INTERCREDITOR AGREEMENT
Exhibit 10.19.5
Execution Version
THIS INTERCREDITOR AGREEMENT dated as of March 21, 2003 (as amended and in effect from time to time, this “Intercreditor Agreement”) is by and between Congress Financial Corporation, a Delaware corporation (“Congress”), in its capacity as the Revolving Loan Agent (as hereinafter defined), and The Renco Group, Inc., a New York corporation (“Renco Group”), in its capacity as the Term Loan Agent (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, pursuant to the Revolving Loan Documents (as hereinafter defined), the Revolving Loan Lenders (as hereinafter defined) have entered into financing arrangements with the Borrowers (as hereinafter defined), pursuant to which the Revolving Loan Lenders may, upon certain terms and conditions, make loans and advances and provide other financial accommodations to the Borrowers secured by certain assets and properties of the Borrowers and the Obligors (as hereinafter defined);
WHEREAS, pursuant to the Term Loan Documents (as hereinafter defined), the Term Loan Lenders (as hereinafter defined) have entered into financing arrangements with Doe Run (as hereinafter defined), pursuant to which the Term Loan Lenders may, upon certain terms and conditions, make loans and advances and provide other financial accommodations to Doe Run secured by certain assets and properties of Doe Run and the Obligors;
WHEREAS, pursuant to that certain Assignment and Acceptance (as hereinafter defined), Renco Group has been assigned all rights of Regiment Capital Advisors, L.L.C. (“Regiment”) under the Term Loan Documents, as agent thereunder and all rights of Regiment Capital II, L.P. and Lathi, LLC as lenders thereunder including, without limitation, the right to receive all payments of principal, interest and fees due under the Term Loan Agreement and the right to all collateral pledged as security under the Term Loan Documents; and
WHEREAS, the Revolving Loan Lenders and the Term Loan Lenders desire that the Revolving Loan Agent and the Term Loan Agent enter into this Intercreditor Agreement (a) to confirm the relative priority of the security interests of the Revolving Loan Lenders under the Revolving Loan Documents, on one hand, and the Term Loan Lenders under the Term Loan Documents, on the other hand, in certain of the assets and properties of the Borrowers and the Obligors, (b) to provide for the orderly sharing among them, in accordance with such priorities, of proceeds of such assets and properties upon any foreclosure thereon or other disposition thereof and (c) to amend and restate the terms and conditions of the Intercreditor Agreement, dated as of October 29, 2002, between Revolving Loan Agent and Regiment, in its capacity as prior Term Loan Agent;
NOW, THEREFORE, in consideration of the mutual benefits accruing to the Revolving Loan Lenders and the Term Loan Lenders hereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
1. DEFINITIONS; CERTAIN RULES OF CONSTRUCTION
Certain capitalized terms are used in this Intercreditor Agreement with the specific meanings set forth below in this Section 1. Except as otherwise explicitly specified to the contrary or unless the context clearly requires otherwise, (a) the capitalized term “Section” refers to sections of this Intercreditor Agreement, (b) references to a particular Section include all subsections thereof, (c) the word “including” shall be construed as “including without limitation”, (d) references to a particular statute or regulation include all rules and regulations thereunder and any successor statute, regulation or rules, in each case as from time to time in effect, (e) references to a particular Person include such Person’s successors and assigns (including a receiver, trustee or debtor-in-possession on behalf of such Person or on behalf of any such successor or assign) to the extent not prohibited by this Intercreditor Agreement, (f) terms defined in the UCC and not otherwise defined herein are used herein with the meanings set forth in the UCC and (g) all references to any term in the plural include the singular and all references to any term in the singular include the plural.
1.1 “Additional Loans” shall mean any Loans or Letter of Credit Accommodation made by the Revolving Loan Lenders to any Borrower pursuant to Section 12.14 of the Revolving Loan Agreement (or any successor section).
1.2 “Agent Advances” shall have the meaning set forth in the Revolving Loan Agreement.
1.3 “Agents” shall mean, collectively, the Revolving Loan Agent and the Term Loan Agent.
1.4 “Agreements” shall mean, collectively, the Revolving Loan Documents and the Term Loan Documents.
1.5 “Assignment and Acceptance” shall mean the Assignment and Acceptance, dated as of March 21, 2003, among Doe Run, Regiment Capital II, L.P. and Lathi, LLC, as assignors, Renco Group, as assignee and new agent and Regiment, as prior agent.
1.6 “Borrowers” shall mean, collectively, Doe Run, The Buick Resource Recycling Facility LLC, a Delaware limited liability company, and Fabricated Products, Inc., a Delaware corporation.
1.7 “Borrowing Base Loans” shall have the meaning set forth in the Revolving Loan Agreement.
1.8 “Business Day” shall have the meaning set forth in the Revolving Loan Agreement.
1.9 “Collateral” shall have the meaning set forth in section 5.1 of the Revolving Loan Agreement as in effect on the date hereof.
1.10 “Congress” shall have the meaning set forth in the preamble to this Intercreditor Agreement.
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1.11 “Debt” shall mean, collectively, the Revolving Loan Debt and the Term Loan Debt.
1.12 “Doe Run” shall mean The Doe Run Resources Corporation, a New York corporation.
1.13 “Event of Default” shall mean any act, condition or event that is either an Event of Default as such term is defined in the Revolving Loan Documents as in effect on the date hereof or an Event of Default as such term is defined in the Term Loan Documents as in effect on the date hereof.
1.14 “Insolvency Proceeding” shall have the meaning set forth in the Revolving Loan Agreement.
1.15 “Intercreditor Agreement” shall have the meaning set forth in the preamble to this Agreement.
1.16 “Junior Participation Agreement” shall mean the Junior Participation Agreement, dated as of October 29, 2002, by and among Renco Group, the financial institutions from time to time parties to the Revolving Loan Agreement, and the Revolving Loan Agent, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.17 “Lenders” shall mean, collectively, the Revolving Loan Lenders and the Term Loan Lenders.
1.18 “Letter of Credit Accommodations” shall have the meaning set forth in the Revolving Loan Agreement.
1.19 “Lien” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance (including easements, rights of way and the like), lien (statutory or other), security agreement or transfer intended as security, including any conditional sale or other title retention agreement, the interest of a lessor under a capital lease or any financing lease having substantially the same economic effect as any of the foregoing.
1.20 “Loans” shall have the meaning set forth in the Revolving Loan Agreement.
