Exhibit 10.3
Execution
Version
INTERCREDITOR
AGREEMENT
THIS INTERCREDITOR
AGREEMENT (“ Intercreditor Agreement ”) dated as
of February 1, 2005, is by and between GMAC COMMERCIAL FINANCE
LLC, a Delaware limited liability company (“ GMAC CF
”), as agent for the GMAC Facility Lenders defined below (in
such capacity, along with any successors and assigns acting as
agent for the GMAC Facility Debt (as defined below),
the ” GMAC Facility Agent ”) and THE BANK
OF NEW YORK, a New York banking corporation, as trustee under the
Note Agreement (as defined below) (in such capacity, the “
Trustee ”) and collateral agent for the Noteholders
(as defined below) (in such capacity, along with any successors and
assigns acting as agent for the Note Debt (as defined below),
the ” Note Agent ”).
R E C I T A L S :
A.
GMAC Facility Agent and GMAC Facility Lenders have entered into
financing arrangements with the GMAC Borrowers and GMAC Guarantors
(as each term is hereinafter defined), pursuant to which GMAC
Facility Lenders have made revolving credit loans to the GMAC
Borrowers and may, upon certain terms and conditions, continue to
make revolving credit loans and provide other financial
accommodations to the GMAC Borrowers secured by a security interest
in the Working Capital Collateral (as such term is hereinafter
defined). GMAC Borrowers and GMAC Guarantors may also, in the
future, grant security interests in the Note Collateral (as such
term is hereinafter defined) to GMAC Facility Agent.
B.
Pursuant to the Note Agreement (as defined below), the Noteholders
have purchased the Notes (as defined below) issued by Edgen
Acquisition Corporation, the obligations for which were immediately
assumed by Edgen Corporation (“ Edgen ”), as
successor by merger. The Notes have been guaranteed by the
Note Guarantors and secured by a security interest in the
Collateral.
C.
GMAC Facility Agent, on behalf of GMAC Facility Lenders, and Note
Agent, on behalf of itself, the Trustee and the Noteholders, desire
to enter into this Intercreditor Agreement to (i) confirm the
relative priorities of the security interests of GMAC Facility
Agent, on behalf of GMAC Facility Lenders, and Note Agent, on
behalf of itself, the Trustee and the Noteholders, in the assets
and properties of the Obligors, and (ii) provide for the
orderly sharing among them, in accordance with such priorities, of
the proceeds of such assets and properties upon any foreclosure
thereon or other disposition thereof.
In consideration
of the mutual benefits accruing to GMAC Facility Lenders and
Noteholders hereunder and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto do hereby agree as follows:
1 .
DEFINITIONS
As used above and
in this Intercreditor Agreement, the following terms shall have the
meanings ascribed to them below:
1.1.
“ Additional Notes ” means any Notes issued
under the Indenture after the date of the Indenture, as part of the
same series as the Initial Notes.
1 .2.
“ Agent ” shall mean each of the GMAC Facility
Agent and the Note Agent.
1 .3.
“ Agreements ” shall mean, collectively, the
GMAC Facility Loan Documents and the Note Documents.
1 .4.
“ Collateral ” shall mean all assets and
properties of any kind whatsoever, real or personal, tangible or
intangible and wherever located, of each Obligor, except assets and
properties expressly excluded pursuant to the GMAC Facility Loan
Documents or the Note Documents.
1 .5.
“ GMAC Borrowers ” shall mean Edgen Carbon
Products Group, L.L.C. and Edgen Alloy Products Group, L.L.C.,
together with each of their permitted successors and assigns,
including, without limitation, any receiver, trustee or
debtor-in-possession on behalf of such Person or on behalf of any
such permitted successor or assign.
1 .6.
“ GMAC Facility Debt ” shall mean any and all
obligations, liabilities and indebtedness of every kind, nature and
description owing by any Obligor to GMAC Facility Agent and the
GMAC Facility Lenders evidenced by or arising under the GMAC
Facility Loan 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 GMAC Facility Loan
Agreement 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).
1 .7.
“ GMAC Facility Lenders ” shall mean GMAC CF,
each of the other lenders now or hereafter party to the GMAC
Facility Loan Agreement, and their successors and assigns
(including any other lender or group of lenders that at any time
succeeds to or refinances, replaces or substitutes for all or any
portion of the GMAC Facility Debt at any time and from time to
time).
1 .8.
“ GMAC Facility Loan Agreement ” shall mean the
Amended and Restated Loan and Security Agreement, dated as of
February 1, 2005, among the GMAC Facility Agent, the GMAC
Facility Lenders, the GMAC Borrowers and the GMAC Guarantors, as
the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed or restated.
1 .9.
“ GMAC Facility Loan Documents ” shall mean the
GMAC Facility Loan Agreement and all agreements, documents and
instruments at any time executed and/or delivered by any Obligor or
any other Person with, to or in favor of GMAC Facility Agent and
the GMAC Facility Lenders in connection therewith or related
thereto, as all of the foregoing now exist or may hereafter be
amended, modified, supplemented, extended, renewed or restated.
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1 .10.
“ GMAC Guarantors ” shall mean any guarantor of
the GMAC Facility Debt from time to time, together with each of
their permitted successors and assigns, including, without
limitation, any receiver, trustee or debtor-in-possession on behalf
of such Person or on behalf of any such permitted successor or
assign.
1.11.
“ Initial Notes ” means the first $105.0 million
aggregate principal amount of Notes issued under the Note Agreement
on the date of the Note Agreement.
1 .12.
“ Insolvency Proceeding ” shall mean, as to any
Person, any of the following: (i) any case or proceeding with
respect to such Person under the U.S. Bankruptcy Code or any other
Federal, State or foreign bankruptcy, insolvency, reorganization or
other law 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 (ii) 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 (iii) any proceeding for liquidation,
dissolution or other winding up of the business of such Person, or
(iv) any assignment for the benefit of creditors or any
marshalling of assets of such Person.
1 .13.
“ Insurance Proceeds ” shall mean proceeds or
payments from insurance with respect to any loss, casualty or
damage to the Collateral.
1 .14.
“ Inventory ” shall mean and include as to each
Person all of such Person’s now owned or hereafter acquired
goods, merchandise and other personal property, wherever located,
to be furnished under any contract of service or held for sale or
lease, all raw materials, work in process, finished goods and
materials and supplies of any kind, nature or description which are
or might be used or consumed in such Person’s business or
used in selling or furnishing such goods, merchandise and other
personal property, all other inventory of such Person, and all
documents of title or other documents representing them.
1 .15.
“ Lenders ” shall mean, collectively, GMAC
Facility Agent, GMAC Facility Lenders, Note Agent and Noteholders,
and their respective successors and assigns, being sometimes
referred to herein individually as a “ Lender
”.
1 .16.
“ Lien ” shall mean any mortgage, deed of trust,
pledge, hypothecation, assignment, deposit arrangement, 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.
1 .17.
“ Lien Enforcement Action ” means (a) any
action by any Lender to foreclose on the Lien of such Person in any
Collateral, (b) any action by any Lender to take possession
of, sell or otherwise realize (judicially or non-judicially) upon
any Collateral (including, without limitation, by setoff or
notification of account debtors but excluding all remittance of
collections to blocked accounts established by or for the benefit
of the GMAC Facility Agent and/or the GMAC Facility Lenders),
and/or (c) the commencement by any Lender
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of any legal
proceedings against any Obligor or with respect to any Collateral
to facilitate the actions described in (a) and
(b) above.
1 .18.
“ Maximum GMAC Facility Debt ” shall mean
$25,000,000.
1 .19.
“ Note Agreement ” shall mean the Indenture
dated as of February 1, 2005, among the Note Agent, the
Trustee, the Noteholders, Edgen and the guarantors party thereto
from time to time, as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed or restated.
1 .20.
“ Note Collateral ” shall mean all Collateral,
excluding the Working Capital Collateral.
1 .21.
“ Note Debt ” shall mean all obligations,
liabilities and indebtedness of every kind, nature and description
owing by any Obligor to the Note Agent, the Trustee or any
Noteholder evidenced by or arising under the Note 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 Note 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).
1 .22.
“ Note Documents ” shall mean the Note Agreement
and all agreements, documents and instruments at any time executed
and/or delivered by any Obligor or any other Person with, to or in
favor of the Note Agent, the Trustee or any Noteholder in
connection therewith or related thereto, as all of the foregoing
now exist or may hereafter be amended, modified, supplemented,
extended, renewed or restated.
1 .23.
“ Noteholders ” shall mean each Person in whose
name a Note is registered on the books of the Registrar (as defined
in the Note Agreement).
1 .24.
“ Note Guarantors ” shall mean any guarantor of
the Note Debt from time to time, together with each of their
permitted successors and assigns, including, without limitation,
any receiver, trustee or debtor-in-possession on behalf of such
Person or on behalf of any such permitted successor or assign.
1.25.
“ Notes ” means the 9 7/8% Senior Secured Notes
due 2011 (including without limitation, Additional Notes).
1 .26.
“ Obligors ” shall mean, collectively, the GMAC
Borrowers, GMAC Guarantors, Edgen and Note Guarantors, and shall
include each of their permitted successors and assigns, including,
without limitation, a receiver, trustee or debtor-in-possession on
behalf of such Person or on behalf of any such permitted successor
or assign (each individually, an “ Obligor
”).
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1 .27.
“ 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.
1 .28.
“ Receivables ” shall mean and include, as to
any Person, all accounts (including, without limitation, all
health-care insurance receivables), contract rights, instruments
(including promissory notes and other instruments evidencing
indebtedness owed to such Person by any Affiliate (as defined in
the GMAC Facility Loan Agreement) of such Person), documents,
chattel paper (whether tangible or electronic), general intangibles
relating to accounts, drafts and acceptances, and all other forms
of obligations owing to such Person, each of which is arising out
of or in connection with the sale, lease or other disposition of
Inventory or the rendition of services, and all guarantees and
other security therefor, whether secured or unsecured, now existing
or hereafter created, and whether or not specifically sold or
assigned to GMAC Facility Agent under the GMAC Facility Loan
Documents.
1 .29.
“ Release Event ” means, individually and
collectively, a Release Event (GMAC) and/or a Release Event
(Note).
1 .30.
“ Release Event (GMAC) ” means (a) prior to
the occurrence of an Insolvency Proceeding by or against any
Obligor: the occurrence and continuance of an Event of Default (as
such term is defined in the GMAC Facility Loan Agreement) or the
taking of any Lien Enforcement Action with respect to the Working
Capital Collateral by the GMAC Facility Agent or the GMAC Facility
Lenders, provided that any Release Event (GMAC) occurring
prior to an Insolvency Proceeding by or against any Obligor shall
cease to constitute a Release Event (GMAC) as of the occurrence of
such Insolvency Proceeding if the GMAC Facility Lenders continue
making loans or providing letter of credit accommodations (whether
pursuant to the GMAC Facility Loan Documents or otherwise) or
consent to the use of cash collateral after the occurrence of such
Insolvency Proceeding, or (b) after the occurrence of an
Insolvency Proceeding by or against any Obligor: the occurrence of
any of the following: (i) the entry of an order of a
Bankruptcy Court pursuant to Section 363 of the U.S.
Bankruptcy Code authorizing the sale of any portion of any
Obligor’s assets or (ii) the taking of any Lien
Enforcement Action described in clauses (a) and (b) of
the definition of such term with respect to Working Capital
Collateral by the GMAC Facility Agent or the GMAC Facility Lenders
or the entry of an order of a Bankruptcy Court pursuant to
Section 362 of the U.S. Bankruptcy Code vacating the automatic
stay and authorizing the GMAC Facility Agent or the GMAC Facility
Lenders to take any Lien Enforcement Action with respect to Working
Capital Collateral.
1 .31.
“ Release Event (Note) ” means (a) prior to
the occurrence of an Insolvency Proceeding by or against any
Obligor: the occurrence and continuance of an Event of Default (as
such term is defined in the Note Agreement) or the taking of any
Lien Enforcement Action with respect to the Note Collateral by the
Note Agent or the Noteholders, provided that any Release
Event (Note) occurring prior to an Insolvency Proceeding by or
against any Obligor shall cease to constitute a Release Event
(Note) as of the occurrence of such Insolvency Proceeding if the
Noteholders consent to the use of cash collateral after the
occurrence of such Insolvency
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Proceeding, or
(b) after the occurrence of an Insolvency Proceeding by or
against any Obligor: the occurrence of any of the following:
(i) the entry of an order of a Bankruptcy Court pursuant to
Section 363 of the U.S. Bankruptcy Code authorizing the sale
of any portion of any Obligor’s assets or (ii) the
taking of any Lien Enforcement Action described in clauses
(a) and (b) of the definition of such term with respect
to Note Collateral by the Note Agent or the Noteholders or the
entry of an order of a Bankruptcy Court pursuant to
Section 362 of the U.S. Bankruptcy Code vacating the automatic
stay and authorizing the Note Agent or the Noteholders to take any
Lien Enforcement Action with respect to Note
Collateral.
1.32.
“ Stock Purchase Agreement ” shall mean the
Stock Purchase Agreement, dated as of December 31, 2004, among
Edgen Acquisition Corporation, as Purchaser, Edgen, the
stockholders party thereto as Sellers, and the Sellers’
Representative (as defined therein).
1 .33.
“ Working Capital Collateral ” shall mean all
Receivables and Inventory of the Obligors, wherever located and
whether now in existence or hereafter arising, together with all of
each Obligor’s right, title and interest in and to
(i) all merchandise returned or rejected by Customers (as
defined in the GMAC Facility Loan Agreement), relating to or
securing any of the Receivables; (ii) all of each
Obligor’s rights as a consignor, a consignee, an unpaid
vendor, mechanic, artisan, or other lienor, including
stoppage in transit, setoff, detinue, replevin, reclamation
and repurchase; (iii) all supporting obligations and all
additional amounts due to any Obligor from any Customer relating to
the Receivables; (iv) all supply agreements and agreements
with Customers with respect to Receivables and Inventory,
indemnification claims under the Acquisition Documents (as defined
in the GMAC Facility Loan Agreement) solely to the extent relating
to Receivables and Inventory, and warranty claims relating to any
Inventory; (v) if and when obtained by any Obligor, all real
and personal property of third parties in which such Obligor has
been granted a lien or security interest as security for the
payment or enforcement of Receivables; (vi) commercial tort
claims solely to the extent related to any of the foregoing; and
(vii) all Term Intercompany Notes (as defined in the GMAC
Facility Loan Agreement) required under the terms of
Section 6.11(ii) of the GMAC Facility Loan Agreement to
be secured by the security agreement described in such Section; all
of each Obligor’s ledger sheets, ledger cards, files,
correspondence, records, books of account, business papers,
computer software (owned by any Obligor or in which it has an
interest), computer programs, tapes, disks and documents relating
to any of the foregoing; and all proceeds and products of all of
the foregoing in whatever form, including, but not limited to:
cash, deposit accounts (whether or not comprised solely of
proceeds), certificates of deposit, Insurance Proceeds (including
hazard, flood and credit insurance), negotiable instruments and
other instruments for the payment of money, chattel paper, security
agreements, documents, eminent domain proceeds, condemnation
proceeds and tort claim proceeds.
1 .34.
All terms defined in the Uniform Commercial Code as in effect in
the State of New York, unless otherwise defined herein shall have
the meanings set forth therein. All references to any term in
the plural shall include the singular and all references to any
term in the singular shall include the plural.
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2 .
SECURITY INTERESTS; PRIORITIES; REMEDIES
2 .1.
GMAC Facility Agent hereby acknowledges that Note Agent, for the
benefit of itself, the Trustee and the Noteholders, has been
granted Liens upon all of the Collateral pursuant to the Note
Documents to secure the Note Debt. Note Agent hereby
acknowledges that GMAC Facility Agent, for the benefit of the GMAC
Facility Lenders, (a) has been granted Liens upon all of the
Working Capital Collateral pursuant to the GMAC Facility Loan
Documents to secure the GMAC Facility Debt and (b) may, at the
option of one or more Obligors, be granted Liens upon the Note
Collateral pursuant to the GMAC Facility Loan Documents to secure
the GMAC Facility Debt.
2 .2.
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 each Agent in any Collateral, and
notwithstanding any conflicting terms or conditions which may be
contained in any of the Agreements, the Liens of GMAC Facility
Agent with respect to the Working Capital Collateral to the extent
that such Liens secure the GMAC Facility Debt have and shall have
priority over the Liens of Note Agent with respect to the Working
Capital Collateral and such Liens are and shall be junior and
subordinate to the Liens of GMAC Facility Agent with respect to the
Working Capital Collateral to the extent that such Liens secure the
GMAC Facility Debt, in each case to the extent such Liens of GMAC
Facility Agent are valid, perfected and enforceable.
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 each Agent in any Collateral, and
notwithstanding any conflicting terms or conditions which may be
contained in any of the Agreements, the Liens of Note Agent with
respect to the Note Collateral to the extent that such Liens secure
the Note Debt have and shall have priority over the Liens of GMAC
Facility Agent with respect to the Note Collateral and such Liens
are and shall be junior and subordinate to the Liens of Note Agent
with respect to the Note Collateral to the extent that such Liens
secure the Note Debt, in each case to the extent such Liens of Note
Agent are valid, perfected and enforceable.
