INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this "Agreement") is entered into as of
_____________, 1998, between Foothill Capital Corporation (the "Revolving
Credit Lender"), IBJ Xxxxxxxx Bank and Trust Company (the "Collateral
Agent" and the "Note Agent"), as agent under the Note Purchase Agreement
dated as of _____________, 1998, for the Purchasers of the 12% Senior
Secured Notes (the "Notes") of Xxxxxx Industries, Inc., a Delaware
corporation (the "Debtor"), and as Collateral Agent under the Security and
Pledge Agreement and the Subsidiary Guaranty and Security Agreement, each
dated as of _____________, 1998, and the undersigned Purchasers of the
Notes, with reference to the following recitals of fact:
A. The Revolving Credit Lender provides financing to the Debtor and
its Subsidiary, Xxxxxx-Kinston Corp. ("Xxxxxx-Kinston"), pursuant to the
Revolving Credit Documents. The Revolving Credit Claims are secured by
security interests in the Collateral.
B. For good and valuable consideration the Purchasers acquired the
Notes pursuant to the Note Financing Documents. The Note Claims are secured
by security interests in the Collateral.
C. The Revolving Credit Lender, the Agent, and the Purchasers wish to
enter into this Agreement to establish the respective rights and priorities
of the Revolving Credit Lender, the Agent, and the Purchasers in and to the
Collateral.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which hereby are acknowledged by each party hereto, the parties
hereto hereby agree that:
1. Definitions. Terms used herein that are defined in the UCC have the
meanings defined for those terms in the UCC unless otherwise expressly
defined herein. As used herein, the following terms shall have the meanings
respectively set forth after each:
"Agent" shall mean (a) the Note Agent with respect to any
provision hereof that pertains to the Note Claims, (b) the
Collateral Agent with respect to any provision hereof that
pertains to the Collateral, and (c) both the Note Agent and the
Collateral Agent with respect to any provision hereof that
pertains both to the Note Claims and the Collateral, or if the
context so requires.
"Claims" means the Revolving Credit Claims and the Note
Claims.
"Collateral" means all tangible and intangible real and/or
personal property of the Debtor and any of its Subsidiaries in
which any Creditor or Agent has a Lien, including without
limitation their respective accounts, inventory, general
intangibles, documents, chattel paper, instruments, money,
deposit accounts, securities, investment property, machinery,
equipment, furnishings, fixtures, real property and improvements
thereon, now owned or hereafter acquired, wherever located,, and
all products and proceeds of any thereof, as such terms are
defined in the UCC, as applicable.
"Collateral Agent" has the meaning ascribed thereto in the
introductory paragraph hereof.
"Creditors" means, collectively, the Revolving Credit Lender
and its successors and assigns, if any, and the Purchasers, and
their successors and assigns, if any.
"Creditor Group" means either, but not both, the Revolving
Credit Lender or the Purchasers.
"Creditor Group Claim" shall mean either the Revolving
Credit Claims or the Note Claims, as the context may require.
"Enforcement Action" means, with respect to any Collateral
and any Creditor Group: collecting, repossessing, selling,
leasing or otherwise disposing of all or any part of such
Collateral, or exercising notification or collection rights with
respect to all or any portion thereof, or attempting or agreeing
to do so; commencing the enforcement with respect to such
Collateral of any of the default remedies under any Financing
Documents, the UCC or other applicable laws; or appropriating,
setting off, or applying any part or all of such Collateral in
the possession of, or coming into the possession of, such
Creditor Group or its agent or bailee, to such Creditor Group
Claim.
"Enforcement Period" means, with respect to the Claims of
either Creditor Group, any period of time commencing upon the
occurrence of any default with respect to such Claim that permits
such Creditor Group or its agent or bailee to take any
Enforcement Action, and continuing until the earlier of (a) the
satisfaction in full of such Creditor Group Claims or (b) the
Creditor Group's agreement in writing to terminate such
Enforcement Period.
"Financing Documents" means the Revolving Credit Financing
Documents and the Note Financing Documents.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien, charge or deposit arrangement, or other
arrangement having the practical effect of the foregoing.
"Note Agent" has the meaning ascribed thereto in the
introductory paragraph hereof.
