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EXHIBIT 10.50
INTERCREDITOR AGREEMENT
This Intercreditor Agreement ("Agreement") is entered into as
of January 5, 1996, by and among The First National Bank of Boston ("Bank") and
each of the following noteholders: John Hancock Mutual Life Insurance Company;
Barnett & Co.; Massachusetts Mutual Life Insurance Company, Mass Mutual/Carlson
CBO, N.V.; and New York Life Insurance Company (collectively, "Noteholders"),
and is made with reference to the following facts:
RECITALS
A. Kerr Group, Inc., a Delaware corporation ("Borrower"), and
Bank entered into a letter agreement dated as of February 9, 1995 (the
"Original Loan Agreement"), pursuant to which Bank agreed to extend certain
financial accommodations to Borrower, including a line of credit and letter of
credit subfacility. Pursuant to the Original Loan Agreement, Borrower executed
a Commercial Promissory Note dated as of February 1, 1995 (the "Original Note")
in favor of Bank in the maximum principal amount of $10,000,000. As of the
date hereof, the principal amount outstanding under the Original Note is
$6,500,000.
B. Bank, at Borrower's request, has agreed on the terms and
conditions set forth in the Amended and Restated Loan and Security Agreement of
even date herewith (the "Restated Loan Agreement") to amend and restate the
Original Loan Agreement and to provide an amended and restated $10,000,000 loan
to Borrower.
C. Pursuant to the terms of the Restated Loan Agreement, Borrower
is granting a security interest to Bank in certain of Borrower's property to
secure the prompt payment and performance of certain obligations of Borrower.
D. Borrower has entered into a Note Agreement dated as of
September 15, 1993, as amended by the Amendment Agreement of even date herewith
(as amended, the "Note Agreement") with each of the Noteholders (or its
predecessors in interest) pursuant to which Borrower issued to the Noteholders
9.45% Series A Senior Notes due September 15, 2003 in the principal amount of
$41,000,000 (the "Series A Notes") and 8.99% Series B Senior Notes due
September 15, 1999 in the principal amount of $9,000,000 (the "Series B Notes";
Series A Notes and Series B Notes being referred to collectively as "Noteholder
Notes").
E. Bank requires, as a condition precedent to Bank's extension of
financial accommodations to Borrower under the Restated Loan Documents, that
each of the Noteholders shall have entered into this Agreement with Bank.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which Bank and each of the Noteholders hereby
acknowledge, the parties hereby agree as follows:
1. Definitions and Rules of Construction.
(a) Definitions. The following terms, as used in
this Agreement, shall have the following meanings:
"Additional Bank Obligations" means any and all Bank
Obligations other than Original Bank Obligations.
"Agreement" is as defined in the preamble to this
agreement.
"Bank" is as defined in the preamble to this
Agreement.
"Bank Loan" means any loan made or to be made to
Borrower pursuant to section 3 of the Restated Loan Agreement.
"Bank Loan Documents" means, collectively, all
Original Loan Documents and all Restated Loan Documents.
"Bank Obligations" means any and all presently
existing or hereafter arising indebtedness, claims, debts, attorneys'
fees and other professional fees, costs of enforcement, liabilities,
and obligations of Borrower owing to Bank under any Bank Loan
Documents, whether direct or indirect, whether contingent or of any
other nature, character, or description (including all interest and
other amounts accruing after the commencement of any Bankruptcy Case,
and all interest and other amounts that, but for the provisions of the
Bankruptcy Code, would have accrued and become due or otherwise would
have been allowed), and any refinancings, renewals, refundings, or
extensions of any such amounts.
"Bankruptcy Case" means any proceeding commenced by
or against Borrower, under any provision of the Bankruptcy Code or any
other federal or state bankruptcy or insolvency law, including
assignments for the benefit of creditors, formal or informal
moratoria, compositions, extensions generally with its creditors, or
proceedings seeking reorganization, arrangement, or other similar
relief, and all converted or succeeding cases in respect thereof.
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"Bankruptcy Code" means the United States Bankruptcy
Code (11 U.S.C. Section 101, et seq.).
"Borrower" is as defined in the preamble to this
Agreement.
"Change of Control" means the merger or consolidation
of Borrower with or into another corporation and, after such merger or
consolidation is consummated, either (a) Borrower is not the surviving
corporation, or (b) if Borrower is the surviving corporation, then
Borrower is a wholly-owned subsidiary of another corporation and the
stockholders of Borrower, immediately before such merger or
consolidation is consummated, do not own at least 80% of the voting
capital stock of Borrower's parent corporation, immediately after such
merger or consolidation is consummated.
"Collateral" means all of the real and personal
property of Borrower in which Bank has been granted a security
interest pursuant to the Bank Loan Documents, including the following
real and personal property located at 500 New Holland Avenue,
Lancaster, Pennsylvania or Johnny Mitchell Road, Ahoskie, North
Carolina:
(a) all equipment, as such term is defined in the
UCC, now or hereafter owned or acquired by Borrower, in the
form of injection molding machines and related mold frames,
lining machines and cut-and-fold machines, and any and all
appurtenances and additions thereto and substitutions or
replacements of any of the foregoing, together with all
attachments, components, parts, equipment, and accessories
installed on or affixed to any of the foregoing;
(b) all fixtures, as such term is defined in the
UCC, now or hereafter owned or acquired by Borrower, in the
form of injection molding machines and related mold frames,
lining machines and cut-and-fold machines, and any and all
appurtenances and additions thereto and substitutions or
replacements of any of the foregoing, now or hereafter
attached or affixed to or constituting a part of, or located
in or upon, any of said real property;
(c) all books and records (including computer
programs, printouts, and other computer materials and records)
pertaining to any of the foregoing; and
(d) to the extent not otherwise included, all
proceeds, as such term is defined in the UCC, of the foregoing
in any form, and, in any event, including,
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without limitation: (i) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to Borrower from time
to time with respect to any of the foregoing; (ii) any and all
payments (in any form whatsoever) made or due and payable to
Borrower from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or
any part of the foregoing by any governmental authority (or
any person acting under color of any governmental authority);
(iii) any claims of Borrower against third parties for loss or
damage to, or destruction of, or otherwise relating to any of
the foregoing; (iv) any recoveries by Borrower against third
parties with respect to any litigation or dispute concerning
any of the foregoing; (v) all accessions to, substitutions and
replacements for, and rents, profits and products of, each of
the foregoing; and (vi) any and all other amounts from time to
time paid or payable under or in connection with any of the
foregoing, upon disposition or otherwise.
"Creditors' Documents" means, collectively, all Bank
Loan Documents and Noteholder Agreements.
"Creditors' Obligations" means, collectively, all
Bank Obligations and all Noteholder Obligations.
"Maturity Date" means the earlier of: (a) April 15,
1996, and (b) the date on which a sale of all or substantially all of
the assets of Borrower or a Change of Control has occurred.
"Note Agreement" is as defined in Recital D to this
Agreement.
"Noteholder Agreements" means, collectively, the Note
Agreement, all Noteholder Notes and all related documents executed
concurrently therewith or pursuant thereto.
"Noteholder Notes" is as defined in Recital D to this
Agreement.
"Noteholder Obligations" means any and all presently
existing or hereafter arising indebtedness, claims, debts,
liabilities, and obligations of Borrower owing to any of the
Noteholders under the Noteholder Agreements (including amounts arising
under sections 9.1 and 9.2 of the Note Agreement), whether direct or
indirect, whether contingent or of any other nature, character, or
description (including all interest and other amounts accruing after
commencement of any Bankruptcy Case, and all
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interest and other amounts that, but for the provisions of the
Bankruptcy Code, would have accrued and become due or otherwise would
have been allowed), and any refinancings, renewals, refundings, or
extensions of any such amounts.
"Noteholders" is as defined in the preamble to this
Agreement.
"Original Bank Obligations" means Borrower's
indebtedness to Bank in the principal amount of $6,500,000, as
originally evidenced by the Original Note and the other Original Loan
Documents, and interest thereon (including interest at the Default
Rate (as defined in section 1 of the Restated Loan Agreement)).
"Original Loan Agreement" is as defined in Recital A
of this Agreement.
"Original Loan Documents" means, collectively, the
Original Loan Agreement, Original Note and all related documents
executed concurrently therewith or pursuant thereto.
"Original Note" is as defined in Recital A to this
Agreement.
"Restated Loan Agreement" is as defined in Recital B
to this Agreement.
"Restated Loan Documents" means, collectively, the
Restated Loan Agreement, the Restated Note and all related documents
to be executed concurrently therewith or pursuant thereto.
"Restated Note" means that certain Amended and
Restated Commercial Promissory Note of even date herewith, executed by
Borrower in favor of Bank pursuant to the Restated Loan Agreement and
in the principal amount of $10,000,000.
"Series A Notes" is as defined in Recital D of this
Agreement.
"Series B Notes" is as defined in Recital D of this
Agreement.
"UCC" means the Uniform Commercial Code as adopted in
the Commonwealth of Massachusetts, or in such other jurisdiction as
governs the perfection of the liens and security interests in the
Collateral for the purposes of the provisions hereof relating to such
perfection or effect of perfection.
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(b) Rules of Construction. For purposes of this
Agreement, the following rules of construction shall apply, unless specifically
indicated to the contrary: (i) wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include
the singular and the plural, and pronouns stated in the masculine, feminine or
neuter gender shall include the masculine, the feminine and the neuter; (ii)
the term "or" is not exclusive; (iii) the term "including" (or any form
thereof) shall not be limiting or exclusive; (iv) all references to statutes
and related regulations shall include any amendments of same and any successor
statutes and regulations; (v) all references to any instruments or agreements,
including references to any of the Creditors' Documents, shall include any and
all modifications or amendments thereto and any and all extensions or renewals
thereof; (vi) the words "herein," "hereof" and "hereunder" or other words of
similar import refer to this Agreement, including the exhibits and schedules
thereto, as the same may from time to time be amended, modified or
supplemented, and not to any particular section, subsection or clause contained
in this Agreement; and (vii) the words "section" and "paragraph" refer to
sections and paragraphs of this Agreement.
2. Consent to Collateralization of Additional Bank
Obligations. Each of the Noteholders (a) consents to Borrower's pledge of the
Collateral to Bank to secure Borrower's performance of the Additional Bank
Obligations notwithstanding Section 10.2 of the Note Agreement or any other
provision of the Noteholder Agreements prohibiting or otherwise limiting any
such pledge of the Collateral by Borrower, and (b) waives any default or event
of default under the Noteholder Agreements solely arising out of or related to
such pledge of the Collateral to Bank.
3. Nonavoidability and Perfection. Each of the
Noteholders agrees that it will not directly or indirectly take any action to
contest or challenge the validity, legality, perfection, priority,
avoidability, or enforceability of the Bank's Lien on and security interests in
the Collateral granted pursuant to Restated Loan Documents or seek to have the
same avoided, disallowed, set aside, or otherwise invalidated in any judicial
proceeding or otherwise. In the event that any of the Noteholders (either
individually or together with others) breaches or causes to be breached the
terms of the preceding sentence, resulting (directly or indirectly) in the
avoidance or imperfection of Bank's security interest in some or all of the
Collateral, then the security interest of Bank in any such affected Collateral
shall, with respect to such breaching Noteholders, continue in full force and
effect irrespective of the avoidance or imperfection of Bank's security
interest.
4. Management of Collateral. Until the aggregate
outstanding principal amount of the Bank Loan has been reduced to
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$6,500,000 and Borrower has paid Bank any other amounts then due and payable in
respect of the Additional Bank Obligations: (a) none of the Noteholders shall
have or exercise any rights or remedies of a creditor with respect to the
Collateral; and (b) any and all proceeds of the Collateral which come into the
possession, control, or custody of any of the Noteholders and to which Bank
shall be entitled under the Restated Loan Agreement will be deemed to have been
received for the account of Bank and shall immediately be paid over to Bank.
5. Sale of Collateral. Subject to Section 10.5 of the
Note Agreement, until the aggregate outstanding principal amount of the Bank
Loan has been reduced to $6,500,000 and Borrower has paid Bank any other
amounts then due and payable in respect of the Additional Bank Obligations,
Bank shall have the sole right as the sole secured creditor in respect of the
Collateral to restrict or permit, or approve or disapprove, the sale, transfer,
release or other disposition of the Collateral. Upon payment in full of all
Additional Bank Obligations, payments on account of, or proceeds in respect of,
the Collateral shall be distributed in accordance with paragraph 6 of this
Agreement.
6. Sharing. Upon the occurrence of any of the
following: (a) an event of default under the Bank Loan Documents and the
Noteholder Agreements; or (b) the Maturity Date, any and all cash or property
thereafter received by either (x) Bank pursuant to the Restated Loan Documents
or (y) any of the Noteholders pursuant to the Noteholder Agreements, shall be
applied, first, to the Additional Bank Obligations until paid in full, and
second, on a pari passu basis to the Original Bank Obligations and the
Noteholder Obligations. In addition, any prepayment of any principal amount of
the Noteholder Notes to any of the Noteholders or any prepayment of the
Original Obligations to the Bank shall be applied, first, to the Bank
Obligations until the aggregate outstanding principal amount of the Bank Loan
has been reduced to $6,500,000 and Borrower has paid Bank any other amounts
then due and payable in respect of the Additional Bank Obligations, and second,
on a pari passu basis to the remainder of the Bank Obligations and the
Noteholder Obligations. Any and all cash or other property that should come
into the possession, control, or custody of Bank or any of the Noteholders that
is not in conformity with the terms of this paragraph will be deemed to have
been received for the account of the party entitled to such cash or property
pursuant to the terms of this Agreement and shall be immediately paid over to
such party.
7. Bankruptcy Issues. This Agreement shall continue in
full force and effect after the commencement of a Bankruptcy Case (all
references herein to Borrower being deemed to apply equally to Borrower as a
debtor in possession and to a trustee for Borrower's estate in a Bankruptcy
Case), and shall apply with full force and effect with respect to all
Collateral acquired by
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Borrower, and to all of the Creditors' Obligations incurred by Borrower,
subsequent to such commencement. The rights and priorities set forth in this
Agreement shall remain binding irrespective of the terms of any plan of
reorganization in any Bankruptcy Case or other provisions of the Bankruptcy
Code or any similar federal or state statute.
8. Notice of Default and Certain Events. Bank, on the
one hand, and each of the Noteholders, on the other hand, shall send written
notice to the other upon the occurrence of any of the following, as applicable:
(a) the declaration of any default or event of
default under any applicable Creditors' Documents, or the acceleration
of any Creditors' Obligations; or
(b) the commencement of any sale or liquidation
of, or realization upon, any of the Collateral; or
(c) the receipt of any payment on account of any
Creditors' Obligations.
Each such notice shall be sent to the appropriate
party contemporaneously with the sending of such notice to Borrower if and when
sent under the applicable Creditors' Documents. The failure of any party
hereto to give such notice shall not affect the relative security interests or
other rights or privileges of such party as provided in this Agreement or give
rise to any liability.
9. Assignment. Bank and each of the Noteholders agrees
that any assignment or transfer of an interest in any of the Bank Obligations
or Noteholder Obligations, respectively, shall be made expressly subject to the
terms of this Agreement and each assignee or transferee shall be required to
acknowledge that fact in writing prior to any such assignment or transfer.
10. Binding Effect. This Agreement shall be a continuing
agreement, shall be binding upon and shall inure to the benefit of the parties
hereto from time to time and their respective successors and assigns, shall be
irrevocable, and shall remain in full force and effect until all of the
Creditors' Obligations shall have been paid in full in cash, and the Creditors'
Documents shall have been irrevocably terminated; provided, this Agreement
shall continue to be effective, or be reinstated, as the case may be, if any
payment, or any part thereof, of any amount paid by or on behalf of Borrower
with regard to any Creditors' Obligations is rescinded or must otherwise be
restored or returned upon or as a result of any Bankruptcy Case, or for any
other reason, all as though such payments had not been made.
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11. Amendments and Waivers. Any amendment or waiver
hereunder must be evidenced by a signed writing of the party to be bound
thereby and shall only be effective in the specific instance.
12. Governing Law; Miscellaneous. This Agreement shall
be governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts. The parties agree that actions may be tried and litigated in
the state and federal courts located in any county located within the
Commonwealth of Massachusetts.
13. Headings. The headings in this Agreement are for
convenience of reference only, shall have no substantive meaning, and shall not
alter or otherwise affect the meaning of this Agreement.
14. No Third Party Beneficiaries. All of the
understandings, covenants, and agreements contained herein are solely for the
benefit of Bank, each of the Noteholders, their successors and assigns, and
future holders of the Noteholder Obligations and Bank Obligations,
respectively, and there are no other parties, including Borrower or any of its
creditors, successors, or assigns, which are intended to be benefitted, in any
way, by this Agreement.
15. No Limitations on Rights Against Third Parties.
Nothing contained in this Agreement is intended to or shall affect or limit, in
any way, the rights that Bank or any of the Noteholders have with respect to
any third parties. Bank and each of the Noteholders hereby specifically
reserve all of their respective rights against Borrower and all other third
parties.
16. Notice. Whenever it is provided herein that any
notice, demand, request, consent, approval, declaration, or other communication
shall or may be given to or served upon any of the parties hereto, or whenever
any of the parties desires to give or serve upon the other communications with
respect to this Agreement, each such notice, demand, request, consent,
approval, declaration, or other communication shall be in writing and shall be
delivered either in person, with receipt acknowledged, or by regular,
registered, or certified United States mail, postage prepaid, or by facsimile,
or by recognized overnight courier service, addressed as follows:
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(a) If to Bank:
The First National Bank Of Boston
W. Douglass Vannah
Vice President
100 Federal Street
Boston, Massachusetts 02106
Facsimile Number: (617) 434-1508
with a copy to:
Gregory A. Bray, Esq.
Murphy, Weir & Butler
2049 Century Park East
Suite 2100
Los Angeles, California 90067
Facsimile Number: (310) 788-3777
(b) If to John Hancock Mutual Life Insurance
Company or Barnett & Co.:
John Hancock Mutual Life Insurance Company
John Hancock Place
200 Clarendon Street
Boston, Massachusetts 02117
Attn: Bond and Corporate Finance Department
T-57
Facsimile Number: (617) 572-1606
(c) If to Massachusetts Mutual Life Insurance
Company:
Massachusetts Mutual Life Insurance Company
Securities Investment Division
1295 State Street
Springfield, Massachusetts 01111-0001
Attn: Richard C. Morrison, Vice President
Facsimile Number: (413) 744-6127
with a copy to:
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, Massachusetts 01111-0001
Attn: Jaqueline M. Hummel, Esq.
Facsimile Number: (413) 744-6210
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(d) If to MassMutual/Carlson CBO, N.V.,
c/o State Street Bank And Trust Company:
225 Franklin Street
Boston, Massachusetts 02110
Attn: Corporate Trust Department
Facsimile Number: (617) 664-5367
with a copy to:
Massachusetts Mutual Life Insurance Company
Securities Investment Division
1295 State Street
Springfield, Massachusetts 01111-0001
Attn: Richard C. Morrison, Vice President
Facsimile Number: (413) 744-6127
(e) If to New York Life Insurance Company:
New York Life Insurance Company
51 Madison Avenue
New York, New York 10010
Attn: Investment Department, Room 203
Facsimile Number: (212) 447-4122
with a copy to:
New York Life Insurance Company
Office of the General Counsel
51 Madison Avenue
New York, New York 10010
Attn: Investment Section, Room 10SB
Facsimile Number: (212) 576-8340
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(f) And if a notice is sent to any of the
Noteholders, then a copy shall be sent to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Attn: Cecil Wray, Esq.
Facsimile Number: (212) 909-6836
or at such other address as may be substituted by notice given as herein
provided. Giving of any notice required hereunder may be waived in writing by
the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given when received.
17. Interpretation. No provision of this Agreement shall
be construed against or interpreted to the disadvantage of any party hereto by
any court or other governmental or judicial authority by reason of such party's
having or being deemed to have structured, drafted or dictated such provision.
18. Severability. 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 applicable 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.
19. Complete Agreement. This Agreement constitutes the
complete agreement and understanding of each of the parties hereto, and
supersedes all prior or contemporaneous oral and written negotiations,
agreements and understandings, express or implied, with respect to the subject
matter hereof.
20. No Joint Venture. Bank and each of the Noteholders
acknowledge and confirm that this Agreement shall not create a joint venture,
agency or fiduciary relationship.
21. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which taken together shall be deemed to be one and the same instrument.
Delivery of an executed counterpart of a signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart of this Agreement.
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22. WAIVER OF JURY TRIAL. BANK AND EACH OF THE
NOTEHOLDERS HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF BANK AND EACH OF THE NOTEHOLDERS WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED BY THEM IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE. BANK AND EACH OF THE NOTEHOLDERS HEREBY AGREE
AND CONSENT THAT ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT JURY, AND THAT ANY OF THEM MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT BY AN PARTY HERETO TO THE WAIVER OF RIGHT TO TRIAL BY JURY.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
BANK:
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ W. Douglass Vannah
-------------------------------------
W. Douglass Vannah
Vice-President
NOTEHOLDERS:
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
BARNETT & CO.
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
MASSMUTUAL/CARLSON CBO, N.V.
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
NEW YORK LIFE INSURANCE COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
BANK:
THE FIRST NATIONAL BANK OF BOSTON
By:
-------------------------------------
W. Douglass Vannah
Vice-President
NOTEHOLDERS:
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Stephen J. Blewett
-------------------------------------
Name: Stephen J. Blewett
--------------------------------
Title: Investment Officer
-------------------------------
BARNETT & CO.
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
MASSMUTUAL/CARLSON CBO, N.V.
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
NEW YORK LIFE INSURANCE COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
BANK:
THE FIRST NATIONAL BANK OF BOSTON
By:
-------------------------------------
W. Douglass Vannah
Vice-President
NOTEHOLDERS:
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
BARNETT & CO.
By: /s/ Richard McCormick
------------------------------------
Name: Richard McCormick
--------------------------------
Title: Assistant Treasurer
-------------------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
MASSMUTUAL/CARLSON CBO, N.V.
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
NEW YORK LIFE INSURANCE COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
BANK:
THE FIRST NATIONAL BANK OF BOSTON
By:
-------------------------------------
W. Douglass Vannah
Vice-President
NOTEHOLDERS:
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
BARNETT & CO.
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Richard C. Morrison
------------------------------------
Name: Richard C. Morrison
-------------------------------
Title: Vice President
-------------------------------
MASSMUTUAL/CARLSON CBO, N.V.
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
NEW YORK LIFE INSURANCE COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
BANK:
THE FIRST NATIONAL BANK OF BOSTON
By:
--------------------------------------
W. Douglass Vannah
Vice-President
NOTEHOLDERS:
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
BARNETT & CO.
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
MASSMUTUAL/CARLSON CBO, N.V.
By: /s/ Meespierson Trust
-------------------------------------
Name: Meespierson Trust (Curacao) N.V
---------------------------------
Title: Managing Director
--------------------------------
NEW YORK LIFE INSURANCE COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
BANK:
THE FIRST NATIONAL BANK OF BOSTON
By:
--------------------------------------
W. Douglass Vannah
Vice-President
NOTEHOLDERS:
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
BARNETT & CO.
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
MASSMUTUAL/CARLSON CBO, N.V.
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
NEW YORK LIFE INSURANCE COMPANY
By: /s/ Lydia S. Sangree
------------------------------------
Name: Lydia S. Sangree
-------------------------------
Title: Assistant Vice President
------------------------------
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ACKNOWLEDGMENT
The undersigned, KERR GROUP, INC., a Delaware corporation
("Borrower"), hereby acknowledges that it has received a copy of the foregoing
Intercreditor Agreement and consents thereto, and agrees to recognize all
rights granted thereby to the parties thereto, and will not do any act or
perform any obligation which is not in accordance with the agreements set forth
in such Intercreditor Agreement. Without limiting the generality of the
foregoing, Borrower further acknowledges that Borrower is not an intended
beneficiary or third party beneficiary under the Intercreditor Agreement.
Dated as of January 5, 1996.
KERR GROUP, INC.
By: /s/ Geoffrey A. Whynot
--------------------------------
Name: Geoffrey A. Whynot
---------------------------------
Title: Treasurer
--------------------------------
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