1.21 “Obligors” shall mean, collectively, all Persons liable on, or in respect of, the Revolving Loan Debt or the Term Loan Debt, other than the Borrowers.
1.22 “Person” shall mean any individual, sole proprietorship, partnership, corporation (including any corporation which elects subchapter S status under the Internal Revenue Code of 1986), limited liability corporation, limited liability partnership, business trust, unincorporated association, joint stock company, trust, joint venture, or other entity or any government or any agency or instrumentality or political subdivision thereof.
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1.23 “Regiment” shall have the meaning set forth in the recitals to this Intercreditor Agreement.
1.24 “Renco Group” shall have the meaning set forth in the preamble to this Intercreditor Agreement.
1.25 “Renco Participation Agreement” shall mean the Junior Participation Agreement, dated as of October 29, 2002, by and between the Revolving Loan Agent and Renco Group, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.26 “Revolving Loan Agent” shall mean Congress in its capacity as agent pursuant to the Revolving Loan Agreement for the benefit and on behalf of the Revolving Loan Lenders, and any successor, assignee or additional Person at any time acting as agent for the benefit of or on behalf of the Revolving Loan Lenders.
1.27 “Revolving Loan Agreement” shall mean the Amended and Restated Loan and Security Agreement, dated as of October 29, 2002, by and among the Revolving Loan Agent, the other Revolving Loan Lenders, the Borrowers and certain of their affiliates, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.28 “Revolving Loan Debt” shall mean all obligations, liabilities and indebtedness of every kind, nature and description owing by any Borrower or any Obligor to any Revolving Loan Lender and/or its affiliates or participants, including principal, interest, charges, fees, premiums, indemnities and expenses, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, arising under the Revolving Loan Documents, by operation of law or otherwise, whether now existing or hereafter arising, whether arising before, during or after the initial or any renewal term of any Revolving Loan Document or after the commencement of any case with respect to any Borrower or any Obligor under the United States Bankruptcy Code or any similar statute (and including any principal, interest, fees, costs, expenses and other amounts which would accrue and become due but for the commencement of such case or similar proceeding and whether or not such amounts are allowable in whole or in part in any such case or similar proceeding), whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, secured or unsecured, and whether arising directly or howsoever acquired by any Revolving Loan Lender.
1.29 “Revolving Loan Documents” shall mean, collectively, the Revolving Loan Agreement and all agreements, documents and instruments at any time executed and/or delivered by any Borrower, any Obligor or any other Person with, to or in favor of any Revolving Loan Lender in connection therewith or related thereto, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.30 “Revolving Loan Lenders” shall mean, collectively, the Revolving Loan Agent and any other Person who is a party to any Revolving Loan Document as a lender (including any other lender or group of lenders that at any time succeeds to or refinances, replaces or substitutes for all or any portion of the Revolving Loan Debt at any time and from time to time).
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1.31 “Revolving Loan Termination Date” shall mean the date that the Revolving Loan Lenders have received payment in full in cash or other immediately available funds of all of the Revolving Loan Debt and the Revolving Loan Agreement shall have been terminated; provided, that, if after receipt of any payment of, or application of proceeds of any Collateral applied to the repayment of, all or any part of the Revolving Loan Debt, any Revolving Loan Lender is required to surrender or return such payment or proceeds to any person for any reason, then the Revolving Loan Debt or any part thereof intended to be satisfied by such payment or proceeds shall be reinstated, revised and continue and the Revolving Loan Termination Date shall not be deemed to have occurred.
1.32 “Supplemental Loans” shall have the meaning set forth in the Revolving Loan Agreement as in effect on the date hereof.
1.33 “Term Loan Agent” shall mean Renco Group in its capacity as agent pursuant to the Term Loan Agreement for the benefit and on behalf of the Term Loan Lenders, and any successor, assignee or additional Person at any time acting as agent for the benefit of or on behalf of the Term Loan Lenders.
1.34 “Term Loan Agreement” shall mean the Credit Agreement, dated as of October 29, 2002, by and among Doe Run, Regiment and the Term Loan Lenders, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.35 “Term Loan Debt” shall mean all obligations, liabilities and indebtedness of every kind, nature and description owing by any Borrower or any Obligor to any Term Loan Lender and/or its affiliates or participants, including principal, interest, charges, fees, premiums, indemnities and expenses, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, arising under the Term Loan Documents, by operation of law or otherwise, whether now existing or hereafter arising, whether arising before, during or after the initial or any renewal term of any Term Loan Document or after the commencement of any case with respect to any Borrower or any Obligors under the United States Bankruptcy Code or any similar statute (and including any principal, interest, fees, costs, expenses and other amounts which would accrue and become due but for the commencement of such case or similar proceeding and whether or not such amounts are allowable in whole or in part, in any such case or similar proceeding), whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, secured or unsecured, and whether arising directly or howsoever acquired by any Term Loan Lender.
1.36 “Term Loan Documents” shall mean, collectively, the Term Loan Agreement and all agreements, documents and instruments at any time executed and/or delivered by any Borrower, any Obligor or any other Person with, to or in favor of any Term Loan Lender in connection therewith or related thereto, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.37 “Term Loan Lenders” shall mean, collectively, the Term Loan Agent and any other Person who is a party to any Term Loan Document as a lender (including any other lender or group of lenders that at any time succeeds to or refinances, replaces or substitutes for all or any portion of the Term Loan Debt at any time and from time to time).
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1.38 “Term Loan Priority Collateral” shall mean the assets and properties of Borrowers and Obligors that are subject to the security interests and liens of the Term Loan Agent, for the benefit of itself and the other Term Loan Lenders, pursuant to the terms of the Term Loan Documents as in effect on the date hereof to secure the Term Loan Debt, other than the Collateral.
1.39 “Third Party Purchaser” shall have the meaning set forth in Section 2.4(e).
1.40 “UCC” shall mean the Uniform Commercial Code as in effect on the date hereof in the State of New York.
2. SECURITY INTERESTS; PRIORITIES; REMEDIES
2.1 Acknowledgement. The Revolving Loan Agent hereby acknowledges that the Term Loan Agent acting for and on behalf of the Term Loan Lenders has been granted Liens upon all of the Collateral pursuant to the Term Loan Documents to secure the Term Loan Debt. The Term Loan Agent hereby acknowledges that the Revolving Loan Agent acting for and on behalf of the Revolving Loan Lenders has been granted Liens upon all of the Collateral pursuant to the Revolving Loan Documents to secure the Revolving Loan Debt.
