Exhibit 10.6
INTERCREDITOR AND SUBORDINATION AGREEMENT
This Intercreditor and Subordination Agreement (this "Agreement") is dated
as of August 25, 2003 by and among Monitronics International, Inc., a Texas
corporation (the "Company"), The Northwestern Mutual Life Insurance Company
("Northwestern") and The Bank of New York Trust Company of Florida, N.A., as
trustee ("Trustee") for holders of the Company's 11.75% Senior Subordinated
Notes due 2010 (the "Senior Subordinated Notes").
RECITALS
WHEREAS, the Company and Northwestern are parties to that certain
Subordinated Note and Warrant Purchase Agreement dated as of January 18, 2002
(the "Original Junior Subordinated Purchase Agreement") pursuant to which the
Company issued to Northwestern (i) the Company's 13.5% Subordinated Notes due
2009 (collectively, as amended, modified, supplemented and/or extended from time
to time, the "Junior Subordinated Notes"), and (ii) warrants to purchase an
aggregate of up to 1,133,328 shares of Class A Common Stock, par value $.01 per
share, of the Company (collectively, as amended, modified, supplemented and/or
extended from time to time, the "Junior Warrants"); and
WHEREAS, on the date hereof, the Company and Northwestern are entering into
a first amendment to the Original Junior Subordinated Purchase Agreement (the
"Amendment"; the Amendment and the Original Junior Subordinated Purchase
Agreement being referred to herein collectively as the "Junior Subordinated
Purchase Agreement"), and the Company is redeeming a portion of the principal
amount of the Original Junior Subordinated Notes and paying such amounts as
required under the Junior Subordinated Purchase Agreement to be paid in
connection with such redemption; and
WHEREAS, on the date hereof, the Company is issuing $160,000,000 aggregate
principal amount of its Senior Subordinated Notes in an offering exempt from the
registration requirements of the U.S. Securities Act of 1933 and Northwestern
will be one of the purchasers of the Senior Subordinated Notes in such offering;
and
WHEREAS, the execution and delivery of this Agreement and the subordination
of the Subordinate Liabilities to the Senior Obligations, to the extent and
manner hereinafter set forth, is a condition, among others, to the execution and
delivery of the Senior Subordinated Debt Agreements (in each case as hereinafter
defined);
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained herein, the parties hereto agree as follows:
AGREEMENT
Section 1. Definitions.
As used in this Agreement, the terms defined above shall have their
respective meanings set forth above and the following terms shall have the
following meanings:
1.1 "Credit Agreement" shall mean the credit agreement dated as of the date
hereof among the Company, Fleet National Bank, as administrative agent (the
"Administrative Agent"), Bank of America, N.A., as syndication agent, and the
lenders (the "Senior Lenders") referred to therein (as amended, modified,
supplemented and/or extended from time to time).
1.2 "Indenture" shall mean the indenture, dated as of August 25, 2003
between the Company and the Trustee, under which the Senior Subordinated Notes
are issued (as amended, modified, supplemented and/or extended from time to
time).
1.3 "Junior Subordinated Creditors" shall mean Northwestern, together with
any other holder of any Subordinate Liabilities.
1.4 "Junior Subordinated Debt Documents" shall mean, collectively, the
Junior Subordinated Purchase Agreement and the Junior Subordinated Notes.
1.5 "Senior Event of Default" shall mean the occurrence of any Default or
Event of Default under and as from time to time defined in the Senior
Subordinated Debt Agreements.
1.6 "Senior Obligations" shall mean any and all indebtedness of the Company
to the Senior Subordinated Creditors for principal, interest (including, without
limitation, interest and other amounts that would accrue and become due but for
the filing of a petition in bankruptcy or the operation of the automatic stay
under Section 362(a) of Title 11 of the United States Code, as amended, or
similar laws, as now or hereafter in effect, whether or not any such interest or
other amounts is allowed as a claim enforceable against the Company in such
proceeding), fees, indemnities, expenses and costs (including costs of
collection, and including fees and expenses accrued during any bankruptcy
proceeding, whether or not such fees and expenses are allowed as a claim
enforceable against the Company in such proceeding) and all other amounts,
including amounts advanced to protect the liens and security interests (and/or
the collateral) of the Senior Subordinated Creditors, in each case as provided
under the Senior Subordinated Debt Agreements and/or any documents contemplated
thereby, direct or indirect, contingent or noncontingent, secured or unsecured,
now existing or hereafter arising or incurred or now or hereafter due and owing
to the Senior Subordinated Creditors; provided, that the principal amount
(exclusive of interest (including, without limitation, interest and other
amounts that would accrue and become due but for the filing of a petition in
bankruptcy or the operation of the automatic stay under Section 362(a) of Title
11 of the United States Code, as amended, or similar laws, as now or hereafter
in effect, whether or not any such interest or other amounts is allowed as a
claim enforceable against the Company in such proceeding)) of such indebtedness
shall not exceed an amount equal to One Hundred and Sixty Million Dollars
($160,000,000) minus the aggregate principal amount of all prepayments and other
repayments of the Senior Subordinated Notes, without the prior written consent
of the Junior Subordinated Creditors in accordance with Section 6.2 hereof.
1.7 "Senior Subordinated Creditors" shall mean the Trustee on behalf of
holders of Senior Obligations or any holder of Senior Obligations.
1.8 "Senior Subordinated Debt Agreements" shall mean, collectively, the
Indenture and the Senior Subordinated Notes issued thereunder.
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1.9 "Subordinate Liabilities" shall mean all indebtedness of the Company to
the Junior Subordinated Creditors for (a) principal of and interest on the
Junior Subordinated Notes, together with any prepayment fees or premiums under
the Junior Subordinated Notes, including without limitation any Make-Whole
Amount (as such term is defined in the Junior Subordinated Purchase Agreement)
and (b) any and all other indebtedness, liabilities or obligations of any kind
or nature of the Company, direct or indirect, contingent or non-contingent, now
existing or hereafter arising or incurred or now or hereafter due and owing to
any Subordinated Creditor under or with respect to the Junior Subordinated Notes
and/or the Junior Subordinated Purchase Agreement, including without limitation
fees, expenses, costs, and post-petition interest in bankruptcy.
Section 2. Subordination.
2.1 Subordination.
(a) The rights of the holders of Senior Obligations under this
Agreement are junior, subordinate and subject to the rights of the
Administrative Agent and the Senior Lenders under Article Ten of the Indenture.
Without limiting the foregoing, any right of the holders of the Senior
Obligations hereunder to receive funds (or to take certain actions under Section
2.2(b) hereof) are subject to the prior right of the Administrative Agent and
the Senior Lenders to receive such funds (and/or to take such actions) under
Article Ten of the Indenture.
(b) So long as any Senior Obligations are outstanding, each Junior
Subordinated Creditor agrees that the Subordinate Liabilities are and shall at
all times hereafter be expressly subordinate and junior in right of payment and
exercise of remedies to all Senior Obligations in the manner and to the extent
set forth in this Section 2, including but not limited to the occurrence of
redemptions or any other event that would require the Company to accelerate
payment in respect of the Subordinate Liabilities. Without limiting the
foregoing, any lien on, security interest in, or mortgage or pledge of or into
any of the assets of the Company in favor of or for the benefit of any Junior
Subordinated Creditor, whether now existing or arising in the future, is hereby
expressly made subordinate and junior in priority of payment and right of
enforcement to any liens, security interests, mortgages or pledges of or into
any of the assets of the Company, both now existing and arising in the future,
securing any of the Senior Obligations.
2.2 Bankruptcy; Insolvency, etc.
(a) In the event of any insolvency, bankruptcy, receivership,
liquidation, reorganization or other similar proceedings relative to the Company
or to its assets, or in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of the Company, whether or not involving
insolvency or bankruptcy, so long as any Senior Obligations are outstanding, the
holders of Senior Obligations shall be entitled in any such proceedings to
receive payment in full in cash of all Senior Obligations before the Junior
Subordinated Creditors are entitled in such proceeding to receive any payment on
account of the Subordinate Liabilities (except for payment in securities which
are subordinate and junior in right of payment to all Senior Obligations then
outstanding), and to that end in any such proceedings, so long as any Senior
Obligations remain outstanding, any payment or distribution of any kind or
character, whether in cash or in other property, to which the Junior
Subordinated Creditors would be
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entitled but for the provisions hereof (except for payment in securities which
are subordinate and junior in right of payment to all Senior Obligations then
outstanding) shall be delivered to the holders of Senior Obligations to the
extent necessary to make payment in full in cash of all Senior Obligations
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of Senior Obligations in respect thereof.
(b) So long as any Senior Obligations remain outstanding, the holders
of Senior Obligations (or their representatives) are authorized and empowered,
in any proceedings described in Section 2.2(a), in their own names or in the
names of the Junior Subordinated Creditors, to (i) file claims, proofs of claim
and other instruments of similar character reasonably necessary to enforce the
obligations of the Company in respect of the Subordinate Liabilities in the
event the Junior Subordinated Creditors fail to do so within 15 days of the due
date pertaining thereto; and (ii) receive and apply to the Senior Obligations
every payment or distribution of every kind or character to which such Junior
Subordinated Creditors are entitled in respect thereof and give acquittance
therefor. The Junior Subordinated Creditors will execute and deliver such other
documents and instruments as the holders of the Senior Obligations, or any agent
or representative designated by them may reasonably request in order to give
effect to the foregoing terms of this Section 2.2(b). Notwithstanding the
foregoing, neither this Section 2.2 nor any other provision of this Agreement,
the Junior Subordinated Debt Documents or the Company's charter documents shall
be construed to give any holder of Senior Obligations any right to vote any
Junior Subordinated Note or any shares of common stock of the Company
represented by the Junior Warrants or issued pursuant to the exercise of the
Junior Warrants or any claim thereunder or with respect thereto, or any portion
of any such notes, shares or claims, whether in connection with any resolution,
arrangements, plan of reorganization, compromise, settlement, election of
trustees or otherwise.
2.3 Payment Block.
(a) If any default in the payment (a "Payment Default") on account of
any principal of or interest on the Senior Subordinated Notes (whether at
maturity or at a date fixed for prepayment or by declaration, acceleration or
otherwise) occurs or exists, then (i) the rights of any Junior Subordinated
Creditor to receive any payments or other distributions with respect to the
Subordinate Liabilities shall be suspended from and after the date that such
Junior Subordinated Creditor receives from the Senior Subordinated Creditors a
notice (a "Stop Payment Notice") of such Payment Default, (ii) immediately
following any Payment Default, and without the necessity of delivery of a Stop
Payment Notice, no payment or distribution of any character, whether in cash,
securities or other property (except for payment in securities which are
subordinate and junior in right of payment to all Senior Obligations then
outstanding) shall be made by the Company on account of the Subordinate
Liabilities or in respect of the redemption, retirement, purchase or other
acquisition thereof, and (iii) following the receipt by any Junior Subordinated
Creditor of a Stop Payment Notice, no payment or distribution of any character,
whether in cash, securities or other property on account of the Subordinate
Liabilities or in respect of the redemption, retirement, purchase or other
acquisition thereof (except securities which are subordinate and junior in right
of payment to all Senior Obligations then outstanding) shall be received or
accepted by such Junior Subordinated Creditor unless and until such Payment
Default shall have been cured or waived.
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(b) The Company may pay and each Junior Subordinated Creditor may take
and retain any payment on the Subordinate Liabilities before receipt by the
Junior Subordinated Creditors of a Stop Payment Notice; provided, however, that
in the event that Section 2.2 becomes applicable, then the provisions of Section
2.2 shall become effective without the necessity of delivery of a Stop Payment
Notice. Subject to the proviso in the immediately preceding sentence, the
Company shall be entitled to resume the making of any payments otherwise
prohibited under this Section 2.3, including any payments previously suspended,
at such time as the Payment Default giving rise to such prohibition under
Section 2.3(a) shall have been cured or waived in writing. Notwithstanding the
foregoing, the Company shall not make, and the Junior Subordinated Creditors
shall not be entitled to take and retain, any optional prepayments in respect of
Subordinate Liabilities without the consent of the Senior Subordinated
Creditors. Further, the Company shall not make, and the Junior Subordinated
Creditors shall not be entitled to take and retain, any mandatory prepayments in
respect of the Subordinate Liabilities upon a Change of Control (as such term is
defined in the Junior Subordinated Purchase Agreement) unless the Company has
satisfied all mandatory prepayment obligations in respect of the Senior
Obligations resulting from such Change of Control under the Senior Subordinated
Debt Agreements; provided, however, that the foregoing provisions of this
sentence shall not apply if the holders of Senior Obligations waive any payment
due upon any Change of Control.
(c) Notwithstanding anything to the contrary herein, the Senior
Subordinated Creditors shall not be required to deliver Stop Payment Notices to
Transferees (as hereinafter defined) who have not complied with Section 6.1
hereof.
2.4 Reserved.
2.5 Turn-Over of Payments Received by Junior Subordinated Creditors.
(a) In the event that (i) the Company shall make or any Junior
Subordinated Creditor shall receive any payment on the Subordinate Liabilities
which the holders thereof are not permitted to receive and retain pursuant to
Sections 2.1, 2.2 or 2.3 hereof, such payment shall be held in trust by the
Junior Subordinated Creditor receiving same, for the benefit of the Senior
Subordinated Creditors, and shall be paid over immediately (without necessity of
demand) to the Senior Subordinated Creditors, for the benefit of the holders of
the Senior Obligations, or as their respective interests may appear, for
application in accordance with the Senior Subordinated Debt Agreements to the
payment of all Senior Obligations remaining due and payable until the same shall
have been paid in full in cash, after giving effect to any concurrent payment or
distribution to the holders of such Senior Obligations.
(b) The proceeds of any sale or other disposition (other than to the
Company, or any Subsidiary or any Affiliate of the Company which has liability
for the Senior Subordinated Notes) of Subordinate Liabilities in accordance with
Section 6.1 hereof, which may be received by a holder thereof, shall not be
treated as a payment to which the holders of Senior Obligations are entitled
under this Agreement.
2.6 Obligations Absolute. The provisions of this Agreement are solely for
the purposes of defining the relative rights of the holders of Senior
Obligations on the one hand and
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the holders of Subordinate Liabilities on the other hand, with respect to the
enforcement of rights and remedies and priority of payment of the various
obligations of the Company to each of them. Nothing herein shall impair, as
between the Company and the holder of any Subordinate Liabilities, the
obligations of the Company, which are unconditional and absolute, to pay to the
holder thereof the principal and interest thereon and any other liabilities
encompassed in the Subordinate Liabilities, all in accordance with their
respective terms, nor shall anything in this Agreement prevent the occurrence of
any event of default under the Junior Subordinated Debt Documents, or prevent
any Junior Subordinated Creditor from exercising all remedies otherwise
permitted by the Junior Subordinated Debt Documents, applicable law or
otherwise, subject to (a) the rights, if any, of the holders of Senior
Obligations under Section 2.5 hereof to receive cash or property otherwise
payable or deliverable to the Junior Subordinated Creditors, and (b) the
restrictions on the Junior Subordinated Creditors in favor of the holders of
Senior Obligations set forth in Section 2 hereof.
2.7 Subrogation. Upon and subject to the payment in full in cash of the
Senior Obligations, the Junior Subordinated Creditors shall be subrogated to the
rights of the holders of Senior Obligations to receive payments or distributions
of assets of the Company applicable to the Senior Obligations until the
Subordinate Liabilities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of Senior Obligations
to which the Junior Subordinated Creditors would be entitled except for the
provisions of this Agreement shall, as between the Company and its creditors
other than the holders of Senior Obligations and the Junior Subordinated
Creditors, be deemed to be a payment on account of the Senior Obligations. Each
Junior Subordinated Creditor hereby waives any claim against the Senior
Subordinated Creditors based on impairment of the Junior Subordinated Creditor's
rights of subrogation against the Company due to the action or inaction of the
Senior Subordinated Creditors or otherwise.
2.8 Subordination Not Affected. Without the necessity of any reservation of
rights against or any notice to or further assent by the Junior Subordinated
Creditors, (i) any demand for payment of any Senior Obligations made by any
holder of Senior Obligations may be rescinded in whole or in part by such
holder, (ii) the holders of Senior Obligations may exercise or refrain from
exercising any rights and/or remedies against the Company and others, if any,
liable under the Senior Obligations, and (iii) the Senior Obligations (including
without limitation, the Senior Subordinated Debt Agreements and the Senior
Subordinated Notes), or any collateral security therefor or right of any nature
with respect thereto, may be amended, extended, modified, continued,
accelerated, compromised, waived, surrendered or released by the holders of the
Senior Obligations, and any agreement or instrument evidencing, securing or
otherwise relating to the Senior Obligations may be amended, extended, modified,
continued, accelerated, compromised, waived, surrendered or released by the
holder thereof, all without impairing, abridging, releasing or affecting in any
manner the subordination of the Subordinate Liabilities to the Senior
Obligations provided for herein; provided, that without the prior written
consent of the Junior Subordinated Creditors (including, for purposes of this
Section, only Transferees who have complied with Section 6.1 hereof), the Senior
Subordinated Creditors shall not amend or otherwise modify any provision of the
Senior Subordinated Debt Agreements to (i) expressly prohibit the Company from
making payments in respect of the Subordinate Liabilities that, in each case,
are permitted to be made under this Agreement; (ii) expressly prohibit the
Company from making any amendments or modifications to the documents relating to
the Subordinate
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Liabilities that are not prohibited hereby; (iii) increase the stated applicable
pre-default or post-default interest rate margin by more than 2.00% per annum
above the respective stated margin set forth in the Senior Subordinated Debt
Agreements as in effect on the date hereof; or (iv) shorten the maturity of the
Senior Subordinated Notes as in effect on the date hereof, except to the extent
that the shortening of such maturity results solely from a change in the
maturity date under the Senior Subordinated Debt Agreements. Without limiting
the foregoing, each Junior Subordinated Creditor waives any and all notice of
the creation, amendment, extension, acceleration, compromise, continuation,
waiver, surrender, release or modification of any nature of any Senior
Obligations, and notice of or proof of reliance by the holders of Senior
Obligations upon the subordination provided for herein. The Senior Obligations
shall conclusively be deemed to have been created, contracted or incurred in
reliance upon the provisions of this Agreement.
2.9 Right To Retain Payment Received. Any payment in respect of the
Subordinate Liabilities which is not required to be held in trust for the
benefit of, or paid over to, the holders of Senior Obligations pursuant to
Section 2.3 or Section 2.5 hereof, and which is received by the holders of the
Subordinate Liabilities shall become the sole and absolute property of the
holders of Subordinate Liabilities and shall not, by virtue of the provisions of
this Agreement or otherwise, be subject to any payment over or any distribution
to or claim by any holders of Senior Obligations or any other person.
Section 3. Notices.
3.1 By the Senior Subordinated Creditors to the Junior Subordinated
Creditors. The Trustee shall endeavor to provide the Junior Subordinated
Creditors with notice of any Senior Event of Default by the Company under the
Senior Subordinated Debt Agreements simultaneously with giving notice to the
Company, provided, however, that the Senior Subordinated Creditors shall have no
liability to the Junior Subordinated Creditors for the Trustee's failure to
provide the Junior Subordinated Creditors with any such notice(s), and further
provided, that the failure to give such notice(s) shall not alter, amend, or
affect the subordination provisions of this Agreement.
3.2 By the Junior Subordinated Creditors to the Senior Subordinated
Creditors. Each Junior Subordinated Creditor shall endeavor to provide the
Trustee with notice of any default under the Junior Subordinated Debt Documents
to which it is a party simultaneously with giving notice to the Company,
provided, however, that no Junior Subordinated Creditor shall have any liability
to the Senior Subordinated Creditors for such Junior Subordinated Creditor's
failure to provide any notice required under this Section 3.2.
3.3 By the Company to the Senior Subordinated Creditors. The Company shall
provide the Senior Subordinated Creditors with copies of all notices of any
default received by it from any Junior Subordinated Creditor immediately upon
its receipt thereof.
3.4 By the Company to the Junior Subordinated Creditors. The Company shall
provide the Junior Subordinated Creditors with copies of all notices of any
default received by it from any Senior Subordinated Creditors immediately upon
its receipt thereof.
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Section 4. Representations and Warranties.
4.1 By the Company. The Company represents and warrants as follows:
(a) Junior Subordinated Debt Documents. Attached hereto as Exhibit A
are true, correct and complete copies of the Junior Subordinated Debt Documents.
(b) No Assignment or Participation in Junior Subordinated Notes. The
Junior Subordinated Creditors are the registered owners of the Junior
Subordinated Notes and the Junior Warrants.
(c) Authorization and Enforceability. The execution, delivery and
performance of this Agreement has been duly authorized by all necessary
corporate action on the part of the Company, and this Agreement constitutes a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
(d) Subordinated Notes Legended. The Company has caused the Junior
Subordinated Notes and the Junior Warrants issued to and held by the Junior
Subordinated Creditors to be affixed with a legend referencing this Agreement
and the subordination provisions hereof.
4.2 By the Junior Subordinated Creditors.
(a) Each Junior Subordinated Creditor hereby represents and warrants
that it has not sold (in whole or in part) or granted any assignments of or
participations in the Junior Subordinated Notes and the Junior Warrants; nor has
such Junior Subordinated Creditor granted or permitted to exist any lien or
encumbrance of any nature on such notes and warrants.
(b) Each Junior Subordinated Creditor hereby acknowledges that this
Agreement is a "subordination agreement" within the meaning of Section 501(a) of
the United States Bankruptcy Code, 11 U.S.C. (S)510(a).
Section 5. Covenants of the Subordinated Creditors.
5.1 Amendment of Junior Subordinated Purchase Agreement and Junior
Subordinated Notes. Neither the Company nor the Junior Subordinated Creditors
will, without the prior written consent of the Trustee acting on behalf of the
Senior Subordinated Creditors, amend or consent to the amendment of the Junior
Subordinated Debt Documents if such amendment would (i) increase the principal
amount payable by the Company in respect of the Junior Subordinated Notes
(except increases in principal amount or interest rate of the Junior
Subordinated Notes as a result of payment-in-kind interest), and/or the amount
of the Subordinate Liabilities; (ii) expressly prohibit the Company from making
any amendments or modifications to the documents relating to the Senior
Obligations that are not prohibited hereby; or (iii) increase the stated
applicable pre-default or post-default interest rate margin by more than 2.00%
per annum above the respective stated margin set forth in the Junior
Subordinated Debt Documents as in effect on the date hereof; or (iv) shorten the
amortization period of the Junior Subordinated Notes as in effect on the date
hereof.
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5.2 Validity and Enforceability of Senior Subordinated Debt Agreements. The
Junior Subordinated Creditors will not in any proceeding, whether in connection
with a bankruptcy or insolvency or other event described in Section 2.2 or
otherwise, (i) challenge the validity or enforceability of the Senior
Subordinated Debt Agreements, or any provisions thereof or (ii) take any other
action that could be reasonably expected to interfere with the commercially
reasonable exercise of the Senior Subordinated Creditors' rights with respect to
the Senior Obligations.
Section 6. Miscellaneous.
6.1 Transfers. No Junior Subordinated Creditor shall sell, assign or
otherwise transfer, in whole or in part, any Subordinate Liabilities or any
interest therein, to any other person or entity (a "Transferee") unless such
Transferee first signs an acknowledgment in the form of Exhibit A hereto and
delivers a signed counterpart hereof to each other party hereto, whereby each
such Transferee shall become a party hereto and expressly acknowledges the
subordination provided for herein and agrees to be bound by all of the terms
hereof. The Company hereby agrees that any such transfer shall not affect its
obligations under this Agreement and that it will promptly execute and deliver
any such counterpart when requested to do so.
6.2 Modifications. No amendment, modification, termination or waiver of any
provision of this Agreement, or consent to any departure therefrom, shall in any
event be effective without the written concurrence of the Trustee and the
holders of at least a majority of the Junior Subordinated Notes then
outstanding.
6.3 Termination; Reinstatement. This Agreement shall remain in full force
and effect until the payment in full in cash of all Senior Obligations,
provided, that this Agreement shall continue to be effective or be reinstated
(as the case may be) if at any time payment of any of the Senior Obligations is
refunded or rescinded or must otherwise be returned by the Senior Subordinated
Creditors upon a bankruptcy, arrangement, reorganization or similar proceeding
for relief of debtors under state or federal law or otherwise, all as though
such payment had not been made.
6.4 Notices. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and shall be deemed to have been given and received the (i) day of sending if
delivered by hand delivery, telegram, telecopy or telex, receipt confirmed, (ii)
one (1) day after being sent, if sent by Federal Express, Express Mail, or other
similar nationally known overnight delivery service, or (iii) three (3) days
after being deposited in the mails, registered or certified with postage
prepaid, and properly addressed. For the purposes hereof, the address of each
party hereto is as set forth under its name on the signature pages hereof, or
such other address as such party may specify by written notice to each other
party.
6.5 Third Party Rights. This Agreement is solely for the benefit of the
Senior Subordinated Creditors, the Junior Subordinated Creditors and the
Company, and no other person shall have any right, benefit, priority or other
interest under, or because of the existence of, this Agreement.
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6.6 Counterparts. This Agreement and any amendments, waivers, consents, or
supplements may be executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall
constitute one and the same instrument.
6.7 Governing Law. This Agreement shall be governed by the laws of the
State of New York. The Company and each of the Junior Subordinated Creditors, to
the extent that they may lawfully do so, hereby consent to service of process,
and to be sued, in the State of New York and consent to the jurisdiction of the
federal courts of the United States of America or the courts of the State of New
York, in each case located in The City of New York, as well as to the
jurisdiction of all courts to which an appeal may be taken from such courts, for
the purpose of any suit, action or other proceeding arising out of this
Agreement or any of their respective obligations hereunder or with respect to
the transactions contemplated hereby, and expressly waive any and all objections
they may have as to venue in any such courts. The Company and the Junior
Subordinated Creditors further agree that a summons and complaint commencing an
action or proceeding in any of such courts shall be properly served and shall
confer personal jurisdiction if served personally or by certified mail to it at
its address set forth below or as otherwise provided under the laws of the State
of New York. The Company and the Junior Subordinated Creditors irrevocably waive
all right to a trial by jury in any suit, action or other proceeding instituted
by or against the Company and/or the Junior Subordinated Creditors in respect of
their respective obligations hereunder or the transactions contemplated hereby.
6.8 Descriptive Headings. The descriptive headings of this Agreement are
for convenience only and shall have no legal effect.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as an
instrument under seal as of the date first above written.
SUBORDINATED CREDITOR:
THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Representative
The Northwestern Mutual Life Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Securities Department
Fax: (000) 000-0000
with a copy to:
The Northwestern Mutual Life Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx, Legal Department
Fax: (000) 000-0000
COMPANY:
MONITRONICS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx
Vice President and Chief Financial Officer
00000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxx, Esq.
TRUSTEE:
THE BANK OF NEW YORK TRUST
COMPANY OF FLORIDA, N.A.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
The Bank of New York Trust Company of Florida,
N.A.
Corporate Trust Division
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
EXHIBIT A
ACKNOWLEDGMENT
The undersigned purchaser, assignee, or transferee of the Subordinate
Liabilities described in Schedule 1 attached hereto, hereby acknowledges the
terms of this Intercreditor and Subordination Agreement and the subordination
provided for herein and agrees to be bound by all of the terms hereof. This
Agreement will be attached to and become part of the Intercreditor and
Subordination Agreement.
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By:
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Its:
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Date:
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Notice Address:
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Attention:
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Telecopy Number:
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Acknowledged and Agreed:
MONITRONICS INTERNATIONAL, INC.
By:
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Name:
Title:
