Exhibit 10.8
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT dated as of December 8, 2000 (THIS
"AGREEMENT") is entered into between CITICORP USA, INC., as Administrative Agent
(the "ADMINISTRATIVE AGENT") for the Lenders under the Credit Agreement referred
to below and GENERAL ELECTRIC CAPITAL CORPORATION, for itself and as agent for
certain participants ("GE CAPITAL") under the Loan and Security Agreement
referred to below.
PRELIMINARY STATEMENTS
1. Extensions of credit have been made to Precision Partners and
certain of its affiliates under that certain Credit Agreement, dated as of March
19, 1999 (as amended, modified or supplemented from time to time, the "CREDIT
AGREEMENT"), among Precision Partners, Inc., Precision Partners Holding Company,
Mid State Machine Products, Galaxy Industries Corporation, Certified
Fabricators, Inc., General Automation, Inc., Nationwide Precision Products
Corp., Gillette Machine & Tool Co., Inc., the Lenders from time to time party
thereto, Citicorp USA, Inc., as administrative agent, Bank of America, N.A.
(successor to NationsBank, N.A.), as syndication agent, and SunTrust Bank,
Atlanta, as documentation agent. All capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Credit
Agreement.
2. As security for the Secured Obligations (as defined in the
Security Agreement, dated as of March 19, 1999 (the "SECURITY AGREEMENT") made
by the Borrower and the Subsidiary Guarantors in favor of the Administrative
Agent, the "CREDIT AGREEMENT OBLIGATIONS"), among other things, the Grantors (as
defined below) granted to the Administrative Agent a security interest in and
pledge of each Grantor's right, title and interest in the Pledged Collateral
(used herein as defined in the Security Agreement, excluding, however, the GE
Capital Equipment Collateral as defined below and any right, title or interest
in real property (other than fixtures) of the Grantors).
3. Galaxy Industries Corporation, Mid State Machine Products,
Nationwide Precision Products Corp. and General Automation, Inc. (the "LESSEES")
are the Lessees under an Amended and Restated Master Lease Agreement dated as of
the date hereof (as amended, modified or supplemented from time to time, the
"LEASE AGREEMENT"). In connection with the execution and delivery of the Lease
Agreement, Precision Partners, Inc. executed and delivered its Corporate
Guaranty dated March 31, 2000 (as amended, modified or supplemented from time to
time, the "CORPORATE GUARANTY") in favor of GE Capital.
4. The Lessees are the borrowers and Precision Partners, Inc. is the
guarantor under a Loan, Security and Guaranty Agreement dated as of the date
hereof (as amended, modified or supplemented from time to time, the "GE CAPITAL
LOAN AGREEMENT"; the GE Capital Loan Agreement and the other documents executed
or delivered in connection therewith are referred to herein as the "GE CAPITAL
LOAN DOCUMENTS"). The obligations of the Lessees and Precision Partners, Inc.
under the GE Capital Loan Documents are referred to herein as the "GE CAPITAL
OBLIGATIONS".
5. As security for the GE Capital Obligations, the Lessees have or
will grant to GE Capital a security interest in and pledge of their right, title
and interest in the equipment described in Schedule A hereto acquired by the
Lessees and all other Collateral, as defined in the GE Capital Loan Agreement
(the "GE CAPITAL EQUIPMENT COLLATERAL").
6. Following the Advances (as defined in the GE Capital Credit
Agreement) being made under the GE Capital Loan Agreement, the Lessees will
continue to be obligated under the Lease Agreement in respect of the equipment
set forth on Schedule B hereto, legal title to which is held by GE Capital.
7. The Loan Parties have requested certain amendments to the Credit
Agreement.
8. The Lenders have agreed to amend the Credit Agreement in
accordance with the terms of that certain Waiver and Amendment No. 3, dated as
of the date hereof (the "CREDIT AGREEMENT AMENDMENT").
9. Simultaneously herewith, (a) the Lessees and the Borrower
(collectively, the "GRANTORS") are executing and delivering to Citicorp USA,
Inc. as agent for GE Capital a Security Agreement (as amended, modified or
supplemented from time to time, the "GE CAPITAL SECURITY AGREEMENT") and (b) the
Lessees are executing and delivering to GE Capital as agent for the
Administrative Agent a Security Agreement (as amended, modified or supplemented
from time to time, the "ADMINISTRATIVE AGENT SECURITY AGREEMENT").