"Note Claims" means all present and future claims of the
Purchasers under or related to the Note Financing Documents,
against the Debtor or its Subsidiaries for the payment of money,
including all claims for principal and interest (including
interest accruing after the commencement of a bankruptcy
proceeding by or against the Debtor or its Subsidiaries, whether
or not such interest is an allowed claim), or for reimbursement
of fees, costs or expenses, or otherwise, whether fixed or
contingent, matured or unmatured, liquidated or unliquidated, and
whether sounding in contract, in tort or otherwise, and including
all fees and expenses of the Agent in any capacity (including as
Registrar, Transfer Agent, Paying Agent, Note Agent, and
Collateral Agent).
"Note Collateral" means all Collateral other than the
Revolving Credit Collateral.
"Note Financing Documents" means the Note Purchase
Agreement, the Note Security Agreement, and all notes, security
documents or other documents or agreements in any way evidencing
or relating to the Note Claims, as the same may from time to time
be amended, modified, renewed, extended or restated.
"Note Purchase Agreement" means that certain Note Purchase
Agreement, dated as of _____________, 1998, among the Debtor, the
Purchasers, and the Note Agent, as agent for the Purchasers.
"Note Security Agreement" means the "Security Documents" as
such term is defined in the Note Purchase Agreement.
"proceeds" has the meaning ascribed to such term in Article
9 of the UCC.
"Purchasers" means the institutions party to the Note
Purchase Agreement in that capacity, and who are signatories to
this Agreement, and their respective successors and assigns.
"Revolving Credit Claims" mean all present and future claims
of the Revolving Credit Lender under or related to the Revolving
Credit Financing Documents, against the Debtor or its
Subsidiaries for the payment of money, including all claims for
principal and interest (including interest accruing after the
commencement of a bankruptcy proceeding by or against the Debtor
or its Subsidiaries, whether or not such interest is an allowed
claim), or for reimbursement in connection with amounts paid
under letters of credit, or for reimbursement of fees, costs or
expenses, or otherwise, whether fixed or contingent, matured or
unmatured, liquidated or unliquidated, and whether sounding in
contract, in tort or otherwise.
"Revolving Credit Collateral" means all accounts, inventory,
and deposit accounts of the Debtor and any of its Subsidiaries
that have granted a Lien in such Collateral to Revolving Credit
Lender, any and all instruments taken in connection with any
accounts, all books and records of the Debtor and any such
Subsidiary to the extent that such books and records relate to
any of the foregoing, and any and all proceeds of any of the
foregoing, including proceeds of proceeds. As used in this
definition, "accounts," "inventory," "deposit accounts,"
"instruments," and "proceeds" have the meanings ascribed thereto
in Article 9 of the UCC.
"Revolving Credit Agreement" means that certain Loan and
Security Agreement dated as of ____________, 1998, between the
Revolving Credit Lender, the Debtor, and Xxxxxx-Kinston.
"Revolving Credit Financing Documents" mean the Revolving
Credit Agreement, the other "Loan Documents" referred to therein,
and all other notes, reimbursement agreements, security documents
or other documents or agreements in any way evidencing or
documenting the Revolving Credit Claims, as the same may from
time to time be amended, modified, renewed, extended or restated.
"Revolving Credit Lender" means Foothill Capital
Corporation, a California corporation.
"Subsidiary" of a person or entity means a corporation,
partnership, limited liability company, or other entity in which
that person or entity directly or indirectly owns or controls the
shares of stock having ordinary voting power to elect a majority
of the board of directors (or appoint other comparable managers)
of such corporation, partnership, limited liability company, or
other entity.
"UCC" means the Uniform Commercial Code, as in effect from
time to time in the State of New York.
2. Security Interest Priorities. Notwithstanding (a) the date, manner or
order of attachment or perfection of the security interests and Liens
granted in favor of the Revolving Credit Lender, on the one hand, or the
Collateral Agent acting on behalf of the Purchasers, or the Purchasers, on
the other hand, (b) the provisions of the UCC or any other applicable law
or judicial decisions, (c) the provisions of any contract or Financing
Document in effect between either Creditor Group, on the one hand, and the
Debtor or any Subsidiary thereof, on the other, and (d) whether either
Creditor Group or any agent or bailee thereof holds possession of any part
or all of the Collateral, the following, as between the Revolving Credit
Lender, the Purchasers, and the Collateral Agent, shall be the relative
priority of the perfected security interests and Liens of the Creditors in
the Collateral:
a. The Revolving Credit Lender shall have a first priority security
interest in the Revolving Credit Collateral to the extent of the
Revolving Credit Claims, and the Collateral Agent, as agent on behalf
of the Purchasers, shall have a second priority security interest
therein to the extent of the Note Claims.
b. The Collateral Agent, as agent on behalf of the Purchasers, shall
have a first priority security interest in the Note Collateral to the
extent of the Note Claims, and the Revolving Credit Lender shall have
a second priority security interest therein to the extent of the
Revolving Credit Claims.
