EXECUTION COPY
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of
July 22, 2003, among FLEET CAPITAL
CORPORATION, as Credit Agent, U.S. Bank
Trust National Association, as Trustee,
COLUMBUS ▇▇▇▇▇▇▇▇ CORPORATION and each
SUBSIDIARY GUARANTOR listed on Schedule I
hereto.
W I T N E S S E T H :
WHEREAS, the Company (such term and each other capitalized
term used herein having the meanings set forth in Section 1 below), certain of
its Subsidiaries, certain lenders, Fleet Capital Corporation, as administrative
agent, Fleet National Bank, as Issuing Lender, Congress Financial Corporation
(New England), as Co-Syndication Agent, Key Bank N.A., as Co-Syndication Agent
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, as Documentation Agent, are parties to the Amended
and Restated Credit and Security Agreement, dated as of November 21, 2002, as
amended (as further amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT");
WHEREAS, the Obligations of the Company under the Credit
Agreement are secured by various assets of the Company and certain Subsidiaries
thereof;
WHEREAS, the Company, certain Subsidiaries of the Company and
the Trustee have entered into the Indenture dated as of July 22, 2003 (as
amended, supplemented or otherwise modified from time to time, the "INDENTURE"),
pursuant to which the Notes shall be governed;
WHEREAS, the Company and certain lenders under the Credit
Agreement have entered into a Second Amendment, dated as of July 22, 2003 (the
"AMENDMENT"), to the Credit Agreement that, among other things, permits, subject
to certain terms and conditions, (a) the issuance of up to $125,000,000 in
aggregate principal amount of the Notes by the Company and (b) a second-priority
Lien (subject to the Lien in favor of the Credit Agent) on the Noteholder
Collateral to secure the Noteholder Claims; and
WHEREAS, it is a condition precedent to the effectiveness of
the Amendment that the parties hereto enter into this Agreement;
Now, THEREFORE, in consideration of the foregoing, the mutual
covenants and obligations herein set forth and for other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. (A) DEFINITIONS. As used in this Agreement, the
following terms have the meanings specified below:
"AGREEMENT" means this Agreement, as amended, renewed,
extended, supplemented or otherwise modified from time to time in accordance
with the terms hereof.
2
"AMENDMENT" has the meaning set forth in the recitals hereto.
"BANKRUPTCY LAW" means Title 11 of the United States Code and
any similar Federal, state or foreign law for the relief of debtors.
"BUSINESS DAY" means any day other than a Saturday, a Sunday
or a day that is a legal holiday under the laws of the State of New York or on
which banking institutions in the State of New York or the Commonwealth of
Massachusetts are required or authorized by law or other governmental action to
close.
"CASH MANAGEMENT OBLIGATIONS" means, with respect to any
Person, all obligations of such Person in respect of overdrafts and related
liabilities owed to any other Person that arise from treasury, depositary or
cash management services, including any automated clearing house transfers of
funds or any similar transactions.
"COMMON COLLATERAL" means all of the assets of any Grantor,
whether real, personal or mixed, constituting both Senior Lender Collateral and
Noteholder Collateral.
"COMPANY" means Columbus ▇▇▇▇▇▇▇▇ Corporation, a New York
corporation, and its successors.
"COMPARABLE NOTEHOLDER COLLATERAL DOCUMENT" means, in relation
to any Common Collateral subject to any Lien created under any Senior Collateral
Document, that Noteholder Collateral Document that creates a Lien on the same
Common Collateral, granted by the same Grantor.
"CREDIT AGENT" means Fleet Capital Corporation, in its
capacity as administrative agent under the Credit Agreement, and its successors
as collateral agent for the Senior Lenders (or if there is more than one such
successor agent, such agent as is designated as "Credit Agent" by Senior Lenders
holding a majority of the Senior Lender Claims then outstanding) under the
Senior Credit Agreement exercising substantially the same rights and powers.
"DEPOSIT ACCOUNT" has the meaning set forth in the Uniform
Commercial Code.
"DEPOSIT ACCOUNT COLLATERAL" means that part of the Common
Collateral comprised of Deposit Accounts.
"DISCHARGE OF SENIOR LENDER CLAIMS" means, except to the
extent otherwise provided in Section 5.6, payment in full in cash of (a) all
Obligations in respect of all outstanding First-Lien Indebtedness or, with
respect to letters of credit outstanding thereunder, delivery of cash collateral
or backstop letters of credit in respect thereof in compliance with such
First-Lien Indebtedness, as applicable, in each case after or concurrently with
termination of all commitments to extend credit thereunder and (b) any other
Senior Lender Claims that are due and payable or otherwise accrued and owing at
or prior to the time such principal and interest are paid.
"FIRST-LIEN INDEBTEDNESS" means (a) Indebtedness Incurred
pursuant to the Credit Agreement and (b) any other Indebtedness that, in the
case of both clauses (a) and (b), is (i) Incurred pursuant to Section 4.03(b)(1)
3
of the Indenture, (ii) secured by a Permitted Lien (as defined in the Indenture)
described in clause (7) of the definition thereof and (iii) (except for the
Indebtedness Incurred pursuant to the Credit Agreement) designated by the
Company as "First-Lien Indebtedness" for purposes of the Indenture.
"FUTURE FIRST-LIEN INDEBTEDNESS" means any First-Lien
Indebtedness other than Indebtedness Incurred pursuant to the Credit Agreement.
"GRANTORS" means the Company and each of the Subsidiaries that
has executed and delivered a Noteholder Collateral Document or a Senior
Collateral Document.
"HEDGING OBLIGATIONS" means, with respect to any Person, all
obligations and liabilities of such Person in respect of (a) interest rate or
currency swap agreements, interest rate or currency cap agreements, interest
rate or currency collar agreements or (b) other agreements or arrangements
designed to protect such Person against fluctuations in interest rates and/or
currency exchange rates.
"INDEBTEDNESS" means and includes all obligations that
constitute "Indebtedness" within the meaning of the Indenture or the Senior
Credit Agreement.
"INDENTURE" has the meaning set forth in the recitals hereto.
"INSOLVENCY OR LIQUIDATION PROCEEDING" means (a) any voluntary
or involuntary case or proceeding under any Bankruptcy Law with respect to any
Grantor, (b) any other voluntary or involuntary insolvency, reorganization or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding with respect to any Grantor or with respect
to any of their respective assets, (c) any liquidation, dissolution,
reorganization or winding up of any Grantor whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy or (d) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of any
Grantor.
"LIEN" means, with respect to any asset, any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset.
"NOTEHOLDER CLAIMS" means all Obligations in respect of the
Notes or arising under the Noteholder Documents or any of them, including all
fees and expenses of the Trustee thereunder.
"NOTEHOLDER COLLATERAL" means all of the assets of any
Grantor, whether real, personal or mixed, with respect to which a Lien is
granted as security for any Noteholder Claim.
"NOTEHOLDER COLLATERAL DOCUMENTS" means the Noteholder
Security Agreement, the Noteholder Mortgages and any other document or
instrument pursuant to which a Lien is granted by any Grantor to secure any
Noteholder Claims or under which rights or remedies with respect to any such
Lien are governed.
"NOTEHOLDER DOCUMENTS" means (a) the Indenture, the Notes, the
Noteholder Collateral Documents and (b) any other related document or instrument
4
executed and delivered pursuant to any Noteholder Document described in clause
(a) above evidencing or governing any Obligations thereunder.
"NOTEHOLDER MORTGAGES" means a collective reference to each
mortgage, deed of trust and any other document or instrument under which any
Lien on real property owned by any Grantor is granted to secure any Noteholder
Claims or under which rights or remedies with respect to any such Liens are
governed.
"NOTEHOLDER SECURITY AGREEMENT" means the Collateral
Agreement, dated as of July 22, 2003, among the Company, the other Grantors and
the Trustee.
"NOTEHOLDERS" means the Persons holding Noteholder Claims.
"NOTES" means (a) the initial $115.0 in principal amount of
10% Senior Secured Notes due 2010 to be issued by the Company pursuant to the
Indenture, (b) the exchange notes issued in exchange therefor as contemplated by
the Registration Rights Agreement dated as of July 22, 2003, between the
Company, certain Subsidiaries of the Company and the Initial Purchasers (as
defined therein) and (c) any additional notes issued under the Indenture by the
Company, to the extent permitted by the Indenture.
"OBLIGATIONS" means, with respect to any Indebtedness, any and
all obligations with respect to the payment of (a) any principal of or interest
(including interest accruing on or after the commencement of any Insolvency or
Liquidation Proceeding, whether or not a claim for post-filing interest is
allowed in such proceeding) or premium on any Indebtedness, including any
reimbursement obligation in respect of any letter of credit, (b) any fees,
indemnification obligations, expense reimbursement obligations or other
liabilities payable under the documentation governing such Indebtedness, (c) any
obligation to post cash collateral in respect of letters of credit and any other
obligations and/or (d) any Cash Management Obligations or Hedging Obligations in
connection with such Indebtedness.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
entity or other party, including any government and any political subdivision,
agency or instrumentality thereof.
"PLEDGED COLLATERAL" means (a) the Common Collateral in the
possession of the Credit Agent (or its agents or bailees), to the extent that
possession thereof is necessary to perfect a Lien thereon under the Uniform
Commercial Code and (b) the "Pledged Collateral" under, and as defined in, the
Noteholder Security Agreement that is Common Collateral.
"PROCEEDS" has the meaning set forth in Section 4.1.
"RECOVERY" has the meaning set forth in Section 6.4.
"REQUIRED LENDERS" means, with respect to any Senior Credit
Agreement, those Senior Lenders the approval of which is required to approve an
amendment or modification of, termination or waiver of any provision of or
consent or departure from the Senior Credit Agreement (or would be required to
effect such consent under this Agreement if such consent were treated as an
amendment of the Senior Credit Agreement).
5
"SENIOR COLLATERAL DOCUMENTS" means the Security Documents (as
defined in the Credit Agreement) and any other agreement, document or instrument
pursuant to which a Lien is granted securing any Senior Lender Claims or under
which rights or remedies with respect to such Liens are governed.
"SENIOR CREDIT AGREEMENT" means the Credit Agreement and any
other agreement governing Future First-Lien Indebtedness.
"SENIOR LENDER CASH MANAGEMENT OBLIGATIONS" means any Cash
Management Obligations secured by any Common Collateral under the Senior
Collateral Documents.
"SENIOR LENDER CLAIMS" means (a) all First-Lien Indebtedness
outstanding, including any Future First-Lien Indebtedness and (b) all other
Obligations (not constituting Indebtedness) of any Grantor under any such
First-Lien Indebtedness, including all Senior Lender Hedging Obligations and
Senior Lender Cash Management Obligations. Senior Lender Claims shall include
all interest and expenses accrued or accruing (or that would, absent the
commencement of an Insolvency or Liquidation Proceeding, accrue) after the
commencement of an Insolvency or Liquidation Proceeding in accordance with and
at the rate specified in the relevant Senior Lender Document whether or not the
claim for such interest or expenses is allowed as a claim in such Insolvency or
Liquidation Proceeding.
"SENIOR LENDER COLLATERAL" means all of the assets of any
Grantor, whether real, personal or mixed, with respect to which a Lien is
granted as security for any Senior Lender Claim.
"SENIOR LENDER DOCUMENTS" means the Senior Credit Agreement,
the Senior Collateral Documents, and each of the other agreements, documents and
instruments (including each agreement, document or instrument providing for or
evidencing a Senior Lender Hedging Obligation or Senior Lender Cash Management
Obligation) providing for or evidencing any other Obligation under the Credit
Agreement or any Future First-Lien Indebtedness and any other related document
or instrument executed or delivered pursuant to any Senior Lender Document at
any time or otherwise evidencing any Indebtedness arising under any Senior
Lender Document.
"SENIOR LENDER HEDGING OBLIGATIONS" means any Hedging
Obligations secured by any Common Collateral under the Senior Collateral
Documents.
"SENIOR LENDERS" means the Persons holding Senior Lender
Claims, including the Credit Agent.
"SUBSIDIARY" means any "Subsidiary" of the Company as defined
in the Indenture.
"TRUSTEE" means U.S. Bank Trust National Association, in its
capacity as trustee under the Indenture and collateral agent under the
Noteholder Collateral Documents, and its permitted successors.
"UNIFORM COMMERCIAL CODE" or "UCC" means the Uniform
Commercial Code as from time to time in effect in the State of New York.
6
(b) TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified in accordance with this Agreement, (b) any
reference herein to any Person shall be construed to include such Person's
successors and assigns, (c) the words "herein", "hereof" and "hereunder", and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references herein
to Sections shall be construed to refer to Sections of this Agreement and (e)
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
SECTION 2. Lien Priorities.
2.1 SUBORDINATION. Notwithstanding the date, time, manner or
order of filing or recordation of any document or instrument or grant,
attachment or perfection of any Liens granted to the Trustee or the Noteholders
on the Common Collateral or of any Liens granted to the Credit Agent or the
Senior Lenders on the Common Collateral and notwithstanding any provision of the
UCC, or any applicable law or the Noteholder Documents or the Senior Lender
Documents or any other circumstance whatsoever, the Trustee, on behalf of itself
and the Noteholders, hereby agrees that: (a) any Lien on the Common Collateral
securing any Senior Lender Claims now or hereafter held by or on behalf of the
Credit Agent or any Senior Lenders or any agent or trustee therefor regardless
of how acquired, whether by grant, statute, operation of law, subrogation or
otherwise, shall have priority over and be senior in all respects and prior to
any Lien on the Common Collateral securing any of the Noteholder Claims and (b)
any Lien on the Common Collateral securing any Noteholder Claims now or
hereafter held by or on behalf of the Trustee or any Noteholders or any agent or
trustee therefor regardless of how acquired, whether by grant, statute,
operation of law, subrogation or otherwise, shall be junior and subordinate in
all respects to all Liens on the Common Collateral securing any Senior Lender
Claims. All Liens on the Common Collateral securing any Senior Lender Claims
shall be and remain senior in all respects and prior to all Liens on the Common
Collateral securing any Noteholder Claims for all purposes, whether or not such
Liens securing any Senior Lender Claims are subordinated to any Lien securing
any other obligation of the Company, any other Grantor or any other Person.
