AMENDED AND RESTATED INTERCREDITOR AGREEMENT
Exhibit
10.13
EXECUTION
VERSION
AMENDED
AND RESTATED INTERCREDITOR AGREEMENT
AMENDED
AND RESTATED INTERCREDITOR AGREEMENT, made this 25th day of November, 2008,
by
and among:
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, having an office at c/o Prudential
Capital Group, 1114 Avenue of the Americas, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, ING USA ANNUITY AND LIFE INSURANCE COMPANY, having
an
office at c/o Prudential Private Placement Investors, L.P., Four Gateway Center,
000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, PHYSICIANS MUTUAL INSURANCE COMPANY,
having an office at c/o Prudential Private Placement Investors, L.P., Four
Gateway Center, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, and PRUDENTIAL RETIREMENT
INSURANCE AND ANNUITY COMPANY, having an office at c/o Prudential Capital Group,
1114 Avenue of the Xxxxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (each an “Existing
Holder”
and
collectively, the “Existing
Holders”),
PRUDENTIAL INVESTMENT MANAGEMENT, INC., having an office at c/o Prudential
Capital Group, 1114 Avenue of the Xxxxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (“Prudential”)
and
each Prudential Affiliate (as hereinafter defined) that hereafter purchases
any
Senior Notes (as hereinafter defined) and has executed a joinder hereto in
accordance with Section 12(e) hereof (together with the Existing Holders,
Prudential, their respective successors and assigns that execute a joinder
hereto and future holders from time to time of the Senior Notes, collectively,
the “Holders”)
(provided, however that any such Prudential Affiliate shall in any event be
deemed for the purposes hereof to have executed such joinder upon becoming
such
a holder and shall be subject to and entitled to the benefits of the terms
hereof);
JPMORGAN
CHASE BANK, N.A., in its capacity as a lender under the Credit Agreement (as
hereinafter defined), having an office at 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx
Xxxxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxx, Xxxxx Fargo Bank, N.A.,
in its capacity as lender under the Credit Agreement, having an office at 00
Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, XX 00000, Attn: Xxxxxxx X. Xxxx, and
each other financial institution which from time to time may become a lender
under the Credit Agreement (as hereinafter defined) and has executed a joinder
hereto in accordance with Section 12(e) hereof (collectively, together with
their respective successors and assigns that execute a joinder hereto, the
“Lenders”)
(provided, however that any such financial institution shall in any event be
deemed for the purposes hereof to have executed such joinder upon becoming
such
a lender and shall be subject to and entitled to the benefits of the terms
hereof); and
JPMORGAN
CHASE BANK, N.A. having an office at JPMorgan Chase Bank, N.A., 4 New York
Plaza, 15th Floor, New York, New York 10004, Attn: Institutional Trust Services,
(i) in its capacity as administrative agent for each of the Lenders (in such
capacity, together with its successors and assigns in such capacity, the
“Administrative
Agent”),
(ii)
in its capacity as collateral agent (in such capacity, together with its
successors and assigns in such capacity, the “Collateral
Agent”)
for
the benefit of the Secured Parties (as defined in the Credit Agreement referred
to below) and (iii) in its capacity as security trustee for the benefit of
the
Holders (in such capacity, together with its successors and assigns in such
capacity, the “Trustee”;
the
Trustee and the Collateral Agent are hereinafter collectively referred to as
the
“Creditors”).