2.2 Priorities.
(a) Notwithstanding the order or time of attachment of, or the order, time or manner of perfection of, or the order or time of filing or recordation of any document or instrument with respect to, or any other method of perfecting, any security interest in favor of any Lender in any Collateral, and notwithstanding any conflicting terms or conditions which may be contained in any of the Agreements, (i) the Liens of the Revolving Loan Agent, for the benefit of the Revolving Loan Lenders, upon the Collateral have and shall have priority over the Liens of the Term Loan Agent, for the benefit of the Term Loan Lenders, upon the Collateral and (ii) the Liens of the Term Loan Agent, for the benefit of the Term Loan Lenders, upon the Collateral are and shall be, in all respects, subject and subordinate to the Liens of the Revolving Loan Agent, for the benefit of the Revolving Loan Lenders, upon the Collateral.
(b) The lien priorities provided in this Section 2.2 shall not be altered or otherwise affected by any amendment, modification, supplement, extension, renewal, restatement, replacement or refinancing of either the Revolving Loan Debt or the Term Loan Debt, nor by any action or inaction which any Lender may take or fail to take in respect of the Collateral.
(c) Each Lender shall be solely responsible for perfecting and maintaining the perfection of its Lien in and to each item constituting the Collateral in which such Lender has been granted a Lien. The foregoing provisions of this Intercreditor Agreement are intended solely to govern the respective lien priorities as between the Revolving Loan Lenders, on one hand, and the Term Loan Lenders, on the other hand, and shall not impose on any of the Lenders any obligations in respect of the disposition of proceeds of foreclosure on any Collateral which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or other governmental authority or any applicable law.
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(d) No Revolving Loan Lender will contest the validity, perfection, priority or enforceability of the Liens of the Term Loan Agent, for the benefit of the Term Loan Lenders, upon the Collateral and no Term Loan Lender will contest the validity, perfection, priority or enforceability of the Liens of the Revolving Loan Agent, for the benefit of the Revolving Loan Lenders, upon the Collateral. As between the Revolving Loan Lenders, on one hand, and the Term Loan Lenders, on the other hand, the terms of this Intercreditor Agreement shall govern even if part or all of the Revolving Loan Debt or the Term Loan Debt or the Liens securing payment and performance thereof are avoided, disallowed, set aside or otherwise invalidated in any judicial proceeding or otherwise.
2.3 Disposition of Proceeds.
(a) The proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be applied to the Debt in the following order of priorities:
(i) first, to the payment in full in cash or other immediately available funds of all costs, expenses and other charges of the Revolving Loan Lenders under the Revolving Loan Documents and all indemnities under the Revolving Loan Documents then due to the Revolving Loan Lenders;
(ii) second, to the payment in full in cash or other immediately available funds of all fees payable by Borrowers under the Revolving Loan Documents then due;
(iii) third, to the payment in full in cash or other immediately available funds of all interest due in respect of all Loans (including all Borrowing Base Loans, Supplemental Loans, Agent Advances and Additional Loans); except, that, at any time an Event of Default exists or has occurred and is continuing or on and after the commencement of any insolvency Proceeding, the portion of any interest payable in respect of the Supplemental Loans equivalent to the amounts payable to Renco Group under section 4.6 of the Renco Participation Agreement shall not be paid pursuant to this clause (iii) but shall be paid as provided in clause (xiii) of this Section 2.3;
(iv) fourth, to the payment in full in cash or other immediately available funds of the principal amount of all Agent Advances and Additional Loans;
(v) fifth, to the payment in full in cash or other immediately available funds of the principal amount of all Borrowing Base Loans and the principal amount of all Supplemental Loans to the extent that the Revolving Loan Agent has not received payments in respect thereof from Renco Group under the terms of the Renco Participation Agreement; except, that, at any time that the conditions set forth in section 3.3(e) of the Revolving Loan Agreement are satisfied as determined by the Revolving Loan Agent, then to the prepayment of the principal amount of all Supplemental Loans to the extent permitted thereunder and, thereafter, to the payment in full in cash or other immediately available funds of the principal amount of all Borrowing Base Loans;
(vi) sixth, to the payment in full in cash or other immediately available funds of cash collateral for the Letter of Credit Accommodations in an amount equal to one hundred ten (110%) percent of the amount of the Letter of Credit Accommodations plus the amount of
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any fees and expenses payable in connection therewith through the end of the latest expiration date of the Letter of Credit Accommodations and any other cash collateral to be provided to the Revolving Loan Agent under the terms of the Revolving Loan Documents;
(vii) seventh, to the payment in full in cash or other immediately available funds of all other Revolving Loan Debt, other than the principal amount of the Supplemental Loans to the extent that the Revolving Loan Agent has received payments in respect thereof from Renco Group under the terms of the Renco Participation Agreement;
(viii) eighth, to the payment in full in cash or other immediately available funds of (A) the principal amount of the Supplemental Loans to the extent that the Revolving Loan Agent has received payments in respect thereof from Renco Group under the terms of the Renco Participation Agreement and (B) at any time an Event of Default exists or has occurred and is continuing or on and after the commencement of any Insolvency Proceeding, the portion of any interest payable in respect of the Supplemental Loans equivalent to the amounts payable to Renco Group under section 4.6 of the Renco Participation Agreement; and
(ix) ninth, to the payment in full in cash or other immediately available funds of the Term Loan Debt.
(b) All proceeds of the Collateral received by the Term Loan Lenders prior to the Revolving Loan Termination Date shall be forthwith paid over, in the funds and currency received, to the Revolving Loan Lenders for application to the Debt (subject to Section 2.2 and unless otherwise required by law) in accordance with Section 2.3(a). All proceeds of the Collateral received by the Revolving Loan Lenders after the Revolving Loan Termination Date shall be forthwith paid over, in the funds and currency received, to the Term Loan Agent for application to the Term Loan Debt (subject to Section 2.2(c)). Each Borrower and Obligor hereby agrees that Lenders shall have no liability to any Borrower or Obligor and Borrowers and Obligors hereby waive and release Revolving Loan Lenders from any claims, actions or proceedings as a result of the payment of such proceeds.
2.4 Remedies.
(a) In the event that any Lender shall, in the exercise of any of its rights under its Agreements, receive possession or control of any books and records of any Borrower or Obligor which contain information identifying or pertaining to any of the property of any Borrower or Obligor in which the other party has been granted a Lien, it shall notify the other Lenders that it has received such books and records and shall, as promptly as practicable thereafter, make available to the other Lenders such books and records for inspection and duplication.
(b) The Revolving Loan Agent shall have the exclusive right to manage, perform and enforce the terms of the Revolving Loan Documents with respect to the Collateral, to exercise and enforce all privileges and rights thereunder according to its discretion and the exercise of its business judgment, including the exclusive right to take or retake control or possession of the Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or liquidate the Collateral.
(c) Notwithstanding anything to the contrary contained in any of the Agreements, except as otherwise provided in this Intercreditor Agreement, only the Revolving Loan Lenders
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shall have the right to restrict or permit, or approve or disapprove, the sale, transfer or other disposition of any of the Collateral. The Term Loan Agent shall (i) be deemed to have automatically and without further action released and terminated any Liens it may have on the Collateral to the extent such Collateral is sold or otherwise disposed of either by the Revolving Loan Agent, any agent of the Revolving Loan Agent, or any Borrower or Obligor with the consent of the Revolving Loan Agent, (ii) be deemed to have authorized the Revolving Loan Agent to file UCC amendments and terminations covering the Collateral so sold or otherwise disposed of as to UCC financing statements between any Borrower or Obligor and any Term Loan Lender to evidence such release and termination, (iii) promptly upon the request of the Revolving Loan Agent execute and deliver such other release documents and confirmations of the authorization to file UCC amendments and terminations provided for herein, in each case as the Revolving Loan Agent may reasonably require in connection with such sale or other disposition by the Revolving Loan Agent, any agent or any Borrower or Obligor with the consent of the Revolving Loan Agent to evidence and effectuate such termination and release, provided, that, any such release or UCC amendment or termination by any Term Loan Lender shall not extend to or otherwise affect any of the rights, if any, of the Term Loan Agent to the proceeds from any such sale or other disposition of Collateral, and (iv) be deemed to have consented under the Term Loan Documents to such sale or other disposition. In the event that for any reason the Term Loan Agent shall fail to promptly execute and deliver to the Revolving Loan Agent any such release documents, the Revolving Loan Agent is hereby irrevocably authorized to execute and deliver such release documents on behalf of any Term Loan Lender as its attorney-in-fact. Any such sale or other disposition of any of the Collateral conducted by the Revolving Loan Agent in connection with the exercise of its rights and remedies to any affiliate of any Borrower or any Obligor shall be conducted in a commercially reasonable manner or amounts paid in respect of such sale shall otherwise be consistent with the value of such Collateral as determined by an appraiser or other valuation by an appropriate third party.
(d) No Term Loan Lender shall, directly or indirectly: (i) exercise any of its rights or remedies if an Event of Default or an act, condition or event which with notice, or passage of time, or both would constitute an Event of Default exists or has occurred against any Collateral; (ii) seek to foreclose or realize upon (judicially or non-judicially) its Lien on any Collateral or assert any claims or interest therein (including by setoff or notification of account debtors); or (iii) take any other action with respect to the Collateral or any other assets or properties of any Borrower or any Obligor that interferes in any material respect with the rights of the Revolving Loan Lenders with respect to the Collateral; provided, that, nothing contained in this Section 2.4(d) shall be construed in any way to limit or impair the right of any Term Loan Lender: (A) to participate in any administrative, legal or equitable action or proceeding against any Borrower or any Obligor seeking any reorganization, liquidation, bankruptcy or any other action involving the readjustment of all or any part of the Term Loan Debt, or other similar relief under the United States Bankruptcy Code; provided, that, in no event shall any Term Loan Lender (1) challenge any Liens of any Revolving Loan Lender, (2) challenge or dispute the validity or priority of any Revolving Loan Debt, or (3) vote its claim in any manner which would be inconsistent with the provisions of this Intercreditor Agreement; (B) to exercise its right to accelerate the maturity of all or any part of the Term Loan Debt; (C) to send notices to any governmental authority of the existence of, or any evidence or confirmation of, the Term Loan Debt owed to any Term Loan Lender or the Liens of the Term Loan Agent, for the benefit of any Term Loan Lender, in the Collateral, or file or record any such notice or evidence to the extent
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necessary to prove or preserve (1) the obligations of any Borrower or any Obligor in respect of the Term Loan Debt or (2) the Liens of the Term Loan Agent, for the benefit of any Term Loan Lender, in the Collateral; (D) to bid at a foreclosure or other sale of the Collateral; or (E) to exercise any rights or remedies, or to take any other action, with respect to any Lien of any Term Loan Lender upon any of the Term Loan Priority Collateral; provided, that, (1) such exercise of rights and remedies shall be subject to the rights of the Revolving Loan Lenders set forth in Section 2.4(e) and (2) in connection with any sale or other disposition of any Term Loan Priority Collateral by any Term Loan Lender, the terms of any such sale or disposition shall require that any Third Party Purchaser or assignees thereof acquire such Term Loan Priority Collateral subject to the rights of the Revolving Loan Lenders set forth in Section 2.4(e).
(e) In the event that the Term Loan Lenders shall acquire control or possession of any Term Loan Priority Collateral or shall, through the exercise of remedies under the Term Loan Documents or otherwise, sell any of the Term Loan Priority Collateral to any third party (a “Third Party Purchaser”), the Term Loan Lenders shall permit the Revolving Loan Lenders, at their option: (i) to enter any or all of the Term Loan Priority Collateral consisting of real property and improvements thereon of any Borrower or any Obligor under such control or possession of the Term Loan Lenders (or sold to a Third Party Purchaser) during normal business hours in order (A) to inspect, remove or take any action with respect to the Collateral (including manufacturing or processing raw materials or work-in-process into finished inventory), (B) to enforce the Revolving Loan Lenders’ rights with respect thereto, including the examination and removal of the Collateral and the examination and duplication of the books and records of the Borrowers and the Obligors related to the Collateral under the possession and control of the Term Loan Lenders (or sold to a Third Party Purchaser), (C) to otherwise reasonably handle, deal with or dispose of any Collateral, such right to include, without limiting the generality of the foregoing, the right to conduct one or more public or private sales or auctions on any or all of the real property and improvements thereon of any Borrower or any Obligor under such control or possession of the Term Loan Lenders (or sold to a Third Party Purchaser) and (D) to use any of the equipment consisting of computers or other data processing equipment related to the storage or processing of records, documents or files pertaining to the Collateral and to use any other equipment to handle, deal with or dispose of any Collateral pursuant to the Revolving Loan Lenders’ rights as set forth in the Revolving Loan Documents, the Uniform Commercial Code of any applicable jurisdiction and other applicable law; and (ii) use any of the intellectual property marked or stamped on any Collateral for purposes of selling any Collateral or otherwise necessary or reasonably desirable in connection with the collection, sale, or other disposition of any Collateral. No Lender shall have any responsibility or liability for the acts or omissions of any other Lender arising in connection with such other Lender’s use and/or occupancy of the real property, equipment or intellectual property of any Borrower or any Obligor.
2.5 No Liability. If any Revolving Loan Lender should honor a request by any Borrower or any Obligor for a loan, advance or other financial accommodation under the Revolving Loan Documents, whether or not any Revolving Loan Lender has knowledge that the honoring of such request would result in an Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, in no event shall any Revolving Loan Lender have any liability whatsoever to any Term Loan Lender as a result of such breach, and without limiting the generality of the foregoing, each Term Loan Lender agrees
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that no Revolving Loan Lender shall have any liability for tortious interference with contractual relations or for inducement by any Revolving Loan Lender of any Borrower or any Obligor to breach of contract or otherwise. If any Term Loan Lender should honor a request by any Borrower or any Obligor for a loan, advance or other financial accommodation under the Term Loan Documents, whether or not any Term Loan Lender has knowledge that the honoring of such request would result in an Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, in no event shall any Term Loan Lender have any liability whatsoever to any Revolving Loan Lender as a result of such breach, and without limiting the generality of the foregoing, each Revolving Loan Lender agrees that no Term Loan Lender shall have any liability for tortious interference with contractual relations or for inducement by any Term Loan Lender of any Borrower or any Obligor to breach of contract or otherwise. Nothing contained in this Section 2.5 shall limit or waive (a) any right that any Revolving Loan Lender has to enforce any of the provisions of the Revolving Loan Documents against any Borrower or any Obligor or (b) any right that any Term Loan Lender has to enforce any of the provisions of the Term Loan Documents against any Borrower or any Obligor.
2.6 Purchase Option.
(a) At any time on or after an Event of Default under the Revolving Loan Documents and the written demand by the Revolving Loan Agent to the Borrowers for the immediate payment of all of the Revolving Loan Debt, or on or after the foreclosure by the Revolving Loan Lenders on any of the Collateral or the exercise by the Revolving Loan Lenders of any of their rights to sell, collect or otherwise dispose of any Collateral, the Term Loan Agent for itself or the benefit of the Term Loan Lenders shall have the option at any time upon five (5) Business Days prior written notice to the Revolving Loan Agent to purchase all of the Revolving Loan Debt from the Revolving Loan Lenders. Such notice from the Term Loan Agent to the Revolving Loan Agent shall be irrevocable.
(b) On the date specified by the Term Loan Agent in such notice (which date shall be not less than five (5) Business Days, nor more than ten (10) Business Days after the receipt by the Revolving Loan Agent of the notice from the Term Loan Agent of its election to exercise such option), the Revolving Loan Lenders shall, subject to any required approval of any court or other governmental authority, sell to the Term Loan Lenders, and the Term Loan Lenders shall, subject to any required approval of any court or other governmental authority, purchase from the Revolving Loan Lenders, the Revolving Loan Debt. The Revolving Loan Agent, on behalf of the Revolving Loan Lenders hereby represents and warrants that, as of the date hereof, no such approval of any court or other governmental authority is required for such sale. The Term Loan Agent, on behalf of the Term Loan Lenders, hereby represents and warrants that, as of the date hereof, no such approval of any court or other governmental authority is required for such purchase. Notwithstanding anything to the contrary contained herein, in connection with any such purchase and sale, the Revolving Loan Lenders shall retain all rights under the Revolving Loan Documents to be indemnified or held harmless by a Borrower and Obligor in accordance with the terms thereof (which rights of the Revolving Loan Lenders, to the extent secured by the Collateral, shall be subject and subordinate to the Liens of the Term Loan Agent therein, including the Liens securing the Term Loan Debt and the Liens securing the Revolving Loan Debt that is acquired by the Term Loan Lenders pursuant to the exercise of its purchase option provided for herein).
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(c) On the date of such purchase and sale, the Term Loan Lenders shall:
(i) pay to the Revolving Loan Agent, as the purchase price therefor, an amount equal to the full amount of all of the Revolving Loan Debt then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses);
(ii) furnish cash collateral to the Revolving Loan Agent in such amounts as the Revolving Loan Agent determines is reasonably necessary to secure the Revolving Loan Lenders in connection with any issued and outstanding Letter of Credit Accommodations (but in any event not in an amount greater than one hundred ten (110%) percent of the aggregate undrawn face amount of such Letter of Credit Accommodations plus the amount of any commissions, fees and expenses payable in connection therewith through the end of the latest expiration date of such Letter of Credit Accommodations, including reasonable attorneys’ fees and expenses);
(iii) expressly assume and adopt all of the obligations of the Revolving Loan Lenders under the Revolving Loan Documents and perform such obligations on and after the date of the purchase and sale;
(iv) agree to reimburse the Revolving Loan Lenders without offset, defense or counterclaim for any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses in each case) in connection with any checks or other payments provisionally credited to the Revolving Loan Debt and as to which the Revolving Loan Lenders have not yet received final payment and any other liabilities of the Revolving Loan Lenders to the depository banks of which any accounts are maintained for the handling of collections and the remittance thereof to the Revolving Loan Lenders; and
(v) agree to pay to the Revolving Loan Lenders within three (3) Business Days after the actual receipt by any Term Loan Lender of any payment in cash or other immediately available funds of the early termination fee pursuant to the Revolving Loan Agreement as in effect on the date of the purchase and sale of the Revolving Loan Debt to the Term Loan Lenders, an amount equal to one hundred (100%) percent of such fee actually received by the Term Loan Lenders if the notice of termination or effective date of termination occurred within ninety (90) days after the effective date of the purchase of the Revolving Loan Debt by the Term Loan Lenders.
(d) Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Revolving Loan Agent in New York, New York, as the Revolving Loan Agent may designate in writing to the Term Loan Agent for such purpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Term Loan Lenders to the bank account designated by the Revolving Loan Agent are received in such bank account prior to 12:00 noon, New York City time, and interest shall be calculated to and including such Business Day if the amounts so paid by the Term Loan Lenders to the bank account designated by the Revolving Loan Agent are received in such bank account later than 12:00 noon, New York City time.
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(e) Such purchase shall be expressly made without representation or warranty of any kind by the Revolving Loan Lenders as to the Revolving Loan Debt, the Collateral or otherwise and without recourse to the Revolving Loan Lenders, except that each Revolving Loan Lender shall represent and warrant to the Term Loan Lenders that: (i) the amount of the Revolving Loan Debt being purchased as reflected in the books and records of such Revolving Loan Lender (but without representation or warranty as to the collectibility, validity or enforceability thereof), (ii) such Revolving Loan Lender owns the Revolving Loan Debt free and clear of any Liens created by such Revolving Loan Lender and (iii) such Revolving Loan Lender has the right to assign the Revolving Loan Debt and the assignment is duly authorized.
(f) Upon the purchase by the Term Loan Lenders of the Revolving Loan Debt pursuant to this Section 2.6, (i) the Term Loan Lenders shall indemnify and hold each Revolving Loan Lender harmless from and against all loss, cost, damage or expense (including attorneys’ fees and legal expenses) suffered or incurred by such Revolving Loan Lender arising from or in any way relating to actions or omissions of the Term Loan Lenders after such purchase and (ii) the Revolving Loan Lenders shall indemnify and hold each Term Loan Lender harmless from and against all loss, cost, damage or expense suffered or incurred by such Term Loan Lender arising from or in any way relating to the actions or omissions of the Revolving Loan Lenders prior to such purchase.
2.7 Bailee for Perfection. Each Lender hereby appoints the other Lenders, and each hereby agrees to serve, as agent and bailee for the other Lenders for the purpose of perfecting their respective Liens on any of the Collateral, and a Lender that at any time has any Collateral in its possession acknowledges that it holds and will hold possession of such Collateral for the benefit of the Lenders. Each Lender shall not have any duty to protect or preserve any rights pertaining to any of such Collateral held by it, and each Lender hereby waives and releases the other Lenders from all claims and liabilities at any time arising pursuant to the role of agent and bailee with respect to the Collateral held by it, except for the gross negligence or wilful misconduct of the bailee Lender as determined pursuant to a final, non-appealable order of a court of competent jurisdiction.
2.8 Notices of Default and Acceleration. Each Agent shall give to the other Agent concurrently with the giving thereof to any Borrower or any Obligor, a copy of any written notice by such Agent of either (a) a default or an event of default under its Agreements with such Borrower or Obligor or (b) written notice of demand for payment from such Borrower or Obligor provided, that, the failure of any party to give any such notice to the other shall not affect the relative priorities of the Lenders’ respective Liens as provided herein or the validity or effectiveness of any such notice as against any Borrower or any Obligor. The Borrowers and Obligors hereby authorize and consent to each Agent sending any such notices to the other Agent or providing any other information with respect to any Borrower or any Obligor to the other Agent.
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3. MISCELLANEOUS
3.1 Additional Representations.
(a) The Term Loan Agent represents and warrants to the Revolving Loan Lenders that:
(i) as of the date hereof, no default or event of default, or act, condition or event which with notice or passage of time or both would constitute an event of default under any of the Term Loan Documents exists or has occurred, as for which a waiver has not been granted prior to the date hereof or as to which the grant of a waiver is not contemplated to be provided by Term Loan Lenders within five (5) Business Days of the date hereof;
(ii) the execution, delivery and performance of this Intercreditor Agreement by the Term Loan Agent is within its powers in its capacity as agent for each Term Loan Lender and has been authorized by each Term Loan Lender as provided in, and in accordance with the requirements of, the Term Loan Documents, and does not contravene any law, any provision of any of the Term Loan Documents or any other agreement to which the Term Loan Agent is a party or by which it is bound;
(iii) the Term Loan Agent has been duly appointed and constituted as agent to act for and on behalf of each Term Loan Lender and has been irrevocably authorized to execute and deliver this Intercreditor Agreement for itself and on behalf of each Term Loan Lender and to perform all of its obligations hereunder, and to take such actions on behalf of each Term Loan Lender as may be required of it under the terms hereof, without any further consent or approval of any Term Loan Lender and is in such position as of the date hereof;
(iv) the Term Loan Lenders have not been granted, and do not have, any Liens upon the assets and properties of any Borrower pursuant to the Term Loan Documents, except for the Liens granted to the Term Loan Agent on behalf and for the benefit of the Term Loan Lenders thereunder; and
(v) this Intercreditor Agreement constitutes the legal, valid and binding obligation of the Term Loan Lenders, enforceable against the Term Loan Lenders in accordance with its terms.
(b) The Revolving Loan Agent represents and warrants to the Term Loan Lenders that:
(i) as of the date hereof, no default or event of default, or act, condition or event which with notice or passage of time or both would constitute an event of default under any of the Revolving Loan Documents exists or has occurred, except for the “Existing Defaults” as such term is defined in Amendment No. 1 to Amended and Restated Loan and Security Agreement, dated as of March 11, 2003, by and among Congress, as agent for itself and the financial institutions from time to time party to the Revolving Loan Agreement, The CIT Group/Business Credit, Inc., as co-agent, the Borrowers and DR Land Holdings, LLC, as guarantor.
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(ii) the execution, delivery and performance of this Intercreditor Agreement by the Revolving Loan Agent is within its powers in its capacity as agent for each Revolving Loan Lender and has been authorized by each Revolving Loan Lender as provided in, and in accordance with the requirements of, the Revolving Loan Documents, and does not contravene any law, any provision of any of the Revolving Loan Documents or any other agreement to which the Revolving Loan Agent is a party or by which it is bound;
(iii) the Revolving Loan Agent has been duly appointed and constituted as agent to act for and on behalf of each Revolving Loan Lender and has been irrevocably authorized to execute and deliver this Intercreditor Agreement for itself and on behalf of each Revolving Loan Lender and to perform all of its obligations hereunder, and to take such actions on behalf of each Revolving Loan Lender as may be required of it under the terms hereof, without any further consent or approval of any Revolving Loan Lender and is in such position as of the date hereof,
(iv) the Revolving Loan Lenders have not been granted, and do not have, any Liens upon the assets and properties of any Borrower pursuant to the Revolving Loan Documents, except for the Liens on the Collateral granted to the Revolving Loan Agent for the benefit of the Revolving Loan Lenders thereunder; and
(v) this Intercreditor Agreement constitutes the legal, valid and binding obligation of the Revolving Loan Lenders, enforceable against the Revolving Loan Lenders in accordance with its terms.
3.2 Amendments. Any waiver, permit, consent or approval by any party of or under any provision, condition or covenant to this Intercreditor Agreement must be in writing and shall be effective only to the extent it is set forth in writing and as to the specific facts or circumstances covered thereby. Any amendment of this Intercreditor Agreement must be in writing and signed by each of the parties to be bound thereby; provided, that, notwithstanding that such amendment may be signed only by the Revolving Loan Agent or the Term Loan Agent, each Agent is hereby authorized to rely on such execution by the other Agent without inquiry as to such Agent’s right or authority to so bind any Revolving Loan Lender or Term Loan Lender as the case may be.
3.3 Successors and Assigns.
(a) This Intercreditor Agreement shall be binding upon each of the Lenders and its successors and assigns and shall inure to the benefit of each of the Lenders and its successors, participants and assigns. Notwithstanding that each Revolving Loan Lender and each Term Loan Lender may not execute and deliver this Intercreditor Agreement, each Revolving Loan Lender and each Term Loan Lender shall be bound hereby as if each Revolving Loan Lender and each Term Loan Lender had executed and delivered this Intercreditor Agreement. Each Revolving Loan Lender and each Term Loan Lender acknowledges that the Lenders are relying upon the binding nature of this Intercreditor Agreement upon each Revolving Loan Lender and each Term Loan Lender.
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(b) To the extent provided in their respective Agreements and subject to Section 8.2(b) of the Junior Participation Agreement, each of the Lenders may grant participations in, or otherwise sell, assign, transfer or negotiate all or any part of, or any interest in, the Revolving Loan Debt or the Term Loan Debt, as the case may be, and the Collateral securing same; provided, however, that no Lender shall be obligated to give any notices to or otherwise in any manner deal directly with any participant in the Revolving Loan Debt or the Term Loan Debt, as the case may be, and no participant shall be entitled to any rights or benefits under this Intercreditor Agreement except through the Lender with which it is a participant. In connection with any such participation or other transfer or assignment, a Lender (i) may, subject to its Agreements, disclose to such assignee, participant or other transferee or assignee all documents and information which such Lender now or hereafter may have relating to any Borrower, any Obligor or the Collateral (in connection with the transactions contemplated by the Revolving Loan Documents and the Term Loan Documents) and (ii) shall disclose to such participant or other transferee or assignee the existence and terms and conditions of this Intercreditor Agreement.
(c) In connection with any assignment or transfer of any or all of the Revolving Loan Debt or the Term Loan Debt, as the case may be, or any or all rights of the Revolving Loan Lenders or the Term Loan Lenders, as the case may be, in the property of any Borrower or any Obligor (other than pursuant to a participation), the Revolving Loan Agent shall (and is hereby irrevocably authorized and directed by each other Revolving Loan Lender) and the Term Loan Agent shall (and is hereby irrevocably authorized and directed by each other Term Loan Lender) to execute and deliver an agreement containing terms substantially identical to those contained herein in favor of any such assignee or transferee and, in addition, will execute and deliver an agreement containing terms substantially identical to those contained herein in favor of any third Person who succeeds to or refinances, replaces or substitutes for any or all of the Revolving Loan Debt or the Term Loan Debt, as the case may be, whether such successor or replacement financing occurs by transfer, assignment, “takeout” or any other means or vehicle.
3.4 Insolvency. This Intercreditor Agreement shall be applicable both before and after the filing of any petition by or against any Borrower or any Obligor under the United States Bankruptcy Code and all converted or succeeding cases in respect thereof, and all references herein to any Borrower or any Obligor shall be deemed to apply to a trustee for any Borrower or any Obligor and any Borrower or any Obligor as debtor-in-possession. The relative rights of the Revolving Loan Lenders and the Term Loan Lenders to repayment of the Revolving Loan Debt and the Term Loan Debt, respectively, and in or to any distributions from or in respect of any Borrower or any Obligor or any Collateral or proceeds of any Collateral, shall continue after the filing thereof on the same basis as prior to the date of the petition, subject to any court order approving the financing of, or use of cash collateral by, any Borrower or any Obligor as debtor-in-possession.
3.5 Bankruptcy Financing. If (a) any Borrower or any Obligor shall become subject to a proceeding under the United States Bankruptcy Code and (b) the Revolving Loan Agent desires to permit the use of cash collateral or to provide financing to such Borrower or such Obligor under either Section 363 or 364 of the United States Bankruptcy Code, each Term Loan Lender agrees that: (i) adequate notice to the Term Loan Lenders shall have been provided for such use of cash collateral or such financing if the Term Loan Agent receives notice five
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Business Days prior to the entry of the order approving such use of cash collateral or such financing; and (ii) no objection will be raised by the Term Loan Agent or any Term Loan Lender to any such financing on the ground of a failure to provide “adequate protection” for the Liens of the Term Loan Agent, for the benefit of itself or any Term Loan Lenders, on the Collateral or any other grounds with respect to the Collateral, provided, that, the Term Loan Agent, for the benefit of the Term Loan Lenders, retains a Lien on the post-petition Collateral with the same priority as its Lien on the Collateral that existed prior to the commencement of the proceeding under the United States Bankruptcy Code. Nothing in this Section 3.5 shall be deemed to prohibit any Term Loan Lender from providing financing to any Borrower or any Obligor in any proceeding under the United States Bankruptcy Code so long as any Lien on the Collateral in favor of any Term Loan Lender with respect to such financing has the same priority as the Lien in favor of the Term Loan Agent, for the benefit of the Term Loan Lenders, on the Collateral that existed prior to the commencement of the proceeding under the United States Bankruptcy Code. For purposes of this Section 3.5, notice of a proposed use of cash collateral or a proposed financing shall be deemed given when given to the Term Loan Agent in the manner prescribed by Section 3.6.
3.6 Notices. All notices, requests and demands to or upon the respective parties hereto shall be in writing and shall be deemed duly given, made or received: (a) if delivered in person, immediately upon delivery; (b) if delivered by telex, telegram or facsimile transmission, immediately upon sending and upon confirmation of receipt; (c) if delivered by nationally recognized overnight courier service with instructions to deliver the next Business Day, one Business Day after sending; and (d) if mailed by certified mail, return receipt requested, five days after mailing to the applicable party at its address set forth below (or to such other address as such party may designate in accordance with the provisions of this Section 3.6):
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To the Revolving Loan Agent: |
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Congress Financial Corporation, as Agent |
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0000 Xxxxxx xx xxx Xxxxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention: Portfolio Manager |
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Telecopy: (000) 000-0000 |
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with a copy to: |
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Otterbourg, Steindler, Houston & Xxxxx, P.C. |
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000 Xxxx Xxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attn: Xxxxx X. Xxxxx, Esq. |
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Telecopy: (000) 000-0000 |
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To the Term Loan Agent: |
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The Renco Group, Inc., as Agent |
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00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention: Xx. Xxxxx Xxx |
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Telecopy: (000) 000-0000 |
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with a copy to: |
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Cadwalader, Xxxxxxxxxx & Xxxx LLP |
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000 Xxxxxx Xxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention: Xxxxxxx X. Xxxx, Esq. |
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c/o Managing Attorneys’ Office |
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Telecopy: (000) 000-0000 |
Any party may change the address to which all notices, requests and other communications are to be sent to such party by giving written notice of such address change to the other party in conformity with this Section 3.6, but such change shall not be effective until notice of such change has been received by the other party.