2 .3.
The priorities of the Liens provided in Section 2.2 shall not
be altered or otherwise affected by any amendment, modification,
supplement, extension, renewal, restatement, replacement or
refinancing of the GMAC Facility Debt or the Note Debt, nor by any
action or inaction which any of the Lenders may take or fail to
take in respect of the Collateral. GMAC Facility Agent agrees
not to subordinate, or otherwise voluntarily relinquish the
benefits of, its Lien in any Working Capital Collateral to the
Lien, indebtedness or claim of any other creditor of any Obligor
without the prior written consent of Note Agent. Note Agent
agrees not to subordinate, or otherwise voluntarily relinquish the
benefits of, its Lien in any Note Collateral to the Lien,
indebtedness or claim of any other creditor of any Obligor without
the prior written consent of GMAC Facility Agent.
2 .4.
Subject to Sections 2.2 and 2.9, (w) after the occurrence and
during the continuance of an Event of Default (as defined in the
GMAC Facility Loan Documents) of which GMAC Facility Agent has
provided written notice to the Note Agent in accordance with
Section 4.7 (provided that the foregoing notice shall be
deemed to have been given automatically upon Edgen’s issuance
of a Change of Control Offer (as defined in Section 4.10 of
the Note
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Agreement)), (x) after
the occurrence and during the continuance of an Event of Default
(as defined in the Note Documents) of which Note Agent has provided
written notice to GMAC Facility Agent in accordance with
Section 4.7, (y) after the exercise of remedies by GMAC
Facility Agent and/or Note Agent and/or (z) after the acceleration
by the GMAC Facility Agent of any GMAC Facility Debt or the
acceleration by Note Agent or any Noteholder of any Note
Debt,(A) (i) all proceeds of Working Capital Collateral
and (ii) all Insurance Proceeds in connection with a casualty
event with respect to Working Capital Collateral shall each be
applied to the GMAC Facility Debt prior to the application of any
such proceeds to the Note Debt; and (B) (i) all proceeds
of Note Collateral and (ii) Insurance Proceeds in connection
with a casualty event with respect to Note Collateral shall each be
applied to the Note Debt prior to the application of any such
proceeds to the GMAC Facility Debt; provided ,
however , that in all other cases such proceeds shall be
applied (I) with respect to Working Capital Collateral, as set
forth in the GMAC Facility Loan Agreement, and (II) with respect to
Note Collateral, as set forth in the Note Agreement. All
proceeds of (x) the Working Capital Collateral received by GMAC
Facility Agent or the GMAC Facility Lenders after the GMAC Facility
Debt has been paid in full in cash and the GMAC Facility Loan
Documents have been irrevocably terminated shall be forthwith paid
over, in the funds and currency received, to the Note Agent for
application to the Note Debt (unless otherwise required by law) and
(y) the Note Collateral received by Note Agent after the Note Debt
has been paid in full in cash shall be forthwith paid over, in the
funds and currency received, to the GMAC Facility Agent for
application to the GMAC Facility Debt (but only to the extent that
the GMAC Facility Agent has a Lien therein and unless otherwise
required by law). For purposes of this Section 2.4,
payments made by the Obligors to Note Agent and the Noteholders in
respect of the Note Debt with proceeds of loans by GMAC Facility
Lenders to GMAC Borrowers shall not be construed to constitute
proceeds of Working Capital Collateral.
2 .5.
Neither Agent shall be responsible to the other Agent for
perfecting or maintaining the perfection of any Lien in and to any
item constituting the Collateral in which the other Agent has been
granted a Lien. The foregoing provisions of this
Intercreditor Agreement are intended solely to govern the
respective Lien priorities as between the Agents and shall not
impose on either Agent any obligations in respect of the
disposition of proceeds of any Collateral which would conflict with
prior perfected claims therein in favor of any other Person or any
order or decree of any court or governmental authority or any
applicable law. Subject to the terms of this Intercreditor
Agreement, Note Agent agrees that it will not contest (and will not
support any other Person in contesting) the validity, perfection,
priority or enforceability of the Liens of GMAC Facility Agent in
the Collateral and GMAC Facility Agent agrees that it will not
contest (and will not support any other Person in contesting) the
validity, perfection, priority or enforceability of the Liens of
Note Agent in the Collateral.
2 .6.
In the event that either Agent shall, in the exercise of its rights
under its Agreements or otherwise, receive possession or control of
any books and records of any Obligor which contain information
identifying or pertaining to any Collateral in which the other
Agent has been granted a Lien, the Agent shall notify the other
Agent that it has received such books and records and shall, as
promptly as practicable thereafter, make available to the Agent
such books and records for inspection and duplication, provided
that all reasonable out-of-pocket expenses incurred by the Agent in
connection with making such books and records available to the
other Agent shall be paid by the recipient Agent.
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2 .7.
Subject to the terms and conditions set forth in this Intercreditor
Agreement, GMAC Facility Agent shall have the exclusive right to
manage, perform and enforce its rights and remedies with respect to
the Working Capital Collateral, to exercise and enforce all
privileges and rights with respect thereto according to its
discretion and the exercise of its business judgment, including,
without limitation, the exclusive right to take or retake control
or possession of such Working Capital Collateral and to hold,
prepare for sale, process, sell, lease, dispose of, or liquidate
such Working Capital Collateral. Subject to the terms and
conditions set forth in this Intercreditor Agreement, Note Agent
shall have the exclusive right to manage, perform and enforce its
rights and remedies with respect to the Note Collateral, to
exercise and enforce all privileges and rights with respect thereto
according to its discretion and the exercise of its business
judgment, including, without limitation, the exclusive right to
take or retake control or possession of such Note Collateral and to
hold, prepare for sale, process, sell, lease, dispose of, or
liquidate such Note Collateral.
2 .8.
(A)
Notwithstanding anything to the contrary contained in any of the
Agreements but subject to Sections 2.9 and 2.10, prior to the
time when GMAC Facility Lenders shall have received payment in full
of all GMAC Facility Debt in cash and the GMAC Facility Loan
Documents shall have been irrevocably terminated, during the
continuance of a Release Event (GMAC) only the GMAC Facility Agent
and the GMAC Facility Lenders shall have the right to restrict or
permit, or approve or disapprove, the sale, transfer or other
disposition of the Working Capital Collateral. In addition, the
Obligors and the Lenders agree that any Asset Sale (as such term is
defined in the Note Agreement) with respect to the sale, casualty
or other disposition of Working Capital Collateral requiring a
mandatory redemption of the Note Debt under Section 4.11 of
the Note Agreement shall also require a mandatory prepayment under
Section 2.13 of the GMAC Facility Loan Agreement.
(B)
Notwithstanding anything to the contrary contained in any of the
Agreements but subject to Sections 2.9 and 2.10, prior to the
time when Noteholders shall have received payment in full of all
Note Debt in cash, during the continuance of a Release Event (Note)
only the Note Agent and the Noteholders shall have the right to
restrict or permit, or approve or disapprove, the sale, transfer or
other disposition of the Note Collateral.
2 .9.
(A) Note Agent shall, at any time during the continuance of a
Release Event (GMAC):
(a)
upon the request of the GMAC Facility Agent with respect to the
Working Capital Collateral identified in such request as set forth
below (which request shall specify the proposed terms of the sale
and the type and amount of consideration to be received in
connection therewith), release or cause to be released, or
otherwise terminate or cause to be terminated, its Liens on such
Working Capital Collateral, to the extent such Working Capital
Collateral is to be sold or otherwise disposed of either by
(i) the GMAC Facility Agent or its agents, or (ii) any
Obligor with the consent of the GMAC Facility Agent or the GMAC
Facility Lenders;
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(b)
deliver such release documents as the GMAC Facility Agent may
reasonably require (which shall be prepared by the GMAC Facility
Agent at its expense) in connection therewith; provided
that:
(i)
such release shall not extend to or otherwise affect any of the
rights of the Note Agent and the Noteholders to the proceeds from
any such sale or other disposition of Working Capital Collateral,
except to the extent such proceeds are applied in accordance with
Section 2.9(A)(b)(ii),
(ii)
the GMAC Facility Agent and the GMAC Facility Lenders Lender shall
promptly apply such proceeds as specified in the GMAC Facility Loan
Agreement,
(iii)
if any such sale or disposition results in a surplus after
application of the proceeds to the GMAC Facility Debt, such surplus
shall be paid to the Note Agent, the Trustee and the Noteholders,
and
(iv)
no such release documents shall be delivered (A) to any
Obligor or (B) more than two (2) business days prior to
the date of the closing of the sale or disposition of such Working
Capital Collateral; provided , further , that if the
closing of the sale or disposition of such Working Capital
Collateral is not consummated within five (5) business days of
the proposed date of the closing of the sa
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