WITNESSETH
WHEREAS:
A. Kinro,
Inc., an Ohio corporation (“Kinro”),
and
Xxxxxxx Components, Inc., a Delaware corporation (“Xxxxxxx
Components”
and
together with Kinro, collectively, the "Borrowers"),
have
entered into a Second Amended and Restated Credit Agreement, dated as of
November 25, 2008 (the “Credit
Agreement”),
with
the Lenders and the Administrative Agent, pursuant to which the Lenders have
agreed to make loans and issue letters of credit to the Borrowers in an
aggregate principal amount not to exceed $50,000,000 (subject, however, to
further increase in an amount of up to $10,000,000 pursuant to Section 2.06A
of
the Credit Agreement) (the outstanding loans and the amount drawn under the
letters of credit and not reimbursed are hereinafter referred to collectively
as
the “Loans”);
B. The
Borrowers’ parent, Drew Industries Incorporated ("Drew"),
and
certain subsidiaries of Drew and the Borrowers (collectively, the “Subsidiary
Guarantors”)
have
agreed to jointly and severally guarantee the obligations of the Borrowers
under
the Credit Agreement;
C. All
of
the indebtedness, liabilities and obligations of the Borrowers under the Credit
Agreement and the other Loan Documents (as defined in the Credit Agreement)
and
of Drew and the Subsidiary Guarantors under each of the Loan Documents to which
they are parties, whether now existing or hereafter arising (“Lender
Indebtedness”),
is
secured by the grant by each of Drew, the Borrowers, Kinro Holding, Inc.,
Xxxxxxx Holding, Inc., Xxxxxxx Tire & Axle Holding, Inc., and Xxxxxxx Tire
& Axle, Inc. (collectively, the “Pledgors”)
to the
Collateral Agent, for the ratable benefit of the Secured Parties, of liens
on
and security interests in all of the capital stock, partnership interests,
membership interests and other equity ownership interests in each of its
Subsidiaries owned by it and all proceeds thereof (all such collateral is more
specifically described on Exhibit
A
hereto
and is hereinafter referred to as the “Common
Collateral”);
D. Pursuant
to a Second Amended and Restated Note Purchase and Private Shelf Agreement,
dated as of November 25, 2008 (the “Note
Purchase Agreement”),
by
and among Drew and the Borrowers, on the one hand, and the Existing Holders,
Prudential and each of the other holders from time to time of the Senior Notes
(as defined below), on the other hand, certain affiliates of Prudential
(collectively, the “Prudential
Affiliates”)
may,
in their sole discretion and within limits which may be prescribed for purchase
by Prudential and the Prudential Affiliates from time to time, purchase
additional senior secured promissory notes issued by the Borrowers in an
aggregate principal amount of up to $125,000,000 (the “Senior
Notes”),
upon
the terms and subject to the conditions set forth therein;
2
X. Xxxx
and
certain of the Subsidiary Guarantors have agreed to jointly and severally
guarantee the obligations of the Borrowers under the Note Purchase Agreement
and
the Senior Notes;
F. All
of
the indebtedness, liabilities and obligations (including, without limitation,
any Yield-Maintenance Amount (as defined in the Note Purchase Agreement)) of
the
Borrowers to the Holders and the Trustee under the Note Purchase Agreement,
the
Senior Notes and the other Transaction Documents (as defined in the Note
Purchase Agreement) and of Drew and the Subsidiary Guarantors under each of
the
Transaction Documents to which they are parties, whether now existing or
hereafter arising (the “Senior
Note Obligations”),
are
or will be secured by the grant by each of the Pledgors to the Trustee, for
the
ratable benefit of the Holders, of liens on and security interests in the Common
Collateral;
G. Certain
of the parties (and certain other parties) entered into that certain
Intercreditor Agreement dated as of February 11, 2005 (the “Original
Intercreditor Agreement”)
in
connection with that certain Amended and Restated Credit Agreement dated
February 11, 2005 between JPMorgan Chase Bank, N.A., KeyBank National
Association and HSBC Bank USA, National Association and the Borrowers and the
Note Purchase and Private Shelf Agreement dated as of February 11, 2005 between
Drew and the Borrowers and Prudential, et al.; and
H. The
parties desire to confirm, as among themselves, their relative rights and
priorities with respect to the Common Collateral and to amend and restate the
Original Intercreditor Agreement.
