EXHIBIT T3C-2
INTERCREDITOR AGREEMENT
(10% Secured Senior Subordinated Notes)
This INTERCREDITOR AGREEMENT, dated as of October __, 2004,
is entered into by and among CONGRESS FINANCIAL CORPORATION (CENTRAL), an
Illinois corporation, in its capacity as agent pursuant to the Working Capital
Loan and Security Agreement (as hereinafter defined) for the lenders who are
party from time to time thereto (in such capacity, together with its successors
and assigns in such capacity, "Working Capital Agent"), SILVER POINT FINANCE,
LLC, a Delaware limited liability company, in its capacity as agent pursuant to
the Term Loan Agreement (as hereinafter defined) for the lenders from time to
time party thereto (in such capacity, together with its successors and assigns
in such capacity, "Term Loan Agent") and, BNY MIDWEST TRUST COMPANY, an Illinois
Trust Company, in its capacity as trustee pursuant to the Indenture (as
hereinafter defined) for the Noteholders (as hereinafter defined)(in such
capacity, together with its successors and assigns in such capacity, the
"Trustee").
W I T N E S S E T H :
WHEREAS, the Borrowers (as hereinafter defined), International
Wire Group, Inc., a Delaware corporation ("Parent"), certain lenders, and
Working Capital Agent are entering into a Loan and Security Agreement, dated as
of October __, 2004 (as such agreement may be amended, modified, supplemented,
extended, renewed, or restated, the "Working Capital Loan and Security
Agreement"); and
WHEREAS, the Borrowers, Parent, certain lenders, and Term Loan
Agent are entering into a Loan and Security Agreement, dated as of October __,
2004 (as such agreement may be amended, modified, supplemented, extended,
renewed, or restated, the "Term Loan Agreement", and together with the Working
Capital Loan and Security Agreement, the "Senior Loan Agreements"); and
WHEREAS, Parent, the Borrowers, and the Trustee are entering
into the Indenture, dated as of October __, 2004, (as such Indenture may be
amended, modified, supplemented, extended, renewed, or restated, the
"Indenture") governing the Parent's 10% Secured Senior Subordinated Notes due
2011 (the "Notes");
WHEREAS, it is a condition precedent to the effectiveness of
the Senior Loan Agreements that the Working Capital Agent and the Term Loan
Agent (each for itself and for the benefit of the lenders under each respective
facility) and the Trustee (for itself and for the benefit of the holders of the
Notes), 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):
"Agent" shall mean each of the Working Capital Agent and the
Term Loan Agent, including, in each case, any successor thereto exercising
substantially the same rights and powers, or if there is no acting Working
Capital Agent, under the Working Capital Loan Agreement, or Term Loan Agent,
under the Term Loan Agreement, the Required Lenders under such agreement, as
applicable.
"Agent Intercreditor Agreement" means the Intercreditor
Agreement dated as of October __, 2004, by and between the Working Capital
Agent and the Term Loan Agent.
"Agreement" shall mean this Agreement, as amended,
supplemented or otherwise modified from time to time in accordance with the
terms hereof.
"Bankruptcy Code" shall mean title 11 of the United States
Code (11 U.S.C. 101 et seq.), as amended from time to time and any successor
statute.
"Borrowers" shall mean each entity listed as a "Borrower" on
the signature pages to the addendum hereto, and in each case, their successors
and assigns, including, without limitation, any receiver, trustee or
debtor-in-possession on behalf of such person or on behalf of any successor or
assign.
"Business Day" shall mean any day other than a Saturday,
Sunday or other day on which commercial banks are authorized or required to
close under the laws of the State of New York, the State of Illinois or the
State of North Carolina, and a day on which Working Capital Agent, Term Loan
Agent and the Trustee are open for the transaction of business.
"Common Collateral" shall mean all of the assets and
properties of any Obligor, of any kind whatsoever, whether real or personal,
tangible or intangible, and wherever located, constituting both Senior Lender
Collateral and Noteholder Collateral.
"Comparable Noteholder Collateral Document" shall mean, in
relation to any Common Collateral subject to any Senior Lender Collateral
Document, that Noteholder Collateral Document which creates a security interest
in the same Common Collateral, granted by one or more of the Obligors, as
applicable.
"Future First-Lien Credit Facility" shall mean any [Credit
Facility (as defined in the Indenture) that is designated by the Borrowers as a
"Credit Facility" for purposes of the Indenture (other than the Working Capital
Loan and Security Agreement)], provided that the Required Lenders under the Term
Loan Agreement then in effect have consented to such designation.
"Guarantor" shall mean (a) each entity listed as a "Guarantor"
on the signature pages to the Addendum hereto, and in each case, such entity's
successors and assigns, including, without limitation, any receiver, trustee or
debtor-in-possession on behalf of such entity or on behalf of any successor or
assign, and (b) each other Person (other than a Borrower) now or at
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any time hereafter liable on or in respect of any of the Senior Lender Debt or
the Noteholder Debt, and each of such Person's successors and assigns,
including, without limitation, a receiver, trustee or debtor-in-possession on
behalf of such person or on behalf of any such successor or assign.
"Indenture" shall have the meaning set forth in the recitals
hereto.
"Insolvency Proceeding" shall mean, as to any Person, any of
the following: (a) any case or proceeding with respect to such Person under the
Bankruptcy Code or any other Federal or State bankruptcy, insolvency,
reorganization or other law of any jurisdiction affecting creditors' rights or
any other or similar proceedings seeking any stay, reorganization, arrangement,
composition or readjustment of the obligations and indebtedness of such Person
or (b) any proceeding seeking the appointment of any trustee, receiver,
liquidator, custodian or other insolvency official with similar powers with
respect to such Person or any of its assets or (c) any proceeding for
liquidation, dissolution or other winding up of the business of such Person or
(d) any assignment for the benefit of creditors or any marshaling of assets of
such Person.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, security interest, encumbrance (including, but not
limited to, easements, rights of way and the like), lien (statutory or other),
security agreement or transfer intended as security, including without
limitation, any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease or any financing lease having
substantially the same economic effect as any of the foregoing.
