EXHIBIT 4.7
INTERCREDITOR AND COLLATERAL
AGENCY AGREEMENT
THIS INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT is dated as of
October 14, 2003, by and among each of the banks listed on the signature page
hereof (together with its successors and assigns, other than the Company and
its subsidiaries and affiliates, collectively the "Banks"), Fleet National
Bank, as Administrative Agent for the Banks (together with its successors and
assigns, the "Agent") and the holders of the Senior Notes listed on the
signature pages hereof (together with their respective successors and assigns,
other than the Company and its subsidiaries and affiliates, the "Noteholders"
and, together with the Banks, the "Lenders") and Fleet National Bank, as
Collateral Agent on behalf of the Lenders. Capitalized terms used herein have
the respective meanings ascribed thereto in Section 1.1 of this Agreement.
PRELIMINARY STATEMENT
1. American Biltrite Inc., a Delaware corporation (the "Company"),
and K&M Associates L.P., a Rhode Island limited partnership ("K&M"), are
parties to that certain Credit Agreement (together with any amendment,
modification, supplement, restatement or replacement thereof, the "Credit
Agreement"), dated as of October 14, 2003 with the Agent and the Banks,
pursuant to which, the Banks are providing a credit facility to the Company in
an amount up to $25,000,000.
2. Pursuant to the terms and conditions of that certain Note Purchase
and Private Shelf Agreement and Facility Guarantee (as amended by, Amendment
No. 1, dated December 31, 2002; Amendment No. 2, dated March 31, 2003;
Amendment No. 3, dated June 30, 2003, Amendment No. 4, dated October 14, 2003
together with any other amendment, modification or replacement thereof, the
"Note Agreement"), dated as of August 28, 2001, the Noteholders purchased from
the Company its 7.91% Series A Senior Notes due August 28, 2010, in the
aggregate principal amount of $20,000,000 (together with any amendment,
modification, supplement, restatement or replacement thereof, the "Senior
Notes").
3. The Subsidiary Guarantors have jointly and severally guaranteed to
the Agent and the Banks, pursuant to the terms of the Bank Guaranty Agreement,
the Bank Guaranteed Obligations.
4. The Subsidiary Guarantors have jointly and severally guaranteed to
the Noteholders, pursuant to the terms of the Note Agreement, the Noteholder
Guaranteed Obligations.
5. Each Obligor is a party to the Security Agreement dated as of
October 14, 2003.
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6. The Agent, the Banks and the Noteholders wish to define their
rights and obligations with respect to each other such that any payments
received by the Agent, the Banks or any Noteholder, as the case may be,
through any Enforcement, payments by K&M under the Credit Agreement after any
Sharing Event or from any Subsidiary Guarantor on account of the Bank
Guaranteed Obligations or the Noteholder Guaranteed Obligations, as the case
may be, shall be shared among the Lenders equally and ratably in accordance
with the respective amounts of the Senior Indebtedness then held by each of
them, all as set forth in this Agreement.
ARTICLE I
INTERPRETATION OF THIS AGREEMENT
Section 1.1. Defined Terms. As used in this Agreement, capitalized
terms have the respective meanings specified below or set forth in the Section
of this Agreement referred to immediately following such term (such
definitions, unless otherwise expressly provided, to be equally applicable to
both the singular and plural forms of the terms defined):
"Agent" has the meaning set forth in the first paragraph of this
Agreement.
"Agreement" means this Intercreditor and Collateral Agency Agreement,
as it may be amended, modified, supplemented or restated from time to time.
"Bank Guaranteed Obligations" means, collectively, all amounts
payable by the Subsidiary Guarantors to the Agent and the Banks pursuant to
the terms of the Bank Guaranty Agreement.
"Bank Guaranty Agreement" means the Guarantee Agreement, dated as of
October 14, 2003, executed by the Subsidiary Guarantors in favor of the Agent
and the Banks (or any replacement, modification or amendment thereof).
"Banks" has the meaning set forth in the first paragraph of this
Agreement.
"Collateral" means all property and assets, and interest in property
and assets, upon or in which any Obligor has granted a lien or security
interest to the Collateral Agent to secure the Senior Indebtedness and all
balances held by the Collateral Agent or any Lender for the account of any
Obligor or any other property held or owing by the Collateral Agent or any
Lender to or for the credit or for the account of any Obligor with respect to
which the Collateral Agent or any Lender has rights to setoff or appropriate
or a common law lien.
"Collateral Agent Expenses" means, without limitation, all costs and
expenses incurred by the Collateral Agent in connection with the performance
of its duties under this Agreement, including the realization upon or
protection of the Collateral or enforcing or defending any lien upon or
security interest in the Collateral or any other action taken in accordance
with the provisions of this Agreement, expenses incurred for legal counsel in
connection with the foregoing, and any other costs, expenses or liabilities
incurred by the Collateral Agent for which the Collateral Agent is entitled to
be reimbursed or indemnified by a Obligor pursuant to any Collateral Document
or a Guaranty Agreement or by the Lenders pursuant to this Agreement.
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"Collateral Agent Obligations" means all obligations of any Obligor
or any Lender to pay, reimburse or indemnify the Collateral Agent for any
Collateral Agent Expenses.
"Collateral Documents" means (i) the Security Agreement, (ii) any
other agreement, document or instrument executed and delivered by the Company,
K&M or a direct or indirect subsidiary of the Company pursuant to the
requirements of Sections 3.2 or 3.3 of the Security Agreement or paragraph 5R
of the Note Agreement after the date hereof, (iii) any other agreement,
document or instrument executed and delivered by any Obligor after the date
hereof under which such Obligor has granted a lien upon or security interest
in any property or assets to the Collateral Agent to secure all or any part of
the Senior Indebtedness and (iv) all financing statements, certificates,
documents and instruments relating thereto or executed or provided in
connection therewith, each as amended, restated, supplemented or otherwise
modified from time to time.
"Company" has the meaning set forth in the Preliminary Statement of
this Agreement.
"Credit Agreement" has the meaning set forth in the Preliminary
Statement of this Agreement.
"Credit Document" shall have the meaning set forth in the Credit
Agreement.
