Exhibit 10.5
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of November 10, 2003, is entered
into among BANK OF AMERICA, N.A., as Senior Agent (as defined below), BNY ASSET
SOLUTIONS LLC, as Junior Agent (as defined below), GENTEK INC. ("GenTek") and
each subsidiary of GenTek party hereto.
WITNESSETH:
WHEREAS, certain direct and indirect subsidiaries of GenTek identified
as borrowers on Schedule A annexed hereto and made a part hereof (in such
capacity, the "Borrowers"), GenTek, as the direct or indirect parent company of
the Borrowers, certain direct and indirect subsidiaries of GenTek identified as
guarantors on Schedule B annexed hereto and made a part hereof, the financial
institutions party to the Senior Credit Agreement referred to below as lenders,
Bank of America, N.A., as agent for such lenders (in such capacity, the "Senior
Agent"), Bank of America, N.A., as sole syndication agent, Fleet Capital
Corporation, as documentation agent, and Banc of America Securities LLC, as sole
book runner and lead arranger, concurrently herewith are entering into a Credit
Agreement, dated as of the date hereof (as such agreement may be amended,
amended and restated, supplemented or otherwise modified from time to time,
together with any other principal agreement evidencing Senior Lender Claims and
any other agreements pursuant to which any of the foregoing indebtedness,
commitments, obligations, costs, expenses, fees, reimbursements, indemnities or
other obligations payable or owing thereunder may be refinanced, restructured,
renewed, extended, increased, refunded or replaced as any such other agreements
may from time to time be amended, amended and restated, supplemented, renewed or
otherwise modified, being collectively referred to herein as the "Senior Credit
Agreement"), pursuant to which the Senior Agent and the Senior Lenders are
agreeing, subject to the terms and conditions thereof, to make certain loans
from time to time and to incur certain letter of credit obligations from time to
time on behalf of the Borrowers; and
WHEREAS, GenTek, as borrower, each of GenTek's direct and indirect
domestic subsidiaries set forth on Schedule C annexed hereto and made a part
hereof, as subsidiary guarantors, the financial institutions party thereto and
BNY Asset Solutions LLC, as the Administrative Agent under the Junior Loan
Agreement referred to below, concurrently herewith are entering into a Senior
Term Loan and Guarantee Agreement, dated as of the date hereof (as such
agreement may be amended, amended and restated, supplemented or otherwise
modified from time to time (but subject to the limitations contained in this
Agreement), together with any other principal agreement evidencing Junior Lender
Claims and any other agreements pursuant to which any of the foregoing
indebtedness, commitments, obligations, costs, expenses, fees, reimbursements,
indemnities or other obligations payable or owing thereunder may be refinanced,
restructured, renewed, extended, increased, refunded or replaced as any such
other agreements may from time to time be amended, amended and restated,
supplemented, renewed or otherwise modified, being collectively referred to
herein as the "Junior Loan Agreement"), pursuant to which GenTek will incur
indebtedness to the Junior Lenders in the aggregate principal amount of
$250,000,000; and
WHEREAS, it is a condition precedent to the effectiveness of the Senior
Credit Agreement and the Junior Loan Agreement that the Senior Agent (for itself
and for the benefit of
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the Senior Lenders), the Junior Agent (for itself and the benefit of the Junior
Lenders) and the GenTek Obligors (as defined below) enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and obligations herein set forth and for other good and valuable consideration,
the adequacy and receipt of which are hereby acknowledged, and in reliance upon
the representations, warranties and covenants herein contained, the parties
hereto, intending to be legally bound, hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and the plural form of the terms indicated) and capitalized
terms defined in the Senior Credit Agreement used (but not otherwise defined)
herein shall have the meanings ascribed to them in the Senior Credit Agreement
as in effect on the date hereof:
"Agreement" shall mean this Agreement, as amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof.
"Comparable Junior Lender Collateral Document" shall mean, in relation
to any Shared Collateral subject to any Senior Lender Collateral Document, that
Junior Lender Collateral Document which creates a security interest in the same
Shared Collateral.
"DIP Financing" has the meaning specified in Section 6.1 of this
Agreement.
"Discharge of Senior Lender Claims" shall mean the payment in full in
cash (or otherwise to the satisfaction of the Senior Lenders) of the principal
of, premium, if any, and interest on all Senior Lender Claims and, with respect
to Bank Products or Letters of Credit, delivery of cash collateral or backstop
letters of credit in respect thereof in compliance with the Senior Credit
Agreement and the other Senior Lender Documents, in each case after or
concurrently with termination of all Commitments thereunder, and payment in full
in cash of any other Senior Lender Claims that are due and payable at or prior
to the time such principal and interest are paid.
"GenTek Obligor" shall mean GenTek, in its capacity as borrower under
the Junior Loan Agreement and a Guarantor under the Senior Credit Agreement, and
each Subsidiary of GenTek that is a Borrower (as defined in the Senior Credit
Agreement) and/or a Guarantor (as defined in either the Senior Credit Agreement
or the Junior Loan Agreement), including, without limitation and in any event,
the Persons set forth on Schedules A, B and C hereto.
"Guarantor" shall mean "Guarantor" as defined in either the Senior
Credit Agreement or the Junior Loan Agreement, including, without limitation and
in any event, the Persons set forth on Schedules A, B and C hereto.
"Indebtedness" means, with respect to any specified Person without
duplication, any indebtedness of such Person, whether or not contingent (a) in
respect of borrowed money; (b) evidenced by bonds, notes, debentures or other
similar instruments or letters of credit (or reimbursement agreements in respect
thereof); (c) in respect of banker's acceptances;
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(d) representing obligations in connection with Capital Leases; (e) representing
the deferred and unpaid balance of the purchase price of any property, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the preceding items (other than letters of credit and
reimbursement obligations in respect thereof) would appear as a liability upon a
balance sheet of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of another Person
secured by a Lien on any asset of the specified Person (whether or not such
Indebtedness is assumed by the specified Person) to the extent of the fair
market value of such asset where the Indebtedness so secured is not the
Indebtedness of such Person and, to the extent not otherwise included, the
guaranty by the specified Person of the Indebtedness of any other Person. The
amount of any Indebtedness outstanding as of any date will be (i) the accreted
value of the Indebtedness, in the case of any Indebtedness issued with original
issue discount; and (ii) the principal amount of the Indebtedness, together with
any interest on the Indebtedness that is more than 30 days past due, in the case
of any other Indebtedness.
"Insolvency or Liquidation Proceeding" shall mean (a) any voluntary or
involuntary case or proceeding under the Bankruptcy Code with respect to any
GenTek Obligor, (b) any other voluntary or involuntary insolvency,
reorganization or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding with respect to
any GenTek Obligor or with respect to any of their respective assets, (c) any
liquidation, dissolution, reorganization or winding up of any GenTek Obligor
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy or (d) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of any GenTek Obligor.
"Junior Agent" shall include, in addition to the Junior Agent referred
to in the recitals hereto, the then acting administrative agent for the Junior
Lenders and any successor thereto exercising substantially the same rights and
powers, or if there is no administrative agent acting for the Junior Lenders
under the Junior Loan Agreement, the Junior Lenders holding a majority in
principal amount of Junior Lender Claims then outstanding.
"Junior Lender Claims" shall mean, without duplication, (a) all
Obligations arising under or with respect to the Junior Lender Documents or any
of them and (b) all interest accrued or accruing (or which would, absent the
commencement of an Insolvency or Liquidation Proceeding, accrue) after the
commencement of an Insolvency or Liquidation Proceeding in accordance with and
at the rate specified in the Junior Loan Agreement whether or not the claim for
such interest is allowed as a claim in such Insolvency or Liquidation
Proceeding. To the extent any payment with respect to the Junior Lender Claims
(whether by or on behalf of any GenTek Obligor, as proceeds of security,
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential in any respect, set aside or required to be paid to a debtor in
possession, trustee, receiver or similar Person, then the obligation or part
thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
"Junior Lender Collateral" shall mean all of the assets of each GenTek
Obligor whether real, personal or mixed, in which the Junior Lenders or the
Junior Agent or any of them now or hereafter holds a Lien as security for any
Junior Lender Claim.
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"Junior Lender Collateral Documents" shall mean the Junior Lender
Security Agreement, the Junior Lender Pledge Agreement, the Junior Lender
Mortgages, and any document or instrument executed and delivered pursuant to any
Junior Lender Document at any time or otherwise pursuant to which a Lien is
granted by a GenTek Obligor to secure any of the Junior Lender Claims or under
which rights or remedies with respect to any such Lien are governed, as the same
may be amended, renewed, extended, supplemented or modified from time to time.
"Junior Lender Documents" shall mean the Junior Loan Agreement, the
Junior Lender Collateral Documents, and any other related document or instrument
executed and delivered pursuant to any Junior Lender Document at any time or
otherwise evidencing any Junior Lender Claims, as the same may be amended,
renewed, extended, supplemented or modified from time to time.
"Junior Lender Mortgages" shall mean a collective reference to each
mortgage, deed of trust and any other document or instrument under which any
Lien on real property owned by any GenTek Obligor is granted to secure the
Junior Lender Claims or under which rights or remedies with respect to any such
Liens are governed, as the same may be amended, renewed, extended, supplemented
or modified.
"Junior Lender Pledge Agreement" shall mean the Pledge Agreement dated
as of the date hereof, among the GenTek Obligors (other than Noma) and the
Junior Agent, as the same may be amended, renewed, extended, supplemented or
modified from time to time in accordance with its terms.
"Junior Lender Security Agreement" shall mean the Security Agreement,
dated as of the date hereof, between one or more of the GenTek Obligors (other
than Noma) and the Junior Agent, as the same may be amended, renewed, extended,
supplemented or modified from time to time in accordance with the terms thereof.
"Junior Lenders" shall mean the Persons holding Junior Lender Claims.
"Maximum Senior Lender Claim Amount" shall mean the principal amount of
$175,000,000.
"Necessary Lenders" shall mean, with respect to any amendment or
modification of the Senior Credit Agreement, or any termination or waiver of any
provision of the Senior Credit Agreement, or any consent or departure by any of
the GenTek Obligors therefrom, the Senior Agent or those Senior Lenders, as the
case may be, the approval of which is required to approve such amendment or
modification, termination or waiver or consent or departure.
"Noma" means Noma Company, a Nova Scotia unlimited liability company.
"Obligations" shall mean any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities (contingent or
otherwise) payable under the documentation governing any Indebtedness (including
any obligation to post cash collateral in respect of letters of credit and any
other obligations), or any other obligation, indebtedness or liability in
respect of Bank Products.
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"Person" shall mean any person, individual, sole proprietorship,
partnership, joint venture, corporation, unincorporated organization,
association, institution, entity or other party, including, without limitation,
any government and any political subdivision, agency or instrumentality thereof.
"Pledged Collateral" shall mean the "Pledged Securities" under, and as
defined in, the Senior Lender Pledge Agreement and any other shared collateral
in the possession of the Senior Agent (or its agents).
"Recovery" shall have the meaning set forth in Section 6.5 hereof.
"Security Agreements" shall mean the Senior Lender Security Agreement
and the Junior Lender Security Agreement.
"Senior Agent" shall include, in addition to the Senior Agent referred
to in the recitals hereto, the then acting agent for the Senior Lenders (or if
there is more than one agent, a majority of them) under the Senior Lender
Documents and any successor thereto exercising substantially the same rights and
powers, or if there is no acting Senior Agent under the Senior Credit Agreement,
the Necessary Lenders.
"Senior Credit Agreement" shall have the meaning set forth in the
recitals hereto.
"Senior Lender Claims" shall mean, without duplication (a) all
Obligations (as defined in the Senior Credit Agreement) and all extensions of
credit under any financing under section 364 of the Bankruptcy Code or any
arrangement for use of cash collateral under section 363 of the Bankruptcy Code
(the terms of which are consented to by the Senior Agent in its capacity as
such) and (b) all interest accrued or accruing (or which would, absent the
commencement of an Insolvency or Liquidation Proceeding, accrue) after the
commencement of an Insolvency or Liquidation Proceeding in accordance with and
at the rate specified in the Senior Credit Agreement whether or not the claim
for such interest is allowed as a claim in such Insolvency or Liquidation
Proceeding; provided that the sum of the principal amount of Revolving Loans and
reimbursement obligations in respect of Letters of Credit outstanding at any
time shall not exceed the Maximum Senior Lender Claim Amount. To the extent any
payment with respect to the Senior Lender Claims (whether by or on behalf of any
GenTek Obligor, as proceeds of security, enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential in any respect, set
aside or required to be paid to a debtor in possession, trustee, receiver or
similar Person, then the obligation or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
"Senior Lender Collateral" shall mean all of the assets of each GenTek
Obligor whether real, personal or mixed, in which the Senior Lenders or the
Senior Agent or any of them now or hereafter holds a Lien as security for any
Senior Lender Claim.
"Senior Lender Collateral Documents" shall mean the Senior Lender
Security Agreement, the Senior Lender Pledge Agreement, the Mortgages, and any
Loan Document or other document or instrument pursuant to which a Lien is
granted securing any of the Senior
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Lender Claims, as the same may be amended, renewed, extended, supplemented or
modified from time to time.
"Senior Lender Documents" shall mean the Senior Credit Agreement, the
Senior Lender Collateral Documents and each of the other Loan Documents, each
document or instrument evidencing or governing any Bank Product, all documents
and instruments evidencing any other obligation under the Senior Credit
Agreement, any other related document or instrument executed or delivered
pursuant to any Senior Lender Document at any time and any other related
document or instrument otherwise evidencing, governing or related to any Senior
Lender Claims, as any such document or instrument may from time to time be
amended, replaced, renewed, restated, supplemented or otherwise modified.
"Senior Lender Pledge Agreement" shall mean the Pledge Agreement, dated
as of the date hereof, between the GenTek Obligors (other than Noma) and the
Senior Agent, as the same may be amended, renewed, extended, supplemented or
modified from time to time in accordance with its terms. "Senior Lender Security
Agreement" shall mean the Security Agreement, dated as of the date hereof,
between the GenTek Obligors (other than Noma) and the Senior Agent, as the same
may be amended, renewed, extended, supplemented or modified from time to time in
accordance with the terms thereof.
"Senior Lenders" shall mean the Persons holding Senior Lender Claims,
including, without limitation, the Senior Agent.
"Shared Collateral" shall mean all of the assets of any GenTek Obligor
whether real, personal or mixed, constituting both Senior Lender Collateral and
Junior Lender Collateral.
"Uniform Commercial Code" or "UCC" shall mean the Uniform Commercial
Code of the State of New York, as amended.
Section 2. Lien Priorities.
2.1 Subordination. Notwithstanding the date, manner or order of grant,
attachment or perfection of any Liens granted to the Junior Agent or any of the
Junior Lenders on the Shared Collateral or of any Liens granted to the Senior
Agent or any of the Senior Lenders on the Shared Collateral and notwithstanding
any provision of the UCC, or any applicable law or the Junior Lender Documents
or the Senior Lender Documents or any other circumstance whatsoever, the Junior
Agent, on behalf of itself and the Junior Lenders, hereby agrees that: (a) any
Lien on the Shared Collateral securing all or any portion of the Senior Lender
Claims now or hereafter held by the Senior Agent or any of the Senior Lenders
shall be senior and prior to any Lien on the Shared Collateral securing all or
any portion of the Junior Lender Claims; and (b) any Lien on the Shared
Collateral now or hereafter held by the Junior Agent or any of the Junior
Lenders regardless of how acquired, whether by grant, statute, operation of law,
subrogation or otherwise, shall be junior and subordinate in all respects to all
Liens on the Shared Collateral securing all or any portion of the Senior Lender
Claims. Subject to Section 2.2, all Liens on the Shared Collateral securing all
or any portion of the Senior Lender Claims shall be and remain senior to all
Liens on the Shared Collateral securing all or any
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portion of the Junior Lender Claims for all purposes, whether or not any such
Liens securing all or any portion of the Senior Lender Claims are subordinated
to any Lien securing any other obligation of any GenTek Obligor.
2.2 Prohibition on Contesting Liens. Each of the Junior Agent, for
itself and on behalf of each Junior Lender, and the Senior Agent, for itself and
on behalf of each Senior Lender, agrees that it shall not (and hereby waives any
right to) contest or support any other Person in contesting, in any proceeding
(including, without limitation, any Insolvency or Liquidation Proceeding), the
priority of each Lien provided for herein or the validity or enforceability of a
Lien held by the Senior Agent or any of the Senior Lenders in any of the Senior
Lender Collateral or by the Junior Agent or any of the Junior Lenders in any of
the Shared Collateral, respectively. Notwithstanding anything herein to the
contrary, in the event it is determined by a final, non-appealable order of a
court of competent jurisdiction (in any action or proceeding in which neither
the Junior Agent nor any of the Junior Lenders have violated the terms of this
Section 2.2) that a Lien in favor of the Senior Agent or the Senior Lenders on
any portion of the Shared Collateral shall be equitably subordinated by virtue
of the misconduct of the Senior Agent or the Senior Lender to the claims of
creditors of the applicable GenTek Obligor, then the Junior Lenders shall not be
required to subordinate their Lien on such portion of the Shared Collateral, but
only if it is or has been determined that the Lien of the Junior Lenders in such
Shared Collateral is valid and enforceable.
2.3 No New Liens. The parties hereto agree that prior to the Discharge
of Senior Lender Claims (a) if the Junior Agent or any Junior Lender shall hold
any Lien on any assets of GenTek or any Subsidiary of GenTek securing any Junior
Lender Claims that are not also subject to the first-priority Lien of the Senior
Agent or have not been consented to by the Necessary Lenders, under the Senior
Lender Documents, the Junior Agent, upon demand by the Senior Agent, will either
release (or cause the release of) such Lien or assign (or cause to be assigned)
a first-priority Lien to the Senior Agent as security for the Senior Lender
Claims, (b) each GenTek Obligor hereby agrees not to grant any Lien on any of
its assets, or permit any Subsidiary thereof to xxxxx x Xxxx on any of its
assets, in favor of the Junior Agent or any Junior Lender unless it, or such
Subsidiary, has granted a similar Lien on such assets in favor of the Senior
Agent or such Lien has been consented to by the Necessary Lenders, and (c) each
GenTek Obligor hereby agrees that it shall not permit any Foreign Subsidiary or
other Non-Loan Party (including, without limitation, Noma) to grant any Lien on
any of its assets and the Junior Agent on behalf of itself and the Junior
Lenders agree that neither it nor they shall accept any such grant of a Lien
(and if any such grant is nevertheless made, the Junior Agent on behalf of
itself and the Junior Lenders hereby releases such Lien).
Section 3. Enforcement.
3.1 Exercise of Remedies.
(a) Prior to the Discharge of Senior Lender Claims, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against any GenTek
Obligor: (i) the Junior Agent and the Junior Lenders will not exercise or seek
to exercise any rights or remedies (including setoff) with respect to any Shared
Collateral, institute any action or proceeding with respect to any such rights
or remedies, including, without limitation, any action
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of foreclosure, contest, protest or object to any foreclosure proceeding or
action brought by the Senior Agent or any Senior Lender, the exercise of any
right under any Blocked Account Agreement, landlord waiver or bailee's waiver or
similar agreement or arrangement to which the Junior Agent or any Junior Lender
is a party, or any other exercise by any such party, of any rights and remedies
relating to the Shared Collateral under the Junior Lender Documents or
otherwise, or object to the forbearance by the Senior Agent or any of the Senior
Lenders from bringing or pursuing any foreclosure proceeding or action or any
other exercise of any rights or remedies relating to the Shared Collateral; and
(ii) the Senior Agent and the Senior Lenders shall have the exclusive right to
enforce rights, exercise remedies (including, without limitation, setoff and the
right to credit bid their debt) and make determinations regarding release,
disposition, or restrictions with respect to the Shared Collateral without any
consultation with or the consent of the Junior Agent or any Junior Lender.
(b) In exercising rights and remedies with respect to the Shared
Collateral, the Senior Agent and the Senior Lenders may enforce the provisions
of the Senior Lender Documents and exercise remedies thereunder, all in such
order and in such manner as they may determine in the exercise of their sole
discretion. Such exercise and enforcement shall include, without limitation, the
rights of an agent appointed by them to sell or otherwise dispose of Shared
Collateral upon foreclosure, to incur expenses in connection with such sale or
disposition, and to exercise all the rights and remedies of a secured lender
under the Uniform Commercial Code of any applicable jurisdiction and of a
secured creditor under bankruptcy or similar laws of any applicable
jurisdiction.
(c) The Junior Agent, on behalf of itself and the Junior Lenders, agrees
that, prior to the Discharge of Senior Lender Claims, it will not take or
receive any Shared Collateral or any proceeds of Shared Collateral in connection
with the exercise of any right or remedy (including setoff) with respect to any
Shared Collateral. Without limiting the generality of the foregoing, prior to
the Discharge of Senior Lender Claims, the sole right of the Junior Agent and
the Junior Lenders with respect to the Shared Collateral is to hold a Lien on
the Shared Collateral pursuant to the Junior Lender Documents for the period and
to the extent granted therein and to receive the proceeds thereof, if any, after
the Discharge of Senior Lender Claims.
(d) The Junior Agent, for itself or on behalf of the Junior Lenders, (i)
agrees that neither it nor any of the Junior Lenders will take any action that
would hinder any exercise of remedies undertaken by the Senior Agent or any
Senior Lender under the Senior Loan Documents, including any sale, lease,
exchange, transfer or other disposition of any Shared Collateral, whether by
foreclosure or otherwise and (ii) hereby waives any and all rights it or any of
the Junior Lenders may have as a junior lien creditor or otherwise to object to
the manner in which the Senior Agent or any of the Senior Lenders seek to
enforce or collect any Senior Lender Claims or any Liens granted in any of the
Senior Lender Collateral (except to the extent any such waiver is not
enforceable under applicable law).
3.2 Cooperation. The Junior Agent, on behalf of itself and the Junior
Lenders, agrees that, prior to the Discharge of Senior Lender Claims, it will
not commence, or join with any Person (other than the Senior Lenders and the
Senior Agent upon the request thereof) in commencing any enforcement,
collection, execution, levy or foreclosure action or proceeding with respect to
any Lien held by it under any of the Junior Lender Documents or otherwise.
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Section 4. Payments.
4.1 Application of Proceeds. Prior to the Discharge of Senior Lender
Claims, the cash proceeds of Shared Collateral received in connection with the
sale of, or collection on, such Shared Collateral upon the exercise of remedies,
shall be applied by the Senior Agent to the Senior Lender Claims in such order
as specified in the Senior Credit Agreement. Following Discharge of Senior
Lender Claims, the Senior Agent shall deliver to the Junior Agent any proceeds
of Shared Collateral held by it in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct. The
Junior Agent is hereby authorized to make any such endorsements as agent for the
Senior Agent or any such Senior Lender at any time following the Discharge of
Senior Lender Claims. This authorization is coupled with an interest and is
irrevocable.
4.2 Payments Over. Prior to the Discharge of Senior Lender Claims, any
Shared Collateral or proceeds thereof received by the Junior Agent or any Junior
Lender in connection with the exercise of any right or remedy (including setoff)
relating to any Shared Collateral shall be segregated and held in trust and
forthwith paid over to the Senior Agent for the benefit of the Senior Lenders in
the same form as received, with any necessary endorsements or as a court of
competent jurisdiction may otherwise direct. The Senior Agent is hereby
authorized to make any such endorsements as agent for the Junior Agent or any
such Junior Lender. This authorization is coupled with an interest and is
irrevocable.
Section 5. Other Agreements.
5.1 Releases.
(a) If in connection with:
(i) the exercise of the Senior Agent's or any Senior Lender's
remedies in respect of any of the Shared Collateral provided for in
Section 3.1, including any sale, lease, exchange, transfer or other
disposition of such Shared Collateral; or
(ii) any sale, lease, exchange, transfer or other disposition of
Shared Collateral permitted under the terms of the Senior Credit
Agreement or permitted pursuant to a waiver or consent by the Necessary
Lenders of a transaction otherwise prohibited by the Senior Credit
Agreement (whether or not an event of default under, and as defined in
the Senior Credit Agreement, has occurred and is continuing);
the Senior Agent, for itself or on behalf of any of the Senior Lenders, releases
any of its Liens on any part of the Shared Collateral (or any Guarantor from its
obligations under its guaranty of any or all of the Senior Lender Claims), the
Liens of the Junior Agent, for itself or for the benefit of the Junior Lenders,
on such Shared Collateral (and the obligations of such Guarantor under its
guaranty of any or all of the Junior Lender Claims) shall be automatically,
unconditionally and simultaneously released and the Junior Agent, for itself and
on behalf of each Junior Lender, promptly shall execute and deliver to the
Senior Agent or GenTek, at GenTek's cost and expense, such termination
statements, releases and other documents as the Senior Agent or GenTek may
reasonably request to effectively confirm such release.
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(b) The Junior Agent, for itself and on behalf of the Junior Lenders,
hereby irrevocably constitutes and appoints the Senior Agent and any officer or
agent of the Senior Agent, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of the Junior Agent or such holder from time to time in the Senior
Agent's discretion, for the purpose of carrying out the terms of this Section
5.1, to take any and all appropriate action and to execute any and all documents
and instruments which may be necessary or desirable to accomplish the purposes
of this Section 5.1, including, without limitation, any financing statements,
endorsements or other instruments or transfer or release.
5.2 Insurance. Prior to the Discharge of Senior Lender Claims, the
Senior Agent and the Senior Lenders shall have the sole and exclusive right,
subject to the rights of the GenTek Obligors, if any, under the Senior Lender
Documents, to adjust settlement for any insurance policy covering any Shared
Collateral in the event of any loss thereunder and to approve any award granted
in any condemnation or similar proceeding affecting any Shared Collateral. All
proceeds of any insurance policy covering any Shared Collateral and any award
granted in any condemnation or similar proceeding affecting any Shared
Collateral shall be paid; first to the Senior Agent for the benefit of the
Senior Agent and the Senior Lenders to the extent required under the Senior
Credit Agreement, second, but only following the Discharge of Senior Lender
Claims, to the Junior Agent for the benefit of the Junior Lenders to the extent
required under the applicable Junior Lender Documents, and third (second if
prior to the Discharge of Senior Lender Claims) to the owner of the subject
property or as a court of competent jurisdiction may otherwise direct. If the
Junior Agent or any Junior Lender shall, at any time, receive any proceeds of
any such insurance policy or any such award in contravention of this Agreement,
it shall pay such proceeds over to the Senior Agent in accordance with the terms
of Section 4.2.
5.3 Amendments to Junior Lender Documents.
(a) Without the prior written consent of the Senior Agent (with the
consent of the Necessary Lenders), no Junior Lender Document may be amended,
supplemented or otherwise modified or entered into to the extent such amendment,
supplement or modification, or the terms of any new Junior Lender Document,
would be adverse in any material respect to the Senior Lenders or inconsistent
with the terms of any Senior Lender Document or this Agreement.
(b) In the event the Necessary Lenders enter into any amendment, waiver
or consent in respect of any of the Senior Lender Collateral Documents for the
purpose of adding to, or deleting from, or waiving or consenting to any
departures from any provisions of, any such Senior Lender Collateral Document or
changing in any manner the rights of the Senior Agent, the Senior Lenders or the
GenTek Obligors (or any of them) thereunder, then such amendment, waiver or
consent shall, by this reference, apply automatically to any comparable
provision of the Comparable Junior Lender Collateral Document without the
consent of either the Junior Agent or the Junior Lenders and without any action
by the Junior Agent, any Junior Lender or any GenTek Obligor; provided, however,
(A) that no such amendment, waiver or consent shall have the effect of removing
assets subject to the Lien of the Junior Lender Collateral Documents, except to
the extent that a release of such Lien is permitted by Section 5.1 and (B)
notice of such amendment, waiver or consent shall be given to the Junior Agent.
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(c) The Junior Agent agrees that each Junior Lender Collateral Document
shall include the following language:
Notwithstanding anything herein to the contrary, the lien and
security interest granted to the Junior Agent pursuant to this
Agreement and the exercise of any right or remedy by the Junior
Agent hereunder are subject to the provisions of the Intercreditor
Agreement, dated as of November 10, 2003 (the "Intercreditor
Agreement") among Bank of America, N.A., as Senior Agent, BNY Asset
Solutions LLC, as Junior Agent, and GenTek Inc. and the
subsidiaries of GenTek Inc. party thereto. In the event of any
conflict between the terms of the Intercreditor Agreement and this
Agreement, the terms of the Intercreditor Agreement shall govern.
5.4 Rights As Unsecured Creditors.
(a) Nothing in this Agreement shall prohibit the receipt by the Junior
Agent or any Junior Lenders of the required payments of principal and interest
so long as (i) such payment by the GenTek Obligors is made in accordance with
the terms of the Senior Credit Agreement (as in effect as of the date hereof)
and (ii) such receipt by the Junior Lenders is not the direct or indirect result
of the exercise by the Junior Agent or any Junior Lender of rights or remedies
as a secured creditor or enforcement of any Lien held by any of them. The Junior
Agent shall not be liable for determining in good faith that a payment received
by it was made in compliance with the terms hereof and shall be under no
obligation to determine if such payment is made in accordance with the terms of
the Senior Credit Agreement; provided nothing herein shall limit the rights of
the Senior Agent or the Senior Lenders against the Junior Lenders in the event
any payment received by the Junior Agent and distributed to the Junior Lenders
was not made in compliance herewith.
(b) Notwithstanding anything to the contrary in this Agreement, the
Junior Agent and the Junior Lenders may exercise rights and remedies as an
unsecured creditor against the GenTek Obligors in accordance with the terms of
the Junior Lender Documents and applicable law. In the event the Junior Agent or
any Junior Lender becomes a judgment lien creditor in respect of Shared
Collateral as a result of its enforcement of its rights as an unsecured
creditor, such judgment lien shall be subordinated to the Liens securing Senior
Lender Claims on the same basis as the other Liens securing the Junior Lender
Claims are so subordinated to such Senior Lender Claims under this Agreement.
Nothing in this Agreement modifies any rights or remedies the Senior Agent or
any of the Senior Lenders may have with respect to the Senior Lender Collateral.
5.5 Agent and Bailee for Perfection
(a) The Senior Agent agrees to hold the Shared Collateral that is in its
possession (or in the possession of its agents) as bailee for the Junior Agent
solely for the purpose of perfecting the security interest granted in such
Shared Collateral pursuant to the Junior Lender Security Agreement or other
applicable agreement, subject to the terms and conditions of this Section 5.5.
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(b) Prior to the Discharge of Senior Lender Claims, the Senior Agent
shall be entitled to deal with the Shared Collateral in its possession or under
its control in accordance with the terms of the Senior Lender Documents and this
Agreement. The rights of the Junior Agent shall at all times be subject to the
terms of this Agreement and to the Senior Agent's rights under the Senior Lender
Documents and this Agreement.
(c) The Senior Agent shall have no obligation whatsoever to the Junior
Agent or any Junior Lender to assure that the Shared Collateral in its
possession or under its control is genuine or owned by a GenTek Obligor or to
preserve rights or benefits of any Person except as expressly set forth in this
Section 5.5. The duties or responsibilities of the Senior Agent under this
Section 5.5 shall be limited solely to holding the Pledged Collateral as bailee
for the Junior Agent for purposes of perfecting the Junior Lien thereon held by
the Junior Agent.
(d) The Senior Agent shall not have by reason of this Agreement or any
other document a fiduciary relationship in respect of the Junior Agent or any
Junior Lender. The Junior Agent shall not have by reason of this Agreement or
any other document a fiduciary relationship in respect of the Senior Agent or
any Senior Lender.
(e) Following the Discharge of Senior Lender Claims, at the expense of
the GenTek Obligors, the Senior Agent shall deliver to the Junior Agent the
Pledged Collateral together with any necessary endorsements (or otherwise allow
the Junior Agent to obtain control of such Pledged Collateral) or as a court of
competent jurisdiction may otherwise direct, and shall take all steps reasonably
requested by the Junior Agent to release its Liens on the Shared Collateral
(subject to the terms of the applicable Senior Lender Collateral Document).
Section 6. Insolvency or Liquidation Proceedings.
6.1 Financing Issues. If any GenTek Obligor shall be subject to any
Insolvency or Liquidation Proceeding and the Senior Agent shall desire to permit
the use of cash collateral or to permit the GenTek Obligors (or any of them) to
obtain financing under section 363 or section 364 of the Bankruptcy Code ("DIP
Financing"), then the Junior Agent, on behalf of itself and the Junior Lenders,
agrees that it will raise no objection to such use or DIP Financing and will not
request adequate protection or any other relief in connection therewith (except
to the extent permitted by Section 6.3) and, to the extent any of the Liens
securing any Senior Lender Claims are subordinated or pari passu with such DIP
Financing, the Junior Agent will subordinate its Liens in the Shared Collateral
to such DIP Financing and all Obligations relating thereto on the same basis as
the Liens securing the Junior Lender Claims are subordinated to the other Senior
Lender Claims under this Agreement.
6.2 Relief from the Automatic Stay. The Junior Agent, on behalf of
itself and the Junior Lenders, agrees that, prior to the Discharge of Senior
Lender Claims, none of them shall seek relief from the automatic stay or any
other stay in any Insolvency or Liquidation Proceeding in respect of the Shared
Collateral, without the prior written consent of the Senior Agent (with the
consent of the Necessary Lenders).
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6.3 Adequate Protection.
(a) The Junior Agent, on behalf of itself and the Junior Lenders, agrees
that none of them shall contest (or support any other Person contesting) (i) any
request by the Senior Agent or any of the Senior Lenders for adequate protection
or (ii) any objection by the Senior Agent or the Senior Lenders to any motion,
relief, action or proceeding based on the Senior Agent or any of the Senior
Lenders claiming a lack of adequate protection.
(b) Notwithstanding the foregoing clause (a), in any Insolvency or
Liquidation Proceeding, if the Senior Lenders (or any subset thereof) are
granted adequate protection in the form of additional collateral and the payment
of the reasonable fees and expenses of the Senior Agent's legal and financial
advisors in connection with any DIP Financing or use of its cash collateral
under section 363 or section 364 of the Bankruptcy Code, then the Senior Agent
(on behalf of the Senior Lenders) will raise no objection to the grant of
adequate protection in the form of (i) the payment of the reasonable fees and
expenses of the Junior Agent's legal and financial advisors and (ii) additional
collateral to the Junior Agent, on behalf of itself or any of the Junior
Lenders, which Lien shall be subordinated to the Liens securing the Senior
Lender Claims and such DIP Financing (and all Obligations relating thereto) on
the same basis as the other Liens securing the Junior Lender Claims are so
subordinated to the Senior Lender Claims under this Agreement.
6.4 No Waiver. Nothing contained herein shall prohibit or in any way
limit the Senior Agent or any Senior Lender from objecting in any Insolvency or
Liquidation Proceeding or otherwise to any action taken by the Junior Agent or
any of the Junior Lenders in contravention of this Agreement, including, without
limitation, the seeking by the Junior Agent or any Junior Lender of adequate
protection or the asserting by the Junior Agent or any Junior Lender of any of
its rights and remedies under the Junior Lender Documents or otherwise in
contravention of this Agreement.
6.5 Preference Issues. If the Senior Agent or any Senior Lender is
required in any Insolvency or Liquidation Proceeding or otherwise to turn over
or otherwise pay to the estate of any GenTek Obligor any amount (a "Recovery"),
then the Senior Lender Claims shall be reinstated to the extent of such Recovery
and the Senior Agent and/or the relevant Senior Lenders shall be entitled to the
Discharge of Senior Lender Claims with respect to all such recovered amounts. If
this Agreement shall have been terminated prior to such Recovery, this Agreement
shall be reinstated in full force and effect, and such prior termination shall
not diminish, release, discharge, impair or otherwise affect the obligations of
the parties hereto from such date of reinstatement.
6.6 Certain Junior Lender Rights. Notwithstanding anything in this
Agreement to the contrary, prior to the Discharge of the Senior Lender Claims,
in any Insolvency or Liquidation Proceeding commenced by or against any GenTek
Obligor, the Junior Agent or any Junior Lender may file a claim or statement of
interest with respect to the Junior Lender Claims and shall retain the right to
vote and otherwise act as a party in interest (subject to the limitations set
forth in this Agreement) in such Insolvency or Liquidation Proceeding
(including, without limitation, the right to vote to accept or reject any plan
of reorganization); provided that no such Person shall vote with respect to any
such plan of reorganization which adversely affects
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(i) the validity of any Liens granted to or for the benefit of the Senior Agent
or any Senior Lender, (ii) the relative rights and duties of the holders of the
Senior Lender Claims established in the Senior Lender Documents and this
Agreement with respect to such Liens or (iii) the enforceability of the Senior
Credit Agreement or this Agreement.
Section 7. Reliance; Waivers; etc.
7.1 Reliance. The consent by the Senior Lenders to the execution and
delivery of the Junior Lender Documents and the grant to the Junior Agent on
behalf of the Junior Lenders of a Lien on the Shared Collateral and all loans
and other extensions of credit made or deemed made on and after the date hereof
by any of the Senior Lenders to any GenTek Obligor shall be deemed to have been
given and made in reliance upon this Agreement.
7.2 No Warranties or Liability.
(a) The Junior Agent, on behalf of itself and the Junior Lenders,
acknowledges and agrees that each of the Senior Agent and the Senior Lenders
have made no express or implied representation or warranty, including, without
limitation, with respect to the execution, validity, legality, completeness,
collectibility or enforceability of any of the Senior Lender Documents. The
Senior Agent and the Senior Lenders will be entitled to manage and supervise
their respective loans and extensions of credit to the GenTek Obligors and any
other subsidiary of GenTek in accordance with law and as they may otherwise, in
their sole discretion, deem appropriate, and the Senior Agent and the Senior
Lenders may manage their loans and extensions of credit without regard to any
rights or interests that the Junior Agent or any of the Junior Lenders have in
the Shared Collateral or otherwise. Neither the Senior Agent nor any Senior
Lender shall have any duty to the Junior Agent or any of the Junior Lenders to
act or refrain from acting in a manner which allows, or results in, the
occurrence or continuance of an event of default or default under any agreements
with any GenTek Obligor (including, without limitation, the Junior Lender
Documents), regardless of any knowledge thereof which they may have or be
charged with.
(b) The Senior Agent, on behalf of itself and the Senior Lenders,
acknowledges and agrees that each of the Junior Agent and the Junior Lenders
have made no express or implied representation or warranty, including, without
limitation, with respect to the execution, validity, legality, completeness,
collectibility or enforceability of any of the Junior Lender Documents. The
Junior Agent and the Junior Lenders will be entitled to manage and supervise
their respective extensions of credit to GenTek in accordance with law and as
they may otherwise, in their sole discretion, deem appropriate, and the Junior
Agent and the Junior Lenders may manage their extensions of credit without
regard to any rights or interests that the Senior Agent or any of the Senior
Lenders have in the Shared Collateral or otherwise, except as otherwise provided
in this Agreement. Except as provided in this Agreement, neither the Junior
Agent nor any Junior Lender shall have any duty to the Senior Agent or any of
the Senior Lenders to act or refrain from acting in a manner which allows, or
results in, the occurrence or continuance of an event of default or default
under any agreements with GenTek (including, without limitation, the Senior
Lender Documents), regardless of any knowledge thereof which they may have or be
charged with.
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7.3 No Waiver of Lien Priorities.
(a) No right of the Senior Lenders, the Senior Agent or any of them to
enforce any provision of this Agreement shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of any GenTek
Obligor or by any act or failure to act by any Senior Lender or the Senior
Agent, or by any noncompliance by any Person with the terms, provisions and
covenants of this Agreement, any of the Senior Lender Documents or any of the
Junior Lender Documents, regardless of any knowledge thereof which the Senior
Agent or the Senior Lenders, or any of them, may have or be otherwise charged
with. No right of the Junior Lenders, the Junior Agent or any of them to enforce
any provision of this Agreement shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of any GenTek Obligor or by
any act or failure to act by any Junior Lender or the Junior Agent, or by any
noncompliance by any Person with the terms, provisions and covenants of this
Agreement, any of the Junior Lender Documents or any of the Senior Lender
Documents, regardless of any knowledge thereof which the Junior Agent or the
Junior Lenders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing
paragraph (but subject to the rights of the GenTek Obligors under the Senior
Lender Documents), the Senior Lenders, the Senior Agent and any of them may, at
any time and from time to time, without the consent of, or notice to, the Junior
Agent or any Junior Lender, without incurring any liabilities to the Junior
Agent or any Junior Lender and without impairing or releasing the lien
priorities and other benefits provided in this Agreement (even if any right of
subrogation or other right or remedy of the Junior Agent or any Junior Lender is
affected, impaired or extinguished thereby) do any one or more of the following:
(i) change the manner, place or terms of payment or change or
extend the time of payment of, or renew, exchange, amend, increase or
alter, the terms of any of the Senior Lender Claims or any Lien in any
Senior Lender Collateral or guaranty thereof or any liability of any
GenTek Obligor, or any liability incurred directly or indirectly in
respect thereof (including, without limitation, any increase in or
extension of the Senior Lender Claims), without any restriction as to
the amount, tenor or terms of any such increase or extension or
otherwise amend, renew, exchange, extend, modify or supplement in any
manner any Liens held by the Senior Agent or any of the Senior Lenders,
any of the Senior Lender Claims or any of the Senior Lender Documents;
provided that the sum of the principal amount of Revolving Loans and
reimbursement obligations in respect of Letters of Credit shall not
exceed at any time the Maximum Senior Lender Claim Amount;
(ii) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any part of the
Senior Lender Collateral or any liability of any GenTek Obligor to any
of the Senior Lenders or the Senior Agent, or any liability incurred
directly or indirectly in respect thereof;
(iii) settle or compromise any Senior Lender Claim or any other
liability of any GenTek Obligor (other than the Junior Lender Claims) or
any security therefor or any liability incurred directly or indirectly
in respect thereof and apply any
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sums by whomsoever paid and however realized to any liability
(including, without limitation, any of the Senior Lender Claims) in any
manner or order; and
(iv) exercise or delay in or refrain from exercising any right or
remedy against any security or any GenTek Obligor or any other Person,
elect any remedy and otherwise deal freely with each GenTek Obligor and
the Senior Lender Collateral and any security and any guarantor or any
liability of any GenTek Obligor to any of the Senior Lenders or the
Senior Agent or any liability incurred directly or indirectly in respect
thereof.
(c) The Senior Agent, on behalf of itself and the Senior Lenders, also
agrees that the Junior Agent and the Junior Lenders shall have no liability
(other than pursuant to the terms here of and applicable Requirements of Law) to
the Senior Agent or any Senior Lender, and, subject to the terms here of and
applicable Requirements of Law, the Senior Agent, on behalf of itself and the
Senior Lenders, hereby waives any claim against the Junior Agent or any Junior
Lender, arising out of any and all actions which any of the Junior Lenders or
the Junior Agent may take or permit or omit to take with respect to: (i) the
Junior Lender Documents, (ii) the collection of any of the Junior Lender Claims,
or (iii) the release of any Lien in respect of any Shared Collateral. The Senior
Agent, on behalf of itself and the Senior Lenders, agrees that the Junior
Lenders and the Junior Agent have no duty to them in respect of the maintenance
or preservation of the Junior Lender Collateral, the Junior Lender Claims or
otherwise other than as expressly set forth herein.
(d) The Junior Agent, on behalf of itself and the Junior Lenders, also
agrees that the Senior Lenders and the Senior Agent shall have no
liability(other than pursuant to the terms hereof and applicable Requirements of
Law) to the Junior Agent or any Junior Lender, and, subject to the terms here of
and applicable Requirements of Law, the Junior Agent, on behalf of itself and
the Junior Lenders, hereby waives any claim against any Senior Lender or the
Senior Agent, arising out of any and all actions which any of the Senior Lenders
or the Senior Agent may take or permit or omit to take with respect to: (i) the
Senior Lender Documents, (ii) the collection of any of the Senior Lender Claims,
(iii) the foreclosure upon, or sale, liquidation or other disposition of, any of
the Senior Lender Collateral or the Shared Collateral, or (iv) the release of
any Lien in respect of any Shared Collateral. The Junior Agent, on behalf of
itself and the Junior Lenders, agrees that the Senior Lenders and the Senior
Agent have no duty to them in respect of the maintenance or preservation of the
Senior Lender Collateral, the Senior Lender Claims or otherwise other than as
expressly set forth herein.
(e) The Junior Agent, on behalf of itself and the Junior Lenders, agrees
not to assert and hereby waives, to the fullest extent permitted by law, any
right to demand, request, plead or otherwise assert or otherwise claim the
benefit of, any marshalling, appraisal, valuation or other similar right that
may otherwise be available under applicable law or any other similar rights a
junior secured creditor may have under applicable law.
7.4 Obligations Unconditional. All rights, interests, agreements and
obligations of the Senior Agent and the Senior Lenders and the Junior Agent and
the Junior Lenders, respectively, hereunder shall remain in full force and
effect irrespective of:
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(a) subject to the last sentence of Section 2.2, any lack of validity or
enforceability of any of the Senior Lender Documents or any Junior Lender
Documents or any non-perfection or avoidance of any Lien in any Senior Lender
Collateral;
(b) any change in the time, manner or place of payment of, or in any
other terms of, all or any of the Senior Lender Claims or Junior Lender Claims,
or any amendment or waiver or other modification, including, without limitation,
any increase in the amount thereof (but subject at all times to the sum of the
principal amount of Revolving Loans and reimbursement obligations in respect of
Letters of Credit not exceeding the Maximum Senior Lender Claim Amount), whether
by course of conduct or otherwise, of the terms of the Senior Credit Agreement
or any other Senior Lender Document or of the terms of the Junior Loan Agreement
or any other Junior Lender Document;
(c) any exchange of any security interest in any Shared Collateral or
any other collateral, or any amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the Senior Lender
Claims or Junior Lender Claims or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in
respect of any GenTek Obligor; or
(e) subject to the last sentence of Section 2.2, any other circumstances
which otherwise might constitute a defense available to, or a discharge of, any
GenTek Obligor in respect of any of the Senior Lender Claims or any Senior
Lender Collateral, or of the Junior Agent or any Junior Lender in respect of
this Agreement.
Section 8. Miscellaneous.
8.1 Conflicts. In the event of any conflict between the provisions of
this Agreement and the provisions of the Senior Lender Documents or the Junior
Lender Documents, the provisions of this Agreement shall govern.
8.2 Continuing Nature of this Agreement. Other than as expressly
provided herein, this Agreement shall continue to be effective until the
Discharge of Senior Lender Claims shall have occurred. This is a continuing
agreement of lien subordination and the Senior Agent and the Senior Lenders may
continue, at any time and without notice to the Junior Agent or any Junior
Lender, to extend credit and other financial accommodations and lend monies to
or for the benefit of any GenTek Obligor constituting Senior Lender Claims on
the faith hereof. The Junior Agent, on behalf of itself and the Junior Lenders,
and the Senior Agent, on behalf of itself and the Senior Lenders, hereby waives
any right it may have under applicable law to revoke this Agreement or any of
the provisions of this Agreement. The terms of this Agreement shall survive, and
shall continue in full force and effect, in any Insolvency or Liquidation
Proceeding.
8.3 Amendments; Waivers. No amendment, modification or waiver of any of
the provisions of this Agreement by the Junior Agent or the Senior Agent shall
be deemed to be made unless the same shall be in writing signed on behalf of
each such party or its authorized agent. No such amendment, modification or
waiver shall be effective until notice thereof has been provided to GenTek. Each
waiver, if any, shall be a waiver only with respect to the specific
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instance involved and shall in no way impair the rights of the parties making
such waiver or the obligations of the other parties to such party in any other
respect or at any other time. No GenTek Obligor shall have any right to amend,
modify or waive any provision of this Agreement without the consent of the
Junior Agent and the Senior Agent nor shall any consent or signed writing be
required of any GenTek Obligor to effect any amendment, modification or waiver
of any provision of this Agreement, except that no amendment, modification or
waiver affecting any obligation or right of any GenTek Obligor hereunder shall
be made without the consent of such GenTek Obligor.
8.4 Information Concerning Financial Condition of the GenTek Obligors.
The Senior Agent and the Senior Lenders, on the one hand, and the Junior Agent
and the Junior Lenders, on the other hand, shall each be responsible for keeping
themselves informed of (a) the financial condition of GenTek and its
Subsidiaries and all endorsers and/or guarantors of the Junior Lender Claims or
the Senior Lender Claims and (b) all other circumstances bearing upon the risk
of nonpayment of the Junior Lender Claims or the Senior Lender Claims. The
Senior Agent and the Senior Lenders shall have no duty to advise the Junior
Agent or any Junior Lender of information known to it or them regarding such
condition or any such circumstances or otherwise and the Junior Agent and the
Junior Lenders shall have no duty to advise the Senior Agent or any Senior
Lender of information known to it or them regarding such condition or any such
circumstances or otherwise. In the event the Senior Agent or any of the Senior
Lenders, in its or their sole discretion, undertakes at any time or from time to
time to provide any such information to the Junior Agent or any Junior Lender,
or in the event the Junior Agent or any of the Junior Lenders, in its or their
sole discretion, undertakes at any time or from time to time to provide any such
information to the Senior Agent or any Senior Lender, such provider of
information shall be under no obligation (x) to provide any additional
information or to provide any such information on any subsequent occasion, (y)
to undertake any investigation or (z) to disclose any information which,
pursuant to accepted or reasonable commercial finance practices, such party
wishes to maintain confidential.
8.5 Subrogation. The Junior Agent, on behalf of itself and the Junior
Lenders, hereby waives any rights of subrogation it may acquire as a result of
any payment hereunder until the Discharge of Senior Lender Claims has occurred.
8.6 Application of Payments. All payments received by the Senior Lenders
may be applied, reversed and reapplied, in whole or in part, to such part of the
Senior Lender Claims as the Senior Lenders, in their sole discretion, deem
appropriate, subject to the terms of the Senior Lender Documents.
8.7 Consent to Jurisdiction; Waivers. The parties hereto consent to the
non-exclusive jurisdiction of any state or federal court located in New York,
New York, and consent that all service of process may be made by registered mail
directed to such party as provided in Section 8.8 (with respect to registered
mail) below for such party. Service so made shall be deemed to be completed
three (3) days after the same shall be posted as aforesaid. The parties hereto
waive any objection to any action instituted in such courts as aforesaid
hereunder based on forum non conveniens, and any objection to the venue of any
such action instituted hereunder. Each of the parties hereto waives any right it
may have to trial by jury in respect of any litigation based on, or arising out
of, under or in connection with this Agreement, any Senior Lender
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Document, any Junior Lender Document, or any course of conduct, course of
dealing, verbal or written statement or action of any party hereto.
8.8 Notices. All notices to the Junior Lenders and the Senior Lenders
permitted or required under this Agreement may be sent to the Junior Agent and
the Senior Agent, respectively. Unless otherwise specifically provided herein,
any notice or other communication herein required or permitted to be given shall
be in writing and may be personally served, telecopied, electronically mailed or
sent by courier service or U.S. mail and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of a telecopy or
electronic mail or four Business Days after deposit in the U.S. mail (registered
or certified, with postage prepaid and properly addressed). For the purposes
hereof, the addresses of the parties hereto shall be as set forth below each
party's name on the signature pages hereto, or, as to each party, at such other
address as may be designated by such party in a written notice to all of the
other parties.
8.9 Further Assurances. The Junior Agent, on behalf of itself and the
Junior Lenders, agrees that it shall take such further action and shall execute
and deliver to the Senior Agent and the Senior Lenders such additional documents
and instruments (in recordable form, if requested) as the Senior Agent or the
Senior Lenders may reasonably request to effectuate the terms of and the lien
priorities contemplated by this Agreement. The Senior Agent, on behalf of itself
and the Senior Lenders, agrees that it shall take such further action and shall
execute and deliver to the Junior Agent such additional documents and
instruments (in recordable form, if requested) as the Junior Agent may
reasonably request to effectuate the terms of and the lien priorities
contemplated by this Agreement.
8.10 Governing Law. This Agreement has been delivered and accepted at
and shall be deemed to have been made at New York, New York and shall be
interpreted, and the rights and liabilities of the parties bound hereby
determined, in accordance with the laws of the State of New York.
8.11 Binding on Successors and Assigns. This Agreement shall be binding
upon the Senior Agent, the Senior Lenders, the Junior Agent, the Junior Lenders
and their respective successors and permitted assigns.
8.12 Specific Performance. The Senior Agent and the Junior Agent may
demand specific performance of this Agreement. The Junior Agent, on behalf of
itself and the Junior Lenders, hereby irrevocably waives any defense based on
the adequacy of a remedy at law and any other defense which might be asserted to
bar the remedy of specific performance in any action which may be brought by the
Senior Agent. The Senior Agent, on behalf of itself and the Senior Lenders,
hereby irrevocably waives any defense based on the adequacy of a remedy at law
and any other defense which might be asserted to bar the remedy of specific
performance in any action which may be brought by the Junior Agent.
8.13 Section Titles; Time Periods. The section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of this Agreement. In the computation of time
periods, unless otherwise specified,
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the word "from" means "from and including" and each of the words "to" and
"until" means "to but excluding" and the word "through" means "to and
including".
8.14 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are attached to the same document.
Delivery of an executed signature page of this Agreement by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof.
8.15 Authorization. By its signature, each Person executing this
Agreement on behalf of a party hereto represents and warrants to the other
parties hereto that it is duly authorized to execute this Agreement.
8.16 No Third Party Beneficiaries. This Agreement and the rights and
benefits hereof shall inure to the benefit of the Senior Agent and the Senior
Lenders and their respective successors and assigns and, to the extent
applicable, the GenTek Obligors, the Junior Agent and the Junior Lenders and
their respective permitted successors and assigns. No other Person, shall have
or be entitled to assert rights or benefits hereunder. GenTek shall cause each
of its Subsidiaries to comply with the terms of this Agreement to the extent
applicable to it.
8.17 Effectiveness. This Agreement shall become effective when executed
and delivered by the parties hereto. This Agreement shall be effective both
before and after the commencement of any Insolvency or Liquidation Proceeding.
All references to any GenTek Obligor shall include such GenTek Obligor as debtor
and debtor-in-possession and any receiver or trustee for such GenTek Obligor (as
the case may be) in any Insolvency or Liquidation Proceeding.
8.18 Severability. If any term or provision set forth in this Agreement
shall be invalid or unenforceable, the remainder of this Agreement, or the
application of such terms or provisions to persons or circumstances, other than
those to which it is held unenforceable, shall not in any way be affected or
impaired thereby.
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BANK OF AMERICA, N.A., as Senior Agent
By:
--------------------------------------------
Name:
Title:
Address:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Account Executive - Business Credit
Telecopy no.: (000) 000-0000
email address: xxxxxxx.xxxx@xxxxxxxxxxxxx.xxx
21
BNY ASSET SOLUTIONS LLC, as Junior Agent
By:
--------------------------------------
Name:
Title:
Address:
000 Xxxx Xxx Xxxxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Risk Management
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
E-mail address:
with a copy to:
BNY Asset Solutions LLC
000 Xxxx Xxx Xxxxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
E-mail address:
22
GENTEK INC., as Borrower and a Guarantor
By:
--------------------------------------
Name:
Title:
NOMA COMPANY
By:
--------------------------------------
Title:
-----------------------------------
GENTEK HOLDING CORPORATION (formerly
known as General Chemical Corporation)
GENERAL CHEMICAL PERFORMANCE PRODUCTS LLC
NOMA HOLDING INC.
GENTEK TECHNOLOGIES MARKETING INC.
VIGILANT NETWORKS LLC
BIG T-2 COMPANY LLC
KRONE DIGITAL COMMUNICATIONS INC.
PRINTING DEVELOPMENTS, INC.
KRONE INTERNATIONAL HOLDING INC.
GENERAL CHEMICAL WEST LLC
GENERAL CHEMICAL LLC
FINI ENTERPRISES, INC.
XXXXXX, INC.
NOMA CORPORATION
NOMA DELAWARE INC.
BALCRANK PRODUCTS INC.
TOLEDO TECHNOLOGIES INC.
DEFIANCE, INC.
XXXXXX HOLDINGS INC.
NOMA O.P., INC.
23
NOMA TECHNOLOGIES LIMITED PARTNERSHIP
TOLEDO TECHNOLOGIES MANAGEMENT LLC
DEFIANCE PRECISION PRODUCTS, INC.
HY-FORM PRODUCTS, INC.
DEFIANCE TESTING AND ENGINEERING SERVICES, INC.
DEFIANCE PRECISION PRODUCTS MANAGEMENT LLC
DEFIANCE PRECISION PRODUCTS MANUFACTURING LLC
DEFIANCE KINEMATICS INC.
BINDERLINE DRAFTLINE, INC.
KRONE HOLDING INC.
KRONE USA INCORPORATED
KRONE INCORPORATED
By:
--------------------------------------------
Title: Vice President
KRONE HOLDING LLC
By: Krone Holding Inc.,
Its Sole Member and Manager
By:
------------------------------------
Title: Vice President
KRONE OPTICAL SYSTEMS INC.
CON-X CORPORATION
By:
--------------------------------------------
Title: Vice President
TOLEDO TECHNOLOGIES MANUFACTURING LLC
By:
--------------------------------------------
Title:
-----------------------------------------
24