"Noteholder Debt" shall mean any and all obligations,
liabilities and indebtedness of every kind, nature and description owing by any
Obligor to the Trustee or any of the Noteholders arising under the Noteholder
Documents, whether direct or indirect, absolute or contingent, joint or several,
due or not due, primary or secondary, liquidated or unliquidated, including
principal, interest, charges, fees, costs, indemnities and expenses, however
evidenced, whether as principal, surety, endorser, guarantor or otherwise,
whether now existing or hereafter arising, whether arising before, during or
after the initial or any renewal term of the Indenture or after the commencement
of any Insolvency Proceeding with respect to any Obligor (and including, without
limitation, the payment of interest which would accrue and become due but for
the commencement of such Insolvency Proceeding, whether or not such interest is
allowed or allowable in whole or in part in any such Insolvency Proceeding).
"Noteholder Collateral" shall mean all of the assets and
properties of any Obligor, of any kind whatsoever, whether real or personal,
tangible or intangible, and wherever located, in which the Trustee now or
hereafter holds a Lien as security for any Noteholder Debt.
"Noteholder Collateral Agreement" shall mean the Collateral
Agreement dated as of October __, 2004, among the Parent, the Borrowers, the
Trustee and the Collateral Agent (as defined in the Indenture).
"Noteholder Collateral Documents" shall mean the Noteholder
Collateral Agreement, the Noteholder Mortgages, and any other document or
instrument executed and delivered at any time pursuant to any Noteholder
Document or otherwise, pursuant to which a
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Lien is granted by an Obligor to secure any Noteholder Debt or under which
rights or remedies with respect to any such Lien are governed, as the same may
be amended, modified, supplemented, extended, renewed, or restated from time to
time.
"Noteholder Documents" shall mean the Indenture, the Notes (as
defined in the Indenture), the Noteholder Collateral Documents and any other
document or instrument executed and delivered at any time pursuant to any
Noteholder Document or otherwise, with respect to any Noteholder Debt, as the
same may be amended, modified, supplemented, extended, renewed, or restated from
time to time.
"Noteholder 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 or leased by any Obligor is granted to secure
any Noteholder Debt or under which rights or remedies with respect to any such
Liens are governed, as the same may be amended, modified, supplemented,
extended, renewed, or restated from time to time.
"Noteholders" shall mean the Persons holding Noteholder Debt.
"Notes" shall have the meaning set forth in the recitals
hereto.
"Obligor" shall mean, individually and collectively, the
Borrowers and the Guarantors.
"Person" or "person" shall mean any individual, sole
proprietorship, partnership, corporation (including without imitation, any
corporation which elects subchapter S status under the Internal Revenue Code of
1986, as amended), limited liability company, limited liability partnership,
business trust, unincorporated association, joint stock company, trust, joint
venture, or other entity or any government or any agency or instrumentality or
political subdivision thereof.
"Recovery" shall have the meaning set forth in Section 6.5
hereof.
"Required Lenders" shall mean, with respect to any amendment
or modification of a Senior Loan Agreement, or any termination or waiver of any
provision of a Senior Loan Agreement, or any consent or departure by any of the
Obligors therefrom, those Senior Lenders, the approval of which is required to
approve such amendment or modification, termination or waiver or consent or
departure under such Senior Loan Agreement, as applicable.
"Senior Lender Collateral" shall mean all of the assets and
properties of any Obligor, of any kind whatsoever, whether real or personal,
tangible or intangible, and wherever located, in which either of the Agents now
or hereafter holds a Lien as security for any Senior Lender Debt.
"Senior Lender Collateral Documents" shall mean any of the
Financing Agreements under and as defined in each of the Working Capital Loan
and Security Agreement and the Term Loan Agreement pursuant to which a Lien is
granted securing any Senior Lender Debt, as the same may be amended, modified,
supplemented, extended, renewed, or restated from time to time.
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"Senior Lender Debt" shall mean any and all obligations,
liabilities and indebtedness of every kind, nature and description owing by any
Obligor to either Agent or any of the Senior Lenders arising under the Senior
Lender Documents, whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or unliquidated,
including principal, interest, charges, fees, costs, indemnities and expenses,
however evidenced, whether as principal, surety, endorser, guarantor or
otherwise, whether now existing or hereafter arising, whether arising before,
during or after the initial or any renewal term of the applicable Senior Lender
Documents or after the commencement of any Insolvency Proceeding with respect to
any Obligor (and including, without limitation, the payment of interest which
would accrue and become due but for the commencement of such Insolvency
Proceeding, whether or not such interest is allowed or allowable in whole or in
part in any such Insolvency Proceeding).
"Senior Lender Documents" shall mean each of (a) the Working
Capital Loan and Security Agreement and each of the other Financing Agreements
(as defined in the Working Capital Loan and Security Agreement) and (b) the Term
Loan Agreement and each of the other Financing Agreements (as defined in the
Term Loan Agreement), as any of the foregoing may be amended, modified,
supplemented, extended, renewed, or restated from time to time.
"Senior Lender Termination Date" shall mean the date that both
of the following have occurred: (a) the Working Capital Lenders have received
payment in full in cash or other immediately available funds of all of the
Working Capital Debt (other than contingent indemnity obligations not yet due
and payable), Working Capital Agent shall have received either cash collateral
or a letter of credit with respect to contingent obligations in accordance with
Section 13.1(a) of the Working Capital Loan and Security Agreement and the
agreement of the Working Capital Lenders to make any further loans or provide
any further financial accommodations to Borrowers shall have been terminated;
and (b) the Term Lenders have received payment in full in cash or other
immediately available funds of all of the Term Loan Debt (other than contingent
indemnity obligations not yet due and payable), and the agreement of the Term
Lenders to make any further loans or provide any further financial
accommodations to Borrowers shall have been terminated.
"Senior Lenders" shall mean the Persons holding Senior Lender
Debt, including, without limitation, the Agents.
"Senior Loan Agreements" shall have the meaning set forth in
the recitals hereto.
"Term Loan Agent Designation" shall mean a written notice from
the Working Capital Agent to the Trustee designating the Term Loan Agent as the
Agent to which all proceeds of the Common Collateral should be paid.
"Trustee" shall include, in addition to the Trustee referred
to in the recitals hereto, the then acting collateral agent under the Indenture
and any successor thereto exercising substantially the same rights and powers,
or if there is no acting collateral agent under the Indenture, the Noteholders
holding a majority in principal amount of Noteholder Debt then outstanding.