10. As a condition precedent to the effectiveness of the Credit
Agreement Amendment and the GE Capital Loan Agreement, the Administrative Agent
and GE Capital are required to execute and deliver this Agreement, among other
things, to confirm their relative rights with respect to the Pledged Collateral
and the GE Capital Equipment Collateral.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF AGENT.
(a) GE Capital hereby appoints the Administrative Agent to serve as
agent under the GE Capital Security Agreement
(the Administrative Agent, in such capacity, and any successor to the
Administrative Agent in such capacity being hereinafter referred to as the
"GE CAPITAL AGENT") for the purpose of enforcing the rights and remedies of
GE Capital in respect of the Pledged Collateral and the obligations of the
Grantors under the GE Capital Security Agreement.
(b) The Administrative Agent hereby appoints GE Capital to serve as
agent under the Administrative Agent Security Agreement (GE Capital, in such
capacity, and any successor to GE Capital in such capacity being hereinafter
referred to as the "AA AGENT" and, together with the GE Capital Agent, the
"AGENTS") for the purpose of enforcing the rights and remedies of the
Administrative Agent in respect of the GE Capital Equipment Collateral and the
obligations of the Lessees under the Administrative Agent Security Agreement.
(c) The Agents shall have only the duties and responsibilities
expressly set forth in this Agreement, and no others, and the Agents shall not
by reason of this Agreement be an agent or a trustee for, or have any fiduciary
obligation (including obligations under the Trust Indenture Act of 1939, as
amended) to any person including GE Capital and any participants in the case of
the GE Capital Agent and the Administrative Agent and the Lenders in the case of
the AA Agent. The Agents shall not be responsible for any recitals, statements,
representations or warranties contained in this Agreement, any document executed
in connection herewith or in connection with the Credit Agreement Amendment, the
Lease Agreement, the GE Capital Loan Documents or any certificate or other
document referred to or provided for in, or received under such agreements, or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency thereof, any lien granted or purported to be granted under the GE
Capital Security Agreement or the Administrative Agent Security Agreement or the
perfection or priority of any such lien, or for any failure of the Borrower or
any Lessee to perform any of its obligations thereunder. The Agents may employ
agents and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither the Agents nor any of their directors, officers,
employees or agents shall be liable or responsible for any action taken or
omitted to be taken by it or them hereunder or in connection herewith, except
for its or their own gross negligence or willful misconduct.
(d) The Agents shall be entitled to rely upon any certificate, notice
or other communication (including any thereof by telecopy) reasonably believed
by them to be genuine and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel to the Grantors or to any Affiliate of the Grantors),
independent accountants and other experts selected by them. As to any matters
not expressly provided for by this Agreement, the Agents shall in all cases be
fully protected in acting, or in refraining from acting, hereunder, and any
action
taken or failure to act pursuant thereto shall be binding on GE Capital or
the Administrative Agent, as the case may be.
(e) Either Agent may resign at any time by giving 30 days' notice
thereof and, without limiting Section 18 hereof, shall, in the case of the GE
Capital Agent, resign after the payment in full of the Credit Agreement
Obligations upon the written request of GE Capital or, in the case of the AA
Agent, upon payment in full of the GE Capital Obligations upon the written
request of the Administrative Agent. The Agents may be removed for gross
negligence or willful misconduct by GE Capital in the case of the GE Capital
Agent and by the Administrative Agent in the case of the AA Agent. In the event
of any such resignation, GE Capital or the Administrative Agent as the case may
be, shall have the right to appoint a reasonably acceptable successor agent at
the reasonable cost and expense of the Grantors. Upon the acceptance of any
appointment as agent hereunder by a successor agent, the successor agent shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall have no further duties and
obligations hereunder. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Section 1 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Agent.
(f) Except for action expressly required of an Agent hereunder, each
Agent shall in all cases be fully justified in refusing to act hereunder unless
it shall be further indemnified to its reasonable satisfaction by GE Capital in
the case of the GE Capital Agent or the Administrative Agent in the case of the
AA Agent against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action.
(g) Except as expressly provided herein, neither Agent shall have any
duty to take any affirmative steps with respect to the collection of amounts
payable in respect of the Pledged Collateral or GE Capital Equipment Collateral
as the case may be. Neither Agent shall incur any liability as a result of any
private sale of the Pledged Collateral or the GE Capital Equipment Collateral as
the case may be.