2.2 PROHIBITION ON CONTESTING LIENS. Each of the Trustee, for
itself and on behalf of each Noteholder, and the Credit Agent, for itself and on
behalf of each Senior Lender, agrees that it shall not (and hereby waives any
right to) contest or support any other Person in contesting, in any proceeding
(including any Insolvency or Liquidation Proceeding), the priority, validity or
enforceability of (a) a Lien securing any Senior Lender Claims held by or on
behalf of any of the Senior Lenders in the Common Collateral or (b) a Lien
securing any Noteholder Claims held by or on behalf of any of the Noteholders in
the Common Collateral, as the case may be; PROVIDED that nothing in this
7
Agreement shall be construed to prevent or impair the rights of the Credit Agent
or any Senior Lender to enforce this Agreement, including the priority of the
Liens securing the Senior Lender Claims as provided in Section 2.1.
2.3 NO NEW LIENS. Subject to Section 11.03 of the Indenture,
so long as the Discharge of Senior Lender Claims has not occurred, the parties
hereto agree that, after the date hereof, if the Trustee shall hold any Lien on
any assets of the Company or any other Grantor securing any Noteholder Claims
that are not also subject to the first-priority Lien in respect of the Senior
Lender Claims under the Senior Lender Documents, the Trustee, upon demand by the
Credit Agent or the Company, will assign such Lien to the Credit Agent as
security for the Senior Lender Claims (in which case the Trustee may retain a
junior lien on such assets subject to the terms hereof).
2.4 PERFECTION OF LIENS. Neither the Credit Agent nor the
Senior Lenders shall be responsible for perfecting and maintaining the
perfection of Liens with respect to the Common Collateral for the benefit of the
Trustee and the Noteholders. The provisions of this Intercreditor Agreement are
intended solely to govern the respective Lien priorities as between the
respective Senior Lenders and the Noteholders and shall not impose on the Credit
Agent, the Trustee, the Noteholders or the Senior Lenders any obligations in
respect of the disposition of Proceeds of any Common Collateral which would
conflict with prior perfected claims therein in favor of any other Person or any
order or decree of any court or governmental authority or any applicable law.
Each of the Credit Agent, for itself and on behalf of the Senior Lenders and the
Trustee, for itself and on behalf of the Noteholders, agrees that it will not
contest the validity, perfection, priority or enforceability of the Liens upon
the Common Collateral of the Credit Agent, the Trustee, the Noteholders or the
Senior Lenders.
SECTION 3. ENFORCEMENT.
3.1 EXERCISE OF REMEDIES.
(a) So long as the Discharge of Senior Lender Claims has not
occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against the Company or any other Grantor, (i) the Trustee and
the Noteholders will not exercise or seek to exercise any rights or remedies
(including set-off) with respect to any Common Collateral in respect of any
Noteholder Claims, institute any action or proceeding with respect to such
rights or remedies (including any action of foreclosure), contest, protest or
object to any foreclosure proceeding or action brought with respect to the
Common Collateral by the Credit Agent or any Senior Lender in respect of Senior
Lender Claims, the exercise of any right under any lockbox agreement, control
agreement, landlord waiver or bailee's letter or similar agreement or
arrangement to which the Trustee or any Noteholder is a party, or any other
exercise by any such party, of any rights and remedies relating to the Common
Collateral under the Senior Lender Documents or otherwise in respect of Senior
Lender Claims, or object to the forbearance by the Senior Lenders from bringing
or pursuing any foreclosure proceeding or action or any other exercise of any
rights or remedies relating to the Common Collateral in respect of Senior Lender
Claims and (ii) the Credit Agent and the Senior Lenders shall have the exclusive
right to enforce rights, exercise remedies (including set-off and the right to
credit bid their debt) and make determinations regarding the release,
disposition, or restrictions with respect to the Common Collateral without any
8
consultation with or the consent of the Trustee or any Noteholder; and, should
the Credit Agent and the Senior Lenders decide to foreclose on any of the Common
Collateral as part of its enforcement of the Senior Lenders Claims under the
Senior Collateral Documents, (A) the Noteholders and the Trustee shall not
contest such foreclosure and shall release any and all claims in respect of such
Common Collateral (except for the right to receive the balance of Proceeds after
Discharge of Senior Lender Claims as described in Section 4.1) so that it may be
sold free and clear of the Liens of the Noteholders and of the Trustee, on
behalf of the Noteholders, and the Trustee, for itself and on behalf of any such
Noteholder, shall, within five (5) business days of request by the Credit Agent,
execute and deliver to the Credit Agent such termination statements, releases
and other documents as the Credit Agent may request to effectively confirm such
release and (B) the Trustee, for itself and on behalf of the Noteholders, hereby
irrevocably constitutes and appoints the Credit Agent and any officer or agent
of the Credit Agent, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Trustee or such holder or in the Credit Agent's own name, from time
to time in the Credit Agent's discretion, for the purpose of carrying out the
terms of this Section 3.1(a), to take any and all appropriate action and to
execute any and all documents and instruments that may be necessary to
accomplish the purposes of this Section 3.1(a), including any termination
statements, endorsements or other instruments of transfer or release; PROVIDED,
that (A) in any Insolvency or Liquidation Proceeding commenced by or against the
Company or any other Grantor, the Trustee may file a claim or statement of
interest with respect to the Noteholder Claims and (B) the Trustee may take any
action (not adverse to the prior Liens on the Common Collateral securing the
Senior Lender Claims, or the rights of the Credit Agent or the Senior Lenders to
exercise remedies in respect thereof) in order to preserve or protect its Lien
on the Common Collateral. In exercising rights and remedies with respect to the
Common Collateral, the Credit Agent and the Senior Lenders may enforce the
provisions of the Senior Lender Documents and exercise remedies thereunder, all
in such order and in such manner as they may determine in the exercise of their
sole discretion. Such exercise and enforcement shall include the rights of an
agent appointed by them to sell or otherwise dispose of Common Collateral upon
foreclosure, to incur expenses in connection with such sale or disposition, and
to exercise all the rights and remedies of a secured lender under the Uniform
Commercial Code of any applicable jurisdiction and of a secured creditor under
Bankruptcy Laws of any applicable jurisdiction.
(b) The Trustee, on behalf of itself and the Noteholders,
agrees that, after an event of default under the First Lien Indebtedness has
occurred with respect to which the Credit Agent has provided written notice to
the Trustee, and until such event of default is cured or waived, it will not
take or receive any Common Collateral or any Proceeds of Common Collateral in
respect of Noteholder Claims, unless and until the Discharge of Senior Lender
Claims has occurred. Without limiting the generality of the foregoing, unless
and until the Discharge of Senior Lender Claims has occurred, except as
expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole
right of the Trustee and the Noteholders with respect to the Common Collateral
is to hold a Lien on the Common Collateral in respect of Noteholder Claims
pursuant to the Noteholder Documents for the period and to the extent granted
therein and to receive a share of the Proceeds thereof, if any, after the
Discharge of the Senior Lender Claims has occurred.