NOW,
THEREFORE, in consideration for the mutual covenants set forth herein and
intending to be legally bound hereby the parties hereto agree that the Original
Intecreditor Agreement is amended and restated as follows:
1
Priorities
Regarding Common Collateral.
Notwithstanding
anything to the contrary contained in or arising from any note, agreement,
instrument or document now or hereafter executed and delivered by the Lenders,
the Administrative Agent, the Collateral Agent, the Trustee, the Holders or
the
Pledgors in connection with any of the Credit Agreement, the Loans, the Lender
Indebtedness, the Senior Note Obligations, the Note Purchase Agreement or the
Senior Notes, including, without limitation, the terms and conditions of any
promissory note, security agreement or pledge agreements executed and delivered
by the Pledgors to the Lenders, the Administrative Agent, the Collateral Agent,
the Trustee or the Holders, or any instrument or document executed and delivered
in connection therewith, or otherwise, and irrespective of (a) the time, order
or method of any attachment, perfection, filing or recording of any security
interest in, or lien upon, the Common Collateral, including, without limitation,
any prior perfection of a security interest or lien by the Lenders, the
Collateral Agent, the Administrative Agent or the Trustee or the existence
of
any present or future filing of financing statements under the Uniform
Commercial Code or other filings or recordings under any other law of any
jurisdictions which is applicable or in which such filing or recording has
been
made, or (b) the provisions of the Uniform Commercial Code or any other law
of
any jurisdiction which is applicable:
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(a) the
priorities of the liens and security interests of the Collateral Agent and
the
Trustee in the Common Collateral shall rank first and equal to each other,
and
shall be senior and prior to any other liens and security interests in the
Common Collateral; and
(b) Until
(i)
payment in full in cash of all of the Lender Indebtedness (and the termination
of the Revolving Credit Commitments (as defined in the Credit Agreement) and
the
LC Exposure (as defined in the Credit Agreement) being zero) or (ii) payment
in
full in cash of all of the Senior Note Obligations (and the termination of
the
Facility (as defined in the Note Purchase Agreement)), whichever of (i) or
(ii)
shall occur first, all of the Common Collateral shall be held for the mutual
benefit of the Collateral Agent, for the benefit of the Secured Parties, and
the
Trustee, for the benefit of the Holders, and all of the proceeds of the Common
Collateral (including, without limitation, any net proceeds received by any
Creditor in connection with any sale, exchange, foreclosure or other disposition
of the Common Collateral) shall be allocated to the Collateral Agent and the
Trustee and applied against the Lender Indebtedness and the Senior Note
Obligations on a pro rata basis based upon the aggregate principal amount of
the
then outstanding Loans and the aggregate principal amount of the then
outstanding indebtedness evidenced by the Senior Notes (such proportionate
allocation is hereafter referred to as the “Pro
Rata Allocation”).
The
Trustee shall then allocate such proceeds to the Holders on a pro rata basis
based upon the aggregate principal amount of outstanding Senior Notes held
by
the Holders.
2
Provisions
Relating to Bankruptcy of Pledgors and Subsidiaries; Foreclosure
on Common Collateral and Set-Offs.
(a) In
the
event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, assignment for the benefit of creditors or other similar
proceeding relative to any of the Pledgors or any of their respective
Subsidiaries (as defined in the Note Purchase Agreement and the Credit
Agreement), whether voluntary or involuntary, under any law now or hereafter
in
effect (ii) any proceeding for the voluntary liquidation, dissolution or other
winding-up of any of the Pledgors or any of their respective Subsidiaries and
whether or not involving insolvency or bankruptcy proceedings, or (iii) any
foreclosure on or other similar action with respect to all or any portion of
the
Common Collateral, then, and in any such event, any payment or other
distribution of any character, whether in cash, securities or other property
out
of or in respect of the Common Collateral or any proceeds thereof shall be
shared by the Collateral Agent, for the benefit of the Secured Parties, and
the
Trustee, for the benefit of the Holders, and applied against the Lender
Indebtedness and the Senior Note Obligations in accordance with the Pro Rata
Allocation. This Agreement shall continue in full force and effect
notwithstanding the commencement of any action, event or proceeding described
in
clauses (i) or (ii) of the preceding sentence.