SECTION 2. PRIORITIES. The priorities set forth in this Agreement are
applicable irrespective of any priority that might be available to the
Administrative Agent or GE Capital pursuant to contract or under applicable law
and notwithstanding any representation or warranty of the Grantors or any Lessee
to the contrary in any agreement, instrument or other document to
which the Administrative Agent or GE Capital is party and without regard
to the order of the taking of any action to perfect, or the failure to
perfect any security interest including, without limitation, the filing of,
or the failure to file, financing statements under the Uniform Commercial
Code.
SECTION 3. ENFORCEMENT -- PLEDGED COLLATERAL.
(a) The GE Capital Agent may take such action to enforce the GE
Capital Security Agreement and to foreclose upon, collect and dispose of the
Pledged Collateral or any portion thereof as it shall determine in its sole and
exclusive judgment.
(b) GE Capital agrees that until all the Credit Agreement Obligations
shall have been paid in full in cash and the Commitments shall have been
terminated, the Administrative Agent (to the exclusion of GE Capital), shall
have, whether or not any default or event of default under the Credit Agreement,
the GE Capital Documents or any agreement relating thereto shall have occurred
and be continuing and both before and after the commencement of any proceeding
referred to in Section 6(a) hereof, the sole and exclusive right to administer
and enforce all matters in respect of the Pledged Collateral, including the
right to release or direct the release, with or without consideration, of the
Pledged Collateral from the lien of the GE Capital Security Agreement, and to
direct the sale, transfer, lease or other disposition of the Pledged Collateral,
the foreclosure or forbearance from foreclosure in respect of the Pledged
Collateral, including, without limitation, seeking or not seeking relief from
any stay against foreclosure in respect of the Pledged Collateral in any
bankruptcy, insolvency or reorganization proceedings, and the acceptance of the
Pledged Collateral in full or partial satisfaction of any indebtedness.
(c) Financing statements, satisfactory to GE Capital, covering the
Pledged Collateral and perfecting the lien created under the GE Capital Security
Agreement shall be filed by the GE Capital Agent naming the GE Capital Agent as
the secured party. GE Capital agrees that until all the Credit Agreement
Obligations shall have been paid in full in cash and the Commitments shall have
been terminated, GE Capital shall not file any financing statement with respect
to the Pledged Collateral, exercise or assert any right to exercise any voting
rights in respect of the Pledged Collateral, direct or assert any right to
direct the GE Capital Agent, or withhold or refuse to grant any consent
requested by the GE Capital Agent under, including any consent to any
supplement, amendment or modification of, the GE Capital Security Agreement,
except as specifically permitted by this Agreement. GE Capital agrees that until
all the Credit Agreement Obligations shall have been paid in full in cash and
the Commitments shall have been terminated, its only right under the GE Capital
Security Agreement is to receive the proceeds of the Pledged Collateral as
provided in Section 5 hereof.
(d) GE Capital agrees that until all the Credit
Agreement Obligations shall have been paid in full in cash and the
Commitments shall have been terminated, it will not commence, or join with
any creditor other than the Administrative Agent and the Lenders (or with the
Administrative Agent and other creditors) in commencing, any enforcement,
collection, execution, levy or foreclosure proceeding with respect to the
Pledged Collateral, whether pursuant to the GE Capital Security Agreement or
otherwise. Upon request by the GE Capital Agent, GE Capital will, at the
expense of the Grantors, join in enforcement, collection, execution, levy or
foreclosure proceedings and otherwise cooperate fully in the maintenance of
such proceedings by the GE Capital Agent, including, without limitation, by
executing and delivering all such directions, consents, pleadings, releases
and other documents and instruments as the GE Capital Agent may reasonably
request in connection therewith, it being understood that the conduct of such
proceedings shall at all times be under the exclusive control of the GE
Capital Agent.
(e) GE Capital agrees not to contest, or to bring (or join in) any
action or proceeding for the purpose of contesting, the validity, perfection or
priority of, or seeking to avoid, this Agreement, the Security Documents or any
other Loan Documents or any rights of the GE Capital Agent, the Administrative
Agent or the Lenders with respect to the Pledged Collateral or the validity or
reasonableness of any action or failure to act in respect of the Pledged
Collateral by the GE Capital Agent, including, without limitation, the timing,
method or manner of disposing of or liquidating the Pledged Collateral, the
terms, including the price and percentage of consideration received in cash, of
any such disposition or liquidation, or any failure to dispose of or liquidate
the Pledged Collateral.
SECTION 4. ENFORCEMENT -- GE CAPITAL EQUIPMENT COLLATERAL.
(a) The AA Agent may take such action to enforce the Administrative
Agent Security Agreement and to foreclose upon, collect and dispose of the GE
Capital Equipment Collateral or any portion thereof as it shall determine in its
sole and exclusive judgment.
(b) The Administrative Agent agrees that until all the GE Capital
Obligations shall have been paid in full in cash and no commitments therefor
remain outstanding, GE Capital (to the exclusion of the Administrative Agent),
shall have, whether or not any default or event of default under the Credit
Agreement, the GE Capital Documents or any agreement relating thereto shall have
occurred and be continuing and both before and after the commencement of any
proceeding referred to in Section 6(a) hereof, the sole and exclusive right to
administer and enforce all matters in respect of the GE Capital Equipment
Collateral, including the right to release or direct the release, with or
without consideration, of the GE Capital Equipment Collateral from the lien of
the Administrative Agent Security Agreement, and to direct the sale, transfer,
lease or other disposition of the
GE Capital Equipment Collateral, the foreclosure or forbearance from
foreclosure in respect of the GE Capital Equipment Collateral, including,
without limitation, seeking or not seeking relief from any stay against
foreclosure in respect of the GE Capital Equipment Collateral in any
bankruptcy, insolvency or reorganization proceedings, and the acceptance of
the GE Capital Equipment Collateral in full or partial satisfaction of any
indebtedness.
(c) Financing statements satisfactory to the Administrative Agent,
covering the GE Capital Equipment Collateral and perfecting the lien created
under the Administrative Agent Security Agreement shall be filed by the AA Agent
naming the AA Agent as the secured party. The Administrative Agent agrees that
until all the GE Capital Obligations shall have been paid in full in cash and no
commitments therefor remain outstanding, the Administrative Agent shall not file
any financing statement with respect to the GE Capital Equipment Collateral,
direct or assert any right to direct the AA Agent, or withhold or refuse to
grant any consent requested by the AA Agent under, including any consent to any
supplement, amendment or modification of, the Administrative Agent Security
Agreement, except as specifically permitted by this Agreement. The
Administrative Agent agrees that until all the GE Capital Obligations shall have
been paid in full in cash and no commitments therefor remain outstanding, its
only right under the Administrative Agent Security Agreement is to receive the
proceeds of the GE Capital Equipment Collateral as provided in Section 5 hereof.
(d) The Administrative Agent agrees that until all the GE Capital
Obligations shall have been paid in full in cash and no commitments therefor
remain outstanding, it will not commence, or join with any creditor other than
GE Capital (or with GE Capital and other creditors) in commencing, any
enforcement, collection, execution, levy or foreclosure proceeding with respect
to the GE Capital Equipment Collateral, whether pursuant to the Administrative
Agent Security Agreement or otherwise. Upon request by the AA Agent, the
Administrative Agent will, at the expense of the Grantors, join in enforcement,
collection, execution, levy or foreclosure proceedings and otherwise cooperate
fully in the maintenance of such proceedings by the AA Agent, including, without
limitation, by executing and delivering all such directions, consents,
pleadings, releases and other documents and instruments as the AA Agent may
reasonably request in connection therewith, it being understood that the conduct
of such proceedings shall at all times be under the exclusive control of the AA
Agent.
(e) The Administrative Agent agrees not to contest, or to bring (or
join in) any action or proceeding for the purpose of contesting, the validity,
perfection or priority of, or seeking to avoid, this Agreement, the GE Capital
Documents or any rights of the AA Agent or GE Capital with respect to the GE
Capital Equipment Collateral or the validity or reasonableness of any action or
failure to act in respect of the GE Capital Equipment Collateral by the AA
Agent, including, without limitation, the timing, method or manner of disposing
of or liquidating the GE Capital Equipment Collateral, the terms, including the
price and percentage of consideration received in cash, of any such disposition
or liquidation, or any failure to dispose of or liquidate the GE Capital
Equipment Collateral.
