Exhibit 10.3
MODIFICATION OF FIRST AMENDMENT TO
AMENDED AND RESTATED INTERCREDITOR
AND SUBORDINATION AGREEMENT
This MODIFICATION OF FIRST AMENDMENT TO AMENDED AND RESTATED
INTERCREDITOR AND SUBORDINATION AGREEMENT (this "MODIFICATION") is entered into
as of December 26, 2003 by and among THE CIT GROUP/BUSINESS CREDIT, INC.,
("CIT") and BANK OF AMERICA, N.A. ("BofA"), as Senior Agents, and CONTRARIAN
FUNDS, LLC ("Contrarian") as the Junior Agent. The Senior Lenders and the
Debtors also join in the execution hereof by way of acknowledgment.
RECITALS
WHEREAS, CIT, as Senior Agent, BofA, as Senior Existing Titled
Collateral Agent, and BofA, in its capacity as the Junior Agent, are parties to
that certain Amended and Restated Intercreditor and Subordination Agreement,
dated as of April 12, 2002, (as amended, the "SUBORDINATION AGREEMENT"); and
WHEREAS, in connection with the sale of all of the respective interests
of the Junior Lenders under the Junior Credit Agreement to Contrarian (the
"SALE"), the parties hereto entered into that certain First Amendment to Amended
and Restated Intercreditor and Subordination Agreement, dated as of November 3,
2003 (the "FIRST AMENDMENT"); and
WHEREAS, in connection with the Sale, BofA resigned as Junior Agent
under the Junior Credit Agreement prior to the execution and delivery of the
First Amendment; and
WHEREAS, in connection with the Sale, Contrarian assumed the role of
Junior Agent under the Junior Credit Agreement; and
WHEREAS, in light of the foregoing, the Senior Agents and Contrarian
wish to make certain modifications to the First Amendment, on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. INCORPORATION OF RECITALS; CAPITALIZED TERMS. The foregoing
recitals are incorporated by reference as if set forth in full. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
given to such terms in the Subordination Agreement.
SECTION 2. MODIFICATIONS TO THE FIRST AMENDMENT.
(a) Sections 2(b) and (c) of the First Amendment are modified by
deleting the respective texts thereof in their entirety, and inserting in lieu
thereof, as new Section 2(b), the following:
Contrarian hereby affirms that Bank of America, N.A., prior to the
First Amendment Effective Date, resigned as Junior Agent for the Junior Lenders
under the Junior Credit Agreement, and that Contrarian has, prior to or as of
the First Amendment Effective Date, assumed the role of Junior Agent under the
Junior Credit Agreement.
(b) Section 2(d) of the First Amendment is hereby designated as Section
2(c), without otherwise modifying said section.
(c) Any and all references to BofA as a party to the First Amendment in
its capacity as Junior Agent or as prior Junior Agent, including without
limitation the signature block for BofA as Prior Junior Agent, are hereby
stricken in their entirety; BofA shall be deemed a party to the First Amendment
only in its respective capacities as a Senior Agent and Senior Lender. All of
the parties hereto acknowledge and agree that, inasmuch as BofA had resigned,
and been replaced by Contrarian, as Junior Agent prior to the execution and
delivery of the First Amendment, the joinder of BofA as Junior Agent or prior
Junior Agent to the First Amendment was unnecessary, and the First Amendment, as
modified herein, shall be and remain binding on the parties hereto without the
execution hereof or thereof by BofA in its capacity as Junior Agent or prior
Junior Agent.
SECTION 3. MISCELLANEOUS.
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(A) AMENDMENT. The terms of the First Amendment, as modified by this
Modification, shall not be waived, altered, modified, amended or supplemented in
any manner whatsoever except by written instrument executed by Senior Agents and
the Junior Agent.
(B) PARTIES; SEVERABILITY. Whenever in this First Amendment there is a
reference made to any of the parties hereto, such reference shall also be a
reference to the successors and permitted assigns of such party, including,
without limitation, a debtor-in-possession or trustee. The provisions of this
Modification shall be binding upon and inure to the benefit of the successors
and permitted assigns of the parties hereto. Whenever possible, each provision
of this Modification shall be interpreted in such a manner as to be effective
and valid under applicable law, but if any provision of this Modification shall
be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this
Modification.
(C) EXECUTION IN COUNTERPARTS; GOVERNING LAW. This Modification may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same instrument. This Modification shall be governed by and
construed in accordance with the laws of the State of Georgia without regard to
principles of conflict of laws.
(D) SECTION TITLES. The section titles contained in this Modification
are and shall be without substance, meaning or content of any kind whatsoever
and are not a part of the agreement among the parties hereto.
(E) REIMBURSEMENT OF AGENT'S EXPENSE. The Debtors hereby jointly and
severally agree to promptly reimburse the Senior Agent for all reasonable
out-of-pocket expenses, including, without limitation, reasonable attorneys'
fees, it has heretofore or hereafter incurred or
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incurs in connection with the preparation, negotiation, execution and
implementation of this Modification.
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IN WITNESS WHEREOF, the parties hereto have caused this Modification to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
CONTRARIAN FUNDS, LLC
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title:____________________________
THE CIT GROUP/BUSINESS CREDIT,
INC., as Senior Agent
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Senior
Existing Titled Collateral Agent
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Senior Vice President
Acknowledged and Agreed:
SENIOR LENDERS:
THE CIT GROUP/BUSINESS CREDIT, INC. as a Senior Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as a Senior Lender
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Senior Vice President
[signatures continue on following page]
FLEET CAPITAL CORPORATION, as a Senior Lender
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Vice President
[signatures continue on following page]
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"DEBTORS"
XXXXXX INDUSTRIES, INC.
APACO, INC.
B&B ASSOCIATED INDUSTRIES, INC.
CHEVRON, INC.
CENTURY HOLDINGS, INC.
CHAMPION CARRIER CORPORATION
COMPETITION WHEELIFT, INC.
GOLDEN WEST TOWING EQUIPMENT INC.
KING AUTOMOTIVE & INDUSTRIAL
EQUIPMENT, INC
MID AMERICA WRECKER & EQUIPMENT
SALES, INC. OF COLORADO
XXXXXX FINANCIAL SERVICES GROUP,
INC.
XXXXXX/GREENEVILLE, INC.
XXXXXX INDUSTRIES DISTRIBUTING, INC.
XXXXXX INDUSTRIES INTERNATIONAL,
INC.
XXXXXX INDUSTRIES TOWING
EQUIPMENT INC.
PURPOSE, INC.
SONOMA CIRCUITS, INC.
SOUTHERN WRECKER CENTER, INC.
SOUTHERN WRECKER SALES, INC.
AETEX, INC., F/K/A A-EXCELLENCE
TOWING CO.
ALL AMERICAN TOWING SERVICES,
INC.
B-G TOWING, INC.
BEAR TRANSPORTATION, INC.
BTRCX, INC. F/K/A BERT'S TOWING
RECOVERY CORPORATION
BBSX, INC. F/K/A XXX XXXXX SERVICES,
INC.
BASIEX, INC. F/K/A BOB'S AUTO SERVICE,
INC.
BTRX, INC.
BVSWS, INC. F/K/A XXX XXXXXXX AND SONS
WRECKER SERVICE,INC.
CARDINAL CENTRE ENTERPRISES, INC.
CBTX,INC., F/K/ACEDAR BLUFF 24 HOUR
TOWING, INC.
CCASX, INC.
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CEX, INC., F/K/A CHAD'S INC.
CVDC, F/K/A CLEVELAND VEHICLE
DETENTION CENTER, INC.
X.X. XXXXXXXX, INC.
DVREX, INC.
DOLLAR ENTERPRISES, INC.
DSX, INC., F/K/A XXXXXX'X SERVICES, INC.
GMAR, INC., F/K/A GOOD MECHANIC AUTO
CO. OF RICHFIELD,INC.
GREAT AMERICA TOWING, INC.
GREG'S TOWING, INC.
HTX, INC.
LTSX, INC., F/K/A LAZER TOW SERVICES,
INC.
LASX, INC.
LWKR, INC.
MAEJO, INC.
MEL'S ACQUISITION CORP.
MGEX, INC.
MSTEX, INC.
MTSX INC.
XXXXXX'X TOWING, INC.
X.X.X., INC.
PEX, INC., F/K/A/ PIPES ENTERPRISES, INC.
RMA ACQUISITION CORP.
RRIC ACQUISITION CORP.
RSX, INC., F/K/A RECOVERY SERVICES, INC.
ROAD ONE, INC.
ROADONE EMPLOYEE SERVICES, INC.
ROAD ONE INSURANCE SERVICES, INC.
ROAD ONE SERVICE, INC.
ROAD ONE SPECIALIZED TRANSPORTATION, INC.
ROADONE TRANSPORTATION AND
LOGISTICS, INC.
R.M.W.S., INC.
SWSX, INC. (F/K/A SUBURBAN WRECKER
SERVICE, INC.)
TEXAS TOWING CORPORATION
TPCTH, INC.
TREASURE COAST TOWING, INC.
TREASURE COAST TOWING OF XXXXXX
COUNTY, INC.
TSSC, INC., F/K/A TRUCK SALES &
SALVAGE CO., INC.
TWSX, INC.
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WSX, INC., F/K/A WES'S SERVICE
INCORPORATED
WTX, INC. (F/K/A XXXXXX TOWING, INC.)
WTC, INC.
WTEX, INC.
ZTRX, INC., F/K/A XXXXXX TOWING &
RECOVERY, INC.
By: J. Xxxxxxx Xxxx
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Name: J. Xxxxxxx Xxxx
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Attorney-in-Fact of each entity
listed above