4
(b) If
either
of the Creditors shall have received any payment or distribution out of any
of
the assets of the Pledgors or their respective Subsidiaries constituting a
part
of the Common Collateral, whether arising out of or as a result of any event
described in subparagraph (a) above or otherwise, such Creditor shall hold
such
payment or distribution in trust as trustee of an express trust, for the benefit
of itself and the other Creditor, shall not commingle such payment or
distribution with its other assets, and shall promptly take all action necessary
to cause such payment or distribution to be distributed (i) first,
to the
payment or reimbursement of any expenses and fees of the Creditors hereunder
or
under any Loan Document (as defined in the Credit Agreement) or Transaction
Document (as defined in the Note Purchase Agreement), whether such amounts
are
payable to indemnify the Creditors, to pay the fees of the Creditors, to
reimburse the Creditors for any expenses incurred in connection with the
maintenance, protection, enforcement, sale or realization of any of the Common
Collateral or otherwise, and (ii) second,
in
accordance with the Pro Rata Allocation as provided in subparagraph (a)
above.
(c) If
any
amounts received by any Creditor and distributed pursuant to Section 1 or 2(a)
above subsequently are required to be repaid by one or more, but less than
all,
of the Secured Parties or the Holders which received such distribution to a
trustee, receiver or any other party under any bankruptcy law, state, provincial
or Federal law, common law or in equity, then each other Secured Party and
Holder which received a distribution but was not required to repay the same
shall, upon receipt of written notice from any such Secured Party or Holder
which was required to repay such amount, pay to such party (or parties) a pro
rata share of the distribution received by it and necessary to result in the
aggregate amount not repaid being distributed in the manner contemplated by
Section 1 or Section 2(a) above, as applicable.
3
Additional
Provisions Regarding Common Collateral.
The
Trustee hereby appoints the Collateral Agent as its agent to perfect by
possession, as the bailee of the Trustee, its lien in any of the Collateral
which is perfectible by possession and that is, at any time, delivered to and
in
the possession of the Collateral Agent, subject always to the terms of this
Agreement, and the Collateral Agent hereby accepts such appointment. If either
of the Creditors shall, at any time have possession or control of any of the
Common Collateral, such Creditor shall hold or control such Common Collateral
for the benefit of itself and the other Creditor, in accordance with the Pro
Rata Allocation, for so long as each Creditor shall have a security interest
therein. Upon (i) payment or other satisfaction in full of all the Lender
Indebtedness (and the termination of the Revolving Credit Commitments and the
LC
Exposure being zero), or (ii) payment or other satisfaction in full of all
the
Senior Note Obligations (and the termination of the Facility), as the case
may
be, the Creditor acting on behalf of the holders of the obligations that were
paid in full (and who were obligated in respect of the Revolving Credit
Commitments (or the Letters of Credit (as defined in the Credit Agreement))
or
the Facility, as the case may be) shall assign and deliver to the other
Creditor, as directed in writing by such other Creditor, without representation,
warranty or recourse of any kind, all such Common Collateral then in the
possession of such Creditor, and in so doing, such Creditor shall thereupon
be
discharged from further responsibility with respect thereto.
4
Injunctive
Relief.
Each
party hereto acknowledges that the breach by it of any of the provisions of
this
Agreement is likely to cause irreparable damage to the other parties. Therefore,
the relief to which any party shall be entitled in the event of any such breach
or threatened breach shall include, but not be limited to, a mandatory
injunction for specific performance, judicial relief to prevent a violation
of
any of the provisions of this Agreement, damages and any other relief to which
it may be entitled at law or in equity.