For the purposes of the foregoing allocation of priorities, any claim of a
right of setoff shall be treated in all respects as a security interest,
and no claimed right of setoff shall be asserted to defeat or diminish the
rights or priorities provided for herein. The priorities set forth herein
are solely for the purpose of establishing the relative rights of the
Creditor Groups and there are no other persons or entities who are intended
to be benefitted or otherwise affected in any way by this Agreement.
3. Distribution of Proceeds of Collateral. During any Enforcement Period,
all proceeds of Collateral shall be distributed in accordance with the
following procedure:
a. All proceeds of Revolving Credit Collateral first shall be applied
to the Revolving Credit Claims. After the Revolving Credit Claims are
paid or otherwise satisfied in full, any remaining proceeds of
Revolving Credit Collateral shall be paid by the Revolving Credit
Lender to the Collateral Agent for application to the Note Claims
until they are paid or otherwise satisfied in full.
b. All proceeds of Note Collateral first shall be applied to the Note
Claims. After the Note Claims are paid or otherwise satisfied in full,
any remaining proceeds of Note Collateral shall be paid by the
Collateral Agent to the Revolving Credit Lender for application to the
Revolving Credit Claims until they are paid or otherwise satisfied in
full. The Agent shall have no duty to assume the application of such
proceeds by the Revolving Credit Lender. The Agent shall be entitled
to assume that Foothill Capital Corporation is the Revolving Credit
Lender until it receives a written notice signed by a person
purporting to be an authorized officer of Foothill Capital Corporation
that some other designated person or entity is the Revolving Credit
Lender.
c. After all of the Claims have been irrevocably paid or otherwise
satisfied in full, the balance of proceeds of Collateral, if any,
shall be paid to the Debtor or the Subsidiary of the Debtor that owns
or otherwise has rights in such Collateral, as the case may be, or as
otherwise required by applicable law. The Agent shall be entitled to
rely conclusively on a certificate from the Revolving Credit Lender as
to the amount of any unsatisfied Revolving Credit Claims, and shall
not be obligated to distribute funds pursuant to this Section 3(c)
unless and until it has received confirmation from the Revolving
Credit Lender that all Revolving Credit Claims have been paid or
otherwise satisfied in full.
4. Enforcement Actions. The parties hereto agree that:
a. The Revolving Credit Lender may, at its option, but subject to the
provisions of this Section 4, during any Enforcement Period relating
to the Revolving Credit Claims, take any Enforcement Action it deems
appropriate with respect to the Revolving Credit Collateral, without
any requirement that it obtain the prior consent of the Collateral
Agent or any Purchaser. Nothing herein excuses the Revolving Credit
Lender from giving to the Collateral Agent any notice required to be
given by the Revolving Credit Lender to the Collateral Agent under the
UCC.
b. The Collateral Agent may, at its option, but subject to the
provisions of this Section 4, during any Enforcement Period relating
to the Note Claims, take any Enforcement Action it deems appropriate
with respect to the Note Collateral, without any requirement that it
obtain the prior consent of the Revolving Credit Lender; provided,
however, that, prior to the taking of any such Enforcement Action by
the Collateral Agent (other than an Enforcement Action that would not
interfere with the Revolving Credit Lender's 45-day use right and
license provided for below, such as, without limitation, the
publication or giving of a notice), the Revolving Credit Lender, at
its option, shall have the right and license (which right and license
is granted by the Debtor and Xxxxxx-Kinston, and acknowledged and
consented to by the Collateral Agent and the Purchasers, who agree
that the Collateral Agent's security interest in the property affected
by such right and license is subject to the rights of the Revolving
Credit Lender with respect to such right and license) to use all or
part of the equipment, fixtures, real property, trademarks, and/or
tradenames included in the Note Collateral for a reasonable period of
time not to exceed 45 days after receipt of notice from the Collateral
Agent of the Collateral Agent's intention to take Enforcement Action
with respect thereto, to complete the production of such portion of
the inventory as constitutes "Piece Goods" or "Work-In-Process" (as
such terms are defined in the Revolving Credit Agreement) at the time
of the receipt of such notice, with payment for the reasonable usage
value therefor to be made by the Revolving Credit Lender to the
Collateral Agent, for the ratable benefit of the Purchasers, for the
use of such property and property rights and for the corresponding
standstill and postponement for such period of time of certain
Enforcement Actions in respect of such items by the Collateral Agent
and the Purchasers as provided for above. Nothing herein excuses the
Collateral Agent from giving to the Revolving Credit Lender any notice
required to be given by the Collateral Agent to the Revolving Credit
Lender under the UCC.