9
(c) Subject to the proviso in clause (ii) of Section 3.1(a),
(i) the Trustee, for itself and on behalf of the Noteholders, agrees that the
Trustee and the Noteholders will not take any action that would hinder any
exercise of remedies undertaken by the Credit Agent or the Senior Lenders with
respect to the Common Collateral under the Senior Loan Documents, including any
sale, lease, exchange, transfer or other disposition of the Common Collateral,
whether by foreclosure or otherwise, and (ii) the Trustee, for itself and on
behalf of the Noteholders, hereby waives any and all rights it or the
Noteholders may have as a junior lien creditor or otherwise to object to the
manner in which the Credit Agent or the Senior Lenders seek to enforce or
collect the Senior Lender Claims or the Liens granted in any of the Common
Collateral in respect of Senior Lender Claims, regardless of whether any action
or failure to act by or on behalf of the Credit Agent or Senior Lenders is
adverse to the interest of the Noteholders.
(d) The Trustee hereby acknowledges and agrees that no
covenant, agreement or restriction contained in any Noteholder Document shall be
deemed to restrict in any way the rights and remedies of the Credit Agent or the
Senior Lenders with respect to the Common Collateral as set forth in this
Agreement and the Senior Lender Documents.
3.2 COOPERATION. Subject to the proviso in clause (ii) of
Section 3.1(a), the Trustee, on behalf of itself and the Noteholders, agrees
that, unless and until the Discharge of Senior Lender Claims has occurred, it
will not commence, or join with any Person (other than the Senior Lenders and
the Credit Agent upon the request thereof) in commencing, any enforcement,
collection, execution, levy or foreclosure action or proceeding with respect to
any Lien held by it in the Common Collateral under any of the Noteholder
Documents or otherwise in respect of the Noteholder Claims.
SECTION 4. PAYMENTS.
4.1 APPLICATION OF PROCEEDS. After an event of default under
the First Lien Indebtedness has occurred with respect to which the Credit Agent
has provided written notice to the Trustee, and until such event of default is
cured or waived, so long as the Discharge of Senior Lender Claims has not
occurred, and whether prior to or after the commencement of any Insolvency or
Liquidation Proceeding, all Common Collateral and all proceeds thereof (a)
received from the sale, lease, license, exchange or other disposition of Common
Collateral, whether such sale, lease, license, or other disposition is made by
or on behalf of a Grantor, the Credit Agent, the Trustee or any other person,
(b) collected on, or distributed on account of, Common Collateral, (c)
consisting of rights arising out of the loss, nonconformity, or interference
with the use of, defects or infringements of rights in, or damage to, the Common
Collateral, (d) consisting of rights arising out of the Common Collateral, or
(e) to the extent of the value of the Common Collateral, and to the extent
payable to the debtor or the secured party, insurance payable by reason of the
loss or nonconformity of, defects or infringement of rights in, or damage to,
the Common Collateral (collectively, "Proceeds") shall be applied FIRST to the
Senior Lender Claims in such order as specified in the relevant Senior Lender
Documents until the Discharge of Senior Lender Claims has occurred and SECOND,
to the Noteholder Claims. Upon the Discharge of the Senior Lender Claims, the
Credit Agent shall deliver to the Trustee any Proceeds of Common Collateral held
by it in the same form as received, with any necessary endorsements or as a
court of competent jurisdiction may otherwise direct to be applied by the
10
Trustee to the Noteholder Claims in such order as specified in the relevant
Noteholder Documents.
4.2 PAYMENTS OVER. After an event of default under the First
Lien Indebtedness has occurred with respect to which the Credit Agent has
provided written notice to the Trustee, and until such event of default is cured
or waived, so long as the Discharge of Senior Lender Claims has not occurred,
any Common Collateral or Proceeds thereof received by the Trustee or any
Noteholder relating to the Common Collateral shall be segregated and held in
trust and forthwith paid over to the Credit Agent for the benefit of the Senior
Lenders in the same form as received, with any necessary endorsements or as a
court of competent jurisdiction may otherwise direct. The Credit Agent is hereby
authorized to make any such endorsements as agent for the Trustee or any such
Noteholder. This authorization is coupled with an interest and is irrevocable.
SECTION 5. OTHER AGREEMENTS.
5.1 RELEASES.
(a) In the event of any release of the Liens on Common
Collateral in respect of Noteholder Claims in accordance with the Indenture, the
Trustee, for itself and on behalf of the Noteholders, promptly shall execute and
deliver to the Credit Agent or the applicable Grantor such termination
statements, releases and other documents as the Credit Agent or such Grantor may
request to effectively confirm such release.
(b) The Trustee, for itself and on behalf of the Noteholders,
hereby irrevocably constitutes and appoints the Credit Agent and any officer or
agent of the Credit Agent, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of the Trustee or such holder or in the Credit Agent's own name, from
time to time in the Credit Agent's discretion, for the purpose of carrying out
the terms of this Section 5.1, to take any and all appropriate action and to
execute any and all documents and instruments that may be necessary or desirable
to accomplish the purposes of this Section 5.1, including any termination
statements, endorsements or other instruments of transfer or release.
(c) The Trustee, for itself and on behalf of the Noteholders,
hereby consents to the application, whether prior to or after default, of
Deposit Account Collateral or Proceeds of Common Collateral to the repayment of
Senior Lender Claims pursuant to the Senior Credit Agreement; PROVIDED that
nothing in this Section 5.1(c) shall be construed to prevent or impair the
rights of the Trustee or the Noteholders to receive Proceeds in connection with
the Noteholder Claims not otherwise in contravention of this agreement.
5.2 INSURANCE. Unless and until the Discharge of Senior Lender
Claims has occurred, the Credit Agent and the Senior Lenders shall have the sole
and exclusive right, subject to the rights of the Grantors under the Senior
Lender Documents, to adjust settlement for any insurance policy covering the
Common Collateral in the event of any loss thereunder and to approve any award
granted in any condemnation or similar proceeding affecting the Common
Collateral. Unless and until the Discharge of Senior Lender Claims has occurred,
11
all proceeds of any such policy and any such award if in respect of the Common
Collateral shall be paid to the Credit Agent for the benefit of the Senior
Lenders to the extent required under the Senior Lender Documents in respect of
the Senior Lender Claims and thereafter to the Trustee for the benefit of the
Noteholders to the extent required under the applicable Noteholder Documents and
then to the owner of the subject property or as a court of competent
jurisdiction may otherwise direct. If the Trustee or any Noteholder shall, at
any time, receive any proceeds of any such insurance policy or any such award in
contravention of this Agreement, it shall pay such proceeds over to the Credit
Agent in accordance with the terms of Section 4.2.
