INTERCREDITOR AND LIEN SUBORDINATION AGREEMENT
Exhibit
10.2
INTERCREDITOR
AND
LIEN
SUBORDINATION AGREEMENT
THIS
INTERCREDITOR AND LIEN SUBORDINATION AGREEMENT, dated as of June 30, 2009 (this
“Agreement”),
is by and among WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as agent
(in such capacity, “Agent”
as hereinafter defined) pursuant to the Credit Agreement (as hereinafter
defined) acting for and on behalf of the Credit Agreement Creditors (as
hereinafter defined), FAUNUS GROUP INTERNATIONAL, INC., a Delaware corporation
(“FGI”),
AMERICAN BILTRITE INC., a Delaware corporation (“Parent”),
and AMERICAN BILTRITE FAR EAST, INC., a Delaware corporation (“Far
East”; together with Parent, individually a “Debtor”
and collectively, “Debtors”).
BACKGROUND
A. Agent
and Lenders (as hereinafter defined) have made and may hereafter make revolving
loans and advances and have provided and may hereafter provide other financial
accommodations to Debtors and certain of their affiliates secured by certain of
their assets and properties; and
B. Parent
and FGI are parties to a certain Security Agreement, dated on or about the date
hereof (as amended, restated, supplemented or otherwise modified from time to
time, the “Parent
Agreement”), and a Debt Purchase Agreement, dated on or about the date
hereof (as amended, restated, supplemented or otherwise modified from time to
time, the “Parent
Receivables Finance Agreement”), pursuant to which Parent established
certain financing arrangements with FGI; and
C. Far
East and FGI are parties to a certain Security Agreement, dated on or about the
date hereof (as amended, restated, supplemented or otherwise modified from time
to time, the “Far East
Agreement”), and a Receivables Finance Agreement, dated on or about the
date hereof (as amended, restated, supplemented or otherwise modified from time
to time, the “Far East
Receivables Finance Agreement”), pursuant to which Far East established
certain financing arrangements with FGI;
D. Parent
has agreed to guaranty the obligations of Far East under the Far East Agreement
and the Far East Receivables Finance Agreement pursuant to the Guaranty, dated
on or about the date hereof, by Parent in favor of FGI (the “Parent
FGI Guaranty”), and to secure such Parent FGI Guaranty with a security
interest in certain assets and properties of Parent, subject to and in
accordance with the terms hereof;
E. Far
East has agreed to guaranty the obligations of Parent under the Parent Agreement
and the Parent Receivables Finance Agreement pursuant to the Guaranty, dated on
or about the date hereof, by Far East in favor of FGI (the “Far East
FGI Guaranty”), and to secure such Far East FGI Guaranty with a security
interest in certain assets and properties of Far East, subject to and in
accordance with the terms hereof; and
F. FGI
and Agent, for and on behalf of itself and Credit Agreement Creditors, desire to
enter into this Agreement in order to, inter alia, (i) confirm the
relative priority of the Liens of each party in the Agent Priority Collateral
and the FGI Priority Collateral, and (ii) provide for the orderly sharing
between FGI and Credit Agreement Creditors in accordance with such priorities,
of proceeds of the Agent Priority Collateral and/or FGI Priority Collateral upon
any sale thereof, foreclosure thereon or other disposition thereof.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1 For purposes of this Agreement, the following
terms shall have the following meanings:
“Agent”
shall mean Wachovia Bank, National Association, a national banking association,
in its capacity as agent pursuant to the Credit Agreement acting for the benefit
and on behalf of Credit Agreement Creditors, and its successors and assigns (and
including, without limitation, any successor, assignee or additional person at
any time acting as agent for the benefit of or on behalf of it or Credit
Agreement Creditors).
“Agent
Priority Collateral” means all assets of Debtors (other than FGI Priority
Collateral), whether now owned or hereafter created, acquired or arising, in
which Agent and Credit Agreement Creditors have been granted a security interest
in under the Credit Documents.
“Bankruptcy
Event” means with respect to any Person, any voluntary or involuntary
dissolution, winding-up, total or partial liquidation or reorganization, or
bankruptcy, insolvency, receivership or other statutory or common law
proceedings or arrangements involving such Person or the readjustment of its
liabilities or any assignment for the benefit of creditors or any marshalling of
its assets or liabilities.
“Credit
Agreement” shall mean the Loan and Security Agreement, dated of even date
herewith, among Agent, Lenders, Debtors and certain of their affiliates, as the
same now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced in accordance with this Agreement.
“Credit
Agreement Creditors” shall mean, collectively, Agent and Lenders, the
provider of any cash management or other bank products to Debtors as provided in
the Credit Agreement and their respective successors and assigns (and including
any other lender or group of lenders that at any time (a) refinances or succeeds
to all or any portion of the Credit Agreement Obligations or (b) is otherwise
party to the Credit Documents); each sometimes being referred to herein
individually as “Credit
Agreement Creditor”.
“Credit
Agreement Event of Default” means an “Event of Default” as defined in the
Credit Agreement.
“Credit
Agreement Obligations” means the collective reference to all obligations,
now existing or hereafter arising, owing by any or all of the Credit Parties to
Credit Agreement Creditors under or pursuant to the Credit Documents (including,
without limitation, all of the “Obligations” as such term is defined in the
Credit Agreement, including, without limitation, interest accruing at
the
2
then
applicable rate provided in the Credit Agreements and any fees, costs or other
amounts arising after the commencement of any Bankruptcy Event or like
proceeding relating to any Credit Party (or would accrue or be payable but for
the commencement of such proceeding), whether or not a claim for post-filing or
post-petition interest, fees, costs or other amounts is allowed in such
proceeding), whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, which may arise under, out of,
or in connection with any of the Credit Documents, whether on account of
principal, advanced amounts, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to Agent and Credit Agreement Creditors that
are required to be paid by any Credit Party pursuant to the terms of the Credit
Documents).
