[EXECUTION VERSION]
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT is made as of this 18th day of
December, 1997 by and among BANKBOSTON, N.A., as "Agent" for itself and the
other "Lenders" party to the Revolving Credit Agreement referred to below (in
such capacity, the "Lender Agent"), SYNTHETIC FUNDING CORPORATION, a Delaware
corporation (the "▇▇▇▇▇"), SYNTHETIC INDUSTRIES, INC., a Delaware corporation
(sometimes hereinafter referred to as "Synthetic" or the "Originator"),
Synthetic, in its separate capacity as "Collection Agent" (as defined below),
EAGLEFUNDING CAPITAL CORPORATION, a Delaware corporation ("EagleFunding"), and
BANCBOSTON SECURITIES INC., a Delaware corporation ("BSI"), individually and as
the "Deal Agent" for EagleFunding (in such capacity, the "Purchaser Agent").
W I T N E S S E T H:
WHEREAS, the Originator has agreed to sell, transfer and
assign to the ▇▇▇▇▇, and the ▇▇▇▇▇ has agreed to purchase and assume from the
Originator, all of the right, title and interest of the Originator in the
"Receivables" and "Related Security" now existing or hereafter created until the
"Purchase Termination Date") (as each of such terms is hereinafter defined)
pursuant to that certain Receivables Purchase and Sale Agreement (as amended,
supplemented, modified or restated from time to time, the "Originator Sale
Agreement") of even date herewith among the Originator, the ▇▇▇▇▇ and the
Collection Agent;
WHEREAS, BankBoston, N.A., certain other financial
institutions (the "Lenders") and the Lender Agent thereunder are parties to that
certain Loan and Security Agreement dated as of December 18, 1997 (as amended,
supplemented, modified or restated from time to time, the "Revolving Credit
Agreement");
WHEREAS, to secure the loans and other extensions of credit
made by the Lenders under the Revolving Credit Agreement, the Originator has
granted to the Lender Agent a security interest in substantially all of its
personal property, including, its inventory, the Receivables and Related
Security, and all proceeds of the foregoing;
WHEREAS, the ▇▇▇▇▇, EagleFunding, the Purchaser Agent and the
Collection Agent have entered into that certain Receivables Purchase Agreement
(as amended, supplemented, modified or restated from time to time, the "Investor
Purchase Agreement") of even date herewith, pursuant to which EagleFunding has
agreed to purchase from the ▇▇▇▇▇ an undivided percentage ownership interest in
the Receivables and Related Security which the ▇▇▇▇▇ purchases from the
Originator;
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WHEREAS, the parties hereto wish to set forth certain
agreements with respect to the Purchased Property and with respect to the
"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):
"Affiliate" when used with respect to a Person means any other
Person controlling, controlled by or under common control with such Person.
"Agent" means the Purchaser Agent or the Lender Agent, as
applicable, and "Agents" means both the Purchaser Agent and the Lender Agent.
"Claim" means the Lender Claim or the Purchaser Claim, as
applicable.
"Collateral" means all property and interests in property now
owned or hereafter acquired by the Originator or any of its Affiliates and in
which a security interest, lien or mortgage is granted by any such party to the
Lender Agent or the Lenders under any of the Loan Documents.
"Collection Agent" means the Person then acting as "Collection
Agent" under the Originator Sale Agreement and the Investor Purchase Agreement,
which shall initially be Synthetic.
"Collection Date" has the meaning specified in the Investor
Purchase Agreement.
"Company Claim" means all of the indebtedness, obligations and
other liabilities of the ▇▇▇▇▇ to the Originator arising under, or in connection
with, the Originator Sale Agreement, including, but not limited to, the purchase
price owed for sales of Receivables, any obligations evidenced by the Originator
Note and any fees owed to the Originator as Collection Agent.
"Contract" means an agreement (including, but not limited to,
a written contract or an open account agreement evidenced by invoices) between
the Originator and a Person pursuant to which such Person shall be obligated to
pay for merchandise sold or services rendered from time to time.
"Enforcement" means, collectively or individually, for (i)
EagleFunding, the Purchase Agent and/or the ▇▇▇▇▇ to declare an "Event of
Termination" under the Originator Sale Agreement or the Investor Purchase
Agreement and to cease the purchase of Receivables under the Originator Sale
Agreement; and/or (ii) the Lenders and/or the Lender Agent to declare an "Event
of Default" under the Revolving Credit Agreement and/or demand payment in full
of or accelerate the indebtedness of Synthetic to the Lenders, and to commence
the judicial or nonjudicial enforcement of any of the rights and remedies under
the Loan Documents.
"Enforcement Notice" means a written notice delivered in
accordance with Section 2.5 which notice shall (i) if delivered by the Purchaser
Agent, state that an "Event of Termination" has occurred, specify the nature of
such event, and announce that an Enforcement Period has commenced and (ii) if
delivered by the Lender Agent, state that an "Event of Default" under the
Revolving Credit Agreement has occurred, specify the nature of such event, and
announce that an Enforcement Period has commenced.
"Enforcement Period" means the period of time commencing with
the earliest of the following: (i) three Business Days after the receipt by the
Purchaser Agent of an Enforcement Notice delivered by the Lender Agent; or (ii)
the receipt by the Lender Agent of an Enforcement Notice delivered by the
Purchaser Agent; and ending with the earliest of the following: (1) the
Collection Date shall have occurred; (2) the Lender Claim has been satisfied in
full; and (3) the parties hereto agree in writing to terminate the Enforcement
Period.
"Lender Claim" means all of the "Secured Obligations" as
defined in the Revolving Credit Agreement, including, but not limited to, all
sums now or hereafter loaned or advanced thereunder, any interest thereon, any
reimbursement or other obligations in respect of letters of credit issued
thereunder, obligations of Synthetic under any interest rate hedging agreements
or foreign currency option or purchase agreements, fees or expenses due
thereunder, and any costs of collection or enforcement.
"Lender Collateral" means all Collateral which does not
constitute Purchased Property.
"Lenders" means the financial institutions party to the
Revolving Credit Agreement as "Lenders" from time to time, together with their
successors and assigns.
"Liquidity Agent" means the financial institution then acting
as "Liquidity Agent" under the Purchaser Documents.
"Liquidity Providers" has the meaning specified in the
Investor Purchase Agreement.
"Loan Documents" means the Revolving Credit Agreement and all
other instruments, agreements or other documents executed by the Originator or
any Affiliate of the Originator and delivered to the Lenders and/or the Lender
Agent in connection therewith, as any of the same may be amended, supplemented,
modified or restated from time to time.
"Lock-Box Account" has the meaning ascribed to such term in
the Originator Sale Agreement.
"Lock-Box Bank" has the meaning ascribed to such term in the
Originator Sale Agreement.
"Obligor" means a Person obligated to make payments pursuant
to a Contract.
"Originator Note" has the meaning ascribed to such term in the
Originator Sale Agreement.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity.
"Purchase Termination Date" means the earliest to occur of (i)
the date on which the ▇▇▇▇▇ ceases to purchase Receivables and Related Security
from the Originator, and (ii) the commencement of an Enforcement Period.
"Purchased Property" means (i) the Purchased Receivables, (ii)
the Related Security and Receivables Collections related to such Purchased
Receivables and (iii) any Lock-Box Accounts to which any Receivables Collections
of such Purchased Receivables are sent.
"Purchased Receivables" means now owned or hereafter existing
Receivables sold, assigned, transferred or contributed or purported to be sold,
assigned, transferred or contributed to the ▇▇▇▇▇ under the Originator Sale
Agreement.
"Purchaser" means any of (A) the ▇▇▇▇▇, as the purchaser of
Receivables under the Originator Sale Agreement; (B) EagleFunding or BSI, in
each case as assignee of the ▇▇▇▇▇'▇ interests in the Purchased Property; (C)
the Purchaser Agent, as representative of EagleFunding or (D) the Liquidity
Agent or any Liquidity Provider as assignee of EagleFunding, in each case
together with their successors and assigns.
"Purchaser Claim" means all obligations of the Originator to
the ▇▇▇▇▇ and of the ▇▇▇▇▇ to the other Purchasers arising under the Purchaser
Documents, including, but not limited to, all right of the Purchasers to receive
the Receivables Collections of the Purchased Receivables and all recourse claims
of the Purchasers arising thereunder.
"Purchaser Documents" means the Originator Sale Agreement, the
Investor Purchase Agreement and any other agreements, instruments or documents
(i) executed by, among other Persons, the Originator and delivered to the ▇▇▇▇▇
or (ii) executed by, among other Persons, the ▇▇▇▇▇ and delivered to any of the
other Purchasers, in each case pursuant to or in connection with the Originator
Sale Agreement or the Investor Purchase Agreement, as any of the same may be
amended, supplemented, modified or restated from time to time.
"Receivable" means the indebtedness of any Obligor under a
Contract whether constituting an account, chattel paper, instrument or general
intangible, arising from a sale of merchandise or the performance of services by
the Originator, and including the right to payment of any interest or finance
charges and other obligations of such Obligor with respect thereto.
"Receivables Collections" means, with respect to any
Receivable, all cash collections and other cash proceeds of such Receivable,
including, without limitation, all cash proceeds of Related Security with
respect to such Receivable.
"Records" means all Contracts and other documents, books,
records and other information (including without limitation, computer programs,
tapes, discs, punch cards, data processing software and related property and
rights) maintained with respect to Receivables and the related Obligors.
"Related Security" means with respect to any Receivable, as
applicable:
(i) all of the Originator' right and title to and interest
in the merchandise (including Returned Goods) if any, relating to the
sale which gave rise to such Receivable;
(ii) all other security interests or liens and property
subject thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable
or otherwise;
(iii) the assignment for the benefit of the Purchasers of all
UCC financing statements covering any collateral securing payment of
such Receivable; and
(iv) all of the Originator' right and title to and interest
in, all guarantees, indemnities, warranties, letters of credit,
insurance policies and proceeds and premium refunds thereof and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of such Receivable, whether pursuant to
the Contract related to such Receivable or otherwise.
"Returned Goods" means all right, title and interest of the
Originator or the Purchasers, as applicable, in and to returned, repossessed or
foreclosed goods and/or merchandise.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the applicable jurisdiction.
"Unmatured Default" means:
(i), with respect to the Purchaser Documents (as in effect at
any time), (A) any event or condition which, with the giving of notice
or the passage of time or both, would then constitute an "Event of
Termination" under either the Originator Sale Agreement or the Investor
Purchase Agreement and (B) any such "Event of Termination which is not
waived and with respect to which the Purchaser Agent has not commenced
Enforcement; and
(ii) with respect to the Loan Documents (as in effect at any
time), (A) any event or condition which, with the giving of notice or
the passage of time or both, would then constitute an "Event of
Default" thereunder and (B) any "Event of Default" thereunder which is
not waived and with respect to which the Lender Agent has not commenced
Enforcement.
"Unsold Receivables" means any Receivables which have arisen
on or after the Purchase Termination Date.
1.2. References to Terms Defined in the Purchaser Documents
and the Loan Documents. Whenever in Section 1.1 a term is defined by reference
to the meaning ascribed to such term in any of the Purchaser Documents or in any
of the Loan Documents, then, unless otherwise specified herein, such term shall
have the meaning ascribed to such term in the Purchaser Documents or Loan
Documents, respectively, as in existence on the date hereof, without giving
effect to any amendments of such term as may hereafter be agreed to by the
parties to such documents, unless such amendments have been consented to in
writing by all of the parties hereto.
ARTICLE 2. INTERCREDITOR PROVISIONS.
2.1. Priorities with Respect to Purchased Property.
(a) Notwithstanding any provision of the UCC, any applicable law or
decision or any of the Loan Documents or the Purchaser Documents, the Lender
Agent hereby agrees that, upon the sale, assignment, transfer or contribution or
purported sale, assignment, transfer or contribution of each Receivable and
Related Security by the Originator to the ▇▇▇▇▇, any lien, claim, encumbrance,
security interest or other interest acquired by the Lender Agent in such
Receivable, the Related Security and proceeds thereof shall automatically and
without further action cease and be released and the Lender Agent shall have no
lien, claim, encumbrance, security interest or other interest therein; provided,
however, that:
(i) nothing in this Section 2.1 shall be deemed to constitute
a release by the Lender Agent of: (A) its lien on and security interest
in the proceeds received by the Originator from the ▇▇▇▇▇ for the sale
or purported sale of the Receivables (including, without limitation,
cash payments made by the ▇▇▇▇▇, payments made under the Originator
Note and any indebtedness owed to the Originator evidenced thereby);
(B) any lien on, security interest in or assignment of the Company
Claim; (C) any lien, claim, encumbrance or security interest the Lender
Agent may have in any Unsold Receivables and Related Security therefor,
including, without limitation, Receivables Collections of Unsold
Receivables which are at any time deposited in the Lock-Box Accounts;
(D) any lien, claim, encumbrance or security interest the Lender Agent
may have as against any interest of the Originator in Returned Goods,
provided, however, that any lien the Lender Agent has against any
interest of the Originator in such Returned Goods shall be junior in
interest to that of the Purchasers unless and until the Originator
shall have made all adjustments required to be made under the
Originator Sale Agreement on account of the reduction of the
outstanding balance of any Receivable related to such Returned Goods;
and (E) any lien on, security interest in or pledge or assignment the
Lender Agent may have on or in the capital stock of the ▇▇▇▇▇; and
(ii) if any goods or merchandise, the sale of which has given
rise to a Purchased Receivable, are returned to or repossessed by the
Originator, then such Returned Goods shall constitute Purchased
Property, provided, however, that upon payment by the Originator of all
adjustments required on account thereof under the Originator Sale
Agreement, the Purchaser's 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 Purchased Property for purposes of this Agreement unless and
until such Returned Goods have been resold so as to give rise to a
Receivable and such Receivable has been sold, assigned, transferred or
contributed or purported to be sold, assigned, transferred or
contributed to the ▇▇▇▇▇.
(b) The Lender Agent hereby acknowledges that the Originator
Note and the indebtedness evidenced thereby is subordinated to the Purchaser
Claim pursuant to the terms of the Originator Note and the Purchaser Documents.
2.2 Respective Interests in Purchased Property and Collateral.
Except for (i) the specific interests in Purchased Property described in Section
2.1 above and (ii) all rights of access to and use of Records and related
Collateral described in Section 2.6 below, each Purchaser agrees that it does
not have and shall not have any security interest in, lien upon or interest in
the Collateral. Except for (i) the specific retained rights described in Section
2.1 above and (ii) all rights of access to and use of Records described in
Section 2.6 below, the Lender Agent agrees that it does not have and shall not
have any security interest in, lien upon or interest in the Purchased Property.
2.3. Distribution of Proceeds -- Enforcement Period. During
any Enforcement Period, all proceeds of Collateral and/or Purchased Property
shall be distributed in accordance with the following procedure:
(a) Except as otherwise provided in clause (c) or in Section
2.4 below, (i) all proceeds of the Lender Collateral shall be paid to
the Lender Agent for application on the Lender Claim; and (ii) any
remaining proceeds shall be paid to the Originator, its Affiliates or
as otherwise required by applicable law.
(b) Except as otherwise provided in Section 2.4 or in clause
(c) below, all proceeds of the Purchased Property shall be paid first,
to the Purchasers for application against the Purchaser Claim;
provided, however, that all proceeds of the Purchased Property which,
pursuant to the Purchaser Documents, are to be paid to the Originator
for application against the Company Claim shall be paid directly to the
Lender Agent (if and to the extent that the Lender Agent has retained a
lien against such Company Claim pursuant to Section 2.1 above) for
application against the Lender Claim before being paid to the
Originator or the ▇▇▇▇▇; and any remaining proceeds shall be paid to
the ▇▇▇▇▇ or as otherwise required by applicable law.
(c) If any inventory of the Originator has been commingled
with Returned Goods in which the Purchaser Agent continues to have an
interest as provided in Section 2.1 above, and any of the Lenders (or
the Lender Agent) receives any proceeds on account of such inventory
(whether by reason of sale or by reason of insurance payments on
account thereof) prior to release of such interest, then: (i) all
proceeds of such inventory received by a Lender shall be paid to the
Lender Agent and the Lender Agent shall, immediately upon receipt of
such proceeds, pay to the Purchaser Agent for application against the
Purchaser 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 constituting Purchased Property and the
denominator of which equals the book value of all of the inventory on
account of which the Lender Agent has received such cash proceeds; and
(ii) any remaining proceeds shall be paid to the Lender Agent for
application against the Lender Claim. The Lender Agent agrees that it
shall not, without the prior written consent of the Purchaser Agent,
sell any Returned Goods in which the Purchaser Agent continues to have
an interest at a price below book value.
2.4 Lock-Box Accounts.
(a) The Lender Agent, on behalf of itself and each of the
Lenders, hereby releases, relinquishes and disclaims any and all of its right,
title and interest in, to and under each of the Lock-Box Accounts, which release
shall become effective with respect to each such Lock-Box Account upon the
effectiveness of the corresponding "Lock-Box Agreement" (as such term is defined
in the Originator Sale Agreement) in favor of the ▇▇▇▇▇ and the Deal Agent and
relating to such Lock-Box Account; provided, however, that each of the
Originator, the Purchasers and the Purchaser Agent hereby acknowledges that the
Lender Agent shall have a senior security interest in Receivables Collections of
Unsold Receivables which may be deposited in the Lock-Box Accounts. The
Purchaser Agent agrees, upon the Lender Agent's request from and after the
Purchase Termination Date, to notify the Lock-Box Banks of the Lender Agent's
interest in and to such Lock-Box Accounts in order to perfect the Lender Agent's
interest in such Collections as against the Lock-Box Banks.
(b) Each of the Originator, the Purchasers and the Lender
Agent hereby acknowledges and agrees that the Purchasers own the Purchased
Receivables, and shall be entitled to Receivables Collections or other proceeds
received on account of the Purchased Receivables which may be deposited in the
Lock-Box Accounts.
(c) The Originator, the Purchasers and the Lender Agent hereby
agree that all Receivables Collections or other proceeds received on account of
Purchased Receivables shall be paid or delivered to the Purchasers for
application against the Purchaser Claim and all Receivables Collections or other
proceeds received on account of Unsold Receivables shall be paid or delivered to
the Lender Agent for application against the Lender Claim. For purposes of
determining whether specific Receivables Collections have been received on
account of Purchased Receivables or on account of Unsold Receivables, the
parties hereto agree as follows:
(i) All payments made by an Obligor which is obligated to make
payments on Purchased Receivables but is not obligated to make
any payments on Unsold Receivables shall be conclusively
presumed to be payments on account of Purchased Receivables
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 Purchased Receivables shall be conclusively
presumed to be payments on account of Unsold Receivables.
(ii) All payments made by an Obligor which is obligated to
make payments with respect to both Purchased Receivables and
Unsold Receivables shall be applied against the specific
Receivables, if any, which are designated by such Obligor by
reference to the applicable invoice as the Receivables with
respect to which such payments should be applied. In the
absence of such designation, such payments shall be applied
against the oldest outstanding Receivables owed by such
Obligor.
(d) Subject to the second sentence of this Section 2.4(d), the
Purchaser Agent agrees that it shall transfer prior ownership and control over
the Lock-Box Accounts to the Lender Agent upon the Collection Date; provided,
however, that any Receivables Collections of Purchased Property which are then
on deposit in the Lock-Box Account and are not required to be paid to the Lender
Agent pursuant to Section 2.3(b) above shall be delivered to the ▇▇▇▇▇ before
the foregoing transfer of ownership and control of the Lock-Box Accounts. Any
such transfer shall be without representation, recourse or warranty of any kind
on the part of the Purchaser Agent. Notwithstanding any such transfer, all
Receivables Collections and other proceeds subsequently deposited into the
Lock-Box Accounts on account of the Purchased Property shall continue to be
delivered and applied as provided in Section 2.3(b) above.
(e) In order to effect more fully the provisions of this
Agreement, each Agent hereby agrees that neither Agent shall, without the
consent of the other Agent, send any notices to the Obligors directing them to
remit Receivables Collections of any Receivables other than to a Lock-Box
Account except as may be necessary in connection with the enforcement of any
delinquent or Defaulted Receivable as against the Obligor thereof (in which
case, the Agent receiving such Receivables Collections shall deliver and apply
such Receivables Collections in accordance with the terms of Section 2.3).
(f) The Lender Agent agrees that it shall not, at any time
prior to the Collection Date, exercise any rights it may have under the Loan
Documents to send any notices to Obligors (i) informing them of the Lenders' or
the Lender Agent's interest in the Receivables, or (ii) directing such Obligors
to make payments in any particular manner of any amounts due under the
Receivables. The Lender Agent further agrees that, in the event it shall receive
payments directly from any Obligor on account of an Unsold Receivable, at any
time prior to the Collection Date, it shall immediately forward such payment to
the Purchaser Agent (or, if a successor Collection Agent has been appointed, to
such successor Collection Agent) in order that the Purchaser Agent or Collection
Agent, as applicable, may determine whether such payment was, in fact, properly
allocated to such Unsold Receivable consistent with the terms of this Section
2.4 and, if necessary pursuant to the terms hereof, re-allocate such payment.
2.5. Enforcement Actions. Each of the Lender Agent and the
Purchaser Agent agrees to use its best efforts to give an Enforcement Notice to
the other prior to commencement of Enforcement and further agrees, that, during
the period, if any, between the giving of such Enforcement Notice and the
commencement of Enforcement thereunder, the Agent receiving such notice shall
have the right (but not the obligation) to cure the "Event of Default" or "Event
of Termination" which has occurred under the Loan Documents or the Purchaser
Documents, respectively, and to which such Enforcement Notice relates. Subject
to the foregoing, the parties hereto agree that during an Enforcement Period:
(a) Subject to any applicable restrictions in the Purchaser
Documents, the Purchaser Agent may, at its option, take any action to
liquidate the investment of the Purchasers in the Purchased Property
and/or to foreclose or realize upon or enforce any of their rights with
respect to the Purchased Property without the prior written consent of
any Originator or the Lender Agent; provided, however, that the
Purchasers shall not take any action to foreclose or realize upon or to
enforce any rights they may have with respect to any Purchased Property
constituting Returned Goods which have been commingled with the Lender
Collateral, unless the Purchaser Agent, pursuant to the last sentence
of Section 2.3(c), has withheld consent to a sale or other disposition
of such inventory.
b. Subject to any applicable restrictions in the Loan
Documents, the Lender Agent may, at its option and without the prior
written consent of the Purchasers, take any action to accelerate
payment of the Lender Claim and to foreclose or realize upon or enforce
any of its rights with respect to (i) the Lender Collateral and (ii)
except as otherwise provided in Section 2.3(c), with respect to any
Purchased Property constituting Returned Goods which have been
commingled with the Lender Collateral; provided, however, that the
Lender 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 Purchased Property without the Purchaser Agent's prior written
consent unless the Purchaser Claim shall have been first paid and
satisfied in full and the Lender Agent shall apply the proceeds of any
Purchased Property consisting of Returned Goods as provided in Section
2.3(c) above.
2.6 Access to and Use of Collateral and Purchased Property.
The Purchasers and the Lender Agent hereby agree that, notwithstanding the
priorities set forth in this Agreement, the Purchasers and the Lender Agent
shall have the following rights of access to and use of the Collateral and
Purchased Property respectively:
a. Subject to any applicable restrictions in the Purchaser
Documents, the Purchasers may enter one or more premises of the
Originator, 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 Originator, the ▇▇▇▇▇, the Lender
Agent or the Lenders, whether before, during or after an Enforcement
Period, and may use any Lender Collateral constituting computer
equipment located thereon and may have access to and use of all books,
records and computer software located thereon (whether the same
constitute Records) and may have access to and use of any other
property to which such access and use are granted under the Purchaser
Documents, in each case provided that such use is for the purposes of
enforcing the Purchasers' rights with respect to the Purchased
Property.
b. Subject to any applicable restrictions in the Loan
Documents, the Lender Agent may enter one or more premises of the
Originator or the ▇▇▇▇▇, 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 Originator, the ▇▇▇▇▇,
the Purchasers or the Purchaser Agent, whether before, during or after
an Enforcement Period, and may have access to and use of all Records
located thereon, provided that such use is for the purposes of
enforcing the Lender Agent's rights with respect to the Lender
Collateral (including any interests in Unsold Receivables and other
interests in property retained by the Lender Agent as described in
Section 2.1 above).
c. In order to facilitate the purposes of this Section 2.6,
the Lender Agent and the Purchasers hereby agree as follows: (1) any
mortgage of, assignment of, security interest in or lien upon any real
property and interests in real property of the Originator or its
Affiliates (whether leased or owned) and any of the Collateral in favor
of the Lender Agent shall be subject to the Purchasers' rights of
access and use described above; and (2) any ownership interest of the
Purchasers in the Purchased Property shall be subject to the Lender
Agent's right of access and use described above.
2.7. Accountings. The Lender Agent agrees to render statements
of the Lender Claim to the Purchaser Agent upon request, giving effect to the
application of proceeds of Purchased Property and Collateral as hereinbefore
provided. The Purchaser Agent agrees to render statements to the Lender Agent
upon request, which statements shall identify in reasonable detail the Purchased
Receivables and shall render an account of the Purchaser Claim, giving effect to
the application of proceeds of Purchased Property and Collateral as hereinbefore
provided.
2.8. Notice of Defaults. The Lender Agent agrees to use
reasonable efforts to give to the Purchaser Agent copies of any notice sent to
the Originator with respect to the occurrence or existence of an Unmatured
Default under the Loan Documents, and the Purchaser Agent agrees to use
reasonable efforts to give to the Lender Agent copies of any notice sent to the
Originator or the ▇▇▇▇▇ with respect to the occurrence or existence of an
Unmatured Default under the Purchaser Documents, in each case simultaneously
with the sending of such notice to the Originator or the ▇▇▇▇▇ as applicable;
provided, however, that any failure to give such notice 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. In each of the above cases, the Agent
receiving such notice shall have the right (but not the obligation) to cure the
Unmatured Default which gave rise to the sending of such notice.
2.9. Agency for Perfection. The Purchasers and the Lender
Agent hereby appoint each other as agent for purposes of perfecting by
possession their respective security interests and ownership interests and liens
on the Collateral and Purchased Property described hereunder. In the event that
any Purchaser obtains possession of any of the Lender Collateral (including
Receivables Collections of Unsold Receivables), such Purchaser shall notify the
Lender Agent of such fact, shall hold such Collateral in trust and shall deliver
such Collateral to the Lender Agent upon request. In the event that the Lender
Agent obtains possession of any of the Purchased Property (including Receivables
Collections of Purchased Receivables), the Lender Agent shall notify the
Purchaser Agent of such fact, shall hold such Purchased Property in trust and
shall deliver such Purchased Property to the Purchaser Agent upon request.
2.10. UCC Notices. In the event that any party hereto shall be
required by the UCC or any other applicable law to give notice to the other of
intended disposition of Purchased Property or Collateral, respectively, such
notice shall be given in accordance with Section 3.1 hereof and ten (10) days'
notice shall be deemed to be commercially reasonable.
2.11. Independent Credit Investigations. Neither the
Purchasers nor the Lender Agent nor any of their respective directors, officers,
agents or employees shall be responsible to the other or to any other person,
firm or corporation for the solvency, financial condition or ability of the
Originator or the ▇▇▇▇▇ to repay the Purchaser Claim or the Lender Claim, or for
the worth of the Purchased Property or the Collateral, or for statements of any
Originator or the ▇▇▇▇▇, oral or written, or for the validity, sufficiency or
enforceability of the Purchaser Claim, the Lender Claim, the Purchaser
Documents, the Loan Documents, the Purchaser's interest in the Purchased
Property or the Lender Agent's interest in the Collateral. Each of the Lender
Agent and the Purchasers has entered into its respective financing agreements
with the Originator and/or the ▇▇▇▇▇, as applicable, based upon its own
independent investigation, and makes no 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 2.11.
2.12. Limitation on Obligations of Parties to Each Other.
Except as expressly provided in this Agreement, neither the Lenders nor the
Lender Agent shall have any duties to the Purchasers and the Purchasers shall
have no duties to the Lender Agent.
2.13. Amendments to Financing Arrangements or to this
Agreement. The Lender Agent agrees to use reasonable efforts to, concurrently
with any written amendment or modification in the Loan Documents, give prompt
notice to the Purchaser Agent of the same and the Purchaser Agent agrees to use
reasonable efforts to, concurrently with any written amendment or modification
in the Purchaser Documents, notify the Lender Agent 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. Notwithstanding the foregoing, each party hereto agrees not to
amend any of the Loan Documents or Purchaser Documents so as to materially alter
the rights and benefits intended hereunder to be enjoyed by the respective
Agents and the other parties hereto. Each party hereto shall, upon request of
any other party hereto, provide copies of all such modifications or amendments
and copies of all other documentation relevant to the Purchased Property or the
Collateral. 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.
2.14. Marshaling of Assets. Nothing in this Agreement will be
deemed to require either Agent (i) to proceed against certain property securing
the Lender Claim or the Purchaser Claim, as applicable, prior to proceeding
against other property securing such Claim or (ii) to ▇▇▇▇▇▇▇▇ the Lender
Collateral or the Purchased Property (as applicable) upon the enforcement of
such Agent's remedies under the Purchaser Documents or Loan Documents, as
applicable.
2.15. Relative Rights of Purchasers as Among Themselves. The
relative rights of the Purchasers, each as against the other, with respect to
the exercise of the rights and the receipt of the benefits granted by the Lender
Agent hereunder shall be determined by mutual agreement among such parties in
accordance with the terms of the Purchaser Documents. The Lender Agent shall be
entitled to rely on the power and authority of the Purchaser Agent to act on
behalf of all of the Purchasers. The Purchaser Agent shall be entitled to rely
on the power and authority of the Lender Agent to act on behalf of all of the
Lenders.
2.16. Effect Upon Loan Documents and Purchaser Documents. By
executing this Agreement, each of the Originator and the ▇▇▇▇▇ agrees to be
bound by the provisions hereof (i) as they relate to the relative rights of the
Lender Agent, the Purchaser Agent and EagleFunding with respect to the property
of the Originator; (ii) as they relate to the relative rights of the Originator,
Purchaser Agent and EagleFunding with respect to the property of the ▇▇▇▇▇; and
(iii) as they relate to the relative rights of the Lender Agent and the ▇▇▇▇▇ as
creditors of the Originator. The Originator acknowledges that, except as
otherwise provided in Section 2.1, the provisions of this Agreement shall not
give it any substantive rights as against the Lender Agent or the Lenders nor
otherwise amend, modify, change or supersede the terms of the Loan Documents as
among the parties thereto. Each of the Originator and the ▇▇▇▇▇ acknowledges
that, except as otherwise provided in Section 2.1, the provisions of this
Agreement shall not give the Originator any substantive rights as against the
Purchasers nor give the ▇▇▇▇▇ any substantive rights as against the other
Purchasers nor otherwise amend, modify, change or supersede the terms of the
Purchaser Documents as among the parties thereto. Notwithstanding the foregoing,
each of EagleFunding and the Agents hereby agrees, that, as among themselves and
their successors and assigns, to the extent the terms and provisions of the Loan
Documents or the Purchaser Documents are inconsistent with the terms and
provisions of this Agreement, the terms and provisions of this Agreement shall
control.
2.17. Further Assurances. Each of the Agents hereto agrees (i)
to take such actions as may be reasonably requested by the other Agent, 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 (ii) not to
amend the Loan Documents or the Purchaser Documents, as applicable, in any
manner which would materially alter such rules of distribution and allocation
set forth herein.
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 mailed, telexed,
transmitted or delivered, as to each party hereto, at its address set forth
under its name on the signature pages hereof or at such other address as shall
be designated by such part in a written notice to the other parties hereto. All
such notices and communications shall be effective upon receipt, or, in the case
of notice by mail, five days after being deposited in the mails, postage
prepaid, or in the case of notice by telex, when telexed against receipt of the
answerback, or in the case of notice by facsimile copy, when verbal confirmation
of receipt is obtained, in each case addressed as aforesaid.
3.2. Agreement Absolute. Each of the Purchasers shall be
deemed to have entered into the Purchaser Documents in express reliance upon
this Agreement and the Lender Agent and the Banks shall be deemed to have
entered into the Revolving Credit Agreement 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 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 the Originator or the ▇▇▇▇▇ under the Bankruptcy Code and
all references herein to the Originator or the ▇▇▇▇▇ shall be deemed to apply to
a debtor-in-possession for such party and all allocations of payments between
the Lender Agent and the Purchasers 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 their respective
successors and assigns. The successors and assigns for the Originator and/or the
▇▇▇▇▇ shall include a debtor-in-possession or trustee of or for such party. The
successors and assigns for the Agents shall include any successor Agents
appointed under the terms of the Loan Documents or the Purchaser Documents, as
applicable. Each of the Agents agrees not to transfer any interest it may have
in the Loan Documents or the Purchaser Documents unless such transferee has been
notified of the existence of this Agreement and has agreed to be bound hereby.
3.4. Third-Party Beneficiaries. The terms and provisions of
this Agreement shall be for the sole benefit of the Agents, the Purchasers and
the Lenders 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 internal laws (as opposed to conflicts of law
provisions) of the State of New York.
3.6. 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.
3.7. 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.
3.8. 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.
3.9. No Petition. Each party hereto (including each Lender, by
the Lender Agent on its behalf) hereby covenants and agrees that, prior to the
date which is one year and one day after the payment in full of all outstanding
senior indebtedness of EagleFunding, it will not institute against, or join any
other Person in instituting against, EagleFunding any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States. Each party hereto (including each Lender, by the Lender Agent on
its behalf) hereby covenants and agrees that prior to the date which is one year
and one day after the payment in full of all outstanding senior indebtedness of
the ▇▇▇▇▇, it will not institute against, or join any other Person in
instituting against, the ▇▇▇▇▇ any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States. The Lenders and the
Lender Agent agree that, in the event they shall at any time have the right to
exercise or otherwise control, directly or indirectly, any voting rights in
respect of any person or entity owning voting capital of the ▇▇▇▇▇, the Lenders
and the Lender Agent shall cause such person or entity to comply with the terms
of this Section 3.9 as if such person or entity were a party to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SYNTHETIC INDUSTRIES, INC.,
individually and as
Collection Agent
By: _________________________
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 706-
Telecopy: 706-
SYNTHETIC FUNDING CORPORATION
By: _________________________
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 706-
Telecopy: 706-
BANKBOSTON, N.A., as the
Lender Agent
By: _________________________
Title:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
EAGLEFUNDING CAPITAL CORPORATION,
By: BANCBOSTON SECURITIES INC., its
attorney-in-fact
By:
Title:
EagleFunding Capital Corporation
c/o BancBoston Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
c/o Lord Securities Corporation
Two Wall Street, 19th Floor
New York, New York 10005
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
BANCBOSTON SECURITIES INC.,
individually and as Purchaser Agent
By____________________________
Title:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
::ODMA\PCDOCS\WASHINGTON\37776\6 February 5, 1998 (9:10AM)