5.3 AMENDMENTS TO NOTEHOLDER COLLATERAL DOCUMENTS.
(a) Without the prior written consent of the Credit Agent and
the Required Lenders, no Noteholder Collateral Document may be amended,
supplemented or otherwise modified or entered into to the extent such amendment,
supplement or modification, or the terms of any new Noteholder Collateral
Document, would be prohibited by or inconsistent with any of the terms of this
Agreement. The Trustee agrees that each Noteholder Collateral Document shall
include the following language (or language to similar effect approved by the
Credit Agent):
"Notwithstanding anything herein to the contrary, the lien and security
interest granted to the Trustee pursuant to this Agreement and the
exercise of any right or remedy by the Trustee hereunder are subject to
the provisions of the Intercreditor Agreement, dated as of July 22,
2003 (as amended, supplemented or otherwise modified from time to time,
the "INTERCREDITOR AGREEMENT"), among Columbus ▇▇▇▇▇▇▇▇ Corporation,
Fleet Capital Corporation, as Credit Agent, and U.S. Bank Trust
National Association, as Trustee. In the event of any conflict between
the terms of the Intercreditor Agreement and this Agreement, the terms
of the Intercreditor Agreement shall govern."
In addition, the Trustee agrees that each Noteholder Mortgage covering any
Common Collateral shall contain such other language as the Credit Agent may
reasonably request to reflect the subordination of such Noteholder Mortgage to
the Senior Collateral Document covering such Common Collateral.
(b) In the event that the Credit Agent or the Senior Lenders
enter into any amendment, waiver or consent in respect of any of the Senior
Collateral Documents for the purpose of adding to, or deleting from, or waiving
or consenting to any departures from any provisions of, any Senior Collateral
Document or changing in any manner the rights of the Credit Agent, the Senior
Lenders, the Company or any other Grantor thereunder, then such amendment,
waiver or consent shall apply automatically to any comparable provision of the
Comparable Noteholder Collateral Document without the consent of the Trustee or
the Noteholders and without any action by the Trustee, the Company or any other
Grantor; PROVIDED, that (A) if any such amendment, waiver or consent could
reasonably be expected to be adverse to the Noteholders or the interest of the
Noteholders in the Noteholder Collateral, such amendment, waiver or consent
shall not apply to any Noteholder Collateral Document unless, at the time of
such amendment, waiver or consent, First Lien Indebtedness (including
commitments in respect thereof to the extent that such commitments are subject
only to reasonable and customary funding conditions and are then available to be
funded at the election of the Company) of no less than $40.0 million secured by
the first-priority Liens on the Common Collateral are then outstanding and (B)
12
written notice of such amendment, waiver or consent shall have been given to the
Trustee. Notwithstanding the foregoing, no such amendment, waiver or consent
shall have the effect of releasing assets subject to the Lien of the Noteholder
Collateral Documents, except to the extent that a release of such Lien is
permitted by Section 11.03 of the Indenture.
5.4 RIGHTS AS UNSECURED CREDITORS. Notwithstanding anything to
the contrary in this Agreement, the Trustee and the Noteholders may exercise
rights and remedies as an unsecured creditor against the Company or any
Subsidiary that has guaranteed the Noteholder Claims in accordance with the
terms of the Noteholder Documents and applicable law. Nothing in this Agreement
shall prohibit the receipt by the Trustee or any Noteholders of the required
payments of interest and principal so long as such receipt is not the direct or
indirect result of the exercise by the Trustee or any Noteholder of rights or
remedies as a secured creditor in respect of Common Collateral or enforcement in
contravention of this Agreement of any Lien in respect of Noteholder Claims held
by any of them and such payments do not come from Proceeds of Common Collateral
after an event of default under the First Lien Indebtedness has occurred with
respect to which the Trustee has received written notice, and until such event
of default is cured or waived or until the Discharge of Senior Lender Claims. In
the event the Trustee or any Noteholder becomes a judgment lien creditor in
respect of Common Collateral as a result of its enforcement of its rights as an
unsecured creditor in respect of Noteholder Claims, such judgment lien shall be
subordinated to the Liens securing Senior Lender Claims on the same basis as the
other Liens securing the Noteholder Claims are so subordinated to such Liens
securing Senior Lender Claims under this Agreement. Nothing in this Agreement
impairs or otherwise adversely affects any rights or remedies the Credit Agent
or the Senior Lenders may have with respect to the Senior Lender Collateral.
5.5 BAILEE FOR PERFECTION.
(a) The Credit Agent agrees to hold the Pledged Collateral
that is part of the Common Collateral in its possession or control (or in the
possession or control of its agents or bailees) as bailee for the Trustee and
any assignee solely for the purpose of perfecting the security interest granted
in such Pledged Collateral pursuant to the Noteholder Security Agreement,
subject to the terms and conditions of this Section 5.5.
(b) The Credit Agent agrees to hold the Deposit Account
Collateral that is part of the Common Collateral and controlled by the Credit
Agent for the Trustee and any assignee solely for the purpose of perfecting the
security interest granted in such Deposit Account Collateral pursuant to the
Noteholder Security Agreement, subject to the terms and conditions of this
Section 5.5.
(c) Except as otherwise specifically provided herein
(including, without limitation, Sections 3.1 and 4.1), until the Discharge of
Senior Lender Claims has occurred, the Credit Agent shall be entitled to deal
with the Pledged Collateral in accordance with the terms of the Senior Lender
Documents as if the Liens under the Noteholder Collateral Documents did not
exist. The rights of the Trustee and the Noteholders with respect to such
Pledged Collateral shall at all times be subject to the terms of this Agreement.
13
(d) The Credit Agent shall have no obligation whatsoever to
the Trustee or any Noteholder to assure that the Pledged Collateral is genuine
or owned by any of the Grantors or to protect or preserve rights or benefits of
any Person or any rights pertaining to the Common Collateral except as expressly
set forth in this Section 5.5. The duties or responsibilities of the Credit
Agent under this Section 5.5 shall be limited solely to holding the Pledged
Collateral as bailee for the Trustee for purposes of perfecting the Lien held by
the Trustee.
(e) The Credit Agent shall not have by reason of the
Noteholder Collateral Documents or this Agreement or any other document a
fiduciary relationship in respect of the Trustee or any Noteholder and the
Trustee and the Noteholders hereby waive and release the Credit Agent from all
claims and liabilities arising pursuant to the Credit Agent's role under this
Section 5.5, as agent and bailee with respect to the Common Collateral.
(f) Upon the Discharge of Senior Lender Claims, the Credit
Agent shall deliver to the Trustee, to the extent that it is legally permitted
to do so, the remaining Pledged Collateral (if any) and the Deposit Account
Collateral (if any) together with any necessary endorsements (or otherwise allow
the Trustee to obtain control of such Pledged Collateral and Deposit Account
Collateral) or as a court of competent jurisdiction may otherwise direct. The
Company shall take such further action as is required to effectuate the transfer
contemplated hereto and shall indemnify the Credit Agent for loss or damage
suffered by the Credit Agent as a result of such transfer except for loss or
damage suffered by the Credit Agent as a result of its own wilful misconduct or
bad faith. The Credit Agent has no obligation to follow instructions from the
Trustee in contravention of this Agreement.
