EXHIBIT 10.4
EXECUTION VERSION
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
This INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, dated as of April
11, 2004, is entered into among CITICORP NORTH AMERICA, INC. ("Citigroup"), as
administrative agent for the First Lien Lenders (in such capacity, the "Senior
Agent"), CITIGROUP, as administrative agent for the Term C Lenders (in such
capacity, the "Junior Agent"), CITIGROUP, as collateral agent for the Secured
Parties (in such capacity, the "Collateral Agent"), HLI OPERATING COMPANY,
INC. (the "Borrower"), XXXXX LEMMERZ INTERNATIONAL, INC. (the "Company") and
each other Loan Party.
W I T N E S S E T H :
WHEREAS, the Borrower, the Company, the Lenders, the Issuers, the
Senior Agent, the Junior Agent and the Collateral Agent have entered into the
Amended and Restated Credit Agreement, dated as of the date hereof (as such
agreement may be amended, restated, supplemented, renewed or otherwise
modified from time to time, together with any other agreements pursuant to
which any of the Indebtedness, commitments, obligations, costs, expenses,
fees, reimbursements, indemnities or other obligations payable or owing
thereunder may be refinanced, restructured, renewed, extended, increased,
refunded or replaced, the "Credit Agreement"); and
WHEREAS, it is a condition to the effectiveness of the Credit
Agreement that the parties hereto execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, the parties hereto hereby agree as follows:
Section 1. Definitions
1.1 Definitions
(a) Unless otherwise defined herein, terms are used herein as defined
in the Credit Agreement. In addition, as used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Agent" shall mean each of the Senior Agent, the Junior Agent and the
Collateral Agent.
"Agreement" shall mean this Intercreditor Agreement, as amended,
restated, supplemented or otherwise modified from time to time in accordance
with the terms hereof.
"Bankruptcy Code" shall mean title 11, United States Code.
"Bankruptcy Law" shall mean the Bankruptcy Code, or any similar
federal, state or foreign Requirement of Law for the relief of debtors or any
arrangement, reorganization, insolvency, moratorium, assignment for the
benefit of creditors, any other marshalling of the assets and liabilities of
the Company, the Borrower or any other Loan Party or any similar law relating
to or affecting the enforcement of creditors' rights generally.
"Collateral Agent" shall include, in addition to the Collateral Agent
referred to in the recitals hereto, any successors and assigns to the
Collateral Agent permitted hereunder.
"Credit Agreement" shall have the meaning set forth in the recitals
to this Agreement.
"Insolvency or Liquidation Proceeding" shall mean, collectively, (a)
any voluntary or involuntary case or proceeding under the Bankruptcy Law with
respect to the Company, the Borrower or any other Loan Party, (b) any other
voluntary or involuntary insolvency, reorganization or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding with respect to the Company, the Borrower or any other Loan
Party or with respect to any of their respective assets, (c) any liquidation,
dissolution, reorganization or winding up of the Company, the Borrower or any
Loan Party, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, and (d) any assignment for the benefit of creditors
or any other marshaling of assets and liabilities of the Company, the Borrower
or any other Loan Party.
"Junior Agent" shall include, in addition to the Junior Agent
referred to in the recitals hereto, (a) any successors and assigns thereto or
any acting Second Lien Agent, in each case, as permitted under the Credit
Agreement, and (b) if there is no acting Second Lien Agent, the Requisite Term
C Lenders.
"Junior Claims" shall mean all Secured Obligations arising under, or
in respect of, the Term C Facility and all extensions of credit under any
financing, or any arrangement for use of cash collateral, under any Bankruptcy
Law, in each case, extended or provided to any Loan Party by the Term C
Lenders.
"Junior Documents" shall mean, collectively, with respect to any
Junior Claim, any provision pertaining to such Junior Claim in any Loan
Document or any other document, instrument or certificate evidencing or
delivered in connection with such Junior Claim.
"Junior Liens" shall mean all Liens securing the Junior Claims.
"Junior Secured Parties" shall mean the Second Lien Agent, the Term C
Lenders and each other holder of any Junior Claim.
"Notice of Actionable Default" shall mean a written certification
identified as a "Notice of Actionable Default," substantially in the form
attached hereto as Exhibit A or such other form reasonably satisfactory to the
Collateral Agent, from any Administrative Agent addressed to the Collateral
Agent certifying that an Event of Default has occurred and is continuing under
the Credit Agreement and that any required notice thereof has been given and
any grace periods provided for therein have expired.
"pay in full," "paid in full" or "payment in full" shall mean with
respect to any Secured Claims, the payment in full in cash of the principal
of, accrued (but unpaid) interest and premium, if any, on all such Secured
Claims and, with respect to letters of credit outstanding thereunder, delivery
of cash collateral or backstop letters of credit in respect thereof in
compliance with the relevant Collateral Documents, in each case, after or
concurrently with termination of all Commitments thereunder and payment in
full in cash of any other such Secured Claims that are due and payable at or
prior to the time such principal and interest are paid.
"Secured Claims" shall mean, collectively, the Senior Claims and the
Junior Claims.
"Senior Agent" shall include, in addition to the Senior Agent
referred to in the recitals hereto, (a) any successors and assigns thereto or
any acting First Lien Agent, in each case, as permitted under the Credit
Agreement, and (b) if there is no acting First Lien Agent, the Requisite First
Lien Lenders.
"Senior Claims" shall mean all Secured Obligations arising under, or
in respect of, the Revolving Credit Facility or the Term B Facility and all
extensions of credit under any financing, or any arrangement for use of cash
collateral, under any Bankruptcy Law, in each case, extended or provided to
any Loan Party by the First Lien Lenders. "Senior Claims" shall include all
interest accrued or accruing (or which would, absent the commencement of an
Insolvency or Liquidation Proceeding, accrue) after the commencement of an
Insolvency or Liquidation Proceeding in accordance with and at the rate
specified in the Loan Documents whether or not the claim for such interest is
allowed as a claim in such Insolvency or Liquidation Proceeding. To the extent
any payment with respect to the Senior Claims (whether by or on behalf of any
Loan Party, as proceeds of security, enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential in any respect, set
aside or required to be paid to a debtor in possession, trustee, receiver or
similar Person, then the obligation or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
"Senior Documents" shall mean, collectively, with respect to any
Senior Claim, any provision pertaining to such Senior Claim in any Loan
Document or any other document, instrument or certificate evidencing or
delivered in connection with such Senior Claim.
"Senior Liens" shall mean all Liens securing the Senior Claims.
"Senior Secured Parties" shall mean the First Lien Agent, the First
Lien Lenders and each other holder of any Senior Claim.
"Uniform Commercial Code" or "UCC" shall mean the Uniform Commercial
Code of the applicable jurisdiction, as amended.
1.2 Certain Other Terms
(a) The terms "herein," "hereof," "hereto" and "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause in this Agreement.
(b) References herein to an Annex, Schedule, Article, Section,
subsection or clause, unless specifically stated otherwise, refer to the
appropriate Annex or Schedule to, or Article, Section, subsection or clause in
this Agreement.
(c) Where the context requires, provisions relating to any
Collateral, when used in relation to any Loan Party, shall refer to such Loan
Party's Collateral or any relevant part thereof.
(d) Any reference in this Agreement to a Loan Document shall include
all appendices, exhibits and schedules thereto, and, unless specifically
stated otherwise, all amendments, restatements, supplements or other
modifications thereto, and as the same may be in effect at any time such
reference becomes operative.
(e) The term "including" means "including, without limitation" except
when used in the computation of time periods.
(f) References in this Agreement to any statute shall be to such
statute as amended or modified and in effect from time to time.
Section 2. Collateral Agent
2.1 Appointment.
(a) Each Senior Secured Party hereby appoints Citigroup as the
Collateral Agent hereunder and authorizes the Collateral Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
and the other Collateral Documents as are delegated to the Collateral Agent
under such documents and to exercise such powers as are reasonably incidental
thereto. Without limiting the foregoing, each Senior Secured Party hereby
authorizes the Collateral Agent to execute and deliver, and to perform its
obligations under, each of the Collateral Documents to which the Collateral
Agent is a party, to exercise all rights, powers and remedies that the
Collateral Agent may have under such documents and to act as agent for the
Senior Secured Parties under such Collateral Documents.
(b) Each Junior Secured Party hereby appoints Citigroup as the
Collateral Agent hereunder and authorizes the Collateral Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
and the other Collateral Documents as are delegated to the Collateral Agent
under such documents and to exercise such powers as are reasonably incidental
thereto. Without limiting the foregoing, each Junior Secured Party hereby
authorizes the Collateral Agent to execute and deliver, and to perform its
obligations under, each of the Collateral Documents to which the Collateral
Agent is a party, to exercise all rights, powers and remedies that the
Collateral Agent may have under such documents and to act as agent for the
Junior Secured Parties under such Collateral Documents.
(c) Each Secured Party hereby appoints Citigroup as the Collateral
Agent hereunder and authorizes the Collateral Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement and the
other Collateral Documents as are delegated to the Collateral Agent under such
documents and to exercise such powers as are reasonably incidental thereto.
Without limiting the foregoing, each Secured Party hereby authorizes the
Collateral Agent to execute and deliver, and to perform its obligations under,
each of the Collateral Documents to which the Collateral Agent is a party, to
exercise all rights, powers and remedies that the Collateral Agent may have
under such documents and to act as agent for the Secured Parties under such
Collateral Documents.
2.2 Actions; Direction of Administrative Agents.
(a) Except as set forth in Section 2.2(b), the Collateral Agent shall
take, or refrain from taking, any action as directed in writing (i) by the
applicable Administrative Agent as expressly designated in the Credit
Agreement or any other Loan Document with respect to such action, (ii)
collectively by the Administrative Agents or (iii) in the absence of such
events, (A) until the payment in full of the Senior Claims, by the Senior
Agent and (B) thereafter, the Junior Agent.
(b) From and after the receipt of any Notice of Actionable Default
and prior to the withdrawal of all pending Notices of Actionable Default, the
Collateral Agent shall take, or refrain from taking any action, as directed in
writing (i) until the payment in full of the Senior Claims, by the Senior
Agent and (ii) thereafter, the Junior Agent. Each Administrative Agent, in the
event all of the Events of Default giving rise to any Notice of Actionable
Default issued by such Administrative Agent has been cured or waived or
otherwise has ceased to exist pursuant to the Credit Agreement, shall withdraw
such Notice of Actionable Default by written notice to the Collateral Agent.
Notwithstanding the foregoing, until the payment in full of the Senior Claims
and except for any Notice of Actionable Default issued by the Junior Agent
under Section 5.2 (Second Lien Financial Covenants), the Junior Agent shall
not issue any Notice of Actionable Default without the consent of the Senior
Agent, and the Senior Agent may, and upon instruction from the Requisite
Lenders shall, withdraw any Notice of Actionable Default previously issued by
either Administrative Agent.
(c) Each Administrative Agent shall promptly send to the other
Administrative Agent a copy of any written directions given by such
Administrative Agent pursuant to this Section 2.2; provided, however, that the
failure to comply with this Section 2.2(c) shall not impair any of the rights,
powers and remedies of such Administrative Agent or the Collateral Agent under
any Collateral Document.
(d) Notwithstanding anything to the contrary provided herein or in
the Collateral Documents, the Collateral Agent shall not be obligated to take,
or refrain from taking, any action (i) to the extent the Collateral Agent has
received a written advice from its counsel that such action is in conflict
with any applicable law, Collateral Document or order of any Governmental
Authority or (ii) with respect to which the Collateral Agent, in its
reasonable judgment, has not received adequate security or indemnity hereunder
or under the Collateral Documents.
(e) Nothing in this Section 2.2 shall impair the right of the
Collateral Agent in its discretion to take or omit to take any action which is
deemed proper by the Collateral Agent under the Collateral Documents and which
it believes in good faith is not inconsistent with any direction of the
applicable Administrative Agent delivered pursuant to this Section 2.2;
provided, however, the Collateral Agent shall not be under any obligation to
take any discretionary action under the provisions of this Agreement or any
other Collateral Document unless so directed by the applicable Administrative
Agent.
2.3 Limitation on Duties.
(a) The Collateral Agent shall be obliged to perform only such duties
as are specifically set forth in this Agreement or any other Collateral
Document, and no implied covenants or obligations shall be read into any
Collateral Document against the Collateral Agent. The Collateral Agent shall,
upon receipt of any written direction pursuant to Section 2.2, exercise the
rights and powers vested in it by any Collateral Document with respect to such
direction, and the Collateral Agent shall not be liable with respect to any
action taken or omitted in accordance with such direction. If the Collateral
Agent shall seek directions from any Administrative Agent or the Lenders with
respect to any action under any Collateral Document, the Collateral Agent
shall not be required to take, or refrain from taking, such action until it
shall have received such direction.
(b) The Collateral Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession
shall be to deal with it in the same manner as with similar property for its
own account. The powers conferred on the Collateral Agent hereunder and under
the Collateral Documents are solely to protect the Collateral Agent's interest
in the Collateral (for itself and for the benefit of the Secured Parties) and,
except as expressly set forth herein, shall not impose any duty upon the
Collateral Agent to exercise any such powers. The Collateral Agent shall be
accountable only for amounts that it actually receives as a result of the
exercise of such powers at the direction of the applicable Administrative
Agent, and neither the Collateral Agent nor any of its officers, directors,
employees or agents shall be responsible to any Secured Party or any Loan
Party for any act or failure to act hereunder, except for its own gross
negligence or willful misconduct.
2.4 Resignation and Removal.
(a) The Collateral Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower. The Collateral Agent may be
removed at any time by the Administrative Agents, acting jointly, or the
Requisite Lenders by giving written notice thereof to the Collateral Agent and
the Borrower. Upon any such resignation or removal, the Administrative Agents,
acting jointly, or the Requisite Lenders shall have the right to appoint a
successor Collateral Agent. If no successor Collateral Agent shall have been
so appointed, and shall have accepted such appointment, within 30 days
following the notice of resignation or removal, then the retiring Collateral
Agent may, on behalf of the Secured Parties, appoint a successor Collateral
Agent. In either case, such appointment shall be subject to the prior written
approval of the Borrower (which approval may not be unreasonably withheld or
delayed and shall not be required upon the occurrence and during the
continuance of an Event of Default).
(b) Upon the acceptance of any appointment as the Collateral Agent by
a successor Collateral Agent, such successor Collateral Agent shall succeed
to, and become vested with, all the rights, powers, privileges and duties of
the retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from its duties and obligations under this Agreement, the Credit
Agreement and the Collateral Documents. Promptly after any retiring Collateral
Agent's resignation or removal hereunder as Collateral Agent, the retiring
Collateral Agent shall take such action as may be reasonably necessary to
assign to the successor Collateral Agent its rights as Collateral Agent under
the Collateral Documents and to protect and maintain the Liens held by the
Collateral Agent for the benefit of the Secured Parties (including delivery of
any Collateral in its possession to the successor Collateral Agent). After
such resignation, the retiring Collateral Agent shall continue to have the
benefit of Section 8 as to any actions taken or omitted to be taken by it
while it was Collateral Agent under this Agreement, the Credit Agreement and
the Collateral Documents.
(c) If no Person has accepted appointment as a successor Collateral
Agent within 30 days following the notice of resignation or removal, the
retiring Collateral Agent's resignation or removal shall nevertheless
thereupon become effective, and the Administrative Agents, jointly, shall
assume and perform all of the duties of the retiring Collateral Agent
hereunder until such time, if any, as the Administrative Agents or the
Requisite Lenders shall appoint a successor Collateral Agent as provided for
above.
Section 3. Priority of Liens
3.1 Lien Subordination. Notwithstanding the date, manner or order of
grant, attachment or perfection of any Junior Lien in respect of any
Collateral or of any Senior Lien in respect of any Collateral and
notwithstanding any provision of the UCC, any applicable law, any Collateral
Document, any alleged or actual defect or deficiency in any of the foregoing
or any other circumstance whatsoever, the Junior Agent, on behalf of each
Junior Secured Party, in respect of such Collateral hereby agrees that:
(a) any Senior Lien in respect of such Collateral, regardless of how
acquired, whether by grant, statute, operation of law, subrogation or
otherwise, shall be and shall remain senior and prior to any Junior Lien in
respect of such Collateral (whether or not such Senior Lien is subordinated to
any Lien securing any other obligation); and
(b) any Junior Lien in respect of such Collateral, regardless of how
acquired, whether by grant, statute, operation of law, subrogation or
otherwise, shall be junior and subordinate in all respects to any Senior Lien
in respect of such Collateral.
3.2 Prohibition on Contesting Liens. In respect of any Collateral,
the Junior Agent, on behalf of each Junior Secured Party, in respect of such
Collateral agrees that it shall not, and hereby waives any right to:
(a) contest, or support any other Person in contesting, in any
proceeding (including any Insolvency or Liquidation Proceeding), the priority,
validity or enforceability of any Senior Lien on such Collateral; or
(b) demand, request, plead or otherwise assert or claim the benefit
of any marshalling, appraisal, valuation or similar right which it may have in
respect of such Collateral or the Senior Liens on such Collateral, except to
the extent that such rights are expressly granted in this Agreement.
3.3 New Liens.
(a) The parties hereto agree that, prior to the payment in full of
the Secured Claims, any Lien on any asset of any Loan Party securing any
Secured Claim (and which asset is not also subject to a Lien securing all of
the Secured Claims in accordance with the priorities set forth herein) shall
immediately be released upon demand by any Agent or assigned to the Collateral
Agent on behalf of the Secured Parties, subject to the priorities set forth in
Section 3.1, and, at all times prior to such release or assignment, the
Secured Party to whom such Lien was granted shall be acting as a sub-agent of
the Collateral Agent for the sole purpose of perfecting the Lien on such
asset.
(b) Each Loan Party hereby agrees not to grant, or to permit any of
its Subsidiaries to grant, except as expressly permitted by the Credit
Agreement, any Lien on any of its respective assets securing the Senior Claims
or the Junior Claims, as the case may be, to any Person other than the
Collateral Agent on behalf of the Secured Parties, subject to the priorities
set forth in Section 3.1.
3.4 Separate Liens. Each of the parties hereto acknowledges and
agrees that (i) the grants of Liens pursuant to the Collateral Documents
constitute separate and distinct grants of Liens and (ii) because of, among
other things, their differing rights in the Collateral, the Junior Claims in
respect of any Collateral are fundamentally different from the Senior Claims
in respect of such Collateral, and the Junior Claims and Senior Claims in
respect of any Collateral must be separately classified in any Insolvency or
Liquidation Proceeding. To further effectuate the intent of the parties as
provided in the immediately preceding sentence, if it is held that, in respect
of any Collateral, the Junior Claims and the Senior Claims in respect of such
Collateral constitute only one secured claim (rather than separate classes of
senior and junior secured claims), then the Junior Secured Parties hereby
acknowledge and agree that all distributions shall be made as if there were
separate classes of senior and junior secured claims against the Loan Parties
in respect of any Collateral (with the effect that, to the extent that the
aggregate value of the Collateral is sufficient (for this purpose ignoring all
claims held by the Junior Secured Parties), the Senior Secured Parties shall
be entitled to receive, in addition to amounts distributed to them in respect
of principal, pre-petition interest and other claims, all amounts owing in
respect of post-petition interest before any distribution is made in respect
of the claims held by the Junior Secured Parties with respect to the
Collateral, with the Junior Secured Parties hereby acknowledging and agreeing
to turn over to the Senior Secured Parties amounts otherwise received or
receivable by them to the extent necessary to effectuate the intent of this
sentence, even if such turnover has the effect of reducing the claim or
recovery of the Junior Secured Parties).
Section 4. Exercise of Remedies
4.1 Remedies.
(a) Prior to the payment in full of the Senior Claims, in respect of
any Collateral, whether or not any Insolvency or Liquidation Proceeding has
been commenced by or against any Loan Party:
(i) no Junior Secured Party shall (or direct the Collateral
Agent to) (A) exercise or seek to exercise any rights or remedies
with respect to such Collateral, (B) institute any action or
proceeding with respect to such rights or remedies, including any
action of foreclosure, contest or protest, (C) object to any
foreclosure proceeding or action brought by Collateral Agent or any
Senior Secured Party or any other exercise of any rights and remedies
relating to such Collateral under the Collateral Documents or
otherwise, or (D) object to the forbearance by the Senior Secured
Parties from bringing or pursuing any foreclosure proceeding or
action or any other exercise of any rights or remedies relating to
such Collateral; and
(ii) the Senior Agent, on behalf of the Senior Secured Parties,
shall have the exclusive right to (and the exclusive right to direct
the Collateral Agent to) enforce rights, exercise remedies and make
determinations regarding release, disposition (including under
ss.363(f) of the Bankruptcy Code) or restrictions with respect to
such Collateral without any consultation with, or the consent of, any
Junior Secured Party.
(b) In exercising rights and remedies with respect to any Collateral,
the Senior Agent, on behalf of the Senior Secured Parties, may enforce (and
direct the Collateral Agent to enforce) the provisions of the Senior Documents
and exercise remedies thereunder, all in such order and in such manner as they
may determine in the exercise of their sole discretion. Such exercise and
enforcement shall include, without limitation, the rights of an agent
appointed by them to sell or otherwise dispose of such Collateral upon
foreclosure, to incur expenses in connection with such sale or disposition,
and to exercise all the rights and remedies of a secured lender under the UCC
of any applicable jurisdiction and of a secured creditor under any Bankruptcy
Law.
(c) The Junior Agent, on behalf of each Junior Secured Party, agrees
that, prior to the payment in full of the Senior Claims, it will not take or
receive any Collateral or any proceeds of such Collateral in connection with
the exercise of any right or remedy (including setoff) with respect to such
Collateral. Without limiting the generality of the foregoing, prior to the
payment in full of the Senior Claims, the sole right of the Junior Agent and
the Junior Secured Parties with respect to any Collateral shall be the right
to receive a share of the proceeds thereof pursuant to Section 5.1.
(d) The Junior Agent, on behalf of each Junior Secured Party, (i)
agrees that neither it nor any Junior Secured Party will oppose or object to
or take any other action that would hinder any exercise of remedies undertaken
by any Senior Secured Party in respect of any Collateral under the Collateral
Documents, including any sale, lease, exchange, transfer or other disposition
of such Collateral, whether by foreclosure, under ss.363 of the Bankruptcy
Code or otherwise, and (ii) hereby waives any and all rights it or any Junior
Secured Party may have as a junior creditor or otherwise to object to the
manner in which any Senior Secured Party may seek to enforce or collect the
Senior Claims or the Liens granted in such Collateral.
4.2 Exercise of Remedies as Unsecured Creditors. Notwithstanding
anything to the contrary in this Agreement, each Junior Secured Party may
exercise its rights and remedies as an unsecured creditor against the Loan
Parties in accordance with the terms of the Junior Documents and applicable
law. In the event any Junior Secured Party becomes a judgment lien creditor in
respect of any Collateral as a result of its enforcement of its rights as an
unsecured creditor, such judgment lien shall be subordinated to any Senior
Lien on such Collateral on the same basis and to the same extent as the other
Liens on such Collateral securing the Junior Claims are subordinated to those
securing the Senior Claims under this Agreement. Nothing in this Agreement
modifies any rights or remedies which any Senior Secured Party in respect of
any Collateral may have with respect to such Collateral.
Section 5. Application of Payments; Subrogation
5.1 Proceeds of Collateral. From and after the receipt by the
Collateral Agent of any Notice of Actionable Default and prior to the
withdrawal of all pending Notices of Actionable Default, proceeds of any
Collateral received by any party hereto shall be applied to the Secured Claims
as follows:
(a) first, to pay interest on and then principal of any portion of
the Senior Claims that the Senior Agent may have advanced on behalf of any
Senior Secured Party for which the Senior Agent has not then been reimbursed
by such Senior Secured Party or the Loan Parties;
(b) second, to pay Secured Claims in respect of any expense
reimbursements or indemnities then due to the Senior Agent and the Collateral
Agent;
(c) third, to pay Secured Claims in respect of any expense
reimbursements or indemnities then due to the other Senior Secured Parties;
(d) fourth, to pay Secured Claims in respect of any fees then due to
the Senior Agent and the Collateral Agent;
(e) fifth, to pay Secured Claims in respect of any fees then due to
the other Senior Secured Parties;
(f) sixth, to pay interest then due and payable in respect of all
Senior Claims;
(g) seventh, to pay or prepay principal payments for all Senior
Claims (and, when applicable, to provide cash collateral for letters of credit
or Interest Rate Contracts constituting Senior Claims);
(h) eighth, to pay all other Senior Claims;
(i) ninth, to pay interest on and then principal of any portion of
the Junior Claims that the Junior Agent may have advanced on behalf of any
Junior Secured Party for which the Junior Agent has not then been reimbursed
by such Junior Secured Party or the Loan Parties;
(j) tenth, to pay Secured Claims in respect of any expense
reimbursements or indemnities then due to the Junior Agent;
(k) eleventh, to pay Secured Claims in respect of any expense
reimbursements or indemnities then due to the other Junior Secured Parties;
(l) twelfth, to pay Secured Claims in respect of any fees then due to
the Junior Agent;
(m) thirteenth, to pay Secured Claims in respect of any fees then due
to the other Junior Secured Parties;
(n) fourteenth, to pay interest then due and payable in respect of
all Junior Claims;
(o) fifteenth, to pay or prepay principal payments for all Junior
Claims (and, when applicable, to provide cash collateral for letters of credit
or Interest Rate Contracts constituting Junior Claims);
(p) sixteenth, to pay all other Junior Claims; and
(q) seventeenth, as directed by the Borrower (subject to applicable
laws);
provided, however, that, if sufficient funds are not available to fund all
payments required to be made in any of clauses first through sixteenth above,
the available funds being applied to the Secured Claims specified in any such
clause (unless otherwise specified in such clause) shall be allocated to the
payment of such Secured Claims ratably, based on the proportion of each
Agent's and each Secured Party's interest in the aggregate outstanding Secured
Claims described in such clause; provided, further, that payments that would
otherwise be allocated to the Revolving Credit Lenders shall be allocated
first to repay Swing Loans until such Loans are paid in full. The order of
payment application set forth in clauses (a) through (p) above may be amended
at any time and from time to time by the Requisite First Lien Lenders and the
Requisite Term C Lenders and without any notice to or consent of or approval
by any Loan Party or any other Person that is not a party to the Credit
Agreement; provided, however, that (i) any such amendment adversely affecting
any Agent shall also require the prior written consent of such Agent, (ii) any
such amendment not adversely affecting the Junior Secured Parties shall only
require the consent of the Requisite First Lien Lenders and (iii) any such
amendment not adversely affecting the First Lien Lenders shall only require
the consent of the Requisite Term C Lenders.
5.2 Proceeds of Non-Collateral. From and after the receipt by the
Collateral Agent of any Notice of Actionable Default and prior to the
withdrawal of all pending Notices of Actionable Default, any payment received
by any party to the Credit Agreement from a Loan Party that does not
constitute proceeds of any Collateral shall be applied pursuant to Section
2.14(f) of the Credit Agreement.
5.3 Payments Over. Unless and until all Secured Claims shall have
been paid in full, (a) any payment received by any party hereto at any time in
contravention of the Credit Agreement or this Agreement and (b) from and after
the receipt of any Notice of Actionable Default and prior to the withdrawal of
all pending Notices of Actionable Default, any Collateral or proceeds thereof
or any payment received by any Secured Party from proceeds of any Collateral
shall be segregated and held in trust and forthwith paid over to the
Collateral Agent for application in accordance with the Credit Agreement (in
the case of clause (a) above) or Section 5.1 (in the case of clause (b) above)
in the same form as received, with any necessary endorsements or as a court of
competent jurisdiction may otherwise direct. The Collateral Agent is hereby
authorized to make any such endorsements as agent for any such Person. This
authorization is coupled with an interest and is irrevocable.
5.4 Subrogation. The Junior Agent in respect of any Collateral, on
behalf of each Junior Secured Party, hereby waives any rights of subrogation
it may acquire as a result of any payment hereunder until the Senior Claims in
respect of such Collateral shall have been paid in full. Upon payment in full
of such Senior Claims, the Junior Secured Parties shall be subrogated to the
rights of the Senior Secured Parties to receive payments or distributions
applicable to such Senior Claims.
Section 6. Insolvency or Liquidation Proceedings
6.1 Voting of Claims. Until the payment in full of all Senior Claims,
the Senior Agent shall have the right, but not the obligation, to vote the
claim of any Junior Secured Party in any Insolvency or Liquidation Proceeding
if such Junior Secured Party has not voted its claim on or prior to 10 days
before the expiration of the time to vote any such claim. In the event that
Senior Agent exercises such right to vote, no Junior Secured Party shall be
entitled to change or withdraw such vote.
6.2 Waivers. In the event an Insolvency or Liquidation Proceeding
shall be commenced by or against any Loan Party, in respect of any part of the
Collateral or proceeds thereof or any Senior Lien which may exist thereon,
each of the Junior Secured Parties in respect of such Collateral hereby agrees
that such Person shall not, until the payment in full of the Senior Claims:
(a) seek any relief from, or modification of, the automatic stay as
provided in ss.362 of the Bankruptcy Code or seek or accept any form of
adequate protection under either or both of ss.362 and ss.363 of the
Bankruptcy Code with respect to the Collateral, except (i) replacement Liens,
which Liens at all times shall (A) also secure the Senior Claims and (B) be
subordinated to the Senior Liens (including any such Liens received as
adequate protection) and any other Lien to which the Senior Liens are
subordinated, in each case, in accordance with, and subject to, the terms of
this Agreement, and (ii) the accrual of interest and out-of-pocket expenses,
including fees and disbursements of counsel and other professional advisors,
incurred by the Junior Agent (which the Junior Secured Parties agree will
constitute adequate protection of their claims and interests);
(b) oppose or object to any adequate protection sought by or granted
to any Senior Secured Parties with respect to the Collateral;
(c) oppose or object to the use of any Collateral constituting cash
collateral by any Loan Party, unless the Senior Secured Parties shall have
opposed or objected to such use of such cash collateral;
(d) oppose or object to any financing with respect to any Loan Party
provided under any Bankruptcy Law (regardless of whether any Indebtedness
thereunder is senior to the Junior Claims or secured by Liens on the
Collateral that are senior in priority to the Junior Liens on such
Collateral), unless the Senior Agent or the Senior Secured Parties shall have
opposed or objected to such financing;
(e) object to (i) the amount of the Senior Claims allowed or
permitted to be asserted under any Bankruptcy Law or (ii) the extent to which
the Senior Claims are deemed secured claims, including under ss.506(a) of the
Bankruptcy Code;
(f) oppose or object to any protection provided to the Senior Secured
Parties, including any form of adequate protection under ss.362 or ss.363 of
the Bankruptcy Code and the payment of amounts equal to interest and expenses
allowed under ss.506(b) and (c) of the Bankruptcy Code to any Senior Secured
Parties; or
(g) object to the treatment of the Senior Claims under a chapter 11
plan of reorganization under the Bankruptcy Code or similar plan or
reorganization or arrangement under any other applicable Insolvency or
Liquidation Proceeding, except on the grounds that the present value of all
property received by the Senior Secured Parties exceeds the amount of the
claims of the Senior Secured Parties in such Insolvency or Liquidation
Proceeding.
6.3 No Waiver by Senior Secured Parties. Nothing contained herein
shall prohibit or in any way limit any Senior Secured Party from, with respect
to the Collateral, objecting in any Insolvency or Liquidation Proceeding (or
otherwise) to any action taken by any Junior Secured Party, including the
seeking by such Junior Secured Party of adequate protection with respect to
such Collateral or the asserting by such Junior Secured Party of any of its
rights and remedies under the Junior Documents (or otherwise) with respect to
such Collateral.
Section 7. Representations and Warranties
Each party hereto represents and warrants as follows:
(a) Such party is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has all
requisite power and authority to enter into and perform its obligations under
this Agreement.
(b) This Agreement has been duly executed and delivered by such party
and constitutes a legal, valid and binding obligation of such party,
enforceable in accordance with its terms.
(c) The execution, delivery and performance by such party of this
Agreement (i) do not require any consent or approval of, registration or
filing with or any other action by any governmental authority and (ii) will
not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of such party or any order of any governmental
authority or any indenture, agreement or other instrument binding upon such
party.
Section 8. Indemnification; Expenses
8.1 Indemnification. Each Secured Party agrees to indemnify each
Agent and each of its Affiliates, and each of their respective directors,
officers, employees, agents and advisors (to the extent not reimbursed by the
Borrower), from and against such Secured Party's ratable share of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements (including fees, expenses and
disbursements of financial and legal advisors) of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against, such
Agent or any of its Affiliates, directors, officers, employees, agents and
advisors in any way relating to or arising out of this Agreement or the other
Collateral Documents or any action taken or omitted by such Agent under this
Agreement or the other Collateral Documents; provided, however, that no
Secured Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's or such Affiliate's
gross negligence or willful misconduct.
8.2 Expenses. Without limiting the foregoing, each Secured Party
agrees to reimburse each Agent promptly upon demand for its ratable share of
any out-of-pocket expenses (including fees, expenses and disbursements of
financial and legal advisors) incurred by such Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of its rights or responsibilities under, this
Agreement or the other Collateral Documents, to the extent that such Agent is
not reimbursed for such expenses by the Borrower or another Loan Party.
Section 9. Release of Collateral
9.1 At the request of the Borrower, the Collateral Agent shall, and
each of the Administrative Agents and the Secured Parties hereby authorizes
and directs the Collateral Agent (without any further notice or consent to or
of any Secured Party) to, promptly release (or, in the case of clause (b)
below, release or subordinate as required by the holders of any Lien specified
thereunder) any Lien held by the Collateral Agent for the benefit of the
Secured Parties against any of the following:
(a) all of the Collateral and all Loan Parties, upon receipt of (i) a
written notice from each of the Administrative Agents that the Obligations
have been paid in full and (ii) a certificate of a Responsible Officer of the
Borrower that all other Secured Claims, if any, then due and payable have been
paid in full; provided, however, that, if the Collateral Agent has received a
notice to the contrary from any Secured Party with respect to its Secured
Claims, such notice shall also have been withdrawn;
(b) any asset that is subject to a Lien permitted by Section 8.2(c),
(d), (e), (f) and (h) (Liens, Etc.) of the Credit Agreement;
(c) any part of the Collateral sold or disposed of by a Loan Party if
such sale or disposition is permitted by the Credit Agreement (or pursuant to
a valid waiver or consent to a transaction otherwise prohibited by the Credit
Agreement); and
(d) any Pledged Collateral that has been cancelled, replaced or
repaid in accordance with the terms of the Credit Agreement.
9.2 The Collateral Agent shall, and each of the Administrative Agents
and the Secured Parties hereby authorizes and directs the Collateral Agent to,
execute and deliver or file such termination and partial release statements
and take such other actions as are reasonably necessary to release (or
subordinate) Liens pursuant to this Section 9 promptly upon the effectiveness
of any such release (or subordination). Each Administrative Agent hereby
agrees to give the notice referred to in Section 9.1(a)(i) when the
Obligations have been paid in full.
Section 10. Acknowledgements and Consents
10.1 Reliance by Senior Secured Parties. The consent by the Senior
Secured Parties to the execution and delivery of the Junior Documents and the
grant of a Junior Lien on the Collateral and all loans and other extensions of
credit made or deemed made on and after the date hereof by the Senior Secured
Parties to the Borrower shall be deemed to have been given and made in
reliance upon this Agreement.
10.2 Independent Analysis. The Junior Agent, on behalf of each Junior
Secured Party, acknowledges that it and each Junior Secured Party has,
independently and without reliance on the Senior Agent or any Senior Secured
Party, and based on documents and information deemed by it appropriate, made
its own credit analysis and decision to enter into this Agreement, the Junior
Documents, and the transactions contemplated hereby and thereby and agrees
that it will continue to make its own credit decision in taking or not taking
any action under the Junior Documents or this Agreement.
10.3 No Warranties or Liability. The Junior Agent, on behalf of each
Junior Secured Party, acknowledges and agrees that:
(a) no Senior Secured Party has made any express or implied
representation or warranty, including with respect to the execution, validity,
legality, completeness, collectibility or enforceability of any Senior
Document;
(b) the Senior Secured Parties will be entitled to manage and
supervise their respective loans and extensions of credit to the Borrower as
they may, in their sole discretion, deem appropriate and without regard to any
rights or interests that any Junior Secured Party may have in the Collateral
or otherwise, except as otherwise provided in this Agreement or under
applicable law; and
(c) no Senior Secured Party shall have any duty to any Junior Secured
Party to act or refrain from acting in a manner which allows, or results in,
the occurrence or continuance of an event of default or default under any
agreements with any Loan Party (including the Junior Documents), regardless of
any knowledge thereof which they may have or be charged with.
10.4 No Waiver of Lien Priorities.
(a) No right of any Senior Secured Party to enforce any provision of
this Agreement shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of any Loan Party or by any act or failure
to act by any Senior Secured Party, or by any noncompliance by any Person with
the terms, provisions and covenants of this Agreement, any of the Senior
Documents or any of the Junior Documents, regardless of any knowledge thereof
which any Senior Secured Party may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing
clause (a) (except as set forth in any Loan Document), each Senior Secured
Party may, at any time and from time to time, without the consent of, or
notice to, any Junior Secured Party, without incurring any liability to any
Junior Secured Party and without impairing or releasing the lien priorities
and other benefits provided in this Agreement (even if any right of
subrogation or other right or remedy of any Junior Secured Party is affected,
impaired or extinguished thereby) do any one or more of the following:
(i) change the manner, place or terms of payment or change or
extend the time of payment of, or renew, exchange, amend, increase or
alter, the terms of any Senior Claim, any Lien in respect of any
Collateral, any guaranty of any Senior Claim, or any liability of any
Loan Party incurred directly or indirectly in respect of any of the
foregoing (including any increase in or extension of the Senior
Claims, without any restriction as to the amount, tenor or terms of
any such increase or extension) or otherwise amend, renew, exchange,
extend, modify or supplement in any manner the Senior Claims, any
Liens held by the Senior Agent, the Senior Secured Parties, or any of
the Senior Documents;
(ii) sell, exchange, release, surrender, realize upon, enforce
or otherwise deal with in any manner and in any order any part of the
Collateral or any liability of any Loan Party to the Senior Agent or
any Senior Secured Party, or any liability incurred directly or
indirectly in respect thereof;
(iii) settle or compromise any Senior Claim or any other
liability of any Loan Party or any security therefor or any liability
incurred directly or indirectly in respect thereof and apply any sums
by whomsoever paid and however realized to any liability (including
the Senior Claims) in any manner or order; and
(iv) exercise or delay in or refrain from exercising any right
or remedy against any security or any Loan Party or any other Person,
elect any remedy and otherwise deal freely with the Loan Parties, the
Collateral and any security, any guarantor or any liability of any
Loan Party to any Senior Secured Party, or any liability incurred
directly or indirectly, in respect of the foregoing;
(c) The Junior Agent, on behalf of each Junior Secured Party, also
agrees that no Senior Secured Party shall have any duty or liability to any
Junior Secured Party, and the Junior Agent, on behalf of each Junior Secured
Party, hereby waives all claims against each Senior Secured Party arising out
of any and all actions which any Senior Secured Party may take or permit or
omit to take with respect to: (i) the Senior Documents, (ii) the collection of
the Senior Claims, (iii) the foreclosure upon, or sale, liquidation or other
disposition of, the Collateral, (iv) the release of any Lien in respect of any
Collateral, or (v) the maintenance or preservation of the Collateral, the
Senior Claims or otherwise; and
(d) The Junior Agent, on behalf of each Junior Secured Party, in
respect of any Collateral agrees not to assert and hereby waives, to the
fullest extent permitted by law, any right to demand, request, plead or
otherwise assert or otherwise claim the benefit of, any marshalling,
appraisal, valuation or other similar right that may otherwise be available
under applicable law or any other similar rights a junior secured creditor may
have under applicable law in respect of such Collateral.
10.5 Obligations Unconditional. All rights, interests, agreements and
obligations hereunder of the Senior Agent and the Senior Secured Parties in
respect of any Collateral and the Junior Agent and the Junior Secured Parties
in respect of such Collateral shall remain in full force and effect regardless
of:
(a) any lack of validity or enforceability of any Senior Document or
any Junior Document and regardless of whether the Liens of the Senior Agent
and Senior Secured Parties are not perfected or are voidable for any reason;
(b) any change in the time, manner or place of payment of, or in any
other terms of, all or any of the Senior Claims or Junior Claims, or any
amendment or waiver or other modification, including any increase in the
amount thereof, whether by course of conduct or otherwise, of the terms of any
Senior Document or any Junior Document;
(c) any exchange, release or lack of perfection of any Lien on any
Collateral or any other asset, or any amendment, waiver or other modification,
whether in writing or by course of conduct or otherwise, of all or any of the
Senior Claims or Junior Claims or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in
respect of any Loan Party; or
(e) any other circumstances which otherwise might constitute a
defense available to, or a discharge of, any Loan Party in respect of any
Secured Claim or of any Junior Secured Party in respect of this Agreement.
10.6 Attorney-in-Fact. The Junior Agent, on behalf of each Junior
Secured Party, in respect of any Collateral hereby irrevocably constitutes and
appoints the Senior Agent in respect of such Collateral and any officer or
agent (including the Collateral Agent) of such Senior Agent, with full power
of substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Junior Agent or such Junior
Secured Party or in such Senior Agent's own name, from time to time in such
Senior Agent's discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including any financing statements,
endorsements or other instruments or transfer or release. Notwithstanding the
grant of the foregoing power of attorney, nothing in this Section 10.6 is
intended to in any way relieve any Loan Party of its obligations to comply
with requirements of law or applicable obligations with respect to the release
of Collateral under any Collateral Document.
10.7 Consent of Loan Parties. Each Loan Party hereby consents to the
provisions of this Agreement and the intercreditor arrangements provided for
herein and agrees that the obligations of the Loan Parties under any Senior
Document, Junior Document, Loan Document or other Collateral Document shall
not in any way be diminished or otherwise affected by such provisions or
arrangements. All references to any Loan Party shall include reference to such
Loan Party as a debtor and debtor in possession and any receiver or trustee
for such Loan Party in any Insolvency or Liquidation Proceeding. Each Loan
Party hereby agrees that, if, pursuant to Section 7.11 (Additional Collateral
and Guaranties) of the Credit Agreement, the Borrower shall be required to
cause any Subsidiary that is not a Loan Party to become a Loan Party, or if
for any reason the Borrower desires any such Subsidiary to become a Loan
Party, such Subsidiary shall execute and deliver to the Collateral Agent an
Intercreditor Supplement in substantially the form of Exhibit B (Intercreditor
Supplement) attached hereto and shall thereafter for all purposes be a party
hereto and have the same rights, benefits and obligations as a Loan Party
party hereto on the Effective Date.
Section 11. Miscellaneous
11.1 Conflicts. Except as expressly provided herein, in the event of
any conflict between the provisions of this Agreement and the provisions of
the Loan Documents, the provisions of this Agreement shall govern.
11.2 Continuing Nature. This Agreement shall continue to be effective
until the payment in full of all Secured Claims. This is a continuing
agreement of lien subordination and the Senior Secured Parties may continue,
at any time and without notice to any Junior Secured Party, to extend credit
and other financial accommodations and lend monies constituting Senior Claims
on the faith hereof. The terms of this Agreement shall survive, and shall
continue in full force and effect, in any Insolvency or Liquidation
Proceeding.
11.3 Amendments; Waivers. Except as set forth in Section 5.1, no
amendment, modification or waiver of any provision of this Agreement shall be
deemed to be made unless the same (i) shall be in writing signed by each Agent
and (ii) shall have been approved by the Requisite First Lien Lenders and the
Requisite Term C Lenders (other than any amendments or modifications requested
by any successor Collateral Agent not adversely affecting the Secured
Parties). Notwithstanding anything to the contrary, the consent of any Loan
Party shall not be required for amendments, modifications or waivers of the
provisions of this Agreement, except that the Borrower's consent shall be
required for those that (i) affect any obligation or right of any Loan Party
hereunder or that would impose any additional obligations on any Loan Party,
(ii) change the ability of any Collateral Agent to release Collateral pursuant
to Section 9 or (iii) change the rights of the Loan Parties to make payments
in respect of any Secured Claims (except with respect to proceeds of
Collateral while a Notice of Actionable Default is pending). In the case of a
waiver of any provision of this Agreement, such waiver shall be effective only
with respect to the specific instance involved and shall in no way impair the
rights of the parties making such waiver or the obligations of the other
parties in any other respect or at any other time. The Administrative Agents
shall promptly notify the Borrower of any amendment, modification or waiver
effected hereunder; provided, however, that the failure of any Administrative
Agent to deliver such notice shall not render any such amendment, modification
or waiver ineffective.
11.4 Consent to Jurisdiction; Waiver of Trial by Jury.
(a) Any legal action or proceeding with respect to this Agreement or
any other Collateral Document may be brought in the courts of the State of New
York located in the City of New York or of the United States of America for
the Southern District of New York, and, by execution and delivery of this
Agreement, each party hereto hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The parties hereto hereby irrevocably waive any objection, including
any objection to the laying of venue or based on the grounds of forum non
conveniens, that any of them may now or hereafter have to the bringing of any
such action or proceeding in such respective jurisdictions.
(b) Each party hereto hereby irrevocably consents to the service of
any and all legal process, summons, notices and documents in any suit, action
or proceeding brought in the United States of America arising out of or in
connection with this Agreement or any other Loan Document by the mailing (by
registered or certified mail, postage prepaid) or delivering of a copy of such
process to such party at its address specified in Section 11.5 (Notices). Each
party hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(c) Nothing contained in this Section 11.4 shall affect the right of
any Agent or any Secured Party to serve process in any other manner permitted
by law or commence legal proceedings or otherwise proceed against the Borrower
or any other Loan Party in any other jurisdiction.
(d) EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN
ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT.
(e) The obligations of each Loan Party in respect of any Obligation
due to any party hereto in Dollars or any holder of any bond which is
denominated in Dollars, shall, notwithstanding any judgment in a currency (the
"judgment currency") other than Dollars, be discharged only to the extent that
on the Business Day following receipt by such party or such holder (as the
case may be) of any sum adjudged to be so due in the judgment currency such
party or such holder (as the case may be) may in accordance with normal
banking procedures purchase Dollars with the judgment currency; if the amount
of Dollars so purchased is less than the sum originally due to such party or
such holder (as the case may be) in Dollars, such Loan Party agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
party or such holder (as the case may be) against such loss, and if the amount
of Dollars so purchased exceeds the sum originally due to any party to this
Agreement or any holder of Notes (as the case may be), such party or such
holder (as the case may be), agrees to remit to such Loan Party, such excess.
11.5 Notices. Any notice or other communication herein required or
permitted to be given to any party hereto shall be made in accordance with
Section 11.8 of the Credit Agreement.
11.6 Governing Law. This Agreement has been delivered and accepted at
and shall be deemed to have been made at New York, New York and shall be
interpreted, and the rights and liabilities of the parties bound hereby
determined, in accordance with the laws of the State of New York.
11.7 Specific Performance. Each of the Agents and the Secured Parties
may demand specific performance of this Agreement. The Senior Agent, on behalf
of each Senior Secured Party, and the Junior Agent, on behalf of each Junior
Secured Party, hereby irrevocably waive any defense based on the adequacy of a
remedy at law and any other defense which might be asserted to bar the remedy
of specific performance in any action which may be brought by any Agent or
Secured Party.
11.8 Section Titles. The section titles contained in this Agreement
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of this Agreement.
11.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which shall
together constitute one and the same document. Signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so
that all signature pages are attached to the same document.
11.10 No Third Party Beneficiaries. This Agreement shall be binding
upon, and the rights and benefits hereof shall inure to the benefit of, the
Secured Parties and each of their respective permitted successors and assigns
and, to the extent applicable, the Loan Parties and their respective permitted
successors and assigns. No other Person shall have or be entitled to assert
rights or benefits hereunder. Each Loan Party shall cause each of its
Subsidiaries, to the extent applicable, to comply with the terms of this
Agreement.
11.11 Further Assurances. Each of the Loan Parties and the Junior
Agent, on behalf of each Junior Secured Party, agrees that each such Person
shall, at the Loan Parties' expense, take such further action and execute and
deliver to the Agents and the Senior Agent, on behalf of each Senior Secured
Party, such additional documents and instruments (in recordable form, if
requested), in each case, as the Senior Agent or the Collateral Agent may
reasonably request to effectuate the terms of this Agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
HLI OPERATING COMPANY, INC.
By:/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX LEMMERZ INTERNATIONAL, INC.
By:/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
LOAN PARTIES:
HLI PARENT COMPANY, INC.
XXXXX LEMMERZ INTERNATIONAL--AKRON, LLC
XXXXX LEMMERZ INTERNATIONAL--BOWLING GREEN, INC.
XXXXX LEMMERZ INTERNATIONAL - BRISTOL, INC.
XXXXX LEMMERZ INTERNATIONAL - CADILLAC, INC.
XXXXX LEMMERZ INTERNATIONAL--CALIFORNIA, INC.
XXXXX LEMMERZ INTERNATIONAL--COMMERCIAL HIGHWAY, INC.
XXXXX LEMMERZ INTERNATIONAL - EQUIPMENT & ENGINEERING, INC.
XXXXX LEMMERZ INTERNATIONAL--GEORGIA, INC.
XXXXX LEMMERZ INTERNATIONAL - XXXXX, INC.
XXXXX LEMMERZ INTERNATIONAL - XXXXXX, INC.
XXXXX LEMMERZ INTERNATIONAL--HUB AND DRUM, LLC
XXXXX LEMMERZ INTERNATIONAL--HUNTINGTON, INC.
XXXXX LEMMERZ INTERNATIONAL--KENTUCKY, INC.
XXXXX LEMMERZ INTERNATIONAL - LAREDO, INC.
XXXXX LEMMERZ INTERNATIONAL--LA MIRADA, INC.
XXXXX LEMMERZ INTERNATIONAL - MEXICO, INC.
XXXXX LEMMERZ INTERNATIONAL - MONTAGUE, INC.
XXXXX LEMMERZ INTERNATIONAL - PCA, INC.
XXXXX LEMMERZ INTERNATIONAL - PETERSBURG, INC.
XXXXX LEMMERZ INTERNATIONAL--SEDALIA, INC.
XXXXX LEMMERZ INTERNATIONAL - SOUTHFIELD, INC.
XXXXX LEMMERZ INTERNATIONAL - TECHNICAL CENTER, INC.
XXXXX LEMMERZ INTERNATIONAL - TEXAS, INC.
XXXXX LEMMERZ INTERNATIONAL--TRANSPORTATION, INC.
XXXXX LEMMERZ INTERNATIONAL--WABASH, INC.
XXXXX LEMMERZ INTERNATIONAL IMPORT, INC.
HLI BRAKES HOLDING COMPANY, INC.
HLI COMMERCIAL HIGHWAY HOLDING COMPANY, INC.
HLI POWERTRAIN HOLDING COMPANY, INC.
HLI REALTY, INC.
HLI SERVICES HOLDING COMPANY, INC.
HLI SUSPENSION HOLDING COMPANY, INC.
HLI WHEELS HOLDING COMPANY, INC.
HLI - SUMMERFIELD REALTY CORP.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
CITICORP NORTH AMERICA, INC.,
as Senior Agent
By: /s/ Shapleigh X. Xxxxx
-------------------------------------------
Name: Shapleigh X. Xxxxx
Title: Managing Director and Vice President
CITICORP NORTH AMERICA, INC.,
as Junior Agent
By: /s/ Shapleigh X. Xxxxx
-------------------------------------------
Name: Shapleigh X. Xxxxx
Title: Managing Director and Vice President
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
By: /s/ Shapleigh X. Xxxxx
-------------------------------------------
Name: Shapleigh X. Xxxxx
Title: Managing Director and Vice President
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
STATE OF MICHIGAN )
)
COUNTY OF OAKLAND )
Signed, sealed and delivered
in the presence of:
/s/ Xxxxx Xxxx
--------------------------------
Unofficial Witness
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Notary Public
My Commission Expires: 4/2/3008
-------------
[Notary Seal]
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (GEORGIA)]
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
Signed, sealed and delivered
in the presence of:
/s/Xxxxxxx Xxxxxx
-----------------------------------
Unofficial Witness Xxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Notary Public
My Commission Expires: 7/31/2006
------------
[NOTARY SEAL]
[Omitted]
"Certificate filed New York County"
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (GEORGIA)]
STATE OF MICHIGAN )
) ss.:
COUNTY OF OAKLAND )
On the 7th day of April in the year 2005 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, Vice President of HLI Operating
Company, Inc., personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that (s)he executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
/s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------------
Notary Public
Name: Xxxxxxxx X. Xxxxxxxx
-------------------------------------
[NOTARY SEAL]
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (KENTUCKY)]
STATE OF MICHIGAN )
) ss.:
COUNTY OF OAKLAND )
On the 7th day of April in the year 2005 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, Vice President of the Loan Parties
listed on the signature pages to this document, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that (s)he
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
/s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------------
Notary Public
Name: Xxxxxxxx X. Xxxxxxxx
-------------------------------------
[NOTARY SEAL]
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (KENTUCKY)]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 8th day of April in the year 2005 before me, the undersigned,
personally appeared Shapleigh X. Xxxxx, Vice President of Citicorp North
America, Inc., personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that (s)he executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
/s/ Xxxxxx X. Xxxxx
--------------------------------------
Notary Public
Name: Xxxxxx X. Xxxxx
--------------------------------
[NOTARY SEAL]
[Omitted]
"Certificate filed New York County"
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (KENTUCKY)]
STATE OF MICHIGAN )
) ss.:
COUNTY OF OAKLAND )
On the 7th day of April in the year 2005 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx , Vice President of HLI Operating
Company, Inc., personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that (s)he executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------
Notary Public
Name: Xxxxxxxx X. Xxxxxxxx
------------------------------------
[NOTARY SEAL]
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (OHIO)]
STATE OF MICHIGAN )
) ss.:
COUNTY OF OAKLAND )
On the 7th day of April in the year 2005 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, Vice President of Xxxxx Lemmerz
International, Inc., personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that (s)he executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Notary Public
Name: Xxxxxxxx X. Xxxxxxxx
------------------------------
[NOTARY SEAL]
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (OHIO)]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 8th day of April in the year 2005 before me, the undersigned,
personally appeared Shapleigh X. Xxxxx, Vice President of Citicorp North
America, Inc., personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that (s)he executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
/s/ Xxxxxx X. Xxxxx
-----------------------------
Notary Public
Name: Xxxxxx X. Xxxxx
-----------------------
[NOTARY SEAL]
[Omitted]
"Certificate filed New York County"
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (OHIO)]
STATE OF MICHIGAN )
COUNTY OF OAKLAND )
Before me, Xxxxxxxx X. Xxxxxxxx , of the state and county mentioned,
personally appeared Xxxxxxx X. Xxxxxx, with whom I am personally acquainted
(or proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged such person to be the Vice President of Xxxxx Lemmerz
International, Inc., the within named bargainor, a corporation, and that such
officer executed the forgoing instrument for the purposes therein contained,
by personally signing the name of the corporation as Vice President.
WITNESS my hand and seal, at office in Northville, MI, this 7th day
of April, 2005.
/s/ Xxxxxxxxx X. Xxxxxxxx
------------------------------
Notary Public
My Commission Expires: 4/2/2008
[NOTARY SEAL]
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (TENNESSEE)]
STATE OF MICHIGAN )
COUNTY OF OAKLAND )
Before me, Xxxxxxxx X. Xxxxxxxx, of the state and county mentioned,
personally appeared Xxxxxxx X. Xxxxxx, with whom I am personally acquainted
(or proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged such person to be the Vice President of the Loan Parties listed
on the signature pages to this document, the within named bargainor, a
corporation, and that such officer executed the forgoing instrument for the
purposes therein contained, by personally signing the name of the corporation
as Vice President.
WITNESS my hand and seal, at office in Northville, MI, this 7th day
of April, 2005.
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Notary Public
My Commission Expires: 4/2/2008
[NOTARY SEAL]
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (TENNESSEE)]
STATE OF NEW YORK )
COUNTY OF NEW YORK )
Before me, Xxxxxx X. Xxxxx , of the state and county mentioned,
personally appeared Shapleigh X. Xxxxx, with whom I am personally acquainted
(or proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged such person to be the Vice President of Citicorp North America,
Inc., the within named bargainor, a corporation, and that such officer
executed the forgoing instrument for the purposes therein contained, by
personally signing the name of the corporation as Vice President.
WITNESS my hand and seal, at office in New York , this 8th day of
April, 2005.
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Notary Public
My Commission Expires: 7/31/2006
[NOTARY SEAL]
[Omitted]
"Certificate filed New York County"
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (TENNESSEE)]
STATE OF MICHIGAN )
) ss.:
COUNTY OF OAKLAND )
On the 7th day of April in the year 2005 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, Vice President of HLI Operating
Company, Inc., personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that (s)he executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
Witness my hand and Notarial Seal this 7th day of April, 2005.
/s/ Xxxxxxxx X. Xxxxxxxx , Notary Public
---------------------------
My Commission Expires: 4/2/2008
-------------------
Resident of Oakland County, Michigan
-------
[NOTARY SEAL]
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (INDIANA)]
STATE OF MICHIGAN )
) ss.:
COUNTY OF OAKLAND )
On the 7th day of April in the year 2005 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, Vice President of the Loan Parties
listed on the signature pages of this document, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that (s)he
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
Witness my hand and Notarial Seal this 7th day of April, 2005.
/s/ Xxxxxxxx X. Xxxxxxxx , Notary Public
--------------------------
My Commission Expires: 4/2/2008
----------------------
Resident of Oakland County, Michigan
---------------
[NOTARY SEAL]
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (INDIANA)]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 8th day of April in the year 2005 before me, the undersigned,
personally appeared Shapleigh X. Xxxxx, Vice President of Citicorp North
America, Inc., personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that (s)he executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
Witness my hand and Notarial Seal this 8th day of April, 2005.
/s/ Xxxxxx X. Xxxxx , Notary Public
--------------------------------
My Commission Expires: 7/31/2006
----------------------
Resident of County, New York
----------------
[NOTARY SEAL] "Certificated filed New York County"
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (INDIANA)]
STATE OF MICHIGAN )
) ss.:
COUNTY OF OAKLAND )
The foregoing instrument was acknowledged before me this 7th day of
April in the year 2005 by Xxxxxxx X. Xxxxxx, the Vice President of Xxxxx
Lemmerz International, Inc., Inc., a Delaware corporation, on behalf of said
entity.
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Notary Public, Oakland County, MI
-------
My Commission Expires: 4/2/2008
--------
[NOTARY SEAL]
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (MICHIGAN)]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 7th day of
April in the year 2005 by Xxxxxxx X. Xxxxxx, the Vice President of the Loan
Parties listed on the signature pages of this document, on behalf of said
entity.
/s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------
Notary Public, Oakland County, MI
-------
My Commission Expires: 4/02/2008
---------
[NOTARY SEAL]
[Omitted]
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (MICHIGAN)]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 8th day of
April in the year 2005 by Shapleigh X. Xxxxx, the Vice President of Citicorp
North America, Inc., a Delaware corporation, on behalf of said entity.
/s/ Xxxxxx X. Xxxxx
-------------------------------------
Notary Public, Nassau County, NY
------
My Commission Expires: 7/31/2006
---------
[NOTARY SEAL]
[Omitted]
"Certificate filed New York County"
[NOTARY PAGE TO INTERCREDITOR AGREEMENT (MICHIGAN)]
