Exhibit 4.3
INTERCREDITOR AND COLLATERAL
AGENCY AGREEMENT
THIS
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT is dated as of May
20,
2005, by and among each of the banks listed
on the signature page hereof
(together with its successors and assigns,
other than the Company and its
subsidiaries and affiliates, collectively
the "Domestic Banks"), Fleet National
Bank, a Bank of America company, as
Administrative Agent for the Domestic Banks
(together with its successors and assigns,
the "Agent") and the holders of the
Senior Notes listed on the signature pages
hereof (together with their
respective successors and assigns, other
than the Company and its subsidiaries
and affiliates, the "Noteholders" and,
together with the Domestic Banks, the
"Lenders") and Fleet National Bank, a Bank
of America company, as Collateral
Agent on behalf of the Lenders (the
"Collateral Agent"). Capitalized terms used
herein have the respective meanings
ascribed thereto in Section 1.1 of this
Agreement.
PRELIMINARY STATEMENT
1.
American Biltrite Inc., a Delaware corporation (the "Company"),
K&M
Associates L.P., a Rhode Island limited
partnership ("K&M"), and American
Biltrite (Canada) Ltd, a corporation
governed by the Canada Business
Corporations Act ("Canadian Company"), the
Domestic Banks, certain other lenders
from time to time providing loans and
letters of credit to the Canadian Company
(the "Canadian Banks") and the Agent are
parties to that certain Amended and
Restated Credit Agreement (together with
any amendment, modification,
supplement, restatement or replacement
thereof, the "Credit Agreement"), dated
as of May 20, 2005, pursuant to which the
Domestic Banks are providing a credit
facility to the Company and K&M in an
amount up to $20,000,000.
2.
Pursuant to the terms and conditions of that certain Note Purchase
and
Private Shelf Agreement and Facility
Guarantee, dated October 14, 2003, as
amended, and as further amended and
restated pursuant to an Amended and Restated
Note Purchase and Facility Guarantee, dated
May 20, 2005 (together with any
other amendment, modification or
replacement thereof, the "Note Agreement"), the
Noteholders purchased from the Company its
7.91% Series A Senior Notes due
August 28, 2010, in the aggregate principal
amount of $20,000,000 (together with
any amendment, modification, supplement,
restatement or replacement thereof, the
"Senior Notes").
3. The
Subsidiary Guarantors have jointly and severally guaranteed to
the
Agent and the Domestic Banks, pursuant to
the terms of the Bank Guaranty
Agreement, the Bank Guaranteed
Obligations.
4. The
Subsidiary Guarantors have jointly and severally guaranteed to
the
Noteholders, pursuant to the terms of the
Note Agreement, the Noteholder
Guaranteed Obligations.
5. The
Company and the Subsidiary Guarantors are parties to that
certain
Security Agreement, dated as of October 14,
2003.
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6. The
Agent, the Domestic Banks and the Noteholders are parties to
that
certain Intercreditor and Collateral Agency
Agreement, dated as of October 14,
2003 (the "Existing Intercreditor
Agreement"), and in connection with the Credit
Agreement and the Note Agreement, the
parties wish to replace the Existing
Intercreditor Agreement with this
Agreement, in which the parties shall define
their rights and obligations with respect
to each other such that any payments
received by the Agent, the Domestic Banks
or any Noteholder, as the case may be,
through any Enforcement, payments by
K&M under the Credit Agreement after any
Sharing Event or from any Subsidiary
Guarantor on account of the Bank Guaranteed
Obligations or the Noteholder Guaranteed
Obligations, as the case may be, shall
be shared among the Lenders equally and
ratably in accordance with the
respective amounts of the Senior
Indebtedness then held by each of them, all as
set forth in this Agreement.
ARTICLE I
INTERPRETATION OF THIS AGREEMENT
Section
1.1. Defined Terms. As used in this Agreement, capitalized
terms
have the respective meanings specified
below or set forth in the Section of this
Agreement referred to immediately following
such term (such definitions, unless
otherwise expressly provided, to be equally
applicable to both the singular and
plural forms of the terms defined):
"Additional Lien" has the meaning set forth in Section 3.3 of
this
Agreement.
"Agent"
has the meaning set forth in the first paragraph of this
Agreement.
"Agreement" means this Intercreditor and Collateral Agency
Agreement, as
it may be amended, modified, supplemented
or restated from time to time.