5
5
No
Rights for Third Parties.
This
Agreement is intended to establish the relative priorities among the Creditors,
the Administrative Agent, the Lenders and the Holders and their respective
successors and assigns and shall not be deemed to create any rights or
priorities in any other person or entity including, without limitation, the
Pledgors.
6
Uniform
Commercial Code.
Except
as
otherwise provided herein, the respective rights and priorities of the Creditors
shall be governed by the Uniform Commercial Code as enacted in the State of
New
York or other applicable law.
7
Notices.
All
notices, requests, consents and other communications required or permitted
hereunder shall be in writing and shall be delivered by hand or recognized
overnight courier or mailed by first class registered or certified mail, postage
prepaid, to the parties hereto at their respective addresses set forth in the
heading of this Agreement or
in the
Joinder Agreement pursuant to which any such person or entity became a party
hereto, or to such other address as shall have been designated by notice duly
given hereunder, and shall be effective upon receipt.
8
Amendment.
Neither
this Agreement nor any term hereof may be amended, waived, discharged or
terminated except by a writing signed by all of the parties hereto.
9
Notice
of Disposition and Removal of, or Resignation of Collateral
Agent or Trustee.
(a) The
Administrative Agent and/or the Collateral Agent, on behalf of the Lenders,
agrees to give Prudential and the Trustee, on behalf of the Holders, prompt
written notice of the declaration of any default under the Credit Agreement
or
any of the other Loan Documents together with a copy of any notice given to
the
Borrowers or any of their respective Subsidiaries, relating to such default;
provided, however, that the failure to give such notice shall not prejudice
the
rights of the Administrative Agent, the Collateral Agent or the
Lenders.
(b) The
Trustee, on behalf of Holders, agrees to give the Administrative Agent and
the
Collateral Agent, on behalf of the Lenders, prompt written notice of the
declaration or decision by any of the Holders to act with respect to any default
under the Note Purchase Agreement or the Senior Notes, together with a copy
of
any notice given to the Borrowers relating to such default; provided, however,
that the failure to give such notice shall not prejudice the rights of the
Trustee or the Holders.
(c) The
Holders and the Lenders will give each other prior written notice of the removal
or resignation of the Collateral Agent or the Trustee (as
appropriate).
6
(d) Neither
the Collateral Agent nor the Trustee can be removed unless consented to (i)
in
the case of the Collateral Agent, by persons holding at least 66⅔% of the
aggregate amount of outstanding Lender Indebtedness, and (ii) in the case of
the
Trustee, by the Required Holders (as defined in the Note Purchase Agreement).
Neither the Collateral Agent nor the Trustee may be removed unless the other
such Creditor shall be simultaneously removed.
10
Amendment
of Credit Documents; Assignment of Security
Interest.
Prior
to
(i) the payment in full of the Lender Indebtedness and the termination of the
Revolving Credit Commitments (and the LC Exposure being zero), or (ii) the
payment in full of the Senior Note Obligations and the termination of the
Facility, and notwithstanding anything to the contrary contained in the Credit
Agreement, the other Loan Documents, the Note Purchase Agreement, the Senior
Notes or the other Transaction Documents,
(a) the
Administrative Agent, the Collateral Agent and the Lenders shall not, without
the prior written consent of the Required Holders, do any of the
following:
(i) Amend,
modify or supplement or agree to any amendment, modification or supplement
of,
or to, the Credit Agreement or any of the Loan Documents, except as otherwise
permitted by the Note Purchase Agreement; or
(ii) Sell,
transfer, pledge, assign, grant a security interest in, or otherwise dispose
of
or encumber its interest as a secured party with respect to, the Common
Collateral, except for (aa) such assignments or transfers to affiliates, and
(bb) assignments and participations permitted under the Credit
Agreement.
(b) The
Trustee and the Holders shall not, without the prior written consent of the
Required Lenders (as defined in the Credit Agreement), do any of the
following:
(i) Amend,
modify or supplement or agree to any amendment, modification or supplement
of,
or to, the Senior Notes, the Note Purchase Agreement or the other Transaction
Documents, except as otherwise permitted by the Credit Agreement;
or
(ii) Sell,
transfer, pledge, assign, grant a security interest in, or otherwise dispose
of
or encumber its interest as a secured party with respect to, the Common
Collateral except for (x) such assignments or transfers to affiliates, and
(y)
transfers permitted under the Note Purchase Agreement.
(c) Notwithstanding
subparagraphs (a) and (b) above,
(i) without
the written consent of the Collateral Agent, the Trustee and each of the parties
hereto (A) no amendment shall be made to any provision of any Security Document
(as hereinafter defined) that narrows the description of the Common Collateral
or modifies in any way the description of the obligations secured by the Common
Collateral (provided, however, that the consent of the Collateral Agent and
the
Trustee shall not be required for increases or decreases in the amount of the
Revolving Credit Commitments or the Facility), and (B) there shall be no release
of any security interest or lien on any of the Common Collateral;
and
7
(ii) any
amendment made to any of the Security Documents that changes the
responsibilities of the Collateral Agent and/or the Trustee shall require the
prior written consent of the Collateral Agent and/or the Trustee (as
applicable).
11
Action
by Creditors.
Prior
to
the payment in full of the Lender Indebtedness and the termination of the
Revolving Credit Commitments (and the LC Exposure being zero) or the payment
in
full of the Senior Note Obligations and the termination of the Facility and
notwithstanding anything to the contrary contained in the Credit Agreement,
the
other Loan Documents, the Note Purchase Agreement, the Senior Notes or the
other
Transaction Documents, neither of the Creditors may take any action with respect
to the Common Collateral or enforce or exercise any rights, powers or remedies
under any security agreements, pledge agreements or any other documents,
instruments or agreements relating to the Common Collateral to which it is
a
party (the “Security
Documents”),
or
under applicable law (in respect of the Common Collateral), upon the occurrence
of any event of default under and as defined in the Credit Agreement or the
Note
Purchase Agreement or any event which, with the passage of time, or giving
of
notice, or both, would constitute such an event of default unless instructed
to
do so in writing by Lenders holding at least 66⅔% of the aggregate amount
outstanding at such time of Lender Indebtedness and by Holders holding at least
66⅔% of the aggregate amount outstanding at such time of the Senior Note
Obligations (collectively, the “Requisite
Holders”).
Upon
receipt by either Creditor of written instructions from the Requisite Holders,
such Creditor shall, subject to the provisions of Section 2.2(e) of the Trust
Agreement (as defined in the Note Purchase Agreement) and Article VIII of the
Credit Agreement, make such demands and give such notices under the Security
Documents as may be set forth in such instructions, and take such actions to
enforce the Security Documents and to foreclose upon, collect and dispose of
the
Common Collateral or any portion thereof as it may be directed to take pursuant
to such instructions; provided that neither the Collateral Agent nor the Trustee
shall be required to take any such action that is, in its opinion, contrary
to
law or the terms of this Agreement or any Security Document.
12
Miscellaneous.
(a) If
either
of the Creditors shall receive any monies on account of the Common Collateral
and the receipt thereof at such time is inconsistent with the provisions of
Sections 1 and 2 of this Agreement, then such Creditor will hold the monies
in
trust as trustee of an express trust for the benefit of the other Creditor,
shall not commingle such monies with any of its properties or assets, and shall
promptly remit such monies to the other Creditor as may be necessary in order
to
cause such monies to be shared in accordance with the Pro Rata Allocation as
provided in Section 1 or Section 2 hereof, as applicable.