"Enforcement" means (a) for one or more of the Agent or any Lender to
make demand for payment of or accelerate the time for payment prior to the
scheduled payment date of any Revolving Loan, any Revolving Note or any Senior
Note, (b) for the Agent or any Lender to terminate in accordance with the
Credit Agreement its commitment to make Revolving Loans or issue Letters of
Credit pursuant to the Credit Agreement, (c) for one or more of the Agent or
any Lender to commence the judicial enforcement of any rights or remedies
under or with respect to the Credit Agreement, any Revolving Note, the Note
Agreement, any Senior Note or any Senior Indebtedness, or to set off or
appropriate any balances held by it for the account of any Obligor or any
other property at any time held or owing by it to or for the credit or for the
account of any Obligor, (d) for the Agent or any Bank to call for funding of a
Letter of Credit prior to its due date, (e) for the Collateral Agent to
commence the judicial enforcement of any rights or remedies under any
Collateral Document (other than an action solely for the purpose of
establishing or defending the lien or security interest intended to be created
by any Collateral Document upon or in any Collateral as against or from claims
of third parties on or in such Collateral), to set off, freeze or otherwise
appropriate any balances held by it for the account of any Obligor or any
other property at any time held or owing by it to or for the credit or for the
account of any Obligor or to otherwise take any action, including the exercise
of self-help, to realize upon the Collateral, (f) the commencement by, against
or with respect to any Obligor of any proceeding under any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law or for the appointment or a receiver
for such Obligor or its assets, (g) for one or more of the Agent or any Bank
to make a demand for payment under the Bank Guaranty Agreement, (h) for any
Noteholder to make a demand for payment under the Facility Guarantee under the
Note Agreement, (i) the payment by any Subsidiary Guarantor of any Bank
Guarantee Obligations or Noteholder Guaranteed Obligations, as the case may
be.
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"Events of Default" means any event or condition the occurrence or
existence of which would permit or results in (i) the acceleration of any of
the obligations of the Company under the Credit Agreement, (ii) the suspension
or cancellation of all or part of the credit facility referred to in the
Credit Agreement or (iii) the acceleration of any of the obligations of the
Company under the Note Purchase Agreement.
"Guaranteed Obligations" means, collectively, the Bank Guaranteed
Obligations and the Noteholder Guaranteed Obligations.
"K&M" has the meaning set forth in the Preliminary Statement of this
Agreement.
"Lenders" has the meaning set forth in the first paragraph of this
Agreement.
"Letter of Credit Collateral Obligations" means, without duplication,
(a) all of the obligations of the Borrower under Section 4.3 of the Credit
Agreement to deposit cash with the Agent or any Lender with respect to
Outstanding Letters of Credit Exposure and (b) all of the obligations of any
Guarantor to pay any amount described in clause (a) of this definition under
the Bank Guaranty Agreement.
"Letter of Credit" means any irrevocable commercial or standby letter
of credit issued pursuant to the Credit Agreement.
"Note Purchase Agreement" has the meaning set forth in the
Preliminary Statement of this Agreement.
"Noteholder Guaranteed Obligations" means, collectively, all amounts
payable by the Subsidiary Guarantors to the Noteholders pursuant to the terms
of the Note Agreement.
"Noteholders" has the meaning specified in the first paragraph of
this Agreement.
"Obligor" means the Company, K&M and each Subsidiary Guarantor
"Outstanding Letters of Credit Exposure" at any time, means the
undrawn face amount of all outstanding Letters of Credit at such time.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company or partnership, joint stock
company, trust unincorporated association, joint venture, governmental agency
or other authority.
"Pro Rata Expenses Share" with respect to any Senior Lender, means
the percentage set forth opposite such Senior Lender's name below:
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Fleet 29.445%
Citizens 26.110%
Noteholders 44.445%
Total 100.00%
; subject to any permitted assignment whereupon the assignee or transferee of
such Lender shall be deemed to acquire the Pro Rata Expenses Share appropriate
to the Senior Indebtedness assigned or transferred to it.
"Required Holders" shall have the meaning set forth in the Note
Agreement.
"Required Lenders" shall have the meaning set forth in the Credit
Agreement.
"Required Senior Lenders" means Required Holders and Required
Lenders.
"Revolving Loan and Reimbursement Obligations" means principal amount
of the Revolving Credit Loans and the Swingline Loans and the reimbursement
obligations due the Lenders with respect to Letters of Credit.
"Security Agreement" means each Security Agreement executed by the
Company, K&M or a Subsidiary Guarantor in favor of the Collateral Agent for
the benefit of the Lenders, as it may be amended, modified or supplemented
from time to time in accordance with its terms.
"Senior Indebtedness" means the Collateral Agent Obligations, the
Revolving Loan and Reimbursement Obligations, the principal amount of the
Senior Notes, the Letter of Credit Collateral Obligations and all of the other
present or future indebtedness, liabilities and obligations of all and each of
the Obligors now or hereafter owed to any or all of the Collateral Agent, the
Agent or the Lenders, evidenced by or arising under, by virtue of or pursuant
to any Credit Document, the Note Agreement, any Collateral Document or any
document executed in connection with the foregoing or any Bank Guaranteed
Obligation or Note Guaranteed Obligation, whether such indebtedness,
liabilities and obligations are direct or indirect, joint, several or joint
and several, or now exist or hereafter arise, and all renewals and extensions
thereof, including, without limitation, all interest on the Revolving Notes
and the Senior Notes and any Yield-Maintenance Amount. The term "Senior
Indebtedness" shall include all of the foregoing indebtedness, liabilities and
obligations whether or not allowed as a claim in any bankruptcy, insolvency,
receivership or similar proceeding.
"Senior Notes" has the meaning set forth in the Preliminary Statement
of this Agreement.
"Sharing Date" means the first date on which a Sharing Event shall
occur.
"Sharing Event" means (a) an Enforcement, (b) the occurrence of any
Event of Default under the Credit Agreement or the Note Purchase Agreement and
the earlier of (i) actual knowledge of the Collateral Agent of such Event of
Default or (ii) receipt of notice of such Event of Default by the Collateral
Agent or (c) any refusal by the Agent or any Bank to advance or continue any
Revolving Credit Loans or issue any Letter of Credit requested by the Company or
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K&M (irrespective of whether the conditions precedent thereto specified in
the Credit Agreement have been satisfied) where such Revolving Credit Loans or
issuance would not cause the limitations set forth in Section 2.1.1 of the
Credit Agreement to be exceeded.
"Subsidiary Guarantors" means each domestic Subsidiary of the Company
(other than Tullahoma Properties, L.L.C. and solely with respect to the Credit
Agreement, K&M) as of the date of this Agreement and each other Subsidiary of
the Company that may hereafter become (or should have become, in accordance
with the Company's contractual arrangements with the Agent and the Banks or
the Noteholders) a guarantor of the Senior Indebtedness.
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries
or such Person and one or more of its Subsidiaries owns sufficient equity or
voting interests to enable it or them (as a group) ordinarily, in the absence
of contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if
more than a 50% interest in the profits or capital thereof is owned by such
Person or one or more of its Subsidiaries or such Person and one or more of
its Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of
its Subsidiaries). Unless the context otherwise clearly requires, any
reference to a "Subsidiary" is a reference to a Subsidiary of the Company.
"Yield-Maintenance Amount" shall mean the "Yield-Maintenance Amount",
as defined in the Note Agreement.
Section 1.2. Certain Other Terms. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not in any particular provision of this
Agreement. Section references are to this Agreement unless otherwise
specified. All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural and vice versa, unless otherwise
specified.
ARTICLE II
APPOINTMENT OF FLEET AS COLLATERAL AGENT
FOR THE LENDERS AND THE AGENT
Section 2.1. Appointment of Collateral Agent. Subject in all respects
to the terms and provisions of this Agreement, each of the Lenders and the
Agent hereby appoint Fleet National Bank to act as agent for the benefit of
each of the Lenders and the Agent with respect to the liens upon and the
security interests in the Collateral and the rights and remedies granted under
and pursuant to the Collateral Documents, and Fleet National Bank hereby
accepts such appointment and agrees to act as such agent. The appointment of
the Collateral Agent pursuant to this Agreement shall be effective with
respect to all financing statements filed in any filing office with respect to
any Obligor, if any, prior to the date of this Agreement on and as of the date
filed. The agency created hereby shall in no way impair or affect any of the
rights and powers of, or impart any duties or obligations upon, Fleet in its
individual capacity as a Lender or in its capacity as Agent. To the extent
legally necessary to enable the Collateral Agent to enforce or
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otherwise foreclose and realize upon any of the liens or security interests in
the Collateral in any legal proceeding which the Collateral Agent either
commences or joins as a party in accordance with the terms hereof, the Agent
and each of the Lenders agree to join as a party in such proceeding and take
such action therein concurrently to enforce and obtain a judgment for the
payment of the Senior Indebtedness held by it.
Section 2.2. Duties of Collateral Agent. Subject to the Collateral
Agent having been directed to take such action in accordance with the terms of
this Agreement, the Agent and each Lender hereby irrevocably authorizes the
Collateral Agent to take such action on its behalf under the provisions of the
Collateral Documents and any other instruments, documents and agreements
referred to therein and to exercise such powers thereunder as are specifically
delegated to the Collateral Agent by the terms thereof and such other powers
as are reasonably incidental thereto. Subject to the provisions of Section 4.3
hereof, the Collateral Agent is hereby irrevocably authorized to take all
actions on behalf of the Agent and the Lenders to enforce the rights and
remedies of the Collateral Agent, the Agent and the Lenders provided for in
the Collateral Documents or by applicable law with respect to the liens upon
and security interests in the Collateral granted to secure the Senior
Indebtedness; provided, however, that, notwithstanding any provision to the
contrary in any Collateral Documents, (i) except as otherwise provided herein,
the Collateral Agent shall act solely at and in accordance with the written
direction of the Required Senior Lenders, (ii) the Collateral Agent shall not,
without the written consent of all of the Lenders, release, reconvey or
terminate by affirmative action or consent to any lien upon or security
interest in any Collateral granted under any Collateral Documents (except (x)
upon dispositions of Collateral by an Obligor as permitted in accordance with
the terms of the Credit Agreement and the Note Agreement prior to the
occurrence of an Event of Default, (y) upon disposition of such Collateral
after an Event of Default pursuant to direction given under clause (i) hereof
and (z) with respect to property in or on which, by the terms of the Credit
Agreement and the Note Agreement, a security interest or lien is not required
to be granted to the Collateral Agent) and (iii) the Collateral Agent shall
not accept any Senior Indebtedness in whole or partial consideration for the
disposition of any Collateral without the written consent of all of the
Lenders. The Collateral Agent agrees to make such demands and give such
notices under the Collateral Documents as may be requested by, and to take
such action to enforce the Collateral Documents and to foreclose or otherwise
realize upon, collect and dispose of the Collateral or any portion thereof as
may be directed by, the Required Senior Lenders; provided, however, that the
Collateral Agent shall not be required to take any action that is contrary to
law or the terms of the Collateral Documents or this Agreement. Once a
direction to take any action has been given by the Required Senior Lenders to
the Collateral Agent, and subject to any other directions which may be given
from time to time by the Required Senior Lenders, decisions regarding the
manner in which any such action is to be implemented and conducted (with the
exception of any decision to settle, compromise or dismiss any legal
proceeding, with or without prejudice, which shall require the written
direction of the Required Senior Lenders) shall be made by the Collateral
Agent, with the assistance and upon the advice of its counsel. Notwithstanding
the provisions of the preceding sentence, any and all decisions to settle,
compromise or dismiss any legal proceeding, with or without prejudice, which
implements, approves or results in or has the effect of causing any release,
change or occurrence, where such release, change or occurrence otherwise would
require unanimous approval of all of the Lenders pursuant to the terms of this
Agreement, also shall require the unanimous approval
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of all of the Lenders. The Collateral Agent shall be entitled to assume that
no Event of Default or Enforcement exists until either notice has been given
to the Collateral Agent of an Event of Default or Enforcement by an Obligor or
a Lender, or the Collateral Agent shall have actual knowledge that an Event of
Default or Enforcement has occurred (and for this purpose the actual knowledge
of the Collateral Agent which is also a Lender or the Agent shall include any
actual knowledge which the Collateral Agent may have in its capacity as a
Lender or the Agent).
Section 2.3. Requesting Instructions. The Collateral Agent may at any
time request directions from the Lenders as to any course of action or other
matter relating to the performance of its duties under this Agreement and the
Collateral Documents and the Lenders shall respond to such request in a
reasonably prompt manner.
Section 2.4. Emergency Actions. If the Collateral Agent has asked the
Lenders for instructions following the receipt of any notice of an Event of
Default and if the Required Senior Lenders have not responded to such request
within ten business days, the Collateral Agent shall be authorized to take
such actions with regard to such Event of Default which the Collateral Agent,
in good faith, believes to be reasonably required to protect the Collateral
from damage or destruction; provided, however, that (i) prior to the
expiration of such ten day period the Collateral Agent shall be authorized to
take such actions with regard to such Event of Default which the Collateral
Agent, in good faith, believes to be reasonably required to prevent
irreparable damage to the Collateral which might result from a delay and (ii)
once instructions have been received from the Required Senior Lenders, the
actions of the Collateral Agent shall be governed thereby and the Collateral
Agent shall not take any further action which would be contrary thereto.
Section 2.5. Document Amendments. An amendment, supplement,
modification, restatement or waiver of any provision of any Collateral
Document, any consent to any departure by any Obligor therefrom, or the
execution or acceptance by the Collateral Agent of any Collateral Document not
in effect on the date hereof shall be effective if and only if, consented to
in writing by the Required Senior Lenders; provided, however, that, (i) no
such amendment, supplement, modification, restatement, waiver, consent or such
Collateral Document not in effect on the date hereof which imposes any
additional responsibilities upon the Collateral Agent shall be effective
without the written consent of the Collateral Agent and (ii) no such
amendment, supplement, modification, waiver or consent shall release, reconvey
or terminate the security interest in or lien on any Collateral from the lien
or security interest created by any Collateral Document not subject to the
exception in Section 2.2(ii) hereof or narrow the scope of the property or
assets in which a lien or security interest is granted pursuant to any
Collateral Document without the written consent of all Lenders.
Section 2.6. Administrative Actions. The Collateral Agent shall have
the right, but not the obligation, to take such actions hereunder and under
the Collateral Documents, not inconsistent with the instructions of the
Required Senior Lenders or the terms of the Collateral Documents and this
Agreement, as the Collateral Agent in good xxxxx xxxxx necessary or
appropriate to perfect or continue the perfection of the liens on the
Collateral for the benefit of the Lenders.
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Section 2.7. Collateral Agent Action Through Others. The Collateral
Agent may perform any of its duties under this Agreement and the Collateral
Documents by or through attorneys (which attorneys may be the same attorneys
who represent the Agent or any Lender), agents or other Persons reasonably
deemed appropriate by the Collateral Agent. The Collateral Agent shall not be
liable to the Lenders for the misconduct of any such attorneys, agents or
other Persons selected by the Collateral Agent with reasonable care. In
addition, the Collateral Agent may act in good faith reliance upon the opinion
or advice of attorneys selected by the Collateral Agent. In all cases the
Collateral Agent may pay customary and reasonable compensation to all such
attorneys, agents or other Persons as may be employed in connection with the
performance of its duties under this Agreement and the Collateral Documents
and the same shall constitute Collateral Agent Expenses for purposes hereof.
Section 2.8. Resignation and Removal of Collateral Agent.
(a) The Collateral Agent (i) may resign at any time upon notice to
the Lenders and (ii) may be removed at any time upon the written request of
the Required Senior Lenders sent to the Collateral Agent and the other
Lenders.
(b) If the Collateral Agent shall resign or be removed, the Required
Senior Lenders shall have the right to select a replacement Collateral Agent
by notice to the Collateral Agent and the other Lenders.
(c) Upon any replacement of the Collateral Agent, the Collateral
Agent shall assign all of the liens upon and security interests in all
Collateral under the Collateral Documents, and all right, title and interest
of the Collateral Agent under all the Collateral Documents, to the replacement
Collateral Agent, without recourse to the Collateral Agent or any Lender and
at the expense of the Company. In addition, the Collateral Agent shall execute
such assignments and amendments of UCC financing statements and perform such
other acts as are necessary or appropriate to maintain the due perfection of
the security interests in and liens on the Collateral.
(d) No resignation or removal of the Collateral Agent shall become
effective until a replacement Collateral Agent shall have been selected as
provided herein and shall have executed and delivered to each Lender a joinder
agreement in the form attached hereto as Exhibit A. In the event that a
replacement Collateral Agent shall not have been selected as provided herein
or shall not have assumed such obligations within 90 days after the
resignation or removal of the Collateral Agent, then the Lender holding the
largest outstanding amount of Senior Indebtedness may appoint the replacement
Collateral Agent.
(e) Any replacement Collateral Agent shall be a Lender or a bank,
trust company, or insurance company having capital, surplus and undivided
profits of at least $500 million.
Section 2.9. Indemnification of Collateral Agent. Each Obligor, by
their consent hereto, hereby jointly and severally agree to indemnify and hold
the Collateral Agent, its officers, directors, employees and agents
(including, but not limited to, any attorneys acting at the direction or on
behalf of the Collateral Agent) harmless against any and all costs, claims,
damages, penalties, liabilities, losses and expenses (including, but not
limited to, court costs and attorneys' fees and disbursements) which may be
incurred by or asserted against the Collateral
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Agent or any such officers, directors, employees and agents by reason of its
status as agent hereunder or which pertain, whether directly or indirectly, to
this Agreement, the Collateral Documents, or to any action or failure to act
of the Collateral Agent as agent hereunder, except to the extent any such
action or failure to act by the Collateral Agent constitutes gross negligence
or willful misconduct. The obligations of the Obligor under this Section 2.09
shall survive the payment in full of the Senior Indebtedness and the
termination of this Agreement.
Section 2.10. Liability of Collateral Agent. In absence of gross
negligence or willful misconduct, the Collateral Agent will not be liable to
the Agent or any Lender for any action or failure to act or any error of
judgment, negligence, mistake or oversight on its part or on the part of any
of its officers, directors, employees or agents. To the extent not paid by the
Obligor, each Lender hereby severally, and not jointly, agrees to indemnify
and hold the Collateral Agent and each of its officers, directors, employees
and agents (collectively, "Indemnitees") harmless from and against any and all
liabilities, costs, claims, damages, penalties, losses and actions of any kind
or nature whatsoever (including, without limitation, the fees and
disbursements of counsel for any Indemnitee) incurred by or asserted against
any Indemnitee arising out of or in relation to this Agreement, the Collateral
Documents, or its status as agent hereunder or any action taken or omitted to
be taken by any Indemnitee pursuant to and in accordance with any of the
Collateral Documents and this Agreement, except to the extent arising from the
gross negligence or willful misconduct, with each Lender being liable only for
its Pro Rata Expenses Share of any such indemnification liability. The
obligations of the Lenders under this Section 2.10 shall survive the payment
in fall of the Senior Indebtedness and the termination of this Agreement.
Section 2.11. No Reliance on Collateral Agent. Neither the Collateral
Agent nor any of its officers, directors, employees or agents (including, but
not limited to, any attorneys acting at the direction or on behalf of the
Collateral Agent) shall be deemed to have made any representations or
warranties, express or implied, with respect to, nor shall the Collateral
Agent or any such officer, director, employee or agent be liable to the Agent
or any Lender or responsible for (i) any warranties or recitals made by any
Obligor in the Collateral Documents or any other agreement, certificate,
instrument or document executed by any Obligor in connection therewith, (ii)
the due or proper execution or authorization of this Agreement or any
Collateral Documents by any party other than the Collateral Agent, or the
effectiveness, enforceability, validity, genuineness or collectibility as
against any Obligor of any Collateral Document or any other agreement,
certificate, instrument or document executed by any Obligor in connection
therewith, (iii) the present or future solvency or financial worth of any
Obligor or (iv) the value, condition, existence or ownership of any of the
Collateral or the perfection of any lien upon or security interest in the
Collateral (whether now or hereafter held or granted) or the sufficiency of
any action, filing, notice or other procedure taken or to be taken to perfect,
attach or vest any lien or security interest in the Collateral. Except as may
be required by Section 2.2 hereof, the Collateral Agent shall not be required,
either initially or on a continuing basis, to (A) make any inquiry,
investigation, evaluation or appraisal respecting, or enforce performance by
any Obligor of, any of the covenants, agreements or obligations of any Obligor
under any Collateral Document or (B) undertake any other actions (other than
actions expressly required to be taken by it under this Agreement). Nothing in
any of the Collateral Documents, expressed or implied, is intended to or shall
be so construed as to impose upon the Collateral Agent any obligations, duties
or responsibilities except as set forth in this Agreement and therein. The
Collateral Agent
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shall be protected in acting upon any notice, request, consent, certificate,
order, affidavit, letter, telegram, telefacsimile or other paper or document
given to it by any Person reasonably and in good faith believed by it to be
genuine and correct and to have been signed or sent by such Person. The
Collateral Agent shall have no duty to inquire as to the performance or
observance of any of the terms, covenants or conditions of the Credit
Agreement or the Note Agreement. Except upon the direction of the Required
Senior Lenders pursuant to Section 2.2 of this Agreement, the Collateral Agent
will not be required to inspect the properties or books and records of any
Obligor for any purpose, including to determine compliance by the Obligors
with their respective covenants respecting the perfection of security
interests.
Section 2.12. Limited Agency. The Collateral Agent, the Agent and the
Lenders agree that it is the intent of the Lenders to limit the scope of the
powers of the Collateral Agent to the specific powers delegated hereunder,
together with such powers as are reasonably incidental thereto, and the
Collateral Agent does not and shall not have any right or authority to bind
the Agent or any Lender in any other manner or thing whatsoever.
ARTICLE III
SHARING PROVISIONS
Section 3.1. Sharing of Payments and Proceeds After Sharing Event.
(a) On and after the occurrence of any Sharing Event, all proceeds of
Collateral held or received by the Collateral Agent, the Agent or any Lender
(including, without limitation, any amount of any balances held by the
Collateral Agent, the Agent or any Lender for the account of any Obligor or
any other property held or owing by it to or for the credit or for the account
of any Obligor to the extent set off or appropriated by it, but excluding,
except as otherwise provided in paragraph (c) of this Section 3.1, amounts on
deposits in the Special Cash Collateral Account provided for in such paragraph
(c)) and any other payments received, directly or indirectly, by the
Collateral Agent, the Agent or any Lender on or with respect to any Senior
Indebtedness (including, without limitation, any payment made by K&M under the
Credit Agreement or any payment under any Bank Guaranty Agreement or with
respect to any Guaranteed Obligations, any payment in any insolvency or
reorganization proceeding and the proceeds from any sale of any Senior
Indebtedness or any interest therein to any Obligor or any affiliate of any
Obligor) shall be delivered to the Collateral Agent and distributed as
follows:
(i) First, to the Collateral Agent in the amount of any unpaid
Collateral Agent Obligations;
(ii) Next, to the Lenders in the amount of any unreimbursed
amounts paid by the Lenders to any Indemnitee pursuant to Section
2.10 hereof, pro rata in proportion to the respective unreimbursed
amounts thereof paid by each Lender;
(iii) Next, to the Lenders in the amount of any unpaid interest
accrued on the Senior Indebtedness, pro rata in proportion to the
respective amounts thereof owed to each Lender as of the applicable
Sharing Date;
12
(iv) Next, to the Lenders in the amount of any outstanding
principal amount of the Revolving Loan and Reimbursement Obligations,
any unpaid Letter of Credit Collateral Obligations, any outstanding
principal amount of the Senior Notes and any Yield-Maintenance Amount
that may be due upon any prepayment of the Senior Indebtedness, pro
rata in proportion to the respective amounts thereof owed to each
Lender as of the applicable Sharing Date (and, for this purpose,
Letter of Credit Collateral Obligations shall be considered to have
been paid to the extent of any amount then on deposit in the Special
Cash Collateral Account provided for in paragraph (c) of this Section
3.1); provided, however, in no event shall an amount in excess of
$2,500,000 be distributed under this clause (iv) with respect to
Yield-Maintenance Amount;
(v) Next, to the holders of the Senior Notes in the amount of
the balance, if any, of any Yield-Maintenance Amount that may be due
upon any prepayment of the Senior Indebtedness; and
(vi) Next, to the Lenders in the amount of any other unpaid
Senior Indebtedness, pro rata in proportion to the respective amounts
thereof owed to each Lender as of such Enforcement.
After all Senior Indebtedness has been indefeasibly paid in full in
cash, the balance of the proceeds of the Collateral, if any, shall be paid to
the Obligors, as applicable, or as otherwise required by law.
(b) For the purposes of this Section 3.1, any reduction in the
Outstanding Letters of Credit Exposure after an Enforcement which is achieved
due to a payment by or on behalf of any Obligor to any beneficiary of any
Letter of Credit which discharges an obligation which otherwise would have
been the basis for a payment or acceptance of a draft pursuant to such Letter
of Credit shall, to the extent of such reduction, be deemed to be a payment
with respect to the Senior Indebtedness received on the date of such reduction
by the Lender or Lenders issuing such Letter of Credit.
(c) Any payment pursuant to clause (a)(iv) above with respect to
Letter of Credit Collateral Obligations shall be paid to the Collateral Agent
for deposit in an account (the "Special Cash Collateral Account") to be held
as collateral for the Senior Indebtedness and disposed of as provided herein.
On each date after the occurrence of an Enforcement on which a payment is made
to a beneficiary pursuant to a draw on a Letter of Credit, the Collateral
Agent shall distribute to the Agent from the Special Cash Collateral Account
for application to the payment of the reimbursement obligation due to the
Banks with respect to such draw on amount equal to the product of (1) the
amount then on deposit in the Special Cash Collateral Account and (2) a
fraction, the numerator of which is the amount of such draw and the
denominator of which is the amount of the Outstanding Letter of Credit
Exposure immediately prior to such draw. On each date after the occurrence of
an Enforcement on which a reduction in the Outstanding Letters of Credit
Exposure occurs other than on account of a payment made to a beneficiary
pursuant to a draw on a Letter of Credit, then the Collateral Agent shall
distribute from the Special Cash Collateral Account an amount equal to the
product of (1) the amount then on deposit in the Special Cash Collateral
Account and (2) a fraction the numerator of which is
12
the amount of the Outstanding Letters of Credit Exposure immediately prior to
such reduction, which amount shall be distributed as provide in clauses (a)(i)
through (vi) above. At such time as the amount of the Outstanding Letters of
Credit Exposure is reduced to zero, any amount remaining in the Special Cash
Collateral Account, after the distribution therefrom as provided above, shall
be distributed as provided in clauses (a)(i) through (vi), above.
(d) Except as otherwise provided in this subsection (d), the
distribution provisions of this Section 3.1 are for the purpose of determining
the relative amounts of payments to be distributed to the Lenders and not for
the purposes of creating an agreement among the parties as to the manner in
which any proceeds or other payments distributed to them are actually to be
applied to pay the Senior Indebtedness. Each Lender shall be free, in its own
discretion, to apply any proceeds or other payments distributed to it
hereunder to the Senior Indebtedness held by such Lender in such order as it
may determine. Each Obligor, by its consent hereto, agrees that in the event
any payment is made pursuant to the distribution provisions of this Section
3.1, the amount distributed to each Lender shall be applied to the Senior
Indebtedness owing to such Lender in the manner in which such Lender elects as
provided in the preceding sentence. Notwithstanding the foregoing, for all
purposes of this Agreement the Senior Indebtedness shall be deemed paid to the
same extent that proceeds and other payments are distributed with respect to
it pursuant to Section 3.1(a) notwithstanding the actual application thereof
by any individual Lender to the Senior Indebtedness owing to it. Each Obligor,
by its consent hereto, agrees that, notwithstanding anything to the contrary
in this Agreement, the Credit Agreement or the Note Agreement, the amount of
the obligations in respect of Senior Indebtedness owed by any Obligor to a
Lender (1) shall be reduced by the amount of the proceeds or other payments
received by such Lender pursuant to the distribution provisions of this
Section 3.1 and (2) shall not be reduced by the amount of the proceeds or
other payments paid over to the Collateral Agent by such Lender pursuant to
the provisions of subsections (a), (b) and (c) of this Section 3.1.
Section 3.2. Invalidated Payments. If any amount paid by any Lender
to the Collateral Agent for distribution in accordance with the provisions of
this Agreement is subsequently required to be returned or repaid, whether by
court order, settlement or otherwise, such Lender shall promptly notify the
Collateral Agent of such requirement, the Collateral Agent shall notify each
of the Lenders thereof, and each Lender shall, promptly upon its receipt of
such notice from the Collateral Agent, pay to the Collateral Agent the pro
rata portion received by it of such amount, without any interest thereon, for
payment to the appropriate party in interest. If any such amounts are
subsequently recovered by any Lender, such Lender shall remit such amounts to
the Collateral Agent and the Collateral Agent shall redistribute such amounts
to the Lenders, without any interest thereon, on the same basis as such
amounts were originally distributed. The obligations of the Lenders and the
Collateral Agent under this Section 3.2 shall survive the repayment of the
Senior Indebtedness and termination of the Bank Guaranty Agreement and the
Note Agreement.
Section 3.3. Additional Collateral. Each of the Lenders hereby
covenants and agrees that (i) such Lender will not accept from any Person on
behalf of the Company or any Subsidiary any guarantee (a "Third-Party
Guarantee") of any of the Senior Indebtedness or any other Senior Indebtedness
owing to such Lender unless such Person also guarantees substantially
contemporaneously, by the same or separate instrument, the payment of all of
the Senior
14
Indebtedness owing to all Lenders (or, if such Third-Party Guarantee
guarantees only a portion thereof owing to such Lender, such Lender will not
accept such Third-Party Guarantee unless such Guarantor simultaneously
guarantees the same proportion of Senior Indebtedness owing to the other
Lenders) and (ii) such Lender will not take, accept or obtain any security
interest in, or lien or encumbrance upon (an "Additional Lien"), any assets of
any of the Company or any Subsidiary or any other Person (other than assets
which, if obtained by the Lenders, would be shared pro rata as provided
herein) to secure the payment and performance of the Senior Indebtedness or
any other Senior Indebtedness owed to such Lender except by virtue of all of
the Lenders being granted a security interest in, or lien upon, such assets,
in either case, pursuant to documents in form and substance satisfactory to
all of the Lenders, to secure the Senior Indebtedness pro rata as provided
herein.
Section 3.4. Turnover of Collateral. If the Agent or any Lender
acquires custody, control or possession of any Collateral or any proceeds
thereof or any payment of any Guaranteed Obligation other than pursuant to the
terms of this Agreement, the Agent or such Lender, as the case may be, shall
promptly cause such Collateral or the proceeds thereof or any such payment to
be delivered to or put in the custody, possession or control of the Collateral
Agent for disposition and distribution in accordance with the provisions of
Section 3.1 of this Agreement. Until such time as the Agent or such Lender, as
the case may be, shall have complied with the provisions of the immediately
preceding sentence, the Agent or such Lender, as the case may be, shall be
deemed to hold such Collateral and the proceeds thereof or any such payment in
trust for the parties entitled thereto under this Agreement.
Section 3.5. Accounting; Adjustments.
(a) The Collateral Agent, the Agent and each Lender agrees to render
at any time an accounting to any of the others of the amounts of the
outstanding Senior Indebtedness, receipts of payments from the Obligors or
from the Collateral and of other items relevant to the provisions of this
Agreement upon the request from one of the other Lenders as soon as reasonably
practicable after such request, giving effect to the application of payments
and the proceeds of Collateral as hereinbefore provided in this Agreement.
(b) Each party hereto agrees that to the extent any payment of any
Senior Indebtedness made to it hereunder is in excess of the amount due to be
paid to it hereunder, then it shall pay to the other parties hereto such
amounts so that, after giving effect to such payments, the amounts received by
all parties are equal to the amounts to be paid to them hereunder.
(c) Any payments to be made hereunder to the Banks shall be paid to
the Agent for the account of the Banks.
Section 3.6. Notice; Cooperation of Lender. Each Lender hereby agrees
and covenants with each other Lender that:
(a) Promptly after having actual knowledge of the occurrence of any
default (without taking into account any grace or cure period applicable
thereto) under the terms of or as defined in the Credit Agreement or the Note
Purchase Agreement or any Collateral Document (a "Default") or an Event of
Default, each Lender (with the Banks acting as a group through
15
direction to the Agent) will deliver to the Collateral Agent and to each other
Lender written notice of such Default or such Event of Default, as the case
may be (a "Default Notice") identifying the nature of such Default or such
Event of Default, as the case may be, and specifying the document under which
such Default or such Event of Default, as the case may be, arose;
(b) it will from time to time provide such information that is
available to it to the Collateral Agent as may be necessary to enable the
Collateral Agent to make any calculation hereunder or otherwise required for
any other purpose hereof;
(c) it will from time to time consult with the Collateral Agent and
the other Lenders in good faith regarding the Enforcement of its rights with a
view to recovering amounts due under any of the Collateral Documents; and
(d) it will not amend, modify, supplement or waive any of the terms
or provisions of any Collateral Document in any manner detrimental to any
other Lender or in any manner impair the Collateral without the consent of the
Required Senior Lenders.