"Bank
Guaranteed Obligations" means, collectively, all amounts payable
by
the Subsidiary Guarantors to the Agent and
the Domestic Banks pursuant to the
terms of the Bank Guaranty Agreement and
the Joinder Agreements.
"Bank
Guaranty Agreement" means the Guarantee Agreement, dated as of
October 14, 2003, executed by the
Subsidiary Guarantors in favor of the Agent
and the Domestic Banks (or any replacement,
modification or amendment thereof).
"Canadian
Banks" has the meaning set forth in the first paragraph of the
Preliminary Statement of this
Agreement.
"Canadian
Company" has the meaning set forth in the first paragraph of
the
Preliminary Statement of this
Agreement.
"Canadian
Security Agreement" means that Deed of Hypothec and Issue of
Mortgage Bonds executed by the Canadian
Company in favor of the Bank of America,
National Association, acting through its
Canada branch, as collateral agent for
the benefit of the Canadian Banks, as it
may be amended, modified or
supplemented from time to time in
accordance with its terms.
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"Collateral" means all property and assets, and interest in
property and
assets, upon or in which any Obligor has
granted a lien or security interest to
the Collateral Agent to secure the Senior
Indebtedness and all balances held by
the Collateral Agent or any Lender for the
account of any Obligor or any other
property held or owing by the Collateral
Agent or any Lender to or for the
credit or for the account of any Obligor
with respect to which the Collateral
Agent or any Lender has rights to setoff or
appropriate or a common law lien.
"Collateral Agent" has the meaning set forth in the first paragraph
of
this Agreement.
"Collateral Agent Expenses" means, without limitation, all costs
and
expenses incurred by the Collateral Agent
in connection with the performance of
its duties under this Agreement, including
the realization upon or protection of
the Collateral or enforcing or defending
any lien upon or security interest in
the Collateral or any other action taken in
accordance with the provisions of
this Agreement, expenses incurred for legal
counsel in connection with the
foregoing, and any other costs, expenses or
liabilities incurred by the
Collateral Agent for which the Collateral
Agent is entitled to be reimbursed or
indemnified by a Obligor pursuant to any
Collateral Document or the Bank
Guaranty Agreement or by the Lenders
pursuant to this Agreement.
"Collateral Agent Obligations" means all obligations of any Obligor
or any
Lender to pay, reimburse or indemnify the
Collateral Agent for any Collateral
Agent Expenses.
"Collateral Documents" means (i) the Security Agreement, (ii) the
Joinder
Agreements, (iii) any other agreement,
document or instrument executed and
delivered by the Company, K&M, or a
direct or indirect subsidiary of the Company
pursuant to the requirements of Sections
3.2 or 3.3 of the Security Agreement or
paragraph 5R of the Note Agreement after
the date hereof, (iv) any other
agreement, document or instrument executed
and delivered by any Obligor after
the date hereof under which such Obligor
has granted a lien upon or security
interest in any property or assets to the
Collateral Agent to secure all or any
part of the Senior Indebtedness and (v) all
financing statements, certificates,
documents and instruments relating thereto
or executed or provided in connection
therewith, each as amended, restated,
supplemented or otherwise modified from
time to time. For the avoidance of doubt,
the Canadian Security Agreement is not
a Collateral Document.
"Company"
has the meaning set forth in the Preliminary Statement of this
Agreement.
"Credit
Agreement" has the meaning set forth in the Preliminary
Statement
of this Agreement.
"Credit
Document" shall have the meaning set forth in the Credit
Agreement.
"Default"
has the meaning set forth in Section 3.6(a) of this Agreement.
"Default
Notice" has the meaning set forth in Section 3.6(a) of this
Agreement.
"Domestic
Banks" has the meaning set forth in the first paragraph of this
Agreement.
