Exhibit 10.4
SECOND AMENDMENT TO
AMENDED AND RESTATED INTERCREDITOR
AND SUBORDINATION AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED INTERCREDITOR AND
SUBORDINATION AGREEMENT (this "AMENDMENT") is entered into as of December 27,
2003 by and between THE CIT GROUP/BUSINESS CREDIT, INC., ("CIT"), as Senior
Agent, and CONTRARIAN FUNDS, LLC ("Contrarian") as the Junior Agent. The Senior
Lenders and the Debtors also join in the execution hereof by way of
acknowledgment.
RECITALS
WHEREAS, CIT and Contrarian are party to that certain Amended and
Restated Intercreditor and Subordination Agreement, dated as of April 12, 2002,
(as amended, the "SUBORDINATION AGREEMENT"); and
WHEREAS, a Payment Blockage Notice was previously delivered by CIT
pursuant to applicable provisions of the Subordination Agreement (the "EXISTING
PAYMENT BLOCKAGE NOTICE"), including without limitation Sections 4.2 and 6.2(b)
thereof, resulting in a Payment Blockage Period presently in effect and which
would, but for this Second Amendment, expire on March 31, 2004 (the "CURRENT
PAYMENT BLOCKAGE PERIOD"); and
WHEREAS, in connection with that certain Eighth Amendment to the Senior
Credit Agreement, dated as of December , 2003, CIT has acquired all of the
interests of the other Senior Lenders and become the sole Lender and the sole
Agent under the Senior Credit Agreement; and
WHEREAS, Senior Agent and Junior Agent wish to make certain amendments
to the Subordination Agreement, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. INCORPORATION OF RECITALS; CAPITALIZED TERMS. The foregoing
recitals are incorporated by reference as if set forth in full. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
given to such terms in the Subordination Agreement.
SECTION 2. AMENDMENTS TO THE SUBORDINATION AGREEMENT.
(A) All references in the Subordination Agreement to Senior Existing
Titled Collateral Agent or to any Senior Agent shall be deemed references to
CIT, as sole remaining Senior Agent.
(B) If, as of 5:00 p.m. (Atlanta time) on March 1, 2004, (i) the Junior
Credit Agreement has not been amended to (A) extend the maturity date thereof,
being the only date on which the principal amounts of any of the Junior
Liabilities shall be paid, to at least July 31, 2005 and (B)
cure or waive any existing defaults thereunder such that the Junior Credit
Agreement has been reinstated (collectively the "JUNIOR CREDIT AGREEMENT
AMENDMENT") or (ii) if the Junior Credit Agreement Amendment has been timely
executed, the other terms and conditions, if any, of the Junior Credit Agreement
Amendment are not satisfactory in form and substance to CIT in its reasonable
discretion, then, notwithstanding any provision to the contrary set forth in the
Subordination Agreement or in the Existing Payment Blockage Notice, the Current
Payment Blockage Period shall, without further action by or notice to any person
or party, be deemed extended, and shall remain in full force and effect, until
July 31, 2005.
(C) If, as of 5:00 p.m. (Atlanta time) on March 1, 2004, the Junior
Credit Agreement Amendment, in form and substance reasonably satisfactory to
CIT, has been executed and delivered, then:
(i) The Current Payment Blockage Period shall expire as of the
earlier of (A) 11:59 p.m. on March 1, 2004 or B) the effective date of such
Junior Credit Agreement Amendment; and
(ii) the Subordination Agreement shall be deemed amended,
automatically and without any notice to or action by Junior Agent or CIT, as
follows:
(A) Section 4.2(b) shall be amended by striking the
phrase "the earliest to occur of (i)" and the phrase that
begins with ", or (ii)" and ends with "Section 6.2(b)"; and
(B) the text of Section 4.2 following subsection (b)
thereof shall be amended by (1) striking in its entirety the
text of subclause (y) thereof, and (2) designating current
subclause (z) thereof as new subclause (y); and
(C) Section 6.2 shall be amended by (1) striking in
its entirety the text of subclause (b)(ii) thereof and (2)
designating current subclause (b)(iii) as new subclause
(b)(ii).
SECTION 3. MISCELLANEOUS.
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(A) AMENDMENT. The terms of this Second Amendment shall not be waived,
altered, modified, amended or supplemented in any manner whatsoever except by
written instrument executed by Senior Agent and the Junior Agent.
(B) PARTIES; SEVERABILITY. Whenever in this Second Amendment there is a
reference made to any of the parties hereto, such reference shall also be a
reference to the successors and permitted assigns of such party, including,
without limitation, a debtor-in-possession or trustee. The provisions of this
Second Amendment shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto. Whenever possible, each
provision of this Second Amendment shall be interpreted in such a manner as to
be effective and valid under applicable law, but if any provision of this Second
Amendment shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or
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invalidity without invalidating the remainder of such provision or the remaining
provisions of this Second Amendment.
(C) EXECUTION IN COUNTERPARTS; GOVERNING LAW. This Second Amendment may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same instrument. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of Georgia without regard to
principles of conflict of laws.
(D) SECTION TITLES. The section titles contained in this Second
Amendment are and shall be without substance, meaning or content of any kind
whatsoever and are not a part of the agreement among the parties hereto.
(E) REIMBURSEMENT OF AGENT'S EXPENSE. The Debtors hereby jointly and
severally agree to promptly reimburse the Senior Agent for all reasonable
out-of-pocket expenses, including, without limitation, reasonable attorneys'
fees, it has heretofore or hereafter incurred or incurs in connection with the
preparation, negotiation, execution and implementation of this Second Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first above written.
CONTRARIAN FUNDS, LLC,
as Junior Agent
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Managing Member
THE CIT GROUP/BUSINESS CREDIT,
INC., as Senior Agent
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Acknowledged and Agreed:
SENIOR LENDER:
THE CIT GROUP/BUSINESS CREDIT, INC. as Senior Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
[signatures continue on following page]
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"DEBTORS"
XXXXXX INDUSTRIES, INC.
APACO, INC.
B&B ASSOCIATED INDUSTRIES, INC.
CHEVRON, INC.
CENTURY HOLDINGS, INC.
CHAMPION CARRIER CORPORATION
COMPETITION WHEELIFT, INC.
GOLDEN WEST TOWING EQUIPMENT INC.
KING AUTOMOTIVE & INDUSTRIAL
EQUIPMENT, INC
MID AMERICA WRECKER & EQUIPMENT
SALES, INC. OF COLORADO
XXXXXX FINANCIAL SERVICES GROUP,
INC.
XXXXXX/GREENEVILLE, INC.
XXXXXX INDUSTRIES DISTRIBUTING, INC.
XXXXXX INDUSTRIES INTERNATIONAL,
INC.
XXXXXX INDUSTRIES TOWING
EQUIPMENT INC.
PURPOSE, INC.
SONOMA CIRCUITS, INC.
SOUTHERN WRECKER CENTER, INC.
SOUTHERN WRECKER SALES, INC.
AETEX, INC., F/K/A A-EXCELLENCE
TOWING CO.
ALL AMERICAN TOWING SERVICES, INC.
B-G TOWING, INC.
BEAR TRANSPORTATION, INC.
BTRCX, INC. F/K/A BERT'S TOWING
RECOVERY CORPORATION
BBSX, INC. F/K/A XXX XXXXX SERVICES,
INC.
BASIEX, INC. F/K/A BOB'S AUTO SERVICE,
INC.
BTRX, INC.
BVSWS, INC. F/K/A XXX XXXXXXX AND SONS
WRECKER SERVICE, INC.
CARDINAL CENTRE ENTERPRISES, INC.
CBTX,INC., F/K/ACEDAR BLUFF 24 HOUR
TOWING, INC.
CCASX, INC.
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CEX, INC., F/K/A CHAD'S INC.
CVDC, F/K/A CLEVELAND VEHICLE
DETENTION CENTER, INC.
X.X. XXXXXXXX, INC.
DVREX, INC.
DOLLAR ENTERPRISES, INC.
DSX, INC., F/K/A XXXXXX'X SERVICES, INC.
GMAR, INC., F/K/A GOOD MECHANIC AUTO
CO. OF RICHFIELD, INC.
GREAT AMERICA TOWING, INC.
GREG'S TOWING, INC.
HTX, INC.
LTSX, INC., F/K/A LAZER TOW SERVICES,
INC.
LASX, INC.
LWKR, INC.
MAEJO, INC.
MEL'S ACQUISITION CORP.
MGEX, INC.
MSTEX, INC.
MTSX INC.
XXXXXX'X TOWING, INC.
X.X.X., INC.
PEX, INC., F/K/A/ PIPES ENTERPRISES, INC.
RMA ACQUISITION CORP.
RRIC ACQUISITION CORP.
RSX, INC., F/K/A RECOVERY SERVICES, INC.
ROAD ONE, INC.
ROADONE EMPLOYEE SERVICES, INC.
ROAD ONE INSURANCE SERVICES, INC.
ROAD ONE SERVICE, INC.
ROAD ONE SPECIALIZED TRANSPORTATION, INC.
ROADONE TRANSPORTATION AND
LOGISTICS, INC.
R.M.W.S., INC.
SWSX, INC. (F/K/A SUBURBAN WRECKER
SERVICE, INC.)
TEXAS TOWING CORPORATION
TPCTH, INC.
TREASURE COAST TOWING, INC.
TREASURE COAST TOWING OF XXXXXX
COUNTY, INC.
TSSC, INC., F/K/A TRUCK SALES &
SALVAGE CO., INC.
TWSX, INC.
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WSX, INC., F/K/A WES'S SERVICE
INCORPORATED
WTX, INC. (F/K/A XXXXXX TOWING, INC.)
WTC, INC.
WTEX, INC.
ZTRX, INC., F/K/A XXXXXX TOWING &
RECOVERY, INC.
By: /s/ J. Xxxxxxx Xxxx
Name: J. Xxxxxxx Xxxx
Attorney-in-Fact
of each entity listed above