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"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 Acknowledgment of Liens. Each of the Agents hereby
acknowledges that the Trustee acting for and on behalf of the Noteholders has
been granted Liens upon all of the Common Collateral pursuant to the Noteholder
Documents to secure the Noteholder Debt. The Trustee hereby acknowledges that
the Working Capital Agent and the Term Loan Agent acting for and on behalf of
Working Capital Lenders and the Term Lenders, respectively, have been granted
Liens upon all of the Common Collateral pursuant to the Senior Lender Documents
to secure the Senior Lender Debt.
2.2 Subordination. Notwithstanding the order or time of
attachment, or the order, time or manner of perfection, or the order or time of
filing or recordation of any document or instrument, or other method of
perfecting a Lien in favor of any Agent or Lender in any Collateral, and
notwithstanding any conflicting provisions, terms or conditions of the UCC or
any other applicable law or the Noteholder Documents or the Senior Lender
Documents or any other circumstance whatsoever, the Trustee, on behalf of itself
and the Noteholders, hereby agrees that: (a) any Lien on the Common Collateral
securing any or all of the Senior Lender Debt now or hereafter held by either of
the Agents or any of the Senior Lenders shall be senior and prior to any Lien on
the Common Collateral securing any or all of the Noteholder Debt; and (b) any
Lien on the Common Collateral now or hereafter held by the Trustee or any of the
Noteholders regardless of how acquired, whether by grant, statute, operation of
law, judgment, subrogation or otherwise, shall be junior and subordinate in all
respects to all Liens on the Common Collateral securing any or all of the Senior
Lender Debt. All Liens on the Common Collateral securing any or all of the
Senior Lender Debt shall be and remain senior to all Liens on the Common
Collateral securing any or all of the Noteholder Debt for all purposes, whether
or not any such Liens securing any of the Senior Lender Debt are subordinated to
any Lien securing any other obligation of any Borrower or any Guarantor.
2.3 Prohibition on Contesting Liens. Each of the Trustee,
for itself and on behalf of each Noteholder, and each Agent, for itself and on
behalf of each Senior Lender for which it is the agent, 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
Proceeding), the priority, validity or enforceability of a Lien held by the
Agents or any of the Senior Lenders in any of the Senior Lender Collateral or by
the Trustee or any of the Noteholders in any of the Common Collateral, as the
case may be.
2.4 No New Liens. Until the Senior Lender Termination
Date, (a) the Trustee agrees, for itself and on behalf of each Noteholder, that
the Trustee and each Noteholder shall not demand or receive any Lien upon any
assets or properties of any Obligor unless the Agents have been granted a Lien
on such assets or properties which is senior and prior to the Liens thereon of
the Trustee and the Noteholders and (b) the parties hereto agree that, after the
date hereof, if the Trustee or any Noteholder shall nonetheless hold any Lien on
any assets or properties of any Obligor that are not also subject to the senior
and prior Lien of the Agents, the Trustee, upon demand by either Agent, will
either release (or cause the release of) such Lien or assign (or cause
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to be assigned) such Lien to the Working Capital Agent and the Term Loan Agent
(for distribution in accordance with the Agent Intercreditor Agreement), as
security for the Senior Lender Debt.
SECTION 3. ENFORCEMENT.
3.1 Exercise of Remedies.
(a) Prior to the Senior Lender Termination Date, whether
or not any Insolvency Proceeding has been commenced by or against any Obligor,
(i) the Trustee and the Noteholders will not (A) exercise or seek to exercise
any rights or remedies (including setoff) with respect to any Common Collateral,
or institute any action or proceeding with respect to such rights or remedies,
including, without limitation, any action of foreclosure, (B) contest, protest
or object to any foreclosure proceeding or action brought by either Agent or any
Senior Lender, or any exercise of any right under any cash management agreement,
landlord waiver or bailee's letter or similar agreement or arrangement or of any
rights and remedies relating to the Common Collateral under the Senior Lender
Documents or otherwise, or (C) object to the forbearance by the Agents and the
Senior Lenders or any of them from bringing or pursuing any foreclosure
proceeding or action or any other exercise of any rights or remedies relating to
the Common Collateral. Prior to the Senior Lender Termination Date, the Agents
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 Common Collateral without any consultation with
or the consent of the Trustee or any Noteholder. The Trustee, for itself and on
behalf of the Noteholders, agrees that, unless and until the Senior Lender
Termination Date has occurred: the Trustee and the Noteholders will not
commence, or join with any Person (other than the Senior Lenders and the Agents
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 Noteholder Documents or otherwise; and the Trustee and the
Noteholders will not take any action that would hinder any exercise of remedies
undertaken by the Agents or any Senior Lender under any of the Senior Lender
Documents, including any sale, lease, exchange, transfer, or other disposition
of any Common Collateral, whether by foreclosure or otherwise. Notwithstanding
the foregoing, however, in any Insolvency Proceeding commenced by or against any
Obligor, the Trustee may file a claim or statement of interest with respect to
the Noteholder Debt, and the Trustee may take any action, not adverse to the
Liens on the Common Collateral securing any of the Senior Lender Debt and
otherwise not inconsistent with the terms and conditions of this Agreement, in
order to preserve or protect the Trustee's Liens in the Common Collateral. In
exercising rights and remedies with respect to the Common Collateral, the Agents
and the Senior Lenders or any of them 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 Common Collateral upon
foreclosure, to incur expenses in connection with such sale or disposition, and
to exercise all the rights and remedies of a secured party under the Uniform
Commercial Code of any applicable jurisdiction and of a secured creditor under
the Bankruptcy Code or similar laws of any applicable jurisdiction. Without
limiting the generality of the foregoing, unless and until the Senior Lender
Termination Date has occurred, except as expressly provided above in this
Section 3.1(a), the
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sole right of the Trustee and the Noteholders with respect to the Common
Collateral is to hold a Lien on the Common Collateral pursuant to the Noteholder
Documents for the period and to the extent granted therein and to receive a
share of the proceeds thereof, if any, after the Senior Lender Termination Date
has occurred.
(b) The Trustee, for itself and on behalf of the
Noteholders, hereby waives any and all rights it or any of the Noteholders may
have as a junior lien creditor or otherwise to object to the manner in which the
Agents or any of the Senior Lenders seek to enforce or collect any Senior Lender
Debt or any Liens granted in any of the Senior Lender Collateral.
SECTION 4. PAYMENTS.
4.1 Application of Proceeds. Until the Senior Lender
Termination Date has occurred, all cash proceeds of Common Collateral received
in connection with any sale or other disposition of, or collection or other
realization on, such Common Collateral (except for payments in respect of the
Notes made in accordance with any provision of the Senior Loan Agreements
expressly permitting such payments) shall be paid to the Agents and shall be
applied by the Agents to the Senior Lender Debt in such order as specified in
the Agent Intercreditor Agreement. On and after the Senior Lender Termination
Date, the Agents shall deliver to the Trustee any Common Collateral and any
proceeds of Common Collateral held by it in the same form as received, with any
necessary endorsements or as a court of competent jurisdiction may otherwise
direct.
4.2 Payments Over. Any Common Collateral or proceeds
thereof received by the Trustee or any Noteholder at any time prior to the
Senior Lender Termination Date (except for payments in respect of the Notes made
in accordance with any provision of the Senior Loan Agreements expressly
permitting such payments) shall be segregated and held in trust by the Trustee.
The Trustee shall promptly send written notice to Working Capital Agent (or Term
Loan Agent if the Trustee has received the Term Loan Designation) upon receipt
of such Common Collateral or proceeds and if directed by the Working Capital
Agent (or the Term Loan Agent, if applicable) within five (5) days after receipt
by such Agent of such written notice, shall pay over such Common Collateral or
proceeds to the Working Capital Agent (or to the Term Loan Agent, if applicable)
in the same form as received for distribution in accordance with the Agent
Intercreditor Agreement, with any necessary endorsements, or as a court of
competent jurisdiction may otherwise direct. The Working Capital Agent or the
Term Loan Agent, as the case may be, is hereby authorized to make any such
endorsements as agent for the Trustee or any such Noteholder. 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 Agents' remedies in
respect of any of the Common Collateral provided for in Section 3.1,
including any sale, lease, exchange, transfer, or other disposition of
such Common Collateral; or
(ii) any sale, lease, exchange, transfer, or
other disposition of Common Collateral permitted under the terms of the
Senior Loan Agreements (whether or not an event of default under, and
as defined therein, has occurred and is continuing); or
(iii) any agreement between the Agents and the
Borrowers to release the Agents' Lien on any portion of the Common
Collateral or to release any Guarantor
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from its obligations under the Senior Loan Agreements or any of the
other Senior Lender Documents;
the Agents, for themselves or on behalf of the Senior Lenders, release any of
their Liens on any part of the Common Collateral (or any Guarantor from its
obligations under the Senior Loan Agreements or any of the other Senior Lender
Documents), the Liens, if any, of the Trustee, for itself or for the benefit of
the Noteholders, on such Common Collateral (or the obligations of such Guarantor
under its guaranty of the Noteholder Debt, as the case may be) shall be
automatically, unconditionally and simultaneously released and the Trustee, for
itself or on behalf of any such Noteholder, promptly shall execute and deliver
to the Agents or the Borrowers such termination statements, releases and other
documents as the Senior Collateral Agents or the Borrowers may request to
confirm effectively such release.
(b) The Trustee, for itself and on behalf of the
Noteholders, hereby irrevocably constitutes and appoints each of the Agents and
any officer or agent of such 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 Trustee or such Noteholder or in such Agents' names, from
time to time in such 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 statement amendments, endorsements or other instruments or transfer or
release. This power is coupled with an interest and is irrevocable.
5.2 Insurance. Until the Senior Lender Termination Date,
the Agents and the Senior Lenders shall have the sole and exclusive right,
subject to the rights of the Borrowers under the relevant Senior Lender
Documents, to adjust settlement for any insurance policy covering any Common
Collateral in the event of any loss thereunder and to approve any award granted
in any condemnation or similar proceeding affecting any Common Collateral. Until
the Senior Lender Termination Date, all proceeds of any such policy and any such
award shall be paid to the Agents for the benefit of the Senior Lenders to the
extent required under the Senior Loan Agreements and the other Senior Lender
Documents and thereafter to the Trustee for the benefit of the Noteholders to
the extent required under the applicable Noteholder Documents. If the Trustee or
any Noteholder 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 Working Capital Agent (or the Term Loan Agent if the
Trustee has received the Term Loan Agent Designation) in accordance with the
terms of Section 4.2.
5.3 Amendments to Noteholder Collateral Documents.
(a) Without the prior written consent of the Agents and
the Required Lenders, no Noteholder Collateral 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 Noteholder Collateral
Document, would (i) provide any restriction on the Obligors' ability to incur
Senior Lender Debt, to grant Liens to the Agents for the benefit of the Senior
Lenders or otherwise to perform their obligations under the Senior Lender
Documents, in each case that is more restrictive than is contained in the
Noteholder Documents on the date hereof, (ii) change the rate of interest
payable on or alter the amount or dates for payment of any principal or other
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sum due in respect of the Noteholder Debt, other than to reduce such rate of
interest or amount or extend the maturity of any such payment or (iii) otherwise
be inconsistent with any of the terms of any of the Senior Lender Documents or
this Agreement. The Trustee agrees that each Noteholder Collateral Document
shall include the following language:
"Notwithstanding anything herein to the contrary, the lien and security
interest granted to the Trustee pursuant to this Agreement and the
exercise of any right or remedy by the Trustee hereunder are subject to
the provisions of the Intercreditor Agreement, dated as of October __,
2004 (as amended, modified, supplemented or replaced from time to time,
the "Intercreditor Agreement"), among Congress Financial Corporation
(Central) and Silver Point Finance LLC, as Agents, and BNY Midwest
Trust Company, as Trustee. In the event of any conflict between the
terms of the Intercreditor Agreement and this Agreement, the terms of
the Intercreditor Agreement shall govern."
In addition, the Trustee agrees that (i) each Noteholder Mortgage covering any
Common Collateral shall contain such other language as the Agents may reasonably
request to reflect the subordination of such Noteholder Mortgage to the Agents'
Mortgages covering such Common Collateral and (ii) each Uniform Commercial Code
financing statement naming the Trustee as secured party covering any Common
Collateral shall contain such other language as the Agents may reasonably
request to reflect the lien subordination agreed to in this Agreement.
(b) In the event the Agents or the Required 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 Senior Lender
Collateral Document or changing in any manner the rights of either Agent, any of
the Senior Lenders, or any of the Obligors thereunder, then such amendment,
waiver or consent shall apply automatically to any comparable provision of the
Comparable Noteholder Collateral Document without the consent of the Trustee or
the Noteholders and without any action by the Trustee or any Obligor; provided,
however, (A) that no such amendment, waiver or consent shall have the effect of
removing assets subject to the Lien of the Noteholder Collateral Documents,
except to the extent that a release of such Lien is required by Section 5.1 and
(B) notice of such amendment, waiver or consent shall have been given to the
Trustee.
5.4 Rights As Unsecured Creditors. Notwithstanding
anything to the contrary in this Agreement, the Trustee and the Noteholders may
exercise rights and remedies as an unsecured creditor against the Borrowers and
its Subsidiaries in accordance with the terms of the Noteholder Documents and
applicable law. Nothing in this Agreement shall prohibit the receipt by the
Trustee or any Noteholders of the required payments of interest on and principal
of the Notes so long as such receipt is (a) not the direct or indirect result of
the exercise by the Trustee or any Noteholder of rights or remedies as a secured
creditor or enforcement of any Lien held by any of them in contravention of this
Agreement and (b) permitted by the terms of the Indenture (including, without
limitation, Article X thereof (Subordination)) and the Senior Lender Documents.
In the event the Trustee or any Noteholder becomes a judgment lien creditor in
respect of Common 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 Debt on the same basis as the other Liens securing the
Noteholder Debt are so subordinated to such Senior Lender
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Debt under this Agreement. Nothing in this Agreement modifies any rights or
remedies the Agents or any of the Senior Lenders may have with respect to the
Senior Lender Collateral.
5.5 Bailee for Perfection.
(a) Each of the Agents agrees to hold all of the Common
Collateral in its possession or control (or in the possession or control of its
agents or bailees) as bailee for the Trustee solely for the purpose of
perfecting the security interest granted in such Common Collateral pursuant to
the Noteholder Collateral Agreement, subject to the terms and conditions of this
Section 5.5.
(b) Until the Senior Lender Termination Date, the Agents
shall be entitled to deal with the Common Collateral in their possession or
control in accordance with the terms of the Senior Lender Documents as if the
Lien of the Trustee under the Noteholder Security Agreement did not exist. The
rights of the Trustee shall at all times be subject to the terms of this
Agreement and to the Agents' rights under the Senior Lender Documents.
(c) Neither of the Agents shall have any obligation
whatsoever to the Trustee or any Noteholder to assure that the Common Collateral
in such Agent's possession or control is genuine or owned by any 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 Agents under this Section 5.5
shall be limited solely to holding the Common Collateral in their possession or
control as bailees for the Trustee for purposes of perfecting the Lien held by
the Trustee and to using the same degree of care with respect to such Common
Collateral as such Agent uses for similar property pledged to it as collateral
for indebtedness generally.
(d) The Agents shall not have by reason of the Noteholder
Security Agreement or this Agreement or any other document a fiduciary
relationship in respect of the Trustee or any Noteholder.
(e) Upon the Senior Lender Termination Date, each of the
Agents shall deliver to the Trustee the Common Collateral in its possession or
control (or in the possession or control of its agents or bailees) together with
any necessary endorsements (or otherwise allow the Trustee to obtain control of
such Common Collateral), or as a court of competent jurisdiction may otherwise
direct.
5.6 When Discharge of Senior Lender Debt Deemed to Not
Have Occurred. If at any time after the Senior Lender Termination Date, the
Borrowers designate any Future First-Lien Credit Facility to be the "Senior
Credit Agreement" hereunder, then such Senior Lender Termination Date shall
automatically be deemed not to have occurred for all purposes of this Agreement
(other than with respect to any actions taken prior to the date of such
designation as a result of the occurrence of such first Senior Lender
Termination Date), and such Future First-Lien Credit Facility shall
automatically be treated as a Senior Loan Agreement for all purposes of this
Agreement, including without limitation for purposes of the Lien priorities and
rights in respect of Common Collateral set forth herein. Upon receipt of notice
of such designation (including the identity of the new Agent thereunder), the
Trustee shall promptly deliver to such Agent any Common Collateral in the
Trustee's possession and control together
11
with any necessary endorsements (or otherwise allow such Agent to obtain control
of such Collateral).
SECTION 6. INSOLVENCY PROCEEDINGS.
6.1 Insolvency Proceedings Generally. This Agreement
shall be applicable both before and after the filing of any petition by or
against any Obligor under the Bankruptcy Code or the commencement of any other
Insolvency Proceedings and all converted or succeeding cases in respect thereof,
and all references herein to any Obligor shall be deemed to apply to the trustee
for any Obligor and any Obligor as debtor-in-possession. The relative rights of
Working Capital Agent, Term Loan Agent and Trustee in or to any distributions
from or in respect of any Common Collateral or proceeds of Common Collateral
shall continue after the filing of such petition on the same basis as prior to
the date of the petition, subject to any court order approving the financing of,
or use of cash collateral by, any Obligor as debtor-in-possession.
6.2 Financing Issues. If any Obligor shall be subject to
any Insolvency Proceeding and either Agent or any Senior Lender shall desire to
permit the use of cash collateral or to permit any Obligor to obtain financing
under Section 363 or Section 364 of the Bankruptcy Code ("DIP Financing"), and
if (x) the DIP Financing is secured by Liens on the Common Collateral that are
senior to or pari passu with the Liens of the Senior Lenders on the Common
Collateral and (y) to the extent the Senior Lenders receive replacement liens on
post-petition assets in connection with such DIP Financing, the Trustee, for the
benefit of the Noteholders, receives replacement liens on such post-petition
assets that are junior and subordinate to the Senior Lender's replacement liens
to the same extent as the Trustee's Liens on the Common Collateral are junior
and subordinate to the Senior Lenders' Liens on the Common Collateral, then the
Trustee, on behalf of itself and the Noteholders, agrees that (a) it will not
raise any objection to such use of cash collateral or DIP Financing, (b) it
will not request adequate protection or any other relief in connection
therewith, and (c) it will subordinate its Liens in the Common Collateral to
such DIP Financing (and all obligations secured thereby) on the same basis as
the Liens securing the Noteholder Debt are so subordinated to the Liens securing
Senior Lender Debt under this Agreement.
6.3 Relief from the Automatic Stay. The Trustee, on
behalf of itself and the Noteholders, agrees that, until the Senior Lender
Termination Date, none of them shall seek relief from the automatic stay or any
other stay in any Insolvency Proceeding in respect of the Common Collateral,
without the prior written consent of the Agents and the Required Lenders.
6.4 Adequate Protection. The Trustee, on behalf of itself
and the Noteholders, agrees that none of them shall contest (or support any
other Person in contesting) (a) any request by any Agent or any of the Senior
Lenders for adequate protection or (b) any objection by any Agent or any of the
Senior Lenders to any motion, relief, action or proceeding based on any Agent or
any of the Senior Lenders claiming a lack of adequate protection.
Notwithstanding the foregoing, in any Insolvency Proceeding, (i) if the Agents
or the Senior Lenders (or any subset thereof) are granted adequate protection in
the form of additional collateral in connection with
12
any DIP Financing or use of its cash collateral under Section 363 or Section 364
of the Bankruptcy Code, then the Trustee, on behalf of itself or any of the
Noteholders, may seek or request adequate protection in the form of a
replacement Lien on such additional collateral, which Lien is subordinated to
the Liens securing the Senior Lender Debt and such DIP Financing (and all
obligations secured thereby) on the same basis as the other Liens securing the
Noteholder Debt are so subordinated to the Liens securing the Senior Lender Debt
under this Agreement, (ii) the Trustee, on behalf of itself and the Noteholders,
agrees that it will not seek or request adequate protection in respect of its
Liens on the Common Collateral, and (iii) if, notwithstanding the foregoing, the
Trustee or any Noteholder is granted a Lien on additional collateral as adequate
protection for the Noteholder Debt, but the Agents are not granted a senior and
prior Lien on the same collateral with respect to the Senior Lender Debt, then
until the Senior Lender Termination Date, such additional collateral shall be
assigned to the Agents for application to the Senior Lender Debt to the same
extent and on the same terms as proceeds of the Common Collateral.
6.5 No Waiver. Nothing contained herein shall prohibit or
in any way limit either Agent or any Senior Lender from objecting in any
Insolvency Proceeding or otherwise to any action taken by the Trustee or any of
the Noteholders, including, without limitation, action by the Trustee or any
Noteholder seeking adequate protection or asserting any of its rights and
remedies under the Noteholder Documents or otherwise.
6.6 Avoidance Recoveries. If any Agent or any Senior
Lender is required in any Insolvency Proceeding or otherwise to turn over or
otherwise pay to the estate of any Obligor any amount (a "Recovery"), then the
relevant Senior Lender Debt shall be reinstated to the extent of such Recovery
and such Agent or Senior Lender shall be entitled to all of the rights and
remedies with respect to such Recovery under the Senior Lender Documents or
otherwise that it would have had if it had not received the payment that formed
the basis for such Recovery. If this Agreement shall have been terminated prior
to such Recovery, this Agreement shall be reinstated in full force and effect,
and such prior termination shall not diminish, release, discharge, impair or
otherwise affect the obligations of the parties hereto from such date of
reinstatement.
6.7 Reorganization Securities. If, in any Insolvency
Proceeding, debt obligations of the reorganized debtor secured by Liens upon any
property of the reorganized debtor are distributed, pursuant to a plan of
reorganization or similar dispositive restructuring plan, both on account of
Senior Lender Debt and Noteholder Debt, then, to the extent the debt obligations
distributed on account of Senior Lender Debt and Noteholder Debt are secured by
Liens on the same property, the provisions of this Agreement will survive the
distribution of such debt obligations pursuant to such plan and will apply with
like effect to the Liens securing such debt obligations.
6.8 Asset Sales in Bankruptcy. The Trustee, for itself
and each of the Noteholders, agrees that it will not object to or oppose a sale
or other disposition of any Common Collateral or other assets, properties or
capital stock securing the Senior Lender Debt (or any portion thereof) free and
clear of security interests, liens or other claims under Section 363 of the
Bankruptcy Code or any other provision of the Bankruptcy Code if the Agents have
consented to such sale or disposition, provided that the Liens of the Trustee in
such Common Collateral
13
attach to the proceeds thereof from such sale with the same priority relative to
the Liens of the Senior Lenders as its Liens in such Common Collateral.
6.9 Agreement Not to Commence Insolvency Proceeding. The
Trustee, for itself and on behalf of the Noteholders, agrees not to initiate or
prosecute or encourage any other person to initiate or prosecute any Insolvency
Proceeding, prior to the Senior Lender Termination Date.
6.10 Voting of Claims. The provisions of Article X of the
Indenture (Subordination) regarding the Agents' rights to file and prosecute the
claims of the Noteholders in respect of the Noteholder Debt in any Insolvency
Proceeding shall apply to all secured claims of the Noteholders in respect of
the Liens on the Common Collateral securing the Noteholder Debt.
SECTION 7. RELIANCE; WAIVERS; ETC.
7.1 Reliance. The consent by the Senior Lenders to the
Lien on the Common Collateral granted to the Trustee on behalf of the
Noteholders, and all loans and other extensions of credit made or deemed made on
and after the date hereof by any Agent or any of the Senior Lenders to the
Obligors, shall be deemed to have been given and made in reliance upon this
Agreement. The Trustee, on behalf of itself and the Noteholders, acknowledges
that it and the Noteholders have, independently and without reliance on either
Agent or any Senior Lender, and based on documents and information deemed by
them appropriate, made their own credit analysis and decision to enter into the
Indenture, this Agreement and the transactions contemplated hereby and thereby,
and they will continue to make their own credit decision in taking or not taking
any action under the Indenture or this Agreement.
7.2 No Warranties or Liability. The Trustee, on behalf of
itself and the Noteholders, acknowledges and agrees that neither the Agents nor
any Senior Lender has made any 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 Debt or the Senior Lender Documents. The Agents and the Senior Lenders
will be entitled to manage and supervise their respective loans and extensions
of credit to the Borrowers in accordance with law and as they may otherwise, in
their sole discretion, deem appropriate, and the Agents and the Senior Lenders
may manage their loans and extensions of credit without regard to any rights or
interests that the Trustee or any of the Noteholders have in the Common
Collateral or otherwise, except as otherwise expressly provided in this
Agreement. Neither the Agents nor any Senior Lender shall have any duty to the
Trustee or any of the Noteholders 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 Obligor (including, without
limitation, the Noteholder Documents), regardless of any knowledge thereof which
they may have or be charged with.
7.3 No Waiver of Lien Priorities.
(a) No right of the Senior Lenders, the Agents 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
14
failure to act on the part of any Obligor or by any act or failure to act by any
Senior Lender or either 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 Noteholder Documents, regardless of any knowledge
thereof which the Agents or the Senior 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 Obligors under the Senior
Lender Documents), the Senior Lenders, the Agents or any of one or more of them
may, at any time and from time to time, without the consent of, or notice to,
the Trustee or any Noteholder, without incurring any liabilities to the Trustee
or any Noteholder 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 Trustee or any Noteholder 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 Debt or any Lien in any Senior Lender Collateral
or guaranty thereof or any liability of any Obligor or any
other Person to any of the Senior Lenders or either Agent
(including, without limitation, any increase in or extension
of any of the Senior Lender Debt, 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 of the Senior Lender
Documents;
(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 Obligor or any other Person to any of the
Senior Lenders or either Agent, or any liability incurred
directly or indirectly in respect thereof;
(iii) settle or compromise any Senior Lender Debt
or any other liability of any Obligor or any other Person or
any Lien therefor or any liability incurred directly or
indirectly in respect thereof and apply any sums by whomsoever
paid and however realized to any liability (including, without
limitation, any of the Senior Lender Debt) in any manner or
order; and
(iv) exercise or delay in or refrain from
exercising any right or remedy against any Obligor or any
other Person or any Senior Lender Collateral or any Lien
therefor, elect any remedy and otherwise deal freely with any
Obligor or any other Person or any Senior Lender Collateral or
any Lien therefor.
(c) The Trustee, on behalf of itself and the Noteholders,
also agrees that the Senior Lenders and the Agents shall have no liability to
the Trustee or any Noteholder, and the Trustee, on behalf of itself and the
Noteholders, hereby waives any claim against any Senior Lender or either Agent,
arising out of any and all actions which any of the Senior Lenders or either
Agent may take or permit or omit to take with respect to: (i) any of the Senior
Lender Documents, (ii) the collection of any of the Senior Lender Debt or (iii)
the foreclosure upon, or sale, liquidation or other disposition of, any of the
Senior Lender Collateral. The Trustee, on
15
behalf of itself and the Noteholders, agrees that the Senior Lenders and the
Agents have no duty to them in respect of the maintenance or preservation of the
Senior Lender Collateral, the Senior Lender Debt or otherwise.
(d) The Trustee, on behalf of itself and the Noteholders,
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 Agents and the Senior Lenders and the Trustee
and the Noteholders, respectively, hereunder shall remain in full force and
effect irrespective of:
(a) any lack of validity or enforceability of any Senior
Lender Documents or any Noteholder Documents;
(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 Debt or Noteholder
Debt, or any amendment or waiver or other modification (including, without
limitation, any increase in the amount thereof, whether by course of conduct or
otherwise) of the terms of the Senior Loan Agreements or any other Senior Lender
Document or of the terms of the Indenture or any other Noteholder Document;
(c) any amendment, waiver or other modification, whether
in writing or by course of conduct or otherwise, of all or any of the Senior
Lender Debt or Noteholder Debt or any guarantee thereof;
(d) the commencement of any Insolvency Proceeding in
respect of any Obligor; or
(e) any other circumstances which otherwise might
constitute a defense available to, or a discharge of, any Obligor in respect of
any of the Senior Lender Debt, or of the Trustee or any Noteholder in respect of
this Agreement.
Nothing in this Section 7.4 shall be construed as a consent or waiver by either
Agent or any Senior Lender to any action by the Trustee or the Noteholders or
under any of the Noteholder Documents that is not otherwise permitted under the
Senior Lender Documents.
SECTION 8. MISCELLANEOUS.
8.1 Conflicts. In the event of any conflict between the
provisions of this Agreement and the provisions of any of the Senior Lender
Documents or the Noteholder Documents, the provisions of this Agreement shall
govern. In the event of any conflict between any instruction, request or
direction given by either Agent to the Trustee or any Noteholder hereunder and
any instruction, request or direction given by any Senior Lender to the Trustee
or any Noteholder hereunder, the instruction, request or direction given by such
Agent shall govern.
16
8.2 Continuing Nature of this Agreement. This Agreement
shall continue to be effective until the Senior Lender Termination Date shall
have occurred. This is a continuing agreement of lien subordination and the
Agents and Senior Lenders may continue, at any time and without notice to the
Trustee or any Noteholder, to extend credit and other financial accommodations
and lend monies to or for the benefit of the Obligors in reliance on this
Agreement. The Trustee, on behalf of itself and the Noteholders, 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 Proceeding.
8.3 Amendments; Waivers. No amendment, modification or
waiver of any of the provisions of this Agreement shall be deemed to be made
unless the same shall be in writing signed by the Trustee and each Agent and
each waiver, if any, shall be a waiver only with respect to the specific
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. The Parent, the Borrowers and Guarantors shall not
have any right to amend, modify or waive any provision of this Agreement, nor
shall any consent or signed writing be required of any of them to effect any
amendment, modification or waiver of any provision of this Agreement.
8.4 Information Concerning Financial Condition of the
Company, the Borrowers and its Subsidiaries. The Agents and the Senior Lenders,
on the one hand, and the Trustee and the Noteholders, on the other hand, shall
each be responsible for keeping themselves informed of (a) the financial
condition of the Parent, the Borrowers and their Subsidiaries and all Obligors
in respect of the Senior Lender Debt or the Noteholder Debt, as the case may be,
and (b) all other circumstances bearing upon the risk of nonpayment of the
Senior Lender Debt or the Noteholder Debt. The Agents and the Senior Lenders
shall have no duty to advise the Trustee or any Noteholder of information known
to it or them regarding such condition or any such circumstances or otherwise.
In the event either of the Agents 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 Trustee or any Noteholder, it or they 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 [INTENTIONALLY OMITTED]
8.6 Application of Payments. As between the Agents and
the Senior Lenders, on the one hand, and the Trustee and the Noteholders, on the
other hand, all payments received by the Agents or the Senior Lenders may be
applied, reversed and reapplied, in whole or in part, to such part of the Senior
Lender Debt as the Agents and/or the Senior Lenders, in their sole discretion,
deem appropriate. The Trustee, on behalf of itself and the Noteholders, assents
to any extension or postponement of the time of payment of the Senior Lender
Debt or any part thereof and to any other indulgence with respect thereto, to
any substitution, exchange or release of any
17
Common Collateral which may at any time secure any part of the Senior Lender
Debt and to the addition or release of any other Person primarily or secondarily
liable therefor.
8.7 Notices. All notices to the Noteholders and the
Senior Lenders permitted or required under this Agreement may be sent to the
Trustee and the Agents, 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.
8.8 Further Assurances. The Trustee, on behalf of itself
and the Noteholders, agrees that each of them shall take such further action and
shall execute and deliver to the Agents and the Senior Lenders such additional
documents and instruments (in recordable form, if requested) as the Agents or
the Senior Lenders may reasonably request to effectuate the terms of and the
lien priorities contemplated by this Agreement.
8.9 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 governed by and construed and enforced in accordance with the laws of
the State of New York.
8.10 Binding on Successors and Assigns. This Agreement
shall be binding upon the Agents, the Senior Lenders, the Trustee, the
Noteholders and their respective permitted successors and assigns.
8.11 Specific Performance. The Agents may demand specific
performance of this Agreement. The Trustee, on behalf of itself and the
Noteholders, 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 Agents.
8.12 Section Titles; Time Periods; Capacities. 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, 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". All references to
any Borrower or any Guarantor shall include such Borrower or such Guarantor as
an obligor under the Senior Lender Documents, regardless of its capacity as a
borrower or guarantor thereunder.
8.13 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be an original and all of which shall
together constitute one and the same document. Delivery of an executed
counterpart of this Agreement by telefacsimile or
18
electronic transmission shall be equally as effective as delivery of an original
executed counterpart of this Agreement. Any party delivering an executed
counterpart of this Agreement by telefacsimile or electronic transmission also
shall deliver an original executed counterpart of this Agreement, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Agreement.
8.14 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.
By its signature, the Trustee represents and warrants to the Agents that BNY
Midwest Trust Company, as trustee, has Liens on assets of the Parent, the
Borrowers or any of its Subsidiaries only in its capacity as Trustee and not in
any other capacity or in its individual capacity.
8.15 No Third Party Beneficiaries. This Agreement and the
rights and benefits hereof shall inure to the benefit of the Agents and the
Senior Lenders and their respective successors and assigns and the Trustee and
the Noteholders and their respective permitted successors and assigns. No other
Person shall have or be entitled to assert rights or benefits hereunder.
8.16 Rights as Between Agents. With respect to the rights
and the exercise of rights hereunder of the Working Capital Agent and the
Working Capital Lenders, on the one hand, and the rights and the exercise of
rights hereunder of the Term Loan Agent and the Term Lenders, on the other hand,
the terms of the Agent Intercreditor Agreement shall be controlling.
19
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
CONGRESS FINANCIAL CORPORATION (CENTRAL)
as Agent for the Working Capital Lenders
By:
------------------------------------------
Name:
Title:
Address:
-------------------------------------------------
-------------------------------------------------
Attention:
Telecopy No.:
email address:
SILVER POINT FINANCE, LLC,
as Agent for the Term Lenders
By:
------------------------------------------
Name:
Title:
Attention:
Telecopy No.:
email address:
BNY MIDWEST TRUST COMPANY,
as Trustee
By:
------------------------------------------
Name:
Title:
Address:
-------------------------------------------------
-------------------------------------------------
Attention:
Telecopy No.:
email address:
20
OBLIGOR ACKNOWLEDGMENT
Each of the undersigned hereby acknowledges and agrees to the
foregoing terms and provisions. By its signature below, each of the undersigned
agrees that it will, together with its successors and assigns, be bound by the
provisions of the within and foregoing Intercreditor Agreement.
Each of the undersigned agrees that any Agent possessing
Collateral does so as bailee (under the UCC) for the other Agent and the
Trustee, to the extent each has a Lien on such Collateral, and is hereby
authorized to and may turn over to the other Agent or the Trustee, in accordance
with the foregoing Intercreditor Agreement, after all obligations and
indebtedness of the undersigned to the bailee Agent have been fully paid and
performed.
Each of the undersigned acknowledges and agrees that: (i)
although it may sign this Obligor Acknowledgment to the Intercreditor Agreement
it is not a party thereto and does not and will not receive any right, benefit,
priority or interest under or because of the existence of the foregoing
Intercreditor Agreement, and (ii) it will execute and deliver such additional
documents and take such additional action as may be necessary or desirable in
the reasonable opinion of either of the Agents to effectuate the provisions and
purposes of the foregoing Intercreditor Agreement.
IWG RESOURCES LLC,
as Borrower
By:
--------------------------------------
Name:
Title:
Address:
--------------------------------------------
--------------------------------------------
Attention:
Telecopy No.:
email address:
OWI CORPORATION,
as Borrower
By:
---------------------------------------
Name:
Title:
Address:
21
--------------------------------------------
---------------------------------------------
Attention:
Telecopy No.:
email address:
INTERNATIONAL WIRE ROME
OPERATIONS, INC.,
as Borrower
By:
---------------------------------------
Name:
Title:
Address:
---------------------------------------------
---------------------------------------------
Attention:
Telecopy No.:
email address:
OMEGA WIRE, INC.,
as Borrower
By:
---------------------------------------
Name:
Title:
Address:
---------------------------------------------
---------------------------------------------
Attention:
Telecopy No.:
email address:
CAMDEN WIRE CO., INC.,
as Borrower
By:
---------------------------------------
Name:
Title:
22
Address:
---------------------------------------------
---------------------------------------------
Attention:
Telecopy No.:
email address:
WIRE TECHNOLOGIES, INC.,
as Borrower
By:
---------------------------------------
Name:
Title:
Address:
--------------------------------------------
--------------------------------------------
Attention:
Telecopy No.:
email address:
INTERNATIONAL WIRE GROUP, INC.,
as Parent
By:
---------------------------------------
Name:
Title:
Address:
---------------------------------------------
---------------------------------------------
Attention:
Telecopy No.:
email address:
23