(b) If
either
of the Creditors or any Secured Party or any Holder shall obtain or negotiate
to
obtain any additional document confirming, perfecting or otherwise affecting
any
of the security interests or liens on the Common Collateral, it
shall;
(i) promptly
notify the other Creditor that such document has been obtained or that it is
negotiating to obtain such document; and
8
(ii) at
the
request and direction of the Lenders or the Holders, execute any documents
presented to such Creditor to reflect the relative rights and priorities of
the
parties hereto (in accordance with Sections 1 and 2(a) hereof) with respect
to
the Common Collateral covered by such document.
(c) If
any of
the Common Collateral or any of the proceeds thereof shall come into the
possession of any Secured Party or any Holder and the receipt thereof at such
time is inconsistent with the provisions of Sections 1 and 2(a) of this
Agreement, the recipient thereof shall hold such proceeds in trust as trustee
of
an express trust for the benefit of the Creditors and the other Secured Parties
and Holders, shall not commingle such monies with any of its properties or
assets, and shall promptly deliver such Common Collateral or proceeds to the
Collateral Agent (in the event such Common Collateral or proceeds are received
by a Secured Party) or the Trustee (in the event such Common Collateral or
proceeds are received by a Holder), as the case may be, to be allocated in
accordance with the Pro Rata Allocation as provided by Section 1 or Section
2(a)
hereof, as applicable.
(d) To
the
extent there is any conflict or inconsistency between the terms of this
Agreement and any of the Credit Agreement, the Loan Documents, the Note Purchase
Agreement, the Senior Notes or the Transaction Documents, or any document
executed, delivered or issued pursuant thereto, with respect to the relative
rights and priorities of the parties with respect to the Common Collateral,
the
terms of this Agreement shall control.
(e) All
the
terms of this Agreement shall be binding upon and inure to the benefit of and
be
enforceable by the respective successors and assigns of the parties hereto,
whether so expressed or not. None of the parties hereto shall assign or transfer
any interest in the Credit Agreement, the Loans, the other Loan Documents,
the
Note Purchase Agreement, the Senior Notes or the other Transaction Documents
to
any third party unless such assignee or transferee shall have executed and
delivered to each of the other parties hereto, prior to the date of such
assignment or transfer, a joinder hereto substantially in the form attached
hereto as Exhibit
B
(the
“Joinder
Agreement”),
pursuant to which the assignee or transferee agrees to be bound by this
Agreement. In addition, Prudential shall cause any Prudential Affiliate that
becomes an initial holder of Senior Notes (if such Prudential Affiliate is
not
already a party to this Agreement) to execute and deliver a Joinder Agreement
concurrent with such Prudential Affiliate’s becoming a holder of Senior
Notes.
(f) The
headings in this Agreement are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof.
(g) This
Agreement sets forth the entire agreement of the parties hereto with respect
to
the subject matter hereof and supersedes all prior agreements, written or oral,
relating thereto.
(h) THIS
AGREEMENT AND ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO HEREUNDER SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO CONFLICTS OF LAW RULES.
9
(i) Nothing
contained in this Agreement is intended to or shall affect or limit, in any
way,
the rights that each of the parties hereto have with respect to third parties.
The parties hereto specifically reserve all of their respective rights against
the Pledgors and all other third parties.
(j) Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this
Agreement.
(k) Each
of
the parties hereto agrees to execute and deliver, upon the request of any other,
such documents and instruments (appropriate for filing, if requested) as may
be
necessary or appropriate to fully implement or to fully evidence the
understanding and agreements contained in this Agreement. Prior to executing
any
document or instrument pursuant to this Section 12(k), the Collateral Agent
or
the Trustee, as the case may be, shall be entitled to receive and shall be
fully
protected in relying upon a written certification from the party requesting
such
action certifying that the execution and delivery of such document or instrument
is authorized or permitted hereunder and under the Trust Agreement (as defined
in the Note Purchase Agreement) and the Loan Documents, and that all conditions
precedent in all such documents have been satisfied.
(l) This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original. Delivery of an executed counterpart by
facsimile shall be deemed to be effective as an original.
(m) Promptly
upon receipt by the Collateral Agent or the Trustee of any written notice or
other written communication relating to the taking of any enforcement action
with respect to the Common Collateral, the release of any of the Common
Collateral, the valuation or change in valuation of any of the Common Collateral
or any other material written notice or communication from any Secured Party
or
any Holder regarding the Common Collateral, such Creditor shall forward such
notice or communication to (i) if received by the Collateral Agent, Prudential
and the Trustee, on behalf of the Holders, and (ii) if received by the Trustee,
to the Administrative Agent and the Collateral Agent, on behalf of the Lenders;
provided, however, that the failure of the Collateral Agent or the Trustee
so to
forward any such notice or communication shall not give rise to a cause of
action against it unless such failure is the result of the gross negligence
or
willful misconduct of the Collateral Agent or the Trustee, as the case may
be;
and provided, further, that neither Creditor shall be required to forward any
notice or communication to any other person or entity that is also an addressee
or recipient of such notice or communication.
(n) This
Agreement is entered into solely for the purposes set forth herein, and, except
as is expressly provided otherwise herein, none of the Secured Parties, the
Holders or the Creditors assumes any responsibility to any other party hereto
to
advise such other parties of information known to such party regarding the
financial condition of any Pledgor or regarding the Common Collateral or of
any
other circumstances bearing upon the risk of non-payment of the Lender
Indebtedness or the Senior Note Obligations. Each Secured Party and each Holder
shall be separately responsible for managing its relationship with the Pledgors
and no Secured Party or Holder shall be deemed the agent of any other party
for
any purpose. This Agreement shall not be construed to be, or to create, any
partnership, joint venture or other joint enterprise among the Secured Parties
and the Holders or between or among the Secured Parties, the Holders and the
Creditors.
10
(o)
For
purposes of this Agreement and the agreements contemplated hereby, neither
the
Trustee or the Collateral Agent shall be deemed to have knowledge or possession
of any information or document that is in the possession of JPMorgan Chase
Bank,
N.A. as a lender or in any other capacity unless such information is furnished
directly to the Trustee or the Collateral Agent, as the case may be, in
writing at the address and in the manner specifically required for notice to
the
Trustee or the Collateral Agent, as the case may be, by the terms hereof or
of
any other agreement to which the Trustee or the Collateral Agent, as the case
may be, is a party.
[Remainder
of page intentionally left blank. Next page is a signature
page.]
11
IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement on
the
day and year first above written.
|
JPMORGAN
CHASE BANK, N.A.
|
|
|
as
Lender and Administrative Agent
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
JPMORGAN
CHASE BANK, N.A.
|
|
|
as
Trustee and Collateral Agent
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
|
|
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By:
|
|
|
Name:
|
|
|
Title:
|
|
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PRUDENTIAL
INVESTMENT MANAGEMENT, INC.
|
|
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By:
|
|
|
Name:
|
|
|
Title:
|
|
|
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA
|
|
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By:
|
|
|
Name:
|
|
|
Title:
|
|
Exhibit
B-1
|
By:
|
Prudential
Private Placement Investors, L.P.,
|
|
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as
Investment Advisor
|
||
|
By:
|
Prudential
Private Placement
|
|
|
Investors,
Inc., as its General Partner
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
PHYSICIANS
MUTUAL INSURANCE COMPANY
|
||
|
By:
|
Prudential
Private Placement Investors, L.P.,
|
|
|
as
Investment Advisor
|
||
|
By:
|
Prudential
Private Placement
|
|
|
Investors,
Inc., as its General Partner
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
PRUDENTIAL
RETIREMENT INSURANCE AND ANNUITY COMPANY
|
||
|
By:
|
Prudential
Investment Management, Inc.,
|
|
|
as
Investment Manager
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Exhibit
B-2
