EXHIBIT 10.46
EXECUTION VERSION
INTERCREDITOR AGREEMENT
DATED AS OF NOVEMBER 7, 2003
BY AND AMONG
GENERAL ELECTRIC CAPITAL CORPORATION,
AS ADMINISTRATIVE AGENT AND RECEIVABLES COLLATERAL AGENT
GENERAL ELECTRIC CAPITAL CORPORATION,
as Banks' Agent
AVONDALE FUNDING, LLC,
AS RECEIVABLES SELLER,
and
AVONDALE ▇▇▇▇▇, INC.,
as Originator
1
This INTERCREDITOR AGREEMENT dated as of November 7, 2003 (as modified,
amended, restated or supplemented from time to time, this "AGREEMENT"), by and
among GENERAL ELECTRIC CAPITAL CORPORATION ("GE CAPITAL"), in its capacity as
administrative agent under the Receivables Purchase and Servicing Agreement (as
hereinafter defined) (the "ADMINISTRATIVE AGENT"), in its capacity as collateral
agent for the Receivables Purchasers (as defined below) (the "RECEIVABLES
COLLATERAL AGENT"), GE Capital in its capacity as agent on behalf of the Banks
(as defined below) (the "BANKS' AGENT"), AVONDALE FUNDING, LLC (the "RECEIVABLES
SELLER"), and AVONDALE ▇▇▇▇▇, INC. ("AVONDALE ▇▇▇▇▇" or the "ORIGINATOR").
R E C I T A L S:
A. The Originator has agreed to sell, transfer and
assign to the Receivables Seller, and the Receivables Seller has agreed to
purchase or otherwise acquire from the Originator, all of the right, title and
interest of the Originator in certain Receivables pursuant to a Sale and
Contribution Agreement (as amended, supplemented, modified or restated from time
to time, the "RECEIVABLES SALE AGREEMENT") dated as of August 30, 2002 among the
Originator, Avondale Incorporated and the Receivables Seller.
B. The Receivables Seller, as seller, Avondale ▇▇▇▇▇ in
its capacity as servicer (the "SERVICER"), the Administrative Agent, the
Receivables Collateral Agent and the Receivables Purchasers are parties to a
Receivables Purchase and Servicing Agreement dated as of August 30, 2002 (as
amended, supplemented, modified or restated from time to time, the "RECEIVABLES
PURCHASE AND SERVICING AGREEMENT") pursuant to which the Receivables Purchasers
have agreed, among other things, to purchase from the Receivables Seller from
time to time Receivables (or interests therein) purchased by or contributed to
the Receivables Seller pursuant to the Receivables Sale Agreement.
C. The Receivables Sale Agreement and the Receivables
Purchase and Servicing Agreement provide for the filing of UCC financing
statements to perfect the ownership and security interest of the parties thereto
with respect to the property covered thereby.
D. Avondale ▇▇▇▇▇ as borrower (in such capacity, the
"BORROWER"), the Persons party thereto as Credit Parties, the Banks' Agent and
the financial institutions from time to time party thereto (collectively, the
"BANKS") are parties to that certain Credit Agreement dated as of November 7,
2003, (as amended, supplemented, modified or restated from time to time, the
"CREDIT AGREEMENT").
E. To secure the Borrower's obligations to the Banks and
Banks' Agent under the Credit Agreement and other Loan Documents, the Borrower
has granted to the Banks' Agent for the benefit of the Banks' Agent and the
Banks a lien over, certain of its assets, including certain Receivables and
certain inventory, and all proceeds of the foregoing.
F. The parties hereto wish to set forth certain
agreements with respect to the Receivables Program Assets (as hereinafter
defined) and with respect to the Collateral (as hereinafter defined).
2
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):
"BANK CLAIM" means (i) all of the indebtedness, obligations
and other liabilities of the Borrower now or hereafter arising under, or in
connection with, the Loan Documents including, but not limited to, all sums now
or hereafter loaned or advanced to or for the benefit of the Borrower, all
reimbursement obligations of the Borrower with respect to letters of credit and
guarantees issued thereunder for its account, all guarantee obligations of the
Borrower, any interest thereon (including, without limitation, interest accruing
after the commencement of a bankruptcy, insolvency or similar proceeding
relating to the Borrower, whether or not such interest is an allowed claim in
any such proceeding), any reimbursement obligations, fees or expenses due
thereunder and (ii) any costs of collection or enforcement of any such
indebtedness, liabilities or obligations or in realizing on or protecting or
preserving any security therefor.
"BANK COLLATERAL" means all Collateral, including, without
limitation, all Excluded Receivables Assets, which does not constitute
Receivables Program Assets.
"BANK EVENT OF DEFAULT" has the meaning ascribed to the term
"Event of Default" in the Credit Agreement, as the same may be amended from time
to time.
"BANK INTEREST" means, with respect to any property or
interest in property, now owned or hereafter acquired or created, of the
Borrower, any lien, claim, encumbrance, security interest or other interest of
the Banks' Agent or the Banks in such property or interests in property.
"BANKRUPTCY EVENT" means the commencement of a case under 11
USC Section 101, et seq. in which the Originator is the "debtor".
"▇▇▇▇ AND HOLD ARRANGEMENT" means an arrangement confirmed in
writing in which the Originator invoices the customer for goods but retains
possession of such goods for a period of time; provided, that all of the
following requirements are satisfied:
a. title to, and the risk of loss of, the goods
is transferred to the customer, and the
Originator's records are marked to indicate
that title has passed;
b. the Originator's records are adequate to
enable the Originator or a third-party to
identify the goods subject to such
arrangement as separate from the
Originator's own inventory at any time; and
3
c. the related invoice is payable on the normal
due date for similar Receivables of the
Originator that do not arise from a ▇▇▇▇ and
Hold Arrangement.
"BUSINESS DAY" has the meaning ascribed to such term in Annex
X to the Receivables Purchase and Servicing Agreement.
