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EXHIBIT 4.11
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT dated as of March 20, 2003 (as
modified, amended, restated or supplemented
from time to time, this
"AGREEMENT"), by and among:
(1) U.S. Bank National Association, in its capacity as the
collateral agent under the Collateral
Agency and Intercreditor Agreement
described below (the "COLLATERAL
AGENT");
(2) Castle SPFD, LLC,
a Delaware limited liability company (the
"SPE");
(3) A. M. Castle & Co., a Maryland corporation ("CASTLE"),
Total
Plastics, Inc., a Michigan corporation
("TOTAL PLASTICS"), Oliver Steel Plate
Co., a Delaware corporation ("OLIVER"), and
Keystone Tube Company, LLC, a
Delaware limited liability company
("KEYSTONE"; and together with Castle, Total
Plastics and Oliver, each, a "COMPANY" and
collectively, the "COMPANIES");
(4) Massachusetts Mutual Life Insurance Company, Allstate Life
Insurance Company, Nationwide Life
Insurance Company, The Northwestern Mutual
Life Insurance Company, United of Omaha
Life Insurance Company, Mutual of Omaha
Life Insurance Company, Bank of America,
N.A. and The Northern Trust Company
(collectively, the "EXISTING LENDERS")
(5) Castle IND MGR, Inc. (the "INDEPENDENT MEMBER"); and
(6) General Electric Capital Corporation, a Delaware
corporation
("GE CAPITAL"), acting in its capacity as
administrative agent for the Purchaser
under the Purchase Agreement (in such
capacity, together with its successors and
assigns, the "RECEIVABLES AGENT").
R E C I T A L S:
A. The Companies and the SPE are parties to that certain
Receivables
Sale and Contribution Agreement, dated as
of December 26, 2002 (as amended,
supplemented, restated or otherwise
modified from time to time, the "SALE
AGREEMENT"), pursuant to which each of the
Companies has agreed to sell and/or
contribute to the SPE, and the SPE has
agreed to purchase and accept from such
Company, all of the right, title and
interest of such Company in all of its
Receivables and the Related Security (each
as hereinafter defined).
B. Castle, as master servicer, Total Plastics, as servicer,
Oliver,
as servicer, the SPE, Castle IND MGR, Inc.,
a Delaware corporation (the
"INDEPENDENT MEMBER"), and GE Capital, as
purchaser and the Receivables Agent,
are parties to that certain Receivables
Purchase
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and Servicing Agreement, dated as of
December 26, 2002 (as amended,
supplemented, restated or otherwise
modified from time to time, the "PURCHASE
AGREEMENT"), pursuant to which GE Capital
has agreed to purchase interests in
the Receivables and Related Security sold
and contributed to the SPE pursuant to
the Sale Agreement.
C. Pursuant to (i) the Reimbursement Agreement, dated as of June
1,
1994 by Castle in favor of NBD Bank, N.A.,
as assigned and amended pursuant to
the terms of an Assignment and Amendment of
Reimbursement Agreement, dated as of
June 12, 2001, by and among Castle, Bank
One, NA (successor to NBD Bank, N.A.)
and Bank of America, N.A. ("BOFA"), as
further amended by the Second Amendment
to Reimbursement Agreement dated November
22, 2002, the Third Amendment to
Reimbursement Agreement dated December 26,
2002 and the Fourth Amendment to
Reimbursement Agreement dated March 20,
2002 and the related documents
(collectively, as may be amended,
supplemented, restated or otherwise modified
from time to time, the "JUNE 1994
REIMBURSEMENT Agreement"), (ii) the
Reimbursement Agreement, dated as of
November 1, 1994 by Castle in favor of NBD
Bank, N.A., as assigned and amended
pursuant to the terms of an Assignment and
Amendment of Reimbursement Agreement, dated
as of November 1, 2001, by and among
Castle, Bank One, NA (successor to NBD
Bank, N.A.), as further amended by the
Second Amendment to Reimbursement Agreement
dated as of November 1, 2001, the
Third Amendment to Reimbursement Agreement
dated as of November 22, 2002, the
Fourth Amendment to Reimbursement Agreement
dated as of December 26, 2002 and
the Fifth Amendment to Reimbursement
Agreement dated March 20, 2003 and the
related documents (collectively, as may be
amended, supplemented, restated or
otherwise modified from time to time, the
"NOVEMBER 1994 REIMBURSEMENT
AGREEMENT"), and (iii) the Application and
Agreement for Standby Letter of
Credit dated as of March 5, 2002 and the
related documents (collectively, as may
be amended, supplemented, restated or
otherwise modified from time to time, the
"MARCH 2002 AGREEMENT"; and, together with
the June 1994 Reimbursement Agreement
and the November 1994 Reimbursement
Agreement, the "REIMBURSEMENT AGREEMENTS"),
BofA has issued letters of credit (u)
pursuant to which up to a maximum amount
of $611,337 may be drawn at any one time to
secure payments due in connection
with certain State of Ohio, Industrial
Development Refinancing Revenue Bonds
(A.M. Castle & Co. Project) Series 1994
issued to provide financing to the
Company, (v) pursuant to which up to a
maximum amount of $1,008,188 may be drawn
at any one time to secure payments due in
connection with certain The Industrial
Development Authority of the City of Kansas
City, Missouri, Industrial
Development Refunding Revenue Bonds (A.M.