“Credit
Documents” means, collectively, the Credit Agreement and all agreements,
documents and instruments at any time executed and/or delivered by any Credit
Party or any other Person with, to or in favor of Agent or any Credit Agreement
Creditors in connection therewith or related thereto, as all of the foregoing
now exist or may hereafter be amended, restated, supplemented or otherwise
modified from time to time (and including any agreements which may be entered
into at any time and from time to time in connection with the refinancing or
replacement of the existing arrangements of Credit Agreement
Creditors).
“Credit
Parties” means, collectively, Debtors together with their respective
successors and assigns (including, without limitation, a receiver, trustee or
debtor-in-possession on behalf of such Person or on behalf of such successor or
assign); sometimes individually referred to herein as a “Credit
Party”.
“Event of
Default” means any Credit Agreement Event of Default or FGI Documents
Event of Default.
“FGI
Documents” means, collectively, the Parent Agreement, the Far East
Agreement, the Parent Receivables Finance Agreement, the Far East Receivables
Financing Agreement, the Parent FGI Guaranty, the Far East FGI Guaranty and all
agreements, documents and instruments at any time executed and/or delivered by
any Credit Party or any other Person with, to or in favor of FGI in connection
therewith or related thereto, as all of the foregoing now exist or may hereafter
be amended, restated, supplemented or otherwise modified from time to time (and
including any agreements which may be entered into at any time and from time to
time in connection with the refinancing or replacement of the existing
arrangements of FGI).
“FGI
Documents Event of Default” means an “Event of Default” as defined in any
FGI Document.
“FGI
Documents Obligations” means all obligations, now existing or hereafter
arising, owing by any or all of the Credit Parties to FGI under or pursuant to
the FGI Documents (including, without limitation, all of the “Obligations” as
such term is defined in the Parent Agreement as in effect on the date hereof and
the Far East Agreement as in effect on the date hereof, as applicable),
including, without limitation interest accruing at the then applicable rate
provided in the FGI Documents and any fees, costs or other amounts arising after
the commencement of any Bankruptcy Event or like proceeding relating to any
Credit Party (or would accrue or be payable but for the commencement of such
proceeding), whether or not a claim for post-filing or post-petition
interest,
3
fees,
costs or other amounts is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or in connection with the FGI
Documents, whether on account of principal, advanced amounts, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to FGI
that are required to be paid by any Credit Party pursuant to the terms of the
FGI Documents).
“FGI
Priority Collateral” means certain Accounts
and other personal property of Debtors, whether now owned or hereafter created,
acquired or arising, listed on Exhibit A attached
hereto and made part hereof.
“Financing
Agreements” means, collectively, the Credit Documents and the FGI
Documents.
“First
Priority FGI Collateral Liens” shall have the meaning given to such term
in Section 2.1(b) hereof.
“First
Priority Agent Collateral Liens” shall have the meaning given to such
term in Section 2.1(a) hereof.
“Foreign
Accounts” shall have the meaning given to such term as set forth on Exhibit A. Under
no circumstances shall Foreign Accounts include any Account payable by any
account debtor whose principal place of business or chief executive office is
located in the United States or Canada.
“Guaranty
Obligations” means all obligations, now existing or hereafter arising,
owing by (a) Parent to FGI under or pursuant to the Parent FGI Guaranty
(including, without limitation, all of the “Obligations” as such term is defined
in the Parent FGI Guaranty, including, without limitation interest accruing at
the then applicable rate provided in the Far East Receivables Finance Agreement
and any fees, costs or other amounts arising after the commencement of any
Bankruptcy Event or like proceeding relating to Far East (or would accrue or be
payable but for the commencement of such proceeding), whether or not a claim for
post-filing or post-petition interest, fees, costs or other amounts is allowed
in such proceeding), whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter incurred, which may arise under, out
of, or in connection with the FGI Documents, whether on account of principal,
advanced amounts, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and disbursements
of counsel to FGI that are required to be paid by any Credit Party pursuant to
the terms of the Parent FGI Guaranty) and (b) Far East to FGI under or pursuant
to the Far East FGI Guaranty (including, without limitation, all of the
“Obligations” as such term is defined in the Far East FGI Guaranty, including,
without limitation interest accruing at the then applicable rate provided in the
Parent Receivables Finance Agreement and any fees, costs or other amounts
arising after the commencement of any Bankruptcy Event or like proceeding
relating to Parent (or would accrue or be payable but for the commencement of
such proceeding), whether or not a claim for post-filing or post-petition
interest, fees, costs or other amounts is allowed in such proceeding), whether
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter incurred, which may arise under, out of, or in connection with the
FGI Documents, whether on account of principal, advanced amounts, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel
to
4
FGI
that are required to be paid by any Credit Party pursuant to the terms of the
Far East FGI Guaranty).
“Lenders”
shall mean, collectively, the lenders that are or may hereafter become parties
to the Credit Agreement and their respective successors and assigns (including
any other lender or group of lenders that at any time succeeds to or refinances,
replaces or substitutes for all or any portion of the Credit Agreement
Obligations at any time and from time to time); sometimes being referred to
herein individually as a “Lender”.
“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
security interest, encumbrance, lien (statutory or otherwise), option,
preference, priority or charge of any kind.
“Maximum
FGI Debt” shall mean, as of any date of determination, (a) the lesser of
(i) the outstanding amount of the FGI Documents Obligations and (ii) $4,400,000,
plus (b) any interest on such amount (and including, without limitation, any
interest which would accrue and become due but for the commencement of a
Bankruptcy Event, whether or not such amounts are allowed or allowable in whole
or in part in such case or similar proceeding), plus iii) any fees, costs,
expenses and indemnities payable under the FGI Documents (and including, without
limitation, any fees, costs, expenses and indemnities which would accrue and
become due but for the commencement of a Bankruptcy Event, whether or not such
amounts are allowed or allowable in whole or in part in such case or similar
proceeding).
“Obligations”
means, collectively, the Credit Agreement Obligations, the FGI Documents
Obligations and the Guaranty Obligations.
“Person”
means any individual, corporation, partnership, limited liability partnership,
limited liability company, association, trust, unincorporated organization,
joint venture, court or government or political subdivision or agency thereof,
or other entity.
“Second
Priority FGI Collateral Liens” shall have the meaning given to such term
in Section 2.1(a) hereof.
“Second
Priority Agent Collateral Liens” shall have the meaning given to such
term in Section 2.1(b) hereof.
“UCC”
means the Uniform Commercial Code of the State of New York or of any other state
the laws of which are required to be applied in connection with the perfection
of security interests in any collateral described herein.
ARTICLE
II
GENERAL
INTERCREDITOR AND SUBORDINATION PROVISIONS
Section
2.1 Agreement to Subordinate
Liens.
(a) FGI
and Agent, for and on behalf of itself and Credit Agreement Creditors, agree
that, to the extent and in the manner set forth in this Section 2.1, all Liens
now or hereafter acquired by Credit Agreement Creditors in any or all of the
Agent Priority Collateral (the “First
5
Priority
Agent Collateral Liens”) shall at all times be prior and superior to any
Lien now held or hereafter acquired by FGI in the Agent Priority Collateral (the
“Second
Priority FGI Collateral Liens”). Such priority shall be
applicable irrespective of the time or order of attachment or perfection of any
security interest or the time or order of filing of any financing statements or
other documents, or any statutes, rules of law, or court decisions to the
contrary. The lien subordination provisions in this Section 2.1(a)
are for the benefit of and shall be enforceable by Credit Agreement Creditors,
and Credit Agreement Creditors shall be deemed to have acquired the Credit
Agreement Obligations in reliance upon this Agreement.
(b) Agent,
for and on behalf of itself and Credit Agreement Creditors, and FGI agree that,
to the extent and in the manner set forth in this Section 2.1, all Liens now or
hereafter acquired by FGI to secure the FGI Documents Obligations up to the
amount of the Maximum FGI Debt in any or all of the FGI Priority Collateral (the
“First
Priority FGI Collateral Liens”) shall at all times be prior and superior
to any Lien now held or hereafter acquired by Credit Agreement Creditors in the
FGI Priority Collateral (the “Second
Priority Agent Collateral Liens”). Such priority shall be
applicable irrespective of the time or order of attachment or perfection of any
security interest or the time or order of filing of any financing statements or
other documents, or any statutes, rules of law, or court decisions to the
contrary. The lien subordination provisions in this Section 2.1(b)
are for the benefit of and shall be enforceable by FGI, and FGI shall be deemed
to have acquired the FGI Documents Obligations in reliance upon this
Agreement.
Section
2.2 Limitations on Rights and
Remedies; Standstill with respect to Agent Priority
Collateral.
(a) Until
the Credit Agreement Obligations have been fully and finally paid in cash and
satisfied and the Credit Documents have been terminated in accordance with their
terms, FGI shall not exercise any rights or remedies with respect to the Agent
Priority Collateral, including, without limitation, (i) enforcing any Second
Priority FGI Collateral Liens or selling or otherwise seeking to foreclose or
realize upon any portion of the Agent Priority Collateral or (ii) request any
action, institute proceedings give any instructions, or make any election with
respect to any portion of the Agent Priority Collateral. In the event
that FGI shall receive any proceeds of the Agent Priority Collateral or
possession of any Agent Priority Collateral, it shall receive and hold the same
in trust, as trustee, for the benefit of Credit Agreement Creditors and shall
immediately deliver the same to Agent (together with any endorsement or
assignment, as the case may be, where reasonably necessary) for application in
accordance with Section 2.6 hereof.
(b) Until
the Credit Agreement Obligations have been fully and finally paid in cash and
satisfied and the Credit Documents have been terminated in accordance with their
terms, FGI shall cooperate with Credit Agreement Creditors at no cost or expense
to Credit Agreement Creditors so as not to impede or disrupt the collection
efforts of Credit Agreement Creditors with respect to the Agent Priority
Collateral.
Section
2.3 Disposition of Agent
Priority Collateral. FGI agrees that, notwithstanding anything
to the contrary contained in any of the FGI Documents or otherwise, until all
Credit Agreement Obligations have been fully and finally paid in cash and
satisfied and the Credit Documents have been terminated in accordance with their
terms, Credit Agreement Creditors shall have the exclusive right to restrict or
permit, or approve or disapprove, the sale, transfer or other
6
disposition
of any Agent Priority Collateral, and the exclusive right to foreclose upon,
compromise or otherwise dispose of, and exercise any other rights with respect
to, any or all of the Agent Priority Collateral, in each case free of the Second
Priority FGI Collateral Liens. FGI shall, immediately upon the
request of Agent, release or otherwise terminate the Second Priority FGI
Collateral Liens, respectively, to the extent such Agent Priority Collateral is
sold or otherwise disposed of, with the consent of Agent, for and on behalf of
itself and Credit Agreement Creditors, under the Credit Agreement and will
immediately deliver such other release documents as Agent may reasonably require
in connection therewith. Any proceeds from any such sale or other
disposition shall be applied in accordance with Section 2.6 hereof.
Section
2.4 Limitations on Rights and
Remedies; Standstill with respect to FGI Priority
Collateral.
(a) Until
the FGI Documents Obligations have been paid in full in cash and satisfied and
the FGI Documents have been terminated, Agent and Credit Agreement Creditors
shall not exercise any rights or remedies with respect to the FGI Priority
Collateral, including, without limitation, (i) enforcing any Second Priority
Agent Collateral Liens or selling or otherwise seeking to foreclose or realize
upon any portion of the FGI Priority Collateral, or (ii) request any action,
institute proceedings give any instructions, or make any election with respect
to any portion of the FGI Priority Collateral. In the event that
Agent or any Credit Agreement Creditor shall receive any proceeds of the FGI
Priority Collateral or possession of any FGI Priority Collateral, it shall
receive and hold the same in trust, as trustee, for the benefit of FGI and shall
immediately deliver the same to FGI (together with any endorsement or
assignment, as the case may be, where reasonably necessary) for application in
accordance with Section 2.6 hereof.
(b) Until
the FGI Documents Obligations have been paid in full in cash and satisfied and
the FGI Documents have been terminated, Agent and Credit Agreement
Creditors shall cooperate with FGI so as not to impede or disrupt the
collection efforts of FGI with respect to the FGI Priority
Collateral.
