CECATUR INC., XXXXXX SERVICES CECATUR.
a Delaware corporation HOLDINGS LLC,
a Delaware limited liability company
XXXXXX SERVICES (INTERNATIONAL), XXXXXX SERVICES/LOUISIANA,
INC., INC.,
a Delaware corporation a Louisiana corporation
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
Corporate Secretary of the
above corporations
S-4
XXXXXX SERVICES/MISSOURI, INC., XXXXXX SERVICES/MOBILE, INC.,
a Delaware corporation an Alabama corporation.
XXXXXX SERVICES/NORTH ATLANTIC, XXXXXX SERVICES/NORTH CENTRAL,
INC. a Delaware corporation INC., an Iowa corporation
XXXXXX SERVICES/OHIO, INC., XXXXXX SERVICES/OKLAHOMA, INC.,
an Ohio corporation a Oklahoma corporation
XXXXXX SERVICES PHENCORP XXXXXX SERVICES (PHENCORP) LLC,.
INTERNATIONAL INC., a Delaware limited liability company
a Delaware corporation.
XXXXXX SERVICES/SOUTH CENTRAL, XXXXXX SERVICES/SOUTHWEST, INC.,
INC., an Arizona corporation
a Colorado corporation
XXXXXX ST, INC., XXXXXX ST PIPING, INC.,
a Texas corporation a Texas corporation
XXXXXX TECHNICAL SERVICES, INC., XXXXXX TRANSPORTATION AND
a Texas corporation REMEDIATION, INC.,
a California corporation
XXXXXX XXXX INDUSTRIAL SERVICES,
INC., XXXXXX/XXXXXXX, INC.,
a California corporation a Delaware corporation
PIPING COMPANIES, INC., PIPING HOLDINGS CORP.,
an Oklahoma corporation an Oklahoma corporation
PIPING MECHANICAL CORPORATION, PSC ENTERPRISES, INC.,
a Colorado corporation a Delaware corporation
RECYCLAGE D'ALUMINIUM QUEBEC REPUBLIC ENVIRONMENTAL
INC./QUEBEC ALUMINUM RECYCLING INC., SYSTEMS (PENNSYLVANIA), INC.,
a Canadian corporation a Pennsylvania corporation
REPUBLIC ENVIRONMENTAL REPUBLIC ENVIRONMENTAL
RECYCLING (NEW JERSEY), INC., SYSTEMS (TRANSPORTATION
a New Jersey corporation GROUP), INC.,
a Pennsylvania corporation
REPUBLIC ENVIRONMENTAL
SYSTEMS (TECHNICAL SERVICES
GROUP), INC.,
a New Jersey corporation
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
Corporate Secretary of the
above corporations
S-5
RHO-CHEM CORPORATION, RMF GLOBAL, INC.,
a California corporation an Ohio corporation
RMF INDUSTRIAL CONTRACTING, SERV-TECH EPC, INC.,
INC., a Nevada corporation
a Michigan corporation
SERV-TECH INTERNATIONAL SALES, SERVTECH CANADA, INC.,
INC., a Canada corporation
U.S. Virgin Islands corporation
SERV-TECH SERVICES, INC., SOLVENT RECOVERY CORPORATION,
a Texas corporation a Missouri corporation.
TERMINAL TECHNOLOGIES, INC., ST DELTA CANADA, INC.,
a Texas corporation an Ontario corporation
TOTAL REFRACTORY SYSTEMS, INC., THERMALKEM, INC.,
a Nevada corporation a Delaware corporation
UNITED INDUSTRIAL MATERIALS,
INC.,
a Nevada corporation By: /s/ Xxxxx Xxxxx
---------------------------
Xxxxx Xxxxx
Corporate Secretary of the
above corporations
FOOTHILL CAPITAL CORPORATION, a
California corporation,
as the Revolver Agent
By /s/ Xxxxx Xxxxx
------------------------------
Title Vice President
------------------------------
Address for notices:
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Business Finance Division Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-6
RESOURCE RECOVERY RHO-CHEM CORPORATION,
CORPORATION, a California corporation
a Washington corporation
RMF GLOBAL, INC., RMF INDUSTRIAL CONTRACTING,
an Ohio corporation INC.,
a Michigan corporation
SERVTECH CANADA, INC., SERV-TECH EPC, INC.,
a Canada corporation a Nevada corporation
SERV-TECH INTERNATIONAL SALES, SERV-TECH SERVICES, INC.,
INC., a Texas corporation
U.S. Virgin Islands corporation
SOLVENT RECOVERY CORPORATION, ST DELTA. CANADA, INC.,
a Missouri corporation an Ontario corporation
TERMINAL TECHNOLOGIES, INC., THERIIZALILEM, INC.,
a Texas corporation a Delaware corporation
TOTAL REFRACTORY SYSTEMS, INC., UNITED INDUSTRIAL MATERIALS,
a Nevada corporation INC.,
a Nevada corporation
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
Corporate Secretary of the
above corporations
S-7
FOOTHILL CAPITAL CORPORATION, a
California corporation,
as the Revolver Agent
By /s/ Xxxxx Xxxxx
----------------------------------
Title Vice President
--------------------------------
Address for notices:
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Business Finance Division Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-8
CANADIAN IMPERIAL BANK OF
COMMERCE, as the Secured PIK/Term Agent
By /s/ X.X. Xxxxxx
------------------------------------
Title General Manager
---------------------------------
Address for notices:
Xxxxxxxx Xxxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Risk Management Division
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FOOTHILL CAPITAL CORPORATION, a
California corporation,
as Tranche A Collateral Agent
By /s/ Xxxxx Xxxxx
----------------------------------
Title Vice President
--------------------------------
Address for notices:
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Business Finance Division Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-9
CANADIAN IMPERIAL BANK OF
COMMERCE, as the Secured PIK/Term Agent
By /s/ X.X. Xxxxxx
-----------------------------------
Title General Manager
---------------------------------
Address for notices:
Xxxxxxxx Xxxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Risk Management Division
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FOOTHILL CAPITAL CORPORATION, a
California corporation,
as Tranche A Collateral Agent
By /s/ Xxxxx Xxxxx
----------------------------------
Title Vice President
--------------------------------
Address for notices:
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Business Finance Division Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10
FOOTHILL CAPITAL CORPORATION, a
California corporation,
as Tranche B Collateral Agent
By /s/ Xxxxx Xxxxx
----------------------------------
Title Vice President
--------------------------------
Address for notices:
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Business Finance Division Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-11
FOOTHILL CAPITAL CORPORATION, a
California corporation,
as PIK Lender Collateral Agent
By /s/ Xxxxx Xxxxx
----------------------------------
Title Vice President
--------------------------------
Address for notices:
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Business Finance Division Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-12
FOOTHILL CAPITAL CORPORATION, a
California corporation,
as Term Lender Collateral Agent
By /s/ Xxxxx Xxxxx
----------------------------------
Title Vice President
--------------------------------
Address for notices:
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Business Finance Division Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-13