ARTICLE IV
NO CONTEST; BANKRUPTCY
Section 4.1. Contesting Liens or Security Interests; No Partitioning
or Marshalling of Collateral; Contesting Senior Indebtedness.
(a) Neither the Collateral Agent, the Agent nor any Lender shall
contest the validity, perfection, priority or enforceability of or seek to
avoid, have declared fraudulent or have set aside any lien or security
interest granted to the Collateral Agent or any Noteholder Guaranteed
Obligations or any Bank Guaranteed Obligations and each party hereby agrees to
cooperate in the defense of any action contesting the validity, perfection,
priority or enforceability of such liens or security interests or Guaranteed
Obligations. Each party shall also use its best efforts to notify the other
parties of any change in the location of any of the Collateral or the business
operations of any Obligor or of any change in law which would make it
necessary or advisable to file additional financing statements in another
location to be created by the Collateral Documents, but the failure to do so
shall not create a cause of action against the party failing to give such
notice or create any claim or right on behalf of any other party hereto and
any third party.
(b) Notwithstanding anything to the contrary in this Agreement or in
any Collateral Document, neither the Agent nor any Lender shall have the right
to have any of the Collateral, or any security interest or other property
being held as security for all or any part of the Senior Indebtedness by the
Collateral Agent, partitioned, or to file a complaint or institute any
proceeding at law or in equity to have any of the Collateral or any such
security interest or other property partitioned, and the Agent and each Lender
hereby waives any such right. The Collateral Agent, the Agent and each Lender
hereby waive any and all rights to have the
16
Collateral, or any part thereof, marshaled upon any foreclosure of any of the
liens of security interests securing the Senior Indebtedness.
(c) Neither the Collateral Agent, the Agent nor any Lender shall
contest the validity or enforceability of or seek to avoid, have declared
fraudulent or have set aside any Senior Indebtedness. In the event any Senior
Indebtedness is invalidated, avoided, declared fraudulent or set aside for the
benefit of any Obligor, the Collateral Agent, the Agent and the Lenders agree
that such Senior Indebtedness shall nevertheless by considered to be
outstanding for all purposes of this Agreement.
(d) Each party hereto agrees to cooperate fully with the other
parties hereto, in the exercise of its reasonable judgment, to the end that
the terms and provisions of this Agreement may be promptly and fully carried
out. Each party hereto also agrees, from time to time, to execute and deliver
any and all other agreements, documents or instruments and to take such other
actions, all as may be reasonably necessary or desirable to effectuate the
terms, provisions and intent of this Agreement.
Section 4.2. Lien Priorities. The parties hereto expressly agree that
the security interests and liens granted to the Collateral Agent shall secure
the Senior Indebtedness on a pari passu basis for the benefit of the
Collateral Agent, the Agent and the Lenders and that, notwithstanding the
relative priority or the time of grant, creation, attachment or perfection
under applicable law of any security interests and liens, if any, of any of
the Collateral Agent, the Agent or any Lender upon or in any of the Collateral
to secure any Senior Indebtedness, whether such security interests and liens
are now existing or hereafter acquired or arising and whether such security
interests and liens are in or upon now existing or hereafter arising
Collateral, such security interests and liens shall be first and prior
security interests and liens in favor of the Collateral Agent to secure the
Senior Indebtedness on a pari passu basis for the benefit of the Collateral
Agent, the Agent and the Lenders.
Section 4.3. Bankruptcy Proceedings. Nothing contained herein shall
limit or restrict the independent right of any Lender to initiate an action or
actions in any bankruptcy, reorganization, compromise, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar
proceeding in its individual capacity and to appear or be heard on any matter
before the bankruptcy or other applicable court in any such proceeding,
including, without limitation, with respect to any question concerning the
post-petition usage of Collateral and post-petition financing arrangements.
The Collateral Agent is not entitled to initiate such actions on behalf of any
Lender or to appear and be heard on any matter before the bankruptcy or other
applicable court in any such proceeding to enter into any agreement for, or
give any authorization or consent with respect to, the post-petition usage of
Collateral, unless such agreement, authorization or consent with respect to,
the post-petition usage of Collateral, unless such agreement, authorization or
consent has been approved in writing by the Required Lenders and Required
Holders. This Agreement shall survive the commencement of any such bankruptcy,
reorganization, compromised, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar proceeding.
17
Section 4.4. Other Rights. Nothing contained in this Agreement shall
(i) prevent any Lender from imposing a default rate of interest in accordance
with the Credit Agreement, the Revolving Notes, the Note Agreement or the
Senior Notes, as applicable, or prevent a Lender from raising any defenses in
any action in which it has been made a party defendant or has been joined as a
third party, except that the Collateral Agent may direct and control any
defense directly relating to the Collateral or any one or more of the
Collateral Documents as directed by the Required Senior Lenders, which shall
be governed by the provisions of this Agreement or (ii) affect or impair the
right any Lender may have under the terms and conditions governing the Senior
Indebtedness to accelerate and demand repayment of such Senior Indebtedness.
Subject only to the express limitations set forth in this Agreement, each
Lender retains the right to freely exercise its rights and remedies as a
general creditor of the Obligors in accordance with applicable law and
agreements with the Obligors, including, without limitation, the right to file
a lawsuit and obtain a judgment therein against the Obligors and to enforce
such judgment.
ARTICLE V
MISCELLANEOUS
Section 5.1. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH, AND GOVERNED BY, THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
Section 5.2. Certain Notices. Each of the Collateral Agent, the Agent
and each Lender agrees to use its reasonable efforts to give to the others (a)
copies of any notice of the occurrence or existence of an Event of Default
sent to any Obligors, simultaneously with, and in the same manner as, the
sending of such notice to such Obligors, (b) notice of the occurrence or
existence of an Event of Default of which such party has knowledge, promptly
after obtaining knowledge thereof, (c) notice of the refusal of the Agent or
any Bank to make any Revolving Loans or issue any Letter of Credit, promptly
after such refusal and (d) notice of an Enforcement by such party, prior to
commencing such Enforcement, but the failure to give any of the foregoing
notices shall not affect the validity of such notice of an Event of Default
given to an Obligor or create a cause of action against or cause a forfeiture
of any rights of the party failing to give such notice or create any claim or
right on behalf of any third party.
Section 5.3. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which shall
constitute one agreement, and shall constitute a binding agreement when
executed by each of the parties hereto.
Section 5.4. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successor and assigns of the
parties hereto including any assignees of the Senior Indebtedness and Persons
subsequently becoming parties to the Credit Agreement as a "Bank" thereunder.
Section 5.5. Amendments to Agreement and Documentation. This
Agreement and the provisions hereof may be amended, modified or waived only by
a writing signed by the Collateral Agent, the Agent and all of the Lenders.
Neither Section 2.5, nor any other provision
18
of this Agreement, shall in any way limit the ability of any Lender to waive,
amend or otherwise modify any document relating to the Senior Indebtedness
(including, without limitation, increasing the respective amounts thereof),
except that, without the consent of all Lenders, no Lender shall release any
Subsidiary Guarantor from its liabilities in respect of such obligations
unless the portion of such Senior Indebtedness owing to such Lender shall have
been finally and indefeasibly paid in full except as permitted by each of the
Credit Agreement and the Note Purchase Agreement or any Collateral Document.
Section 5.6. Termination. This Agreement shall terminate upon the
payment in full of all Senior Indebtedness and the termination of the Credit
Agreement, Bank Guaranty Agreement and the Note Agreement.
Section 5.7. Transfer. In connection with an assignment of all, or of
a proportionate part of all, of any Lender's right, title and interest under
the Credit Agreement or Note Purchase Agreement, as the case may be, to any
bank, insurance company, other financial institution or other Person (the
"Transferee"), such Transferee shall become a Lender hereunder only upon, and
each of the Lenders party hereto hereby covenants and agrees that prior to the
effectiveness of any transfer it shall cause to occur, (i) the written
agreement of such transferor Lender and such Transferee and (ii) the receipt
by the Collateral Agent of a supplement to this Agreement in the form of
Exhibit B hereto executed by such Transferee.
Section 5.8. No Waiver. No failure or delay on the part of any Lender
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder.
Section 5.9. Notices. All written communications provided for
hereunder shall be sent (x) by telecopier if the sender on the same day sends
a confirming copy of such notice by a recognized overnight delivery service,
with charges prepaid, or (y) by first class mail or nationwide overnight
delivery service, with charges prepaid and
(i) if to a Bank, addressed to such Bank at the address
specified on the signature page hereof or any such other address as
the Bank shall have specified to the Noteholders and the Collateral
Agent in writing,
(ii) if to any Noteholder, addressed to such Noteholder at the
address specified on the signature page hereof, or at such other
address as such Noteholder shall have specified to the Agent and the
Collateral Agent (if one has been appointed) in writing, and
(iii) if to the Collateral Agent, addressed to the Collateral
Agent at such address specified on the signature page hereof, or at
such other address as the Collateral Agent shall have specified to
each Lender in writing.
Section 5.10. Third Party Beneficiary. No Person, including. without
limitation, the Subsidiary Guarantors, K&M and the Company, other than the
Lenders, the Collateral Agent and their respective successors and assigns,
shall have any rights under this Agreement.
19
Section 5.11. 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, and any
such prohibition or unenforceability in any jurisdiction shall (to the full
extent permitted by law) not invalidate or render unenforceable such provision
in any other jurisdiction.
Section 5.12. Headings. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
Section 5.13. Submission to Jurisdiction; Waiver of Jury Trial. EACH
OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW
YORK OR BUFFALO, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT. NONE OF THE PARTIES HERETO SHALL SEEK A JURY
TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION PROCEDURE
BASED UPON OR ARISING OUT OF OR OTHERWISE RELATED TO THIS AGREEMENT AND EACH
OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY AND ALL RIGHT TO ANY SUCH JURY TRIAL AND ANY RIGHT EACH MAY HAVE TO ASSERT
THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
SUCH PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 5.13.
Section 5.14. Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties hereto and supersedes all prior
agreements and understandings related to the subject matter hereof.
[Signatures On Next Page]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the date and year first written above.
Collateral Agent:
FLEET NATIONAL BANK, as Collateral
Agent on behalf of the Lenders
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Address:
Fleet National Bank
Massachusetts Middle Market Division
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Signature Page to Intercreditor Agreement
Banks:
FLEET NATIONAL BANK, as Agent for
the Banks and individually
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Address:
Fleet National Bank
Massachusetts Middle Market Division
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Address:
Citizens Bank of Massachusetts
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Signature Page to Intercreditor Agreement
Noteholders:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxx Xxxxxx
--------------------------------
Vice President
Address:
The Prudential Insurance Company of
America
c/o Prudential Capital Group
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Managing Director
Telecopier: 000-000-0000
Signature Page to Intercreditor Agreement
ACKNOWLEDGMENT OF AND CONSENT AND AGREEMENT
TO INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
The undersigned, the Obligors described in the Intercreditor and
Collateral Agency Agreement set forth above, acknowledge and, to the extent
required, consent to the terms and conditions thereof. The undersigned
Obligors do hereby further acknowledge and agree to their joint and several
agreements under Sections 2.9 and 3.1(d) of the Intercreditor and Collateral
Agency Agreement and acknowledge and agree that no Obligor is a third-party
beneficiary of, or has any rights under, the Intercreditor and Collateral
Agency Agreement.
Each Obligor, by its consent hereto, acknowledges that it shall have
no rights under the Intercreditor and Collateral Agency Agreement. If the
Collateral Agent, the Agent or any Lender shall violate the terms of the
Intercreditor and Collateral Agency Agreement, each Obligor agrees, by its
consent hereto, that it shall not use such violation as a defense to any
enforcement by any such party nor assert such violation as a counterclaim or
basis for setoff or recoupment against any such party.
This Acknowledgment of and Agreement to Intercreditor and Collateral
Agency Agreement and any amendment hereof may be executed in several
counterparts and by each parry on a separate counterpart, each of which, when
so executed and delivered, shall be an original, but all of which together
shall constitute but one of the same instrument.
IN WITNESS WHEREOF, the parties below have caused this Acknowledgment
of and Consent and Agreement to Intercreditor and Collateral Agency Agreement
to be executed by their respective duly authorized officer as of October 14,
2003.
AMERICAN BILTRITE INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxx III
---------------------------------
Name:
Title:
K&M ASSOCIATES L.P.
By: AIMPAR, INC., its General Partner
By: /s/ Xxxxxx X. Xxxxx III
---------------------------------
Name:
Title:
Signature Page to Intercreditor Agreement
ABTRE, INC.
By: /s/ Xxxxxx X. Xxxxx III
---------------------------------
Name:
Title:
AIMPAR, INC.
By: /s/ Xxxxxx X. Xxxxx III
---------------------------------
Name:
Title:
AMERICAN BILTRITE INTELLECTUAL
PROPERTIES, INC.
By: /s/ Xxxxxx X. Xxxxx III
---------------------------------
Name:
Title:
IDEAL TAPE CO., INC.
By: /s/ Xxxxxx X. Xxxxx III
---------------------------------
Name:
Title:
MAJESTIC JEWELRY, INC.
By: /s/ Xxxxxx X. Xxxxx III
--------------------------------
Name:
Title:
Signature Page to Intercreditor Agreement
