Exhibit 4.5
JOINDER AGREEMENT
This Agreement, dated as of May 20, 2005, is between Abimex, LLC (the
"New Obligor"), and Fleet National Bank, a Bank of America Company, as domestic
agent (the "Domestic Agent") under the Credit Agreement referred to below. The
parties agree as follows:
1. Reference to Credit Agreement, Security Agreement, Guarantee Agreement;
Definitions. Reference is made to: (1) the Amended and Restated Credit Agreement
dated as of the date hereof (the "Credit Agreement"), among American Biltrite
Inc., a Delaware corporation (the "Company"), K&M Associates L.P., a Rhode
Island limited partnership ("K&M"), American Biltrite (Canada), Ltd., a
corporation governed by the Canada Business Corporations Act, the Canadian
Lenders and Domestic Lenders (collectively, the "Lenders") from time to time
party hereto, Fleet National Bank, a Bank of America Company ("Fleet"), both in
its capacity as a Domestic Lender and in its capacity as domestic administrative
agent for the Lenders, and Bank of America, National Association, acting through
its Canada branch ("Bank of America Canada"), both in its capacity as a Canadian
Lender and in its capacity as Canadian administrative agent for the Lenders, (2)
the Security Agreement dated as of October 14, 2003, among the Company, K&M, the
Subsidiaries of the Company from time to time party thereto, and the Domestic
Agent, and (3) the Guarantee Agreement dated as of October 14, 2003, among
ABTRE, Inc., a Tennessee corporation, Aimpar, Inc., a New York corporation,
American Biltrite Intellectual Properties, Inc., a Delaware corporation, Ideal
Tape Co., Inc., a Delaware corporation, Majestic Jewelry, Inc., a Delaware
corporation, Ocean State Jewelry, Inc., a Rhode Island corporation, 425 Dexter
Associates, L.P., a Rhode Island limited partnership, and the Domestic Agent for
itself and the other Lenders under the Credit Agreement. Terms defined in the
Credit Agreement are used herein with the meanings so defined.
2. Joinder. Effective as of the date on which all the conditions in Section 4
below are satisfied (the "Joinder Date"), the New Obligor joins in and becomes
party (as fully as if the New Obligor had been an original signatory thereto) to
(a) the Guarantee Agreement as a Guarantor and Obligor thereunder for all
purposes thereof and (b) the Security Agreement as an Obligor thereunder for all
purposes thereof.
3. Representations and Warranties. The New Obligor represents and warrants that
the representations and warranties contained in Section 7 of the Credit
Agreement, Section 2.6 of the Guarantee Agreement, and Section 3.6 of the
Security Agreement are true and correct with respect to the New Obligor as if
fully set forth herein and originally made as of the date hereof.
4. Conditions. The effectiveness of the joinder in Section 2 above shall be
subject to the satisfaction of the following conditions on or prior to the
Joinder Date:
4.1. Representations and Warranties. The representations and warranties
made or incorporated by reference herein shall be true and correct on the
Joinder Date as if originally made as of such date and, if the Joinder Date is
after the date hereof, the New Obligor shall have furnished to the Domestic
Agent a certificate to such effect signed by a Financial Officer.
4.2. Proper Proceedings. This Agreement shall have been authorized by all
necessary corporate or other proceedings. All necessary consents, approvals and
authorizations of any governmental or administrative agency or any other Person
of any of the transactions contemplated hereby shall have been obtained and
shall be in full force and effect.
4.3. General. All legal and corporate proceedings in connection with the
transactions contemplated by this Agreement shall be satisfactory in form and
substance to the Domestic Agent and the Domestic Agent shall have received
copies of all documents, including certified copies of the Charter and By-Laws
of the New Obligor, records of corporate proceedings, and certificates as to
signatures and incumbency of officers, which the Domestic Agent or the Required
Lenders may have reasonably requested in connection therewith, such documents
where appropriate to be certified by proper corporate or governmental
authorities.
5. Confirmation of Grant of Credit Security. Pursuant to the terms of the
Guarantee Agreement, the Security Agreement and the other Credit Documents, as
security for the payment and performance of the Credit Obligations, the New
Obligor mortgages, pledges and collaterally grants and assigns to the Domestic
Agent for the benefit of the Domestic Lenders and the holders from time to time
of any Credit Obligation, and creates a security interest in favor of the
Domestic Agent for the benefit of the Domestic Lenders and such holders in, all
of the New Obligor's right, title and interest in and to (but none of its
obligations or liabilities with respect to) the items and types of present and
future property described in Sections 3.1.1 through 3.1.14 of the Security
Agreement (subject, however, to Section 3.1.15 thereof), whether now owned or
hereafter acquired, all of which shall be included in the Credit Security.
6. Confirmation of Grant of Guarantee. Pursuant to the terms of the Guarantee
Agreement, the Security Agreement and the other Credit Documents, the New
Obligor unconditionally guarantees that the Credit Obligations will be performed
and paid in full in cash when due and payable, whether at the stated or
accelerated maturity thereof or otherwise, this guarantee being a guarantee of
payment and not of collectability and being absolute and in no way conditional
or contingent.
7. Further Assurances. The New Obligor will, upon the request of the Domestic
Agent from time to time, execute, acknowledge and deliver, and file and record,
all such instruments, and take all such action, as the Domestic Agent may
reasonably request to carry out the intent and purpose of this Agreement and any
other Credit Document.
8. Notices. Any notice or other communication to the New Obligor in connection
with this Agreement or any other Credit Document shall be deemed to be delivered
if in writing and addressed as set forth in Section 13 of the Credit Agreement.
9. General. This Agreement and the other Credit Documents constitute the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede all prior and current understandings and agreements,
whether written or oral. Except to the extent specifically supplemented hereby,
the provisions of the Credit Agreement, the Guarantee Agreement and the Security
Agreement shall remain unmodified. This Agreement and the Credit Documents, each
as supplemented hereby, are each confirmed as being in full force and effect.
This Agreement and the Credit Agreement, the Guarantee Agreement and the
Security Agreement as supplemented hereby are Credit Documents. This Agreement
may be executed in any number of counterparts, which together shall constitute
one instrument, and shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns, including as such successors and
assigns all holders of any Credit Obligation. This Agreement shall be governed
by and construed in accordance with the laws (other than the conflict of laws
rules) of The Commonwealth of Massachusetts.
[The remainder of this page is intentionally blank]
Each of the parties has executed this Agreement under seal by a duly
authorized officer as of the date first written above.
ABIMEX, LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: VP
FLEET NATIONAL BANK, A BANK OF
AMERICA COMPANY, as Domestic
Agent under the Credit Agreement
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: SVP