(g) Neither the Credit Agent nor the Senior Lenders shall be
required to marshal any present or future collateral security for the Company's
or its Subsidiaries' obligations to the Credit Agent or the Senior Lenders under
the Senior Credit Agreement or the Senior Collateral Documents or to resort to
such collateral security or other assurances of payment in any particular order,
and all of their rights in respect of such collateral security shall be
cumulative and in addition to all other rights, however existing or arising.
14
5.6 WHEN DISCHARGE OF SENIOR LENDER CLAIMS DEEMED TO NOT HAVE
OCCURRED. If at any time after the Discharge of Senior Lender Claims has
occurred the Company incurs and designates any Future First-Lien Indebtedness,
then such Discharge of Senior Lender Claims shall automatically be deemed not to
have occurred for all purposes of this Agreement (other than with respect to any
actions taken prior to the date of such designation as a result of the
occurrence of such first Discharge of Senior Lender Claims), and the applicable
agreement governing such Future First-Lien Indebtedness shall automatically be
treated as the Senior Credit Agreement for all purposes of this Agreement,
including for purposes of the Lien priorities and rights in respect of Common
Collateral set forth herein. Upon receipt of notice of such designation
(including the identity of the new Credit Agent), the Trustee shall promptly (i)
enter into such documents and agreements (including amendments or supplements to
this Agreement) as the Company or such new Credit Agent shall reasonably request
in order to provide to the new Credit Agent the rights of the Credit Agent
contemplated hereby and (ii) deliver to the Credit Agent the Pledged Collateral
that is Common Collateral together with any necessary endorsements (or otherwise
allow such Credit Agent to obtain control of such Pledged Collateral).
SECTION 6. INSOLVENCY OR LIQUIDATION PROCEEDINGS.
6.1 FINANCING ISSUES. If the Company or any other Grantor
shall be subject to any Insolvency or Liquidation Proceeding and the Credit
Agent shall desire to permit the use of cash collateral or to permit the Company
or any other Grantor to obtain financing under Section 363 or Section 364 of
Title 11 of the United States Code or any similar Bankruptcy Law ("DIP
FINANCING"), then the Trustee, on behalf of itself and the Noteholders, agrees
that it will raise no objection to such use of cash collateral or DIP Financing
and will not request adequate protection or any other relief in connection
therewith (except to the extent permitted by the proviso in clause (ii) of
Section 3.1(a) and Section 6.3) and, to the extent the Liens securing the Senior
Lender Claims under the Senior Credit Agreement or, if no Senior Credit
Agreement exists, under the other Senior Lender Documents are subordinated or
PARI PASSU with such DIP Financing, will subordinate its Liens in the Common
Collateral to such DIP Financing (and all Obligations relating thereto) on the
same basis as the other Liens securing the Noteholder Claims are so subordinated
to Liens Securing Senior Lender Claims under this Agreement.
6.2 RELIEF FROM THE AUTOMATIC STAY. Until the Discharge of
Senior Lender Claims has occurred, the Trustee, on behalf of itself and the
Noteholders, agrees that none of them shall seek relief from the automatic stay
or any other stay in any Insolvency or Liquidation Proceeding in respect of the
Common Collateral, without the prior written consent of the Credit Agent and the
Required Lenders.
6.3 ADEQUATE PROTECTION. The Trustee, on behalf of itself and
the Noteholders, agrees that none of them shall contest (or support any other
Person contesting) (a) any request by the Credit Agent or the Senior Lenders for
adequate protection or (b) any objection by the Credit Agent or the Senior
Lenders to any motion, relief, action or proceeding based on the Credit Agent's
or the Senior Lenders' claiming a lack of adequate protection. Notwithstanding
the foregoing, in any Insolvency or Liquidation Proceeding, (i) if the Senior
Lenders (or any subset thereof) are granted adequate protection in the form of
additional collateral in connection with any DIP Financing or use of cash
collateral under Section 363 or Section 364 of Title 11 of the United States
15
Code or any similar Bankruptcy Law, then the Trustee, on behalf of itself and
any of the Noteholders, may seek or request adequate protection in the form of a
replacement Lien on such additional collateral, which Lien is subordinated to
the Liens securing the Senior Lender Claims and such DIP Financing (and all
Obligations relating thereto) on the same basis as the other Liens securing the
Noteholder Claims are so subordinated to the Liens securing Senior Lender Claims
under this Agreement and (ii) in the event the Trustee, on behalf of itself and
the Noteholders, seeks or requests adequate protection and such adequate
protection is granted in the form of additional collateral, then the Trustee, on
behalf of itself or any of the Noteholders, agrees that the Credit Agent shall
also be granted a senior Lien on such additional collateral as security for the
Senior Lender Claims and any such DIP Financing and that any Lien on such
additional collateral securing the Noteholder Claims shall be subordinated to
the Liens on such collateral securing the Senior Lender Claims and any such DIP
Financing (and all Obligations relating thereto) and any other Liens granted to
the Senior Lenders as adequate protection on the same basis as the other Liens
securing the Noteholder Claims are so subordinated to such Liens securing Senior
Lender Claims under this Agreement.
6.4 PREFERENCE ISSUES. If any Senior Lender is required in any
Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay
to the estate of the Company or any other Grantor (or any trustee, receiver or
similar person therefor), because the payment of such amount was declared to be
fraudulent or preferential in any respect or for any other reason, any amount (a
"Recovery"), whether received as proceeds of security, enforcement of any right
of set-off or otherwise, then the Senior Lender Claims shall be reinstated to
the extent of such Recovery and deemed to be outstanding as if such payment had
not occurred and the Senior Lenders shall be entitled to a Discharge of Senior
Lender Claims with respect to all such recovered amounts. If this Agreement
shall have been terminated prior to such Recovery, this Agreement shall be
reinstated in full force and effect, and such prior termination shall not
diminish, release, discharge, impair or otherwise affect the obligations of the
parties hereto.
6.5 APPLICATION. This Agreement shall be applicable prior to
or after the commencement of any Insolvency or Liquidation Proceeding. All
references herein to any Grantor shall apply to any trustee for such Person and
such Person as debtor in possession. The relative rights as to the Collateral
and Proceeds thereof 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 Grantor.
SECTION 7. RELIANCE; WAIVERS; ETC.
7.1 RELIANCE. The consent by the Senior Lenders to the
execution and delivery of the Noteholder Documents to which the Senior Lenders
have consented and all loans and other extensions of credit made or deemed made
on and after the date hereof by the Senior Lenders to the Company or any
Subsidiary shall be deemed to have been given and made in reliance upon this
Agreement. The Trustee, on behalf of itself and the Noteholders, acknowledges
that it and the Noteholders have, independently and without reliance on the
Credit Agent or any Senior Lender, and based on documents and information deemed
by them appropriate, made their own credit analysis and decision to enter into
the Indenture, this Agreement and the transactions contemplated hereby and
thereby and they will continue to make their own credit decision in taking or
not taking any action under the Indenture or this Agreement.
16
7.2 NO WARRANTIES OR LIABILITY. The Trustee, on behalf of
itself and the Noteholders, acknowledges and agrees that each of the Credit
Agent and the Senior Lenders have made no express or implied representation or
warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Senior Lender
Documents, the ownership of any Common Collateral or the perfection or priority
of any Liens thereon. The Senior Lenders will be entitled to manage and
supervise their respective loans and extensions of credit under the Senior
Lender Documents in accordance with law and as they may otherwise, in their sole
discretion, deem appropriate, and the Senior Lenders may manage their loans and
extensions of credit without regard to any rights or interests that the Trustee
or any of the Noteholders have in the Common Collateral or otherwise, except as
otherwise provided in this Agreement. Neither the Credit Agent nor any Senior
Lender shall have any duty to the Trustee or any of the Noteholders to act or
refrain from acting in a manner that allows, or results in, the occurrence or
continuance of an event of default or default under any agreements with the
Company or any Subsidiary thereof (including the Noteholder Documents),
regardless of any knowledge thereof that they may have or be charged with.
Except as expressly set forth in this Intercreditor Agreement, the Credit Agent,
the Senior Lenders, the Trustee and the Noteholders have not otherwise made to
each other nor do they hereby make to each other any warranties, express or
implied, nor do they assume any liability to each other with respect to (a) the
enforceability, validity, value or collectibility of any of the Noteholder
Claims, the Senior Lender Claims or any guarantee or security which may have
been granted to any of them in connection therewith, (b) the Company's, the
Canadian Borrowers' (as defined in the Senior Credit Agreement), the Guarantors'
(as defined in the Senior Credit Agreement) or any Subsidiary's title to or
right to transfer any of the Common Collateral, or (c) any other matter except
as expressly set forth in this Intercreditor Agreement.
7.3 OBLIGATIONS UNCONDITIONAL. All rights, interests,
agreements and obligations of the Credit Agent and the Senior Lenders and the
Trustee and the Noteholders, respectively, hereunder shall remain in full force
and effect irrespective of:
(a) any lack of validity or enforceability of any Senior
Lender Documents or any Noteholder Documents;
(b) any change in the time, manner or place of payment of, or
in any other terms of, all or any of the Senior Lender Claims or Noteholder
Claims, or any amendment or waiver or other modification, including any increase
in the amount thereof, whether by course of conduct or otherwise, of the terms
of the Senior Credit Agreement or any other Senior Lender Document or of the
terms of the Indenture or any other Noteholder Document;
(c) any exchange of any security interest in any Common
Collateral or any other collateral, or any amendment, waiver or other
modification, whether in writing or by course of conduct or otherwise, of all or
any of the Senior Lender Claims or Noteholder Claims or any guarantee thereof;
17
(d) the commencement of any Insolvency or Liquidation
Proceeding in respect of the Company or any other Grantor; or
(e) any other circumstances that otherwise might constitute a
defense available to, or a discharge of, the Company or any other Grantor in
respect of the Senior Lender Claims, or of the Trustee or any Noteholder in
respect of this Agreement.
SECTION 8. MISCELLANEOUS.
8.1 CONFLICTS. Subject to Section 8.20, in the event of any
conflict between the provisions of this Agreement and the provisions of the
Senior Lender Documents or the Noteholder Documents, the provisions of this
Agreement shall govern.
8.2 CONTINUING NATURE OF THIS AGREEMENT; SEVERABILITY. This
Agreement shall continue to be effective until the Discharge of Senior Lender
Claims shall have occurred. This is a continuing agreement of lien subordination
and the Senior Lenders may continue, at any time and without notice to the
Trustee or any Noteholder, to extend credit and other financial accommodations
and lend monies to or for the benefit of the Company or any other Grantor
constituting Senior Lender Claims in reliance hereon. The terms of this
Agreement shall survive, and shall continue in full force and effect, in any
Insolvency or Liquidation Proceeding. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.3 AMENDMENTS; WAIVERS. No amendment, modification or waiver
of any of the provisions of this Agreement by the Trustee or the Credit Agent
shall be deemed to be made unless the same shall be in writing signed on behalf
of the party making the same or its authorized agent and each waiver, if any,
shall be a waiver only with respect to the specific instance involved and shall
in no way impair the rights of the parties making such waiver or the obligations
of the other parties to such party in any other respect or at any other time.
The Company and other Grantors shall not have any right to consent to or approve
any amendment, modification or waiver of any provision of this Agreement except
to the extent their rights are affected.
8.4 INFORMATION CONCERNING FINANCIAL CONDITION OF THE COMPANY
AND THE SUBSIDIARIES. The Credit Agent and the Senior Lenders, on the one hand,
and the Trustee and the Noteholders, on the other hand, shall each be
responsible for keeping themselves informed of (a) the financial condition of
the Company and the Subsidiaries and all endorsers and/or guarantors of the
Noteholder Claims or the Senior Lender Claims and (b) all other circumstances
bearing upon the risk of nonpayment of the Noteholder Claims or the Senior
Lender Claims. The Credit Agent and the Senior Lenders shall have no duty to
advise the Trustee or any Noteholder of information known to it or them
regarding such condition or any such circumstances or otherwise. In the event
that the Credit Agent or any of the Senior Lenders, in its or their sole
discretion, undertakes at any time or from time to time to provide any such
information to the Trustee or any Noteholder, it or they shall be under no
obligation (w) to make, and the Credit Agent and the Senior Lenders shall not
make, any express or implied representation or warranty, including with respect
to the accuracy, completeness, truthfulness or validity of any such information
18
so provided, (x) to provide any additional information or to provide any such
information on any subsequent occasion, (y) to undertake any investigation or
(z) to disclose any information that, pursuant to accepted or reasonable
commercial finance practices, such party wishes to maintain confidential or is
otherwise required to maintain confidential.
8.5 SUBROGATION. The Trustee, on behalf of itself and the
Noteholders, hereby waives any rights of subrogation it may acquire as a result
of any payment hereunder until the Discharge of Senior Lender Claims has
occurred.
8.6 APPLICATION OF PAYMENTS. Except as otherwise provided
herein, all payments received by the Senior Lenders may be applied, reversed and
reapplied, in whole or in part, to such part of the Senior Lender Claims as the
Senior Lenders, in their sole discretion, deem appropriate, consistent with the
terms of the Senior Lender Documents. Except as otherwise provided herein, the
Trustee, on behalf of itself and the Noteholders, assents to any such extension
or postponement of the time of payment of the Senior Lender Claims or any part
thereof and to any other indulgence with respect thereto, to any substitution,
exchange or release of any security that may at any time secure any part of the
Senior Lender Claims and to the addition or release of any other Person
primarily or secondarily liable therefor.
8.7 CONSENT TO JURISDICTION; WAIVERS. The parties hereto
consent to the jurisdiction of any state or federal court located in New York,
New York, and consent that all service of process may be made by registered mail
directed to such party as provided in Section 8.8 for such party. Service so
made shall be deemed to be completed three days after the same shall be posted
as aforesaid. The parties hereto waive any objection to any action instituted
hereunder in any such court based on FORUM NON CONVENIENS, and any objection to
the venue of any action instituted hereunder in any such court. Each of the
parties hereto waives any right it may have to trial by jury in respect of any
litigation based on, or arising out of, under or in connection with this
Agreement, or any course of conduct, course of dealing, verbal or written
statement or action of any party hereto in connection with the subject matter
hereof.
8.8 NOTICES. All notices to the Noteholders and the Senior
Lenders permitted or required under this Agreement may be sent to the Trustee
and the Credit Agent, respectively. Unless otherwise specifically provided
herein, any notice or other communication herein required or permitted to be
given shall be in writing and may be personally served, telecopied,
electronically mailed or sent by courier service or U.S. mail and shall be
deemed to have been given when delivered in person or by courier service, upon
receipt of a telecopy or electronic mail or four Business Days after deposit in
the U.S. mail (registered or certified, with postage prepaid and properly
addressed). For the purposes hereof, the addresses of the parties hereto shall
be as set forth below each party's name on the signature pages hereto, or, as to
each party, at such other address as may be designated by such party in a
written notice to all of the other parties.
8.9 FURTHER ASSURANCES. Each of the Trustee, on behalf of
itself and the Noteholders, and the Credit Agent, on behalf of itself and the
Senior Lenders, agrees that each of them shall take such further action and
shall execute and deliver to the Credit Agent and the Senior Lenders such
additional documents and instruments (in recordable form, if requested) as the
19
Credit Agent or the Senior Lenders may reasonably request to effectuate the
terms of and the lien priorities contemplated by this Agreement.
8.10 GOVERNING LAW. This Agreement has been delivered and
accepted at and shall be deemed to have been made at New York, New York and
shall be interpreted, and the rights and liabilities of the parties bound hereby
determined, in accordance with the laws of the State of New York.
8.11 BINDING ON SUCCESSORS AND ASSIGNS. This Agreement shall
be binding upon the Credit Agent, the Senior Lenders, the Trustee, the
Noteholders, the Company and their respective permitted successors and assigns.
8.12 SPECIFIC PERFORMANCE. The Credit Agent may demand
specific performance of this Agreement. The Trustee, on behalf of itself and the
Noteholders, hereby irrevocably waives any defense based on the adequacy of a
remedy at law and any other defense that might be asserted to bar the remedy of
specific performance in any action that may be brought by the Credit Agent.
8.13 SECTION TITLES. The section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of this Agreement.
8.14 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be an original and all of which shall
together constitute one and the same document.
8.15 AUTHORIZATION. By its signature, each Person executing
this Agreement on behalf of a party hereto represents and warrants to the other
parties hereto that it is duly authorized to execute this Agreement. The Credit
Agent represents and warrants that this Agreement is binding upon the Lenders.
The Trustee represents and warrants that this Agreement is binding upon the
Noteholders.
8.16 NO THIRD PARTY BENEFICIARIES; SUCCESSORS AND ASSIGNS.
This Agreement and the rights and benefits hereof shall inure to the benefit of,
and be binding upon, each of the parties hereto and their respective successors
and assigns and shall inure to the benefit of each of, and be binding upon, the
holders of Senior Lender Claims and Noteholder Claims. No other Person shall
have or be entitled to assert rights or benefits hereunder.
8.17 EFFECTIVENESS. This Agreement shall become effective when
executed and delivered by the parties hereto. This Agreement shall be effective
both before and after the commencement of any Insolvency or Liquidation
Proceeding. All references to the Company or any other Grantor shall include the
Company or any other Grantor as debtor and debtor-in-possession and any receiver
or trustee for the Company or any other Grantor (as the case may be) in any
Insolvency or Liquidation Proceeding.
8.18 CREDIT AGENT AND TRUSTEE. It is understood and agreed
that (a) Fleet Capital Corporation is entering into this Agreement in its
capacity as administrative agent and the provisions of Article 10 of the Credit
Agreement applicable to Fleet Capital Corporation as administrative agent
thereunder shall also apply to Fleet Capital Corporation as Credit Agent
20
hereunder and (b) U.S. Bank Trust National Association is entering in this
Agreement in its capacity as Trustee and the provisions of Article 7 of the
Indenture applicable to the Trustee thereunder shall also apply to the Trustee
hereunder.
8.19 DESIGNATIONS. For purposes of the provisions hereof and
the Indenture requiring the Company to designate Indebtedness for the purposes
of the term "First-Lien Indebtedness", any such designation shall be sufficient
if the relevant designation is set forth in writing, signed on behalf of the
Company by an officer thereof and delivered to the Trustee and the Credit Agent.
For all purposes hereof and the Indenture, the Company hereby designates the
Indebtedness Incurred pursuant to the Credit Agreement as the First-Lien
Indebtedness.
8.20 RELATIVE RIGHTS. Notwithstanding anything in this
Agreement to the contrary, nothing in this Agreement is intended to or will (a)
amend, waive or otherwise modify the provisions of the Senior Credit Agreement
or the Indenture or any other Senior Lender Documents or Noteholder Documents
entered into in connection with the Senior Credit Agreement or the Indenture or
permit the Company or any Subsidiary to take any action, or fail to take any
action, to the extent such action or failure would otherwise constitute a breach
of, or default under, the Senior Credit Agreement or any other Senior Lender
Documents entered into in connection with the Senior Credit Agreement or the
Indenture or any other Noteholder Documents entered into in connection with the
Indenture, (b) change the relative priorities of the Senior Lender Claims or the
Liens granted under the Senior Lender Documents on the Common Collateral (or any
other assets) as among the Senior Lenders, (c) otherwise change the relative
rights of the Senior Lenders in respect of the Common Collateral as among such
Senior Lenders or (d) obligate the Company or any Subsidiary to take any action,
or fail to take any action, that would otherwise constitute a breach of, or
default under, the Senior Credit Agreement or any other Senior Lender Document
entered into in connection with the Senior Credit Agreement or the Indenture or
any other Noteholder Documents entered into in connection with the Indenture.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
CREDIT AGENT:
FLEET CAPITAL CORPORATION, as Credit Agent,
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Address:
Fleet Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇: ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Senior Vice President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇▇_▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
TRUSTEE:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee,
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Trust Officer
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
The foregoing Intercreditor Agreement is hereby confirmed and
accepted as of the date first above written.
COLUMBUS ▇▇▇▇▇▇▇▇ CORPORATION
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President and Chief
Financial Officer
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
AUDUBON EUROPE S.AR.L.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Manager - A Category
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
AUDUBON WEST, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President and Treasurer
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
CRANE EQUIPMENT & SERVICE, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President and Treasurer
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
YALE INDUSTRIAL PRODUCTS, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President and Treasurer
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE I
SUBSIDIARY GUARANTORS
1. Audubon Europe S.ar.l.
2. Audubon West, Inc.
3. Crane Equipment & Service, Inc.
4. Yale Industrial Products, Inc.