Exhibit 10.19.5


 


Execution
Version


 


INTERCREDITOR AGREEMENT


 


THIS INTERCREDITOR AGREEMENT dated as of March 21,
2003 (as amended and in effect from time to time, this “Intercreditor
Agreement”) is by and between Congress Financial Corporation, a Delaware corporation
(“Congress”), in its capacity as the Revolving Loan Agent (as hereinafter
defined), and The Renco Group, Inc., a New York corporation (“Renco Group”), in
its capacity as the Term Loan Agent (as hereinafter defined).


 


W I T N E S S E T H:


 


WHEREAS, pursuant to the Revolving Loan Documents (as
hereinafter defined), the Revolving Loan Lenders (as hereinafter defined) have
entered into financing arrangements with the Borrowers (as hereinafter
defined), pursuant to which the Revolving Loan Lenders may, upon certain terms
and conditions, make loans and advances and provide other financial
accommodations to the Borrowers secured by certain assets and properties of the
Borrowers and the Obligors (as hereinafter defined);


 


WHEREAS, pursuant to the Term Loan Documents (as
hereinafter defined), the Term Loan Lenders (as hereinafter defined) have
entered into financing arrangements with Doe Run (as hereinafter defined),
pursuant to which the Term Loan Lenders may, upon certain terms and conditions,
make loans and advances and provide other financial accommodations to Doe Run
secured by certain assets and properties of Doe Run and the Obligors;


 


WHEREAS, pursuant to that certain Assignment and
Acceptance (as hereinafter defined), Renco Group has been assigned all rights
of Regiment Capital Advisors, L.L.C. (“Regiment”) under the Term Loan
Documents, as agent thereunder and all rights of Regiment Capital II, L.P. and
Lathi, LLC as lenders thereunder including, without limitation, the right to
receive all payments of principal, interest and fees due under the Term Loan
Agreement and the right to all collateral pledged as security under the Term
Loan Documents; and


 


WHEREAS, the Revolving Loan Lenders and the Term Loan
Lenders desire that the Revolving Loan Agent and the Term Loan Agent enter into
this Intercreditor Agreement (a) to confirm the relative priority of the
security interests of the Revolving Loan Lenders under the Revolving Loan
Documents, on one hand, and the Term Loan Lenders under the Term Loan Documents,
on the other hand, in certain of the assets and properties of the Borrowers and
the Obligors, (b) to provide for the orderly sharing among them, in
accordance with such priorities, of proceeds of such assets and properties upon
any foreclosure thereon or other disposition thereof and (c) to amend and
restate the terms and conditions of the Intercreditor Agreement, dated as of
October 29, 2002, between Revolving Loan Agent and Regiment, in its capacity as
prior Term Loan Agent;


 


NOW, THEREFORE, in consideration of the mutual
benefits accruing to the Revolving Loan Lenders and the Term Loan Lenders
hereunder and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:


 


 

















 


1.             DEFINITIONS; CERTAIN RULES OF
CONSTRUCTION


 


Certain capitalized terms are used in this
Intercreditor Agreement with the specific meanings set forth below in this
Section 1.  Except as otherwise
explicitly specified to the contrary or unless the context clearly requires
otherwise, (a) the capitalized term “Section” refers to sections of this
Intercreditor Agreement, (b) references to a particular Section include
all subsections thereof, (c) the word “including” shall be construed as
“including without limitation”, (d) references to a particular statute or
regulation include all rules and regulations thereunder and any successor
statute, regulation or rules, in each case as from time to time in effect,
(e) references to a particular Person include such Person’s successors and
assigns (including a receiver, trustee or debtor-in-possession on
behalf of such Person or on behalf of any such successor or assign) to the
extent not prohibited by this Intercreditor Agreement, (f) terms defined
in the UCC and not otherwise defined herein are used herein with the meanings
set forth in the UCC and (g) all references to any term in the plural
include the singular and all references to any term in the singular include the
plural.


 


1.1           “Additional
Loans” shall mean any Loans or Letter of Credit Accommodation made by the
Revolving Loan Lenders to any Borrower pursuant to Section 12.14 of the
Revolving Loan Agreement (or any successor section).


 


1.2           “Agent
Advances” shall have the meaning set forth in the Revolving Loan Agreement.


 


1.3           “Agents”
shall mean, collectively, the Revolving Loan Agent and the Term Loan Agent.


 


1.4           “Agreements”
shall mean, collectively, the Revolving Loan Documents and the Term Loan
Documents.


 


1.5           “Assignment
and Acceptance” shall mean the Assignment and Acceptance, dated as of March
21, 2003, among Doe Run, Regiment Capital II, L.P. and Lathi, LLC, as
assignors, Renco Group, as assignee and new agent and Regiment, as prior agent.


 


1.6           “Borrowers”
shall mean, collectively, Doe Run, The Buick Resource Recycling Facility LLC, a
Delaware limited liability company, and Fabricated Products, Inc., a Delaware
corporation.


 


1.7           “Borrowing
Base Loans” shall have the meaning set forth in the Revolving Loan
Agreement.


 


1.8           “Business
Day” shall have the meaning set forth in the Revolving Loan Agreement.


 


1.9           “Collateral”
shall have the meaning set forth in section 5.1 of the Revolving Loan Agreement
as in effect on the date hereof.


 


1.10         “Congress”
shall have the meaning set forth in the preamble to this Intercreditor
Agreement.


 


 


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1.11         “Debt”
shall mean, collectively, the Revolving Loan Debt and the Term Loan Debt.


 


1.12         “Doe
Run” shall mean The Doe Run Resources Corporation, a New York corporation.


 


1.13         “Event
of Default” shall mean any act, condition or event that is either an Event
of Default as such term is defined in the Revolving Loan Documents as in effect
on the date hereof or an Event of Default as such term is defined in the Term
Loan Documents as in effect on the date hereof.


 


1.14         “Insolvency
Proceeding” shall have the meaning set forth in the Revolving Loan
Agreement.


 


1.15         “Intercreditor
Agreement” shall have the meaning set forth in the preamble to this
Agreement.


 


1.16         “Junior
Participation Agreement” shall mean the Junior Participation Agreement,
dated as of October 29, 2002, by and among Renco Group, the financial
institutions from time to time parties to the Revolving Loan Agreement, and the
Revolving Loan Agent, as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced.


 


1.17         “Lenders”
shall mean, collectively, the Revolving Loan Lenders and the Term Loan Lenders.


 


1.18         “Letter
of Credit Accommodations” shall have the meaning set forth in the Revolving
Loan Agreement.


 


1.19         “Lien”
shall mean any mortgage, deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance (including easements,
rights of way and the like), lien (statutory or other), security agreement or
transfer intended as security, including any conditional sale or other title
retention agreement, the interest of a lessor under a capital lease or any
financing lease having substantially the same economic effect as any of the foregoing.


 


1.20         “Loans”
shall have the meaning set forth in the Revolving Loan Agreement.


 


1.21         “Obligors”
shall mean, collectively, all Persons liable on, or in respect of, the
Revolving Loan Debt or the Term Loan Debt, other than the Borrowers.


 


1.22         “Person”
shall mean any individual, sole proprietorship, partnership, corporation
(including any corporation which elects subchapter S status under the Internal
Revenue Code of 1986), limited liability corporation, limited liability
partnership, business trust, unincorporated association, joint stock company,
trust, joint venture, or other entity or any government or any agency or
instrumentality or political subdivision thereof.


 


 


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1.23         “Regiment”
shall have the meaning set forth in the recitals to this Intercreditor
Agreement.


 


1.24         “Renco
Group” shall have the meaning set forth in the preamble to this
Intercreditor Agreement.


 


1.25         “Renco
Participation Agreement” shall mean the Junior Participation Agreement, dated
as of October 29, 2002, by and between the Revolving Loan Agent and Renco
Group, as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced.


 


1.26         “Revolving
Loan Agent” shall mean Congress in its capacity as agent pursuant to the
Revolving Loan Agreement for the benefit and on behalf of the Revolving Loan
Lenders, and any successor, assignee or additional Person at any time acting as
agent for the benefit of or on behalf of the Revolving Loan Lenders.


 


1.27         “Revolving
Loan Agreement” shall mean the Amended and Restated Loan and Security
Agreement, dated as of October 29, 2002, by and among the Revolving Loan Agent,
the other Revolving Loan Lenders, the Borrowers and certain of their
affiliates, as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced.


 


1.28         “Revolving
Loan Debt” shall mean all obligations, liabilities and indebtedness of
every kind, nature and description owing by any Borrower or any Obligor to any
Revolving Loan Lender and/or its affiliates or participants, including
principal, interest, charges, fees, premiums, indemnities and expenses, however
evidenced, whether as principal, surety, endorser, guarantor or otherwise, arising
under the Revolving Loan Documents, by operation of law or otherwise, whether
now existing or hereafter arising, whether arising before, during or after the
initial or any renewal term of any Revolving Loan Document or after the
commencement of any case with respect to any Borrower or any Obligor under the
United States Bankruptcy Code or any similar statute (and including any
principal, interest, fees, costs, expenses and other amounts which would accrue
and become due but for the commencement of such case or similar proceeding and
whether or not such amounts are allowable in whole or in part in any such case
or similar proceeding), whether direct or indirect, absolute or contingent,
joint or several, due or not due, primary or secondary, liquidated or
unliquidated, secured or unsecured, and whether arising directly or howsoever
acquired by any Revolving Loan Lender.


 


1.29         “Revolving
Loan Documents” shall mean, collectively, the Revolving Loan Agreement and
all agreements, documents and instruments at any time executed and/or delivered
by any Borrower, any Obligor or any other Person with, to or in favor of any
Revolving Loan Lender in connection therewith or related thereto, as all of the
foregoing now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.


 


1.30         “Revolving
Loan Lenders” shall mean, collectively, the Revolving Loan Agent and any
other Person who is a party to any Revolving Loan Document as a lender
(including any other lender or group of lenders that at any time succeeds to or
refinances, replaces or substitutes for all or any portion of the Revolving
Loan Debt at any time and from time to time).


 


 


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1.31         “Revolving
Loan Termination Date” shall mean the date that the Revolving Loan Lenders
have received payment in full in cash or other immediately available funds of
all of the Revolving Loan Debt and the Revolving Loan Agreement shall have been
terminated; provided, that, if after receipt of any payment of,
or application of proceeds of any Collateral applied to the repayment of, all
or any part of the Revolving Loan Debt, any Revolving Loan Lender is required
to surrender or return such payment or proceeds to any person for any reason,
then the Revolving Loan Debt or any part thereof intended to be satisfied by
such payment or proceeds shall be reinstated, revised and continue and the
Revolving Loan Termination Date shall not be deemed to have occurred.


 


1.32         “Supplemental
Loans” shall have the meaning set forth in the Revolving Loan Agreement as
in effect on the date hereof.


 


1.33         “Term
Loan Agent” shall mean Renco Group in its capacity as agent pursuant to the
Term Loan Agreement for the benefit and on behalf of the Term Loan Lenders, and
any successor, assignee or additional Person at any time acting as agent for
the benefit of or on behalf of the Term Loan Lenders.


 


1.34         “Term
Loan Agreement” shall mean the Credit Agreement, dated as of October 29,
2002, by and among Doe Run, Regiment and the Term Loan Lenders, as the same now
exists or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced.


 


1.35         “Term
Loan Debt” shall mean all obligations, liabilities and indebtedness of
every kind, nature and description owing by any Borrower or any Obligor to any
Term Loan Lender and/or its affiliates or participants, including principal,
interest, charges, fees, premiums, indemnities and expenses, however evidenced,
whether as principal, surety, endorser, guarantor or otherwise, arising under
the Term Loan Documents, by operation of law or otherwise, whether now existing
or hereafter arising, whether arising before, during or after the initial or
any renewal term of any Term Loan Document or after the commencement of any case
with respect to any Borrower or any Obligors under the United States Bankruptcy
Code or any similar statute (and including any principal, interest, fees,
costs, expenses and other amounts which would accrue and become due but for the
commencement of such case or similar proceeding and whether or not such amounts
are allowable in whole or in part, in any such case or similar proceeding),
whether direct or indirect, absolute or contingent, joint or several, due or
not due, primary or secondary, liquidated or unliquidated, secured or
unsecured, and whether arising directly or howsoever acquired by any Term Loan
Lender.


 


1.36         “Term
Loan Documents” shall mean, collectively, the Term Loan Agreement and all
agreements, documents and instruments at any time executed and/or delivered by
any Borrower, any Obligor or any other Person with, to or in favor of any Term
Loan Lender in connection therewith or related thereto, as all of the foregoing
now exist or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced.


 


1.37         “Term
Loan Lenders” shall mean, collectively, the Term Loan Agent and any other
Person who is a party to any Term Loan Document as a lender (including any
other lender or group of lenders that at any time succeeds to or refinances,
replaces or substitutes for all or any portion of the Term Loan Debt at any
time and from time to time).


 


 


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1.38         “Term
Loan Priority Collateral” shall mean the assets and properties of Borrowers
and Obligors that are subject to the security interests and liens of the Term
Loan Agent, for the benefit of itself and the other Term Loan Lenders, pursuant
to the terms of the Term Loan Documents as in effect on the date hereof to
secure the Term Loan Debt, other than the Collateral.


 


1.39         “Third
Party Purchaser” shall have the meaning set forth in Section 2.4(e).


 


1.40         “UCC”
shall mean the Uniform Commercial Code as in effect on the date hereof in the
State of New York.


 


2.             SECURITY INTERESTS; PRIORITIES;
REMEDIES


 


2.1           Acknowledgement.  The Revolving Loan Agent hereby acknowledges
that the Term Loan Agent acting for and on behalf of the Term Loan Lenders has
been granted Liens upon all of the Collateral pursuant to the Term Loan
Documents to secure the Term Loan Debt. 
The Term Loan Agent hereby acknowledges that the Revolving Loan Agent
acting for and on behalf of the Revolving Loan Lenders has been granted Liens
upon all of the Collateral pursuant to the Revolving Loan Documents to secure
the Revolving Loan Debt.


 


2.2           Priorities.


 


(a)           Notwithstanding
the order or time of attachment of, or the order, time or manner of perfection
of, or the order or time of filing or recordation of any document or instrument
with respect to, or any other method of perfecting, any security interest in
favor of any Lender in any Collateral, and notwithstanding any conflicting
terms or conditions which may be contained in any of the Agreements,
(i) the Liens of the Revolving Loan Agent, for the benefit of the
Revolving Loan Lenders, upon the Collateral have and shall have priority over
the Liens of the Term Loan Agent, for the benefit of the Term Loan Lenders,
upon the Collateral and (ii) the Liens of the Term Loan Agent, for the
benefit of the Term Loan Lenders, upon the Collateral are and shall be, in all
respects, subject and subordinate to the Liens of the Revolving Loan Agent, for
the benefit of the Revolving Loan Lenders, upon the Collateral.


 


(b)           The
lien priorities provided in this Section 2.2 shall not be altered or otherwise
affected by any amendment, modification, supplement, extension, renewal,
restatement, replacement or refinancing of either the Revolving Loan Debt or
the Term Loan Debt, nor by any action or inaction which any Lender may take or
fail to take in respect of the Collateral.


 


(c)           Each
Lender shall be solely responsible for perfecting and maintaining the
perfection of its Lien in and to each item constituting the Collateral in which
such Lender has been granted a Lien. 
The foregoing provisions of this Intercreditor Agreement are intended
solely to govern the respective lien priorities as between the Revolving Loan
Lenders, on one hand, and the Term Loan Lenders, on the other hand, and shall
not impose on any of the Lenders any obligations in respect of the disposition
of proceeds of foreclosure on any Collateral which would conflict with prior
perfected claims therein in favor of any other Person or any order or decree of
any court or other governmental authority or any applicable law.


 


 


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(d)           No
Revolving Loan Lender will contest the validity, perfection, priority or
enforceability of the Liens of the Term Loan Agent, for the benefit of the Term
Loan Lenders, upon the Collateral and no Term Loan Lender will contest the
validity, perfection, priority or enforceability of the Liens of the Revolving
Loan Agent, for the benefit of the Revolving Loan Lenders, upon the
Collateral.  As between the Revolving
Loan Lenders, on one hand, and the Term Loan Lenders, on the other hand, the
terms of this Intercreditor Agreement shall govern even if part or all of the
Revolving Loan Debt or the Term Loan Debt or the Liens securing payment and
performance thereof are avoided, disallowed, set aside or otherwise invalidated
in any judicial proceeding or otherwise.


 


2.3           Disposition
of Proceeds.


 


(a)           The
proceeds of any sale, disposition or other realization upon all or any part of
the Collateral shall be applied to the Debt in the following order of
priorities:


 


(i)            first,
to the payment in full in cash or other immediately available funds of all
costs, expenses and other charges of the Revolving Loan Lenders under the
Revolving Loan Documents and all indemnities under the Revolving Loan Documents
then due to the Revolving Loan Lenders;


 


(ii)           second,
to the payment in full in cash or other immediately available funds of all fees
payable by Borrowers under the Revolving Loan Documents then due;


 


(iii)          third,
to the payment in full in cash or other immediately available funds of all interest
due in respect of all Loans (including all Borrowing Base Loans, Supplemental
Loans, Agent Advances and Additional Loans); except, that, at any
time an Event of Default exists or has occurred and is continuing or on and
after the commencement of any insolvency Proceeding, the portion of any
interest payable in respect of the Supplemental Loans equivalent to the amounts
payable to Renco Group under section 4.6 of the Renco Participation Agreement
shall not be paid pursuant to this clause (iii) but shall be paid as provided
in clause (xiii) of this Section 2.3;


 


(iv)          fourth,
to the payment in full in cash or other immediately available funds of the
principal amount of all Agent Advances and Additional Loans;


 


(v)           fifth,
to the payment in full in cash or other immediately available funds of the
principal amount of all Borrowing Base Loans and the principal amount of all
Supplemental Loans to the extent that the Revolving Loan Agent has not received
payments in respect thereof from Renco Group under the terms of the Renco
Participation Agreement; except, that, at any time that the
conditions set forth in section 3.3(e) of the Revolving Loan Agreement are
satisfied as determined by the Revolving Loan Agent, then to the prepayment of
the principal amount of all Supplemental Loans to the extent permitted
thereunder and, thereafter, to the payment in full in cash or other immediately
available funds of the principal amount of all Borrowing Base Loans;


 


(vi)          sixth,
to the payment in full in cash or other immediately available funds of cash
collateral for the Letter of Credit Accommodations in an amount equal to one
hundred ten (110%) percent of the amount of the Letter of Credit Accommodations
plus the amount of 


 


 


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any
fees and expenses payable in connection therewith through the end of the latest
expiration date of the Letter of Credit Accommodations and any other cash
collateral to be provided to the Revolving Loan Agent under the terms of the
Revolving Loan Documents;


 


(vii)         seventh,
to the payment in full in cash or other immediately available funds of all
other Revolving Loan Debt, other than the principal amount of the Supplemental
Loans to the extent that the Revolving Loan Agent has received payments in respect
thereof from Renco Group under the terms of the Renco Participation Agreement;


 


(viii)        eighth,
to the payment in full in cash or other immediately available funds of
(A) the principal amount of the Supplemental Loans to the extent that the
Revolving Loan Agent has received payments in respect thereof from Renco Group
under the terms of the Renco Participation Agreement and (B) at any time
an Event of Default exists or has occurred and is continuing or on and after
the commencement of any Insolvency Proceeding, the portion of any interest
payable in respect of the Supplemental Loans equivalent to the amounts payable
to Renco Group under section 4.6 of the Renco Participation Agreement; and


 


(ix)           ninth,
to the payment in full in cash or other immediately available funds of the Term
Loan Debt.


 


(b)           All
proceeds of the Collateral received by the Term Loan Lenders prior to the
Revolving Loan Termination Date shall be forthwith paid over, in the funds and
currency received, to the Revolving Loan Lenders for application to the Debt
(subject to Section 2.2 and unless otherwise required by law) in accordance
with Section 2.3(a).  All proceeds of
the Collateral received by the Revolving Loan Lenders after the Revolving Loan
Termination Date shall be forthwith paid over, in the funds and currency
received, to the Term Loan Agent for application to the Term Loan Debt (subject
to Section 2.2(c)).  Each Borrower and
Obligor hereby agrees that Lenders shall have no liability to any Borrower or
Obligor and Borrowers and Obligors hereby waive and release Revolving Loan
Lenders from any claims, actions or proceedings as a result of the payment of
such proceeds.


 


2.4           Remedies.


 


(a)           In
the event that any Lender shall, in the exercise of any of its rights under its
Agreements, receive possession or control of any books and records of any
Borrower or Obligor which contain information identifying or pertaining to any
of the property of any Borrower or Obligor in which the other party has been
granted a Lien, it shall notify the other Lenders that it has received such
books and records and shall, as promptly as practicable thereafter, make
available to the other Lenders such books and records for inspection and
duplication.


 


(b)           The
Revolving Loan Agent shall have the exclusive right to manage, perform and
enforce the terms of the Revolving Loan Documents with respect to the
Collateral, to exercise and enforce all privileges and rights thereunder
according to its discretion and the exercise of its business judgment,
including the exclusive right to take or retake control or possession of the
Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or
liquidate the Collateral.


 


(c)           Notwithstanding
anything to the contrary contained in any of the Agreements, except as
otherwise provided in this Intercreditor Agreement, only the Revolving Loan
Lenders 


 


 


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shall
have the right to restrict or permit, or approve or disapprove, the sale,
transfer or other disposition of any of the Collateral.  The Term Loan Agent shall (i) be deemed
to have automatically and without further action released and terminated any
Liens it may have on the Collateral to the extent such Collateral is sold or
otherwise disposed of either by the Revolving Loan Agent, any agent of the
Revolving Loan Agent, or any Borrower or Obligor with the consent of the
Revolving Loan Agent, (ii) be deemed to have authorized the Revolving Loan
Agent to file UCC amendments and terminations covering the Collateral so sold
or otherwise disposed of as to UCC financing statements between any Borrower or
Obligor and any Term Loan Lender to evidence such release and termination,
(iii) promptly upon the request of the Revolving Loan Agent execute and
deliver such other release documents and confirmations of the authorization to
file UCC amendments and terminations provided for herein, in each case as the
Revolving Loan Agent may reasonably require in connection with such sale or
other disposition by the Revolving Loan Agent, any agent or any Borrower or
Obligor with the consent of the Revolving Loan Agent to evidence and effectuate
such termination and release, provided, that, any such release or
UCC amendment or termination by any Term Loan Lender shall not extend to or
otherwise affect any of the rights, if any, of the Term Loan Agent to the
proceeds from any such sale or other disposition of Collateral, and
(iv) be deemed to have consented under the Term Loan Documents to such
sale or other disposition.  In the event
that for any reason the Term Loan Agent shall fail to promptly execute and
deliver to the Revolving Loan Agent any such release documents, the Revolving
Loan Agent is hereby irrevocably authorized to execute and deliver such release
documents on behalf of any Term Loan Lender as its attorney-in-fact.  Any such sale or other disposition of any of
the Collateral conducted by the Revolving Loan Agent in connection with the
exercise of its rights and remedies to any affiliate of any Borrower or any
Obligor shall be conducted in a commercially reasonable manner or amounts paid
in respect of such sale shall otherwise be consistent with the value of such
Collateral as determined by an appraiser or other valuation by an appropriate
third party.


 


(d)           No
Term Loan Lender shall, directly or indirectly:  (i) exercise any of its rights or remedies if an Event of
Default or an act, condition or event which with notice, or passage of time, or
both would constitute an Event of Default exists or has occurred against any
Collateral; (ii) seek to foreclose or realize upon (judicially or non-judicially)
its Lien on any Collateral or assert any claims or interest therein (including
by setoff or notification of account debtors); or (iii) take any other
action with respect to the Collateral or any other assets or properties of any
Borrower or any Obligor that interferes in any material respect with the rights
of the Revolving Loan Lenders with respect to the Collateral; provided, that,
nothing contained in this Section 2.4(d) shall be construed in any way to limit
or impair the right of any Term Loan Lender: 
(A) to participate in any administrative, legal or equitable action
or proceeding against any Borrower or any Obligor seeking any reorganization,
liquidation, bankruptcy or any other action involving the readjustment of all
or any part of the Term Loan Debt, or other similar relief under the United
States Bankruptcy Code; provided, that, in no event shall any
Term Loan Lender (1) challenge any Liens of any Revolving Loan Lender,
(2) challenge or dispute the validity or priority of any Revolving Loan
Debt, or (3) vote its claim in any manner which would be inconsistent with
the provisions of this Intercreditor Agreement; (B) to exercise its right
to accelerate the maturity of all or any part of the Term Loan Debt;
(C) to send notices to any governmental authority of the existence of, or
any evidence or confirmation of, the Term Loan Debt owed to any Term Loan
Lender or the Liens of the Term Loan Agent, for the benefit of any Term Loan
Lender, in the Collateral, or file or record any such notice or evidence to the
extent 


 


 


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necessary
to prove or preserve (1) the obligations of any Borrower or any Obligor in
respect of the Term Loan Debt or (2) the Liens of the Term Loan Agent, for
the benefit of any Term Loan Lender, in the Collateral; (D) to bid at a
foreclosure or other sale of the Collateral; or (E) to exercise any rights
or remedies, or to take any other action, with respect to any Lien of any Term
Loan Lender upon any of the Term Loan Priority Collateral; provided, that,
(1) such exercise of rights and remedies shall be subject to the rights of
the Revolving Loan Lenders set forth in Section 2.4(e) and (2) in
connection with any sale or other disposition of any Term Loan Priority
Collateral by any Term Loan Lender, the terms of any such sale or disposition
shall require that any Third Party Purchaser or assignees thereof acquire such
Term Loan Priority Collateral subject to the rights of the Revolving Loan
Lenders set forth in Section 2.4(e).


 


(e)           In
the event that the Term Loan Lenders shall acquire control or possession of any
Term Loan Priority Collateral or shall, through the exercise of remedies under
the Term Loan Documents or otherwise, sell any of the Term Loan Priority
Collateral to any third party (a “Third Party Purchaser”), the Term Loan
Lenders shall permit the Revolving Loan Lenders, at their option:  (i) to enter any or all of the Term
Loan Priority Collateral consisting of real property and improvements thereon
of any Borrower or any Obligor under such control or possession of the Term
Loan Lenders (or sold to a Third Party Purchaser) during normal business hours
in order (A) to inspect, remove or take any action with respect to the
Collateral (including manufacturing or processing raw materials or work-in-process
into finished inventory), (B) to enforce the Revolving Loan Lenders’
rights with respect thereto, including the examination and removal of the
Collateral and the examination and duplication of the books and records of the
Borrowers and the Obligors related to the Collateral under the possession and
control of the Term Loan Lenders (or sold to a Third Party Purchaser),
(C) to otherwise reasonably handle, deal with or dispose of any
Collateral, such right to include, without limiting the generality of the
foregoing, the right to conduct one or more public or private sales or auctions
on any or all of the real property and improvements thereon of any Borrower or
any Obligor under such control or possession of the Term Loan Lenders (or sold
to a Third Party Purchaser) and (D) to use any of the equipment consisting
of computers or other data processing equipment related to the storage or
processing of records, documents or files pertaining to the Collateral and to
use any other equipment to handle, deal with or dispose of any Collateral
pursuant to the Revolving Loan Lenders’ rights as set forth in the Revolving
Loan Documents, the Uniform Commercial Code of any applicable jurisdiction and
other applicable law; and (ii) use any of the intellectual property marked
or stamped on any Collateral for purposes of selling any Collateral or
otherwise necessary or reasonably desirable in connection with the collection,
sale, or other disposition of any Collateral. 
No Lender shall have any responsibility or liability for the acts or
omissions of any other Lender arising in connection with such other Lender’s
use and/or occupancy of the real property, equipment or intellectual property
of any Borrower or any Obligor.


 


2.5           No
Liability.  If any Revolving Loan
Lender should honor a request by any Borrower or any Obligor for a loan,
advance or other financial accommodation under the Revolving Loan Documents,
whether or not any Revolving Loan Lender has knowledge that the honoring of
such request would result in an Event of Default, or act, condition or event
which with notice or passage of time or both would constitute an Event of
Default, in no event shall any Revolving Loan Lender have any liability
whatsoever to any Term Loan Lender as a result of such breach, and without
limiting the generality of the foregoing, each Term Loan Lender agrees 


 


 


10

















 


that
no Revolving Loan Lender shall have any liability for tortious interference
with contractual relations or for inducement by any Revolving Loan Lender of
any Borrower or any Obligor to breach of contract or otherwise.  If any Term Loan Lender should honor a
request by any Borrower or any Obligor for a loan, advance or other financial
accommodation under the Term Loan Documents, whether or not any Term Loan
Lender has knowledge that the honoring of such request would result in an Event
of Default, or act, condition or event which with notice or passage of time or
both would constitute an Event of Default, in no event shall any Term Loan
Lender have any liability whatsoever to any Revolving Loan Lender as a result
of such breach, and without limiting the generality of the foregoing, each
Revolving Loan Lender agrees that no Term Loan Lender shall have any liability
for tortious interference with contractual relations or for inducement by any
Term Loan Lender of any Borrower or any Obligor to breach of contract or
otherwise.  Nothing contained in this Section
2.5 shall limit or waive (a) any right that any Revolving Loan Lender has
to enforce any of the provisions of the Revolving Loan Documents against any
Borrower or any Obligor or (b) any right that any Term Loan Lender has to
enforce any of the provisions of the Term Loan Documents against any Borrower
or any Obligor.


 


2.6           Purchase
Option.


 


(a)           At
any time on or after an Event of Default under the Revolving Loan Documents and
the written demand by the Revolving Loan Agent to the Borrowers for the immediate
payment of all of the Revolving Loan Debt, or on or after the foreclosure by
the Revolving Loan Lenders on any of the Collateral or the exercise by the
Revolving Loan Lenders of any of their rights to sell, collect or otherwise
dispose of any Collateral, the Term Loan Agent for itself or the benefit of the
Term Loan Lenders shall have the option at any time upon five (5) Business Days
prior written notice to the Revolving Loan Agent to purchase all of the
Revolving Loan Debt from the Revolving Loan Lenders.  Such notice from the Term Loan Agent to the Revolving Loan Agent
shall be irrevocable.


 


(b)           On
the date specified by the Term Loan Agent in such notice (which date shall be
not less than five (5) Business Days, nor more than ten (10) Business Days
after the receipt by the Revolving Loan Agent of the notice from the Term Loan
Agent of its election to exercise such option), the Revolving Loan Lenders
shall, subject to any required approval of any court or other governmental
authority, sell to the Term Loan Lenders, and the Term Loan Lenders shall,
subject to any required approval of any court or other governmental authority,
purchase from the Revolving Loan Lenders, the Revolving Loan Debt.  The Revolving Loan Agent, on behalf of the
Revolving Loan Lenders hereby represents and warrants that, as of the date
hereof, no such approval of any court or other governmental authority is
required for such sale.  The Term Loan
Agent, on behalf of the Term Loan Lenders, hereby represents and warrants that,
as of the date hereof, no such approval of any court or other governmental
authority is required for such purchase. 
Notwithstanding anything to the contrary contained herein, in connection
with any such purchase and sale, the Revolving Loan Lenders shall retain all
rights under the Revolving Loan Documents to be indemnified or held harmless by
a Borrower and Obligor in accordance with the terms thereof (which rights of
the Revolving Loan Lenders, to the extent secured by the Collateral, shall be
subject and subordinate to the Liens of the Term Loan Agent therein, including
the Liens securing the Term Loan Debt and the Liens securing the Revolving Loan
Debt that is acquired by the Term Loan Lenders pursuant to the exercise of its
purchase option provided for herein).


 


 


11

















 


(c)           On
the date of such purchase and sale, the Term Loan Lenders shall:


 


(i)            pay
to the Revolving Loan Agent, as the purchase price therefor, an amount equal to
the full amount of all of the Revolving Loan Debt then outstanding and unpaid
(including principal, interest, fees and expenses, including reasonable
attorneys’ fees and legal expenses);


 


(ii)           furnish
cash collateral to the Revolving Loan Agent in such amounts as the Revolving
Loan Agent determines is reasonably necessary to secure the Revolving Loan
Lenders in connection with any issued and outstanding Letter of Credit
Accommodations (but in any event not in an amount greater than one hundred ten
(110%) percent of the aggregate undrawn face amount of such Letter of Credit
Accommodations plus the amount of any commissions, fees and expenses payable in
connection therewith through the end of the latest expiration date of such
Letter of Credit Accommodations, including reasonable attorneys’ fees and
expenses);


 


(iii)          expressly
assume and adopt all of the obligations of the Revolving Loan Lenders under the
Revolving Loan Documents and perform such obligations on and after the date of
the purchase and sale;


 


(iv)          agree
to reimburse the Revolving Loan Lenders without offset, defense or counterclaim
for any loss, cost, damage or expense (including reasonable attorneys’ fees and
legal expenses in each case) in connection with any checks or other payments
provisionally credited to the Revolving Loan Debt and as to which the Revolving
Loan Lenders have not yet received final payment and any other liabilities of
the Revolving Loan Lenders to the depository banks of which any accounts are
maintained for the handling of collections and the remittance thereof to the
Revolving Loan Lenders; and


 


(v)           agree
to pay to the Revolving Loan Lenders within three (3) Business Days after the
actual receipt by any Term Loan Lender of any payment in cash or other
immediately available funds of the early termination fee pursuant to the
Revolving Loan Agreement as in effect on the date of the purchase and sale of
the Revolving Loan Debt to the Term Loan Lenders, an amount equal to one
hundred (100%) percent of such fee actually received by the Term Loan Lenders
if the notice of termination or effective date of termination occurred within
ninety (90) days after the effective date of the purchase of the Revolving Loan
Debt by the Term Loan Lenders.


 


(d)           Such
purchase price and cash collateral shall be remitted by wire transfer in
federal funds to such bank account of the Revolving Loan Agent in New York, New
York, as the Revolving Loan Agent may designate in writing to the Term Loan
Agent for such purpose.  Interest shall
be calculated to but excluding the Business Day on which such purchase and sale
shall occur if the amounts so paid by the Term Loan Lenders to the bank account
designated by the Revolving Loan Agent are received in such bank account prior
to 12:00 noon, New York City time, and interest shall be calculated to and including
such Business Day if the amounts so paid by the Term Loan Lenders to the bank
account designated by the Revolving Loan Agent are received in such bank
account later than 12:00 noon, New York City time.


 


 


12

















 


(e)           Such
purchase shall be expressly made without representation or warranty of any kind
by the Revolving Loan Lenders as to the Revolving Loan Debt, the Collateral or
otherwise and without recourse to the Revolving Loan Lenders, except that each
Revolving Loan Lender shall represent and warrant to the Term Loan Lenders
that:  (i) the amount of the
Revolving Loan Debt being purchased as reflected in the books and records of
such Revolving Loan Lender (but without representation or warranty as to the
collectibility, validity or enforceability thereof),  (ii) such Revolving Loan Lender owns the Revolving Loan Debt
free and clear of any Liens created by such Revolving Loan Lender and
(iii) such Revolving Loan Lender has the right to assign the Revolving
Loan Debt and the assignment is duly authorized.


 


(f)            Upon
the purchase by the Term Loan Lenders of the Revolving Loan Debt pursuant to
this Section 2.6, (i) the Term Loan Lenders shall indemnify and hold each
Revolving Loan Lender harmless from and against all loss, cost, damage or
expense (including attorneys’ fees and legal expenses) suffered or incurred by
such Revolving Loan Lender arising from or in any way relating to actions or
omissions of the Term Loan Lenders after such purchase and (ii) the Revolving
Loan Lenders shall indemnify and hold each Term Loan Lender harmless from and
against all loss, cost, damage or expense suffered or incurred by such Term
Loan Lender arising from or in any way relating to the actions or omissions of
the Revolving Loan Lenders prior to such purchase.


 


2.7           Bailee
for Perfection.  Each Lender hereby
appoints the other Lenders, and each hereby agrees to serve, as agent and
bailee for the other Lenders for the purpose of perfecting their respective
Liens on any of the Collateral, and a Lender that at any time has any
Collateral in its possession acknowledges that it holds and will hold
possession of such Collateral for the benefit of the Lenders.  Each Lender shall not have any duty to
protect or preserve any rights pertaining to any of such Collateral held by it,
and each Lender hereby waives and releases the other Lenders from all claims
and liabilities at any time arising pursuant to the role of agent and bailee
with respect to the Collateral held by it, except for the gross negligence or
wilful misconduct of the bailee Lender as determined pursuant to a final, non-appealable
order of a court of competent jurisdiction.


 


2.8           Notices
of Default and Acceleration.  Each
Agent shall give to the other Agent concurrently with the giving thereof to any
Borrower or any Obligor, a copy of any written notice by such Agent of either
(a) a default or an event of default under its Agreements with such
Borrower or Obligor or (b) written notice of demand for payment from such
Borrower or Obligor provided, that, the failure of any party to
give any such notice to the other shall not affect the relative priorities of
the Lenders’ respective Liens as provided herein or the validity or
effectiveness of any such notice as against any Borrower or any Obligor.  The Borrowers and Obligors hereby authorize
and consent to each Agent sending any such notices to the other Agent or
providing any other information with respect to any Borrower or any Obligor to the
other Agent.


 


 


13

















 


3.             MISCELLANEOUS


 


3.1           Additional
Representations.


 


(a)           The
Term Loan Agent represents and warrants to the Revolving Loan Lenders that:


 


(i)            as
of the date hereof, no default or event of default, or act, condition or event
which with notice or passage of time or both would constitute an event of
default under any of the Term Loan Documents exists or has occurred, as for
which a waiver has not been granted prior to the date hereof or as to which the
grant of a waiver is not contemplated to be provided by Term Loan Lenders
within five (5) Business Days of the date hereof;


 


(ii)           the
execution, delivery and performance of this Intercreditor Agreement by the Term
Loan Agent is within its powers in its capacity as agent for each Term Loan
Lender and has been authorized by each Term Loan Lender as provided in, and in
accordance with the requirements of, the Term Loan Documents, and does not
contravene any law, any provision of any of the Term Loan Documents or any
other agreement to which the Term Loan Agent is a party or by which it is
bound;


 


(iii)          the
Term Loan Agent has been duly appointed and constituted as agent to act for and
on behalf of each Term Loan Lender and has been irrevocably authorized to
execute and deliver this Intercreditor Agreement for itself and on behalf of
each Term Loan Lender and to perform all of its obligations hereunder, and to
take such actions on behalf of each Term Loan Lender as may be required of it
under the terms hereof, without any further consent or approval of any Term
Loan Lender and is in such position as of the date hereof;


 


(iv)          the
Term Loan Lenders have not been granted, and do not have, any Liens upon the
assets and properties of any Borrower pursuant to the Term Loan Documents,
except for the Liens granted to the Term Loan Agent on behalf and for the
benefit of the Term Loan Lenders thereunder; and


 


(v)           this
Intercreditor Agreement constitutes the legal, valid and binding obligation of
the Term Loan Lenders, enforceable against the Term Loan Lenders in accordance
with its terms.


 


(b)           The
Revolving Loan Agent represents and warrants to the Term Loan Lenders that:


 


(i)            as
of the date hereof, no default or event of default, or act, condition or event
which with notice or passage of time or both would constitute an event of
default under any of the Revolving Loan Documents exists or has occurred,
except for the “Existing Defaults” as such term is defined in Amendment No. 1
to Amended and Restated Loan and Security Agreement, dated as of March 11, 2003,
by and among Congress, as agent for itself and the financial institutions from
time to time party to the Revolving Loan Agreement, The CIT Group/Business
Credit, Inc., as co-agent, the Borrowers and DR Land Holdings, LLC, as
guarantor.


 


 


14

















 


(ii)           the
execution, delivery and performance of this Intercreditor Agreement by the
Revolving Loan Agent is within its powers in its capacity as agent for each
Revolving Loan Lender and has been authorized by each Revolving Loan Lender as
provided in, and in accordance with the requirements of, the Revolving Loan
Documents, and does not contravene any law, any provision of any of the
Revolving Loan Documents or any other agreement to which the Revolving Loan
Agent is a party or by which it is bound;


 


(iii)          the
Revolving Loan Agent has been duly appointed and constituted as agent to act
for and on behalf of each Revolving Loan Lender and has been irrevocably
authorized to execute and deliver this Intercreditor Agreement for itself and
on behalf of each Revolving Loan Lender and to perform all of its obligations
hereunder, and to take such actions on behalf of each Revolving Loan Lender as
may be required of it under the terms hereof, without any further consent or
approval of any Revolving Loan Lender and is in such position as of the date
hereof,


 


(iv)          the
Revolving Loan Lenders have not been granted, and do not have, any Liens upon
the assets and properties of any Borrower pursuant to the Revolving Loan
Documents, except for the Liens on the Collateral granted to the Revolving Loan
Agent for the benefit of the Revolving Loan Lenders thereunder; and


 


(v)           this
Intercreditor Agreement constitutes the legal, valid and binding obligation of
the Revolving Loan Lenders, enforceable against the Revolving Loan Lenders in
accordance with its terms.


 


3.2           Amendments.  Any waiver, permit, consent or approval by
any party of or under any provision, condition or covenant to this
Intercreditor Agreement must be in writing and shall be effective only to the
extent it is set forth in writing and as to the specific facts or circumstances
covered thereby.  Any amendment of this
Intercreditor Agreement must be in writing and signed by each of the parties to
be bound thereby; provided, that, notwithstanding that such
amendment may be signed only by the Revolving Loan Agent or the Term Loan
Agent, each Agent is hereby authorized to rely on such execution by the other
Agent without inquiry as to such Agent’s right or authority to so bind any Revolving
Loan Lender or Term Loan Lender as the case may be.


 


3.3           Successors
and Assigns.


 


(a)           This
Intercreditor Agreement shall be binding upon each of the Lenders and its
successors and assigns and shall inure to the benefit of each of the Lenders
and its successors, participants and assigns. 
Notwithstanding that each Revolving Loan Lender and each Term Loan
Lender may not execute and deliver this Intercreditor Agreement, each Revolving
Loan Lender and each Term Loan Lender shall be bound hereby as if each Revolving
Loan Lender and each Term Loan Lender had executed and delivered this
Intercreditor Agreement.  Each Revolving
Loan Lender and each Term Loan Lender acknowledges that the Lenders are relying
upon the binding nature of this Intercreditor Agreement upon each Revolving
Loan Lender and each Term Loan Lender.


 


 


15

















 


(b)           To
the extent provided in their respective Agreements and subject to Section
8.2(b) of the Junior Participation Agreement, each of the Lenders may grant
participations in, or otherwise sell, assign, transfer or negotiate all or any
part of, or any interest in, the Revolving Loan Debt or the Term Loan Debt, as
the case may be, and the Collateral securing same; provided, however, that no
Lender shall be obligated to give any notices to or otherwise in any manner
deal directly with any participant in the Revolving Loan Debt or the Term Loan
Debt, as the case may be, and no participant shall be entitled to any rights or
benefits under this Intercreditor Agreement except through the Lender with
which it is a participant.  In
connection with any such participation or other transfer or assignment, a
Lender (i) may, subject to its Agreements, disclose to such assignee,
participant or other transferee or assignee all documents and information which
such Lender now or hereafter may have relating to any Borrower, any Obligor or
the Collateral (in connection with the transactions contemplated by the
Revolving Loan Documents and the Term Loan Documents) and (ii) shall
disclose to such participant or other transferee or assignee the existence and
terms and conditions of this Intercreditor Agreement.


 


(c)           In
connection with any assignment or transfer of any or all of the Revolving Loan
Debt or the Term Loan Debt, as the case may be, or any or all rights of the
Revolving Loan Lenders or the Term Loan Lenders, as the case may be, in the
property of any Borrower or any Obligor (other than pursuant to a
participation), the Revolving Loan Agent shall (and is hereby irrevocably
authorized and directed by each other Revolving Loan Lender) and the Term Loan
Agent shall (and is hereby irrevocably authorized and directed by each other
Term Loan Lender) to execute and deliver an agreement containing terms
substantially identical to those contained herein in favor of any such assignee
or transferee and, in addition, will execute and deliver an agreement
containing terms substantially identical to those contained herein in favor of
any third Person who succeeds to or refinances, replaces or substitutes for any
or all of the Revolving Loan Debt or the Term Loan Debt, as the case may be,
whether such successor or replacement financing occurs by transfer, assignment,
“takeout” or any other means or vehicle.


 


3.4           Insolvency.  This Intercreditor Agreement shall be
applicable both before and after the filing of any petition by or against any
Borrower or any Obligor under the United States Bankruptcy Code and all
converted or succeeding cases in respect thereof, and all references herein to
any Borrower or any Obligor shall be deemed to apply to a trustee for any
Borrower or any Obligor and any Borrower or any Obligor as debtor-in-possession.  The relative rights of the Revolving Loan
Lenders and the Term Loan Lenders to repayment of the Revolving Loan Debt and
the Term Loan Debt, respectively, and in or to any distributions from or in
respect of any Borrower or any Obligor or any Collateral or proceeds of any
Collateral, shall continue after the filing thereof on the same basis as prior
to the date of the petition, subject to any court order approving the financing
of, or use of cash collateral by, any Borrower or any Obligor as debtor-in-possession.


 


3.5           Bankruptcy
Financing.  If (a) any Borrower
or any Obligor shall become subject to a proceeding under the United States
Bankruptcy Code and (b) the Revolving Loan Agent desires to permit the use
of cash collateral or to provide financing to such Borrower or such Obligor
under either Section 363 or 364 of the United States Bankruptcy Code, each Term
Loan Lender agrees that: 
(i) adequate notice to the Term Loan Lenders shall have been
provided for such use of cash collateral or such financing if the Term Loan
Agent receives notice five 


 


 


16

















 


Business
Days prior to the entry of the order approving such use of cash collateral or
such financing; and (ii) no objection will be raised by the Term Loan
Agent or any Term Loan Lender to any such financing on the ground of a failure
to provide “adequate protection” for the Liens of the Term Loan Agent, for the
benefit of itself or any Term Loan Lenders, on the Collateral or any other
grounds with respect to the Collateral, provided, that, the Term
Loan Agent, for the benefit of the Term Loan Lenders, retains a Lien on the
post-petition Collateral with the same priority as its Lien on the
Collateral that existed prior to the commencement of the proceeding under the
United States Bankruptcy Code.  Nothing
in this Section 3.5 shall be deemed to prohibit any Term Loan Lender from
providing financing to any Borrower or any Obligor in any proceeding under the
United States Bankruptcy Code so long as any Lien on the Collateral in favor of
any Term Loan Lender with respect to such financing has the same priority as
the Lien in favor of the Term Loan Agent, for the benefit of the Term Loan
Lenders, on the Collateral that existed prior to the commencement of the
proceeding under the United States Bankruptcy Code.  For purposes of this Section 3.5, notice of a proposed use of
cash collateral or a proposed financing shall be deemed given when given to the
Term Loan Agent in the manner prescribed by Section 3.6.


 


3.6           Notices.  All notices, requests and demands to or upon
the respective parties hereto shall be in writing and shall be deemed duly
given, made or received:  (a) if
delivered in person, immediately upon delivery; (b) if delivered by telex,
telegram or facsimile transmission, immediately upon sending and upon confirmation
of receipt; (c) if delivered by nationally recognized overnight courier
service with instructions to deliver the next Business Day, one Business Day
after sending; and (d) if mailed by certified mail, return receipt
requested, five days after mailing to the applicable party at its address set forth
below (or to such other address as such party may designate in accordance with
the provisions of this Section 3.6):


 


	
  To the Revolving
  Loan Agent:

  	
   

  	
  Congress
  Financial Corporation, as Agent

  
	
   

  	
   

  	
  1133 Avenue of
  the Americas

  
	
   

  	
   

  	
  New York, New
  York  10036

  
	
   

  	
   

  	
  Attention:  Portfolio Manager

  
	
   

  	
   

  	
  Telecopy:  (212) 840-4283

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Otterbourg,
  Steindler, Houston & Rosen, P.C.

  
	
   

  	
   

  	
  230 Park Avenue

  
	
   

  	
   

  	
  New York, New
  York  10169

  
	
   

  	
   

  	
  Attn:  David W. Morse, Esq.

  
	
   

  	
   

  	
  Telecopy:  (212) 682-6104

  
	
   

  	
   

  	
   

  
	
  To the Term Loan
  Agent:

  	
   

  	
  The Renco Group,
  Inc., as Agent

  
	
   

  	
   

  	
  30 Rockefeller
  Plaza, 42nd Floor

  
	
   

  	
   

  	
  New York, New
  York 10112

  
	
   

  	
   

  	
  Attention:  Mr. Roger Fay

  
	
   

  	
   

  	
  Telecopy:  (212) 541-6197

  



 


 


17

















 


	
  with a copy to:

  	
   

  	
  Cadwalader,
  Wickersham & Taft LLP

  
	
   

  	
   

  	
  100 Maiden Lane

  
	
   

  	
   

  	
  New York, New
  York 10038

  
	
   

  	
   

  	
  Attention:  Michael C. Ryan, Esq.