Section
2.5 Disposition of FGI Priority
Collateral. Agent, for and on behalf of itself and Credit
Agreement Creditors, agrees that, notwithstanding anything to the contrary
contained in any of the Credit Documents or otherwise, until all FGI Documents
Obligations have been paid in full in cash and satisfied and the FGI Documents
have been terminated, FGI shall have the exclusive right to restrict or permit,
or approve or disapprove, the sale, transfer or other disposition of any FGI
Priority Collateral, and the exclusive right to foreclose upon or otherwise
dispose of, and exercise any other rights with respect to, any or all of the FGI
Priority Collateral, in each case, free of the Second Priority Agent Collateral
Liens. Agent, for and on behalf of itself and Credit Agreement
Creditors, shall, immediately upon the request of FGI, release or otherwise
terminate the Second Priority Agent Collateral Liens, respectively, to the
extent such FGI Priority Collateral is sold or otherwise disposed of, with the
consent of FGI under the FGI Documents and will immediately deliver such other
release documents as FGI may reasonably require in connection
therewith. Any proceeds from any such sale or other disposition shall
be applied in accordance with Section 2.6 hereof.
7
Section
2.6 Application of
Proceeds.
(a) Agent,
for and on behalf of itself and Credit Agreement Creditors, and FGI agree
between themselves that, the proceeds of the Agent Priority Collateral, or any
part thereof, shall, to the extent available for distribution, be distributed as
follows:
(i) First: to Credit
Agreement Creditors for application to the Credit Agreement Obligations in
accordance with the terms and provisions of the Credit Documents until all such
Credit Agreement Obligations are fully and finally paid in cash and
satisfied;
(ii) Second: to FGI for
application to the FGI Documents Obligations and the Guaranty Obligations in
accordance with the terms and provisions of the FGI Documents until all such FGI
Documents Obligations are fully and finally paid in cash and satisfied;
and
(iii) Third: if all
Obligations shall have been paid in full in cash and satisfied and the Financing
Agreements shall have been terminated, any surplus then remaining shall be paid
to Debtors or to such other Person as may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
(b) Agent,
for and on behalf of itself and Credit Agreement Creditors, and FGI agree
between themselves that, the proceeds of the FGI Priority Collateral, or any
part thereof, shall, to the extent available for distribution, be distributed as
follows:
(i) First: to FGI for
application to the FGI Documents Obligations in accordance with the terms and
provisions of the FGI Documents, up to the amount of the Maximum FGI
Debt;
(ii) Second: to Credit
Agreement Creditors for application to the Credit Agreement Obligations in
accordance with the terms and provisions of the Credit Documents until all such
Credit Agreement Obligations are fully and finally paid in cash and satisfied;
and
(iii) Third, if all
Obligations shall have been paid in full in cash and satisfied and the Financing
Agreements shall have been terminated, any surplus then remaining shall be paid
to Debtors or to such other Person as may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
(c) Agent,
for and on behalf of itself and Credit Agreement Creditors, and FGI consent and
agree to the right of Agent, for and on behalf of itself and Credit Agreement
Creditors, and FGI to so apply such proceeds and each waives and releases any
claim or right against the other in connection with such
determination.
Section
2.7 Intercreditor Arrangements
in Bankruptcy. This Agreement shall remain in full force and
effect and enforceable pursuant to its terms notwithstanding the occurrence of a
Bankruptcy Event, and all references herein to each Debtor shall be deemed to
apply to such Person as debtor in possession and to any trustee in bankruptcy
for the estate of such Person.
8
Section
2.8 Obligations of Credit
Parties Unconditional.
(a) Nothing
contained in this Agreement is intended to or shall relieve the obligations of
any Credit Party to FGI, Credit Agreement Creditors or any other Person with
respect to such Credit Party’s obligations under any of the Financing Agreements
to pay any amount in respect of the Obligations or any other amounts arising
under any of the Financing Agreements as and when such amount shall become due
and payable in accordance with the terms thereof, or to affect the relative
rights of FGI and Credit Agreement Creditors, on the one hand, and the other
creditors or any Credit Party, on the other hand. All rights and
interests of FGI and Credit Agreement Creditors hereunder, and all agreements
and obligations of the Credit Parties, FGI and Credit Agreement Creditors
hereunder, shall remain in full force and effect irrespective of:
(i) any
lack of validity or enforceability of any of the Financing Agreements or any
other agreement or instrument relating thereto;
(ii) any
change in the time, manner or place of, or in any other term of, all or any of
the Obligations, or any amendment or waiver of or any consent to departure from
any provision of any of the Financing Agreements;
(iii) any
exchange, release, non-perfection, or unenforceability of any Lien or security
interest in any Agent Priority Collateral, FGI Priority Collateral or any other
collateral, or any release or amendment or waiver of or consent to departure
from any guarantee, for all or any of the Obligations; or
(iv) any
other circumstances which might otherwise constitute a defense available to, or
a discharge of, any Credit Party in respect of all or any of the
Obligations;
(b) Nothing
contained in this Agreement shall affect the obligation of any Credit Party to
make, or prevent any of the Credit Parties from making, at any time, payment of
any amount in respect of the respective Obligations.
Section
2.9 No Other
Beneficiaries. This Agreement and the provisions contained
herein are intended only for the benefit of the holders of the Obligations and
no other creditor of any Credit Party; provided, that, this Agreement is not for the
benefit of any Credit Party and any provision contained herein may be waived or
amended by FGI and Agent, for and on behalf of itself and Credit Agreement
Creditors, without notice to or consent of the Credit Parties.
Section
2.10 Rights Not to be
Impaired. No right of any present or future holder of any
Obligations to enforce any agreement as herein provided shall at any time in any
way be prejudiced or impaired by any act or omission in good faith by any such
holder, or by any noncompliance by any of the Credit Parties with the terms and
provisions and covenants herein regardless of any knowledge thereof that any
such holder may have or otherwise be charged with.
Section
2.11 Waivers;
Acknowledgements.
