INTERCREDITOR AGREEMENT
Intercreditor Agreement (this “Agreement”), dated as of April 26, 2011, among BANK OF
AMERICA, N.A., as first lien administrative agent and first lien collateral agent (in such
capacity, with its successors and assigns, and as more specifically defined below, the “First
Priority Representative”) for the First Priority Secured Parties (such term, and other
capitalized terms used herein but not otherwise defined, having the meaning set forth in Section
1.1 below), U.S. NATIONAL BANK ASSOCIATION, as Trustee and as Second Priority Agent (in such
capacity, with its successors and assigns, and as more specifically defined below, the “Second
Priority Representative”) for the Second Priority Secured Parties, COMMERCIAL VEHICLE GROUP,
INC., a Delaware corporation (the “Company”) and each of the other Loan Parties party
hereto.
WHEREAS, the Company, the other borrowers party thereto, the First Priority Representative and
certain financial institutions and other entities are parties to a First Lien Loan and Security
Agreement, dated as of January 7, 2009, as amended and restated as of the date hereof (as further
amended, restated, supplemented or otherwise modified from time to time, the “Existing First
Priority Agreement”), pursuant to which such financial institutions and other entities have
agreed to make loans and extend other financial accommodations to the Company and the other
borrowers party thereto;
WHEREAS, the Company, the subsidiary guarantors party thereto and the Second Priority
Representative are parties to an Indenture, dated as of the date hereof (the “Existing Second
Priority Agreement”), pursuant to which the Company intends to issue certain notes (the
“Notes”) guaranteed by each other Loan Party party thereto;
WHEREAS, the Company and the other Loan Parties have granted to the First Priority
Representative security interests in the Common Collateral as security for payment and performance
of the First Priority Obligations;
WHEREAS, the Company and the other Loan Parties propose to grant to the Second Priority
Representative junior security interests in the Common Collateral as security for payment and
performance of the Second Priority Obligations; and
WHEREAS, it is a condition to the grant of such junior security interests that this Agreement
be executed and delivered by the parties hereto to set forth the respective rights of the First
Priority Secured Parties, on the one hand, and the Second Priority Secured Parties, on the other
hand, and the application of any proceeds and certain other matters;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and
other good and valuable consideration, the existence and sufficiency of which is expressly
recognized by all of the parties hereto, the parties agree as follows:
SECTION 1. DEFINITIONS.
1.1. Defined Terms. The following terms, as used herein, have the following meanings:
“Additional Debt” has the meaning assigned to such term in Section 9.3(b).
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“Additional First Priority Agreement” means any agreement designated as such in
writing (including by addendum to this Agreement) by the First Priority Representative in
accordance with the terms of the First Priority Agreement.
“Additional Second Priority Agreement” means any agreement designated as such in
writing (including by addendum to this Agreement) by the Second Priority Representative in
accordance with the terms of the Second Priority Agreement.
“Agreement” has the meaning assigned to such term in the preamble hereto.
“Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as
amended from time to time.
“Bankruptcy Law” means each of the Bankruptcy Code and any similar federal, state or
foreign bankruptcy, insolvency, reorganization, receivership or similar law.
“BofA” Bank of America, N.A.
“Cash Management Obligations” means, with respect to any Loan Party, (i) any “Cash
Management Services” as defined in the Existing First Priority Agreement and (ii) any other
obligations of such Loan Party owed to any First Priority Secured Party (or any of its affiliates)
in respect of treasury management arrangements, depositary or other cash management services
including in connection with any automated clearing house transfers of funds or similar
transactions.
“Common Collateral” means all assets that are both First Priority Collateral and
Second Priority Collateral.
“Company” has the meaning assigned to such term in the preamble hereto.
“Comparable Second Priority Security Document” means, in relation to any Common
Collateral subject to any First Priority Security Document, that Second Priority Security Document
that creates a security interest in the same Common Collateral, granted by the same Loan Party, as
applicable.
“DIP Financing” has the meaning assigned to such term in Section 5.2.
“Enforcement Action” means, with respect to the First Priority Obligations or the
Second Priority Obligations, any demand for acceleration or payment thereof, the exercise of any
rights and remedies with respect to any Common Collateral securing such obligations or the
commencement or prosecution of enforcement of any of the rights and remedies, as applicable, the
First Priority Documents or the Second Priority Documents, or applicable law, including, without
limitation, the exercise of any rights of set-off or recoupment and rights to credit bid debt, and
the exercise of any rights or remedies of a secured creditor under the Uniform Commercial Code of
any applicable jurisdiction or under the Bankruptcy Code.
“Existing First Priority Agreement” has the meaning assigned to such term in the
preamble hereto.
“Existing Second Priority Agreement” has the meaning assigned to such term in the
preamble hereto.
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“First Priority Agreement” means the collective reference to (a) the Existing First
Priority Agreement, (b) any Additional First Priority Agreement and (c) any other credit agreement,
loan agreement, note agreement, promissory note, indenture or other agreement or instrument
evidencing or governing the terms of any indebtedness or other financial accommodation that has
been incurred to extend, replace, refinance or refund in whole or in part the indebtedness and
other obligations outstanding under the Existing First Priority Agreement, any Additional First
Priority Agreement or any other agreement or instrument referred to in this clause (c) unless such
agreement or instrument expressly provides that it is not intended to be and is not a First
Priority Agreement hereunder (a “Replacement First Priority Agreement”). Any reference to
the First Priority Agreement hereunder shall be deemed a reference to any First Priority Agreement
then extant.
“First Priority Collateral” means all assets, whether now owned or hereafter acquired
by the Company or any other Loan Party, in which a Lien is granted or purported to be granted to
any First Priority Secured Party as security for any First Priority Obligation (including any Lien
assigned to the First Priority Representative pursuant to Section 2.4).
“First Priority Creditors” means the “Lenders” as defined in the First Priority
Agreement, or any Persons that are designated under the First Priority Documents as creditors
entitled to benefit from the Liens on the First Priority Collateral under the First Priority
Security Documents.
“First Priority Documents” means the First Priority Agreement, each First Priority
Security Document and each First Priority Guarantee.
“First Priority Guarantee” means any guarantee by any Loan Party of any or all of the
First Priority Obligations.
“First Priority Lien” means any Lien created by the First Priority Security Documents.
“First Priority Obligations” means (a) all principal of and interest (including
without limitation any Post-Petition Interest) and premium (if any) on all loans made pursuant to
the First Priority Agreement, (b) all reimbursement obligations (if any) and interest thereon
(including without limitation any Post-Petition Interest) with respect to any letter of credit or
similar instruments issued pursuant to the First Priority Agreement, (c) all Hedging Obligations,
(d) all Cash Management Obligations, (e) obligations of the Loan Parties under any indemnity for
Claims (as defined in the First Priority Agreement), and (f) all guarantee obligations, fees,
expenses and other amounts payable from time to time pursuant to the First Priority Documents. To
the extent any payment with respect to any First Priority Obligation (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 a fraudulent conveyance or a preference in any respect, set aside or required to be
paid to a debtor in possession, any Second Priority Secured Party, receiver or similar Person, then
the obligation or part thereof originally intended to be satisfied shall, for the purposes of this
Agreement and the rights and obligations of the First Priority Secured Parties and the Second
Priority Secured Parties, be deemed to be reinstated and outstanding as if such payment had not
occurred.
“First Priority Obligations Payment Date” means the first date on which (a) the First
Priority Obligations (including any obligations replacing, renewing or refinancing any previously
existing First Priority Obligations, but other than those that constitute Unasserted Contingent
Obligations) have been indefeasibly paid in cash in full (or cash collateralized or defeased in
accordance with the terms of the First Priority Documents or in other consideration acceptable to
the First Priority Secured Parties), (b) all commitments to extend credit under the First Priority
Documents (including any obligations replacing,
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renewing or refinancing any previously existing First Priority Obligations) have been
terminated, (c) there are no outstanding letters of credit or similar instruments issued under the
First Priority Documents (other than such as have been cash collateralized or defeased in
accordance with the terms of the First Priority Security Documents), and (d) the First Priority
Representative has delivered a written notice to the Second Priority Representative stating that
the events described in clauses (a), (b) and (c) have occurred to the satisfaction of the First
Priority Secured Parties. Notwithstanding the foregoing, if at any time after the First Priority
Obligations Payment Date has occurred, the Company enters into any First Priority Document
evidencing a First Priority Obligation which is permitted hereby and under the Second Priority
Documents, then such First Priority Obligations Payment Date shall automatically be deemed not to
have occurred for all purposes of this Agreement, and the obligations under such First Priority
Document shall automatically be treated as First Priority Obligations for all purposes of this
Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set
forth herein, and the first-lien collateral agent under such First Priority Documents shall be the
First Priority Representative for all purposes of this Agreement. Upon receipt of a notice stating
that the Company has entered into a new First Priority Document (which notice shall include the
identity of the new agent, such agent, the “New Agent”), the Second Priority Representative
shall promptly enter into such documents and agreements (including amendments or supplements to
this Agreement) as the Company or such New Agent may reasonably request in order to provide to the
New Agent the rights contemplated hereby, in each case consistent in all material respects with the
terms of this Agreement.
“First Priority Representative” has the meaning set forth in the introductory
paragraph hereof. In the case of any Replacement First Priority Agreement, the First Priority
Representative shall be the Person identified as such in such Replacement First Priority Agreement.
“First Priority Secured Party” means (a) each First Priority Creditor (and any
affiliate of such First Priority Creditor to which any Cash Management Obligation is owed), (b)
each “Issuing Bank” (as defined in the First Priority Agreement), (c) the First Priority
Representative, (d) each counterparty to any Swap Agreement the obligations under which constitute
Hedging Obligations, (e) the beneficiaries of each indemnification obligation undertaken by any
Loan Party under any First Priority Document and (f) the successors and assigns of each of the
foregoing.
“First Priority Security Documents” means the “Security Documents” (as defined in the
Existing First Priority Agreement), and any other documents that are designated under the First
Priority Agreement as “First Priority Security Documents” for purposes of this Agreement.
“Governmental Authority” means any federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory body.
“Hedging Obligations” means, with respect to any Loan Party, any obligations of such
Loan Party pursuant to an agreement in respect of any “Hedging Agreement” as defined in the
Existing First Priority Agreement or any other Swap Agreement or hedge agreement in respect of
interest rates, currency exchange rates or commodity prices entered into by a Loan Party and any
First Priority Creditor (or any of its affiliates) at the time such agreement is entered into.
“Insolvency Proceeding” means any proceeding in respect of bankruptcy, insolvency,
winding up, receivership, dissolution or assignment for the benefit of creditors, in each of the
foregoing events whether under the Bankruptcy Code or any other Bankruptcy Law.
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“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, deed to
secure debt, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of
such asset, and (b) the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
“Loan Party” means (a) the Company, (b) each direct or indirect subsidiary of the
Company and (c) any other Person in which the Company or any of its subsidiaries holds an ownership
interest, in each case (a) through (c), that is, at any time of determination, a party to any First
Priority Security Document or Second Priority Security Document. All references in this Agreement
to any Loan Party shall include such Loan Party as a debtor-in-possession and any receiver or
trustee for such Loan Party in any Insolvency Proceeding.
“Person” means any natural person, individual, sole proprietorship, partnership,
joint venture, corporation, limited liability company, unincorporated organization, association,
institution, entity, party, including any Governmental Authority or any agency or political
subdivision thereof.
“Post-Petition Interest” means any interest or entitlement to fees or expenses or
other charges that accrues after the commencement of any Insolvency Proceeding, whether or not
allowed or allowable as a claim in any such Insolvency Proceeding.
“Recovery” has the meaning assigned to such term in Section 5.5.
“Reorganization Securities” has the meaning set forth in Section 5.11.
“Replacement First Priority Agreement” has the meaning set forth in the definition of
“First Priority Agreement”.
“Second Priority Agreement” means the collective reference to (a) the Existing Second
Priority Agreement, (b) any Additional Second Priority Agreement and (c) any other credit
agreement, loan agreement, note agreement, promissory note, indenture, or other agreement or
instrument evidencing or governing the terms of any indebtedness or other financial accommodation
that has been incurred to extend, replace, refinance or refund in whole or in part the indebtedness
and other obligations outstanding under the Existing Second Priority Agreement, any Additional
Second Priority Agreement or any other agreement or instrument referred to in this clause (c). Any
reference to the Second Priority Agreement hereunder shall be deemed a reference to any Second
Priority Agreement then extant.
“Second Priority Collateral” means all assets, whether now owned or hereafter acquired
by the Company or any other Loan Party, in which a Lien is granted or purported to be granted to
any Second Priority Secured Party as security for any Second Priority Obligation.
“Second Priority Agent” means has the meaning assigned to such term in the preamble
hereto.
“Second Priority Creditors” means the Trustee and the Holders (as defined in the
Existing Second Priority Agreement), or any Persons that are designated under the Second Priority
Documents as creditors entitled to benefit from the Liens on the Second Priority Collateral under
the Second Priority Security Documents.
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“Second Priority Documents” means each Second Priority Agreement, each Second Priority
Security Document and each Second Priority Guarantee.
“Second Priority Guarantee” means any guarantee by any Loan Party of any or all of the
Second Priority Obligations.
“Second Priority Lien” means any Lien created by the Second Priority Security
Documents.
“Second Priority Obligations” means the due and punctual payment of (a) all principal
of and interest (including any Post-Petition Interest) and premium (if any) on all indebtedness
under the Second Priority Agreement, and (b) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including Post-Petition Interest), of the Loan Parties or any of their Subsidiaries to the Second
Priority Secured Parties under the Second Priority Documents, and other amounts payable from time
to time pursuant to the Second Priority Documents, in each case whether or not allowed or allowable
in an Insolvency Proceeding. To the extent any payment with respect to any Second Priority
Obligation (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 a fraudulent conveyance or a preference in whole or
in part, or is otherwise set aside or required to be returned or paid to a debtor in possession,
any First Priority Secured Party, any receiver or any similar Person, then the obligation or part
thereof originally intended to be satisfied shall, for the purposes of this Agreement and the
rights and obligations of the First Priority Secured Parties and the Second Priority Secured
Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
“Second Priority Representative” has the meaning set forth in the preamble hereto, but
shall also include any Person identified as a “Second Priority Representative” in any Second
Priority Agreement other than the Existing Second Priority Agreement.
“Second Priority Secured Party” means the Second Priority Representative, the Second
Priority Creditors and any other holders of the Second Priority Obligations.
“Second Priority Security Documents” means the “Security Documents” as defined in the
Existing Second Priority Agreement and any documents that are designated under the Second Priority
Agreement as “Second Priority Security Documents” for purposes of this Agreement.
“Secured Parties” means the First Priority Secured Parties and the Second Priority
Secured Parties.
“Standstill Period” has the meaning specified in Section 3.2.
“subsidiary” has the meaning specified in the Existing First Priority Agreement.
“Swap Agreement” means any agreement with respect to any swap, forward, future,
derivative or foreign exchange spot transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures of economic, financial or pricing
risk or value or any similar transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments only on account of services provided
by current or former directors, officers, employees or consultants of any of the Subsidiaries shall
be a Swap Agreement.
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“Trustee” means U.S. National Bank Association.
“Unasserted Contingent Obligations” means, at any time, First Priority Obligations for
taxes, costs, indemnifications, reimbursements, damages and other liabilities (excluding (a) the
principal of, and interest and premium (if any) on, and fees and expenses relating to, any First
Priority Obligation and (b) contingent reimbursement obligations in respect of amounts that may be
drawn under outstanding letters of credit or similar instruments) in respect of which no assertion
of liability (whether oral or written) and no claim or demand for payment (whether oral or written)
has been made (and, in the case of First Priority Obligations for indemnification, no notice for
indemnification has been issued by the indemnitee) at such time.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to
time in the applicable jurisdiction.
1.2 Amended Agreements. All references in this Agreement to agreements or other
contractual obligations shall, unless otherwise specified, be deemed to refer to such agreements or
contractual obligations as amended, amended and restated, supplemented, restated or otherwise
modified from time to time in accordance with the terms of this Agreement, if applicable.
1.3 Terms Generally. The definitions of terms herein shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, amended and restated, restated, supplemented or otherwise modified,
renewed, extended, refinanced or replaced, (ii) any reference herein to any Person shall be
construed to include such Person’s successors or permitted assigns, (iii) any reference herein to
any Loan Party shall be construed to include such Loan Party as debtor and debtor-in-possession and
any receiver or trustee for such Loan Party in any Insolvency Proceeding, (iv) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (v) all references herein to
Sections shall be construed to refer to Sections of this Agreement, (vi) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities, accounts and contract
rights, and (vii) references to laws or statutes include all related rules, regulations,
interpretations, amendments and successor provisions.
SECTION 2. LIEN PRIORITIES.
2.1 Subordination of Liens. (a) Any and all Liens in Common Collateral now existing
or hereafter created or arising in favor of any Second Priority Secured Party securing the Second
Priority Obligations, regardless of how acquired, whether by grant, statute, operation of law,
judgment rendered in any judicial proceeding, subrogation or otherwise, are expressly junior in
priority, operation and effect to any and all Liens now existing or hereafter created or arising in
favor of the First Priority Secured Parties securing the First Priority Obligations,
notwithstanding (i) anything to the contrary contained in any agreement or filing to which any
Second Priority Secured Party may now or hereafter be a party, and regardless of the time, order or
method of grant, attachment, recording or perfection of any financing statements or other security
interests, assignments, pledges, deeds, mortgages and other Liens, charges or
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encumbrances or any defect or deficiency or alleged defect or deficiency in any of the
foregoing, (ii) any provision of the Uniform Commercial Code or any other applicable law or any
First Priority Document or Second Priority Document or any other circumstance whatsoever and (iii)
the fact that any such Liens in favor of any First Priority Secured Party securing any of the First
Priority Obligations are (x) subordinated to any Lien securing any obligation of any Loan Party
other than the Second Priority Obligations or (y) otherwise subordinated, voided, avoided,
invalidated or lapsed.
(b) No Second Priority Secured Party shall object to or contest, or support any other Person
in contesting or objecting to, in any proceeding (including any Insolvency Proceeding), the
validity, extent, perfection, priority or enforceability of any Lien on the First Priority
Collateral granted to any First Priority Creditor. Notwithstanding any failure by any First
Priority Secured Party to perfect its Lien on the First Priority Collateral granted to such First
Priority Secured Party or any avoidance, invalidation or subordination by any third party or court
of competent jurisdiction of the Lien on the First Priority Collateral granted to the First
Priority Secured Parties, the priority and rights as between the First Priority Secured Parties, on
the one hand, and the Second Priority Secured Parties, on the other hand, with respect to the
Common Collateral shall be as set forth herein.
2.2 Nature of First Priority Obligations. The Second Priority Representative on
behalf of itself and the other Second Priority Secured Parties acknowledges that a portion of the
First Priority Obligations represents debt that is revolving in nature and that the amount thereof
that may be outstanding at any time or from time to time may be increased or reduced and
subsequently reborrowed, and that the terms of the First Priority Obligations may be modified,
extended or amended from time to time, and that the aggregate amount of the First Priority
Obligations may be increased, replaced or refinanced, in each event, without notice to or consent
by the Second Priority Secured Parties and without affecting the provisions hereof. The lien
priorities provided in Section 2.1 shall not be altered or otherwise affected by any such
amendment, modification, supplement, extension, repayment, reborrowing, increase, replacement,
renewal, restatement or refinancing of the First Priority Obligations, or any portion thereof, or
by any amendment, modification, supplement, extension, repayment, reborrowing, increase,
replacement, renewal, restatement or refinancing of the Second Priority Obligations, or any portion
thereof.
2.3 Agreements Regarding Actions to Perfect Liens. (a) The Second Priority
Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1
financing statements, patent, trademark or copyright filings or other filings or recordings filed
or recorded by or on behalf of the Second Priority Representative shall be in form satisfactory to
the First Priority Representative.
(b) The Second Priority Representative agrees on behalf of itself and the other Second
Priority Secured Parties that all Second Priority Security Documents entered into on or about the
date hereof shall contain the following notation (or such other notation acceptable to the First
Priority Representatives): “The lien and security interest created by this Agreement on the
property described herein is junior and subordinate, in accordance with the provisions of the
Intercreditor Agreement dated as of April 26, 2011, among Bank of America, N.A., as First Priority
Representative, U.S. National Bank Association, as Second Priority Representative, Commercial
Vehicle Group, Inc. and the other Loan Parties referred to therein, as amended from time to time,
to the lien and security interest on such property created by any similar instrument now or
hereafter granted to Bank of America, N.A., as collateral agent under the First Priority Documents
(as defined in the Intercreditor Agreement), and its successors and assigns, in such property.”
The Second Priority Representative agrees on behalf of itself and the other Second Priority Secured
Parties that all other Second Priority Security Documents shall bear an identical or, in the event
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that the Existing First Priority Agreement is no longer extant or BofA shall cease to be the
First Priority Representative, a substantially similar notation.
(c) The First Priority Representative hereby agrees that, to the extent that it holds, or a
third party holds on its behalf, physical possession of or “control” (as defined in the Uniform
Commercial Code) (or any similar concept under foreign law) over Common Collateral pursuant to the
First Priority Security Documents, such possession or control is also for the benefit of the Second
Priority Representative and the other Second Priority Secured Parties solely to the extent required
to perfect their security interest in such Common Collateral (such bailment being intended, among
other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the
Uniform Commercial Code). Nothing in the preceding sentence shall be construed to impose any duty
on the First Priority Representative (or any third party acting on its behalf) with respect to such
Common Collateral or provide the Second Priority Representative or any other Second Priority
Secured Party with any rights with respect to such Common Collateral beyond those specified in this
Agreement and the Second Priority Security Documents; provided that subsequent to the
occurrence of the First Priority Obligations Payment Date, the First Priority Representative shall
(i) deliver to the Second Priority Representative, at the Company’s sole cost and expense, the
Common Collateral in its possession or control together with any necessary endorsements to the
extent required by the Second Priority Documents or (ii) direct and deliver such Common Collateral
as a court of competent jurisdiction otherwise directs; provided, further, that the
provisions of this Agreement are intended solely to govern the respective Lien priorities as
between the First Priority Secured Parties and the Second Priority Secured Parties and shall not
impose on the First Priority Secured Parties any obligations in respect of the disposition of any
Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any
claims thereon in favor of any other Person that is not a Secured Party.
2.4 No New Liens. So long as the First Priority Obligations Payment Date has not
occurred, the parties hereto agree that if any Second Priority Secured Party shall acquire or hold
any Lien on any assets of any Loan Party securing any Second Priority Obligation which assets are
required under the First Priority Documents to be pledged as First Priority Collateral and are not
also subject to the First Priority Lien of the First Priority Representative under the First
Priority Documents, then the Second Priority Representative, shall be deemed to also hold and have
held such Lien for the benefit of the First Priority Secured Parties and shall promptly notify the
First Priority Representative of the existence of such Lien and, upon demand by the First Priority
Representative, will without the need for any further consent of any other Second Priority Secured
Party, notwithstanding anything to the contrary in any other Second Priority Document, assign it to
the First Priority Representative as security for the First Priority Obligations (in which case the
Second Priority Representative may retain a junior lien on such assets subject to the terms
hereof). To the extent that the foregoing provisions are not complied with for any reason, without
limiting any other rights and remedies available to the First Priority Secured Parties, the Second
Priority Representative and the other Second Priority Secured Parties agree that any amounts
received by or distributed to any of them pursuant to or as a result of Liens granted in
contravention of this Section 2.4 shall be subject to Section 4.1.
2.5 Further Assurances. Each of the First Priority Representative, for itself and on
behalf of the other First Priority Secured Parties, and the Second Priority Representative, for
itself and on behalf of the other Second Priority Secured Parties, and each Loan Party party
hereto, for itself and on behalf of its subsidiaries, agrees that it will execute, or will cause to
be executed, any and all further documents, agreements and instruments, and take all such further
actions, as may be required under any applicable law, or which the First Priority Representative or
the Second Priority Representative may reasonably
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request, to effectuate the terms of this Agreement, including the relative Lien priorities
provided for herein.
SECTION 3. ENFORCEMENT RIGHTS.
3.1 Exclusive Enforcement. Until the First Priority Obligations Payment Date has
occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party,
the First Priority Secured Parties shall have the exclusive right to take and continue any
Enforcement Action and make determinations regarding the release, dispositions or restrictions with
respect to the Common Collateral, without any consultation with or consent of any Second Priority
Secured Party, but subject to the proviso set forth in Section 5.1. Upon the occurrence and during
the continuance of a Default or an Event of Default under (and defined in) the First Priority
Documents, the First Priority Representative and the other First Priority Secured Parties may take
and continue any Enforcement Action with respect to the First Priority Obligations and the Common
Collateral in accordance with the terms of the First Priority Documents in such order and manner as
they may determine in their sole discretion. Such exercise and enforcement shall include the rights
of an agent appointed by any of them to sell or otherwise dispose of the Common Collateral upon
foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all
rights and remedies of a secured creditor under the Uniform Commercial Code and of a secured
creditor under the Bankruptcy Law of any applicable jurisdiction.
3.2 Standstill and Waivers. The Second Priority Representative, on behalf of itself
and the other Second Priority Secured Parties, agrees that, until the First Priority Obligations
Payment Date has occurred, subject to the proviso set forth in Section 5.1:
(a) they will not take or cause to be taken any Enforcement Action;
(b) they will not take or cause to be taken any action for the purpose or effect of
which is to make any Lien in respect of any Second Priority Obligation pari passu with or
senior to, or to give any Second Priority Secured Party any preference or priority relative
to, the Liens with respect to the First Priority Obligations or the First Priority Secured
Parties with respect to any of the Common Collateral;
(c) they will not contest, oppose, object to, interfere with, hinder or delay, in any
manner, whether by judicial proceedings (including the filing of an Insolvency Proceeding)
or otherwise, any foreclosure, sale, lease, exchange, transfer or other disposition of the
Common Collateral or any other First Priority Collateral by any First Priority Secured Party
or any other Enforcement Action taken (or any forbearance from taking any Enforcement
Action) by or on behalf of any First Priority Secured Party;
(d) they have no right to (i) direct either the First Priority Representative or any
other First Priority Secured Party to exercise any right, remedy or power with respect to
the Common Collateral or pursuant to the First Priority Security Documents or (ii) consent
or object to the exercise by the First Priority Representative or any other First Priority
Secured Party of any right, remedy or power with respect to the Common Collateral or
pursuant to the First Priority Security Documents or to the timing or manner in which any
such right is exercised or not exercised (or, to the extent they may have any such right
described in this clause (c), whether as a junior lien creditor or otherwise, they hereby
irrevocably waive such right);
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(e) they will not institute any suit or other proceeding or assert in any suit,
Insolvency Proceeding or other proceeding any claim against any First Priority Secured Party
seeking damages from or other relief by way of specific performance, instructions or
otherwise, with respect to, and no First Priority Secured Party shall be liable for, any
action taken or omitted to be taken by any First Priority Secured Party with respect to the
Common Collateral or pursuant to the First Priority Documents;
(f) they will not make any judicial or nonjudicial claim or demand or commence any
judicial or non-judicial proceedings against any Loan Party or any of its subsidiaries or
affiliates under or with respect to any Second Priority Security Document seeking payment or
damages from or other relief by way of specific performance, instructions or otherwise under
or with respect to any Second Priority Security Document or exercise any right, remedy or
power under or with respect to, or otherwise take any action to enforce, any Second Priority
Security Document;
(g) they will not commence judicial or nonjudicial foreclosure proceedings with
respect to, seek to have a trustee, receiver, liquidator or similar official appointed for
or over, or attempt any action to take possession of any Common Collateral, or exercise any
right, remedy or power with respect to, or otherwise take any action to enforce their
interest in or realize upon, the Common Collateral or pursuant to the Second Priority
Security Documents;
(h) they will not seek, and hereby waive any right, to have the Common Collateral or
any part thereof marshaled upon any foreclosure or other disposition of the Common
Collateral and hereby waive, to the fullest extent permitted by law, any right to demand,
request, plead or otherwise assert or claim the benefit of, any marshalling, appraisal,
valuation or other similar right that may otherwise be available under applicable law with
respect to the Common Collateral or any other similar rights a junior secured creditor may
have under applicable law; and
(i) they will not object to the forbearance by the First Priority Secured Parties from
bringing or pursuing any foreclosure proceeding or action or any other exercise of any
rights or remedies relating to the Common Collateral or any other First Priority Collateral.
provided that, notwithstanding the foregoing, any Second Lien Secured Party may exercise
its rights and remedies in respect of the Common Collateral under and to the extent provided for in
the Second Lien Security Documents or applicable law (and any recovery therefrom shall be for the
benefit of the First Priority Secured Parties) after the passage of a period of 180 days (the
"Standstill Period”) from the date of delivery of a notice in writing to the First Priority
Representative of its intention to exercise such rights and remedies, which notice may only be
delivered following the occurrence of and during the continuation of an “Event of Default” under
and as defined in the Second Lien Agreements; provided, further, however, that,
notwithstanding the foregoing, in no event shall any Second Lien Secured Party exercise or continue
to exercise any such rights or remedies if, notwithstanding the expiration of the Standstill
Period, (i) any First Priority Secured Party shall have commenced and be diligently pursuing the
exercise of any of its rights and remedies with respect to any of the Common Collateral (prompt
notice of such exercise to be given to the Second Lien Representative) or (ii) an Insolvency
Proceeding in respect of any Loan Party shall have been commenced; and provided,
further, that in any Insolvency Proceeding commenced by or against any Loan Party, the
Second Lien Representative and the Second Lien Secured Parties may take only such actions as are
expressly permitted by Section 5. After the expiration of the Standstill Period, so long as the
First Priority Representative or any First Priority Secured Party has not commenced any Enforcement
Actions with respect to any portion of the Common
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Collateral, any Second Lien Secured Party may commence an Enforcement Action with respect to all
or a material portion of the Common Collateral and pursue the exercise of its rights, provided
that all of the other provisions of this Agreement are complied with.
3.3 Judgment Creditors. In the event that any Second Priority Secured Party becomes a
judgment lien creditor in respect of any Common Collateral as a result of its enforcement of its
rights as an unsecured creditor, such judgment lien shall be subject to the terms of this Agreement
for all purposes (including in relation to the First Priority Liens and the First Priority
Obligations) to the same extent as all other Liens securing the Second Priority Obligations are
subject to the terms of this Agreement.
3.4 Cooperation. The Second Priority Agent, on behalf of itself and the other Second
Priority Secured Parties, agrees that each of them shall take such actions as the First Priority
Representative shall request in connection with the exercise by the First Priority Secured Parties
of their rights set forth herein.
3.5 No Additional Rights For the Loan Parties Hereunder. Except as provided in
Section 3.6, if any First Priority Secured Party or Second Priority Secured Party shall enforce its
rights or remedies in violation of the terms of this Agreement, no Loan Party shall be entitled to
use such violation as a defense to any action by any First Priority Secured Party or Second
Priority Secured Party, or to assert such violation as a counterclaim or basis for set off or
recoupment against any First Priority Secured Party or Second Priority Secured Party.
3.6 Actions Upon Breach. (a) If any Second Priority Secured Party, contrary to this
Agreement, commences or participates in any action or proceeding against any Loan Party or the
Common Collateral, such Loan Party, with the prior written consent of the First Priority
Representative, may interpose as a defense or dilatory plea the making of this Agreement, and any
First Priority Secured Party may intervene and interpose such defense or plea in its or their name
or in the name of such Loan Party.
(b) Should any Second Priority Secured Party, contrary to this Agreement, in any way take,
attempt to take or threaten in writing to take any action with respect to the Common Collateral
(including any attempt to realize upon or enforce any remedy with respect to this Agreement), or
take any other action in violation of this Agreement, or fail to take any action required by this
Agreement, this Agreement shall create an irrebuttable presumption and admission by such Second
Priority Secured Party that any First Priority Secured Party (in its own name or in the name of the
relevant Loan Party) or the relevant Loan Party may obtain relief against such Second Priority
Secured Party by injunction, specific performance and/or other appropriate equitable relief, it
being understood and agreed by the Second Priority Representative on behalf of each Second Priority
Secured Party that (i) the First Priority Secured Parties’ damages from such actions of any Second
Priority Secured Party may at that time be difficult to ascertain and may be irreparable and the
harm to the First Priority Secured Parties may not be adequately compensated in damages and (ii)
each Second Priority Secured Party waives any defense that the Loan Parties and/or the First
Priority Secured Parties cannot demonstrate damage and/or be made whole by the awarding of damages.
3.7 Agreement to be Bound. (a) The Second Priority Representative and, by virtue of
accepting the Notes or any other document evidencing the Second Priority Obligations, the Second
Priority Secured Parties, acknowledge and agree that no covenant, agreement or restriction
contained in the Second Priority Security Documents or any other Second Priority Documents shall be
deemed to restrict in any way the rights and remedies of the First Priority Representative or the
First Priority Secured Parties with respect to the Collateral as set forth in this Agreement and
the First Priority Loan Documents.
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(b) By accepting any Note or any other document evidencing the Second Priority Obligations,
each Second Priority Secured Parties has agreed to be bound by the terms of this Agreement. In
addition, the limitations and restrictions upon the Second Priority Representative and its waivers
of rights and remedies in this Agreement shall apply to limit, restrict and waive the rights and
remedies of all other Second Priority Secured Parties to the extent that any independent rights or
remedies for the Second Priority Secured Parties exist under or by virtue of the Second Priority
Documents, the Second Priority Documents, or the Liens on the Common Collateral granted thereby or
applicable law.
SECTION 4 . APPLICATION OF PROCEEDS OF COMMON COLLATERAL; DISPOSITIONS AND RELEASES OF
COMMON COLLATERAL; INSPECTION AND INSURANCE.
4.1 Application of Proceeds; Turnover Provisions. All proceeds of Common Collateral
(including any interest earned thereon) resulting from the sale, collection or other disposition of
Common Collateral resulting from any Enforcement Action or that occurs after and during the
continuation of any Event of Default (as defined in the First Priority Documents), whether or not
pursuant to an Insolvency Proceeding, or during the pendency of any Insolvency Proceeding shall be
distributed as follows: first to the First Priority Representative for application to the
First Priority Obligations in accordance with the terms of the First Priority Documents, until the
First Priority Obligations Payment Date has occurred and thereafter, to the Second Priority
Representative for application in accordance with the terms of the Second Priority Documents.
Until the occurrence of the First Priority Obligations Payment Date, any Common Collateral,
including any such Common Collateral constituting proceeds, that may be received by any Second
Priority Secured Party in violation of this Agreement shall be segregated and held in trust and
promptly paid over to the First Priority Representative, for the benefit of the First Priority
Secured Parties, in the same form as received, with any necessary endorsements, and each Second
Priority Secured Party hereby authorizes the First Priority Representative to make any such
endorsements as agent for the Second Priority Representative (which authorization, being coupled
with an interest, is irrevocable).
4.2 Releases of Second Priority Lien. (a) Upon (i) any release, sale or other
disposition of Common Collateral permitted pursuant to the terms of the First Priority Documents
that results in the release of the First Priority Lien on any Common Collateral (including any sale
or other disposition pursuant to any Enforcement Action) or (ii) any other release of Common
Collateral from the Lien under the First Priority Security Documents that is permitted pursuant to
the terms of the First Priority Documents (in each case other than any release of Common Collateral
from the Lien under the First Priority Security Documents made following or in connection with the
indefeasible payment in cash in full (or cash collateralization or defeasance in accordance with
the terms of the First Priority Documents or receipt of other consideration acceptable to the First
Priority Secured Parties) of the First Priority Obligations, the terminations of all commitments to
extend credit under the First Priority Documents (including any obligations replacing, renewing or
refinancing any previously existing First Priority Obligations) and any outstanding letters of
credit or similar instruments issued under the First Priority Documents (other than such as have
been cash collateralized or defeased in accordance with the terms of the First Priority Security
Documents)), the Second Priority Lien on such Common Collateral (excluding any portion of the
proceeds of such Common Collateral remaining after the First Priority Obligations Payment Date
occurs) shall be automatically and unconditionally released, as and when, but only to the extent
such First Priority Liens on such Common Collateral are released, with no further consent or action
of any Person.
(b) The Second Priority Representative shall promptly execute and deliver such release
documents and instruments and shall take such further actions as the First Priority Representative
(or, with the consent of the First Priority Representative, the Company) shall request to evidence
any release
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of the Second Priority Lien described in paragraph (a). The Second Priority Representative
hereby appoints the First Priority Representative and any officer or duly authorized person of the
First Priority Representative, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second
Priority Representative and in the name of the Second Priority Representative or in the First
Priority Representative’s own name, from time to time, in the First Priority Representative’s sole
discretion, for the purposes of carrying out the terms of this Section 4.2, to take any and all
appropriate action and to execute and deliver any and all documents and instruments as may be
necessary or desirable to accomplish the purposes of this Section 4.2, including any financing
statements, endorsements, assignments, releases or other documents or instruments of transfer
(which appointment, being coupled with an interest, is irrevocable).
4.3 Inspection Rights and Insurance. (a) Any First Priority Secured Party and its
representatives and invitees may at any time inspect, repossess, remove and otherwise deal with the
Common Collateral in accordance with the terms of the First Priority Documents, and the First
Priority Representative may advertise and conduct public auctions or private sales of the Common
Collateral, in each case without notice to, the involvement of or interference by any Second
Priority Secured Party or liability to any Second Priority Secured Party.
(b) Until the First Priority Obligations Payment Date has occurred, the First Priority
Representative will have the sole and exclusive right (i) to be named as additional insured and
loss payee under any insurance policies maintained from time to time by any Loan Party (except that
the Second Priority Representative shall have the right to be named as additional insured and loss
payee so long as its second lien status is identified in a manner satisfactory to the First
Priority Representative), (ii) to adjust or settle any insurance policy or claim covering the
Common Collateral in the event of any loss thereunder in accordance with the terms of the First
Priority Documents and (iii) to approve any award granted in any condemnation or similar proceeding
affecting the Common Collateral in accordance with the terms of the First Priority Documents.
4.4 Rights as Unsecured Creditors. Notwithstanding anything to the contrary in this
Agreement, the Second Priority Representative and the other Second Priority Secured Parties may
exercise rights and remedies as unsecured creditors against the Company or any other Loan Party
that has guaranteed the Second Priority Obligations in accordance with the terms of the Second
Priority Documents, including the acceleration of any Indebtedness or other obligations owing under
the Second Priority Documents or the demand for payment under the guarantee in respect thereof, in
each case in accordance with the terms of the applicable Second Priority Documents and applicable
law and not otherwise inconsistent with the terms of this Agreement. Nothing in this Agreement
shall prohibit the receipt by any Second Priority Representative or any other Second Priority
Secured Party of the required payments of interest and principal so long as such receipt is not the
direct or indirect result of (a) the exercise by any Second Priority Representative or any other
Second Priority Secured Party of rights or remedies as a secured creditor in respect of Common
Collateral or other collateral or (b) the enforcement in contravention of this Agreement of any
Lien in respect of Second Priority Liens held by any of them. Nothing in this Agreement impairs or
otherwise adversely affects any rights or remedies the First Priority Representative or the other
First Priority Secured Parties may have with respect to the First Priority Collateral.
SECTION 5 . INSOLVENCY PROCEEDINGS.
5.1 Filing of Motions. Until the First Priority Obligations Payment Date has
occurred, the Second Priority Representative agrees on behalf of itself and the other Second
Priority Secured Parties
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that no Second Priority Secured Party shall, in or in connection with any Insolvency
Proceeding involving any Loan Party, file any pleading or motion, take any position at any hearing
or proceeding of any nature, or otherwise take any action whatsoever, in each case in respect of
any of the Common Collateral, including with respect to the determination of any Liens or claims
(including the validity, priority and enforceability thereof) held by the First Priority
Representative or any other First Priority Secured Party or the value of any claims of such parties
under Section 506(a) of the Bankruptcy Code or otherwise; provided that (a) in any
Insolvency Proceeding involving any Loan Party, the Second Priority Representative may file a proof
of claim or statement of interest with respect to the applicable Second Priority Liens and (b) the
Second Priority Representative may take any such action (not adverse to the First Priority Liens on
the Common Collateral securing the First Priority Obligations, or the rights of either the First
Priority Representative or the other First Priority Secured Parties to exercise remedies in respect
thereof) to the extent required to create, prove, perfect, preserve or protect (but not enforce)
its rights in, and perfection and priority of its Liens on, the Common Collateral, in each case of
(a) and (b) above, to the extent such action is not inconsistent with, and could not result in a
resolution inconsistent with, the terms of this Agreement.
5.2 Financing Matters. If any Loan Party becomes subject to any Insolvency
Proceeding, and if the First Priority Representative or any other First Priority Secured Parties
desire to consent (or not object) to the use of cash collateral under the Bankruptcy Code or any
other Bankruptcy Law or to provide financing to any Loan Party under the Bankruptcy Code or any
other Bankruptcy Law or to consent (or not object) to the provision of such financing (including
financing that primes or takes priority over existing Liens) to any Loan Party by any third party
(any such financing, “DIP Financing”), then the Second Priority Representative agrees, on
behalf of itself and the other Second Priority Secured Parties, that each Second Priority Secured
Party (a) will be deemed to have consented to, will raise no objection to, and will not support any
other Person objecting to, the use of such cash collateral or to such DIP Financing, (b) will not
request or accept adequate protection or any other relief in connection with the use of such cash
collateral or such DIP Financing except as set forth in Section 5.4, (c) will subordinate (and will
be deemed hereunder to have subordinated) the Second Priority Liens (i) to any replacement Liens
provided as adequate protection to the First Priority Secured Parties on the same terms as the
Second Priority Liens are subordinated to the First Priority Liens under this Agreement and (ii)(x)
to the Liens securing such DIP Financing, (y) to any “carve-out” agreed to by the First Priority
Representative or the other First Priority Secured Parties and (z) in the case of any Insolvency
Proceeding outside the United States, to any administrative or other charges granted in such
Insolvency Proceeding that are similar in nature to a “carve-out” and agreed to by the First
Priority Representative or the other First Priority Secured Parties, in the case of each of clauses
(ii) (x), (y) and (z), with such subordination to be on the same terms as the First Priority Liens
are subordinated thereto (and such subordination will not alter in any manner the terms of this
Agreement), (d) will be deemed to have consented to, and will raise no objection to, and will not
support any other Person objecting to (i) any motion for relief from the automatic stay or from any
injuction against foreclosure or enforcement in respect of the First Priority Obligations made by
the First Priority Representative or any First Priority Secured Party, (ii) any lawful exercise by
the First Priority Representative or any other First Priority Secured Party of the right to credit
bid any First Priority Obligations at any sale in foreclosure of First Priority Collateral or (iii)
any other request for judicial relief made in any court by the First Priority Representative or any
other First Priority Secured Party relating to the lawful enforcement of any First Priority Lien.
5.3 Relief From the Automatic Stay. The Second Priority Representative agrees, on
behalf of itself and the other Second Priority Secured Parties, that none of them will seek relief
from the automatic stay or from any other stay in any Insolvency Proceeding or take any action in
derogation thereof, in each
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case in respect of any Common Collateral, without the prior written consent of the First
Priority Representative and the Required Lenders under (and as defined in) the First Priority
Agreement.
5.4 Adequate Protection. (a) The Second Priority Representative, on behalf of itself
and the other Second Priority Secured Parties, agrees that none of them shall object to, contest,
or support any other Person objecting to or contesting (i) any request by the First Priority
Representative or the other First Priority Secured Parties for adequate protection or any adequate
protection provided to the First Priority Representative or the other First Priority Secured
Parties or (ii) any objection by the First Priority Representative or any other First Priority
Secured Parties to any motion, relief, action or proceeding based on a claim of a lack of adequate
protection or (iii) the payment of interest, fees, expenses, costs, charges or other amounts to the
First Priority Representative or any other First Priority Secured Party under Section 506(b) or
506(c) of the Bankruptcy Code or otherwise.
(b) Notwithstanding anything contained in this Section and in Section 5.2(b) (but subject
to all other provisions of this Agreement, including Sections 5.2(a) and 5.3), in any Insolvency
Proceeding, (i) if the First Priority Secured Parties (or any subset thereof) are granted adequate
protection that includes additional collateral (with replacement Liens on such additional
collateral) and superpriority claims in connection with any DIP Financing or use of cash
collateral, then in connection with any such DIP Financing or use of cash collateral the Second
Priority Representative, on behalf of itself and any of the other Second Priority Secured Parties,
may seek or accept adequate protection consisting solely of (x) a replacement Lien on the same
additional collateral, subordinated to the Liens securing (1) such DIP Financing on the same terms
as the First Priority Liens are subordinated thereto (and such subordination will not alter in any
manner the terms of this Agreement), and (2) the First Priority Obligations on the same basis as
the other Liens securing the Second Priority Obligations are so subordinated to the First Priority
Obligations under this Agreement and (y) superpriority claims junior in all respects to the
superpriority claims granted to the First Priority Secured Parties, provided, however, that each
Second Priority Representative shall have irrevocably agreed, pursuant to Section 1129(a)(9) of the
Bankruptcy Code, on behalf of itself and each other Second Priority Secured Party, in any
stipulation or order granting such adequate protection, that such junior superpriority claims may
be paid under any plan of reorganization in any combination of cash, debt, equity or other property
having a value on the effective date of such plan equal to the allowed amount of such claims and
(ii) in the event the Second Priority Representative, on behalf of itself and the other Second
Priority Secured Parties, seeks or accepts adequate protection in accordance with clause (i) above
in the form of additional collateral, then the Second Priority Representative, on behalf of itself
or any of the other Second Priority Secured Parties, agrees that the First Priority Representative
shall also be granted a senior Lien on such additional collateral as security for the First
Priority Obligations and any such DIP Financing and that any Lien on such additional collateral
securing the Second Priority Obligations shall be subordinated to (A) the Liens on such collateral
securing the First Priority Obligations and any other Liens granted to the First Priority Secured
Parties as adequate protection on the same terms that the Liens securing the Second Priority
Obligations are subordinated to such First Priority Obligations under this Agreement and (B) (x)
the Liens on such collateral securing such DIP Financing (and all obligations relating thereto),
(y) any “carve-out” agreed to by the First Priority Representative or the other First Priority
Secured Parties and (z) in the case of any Insolvency Proceeding outside the United States, any
administrative or other charges granted in any Insolvency Proceeding that are similar in nature to
a “carve-out” and agreed to by the First Priority Representative or the other First Priority
Secured Parties, in the case of each of clauses (B) (x), (y) and (z), with such subordination to be
on the same terms as the Liens securing the First Priority Obligations are subordinated thereto
(and such subordination will not alter in any manner the terms of this Agreement). The Second
Priority Representative, on behalf of itself and the other Second Priority Secured Parties, agrees
that except as expressly set forth in this Section 5.4, and except for adequate
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protection in the form of access to information to the extent such access is also made
available to the First Priority Representative on behalf of itself and the other First Priority
Secured Parties, none of them shall seek or accept adequate protection without the prior written
consent of the First Priority Representative.
(c) Neither the Second Priority Representative nor any other Second Priority Secured Party
shall oppose or seek to challenge any claim by the First Priority Representative or any other First
Priority Secured Party for allowance in any Insolvency Proceeding of First Priority Obligations
consisting of post-petition interest, fees or expenses. Regardless of whether any such claim for
post-petition interest, fees or expenses is allowed or allowable, and without limiting the
generality of the other provisions of this Agreement, this Agreement expressly is intended to
include and does include the “rule of explicitness” in that this Agreement expressly entitles the
First Priority Secured Parties, and is intended to provide the First Priority Secured Parties with
the right, to receive payment of all post-petition interest, fees or expenses through distributions
made pursuant to the provisions of this Agreement even though such interest, fees and expenses are
not allowed or allowable against the bankruptcy estate of the Company or any other Loan Party under
Section 502(b)(2) or Section 506(b) of the Bankruptcy Code or under any other provision of the
Bankruptcy Code or any other applicable law.
5.5 Avoidance Issues. If any First Priority Secured Party is required in any
Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the bankruptcy
trustee or the estate of any Loan Party, because such amount was avoided or ordered to be paid or
disgorged for any reason, including without limitation because it was found to be a fraudulent or
preferential transfer, any amount (a “Recovery”), whether received as proceeds of security,
enforcement of any right of set-off or otherwise, then the First Priority Obligations shall be
reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not
occurred and the First Priority Obligations Payment Date, if it shall otherwise have occurred,
shall be deemed not to have occurred. If this Agreement shall have been terminated prior to such
Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination
shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties
hereto. The Second Priority Secured Parties agree that none of them shall be entitled to benefit
from any avoidance action affecting or otherwise relating to any distribution or allocation made in
accordance with this Agreement, whether by preference or otherwise, it being understood and agreed
that the benefit of such avoidance action otherwise allocable to them shall instead be allocated
and turned over for application in accordance with the priorities set forth in this Agreement.
5.6 Asset Dispositions in an Insolvency Proceeding. Neither the Second Priority
Representative nor any other Second Priority Secured Party shall, in an Insolvency Proceeding or
otherwise, oppose any sale or other disposition of any assets of any Loan Party that is supported
by the First Priority Secured Parties, and the Second Priority Representative and each other Second
Priority Secured Party will be deemed to have consented under Section 363 of the Bankruptcy Code
(and otherwise) to any such sale or other disposition of assets supported by the First Priority
Secured Parties and to have released their Liens on such assets; provided, to the extent
such sale is to be free and clear of Liens, that the Liens securing the First Priority Obligations
and the Second Priority Obligations will attach to the proceeds of the sale on the same basis of
priority as the Liens released on the assets sold.
5.7 Separate Grants of Security and Separate Classification. Each Second Priority
Secured Party acknowledges and agrees that (a) the grants of Liens pursuant to the First Priority
Security Documents and the Second Priority Security Documents constitute two separate and distinct
grants of Liens and (b) because of, among other things, their differing rights in the Common
Collateral, the Second Priority Obligations are fundamentally different from the First Priority
Obligations and must be separately classified in any plan of reorganization proposed or adopted in
an Insolvency Proceeding. To further
17
effectuate the intent of the parties as provided in the immediately preceding sentence, if it
is held that the claims of the First Priority Secured Parties and Second Priority Secured Parties
in respect of the Common Collateral constitute only one class of secured claims (rather than
separate classes of senior and junior secured claims), then the Second Priority 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 the Common Collateral
(with the effect being that, to the extent that the aggregate value of the Common Collateral is
sufficient (for this purpose ignoring all claims held by the Second Priority Secured Parties), the
First Priority 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
Second Priority Secured Parties, with the Second Priority Secured Parties hereby acknowledging and
agreeing to turn over to the First Priority 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 Second Priority Secured Parties),
and that, until turned over to the First Priority Secured Parties, such amounts will be held in
trust for the First Priority Secured Parties.
5.8 No Waivers of Rights of First Priority Secured Parties. Nothing contained herein
shall prohibit or in any way limit the First Priority Representative or any other First Priority
Secured Party from objecting in any Insolvency Proceeding or otherwise to any action taken by any
Second Priority Secured Party not expressly permitted hereunder, including the seeking by any
Second Priority Secured Party of adequate protection (except as provided in Section 5.4) or the
asserting by any Second Priority Secured Party of any of its rights and remedies under the Second
Priority Documents or otherwise.
5.9 Plans of Reorganization. No Second Priority Secured Party shall support or vote
in favor of any plan of reorganization (and each shall be deemed to have voted to reject any plan
of reorganization) unless such plan (a) pays off, in cash in full, all First Priority Obligations
or (b) is accepted by the class of holders of First Priority Obligations voting thereon.
5.10 Effectiveness in Insolvency Proceedings. This Agreement, which the parties
hereto expressly acknowledge is a “subordination agreement” under section 510(a) of the Bankruptcy
Code, shall be effective before, during and after the commencement of an Insolvency Proceeding.
All references to any of the Company or any Loan Party herein shall apply to any trustee for such
Person and such Person as debtor in possession. The relative rights as to the Common Collateral
and other collateral and proceeds thereof shall continue after the filing thereof on the same basis
as prior to the date of the petition, subject to any court order approving the financing of, or use
of cash collateral by, any such Person.
5.11 Reorganization Securities. If, in any Insolvency Proceeding, debt obligations of
the reorganized debtor secured by Liens upon any property of the reorganized debtor
(“Reorganization Securities”) are distributed, pursuant to a plan of reorganization or
similar dispositive restructuring plan, on account of the Second Priority Obligations, then the
provisions of this Agreement will survive the distribution of such debt obligations pursuant to
such plan and will apply with like effect to the Liens securing such debt obligations. In no event
shall the Second Priority Creditors be required to turn over to the First Priority Representative
or any other First Priority Secured Party any Reorganization Securities to the extent the same are
subject to this Section 5.11.
5.12 Post-Petition Claims. None of the Second Priority Representative, the Trustee or
any Second Priority Secured Party shall oppose or seek to challenge any claim by the First Priority
Representative or any other First Priority Secured Party for allowance in any Insolvency Proceeding
of
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First Priority Obligations consisting of Post-Petition Interest or indemnities to the extent
of the value of the Liens in favor of the First Priority Representative and the other First
Priority Secured Parties, without regard to the existence of the Liens of the Second Priority
Representative on behalf of the Second Priority Secured Parties on the Common Collateral.
5.13 Waivers. Until the First Priority Obligations Payment Date, the Second Priority
Representative, on behalf of itself and each Second Priority Secured Party, agrees that (a) it will
not assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a
parity with the Liens securing the First Priority Obligations for costs or expenses of preserving
or disposing of any Common Collateral or other collateral and (b) waives any claim it may now or
hereafter have arising out of the election by any First Priority Creditor of the application of
Section 1111(b)(2) of the Bankruptcy Code.
SECTION 6. SECOND PRIORITY DOCUMENTS AND FIRST PRIORITY DOCUMENTS.
(a) Each Loan Party and the Second Priority Representative, on behalf of itself and the other
Second Priority Secured Parties, agrees that it shall not at any time execute or deliver any
amendment or other modification to any of the Second Priority Documents inconsistent with or in
violation of this Agreement.
(b) Each Loan Party and the First Priority Representative, on behalf of itself and the other
First Priority Secured Parties, agrees that it shall not at any time execute or deliver any
amendment or other modification to any of the First Priority Documents inconsistent with or in
violation of this Agreement.
(c) In the event the First Priority Representative enters into any amendment, waiver or
consent in respect of any of the First Priority Security Documents for the purpose of adding to, or
deleting from, or waiving or consenting to any departures from any provisions of, any First
Priority Security Document or changing in any manner the rights of any parties thereunder, then
such amendment, waiver or consent shall apply automatically to any comparable provision of the
Comparable Second Priority Security Document without the consent of or action by any Second
Priority Secured Party (with all such amendments, waivers and modifications subject to the terms
hereof); provided that (other than with respect to amendments, modifications or waivers
that secure additional extensions of credit and add additional secured creditors and do not violate
the express provisions of the Second Priority Agreements), (i) no such amendment, waiver or consent
shall have the effect of releasing assets subject to the Lien of any Second Priority Security
Document, except to the extent that a release of such Lien is permitted by Section 4.2 or change
the type of assets that constitute Collateral under any Second Priority Security Documents, (ii)
any such amendment, waiver or consent that materially and adversely affects the rights of the
Second Priority Secured Parties or affects the First Priority Secured Parties in a different manner
shall not apply to the Second Priority Security Documents without the consent of the Second
Priority Representative and (iii) notice of such amendment, waiver or consent shall be given to the
Second Priority Representative no later than 5 days after its effectiveness; provided that
the failure to give such notice shall not affect the effectiveness and validity thereof.
SECTION 7. RELIANCE; WAIVERS; ETC.
7.1 Reliance. The First Priority Documents are deemed to have been executed and
delivered, and all extensions of credit thereunder are deemed to have been made or incurred, in
reliance upon this Agreement. The Second Priority Representative, on behalf of it itself and the
other Second Priority Secured Parties, expressly waives all notice of the acceptance of and
reliance on this Agreement by the First Priority Secured Parties. The Second Priority Documents
are deemed to have been executed and
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delivered and all issuances of debt and other extensions of credit thereunder are deemed to
have been made or incurred, in reliance upon this Agreement. The First Priority Representative
expressly waives, on behalf of itself and all the other First Priority Secured Parties, all notices
of the acceptance of and reliance by the Second Priority Representative and the other Second
Priority Secured Parties.
7.2 No Warranties or Liability. The Second Priority Representative and the First
Priority Representative acknowledge and agree that neither has made any representation or warranty
with respect to the execution, validity, legality, completeness, collectibility or enforceability
of any other First Priority Document or any Second Priority Document. Except as otherwise provided
in this Agreement, the Second Priority Representative and the First Priority Representative will be
entitled to manage and supervise their respective extensions of credit to any Loan Party in
accordance with law and their usual practices, modified from time to time as they deem appropriate.
7.3 No Waivers. No right or benefit of any party hereunder shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of such party or any other
party hereto or by any noncompliance by any Loan Party with the terms and conditions of any of the
First Priority Documents or the Second Priority Documents.
SECTION 8. OBLIGATIONS UNCONDITIONAL.
8.1 First Priority Obligations Unconditional. All rights and interests of the First
Priority Secured Parties hereunder, and all agreements and obligations of the Second Priority
Secured Parties (and, to the extent applicable, the Loan Parties) hereunder, shall remain in full
force and effect irrespective of:
(a) any lack of validity or enforceability of any First Priority Document or any First
Priority Liens;
(b) any change in the time, place or manner of payment of, or in any other term of,
all or any portion of the First Priority Obligations, or any amendment, waiver or other
modification, whether by course of conduct or otherwise, or any refinancing, replacement,
refunding or restatement of any First Priority Document;
(c) prior to the First Priority Obligations Payment Date, any exchange, release,
voiding, avoidance or non-perfection of any security interest in any Common Collateral or
any other collateral, or any release, amendment, waiver or other modification, whether by
course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of
all or any portion of the First Priority Obligations or any guarantee or guaranty thereof;
or
(d) any other circumstances that otherwise might constitute a defense available to, or
a discharge of, any Loan Party in respect of the First Priority Obligations, or of any
Second Priority Secured Party, or any Loan Party, to the extent applicable, in respect of
this Agreement.
8.2 Second Priority Obligations Unconditional. All rights and interests of the Second
Priority Secured Parties hereunder, and all agreements and obligations of the First Priority
Secured Parties (and, to the extent applicable, the Loan Parties) hereunder, shall remain in full
force and effect irrespective of:
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(a) any lack of validity or enforceability of any Second Priority Document or any
Secured Priority Liens;
(b) any change in the time, place or manner of payment of, or in any other term of,
all or any portion of the Second Priority Obligations, or any amendment, waiver or other
modification, whether by course of conduct or otherwise, or any refinancing, replacement,
refunding or restatement of any Second Priority Document;
(c) any exchange, release, voiding, avoidance or non-perfection of any security
interest in any Common Collateral or any other collateral, or any release, amendment, waiver
or other modification, whether by course of conduct or otherwise, or any refinancing,
replacement, refunding or restatement of all or any portion of the Second Priority
Obligations or any guarantee or guaranty thereof; or
(d) any other circumstances that otherwise might constitute a defense available to, or
a discharge of, any Loan Party in respect of the Second Priority Obligations, or of any
First Priority Secured Party, or any Loan Party, to the extent applicable, in respect of
this Agreement.
SECTION 9 . MISCELLANEOUS.
9.1 Conflicts. In the event of any conflict between the provisions of this Agreement
and the provisions of any First Priority Document or any Second Priority Document, the provisions
of this Agreement shall govern.
9.2 Continuing Nature of Provisions. This Agreement shall continue to be effective,
and shall not be revocable by any party hereto, until the First Priority Obligations Payment Date
shall have occurred, subject to Section 5.5. This is a continuing agreement and the First Priority
Secured Parties and the Second Priority Secured Parties may continue, at any time and without
notice to the other parties hereto, to extend credit and other financial accommodations, lend
monies and provide indebtedness to, or for the benefit of, any Company or any other Loan Party on
the faith hereof.
9.3 Amendments; Waivers. (a) No amendment or modification of any of the provisions
of this Agreement shall be effective unless the same shall be in writing and signed by the First
Priority Representative and the Second Priority Representative, and, in the case of amendments or
modifications of Sections 3.5, 3.6, 9.5 or 9.6 that directly affect the rights or obligations of
any Loan Party, such Loan Party.
(b) It is understood that the First Priority Representative and the Second Priority
Representative, without the consent of any other First Priority Secured Party or Second Priority
Secured Party, may in their discretion determine that a supplemental agreement (which may take the
form of an amendment and restatement of this Agreement) is necessary or appropriate to facilitate
having additional indebtedness or other obligations (“Additional Debt”) of any of the Loan
Parties become First Priority Obligations or Second Priority Obligations, as the case may be, under
this Agreement, which supplemental agreement shall specify whether such Additional Debt constitutes
First Priority Obligations or Second Priority Obligations; provided that such Additional
Debt is permitted to be incurred by the First Priority Agreement and Second Priority Agreement then
extant, and is permitted by said Agreements to be subject to the provisions of this Agreement as
First Priority Obligations or Second Priority Obligations, as applicable.
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(c) In addition, at the request of the Company, the First Priority Representative and the
Second Priority Representative agree to enter into any amendment to this Agreement or any new
intercreditor agreement in order to (1) facilitate Additional Debt becoming First Priority
Obligations or Second Priority Obligations to the extent such Obligations are permitted by the
First Priority Agreement and the Second Priority Agreement, with the Lien priority contemplated by
such amendment, (2) document the relationship among Second Priority Creditors pursuant to different
Second Priority Agreements, including, to the extent permitted under each extant First Priority
Agreement and Second Priority Agreement, the treatment of the Liens securing Second Priority
Obligations under any Additional Second Priority Agreement as equal and ratable with the Liens
securing the Second Priority Obligations under the Existing Second Priority Agreement or any other
Additional Second Priority Agreement and (3) document the relationship between the First Priority
Creditors and the Second Priority Creditors in case any then existing First Priority Agreement or
Second Priority Agreement is refinanced or replaced or the First Priority Representative or the
Second Priority Representative is replaced; provided, that, in any case, the terms of such
amendment or new agreement will contain terms substantially the same as the terms contained in this
Agreement.
9.4 Information Concerning Financial Condition of the Company and the other Loan
Parties. Each of the Second Priority Representative and the First Priority Representative
hereby assume responsibility for keeping itself informed of the financial condition of the Company
and each of the other Loan Parties and all other circumstances bearing upon the risk of nonpayment
of the First Priority Obligations or the Second Priority Obligations. The Second Priority
Representative and the First Priority Representative hereby agree that no party shall have any duty
to advise any other party of information known to it regarding such condition or any such
circumstances. In the event the Second Priority Representative or the First Priority
Representative, in its sole discretion, undertakes at any time or from time to time to provide any
information to any other party to this Agreement, it shall be under no obligation (a) to provide
any such information to such other party or any other party on any subsequent occasion, (b) to
undertake any investigation or (c) to disclose any other information.
9.5 Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York, except as otherwise required by mandatory provisions of law
and except to the extent that remedies provided by the laws of any jurisdiction other than the
State of New York are governed by the laws of such jurisdiction.
9.6 Submission to Jurisdiction. (a) Each First Priority Secured Party, each Second
Priority Secured Party and each Loan Party hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New
York sitting in New York County and of the United States District Court of the Southern District of
New York, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment pursuant to any such
action or proceeding, and each such party hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each such party 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. Nothing in this
Agreement shall affect any right that any First Priority Secured Party or Second Priority Secured
Party may otherwise have to bring any action or proceeding against any Loan Party or its properties
in the courts of any jurisdiction.
(b) Each First Priority Secured Party, each Second Priority Secured Party and each Loan Party
hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively
do so,
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(i) any objection it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to in paragraph (a)
of this Section and (ii) the defense of an inconvenient forum to the maintenance of such action or
proceeding.
(c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.7. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
9.7 Notices. Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and may be personally
served, telecopied, or sent by overnight express courier service or United States mail and shall be
deemed to have been given when delivered in person or by courier service, upon receipt of a
telecopy or five days after deposit in the United States mail (certified, with postage prepaid and
properly addressed). For the purposes hereof, the address of (a) each of the Company, the First
Priority Representative, the Trustee and the Second Priority Representative (until notice of a
change thereof is delivered as provided in this Section) shall be as set forth in the First
Priority Agreement or the Second Priority Agreement, as applicable, and (b) any other party shall
be in care of the Company as so set forth in clause (a), or, as to each party, at such other
address as may be designated by such party in a written notice to all of the other parties.
9.8 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and each of the First Priority Secured Parties and Second
Priority Secured Parties and their respective successors and assigns, and nothing herein is
intended, or shall be construed, to give any other Person any right, remedy or claim under, to or
in respect of this Agreement or any Common Collateral.
9.9 Headings. Section headings used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be taken into consideration
in interpreting, this Agreement.
9.10 Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
9.11 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other
electronic transmission shall be effective as delivery of a manually executed counterpart of this
Agreement. This Agreement shall become effective when it shall have been executed by each party
hereto.
9.12 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
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9.13 Additional Loan Parties. The Company shall cause each Person that becomes a Loan
Party after the date hereof (other than any such Loan Party that does not grant any Liens to secure
any of the Second Priority Obligations, until such time as such Loan Party does grant any such
Liens) to become a party to this Agreement by executing and delivering a supplement to this
Agreement in form and substance reasonably satisfactory to the First Priority Representative and
the Second Priority Representative.
9.14 Representatives. (a) For the avoidance of doubt, it is understood and agreed
that BofA is entering into this Agreement in its capacity as administrative and collateral agent
under the Existing First Priority Agreement and the provisions of Article XII of the Existing First
Priority Agreement applicable to BofA as administrative and collateral agent thereunder shall also
apply to BofA as First Priority Representative hereunder.
(b) In connection with its execution of this Agreement and its actions hereunder, each of the
First Priority Representative and the Second Priority Representative shall be entitled to all
rights, privileges, benefits, protections, immunities and indemnities provided to it as
administrative agent and collateral agent under the First Priority Documents and as Trustee under
the Second Priority Documents, respectively.
9.15 Subrogation. The Second Priority Representative, for itself and on behalf of the
other Second Priority Secured Parties, hereby waives any rights of subrogation it or they may
acquire as a result of any payment hereunder until the First Priority Obligations Payment Date has
occurred; provided, however, that, as between the Company and the other Loan
Parties, on the one hand, and the Second Priority Secured Parties, on the other hand, any such
payment that is paid over to the First Priority Representative pursuant to this Agreement shall be
deemed not to reduce any of the Second Priority Obligations unless and until (and then only to the
extent that) the First Priority Obligations Payment Date has occurred and the First Priority
Representative delivers any such payment to the Second Priority Representative.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| BANK OF AMERICA, N.A., as First Priority Representative for and on behalf of the First Priority Secured Parties | ||||
| by | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Vice President | |||
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| U.S. NATIONAL BANK ASSOCIATION, as Second Priority Representative for and on behalf of the Second Priority Secured Parties | ||||
| by | /s/ Xxxxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxxx | |||
| Title: | Vice President | |||
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| COMMERCIAL VEHICLE GROUP, INC. |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| NATIONAL SEATING COMPANY CVG CS LLC MONONA CORPORATION MONONA WIRE CORPORATION MONONA (MEXICO) HOLDINGS LLC TRIM SYSTEMS, INC. TRIM SYSTEMS OPERATING CORP. CABARRUS PLASTICS, INC. CVG OREGON, LLC CVS HOLDINGS, INC. XXXXXXX DEVICES, INC. MAYFLOWER VEHICLE SYSTEMS, LLC CVG MANAGEMENT CORPORATION CVG EUROPEAN HOLDINGS, LLC CVG LOGISTICS, LLC CVG ALABAMA LLC |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
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