  
	
   

  	
   

  	
  c/o Managing
  Attorneys’ Office

  
	
   

  	
   

  	
  Telecopy:  (212) 504-6666

  



 


Any party may change the address to which all notices,
requests and other communications are to be sent to such party by giving
written notice of such address change to the other party in conformity with
this Section 3.6, but such change shall not be effective until notice of such
change has been received by the other party.


 


3.7           Counterparts.  This Intercreditor Agreement may be executed
in any number of counterparts, each of which shall be an original with the same
force and effect as if the signatures thereto and hereto were upon the same
instrument.


 


3.8           Governing
Law.  The validity, construction and
effect of this Intercreditor Agreement shall be governed by the internal laws
of the State of New York but excluding any principles of conflicts of law or
other rule of law that would cause the application of the laws of any
jurisdiction other than the laws of the State of New York.


 


3.9           Consent
to Jurisdiction; Waiver of Jury Trial. 
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK IN NEW YORK COUNTY
AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS
INTERCREDITOR AGREEMENT.


 


3.10         Complete
Agreement.  This written
Intercreditor Agreement is intended by the parties as a final expression of
their agreement and is intended as a complete statement of the terms and
conditions of their agreement.


 


3.11         No
Third Parties Benefitted.  Except as
expressly provided in Section 3.3, this Intercreditor Agreement is solely for
the benefit of the Lenders and their respective successors, participants and
assigns, and no other Person shall have any right, benefit, priority or
interest under, or because of the existence of, this Intercreditor Agreement.


 


3.12         Disclosures;
Non-Reliance.  Each Lender has
the means to, and shall in the future remain, fully informed as to the
financial condition and other affairs of the Borrowers and the Obligors, and no
Lender shall have any obligation or duty to disclose any such information to
any other Lender.  Except as expressly
set forth in this Intercreditor Agreement, the parties hereto have not
otherwise made to each other nor do they hereby make to each otter any
representations or warranties, express or implied, nor do they assume any
liability to each other with respect to: 
(a) the enforceability, validity, value or collectability of any of
the Revolving Loan Debt or the Term Loan Debt or any guarantee or security
which may have been granted to any of them in connection therewith;
(b) any Borrower’s or any Obligor’s title to, or right to 


 


 


18

















 


transfer,
any of the Collateral; or (c) any other matter except as expressly set
forth in this Intercreditor Agreement.


 


3.13         Term.  Upon the Revolving Loan Termination Date and
without any further action required by any party, this Intercreditor Agreement
shall terminate and shall be of no further force or effect, and the Term Loan
Lenders shall have no further obligations or liabilities to the Revolving Loan
Agent or the Revolving Loan Lenders hereunder.


 


3.14         No
Offset.  In the event that Renco
Group, in its capacity as Term Loan Lender or otherwise, at any time incurs any
obligation to pay money to any Borrower or other Obligor or any Revolving Loan
Lender under any Revolving Loan Document, Renco Group hereby irrevocably agrees
that it shall pay such obligation in cash or cash equivalents in accordance
with the terms of the contract governing such obligation and shall not deduct
from, or setoff against, any amounts owed by Renco Group, in its capacity as
Term Loan Lender or otherwise to any Borrower or other Obligor or any Revolving
Loan Lender under any Revolving Loan Document in connection with any such
transaction, any amounts Renco Group claims are due to it in its capacity as
Term Loan Lender with respect to the Term Loan Debt or otherwise.


 


3.15         Amendment
and Restatement.  As of the date
hereof, Revolving Loan Agent and Renco Group, in its capacity as Term Loan
Agent (as successor to Regiment, in such capacity, pursuant to the Assignment
and Acceptance) are entering into this Intercreditor Agreement so that the
terms, conditions, agreements, covenants, representations and warranties set
forth in the Intercreditor Agreement, dated as of October 29, 2002, between
Revolving Loan Agent and Regiment, in its capacity as prior Term Loan Agent,
are hereby amended and restated in their entirety, and as so amended and
restated, are replaced and superceded, by the terms, conditions, agreements,
covenants, representations and warranties set forth in this Intercreditor
Agreement.


 


IN WITNESS WHEREOF, the parties have caused this
Intercreditor Agreement to be duly executed as of the day and year first above
written.


 


	
   

  	
  CONGRESS FINANCIAL
  CORPORATION,

  as Revolving Loan Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Herbert Korn

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:
  

  	
  Vice
  President

  



 


[SIGNATURE OF THE RENCO GROUP, INC.
FOLLOWS ON NEXT PAGE]


 


 


19

















 


	
   

  	
  THE RENCO GROUP, INC.

  as Term Loan Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roger Fay

  
	
   

  	
   

  	
  Name:

  	
  Roger
  Fay

  
	
   

  	
   

  	
  Title:
  

  	
  Vice
  President-Finance

  



 


[SIGNATURES
OF THE DOE RUN RESOURCES CORPORATION AND THE BUICK RESOURCE RECYCLING FACILITY
LLC FOLLOW ON NEXT PAGE]


 


 


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ACKNOWLEDGMENT AND CONSENT


 


The undersigned hereby acknowledges and agrees to the
foregoing terms and provisions of this Intercreditor Agreement.  By its signature below, the undersigned
agrees that it will, together with its successors and assigns, be bound by the
provisions hereof.


 


The undersigned agrees that any of Lenders holding
Collateral does so as bailee (under the UCC) for each other of Lenders which
has a Lien on such Collateral and is hereby authorized to, and may, turn over
to such other Lender upon request therefor any such Collateral, after all
obligations and indebtedness of the undersigned to the bailee Lender have been
fully paid and performed.


 


The undersigned acknowledges and agrees that:  (a) although it may sign this
Intercreditor Agreement it is not a party hereto and does not and will not
receive any right, benefit, priority or interest under or because of the
existence of this Intercreditor Agreement (except for a consent which is deemed
to have been given by any of Lenders under Section 2.8); and (b) it will
execute and deliver such additional documents and take such additional action
as may be necessary or desirable in the reasonable opinion of any of Lenders to
effectuate the provisions and purposes of this Intercreditor Agreement.


 


	
   

  	
  THE DOE RUN

  RESOURCES CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Chaput

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:
  

  	
  Vice
  President-Finance

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BUICK RESOURCE 

  RECYCLING FACILITY LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey Zelms

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:
  

  	
  Manager

  



 


[SIGNATURES OF FABRICATED PRODUCTS,
INC. AND DR LAND HOLDINGS, LLC

FOLLOW ON NEXT PAGE]


 


 


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  FABRICATED PRODUCTS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jerry Pyatt

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:
  

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  DR LAND HOLDINGS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Chaput

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:
  

  	
  Executive
  V.P. of The Doe Run Resources Corporation

  



 


 


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