SECTION 5. ALLOCATION OF PROCEEDS. The proceeds of any sale, transfer or
other disposition of the Pledged Collateral shall be applied first, to the
Credit Agreement Obligations and, upon the payment in full in cash of the Credit
Agreement Obligations, to the GE Capital Obligations. The proceeds of any sale,
transfer or other disposition of the GE Capital Equipment Collateral shall be
applied first, to the GE Capital Obligations and, upon the payment in full in
cash of the GE Capital Obligations, to the Credit Agreement Obligations.
SECTION 6. SHARING OF PROCEEDS OF PLEDGED COLLATERAL DISTRIBUTED IN
BANKRUPTCY OR OTHER INSOLVENCY PROCEEDINGS. GE Capital agrees that until all the
Credit Agreement Obligations shall have been paid in full in cash and the
Commitments shall have been terminated:
(a) Upon any sale or other disposition of all or any of the Pledged
Collateral of any Grantor in connection with any dissolution, winding up,
liquidation, arrangement, reorganization, adjustment, protection, relief or
composition of any Grantor or any debts of any Grantor, whether in any
bankruptcy, insolvency, arrangement, reorganization, receivership, relief or
similar proceedings, or an assignment for the benefit of creditors or any other
marshaling of the assets of any Grantor or otherwise, the proceeds thereof
(whether in cash, securities or other property) shall be applied in the order
specified in Section 5 hereof.
(b) If any proceeding referred to in subsection (a) above is commenced
by or against any Grantor:
(i) the GE Capital Agent is hereby irrevocably authorized and
empowered (in its own name or in the name of the Administrative Agent, GE
Capital or otherwise), but shall have no obligation, to demand, sue for,
collect and receive any proceeds referred to in subsection (a) above and
give acquittance therefor and to file claims and proofs of claim and take
such other action (including, without limitation, enforcing the GE
Capital Security Agreement) as it may deem necessary or advisable for the
exercise or enforcement
of any of the rights or interests of the parties hereunder in respect
of the Pledged Collateral; and
(ii) GE Capital shall duly and promptly take such action as the
GE Capital Agent may request to permit the GE Capital Agent (A) to
realize upon the Pledged Collateral for the account of the Administrative
Agent, the Lenders and GE Capital and file appropriate claims or proofs
of claim in respect of the Pledged Collateral, (B) to execute and deliver
such powers of attorney, assignments, or other instruments as it may
require to enforce any and all claims with respect to the Pledged
Collateral and (C) to collect and receive any and all proceeds, payments
or distributions that may be payable or deliverable upon or with respect
to the Pledged Collateral.
(c) The GE Capital Agent is hereby authorized to demand specific
performance of this Agreement at any time when GE Capital shall have failed to
comply with any of the provisions of this Agreement applicable to it. GE Capital
hereby irrevocably waives any defense based on the adequacy of a remedy at law
that might be asserted as a bar to such remedy of specific performance.
SECTION 7. SHARING OF PROCEEDS OF GE CAPITAL EQUIPMENT COLLATERAL
DISTRIBUTED IN BANKRUPTCY OR OTHER INSOLVENCY PROCEEDINGS. The Administrative
Agent agrees that until all the GE Capital Obligations shall have been paid in
full in cash and no commitments therefor remain outstanding:
(a) Upon any sale or other disposition of all or any of the GE Capital
Equipment Collateral of any Lessee in connection with any dissolution, winding
up, liquidation, arrangement, reorganization, adjustment, protection, relief or
composition of any Lessee or any debts of any Lessee, whether in any bankruptcy,
insolvency, arrangement, reorganization, receivership, relief or similar
proceedings, or an assignment for the benefit of creditors or any other
marshaling of the assets of any Lessee or otherwise, the proceeds thereof
(whether in cash, securities or other property) shall be applied in the order
specified in Section 5 hereof.
(b) If any proceeding referred to in subsection (a) above is commenced
by or against any Lessee:
(i) the AA Agent is hereby irrevocably authorized and empowered
(in its own name or in the name of GE Capital, the Administrative Agent
or otherwise), but
shall have no obligation, to demand, sue for, collect and receive any
proceeds referred to in subsection (a) above and give acquittance
therefor and to file claims and proofs of claim and take such other
action (including, without limitation, enforcing the Administrative
Agent Security Agreement) as it may deem necessary or advisable for
the exercise or enforcement of any of the rights or interests of the
parties hereunder in respect of the GE Capital Equipment Collateral;
and
(ii) the Administrative Agent shall duly and promptly take such
action as the AA Agent may request to permit the AA Agent (A) to realize
upon the GE Capital Equipment Collateral for the account of GE Capital
and the Administrative Agent and file appropriate claims or proofs of
claim in respect of the GE Capital Equipment Collateral, (B) to execute
and deliver such powers of attorney, assignments, or other instruments as
it may require to enforce any and all claims with respect to the GE
Capital Equipment Collateral and (C) to collect and receive any and all
proceeds, payments or distributions that may be payable or deliverable
upon or with respect to the GE Capital Equipment Collateral.
(c) The AA Agent is hereby authorized to demand specific performance
of this Agreement at any time when the Administrative Agent shall have failed to
comply with any of the provisions of this Agreement applicable to it. The
Administrative Agent hereby irrevocably waives any defense based on the adequacy
of a remedy at law that might be asserted as a bar to such remedy of specific
performance.
SECTION 8. FURTHER ASSURANCES. GE Capital and the Administrative Agent
will, at the expense of the Grantors, at any time and from time to time promptly
execute and deliver all further instruments and documents, and take all further
action, that the other party hereto may reasonably request, in order to protect
any right or interest granted or purported to be granted hereby or to enable the
GE Capital Agent or the AA Agent, as the case may be, to exercise and enforce
its rights and remedies hereunder.
SECTION 9. ASSIGNMENT. Each of GE Capital and the Administrative Agent
agrees that it will require, as a condition to any extension, replacement,
refinancing or refunding of the GE Capital Obligations by a Person other than GE
Capital or the Credit Agreement Obligations by a Person other than the Lenders
(or any other group of Persons for which the Administrative Agent does not act
as agent), as the case may be, the assignment to and assumption by the Person or
Persons so extending, replacing, refinancing or refunding such obligations of
all its respective duties and obligations hereunder.
SECTION 10. REPRESENTATIONS AND WARRANTIES. Each of GE Capital and the
Administrative Agent represents and warrants that it has full power and
authority to enter into, and perform its obligations under, this Agreement.
SECTION 11. OBLIGATIONS HEREUNDER NOT AFFECTED. All rights and interests
and all agreements and obligations under this Agreement shall remain in full
force and effect irrespective of:
(a) any lack of validity or enforceability of any Loan Documents, the
Security Documents or the GE Capital Documents;
(b) any change in the time, manner or place of payment of, the
security for, or in any other term of, all or any of the Credit Agreement
Obligations or the GE Capital Obligations, or any other extension, renewal,
amendment, waiver, refinancing or restructuring of or any consent to departure
from any Loan Documents, the Security Documents, or the GE Capital Documents;
(c) any increase in the principal amount of the Credit Agreement
Obligations, whether or not such increase occurs in connection with a
refinancing of the Credit Agreement Obligations with another Person;
(d) any exchange or release of the Pledged Collateral, the GE Capital
Equipment Collateral or any other collateral, whether or not consideration is
received therefor, or any release or amendment or waiver of or consent to
departure from any guaranty, whether or not consideration is received therefor;
(e) any failure to perfect any interest in the Pledged Collateral or
in any other collateral; or
(f) any other circumstance that might otherwise constitute a defense
available to, or a discharge of, any Grantor.
SECTION 12. WAIVER. GE Capital with respect to the Pledged Collateral and
the Administrative Agent with respect to the GE Capital Equipment Collateral
hereby waive, to the fullest extent permitted by law, (a) any right (i) under
Section 9-504(1)(c) of the Uniform Commercial Code as in effect in the State of
New York (the "UCC") to the application of the proceeds of disposition of the
Pledged Collateral and the GE Capital Equipment Collateral other than as
contemplated by this Agreement, (ii) to notice and objection under Section
9-505(2) of the UCC and (iii) to promptness, diligence, notice of acceptance and
any other notice with respect to any of the obligations under the Loan
Documents, the GE Capital Documents and this Agreement and (b) any requirement
that GE Capital or the Administrative Agent protect, secure, perfect or insure
any security interest or lien or exhaust any right or take any action against
the Borrower, the other Grantors or any other Person or entity or the Pledged
Collateral, the GE Capital Equipment Collateral or any
other collateral.
SECTION 13. OBLIGATIONS UNIMPAIRED. Nothing in this Agreement shall
impair as between the Grantors, on the one hand, and either of GE Capital or the
Administrative Agent and the Lenders, on the other hand, the obligations of the
Grantors to GE Capital or the Administrative Agent and the Lenders, as the case
may be.
SECTION 14. AMENDMENTS, ETC. No amendment of this Agreement shall be
effective unless in writing, signed by each of the parties hereto. No waiver of
any provision of this Agreement or consent to any departure therefrom by GE
Capital, on the one hand, or by the Administrative Agent, on the other hand,
shall in any event be effective unless the same shall be in writing and signed
by GE Capital or the Administrative Agent, as the case may be, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 15. ADDRESSES FOR NOTICES. All demands, notices and other
communications provided for hereunder shall be in writing (including by
telecopier) and, if to GE Capital, mailed or telecopied or delivered by hand or
courier addressed to it at General Electric Capital Corporation, 401 Merritt
Seven, Second Floor, Norwalk, Connecticut 06856, Attention: Mr. Jeff Fitts,
Telecopier: (203) 229-1992 and, if to the Administrative Agent, mailed or
telecopied or delivered by hand or courier to it, addressed to it at Citicorp
USA, Inc., 599 Lexington Avenue, 21st Floor, New York, New York 10043,
Attention: Mr. Michael C. Becker, Telecopier: (212) 793-4782, or as to each
party at such other address as shall be designated by such party in a written
notice to each other party complying as to delivery with the terms of this
section. All such demands, notices and other communications shall, when mailed
or telecopied, be effective when received.
SECTION 16. NO WAIVER, REMEDIES. No failure on the part of parties to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies of the parties herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 17. WAIVER OF JURY TRIAL. THE ADMINISTRATIVE AGENT AND GE CAPITAL
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH AND
FOR ANY COUNTERCLAIM THEREIN.
SECTION 18. CONTINUING AGREEMENT. This Agreement is a continuing
agreement and shall (i) remain in full force and effect until the Credit
Agreement Obligations or the GE Capital Obligations shall have been paid in full
in cash and the commitments of the Lenders or GE Capital, respectively, to make
further extensions of credit to the Borrower or to any other Grantor have
terminated and (ii) be binding upon GE Capital, the Administrative Agent, the GE
Capital Agent, the AA Agent and their respective successors and assigns.
SECTION 19. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be deemed to be
an original, and both of which taken together shall constitute one and the same
instrument. Any such counterpart, when delivered by telecopier, shall have the
same force and effect as an original manually executed counterpart.
SECTION 20. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to the conflict of law principles thereof.
SECTION 21. SEVERABILITY. If any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof shall not in any way be affected or impaired.
{THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK}
IN WITNESS WHEREOF, the GE Capital and the Administrative Agent have
executed or caused this Agreement to be duly executed and delivered by its duly
authorized officer as of the date first above written.
CITICORP USA, INC., as
Administrative Agent and as GE
Capital Agent
By: /s/ Michael Becker
-----------------------------------
Name: Michael Becker
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, for itself and as AA
Agent
By: /s/ Jeff Fitts
-----------------------------------
Name: Jeff Fitts
Title: Senior Risk Manager
GRANTORS' ACKNOWLEDGEMENT
The Grantors hereby acknowledge and consent to the provisions of the
foregoing Intercreditor Agreement and agree, jointly and severally, to pay the
expenses referred to therein as payable by them. This acknowledgment shall not
constitute a consent to any amendment hereto which may hereafter be entered.
PRECISION PARTNERS, INC.
By: /s/ Frank Reilly
-----------------------------------------
Name: Frank Reilly
Title: Executive Vice President and
Cheif Executive Officer
GALAXY INDUSTRIES CORPORATION
By: /s/ Frank Reilly
-----------------------------------------
Name: Frank Reilly
Title: Vice President
MID STATE MACHINE PRODUCTS
By: /s/ Frank Reilly
-----------------------------------------
Name: Frank Reilly
Title: Vice President
NATIONWIDE PRECISION PRODUCTS CORP.
By: /s/ Frank Reilly
-----------------------------------------
Name: Frank Reilly
Title: Vice President
GENERAL AUTOMATION, INC.
By: /s/ Frank Reilly
-----------------------------------------
Name: Frank Reilly
Title: Vice President