"CLAIM" means the Bank Claim or the Receivables Claim, as
applicable.
"COLLATERAL" means all property and interests in property, now
owned or hereafter acquired or created, of the Borrower in or upon which a Bank
Interest is granted or purported to be granted by the Borrower to the Banks or
the Banks' Agent under any of the Loan Documents.
"COLLECTIONS" means, with respect to any Receivable, all cash
collections and other proceeds of such Receivable (including late charges, fees
and interest arising thereon, and all recoveries with respect to Receivables
that have been written off as uncollectible) and any payments by the Originator,
the Seller or the Servicer in respect thereof pursuant to the terms of the
Receivables Documents but excluding, however, such proceeds received by the
Originator with respect to and as consideration for the sale of the Purchased
Receivables by the Originator to the Receivables Seller.
"COMPANY CLAIM" means all of the indebtedness, obligations and
other liabilities of the Receivables Seller to the Originator arising under, or
in connection with, the Receivables Documents, including, but not limited to,
obligations evidenced by any deferred purchase price note or other instrument,
and all costs of collection or enforcement thereof.
"CONCENTRATION ACCOUNT" has the meaning ascribed to such term
in the Annex X to the Receivables Purchase and Servicing Agreement, as the same
may be amended from time to time.
"CONTRACT" shall mean any agreement (including any invoice)
pursuant to, or under which, an Obligor shall be obligated to make payments with
respect to a Receivable.
"DISPOSITION" means, with respect to any assets of the
Originator, any liquidation of the Originator or the Originator's assets, the
establishment of any receivership for the Originator or the Originator's assets,
a bankruptcy proceeding of the Originator (either voluntary or involuntary), the
payment of any insurance, condemnation, confiscation, seizure or other claim
upon the condemnation, confiscation, seizure, loss or destruction thereof, or
damage to, or any other sale, transfer, assignment or other disposition of such
assets.
"ENFORCEMENT" means collectively or individually, for (a) any
of the Administrative Agent, the Receivables Collateral Agent or the Receivables
Purchasers to (i) declare the Facility Termination Date under the Receivables
Documents or (ii) commence the judicial enforcement of any of the default rights
and remedies under the Receivables Documents upon the occurrence of a
Termination Event, or the nonjudicial enforcement of the rights, powers and
remedies of the Administrative Agent or Receivables Collateral Agent to
foreclose or otherwise realize on the Receivables Program Assets upon the
occurrence of a Termination Event; or (b) any of the Banks or the Banks' Agent
after the occurrence and during the
4
continuance of a Bank Event of Default to demand payment in full of or
accelerate the indebtedness of the Borrower to the Banks and Banks' Agent or to
commence the judicial enforcement of any of the default rights and remedies
under the Loan Documents or nonjudicial enforcement of the rights, powers and
remedies of the Banks' Agent to foreclose or otherwise realize on the
Collateral.
"ENFORCEMENT NOTICE" means a written notice delivered in
accordance with Section 2.5 which notice shall (i) if delivered by the
Administrative Agent or the Receivables Collateral 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 (ii) if delivered by the
Banks' Agent, state that a Bank Event of Default has occurred and that the
payment in full of the Bank Claim has been demanded or the indebtedness of the
Borrower to the Banks has been accelerated, specify the nature of the Bank Event
of Default that caused such demand and acceleration, and state that an
Enforcement Period has commenced.
"ENFORCEMENT PERIOD" means the period of time following the
receipt by either the Banks' Agent, on the one hand, or the Administrative Agent
or the Receivables Collateral Agent, on the other, of an Enforcement Notice
delivered by any of the others until the earliest of the following: (1) the
Receivables Claim has been satisfied in full, none of the Receivables Purchasers
have any further obligations under the Receivables Documents and the Receivables
Documents have been terminated in accordance with their terms; (2) the Bank
Claim has been satisfied in full, the Banks have no further obligations under
the Loan Documents and the Loan Documents have been terminated in accordance
with their terms; (3) the Termination Event or Bank Event of Default, as the
case may be, giving rise to such Enforcement Notice has been cured or waived or
no longer continues to exist and the occurrence of such cure, waiver or
discontinuation has been confirmed in writing to the others by the person that
gave the related Enforcement Notice (and each of the Banks' Agent, the
Administrative Agent and the Receivables Collateral Agent agrees that if it has
given an Enforcement Notice and the related Termination Event or Bank Event of
Default has been cured or waived or no longer continues to exist, it will
promptly confirm such cure, waiver or discontinuation by notice to the others),
and (4) the parties each hereto agree in writing to terminate the Enforcement
Period.
"EXCLUDED RECEIVABLES" means any Receivable that is not a
Purchased Receivable, including any Receivable: (a) that was generated by
Avondale ▇▇▇▇▇ Graniteville Fabrics, Inc., a Delaware corporation, (b) the
Obligor with respect to which is: (i) an Obligor organized under the laws of any
jurisdiction outside of the United States of America (including the District of
Columbia but otherwise excluding its territories and possessions) or Canada or
(ii) any Obligor that is a Non-Domestic Person if such Non-Domestic Person both
(x) has been instructed to make payments on the Receivables owing by it to a
bank account other than a Lockbox Account or the Concentration Account and (y)
such Non-Domestic Person can be reasonably expected to follow such instructions
or (c) which arises out of the provision of goods or merchandise which is being
held by the Originator as bailee for Key Industries, Inc.
"EXCLUDED RECEIVABLES ASSETS" means: (i) "Inventory" (as that
term is defined in the Credit Agreement), other than Purchased Assets Returned
Goods; (ii) Excluded Receivables; and (iii) any Receivables or other proceeds of
"Inventory" created or arising (x) after a
5
Bankruptcy Event in which the Originator is the debtor (other than proceeds of
Purchased Assets Returned Goods), (y) after termination of purchases under the
Receivables Sale Agreement (other than proceeds of Purchased Assets Returned
Goods) or (z) from the sale or other disposition of any of the Inventory
Collateral (other than Purchased Assets Returned Goods) by the Banks' Agent, as
a secured party under the UCC.
"FACILITY TERMINATION DATE" has the meaning ascribed to such
term in Annex X to the Receivables Purchase and Servicing Agreement, as the same
may be amended from time to time.
"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.
"LOAN DOCUMENTS" has the meaning ascribed to such term in the
Credit Agreement.
"LOCKBOX" AND "LOCKBOX ACCOUNT" have the meaning ascribed to
such terms in the Annex X to the Receivables Purchase and Servicing Agreement,
as the same may be amended from time to time.
"NON-DOMESTIC PERSON" has the meaning ascribed to such term in
the Annex X to the Receivables Purchase and Servicing Agreement
"OBLIGOR" shall mean, with respect to any Receivable, the
Person obligated to make payments in respect of such Receivable; provided that
"Obligor" shall in no event include any person liable to any of the Banks or the
Banks' Agent for and solely to the extent of the purchase price of any Bank
Collateral sold to such person by the Banks' Agent or any Bank.
"OUTSTANDING BALANCE" has the meaning ascribed to such term in
Annex X to the Receivables Purchase and Servicing Agreement.
"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.
"PROCEEDS" has the meaning ascribed to such term in the UCC.
"PURCHASED ASSETS RETURNED GOODS" means all right, title and
interest of the Originator, the Receivables Seller, the Administrative Agent,
any Receivables Purchaser or the Receivables Collateral Agent, as applicable, in
and to returned, repossessed or foreclosed goods and/or merchandise (including
goods which are subject to a ▇▇▇▇ and Hold Arrangement, the delivery of which is
cancelled for any reason whatsoever) the sale of which gave rise to a Purchased
Receivable, but only so long as the Originator has not made all of the cash
payments required to be made under the Receivables Documents with respect to any
nonpayment, dilution, reduction or other adjustment of the outstanding balance
of such Purchased Receivable.
6
"PURCHASED RECEIVABLES" means now owned or hereafter existing
Receivables sold, purported to be sold, transferred or contributed or purported
to be transferred or contributed by the Originator to the Receivables Seller
under the Receivables Sale Agreement.
"RECEIVABLE" means:
(a) indebtedness of an Obligor (whether constituting an
account, chattel paper, document, instrument or general intangible) arising from
the provision of merchandise, goods or services to such Obligor (and expressly
including indebtedness arising out of a ▇▇▇▇ and Hold Arrangement), including
the right to payment of any interest or finance charges and other obligations of
such Obligor with respect thereto;
(b) all rights to returned merchandise or goods
(including goods which are subject to a ▇▇▇▇ and Hold Arrangement, the delivery
of which is cancelled for any reason), the sale of which gave rise to such
indebtedness, and all security interests or liens and property subject thereto
from time to time securing or purporting to secure any such indebtedness of such
Obligor;
(c) all of the Receivables Seller's credit balances due
from the Originator existing at any time;
(d) all guarantees, indemnities and warranties, insurance
policies, financing statements and other agreements or arrangements of whatever
character from time to time supporting or securing payment of any such
indebtedness;
(e) all Collections with respect to any of the foregoing;
(f) all Lockboxes, Lockbox Accounts, the Concentration
Account into which any Collections are deposited and all funds on deposit
therein and all certificates and instruments, if any, from time to time
representing or evidencing any Lockbox, Lockbox Account or the Concentration
Account;
(g) all notes, certificates of deposit and other
instruments from time to time delivered to or otherwise possessed by the
Receivables Seller or any assignee or agent on behalf of the Receivables Seller
in substitution for or in addition to any of the foregoing;
(h) 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 foregoing;
(i) all Records with respect to any of the foregoing; and
(j) all Proceeds (including returned goods) (whether
constituting accounts, deposit accounts, chattel paper, inventory, goods,
documents, instruments, supporting obligations, letter of credit rights,
investment property or general intangibles) with respect to the foregoing and
all accessions to, and substitutions and replacements for, all of the foregoing.
7
"RECEIVABLES CLAIM" means all indebtedness, obligations and
other liabilities of the Originator to the Receivables Seller and of the
Originator and the Receivables Seller to the Administrative Agent and the
Receivables Purchasers now or hereafter arising under, or in connection with,
the Receivables Documents, including, but not limited to, all sums or increases
now or hereafter advanced or made to or for the benefit of the Receivables
Seller thereunder as the purchase price paid for Purchased Receivables or
otherwise under the Receivables Purchase and Servicing Agreement, any yield
thereon (including, without limitation, yield accruing after the commencement of
a bankruptcy, insolvency or similar proceeding relating to the Originator,
whether or not such yield is an allowed claim in any such proceeding), any
repayment obligations, fees or expenses due thereunder, and any costs of
collection or enforcement of any such indebtedness, liabilities or obligations
or in realizing on or protecting or preserving any security therefor.
"RECEIVABLES DOCUMENTS" means the Receivables Sale Agreement,
the Receivables Purchase and Servicing Agreement and any other agreements,
instruments or documents (i) executed by the Originator and delivered to the
Receivables Seller or (ii) executed by the Receivables Seller and delivered to
the Administrative Agent and/or the Receivables Purchasers, in any case in
respect of the transactions contemplated by the Receivables Sales Agreement and
the Receivables Purchase and Servicing Agreement.
"RECEIVABLES INTEREST" means, with respect to any property or
interests in property, now owned or hereafter acquired or created, of the
Originator, any lien, claim, encumbrance, security interest or other interest of
the Receivables Seller, the Administrative Agent, any Receivables Purchaser
and/or the Receivables Collateral Agent in such property or interests in
property.
"RECEIVABLES PROGRAM ASSETS" means (i) the Purchased
Receivables, (ii) the Collections related to such Purchased Receivables, (iii)
Purchased Assets Returned Goods, and (iv) each deposit or other bank account to
which any Collections of such Purchased Receivables are deposited (but in no
event shall Receivables Program Assets include any Excluded Receivables Assets
or Collections or other monies deposited in such accounts which are not
Collections of Purchased Receivables).
"RECEIVABLES PURCHASER" means each Person from time to time
party to the Receivables Purchase and Servicing Agreement in the capacity of a
"Purchaser".
"RECORDS" means all Contracts and other documents, books,
records and other information (including computer programs, tapes, disks, data
processing software and related property and rights) maintained with respect to
Receivables, the Obligors thereunder and the Receivables Program Assets.
"SPECIFIED ASSETS" means the Receivables Program Assets.
"STOCK COLLATERAL" means the common stock of or membership
interests or other equity ownership interests in the Receivables Seller upon
which a Bank Interest is granted or purported to be granted by the Borrower or
any other owner thereof to the Banks or the Banks' Agent under any of the Loan
Documents.
8
"TERMINATION EVENT" has the meaning ascribed to such term in
Annex X to the Receivables Purchase and Servicing Agreement, as the same may be
amended from time to time.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the applicable jurisdiction.
1.2 References to Terms Defined in the Receivables
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 Receivables
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
Receivables Documents or Loan Documents, respectively, as in existence on the
date hereof, without giving effect to any amendments of such term (or any
amendment of terms used in 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 Receivables Program
Assets. Notwithstanding any provision of the UCC, any applicable law or judicial
decision or any of the Loan Documents or the Receivables Documents, the Banks'
Agent (for itself and on behalf of each Bank) hereby agrees that, upon the sale,
purported sale, transfer or purported transfer of an interest in any Receivable
by the Originator to the Receivables Seller pursuant to the Receivables Sale
Agreement, any Bank Interest of the Banks or the Banks' Agent in such
Receivables Program Assets shall automatically and without further action cease
and be forever released and discharged and the Banks' Agent and the Banks shall
have no Bank Interest therein; provided, however, that nothing in this Section
2.1 shall be deemed to constitute a release by the Banks' Agent and the Banks
of: (i) any Bank Interest in the cash proceeds received by the Originator from
the Receivables Seller for the sale of Receivables pursuant to the Receivables
Sale Agreement; (ii) any Bank Interest or right the Banks or the Banks' Agent
have in any Excluded Receivables Assets and the proceeds thereof; and (iii) any
Bank Interest in any Company Claim and any Stock Collateral; provided further,
however, that any Bank Interest in any Purchased Assets Returned Goods shall be
junior and subject and subordinate to the Receivables Interest therein unless
and until the Originator shall have made all cash payments required to be made
under the Receivables Documents with respect to any nonpayment, dilution,
reduction or other adjustment of the outstanding balance of any Purchased
Receivable related to such Purchased Assets Returned Goods, and upon the making
of such cash payments, such Purchased Assets Returned Goods shall cease to
constitute Purchased Assets Returned Goods hereunder and the Receivables
Interest therein shall terminate, unless and until such goods or merchandise
have been resold so as to give rise to a Receivable and such Receivable has been
sold or purported to be sold, transferred or purported to be transferred to the
Receivables Seller.
2.2. Respective Interests in Receivables Program Assets
and Bank Collateral.
(a) Except for all rights of access to and use of Records
granted to the Administrative Agent, the Receivables Purchasers and the
Receivables Collateral Agent pursuant to the Receivables Documents, each of the
Receivables Seller, the Administrative Agent (for itself and on behalf of each
Receivables Purchaser) and the Receivables Collateral Agent agrees
9
that it does not have and shall not have any Receivables Interest in the Bank
Collateral. Each of the Receivables Seller, the Administrative Agent (for itself
and on behalf of each Receivables Purchaser) and the Receivables Collateral
Agent agrees that it shall not request or accept, directly or indirectly (by
assignment or otherwise) from the Originator any collateral security for payment
of any Receivables Claim (other than Purchased Assets Returned Goods and the
right of access to and use of Records granted to the Administrative Agent, the
Collateral Agent and the Receivables Purchasers pursuant to the Receivables
Documents) and hereby releases and discharges any Receivables Interest in any
such collateral security.
(b) Except for rights in Purchased Assets Returned Goods
granted to the Banks' Agent and the Banks pursuant to the Loan Documents, which
Bank Interest is junior and subordinate to any Receivables Interest therein to
the extent provided herein, the Banks' Agent (for itself and on behalf of each
Bank) agrees that neither the Banks' Agent nor the Banks have, nor shall they
have, any Bank Interest in the Receivables Program Assets.
2.3. Distribution of Proceeds. At all times, all proceeds
of Bank Collateral and Receivables Program Assets received by the Banks' Agent
or by the Administrative Agent or Receivables Collateral Agent shall be
distributed by them in accordance with the following procedure:
(a) (i) All proceeds of the Bank Collateral (including,
without limitation, the proceeds of any Disposition of Bank Collateral,
regardless of whether the Banks' Agent has a perfected and enforceable lien in
such Bank Collateral) shall be paid to the Banks' Agent either (x) for
application against the Bank Claim and other obligations and liabilities owing
under the Credit Agreement and other Loan Documents, in each case to the extent
then due and owing and unpaid, until the Bank Claim and such other obligations
and liabilities have been paid and satisfied in full in cash and the Credit
Agreement is terminated, or (y) for other disposition in accordance with the
Credit Agreement and the other Loan Documents, and (ii) any remaining proceeds
shall be paid to the Borrower or as otherwise required by applicable law, and
each of the Receivables Seller, the Administrative Agent (for itself and on
behalf of each Receivables Purchaser) and the Receivables Collateral Agent
agrees that none of the Receivables Seller, the Administrative Agent, the
Receivables Purchasers or the Receivables Collateral Agent have, nor shall they
have, any Receivables Interest in such remaining proceeds.
(b) (i) All proceeds of the Receivables Program Assets
(including, without limitation, the proceeds of any Disposition of Receivables
Program Assets, regardless of whether the Receivables Collateral Agent has a
perfected and enforceable lien in such Receivables Program Assets) shall be paid
to the Receivables Collateral Agent either (x) for application against the
Receivables Claim in accordance with the Receivables Documents until the
Receivables Claim has been paid and satisfied in full in cash and the
Receivables Documents have been terminated, or (y) for other disposition in
accordance with the Receivables Documents, (ii) any remaining proceeds of
Purchased Assets Returned Goods shall be paid to the Banks' Agent, as pledgee of
the equity interests of the Receivables Seller, for application or other
disposition as provided in Section 2.3(a) above, and (iii) any remaining
proceeds shall be paid to the Receivables Seller or as otherwise required by
applicable law, and the Banks' Agent (for itself and on behalf of each Bank)
agrees that neither the Banks' Agent nor the Banks have, nor
10
shall they have, any Bank Interest in such remaining proceeds, except to the
extent of any Bank Interest in the Company Claim and any Stock Collateral.
(c) In the event that any of the Receivables Seller, the
Administrative Agent, the Receivables Purchasers or the Receivables Collateral
Agent now or hereafter obtains possession of any other Bank Collateral, it shall
immediately deliver such other Bank Collateral to the Banks' Agent or to such
other Person as the Banks' Agent shall specify in a written authorization for
delivery thereof (and until delivered to the Banks' Agent such Bank Collateral
shall be held in trust for the Banks' Agent). If at the time of such delivery
the Banks' Agent determines that, pursuant to the terms of the Loan Documents,
it is not entitled to retain possession of such other Bank Collateral (including
during the existence of a Bank Event of Default), the Banks' Agent shall
promptly deliver such other Bank Collateral to the Borrower.
(d) In the event that the Borrower, the Banks or the
Banks' Agent now or hereafter obtains possession of any other Receivables
Program Assets, it shall immediately deliver such other Receivables Program
Assets to the Receivables Collateral Agent or to such other Person as the
Receivable Collateral Agent shall specify in a written authorization for
delivery thereof (and until delivered to the Receivables Collateral Agent such
Receivables Program Assets shall be held in trust for the Receivables Collateral
Agent). If at the time of such delivery the Receivables Collateral Agent
determines that, pursuant to the terms of the Receivables Documents, it is not
entitled to retain possession of such other Receivable Program Assets, the
Receivables Collateral Agent shall promptly deliver such other Receivable
Program Assets to the Borrower.
(e) If any inventory of the Originator has been
commingled with Purchased Assets Returned Goods in which the Receivables
Interest continues as provided in Section 2.1 above, and the Banks' Agent or any
Bank 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 Receivables Interest, then the Banks' Agent and the Receivables Collateral
Agent shall, in good faith, cooperate with each other to separate the
Originator's inventory (and proceeds thereof) from such Purchased Assets
Returned Goods (and proceeds thereof); provided, however, that if such
separation is not possible, then the Banks' Agent and the Receivables Collateral
Agent agree to share such Inventory and Purchased Assets Returned Goods and
proceeds thereof proportionately which shall mean that (i) all proceeds of such
inventory shall be paid to the Banks' Agent and the Banks' Agent shall,
immediately upon receipt of such proceeds, pay to the Receivables Collateral
Agent for application, payment or other disposition as provided in Section
2.3(b) above, a share of such proceeds equal to the dollar amount thereof
multiplied by a fraction, the numerator of which equals the book value of the
Purchased Assets Returned Goods in which the Receivables Interest continues as
provided in Section 2.1 above and the denominator of which equals the book value
of all of the inventory on account of which the Banks' Agent has received such
cash proceeds; and (ii) any remaining proceeds shall be paid to the Banks' Agent
for application, holding and/or payment as provided in Section 2.3(a) above.
2.4. Excluded Receivables Assets.
(a) The Receivables Seller, the Administrative Agent (for
itself and on behalf of each Receivables Purchaser) and the Receivables
Collateral Agent hereby acknowledge that
11
the Banks' Agent on behalf of the Banks and itself shall be entitled to the Bank
Interest in all Excluded Receivable Assets, including Collections of Excluded
Receivables.
(b) Each of the parties hereto hereby agrees that all
Collections received on account of Receivables Program Assets shall be paid or
delivered to the Receivables Collateral Agent for application, payment or other
disposition in accordance with Section 2.3(b) and all Collections received on
account of Excluded Receivables shall be paid or delivered to the Banks' Agent
for application, payment or other disposition in accordance with Section 2.3(a).
For the purpose of determining whether specific Collections have been received
on account of Receivables Program Assets or on account of Excluded Receivables,
the parties 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 Excluded 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 Excluded Receivables but is not obligated
to make any payments on Purchased Receivables shall be conclusively presumed to
be payments on account of Excluded Receivables.
(ii) All payments made by an Obligor which is
obligated to make payments with respect to both Purchased Receivables and
Excluded Receivables shall be applied against the specific Receivables, if any,
which are designated by such Obligor by reference to the applicable Contract (or
otherwise identified by such Obligor in a writing delivered with such payment)
as the Receivables with respect to which such payments should be applied;
provided that where any Obligor makes payment and designates the applicable
Contracts of a group of two or more Receivables to which such payment shall be
applied and such payment is in an amount less than the aggregate Outstanding
Balance of such Receivables, such payment shall be applied pro rata to all such
Receivables. In the absence of such designation after reasonable efforts by the
Originator to obtain such designation, such payments shall be applied against
the oldest outstanding Receivables or portion owed by such Obligor to the extent
such oldest Receivable or portion thereof is not in dispute.
(c) The Banks' Agent agrees that it shall not exercise
any rights it may have under the Loan Documents to send any notices to Obligors
informing them of the Banks' interest in the Purchased Receivables or directing
such Obligors to make payments in any particular manner of any amounts due under
the Purchased Receivables prior to the latest of payment in full of the
Receivables Claim and the termination of the Receivables Documents, except that
the Banks' Agent may, subject to the provisions of the Loan Documents, inform
any Obligors of Excluded Receivables that such Excluded Receivables have been
assigned to the Banks' Agent so long as such notices expressly state that all
payments on account of such Excluded Receivables shall continue to be made as
otherwise required pursuant to the terms of the Receivables Documents. The
Banks' Agent further agrees that, prior to the latest of payment in full of the
Receivables Claim and the termination of the Receivables Documents, if it
receives payments directly from any Obligor on account of an Excluded
Receivable, it shall immediately forward such payment to the Administrative
Agent in order that such agent may determine whether such payment was, in fact,
properly allocated to such Excluded Receivable in
12
accordance with the terms of this Section 2.4 and, if necessary pursuant to the
terms hereof, reallocate such payment.
2.5. Enforcement Actions. Each of the Banks' Agent, the
Administrative Agent and the Receivables Collateral Agent agrees to use
reasonable efforts to give an Enforcement Notice to the others prior to
commencement of Enforcement (but failure to do so shall not prevent such Person
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
Receivables Documents, the Receivables Collateral Agent may at its
option and without the prior consent of the other parties hereto, take
any action to (i) accelerate payment of the Receivables Claim or any
other obligations and liabilities under any of the Receivables
Documents and (ii) liquidate the Receivables Program Assets or to
foreclose or realize upon or enforce any of its rights with respect to
the Receivables Program Assets.
(b) Subject to any applicable restrictions in the Loan
Documents, the Banks' Agent or the Banks may, at their option and
without the prior consent of the other parties hereto, take any action
to accelerate payment of the Bank Claim or any other obligation or
liability arising under any of the Loan Documents and to foreclose or
realize upon or enforce any of their rights with respect to the Bank
Collateral or other collateral security, including with respect to any
Receivables Program Assets constituting Purchased Assets Returned Goods
that have been commingled with the Bank Collateral, or take any other
actions as they deem appropriate; provided, however, that the Banks'
Agent shall not otherwise take any action to foreclose or realize upon
or to enforce any rights it may have with respect to uncommingled
Purchased Assets Returned Goods in which the Receivables Interest
continues as provided in Section 2.1 above or the Stock Collateral
without the Administrative Agent's and the Receivables Collateral
Agent's prior written consent unless the Receivables Claim or any other
obligation or liability arising under any of the Receivables Documents
shall have been first paid and satisfied in full and the Receivables
Documents have terminated.
2.6. Access to Records. Subject to any applicable
restrictions in the Receivables Documents, each of the Receivables Purchasers,
the Administrative Agent and the Receivables Collateral Agent may enter one or
more premises of the Originator, the Receivables Seller or their respective
affiliates, 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 Receivables Seller, such affiliates, the
Banks or the Banks' Agent, whether before, during or after an Enforcement
Period, and may have access to and use of all Records located thereon and may
have access to and use of any other property to which such access and use are
granted under the Receivables Documents, in each case provided that such use is
for the purpose of enforcing the Receivables Purchasers' and the Receivable
Collateral Agent's rights with respect to the Receivables Program Assets.
2.7. Accountings. The Banks' Agent agrees to render
statements to the Administrative Agent upon reasonable request, which statements
shall identify in reasonable
13
detail the Excluded Receivables and shall render an account of the Bank Claim,
giving effect to the application of proceeds of Bank Collateral as hereinbefore
provided. The Administrative Agent agrees to render statements to the Banks'
Agent upon reasonable request, which statements shall identify in reasonable
detail the Purchased Receivables and shall render an account of the Receivables
Claim, giving effect to the application of proceeds of Receivables Program
Assets as hereinbefore provided. The Banks' Agent and the Administrative Agent
shall bear no liability if their respective accounts are incorrect.
2.8. Agency for Perfection. The Receivables Collateral
Agent and the Banks' Agent hereby appoint each other as agent for purposes of
perfecting by possession their respective security interests and ownership
interests and liens on the Receivables Program Assets and the Bank Collateral
described hereunder. In the event that the Receivables Collateral Agent obtains
possession of any of the Bank Collateral, the Receivables Collateral Agent shall
notify the Banks' Agent of such fact, shall hold such Bank Collateral in trust
and shall deliver such Bank Collateral for application, payment or other
disposition as provided in Section 2.3(c) above. In the event that the Banks'
Agent obtains possession of any of the Receivables Program Assets, the Banks'
Agent shall notify the Receivables Collateral Agent and the Administrative Agent
of such fact, shall hold such Receivables Program Assets in trust and shall
deliver such Receivables Program Assets for application, payment or other
disposition as provided in Section 2.3(d) above.
2.9. 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 Receivables Program Assets or Bank 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.
2.10. Independent Credit Investigations. Neither the
Receivables Purchasers, the Administrative Agent, the Receivables Collateral
Agent, the Banks' Agent nor the Banks 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, the Receivables Seller or the Borrower to repay the Receivables
Claim or the Bank Claim, or for the worth of the Receivables Program Assets or
the Bank Collateral, or for statements of the Originator, the Receivables Seller
or the Borrower, oral or written, or for the validity, sufficiency or
enforceability of the Receivables Claim, the Bank Claim, the Receivables
Documents, the Loan Documents, the Receivables Collateral Agent's interest in
the Receivables Program Assets or the Banks' or Banks' Agent's interest in the
Bank Collateral. The Banks and the Receivables Purchasers have entered into
their respective agreements with the Originator, the Receivables Seller or the
Borrower, as applicable, based upon their own independent investigations. None
of the Banks, the Administrative Agent or the Receivables Purchasers 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
2.10.
2.11. 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 or a breach by such party or its
representatives of its obligations or agreements provided for herein.
14
2.12. Amendments to Financing Arrangements or to this
Agreement. The Banks' Agent agrees to use reasonable efforts to give,
concurrently with any written amendment or modification in the Loan Documents
that: (i) purports to affect Receivables or any Bank Interest therein; or (ii)
modifies the definitions of "Securitization Documents" or "Securitization
Facility" contained in the Credit Agreement, or otherwise would require the
Receivables Subsidiary to be subject (directly or indirectly) to any of the
representations, warranties or covenants of Subsidiaries or Material
Subsidiaries under the Credit Agreement or to be obligated to pay any of the
obligations to the Banks or to the Banks' Agent under the Credit Agreement and
other Loan Documents; or (iii) would affect the ability of Avondale ▇▇▇▇▇ to (a)
transfer Receivables (and expressly including indebtedness arising out of a ▇▇▇▇
and Hold Arrangement) and related assets to the Receivables Seller, (b) make
capital contributions to the Receivables Seller or (c) advance funds to the
Receivables Seller, prompt notice to the Administrative Agent and the
Receivables Collateral Agent of the same and the Administrative Agent agrees to
use reasonable efforts to, concurrently with any written amendment or
modification in the Receivables Documents, notify the Banks' 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 or affect any such amendment or modification. Each
party hereto shall, upon reasonable request of any other party hereto, provide
copies of all such modifications or amendments and copies of all other
documentation relevant to the Receivables Program Assets or the Bank 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.
2.13. Marshalling of Assets. Nothing in this Agreement will
be deemed to require either the Receivables Collateral Agent or the Banks' Agent
(i) to proceed against certain property securing the Bank Claim (or any other
obligation or liability under the Credit Agreement or other Loan Documents) or
the Receivables Claim (or any other obligation or liability under the
Receivables Documents), as applicable, prior to proceeding against other
property securing such Claim or obligations or liabilities or against certain
persons guaranteeing any such obligations or (ii) to ▇▇▇▇▇▇▇▇ the Bank
Collateral (or any other collateral) or the Receivables Program Assets (as
applicable) upon the enforcement of the Banks' Agent's or the Receivables
Collateral Agent's remedies under the Loan Documents or Receivables Documents,
as applicable.
2.14. Relative Rights.
(a) The relative rights of the Banks, each as against the
other, shall be determined by agreement among such parties in accordance with
the terms of the Loan Documents. The Administrative Agent, the Receivables
Collateral Agent and the Receivables Purchasers shall be entitled to rely on the
power and authority of the Banks' Agent to act on behalf of all of the Banks to
the extent the provisions hereof have the Banks' Agent so act.
(b) The Banks' Agent and Banks shall be entitled to rely
on the power and authority of the Receivables Collateral Agent and
Administrative Agent to act on behalf of the Receivables Purchasers to the
extent the provisions hereof have the Receivables Collateral Agent or the
Administrative Agent so act.
15
2.15. Effect Upon Loan Documents and Receivables Documents.
By executing this Agreement, the Originator and the Receivables Seller agree to
be bound by the provisions hereof (i) as they relate to the relative rights of
the Banks and the Banks' Agent with respect to the property of the Originator;
and (ii) as they relate to the relative rights of the Originator and the
Receivables Purchasers as creditors of the Receivables Seller. The Borrower
acknowledges that the provisions of this Agreement shall not give the Borrower
any substantive rights as against the Banks' Agent or the Banks and that nothing
in this Agreement shall amend, modify, change or supersede the terms of the Loan
Documents as between the Borrower, the Banks' Agent and the Banks. The
Receivables Seller acknowledges that the provisions of this Agreement shall not
give the Receivables Seller any substantive rights as against the Administrative
Agent, the Receivables Collateral Agent or the Receivables Purchasers and that
nothing in this Agreement shall amend, modify, change or supersede the terms of
the Receivables Documents as among the Receivables Seller, the Administrative
Agent, the Receivables Collateral Agent or the Receivables Purchasers. The
Originator and the Receivables Seller further acknowledge 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 Receivables Documents as between the Originator and
the Receivables Seller. Notwithstanding the foregoing, each of the
Administrative Agent (for itself and on behalf of each Receivables Purchaser),
the Receivables Collateral Agent and the Banks' Agent (for itself and on behalf
of each Bank) agrees, that, as between themselves, to the extent the terms and
provisions of the Loan Documents or the Receivables 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 Bank Claim and Modification of Loan
Documents. Each of the Receivables Seller, the Administrative Agent (for itself
and on behalf of each Receivables Purchaser) and the Receivables Collateral
Agent acknowledges that the Bank Claim and other obligations and liabilities
owing under the Loan Documents are, 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.
Except as expressly provided in Section 2.12, 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
Receivables Seller, the Administrative Agent, the Receivables Purchasers or the
Receivables Collateral Agent and without affecting the provisions of this
Agreement. Without in any way limiting the foregoing, each of the Receivables
Seller, the Administrative Agent (for itself and on behalf of each Receivables
Purchaser) or Receivables Collateral Agent hereby agrees that the maximum amount
of Bank 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
Receivables Documents. The Originator and the Banks' Agent (for itself and on
behalf of each Bank) acknowledges that the Receivables Claim and other
obligations and liabilities owing under the Receivables 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 Receivables Documents may be modified,
extended or amended from time to time, and the amount thereof may be increased
or
16
reduced, all without notice to or consent by any of the Banks or the Banks'
Agent and without affecting the provisions of this Agreement; provided, that the
Originator will notify the Banks' Agent and the Banks of any such modification,
extension, amendment, increase or reduction. Without in any way limiting the
foregoing, the Banks' Agent (for itself and on behalf of each Bank) hereby
agrees that the maximum amount of Receivables Claim and other obligations and
liabilities owing under the Receivables Documents and the amount of Receivables
which may be purchased or otherwise financed pursuant to the Receivables
Documents may, in each case, be increased at any time and from time to time to
any amount.
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 No Petition. 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 Receivables Documents have been terminated in accordance
with their terms, each of the parties hereto (except for each Receivables
Purchaser and the Receivables Seller as to itself) agrees that it shall not
consent to or vote for the filing of any petition in bankruptcy for the
Receivables Seller or the Receivable Purchaser.
2.20 No Challenge to Transfers or Assertion of Substantive
Consolidation.
(a) The Banks' Agent hereby agrees, on behalf of itself
and the Banks, that neither the Banks' Agent nor any Bank shall (i) challenge
the transfers of the Purchased Receivables and related assets from the
Originator to the Receivables Seller, whether on the grounds that such transfers
were disguised financings or fraudulent conveyances or otherwise, as long as
such transfers are carried out in all material respects in accordance with the
Receivables Documents or (ii) assert that the Originator and the Receivables
Seller should be substantively consolidated.
(b) The Receivables Collateral Agent hereby agrees that
it shall not (i) challenge the transfers of any Bank Collateral from the
Borrower to the Banks' Agent, whether on the grounds that such transfers were
fraudulent conveyances or otherwise, as long as such transfers are carried out
in all material respects in accordance with the Loan Documents or (ii) assert
that the Borrower and the Receivables Seller should be substantively
consolidated.
2.21 Receivables Seller Not Subject to Credit Agreement.
Each of the parties acknowledges and agrees that the Receivables Seller is not
and shall not become a party to or a guarantor of any obligations arising under
the Credit Agreement.
2.22 Concentration Account, Lockbox Accounts and
Lockboxes. Subject to the terms and conditions of this Section 2.22, the
Administrative Agent agrees that, upon the date the Receivables Claim shall have
been paid in full and the Receivables Purchase and Servicing Agreement shall
have been terminated in accordance with its terms, the Administrative Agent
shall assign all of its rights under that certain Blocked Account Agreement
dated as of August 30, 2002 among Originator, the Receivables Seller, the
Administrative Agent and Wachovia
17
Bank National Association to the Banks' Agent, for the Banks' Agent and the
Banks, and take such other action to assign prior ownership and control over the
Concentration Account, each Lockbox Account and each Lockbox to the Banks'
Agent; provided, however, that any Collections of Purchased Receivables which
are then on deposit in the Concentration Account or any Lockbox Account and are
not required to be paid to the Banks' Agent pursuant to Section 2.3 above shall
be delivered to the Receivables Seller before the foregoing transfer of
ownership and control of the Concentration Account, Lockbox Accounts and
Lockboxes. Such transfer of control is solely for the purpose of allowing the
Banks' Agent to maintain perfection by control over all proceeds of Bank
Collateral which may be deposited into the Concentration Account, any Lockbox
Account or any Lockbox. Any such transfer shall be without representation,
recourse or warranty of any kind on the part of the Administrative Agent or the
Receivables Collateral Agent.
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 party 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 (5) 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 Administrative Agent,
the Receivables Collateral Agent and the Receivables Purchasers shall be deemed
to have entered into the Receivables Documents in express reliance upon this
Agreement and the Banks and the Banks' 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 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 Receivables Seller under the U.S. Bankruptcy Code and all references herein
to the Originator or the Receivables Seller shall be deemed to apply to a
debtor-in-possession for such party and all allocations of payments between the
Banks, the Receivables Purchasers and the Receivables Collateral 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 their
respective successors and assigns. The successors and assigns for the Originator
and the Receivables Seller shall include a debtor-in-possession or trustee of or
for such party. The successors and assigns for the Banks, the Receivables
Purchasers, the Banks' Agent, the Administrative Agent and the Receivables
Collateral Agent, as the case may be, shall include any successor Banks,
Receivables Purchasers, Banks' Agent, Administrative Agent or Receivables
Collateral Agent, as the case may be,
18
appointed under the terms of the Loan Documents or the Receivables Documents, as
applicable. Each of the Banks' Agent (for itself and on behalf of each Bank),
the Administrative Agent (for itself and on behalf of each Receivables
Purchaser) and the Receivables Collateral Agent, as the case may be, agrees not
to transfer any interest it may have in the Loan Documents or the Receivables
Documents 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 Credit Agreement shall be refinanced, replaced or refunded,
the Originator, the Receivables Seller, the Administrative Agent and the
Receivables Collateral Agent hereby agree, at the request of the agent or the
lenders participating in such refinancing, replacement or refunding of the
Credit 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 the financing provided under the Receivables Documents shall be
refinanced, replaced or refunded, the Banks' Agent (for itself and on behalf of
each Bank) hereby agrees that, at the request of the agent or purchasers under
the facility that so refinances, replaces or refunds the financing under the
Receivables Documents, to execute and deliver a new intercreditor agreement with
such agent and/or purchasers on substantially the same terms as herein provided.
3.4. Beneficiaries. The terms and provisions of this
Agreement shall be for the sole benefit of the parties hereto, the Banks and the
Receivables Purchasers 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 OF THE STATE OF GEORGIA, BUT WITHOUT
REGARD TO CONFLICTS OF LAW PROVISIONS).
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 Pledge of Stock of Receivables Seller. The
Administrative Agent hereby agrees that, notwithstanding anything to the
contrary contained in the Receivables Documents, the Originator may pledge to
the Banks' Agent all of its right, title and interest in and to its equity
interest interests in the Receivables Seller, together with all dividends and
other rights relating thereto, pursuant to a Borrower Pledge Agreement in
substantially the form attached hereto as Exhibit A, and the Banks' Agent agrees
to furnish a copy of each such fully executed Borrower Pledge Agreement to the
Administrative Agent.
19
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
20
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 Administrative Agent and as
Receivables Collateral Agent
By:___________________________________
Name:
Title: Duly Authorized Signatory
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President-Portfolio/Avondale
▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
GENERAL ELECTRIC CAPITAL
CORPORATION, as Banks' Agent
By:___________________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President-Portfolio/Avondale
▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to Intercreditor Agreement
AVONDALE FUNDING, LLC,
as Receivables Seller
By: __________________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
AVONDALE ▇▇▇▇▇, INC.,
as the Originator, as Servicer and as
Borrower
By: __________________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice Chairman and Chief
Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to Intercreditor Agreement
EXHIBIT A
[attached]