EXHIBIT 4.5
EXECUTION COPY
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of June 17, 2005 among The Prudential
Insurance Company of America (together with any transferee, successor or assign
"PICA"), each affiliate, managed account or fund of PICA party hereto (together
with any of their transferees, successors or assigns, the "Prudential
Affiliates"; and, together with PICA and any other holder from time to time of
the Senior Notes, "Prudential"), each bank a party to the Credit Agreement on
the date hereof (collectively, including the Swingline Lender and any Issuing
Bank, and with such other banks that may from time to time be parties to the
Credit Agreement, referred to as the "Banks"), the Administrative Agent and the
Co-Administrative Agent from time to time under the Credit Agreement
(respectively the "Administrative Agent" and the "Co-Administrative Agent") and
JPMorgan Chase Bank, N.A., as Collateral Agent under the Security Documents,
together with its successors in such capacity, the "Collateral Agent").
RECITALS
R1. TBC Corporation (f/k/a TBC Parent Holding Corp.), a Delaware
corporation ("Holdings"), TBC Private Brands, Inc. (f/k/a TBC Corporation), a
Delaware corporation ("TBC Private Brands") (Holdings and TBC Private Brands,
each a "Company" and together the "Companies"), and the Banks have entered into
the Credit Agreement, dated as of the date hereof (as it may be amended,
modified, supplemented, refinanced or replaced from time to time the "Credit
Agreement"), pursuant to which, among other things, the Banks agreed to make
certain loans to the Companies;
R2. TBC Private Brands and PICA entered into a certain Second Amended and
Restated Note Agreement, dated as of April 1, 2003, (as it may hereafter be
amended, modified, supplemented, refinanced or replaced from time to time, the
"Existing Note Agreement"), to govern the terms of the following notes which TBC
Private Brands originally issued and PICA purchased on July 10, 1996: (a) 8.30%
Series A Senior Notes due July 10, 2003, which notes have since been paid in
full, (b) 8.62% Series B Senior Notes due July 10, 2005 (the "Series B Notes"),
(c) 8.81% Series C Senior Notes due July 10, 2008 (the "Series C Notes;" and
together with the Series B Notes, as such notes have been amended to date, and
as further amended, modified, supplemented, refinanced or replaced from time to
time, collectively, the "Existing Senior Notes"). TBC Private Brands and
Prudential entered into a certain Note Purchase Agreement, dated as of April 1,
2003 (as it may hereafter be amended, modified, supplemented, refinanced or
replaced from time to time, the "Additional Note Agreement;" and together with
the Existing Note Agreement, the "Note Agreements") pursuant to which TBC
Private Brands issued its Series D Variable Rate Senior Notes due April 16, 2009
(as amended, modified, supplemented, refinanced or replaced from time to time,
the "Additional Senior Notes", and together with the Existing Senior Notes,
collectively, the "Senior Notes").
R3. Pursuant to that certain Amendment No. 2 to Second Amended and
Restated Note Agreement (with respect to the Existing Note Agreement) and that
certain Amendment No. 2 to
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Note Purchase Agreement (with respect to the Additional Note Agreement), each
dated as of November 19, 2004, Holdings became a co-obligor with TBC Private
Brands, jointly and severally liable in respect of the obligations under the
Note Agreements and the Senior Notes.
R4. The Bank Obligations and the Note Obligations are guaranteed, to the
extent provided therein, pursuant to the Guarantee and Collateral Agreement
executed by the Companies and all subsidiaries of the Companies, other than
Merchant's, Incorporated ("Merchant's"), including, without limitation,
Xxxxxxx'x, Inc., Big O Tires, Inc., Big O Development, Inc., Big O Tire of
Idaho, Inc., O Advertising, Inc., Northern States Tire, Inc., TBC International
Inc., TBC Brands, LLC, TBC Capital, LLC, TBC Private Brands of Texas, LLC, TBC
Retail Enterprises, Inc., Big O Retail Enterprises, Inc., Tire Kingdom, Inc.,
and NTW Incorporated (each of such subsidiaries and each of the Companies, a
"Guarantor"; provided that each Company shall only be a Guarantor with respect
to, and guarantee, the Obligations of the other Company), as it may from time to
time by amended, modified, supplemented or replaced (the "Guarantee and
Collateral Agreement").
R5. Each of the Guarantors, Merchant's and the Companies have executed in
favor of the Collateral Agent, as collateral agent for the Secured Parties (as
defined in Recital R6) the Guarantee and Collateral Agreement securing the
Obligations thereunder; and TBC Private Brands has executed in favor of the
Collateral Agent a mortgage securing the Obligations, which mortgage encumbers
real property owned by TBC Private Brands and located in Memphis, Tennessee (the
"Mortgage").
R6. Prudential and the Banks (sometimes collectively referred to herein as
the "Secured Parties", and individually referred to as a "Secured Party") desire
to set forth certain additional provisions regarding the Obligations,
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. APPOINTMENT, POWER AND AUTHORITY OF COLLATERAL AGENT.
(a) Each Secured Party hereby appoints and authorizes the Collateral Agent
to act as its agent for the purposes of enforcing such Secured Party's rights
under the Security Documents, including its rights in respect of the Collateral.
(b) The Collateral Agent (i) agrees to make such demands and give such
notices under the Security Documents as may be requested by, and to take such
action to enforce the Security Documents and to foreclose upon, collect and
dispose of the Collateral or any portion thereof (a "Foreclosure Action") as may
be directed by, the Majority Lenders, but not otherwise, and (ii) agrees to make
the requests referred to in Section 5.6, 5.8 and 5.9 of the Note Agreements if
so instructed in writing by the Special Majority Noteholders and not to make any
determination that any documents delivered pursuant to such Sections are
reasonably satisfactory without the written consent of the Special Majority
Noteholders; provided, however, (i) that the Collateral Agent shall not be
required to take any action that is in its opinion contrary to law or to the
terms of this Agreement or the Security Documents or which would in its
reasonable opinion subject it or its officers, employees or directors to
liability, and (ii) the Collateral Agent shall not be required to take any
action under this Agreement or the Security Documents unless
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and until the Collateral Agent shall receive further assurances (which may
include cash collateral) of the Secured Parties' obligations under Section 5(c)
hereof that it will be indemnified to its satisfaction, in the exercise of its
reasonable judgment, by the Secured Parties against any and all loss, cost,
expense or liability in connection therewith other than any such loss, cost,
expense or liability arising out of the Collateral Agent's gross negligence or
willful misconduct.
(c) The Collateral Agent may at any time request written directions from
the Secured Parties as to any course of action or other matter relating to the
performance of its duties under this Agreement and the Security Documents and
the Secured Parties will promptly comply with any such request. In each instance
in which such written directions are requested, the Collateral Agent shall,
subject to the other provisions of this Agreement, be required to take any such
action or perform any such duties only if so directed by the Majority Lenders
and shall have the right to decline to take such action or to perform such
duties unless so directed.
(d) The Collateral Agent shall have such powers as are specifically
delegated to the Collateral Agent by the terms of this Agreement and of the
Security Documents, together with such other powers as are reasonably incidental
thereto.
SECTION 2. APPLICATION OF PROCEEDS OF COLLATERAL, ETC.
(a) If, upon any Trigger Date, the Prudential Percentage is more than the
Prudential Percentage as of the applicable Determination Date due to any Bank
Paydown, Prudential shall be entitled to a distribution priority under Section
2(d) until the Prudential Percentage (after giving effect to the last such
priority distribution) is equal to the Prudential Percentage as of such
Determination Date, whether by reason of such priority distributions,
participation purchases pursuant to Section 2(b) below or otherwise. If, upon
any Trigger Date, the Bank Percentage is more than the Bank Percentage as of the
applicable Determination Date due to any Prudential Paydown, the Banks shall be
entitled to a distribution priority under Section 2(d) until the Bank Percentage
(after giving effect to the last such priority distribution) is equal to the
Bank Percentage as of such Determination Date, whether by reason of such
priority distributions, participation purchases pursuant to Section 2(b) below
or otherwise. No party claiming a distribution priority under this Section 2(a)
shall be entitled thereto until it notifies the Collateral Agent and each other
party hereto of such claim, including with such notice a reasonably detailed
computation of the amount of such claim and a description of the circumstances
on which it is based.
(b) If, sixty (60) days after a Trigger Date (the "Bank Purchase Date"),
the Prudential Percentage as of such date exceeds the Prudential Percentage
determined as of the applicable Determination Date, the Banks shall be obligated
to purchase a participation in the Note Obligations (ratably as to both the
Existing Senior Notes and the Additional Senior Notes in accordance with the
respective principal amounts of such Senior Notes) in an amount sufficient so
that, after giving effect thereto, the Prudential Percentage, as of the Bank
Purchase Date, and after giving effect to the Banks' purchase, is equal to the
Prudential Percentage as of the applicable Determination Date. If, sixty (60)
days after a Trigger Date (the "Prudential Purchase Date"), the Bank Percentage
exceeds the Bank Percentage determined as of the applicable Determination Date,
Prudential shall be obligated to purchase a participation in the Bank
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Obligations in an amount sufficient so that, after giving effect thereto, the
Bank Percentage, as of the Prudential Purchase Date and after giving effect to
Prudential's purchase, is equal to the Bank Percentage as of the applicable
Determination Date.
(c) (i) Notwithstanding that Prudential shall purchase a participation in
the Bank Obligations hereunder, (A) Prudential shall not be entitled to vote on
any matter arising under the Credit Agreement, and (B) Prudential shall not be
liable in respect of, or required to perform, any obligations of the Banks under
the Credit Agreement (including, without limitation, advancing any funds
pursuant to any request by the Companies to fund a loan) or under any Specified
Hedging Agreement; provided, however, that, with respect to the participation so
purchased, Prudential shall be entitled to share in any payment in respect of
the Bank Obligations pari passu with the Banks.
(ii) Notwithstanding that the Banks shall purchase a participation
in the Note Obligations hereunder, (A) none of the Banks shall be entitled
to vote on any matter arising under the Note Agreements, and (B) none of
the Banks shall be liable in respect of, or required to perform, any of
Prudential's obligations under the Note Agreements; provided, however,
that, with respect to the participation so purchased, the Banks shall be
entitled to share in any payment in respect of the Note Obligations
(without regard to participations in the Bank Obligations) pari passu with
Prudential.
(d) Any Sharing Payment shall be applied and distributed as follows:
(i) First, to the payment of all reasonable out-of-pocket costs and
expenses (including attorneys fees and disbursements) incurred by the
Collateral Agent or by any Secured Party which shall have notified, with
reasonable specificity, the Collateral Agent and the other Secured Parties
of such costs and expenses, including all amounts against or for which the
Collateral Agent is to be indemnified or reimbursed hereunder by the
Secured Parties;
(ii) Second, subject to Section 2(e) below, to Prudential or the
Banks, as applicable, in accordance with Section 2(a);
(iii) Third, subject to Section 2(e), to the Secured Parties pro
rata in proportion to each Secured Party's Percentage Interest (computed
in accordance with the Current Balance Certificates then in effect) in the
Obligations (regardless of whether or not the maturity of any such Secured
Party's Obligations shall have been accelerated) until all amounts owing
in respect of the Note Obligations and the Bank Obligations are paid in
full, provided that any such distribution on account of contingent
obligations in respect of outstanding Letters of Credit shall be held and
invested by the Collateral Agent solely for the benefit of the Secured
Parties entitled thereto and shall thereafter be distributed to such
Secured Parties to the extent that any such contingent obligations shall
become actual (or, to the extent any such contingent obligations are
extinguished prior to becoming actual, such distribution shall then be
redistributed in accordance with this Section 2(d)); and
(iv) Fourth, the balance, if any, to any such Person as shall be
entitled thereto.
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(e) Non-cash Sharing Payments and Sharing Payments which, due to a
restraining order or otherwise, are not permitted to be applied to the
Obligations, or because the Collateral Agent or the receiving Secured Party
determined it to be impracticable to divide and apply any such non-cash Sharing
Payments to the payment of any of the Obligations owed to the Secured Party
(herein referred to as "Non-available Sharing Payments") shall be held by the
Collateral Agent or, as the case may be, the Secured Party so receiving such
Non-available Sharing Payments, as agent for the Secured Parties. At such time
as such Non-available Sharing Payments are later converted to cash or such
Non-available Sharing Payments are later permitted to be applied, or later
become practical to divide and may otherwise be applied, against any of the
Obligations then such Non-available Sharing Payments shall promptly be divided
and paid at such time in accordance with the terms of this Agreement.
(f) Prior to each distribution of Sharing Payments pursuant to Section
2(d), the Collateral Agent shall request an updated Current Balance Certificate
from each Secured Party. The Collateral Agent shall distribute all Sharing
Payments, other than Non-available Sharing Payments, to the Secured Parties
pursuant to Section 2(d) above as soon as possible after it has in its
possession such a Current Balance Certificate from each Secured Party, setting
forth the amount of such Secured Party's Bank Obligations or Note Obligations,
as the case may be. Prior to making any distribution under Section 2(d), the
Collateral Agent may apply such Sharing Payments pursuant to Section 2(d)(i)
above, with respect to any out-of-pocket costs and expenses of the Collateral
Agent or any Secured Party whose amount is then known, and may retain as a
reserve such portion of such Sharing Payments as it may reasonably determine is
sufficient to cover such costs and expenses incurred by the Collateral Agent
whose amount has not yet been determined. As soon as it determines that any
portion of such Sharing Payments are no longer required to be held in such
reserve, the Collateral Agent shall distribute the same to the Secured Parties
pursuant to Section 2(d) based on then effective Current Balance Certificates
from all Secured Parties. Any costs and expenses payable pursuant to Section
2(d)(i) to any Secured Party, of which the Collateral Agent shall not have been
notified as of the time of any disbursement of Sharing Payments, shall not be
payable from such Sharing Payments. The failure of the Collateral Agent to
deduct from such Sharing Payments costs and expenses payable pursuant to such
Section prior to the disbursement of any such Sharing Payments (i) shall not
affect the right of the Collateral Agent to be reimbursed therefor by the
Companies and to be indemnified with respect thereto pursuant to Section 5(c)
below and (ii) shall not render the Collateral Agent liable to any Secured Party
claiming all or a portion thereof pursuant to Section 2(d) above. At the time of
each disbursement of Sharing Payments or other amounts described herein, the
Collateral Agent shall forward to each Secured Party a statement (x) describing
the total amount of such Sharing Payments or other amounts received, (y) if
applicable, the Percentage Interest of each Secured Party pursuant to which such
Secured Party's share was determined, (z) any distribution priority under
Section 2(a) affecting such distribution, (xx) the amount distributed to each
Secured Party; and (yy) the amount of costs and expenses deducted by the
Collateral Agent, the amount of reserve for such costs and expenses retained by
the Collateral Agent, and the amount of any Secured Party's costs and expenses
to which such Sharing Payments or other amounts were applied.
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(g) Each Secured Party agrees that any sums and amounts received by such
Secured Party pursuant to this Section shall be applied to the payment of such
Obligations held by such Secured Party as shall be determined by such Secured
Party in its sole discretion, subject to any provisions of any other agreement
affecting such application.
(h) Each Secured Party agrees not to take any action whatsoever to enforce
any term or provision of the Security Documents or to enforce any of its rights
in respect of the Collateral, except through, or pursuant to the direction of,
the Collateral Agent pursuant to this Agreement.
SECTION 3. INFORMATION.
(a) The Collateral Agent shall promptly notify each Secured Party in the
event it shall receive, in its capacity as Collateral Agent, (i) any notice or
declaration of an Event of Default or certificate rescinding a notice or
declaration of an Event of Default or any request by any party hereto for any
consent, waiver or amendment with respect hereto or the Note Documents, the Bank
Agreements or any Security Document or (ii) any Sharing Payments.
(b) Each Secured Party agrees that, in the event the Collateral Agent
notifies such Secured Party that it has received any Sharing Payments or that it
desires or is required to determine either such Secured Party's Percentage
Interest or the Majority Lenders, such Secured Party will promptly notify the
Collateral Agent in writing pursuant to a certificate of a duly authorized
officer of such Secured Party (a "Current Balance Certificate") of the aggregate
amount of the Note Obligations or Bank Obligations, as the case may be, owing to
such Secured Party (or, in the case of Bank Obligations arising under a
Specified Hedging Agreement, any Affiliate of such Secured Party) as of the date
of such certificate, and the amount of any Bank's unused commitment to lend. The
Collateral Agent shall be entitled to rely on the information set forth in the
most recently received Current Balance Certificate of each Secured Party for a
period of 21 days following receipt thereof by the Collateral Agent.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other action permitted or required by this Agreement to be given or taken by
the Secured Parties may be and, at the request of the Collateral Agent, shall
be, embodied in and evidenced by one or more instruments reasonably satisfactory
in form to the Collateral Agent and signed by or on behalf of such Secured
Parties and, except as otherwise expressly provided in any such instrument, any
such actions shall become effective when such instrument or instruments shall
have been delivered to the Collateral Agent.
(d) The Banks agree to notify the Collateral Agent, which shall promptly
notify Prudential, within 3 business days that a Bank Election Date has
occurred.
SECTION 4. RELEASE OF COLLATERAL; AMENDMENTS TO INTERCREDITOR AGREEMENT;
EXECUTION OF AMENDMENTS, ETC.
(a) Except as may be required or permitted pursuant to the Security
Documents, without the prior written consent of all of the Secured Parties, the
Collateral Agent shall not release any security interest, lien or other
encumbrance on any of the Collateral granted in favor of the Collateral Agent on
behalf of the Secured Parties pursuant to the Security Documents and for which
it has accepted responsibility as Collateral Agent under Section 1(a) hereof;
provided,
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that the Collateral Agent shall release such Collateral with the prior written
consent of the Majority Lenders as long as all of the Collateral so released
during the term of this Agreement has an aggregate value (using the higher of
book value or market value for each item of Collateral) of less than $5,000,000.
(b) This Agreement may not be amended or modified unless in a writing
signed by the Collateral Agent and each of the Secured Parties.
(c) The Collateral Agent agrees (i) to execute such amendments or
modifications to this Agreement as all of the Secured Parties may direct and
(ii) to execute and deliver such amendments or modifications to the Security
Documents to which the Collateral Agent is a party as the Majority Lenders may
direct (except releases of Collateral and other actions which require a greater
percentage of Secured Parties); provided, however, that the Collateral Agent
shall not be obligated to execute any such amendment or modification the effect
of which is to increase the liabilities or duties of the Collateral Agent
hereunder or thereunder in any respect.
SECTION 5. DISCLAIMER, ETC.
(a) The Collateral Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the Security Documents, and the
Collateral Agent shall not by reason of this Agreement or Security Documents be
a trustee for any Secured Party. The Collateral Agent in such capacity shall not
be responsible to the Secured Parties for any recitals, statements,
representations or warranties contained in this Agreement, any Security
Document, or in any certificate or other document referred to or provided for
therein, or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement, any Security Document, or any other document
referred to or provided for herein or therein, or for any security interest,
lien or encumbrance granted to the Collateral Agent on behalf of the Secured
Parties or the perfection or priority of any such security interest, lien or
encumbrance, or for any failure by the Companies to perform any of their
obligations under any thereof. The Collateral Agent may employ agents and
attorneys-in-fact and shall not be responsible, except as to money or securities
received by it or its authorized agents, for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. -Neither
the Collateral Agent nor any of its directors, officers, employees or agents
shall be liable or responsible for any action taken or omitted to be taken by it
or any of them hereunder or in connection herewith, except for its or their own
gross negligence or willful misconduct.
(b) The Collateral Agent shall be entitled to rely upon any written
certification, notice or other communication reasonably believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Collateral Agent with
reasonable care. As to any matters not expressly provided for by this Agreement,
the Collateral Agent shall in all cases be under no duty to act or refrain from
acting unless (i) it receives written instructions signed by the Majority
Lenders (unless otherwise provided herein) as to what actions should be taken or
refrained from being taken, which instructions and action taken or failure to
act pursuant thereto shall be binding on all of the Secured Parties, and the
Collateral Agent shall be protected with respect to actions taken or not taken
in accordance with such instructions, and (ii) it receives such further
assurances (which may include cash collateral) as it may request of
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the indemnification obligations of the Secured Parties under Section 5(c) of
this Agreement in respect of any and all liability and expense which may be
incurred by it by reason of taking, continuing to take or refraining from taking
any such action. If any party disputes another party's claim to a distribution
priority under Section 2(a), the Collateral Agent may retain the funds that
would otherwise be distributed in accordance with the claimed priority until the
dispute is resolved by agreement of all parties, by non-appealable court order
or by binding arbitration.
(c) Each Secured Party agrees to indemnify the Collateral Agent in such
capacity, ratably in accordance with its Percentage Interest in the Obligations,
whether or not the Collateral Agent has exhausted all remedies against the
Companies for reimbursement, to the extent the Collateral Agent has not been
reimbursed by the Companies in accordance with and pursuant to their
Acknowledgment and Agreement hereto, for any and all liabilities, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Collateral Agent in any way relating to or arising out of this Agreement, any
Security Document or any other document contemplated by or referred to therein
or the transactions contemplated thereby or the enforcement of any of the terms
hereof, or of any Security Document; provided, however, that no Secured Party
shall be liable for, or shall indemnify the Collateral Agent for, any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Collateral Agent.
(d) The Collateral Agent may deem and treat the payee of any promissory
note or other evidence of indebtedness relating to the Obligations as the owner
thereof for all purposes hereof unless and until the provisions of Section 11(e)
have been complied with and a written notice of the assignment or transfer
thereof, signed by such payee and in form satisfactory to the Collateral Agent,
shall have been filed with the Collateral Agent, but the Collateral Agent shall
not be required to recognize or deal with any Person who has acquired any
participation in any Obligation from any Secured Party. Any request, authority
or consent of any Person who at the time of making such request or giving such
authority or consent is the holder of any such note or other evidence of
indebtedness shall be conclusive and binding on any subsequent holder,
transferee or assignee of such note or evidence and of any note or notes or
evidence issued in exchange therefor.
(e) Except as expressly directed by the Majority Lenders and as expressly
provided in the Security Documents, the Collateral Agent shall have no duty to
and shall not take any Foreclosure Action or any other affirmative action with
respect to the collection of any amount payable in respect of the Collateral.
(f) Subject to the terms of this paragraph, any Person acting as
Collateral Agent may resign at any time by giving notice thereof to each Secured
Party, and any Person acting as Collateral Agent may be removed as Collateral
Agent at any time by the Majority Lenders. Upon any such resignation or removal,
a successor Collateral Agent shall be appointed by the Majority Lenders. If no
successor Collateral Agent shall have been so appointed by the Majority Lenders
and shall have accepted such appointment within thirty days after such
resignation or removal, then the retiring Collateral Agent may, on behalf of the
Secured Parties, appoint a successor Collateral Agent, which shall be either a
Bank or a commercial bank or insurance
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company organized under the laws of the United States of America or any state
thereof and has combined capital and surplus of at least $500,000,000 and has an
investment rating of "A" or better issued by Standard & Poor's Corporation with
respect to its senior debt rating. Upon the acceptance of any appointment as
Collateral Agent hereunder by a successor Collateral Agent, (i) such successor
Collateral Agent shall promptly so notify the Secured Parties and the retiring
Collateral Agent and shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Collateral Agent, and (ii)
the resignation or removal of the retiring Collateral Agent shall become
effective and it shall be discharged from its duties and obligations hereunder.
After any retiring Collateral Agent's resignation or removal hereunder as
Collateral Agent, the provisions of this Section 5 shall continue in effect for
its benefit in respect of any actions taken or permitted to be taken by it while
it was acting as the Collateral Agent.
(g) During such periods as the Collateral Agent is a Secured Party, in its
capacity as a Secured Party the Collateral Agent shall have the same rights,
obligations and powers hereunder as any other Secured Party and may exercise the
same as though it were not acting as the Collateral Agent, and the term "Secured
Party" or "Secured Parties" shall, unless the context otherwise requires,
include the Collateral Agent in its capacity as a Secured Party. The Collateral
Agent and its affiliates may (without having to account therefor to any Secured
Party) accept deposits from, lend money to (on a secured or unsecured basis),
and generally engage in any kind of banking, trust or other business with, the
Companies (and any of its affiliates) as if it were not acting as the Collateral
Agent, and the Collateral Agent may accept fees and other consideration from the
Companies for services in connection with this Agreement or otherwise without
having to account for the same to the Secured Parties. Although the Collateral
Agent and its affiliates may in the course of such relationships not involving
the Collateral Agent's activities as a Secured Party or as Collateral Agent, and
in the course of relationships with other Persons, acquire information about the
Companies, its affiliates and such other Persons, the Collateral Agent shall
have no duty to disclose to the Secured Parties information so acquired.
SECTION 6. PAYMENT INVALIDATED. If, during the course of, or pursuant to,
any Bankruptcy Proceeding, a Secured Party (the "Returning Lender") is required
by a court or other tribunal of competent jurisdiction to disgorge, refund,
rebate or otherwise return any distribution of Sharing Payments or of other
funds received by such Secured Party pursuant to Section 2 hereof (such
Returning Lender's portion of such payment or distribution referred to herein as
a "Disputed Payment"), to any trustee presiding over such Bankruptcy Proceeding
or to any other Person (whether by reason of the fact that such Disputed Payment
constituted or was alleged to constitute a preference, a fraudulent conveyance
or for such other reason as such court or tribunal shall specify), each other
Secured Party shall immediately pay to the Returning Lender its Proportionate
Share of such Disputed Payment from amounts actually received by such other
Secured Party. For purposes of this Section 6, such Proportionate Share shall be
calculated as of the date the Returning Lender is required to make such payment
to any such trustee or other Person.
SECTION 7. ADDITIONAL COLLATERAL. Each of the Secured Parties hereby
covenants and agrees that (i) such Secured Party will not accept from any Person
on behalf of the Companies any guarantee (a "Third-Party Guarantee") of any of
the Obligations unless such guarantor simultaneously guarantees the payment of
all of the Obligations owed to all Secured Parties (or, if such Third-Party
Guarantee guarantees only a portion of the Obligations owing to such
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Secured Party, such Secured Party will not accept such Third-Party Guarantee
unless such guarantor simultaneously guarantees the same proportion of
Obligations owing to the other Secured Parties) and (ii) such Secured Party will
not take, accept or obtain any security interest in, or lien or encumbrance
upon, any assets of any of the Companies or any subsidiary or affiliate thereof
or any other Person (other than a security interest, lien or encumbrance upon
assets which, if obtained by such Secured Party, would constitute a Sharing
Payment) to secure the payment and performance of the Obligations unless all
Secured Parties are granted a pari passu security interest in, or lien upon,
such assets, in either case, pursuant to documents in form and substance
satisfactory to the Secured Parties.
SECTION 8. TURNOVER OF COLLATERAL. If a Secured Party acquires custody,
control or possession of any Collateral or Sharing Payments, other than pursuant
to the terms of this Agreement, such Secured Party shall promptly cause such
Collateral or Sharing Payments to be delivered to or put in the custody,
possession or control of the Collateral Agent for disposition or distribution in
accordance with the provisions of Section 2 hereof. Until such time as such
Secured Party shall have compiled with the provisions of the immediately
preceding sentence, such Secured Party shall be deemed to hold such Collateral
and Sharing Payments in trust for the parties entitled thereto hereunder.
SECTION 9. COVENANTS OF THE SECURED PARTIES. (a) Each of the Secured
Parties hereby covenants and agrees that it will give notice immediately to each
other Secured Party or in the case of notice to the Banks, to the
Co-Administrative Agent for the Banks under the Credit Agreement of (i) its
instructions to the Collateral Agent to take a Foreclosure Action, and (ii) its
receipt of any additional Collateral or a Sharing Payment or a Third-Party
Guarantee.
(b) It will cooperate with the Collateral Agent and with each other
Secured Party in the enforcement of the security interests in, and liens and
encumbrances upon the Collateral and otherwise in order to accomplish the
purposes of this Agreement and the Security Documents.
SECTION 10. DEFINITIONS.
"Acceleration Date" means the date upon which any of the Secured Parties
shall have accelerated the maturity of its respective Obligations.
"Additional Note Agreement" shall have the meaning set forth in the
introductory paragraphs hereof.
"Additional Senior Notes" shall have the meaning set forth in the
introductory paragraphs hereof.
"Administrative Agent" shall have the meaning set forth in the
introductory paragraphs hereof.
"Affiliate" shall have the meaning set forth in the Guarantee and
Collateral Agreement.
"Bank and Note Documents" shall mean, and is a collective reference to the
Bank Agreements and the Note Documents.
-10-
"Bank Agreements" shall mean the Credit Agreement, and each other
document, instrument or certificate executed in connection therewith, as any of
them may be amended, modified, supplemented or replaced from time to time in
accordance with its respective terms.
"Bank Election Date" means the earlier of (i) the date on which the
"Revolving Credit Commitments" of the Banks are terminated pursuant to Article
VII of the Credit Agreement or (ii) the expiration of 3 days after all of the
Banks first refused, in accordance with Section 4.02 of the Credit Agreement, to
make "Revolving Loans" under the Credit Agreement upon request of the Companies,
without the Companies' right to borrow under Section 4.02 having been restored,
by waiver, amendment, cure, forbearance or otherwise.
"Bank Obligations" shall mean, at any time, (i) all obligations of the
Companies to the Banks and the Collateral Agent arising under the Bank
Agreements, including, without limitation, premium, make-whole amounts, breakage
costs and yield maintenance amounts and the obligations of the Companies under
and in respect to any Letters of Credit (including contingent obligations in
respect thereof); plus (ii) the amount of any participations in the Note
Obligations purchased by the Banks pursuant to Section 2(b), minus (iii) the
amount of any participations in the Bank Obligations purchased by Prudential
pursuant to Section 2(b) plus (iv) all obligations of the Companies arising
under any Specified Hedging Agreement.
"Bank Paydown" shall mean any and all amounts, proceeds or other property
actually received by or on behalf of the Collateral Agent or the Banks in
respect of any of the Bank Obligations at any time on or after the occurrence of
a Determination Date and prior to the occurrence of any Trigger Date, including,
without limitation, any such amounts, proceeds or other property received (a)
pursuant to or in connection with the enforcement of any of the Bank Agreements
(whether pursuant to a Bankruptcy Proceeding or otherwise), or otherwise
resulting from the collection, sale, transfer or other disposition of any of the
Collateral or any portion thereof, (b) obtained by way of set-off by the
Collateral Agent or any Secured Party against obligations owing by the
Collateral Agent or such Secured Party to any of the Companies, and (c)
constituting prepayments or other payments in respect of any of the Obligations,
but specifically excluding any regularly scheduled prepayments under the Bank
Agreements.
"Bank Percentage" means, on any date, an amount equal to a fraction, the
numerator of which is the total amount of Bank Obligations as of such date and
the denominator of which is the total amount of Obligations as of such date.
"Bank Purchase Date" shall have the meaning set forth in Section 2(b).
"Bankruptcy Proceeding" shall mean the voluntary or involuntary
dissolution, winding up, liquidation, arrangement, reorganization, adjustment,
protection, relief or composition of the Companies or of any Guarantor or their
debts, whether in any bankruptcy, insolvency, arrangement, reorganization,
receivership, relief or similar proceedings or upon an assignment for the
benefit of creditors or any other marshaling of the assets and liabilities of
the Companies or of any Guarantor or otherwise.
-11-
"Banks" shall have the meaning set forth in the introductory paragraphs
hereof, and shall include each Bank acting from time to time under the Credit
Agreement as the Swingline Lender and any Issuing Bank.
"Co-Administrative Agent" shall have the meaning set forth in the
introductory paragraphs hereof.
"Collateral Agent" shall have the meaning set forth in the introductory
paragraphs hereof.
"Collateral" shall mean the real and personal property in or upon which
the Companies, any Guarantor or other Person have from time to time granted to
the Collateral Agent on behalf of the Secured Parties or to any Secured Party,
pursuant to the Security Documents, a lien, security interest or other
encumbrance to secure the Obligations. The term "Collateral" shall not refer to
any cash collateral with respect to letters of credit at any time deposited with
the Administrative Agent pursuant to Section 2.05(a) of the Credit Agreement.
"Compan(y/ies) " shall have the meaning set forth in the introductory
paragraphs hereof.
"Credit Agreement" shall have the meaning set forth in the introductory
paragraphs hereof.
"Current Balance Certificate" shall have the meaning set forth in Section
3(b).
"Determination Date" means, with respect to any Trigger Date, the date
which is sixty (60) days prior to such Trigger Date.
"Disputed Payment" shall have the meaning set forth in Section 6 hereof.
"Event of Default" means an Event of Default as such term is defined in or
pursuant to the Note Documents or the Bank Agreements, as the case may be.
"Existing Note Agreement" shall have the meaning set forth in the
introductory paragraphs hereof.
"Existing Senior Notes" shall have the meaning set forth in the
introductory paragraphs hereof.
"Foreclosure Action" shall have the meaning specified in Section 1(b).
"Guarantee and Collateral Agreement" shall have the meaning set forth in
the introductory paragraphs hereof.
"Guarantee Obligations" means obligations undertaken by the guarantors
under Section 2 of the Guarantee and Collateral Agreement.
"Holdings" shall have the meaning set forth in the introductory paragraphs
hereof.
"Issuing Bank" shall have the meaning set forth in the Credit Agreement.
-12-
"Majority Lenders" shall mean, at any time, (i) during such time as there
is no Event of Default, the holders of at least 51% of the total of the
aggregate amount of the commitments of the Banks plus the aggregate principal
balance of the Senior Notes and (ii) during the existence of an Event of
Default, the holders of at least 66-2/3% of the Obligations.
"Mortgage" shall have the meaning set forth in the introductory paragraphs
hereof.
"Non-available Sharing Payments" shall have the meaning set forth in
Section 2(e) hereof.
"Note Agreements" shall have the meaning set forth in the introductory
paragraphs hereof.
"Note Documents" shall mean the Note Agreements, the Senior Notes and each
other document, instrument or certificate executed in connection therewith, as
any of them may be amended, modified, supplemented or replaced from time to time
in accordance with its respective terms.
"Note Obligations" shall mean, at any time, (i) all of the Companies'
obligations to Prudential arising under the Note Documents, including, without
limitation, premium, make-whole amounts, breakage costs and yield maintenance
amounts, plus (ii) the amount of any participations in the Bank Obligations
purchased by Prudential pursuant to Section 2(b) or minus (iii) the amount of
any participations in the Note Obligations purchased by the Banks pursuant to
Section 2(b).
"Obligations" shall mean, at any time, collectively, all Note Obligations,
all Bank Obligations and, without duplication, all Guarantee Obligations, and
including, without limitation, accrued but unpaid interest and fees and all
out-of-pocket costs and expenses incurred by each Secured Party in connection
with the enforcement and collection of the Obligations owing to such Secured
Party and in connection with directing the Collateral Agent to take actions
hereunder and under the Security Documents, including, without limitation, all
attorneys fees and disbursements incurred by such Secured Party at such time.
"Percentage Interest" with respect to a Secured Party, as of the date of
any Current Balance Certificate of such Secured Party then in effect, shall mean
that percentage which is the equivalent of a fraction, the numerator of which is
the then aggregate amount of the applicable Note Obligations or applicable Bank
Obligations, as the case may be, owing to such Secured Party (or, in the case of
Bank Obligations arising under a Specified Hedging Agreement with any Affiliate
of a Secured Party, such Affiliate), and the denominator of which is the total
of the amounts described in the numerators for all Secured Parties, as reflected
in the Current Balance Certificates for all Secured Parties then in effect.
"Person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, limited liability company, an unincorporated
organization and a government or any department or agency thereof.
"PICA" shall have the meaning set forth in the introductory paragraphs
hereof.
-13-
"Proportionate Share" shall have the meaning set forth in Section 2.9(b)
of the Guarantee and Collateral Agreement.
"Prudential Affiliate" shall have the meaning set forth in the
introductory paragraphs hereof.
"Prudential Paydown" shall mean any and all amounts, proceeds or other
property actually received by or on behalf of Prudential in respect of any of
the Note Obligations at any time on or after the occurrence of a Determination
Date and prior to the occurrence of any Trigger Date, including, without
limitation, any such amounts, proceeds or other property received (a) pursuant
to or in connection with the enforcement of any of the Note Documents (whether
pursuant to a Bankruptcy Proceeding or otherwise), or otherwise resulting from
the collection, sale, transfer or other disposition of any of the Collateral or
any portion thereof, (b) obtained by way of set-off by the Collateral Agent or
any Secured Party against obligations owing by the Collateral Agent or such
Secured Party to any of the Companies, and (c) constituting prepayments or other
payments in respect of any of the Obligations, but specifically excluding any
regularly scheduled prepayments under the Note Documents.
"Prudential Percentage" means, on any date, an amount equal to a fraction,
the numerator of which is the total amount of Note Obligations as of such date
and the denominator of which is the total amount of Obligations as of such date.
"Prudential Purchase Date" shall have the meaning set forth in Section
2(b).
"Prudential" shall have the meaning set forth in the introductory
paragraphs hereof.
"Returning Lender" shall have the meaning set forth in Section 6 hereof.
"Secured Parties" shall have the meaning set forth in the introductory
paragraphs hereof.
"Security Documents" shall mean the Guarantee and Collateral Agreement and
the Mortgage, and all documents and instruments executed and delivered in
connection therewith and any other document or instrument pursuant to which the
Companies or any other Person grants to the Collateral Agent or a Secured Party
a security interest in, or lien or encumbrance upon, any real or personal
property to secure the payment or performance of the Obligations.
"Senior Notes" shall have the meaning set forth in the introductory
paragraphs hereof.
"Series B Notes" shall have the meaning set forth in the introductory
paragraphs hereof.
"Series C Notes" shall have the meaning set forth in the introductory
paragraphs hereof.
"Sharing Payment" shall mean any and all amounts, proceeds or other
property actually received by or on behalf of the Collateral Agent or any
Secured Party in respect of any of the Obligations at any time on or after the
occurrence of a Trigger Date, including, without limitation, any such amounts,
proceeds or other property received (a) pursuant to or in connection with the
enforcement of any of the Bank and Note Documents (whether pursuant to a
Bankruptcy Proceeding or otherwise), or otherwise resulting from the collection,
sale, transfer or
-14-
other disposition of any of the Collateral or any portion thereof, (b) obtained
by way of set-off by the Collateral Agent or any Secured Party against
obligations owing by the Collateral Agent or such Secured Party to any of the
Companies, and (c) constituting prepayments or other payments in respect of any
of the Obligations, but specifically excluding any regularly scheduled
prepayments under the Bank and Note Documents.
"Special Majority Noteholders" shall mean the holder or holders of at
least 51% of the sum of the then outstanding aggregate principal amount of each
of the Existing Prudential Notes, plus the then outstanding aggregate principal
amount of the Additional Prudential Notes.
"Specified Hedging Agreement" shall have the meaning set forth in the
Guarantee and Collateral Agreement.
"Swingline Lender" shall have the meaning set forth in the Credit
Agreement.
"TBC Private Brands" shall have the meaning set forth in the introductory
paragraphs hereof.
"Third Party Guarantee" shall have the meaning set forth in Section 7
hereof.
"Trigger Date" means the earliest date upon which one of the following
events occurs:
(a) a Bank Election Date;
(b) an Acceleration Date; or
(c) the commencement of a Bankruptcy Proceeding.
SECTION 11. MISCELLANEOUS.
(a) Each of the Secured Parties is hereby authorized to demand specific
performance of this Agreement at any time when any party shall have failed to
comply with any of the provisions of this Agreement applicable to it. Each of
the Secured Parties hereby irrevocably waives any defense based on the adequacy
of a remedy at law, which might be asserted as a bar to such remedy of specific
performance.
(b) All notices, requests, consents and other communications made pursuant
to the provisions hereof shall be in writing and shall be delivered personally
or mailed by first class registered or certified mail, postage prepaid or by
Federal Express or by telex or telecopier or by telephone (if confirmed in
writing as aforesaid) at the address specified on the signature pages or Annex I
hereof, as the case may be, or such other address as may be furnished in writing
by a Secured Party to each other Secured Party or by the Collateral Agent to
each Secured Party. All notices to the Collateral Agent shall be effective on
receipt.
(c) This Agreement may be modified or waived only by an instrument or
instruments in writing signed by each of the Secured Parties and the Collateral
Agent.
-15-
(d) This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same agreement and any of the
parties hereto may execute this Agreement by signing any such counterpart.
(e) All of the terms of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective parties hereto and their
respective successors and assigns, and shall be binding upon and inure to the
benefit of and be enforceable by any holder or holders at any time of the
Obligations owed to a Secured Party, or any part thereof. Any transfer by
Prudential and any of its successors and assigns of any Senior Notes shall
effectuate an equivalent assignment of such Person's rights and obligations
hereunder, with no further action being required, and each transferee of the
Senior Notes shall be bound accordingly hereunder as a holder of Senior Notes.
Any assignment by any Bank pursuant to the Credit Agreement of any of its rights
and obligations thereunder shall operate as provided therein and in the
Assignment and Acceptance related to such assignment and shall effectuate an
equivalent assignment of its rights and obligations hereunder, with no further
action being required, and each Assignee shall be bound accordingly hereunder as
an assign of such Bank to the extent of its assignment of its rights and
obligations under the Credit Agreement.
(f) The provisions of this Agreement are not intended, nor shall they be
construed to confer upon, or give the Companies or any Person other than the
Secured Parties and their respective successors and assigns, any rights,
remedies or claims hereunder or by reason hereof.
(g) To the extent that there is a conflict or inconsistency with terms of
this Agreement and an agreement among the Collateral Agent, any Secured Party
and the Companies, or any amendment or modification of any such agreement, this
Agreement shall control as between the parties hereto.
(h) Each Secured Party shall execute and deliver such other documents and
instruments, in form and substance reasonably satisfactory to the Collateral
Agent or any other Secured Party, and shall take such other action, in each case
as the Collateral Agent or such other Secured Party may reasonably request, to
effectuate and carry out the provisions of this Agreement or the Security
Documents, including without limitation by recording or filing in such places as
the requesting Collateral Agent or other Secured Party may deem desirable, this
Agreement or the Security Documents or such other documents or instruments.
(i) This Agreement shall terminate with respect to Prudential
automatically upon the indefeasible payment in full of all of the Obligations
owed to them and, with respect to the Banks, upon the indefeasible payment in
full of all of the Obligations owed to them (other than Obligations in respect
of Specified Hedging Agreements) plus the termination of all commitments to lend
under the Credit Agreement; provided, however, that Section 5(c) of this
Agreement shall survive, and remain operative and in full force and effect,
regardless of the indefeasible payment in full of all Obligations.
(j) Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining
-16-
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction and the parties hereto shall use their best efforts to
replace such provision.
(k) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED IN SUCH STATE, WITHOUT REGARD TO ANY PROVISION THEREOF THAT WOULD
PERMIT OR REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
(l) All personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural, and the plural shall include the singular.
Titles of Articles and Sections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
(m) THE PARTIES HERETO ACKNOWLEDGE THAT ANY DISPUTE ARISING OUT OF THIS
AGREEMENT WILL BE BASED ON DIFFICULT AND COMPLEX FACTS. ACCORDINGLY, EACH OF THE
PARTIES HERETO HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY DISPUTE,
CONTROVERSY, SUIT, HEARING OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR
THE OBLIGATIONS, DUTIES AND RIGHTS OF THE COLLATERAL AGENT OR THE SECURED
PARTIES AS SET FORTH HEREIN.
(n) The parties hereto who are also parties to an existing Intercreditor
Agreement, dated as of March 31, 2003 (as amended, supplemented or otherwise
modified from time to time), relating to the Companies hereby agree that such
agreement is terminated and of no further force or effect.
-17-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
Individually, as a Bank, as Swingline Lender and as
Administrative Agent
By: /s/ R. Xxxxx Xxxxxx
---------------------
Name: R. Xxxxx Xxxxxx
Title: Vice President
INTERCREDITOR AGREEMENT
JPMORGAN CHASE BANK, N.A.
Individually, as a Bank, as Issuing Bank, as
Collateral Agent and as Co-Administrative Agent
By: /s/ Xxxxx Xxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
INTERCREDITOR AGREEMENT
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
PRUCO LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
RGA REINSURANCE COMPANY
By: Prudential Private Placement Investors, L.P., as
Investment Advisor
By: Prudential Private Placement Investors,
Inc., General Partner
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
BAYSTATE INVESTMENTS, LLC
By: Prudential Private Placement Investors, L.P., as
Investment Advisor
By: Prudential Private Placement Investors,
Inc., General Partner
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
INTERCREDITOR AGREEMENT
UNITED OF OMAHA LIFE INSURANCE
COMPANY
By: Prudential Private Placement Investors, L.P., as
Investment Advisor
By: Prudential Private Placement Investors,
Inc., General Partner
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
INTERCREDITOR AGREEMENT
U.S. BANK NATIONAL ASSOCIATION
Individually as a Bank and as a Documentation
Agent
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
INTERCREDITOR AGREEMENT
REGIONS BANK
Individually as a Bank and as a Documentation
Agent
By: /s/ Xxxxxxx May
----------------------------
Name: Xxxxxxx May
Title: Senior Vice President
INTERCREDITOR AGREEMENT
SUNTRUST BANK
Individually as a Bank and as Syndication Agent
By: /s/ Xxxxx X. Xxxx
-------------------
Name: Xxxxx X. Xxxx
Title: Director
INTERCREDITOR AGREEMENT
BANK OF AMERICA, N.A.
Individually as a Bank
By: /s/ Xxxxxx XxxXxxxxxx
-----------------------
Name: Xxxxxx XxxXxxxxxx
Title: Director
INTERCREDITOR AGREEMENT
BNP PARIBAS
Individually as a Bank
By: /s/ Xxxx Xxxxx
------------------------
Name: Xxxx Xxxxx
Xxxxx: Managing Director
By: /s/ Xxxx Xxxxxxx
------------------------
Name: Xxxx Xxxxxxx
Title: Director
INTERCREDITOR AGREEMENT
FIFTH THIRD BANK
Individually as a Bank
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
INTERCREDITOR AGREEMENT
GUARANTY BANK
Individually as a Bank
By: /s/ Xxxxxxx Xxxxxxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
INTERCREDITOR AGREEMENT
KEYBANK NATIONAL ASSOCIATION
Individually as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
INTERCREDITOR AGREEMENT
LA SALLE BANK NATIONAL ASSOCIATION
Individually as a Bank
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx, CTP
Title: Senior Vice-President and Head of
Division
INTERCREDITOR AGREEMENT
NATIONAL CITY BANK
Individually as a Bank
By: /s/ Xxxxxxx X. Pearl
----------------------
Name: Xxxxxxx X. Pearl
Title: Account Officer
INTERCREDITOR AGREEMENT
ACKNOWLEDGMENT AND AGREEMENT
The undersigned, although not parties hereto, acknowledge and, to the
extent required, consent to the terms and conditions of the Intercreditor
Agreement (the "Intercreditor Agreement") set forth above. Further, the
undersigned agree (i) to reimburse the Collateral Agent, on demand, for any
expenses incurred by the Collateral Agent plus interest at the Collateral
Agent's prime rate from the date reimbursement is demanded until the date of
reimbursement, including all attorneys fees and compensation of agents, arising
out of, or in any way connected with, the execution or delivery of the
Intercreditor Agreement or any Security Document or any agreement or instrument
contemplated thereby or the performance by the parties thereto of their
respective obligations thereunder or in connection with the enforcement or
protection of the rights of the Collateral Agent and/or the Secured Parties
under the Intercreditor Agreement or the Security Documents and the seizure,
repossession, sale, transfer or other disposition of any of the Collateral and
(ii) to indemnify and hold harmless the Collateral Agent and its directors,
officers, employees and agents, on demand, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (including
interest thereon at the Collateral Agent's prime rate) which may be imposed on,
incurred by or asserted against the Collateral Agent in its capacity as the
Collateral Agent or any of them in any way relating to or arising out of the
Intercreditor Agreement or any Security Document or any action taken or omitted
by it under the Intercreditor Agreement or any Security Document; provided,
however, that the undersigned does not hold the Collateral Agent harmless for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of the Collateral Agent or any of its
directors, officers, employees or agents.
The undersigned shall execute and deliver such other documents and
instruments, in form and substance reasonably satisfactory to the Collateral
Agent, and shall take such other action, in each case, as the Collateral Agent
may reasonably request, to effectuate and carry out the provisions of the
foregoing Intercreditor Agreement including, without limitation, by recording or
filing in such places as the Collateral Agent may deem desirable, such other
documents or instruments as the Collateral Agent may specify.
In the event the Collateral Agent under the foregoing Intercreditor
Agreement is not one of the Secured Parties a party thereto, the undersigned
agree to pay all fees charged by such Collateral Agent for performing its duties
and obligations thereunder.
ACKNOWLEDGEMENT AND AGREEMENT IN CONNECTION WITH INTERCREDITOR AGREEMENT
IN WITNESS WHEREOF, the parties below have caused this Acknowledgment and
Agreement to be duly executed as of the date first above written.
TBC CORPORATION
By: /s/ Xxx Xxxxxx
-----------------------
Name: Xxx Xxxxxx
Title: VP and Treasurer
TBC PRIVATE BRANDS, INC.
By: /s/ Xxx Xxxxxx
-----------------------
Name: Xxx Xxxxxx
Title: VP and Treasurer
ACKNOWLEDGEMENT AND AGREEMENT IN CONNECTION WITH INTERCREDITOR AGREEMENT