(a) FGI
waives and releases any claim which FGI may now or hereafter have against Credit
Agreement Creditors arising out of any and all actions which Credit Agreement
Creditors, in good faith and in accordance with the terms of this Agreement,
takes or omits to take
9
with
respect to the Agent Priority Collateral, including without limitation, (i)
actions with respect to the creation, perfection or continuation of liens or
security interest in the Agent Priority Collateral, (ii) actions with respect to
the foreclosure upon, sale, release, or depreciation of, or failure to realize
upon, any of the Agent Priority Collateral, and (iii) any other action with
respect to the valuation, use, protection or disposition of the Agent Priority
Collateral.
(b) Agent,
for and on behalf of itself and Credit Agreement Creditors, waives and releases
any claim which Credit Agreement Creditors may now or hereafter have against FGI
arising out of any and all actions which FGI, in good faith and in accordance
with the terms of this Agreement, takes or omits to take with respect to the FGI
Priority Collateral, including without limitation, (i) actions with respect to
the creation, perfection or continuation of liens or security interest in the
FGI Priority Collateral, (ii) actions with respect to the foreclosure upon,
sale, release, or depreciation of, or failure to realize upon, any of the FGI
Priority Collateral, and (iii) any other action with respect to the valuation,
use, protection or disposition of the FGI Priority Collateral.
Section
2.12 Assignment by Debtors of
Amounts Due From FGI. Within three (3) days following the
receipt by FGI of written instruction by Agent in the form and text of Exhibit B attached
hereto and made a part hereof, and completed in full (the “Control
Notice”) following the occurrence of a Credit Agreement Event of Default,
each Debtor hereby directs FGI to pay to Agent, for itself and on behalf of
Credit Agreement Creditors, and, to the extent permitted pursuant to applicable
law, FGI agrees to pay to Agent, for itself and on behalf of Credit Agreement
Creditors, such sums representing any amounts which would be payable to either
Debtor from time to time pursuant to the FGI Documents (the “Amounts
Due From FGI”), as and when such sums become due to any Debtor under the
FGI Documents. Such payment shall be for the account of Debtors and,
commencing within three (3) days following receipt by FGI of the Control Notice,
shall be made by wire transfer of immediately available funds to the account set
forth in such Control Notice. FGI is hereby authorized to recognize
Credit Agreement Creditors’ claims and rights hereunder without investigating
the reason for any action taken by Credit Agreement Creditors, or the validity
or the amount of obligations of Debtors to Credit Agreement
Creditors. Debtors understand that, after delivery of the Control
Notice, Agent, for itself and the benefit of Credit Agreement Creditors, may,
without notice to Debtors, collect, realize or otherwise deal with the Amounts
Due From FGI or any part thereof in such manner and at such times as it deems
advisable, and may charge on its own behalf or pay to others reasonable sums for
expenses incurred or services rendered (expressly including legal advice and
services) in or in connection with collecting, realizing, selling or obtaining
payment of the Amounts Due From FGI and may add the amount of such sums to the
Credit Agreement Obligations. After delivery of the Control Notice,
Debtors shall have no right to receive from FGI any amounts which would be
payable to Debtors from time to time pursuant to the FGI Documents and any
monies received by Debtors in respect of amounts which would be
payable to Debtors from time to time pursuant to the FGI Documents will be
received and held by it in trust for, and will immediately be paid over to,
Agent, for itself and the benefit of Credit Agreement Creditors. Each
Debtor waives and releases any claim or right against FGI in connection with FGI
comply with the terms of this Section 2.12.
10
ARTICLE
III
BANKRUPTCY
EVENTS
Section
3.1 Bankruptcy
Financing. If any Debtor becomes subject to any Bankruptcy
Event, until the full and final payment in cash and satisfaction of all the
Credit Agreement Obligations to Credit Agreement Creditors under the Credit
Documents has occurred, FGI agrees that:
(a) it
will raise no objection to, nor support any other Person objecting to, and will
be deemed to have consented to, the use of any Agent Priority Collateral
constituting cash collateral under Section 363 of the Bankruptcy Code, or any
comparable provision of any other Bankruptcy Law or any post-petition financing,
provided by Credit Agreement Creditors or any Person approved by Credit
Agreement Creditors under Section 364 of the Bankruptcy Code, or any comparable
provision of any other Bankruptcy Law (a “DIP
Financing”), will not request or accept adequate protection or any other
relief in connection with the use of such cash collateral or such DIP Financing
and will subordinate (and will be deemed hereunder to have subordinated) the
Liens granted to FGI to such DIP Financing on the same terms as such Liens are
subordinated to the Liens granted to Credit Agreement Creditors hereunder (and
such subordination will not alter in any manner the terms of this Agreement), to
any adequate protection provided to Credit Agreement Creditors and to any “carve
out” agreed to by Credit Agreement Creditors; provided, that:
(i) Credit
Agreement Creditors do not oppose or object to such use of cash collateral or
DIP Financing,
(ii) the
Liens granted to Agent, for and on behalf of itself and Credit Agreement
Creditors, or such other person in connection with such DIP Financing are
subject to this Agreement and considered to be Liens of Credit Agreement
Creditors for purposes hereof,
(iii) FGI
retains a Lien on the Agent Priority Collateral (including proceeds thereof)
with the same priority relative to the Liens of Credit Agreement Creditors as
existed prior to such Bankruptcy Event,
(iv) FGI
receives replacement Liens on all post-petition assets of Debtors in which
Credit Agreement Creditors obtain a replacement Lien, or which secure the DIP
Financing, with the same priority relative to the Liens of Credit Agreement
Creditors as existed prior to such Bankruptcy Event, and
(v) FGI
may oppose or object to such use of Cash Collateral or DIP Financing on the same
bases as an unsecured creditor, so long as such opposition or objection is not
based on FGI’s status as a secured creditor and in connection with such
opposition or objection, FGI affirmatively states that it is an undersecured
secured creditor; and
(b) FGI
shall not, directly or indirectly, provide, or seek to provide, DIP Financing
secured by Liens equal or senior in priority to the Liens on the Agent Priority
Collateral, without the prior written consent of Agent, for and on behalf of
itself and Credit Agreement Creditors.
11
Section
3.2 Relief from the Automatic
Stay.
