Exhibit
10.46
INTERCREDITOR
AGREEMENT
This Intercreditor Agreement
(“Agreement”) is made as of this /13
th
/ day of November, 2003,
by and among PNC BANK, NATIONAL ASSOCIATION (“PNC”),
FIFTH THIRD BANK (“Fifth Third”) and BANK ONE, NA
(“Bank One”) (PNC, Fifth Third and Bank One,
collectively, “Banks” and individually
“Bank”).
A. By Credit Agreement dated
December 7, 1999 (“Credit Agreement”), the Banks agreed
to make, and have made, certain loans to CECO Group, Inc., CECO
Filters, Inc., Air Purator Corporation, New Busch Co., Inc., the
Kirk & Blum Manufacturing Company, KBD/Technic, Inc. and CECO
Abatement Systems, Inc. (collectively
“Borrowers”).
B. The Credit Agreement has been
amended seven times and, as of even date herewith, an Eighth
Amendment to Credit Agreement is being executed (the Credit
Agreement as so amended the “Amended Credit
Agreement”).
C. The remaining loans which exist
under the Amended Credit Agreement are a Revolving Credit Loan
pursuant to which the Revolving Credit Commitment is $8,000,000
(“Revolving Credit Loan”) and the Term Loan A, which
has a principal balance due as of the date hereof of $6,805,880
(“Term Loan A”) (the Revolving Credit Loan and Term
Loan A, collectively, the “Loans”).
D. The Loans are secured by various
mortgages on real property and security interest in, and pledges
of, personal property, pursuant to various mortgages, security
agreements and pledge agreements (collectively “Security
Documents”).
E. Pursuant to the Amended Credit
Agreement, the Banks, each have commitments to fund one-third of
the amounts required to fund the Revolving Credit Loan. To date,
each of the Banks has funded its commitment under the Revolving
Credit Loan and has received payments so that each is owed
one-third of the outstanding principal balance of the Revolving
Credit Loan. The Revolving Credit Loan is evidence by three
Revolving Credit Notes, one to each Bank (each a “Revolving
Credit Note” and together the “Revolving Credit
Notes”). Each of the Banks has funded one-third of Term Loan
A and has received one-third of each payment on Term Loan A so that
each Bank is owed one-third of the outstanding principal balance of
Term Loan A. Term Loan A is evidenced by three Term Loan A Notes
(each a “Term Loan A Note” and collectively “Term
Loan A Notes”).
F. The Banks have agreed to
reorganize the lending relationship which exists under the Amended
Credit Agreement so that Fifth Third becomes the sole lender under
the Revolving Credit Loan and PNC and Bank One become the only, and
equal, lenders under Term Loan A.
G. The purpose of this Agreement is
to set forth the terms of the reorganization of the lending
relationship under the Amended Credit Agreement.
Agreement
For good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by
each of the Banks, the Banks agree as follows:
1. Definitions . Unless
defined in this Agreement, capitalized words and phrases used in
this Agreement which are defined in the Amended Credit Agreement
shall have the meanings ascribed to them in the Amended Credit
Agreement.
2. Revolving Credit Loan . In
exchange for the payment of $
, each, the receipt of which is hereby acknowledged by PNC and Bank
One, PNC and Bank One hereby assign to Fifth Third all of their
respective rights and obligations with respect to the Revolving
Credit Loan. Simultaneously with the execution and delivery of this
Agreement, PNC and Bank One shall deliver to Fifth Third their
respective original Revolving Credit Notes, endorsed payable to
Fifth Third Bank, without recourse, by duly authorized officers of
PNC and Bank One. By executing this Agreement, Fifth Third agrees
to be responsible for the Revolving Credit Commitment of all of the
Banks under the Amended Credit Agreement, from and after the date
of this Agreement, and to indemnify and hold harmless PNC and Bank
One with regard to any claims by Borrowers resulting from the
failure of Fifth Third to fulfill any obligations of the Banks with
respect to the Revolving Credit Loan which occurs on or after the
date of this Agreement.
3. Term A Loan . In exchange
for the payment of $
, each, by PNC and Bank One, the receipt of which is hereby
acknowledged by Fifth Third, Fifth Third hereby assigns to PNC and
Bank One (one-half to each) all of Fifth Third’s interest in
Term Loan A. Simultaneously with the execution and delivery of this
Agreement, Fifth Third shall deliver to PNC and Bank One, Fifth
Third’s original Term Loan A Note, endorsed payable to PNC
and Bank One, equally, without recourse, by a duly authorized
officer of Fifth Third.
4. Collateral . The Banks
acknowledge that all collateral is held pursuant to Security
Documents which name PNC, as Agent, as the secured party and that
PNC is holding such collateral as Agent for the Banks under the
Amended Credit Agreement. The Banks agree that to avoid the cost of
assigning the Security Documents, PNC will continue to hold such
collateral as Agent for the Banks under the Amended Credit
Agreement, but that the relationship between the Banks as to the
collateral shall be revised in the manner set forth below. From and
after the date of this Agreement, PNC and Bank One, equally, shall
have, as security for the Borrowers’ obligations under Term
Loan A, the first priority lien and security interest in all real
property and equipment which is collateral for the Loans under the
Amended Credit Agreement and a second priority lien and security
interest in all other collateral for the Loans under the Amended
Credit Agreement and Fifth Third will have, as security for the
Borrowers’ obligations under the Revolving Credit Loan, a
second priority lien and security interest in all real property and
equipment which is collateral for the Loans under the Amended
Credit Agreement and a first priority lien and security interest in
all other collateral for the Loans under the Amended Credit
Agreement. Upon the occurrence of an Event of Default under the
Amended Credit Agreement, PNC and Bank One shall share equally in
the proceeds of any sale or other disposition of all real property
and equipment collateral for the Loans under the Amended
2
Credit Agreement, until such time they are paid
in full all amounts due to them under Term Loan A. Any proceeds in
excess of the amount due to PNC and Bank One as provided in the
proceeding sentence shall be payable to Fifth Third, if necessary,
to pay amounts due to Fifth Third under the Revolving
Credi