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"Enforcement" means (a) for one or more of the Agent or any Lender
to make
demand for payment of or accelerate the
time for payment prior to the scheduled
payment date of any Revolving Loan, any
Revolving Note or any Senior Note, (b)
for the Agent or any Lender to terminate in
accordance with the Credit Agreement
its commitment to make Revolving Loans or
issue Letters of Credit pursuant to
the Credit Agreement, (c) for one or more
of the Agent or any Lender to commence
the judicial enforcement of any rights or
remedies under or with respect to the
Credit Agreement, any Revolving Note, the
Note Agreement, any Senior Note or any
Senior Indebtedness, or to set off or
appropriate any balances held by it for
the account of any Obligor or any other
property at any time held or owing by it
to or for the credit or for the account of
any Obligor, (d) for the Agent or any
Domestic Bank to call for funding of a
Letter of Credit prior to its due date,
(e) for the Collateral Agent to commence
the judicial enforcement of any rights
or remedies under any Collateral Document
(other than an action solely for the
purpose of establishing or defending the
lien or security interest intended to
be created by any Collateral Document upon
or in any Collateral as against or
from claims of third parties on or in such
Collateral), to set off, freeze or
otherwise appropriate any balances held by
it for the account of any Obligor or
any other property at any time held or
owing by it to or for the credit or for
the account of any Obligor or to otherwise
take any action, including the
exercise of self-help, to realize upon the
Collateral, (f) the commencement by,
against or with respect to any Obligor of
any proceeding under any bankruptcy,
reorganization, compromise, arrangement,
insolvency, readjustment of debt,
dissolution or liquidation or similar law
or for the appointment or a receiver
for such Obligor or its assets, (g) for one
or more of the Agent or any Domestic
Bank to make a demand for payment under the
Bank Guaranty Agreement, (h) for any
Noteholder to make a demand for payment
under the Facility Guarantee (as defined
in the Note Agreement), and (i) the payment
by any Subsidiary Guarantor of any
Bank Guarantee Obligations or Noteholder
Guaranteed Obligations, as the case may
be.
"Events of
Default" means any event or condition the occurrence or
existence of which would permit or results
in (i) the acceleration of any of the
obligations of the Company under the Credit
Agreement, (ii) the suspension or
cancellation of all or part of the credit
facility referred to in the Credit
Agreement or (iii) the acceleration of any
of the obligations of the Company
under the Note Purchase Agreement.
"Fleet"
means Fleet National Bank, a Bank of America company.
"Guaranteed Obligations" means, collectively, the Bank
Guaranteed
Obligations and the Noteholder Guaranteed
Obligations.
"Indemnitees"
has the meaning set forth in Section 2.10 of this Agreement.
"Joinder
Agreement" shall mean those agreements between the Agent and
each
of K&M Legendary Services, Inc.,
AbItalia, Inc., American Biltrite Far East,
Inc. and Abimex, LLC, pursuant to which
these Subsidiaries of the Company shall
become Subsidiary Guarantors.
"K&M"
has the meaning set forth in the Preliminary Statement of this
Agreement.
"Lenders"
has the meaning set forth in the first paragraph of this
Agreement.
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"Letter of
Credit" means any "Domestic Letters of Credit", as defined in
the Credit Agreement as in effect on the
date hereof, issued for the account of
the Company or K&M (but not the
Canadian Company).
"Letter of
Credit Collateral Obligations" means, without duplication, (a)
all of the obligations of the Company and
K&M under Section 4.3 of the Credit
Agreement to deposit cash with the Agent or
any Domestic Bank with respect to
Outstanding Letters of Credit Exposure and
(b) all of the obligations of any
Guarantor to pay any amount described in
clause (a) of this definition under the
Bank Guaranty Agreement. For the avoidance
of doubt, obligations of the Canadian
Company under Section 4.3 of the Credit
Agreement shall not constitute Letter of
Credit Collateral Obligations.
"Note
Agreement" has the meaning set forth in the Preliminary Statement
of
this Agreement.
"Noteholder Guaranteed Obligations" means, collectively, all
amounts
payable by the Subsidiary Guarantors to the
Noteholders pursuant to the terms of
the Note Agreement.
"Noteholders" has the meaning specified in the first paragraph of
this
Agreement.
"Obligor"
means the Company, K&M, and each Subsidiary Guarantor. For
the
avoidance of doubt, the Canadian Company is
not an Obligor.
"Outstanding Letters of Credit Exposure" at any time, means the
undrawn
face amount of all outstanding Letters of
Credit at such time.
"Person"
means an individual, partnership, corporation (including a
business trust), limited liability company
or partnership, joint stock company,
trust unincorporated association, joint
venture, governmental agency or other
authority.
"Pro Rata
Expenses Share" with respect to any Lender, means the
percentage
set forth opposite such Lender's name
below:
Fleet
50%
Noteholders
50%
---
Total
100%
; subject to any permitted assignment
whereupon the assignee or transferee of
such Lender shall be deemed to acquire the
Pro Rata Expenses Share appropriate
to the Senior Indebtedness assigned or
transferred to it.
"Required
Holders" shall have the meaning set forth in the Note
Agreement.
"Required
Lenders" shall have the meaning set forth in the Credit
Agreement.
"Required
Senior Lenders" means Required Holders and Required Lenders.
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"Revolving
Loan" shall mean all "Domestic Revolving Loans", as defined in
the Credit Agreement as in effect on the
date hereof.
"Revolving
Loan and Reimbursement Obligations" means principal amount of
the Revolving Loans and the reimbursement
obligations due the Domestic Banks
with respect to Letters of Credit.
"Revolving
Notes" shall mean all "Revolving Notes", as defined in the
Credit Agreement as in effect on the date
hereof.
"Security
Agreement" means each Security Agreement executed by the
Company, K&M or a Subsidiary Guarantor
in favor of the Collateral Agent for the
benefit of the Lenders, as it may be
amended, modified or supplemented from time
to time in accordance with its terms.
"Senior
Indebtedness" means the Collateral Agent Obligations, the
Revolving Loan and Reimbursement
Obligations, the principal amount of the Senior
Notes, the Letter of Credit Collateral
Obligations and all of the other present
or future indebtedness, liabilities and
obligations of all and each of the
Obligors now or hereafter owed to any or
all of the Collateral Agent, the Agent
or the Lenders, evidenced by or arising
under, by virtue of or pursuant to any
Credit Document, the Note Agreement, any
Collateral Document or any document
executed in connection with the foregoing
or any Bank Guaranteed Obligation or
Note Guaranteed Obligation, whether such
indebtedness, liabilities and
obligations are direct or indirect, joint,
several or joint and several, or now
exist or hereafter arise, and all renewals
and extensions thereof, including,
without limitation, all interest on the
Revolving Notes and the Senior Notes and
any Yield-Maintenance Amount. The term
"Senior Indebtedness" shall include all
of the foregoing indebtedness, liabilities
and obligations whether or not
allowed as a claim in any bankruptcy,
insolvency, receivership or similar
proceeding.
"Senior
Notes" has the meaning set forth in the Preliminary Statement
of
this Agreement.
"Sharing Date"
means the first date on which a Sharing Event shall occur.
"Sharing
Event" means (a) an Enforcement, (b) the occurrence of any
Event
of Default under the Credit Agreement or
the Note Purchase Agreement and the
earlier of (i) actual knowledge of the
Collateral Agent of such Event of Default
or (ii) receipt of notice of such Event of
Default by the Collateral Agent or
(c) any refusal by the Agent or any Bank to
advance or continue any Revolving
Credit Loans or issue any Letter of Credit
requested by the Company or K&M
(irrespective of whether the conditions
precedent thereto specified in the
Credit Agreement have been satisfied) where
such Revolving Credit Loans or
issuance would not cause the limitations
set forth in Section 2.1.2 of the
Credit Agreement to be exceeded.
"Special
Cash Collateral Account" has the meaning set forth in Section
3.1(c) of this Agreement.
"Subsidiary Guarantors" means each domestic Subsidiary of the
Company
(other than Tullahoma Properties, L.L.C.
and, solely with respect to the Credit
Agreement, K&M) as of the date of this
Agreement and each other Subsidiary of
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the Company that may hereafter become (or
should have become, in accordance with
the Company's contractual arrangements with
the Agent and the Banks or the
Noteholders) a guarantor of the Senior
Indebtedness. For the avoidance of doubt,
the Canadian Company is not a Subsidiary
Guarantor.
"Subsidiary" means, as to any Person, any corporation, association
or
other business entity in which such Person
or one or more of its Subsidiaries or
such Person and one or more of its
Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group)
ordinarily, in the absence of
contingencies, to elect a majority of the
directors (or Persons performing
similar functions) of such entity, and any
partnership or joint venture if more
than a 50% interest in the profits or
capital thereof is owned by such Person or
one or more of its Subsidiaries or such
Person and one or more of its
Subsidiaries (unless such partnership can
and does ordinarily take major
business actions without the prior approval
of such Person or one or more of its
Subsidiaries). Unless the context otherwise
clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary
of the Company.
"Third
Party Guarantee" has the meaning set forth in Section 3.3 of
this
Agreement.
"Transferee" has the meaning set forth in Section 5.7 of this
Agreement
"Yield-Maintenance Amount" shall mean the "Yield-Maintenance
Amount", as
defined in the Note Agreement.
Section
1.2. Certain Other Terms. The words "hereof," "herein" and
"hereunder" and words of similar import
when used in this Agreement shall refer
to this Agreement as a whole and not in any
particular provision of this
Agreement. Section references are to this
Agreement unless otherwise specified.
All terms defined in this Agreement in the
singular shall have comparable
meanings when used in the plural and vice
versa, unless otherwise specified.
ARTICLE II
APPOINTMENT OF FLEET AS COLLATERAL AGENT
FOR THE LENDERS AND THE AGENT
Section
2.1. Appointment of Collateral Agent. Subject in all respects
to
the terms and provisions of this Agreement,
each of the Lenders and the Agent
hereby appoint Fleet to act as agent for
the benefit of each of the Lenders and
the Agent with respect to the liens upon
and the security interests in the
Collateral and the rights and remedies
granted under and pursuant to the
Collateral Documents, and Fleet hereby
accepts such appointment and agrees to
act as such agent. The appointment of the
Collateral Agent pursuant to this
Agreement shall be effective with respect
to all financing statements filed in
any filing office with respect to any
Obligor, if any, prior to the date of this
Agreement on and as of the date filed. The
agency created hereby shall in no way
impair or affect any of the rights and
powers of, or impart any duties or
obligations upon, Fleet in its individual
capacity as a Lender or in its
capacity as Agent. To the extent legally
necessary to enable the Collateral
Agent to enforce or otherwise foreclose and
realize upon any of the liens or
security interests in the Collateral in any
legal proceeding which the
Collateral Agent either commences or joins
as a party in accordance with the
terms hereof, the Agent and each of the
Lenders agree to join as a party in such
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proceeding and take such action therein
concurrently to enforce and obtain a
judgment for the payment of the Senior
Indebtedness held by it.
Section
2.2. Duties of Collateral Agent. Subject to the Collateral
Agent
having been directed to take such action in
accordance with the terms of this
Agreement, the Agent and each Lender hereby
irrevocably authorizes the
Collateral Agent to take such action on its
behalf under the provisions of the
Collateral Documents and any other
instruments, documents and agreements
referred to therein and to exercise such
powers thereunder as are specifically
delegated to the Collateral Agent by the
terms thereof and such other powers as
are reasonably incidental thereto. Subject
to the provisions of Section 4.3
hereof, the Collateral Agent is hereby
irrevocably authorized to take all
actions on behalf of the Agent and the
Lenders to enforce the rights and
remedies of the Collateral Agent, the Agent
and the Lenders provided for in the
Collateral Documents or by applicable law
with respect to the liens upon and
security interests in the Collateral
granted to secure the Senior Indebtedness;
provided, however, that, notwithstanding
any provision to the contrary in any
Collateral Documents, (i) except as
otherwise provided herein, the Collateral
Agent shall act solely at and in accordance
with the written direction of the
Required Senior Lenders, (ii) the
Collateral Agent shall not, without the
written consent of all of the Lenders,
release, reconvey or terminate by
affirmative action or consent to any lien
upon or security interest in any
Collateral granted under any Collateral
Documents (except (x) upon dispositions
of Collateral by an Obligor as permitted in
accordance with the terms of the
Credit Agreement and the Note Agreement
prior to the occurrence of an Event of
Default, (y) upon disposition of such
Collateral after an Event of Default
pursuant to direction given under clause
(i) hereof and (z) with respect to
property in or on which, by the terms of
the Credit Agreement and the Note
Agreement, a security interest or lien is
not required to be granted to the
Collateral Agent) and (iii) the Collateral
Agent shall not accept any Senior
Indebtedness in whole or partial
consideration for the disposition of any
Collateral without the written consent of
all of the Lenders. The Collateral
Agent agrees to make such demands and give
such notices under the Collateral
Documents as may be requested by, and to
take such action to enforce the
Collateral Documents and to foreclose or
otherwise realize upon, collect and
dispose of the Collateral or any portion
thereof as may be directed by, the
Required Senior Lenders; provided, however,
that the Collateral Agent shall not
be required to take any action that is
contrary to law or the terms of the
Collateral Documents or this Agreement.
Once a direction to take any action has
been given by the Required Senior Lenders
to the Collateral Agent, and subject
to any other directions which may be given
from time to time by the Required
Senior Lenders, decisions regarding the
manner in which any such action is to be
implemented and conducted (with the
exception of any decision to settle,
compromise or dismiss any legal proceeding,
with or without prejudice, which
shall require the written direction of the
Required Senior Lenders) shall be
made by the Collateral Agent, with the
assistance and upon the advice of its
counsel. Notwithstanding the provisions of
the preceding sentence, any and all
decisions to settle, compromise or dismiss
any legal proceeding, with or without
prejudice, which implements, approves or
results in or has the effect of causing
any release, change or occurrence, where
such release, change or occurrence
otherwise would require unanimous approval
of all of the Lenders pursuant to the
terms of this Agreement, also shall require
the unanimous approval of all of the
Lenders. The Collateral Agent shall be
entitled to assume that no Event of
Default or Enforcement exists until either
notice has been given to the
Collateral Agent of an Event of Default or
Enforcement by an Obligor or a
Lender, or the Collateral Agent shall have
actual knowledge that an Event of
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Default or Enforcement has occurred (and
for this purpose the actual knowledge
of the Collateral Agent which is also a
Lender or the Agent shall include any
actual knowledge which the Collateral Agent
may have in its capacity as a Lender
or the Agent).
Section
2.3. Requesting Instructions. The Collateral Agent may at any
time
request directions from the Lenders as to
any course of action or other matter
relating to the performance of its duties
under this Agreement and the
Collateral Documents and the Lenders shall
respond to such request in a
reasonably prompt manner.
Section
2.4. Emergency Actions. If the Collateral Agent has asked the
Lenders for instructions following the
receipt of any notice of an Event of
Default and if the Required Senior Lenders
have not responded to such request
within ten business days, the Collateral
Agent shall be authorized to take such
actions with regard to such Event of
Default which the Collateral Agent, in good
faith, believes to be reasonably required
to protect the Collateral from damage
or destruction; provided, however, that (i)
prior to the expiration of such ten
day period the Collateral Agent shall be
authorized to take such actions with
regard to such Event of Default which the
Collateral Agent, in good faith,
believes to be reasonably required to
prevent irreparable damage to the
Collateral which might result from a delay
and (ii) once instructions have been
received from the Required Senior Lenders,
the actions of the Collateral Agent
shall be governed thereby and the
Collateral Agent shall not take any further
action which would be contrary thereto.
Section
2.5. Document Amendments. An amendment, supplement,
modification,
restatement or waiver of any provision of
any Collateral Document, any consent
to any departure by any Obligor therefrom,
or the execution or acceptance by the
Collateral Agent of any Collateral Document
not in effect on the date hereof
shall be effective if and only if,
consented to in writing by the Required
Senior Lenders; provided, however, that,
(i) no such amendment, supplement,
modification, restatement, waiver, consent
or such Collateral Document not in
effect on the date hereof which imposes any
additional responsibilities upon the
Collateral Agent shall be effective without
the written consent of the
Collateral Agent and (ii) no such
amendment, supplement, modification, waiver or
consent shall release, reconvey or
terminate the security interest in or lien on
any Collateral from the lien or security
interest created by any Collateral
Document not subject to the exception in
Section 2.2(ii) hereof or narrow the
scope of the property or assets in which a
lien or security interest is granted
pursuant to any Collateral Document without
the written consent of all Lenders.
Section
2.6. Administrative Actions. The Collateral Agent shall have
the
right, but not the obligation, to take such
actions hereunder and under the
Collateral Documents, not inconsistent with
the instructions of the Required
Senior Lenders or the terms of the
Collateral Documents and this Agreement, as
the Collateral Agent in good faith deems
necessary or appropriate to perfect or
continue the perfection of the liens on the
Collateral for the benefit of the
Lenders.
Section
2.7. Collateral Agent Action Through Others. The Collateral
Agent
may perform any of its duties under this
Agreement and the Collateral Documents
by or through attorneys (which attorneys
may be the same attorneys who represent
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the Agent or any Lender), agents or other
Persons reasonably deemed appropriate
by the Collateral Agent. The Collateral
Agent shall not be liable to the Lenders
for the misconduct of any such attorneys,
agents or other Persons selected by
the Collateral Agent with reasonable care.
In addition, the Collateral Agent may
act in good faith reliance upon the opinion
or advice of attorneys selected by
the Collateral Agent. In all cases the
Collateral Agent may pay customary and
reasonable compensation to all such
attorneys, agents or other Persons as may be
employed in connection with the performance
of its duties under this Agreement
and the Collateral Documents and the same
shall constitute Collateral Agent
Expenses for purposes hereof.
Section
2.8. Resignation and Removal of Collateral Agent.
(a) The
Collateral Agent (i) may resign at any time upon notice to the
Lenders and (ii) may be removed at any time
upon the written request of the
Required Senior Lenders sent to the
Collateral Agent