c. Notwithstanding anything to the contrary herein contained, the
Agent and the Purchasers hereby agree and acknowledge that the
Revolving Credit Lender shall have a first priority security interest
in and Lien on the Revolving Credit Collateral and the Collateral
Agent's or the Purchasers' security interest in and Lien on the
Revolving Credit Collateral shall be junior and subordinate to the
security interest in and Lien on the Revolving Credit Collateral of
the Revolving Credit Lender, and the Agent and the Purchasers hereby
agree and acknowledge that they shall hold back, standstill and
otherwise refrain from taking any Enforcement Action (including
notification to any account debtors of the Lien of the Collateral
Agent or any Purchaser on any account, instruction to pay any amount
in respect of any such account to the Agent or any Person other than
the Revolving Credit Lender, or action to collect any account) to
which the Collateral Agent or any Purchaser is entitled as a secured
party under the UCC or otherwise under applicable law in respect of
the Collateral constituting the Revolving Credit Collateral, or which
the Collateral Agent or any Purchaser is entitled to take in respect
of its interest in the Revolving Credit Collateral upon the occurrence
and continuation of an Event of Default under any Note Financing
Document until such time as the Revolving Credit Claims have been paid
in full; provided that nothing herein shall prevent the Collateral
Agent from taking any actions (other than notification or instruction
of, or collection from, account debtors with respect to accounts)
necessary or desirable to perfect, maintain, preserve and protect its
or the Purchasers' security interest in any Revolving Credit
Collateral so long as the same does not prevent or interfere with the
ability of the Revolving Credit Lender from realizing the benefit of
its prior and superior security interest in the Collateral
constituting the Revolving Credit Collateral. The Revolving Credit
Lender shall use its best efforts to notify the Agent pursuant to
Section 19 hereof in writing when the Revolving Credit Claims shall
have been paid in full and the Revolving Credit Lender has no further
commitment to extend credit with respect thereto (provided that the
Revolving Credit Lender shall have no liability for any failure to
give such notice unless such failure was intentional or in bad faith),
and, during any Enforcement Period, shall promptly remit to the
Collateral Agent, for the ratable benefit of the Purchasers, any
surplus proceeds of the Revolving Credit Collateral held or received
by the Revolving Credit Lender after the Revolving Credit Claims have
been paid in full and the Revolving Credit Lender has no further
commitment to extend credit under the Revolving Credit Financing
Documents.
d. Notwithstanding anything to the contrary herein contained, the
Revolving Credit Lender hereby agrees and acknowledges that the
Collateral Agent shall have a first priority security interest in and
Lien on the Note Collateral and the Revolving Credit Lender's security
interest in and Lien on the Note Collateral shall be junior and
subordinate to the security interest in and Lien on the Note
Collateral of the Collateral Agent, and the Revolving Credit Lender
hereby agrees and acknowledges that it shall hold back, standstill and
otherwise refrain from taking any Enforcement Action to which the
Revolving Credit Lender is entitled as a secured party under the UCC
or otherwise under applicable law in respect of the Collateral
constituting the Note Collateral, or which the Revolving Credit Lender
is entitled to take in respect of its interest in the Note Collateral
upon the occurrence and continuation of an Event of Default under any
Revolving Credit Financing Document until such time as the Note Claims
have been paid in full; provided that nothing herein shall prevent the
Revolving Credit Lender from taking any actions necessary or desirable
to perfect, maintain, preserve and protect its security interest in
any Note Collateral so long as the same does not prevent or interfere
with the ability of the Collateral Agent from realizing the benefit of
its prior and superior security interest in the Collateral
constituting the Note Collateral, or from exercising its right to use
Note Collateral to the extent permitted by, and subject to the terms
of, Section 4b hereof. The Collateral Agent shall use its best efforts
to notify the Revolving Credit Lender pursuant to Section 19 hereof in
writing when the Note Claims shall have been paid in full (provided
that the Collateral Agent shall have no liability for any failure to
give such notice unless such failure was intentional or in bad faith),
and, during any Enforcement Period, the Agent and each Purchaser, as
applicable, shall promptly remit to the Revolving Credit Lender any
surplus proceeds of the Note Collateral held or received by it after
the Note Claims have been paid in full.
5. Waiver of Right to Require Marshaling. The Revolving Credit Lender and
the Collateral Agent on behalf of its respective Creditor Group hereby
expressly waives any right that it otherwise might have to require the
other Creditor Group, or its agent, to marshal assets or to resort to
Collateral in any particular order or manner, whether provided for by
common law or statute, provided however, that this paragraph shall not
override any specific provision of this Agreement. Neither Creditor Group
nor its agent shall be required to enforce any guaranty or any security
interest given by any person or entity other than the Debtor as a condition
precedent or concurrent to the taking of any Enforcement Action.
6. Exercise of Remedies. Subject only to any express provision of this
Agreement that requires a Creditor Group, or its agent (including the
Collateral Agent), to take or refrain from taking any action, each Creditor
Group, or its agent acting on its behalf (including the Collateral Agent on
behalf of the Purchasers), may exercise its good faith discretion with
respect to exercising or refraining from exercising any of its rights and
remedies or taking any Enforcement Action. The Agent and the Purchasers
agree that the Revolving Credit Lender shall not incur any liability to the
Agent or the Purchasers for taking or refraining from taking any action
with respect to the Revolving Credit Collateral so long as the Revolving
Credit Lender complies with the express provisions of this Agreement, to
the extent applicable to it. The Revolving Credit Lender agrees that none
of the Agent and the Purchasers shall incur any liability to the Revolving
Credit Lender for taking or refraining from taking any action with respect
to the Note Collateral so long as, in the case of any of them, it complies
with the express provisions of this Agreement, to the extent applicable to
it.
7. UCC Notices. The provisions of this Agreement shall satisfy any
requirement that a subordinated secured party must give notice to the
holder of a senior security interest of its claim to the proceeds of
realization of the collateral and any requirement for furnishing of an
indemnity bond pursuant to Section 9-504(1)(c) or any similar statute is
hereby waived. In the event that any Creditor Group, or its agent, shall be
required by the UCC or any other applicable law to give any notice to the
other Creditor Group, or its agent, such notice shall be given in
accordance with Section 19 hereof and ten (10) days' notice shall be
conclusively deemed to be commercially reasonable.
8. Independent Credit Investigations. No Creditor, nor the Agent, nor any
of their respective directors, officers, agents or employees shall be
responsible to any other Creditor, the other Creditor Group or the Agent or
to any other person or entity for the Debtor's solvency, creditworthiness,
financial condition or ability to repay any of the Claims or for the
accuracy of any recitals, statements, representations or warranties of the
Debtor, oral or written, or for the validity, sufficiency, enforceability
or perfection of the Claims or the Financing Documents, or any security
interests or Liens granted by the Debtor to any Creditor or Creditor Group
in connection therewith. The Revolving Credit Lender hereby represents to
each member of the other Creditor Group and the Agent, each Purchaser has
represented to the Agent and other members of its Creditor Group, and the
Agent hereby represents to the Revolving Credit Lender on its behalf and on
behalf of the Purchasers, that each such person has entered into its
respective financing agreements with the Debtor and any of its Subsidiaries
based upon its own independent investigation, and makes no warranty or
representation to the other Creditors, the other Creditor Group or the
Agent, nor does it rely upon any representation of any of the other
Creditors, the other Creditor Group, or the Agent, with respect to matters
identified or referred to in this paragraph. Subject to the terms of the
"Agency Agreement" (as such term is defined in the Note Purchase
Agreement), no Creditor, Creditor Group, nor the Agent shall have any
responsibility to any other Creditor, Creditor Group, or the Agent, for
monitoring or assuring compliance by the Debtor or any of its Subsidiaries
with any of the Debtor's or such Subsidiary's covenants or representations
made to any Creditor. Without limiting the generality of the foregoing,
either Creditor Group may perform in accordance with the terms of its
Financing Documents (subject to this Agreement) without regard to whether
the Debtor's or such Subsidiary's performance in accordance with the terms
thereof might or would constitute or result in a breach of covenants or
representations under the other Creditor Group's Financing Documents, and
under no circumstances shall any Creditor, Creditor Group, or the Agent be
liable to any other Creditor, Creditor Group or the Agent for inducing a
breach or violation of the other's Financing Documents by virtue of
performing in accordance with the terms of its Financing Documents (subject
to the terms of this Agreement).
9. Non-Avoidability and Perfection of Liens. The Lien subordinations and
relative priorities set forth in this
Agreement are expressly conditioned upon the non-avoidability and
perfection of the security interest to which another security interest is
subordinated. If the security interest to which another security interest
is subordinated is not perfected or is void or voidable for any reason,
then the subordination provided for herein shall not be effective to the
extent of such non-perfection or avoidability.
10. Perfection of Possessory Security Interests. For the limited purpose of
perfecting the security interests of any Creditor, the Collateral Agent for
the benefit of the Purchasers, or any Purchaser, in those types or items of
Collateral in which a security interest may be perfected by possession,
each Creditor Group hereby appoints (subject to the priorities established
by Section 2) the Revolving Credit Lender or the Collateral Agent, as the
case may be, as its agent and bailee for the limited purpose of possessing
on its behalf any such Collateral that may come into the possession of the
other from time to time, the Purchasers agree to instruct the Collateral
Agent to act, and the Collateral Agent agrees so to act, as the Revolving
Credit Lender's agent and bailee for such limited purpose of perfecting the
Revolving Credit Lender's security interest by possession through an agent
or bailee, and the Revolving Credit Lender agrees to act as the Collateral
Agent's and Purchasers' agent and bailee for such limited purpose of
perfecting the Collateral Agent's or Purchasers' security interest by
possession through an agent or bailee, provided that neither Creditor Group
shall incur any liability to the other Creditor Group by virtue of acting
or having its agent act as the other's agent or bailee hereunder, and
either Creditor Group may relinquish possession of Collateral in its
possession without the consent of the other Creditor Group (except as
provided in Section 4c and 4d above), and without incurring liability to
the other Creditor Group, unless there is an express written agreement to
the contrary in effect between the Creditor Groups.
11. Amendments, Modifications and Increases. Each Creditor Group, directly
or through the Agent in the case of the Purchasers, may enter into
amendments, modifications, renewals or extensions of its Financing
Documents with the Debtor or any of its Subsidiaries, or may increase or
decrease the credit facilities made available by it to the Debtor or any of
its Subsidiaries, or may release or surrender any part or all of its
Collateral without in any way affecting the rights and obligations of the
other Creditor Group or the Agent under this Agreement or its respective
Financing Documents. Should either or both Creditor Groups cease extending
further credit to the Debtor, this Agreement nevertheless shall continue in
effect as to the outstanding Claims of each Creditor Group until this
Agreement is terminated as set forth in Section 12 hereof.
12. Termination. This Agreement is a continuing agreement, and, unless both
Creditor Groups, or the Revolving Credit Lender and the Collateral Agent on
behalf of the Purchasers, have specifically consented in writing to its
earlier termination, this Agreement shall remain in full force and effect
in all respects until the earlier of (a) the date on which (i) the
Revolving Credit Claims are paid or otherwise satisfied in full, (ii) the
Revolving Credit Lender has no further commitment to extend or maintain the
Revolving Credit Financing Documents with the Debtor or any of its
Subsidiaries, (iii) the Revolving Credit Lender has released or terminated
its security interest in the Collateral, and (iv) the Revolving Credit
Lender shall have delivered to the Collateral Agent any surplus proceeds of
Revolving Credit Collateral if and to the extent required by Section 4c, as
provided therein, or (b) the date on which (x) the Note Claims are paid or
otherwise satisfied in full, (y) the Purchasers, acting through the
Collateral Agent have released or terminated their security interest in the
Note Collateral, and (z) the Collateral Agent shall have delivered to the
Revolving Credit Lender any surplus Note Collateral if and to the extent
required by Section 4d.
13. Accountings. Each of the Revolving Credit Lender and the Agent agrees,
upon the occurrence and during the continuance of any Enforcement Action,
to provide the other, upon reasonable request, periodic accountings of the
amount of Claims being asserted, and not satisfied, giving effect to any
applications of realizations upon Collateral.
14. Effect of Bankruptcy. This Agreement shall be and remain enforceable
notwithstanding any bankruptcy or other insolvency proceeding by or against
the Debtor.
15. Effect of Dispositions of Collateral on Junior Security Interests. The
Revolving Credit Lender, the Collateral Agent, and the Purchasers agree
that (a) any collection, sale or other disposition of the Revolving Credit
Collateral by the Revolving Credit Lender pursuant to the UCC or any other
applicable law, shall be free and clear of the junior security interest,
Lien, claim or offset of the Collateral Agent or the Purchasers in such
Revolving Credit Collateral (but subject to the Collateral Agent's security
interest and Lien in any surplus proceeds); and (b) any sale or other
disposition of the Note Collateral by the Collateral Agent or any Purchaser
pursuant to any applicable law, shall be free and clear of the junior Lien
or security interest or claim of the Revolving Credit Lender in such Note
Collateral (but subject to the Revolving Credit Lender's security interest
and Lien in any surplus proceeds). To the extent reasonably requested by
the Revolving Credit Lender or the Collateral Agent, as the case may be,
and in accordance with the terms of this Agreement, the Collateral Agent,
the Purchasers, and the Revolving Credit Lender, respectively, will
cooperate in providing any necessary or appropriate releases, termination
and satisfaction of Liens to permit a collection, sale or other disposition
of the Revolving Credit Collateral by the Revolving Credit Lender and of
the Note Collateral by the Collateral Agent, free and clear of the
Collateral Agent's, the Purchasers', or the Revolving Credit Lender's
junior security interest, without releasing or affecting any obligation of
the Revolving Credit Lender under Section 4c or any obligation of the
Collateral Agent or any Purchaser under Section 4d.
16. Construction. Unless the context of this Agreement clearly requires
otherwise, references to the plural include the singular, the singular
includes the plural, the part includes the whole, "including" is not
limiting, and "or" has the inclusive meaning represented by the phrase
"and/or." The words "hereof," "herein," "hereby," "hereunder," and similar
terms in this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement. Section references are to this
Agreement unless otherwise specified.
17. Modifications in Writing. No amendment, modification, supplement,
termination, consent, or waiver of or to any provision of this Agreement
nor any consent to any departure therefrom shall in any event be effective
unless the same shall be in writing and signed by or on behalf of the party
against whom enforcement is sought; except that no amendment, modification,
supplement, termination, consent, or waiver of or to paragraph 2, 3 or 4 of
this Agreement nor any consent to any departure therefrom shall in any
event be effective unless the same shall be in writing and signed by all of
the parties hereto. Any waiver of any provision of this Agreement, or any
consent to any departure from the terms of any provisions of this
Agreement, shall be effective only in the specific instance and for the
specific purpose for which given.
18. Waivers; Failure or Delay. No failure or delay on the part of either
the Revolving Credit Lender or the Agent in the exercise of any power,
right, remedy, or privilege under this Agreement shall impair such power,
right, remedy, or privilege or shall operate as a waiver thereof; nor shall
any single or partial exercise of any such power, right, or privilege
preclude any other or further exercise of any other power, right, or
privilege. The waiver of any such right, power, remedy, or privilege with
respect to particular facts and circumstances shall not be deemed to be a
waiver with respect to other facts and circumstances.
19. Notices and Communications. All notices, demands, instructions, and
other communications required or permitted to be given to or made upon any
party hereto shall be in
writing and shall be delivered or sent by hand, nationally-recognized
overnight courier, first-class certified or registered mail, postage
prepaid, or telefaxed, and shall be deemed to be given for purposes of this
Agreement when received, if delivered by hand, on the second Business Day
after sending, if sent by a nationally-recognized overnight courier, on the
third Business Day after sending, if sent by U.S. mail, postage prepaid, or
when sent, if sent by confirmed telefax. Unless otherwise specified in a
notice mailed or delivered in accordance with the foregoing provisions of
this Section, notices, demands, instructions and other communications in
writing shall be given to or made upon the respective parties hereto at
their respective addresses indicated on the signature pages hereof.
20. Headings. Section headings used in this Agreement are for convenience
of reference only and shall not constitute a part of this Agreement for any
purpose or affect the construction of this Agreement.
21. Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together, shall constitute
but one and the same Agreement. This Agreement shall become effective upon
the execution and delivery of a counterpart hereof by each of the parties
hereto.
22. Severability of Provisions. Any provision of this Agreement which is
illegal, invalid, prohibited, or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such illegality,
invalidity, prohibition, or unenforceability without invalidating or
impairing the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
23. Complete Agreement. This Agreement is intended by the parties as a
final expression of their agreement in respect of the subject matter hereof
and is intended as a complete statement of the terms and conditions of
their agreement. This Agreement shall not be modified except in a writing
signed by the party to be charged, and may not be modified by course of
conduct or oral agreements.
24. Successors and Assigns. This Agreement is binding upon and inures to
the benefit of the successors and assigns of each party hereto. The Agent
and each Purchaser agrees to maintain a copy of this Agreement together
with its copies of the Financing Documents relating to the Claims of the
Purchasers. The Agent and the Purchasers expressly reserve their right to
transfer or assign their Claims, in whole or in part, together with their
rights hereunder, provided that, prior to transferring or assigning any
interest in any such Claims to any person or entity, the Agent or the
transferring or assigning Purchaser shall disclose to such person or entity
the existence and contents of this Agreement, shall provide to such person
or entity a complete and legible copy hereof, and shall advise such person
or entity that the Agent's or such Purchaser's security interest in the
Collateral is subject to the terms hereof. The Revolving Credit Lender
agrees to maintain a copy of this Agreement together with its copies of the
Financing Documents relating to its Claims. The Revolving Credit Lender
expressly reserves its right to transfer or assign its Claims, in whole or
in part, together with its rights hereunder, provided that, prior to
transferring or assigning any interest in any such Claims to any person or
entity, the Revolving Credit Lender shall disclose to such person or entity
the existence and contents of this Agreement, shall provide to such person
or entity a complete and legible copy hereof, and shall advise such person
or entity that the Revolving Credit Lender's security interest in the
Collateral is subject to the terms hereof.
25. Release of Collateral. Each of the parties agrees that, subject to the
provisions of this Agreement, either may release or refrain from enforcing
its security interest in any Collateral, or permit the use or consumption
of such Collateral by Debtor or any of its Subsidiaries that pledged such
Collateral, free of its security interest, without incurring any liability
to the other party hereto.
26. Governing Law; Jurisdiction; Venue. This Agreement shall be construed
in accordance with and governed by the laws of the State of New York. Each
party submits to the non-exclusive jurisdiction of the federal and state
courts sitting in New York County, New York, and any appellate courts
therefrom, in connection with any matter arising out of or relating to this
Agreement. Each party waives any objection to venue in any such court in
New York County, New York, in respect of any such matter, including any
objection based on any claim of inconvenience.
27. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY MAKES THE
FOREGOING WAIVER HAVING HAD THE BENEFIT OF THE ADVICE OF COUNSEL, AND
DESIRING TO FOREGO THE COST, DELAY, INEFFICIENCY, AND UNPREDICTABILITY OF A
JURY TRIAL IN A COMPLEX CIVIL MATTER. NO PARTY OR ITS REPRESENTATIVE HAS
REPRESENTED THAT IT WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the date first set forth above, intending to be legally bound hereby.
IBJ XXXXXXXX BANK AND TRUST
COMPANY, as the Note Agent and the
Collateral Agent acting on behalf
of the Purchasers
By_________________________________
Name:
Title:
Address:
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telefax: _______________________
Attention: _______________________
FOOTHILL CAPITAL CORPORATION, as
the Revolving Credit Lender
By_________________________________
Name:
Title:
Address:
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Telefax: _______________________
Attention: _______________________
The Purchasers:
XXXXXX XXXXX & CO., L.L.C.
By_________________________________
Name:
Title:
Address:
00 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telefax: (000) 000-0000
Attention: Mr. Xxxxxx Xxxxx, Jr.
FOOTHILL PARTNERS II, L.P. and
FOOTHILL PARTNERS III, L.P. and
FOOTHILL CAPITAL CORPORATION
By_________________________________
Name:
Title:
Address:
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Telefax: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxx
UBS MORTGAGE FINANCING INC.
By_________________________________
Name:
Title:
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telefax: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
LAZARD FRERES & CO., L.L.C.
By_________________________________
Name:
Title:
Address:
__ Rockefeller Plaza
New York, New York _____
Telefax: _________________
Attention: _________________
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By_________________________________
Name:
Title:
Address:
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Telefax: (000) 000-0000
Attention: Xx. Xxx Xxxx
Consented:
XXXXXX INDUSTRIES, INC.,
on behalf of itself and its
Subsidiaries
By
Name:
Title:
XXXXXX-KINSTON CORP.
By
Name:
Title:
