Exhibit 10.2
INTERCREDITOR
AGREEMENT
THIS INTERCREDITOR AGREEMENT
(“Intercreditor Agreement”) dated as of May 5, 2004 is
by and between CONGRESS FINANCIAL CORPORATION, a Delaware
corporation, in its capacity as administrative and collateral agent
(in such capacity, “Agent” as hereinafter further
defined) pursuant to the Revolving Loan Agreement (as hereinafter
defined) acting for and on behalf of the Lenders (as hereinafter
defined), and THE BANK OF NEW YORK, a New York banking corporation,
in its capacity as trustee (in such capacity, “Trustee”
as hereinafter further defined) pursuant to the Indenture (as
hereinafter defined) acting for and on behalf of the Noteholders
(as hereinafter defined). Agent, Trustee and each other Person that
from time to time becomes a party hereto pursuant to Section 3.3
are sometimes individually referred to herein as a
“Creditor” and collectively as
“Creditors”.
W I T N E S
S E T H :
WHEREAS, Agent and Lenders have
entered or are about to enter into financing arrangements with Wise
Alloys LLC, a Delaware limited liability company
(“Alloys”, as hereinafter further defined), Wise
Recycling, LLC, a Maryland limited liability company
(“Recycling”, as hereinafter further defined), and
certain of their subsidiaries and affiliates as set forth in the
Revolving Loan Agreement, pursuant to which Agent and Lenders may,
upon certain terms and conditions, make loans and provide other
financial accommodations to Alloys and Recycling secured by all or
substantially all of the assets and properties of Debtors and
Obligors (each as hereinafter defined);
WHEREAS, Trustee, Wise Metals Group
LLC, a Delaware corporation (“Group”, as hereinafter
further defined), and Wise Alloys Finance Corporation, a Delaware
corporation (“WAFC”, as hereinafter further defined),
have entered into the Indenture, pursuant to which Group and WAFC
shall issue the Senior Notes (as hereinafter defined), which Senior
Notes are secured by all or substantially all of the assets and
properties of Debtors and Obligors; and
WHEREAS, Agent and Trustee desire to
enter into this Intercreditor Agreement to (i) confirm the relative
priority of the security interests of Agent and Trustee in the
assets and properties of Debtors (as hereinafter defined), (ii)
provide for the orderly sharing among them, in accordance with such
priorities, of proceeds of such assets and properties upon any
foreclosure thereon or other disposition thereof, and (iii) provide
for certain other matters.
NOW THEREFORE, in consideration of
the mutual benefits accruing to Agent and Trustee hereunder and
other good and valuable consideration, the receipt and sufficiency
of which are 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 “ Accounts ”
shall mean, as to each Debtor and each Obligor, all present and
future rights of such Debtor and such Obligor to payment of a
monetary obligation, whether or not earned by performance, which is
not evidenced by chattel paper or an instrument, (a) for
property (other than any property constituting
Senior Note Collateral) that has been or is to be sold, leased,
licensed, assigned, or otherwise disposed of, (b) for services
(other than any services constituting Senior Note Collateral)
rendered or to be rendered, (c) for a secondary obligation (other
than any secondary obligation constituting Senior Note Collateral)
incurred or to be incurred, or (d) arising out of the use of a
credit or charge card to acquire property (other than property
constituting Senior Note Collateral) or the use of information
contained on or for use with the card, the proceeds of all of the
foregoing, and all ledgers, books of account, records, tapes,
cards, computer programs, computer disks or tapes, computer
printouts, computer runs, and other computer prepared information
relating to any of the foregoing.
1.2 “ Agent ”
shall mean Congress Financial Corporation, a Delaware corporation,
in its capacity as administrative and collateral agent on behalf of
Lenders pursuant to the Revolving Agreements (and not in its
individual capacity), and any successor or replacement agent for
and on behalf of such Lenders under the Revolving
Agreements.
1.3 “ Agreements
” shall mean, collectively, the Revolving Agreements and the
Senior Note Agreements.
1.4 “ Alloys ”
shall mean Wise Alloys LLC, a Delaware limited liability company,
and its 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.
1.5 “ Collateral
” shall mean all of the property and interests in property,
real or personal, tangible or intangible, now existing or hereafter
arising or acquired by any Debtor or Obligor in or upon which
either or both of the Creditors at any time has a Lien, including,
without limitation, all proceeds of such property and interests in
property, but excluding the Excluded Assets (if any).
1.6 “ Creditors ”
shall mean, collectively, Agent, Trustee and each other Person that
from time to time becomes a party hereto pursuant to Section 3.3
and their respective successors and assigns; each being sometimes
referred to herein individually as a
“Creditor”.
1.7 “ Debtors ”
shall mean, collectively, Alloys, Recycling, Group, WAFC,
Listerhill, Warehousing, Recycling Texas and Recycling West, each
sometimes being referred to herein individually as a
“Debtor”.
1.8 “ Equipment ”
shall mean, as to each Debtor and each Obligor, all of such
Debtor’s and such Obligor’s now owned and hereafter
acquired equipment, wherever located, including machinery, data
processing and computer equipment (whether owned or licensed and
including embedded software), vehicles, tools, furniture, fixtures,
all attachments, accessions and property now or hereafter affixed
thereto or used in connection therewith, and substitutions and
replacements thereof, wherever located, and the proceeds
(including, without limitation, all proceeds of insurance with
respect thereto, including the proceeds of any applicable casualty
insurance) and products of all of the foregoing and all ledgers,
books of account, records, tapes, cards, computer programs,
computer disks or tapes, computer printouts, computer runs, and
other computer prepared information relating to any of the
foregoing.
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1.9 “ Excluded Assets
” shall mean assets subject to purchase money security
interests expressly permitted under Section 9.8(f) of the Revolving
Loan Agreement and under clause (6) of the definition of
“Permitted Liens” in the Indenture and assets securing
industrial revenue bond indebtedness expressly permitted under
Section 9.9(g) of the Revolving Loan Agreement and under clause (3)
of the definition of “Permitted Indebtedness” in the
Indenture, but in each case only to the extent (and for so long as)
the instruments governing such purchase money security interests or
such industrial revenue bond indebtedness, as the case may be,
prohibits a Debtor or Obligor from granting a security interest in
such assets to Agent or Trustee.
1.10 “ Group ”
shall mean Wise Metals Group LLC, a Delaware limited liability
company, and its 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.
1.11 “ Indenture
” shall mean the Indenture relating to the Senior Notes,
dated on or about the date hereof, by and among Group, WAFC, the
guarantors party thereto and Trustee, as the same now exists or may
hereafter from time to time be amended, modified, supplemented,
extended, renewed, restated or replaced in one or more
instances.
1.12 “ Intellectual
Property ” shall mean, as to each Debtor and each
Obligor, such Debtor’s and such Obligor’s now owned and
hereafter arising or acquired: patents, patent rights, patent
applications, copyrights, works which are the subject matter of
copyrights, copyright registrations, trademarks, trade names, trade
styles, trademark and service mark applications, and licenses and
rights to use any of the foregoing; all extensions, renewals,
reissues, divisions, continuations, and continuations-in-part of
any of the foregoing; all rights to sue for past, present and
future infringement of any of the foregoing; inventions, trade
secrets, formulae, processes, compounds, drawings, designs,
blueprints and operating standards; goodwill (including any
goodwill associated with any trademark or the license of any
trademark); trade secret rights, copyright rights, rights in works
of authorship, domain names and domain name registration; and the
proceeds of all of the foregoing.
1.13 “ Inventory
” shall mean, as to each Debtor and each Obligor, all of such
Debtor’s and such Obligor’s now owned and hereafter
existing or acquired goods, wherever located, which (a) are leased
by such Debtor or such Obligor as lessor; (b) are held by such
Debtor or such Obligor for sale or lease or to be furnished under a
contract of service; (c) are furnished by such Debtor or such
Obligor under a contract of service; or (d) consist of raw
materials, work in process, finished goods or materials used or
consumed in its business, and the proceeds (including, without
limitation, all proceeds of insurance with respect thereto,
including the proceeds of any applicable casualty insurance) and
products of all of the foregoing, and all ledgers, books of
account, records, tapes, cards, computer programs, computer disks
or tapes, computer printouts, computer runs, and other computer
prepared information relating to any of the foregoing.