Castle & Co. Project) Series 1994
issued to provide financing to the Company,
(w) pursuant to which up to a
maximum of $672,544 may be drawn at any one
time in connection with certain
Village of Franklin Park, Illinois
Industrial Development Refunding Revenue
Bonds (A.M. Castle & Co. Project)
Series 1994 issued to provide financing to the
Company; (x) pursuant to which up to a
maximum of $194,281 may be drawn at any
one time to secure payments due in
connection with certain Village of Rosemont,
Illinois Industrial Development Refunding
Revenue Bonds (A.M. Castle & Co.
Project) Series 1994 issued to provide
financing to the Company; (y) pursuant to
which up to a maximum of $3,762,740 may be
drawn at any one time to secure
payments due in connection with certain
City of Hammond, Indiana Adjustable Rate
Economic Development Revenue Bonds (A.M.
Castle & Co. Project) Series 1994
issued to provide financing to the Company
and (z) pursuant to which up to
$5,000,000 may be drawn to secure payments
due from Kreher Steel Company LLC
("KREHER") in connection with a certain
Amended and Restated Credit Agreement,
dated as of March 8,
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2002 (as from time to time amended or
modified) between Kreher and BofA, as
Agent (the items described in clauses (u) -
(z) are herein collectively, as may
be amended, supplemented, restated or
otherwise modified from time to time,
referred to as the "BOFA LETTERS OF
CREDIT").
D. Pursuant to (i) the Guarantee Agreement dated as of November
22,
2002 by Castle in favor of BofA, Castle
guaranteed to BofA (a) the payment by
the City of LaPorte, Indiana (the "KEYSTONE
ISSUER") of all principal interest
and any other amounts payable by the
Keystone Issuer in respect of the Keystone
Issuer's Economic Development Revenue
Bonds, Series 1998 (Keystone Services,
Inc. Project) (the "LAPORTE BONDS"), and
(b) the payment and performance by
Keystone Service, Inc. of all of its
covenants, agreements, obligations and
liabilities under that certain Loan
Agreement, dated as of April 1, 1998,
between the Keystone Issuer and Keystone
Service, Inc. and (ii) the Guarantee
Agreement dated as of November 22, 2002 by
Castle in favor of BofA Castle
guaranteed the payment to BofA by The
Mecklenburg County Industrial Facilities
and Pollution Control Financing Authority
(the "MECKLENBURG ISSUER") of all
principal, interest and other amounts
payable by the Mecklenburg Issuer in
respect to the Mecklenburg Issuer's
Tax-Exempt Industrial Revenue Bonds (A.M.
Castle & Co. Project) Series 1996 (the
"MECKLENBURG BONDS"); the obligation of
Castle under each of said Guarantee
Agreements are herein collectively, as may
be amended, supplemented, restated or
otherwise modified from time to time,
referred to as the "IRB BOND GUARANTY
OBLIGATIONS" and each such Guarantee
Agreement, as may be amended, supplemented,
restated or otherwise modified from
time to time, is herein referred to as an
"IRB BOND GUARANTEE").
E. Pursuant to the Trade Acceptance Purchase Agreement dated as
of
August 13, 2001 between Castle and The
Northern Trust Company ("NORTHERN
TRUST"), as amended by the First Amendment
thereto dated as of April 29, 2002,
the Second Amendment thereto dated as of
June 30, 2002, the Third Amendment
thereto dated as of November 22, 2002, the
Fourth Amendment thereto dated
December 26, 2002 and the Fifth Amendment
thereto dated March 20, 2003
(collectively, as may be amended,
supplemented, restated or otherwise modified
from time to time, the "TRADE ACCEPTANCE
PURCHASE AGREEMENT"), Northern Trust
agreed to purchase certain Trade
Acceptances (as defined therein) from Castle
from time to time.
F. Pursuant to (i) the Note Agreement dated as of April 1, 1996
between Castle and Nationwide Life
Insurance Company, as amended by the First
Amendment and Waiver to Note Agreement
dated as of December 1, 1998, the Second
Amendment to Note Agreement dated November
22, 2002, the Third Amendment to Note
Agreement dated as of December 26, 2002 and
the Fourth Amendment to Note
Agreement dated as of March 20, 2003, (ii)
the Note Agreement dated as of May
15, 1997 among Castle, Massachusetts Mutual
Life Insurance Company and United of
Omaha Life Insurance Company, as amended by
the First Amendment and Waiver to
Note Agreement, dated as of December 1,
1998, the Second Amendment to Note
Agreement dated November 22, 2002, the
Third Amendment to Note Agreement dated
as of December 26, 2002 and the Fourth
Amendment to Note Agreement dated as of
March 20, 2003, and (iii) the Note
Agreement, dated as of March 1, 1998, among
Castle, Allstate Life Insurance Company,
The The Northwestern Mutual Life
Insurance Company, Massachusetts Mutual
Life Insurance Company, Mutual of Omaha
Insurance Company and United of Omaha Life
Insurance Company, as amended by the
First Amendment and Waiver to Note
Agreement, dated as of December 1, 1998, the
Second Amendment to Note Agreement dated
November 22, 2002, the Third Amendment
to Note Agreement dated as of December
26,
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2002 and the Fourth Amendment to Note
Agreement dated as of March 20, 2003
(collectively, as may be amended,
supplemented, restated or otherwise modified
from time to time, the "NOTE AGREEMENTS"),
Castle issued various series of
senior notes (collectively, as may be
amended, supplemented, restated or
otherwise modified from time to time, the
"SENIOR NOTES") to the other parties
to the Note Agreements (each of such other
parties, a "NOTEHOLDER" and
collectively, the "NOTEHOLDERS").
G. To secure their obligations to the Existing lenders (all of
the
foregoing and their permitted successors
and assigns under Section 3.3 hereof,
collectively, the "LENDERS") under the Loan
Documents (hereinafter defined),
Castle and certain of its Subsidiaries
(other than the SPE and the Independent
Member) have granted to the Collateral
Agent, for the benefit of the Lenders,
liens on, among other things, Lender
Collateral.
H. The parties hereto wish to set forth certain agreements with
respect to the Receivables Assets (as
hereinafter defined) and with respect to
the Lender Collateral (as hereinafter
defined).
NOW, THEREFORE, in consideration of the foregoing premises and
the
mutual covenants contained herein, and for
other good and valuable
consideration, receipt of which is hereby
acknowledged, it is hereby agreed as
follows:
ARTICLE 1. DEFINITIONS
1.1.
Certain Defined Terms.
As used in this Agreement, the following
terms shall have the following meanings
(such meanings to be equally applicable
to both the singular and plural forms of
the terms defined):
"ACCOUNT COLLATERAL" has the meaning assigned to it in clause (f)
of
the definition of the term "Related
Security".
"BANKRUPTCY CODE" means the provisions of title 11 of the
United
States Code, 11 U.S.C. Sections 101 et
seq.
"BILLING DATE" means, with respect to any Receivable or Unsold
Receivable, as the case may be, the date on
which the invoice with respect
thereto was generated and billed to the
Obligor.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday or
a
day on which banks are required or
permitted to be closed in any of the States
of Illinois or New York.
"CLAIM" means the Lender Claim or the Receivables Claim, as
applicable.
"COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT" means the
Collateral
Agency and Intercreditor Agreement, dated
as of March 20, 2003, among the
Collateral Agent, BofA, the Noteholders,
Northern Trust, the Guarantors (as
defined therein) and any holders of
Additional Future Debt (as defined therein),
as may be amended, supplemented, restated
or otherwise modified from time to
time.
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"COLLECTION ACCOUNT" means Deutsche Bank Trust Company Americas,
New
York, New York, ABA No. 021 001 033,
Account No. 502 328 54, Account Name: GE
Capital/CAF Depository, Reference: A. M.
Castle CFN 4963, or any successor
collection account, established by the
Receivables Agent under the Purchase
Agreement.
"COLLECTIONS" means, with respect to any Receivable, all cash
collections and other proceeds of such
Receivable, including, without
limitation, all late charges, fees and
interest arising thereon, all recoveries
with respect to any such Receivable that
has been written off as uncollectible,
and any payments (whether by a scrap mill,
any Company or any other Person) with
respect to Returned Goods or Scrapped
Goods, BUT EXCLUDING, HOWEVER, in respect
of the Transferred Receivables, any
purchase price paid to the Companies by the
SPE with respect to and as consideration
for the sale of the Transferred
Receivables by any of the Companies to the
SPE.
"CONCENTRATION ACCOUNT" means that certain concentration
account
listed on Schedule 4.01(r), as amended, to
the Purchase Agreement established in
the name of the SPE and held at the
Concentration Account Bank.
"CONCENTRATION ACCOUNT BANK" means any bank or other financial
institution at which the Concentration
Account is maintained.
"CONTRACT" means any of the Receivables Contracts or the Unsold
Receivables Contracts.
"CONTRIBUTED RECEIVABLE" means a Receivable and Related
Security
contributed to SPE as capital contribution
under the Sale Agreement.
"DEPOSIT INVESTMENTS" means, with respect to any Account
Collateral,
the certificates, instruments, investment
property or other investments in which
amounts constituting such collateral are
invested from time to time.
"DESIGNATED DISTRICT" means a District which has been designated
in
writing by the Receivables Agent to the
Companies pursuant to the provisions of
the Related Documents as giving rise to
Designated Receivables.
"DESIGNATED RECEIVABLE" means any indebtedness of Obligors
(whether
constituting an account, a payment
intangible, an instrument or otherwise)
arising from the sale of merchandise, goods
or services by any District of any
Company to its Obligors (including the
right to payment of any interest or
finance charges and other obligations of
such Obligors with respect thereto)
designated in writing by the Receivables
Agent to the Companies pursuant to the
provisions of the Related Documents at any
time that the aggregate principal
amount of Transferred Receivables at any
one time outstanding exceeds
$75,000,000 and arising after the date of
such written designation.
"DISPOSITION" means any liquidation of Castle or any of its
Subsidiaries or their assets, the
establishment of any receivership for Castle
or any of its Subsidiaries or their assets,
a bankruptcy proceeding (either
voluntary or involuntary) of Castle or any
of its Subsidiaries, the payment of
any insurance, condemnation, confiscation,
seizure or other claim upon the
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condemnation, confiscation, seizure, loss
or destruction of, or damage to, or
any other sale, transfer, assignment or
other disposition of assets of Castle or
any of its Subsidiaries (other than the
sale, contribution and transfer of
interests in the Receivables Assets
pursuant to the Sale Agreement and the
Purchase Agreement).
"DISTRICT" means the geographic location of the office of the
Company which generates a Contract with
respect to any Receivable or Unsold
Receivable.
"ENFORCEMENT" means, collectively or individually, (a) any
declaration by the Receivables Agent or the
Purchaser or automatic occurrence of
the Facility Termination Date as a result
of the occurrence of a Termination
Event under the Related Documents; or (b)
the Collateral Agent or any of the
Lenders, after the occurrence and during
the continuance of a Loan Event of
Default, (i) demands payment in full of or
accelerates or requires cash
collateral for the indebtedness of Castle
and its Subsidiaries (other than the
SPE and the Independent Member) to the
Lenders under the Loan Documents or (ii)
commences the judicial or nonjudicial
enforcement of any of the default rights
and remedies against Castle or its
Subsidiaries (other than the SPE and the
Independent Member) or any of their
respective assets under the Loan Documents
or applicable law.
"ENFORCEMENT NOTICE" means a written notice delivered in
accordance
with Section 2.4 hereof which notice shall
(a) if delivered by the Receivables
Agent, state that the Facility Termination
Date has occurred, specify the nature
of the Termination Event that has caused
the declaration of such Facility
Termination Date, and state that an
Enforcement Period has commenced and (b) if
delivered by the Collateral Agent, state
that a Loan Event of Default has
occurred and that the payment in full of or
cash collateral for the Lender Claim
has been demanded or the indebtedness of
Castle or its Subsidiaries (other than
the SPE and the Independent Member) to any
of the Lenders has been accelerated,
specify the nature of the Loan Event of
Default that caused such demand or
acceleration, and state that an Enforcement
Period has commenced.
"ENFORCEMENT PERIOD" means the period of time following the
receipt
by either (a) the Collateral Agent, on
behalf of the Lenders, or (b) the
Receivables Agent of an Enforcement Notice
delivered by the other until the
earliest of the following: (i) the
Receivables Claim has been satisfied in full,
the Purchaser and the Receivables Agent
have no further obligations under the
Related Documents and the Related Documents
have been terminated; (ii) the
Lender Claim has been satisfied in full,
the Lenders have no further obligations
under the Loan Documents and the Loan
Documents have been terminated; and (iii)
the parties hereto agree in writing to
terminate the Enforcement Period.
"FACILITY TERMINATION DATE" means the earliest of (a) the date
so
designated pursuant to the Purchase
Agreement, (b) December 26, 2005, and (c)
the date of termination of the Maximum
Purchase Limit specified in a notice from
the SPE to the Purchaser delivered pursuant
to the Purchase Agreement.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state
or other political subdivision thereof, and
any agency, department or other
entity exercising executive, legislative,
judicial, regulatory or administrative
functions of or pertaining to
government.
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"JOINDER AGREEMENT" means the Joinder Agreement in the form of
Exhibit C attached hereto.
"LENDER CLAIM" means all of the indebtedness, obligations and
other
liabilities of Castle or its Subsidiaries
(other than the SPE and the
Independent Member) now or hereafter
arising under, or in connection with the
Loan Documents, including, but not limited
to, all reimbursement obligations of
Castle with respect to any loans made or
any letters of credit issued
thereunder, all guarantee obligations of
Castle's Subsidiaries (other than the
SPE and the Independent Member) under the
Loan Documents, any interest thereon
(including, without limitation, interest
accruing after the commencement of a
bankruptcy, insolvency or similar
proceeding relating to any of Castle or its
Subsidiaries (other than the SPE and the
Independent Member), whether or not
such interest is an allowed claim in any
such proceeding), any reimbursement
obligations, premiums, make-whole amounts,
yield maintenance amounts, fees or
expenses due thereunder, and any costs of
collection or enforcement.
"LENDER COLLATERAL" means all property and interests in property
now
owned or hereafter acquired or created, of
Castle or any of its Subsidiaries
(other than the SPE and the Independent
Member) in or upon which a Lender
Interest is granted or purported to be
granted by any such Person to any of the
Lenders under any of the Loan Documents,
EXCLUDING, HOWEVER, the Receivables
Assets, the Returned Goods or Scrapped
Goods the original sale of which gave
rise to a Transferred Receivable (except as
otherwise set forth in Section
2.1(a)) hereof, BUT INCLUDING Returned
Goods or Scrapped Goods in or on which
the Lender Interest is junior, subordinated
and subject to the Receivables
Interest pursuant to Section 2.1(a)
hereof.
"LENDER INTEREST" means, with respect to any property or interest
in
property (including, without limitation,
the Lender Collateral), now owned or
hereafter acquired or created, of Castle or
any of its Subsidiaries (other than
the SPE and the Independent Member), any
lien, claim, encumbrance, security
interest, voting right, right of offset
(whether contractual or arising at
common law) or other interest of the
Collateral Agent (for the benefit of itself
and the Lenders) or any Lender in such
property or interests in or to such
property.
"LIEN" means any mortgage or deed of trust, pledge,
hypothecation,
assignment, deposit arrangement, lien,
charge, claim, security interest,
easement or encumbrance, or preference,
priority or other security agreement or
preferential arrangement of any kind or
nature whatsoever (including any lease
or title retention agreement, any financing
lease having substantially the same
economic effect as any of the foregoing,
and the filing of, or agreement to
give, any financing statement perfecting a
security interest under the UCC or
comparable law of any jurisdiction).
"LOAN DOCUMENTS" means the Collateral Agency and Intercreditor
Agreement, the Reimbursement Agreements,
the Trade Acceptance Purchase
Agreement, the Note Agreements, the IRB
Bond Guarantees, any Additional Future
Debt Documents (as defined in the
Collateral Agency and Intercreditor
Agreement), the following collateral
documents, each dated as of March 20, 2003:
the Security Agreement between the
Collateral Agent and the Obligors, the Stock
Pledge Agreement between the Collateral
Agent and Castle, the Trademark
Collateral Security and Pledge Agreement
among the Collateral Agent, Castle and
Total Plastics, the Environmental Indemnity
Agreement between the Obligors and
the Collateral Agent, Deed
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of Trust, Security Agreement, Financing
Statement and Assignment of Rents and
Leases between Castle and the Collateral
Agent (Charlotte, NC), the Open-End
Mortgage, Security Agreement, Financing
Statement and Assignment of Rents and
Leases between Castle and the Collateral
Agent (Bedford Heights, OH), the Deed
of Trust, Security Agreement, Financing
Statement and Assignment of Rents and
Leases between the Company and the
Collateral Agent (Grand Prairie, TX), the
Mortgage, Security Agreement, Financing
Statement and Assignment of Rents and
Leases between Keystone and the Collateral
Agent (Franklin Park, IL), the Deed
of Trust, Security Agreement, Financing
Statement and Assignment of Rents and
Leases between Castle and the Collateral
Agent (Houston, TX), the Deed of Trust,
Security Agreement, Financing Statement and
Assignment of Rents and Leases
between Castle and the Collateral Agent
(Kansas City, MO), the Deed of Trust,
Security Agreement, Financing Statement and
Assignment of Rents and Leases
between Kestone and the Collateral Agent
(Paramount, CA), the Mortgage, Security
Agreement, Financing Statement and
Assignment of Rents and Leases between the
Company and the Collateral Agent (Blaine,
MN), the Open-End Mortgage, Security
Agreement, Financing Statement and
Assignment of Rents and Leases between
Castle, Mortgage, Security Agreement,
Financing Statement and Assignment of
Rents and Leases between Castle and the
Collateral Agent (Worcester, MA) and the
Collateral Agent (Fairless Hills, PA) and
Mortgage, Security Agreement,
Financing Statement and Assignment of Rents
and Leases between Total Plastics
and the Collateral Agent (Grand Rapids,
MI), and all related documents executed
pursuant to any of the foregoing, in each
case, as may be amended, supplemented,
restated or otherwise modified from time to
time. For the purposes of this
definition of the term "Loan Documents",
"Obligors" means Castle, Datamet, Inc.,
an Illinois corporation, Keystone, Total
Plastics, Paramont Machine Company,
LLC, a Delaware limited liability company,
Advanced Fabricating Technology, LLC,
a Delaware limited liability company,
Oliver, and Metal Mart, LLC, a Delaware
limited liability company.
"LOAN EVENT OF DEFAULT" has the meaning ascribed to the term
"Event
of Default" under and as defined in any of
the Reimbursement Agreements, the IRB
Bond Guarantees, the Trade Acceptance
Purchase Agreement, any of the Note
Agreements or any Additional Future Debt
Documents (as defined in the Collateral
Agency and Intercreditor Agreement).
"LOCKBOX" has the meaning ascribed to it in Section 6.01(a)(ii)
of
the Purchase Agreement.
"LOCKBOX ACCOUNT" means each lockbox account or blocked account
(including blocked accounts consisting of
deposit accounts and concentration
accounts) listed on Schedule 4.01(r) to the
Purchase Agreement as amended from
time to time established in the name of the
SPE and held at a Lockbox Account
Bank, together with any other segregated
deposit account established by the SPE
for the deposit of Collections pursuant to
and in accordance with the Purchase
Agreement.
"LOCKBOX ACCOUNT BANK" means any bank or other financial
institution
at which one or more Lockbox Accounts are
maintained.
"LOCKBOX ACCOUNT AGREEMENT" means any agreement among any one
or
more Companies, the SPE, the Receivables
Agent, a Lockbox Account Bank and/or
Concentration
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Account Bank with respect to a Lockbox,
Lockbox Account and/or Concentration
Account that provides, among other things,
that (a) all items of payment
deposited in such Lockbox, Lockbox Account
or Concentration Account are held by
such Lockbox Account Bank or such
Concentration Account Bank, as the case may
be, as custodian for GE Capital, as
Receivables Agent, (b) neither the Lockbox
Account Bank nor the Concentration Account
Bank, as applicable, has any rights
of setoff or recoupment or any other claim
against such Lockbox Account or
Concentration Account, as the case may be,
other than for payment of its service
fees and other charges directly related to
the administration of such Account
and for returned checks or other items of
payment and (c) such Lockbox Account
Bank agrees to forward all Collections
received in such Lockbox Account to the
Concentration Account within one Business
Day of receipt of available funds, and
such Concentration Account Bank agrees to
forward all Collections received in
the Concentration Account to the Collection
Account within one Business Day of
receipt of available funds, and is
otherwise in form and substance acceptable to
the Receivables Agent.
"MAXIMUM PURCHASE LIMIT" means $60,000,000 as such amount may
be
reduced in accordance with Section 2.02(a)
of the Purchase Agreement.
"OBLIGOR" means, with respect to any Receivable, the Person
primarily obligated to make payments in
respect thereof.
"OUTSTANDING BALANCE" means, with respect to any Receivable and
as
of any date of determination, the amount
(which amount shall not be less than
zero) equal to (a) the amount billed to the
Obligor thereof, minus (b) all
Collections received from the Obligor
thereunder, minus (c) all discounts to or
any other modifications that reduce such
amount billed to the Obligor; PROVIDED
THAT if the Receivables Agent or any of the
Companies makes a determination that
all payments by such Obligor with respect
to such amount billed have been made,
the Outstanding Balance shall be zero.
"PERSON" means any individual, sole proprietorship,
partnership,
joint venture, unincorporated organization,
trust, association, corporation
(including a business trust), limited
liability company, institution, public
benefit corporation, joint stock company,
Governmental Authority or any other
entity of whatever nature.
"PURCHASER" means GE Capital and its assigns under the Purchase
Agreement.
"RECEIVABLE" means, with respect to any Obligor, indebtedness
of
such Obligor (whether constituting an
account, a payment intangible, an
instrument or otherwise) arising from the
sale of merchandise, goods or services
by a Company to such Obligor, including the
right to payment of any interest or
finance charges and other obligations of
such Obligor with respect thereto;
PROVIDED THAT the definition of
"Receivable" shall exclude the Designated
Receivables.
"RECEIVABLES ASSETS" means the Transferred Receivables and
Related
Security (exclusive of any Collections or
other monies deposited in the
Collection Account, any Lockbox Account or
the Concentration Account which are
not Collections related to Transferred
Receivables, and, for the avoidance of
doubt, exclusive of Unsold
Receivables).
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<PAGE>
"RECEIVABLES CONTRACT" means any agreement (including any
invoice,
draft or promissory note) pursuant to, or
under which, an Obligor shall be
obligated to make payments with respect to
any Receivable.
"RECEIVABLES CLAIM" means (a) all indebtedness, obligations and
other liabilities of the SPE to the
Receivables Agent and the Purchaser and (b)
until and unless all of the obligations to
the Receivables Agent or any
Purchaser arising under or in connection
with the Related Documents have been
fully performed and indefeasibly paid in
full in cash to the Receivables Agent,
all indebtedness, obligations and other
liabilities of (i) any of the Companies
now or hereafter arising under, or in
connection with, any of the Related
Documents or (ii) any of the Companies to
the SPE now or hereafter arising
under, or in connection with, the Related
Documents, including, but not limited
to, all sums or advances now made to or for
the benefit of the SPE under the
Purchase Agreement, any yield or interest
thereon (including, without
limitation, interest or yield accruing
after the commencement of a bankruptcy,
insolvency or similar proceeding relating
to any of the Companies or the SPE,
whether or not such interest or yield is an
allowed claim in any such
proceeding), any repayment obligations,
fees or expenses due thereunder, and any
costs of collection or enforcement.
"RECEIVABLES INTEREST" means, with respect to any of the
Receivables
Assets or any property or interest in
property, any lien, claim, encumbrance,
security interest or other interest of any
or all of the SPE, the Purchaser
and/or the Receivables Agent in or to any
of such property.
"RECORDS" means all Receivables Contracts and other documents,
books, records and other information
(including computer programs, tapes, disks,
data processing software and related
property and rights) prepared and
maintained by any Company, any
Sub-Servicers or the SPE with respect to the
Receivables Assets and the Obligors
thereunder.
"RELATED DOCUMENTS" means the Sale Agreement, the Purchase
Agreement, each as amended from time to
time, and any other agreements,
instruments or documents (other than this
Agreement) executed by (a) any or all
of the Companies and delivered to the SPE
or (b) the SPE and delivered to the
Receivables Agent or the Purchaser.
"RELATED SECURITY" means with respect to any Receivable:
(a) all supporting obligations (as defined in Article 9 of the
UCC),
security interests or Liens and property
subject thereto from time to time
securing or purporting to secure the
payment of such Receivable by the Person
obligated thereon;
(b) all guaranties, indemnities and warranties, insurance
policies,
financing statements and other agreements
or arrangements of whatever character
from time to time supporting or securing
payment of such Receivable;
(c) all right, title and interest of Castle or any Subsidiary in
and
to any goods (including Returned Goods) the
sale of which gave rise to such
Receivable and all right, title and
interest of Castle or any Subsidiary in and
to payments made on account of Scrapped
Goods; PROVIDED THAT Related Security
will not include Returned Goods from and
after the time, if any, when the SPE
shall have received full cash payment
required to be made under the Sale
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<PAGE>
Agreement on account of the reduction of
the Outstanding Balance of the
Receivable related to such Returned
Good;
(d) all Collections;
(e) all Records;
(f) all of the following (collectively, the "ACCOUNT
COLLATERAL")
(A) in the case of any Company, all deposit
accounts and/or lockboxes
established for collection of Receivables
and all funds on deposit therein and
all certificates and instruments, if any,
at any time or evidencing such
accounts, lockboxes or such funds and (B)
in the case of SPE:
(1) all deposit accounts, including the Lockbox Accounts, the
Lockboxes, and all funds on deposit therein and all
certificates and instruments, if any, from time to time
representing or evidencing any deposit account, the Lockbox
Accounts, the Lockboxes or such funds,
(2) the Collection Account, the Concentration Account and all
funds on deposit therein and all certificates and instruments,
if any, from time to time representing or evidencing the
Collection Account, the Concentration Account or such funds,
(3) all Deposit Investments from time to time of amounts in
the Collection Account, and all certificates, instruments and
investment property, if any, from time to time representing or
evidencing such Deposit Investments,
(4) all notes, certificates of deposit and other instruments
in substitution for or relating to any of the then existing
Account Collateral, and
(5) all interest, dividends, cash, instruments, investment
property and other property from time to time received,
receivable or otherwise distributed with respect to or in
exchange for any and all of the then existing Account
Collateral; and
(g) all proceeds of such Receivable and with respect to any of
the
foregoing.
"REPURCHASED GOODS" means any Returned Goods or Scrapped Goods,
the
original sale of which gave rise to a
Transferred Receivable, for which the SPE
has received, pursuant to the Sale
Agreement, a payment in cash for the
adjustment of the Transferred Receivable
with respect to which such return
arose.
"RETURNED GOODS" means goods, the sale of which gave rise to a
Receivable, that are returned to a Company
by an Obligor for any reason.
"SCRAPPED GOODS" means goods, the sale of which gave rise to a
Receivable, which are rejected by the
applicable Obligor for any reason but
which are scrapped rather than being
returned to the applicable Company or any
of its affiliates.
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<PAGE>
"SOLD RECEIVABLE" means a Receivable and Related Security
identified
for sale to SPE under the Sale
Agreement.
"SPE MEMBERSHIP COLLATERAL" means the membership interest of the
SPE
upon which a Lender Interest is granted or
purported to be granted by the
Companies or any other owner thereof to the
Collateral Agent under the Loan
Documents.
"SUB-SERVICER" means any Person with whom the Companies enter into
a
written contract pursuant to and in
accordance with the Purchase Agreement
relating to the servicing, administration
or collection of the Transferred
Receivables.
"SUBSIDIARY" means, with respect to any Person, any corporation
or
other entity (a) of which securities or
other ownership interests having
ordinary voting power to elect a majority
of the board of directors or other
Persons performing similar functions are at
the time directly or indirectly
owned by such Person or (b) that is
directly or indirectly controlled by such
Person within the meaning of control under
Section 15 of the Securities Act of
1933, as amended from time to time.
"TERMINATION EVENT"
has the meaning ascribed to it in the Purchase
Agreement.
"TRANSFERRED RECEIVABLE" means any Sold Receivable or
Contributed
Receivable (it being understood and agreed
that for the period from
