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EXHIBIT 10(i)
INTERCREDITOR AGREEMENT
THIS CREDITOR AGREEMENT, dated as of April 15, 1996 (herein called
this "Agreement"), is entered into by and among Canadian Imperial Bank of
Commerce, acting through its New York Agency, as agent (in such capacity
together with its successors in such capacity the "Agent") for certain
financial institutions as are or may become parties to the Credit Agreement
hereinafter referenced (the "Lenders"), John Hancock Life Insurance Company, a
Massachusetts corporation (together with its successors and assigns "John
Hancock"), Barnett & Co., Canadian Imperial Bank of Commerce, as administrative
agent for itself and the Secured Persons hereinafter referenced (in such
capacity together with its successors in such capacity the "Administrative
Agent") and CIBC Inc., a Delaware corporation, as collateral agent for itself
and the Secured Persons (in such capacity together with its successors in such
capacity the "Collateral Agent"). John Hancock and Barnett & Co. are
collectively referred to herein as the "Noteholders".
WITNESSETH:
WHEREAS, Alexander Energy Corporation, an Oklahoma corporation (herein
called the "Company"), the Lenders and the Agent have entered into a Credit
Agreement, dated as of November 14, 1994, as amended by that certain First
Amendment to Credit Agreement dated as of July 14, 1995, and as further amended
by that Second Amendment to Credit Agreement dated as of April 15, 1996
(herein, as so amended and as hereinafter further amended, supplemented,
restated, replaced or otherwise modified and in effect from time to time, the
"Credit Agreement"), pursuant to which, among other things, the Lenders have
made and agreed to make certain loans to the Company;
WHEREAS, the Company and CIBC have entered into or may, from time to
time, enter into interest rate or commodity swap agreements with respect to
various obligations of the Company (herein, as hereafter executed and amended,
supplemented, restated, replaced or otherwise modified and in effect from time
to time, collectively called the "Swap Agreements");
WHEREAS, the Company issued to John Hancock those certain 10% Senior
Unsecured Notes ("John Hancock Notes") pursuant to a Note Agreement dated as of
June 1, 1988, by and between the Company and John Hancock (herein, as amended,
supplemented, restated, replaced or otherwise modified and in effect from time
to time, the "John Hancock Note Agreement");
WHEREAS, in connection with a Borrowing Base Deficiency (as defined in
the Credit Agreement) and various defaults under the Credit Agreement the
Company has agreed to grant to the Collateral Agent for the benefit of the
Lenders, the Collateral Agent and the Agent, a lien on all of the Assets (as
defined in the Credit Agreement) and property of the Company and in connection
with various defaults under the John Hancock Note Agreement the Company has
agreed to grant to the Collateral Agent for the benefit of the Noteholders as
security for the Company's obligations under the John Hancock Note Agreement a
lien on those same assets and property, which liens are to be pari passu;
WHEREAS, the Lenders, the Agent, the Collateral Agent, the
Administrative Agent, the Noteholders have agreed to enter into this Agreement
so as to evidence the agreement
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among themselves with respect to the Collateral and with respect to certain
payments that may be received by the Agent, the Collateral Agent, the
Noteholders and/or the Lenders;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. Uniform Definitions. Each of the terms defined in each
Credit Facility and not otherwise defined in this Agreement is used herein with
the meaning therein specified.
SECTION 1.02. Additional Definitions. The terms defined in the
preamble and prefatory clauses shall have the meanings specified therein and
the following terms, as used herein, shall have the following meanings:
"Acceleration" shall mean the earlier of (i) the acceleration of the
maturity of any amount outstanding under a Credit Facility and (ii) the
occurrence of a Bankruptcy Event.
"Affected Secured Person" shall have the meaning set forth in Section
2.04.
"Assignee" shall mean any assignee, participant or other transferee of
any portion of the right, title or interest of any Secured Person under any
Credit Facility, except for any such transferee that becomes a Secured Person
for purposes hereof in accordance with Section 6.02.
"Bankruptcy Event" shall mean an event specified in Sections 9.1(f),
9.1(g) and 9.1(h) of the John Hancock Note Agreement with respect to the
Company or Section 8.1.9 of the Credit Agreement with respect to the Company.
"Business Day" shall mean any day, except a Saturday, Sunday or other
day on which commercial banks in Boston, Massachusetts, or the City of New York
are authorized or required by law to close.
"Calculation Date" shall mean the earlier of:
(a) if a Notice of Default is given by a Secured Person
pursuant to Section 3.01(c) (or was required by that Section to be given) and
Acceleration occurs within 90 days thereafter for any reason without such
Default having been cured, the date that such Notice of Default was given or
required to be given under such Section;
(b) if a Notice of Event of Default is given by a Secured
Person pursuant to Section 3.01(d) (or was required by that Section to be
given) and Acceleration occurs within 90 days thereafter for any reason without
such Event of Default having been cured, the date that such Notice of Event of
Default was given or required to be given under such Section; and
(c) the date on which Acceleration occurs.
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"Collateral" shall mean any and all property, security or other
interest, tangible or intangible, securing the obligations of the Company under
any or all of the Credit Facilities.
"Credit Facilities" shall mean the Credit Agreement and any notes
issued pursuant thereto, the John Hancock Note Agreement, the John Hancock
Notes, any Swap Agreement and any other evidences of indebtedness issued
pursuant to any of the foregoing, and "Credit Facility" means any of the
foregoing.
"Default" means any Event of Default under either Credit Facility or
any condition, occurrence or event which, after notice or lapse of time or
both, would constitute an Event of Default under either Credit Facility.
"Financial Obligations" shall mean, with respect to any Secured
Person, the aggregate amount payable (whether or not then due) to such Secured
Person under the Credit Facilities, in respect of principal, premium (if any),
interest (determined in accordance with the applicable provisions of the Credit
Facilities), fees plus all expenses owing under the Credit Facilities.
"Financing Documents" shall mean the Credit Facilities and the
Security Documents.
"Indebtedness" shall mean, with respect to a Calculation Date, the
aggregate outstanding principal amount of the indebtedness of the Company under
the Credit Agreement, the Notes issued under the Credit Agreement, the John
Hancock Note Agreement and the John Hancock Notes.
"Mortgage" shall mean any mortgage, pledge, assignment, security
agreement or financing statement or other lien or encumbrance of any type
granted by the Company, from time to time, pursuant to the Credit Facilities.
"Non-Reallocable Payment" shall mean, (i) with respect to any Credit
Facility, any scheduled payments received at any time from the Company prior to
Acceleration including without limitation payments made on account of
Borrower's Excess Cash Flow and (ii) with respect to the Credit Agreement,
non-scheduled repayment of advances made on a revolving basis which are
received prior to, on or after a Calculation Date and prior to the time the
Agent has actual knowledge of an Acceleration; provided that if the aggregate
repayments described in the preceding clause (ii) received during the period
from the Calculation Date to Acceleration are in excess of the aggregate
advances made during such period, such excess shall constitute a Reallocable
Payment; and provided further that any advances made by a Lender after the date
such Lender gives, or was required to give, a Notice of Default or a Notice of
Event of Default cannot be used to offset payments received during such period.
"Notice of Default" shall have the meaning specified in Section
3.01(d) of this Agreement.
"Proportionate Share" shall mean as of any date, a fraction (a) the
numerator of which is the sum of the Indebtedness owing to such Secured Person
plus any Swap Amount owing to such Secured Person as of the Calculation Date
and (b) the denominator of which is the sum of the Indebtedness owing to all
Secured Persons plus the Swap Amount owing to all Secured
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Persons as of the Calculation Date; provided, however, that following a
recalculation pursuant to Section 2.04, "Proportionate Share" shall mean such
fraction as so recalculated.
"Reallocable Payment" shall mean any amount received by a Secured
Person or an Assignee in respect of any Credit Facility by virtue of any
payment or prepayment (other than a Non-Reallocable Payment) made by or for the
account of the Company, or by virtue of an exercise of any right of set-off,
combination, zero-balancing, or similar mechanisms, or from any sums disbursed
pursuant to any judgment on or settlement of any claim arising from or relating
to any Credit Facility or any recovery made with respect to the Collateral or
any Credit Facility at any time after the Calculation Date.
"Required Secured Persons" shall mean the Secured Persons holding at
least 75% of the Total Indebtedness outstanding from time to time; provided,
however, that with respect to any matter at any time when an Event of Default
shall not have occurred and be continuing under the Credit Agreement, the
unused portion of the Maximum Commitment Amount of the Lenders shall be
included as Indebtedness of such Lenders for purposes of this definition.
"Secured Persons" shall mean the Noteholders, the Agent, the
Administrative Agent, the Collateral Agent, each Lender and each financial
institution that becomes a "Secured Person" for purposes hereof in accordance
with Article VI, and "Secured Person" means any one of them.
"Security Documents" shall mean the Mortgages, that certain
Assignment, Security Agreement and Financing Statement of even date herewith
executed by the Company in favor of the Collateral Agent for the benefit of the
Secured Persons, and any other agreement encumbering the Collateral.
"Sharing Notice" shall mean a notice given by the Administrative Agent
pursuant to Section 2.01.
"Swap Amount" shall mean with respect to each Lender (a "Swap Lender")
on a Calculation Date, the aggregate amount of all breakage, unwinding and all
related costs under all Swap Agreements which would be due and owing thereunder
to such Lender on such Calculation Date if any such Swap Agreement was
terminated on such date whether or not such Swap Amount is actually due and
owing on such date.
"Total Indebtedness" shall mean, at any time, the aggregate principal
amounts then outstanding under the Credit Facilities including, without
limitation, all contingent obligations thereunder.
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ARTICLE III.
PAYMENTS
SECTION 2.01. Payments Prior to Calculation Date: Sharing Notice. So
long as no Calculation Date has occurred, (a) the Lenders may accept and apply
payments (including regularly scheduled payments and prepayments) to any of the
Notes issued pursuant to the Credit Agreement from any source at any time, and
(b) John Hancock may accept and apply payments (including regularly scheduled
payments and prepayments) to any of the John Hancock Notes from any source at
any time. Upon Acceleration the accelerating Secured Person, if any, shall
promptly notify each of the Collateral Agent and the Administrative Agent of
such Acceleration, and the Administrative Agent shall promptly thereafter give
notice (a "Sharing Notice") to each of the Secured Persons informing them that
the provisions of this Article II are to be implemented. Each Secured Person
shall provide the Administrative Agent within five days following the receipt
of the Sharing Notice of such Secured Person's Indebtedness and Financial
Obligation as of the Calculation Date specifying the nature and amount of such
Secured Party's Indebtedness and Financial Obligations in such detail as the
Administrative Agent shall request. Any Sharing Notice shall be effective as of
the date it is sent by the Administrative Agent and shall remain effective
until all the Secured Persons agree that such Sharing Notice is no longer in
effect. The Administrative Agent shall calculate the Proportionate Share of
each Secured Person as of the Calculation Date based on information received
from each Secured Person and shall promptly following receipt of the
information requested from each Secured Person pursuant to this Section 2.01
notify each Secured Person of the Indebtedness, Financial Obligation and the
Proportionate Share of each Secured Person.
SECTION 2.02. Reallocable Payments. If any Secured Person (or any
Assignee of any Secured Person) (the "Purchasing Secured Person") obtains or
obtained any Reallocable Payment (whether by way of voluntary or involuntary
payment, by virtue of an exercise of any right of set-off or offset, by virtue
of the application of any provision of any of the Financing Documents or in any
other manner except pursuant to this Agreement), such Purchasing Secured Person
shall, promptly after receiving the Sharing Notice, notify each of the
Collateral Agent and the Administrative Agent of its (or such Assignee's)
obtaining the same and shall purchase from the other Secured Persons (the
"Selling Secured Persons") such participation(s) in the Indebtedness held by
such other Selling Secured Persons as shall be necessary to cause such
Purchasing Secured Person to share such payment or other recovery ratably with
such Selling Secured Persons. Such purchase shall be made by payment to the
Administrative Agent for the account of the Selling Secured Persons (pro rata
in accordance with their respective Proportionate Shares) an amount equal to
the Reallocable Payment, net of any out-of-pocket costs and expenses paid by
such Secured Person (or such Assignee) in so obtaining the same, less such
Secured Person's Proportionate Share of such net amount. Upon receipt of any
such payment the Administrative Agent shall distribute the same to the Selling
Secured Persons (pro rata in accordance with their respective Proportionate
Shares) as in effect on such date; provided, however that (subject to Section
2.03) any such payment received by the Administrative Agent on account of a
contingent obligation shall be distributed by the Administrative Agent to the
Collateral Agent to be held by the Collateral Agent (or at the Collateral
Agent's request by the Administrative Agent or a commercial bank acceptable to
the Administrative Agent having a combined capital and surplus of at least
$250,000,000 as its bailee) in an interest bearing account in trust for the
account of the Selling Secured Persons until the Purchasing Secured Person
notifies the Collateral Agent and the Administrative Agent (a) that such
contingent obligation has
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become an actual obligation whereupon such payment plus any accrued interest
will, if then held by the Collateral Agent, be delivered by the Collateral
Agent to the Administrative Agent and will be distributed by the Administrative
Agent to the Selling Secured Persons (pro rata in accordance with their
respective Proportionate Shares) or (b) that such obligation no longer exists,
whereupon such payment plus any accrued interest will, if then held by the
Collateral Agent, be delivered by the Collateral Agent to the Administrative
Agent and will be distributed by the Administrative Agent to the Purchasing
Secured Person and the Proportionate Shares of all Secured Persons shall be
recalculated taking into account such distribution. Amounts received hereunder
for the benefit or account of a Secured Person shall not be deemed received on
account of a contingent obligation unless and until there are no other
principal obligations then owing to such Purchasing Secured Person.
SECTION 2.03. Preferences. If all or any portion of a Reallocable
Payment shared by a Purchasing Secured Person pursuant to Section 2.02 is
thereafter recovered from such Purchasing Secured Person, the purchase shall be
rescinded, and upon receipt of notice of such event from the Purchasing Secured
Person each Selling Secured Person shall repay to the Purchasing Secured Person
the purchase price, to the ratable extent of such recovery, together with an
amount equal to such Selling Secured Person's ratable share (according to the
proportion of (x) the amount of such Selling Secured Person's required
repayment to the Purchasing Secured Person to (y) the total amount so recovered
from the purchasing Secured Person) of any interest or other amount paid or
payable by the Purchasing Secured Person in respect of the total amount so
recovered; provided that to the extent any of the relevant amounts deemed
received by a Selling Secured Person pursuant to Section 2.02 are then held in
trust, such Selling Secured Person shall not to such extent be obligated to
make a payment to or for the account of such Purchasing Secured Person (but
shall repay, to the extent not covered by accrued interest on the Reallocable
Payment held in trust, any such interest or other amounts) but the Collateral
Agent shall, upon receipt of notice of such required repurchase from the
Purchasing Secured Person, distribute such amount so held in trust plus any
accrued interest to the Administrative Agent for payment to such Purchasing
Secured Person on behalf of such Selling Secured Person.
SECTION 2.04. Adjustments to Proportionate Shares. (a) if, at any time
after the receipt of a Sharing Notice, a Secured Person or its Assignee is
required to repay to the Company or any other Person all or any portion of an
amount received on or prior to the date of such Sharing Notice, then the
repaying Secured Person's Indebtedness be increased by the amount such Secured
Person is required to repay; or
(b) if, at any time after the receipt of a Sharing
Notice, a Swap Amount of a Secured Person is not due and owing on a Calculation
Date and does not actually become due and owing upon any an Acceleration, then
such Secured Person's Indebtedness will be decreased by such Swap Amount (each
Secured Person described in any of the foregoing clauses being herein called an
"Affected Secured Person").
Upon the occurrence of any event described in the immediately
preceding sentence of this Section 2.04, the Affected Secured Person shall
promptly notify the Administrative Agent and the Collateral Agent of such event
and of the relevant amount by which such Secured Person's Indebtedness is so
increased or decreased and promptly following receipt of such notice, the
Administrative Agent shall recalculate and adjust (and shall promptly notify
each Secured Person
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and the Collateral Agent of) the Proportionate Shares of the Secured Persons
following such increase or decrease, as the case may be, which adjustment shall
become effective upon the giving of notice thereof by the Administrative Agent
to the Secured Persons and the Collateral Agent. Each Secured Person other than
the Affected Secured Person, or the Affected Secured Person, as the case may be,
shall promptly (and in any event within five Business Days after its receipt of
notification from the Administrative Agent of such adjustment to the
Proportionate Shares, which notification the Administrative Agent shall dispatch
promptly upon its determining the adjusted Proportionate Shares and the amount
of the repayment required from each such other Secured Person or from the
Affected Secured Person, as the case may be, as required above) repay to the
Agent for the account of the relevant Affected Secured Person or the other
Secured Persons, as the case may be, the portion of any payments previously
received by it under Section 2.02 in excess of its Proportionate Share as so
redetermined, together with such amount (if any) as is equal to the appropriate
portion of any interest (in respect of the period during which such other
Secured Person held such amount) the Affected Secured Person or its Assignee
shall have been obligated to pay when repaying such amount described in clause
(a) above, or in the case of reduction of the Affected Secured Person's
Proportionate Share pursuant to clause (b) the payment made by the Affected
Secured Person shall include such other Secured Person's Proportionate Share of
any interest earned by the Affected Secured Person on such Swap Amount. Anything
herein contained to the contrary notwithstanding, if a Secured Person is
required to make a payment hereunder on account of amounts then held in trust
for. such Secured Person, such Secured Person shall not be required to make such
payment but rather the Administrative Agent shall pay (or if such funds are then
held by the Collateral Agent, the Collateral Agent shall make such funds
available to the Administrative Agent, and the Administrative Agent shall pay)
the amounts so held in trust on behalf of such Secured Person to the other
relevant Secured Person.
SECTION 2.05. (a) Pro Rata Treatment. Except as otherwise provided in
this Agreement, the Secured Persons hereby agree that they will receive and
give pro rata treatment in connection with all payments, distributions,
collections or recoveries received in respect of the Collateral and all other
matters relating to the Collateral hereunder and as to all Reallocable
Payments and under each of the Security Documents and that all liens securing
the Credit Facilities shall be pari passu notwithstanding the time of such
liens in accordance with this Agreement. Each payment or distribution by or
from or received in connection with the exercise of remedies after a Default or
an Event of Default in respect of the Collateral shall be shared and applied
ratably in accordance with each Secured Person's Proportionate Share.
(b) This Agreement Controlling. The provisions contained
herein concerning Reallocable Payments, Non-Reallocable Payments, and all
payments, distributions, collections or recoveries in respect of the Collateral
and proceeds thereof and payment thereon after a Default or Event of Default
shall be controlling, notwithstanding the terms of any agreement between any
Secured Person, the Collateral Agent, the Administrative Agent or the Company
under any other document or instrument between such parties, whether or not
bankruptcy, receivership or insolvency proceedings shall at any time have been
commenced. Except with respect solely to the priority of any Liens on any
Assets of the AEJH 1989 Limited Partnership (a Delaware limited partnership)
granted under any mortgages, deeds of trust, assignment, and other documents
executed pursuant to that certain Note Agreement dated April 25, 1989, between
the AEJH 1989 Limited Partnership and John Hancock, each Secured Person agrees
that it will not challenge the validity, enforceability, perfection or priority
of any Lien created by any Loan Document.
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SECTION 2.06. Application of Proceeds. The net proceeds of any sale,
enforcement or other disposition of any of the Collateral or other distribution
in respect of the Collateral, following an Acceleration, and the net proceeds
of any distributions received by the Secured Persons, the Administrative Agent
or the Collateral Agent following any marshalling of the assets of the Company
(whether in bankruptcy, reorganization, winding-up proceedings or similar
proceedings, or otherwise) or following confirmation of a plan of arrangement
or plan or reorganization of the Company shall be applied by the Secured Persons
and the Administrative Agent in the following order (and if received by the
Collateral Agent shall be distributed by the Collateral Agent to the
Administrative Agent for application as follows):
first, to the pro rata payment of all costs, fees, and
expenses incurred by the Collateral Agent and the Administrative
Agent, in connection with the collection or enforcement of the
Financial Obligations of the Secured Persons;
second, to the payment of the Financial Obligations of the
Secured Persons which payment shall be shared by the Secured Persons
according to their respective Proportionate Shares; and
third to the payment to the Company, its successor or assigns,
or as a court of competent jurisdiction may direct, or otherwise as
required by law, if any surplus is then remaining from such proceeds.
ARTICLE M.
COOPERATION AMONG LENDERS
SECTION 3.01. Cooperation. Each Secured Person agrees with each of the
other Secured Persons, the Administrative Agent and the Collateral Agent that:
(a) it will, and will cause each of its Assignees to,
from time to time provide such information to each of the Collateral Agent and
the Administrative Agent as may be necessary to enable the Administrative Agent
to make any calculation as referred to in Article II of this Agreement or
otherwise required for any other purpose hereof or for any purpose of any
Security Document and to notify each of the Collateral Agent and the
Administrative Agent of any Acceleration of which it has knowledge;
(b) it will, and will cause each of its Assignees to,
from time to time consult with the Collateral Agent and the Administrative
Agent and the other Secured Persons in good faith regarding the enforcement of
its and each of its Assignee's rights with a view to recovering amounts due
under the credit Facilities;
(c) it will, and will cause each of its Assignees to,
upon becoming aware of the occurrence of any Default as defined in the Credit
Facility to which such Secured Person is a party or in which it participates,
give each other Secured Person and each of the Administrative Agent and the
Collateral Agent prompt notice, and if such notice is oral, confirmed in
writing, of such Default (a "Notice of Default");
(d) it will, and will cause each of its Assignees to,
upon becoming aware of the occurrence of any Event of Default as defined in the
Credit Facility to which such Secured
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Person is a party or in which it participates, give each other Secured Person,
the Administrative Agent and the Collateral Agent prompt notice, and if such
notice is oral, confirmed in writing, of such Event of Default (a "Notice of
Event of Default"); and
(e) it will, and will cause each of its Assignees to,
give the Collateral Agent, the Administrative Agent and each other Secured
Person prompt written notice of any acceleration of any of such Secured
Person's or Assignee's Financial Obligations, the termination or unwinding of
any Swap Agreement, the termination or expiration of any contingent liability
following a Sharing Notice, and the suspension of all or any portion of any
Secured Person's commitment to advance the Company funds pursuant to a Credit
Facility.
ARTICLE IV.
COLLATERAL AGENT AND ADMINISTRATIVE AGENT
SECTION 4.01. Appointment and Authority of Agents. In order to
expedite the enforcement of the rights and remedies set forth in the Security
Documents, and the sharing of the payments and Collateral as set forth herein,
the Secured Persons hereby appoint CIBC Inc. to act as their Collateral Agent
under the Security Documents and this Agreement and appoint Canadian Imperial
Bank of Commerce to act as their Administrative Agent under this Agreement and
each of CIBC Inc. and Canadian Imperial Bank of Commerce hereby accepts its
respective appointment subject to the terms and conditions of this Agreement.
The Secured Persons hereby authorize and direct the Collateral Agent and the
Administrative Agent to take such action on their behalf under the terms and
provisions of the Security Documents and this Agreement and to exercise such
rights and remedies thereunder as are specifically delegated to or required of
the Collateral Agent and the Administrative Agent, respectively, under the
terms and provisions hereof and thereof. Each of the Collateral Agent and the
Administrative Agent is hereby expressly authorized as agent on behalf of
Secured Persons, without hereby limiting the foregoing, and subject to, and in
accordance with, the terms and conditions of this Agreement and the Security
Documents:
(a) to receive on behalf of each of the Secured Persons
any payment of monies paid to the Collateral Agent in accordance with the
Security Documents or paid to the Administrative Agent pursuant to this
Agreement, and to distribute to each Secured Person its respective
Proportionate Share of all payments so received in accordance with the terms of
this Agreement;
(b) to receive all documents and items to be furnished
under the Security Documents;
(c) to maintain physical possession of any of the
Collateral as contemplated in any of the Security Documents and this Agreement;
(d) to act on behalf of the Secured Persons in and under
the Security Documents;
(e) to execute and deliver to the Company and others
requests, demands, notices, approvals, consents and other communications
received from the Secured Persons in
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connection with the Security Documents and this Agreement subject to the terms
and conditions set forth herein;
(f) to the extent permitted by this Agreement and the
Security Documents, to exercise on behalf of each Secured Person all remedies
of the Secured Persons upon the occurrence of any Default or Event of Default
under any of the Security Documents, the Credit Agreement, or the John Hancock
Note Agreement; and
(g) to take such other actions, other than as specified
in Section 4.02 hereof, as may be requested by the Required Secured Persons as
are incident to any powers granted to the Collateral Agent or the
Administrative Agent, as applicable, hereunder and, subject to Section 4.06,
not in conflict with applicable law or regulation or any Security Document;
provided, however, that anything herein contained to the contrary
notwithstanding the Administrative Agent shall have no duties or obligations
under the Security Documents.
SECTION 4.02. Certain Actions Requiring Consent of Secured Persons.
Neither the Collateral Agent nor the Administrative Agent shall, without the
prior written consent of all Secured Persons execute or consent to, a release
of any Collateral except as required by the Security Documents. Neither the
Collateral Agent nor the Administrative Agent shall alter the amount of Total
Indebtedness required to take any action pursuant to Section 4.01(g) hereof.
The Collateral Agent shall not enter into any amendment, modification or
supplement of any of the Security Documents which could reasonably be expected
to adversely affect the interest of any Secured Person without the prior
written consent of all Secured Persons.
SECTION 4.03. Non-Reliance on Collateral Agent, Administrative Agent
and Other Secured Persons. Each Secured Person agrees that it has,
independently and without reliance on the Collateral Agent, the Administrative
Agent or any other Secured Person, and based upon such documents and
information as it has deemed appropriate, made its own credit analysis of the
Company and the Collateral, and its independent decision to enter into the
Credit Facilities, this Agreement and the Security Documents, and that it will,
independently and without reliance upon the Collateral Agent, the
Administrative Agent or any other Secured Person, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under any Credit
Facility, this Agreement and the Security Documents. Neither the Collateral
Agent nor the Administrative Agent shall be required to keep informed as to the
performance or observance by the Company of any Credit Facility, this
Agreement, any Security Document or any other document, instrument or
agreement, referred to or provided for therein or to inspect the properties or
books of the Company. Neither the Collateral Agent nor the Administrative Agent
shall have any duty, responsibility or liability to provide any Secured Person
with any credit or other information concerning the affairs, financial
condition or business of the Company which may come into the possession of the
Collateral Agent or the Administrative Agent; provided, however, that the
Collateral Agent and the Administrative Agent shall send to the Secured Persons
(i) written notice of any Default or Event of Default or Acceleration of which
the Collateral Agent or the Administrative Agent, respectively, has actual
knowledge or of which it has been given notice, and (ii) notice of receipt by
it of, and shall remit to the relevant Secured Persons (or in the case of the
Collateral Agent to the Administrative Agent) all payments and repayments of
amounts
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required hereunder to be paid to the Secured Persons received by it or under or
in connection with the Security Documents or this Agreement; and each of the
Collateral Agent and the Administrative Agent shall provide each Secured Person
with a schedule of all costs and expenses which it has paid or proposes to pay
from the proceeds of such payments or repayments pursuant to the provisions of
this Agreement.
SECTION 4.04. Agents and Affiliates. Each of CIBC Inc. and Canadian
Imperial Bank of Commerce shall have the same rights and powers under the
Financing Documents and may exercise or refrain from exercising the same as
though it were not the Collateral Agent or the Administrative Agent hereunder
or under any of the Security Documents, and each of CIBC Inc. and Canadian
Imperial Bank of Commerce and their respective affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust, hedging
or other business with or for any Secured Person or the Company, or affiliate
of any Secured Person or the Company, as if it were not acting as the
Collateral Agent or the Administrative Agent hereunder or under any of the
Security Documents or as the Agent under any Credit Facility and the term
"Secured Person" or "Secured Persons" shall, unless otherwise expressly
indicated, include CIBC Inc. and Canadian Imperial Bank of Commerce in their
respective individual capacities. Each of CIBC Inc. and Canadian Imperial Bank
of Commerce and each other Person who becomes the Collateral. Agent or the
Administrative Agent, and their respective affiliates may be engaged in, or may
hereafter engage in, one or more loans, letters of credit, leasing or other
financing activities not the subject of this Agreement (collectively, the
"Other Financings") with the Company or any of its respective Affiliates, or
may act as trustee on behalf of, or depositary for, or otherwise engage in
other business transactions with the Company or any of its Affiliates (all
Other Financings and other such business transactions being collectively, the
"Other Activities") with no responsibility to account therefor to the Secured
Persons other than as provided in Section 5.03. Without limiting the rights and
remedies of the Secured Persons specifically set forth herein and except as
otherwise provided in Section 5.03, no other Secured Person by virtue of being
a Secured Person hereunder shall have any interest in (a) any Other Activities,
(b) any present or future guaranty by or for the account of the Company not
contemplated or included herein, (c) any present or future offset exercised by
the Collateral Agent in respect of any such Other Activities, or (d) any
present or future property taken as security for any such Other Activities;
provided, however, that if any payment in respect of such guaranties or such
property or the proceeds thereof shall be applied to reduction of the Financial
Obligations, then each Secured Person shall be entitled to share in such
application according to its pro rata portion of such obligations.
SECTION 4.05. Action by Collateral Agent and Administrative Agent. The
obligations of the Collateral Agent and the Administrative Agent, respectively,
hereunder and under the Financing Documents are only those expressly set forth
herein and therein with respect to such Person. Without limiting the generality
of the foregoing, neither the Collateral Agent nor the Administrative Agent
shall be required to take any action with respect to any Default or Event of
Default, except as expressly provided in Section 4.07.
SECTION 4.06. Consultation with Experts. Each of the Collateral Agent
and the Administrative Agent may consult with legal counsel including counsel
for any Secured Person or the Company, independent public accountants and any
other experts selected by it and shall
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not be liable for any action taken or omitted to be taken by it in good faith
in accordance with the advice of such counsel, accountants or experts.
SECTION 4.07. LIABILITY OF AGENTS. NEITHER THE COLLATERAL AGENT, THE
ADMINISTRATIVE AGENT NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR
EMPLOYEES SHALL BE LIABLE FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY ANY OF
THEM UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY OF THE OTHER FINANCING
DOCUMENTS (A) IN THE ABSENCE OF SUCH PERSON'S OWN GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OR (B) WITH THE CONSENT OR AT THE REQUEST OF THE REQUIRED SECURED
PERSONS (IT BEING THE EXPRESS INTENTION OF THE PARTIES HERETO THAT THE
COLLATERAL AGENT, THE ADMINISTRATIVE AGENT, AND THEIR RESPECTIVE DIRECTORS,
OFFICERS, AGENTS AND EMPLOYEES SHALL HAVE NO LIABILITY FOR ACTIONS AND
OMISSIONS RESULTING FROM THEIR SOLE ORDINARY OR CONTRIBUTORY NEGLIGENCE).
Each of the Collateral Agent and the Administrative Agent shall be
entitled to rely on any communication or document believed by it to be genuine
and correct and to have been communicated or signed by the person by whom it
purports to be communicated or signed and shall not be liable to any Secured
Person for any of the consequence of such reliance. Neither the Collateral
Agent nor the Administrative Agent nor any of their respective directors,
officers, employees or agents shall be liable for any action taken or not taken
by it, him or them under, or in connection with, any of the Financing Documents
or this Agreement in the absence of its or their gross negligence or willful
misconduct. Nothing in this Agreement or any other Financing Document,
expressed or implied, is intended to, or shall be so construed as to, impose
upon the Collateral Agent or the Administrative Agent any obligations in
respect of this Agreement or any other Financing Document except as expressly
set forth herein or therein. Neither the Collateral Agent nor the
Administrative Agent shall be required to exercise any discretion or take any
action as to any matters not expressly provided for by this Agreement, or any
of the other Financing Documents to which it is a party (including enforcement
or collection of) the Financial Obligations. As to any matters not expressly
provided for herein or in the Financing Documents, the Collateral Agent and the
Administrative Agent, respectively, shall act or refrain from acting (and shall
be fully protected in so acting or refraining from acting) in accordance with
written instructions from the Required Secured Persons and such instructions
shall be binding upon all Secured Persons and all holders of Financial
Obligations; provided, however, that the Collateral Agent shall not be
obligated to follow any such written directions or otherwise take or refrain
from taking any action to the extent that it shall determine that such
directions are in conflict with any provision of any applicable law or
regulation or any Financing Document or this Agreement or would expose the
Collateral Agent or the Administrative Agent to personal liability. Neither the
Collateral Agent nor the Administrative Agent nor any director, officer,
employee or agent of the Collateral Agent or of the Administrative Agent shall
be responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with any of the
Financing Documents or of this Agreement or any payment thereunder or
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Company or any Secured Person under any of the Financing
Documents or of this Agreement; (iii) the validity,
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effectiveness or genuineness of any of the Financing Documents or of this
Agreement or any other instrument or writing furnished in connection therewith
or herewith; or (iv) the existence, genuineness or value of any of the
Collateral or the validity, effectiveness, perfection, priority or
enforceability of the security interests in or liens on any of the Collateral.
SECTION 4.08. Indemnification of Agents. (a) Each Secured Person
hereby agrees to indemnify each of the Administrative Agent, the Collateral
Agent and each of their respective, directors, officers, affiliates,
representatives and agents (as used in this Section 4.08 "Indemnified Agent"
shall mean all of the foregoing) against all damages, costs, liabilities,
expenses and losses (to the extent not paid by the Company and not arising out
of or as a result of gross negligence or willful misconduct on the part of the
relevant Indemnified Agent), including attorneys' fees, resulting from any
action taken or to be taken by it as Collateral Agent or Administrative Agent
on behalf of the Secured Persons within the scope of its authority as provided
in this Agreement or any of the Security Documents, to the extent of such
Secured Person's pro rata share (according to such Secured Person's
Proportionate Share) of any such damage, cost, liability, expense and loss.
(b) Each of the Collateral Agent and the Administrative
Agent shall notify each Secured Person as promptly as is reasonably practicable
upon becoming aware of the written assertion of, or the commencement of, any
claim, suit, action or proceeding filed against the Collateral Agent or the
Administrative Agent, as applicable, arising out of, or in connection with, the
acceptance or administration of the duties imposed upon the Collateral Agent or
the Administrative Agent, as the case may be, hereunder or under any of the
Security Documents or any action or omission taken or made within the scope of
the rights or powers conferred upon the Collateral Agent or the Administrative
Agent, as the case may be, hereunder or under the Security Documents promptly
after the Collateral Agent or the Administrative Agent, as applicable, shall
have received the written assertion or have been served with the summons or
other first legal process giving information as to the nature and basis of the
lawsuit, but the failure to so notify the Secured Persons shall not release the
Secured Persons from any liability which they might otherwise have on account
of this Agreement, except to the extent that the Secured Persons are prejudiced
and damaged by the Collateral Agent's or the Administrative Agent's, as
applicable, failure to so notify. Each Secured Person shall be entitled to
participate in and assume, at its own expense, the defense of any such claim,
suit, action or proceeding, and such defense shall be conducted by counsel
chosen by such Secured Person and reasonably satisfactory to the Collateral
Agent, or the Administrative Agent, as applicable; provided, however, that (i)
if any Secured Person has not assumed the defense of such claim, suit, action
or proceeding, (ii) if the attorneys handling the defense are not reasonably
satisfactory to the Collateral Agent or the Administrative Agent, as
applicable, or (iii) if the defendants in any such action include both the
Collateral Agent or the Administrative Agent, as applicable, and one or more of
the Secured Persons and the Collateral Agent or the Administrative Agent, as
applicable, shall have been advised by its counsel that there may be legal
defenses available to it that are different from or additional to those
available to the Secured Persons, which in the reasonable opinion of such
counsel are sufficient to make it undesirable for the same counsel to represent
both the Secured Persons and the Collateral Agent or the Administrative Agent,
as applicable, the Collateral Agent or the Administrative Agent, as applicable,
shall have the right to employ its own counsel in all such instances described
in (i), (ii) or (iii) above, and all
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reasonable fees of such counsel shall be borne by the Secured Persons in
accordance with their respective Proportionate Shares; provided, further that
no Secured Person shall interfere with any defense or action properly being
conducted or pursued by the Collateral Agent or the Administrative Agent and
that if more than one Secured Person wishes to assume the defense such Secured
Persons agree to consult and cooperate with each other regarding such defense.
Except as described above, upon any Secured Person's assumption of the defense
of the claim, suit, action or proceeding, the Secured Persons shall have no
liability for additional fees (including attorneys' fees), costs or expenses
incurred by the Collateral Agent or the Admistrative Agent, as applicable, in
such instances. The Collateral Agent and the Administrative Agent are always
entitled to defend themselves at their own expense, respectively. Neither the
Secured Persons nor the Collateral Agent nor the Administrative Agent shall be
bound by any settlement entered into by the other parties without such party's
consent.
(c) Neither the Collateral Agent nor the Administrative
Agent shall be required to take any action hereunder or to prosecute or defend
any suit in respect of this Agreement, or any other Financing Document unless
indemnified to its satisfaction by the Secured Persons against damages, costs,
liabilities, expenses and losses. If any indemnity furnished to the Collateral
Agent or the Administrative Agent shall become impaired, or in such Collateral
Agent's or Administrative Agent's opinion is not adequate or sufficient, the
Collateral Agent and Administrative Agent, as the case may be, may call for
additional indemnity and cease to do the acts indemnified against until such
additional indemnity is given.
(d) The provisions of this Section 4.08 shall survive the
termination of this Agreement, the payment of the Financial Obligations and/or
the assignment thereof.
SECTION 4.09. Resignation or Removal of Agents. Subject to the
appointment and acceptance of a successor agent as provided below, each of the
Collateral Agent and the Administrative Agent may resign at any time by giving
notice thereof to each Secured Person. Upon any such resignation, a successor
agent may be appointed by unanimous consent of the Secured Persons. If no
successor agent shall have been appointed by the Secured Persons and shall have
accepted such appointment within 30 days after the retiring Collateral Agent's
or Administrative Agent's, as the case may be, giving of notice of resignation,
then the retiring Collateral Agent or the retiring Administrative Agent, as
applicable, may, on behalf of the Secured Persons, appoint a successor agent
which shall be a commercial bank organized under the laws of the United States
of America or any state thereof (except in the case of the Collateral Agent,
including any federal or state branch or agency of a foreign bank) and having a
combined capital and surplus of at least $250,000,000 and which shall be
qualified to perform its duties hereunder and under the Security Documents.
If the Collateral Agent or Administrative Agent, as the case may be,
shall fail or refuse to perform or commence performing any act set forth in
written instructions delivered pursuant to, and in accordance with the terms
and conditions of, this Agreement (other than where such nonperformance is
beyond the control of the Collateral Agent or the Administrative Agent, as the
case may be, or where such performance would entail a violation of applicable
law or conflict with the provisions of any Financing Document or subject the
Collateral Agent or the Administrative Agent to personal liability), and such
failure continues for a period of 15
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consecutive days from the date of receipt of said written instructions, the
Collateral Agent or Administrative Agent, as the case may be, (subject to the
appointment and acceptance of a successor agent as provided below) may be
removed by the Secured Person(s) directing the action which the Collateral
Agent or Administrative Agent, as the case may be, failed or refused to take.
Such Secured Person(s) shall also have the right to appoint a successor
Collateral Agent, or Administrative Agent, as the case may be, with the consent
of the other Secured Persons, and if no successor Collateral Agent or
Administrative Agent, as the case may be, shall have been so appointed and
shall have accepted such appointment within five Business Days after removal,
then the Secured Person(s) which directed the action which the Collateral
Agent, or Administrative Agent, as the case may be, failed or refused to take
may, on behalf of Secured Persons, appoint a successor Collateral Agent, or
Administrative Agent, as the case may be, which shall be a commercial bank
organized under the laws of the United States of America or any state thereof
(except in the case of the Collateral Agent including any federal or state
branch or agency of any foreign bank) and having a combined capital and surplus
of at least $250,000,000 and which shall be qualified to perform its duties
hereunder and under the Security Documents; provided that the Required Secured
Persons may at any time thereafter with or without cause remove such Collateral
Agent or Administrative Agent, as the case may be, by giving 5 days notice of
such removal and subject to the appointment of a successor Collateral Agent or
Administrative Agent, as the case may be, by the Required Secured Persons and
acceptance of such appointed such successor Collateral Agent or Administrative
Agent, as applicable.
Upon the acceptance of any appointment as Collateral Agent or
Administrative Agent, as the case may be, hereunder by a successor agent, such
successor agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Collateral Agent, or
Administrative Agent, as the case may be, and the retiring Collateral Agent, or
the retiring Administrative Agent, as applicable, shall be discharged from its
duties and obligations hereunder, except to the extent provided above for acts
or omissions prior to the resignation or termination. After any retiring
Collateral Agent or retiring Administrative Agent's resignation or removal
hereunder as Collateral Agent, or Administrative Agent, as the case may be, (i)
Article IV 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 Collateral Agent, or
Administrative Agent, as the case may be, (ii) any Collateral held in
possession of the retiring Collateral Agent or the retiring Administrative
Agent, as the case may be, shall be delivered to the successor Collateral
Agent, or the successor Administrative Agent, as the case may be, and (iii) the
retiring Collateral Agent or the retiring Administrative Agent, as the case may
be, shall assign all of its rights, if any, as secured party, mortgagee,
assignee, deed of trust beneficiary, bailee or other similar position with
respect to all of the Collateral to the extent such rights arise in its favor
in its capacity as Collateral Agent or Administrative Agent, as applicable, to
the successor agent for the pro rata benefit of the Secured Persons.
SECTION 4.10. Appointment of Co-Agents. At any time or times, in order
to comply with any legal requirement in any jurisdiction, each of the
Collateral Agent and the Administrative Agent may appoint another bank or trust
company or one or more other persons, either to act as co-agent or co-agents,
jointly with the Collateral Agent and the Administrative Agent, or to act as
separate agent or agents on behalf of the Secured Persons with such power
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and authority as may be necessary for the effective operation of the provisions
hereof and may be specified in the instrument of appointment (which may, in the
discretion of the Collateral Agent or the Administrative Agent, as applicable,
include provisions for the protection of such co-agent or separate agent
similar to the provisions of this Article IV). Each of the Collateral Agent
and the Administrative Agent may perform any of its respective duties hereunder
by or through its agents and employees.
SECTION 4.11. Expenses. Each of the Collateral Agent and the
Administrative Agent hereby agrees to serve hereunder for such compensation to
be paid by the Company, as the Company and the Collateral Agent and the
Administrative Agent, respectively shall have agreed. Any successor agent
appointed pursuant to Section 4.09 shall be compensated on a scheduled basis
which shall be approved by the Required Secured Persons. The Secured Persons
agree that all out of pocket expenses incurred by the Collateral Agent and the
Administrative Agent or such successor agent, on behalf of the Secured Persons
incident to the exercise or enforcement of any terms or provisions of this
Agreement or any of the Security Documents shall be indebtedness to the
Collateral Agent and the Administrative Agent or such successor agent, secured
by the Collateral. Upon the request of the Collateral Agent or the
Administrative Agent or such successor agent, however, the Secured Persons will
reimburse the Collateral Agent, the Administrative Agent, and such successor
agent, as applicable, to the extent not paid by the Company, for such out of
pocket expenses in accordance with each Secured Person's Proportionate Share.
SECTION 4.12. Withholding Taxes. Each Secured Person severally
represents and agrees, in each case for itself only, with the Collateral Agent
and the Administrative Agent that under applicable law and treaties no taxes
will be required to be withheld by the Collateral Agent, the Administrative
Agent, the Agent, or the Company with respect to any payments to be made to
such Secured Person hereunder in respect of any Financial Obligation and each
Secured Person that is organized under the laws of a jurisdiction outside the
United States agrees to furnish the Collateral Agent and the Administrative
Agent in respect of any Financial Obligation in a timely fashion either Form
4224 or Form 1001 of the Internal Revenue Service or such other documentation
as may from time to time be required (wherein such Secured Person claims
entitlement to the benefits of a tax treaty that provides for a zero rate of
withholding), or comparable statements in accordance with applicable United
States laws and regulations, and amendments and renewals thereof, duly executed
and completed by such Secured Person (and each such Secured Person agrees to
comply from time to time with all applicable United States laws and regulations
with regard to such withholding tax exemption). Notwithstanding the foregoing,
if either of the Collateral Agent or the Administrative Agent, in its capacity
as a United States withholding tax agent, is required by law to and does pay
any United States withholding tax on behalf of a Secured Person such Secured
Person hereby agrees to indemnify and hold harmless each of the Collateral
Agent and the Administrative Agent, respectively, from any such withholding tax
and from any penalties or interest paid by such Collateral Agent or
Administrative Agent in connection therewith, together with any other related
damages, losses, claims, liabilities, costs and expenses (including, without
limitation, reasonable fees of counsel, reasonable out-of-pocket expenses and
reasonable expenses of investigation). Secured Persons who are not subject to
the statutory United States withholding tax on payments made by the Collateral
Agent or the Administrative Agent under this Agreement shall file with the
Collateral
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Agent and the Administrative Agent all IRS forms deemed by the Collateral Agent
and the Administrative Agent to be necessary or convenient in order for it not
to be required to withhold any tax on payments to such Secured Person or in
order for it to withhold at a reduced rate of tax. Failure by a Secured Person
to supply the necessary IRS forms to the Collateral Agent or the Administrative
Agent regarding an exemption from or a reduction of withholding tax entitles
such Collateral Agent and such Administrative Agent, respectively (in its
capacity as a withholding tax agent) to withhold tax on payments made under
this Agreement pursuant to its obligations under the Internal Revenue Code of
1986, as amended, and the regulations thereunder.
ARTICLE V.
ENFORCEMENT OF REMEDIES
SECTION 5.01. Waivers of Rights. Except as otherwise expressly set
forth herein, so long as the Total Indebtedness remain unpaid, the Secured
Persons hereby agree that (i) they will notify the Administrative Agent of the
occurrence of any Default under their Credit Facilities, and of the intention
to exercise any rights or remedies under the Security Documents and (ii) any
proceeds from the exercise of any right under any of the Security Documents and
any Collateral shall be shared pursuant to the provisions of Article III. The
Secured Persons hereby further waive any and all rights each may individually
(i.e., other than through the Collateral Agent) now or hereafter have to
exercise any right or remedy pursuant to the Security Documents, or under
provisions of the laws of any jurisdiction or otherwise dispose of or retain
any of the Collateral. The Lenders hereby agree not to take any action
whatsoever to enforce any term or provision of the Security Documents or to
enforce any right with respect to the Collateral in conflict with this
Agreement or the terms and provisions of the Security Documents.
SECTION 5.02. Permitted Action by the Secured Persons. Any Secured
Person may, without instruction from the Collateral Agent or the Administrative
Agent (but in no event shall be required to) take action permitted by
applicable law or in accordance with the terms of the Security Documents to
preserve their rights and liens in any item of Collateral securing the payment
and performance of the Financial Obligations, including but not limited to
curing any default or alleged default under any contract entered into by the
Company, paying any tax, fee or expense on behalf of the Company, exercising
any offset or recoupment rights and paying insurance premiums on behalf of the
Company so long as such action shall not impair the rights of the Collateral
Agent, the Administrative Agent or of any other Secured Person.
SECTION 5.03. Payments under Other Agreements. Any payments made by
the Company after an Event of Default to any Secured Person pursuant to any
loans or other extensions of credit not made under any of the Credit Facilities
shall be deemed by the Secured Person receiving such payments to be payments
under its respective Credit Facility and shall be applied by such Secured
Person to its Financial Obligations, unless such payments shall be accompanied
by clear instructions from the Company or any such other party that such
payments be applied to such other loan or extension of credit, until all of the
Financial Obligations of the Secured Persons shall be satisfied in full, and
any payments received by such Secured Person from the Company or any such other
party in contravention of the immediately preceding clause shall be deemed to
be payments received by such Secured Person under Section 2.02 and shall
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be distributed to each of the Secured Persons, pro rata, according to their
respective Proportionate Shares and any lien granted by the Company or any such
other party to such Secured Person to secure such loans or other extensions of
credit shall be deemed Collateral and shall secure the Financial Obligations of
all Secured Persons until such Financial Obligations are satisfied in full.
ARTICLE VI.
SUCCESSORS AND ASSIGNS
SECTION 6.01. Assignees. No provision of this Agreement shall restrict
in any manner the assignment, participation or other transfer by any Secured
Person of all or any part of its right, title or interest under any Credit
Facility; provided that, unless any transferee that is not already a Secured
Person becomes a Secured Person for purposes hereof in accordance with Section
7.02, the transferor Secured Person shall remain responsible for performance of
this Agreement with respect to the interest transferred, all as more fully set
forth herein, and until the Collateral Agent and the Administrative Agent shall
have received a duly executed Supplement to Intercreditor Agreement in
substantially the form of Exhibit A hereto from a Purchaser or any other
Person, each of the Collateral Agent and the Administrative Agent shall deal
solely and directly with the Secured Persons who have executed this Agreement
or a Supplement, respectively, in connection with such Purchaser's, or other
Person's rights and obligations hereunder and under the Financing Documents.
SECTION 6.02. Additional Secured Persons. In connection with an
assignment of all, or of a proportionate part of all, of its right, title and
interest under any Credit Facility to any bank, insurance company or other
financial institution (the "Purchaser"), together with, in the case of any
Purchaser under the Credit Agreement, the assumption by the Purchaser of the
obligations of such Credit Agreement Secured Person thereunder to the extent of
the interest assigned, all in accordance with the applicable provisions of the
relevant Credit Facility, such Purchaser shall become a Secured Person
hereunder only upon (i) the written agreement of such transferor Secured Person
and such Purchaser and (ii) the receipt by each of the Collateral Agent and the
Administrative Agent of a Supplement to Intercreditor Agreement substantially
in the form of Exhibit A hereto executed by such Purchaser.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.01. No Partnership or Joint Venture. Nothing contained in
this Agreement, and no action taken by the Administrative Agent, the Collateral
Agent or the Secured Persons (or any of them) pursuant hereto, is intended to
constitute or shall be deemed to constitute the Secured Persons a partnership,
association, joint venture or other entity.
SECTION 7.02. Notices. All notices and other communications provided
to any Secured Person (whether in its capacity as Secured Person,
Administrative Agent or Collateral Agent, as applicable) under this Agreement
shall be in writing or by facsimile and addressed, delivered or transmitted to
such Secured Person at its address or facsimile number set forth below its
signature hereto or at such other address or facsimile number as may be
designated by such
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Secured Person in a notice to the other Secured Persons. Any notice, if mailed
and properly addressed with postage prepaid or if properly addressed and sent
by pre-paid courier service, shall be deemed given when received; any notice,
if transmitted by facsimile, shall be deemed given when transmitted if actually
received, and the burden of proving receipt shall be on the transmitting
Secured Person.
SECTION 7.03. Amendments and Waivers. Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in
writing and signed by each of the Secured Persons (and, if the rights or duties
of the Administrative Agent or the Collateral Agent are affected thereby, by the
Administrative Agent or the Collateral Agent, respectively).
SECTION 7.04. Payments. All payments hereunder shall be made in the
same manner and means of payment as received. All payments to the Collateral
Agent or the Administrative Agent shall be made to it at such office or account
as it may specify for the purpose by notice to the Secured Persons. All
payments to any Secured Person shall be made to it, to the extent practicable,
in accordance with the provisions of the relevant Credit Facility.
SECTION 7.05. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, and
all of which taken together shall constitute a single agreement, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when the Administrative Agent shall have
received counterparts hereof executed by each of the parties listed on the
signature pages hereof.
SECTION 7.06. Benefits. This Agreement shall be binding upon, and
inure to the benefit of and be enforceable by, the Secured Persons and each of
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing sentence, any Secured Person may assign or
otherwise transfer (in whole or in part) to any other Person the obligations of
the Company to such Secured Person (with respect to the Lenders, subject to the
provisions of the Credit Agreement or the Notes, as the case may be, and, with
respect to John Hancock, subject to the provisions of the John Hancock Note
Agreement or the John Hancock Notes, as the case may be), and such other Person
shall thereupon become vested with all rights and benefits, and become subject
to all the obligations, in respect thereof granted to or imposed upon such
Secured Person under this Agreement, subject, however, to any contrary
provisions on such assignment or transfer (with respect to the Lenders, subject
to the provisions of the Credit Agreement or the Notes, as case may be, and,
with respect to John Hancock, subject to the provisions of the John Hancock
Note Agreement or the John Hancock Notes, as the case may be).
SECTION 7.07. Agreement of Company and Guarantor. The Company, by
signing a copy of this Agreement, agrees that each Secured Person so purchasing
a participation from another Secured Person pursuant to Article II hereof may,
to the fullest extent permitted by law, exercise all its rights of payment
(including rights of set-off) with respect to such participation as fully as if
such Secured Person were the direct creditor of the Company in the amount of
such participation.
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SECTION 7.08. Secured Claims. If under any applicable bankruptcy,
insolvency or other similar law, any Secured Person receives a secured claim in
lieu of a set-off to which Section 7.07 hereof applies, such Secured Person
shall exercise its rights in respect of such secured claim in a manner
consistent with the rights of the other Secured Persons in accordance with
Article II hereof
SECTION 7.09. Term. This Agreement shall in all respects be a
continuing, absolute, unconditional and irrevocable agreement, and shall
remain in full force and effect until all obligations of the Company to the
Secured Persons under this Agreement, the Credit Agreement, the John Hancock
Note Agreement, the John Hancock Notes, and any Swap Agreement shall have been
satisfied in full and all obligations of all Secured Persons to the other
Secured Persons hereunder shall have been satisfied in full. Each Secured
Person agrees that this Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in whole or in
part) of any of the obligations of the Company is rescinded or must otherwise
be restored by any Secured Person, upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, as though such payment had not been
made.
SECTION 7.10. Representation of Lenders and Agent. In order to induce
the Noteholders to enter into this Agreement, each of the Lenders and the Agent
represent and warrant to the Noteholders (i) that it has full corporate power,
and has taken all action necessary, to execute and deliver this Agreement and
to fulfill its respective obligations hereunder, (ii) that no governmental or
other authorizations are required in connection herewith, (iii) that this
Agreement constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium, regulatory and similar laws of general application
and by general principles of equity, (iv) that CIBC Inc. is the only current
Lender under the Credit Agreement, (v) that it has given the Administrative
Agent a true, correct and complete copies of all its Financing Documents, and
(vi) that none of CIBC Inc. nor Canadian Imperial Bank of Commerce is an
"insider" of the Company as such term is defined in the Bankruptcy Code.
SECTION 7.11. Representations of the Noteholders. In order to induce
the Agent and the Lenders to enter into this Agreement, each of John Hancock
and Barnett & Co. represents and warrants to the Lenders and the Agent (i) that
it has full corporate power, and has taken all action necessary, to execute and
deliver this Agreement and to fulfill its obligations hereunder, (ii) that no
governmental or other authorizations are required in connection herewith, (iii)
that this Agreement constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium, regulatory and similar laws of general
application and by general principles of equity, (iv) that John Hancock is the
current beneficial owner and that Barnett & Co. is the registered holder of the
John Hancock Notes for the benefit of John Hancock, (v) that it has given to
the Agent and the Administrative Agent a true, correct and complete copy of its
Financing Documents, and (vi) that no Noteholder is an "insider" of the Company
as such term is defined in the Code. Barnett & Co., as holder of the John
Hancock Notes, hereby acknowledges and agrees that it is bound by all of the
terms and provisions of this Agreement as they relate to the Secured Parties
and John Hancock.
SECTION 7.12. No Defense. None of the provisions of this Agreement
shall inure to the benefit of the Company or any other person other than the
Secured Persons; consequently, the Company and any and all other persons shall
not be entitled to rely upon, or to raise as a
21
defense, in any manner whatsoever, the provisions of this Agreement or the
failure of any Secured Person to comply with such provisions.
SECTION 7.13. No Waiver. No failure or delay on the part of any
Secured Person in exercising any power or right under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 7.14. Severance. Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
SECTION 7.15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. THIS
AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY PRIOR AGREEMENTS, WRITTEN OR
ORAL, WITH RESPECT THERETO.
SECTION 7.16. WAIVER OF JURY TRIAL. EACH SECURED PERSON HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY SECURED
PERSON IN CONNECTION HEREWITH. EACH SECURED PERSON ACKNOWLEDGES AND AGREES
THAT IT HAS FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE OTHER SECURED PERSONS ENTERING INTO
THIS AGREEMENT.
SECTION 7.17. Entire Agreement. This Agreement supersedes any
conflicting provisions in any other agreements or instruments to which the
Secured Persons, the Administrative Agent or the Collateral Agent are parties
with respect to the rights, duties and obligations of the Secured Persons, the
Administrative Agent and the Collateral Agent to each other.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written by their duly authorized
officers.
22
CANADIAN IMPERIAL BANK OF COMMERCE, as
Agent and as Administrative Agent
By: /s/ MARYBETH ROSS
---------------------------------
Name: Marybeth Ross
Title: Authorized Signatory
Address: 425 Lexington Avenue
New York, New York 10017
Attention: Marybeth Ross
with a copy to:
Address: 909 Fannin, Suite 1200
Houston, Texas 77010
Attention: John Grandstaff
Facsimile: (713) 650-3727
(713) 658-9922
Telephone: (713) 655-5252
23
CIBC INC., as Collateral Agent and as Lender
By: /s/ MARYBETH ROSS
---------------------------------
Name: Marybeth Ross
--------------------------------
Title: Authorized Signatory
--------------------------------
Address: 425 Lexington Avenue
New York, New York 10017
Attention: Marybeth Ross
with a copy to:
Address: 909 Fannin, Suite 1200
Houston, Texas 77010
Attention: John Grandstaff
Facsimile: (713) 650-3727
(713) 658-9922
Telephone: (713) 655-5252
24
BARNETT & CO.
By: /s/ JOHN REILLY
-----------------------------------
Name: John Reilly
---------------------------------
Title: Operation Specialist
---------------------------------
Address: Barnett & Co.
c/o Banners Trust Co.
PO Box 998
Bowling Green Station
New York, NY 10274
Attention: Private Placement Unit
Facsimile: (615) 835-2493
Telephone: (615) 835-3523
25
Noteholders:
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY
By: /s/ EUGENE X. HODGE, JR.
-----------------------------------
Name: Eugene X. Hodge, Jr.
---------------------------------
Title: Investment Officer
---------------------------------
Address: Bond & Corporate Finance
Department T-57
John Hancock Place
200 Clarendon Street
Boston, Massachusetts 02117
Attention: R. A. Walker
Facsimile: ( )
----------------------------
Telephone: ( )
----------------------------
26
ACKNOWLEDGMENT
The Company hereby acknowledges that it has received a copy of the
foregoing Intercreditor Agreement and that it will not act in contravention
thereof. The Company hereby further agrees that it has no rights under the
terms of said Intercreditor Agreement and that it is not a third party
beneficiary thereof.
ALEXANDER ENERGY CORPORATION
By: /s/ DAVID E GROSE
-----------------------------------
Name: David E. Grose
Title: Chief Financial Officer
and Vice President
27
EXHIBIT A
SUPPLEMENT TO INTERCREDITOR AGREEMENT
[Date]
Re: Intercreditor Agreement dated as of April 15, 1996 by and
among CIBC Inc. as Lender and Collateral Agent for the Secured
Persons, Canadian Imperial Bank of Commerce acting through its
New York Agency as Agent for the Lenders and as Administrative
Agent for the Secured Persons, John Hancock Mutual Life
Insurance Company and Barnett & Co., and CIBC Inc. (the
"Intercreditor Agreement"). Capitalized terms used herein and
not otherwise defined herein shall have the meaning provided
in the Intercreditor Agreement.
Ladies and Gentlemen:
We acknowledge that we have received a copy of the Intercreditor
Agreement and we refer to Section 6.02 thereof.
Upon your receipt of this Supplement, we (a) shall have all the rights
and benefits of a "Secured Person" under the Intercreditor Agreement as if we
were an original signatory thereto, and (b) agree to be bound by the terms and
conditions set forth in the Intercreditor Agreement and to be obligated
thereunder as if we were an original signatory thereto.
[We hereby advise you that we have succeeded to the interest of [Name
of Institution] under the Credit Agreement and have assumed the obligations of
such Institution thereunder.)
(We hereby advise you that we have succeeded to the interest of [John
Hancock] [Barnett & Co.] under the John Hancock Note Agreement and the John
Hancock Notes and have assumed the obligations of [John Hancock] [Barnett & Co.]
[thereunder.]
We hereby advise you of the following administrative details:
Facsimile:
Telephone:
Address:
Attn:
IN WITNESS WHEREOF, the undersigned has caused this supplement to be
duly executed by its proper officers thereunto duly authorized.
[NEW SECURED PERSON]
By: _____________________________
Name: ___________________________
Title: __________________________