1.14 “ Lenders ”
shall mean Congress Financial Corporation, a Delaware corporation,
in its individual capacity and not as agent, and any other
financial institution which is from time to time a party to the
Revolving Loan Agreement or any of the other Revolving Agreements
as a lender, and their respective successors and
assigns.
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1.15 “ 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.
1.16 “ Listerhill
” shall mean Listerhill Total Maintenance Center, LLC, a
Delaware limited liability company, and its 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.
1.17 “ Noteholders
” shall mean, individually and collectively, the holders of
the Senior Notes from time to time.
1.18 “ Obligors ”
shall mean, individually and collectively, any person (other than
Debtors) that grants a lien on any of its assets to secure, or that
is liable on or in respect of, any or all the Senior Note Debt or
the Revolving Loan Debt, and its 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.
1.19 “ Person ”
or “ person ” shall mean any individual, sole
proprietorship, partnership, corporation (including, without
limitation, any corporation which elects subchapter S status under
the Internal Revenue Code of 1986, as amended), limited liability
corporation, 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.
1.20 “ Real Property
” shall mean all now owned and hereafter acquired real
property of each Debtor and each Obligor, including leasehold
interests, together with all buildings, structures, and other
improvements located thereon and all licenses, easements and
appurtenances relating thereto, wherever located, and the proceeds
of all of the foregoing.
1.21 “ Receivables
” shall mean all of the following now owned or hereafter
arising or acquired property of each Debtor and each Obligor: (a)
all Accounts; (b) all interest, fees, late charges, penalties,
collection fees and other amounts due or to become due or otherwise
payable in connection with any Account; (c) all payment intangibles
of such Debtor or such Obligor relating to Revolving Loan
Collateral; (d) all letters of credit, indemnities, guarantees,
security or other deposits and proceeds thereof issued payable to
any Debtor or any Obligor or otherwise in favor of or delivered to
any Debtor or any Obligor in connection with any Account; (e) all
instruments relating to Revolving Loan Collateral, including,
without limitation, all promissory notes relating to Revolving Loan
Collateral; (f) all chattel paper with respect to, or otherwise
representing or evidencing, Revolving Loan Collateral; (g) all
documents with respect to, or otherwise representing or evidencing,
Revolving Loan Collateral; (h) the proceeds of all of the
foregoing; and (i) all ledgers, books of account, records, tapes,
cards, computer programs, computer disks or tapes, computer
printouts, computer runs, and other computer prepared information
relating to any of the foregoing.
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1.22 “ Recycling
” shall mean Wise Recycling, LLC, a Maryland limited
liability company, and its 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.
1.23 “ Recycling Texas
” shall mean Wise Recycling Texas, LLC, a Delaware limited
liability company, and its 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.
1.24 “ Recycling West
” shall mean Wise Recycling West, LLC, a Delaware limited
liability company, and its 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.
1.25 “ Revolving
Agreements ” shall mean, collectively, the Revolving Loan
Agreement, and all mortgages, deeds of trust, deeds to secure debt,
agreements, documents and instruments (including without limitation
Uniform Commercial Code financing statements) at any time executed
and/or delivered by Debtors, Obligors or any other person to, with
or in favor of Agent or Lenders in connection therewith or related
thereto, as all of the foregoing now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated,
refinanced, replaced or restructured (in whole or in part and
including any agreements with, to or in favor of any other lender
or group of lenders that at any time refinances, replaces or
succeeds to all or any portion of the Revolving Loan
Debt).
1.26 “ Revolving Loan
Agreement ” shall mean the Amended and Restated Loan
Agreement, dated on or about the date hereof, by and among Agent,
Lenders and Debtors, as the same now exists or may hereafter from
time to time be amended, modified, supplemented, extended, renewed,
restated, replaced or restructured in one or more instances (in
whole or in part and including any agreements with, to or in favor
of any other lender or group of lenders that at any time
refinances, replaces or succeeds to all or any portion of the
Revolving Loan Debt).
1.27 “ Revolving Loan
Collateral ” shall mean (a) the Receivables, (b) the
Inventory, (c) the Revolving Loan Intangibles, and (d) all products
and proceeds of the foregoing, in any form, including insurance
proceeds and all claims against third parties for loss or damage to
or destruction of or other involuntary conversion of any kind or
nature of any or all of the other Revolving Loan Collateral, but
excluding the Excluded Assets (if any).
1.28 “ Revolving Loan
Debt ” shall mean (a) all obligations, liabilities and
indebtedness of every kind, nature and description owing by any
Debtor or Obligor to Agent and/or Lenders and/or their respective
affiliates or participants, including principal, interest, charges,
fees, premiums, indemnities and expenses, however evidenced,
whether as principal, surety, endorser, guarantor or otherwise,
arising under or with respect to the Revolving Agreements, whether
now existing or hereafter arising, whether arising before, during
or after the initial or any renewal term of the Revolving
Agreements or after the commencement of any case with respect to
any Debtor or Obligor under the U.S. Bankruptcy Code or any similar
statute (and including, without limitation, any principal,
interest, fees, costs, expenses and other amounts, whether or not
such
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amounts are allowable either in whole or in
part, in any such case or similar proceeding), whether direct or
indirect, absolute or contingent, joint or several, due or not due,
primary or secondary, liquidated or unliquidated, secured or
unsecured, and whether arising directly or howsoever acquired by
Agent or Lenders and (b) all obligations, liabilities and
indebtedness of every kind, nature and description owing by any
Debtor or Obligor to an Affiliate of Agent, or another financial
institution acceptable to Agent, arising under or pursuant to a
Hedge Agreement (as defined in the Revolving Loan Agreement), in
each case acceptable to Agent, whether now existing or hereafter
arising, provided, that, such obligations, liabilities and
indebtedness described in this clause (b) shall only be included
within the Revolving Loan Debt if upon Agent’s request, Agent
shall have entered into an agreement, in form and substance
satisfactory to Agent, with such Affiliate or other financial
institution that is a counterparty to such Hedge Agreement, as
acknowledged and agreed to by Debtors, providing for the delivery
to Agent by such counterparty of information with respect to the
amount of such obligations and providing for the other rights of
Agent and such Affiliate or other financial institution in
connection with such arrangements.
1.29 “ Revolving Loan
Intangibles ” shall mean all of the following assets of
each Debtor and Obligor whether now owned or hereafter acquired:
(a) contracts, contract rights, licenses and general intangibles,
in each case relating to Receivables and Inventory, including,
without limitation, contract rights which evidence or support
Receivables, choses in action or causes of actions or claims
arising out of Receivables or with respect to Inventory; (b)
Federal, State and local tax refund claims of any kind, and
agreements or arrangements with sales agents, distributors or the
like and/or consignees, warehouses or other third persons in
possession of Inventory, customer lists, and guaranty or warranty
claims with respect to Receivables or Inventory; (c) all deposit
accounts of each Debtor and Obligor (other than the Senior Note
Collateral Account); (d) all letters of credit, banker’s
acceptances and similar instruments of each Debtor and Obligor and
including all letter-of-credit rights, in each case with respect to
Receivables and other Revolving Loan Collateral; (e) all supporting
obligations and all present and future liens, security interests,
rights, remedies, title and interest in, to and in respect of
Receivables and other Revolving Loan Collateral, including (i)
rights and remedies under or relating to guaranties, contracts of
suretyship, letters of credit and credit and other insurance
related to Revolving Loan Collateral, (ii) rights of stoppage in
transit, replevin, repossession, reclamation and other rights and
remedies of an unpaid vendor, lienor or secured party, (iii) goods
described in invoices, documents, contracts or instruments with
respect to, or otherwise representing or evidencing, Receivables or
other Revolving Loan Collateral, including returned, repossessed
and reclaimed goods, and (iv) deposits by and property of account
debtors or other persons securing the obligations of account
debtors; (f) monies, credit balances, deposits and other property
of each Debtor and Obligor relating to the Revolving Loan
Collateral now or hereafter held or received by or in transit to
Agent, any Lender or their respective Affiliates or at any other
depository or other institution from or for the account of each
Debtor or Obligor, whether for safekeeping, pledge, custody,
transmission, collection or otherwise; (g) all commodity and
securities accounts, all assets held therein or credited thereto,
and all contracts relating to the hedging arrangements of each
Debtor and Obligor; and (h) the proceeds of all of the
foregoing.
1.30 “ Senior Note
Agreements ” shall mean, collectively, the Indenture, the
Senior Notes, and all mortgages, deeds of trust, deeds to secure
debt, agreements, documents and
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instruments (including without limitation
Uniform Commercial Code financing statements) at any time executed
and/or delivered by Debtors, Obligors or any other person with, to
or in favor of Trustee or the Noteholders in connection therewith
or related thereto, as all of the foregoing now exist or may
hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced.
1.31 “ Senior Note
Collateral ” shall mean (a) the Equipment, (b) the Real
Property, (c) the Senior Note Intangibles, (d) the Intellectual
Property, (e) all other Collateral, in each case excluding the
Revolving Loan Collateral and (f) all products and proceeds of the
foregoing, in any form, including insurance proceeds and all claims
against third parties for loss or damage to or destruction of or
other involuntary conversion of any kind or nature of any or all of
the other Senior Note Collateral, but excluding the Revolving Loan
Collateral and the Excluded Assets (if any).
1.32 “ Senior Note
Collateral Account ” shall mean the bank account of Group
and WAFC maintained with The Bank of New York, account number
391082, into which the Trustee shall deposit Trust Monies (as
defined in the Indenture as in effect on the date hereof) in
accordance with Section 12.1 of the Indenture.
1.33 “ Senior Note Debt
” shall mean all obligations, liabilities and indebtedness of
every kind, nature and description owing by any Debtor or Obligor
to Trustee and/or any of the Noteholders, including principal,
interest, charges, fees, premiums, indemnities and expenses,
however evidenced, whether as principal, surety, endorser,
guarantor or otherwise, arising under or with respect to the Senior
Note Agreements, whether now existing or hereafter arising, whether
arising before or after the commencement of any case with respect
to any Debtor or Obligor under the U.S. Bankruptcy Code or any
similar statute (and including, without limitation, any principal,
interest, fees, costs, expenses and other amounts, whether or not
such amounts are allowable in whole or in part, in any such case or
similar proceeding), whether direct or indirect, absolute or
contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured, and whether
arising directly or howsoever acquired by Trustee or any of the
Noteholders.
1.34 “ Senior Note
Intangibles ” shall mean all of the following assets of
each Debtor and Obligor, whether now owned or hereafter acquired:
contracts, contract rights, leases, licenses and general
intangibles relating to the Intellectual Property, Equipment, Real
Property and other Senior Note Collateral, including, without
limitation, all service agreements (including utility services and
supply agreements), permits and licenses, operating agreements,
equipment and real property leases and contract rights, choses in
action or causes of action or claims with respect to Intellectual
Property, Equipment, Real Property or other Senior Note Collateral,
instruments or chattel paper which evidences a payment for
Intellectual Property, Equipment, Real Property or other Senior
Note Collateral sold by such Debtor or Obligor, documents which
evidence rights to Intellectual Property, Equipment, Real Property
or other Senior Note Collateral, guaranty or warranty claims with
respect to Intellectual Property, Equipment, Real Property or other
Senior Note Collateral, and the proceeds of all of the
foregoing.
1.35 “ Senior Notes
” shall mean the 10¼% Senior Secured Notes due 2012
issued by Group and WAFC from time to time pursuant to the
Indenture, as the same now exist or may
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hereafter be amended, modified, supplemented,
exchanged, extended, renewed, restated or replaced.
1.36 “ Trustee ”
shall mean The Bank of New York, a New York banking corporation, in
its capacity as trustee under the Indenture for its benefit and the
benefit and on behalf of the Noteholders, and its successors and
assigns (and including, without limitation, any successor, assignee
or additional person at any time acting as agent for the benefit of
or on behalf of it and/or the Noteholders).
1.37 “ U.S. Bankruptcy
Code ” shall mean 11 U.S.C. §101 et. seq., and any
successor thereto, and all rules and regulations relating
thereto.
1.38 “ WAFC ”
shall mean Wise Alloys Finance Corporation, a Delaware corporation,
and its 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.
1.39 “ Warehousing
” shall mean Wise Warehousing, LLC, a Delaware limited
liability company, and its 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.
1.40 All terms defined in the
Uniform Commercial Code as in effect in the State of New York,
u