(a) FGI
agrees that, so long as the full and final payment in cash and satisfaction of
all Obligations to Credit Agreement Creditors under the Credit Documents has not
occurred, FGI shall not, without the prior written consent of Credit Agreement
Creditors, seek or request relief from or modification of the automatic stay or
any other stay in any Bankruptcy Event in respect of any part of the Agent
Priority Collateral, any proceeds thereof or any Lien thereon securing any of
the obligations to FGI under the FGI Documents. Notwithstanding
anything to the contrary set forth in this Agreement, Debtors do not waive and
shall not be deemed to have waived any rights under Section 362 of the
Bankruptcy Code.
(b) Agent,
for and on behalf of itself and Credit Agreement Creditors, agrees that, so long
as the full and final payment in cash and satisfaction of all Obligations to FGI
under the FGI Documents has not occurred, Credit Agreement Creditors shall not,
without the prior written consent of the FGI, seek or request relief from or
modification of the automatic stay or any other stay in any Bankruptcy Event in
respect of any part of the FGI Priority Collateral, any proceeds thereof or any
Lien thereon securing any of the obligations to Credit Agreement Creditors under
the Credit Documents. Notwithstanding anything to the contrary set
forth in this Agreement, Debtors do not waive and shall not be deemed to have
waived any rights under Section 362 of the Bankruptcy Code.
Section
3.3 Adequate
Protection.
(a) FGI
agrees that it shall raise no objection to, contest, or support any other Person
objecting to or contesting, (i) any request by Credit Agreement Creditors for
adequate protection or any adequate protection provided to Credit Agreement
Creditors, or (ii) any objection by Credit Agreement Creditors to any motion,
relief, action or proceeding based on a claim of a lack of adequate protection,
or (iii) the payment of interest, fees, expenses or other amounts to Credit
Agreement Creditors under Section 506(b) or 506(c) of the Bankruptcy Code or
otherwise.
(b) FGI
agrees that it shall not seek or accept adequate protection without the prior
written consent of Credit Agreement Creditors; except, that, the FGI shall
be permitted (i) to obtain adequate protection in the form of the benefit of
additional or replacement Liens on the Collateral (including proceeds thereof
arising after the commencement of any Bankruptcy Event), or additional or
replacement collateral to secure the obligations to FGI under the FGI Documents,
in connection with any DIP Financing or use of cash collateral as provided for
in Section 3.1 above, or in connection with any such adequate protection
obtained by Credit Agreement Creditors, as long as in each case, Credit
Agreement Creditors are also granted such additional or replacement Liens or
additional or replacement collateral and such Liens of FGI are subordinated to
the Liens securing the obligations to Credit Agreement Creditors under the
Credit Documents to the same extent as the Liens of FGI on the Collateral are
subordinated to the Liens of Credit Agreement Creditors and (ii) to obtain
adequate protection in the form of reports, notices, inspection rights and
similar forms of adequate protection to the extent granted to Credit Agreement
Creditors.
Section
3.4 Reorganization
Securities. If, in any Bankruptcy Event, debt obligations of
any reorganized Debtor secured by Liens upon any property of any reorganized
Debtor are distributed, pursuant to a plan of reorganization, on account of both
the obligations to Credit Agreement Creditors under the Credit Documents and the
obligations to FGI under the FGI
12
Documents,
then, to the extent the debt obligations so distributed are secured by Liens
upon the same assets or property, the provisions of this Agreement will survive
the distribution of such debt obligations pursuant to such plan and will apply
with like effect to the Liens securing such debt obligations.
Section
3.5 Separate
Classes. Each of the parties hereto irrevocably acknowledges
and agrees that (a) the claims and interests of Credit Agreement Creditors and
FGI are not “substantially similar” within the meaning of Section 1122 of the
Bankruptcy Code, or any comparable provision of any other Bankruptcy Law, (b)
the grants of the Liens to secure the obligations to Credit Agreement Creditors
under the Credit Documents and the grants of the Liens to secure the obligations
to FGI under the FGI Documents constitute two separate and distinct grants of
Liens, (c) Credit Agreement Creditors’ rights in the Collateral are
fundamentally different from FGI’s rights in the Collateral and (d) as a result
of the foregoing, among other things, obligations to Credit Agreement Creditors
under the Credit Documents and the obligations to FGI under the FGI Documents
must be separately classified in any plan of reorganization proposed or adopted
in any Bankruptcy Event.
Section
3.6 Asset
Dispositions.
(a) Until
the full and final payment in cash and satisfaction of all Credit Agreement
Obligations to Credit Agreement Creditors under the Credit Documents has
occurred, FGI agrees that, in the event of any Bankruptcy Event, FGI will not
object or oppose (or support any Person in objecting or opposing) a motion to
any sale, lease, license, exchange, transfer or other disposition of any Agent
Priority Collateral free and clear of the Liens of FGI or other claims under
Section 363 of the Bankruptcy Code, or any comparable provision of any
Bankruptcy Law and shall be deemed to have consented to any such any sale,
lease, license, exchange, transfer or other disposition of any Agent Priority
Collateral under Section 363(f) of the Bankruptcy Code that has been consented
to by Credit Agreement Creditors; provided, that, the proceeds of
such sale, lease, license, exchange, transfer or other disposition of any
Collateral to be applied to the obligations to Credit Agreement Creditors under
the Credit Documents or the obligations to FGI under the FGI Documents, are
applied in accordance with Sections 2.6 hereof.
(b) Until
the full and final payment in cash and satisfaction of all FGI Documents
Obligations to FGI under the FGI Documents has occurred, Agent, for and on
behalf of itself and Credit Agreement Creditors, agrees that, in the event of
any Bankruptcy Event, Credit Agreement Creditors will not object or oppose (or
support any Person in objecting or opposing) a motion to any sale, lease,
license, exchange, transfer or other disposition of any FGI Priority Collateral
free and clear of the Liens of Credit Agreement Creditors or other claims under
Section 363 of the Bankruptcy Code, or any comparable provision of any
Bankruptcy Law and shall be deemed to have consented to any such any sale,
lease, license, exchange, transfer or other disposition of any FGI Priority
Collateral under Section 363(f) of the Bankruptcy Code that has been consented
to by the FGI; provided, that, the proceeds of
such sale, lease, license, exchange, transfer or other disposition of any
Collateral to be applied to obligations to Credit Agreement Creditors under the
Credit Documents or the obligations to FGI under the FGI Documents, are applied
in accordance with Sections 2.6 hereof.
13
Section
3.7 Avoidance
Issues. If Credit Agreement Creditors or FGI are required in
the case of any Bankruptcy Event or otherwise to turn over or otherwise pay to
the estate of any Debtor any amount (a “Recovery”),
then Credit Agreement Creditors or FGI, as the case may be, shall be reinstated
to the extent of such Recovery. 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 from
such date of reinstatement.
Section
3.8 Certain Waivers as to
Section 1111(b)(2) of Bankruptcy Code. FGI waives any claim it
may hereafter have against any Credit Agreement Creditors arising out of the
election by Credit Agreement Creditors of the application of Section 1111(b)(2)
of the Bankruptcy Code, or any comparable provision of any other Bankruptcy
Law. Credit Agreement Creditors waives any claim they may hereafter
have against FGI arising out of the election by FGI of the application of
Section 1111(b)(2) of the Bankruptcy Code or any comparable provision of any
other Bankruptcy Law.
Section
3.9 Other Bankruptcy
Laws. In the event that a Bankruptcy Event is instituted in a
jurisdiction other than the United States or is governed by any Bankruptcy Law
other than the Bankruptcy Code, each reference in this Agreement to a section of
the Bankruptcy Code shall be deemed to refer to the substantially similar or
corresponding provision of the Bankruptcy Law applicable to such Bankruptcy
Event, or in the absence of any specific similar or corresponding provision of
the Bankruptcy Law, such other general Bankruptcy Law as may be applied in order
to achieve substantially the same result as would be achieved under each
applicable section of the Bankruptcy Code.
ARTICLE
IV
MISCELLANEOUS
Section
4.1 Successors; Continuing
Effect. This Agreement is being entered into for the benefit
of, and shall be binding upon, the parties hereto and their respective
successors and assigns (to the extent permitted under the applicable Financing
Agreements).
Section
4.2 Terminations, Amendments,
Etc. Each of the parties hereto agrees that this Agreement may
not be terminated, amended, supplemented, waived or modified unless such
termination, amendment, supplement, waiver or modification has been approved in
writing by FGI and Agent, for and on behalf of itself and Credit Agreement
Creditors.
Section
4.3 Further
Assurances. Each of the parties hereto will, and at any time
and from time to time, promptly execute and deliver all further instruments and
documents, and take all further action, that Agent, for and on behalf of itself
and Credit Agreement Creditors, and FGI may reasonably request in order to
perfect or otherwise protect any right or interest granted or purported to be
granted hereby or to enable FGI or Credit Agreement Creditors, as applicable, to
exercise and enforce their respective rights and remedies hereunder, but this
Agreement shall remain fully effective notwithstanding any failure to execute
any additional documents or instruments.
Section
4.4 Expenses. The
Credit Parties shall pay upon demand, the amount of any and all expenses of FGI
and Credit Agreement Creditors, including, without limitation, the
reasonable
14
fees
and expenses of counsel, which any of FGI and Credit Agreement Creditors may
incur in connection with the exercise or enforcement of any of their rights or
interests hereunder.
Section
4.5 Notices. All
notices required or permitted to be given hereunder shall be in writing and
shall be deemed duly given, made or received (a) if delivered in person,
immediately upon delivery, (b) if by facsimile transmission, immediately upon
sending and confirmation of receipt, (c) if by nationally recognized overnight
courier service with instructions to deliver the next business day, one (1)
Business Day after sending and (d) if by certified mail, return receipt
requested, five (5) days after mailing to the parties at their addresses set
forth below (or such other addresses as the parties may designate in accordance
with the provisions of this Section 4.5):
If
to the
FGI: Faunus
Group International, Inc.
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇
Telephone
No. 212-248-3400
Telecopy
No.: ▇▇▇-▇▇▇-▇▇▇▇
If
to
Agent: Wachovia
Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Portfolio
Manager
Telephone
No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy
No.: ▇▇▇-▇▇▇-▇▇▇▇
If
to
Debtors: c/o
American Biltrite, Inc.
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇ III
Telephone
No. 781-237-6655
Telecopy
No.: ▇▇▇-▇▇▇-▇▇▇▇
Section
4.6 Marshalling. Each
of the parties hereto agrees that during the term hereof it will not exercise
any rights it may have in law or equity to require the other party to ▇▇▇▇▇▇▇▇
Collateral.
Section
4.7 Term. This
Agreement shall remain in full force and effect until all of the Obligations
shall have been fully, finally and indefeasibly paid in cash and all financing
arrangements and commitments among Credit Parties and FGI and Credit Agreement
Creditors shall have been terminated. This Agreement shall continue
to be effective or be reinstated, as the case may be, if at any time any payment
of any of the Obligations is rescinded or must otherwise be returned by either
FGI or Credit Agreement Creditors upon the insolvency, bankruptcy or
reorganization of any Credit Party or otherwise, all as though such payment had
not been made. This is a continuing Agreement and FGI and Credit
Agreement Creditors may, in their discretion, continue to extend credit or other
financial accommodations and loan monies to or for the benefit of the Credit
Parties, on the faith hereof, under the Financing Documents, without notice to
the other party.
15
Section
4.8 Severability. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or invalidity without invalidating the remaining portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section
4.9 WAIVER OF JURY TRIAL. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
Section
4.10 Entire
Agreement; Governing Law. This
Agreement embodies the entire agreement and understanding of the parties hereto
regarding the subject matter hereof. THIS AGREEMENT AND ALL MATTERS
RELATING HERETO OR THERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT
LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. EACH OF THE PARTIES HERETO HEREBY
CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN NEW
YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO AGENT’S AND
FGI’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. EACH OF THE PARTIES
HERETO HEREBY EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH
OF THE PARTIES HERETO HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND
AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH PARTY BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH PARTY
AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE
TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.
Section
4.11 Controlling
Agreements. To the extent of any conflict between the terms
hereof, on the one hand, and the terms of any of the FGI Documents and the
Credit Documents, on the other hand, the provisions of this Agreement shall in
all respects be controlling.
Section
4.12 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile or other electronic means shall have the same force and effect as
the delivery of an original executed counterpart of this
Agreement. Any party delivering an executed counterpart of this
Agreement by telefacsimile or other electronic means shall also deliver an
original executed counterpart, but the failure to do so shall not affect the
validity, enforceability or binding effect of this Agreement.
SIGNATURES
ON FOLLOWING PAGE
16
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
and delivered by their duly authorized officers on the date and year first above
written.
|
AGENT:
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
|
|
FGI:
|
FAUNUS
GROUP INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CEO/President
|
|
DEBTORS:
|
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
|
|
AMERICAN
BILTRITE FAR EAST INC.
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
|
[Signature
Page to Intercreditor and Lien Subordination Agreement]
EXHIBIT
A
FGI
Priority Collateral
All
of Debtors’ Accounts owing from account debtors whose principal place of
business or chief executive office is not located in the United States or Canada
and, in the case of Parent, arise directly from the sale of Inventory by
Parent’s Belgian division to account debtors whose principal place of business
or chief executive office is not located in the United States or Canada and, in
the case of Far East, arise directly from the sale of Inventory by Far East to
account debtors whose principal place of business or chief executive office is
not located in the United States or Canada (collectively referred to herein as
“Foreign
Accounts”), and all of Debtors’ money, contract rights, chattel paper,
documents, Deposit Accounts, securities accounts, securities, investment
property and Instruments with respect thereto, and all of Debtors’ rights,
remedies, security, Liens and supporting obligations, in, to and in respect of
the foregoing, including, without limitation, rights of stoppage in
transit, replevin, repossession and reclamation and other rights and remedies of
an unpaid vendor, lienor or secured party, guarantees or other contracts of
suretyship with respect to the Foreign Accounts, deposits or other security for
the obligation of any such Account Debtor, and credit and other
insurance;
All
of Debtors’ money, securities, investment property, Deposit Accounts, Securities
Accounts, Instruments and other property and the proceeds thereof that are now
or hereafter held or received by, in transit to, in possession of, or under the
control of FGI or a bailee of FGI, whether for safekeeping, pledge, custody,
transmission, collection or otherwise, in each case only to the extent
exclusively related to the Foreign Accounts and not any other assets or
properties of Debtors;
To
the extent not listed above, all of Debtors’ now owned or hereafter acquired
Deposit Accounts or Securities Accounts into which Foreign Accounts or the
proceeds of Foreign Accounts are deposited, including all signature cards,
account agreements and other documents relating to such Deposit Accounts or
Securities Accounts, in each case only to the extent exclusively related to the
Foreign Accounts and not any other assets or properties of Debtors;
All
of Debtors’ right, title and interest in, to and in respect of all goods which
by sale have resulted in, Foreign Accounts, including, without limitation, all
goods described in invoices or other documents or instruments with respect to,
or otherwise representing or evidencing, any Foreign Account, and all returned,
reclaimed or repossessed goods;
All
of Debtors’ general intangibles (including, without limitation, payment
intangibles) and other property of every kind and description with respect to
its Foreign Accounts, including, without limitation, all existing and future
customer lists, choses in action, claims, books, records, ledger cards,
contracts, licenses, formulae, tax and other types of refunds, returned and
unearned insurance premiums, rights and claims under insurance policies, and
computer programs, tapes, programs, discs, information, software, records, and
data, all computers, word processors, printers, switches, interfaces, source
codes, mask works, software, web servers, website service contracts and all
parts, accessories, additions, substitutions, or options together with all
property or equipment used in connection with any of the above or which are used
to operate or cause to operate any features, special applications, format
controls, options or software of any or all of the above-mentioned items as the
same relates to the Foreign Accounts or is otherwise necessary or helpful in the
collection
thereof
or realization thereon, in each case only to the extent exclusively related to
the Foreign Accounts and not any other assets or properties of Debtors;
and
All
cash and non-cash proceeds of the foregoing, including insurance
proceeds.
Unless
otherwise defined herein, capitalized terms on this Schedule A shall have
their respective meanings as set forth in the UCC.
EXHIBIT
B
CONTROL
NOTICE
WACHOVIA
BANK, NATIONAL ASSOCIATION
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
______________ 20__
Faunus
Group International, Inc.
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy
No.: ▇▇▇-▇▇▇-▇▇▇▇
Re: Notice Pursuant to
Assignment of Factoring Proceeds
Ladies
and Gentlemen:
Pursuant
to the Intercreditor and Lien Subordination Agreement, dated as of June 30, 2009
(the “Agreement”),
by and among you, WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as agent
(in such capacity, “Agent”),
AMERICAN BILTRITE INC., a Delaware corporation (“Parent”),
and AMERICAN BILTRITE FAR EAST, INC., a Delaware corporation (“Far
East”; together with Parent, individually a “Debtor”
and collectively, “Debtors”),
this letter shall serve as the Control Notice as described in and contemplated
by the Agreement. Capitalized terms used but not defined in this
letter shall have the meanings given them in the Agreement. In
accordance with Section 2.12 of the Agreement, Agent hereby gives you notice
that a Credit Agreement Event of Default has occurred. Accordingly,
we hereby instruct you to transfer all Amounts Due From FGI or any other amounts
payable by you to Debtors under the FGI Documents to the following
account:
|
Wachovia
Bank, National Association
|
||
|
ABA
No.:
|
▇▇▇▇▇▇▇▇▇
|
|
|
Account
No.:
|
5000000030279
|
|
|
Account
Name:
|
Wachovia
Bank, National Association
|
|
|
Reference:
|
American
Biltrite
|
|
|
Very
truly yours
|
|
|
WACHOVIA
BANK, NATIONAL ASSOCIATION, as Agent
|
|
|
By:
__________________________________________________
|
|
|
Name:
_______________________________________________
|
|
|
Title
_________________________________________________
|
: