EXHIBIT 4.11
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT dated as of March 20, 2003 (as
modified, amended, restated or supplemented from time to time, this
"AGREEMENT"), by and among:
(1) U.S. Bank National Association, in its capacity as the
collateral agent under the Collateral Agency and Intercreditor Agreement
described below (the "COLLATERAL AGENT");
(2) Castle SPFD, LLC, a Delaware limited liability company (the
"SPE");
(3) A. M. Castle & Co., a Maryland corporation ("CASTLE"), Total
Plastics, Inc., a Michigan corporation ("TOTAL PLASTICS"), Oliver Steel Plate
Co., a Delaware corporation ("OLIVER"), and Keystone Tube Company, LLC, a
Delaware limited liability company ("KEYSTONE"; and together with Castle, Total
Plastics and Oliver, each, a "COMPANY" and collectively, the "COMPANIES");
(4) Massachusetts Mutual Life Insurance Company, Allstate Life
Insurance Company, Nationwide Life Insurance Company, The Northwestern Mutual
Life Insurance Company, United of Omaha Life Insurance Company, Mutual of Omaha
Life Insurance Company, Bank of America, N.A. and The Northern Trust Company
(collectively, the "EXISTING LENDERS")
(5) Castle IND MGR, Inc. (the "INDEPENDENT MEMBER"); and
(6) General Electric Capital Corporation, a Delaware corporation
("GE CAPITAL"), acting in its capacity as administrative agent for the Purchaser
under the Purchase Agreement (in such capacity, together with its successors and
assigns, the "RECEIVABLES AGENT").
R E C I T A L S:
A. The Companies and the SPE are parties to that certain Receivables
Sale and Contribution Agreement, dated as of December 26, 2002 (as amended,
supplemented, restated or otherwise modified from time to time, the "SALE
AGREEMENT"), pursuant to which each of the Companies has agreed to sell and/or
contribute to the SPE, and the SPE has agreed to purchase and accept from such
Company, all of the right, title and interest of such Company in all of its
Receivables and the Related Security (each as hereinafter defined).
B. Castle, as master servicer, Total Plastics, as servicer, Oliver,
as servicer, the SPE, Castle IND MGR, Inc., a Delaware corporation (the
"INDEPENDENT MEMBER"), and GE Capital, as purchaser and the Receivables Agent,
are parties to that certain Receivables Purchase
and Servicing Agreement, dated as of December 26, 2002 (as amended,
supplemented, restated or otherwise modified from time to time, the "PURCHASE
AGREEMENT"), pursuant to which GE Capital has agreed to purchase interests in
the Receivables and Related Security sold and contributed to the SPE pursuant to
the Sale Agreement.
C. Pursuant to (i) the Reimbursement Agreement, dated as of June 1,
1994 by Castle in favor of NBD Bank, N.A., as assigned and amended pursuant to
the terms of an Assignment and Amendment of Reimbursement Agreement, dated as of
June 12, 2001, by and among Castle, Bank One, NA (successor to NBD Bank, N.A.)
and Bank of America, N.A. ("BOFA"), as further amended by the Second Amendment
to Reimbursement Agreement dated November 22, 2002, the Third Amendment to
Reimbursement Agreement dated December 26, 2002 and the Fourth Amendment to
Reimbursement Agreement dated March 20, 2002 and the related documents
(collectively, as may be amended, supplemented, restated or otherwise modified
from time to time, the "JUNE 1994 REIMBURSEMENT Agreement"), (ii) the
Reimbursement Agreement, dated as of November 1, 1994 by Castle in favor of NBD
Bank, N.A., as assigned and amended pursuant to the terms of an Assignment and
Amendment of Reimbursement Agreement, dated as of November 1, 2001, by and among
Castle, Bank One, NA (successor to NBD Bank, N.A.), as further amended by the
Second Amendment to Reimbursement Agreement dated as of November 1, 2001, the
Third Amendment to Reimbursement Agreement dated as of November 22, 2002, the
Fourth Amendment to Reimbursement Agreement dated as of December 26, 2002 and
the Fifth Amendment to Reimbursement Agreement dated March 20, 2003 and the
related documents (collectively, as may be amended, supplemented, restated or
otherwise modified from time to time, the "NOVEMBER 1994 REIMBURSEMENT
AGREEMENT"), and (iii) the Application and Agreement for Standby Letter of
Credit dated as of March 5, 2002 and the related documents (collectively, as may
be amended, supplemented, restated or otherwise modified from time to time, the
"MARCH 2002 AGREEMENT"; and, together with the June 1994 Reimbursement Agreement
and the November 1994 Reimbursement Agreement, the "REIMBURSEMENT AGREEMENTS"),
BofA has issued letters of credit (u) pursuant to which up to a maximum amount
of $611,337 may be drawn at any one time to secure payments due in connection
with certain State of Ohio, Industrial Development Refinancing Revenue Bonds
(A.M. Castle & Co. Project) Series 1994 issued to provide financing to the
Company, (v) pursuant to which up to a maximum amount of $1,008,188 may be drawn
at any one time to secure payments due in connection with certain The Industrial
Development Authority of the City of Kansas City, Missouri, Industrial
Development Refunding Revenue Bonds (A.M. Castle & Co. Project) Series 1994
issued to provide financing to the Company, (w) pursuant to which up to a
maximum of $672,544 may be drawn at any one time in connection with certain
Village of Franklin Park, Illinois Industrial Development Refunding Revenue
Bonds (A.M. Castle & Co. Project) Series 1994 issued to provide financing to the
Company; (x) pursuant to which up to a maximum of $194,281 may be drawn at any
one time to secure payments due in connection with certain Village of Rosemont,
Illinois Industrial Development Refunding Revenue Bonds (A.M. Castle & Co.
Project) Series 1994 issued to provide financing to the Company; (y) pursuant to
which up to a maximum of $3,762,740 may be drawn at any one time to secure
payments due in connection with certain City of Hammond, Indiana Adjustable Rate
Economic Development Revenue Bonds (A.M. Castle & Co. Project) Series 1994
issued to provide financing to the Company and (z) pursuant to which up to
$5,000,000 may be drawn to secure payments due from Kreher Steel Company LLC
("KREHER") in connection with a certain Amended and Restated Credit Agreement,
dated as of March 8,
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2002 (as from time to time amended or modified) between Kreher and BofA, as
Agent (the items described in clauses (u) - (z) are herein collectively, as may
be amended, supplemented, restated or otherwise modified from time to time,
referred to as the "BOFA LETTERS OF CREDIT").
D. Pursuant to (i) the Guarantee Agreement dated as of November 22,
2002 by Castle in favor of BofA, Castle guaranteed to BofA (a) the payment by
the City of LaPorte, Indiana (the "KEYSTONE ISSUER") of all principal interest
and any other amounts payable by the Keystone Issuer in respect of the Keystone
Issuer's Economic Development Revenue Bonds, Series 1998 (Keystone Services,
Inc. Project) (the "LAPORTE BONDS"), and (b) the payment and performance by
Keystone Service, Inc. of all of its covenants, agreements, obligations and
liabilities under that certain Loan Agreement, dated as of April 1, 1998,
between the Keystone Issuer and Keystone Service, Inc. and (ii) the Guarantee
Agreement dated as of November 22, 2002 by Castle in favor of BofA Castle
guaranteed the payment to BofA by The Mecklenburg County Industrial Facilities
and Pollution Control Financing Authority (the "MECKLENBURG ISSUER") of all
principal, interest and other amounts payable by the Mecklenburg Issuer in
respect to the Mecklenburg Issuer's Tax-Exempt Industrial Revenue Bonds (A.M.
Castle & Co. Project) Series 1996 (the "MECKLENBURG BONDS"); the obligation of
Castle under each of said Guarantee Agreements are herein collectively, as may
be amended, supplemented, restated or otherwise modified from time to time,
referred to as the "IRB BOND GUARANTY OBLIGATIONS" and each such Guarantee
Agreement, as may be amended, supplemented, restated or otherwise modified from
time to time, is herein referred to as an "IRB BOND GUARANTEE").
E. Pursuant to the Trade Acceptance Purchase Agreement dated as of
August 13, 2001 between Castle and The Northern Trust Company ("NORTHERN
TRUST"), as amended by the First Amendment thereto dated as of April 29, 2002,
the Second Amendment thereto dated as of June 30, 2002, the Third Amendment
thereto dated as of November 22, 2002, the Fourth Amendment thereto dated
December 26, 2002 and the Fifth Amendment thereto dated March 20, 2003
(collectively, as may be amended, supplemented, restated or otherwise modified
from time to time, the "TRADE ACCEPTANCE PURCHASE AGREEMENT"), Northern Trust
agreed to purchase certain Trade Acceptances (as defined therein) from Castle
from time to time.
F. Pursuant to (i) the Note Agreement dated as of April 1, 1996
between Castle and Nationwide Life Insurance Company, as amended by the First
Amendment and Waiver to Note Agreement dated as of December 1, 1998, the Second
Amendment to Note Agreement dated November 22, 2002, the Third Amendment to Note
Agreement dated as of December 26, 2002 and the Fourth Amendment to Note
Agreement dated as of March 20, 2003, (ii) the Note Agreement dated as of May
15, 1997 among Castle, Massachusetts Mutual Life Insurance Company and United of
Omaha Life Insurance Company, as amended by the First Amendment and Waiver to
Note Agreement, dated as of December 1, 1998, the Second Amendment to Note
Agreement dated November 22, 2002, the Third Amendment to Note Agreement dated
as of December 26, 2002 and the Fourth Amendment to Note Agreement dated as of
March 20, 2003, and (iii) the Note Agreement, dated as of March 1, 1998, among
Castle, Allstate Life Insurance Company, The The Northwestern Mutual Life
Insurance Company, Massachusetts Mutual Life Insurance Company, Mutual of Omaha
Insurance Company and United of Omaha Life Insurance Company, as amended by the
First Amendment and Waiver to Note Agreement, dated as of December 1, 1998, the
Second Amendment to Note Agreement dated November 22, 2002, the Third Amendment
to Note Agreement dated as of December 26,
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2002 and the Fourth Amendment to Note Agreement dated as of March 20, 2003
(collectively, as may be amended, supplemented, restated or otherwise modified
from time to time, the "NOTE AGREEMENTS"), Castle issued various series of
senior notes (collectively, as may be amended, supplemented, restated or
otherwise modified from time to time, the "SENIOR NOTES") to the other parties
to the Note Agreements (each of such other parties, a "NOTEHOLDER" and
collectively, the "NOTEHOLDERS").
G. To secure their obligations to the Existing lenders (all of the
foregoing and their permitted successors and assigns under Section 3.3 hereof,
collectively, the "LENDERS") under the Loan Documents (hereinafter defined),
Castle and certain of its Subsidiaries (other than the SPE and the Independent
Member) have granted to the Collateral Agent, for the benefit of the Lenders,
liens on, among other things, Lender Collateral.
H. The parties hereto wish to set forth certain agreements with
respect to the Receivables Assets (as hereinafter defined) and with respect to
the Lender Collateral (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, and for other good and valuable
consideration, receipt of which is hereby acknowledged, it is hereby agreed as
follows:
ARTICLE 1. DEFINITIONS
1.1. Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"ACCOUNT COLLATERAL" has the meaning assigned to it in clause (f) of
the definition of the term "Related Security".
"BANKRUPTCY CODE" means the provisions of title 11 of the United
States Code, 11 U.S.C. Sections 101 et seq.
"BILLING DATE" means, with respect to any Receivable or Unsold
Receivable, as the case may be, the date on which the invoice with respect
thereto was generated and billed to the Obligor.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday or a
day on which banks are required or permitted to be closed in any of the States
of Illinois or New York.
"CLAIM" means the Lender Claim or the Receivables Claim, as
applicable.
"COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT" means the Collateral
Agency and Intercreditor Agreement, dated as of March 20, 2003, among the
Collateral Agent, BofA, the Noteholders, Northern Trust, the Guarantors (as
defined therein) and any holders of Additional Future Debt (as defined therein),
as may be amended, supplemented, restated or otherwise modified from time to
time.
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"COLLECTION ACCOUNT" means Deutsche Bank Trust Company Americas, New
York, New York, ABA No. 021 001 033, Account No. 502 328 54, Account Name: GE
Capital/CAF Depository, Reference: A. M. Castle CFN 4963, or any successor
collection account, established by the Receivables Agent under the Purchase
Agreement.
"COLLECTIONS" means, with respect to any Receivable, all cash
collections and other proceeds of such Receivable, including, without
limitation, all late charges, fees and interest arising thereon, all recoveries
with respect to any such Receivable that has been written off as uncollectible,
and any payments (whether by a scrap mill, any Company or any other Person) with
respect to Returned Goods or Scrapped Goods, BUT EXCLUDING, HOWEVER, in respect
of the Transferred Receivables, any purchase price paid to the Companies by the
SPE with respect to and as consideration for the sale of the Transferred
Receivables by any of the Companies to the SPE.
"CONCENTRATION ACCOUNT" means that certain concentration account
listed on Schedule 4.01(r), as amended, to the Purchase Agreement established in
the name of the SPE and held at the Concentration Account Bank.
"CONCENTRATION ACCOUNT BANK" means any bank or other financial
institution at which the Concentration Account is maintained.
"CONTRACT" means any of the Receivables Contracts or the Unsold
Receivables Contracts.
"CONTRIBUTED RECEIVABLE" means a Receivable and Related Security
contributed to SPE as capital contribution under the Sale Agreement.
"DEPOSIT INVESTMENTS" means, with respect to any Account Collateral,
the certificates, instruments, investment property or other investments in which
amounts constituting such collateral are invested from time to time.
"DESIGNATED DISTRICT" means a District which has been designated in
writing by the Receivables Agent to the Companies pursuant to the provisions of
the Related Documents as giving rise to Designated Receivables.
"DESIGNATED RECEIVABLE" means any indebtedness of Obligors (whether
constituting an account, a payment intangible, an instrument or otherwise)
arising from the sale of merchandise, goods or services by any District of any
Company to its Obligors (including the right to payment of any interest or
finance charges and other obligations of such Obligors with respect thereto)
designated in writing by the Receivables Agent to the Companies pursuant to the
provisions of the Related Documents at any time that the aggregate principal
amount of Transferred Receivables at any one time outstanding exceeds
$75,000,000 and arising after the date of such written designation.
"DISPOSITION" means any liquidation of Castle or any of its
Subsidiaries or their assets, the establishment of any receivership for Castle
or any of its Subsidiaries or their assets, a bankruptcy proceeding (either
voluntary or involuntary) of Castle or any of its Subsidiaries, the payment of
any insurance, condemnation, confiscation, seizure or other claim upon the
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condemnation, confiscation, seizure, loss or destruction of, or damage to, or
any other sale, transfer, assignment or other disposition of assets of Castle or
any of its Subsidiaries (other than the sale, contribution and transfer of
interests in the Receivables Assets pursuant to the Sale Agreement and the
Purchase Agreement).
"DISTRICT" means the geographic location of the office of the
Company which generates a Contract with respect to any Receivable or Unsold
Receivable.
"ENFORCEMENT" means, collectively or individually, (a) any
declaration by the Receivables Agent or the Purchaser or automatic occurrence of
the Facility Termination Date as a result of the occurrence of a Termination
Event under the Related Documents; or (b) the Collateral Agent or any of the
Lenders, after the occurrence and during the continuance of a Loan Event of
Default, (i) demands payment in full of or accelerates or requires cash
collateral for the indebtedness of Castle and its Subsidiaries (other than the
SPE and the Independent Member) to the Lenders under the Loan Documents or (ii)
commences the judicial or nonjudicial enforcement of any of the default rights
and remedies against Castle or its Subsidiaries (other than the SPE and the
Independent Member) or any of their respective assets under the Loan Documents
or applicable law.
"ENFORCEMENT NOTICE" means a written notice delivered in accordance
with Section 2.4 hereof which notice shall (a) if delivered by the Receivables
Agent, state that the Facility Termination Date has occurred, specify the nature
of the Termination Event that has caused the declaration of such Facility
Termination Date, and state that an Enforcement Period has commenced and (b) if
delivered by the Collateral Agent, state that a Loan Event of Default has
occurred and that the payment in full of or cash collateral for the Lender Claim
has been demanded or the indebtedness of Castle or its Subsidiaries (other than
the SPE and the Independent Member) to any of the Lenders has been accelerated,
specify the nature of the Loan Event of Default that caused such demand or
acceleration, and state that an Enforcement Period has commenced.
"ENFORCEMENT PERIOD" means the period of time following the receipt
by either (a) the Collateral Agent, on behalf of the Lenders, or (b) the
Receivables Agent of an Enforcement Notice delivered by the other until the
earliest of the following: (i) the Receivables Claim has been satisfied in full,
the Purchaser and the Receivables Agent have no further obligations under the
Related Documents and the Related Documents have been terminated; (ii) the
Lender Claim has been satisfied in full, the Lenders have no further obligations
under the Loan Documents and the Loan Documents have been terminated; and (iii)
the parties hereto agree in writing to terminate the Enforcement Period.
"FACILITY TERMINATION DATE" means the earliest of (a) the date so
designated pursuant to the Purchase Agreement, (b) December 26, 2005, and (c)
the date of termination of the Maximum Purchase Limit specified in a notice from
the SPE to the Purchaser delivered pursuant to the Purchase Agreement.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state
or other political subdivision thereof, and any agency, department or other
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
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"JOINDER AGREEMENT" means the Joinder Agreement in the form of
Exhibit C attached hereto.
"LENDER CLAIM" means all of the indebtedness, obligations and other
liabilities of Castle or its Subsidiaries (other than the SPE and the
Independent Member) now or hereafter arising under, or in connection with the
Loan Documents, including, but not limited to, all reimbursement obligations of
Castle with respect to any loans made or any letters of credit issued
thereunder, all guarantee obligations of Castle's Subsidiaries (other than the
SPE and the Independent Member) under the Loan Documents, any interest thereon
(including, without limitation, interest accruing after the commencement of a
bankruptcy, insolvency or similar proceeding relating to any of Castle or its
Subsidiaries (other than the SPE and the Independent Member), whether or not
such interest is an allowed claim in any such proceeding), any reimbursement
obligations, premiums, make-whole amounts, yield maintenance amounts, fees or
expenses due thereunder, and any costs of collection or enforcement.
"LENDER COLLATERAL" means all property and interests in property now
owned or hereafter acquired or created, of Castle or any of its Subsidiaries
(other than the SPE and the Independent Member) in or upon which a Lender
Interest is granted or purported to be granted by any such Person to any of the
Lenders under any of the Loan Documents, EXCLUDING, HOWEVER, the Receivables
Assets, the Returned Goods or Scrapped Goods the original sale of which gave
rise to a Transferred Receivable (except as otherwise set forth in Section
2.1(a)) hereof, BUT INCLUDING Returned Goods or Scrapped Goods in or on which
the Lender Interest is junior, subordinated and subject to the Receivables
Interest pursuant to Section 2.1(a) hereof.
"LENDER INTEREST" means, with respect to any property or interest in
property (including, without limitation, the Lender Collateral), now owned or
hereafter acquired or created, of Castle or any of its Subsidiaries (other than
the SPE and the Independent Member), any lien, claim, encumbrance, security
interest, voting right, right of offset (whether contractual or arising at
common law) or other interest of the Collateral Agent (for the benefit of itself
and the Lenders) or any Lender in such property or interests in or to such
property.
"LIEN" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the UCC or
comparable law of any jurisdiction).
"LOAN DOCUMENTS" means the Collateral Agency and Intercreditor
Agreement, the Reimbursement Agreements, the Trade Acceptance Purchase
Agreement, the Note Agreements, the IRB Bond Guarantees, any Additional Future
Debt Documents (as defined in the Collateral Agency and Intercreditor
Agreement), the following collateral documents, each dated as of March 20, 2003:
the Security Agreement between the Collateral Agent and the Obligors, the Stock
Pledge Agreement between the Collateral Agent and Castle, the Trademark
Collateral Security and Pledge Agreement among the Collateral Agent, Castle and
Total Plastics, the Environmental Indemnity Agreement between the Obligors and
the Collateral Agent, Deed
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of Trust, Security Agreement, Financing Statement and Assignment of Rents and
Leases between Castle and the Collateral Agent (Charlotte, NC), the Open-End
Mortgage, Security Agreement, Financing Statement and Assignment of Rents and
Leases between Castle and the Collateral Agent (Bedford Heights, OH), the Deed
of Trust, Security Agreement, Financing Statement and Assignment of Rents and
Leases between the Company and the Collateral Agent (Grand Prairie, TX), the
Mortgage, Security Agreement, Financing Statement and Assignment of Rents and
Leases between Keystone and the Collateral Agent (Franklin Park, IL), the Deed
of Trust, Security Agreement, Financing Statement and Assignment of Rents and
Leases between Castle and the Collateral Agent (Houston, TX), the Deed of Trust,
Security Agreement, Financing Statement and Assignment of Rents and Leases
between Castle and the Collateral Agent (Kansas City, MO), the Deed of Trust,
Security Agreement, Financing Statement and Assignment of Rents and Leases
between Kestone and the Collateral Agent (Paramount, CA), the Mortgage, Security
Agreement, Financing Statement and Assignment of Rents and Leases between the
Company and the Collateral Agent (Blaine, MN), the Open-End Mortgage, Security
Agreement, Financing Statement and Assignment of Rents and Leases between
Castle, Mortgage, Security Agreement, Financing Statement and Assignment of
Rents and Leases between Castle and the Collateral Agent (Worcester, MA) and the
Collateral Agent (Fairless Hills, PA) and Mortgage, Security Agreement,
Financing Statement and Assignment of Rents and Leases between Total Plastics
and the Collateral Agent (Grand Rapids, MI), and all related documents executed
pursuant to any of the foregoing, in each case, as may be amended, supplemented,
restated or otherwise modified from time to time. For the purposes of this
definition of the term "Loan Documents", "Obligors" means Castle, Datamet, Inc.,
an Illinois corporation, Keystone, Total Plastics, Paramont Machine Company,
LLC, a Delaware limited liability company, Advanced Fabricating Technology, LLC,
a Delaware limited liability company, Oliver, and Metal Mart, LLC, a Delaware
limited liability company.
"LOAN EVENT OF DEFAULT" has the meaning ascribed to the term "Event
of Default" under and as defined in any of the Reimbursement Agreements, the IRB
Bond Guarantees, the Trade Acceptance Purchase Agreement, any of the Note
Agreements or any Additional Future Debt Documents (as defined in the Collateral
Agency and Intercreditor Agreement).
"LOCKBOX" has the meaning ascribed to it in Section 6.01(a)(ii) of
the Purchase Agreement.
"LOCKBOX ACCOUNT" means each lockbox account or blocked account
(including blocked accounts consisting of deposit accounts and concentration
accounts) listed on Schedule 4.01(r) to the Purchase Agreement as amended from
time to time established in the name of the SPE and held at a Lockbox Account
Bank, together with any other segregated deposit account established by the SPE
for the deposit of Collections pursuant to and in accordance with the Purchase
Agreement.
"LOCKBOX ACCOUNT BANK" means any bank or other financial institution
at which one or more Lockbox Accounts are maintained.
"LOCKBOX ACCOUNT AGREEMENT" means any agreement among any one or
more Companies, the SPE, the Receivables Agent, a Lockbox Account Bank and/or
Concentration
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Account Bank with respect to a Lockbox, Lockbox Account and/or Concentration
Account that provides, among other things, that (a) all items of payment
deposited in such Lockbox, Lockbox Account or Concentration Account are held by
such Lockbox Account Bank or such Concentration Account Bank, as the case may
be, as custodian for GE Capital, as Receivables Agent, (b) neither the Lockbox
Account Bank nor the Concentration Account Bank, as applicable, has any rights
of setoff or recoupment or any other claim against such Lockbox Account or
Concentration Account, as the case may be, other than for payment of its service
fees and other charges directly related to the administration of such Account
and for returned checks or other items of payment and (c) such Lockbox Account
Bank agrees to forward all Collections received in such Lockbox Account to the
Concentration Account within one Business Day of receipt of available funds, and
such Concentration Account Bank agrees to forward all Collections received in
the Concentration Account to the Collection Account within one Business Day of
receipt of available funds, and is otherwise in form and substance acceptable to
the Receivables Agent.
"MAXIMUM PURCHASE LIMIT" means $60,000,000 as such amount may be
reduced in accordance with Section 2.02(a) of the Purchase Agreement.
"OBLIGOR" means, with respect to any Receivable, the Person
primarily obligated to make payments in respect thereof.
"OUTSTANDING BALANCE" means, with respect to any Receivable and as
of any date of determination, the amount (which amount shall not be less than
zero) equal to (a) the amount billed to the Obligor thereof, minus (b) all
Collections received from the Obligor thereunder, minus (c) all discounts to or
any other modifications that reduce such amount billed to the Obligor; PROVIDED
THAT if the Receivables Agent or any of the Companies makes a determination that
all payments by such Obligor with respect to such amount billed have been made,
the Outstanding Balance shall be zero.
"PERSON" means any individual, sole proprietorship, partnership,
joint venture, unincorporated organization, trust, association, corporation
(including a business trust), limited liability company, institution, public
benefit corporation, joint stock company, Governmental Authority or any other
entity of whatever nature.
"PURCHASER" means GE Capital and its assigns under the Purchase
Agreement.
"RECEIVABLE" means, with respect to any Obligor, indebtedness of
such Obligor (whether constituting an account, a payment intangible, an
instrument or otherwise) arising from the sale of merchandise, goods or services
by a Company to such Obligor, including the right to payment of any interest or
finance charges and other obligations of such Obligor with respect thereto;
PROVIDED THAT the definition of "Receivable" shall exclude the Designated
Receivables.
"RECEIVABLES ASSETS" means the Transferred Receivables and Related
Security (exclusive of any Collections or other monies deposited in the
Collection Account, any Lockbox Account or the Concentration Account which are
not Collections related to Transferred Receivables, and, for the avoidance of
doubt, exclusive of Unsold Receivables).
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"RECEIVABLES CONTRACT" means any agreement (including any invoice,
draft or promissory note) pursuant to, or under which, an Obligor shall be
obligated to make payments with respect to any Receivable.
"RECEIVABLES CLAIM" means (a) all indebtedness, obligations and
other liabilities of the SPE to the Receivables Agent and the Purchaser and (b)
until and unless all of the obligations to the Receivables Agent or any
Purchaser arising under or in connection with the Related Documents have been
fully performed and indefeasibly paid in full in cash to the Receivables Agent,
all indebtedness, obligations and other liabilities of (i) any of the Companies
now or hereafter arising under, or in connection with, any of the Related
Documents or (ii) any of the Companies to the SPE now or hereafter arising
under, or in connection with, the Related Documents, including, but not limited
to, all sums or advances now made to or for the benefit of the SPE under the
Purchase Agreement, any yield or interest thereon (including, without
limitation, interest or yield accruing after the commencement of a bankruptcy,
insolvency or similar proceeding relating to any of the Companies or the SPE,
whether or not such interest or yield is an allowed claim in any such
proceeding), any repayment obligations, fees or expenses due thereunder, and any
costs of collection or enforcement.
"RECEIVABLES INTEREST" means, with respect to any of the Receivables
Assets or any property or interest in property, any lien, claim, encumbrance,
security interest or other interest of any or all of the SPE, the Purchaser
and/or the Receivables Agent in or to any of such property.
"RECORDS" means all Receivables Contracts and other documents,
books, records and other information (including computer programs, tapes, disks,
data processing software and related property and rights) prepared and
maintained by any Company, any Sub-Servicers or the SPE with respect to the
Receivables Assets and the Obligors thereunder.
"RELATED DOCUMENTS" means the Sale Agreement, the Purchase
Agreement, each as amended from time to time, and any other agreements,
instruments or documents (other than this Agreement) executed by (a) any or all
of the Companies and delivered to the SPE or (b) the SPE and delivered to the
Receivables Agent or the Purchaser.
"RELATED SECURITY" means with respect to any Receivable:
(a) all supporting obligations (as defined in Article 9 of the UCC),
security interests or Liens and property subject thereto from time to time
securing or purporting to secure the payment of such Receivable by the Person
obligated thereon;
(b) all guaranties, indemnities and warranties, insurance policies,
financing statements and other agreements or arrangements of whatever character
from time to time supporting or securing payment of such Receivable;
(c) all right, title and interest of Castle or any Subsidiary in and
to any goods (including Returned Goods) the sale of which gave rise to such
Receivable and all right, title and interest of Castle or any Subsidiary in and
to payments made on account of Scrapped Goods; PROVIDED THAT Related Security
will not include Returned Goods from and after the time, if any, when the SPE
shall have received full cash payment required to be made under the Sale
10
Agreement on account of the reduction of the Outstanding Balance of the
Receivable related to such Returned Good;
(d) all Collections;
(e) all Records;
(f) all of the following (collectively, the "ACCOUNT COLLATERAL")
(A) in the case of any Company, all deposit accounts and/or lockboxes
established for collection of Receivables and all funds on deposit therein and
all certificates and instruments, if any, at any time or evidencing such
accounts, lockboxes or such funds and (B) in the case of SPE:
(1) all deposit accounts, including the Lockbox Accounts, the
Lockboxes, and all funds on deposit therein and all
certificates and instruments, if any, from time to time
representing or evidencing any deposit account, the Lockbox
Accounts, the Lockboxes or such funds,
(2) the Collection Account, the Concentration Account and all
funds on deposit therein and all certificates and instruments,
if any, from time to time representing or evidencing the
Collection Account, the Concentration Account or such funds,
(3) all Deposit Investments from time to time of amounts in
the Collection Account, and all certificates, instruments and
investment property, if any, from time to time representing or
evidencing such Deposit Investments,
(4) all notes, certificates of deposit and other instruments
in substitution for or relating to any of the then existing
Account Collateral, and
(5) all interest, dividends, cash, instruments, investment
property and other property from time to time received,
receivable or otherwise distributed with respect to or in
exchange for any and all of the then existing Account
Collateral; and
(g) all proceeds of such Receivable and with respect to any of the
foregoing.
"REPURCHASED GOODS" means any Returned Goods or Scrapped Goods, the
original sale of which gave rise to a Transferred Receivable, for which the SPE
has received, pursuant to the Sale Agreement, a payment in cash for the
adjustment of the Transferred Receivable with respect to which such return
arose.
"RETURNED GOODS" means goods, the sale of which gave rise to a
Receivable, that are returned to a Company by an Obligor for any reason.
"SCRAPPED GOODS" means goods, the sale of which gave rise to a
Receivable, which are rejected by the applicable Obligor for any reason but
which are scrapped rather than being returned to the applicable Company or any
of its affiliates.
11
"SOLD RECEIVABLE" means a Receivable and Related Security identified
for sale to SPE under the Sale Agreement.
"SPE MEMBERSHIP COLLATERAL" means the membership interest of the SPE
upon which a Lender Interest is granted or purported to be granted by the
Companies or any other owner thereof to the Collateral Agent under the Loan
Documents.
"SUB-SERVICER" means any Person with whom the Companies enter into a
written contract pursuant to and in accordance with the Purchase Agreement
relating to the servicing, administration or collection of the Transferred
Receivables.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other entity (a) of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other
Persons performing similar functions are at the time directly or indirectly
owned by such Person or (b) that is directly or indirectly controlled by such
Person within the meaning of control under Section 15 of the Securities Act of
1933, as amended from time to time.
"TERMINATION EVENT" has the meaning ascribed to it in the Purchase
Agreement.
"TRANSFERRED RECEIVABLE" means any Sold Receivable or Contributed
Receivable (it being understood and agreed that for the period from and
including December 26, 2002 through and including the Facility Termination Date,
such sale, contribution or transfer of a Receivable or Related Security shall
occur immediately upon creation of such Receivable or Related Security);
PROVIDED THAT any Receivable repurchased by a Company pursuant to Section 4.05
of the Sale Agreement shall not be deemed to be a Transferred Receivable from
and after the date of such repurchase unless such Receivable has subsequently
been repurchased by or contributed to the SPE.
"UCC" means, with respect to any jurisdiction, the Uniform
Commercial Code as the same may, from time to time, be enacted and in effect in
such jurisdiction.
"UNSOLD RECEIVABLE" means, with respect to any Obligor, indebtedness
of such Obligor (whether constituting an account, a payment intangible, an
instrument or otherwise) arising from the sale of merchandise, goods or services
by a Company to such Obligor (including the right to payment of any interest or
finance charges and other obligations of such Obligor with respect thereto)
other than any and all Transferred Receivables with respect to such Obligor.
Unsold Receivables include any Designated Receivable with respect to such
Obligor.
"UNSOLD RECEIVABLES CONTRACTS" has the meaning ascribed to it in
clause (e) of the definition of the term "Unsold Related Security".
"UNSOLD RECEIVABLES COLLECTIONS" has the meaning ascribed to it in
clause (d) of the definition of the term "Unsold Related Security".
"UNSOLD RECEIVABLES RECORDS" has the meaning ascribed to it in
clause (e) of the definition of "Unsold Related Security".
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"UNSOLD RELATED SECURITY" means with respect to any Unsold
Receivable:
(a) all supporting obligations (as defined in Article 9 of the UCC),
security interests or Liens and property subject thereto from time to time
securing or purporting to secure the payment of such Unsold Receivable by the
Person obligated thereon;
(b) all guaranties, indemnities and warranties, insurance policies,
financing statements and other agreements or arrangements of whatever character
from time to time supporting or securing payment of such Unsold Receivable;
(c) all right, title and interest of Castle or any Subsidiary in and
to any goods the sale of which gave rise to such Unsold Receivable;
(d) all cash collections and other proceeds of such Unsold
Receivable, including, without limitation, all late charges, fees and interest
arising thereon, all recoveries with respect to any such Unsold Receivable that
has been written off as uncollectible (collectively, the "UNSOLD RECEIVABLES
COLLECTIONS");
(e) all agreements (including any invoice, draft or promissory note)
(collectively, the "UNSOLD RECEIVABLES CONTRACTS") pursuant to, or under which,
an Obligor shall be obligated to make payments with respect to any Unsold
Receivable and other documents, books, records and other information (including
computer programs, tapes, disks, data processing software and related property
and rights) prepared and maintained with respect to such Unsold Receivable (all
items referenced to in this clause (e) are herein referred to as "UNSOLD
RECEIVABLES RECORDS");
(f) all deposit accounts and/or lockboxes established by Collateral
Agent for collection of Unsold Receivables and all funds on deposit therein and
all certificates and instruments, if any, at any time or evidencing such
accounts, lockboxes or such funds; and
(g) all proceeds of such Unsold Receivable and with respect to any
of the foregoing.
For the avoidance of doubt, Unsold Related Security shall not include any
Related Security.
ARTICLE 2. INTERCREDITOR PROVISIONS
2.1. Priorities with Respect to Receivables and Collections, Etc.
(a) Notwithstanding any provision of the UCC, any applicable law or
decision or any of the Loan Documents, the Collateral Agent hereby agrees that
(and the Lenders hereby so direct the Collateral Agent): (i) upon the sale,
contribution or other transfer on or prior to the occurrence of the Facility
Termination Date of an ownership or security interest in any Receivable or any
Related Security by any of the Companies to the SPE pursuant to the Sale
Agreement or by the SPE to the Purchaser pursuant to the Purchase Agreement, any
Lender Interest in such Receivables and Related Security and the associated
Collections shall automatically, and without any further action by the
Receivables Agent, be released upon such sale, contribution or transfer (it
being understood and agreed that for the period from and including December 26,
2002 through and including the Facility Termination Date, such sale,
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contribution or transfer of a Receivable or Related Security shall occur
immediately upon creation of such Receivable or Related Security) and (ii) any
Lender Interest in the Scrapped Goods and Returned Goods (other than the
Repurchased Goods) shall automatically, and without any further action by the
Receivables Agent, be released; PROVIDED, HOWEVER, that nothing in this Section
2.1 shall be deemed to constitute a release of: (w) any Lender Interest in the
cash proceeds paid or payable to any or all of the Companies by the SPE for the
sale of Receivables under the Sale Agreement; (x) any Lender Interest or other
right the Collateral Agent has in any Unsold Receivables and the proceeds
thereof, including, without limitation, Unsold Receivables Collections; (y) any
Lender Interest in any other Lender Collateral or the SPE Membership Collateral;
and (z) any Lender Interest or other right the Collateral Agent has in any
interests which the Companies may have in Repurchased Goods; PROVIDED FURTHER,
HOWEVER, that any Lender Interest in the Scrapped Goods and Returned Goods
(other than the Repurchased Goods) shall be junior and subject and subordinate
to the Receivables Interest therein unless and until the Companies shall have
made all cash payments required to be made (if any) under the Related Documents
on account of the reduction of the Outstanding Balance of any Transferred
Receivable or Related Security related to the Scrapped Goods and Returned Goods
(other than the Repurchased Goods). If any goods or merchandise, the sale of
which has given rise to a Transferred Receivable or a Related Security, are
returned to or repossessed by the Companies, then, upon payment by the Companies
of all cash payments required (if any) on account thereof under the Related
Documents, the Receivables Interest in such Returned Goods shall automatically
and without further action cease to exist and be released and extinguished and
such Returned Goods shall thereafter not constitute Receivables Assets for
purposes of this Agreement unless and until such Returned Goods have been resold
so as to give rise to a Receivable and Related Security and such Receivable and
Related Security has been transferred or purported to be transferred to the SPE
pursuant to the Sale Agreement.
(b) Notwithstanding anything in the Related Documents or otherwise
to the contrary, if the Facility Termination Date shall occur, no Receivables
shall, without the prior written consent of the Collateral Agent, be sold,
contributed or otherwise transferred to the SPE, and if any such sale,
contribution or transfer shall nonetheless occur, the Lender Interest therein
and in all proceeds thereof shall not be released hereunder and such Receivables
shall not constitute Transferred Receivables and any Receivables Interest
therein shall be subordinated to any Lender Interest therein.
2.2. Distribution of Proceeds.
(a) Except as otherwise provided in Section 2.3(b)(ii) hereof, (i)
all proceeds of the Receivables Assets (including, without limitation,
Collections) shall be paid to the Receivables Agent for application against the
Receivables Claim and for application in accordance with the Related Documents
until the Receivables Claim has been paid and satisfied in full in cash and the
Related Documents have terminated and such proceeds shall not be subject to any
right of offset, deduction, recoupment or similar rights (whether contractual or
arising at common law) in favor of any Lender (except for rights of offset
specifically provided for in any Lockbox Account Agreement); and (ii) any
remaining proceeds of the Receivables Assets shall be paid to the SPE or as
otherwise required by applicable law.
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(b) Except as otherwise provided in Section 2.3(b)(ii) hereof, (i)
all proceeds of the Lender Collateral (including, without limitation, Unsold
Receivables Collections) shall be paid to the Collateral Agent for application
against the Lender Claim and for application in accordance with the Loan
Documents and the Collateral Agency and Intercreditor Agreement until the Lender
Claim has been paid and satisfied in full in cash and the Loan Documents are
terminated and (ii) any remaining proceeds of the Lender Collateral shall be
paid to Castle or the applicable Subsidiary thereof or as otherwise required by
applicable law.
(c) In the event that any of Castle, the SPE, the Purchaser or the
Receivables Agent now or hereafter obtains possession of any funds which could
constitute Lender Collateral ("LENDER COLLATERAL FUNDS") prior to the
termination or release of the Lender Interest therein, it shall promptly deliver
to the Collateral Agent such Lender Collateral Funds (and until delivered to the
Collateral Agent, such Lender Collateral shall be held in trust for the
Collateral Agent), PROVIDED that such property so received or held by Castle,
the SPE, the Purchaser or the Receivables Agent constitutes Lender Collateral.
Each of Castle, the SPE and the Receivables Agent (on behalf of itself and the
Purchaser) further agrees to promptly turn over the proceeds of any Disposition
of Lender Collateral which it might receive while any Lender Claim, any other
obligations or liabilities under any Loan Document or any commitment to make
financial accommodations thereunder remains outstanding, regardless of whether
the Collateral Agent has a perfected and enforceable Lien on the assets of
Castle or its Subsidiaries (other than the SPE and the Independent Member) from
which the proceeds of any such Disposition have been received, PROVIDED that
such proceeds so received or held by Castle, the SPE, the Purchaser or the
Receivables Agent constitutes proceeds of a Disposition of Lender Collateral.
(d) In the event that Castle or the Collateral Agent now or
hereafter obtains possession of any funds which could constitute Receivables
Assets ("RECEIVABLES FUNDS") prior to the termination or release of the
Receivables Interest therein, Castle shall and the Collateral Agent shall upon
direction from the Lenders that are Requisite Parties (as defined in the
Collateral Agency and Intercreditor Agreement) promptly deliver to the
Receivables Agent such Receivables Assets (and until delivered to the
Receivables Agent, such Receivables Assets shall be held in trust for the
Receivables Agent). Castle and the Collateral Agent further agree to promptly
turn over the proceeds of any Disposition of Receivables Assets (such proceeds,
together with Receivables Funds, herein referred to as the "RECEIVABLES
PROCEEDS") to the Receivables Agent which it might receive while any Receivables
Claim, any other obligations or liabilities under the Related Documents or any
commitment to make financial accommodations thereunder remain outstanding,
regardless of whether the Receivables Agent has a perfected and enforceable Lien
on the assets from which the proceeds of such Disposition have been received.
Promptly upon receipt of such Receivables Proceeds, the Collateral Agent shall
notify each of the Lenders of such receipt and the amount of nature of such
Receivables Proceeds, and the Lenders that are Requisite Parties agree to
promptly direct the Collateral Agent to make such delivery, PROVIDED that such
property so received or held by the Collateral Agent constitutes Receivables
Assets or proceeds of a Disposition of Receivables Assets.
(e) If any inventory of the Companies subject to a Lender Interest
has been commingled with Returned Goods in which the Receivables Interest
continues as provided in Section 2.1(a) hereof and the Collateral Agent receives
any proceeds on account of such inventory (whether by reason of sale or by
reason of insurance payments on account thereof)
15
prior to release of such Receivables Interest, then: (i) all proceeds of such
inventory shall be paid to the Collateral Agent and the Collateral Agent shall
upon direction from the Lenders that are Requisite Parties (as defined in the
Collateral Agency and Intercreditor Agreement) immediately upon receipt of such
proceeds pay to the Receivables Agent for application against the Receivables
Claim a share of such proceeds equal to the dollar amount thereof times a
fraction, the numerator of which equals the book value of the Returned Goods on
account of which the Collateral Agent has received cash proceeds and the
denominator of which equals the book value of all of the inventory on account of
which the Collateral Agent has received such cash proceeds; and (ii) any
remaining proceeds shall be paid to the Collateral Agent for application against
the Lender Claim. Promptly upon receipt of such proceeds, the Collateral Agent
shall notify each of the Lenders of such receipt and the amount of nature of
such proceeds, and the Lenders that are Requisite Parties agree to promptly
direct the Collateral Agent to make such delivery, PROVIDED that such proceeds
so received or held by the Collateral Agent constitutes proceeds of such
inventory. The Collateral Agent agrees that, in the event the Collateral Agent
sells any Returned Goods in which the Receivables Agent continues to have an
interest, such sale shall be conducted in a commercially reasonable manner to
the extent required by applicable law.
2.3. Receivables Accounts.
(a) Each of the SPE and the Receivables Agent hereby acknowledges
that the Collateral Agent shall be entitled to Unsold Receivables Collections,
that Unsold Receivables Collections shall not constitute Receivables Assets and
that the SPE and the Receivables Agent have no claim on Unsold Receivables
Collections. The Collateral Agent hereby acknowledges that the Receivables Agent
shall be entitled to Collections, that Collections shall not constitute Lender
Collateral and that the Collateral Agent and the Lenders have no claim on
Collections.
(b) Each of the parties hereto hereby agrees that all Collections
shall be paid or delivered to the Receivables Agent for application in
accordance with Section 2.2(a) hereof and all Unsold Receivables Collections
shall be paid or delivered to the Collateral Agent in accordance with Section
2.2(b) hereof. For the purpose of determining whether specific collections have
been received on account of Receivables Assets or on account of Unsold
Receivables, the parties agree as follows:
(i) All payments made by an Obligor which is obligated to make
payments on Transferred Receivables or Related Security but is not
obligated to make any payments on Unsold Receivables (including
Unsold Related Security) shall be conclusively presumed to be
payments on account of Transferred Receivables or Related Security
and all payments made by an Obligor which is obligated to make
payments on Unsold Receivables but is not obligated to make any
payments on Transferred Receivables or Related Security shall be
conclusively presumed to be payments on account of Unsold
Receivables; and
(ii) All payments made by an Obligor which is obligated to
make payments with respect to both Transferred Receivables
(including Related Security) and Unsold Receivables (including
Unsold Related Security) shall be applied against the specific
Receivables or Related Security, if any, or the specific Unsold
Receivables or Unsold Related Security, if any, which are identified
by
16
such Obligor by reference to the applicable Receivables Contract or
the applicable Unsold Receivables Contract, as the case may be (or
otherwise identified by such Obligor in a writing delivered with
such payment) as the Receivables or Related Security, on the one
hand, or the Unsold Receivables or Unsold Related Security, on the
other hand, with respect to which such payments should be applied;
PROVIDED THAT where any Obligor makes payment and identifies the
applicable Receivables Contracts or the applicable Unsold
Receivables Contracts, as the case may be, of a group of two or more
Receivables or Related Security or of a group of two or more Unsold
Receivables or Unsold Related Security, as applicable, to which such
payment shall be applied and such payment is in an amount less than
the aggregate Outstanding Balance of such Receivables or Related
Security or is in an amount less than the aggregate the outstanding
balance of such Unsold Receivables or Unsold Related Security, as
the case may be, such payment shall be applied pro rata to all such
Receivables or Related Security, on the one hand, or Unsold
Receivables or Unsold Related Security, on the other hand, as the
case may be. In the absence of such identification by an Obligor,
all payments made by an Obligor under a Contract generated by an
office of a Company in a District that is not a Designated District
shall be conclusively presumed to be payments on account of
Transferred Receivables, and all payments made by an Obligor under a
Contract generated by an office of a Company in a Designated
District shall be conclusively presumed to be payments on account of
Unsold Receivables.
(c) In order to effect more fully the provisions of this Agreement,
each of the parties hereto agrees that during an Enforcement Period, it shall
not send any notices to the Obligors directing them to remit Collections of any
Transferred Receivables or Related Security other than to a Lockbox Account, the
Concentration Account or the Collection Account.
(d) Collateral Agent agrees that it shall not, at any time prior to
Enforcement, or during Enforcement prior to the later of payment in full of the
Receivables Claim and the termination of the Related Documents, exercise any
rights it may have under the Loan Documents to send any notices to Obligors (i)
claiming the Collateral Agent's interest in the Transferred Receivables or
Related Security, or (ii) directing such Obligors to make payments in any
particular manner of any amounts due under the Transferred Receivables or
Related Security; PROVIDED, HOWEVER, that the Collateral Agent may inform any
Obligor of Unsold Receivables that such Unsold Receivables have been assigned to
the Collateral Agent so long as such notices expressly state that all payments
on account of such Unsold Receivables shall continue to be made as otherwise
required pursuant to the terms of the Related Documents. Collateral Agent
further agrees that, prior to the later of payment in full of the Receivables
Claim and the termination of the Related Documents, if it receives payments
directly from any Obligor on account of an Unsold Receivable, it shall
immediately forward such payment to the Receivables Agent in order that the
Receivables Agent may determine whether such payment was, in fact, properly
allocated to such Unsold Receivable in accordance with the terms of this Section
2.3, and, if necessary pursuant to the terms hereof, reallocate such payment.
Collateral Agent and Receivables Agent agree that the collection of Unsold
Receivables pursuant to the terms of the Related Documents shall not render such
Unsold Receivables to be deemed Transferred Receivables for the purposes of
determining whether the aggregate Outstanding Balance of Transferred Receivables
is in excess of $90,000,000 under the Loan Documents or
17
for the purposes of determining availability based on Transferred Receivables
under the Related Documents.
2.4. Enforcement Actions. Each of the Lenders and the Receivables Agent
agrees to use reasonable efforts to give an Enforcement Notice to the other
prior to commencement of Enforcement (but failure to do so shall not prevent
such Person or the Collateral Agent from commencing Enforcement or affect its
rights hereunder nor create any cause of action or liability against such
Person). Subject to the foregoing, each of the parties hereto agrees that during
an Enforcement Period:
(a) Subject to any applicable restrictions in the Related Documents,
the Receivables Agent may at its option and without the prior written consent of
the Companies or the Collateral Agent take any action to (i) accelerate payment
of the Receivables Claim or any other obligations and liabilities under any of
the Related Documents and (ii) liquidate the Receivables Assets or to foreclose
or realize upon or enforce any of its rights with respect to the Receivables
Assets.
(b) Subject to any applicable restrictions in and to the terms of
the Loan Documents, and in compliance with the terms of the Collateral Agency
and Intercreditor Agreement, the Collateral Agent or any of the Lenders, may, at
its option, and without the prior written consent of any other party hereto,
take any action to accelerate payment of or require cash collateral for the
Lender Claim or any other obligation or liability arising under any of the Loan
Documents and to foreclose or realize upon or enforce any of its rights with
respect to the Lender Collateral or other collateral security, including (except
as otherwise provided in Section 2.2(e) hereof) with respect to any Receivables
Assets constituting Returned Goods that have been commingled with the Lender
Collateral, or take any other actions as they deem appropriate; PROVIDED,
HOWEVER, that the Collateral Agent shall not otherwise take any action to
foreclose or realize upon or to enforce any rights it may have with respect to
any of the Receivables Assets or the SPE Membership Collateral without the
Receivables Agent's prior written consent unless the Receivables Claim or any
other obligation or liability arising under any of the Related Documents shall
have been first paid and satisfied in full and the Related Documents have
terminated; PROVIDED, FURTHER, that the Receivables Agent shall not otherwise
take any action to foreclose or realize any rights it may have with respect to
any of the Lender Collateral without the prior written consent of the Collateral
Agent (who shall be directed in this case by the Requisite Parties (as defined
in the Collateral Agency and Intercreditor Agreement) unless the Lender Claim
and each other obligation or liability arising under any of the Loan Documents
shall have been the first paid and satisfied in full and the Loan Documents have
terminated.
2.5. Access to and Use of Lender Collateral and Receivables Assets. The
Receivables Agent (on behalf of itself and the Purchaser), the Collateral Agent
(on behalf of itself and the Lenders), the Companies and the SPE hereby agree
that the Receivables Agent (on behalf of itself and the Purchaser) and the
Collateral Agent (on behalf of itself and the Lenders) shall have the following
rights of access to and use of the Receivables Assets and Lender Collateral
respectively (in addition to other rights set forth in the Loan Documents or
Related Documents):
(a) Subject to any applicable restrictions in the Related Documents,
the Purchaser and the Receivables Agent (or their agents, employees or
designees) may enter one or
18
more premises of the Companies or the SPE, whether leased or owned, at any time
during reasonable business hours, without force or process of law and without
obligation to pay rent or compensation to the Companies, the SPE, the Collateral
Agent or any Lender, whether before, during or after an Enforcement Period, and
may exercise any license rights and have access to and use of all Records
located thereon and any of the Company's computer hardware and software for the
purpose of obtaining information about and servicing the Receivables or any
other property to which such access and use are granted under the Related
Documents, in each case PROVIDED THAT such use is for the purpose of exercising
or enforcing the Receivables Agent's rights, on behalf of the Purchaser, with
respect to the Receivables Assets.
(b) Subject to any applicable restrictions in the Loan Documents,
the Collateral Agent (or their agents, employees or designees) may enter one or
more premises of the Companies or the SPE, whether leased or owned, at any time
during reasonable business hours, without force or process of law and without
obligation to pay rent or compensation to Castle, the Servicers, the Companies,
the SPE, the Receivables Agent, or the Purchaser, whether before, during or
after an Enforcement Period, and may have access to and use of all Unsold
Receivables Records located thereon and use of any other property to which such
access and use are granted under the Loan Documents, in each case PROVIDED THAT
such use is for the purpose of exercising or enforcing the Collateral Agent's
rights, on behalf of the Lenders, with respect to the Lender Collateral.
2.6. No Amendment of Limited Liability Company Agreement of the SPE.So
long as any Receivables Claim is outstanding, neither Collateral Agent nor any
Lender shall or shall seek to amend, alter, change or repeal any provision of
the Limited Liability Company Agreement of the SPE (including Schedule A
thereof) in effect as of the date hereof and as attached hereto as Exhibit A.
2.7. Agency for Perfection. The Receivables Agent and Collateral Agent
hereby appoint each other as agent for purposes of perfecting by possession
their respective security interests and ownership interests and Liens on the
Lender Collateral and Receivables Assets described hereunder. In the event that
the Receivables Agent obtains possession of any of the Lender Collateral Funds
or proceeds of a Disposition of Lender Collateral or instruments or other
property which could constitute Lender Collateral, the Receivables Agent shall
notify the Collateral Agent of such fact, shall hold such Lender Collateral in
trust and shall deliver such Lender Collateral Funds, proceeds and instruments
to the Collateral Agent upon request, PROVIDED that such property so received or
held by the Receivables Agent constitutes Lender Collateral. In the event that
the Collateral Agent obtains possession of any of the Receivables Proceeds or
instruments or other property which could constitute Receivables Assets, the
Collateral Agent shall upon direction from the Lenders that are Requisite
Parties (as defined in the Collateral Agency and Intercreditor Agreement) notify
the Receivables Agent of such fact, shall hold such Receivables Assets in trust
and shall deliver such Receivables Proceeds and instruments to the Receivables
Agent upon request. Promptly upon receipt of such Receivables Proceeds or such
instruments, the Collateral Agent shall notify each of the Lenders of such
receipt and the amount of nature of such Receivables Proceeds or instruments,
and the Lenders that are Requisite Parties agree to promptly direct the
Collateral Agent to make such delivery, PROVIDED that such property so received
or held by the Collateral Agent constitutes Receivables Assets.
19
2.8. UCC Notices. In the event that the Purchaser or the Receivables Agent
shall be required by the UCC or any other applicable law to give notice to the
Collateral Agent of any intended disposition of any Receivables Assets, such
notice shall be given in accordance with Section 3.1 hereof and ten (10) days'
notice shall be deemed to be commercially reasonable.
2.9. Independent Credit Investigations. None of the Purchaser, the
Receivables Agent, the Collateral Agent, any of the Lenders or any of their
respective directors, officers, agents or employees shall be responsible to the
other or to any other Person for the solvency, financial condition or ability of
the Companies, the SPE or Castle or its Subsidiaries to repay the Receivables
Claim or the Lender Claim, or for the worth of the Receivables Assets or the
Lender Collateral, or for statements of the Companies, the SPE or Castle or its
Subsidiaries, oral or written, or for the validity, sufficiency or
enforceability of the Receivables Claim, the Lender Claim, the Related
Documents, the Loan Documents, the Receivables Agent's interest in the
Receivables Assets or the Collateral Agent's interest in the Lender Collateral.
The Lenders and the Purchaser have entered into their respective agreements with
Castle and its applicable Subsidiaries based upon their own independent
investigations. None of the Purchaser, the Receivables Agent, Collateral Agent
or any of the Lenders makes any warranty or representation to the other nor does
it rely upon any representation of the other with respect to matters identified
or referred to in this Section 2.9.
2.10. Limitation on Liability of Parties to Each Other. Except as provided
in this Agreement, no party shall have any liability to any other party except
for liability arising from the gross negligence or willful misconduct of such
party or its representatives.
2.11. Amendments to Financing Arrangements or to this Agreement. Each of
the Companies shall, and each of the Lenders agrees to use reasonable efforts to
give, concurrently with any written amendment or modification in the Loan
Documents to which it is a party and concurrently with the execution and
delivery of any Additional Future Debt Document (as defined in the Collateral
Agency and Intercreditor Agreement) to which it is a party, prompt notice to the
Receivables Agent of the same, and the Receivables Agent agrees to use
reasonable efforts to, concurrently with any written amendment or modification
in the Related Documents, notify the Lenders of the same; PROVIDED, HOWEVER,
that the failure to do so shall not create a cause of action against any party
failing to give such notice or create any claim or right on behalf of any third
party or affect any such amendment or modification. Receivables Agent, each of
the Lenders and the Collateral Agent shall, upon reasonable request of the
other, provide copies of all such modifications, amendments and Additional
Future Debt Documents to which it is party and copies of all other documentation
in its possession relevant to the Receivables Assets or the Lender Collateral.
Notwithstanding any confidentiality provisions in the Related Documents and the
Loan Documents, the Companies, Receivables Agent and the Collateral Agent hereby
agree that the foregoing sharing of documentations relevant to the Receivables
Assets or the Lender Collateral shall not create a cause of action against any
party hereto. All modifications or amendments of this Agreement must be in
writing and duly executed by an authorized officer of each party hereto to be
binding and enforceable.
2.12. Marshalling of Assets. Nothing in this Agreement will be deemed to
require the Receivables Agent (i) to proceed against certain property securing
the Receivables Claim (or any other obligation or liability under the Related
Documents) prior to proceeding against other
20
property securing such Claim or obligations or liabilities or against certain
persons guaranteeing any such obligations or (ii) to marshal the Receivables
Assets upon the enforcement of the Receivables Agent's remedies under the
Related Documents. Nothing in this Agreement will be deemed to require the
Collateral Agent (i) to proceed against certain property securing the Lender
Claim (or any other obligation or liability under the Loan Documents) prior to
proceeding against other property securing such Claim or obligations or
liabilities or against certain persons guaranteeing any such obligations or (ii)
to marshal the Lender Collateral upon the enforcement of the Collateral Agent's
remedies under the Loan Documents.
2.13. Access to Books and Records. The Collateral Agent hereby
acknowledges that the Receivables Agent or its representatives or invitees,
subject to any applicable restrictions in the Related Documents, may enter upon
any properties of any Company that the Collateral Agent (on behalf of the
Lenders) has a Lender Interest at any time to inspect, remove or otherwise deal
with any books and records or exercise any access, license or other use rights
granted under the Related Documents related to the Receivable Assets without
interference by the Collateral Agent or liability of the Receivables Agent to
the Collateral Agent.
2.14. Relative Rights. The Collateral Agent and the Lenders shall be
entitled to rely on the power and authority of the Receivables Agent to act on
behalf of its principals to the extent the provisions hereof have the
Receivables Agent so act, and the Receivables Agent and the Purchaser shall be
entitled to rely on the power and authority of Collateral Agent to act on behalf
of its principals to the extent the provisions hereof have the Collateral Agent
so act.
2.15. Effect Upon Loan Documents and Related Documents. By executing this
Agreement, the Companies and the SPE agree to be bound by the provisions hereof
(i) as they relate to the relative rights of the Collateral Agent (on behalf of
itself and the Lenders) with respect to the property of the Companies and (ii)
as they relate to the relative rights of the Receivables Agent and the Purchaser
as creditors of the SPE. Each Company acknowledges that the provisions of this
Agreement shall not give such Company any substantive rights as against the
Collateral Agent or the Lenders and that nothing in this Agreement shall amend,
modify, change or supersede the terms of the Loan Documents as between the
parties thereto (except to the extent that this Agreement identifies collateral
granted by the Companies to the Receivables Agent, on the one hand, and the
Collateral Agent for the benefit of the Lenders, on the other hand). The
Receivables Agent and the SPE acknowledge that the conditions of Sections
4.04(q) of the Sale Agreement and subsections (B) and (C) of clause (m) of the
definition of the term "Permitted Originator Encumbrance" in Annex X to the Sale
Agreement have been satisfied. The SPE acknowledges that the provisions of this
Agreement shall not give the SPE any substantive rights as against the
Receivables Agent or any of the Purchaser and that nothing in this Agreement
shall amend, modify, change or supersede the terms of the Related Documents as
among the parties thereto. Each Company acknowledges that the provisions of this
Agreement shall not give any Company any substantive rights as against the
Receivables Agent or any of the Purchaser and that nothing in this Agreement
shall amend, modify, change or supersede the terms of the Related Documents as
among the parties thereto. Each of the Companies and the SPE further
acknowledges that the provisions of this Agreement shall not give any such party
any substantive rights as against the other and that nothing in this Agreement
shall amend, modify, change or supersede the terms of the Related Documents as
between the Companies and the SPE. Notwithstanding the foregoing, each of the
Receivables Agent and the Collateral Agent
21
agrees, that, as between themselves and their respective constituents, to the
extent the terms and provisions of the Loan Documents or the Related Documents
are inconsistent with the terms and provisions of this Agreement, the terms and
provisions of this Agreement shall control.
2.16. Nature of the Lender Claim and Modification of Loan Documents. Each
of the SPE and the Receivables Agent, on behalf of the Purchaser, acknowledges
that the Lender Claim and other obligations and liabilities owing under the Loan
Documents are or may be, in part, revolving in nature and that the amount of
such revolving indebtedness which may be outstanding at any time or from time to
time may be increased or reduced and subsequently reborrowed. The terms of the
Loan Documents may be modified, extended or amended from time to time, and the
amount thereof may be increased or reduced, all without notice to or consent by
any of the SPE, the Purchaser or the Receivables Agent and without affecting the
provisions of this Agreement. Without in any way limiting the foregoing, each of
the SPE, the Purchaser and the Receivables Agent hereby agrees that the maximum
amount of Lender Claim and other obligations and liabilities owing under the
Loan Documents may be increased at any time and from time to time to any amount.
2.17. Nature of the Receivables Claim and Modification of Related
Documents. The Companies and the Collateral Agent acknowledge that the
Receivables Claim and other obligations and liabilities owing under the Related
Documents are, in part, revolving in nature and that the amount of such
revolving obligations which may be outstanding at any time or from time to time
may be increased or reduced and subsequently reincurred. The terms of the
Related Documents may be modified, extended or amended from time to time, and
the amount thereof may be increased or reduced, all without notice to or consent
by the Companies or the Collateral Agent and without affecting the provisions of
this Agreement. Without in any way limiting the foregoing, each of the Companies
and the Collateral Agent hereby agrees that the maximum amount of Receivables
Claim and other obligations and liabilities owing under the Related Documents
may be increased at any time and from time to time to any amount. The parties
hereto acknowledge that, under the Loan Documents, the Transferred Receivables
having the aggregate Outstanding Balance in excess of $90,000,000 are subject to
a Lien in favor of the Collateral Agent, and, until the Lender Claim has been
paid and satisfied in full in cash and the Loan Documents are terminated, the
Receivables Agent agrees not to amend by entering into one or more other
agreements the Purchase Agreement to provide for the Maximum Purchase Limit (as
defined therein) to exceed $65,000,000.
2.18. Further Assurances. Each of the parties agrees to take such actions
as may be reasonably requested by any other party, whether before, during or
after an Enforcement Period, in order to effect the rules of distribution and
allocation set forth above in this Article 2 and to otherwise effectuate the
agreements made in this Article.
2.19. Filing. To and until the date which is one year and one day after
the later of the date the Receivables Claim shall have been paid in full and the
Related Documents have been terminated, each of the Collateral Agent (on behalf
of itself and the Lenders), Castle and the Companies agree that it shall not
consent to or vote for the filing of any petition in bankruptcy for the SPE or
the Independent Member.
22
2.20. True Sale. The Collateral Agent, on behalf of the Lenders, agrees
that it will not seek to challenge the characterization of the transfers of
Receivables Assets pursuant to the Sale Agreement as being true sales or other
outright conveyances thereof, and will not seek to substantively consolidate the
SPE or the Independent Member with any of the Companies or any Companies' other
Subsidiaries.
2.21. Pledge of SPE Membership Collateral. The Receivables Agent hereby
agrees that, notwithstanding anything to the contrary contained in the Related
Documents, the Companies may pledge to the Collateral Agent all of their right,
title and interest in and to their membership interests in the SPE, together
with all rights of the Companies to receive any payment of money or other
distribution and other rights relating thereto; PROVIDED, HOWEVER, that the
Receivables Agent is furnished for review not more than five (5) business days
prior to the execution of any pledge agreement relating to such pledge, a copy
of such pledge agreement setting forth provisions substantially similar to those
attached hereto as Exhibit B; PROVIDED, FURTHER, that Collateral Agent shall not
obtain, and Castle and the Independent Member hereby agree that they shall not
create, incur, assume or suffer to exist, any pledge, lien, security interest,
hypothecation, assignment, charge or encumbrance of any nature upon or with
respect to (a) the Independent Member's membership interest or other equity
interest in the SPE (the "INDEPENDENT MEMBER'S SPE INTEREST") and (b) Castle's
equity interest in the Independent Member (the "CASTLE'S INDEPENDENT MEMBER
INTEREST"), in each case now owned or hereafter acquired, and the Collateral
Agent, Castle and the Independent Member agree that they shall not file under
the Uniform Commercial Code of any jurisdiction a financing statement which
names Castle or the Independent Member, as applicable, as a debtor, or execute
any security agreement authorizing any secured party thereunder to file such
financing statement with respect to the Independent Member's SPE Interest or
Castle's Independent Member Interest.
ARTICLE 3. MISCELLANEOUS
3.1. Notices. All notices and other communications provided for hereunder
shall, unless otherwise stated herein, be in writing (including
telecommunications and communication by facsimile copy) and shall be deemed to
have been validly served, given or delivered (a) upon the earlier of actual
receipt and three Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by facsimile (with such facsimile
promptly confirmed by delivery of a copy by personal delivery or United States
Mail as otherwise provided in this Section 3.1), (c) one Business Day after
deposit with a reputable overnight courier with all charges prepaid or (d) when
delivered, if hand-delivered by messenger, all of which shall be addressed to
the party to be notified and sent to the address or facsimile number set forth
on Schedule 3.1 attached hereto or to such other address (or facsimile number)
as may be substituted by notice given as herein provided.
3.2. Agreement Absolute. Each of the Receivables Agent and the Purchaser
shall be deemed to have entered into the Related Documents in express reliance
upon this Agreement and the Lenders and the Collateral Agent shall be deemed to
have entered into the Loan Documents in express reliance upon this Agreement.
This Agreement shall be and remain absolute and unconditional under any and all
circumstances, and no acts or omissions on the part of any party to this
Agreement shall affect or impair the agreement of any party to this Agreement,
unless
23
otherwise agreed to in writing by all of the parties hereto. This Agreement
shall be applicable both before and after the filing of any petition by or
against Castle or any of its Subsidiaries or the SPE under the Bankruptcy Code
and all references herein to Castle or any of its Subsidiaries or the SPE shall
be deemed to apply to a debtor-in-possession for such party and all allocations
of payments between the Collateral Agent, the Lenders, the Purchaser and the
Receivables Agent shall, subject to any court order to the contrary, continue to
be made after the filing of such petition on the same basis that the payments
were to be applied prior to the date of the petition.
3.3. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and its respective successors
and assigns. The successors and assigns for Castle and its Subsidiaries,
Companies and the SPE shall include a debtor-in-possession or trustee of or for
such party. The successors and assigns for the Lenders, the Collateral Agent,
the Purchaser, or the Receivables Agent, as the case may be, shall include any
successor Lender or Purchaser under the Loan Documents or the Related Documents,
as the case may be, and any Collateral Agent or the Receivables Agent appointed
under the terms of the Collateral Agency and Intercreditor Agreement or the
Purchase Agreement, as applicable. Each of the Collateral Agent and the
Receivables Agent agrees not to transfer any interest it may have in the Loan
Documents or the Related Documents, as applicable, unless such transferee has
been notified of the existence of this Agreement and has agreed to be bound
hereby. In the event that the financing provided under the Reimbursement
Agreements or the BofA Letters of Credit shall be refinanced, replaced or
refunded, Castle, the Companies, the SPE, the Purchaser, BofA and the
Receivables Agent hereby agree, at the request of the Receivables Agent or
lenders under the facility that so refinances, replaces or refunds the financing
under the Reimbursement Agreements or the BofA Letters of Credit, to execute and
deliver a new intercreditor agreement with such agent and/or lenders on
substantially the same terms as herein provided. In the event that the financing
provided under the Related Documents shall be refinanced, replaced or refunded,
the Collateral Agent hereby agrees, at the request of the agent or purchasers
under the facility or other agreements that so refinance, replace or refund the
financing under the Related Documents, to execute and deliver a new
intercreditor agreement with such agent and/or purchaser on substantially the
same terms as herein provided. In the event that the financing provided under
the Note Agreements shall be refinanced, replaced or refunded, Castle, the
Companies, the SPE, the Purchaser, the Receivables Agent and the Noteholders
hereby agree that, at the request of the noteholders under the facility or other
agreements that so refinance, replace or refund the financing under the Note
Agreements, to execute and deliver a new intercreditor agreement with such
noteholders on substantially the same terms as herein provided. In the event
that the financing provided under the Trade Acceptance Purchase Agreement shall
be refinanced, replaced or refunded, Castle, the Companies, the SPE, the
Purchaser, Northern Trust and the Receivables Agent hereby agree, at the request
of the Receivables Agent or lenders under the facility or other agreements that
so refinance, replace or refund the financing under the Trade Acceptance
Purchase Agreement, to execute and deliver a new intercreditor agreement with
such agent and/or lenders on substantially the same terms as herein provided. In
the event that any financing provided under any Additional Future Debt Document
(as defined in the Collateral Agency and Intercreditor Agreement) shall be
refinanced, replaced or refunded, Castle, the Companies, the SPE, the Purchaser,
Northern Trust, Noteholders, BofA and the Receivables Agent hereby agree, at the
request of the Receivables Agent or lenders under the facility or other
agreements that so refinance, replace or refund the financing under such
Additional Future Debt Document, to execute and deliver a new
24
intercreditor agreement with such agent and/or lenders on substantially the
same terms as herein provided. The Collateral Agent represents that it is
authorized to execute this Agreement at the direction of the Lenders and their
respective successors and assigns, and the Receivables Agent represents that it
is authorized to execute this Agreement on behalf of the Purchaser and its
successors and assigns.
3.4. Beneficiaries. The terms and provisions of this Agreement shall be
for the sole benefit of the parties hereto and their respective successors and
assigns, and no other Person shall have any right, benefit, or priority by
reason of this Agreement.
3.5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES) OF THE
STATE OF NEW YORK.
3.6. Waiver of Jury Trial. Each of the parties hereto hereby waives its
respective rights to a jury trial of any action or proceeding arising out of or
relating to this Agreement. This waiver is irrevocable and may not be modified
either orally or in writing (other than by a mutual written waiver specifically
referencing this Section 3.6 executed by all of the parties hereto).
3.7. Section Titles. The article and section headings contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
3.8. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
25
3.9. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement.
3.10. Additional Future Debt. Castle hereby agrees to cause each holder of
Additional Future Debt (as defined in the Collateral Agency and Intercreditor
Agreement) to become a party hereto by executing and delivering a Joinder
Agreement. Each Company, the Receivables Agent, the SPE, the Independent Member,
the Collateral Agent and each then-existing Lender agrees to execute and deliver
to each other party hereto a Joinder Agreement. Each of the undersigned agrees
that, effective from and after the date of the execution and delivery of each
Joinder Agreement such holder of such Additional Future Debt shall be, and shall
be deemed for all purposes to be, a party hereto with the same force and effect,
and subject to the same agreements, representations, covenants, guarantees,
indemnities, liabilities and obligations, as if such holder were, effective as
of such date, an original signatory to this Agreement.
3.11. Collateral Agent. Any and all rights granted to the Collateral Agent
under this Agreement are to be held and exercised by the Collateral Agent as
security agent pursuant to the provisions of the Collateral Agency and
Intercreditor Agreement. Any and all rights granted to the Collateral Agent
under this Agreement are granted subject to its rights and obligations in favor
of the Lenders set forth in the Collateral Agency and Intercreditor Agreement
and subject to the indemnities of the Lenders in favor of the Collateral Agent
contained therein. Nothing in this Agreement expressed or implied is intended or
shall be construed to give to any Person other than the Receivables Agent,
Purchasers under the Purchase Agreement, the Companies, the Independent Member,
the Lenders and the Collateral Agent any legal or equitable right, remedy, or
claim under or in respect of this Agreement or any covenant, condition, or
provision herein contained; and all such covenants, conditions and provisions
are and shall be held to be for the sole and exclusive benefit of the
Receivables Agent, Purchasers under the Purchase Agreement, the Companies, the
Independent Member, the Lenders and the Collateral Agent. Notwithstanding
anything herein to the contrary, the Collateral Agent shall exercise its rights
and powers hereunder subject to the direction and indemnity of the Lenders as
provided in the Collateral Agency and Intercreditor Agreement, and each of the
Lenders, by execution and delivery of this Agreement, hereby directs the
Collateral Agent to take all actions required of it hereunder and, if requested
by the Collateral Agent, agrees to reaffirm such direction from time to time.
[SIGNATURE PAGES FOLLOW]
26
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
GENERAL ELECTRIC CAPITAL CORPORATION,
AS RECEIVABLES AGENT
By /s/ John L. Dale
---------------------------------
Name: John L. Dale
Title: Its Duly Authorized Signatory
U.S. BANK NATIONAL ASSOCIATION, AS COLLATERAL
AGENT
By: /s/ Maryanne Y. Dufresne
-----------------------------------------
Name: Maryanne Y. Dufresne
Title: Assistant Vice President
Address: 225 Asylum Street, 23rd Floor
Hartford, CT 06103
Attention: Maryanne Y. Dufresne
Facsimile: (860) 241-6897
[Signature Page to the Intercreditor Agreement]
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Joseph P. Young
------------------------------
Name: Joseph P. Young
Title: Credit Officer
Fixed Income Securities
[Signature Page to the Intercreditor Agreement]
UNITED OF OMAHA LIFE INSURANCE COMPANY
By: /s/ Edwin H. Garrison, Jr.
----------------------------------
Name: Edwin H. Garrison, Jr.
Title: First Vice President
MUTUAL OF OMAHA LIFE INSURANCE
COMPANY
By: /s/ Edwin H. Garrison, Jr.
----------------------------------
Name: Edwin H. Garrison, Jr.
Title: First Vice President
[Signature Page to the Intercreditor Agreement]
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
By: /s/ David A. Barras
------------------------------------
Name: David A. Barras
Title: Its Authorized Representative
[Signature Page to the Intercreditor Agreement]
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Mark A. Ahmed
-------------------------------
Name: Mark A. Ahmed
Title: Managing Director
[Signature Page to the Intercreditor Agreement]
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Bill Schmidt
---------------------------
Name: Bill Schmidt
Title: Authorized Signatory
By: /s/ Jerry D. Zinkula
---------------------------
Name: Jerry D. Zinkula
Title: Authorized Signatory
[Signature Page to the Intercreditor Agreement]
BANK OF AMERICA, N.A.
By: /s/ Michael G. Staunton
----------------------------
Name: Michael G. Staunton
Title: Senior Vice President
[Signature Page to the Intercreditor Agreement]
THE NORTHERN TRUST COMPANY
By: /s/ Greta Satek
------------------------
Name: Greta Satek
Title: Vice President
[Signature Page to the Intercreditor Agreement]
A. M. CASTLE & CO.
By: /s/ Jerry M. Aufox
-----------------------
Name: Jerry M. Aufox
Title: Secretary
CASTLE SPFD, LLC
By: /s/ Jerry M. Aufox
-----------------------
Name: Jerry M. Aufox
Title: Secretary
CASTLE IND MGR, INC.
By: /s/ Jerry M. Aufox
-----------------------
Name: Jerry M. Aufox
Title: Secretary
TOTAL PLASTICS, INC.
By: /s/ Jerry M. Aufox
-----------------------
Name: Jerry M. Aufox
Title: Secretary
OLIVER STEEL PLATE CO.
By: /s/ Jerry M. Aufox
-----------------------
Name: Jerry M. Aufox
Title: Secretary
KEYSTONE TUBE COMPANY, LLC
By: /s/ Jerry M. Aufox
-----------------------
Name: Jerry M. Aufox
Title: Secretary
[Signature Page to the Intercreditor Agreement]