3.7 Counterparts. This Intercreditor Agreement may be executed in any number of counterparts, each of which shall be an original with the same force and effect as if the signatures thereto and hereto were upon the same instrument.
3.8 Governing Law. The validity, construction and effect of this Intercreditor Agreement shall be governed by the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the laws of any jurisdiction other than the laws of the State of New York.
3.9 Consent to Jurisdiction; Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK IN NEW YORK COUNTY AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS INTERCREDITOR AGREEMENT.
3.10 Complete Agreement. This written Intercreditor Agreement is intended by the parties as a final expression of their agreement and is intended as a complete statement of the terms and conditions of their agreement.
3.11 No Third Parties Benefitted. Except as expressly provided in Section 3.3, this Intercreditor Agreement is solely for the benefit of the Lenders and their respective successors, participants and assigns, and no other Person shall have any right, benefit, priority or interest under, or because of the existence of, this Intercreditor Agreement.
3.12 Disclosures; Non-Reliance. Each Lender has the means to, and shall in the future remain, fully informed as to the financial condition and other affairs of the Borrowers and the Obligors, and no Lender shall have any obligation or duty to disclose any such information to any other Lender. Except as expressly set forth in this Intercreditor Agreement, the parties hereto have not otherwise made to each other nor do they hereby make to each otter any representations or warranties, express or implied, nor do they assume any liability to each other with respect to: (a) the enforceability, validity, value or collectability of any of the Revolving Loan Debt or the Term Loan Debt or any guarantee or security which may have been granted to any of them in connection therewith; (b) any Borrower’s or any Obligor’s title to, or right to
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transfer, any of the Collateral; or (c) any other matter except as expressly set forth in this Intercreditor Agreement.
3.13 Term. Upon the Revolving Loan Termination Date and without any further action required by any party, this Intercreditor Agreement shall terminate and shall be of no further force or effect, and the Term Loan Lenders shall have no further obligations or liabilities to the Revolving Loan Agent or the Revolving Loan Lenders hereunder.
3.14 No Offset. In the event that Renco Group, in its capacity as Term Loan Lender or otherwise, at any time incurs any obligation to pay money to any Borrower or other Obligor or any Revolving Loan Lender under any Revolving Loan Document, Renco Group hereby irrevocably agrees that it shall pay such obligation in cash or cash equivalents in accordance with the terms of the contract governing such obligation and shall not deduct from, or setoff against, any amounts owed by Renco Group, in its capacity as Term Loan Lender or otherwise to any Borrower or other Obligor or any Revolving Loan Lender under any Revolving Loan Document in connection with any such transaction, any amounts Renco Group claims are due to it in its capacity as Term Loan Lender with respect to the Term Loan Debt or otherwise.
3.15 Amendment and Restatement. As of the date hereof, Revolving Loan Agent and Renco Group, in its capacity as Term Loan Agent (as successor to Regiment, in such capacity, pursuant to the Assignment and Acceptance) are entering into this Intercreditor Agreement so that the terms, conditions, agreements, covenants, representations and warranties set forth in the Intercreditor Agreement, dated as of October 29, 2002, between Revolving Loan Agent and Regiment, in its capacity as prior Term Loan Agent, are hereby amended and restated in their entirety, and as so amended and restated, are replaced and superceded, by the terms, conditions, agreements, covenants, representations and warranties set forth in this Intercreditor Agreement.
IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement to be duly executed as of the day and year first above written.
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CONGRESS FINANCIAL
CORPORATION, |
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By: |
/s/ Xxxxxxx Xxxx |
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Title: |
Vice President |
[SIGNATURE OF THE RENCO GROUP, INC. FOLLOWS ON NEXT PAGE]
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THE RENCO GROUP, INC. |
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By: |
/s/ Xxxxx Xxx |
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Name: |
Xxxxx Xxx |
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Title: |
Vice President-Finance |
[SIGNATURES OF THE DOE RUN RESOURCES CORPORATION AND THE BUICK RESOURCE RECYCLING FACILITY LLC FOLLOW ON NEXT PAGE]
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ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges and agrees to the foregoing terms and provisions of this Intercreditor Agreement. By its signature below, the undersigned agrees that it will, together with its successors and assigns, be bound by the provisions hereof.
The undersigned agrees that any of Lenders holding Collateral does so as bailee (under the UCC) for each other of Lenders which has a Lien on such Collateral and is hereby authorized to, and may, turn over to such other Lender upon request therefor any such Collateral, after all obligations and indebtedness of the undersigned to the bailee Lender have been fully paid and performed.
The undersigned acknowledges and agrees that: (a) although it may sign this Intercreditor Agreement it is not a party hereto and does not and will not receive any right, benefit, priority or interest under or because of the existence of this Intercreditor Agreement (except for a consent which is deemed to have been given by any of Lenders under Section 2.8); and (b) it will execute and deliver such additional documents and take such additional action as may be necessary or desirable in the reasonable opinion of any of Lenders to effectuate the provisions and purposes of this Intercreditor Agreement.
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THE DOE RUN |
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By: |
/s/ Xxxxx Xxxxxx |
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Title: |
Vice President-Finance |
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THE BUICK RESOURCE |
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By: |
/s/ Xxxxxxx Xxxxx |
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Title: |
Manager |
[SIGNATURES OF FABRICATED PRODUCTS,
INC. AND DR LAND HOLDINGS, LLC
FOLLOW ON NEXT PAGE]
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FABRICATED PRODUCTS, INC. |
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By: |
/s/ Xxxxx Xxxxx |
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Title: |
President |
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DR LAND HOLDINGS, LLC |
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By: |
/s/ Xxxxx Xxxxxx |
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Title: |
Executive V.P. of The Doe Run Resources Corporation |
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