EXHIBIT 10.5
EXECUTION COPY
INTERCOMPANY SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (as amended, restated, modified and/or
supplemented from time to time, this "Agreement"), dated as of December 23,
2004, made by each of the undersigned (each, a "Party" and, together with any
entity that becomes a party to this Agreement pursuant to Section 9 hereof, the
"Parties") and Deutsche Bank Trust Company Americas, as collateral agent (in
such capacity, together with any successor agent, the "Collateral Agent"), for
the benefit of the Senior Creditors (as defined below). Unless otherwise defined
herein, all capitalized terms used herein shall have the meanings ascribed to
them in the Credit Agreement referred to below.
WITNESSETH:
WHEREAS, CSA Acquisition Corp. ("Holdings"), Xxxxxx-Standard
Automotive Inc. (the "U.S. Borrower"), Xxxxxx-Standard Automotive Canada Limited
(the "Canadian Borrower" and, together with the U.S. Borrower, the "Borrowers"),
the lenders from time to time party thereto (the "Lenders"), Xxxxxx Commercial
Paper Inc., as Syndication Agent (in such capacity, the "Syndication Agent"),
Xxxxxxx Sachs Credit Partners L.P., UBS Securities LLC and Scotia Capital, as
Co-Documentation Agent (in such capacity, each, a "Co-Documentation Agent" and,
collectively, the "Co-Documentation Agents"), Deutsche Bank Securities Inc. and
Xxxxxx Brothers Inc, as Joint Lead Arrangers and Joint Bookrunners (in such
capacity, each a "Joint Lead Arranger" and, collectively, the "Joint Lead
Arrangers"), and Deutsche Bank Trust Company Americas, as Administrative Agent
(in such capacity, the "Administrative Agent"), have entered into a Credit
Agreement, dated as of December 23, 2004, providing for the making of Loans to
the Borrowers and, the issuance of, and participation in, Letters of Credit for
the respective accounts of the Borrowers, all as contemplated therein (with the
Lenders, the Syndication Agent, the Co-Documentation Agents, the Joint Lead
Arrangers, the Administrative Agent and the Collateral Agent being herein called
the "Lender Creditors") (as used herein, the term "Credit Agreement" means the
Credit Agreement described above in this paragraph, as the same may be amended,
restated, modified, supplemented or extended from time to time, and including
any agreement extending the maturity of or restructuring (including, but not
limited to, the inclusion of additional borrowers or guarantors thereunder or
any increase in the amount borrowed) all or any portion of, the indebtedness
under such agreement, whether or not with the same agent, trustee,
representative, lenders or holders;
WHEREAS, each Borrower and/or one or more of their respective
Subsidiaries may at any time and from time to time enter into one or more Swap
Agreements with one or more Lenders or any affiliate thereof (each such Lender
or affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Hedging
Creditors", with each such Swap Agreement with a Hedging Creditor being herein
called a "Secured Hedging Agreement);
WHEREAS, pursuant to the Holdings Guaranty, Holdings has guaranteed to
the Guaranteed Creditors the payment when due of all Holdings Guaranteed
Obligations (as defined in the Credit Agreement);
WHEREAS, pursuant to the U.S. Borrower Guaranty, the U.S. Borrower has
guaranteed to the Guaranteed Creditors the payment when due of all of the U.S.
Borrower's Guaranteed Obligations (as defined in the Credit Agreement);
WHEREAS, pursuant to the U.S. Subsidiaries Guaranty, each U.S.
Subsidiary Guarantor has jointly and severally guaranteed to the Guaranteed
Creditors the payment when due of all Guaranteed Obligations (as defined in the
Subsidiaries Guaranty);
WHEREAS, on the date hereof, the U.S. Borrower has issued the Senior
Notes in aggregate principal amount of $200,000,000 (with the holders from time
to time of such Senior Notes being herein called the "Senior Notes Creditors")
pursuant to the Senior Notes Indenture;
WHEREAS, Holdings and certain Subsidiary Guarantors have guaranteed
the repayment in full of the Senior Notes pursuant to the Senior Notes
Indenture;
WHEREAS, on the date hereof, the U.S. Borrower has issued the Senior
Subordinated Notes in aggregate principal amount of $350,000,000 (with the
holders from time to time of such Senior Subordinated Notes being herein called
the "Senior Subordinated Notes Creditors") pursuant to the Senior Subordinated
Notes Indenture;
WHEREAS, Holdings and certain Subsidiary Guarantors have guaranteed
the repayment in full of the Senior Subordinated Notes pursuant to the Senior
Subordinated Notes Indenture;
WHEREAS, it is a condition precedent to the extensions of credit under
the Credit Agreement that this Agreement be executed and delivered by the
original Parties hereto;
WHEREAS, additional Parties may from time to time become parties
hereto in order to allow for certain extensions of credit in accordance with the
requirements of the Credit Agreement, the Senior Notes Documents and the Senior
Subordinated Notes Documents;
WHEREAS, each of the Parties hereto desires to execute this Agreement
to satisfy the conditions described in the immediately preceding paragraphs.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties hereto, the Parties and the
Collateral Agent (for the benefit of the Senior Creditors) hereby agree as
follows:
1. The Subordinated Debt (as defined in Section 7 hereof) and all
payments of principal, interest, and all other amounts thereunder are hereby,
and shall continue to be, subject and subordinate in right of payment to the
prior payment in full, in cash, of all Senior Indebtedness to the extent, and in
the manner set forth herein. The foregoing shall apply,
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notwithstanding the availability of other collateral to the Senior Creditors or
the holders of Subordinated Debt or the actual date and time of execution,
delivery, recordation, filing or perfection of any security interests granted
with respect to the Senior Indebtedness or the Subordinated Debt, or the lien or
priority of payment thereof, and in any instance wherein the Senior Indebtedness
or any claim for the Senior Indebtedness is subordinated, avoided or disallowed,
in whole or in part, under the Bankruptcy Code or other applicable federal,
foreign, state or local law. In the event of a proceeding, whether voluntary or
involuntary, for insolvency, liquidation, reorganization, dissolution,
bankruptcy or other similar proceeding pursuant to the Bankruptcy Code or other
applicable federal, foreign, state or local law (each, a "Bankruptcy
Proceeding"), the Senior Indebtedness shall include all interest accrued on the
Senior Indebtedness, in accordance with and at the rates specified in the Senior
Indebtedness, both for periods before and for periods after the commencement of
any of such proceedings, even if the claim for such interest is not allowed
pursuant to the Bankruptcy Code or other applicable law.
2. Each Party (as a lender of any Subordinated Debt) hereby agrees
that until all Senior Indebtedness has been repaid in full in cash:
(a) Such Party shall not, without the prior written consent of the
Required Senior Creditors (as defined in Section 7 hereof), which consent
may be withheld or conditioned in the Required Senior Creditors' sole
discretion, commence, or join or participate in, any Enforcement Action (as
defined in Section 7 hereof).
(b) In the event that (i) all or any portion of any Senior
Indebtedness becomes due (whether at stated maturity, by acceleration or
otherwise), (ii) any Event of Default under the Credit Agreement or any
event of default under, and as defined in, any other Senior Indebtedness
(or the documentation governing the same), then exists or would result from
such payment on the Subordinated Debt (including, without limitation,
pursuant to Section 10.08 of the Credit Agreement) (unless cured or waived)
or (iii) any distribution, division or application, partial or complete,
voluntary or involuntary, by operation of law or otherwise, is made of all
or any part of the property, assets or business of Holdings or any of its
Subsidiaries or the proceeds thereof, in whatever form, to any creditor or
creditors of Holdings or any of its Subsidiaries or to any holder of
indebtedness of Holdings or any of its Subsidiaries by reason of any
liquidation, dissolution or other winding up of Holdings, any of its
Subsidiaries or their respective businesses, or by reason of any
receivership or custodianship for Holdings or any of its Subsidiaries or of
all or substantially all of their respective property, or by reason of any
insolvency or bankruptcy proceedings or assignment for the benefit of
creditors or any proceeding by or against Holdings or any of its
Subsidiaries for any relief under any bankruptcy, reorganization or
insolvency law or laws, federal, foreign, state or local, or any law,
federal, foreign, state or local relating to the relief of debtors,
readjustment of indebtedness, reorganization, composition or extension,
then, and in any such event, any payment or distribution of any kind or
character, whether in cash, property or securities which shall be payable
or deliverable with respect to any or all of the Subordinated Debt or which
has been received by any Party shall be held in trust by such Party for the
benefit of the Senior Creditors and shall forthwith be paid or delivered
directly to the Senior Creditors for application to the payment of the
Senior Indebtedness (after giving effect to the relative priorities of such
Senior Indebtedness) to the extent necessary to
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make payment in full in cash of all sums due under the Senior Indebtedness
remaining unpaid after giving effect to any concurrent payment or
distribution to the Senior Creditors. In any such event, the Senior
Creditors may, but shall not be obligated to, demand, claim and collect any
such payment or distribution that would, but for these subordination
provisions, be payable or deliverable with respect to the Subordinated
Debt. In the event of the occurrence of any event referred to in subclauses
(i), (ii) or (iii) of the preceding sentence of this clause (b) above and
until the Senior Indebtedness shall have been fully paid in cash and
satisfied and all of the obligations of Holdings or any of its Subsidiaries
to the Senior Creditors have been performed in full, no payment of any kind
or character (whether in cash, property, securities or otherwise) shall be
made to or accepted by any Party in respect of the Subordinated Debt.
Notwithstanding anything to the contrary contained above, if one or more of
the events referred to in subclauses (i) through (iii) of the first
sentence of this clause (b) is in existence, the Required Senior Creditors
may agree in writing that payments may be made with respect to the
Subordinated Debt which would otherwise be prohibited pursuant to the
provisions contained above, provided that any such waiver shall be
specifically limited to the respective payment or payments which the
Required Senior Creditors agree may be so paid to any Party in respect of
the Subordinated Debt.
(c) If such Party shall acquire by indemnification, subrogation or
otherwise, any lien, estate, right or other interest in any of the assets
or properties of Holdings or any of its Subsidiaries, that lien, estate,
right or other interest shall be subordinate in right of payment to the
Senior Indebtedness and the lien of the Senior Indebtedness as provided
herein, and such Party hereby waives any and all rights it may acquire by
subrogation or otherwise to any lien of the Senior Indebtedness or any
portion thereof until such time as all Senior Indebtedness has been repaid
in full in cash.
(d) Such Party shall not pledge, assign, hypothecate, transfer, convey
or sell any Subordinated Debt or any interest in any Subordinated Debt to
any entity (other than in accordance with the relevant requirements of the
Credit Agreement to a Credit Party which is a Party hereto) without the
prior written consent of the Administrative Agent (with the prior written
consent of the Required Senior Creditors).
(e) After request by the Administrative Agent or the Required Senior
Creditors, such Party shall promptly furnish the Senior Creditors with a
statement, duly acknowledged and certified setting forth the original
principal amount of the notes evidencing the indebtedness of the
Subordinated Debt, the unpaid principal balance, all accrued but unpaid
interest and any other sums due and owing thereunder, the rate of interest,
the monthly payments and that, to the best knowledge of such Party, there
exists no defaults under the Subordinated Debt, or if any such defaults
exist, specifying the defaults and the nature thereof.
(f) In any case commenced by or against Holdings or any of its
Subsidiaries or under Chapter 11 of the Bankruptcy Code or any similar
provision thereof, or any similar federal, foreign, state or local statute
(a "Reorganization Proceeding"), to the extent permitted by applicable law,
the Required Senior Creditors shall have the
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exclusive right to exercise any voting rights in respect of the claims of
such Party against Holdings or any of its Subsidiaries.
(g) If, at any time, all or part of any payment with respect to Senior
Indebtedness theretofore made (whether by Holdings, either Borrower or any
other Person or enforcement of any right of setoff or otherwise) is
rescinded or must otherwise be returned by the holders of Senior
Indebtedness for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of Holdings, either Borrower or
such other Persons), the subordination provisions set forth herein shall
continue to be effective or be reinstated, as the case may be, all as
though such payment had not been made.
(h) Such Party shall not object to the entry of any order or orders
approving any cash collateral stipulations, adequate protection
stipulations or similar stipulations executed by the Senior Creditors in
any Reorganization Proceeding or any other proceeding under the Bankruptcy
Code.
(i) Such Party waives any marshalling rights with respect to the
Senior Creditors in any Reorganization Proceeding or any other proceeding
under the Bankruptcy Code.
3. Each Party hereby represents, warrants and covenants as follows:
(a) each Party hereby agrees to deliver a schedule setting forth all
Intercompany Debt to the Administrative Agent promptly after any request by
the Administrative Agent or the Required Senior Creditors (although any
failure to deliver such a supplement shall have no effect whatsoever on the
subordination provisions contained herein, which shall apply to all
Subordinated Debt whether or not listed on said schedule); and
(b) each Party hereby covenants and agrees that it will not lend, hold
or permit to exist any Intercompany Debt owed by it or to it (in accordance
with the definition thereof contained herein) unless each obligee, or
obligor, as the case may be, with respect to such Intercompany Debt is (or
concurrently with such extension becomes) a Party to this Agreement.
4. Any payments made to, or received by, any Party in respect of any
guaranty or security in support of the Subordinated Debt shall be subject to the
terms of this Agreement and applied on the same basis as payments made directly
by the obligor under such Subordinated Debt. To the extent that Holdings or any
of its Subsidiaries (other than the respective obligor or obligors which are
already Parties hereto) provides a guaranty or any security in support of any
Subordinated Debt, the Party which is the lender of the respective Subordinated
Debt will cause each such Person to become a Party hereto (if such Person is not
already a Party hereto) not later than the date of the execution and delivery of
the respective guarantee or security documentation, provided that any failure to
comply with the foregoing requirements of this Section 4 will have no effect
whatsoever on the subordination provisions contained herein (which shall apply
to all payments received with respect to any guarantee or
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security for any Subordinated Debt, whether or not the Person furnishings such
guarantee or security is a Party hereto).
5. Each Party hereby acknowledges and agrees that no payments will be
accepted by it in respect of the Subordinated Debt (unless promptly turned over
to the holders of Senior Indebtedness) to the extent such payments would be
prohibited under any Senior Indebtedness (or the documentation governing the
same).
6. In addition to the foregoing agreements, each Party hereby
acknowledges and agrees that, with respect to all Intercompany Debt (whether or
not same constitutes Subordinated Debt), that (x) such Intercompany Debt (and
any promissory notes or other instruments evidencing same) may be pledged, and
delivered for pledge, by Holdings or any of its Subsidiaries pursuant to any
Security Document (as used herein, the term "Security Documents" shall have the
meaning provided in the Credit Agreement) to which Holdings or the respective
such Subsidiary is, or at any time in the future becomes, a party and (y) with
respect to all Intercompany Debt so pledged, the Collateral Agent shall be
entitled to exercise all rights and remedies with respect to such Intercompany
Debt to the maximum extent provided in the various Security Documents (in
accordance with the terms thereof and subject to the requirements of applicable
law). Furthermore, with respect to all Intercompany Debt at any time owed to
Holdings or any of its Subsidiaries which is a Credit Party, and notwithstanding
anything to the contrary contained in the terms of such Intercompany Debt, each
obligor (including any guarantor) and obligee with respect to such Intercompany
Debt hereby agrees, for the benefit of the holders from time to time of the
Senior Indebtedness, that the Administrative Agent or the Collateral Agent may
at any time, and from time to time, acting on its own or at the request of the
Required Senior Creditors, accelerate the maturity of such Intercompany Debt if
(x) any obligor (including any guarantor) of such Intercompany Debt is subject
to any Bankruptcy Proceeding or (y) if the Lenders shall have exercised any
remedies pursuant to the Credit Agreement as a result of the occurrence of an
Event of Default (including any acceleration of the loans or the termination of
commitments thereunder). Any such acceleration of the maturity of any
Intercompany Debt shall be made by written notice by the Administrative Agent or
Collateral Agent to the obligor on the respective Intercompany Debt; provided
that no such notice shall be required (and the acceleration shall automatically
occur) upon the occurrence of a Bankruptcy Proceeding with respect to the
respective obligor (or any guarantor) of the respective Intercompany Debt or
upon (or following) any acceleration of the maturity of any Loans pursuant to
the Credit Agreement.
7. Definitions. As and in this Agreement, the terms set forth below
shall have the respective meanings provided below:
"Credit Document Obligations Termination Date" shall mean the
first date after the Initial Borrowing Date upon which all Commitments and
Letters of Credit under the Credit Agreement have terminated and all Credit
Document Obligations have been paid in full in cash.
"Enforcement Action" shall mean any acceleration of all or any
part of the Subordinated Debt, the institution of a Bankruptcy Proceeding
against Holdings or any of its Subsidiaries, or the taking of any other
enforcement action (including, without
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limitation, the taking of any foreclosure proceeding, the exercise of any
power of sale, the obtaining of a receiver, the suing on, or otherwise
taking action to enforce the obligation of Holdings or any of its
Subsidiaries to pay any amounts relating to any Subordinated Debt, the
exercising of any banker's lien or rights of set-off or recoupment with
respect to Subordinated Debt) against Holdings or its Subsidiaries or
against any asset or property of Holdings or its Subsidiaries to recover
Subordinated Debt.
"Intercompany Debt" shall mean any Indebtedness, whether now
existing or hereinafter incurred, owed by Holdings or any Subsidiary of
Holdings to Holdings or any other Subsidiary of Holdings.
"Obligation" shall mean any principal, interest, premium,
penalties, fees, indemnities and other liabilities and obligations payable
under the documentation governing any Intercompany Debt or any other
indebtedness (including, without limitation, all interest, fees and other
charges accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided in the governing
documentation therefor, whether or not such interest, fees and charges are
an allowed claim in such proceeding).
"Required Senior Creditors" shall mean (i) the Required Lenders
(or, to the extent required by Section 13.12 of the Credit Agreement, each
of the Lenders) at all times prior to the Credit Document Obligations
Termination Date, and (ii) the holders of at least a majority of the
outstanding Senior Indebtedness at all times after the Credit Document
Obligations Termination Date and prior to the repayment in full, in cash,
of all outstanding Obligations with respect to Senior Indebtedness.
"Secured Hedging Agreements" shall have the meaning provided in
the recitals to this Agreement.
"Senior Creditors" shall mean all holders from time to time of
any Senior Indebtedness and shall include, without limitation, the Lender
Creditors, the Hedging Creditors, the Senior Notes Creditors and the Senior
Subordinated Notes Creditors.
"Senior Indebtedness" shall mean:
(i) all Obligations (including Obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) and liabilities (including, without limitation,
indemnities, Fees and interest thereon) of each Credit Party (whether
as obligor, guarantor or otherwise) to the Lender Creditors, now
existing or hereafter incurred under, arising out of or in connection
with each Credit Document to which it is at any time a party
(including, without limitation, all such obligations and liabilities
of each Credit Party under the Credit Agreement (if a party thereto)
and under each Guaranty (if a party thereto) or under any other
guarantee by it of obligations pursuant to the Credit Agreement) and
the due performance and compliance by each Credit Party with the terms
of each such Credit Document (all such obligations and liabilities
under this clause (i), except to the extent consisting of obligations
or indebtedness with respect to
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Secured Hedging Agreements, being herein collectively called the
"Credit Document Obligations");
(ii) all Obligations (including Obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) and liabilities of each Credit Party to the Hedging
Creditors, now existing or hereafter incurred under, arising out of or
in connection with any Secured Hedging Agreement (including, without
limitation, all such obligations and liabilities of such Credit Party
under the Guaranties (if a party thereto) with respect thereto or
under any other guarantee by it of obligations pursuant to any Secured
Hedging Agreement) and the due performance and compliance by each
Credit Party with the terms of each such Secured Hedging Agreement
(all such obligations and liabilities under this clause (ii) being
herein collectively called the "Hedging Obligations");
(iii) all Obligations (including Obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) and liabilities of each Credit Party to the Senior Notes
Creditors, now existing or hereafter incurred under, arising out of or
in connection with any Senior Notes Documents (including, without
limitation, all such obligations and liabilities under any guarantees
relating thereto) and the due performance and compliance by each
Credit Party with the terms of each such Senior Notes Document (all
such obligations and liabilities under this clause (iii) being herein
collectively called the "Senior Note Obligations"); and
(iv) all Obligations (including Obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) and liabilities of each Credit Party to the Senior
Subordinated Notes Creditors, now existing or hereafter incurred
under, arising out of or in connection with any Senior Subordinated
Notes Documents (including, without limitation, all such obligations
and liabilities under any guarantees relating thereto) and the due
performance and compliance by each Credit Party with the terms of each
such Senior Subordinated Notes Document (all such obligations and
liabilities under this clause (iv) being herein collectively called
the "Senior Subordinated Note Obligations").
"Subordinated Debt" shall mean the principal of, interest on, and
all other amounts owing from time to time in respect of all Intercompany
Debt (including, without limitation, pursuant to guarantees thereof or
security therefor) at any time outstanding, provided that Subordinated Debt
shall not include any Intercompany Debt which is (1) owed by any Person to
the U.S. Borrower, (2) owed by any Person (other than a U.S. Credit Party)
to the Canadian Borrower, (3) owed by any Person that is not a Credit Party
to any other Person, (4) owed by any Canadian Credit Party to any U.S.
Credit Party, (5) owed by any U.S. Credit Party (other than the U.S.
Borrower) to any other U.S. Credit Party and (6) owed by any Canadian
Credit Party (other than the Canadian Borrower) to any other Canadian
Credit Party.
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8. Each Party agrees to be fully bound by all terms and provisions
contained in this Agreement, both with respect to any Subordinated Debt
(including any guarantees thereof and security therefor) owed to it, and with
respect to all Subordinated Debt (including all guarantees thereof and security
therefor) owing by it.
9. It is understood and agreed that any Subsidiary of Holdings that is
required to execute a counterpart of this Agreement after the date hereof
pursuant to the requirements of the Credit Agreement or any other Senior
Indebtedness shall become a Party hereunder by executing a counterpart hereof
(or an assumption agreement in form and substance satisfactory to the Collateral
Agent) and delivering same to the Collateral Agent.
10. No failure or delay on the part of any party hereto or any holder
of Senior Indebtedness in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder.
11. Each Party hereto acknowledges that to the extent that no adequate
remedy at law exists for breach of its obligations under this Agreement, in the
event any Party fails to comply with its obligations hereunder, the Collateral
Agent, the Administrative Agent or the holders of Senior Indebtedness shall have
the right to obtain specific performance of the obligations of such defaulting
Party, injunctive relief or such other equitable relief as may be available.
12. Any notice to be given under this Agreement shall be in writing
and shall be sent in accordance with the provisions of the Credit Agreement.
13. In the event of any conflict between the provisions of this
Agreement and the provisions of the Subordinated Debt, the provisions of this
Agreement shall prevail.
14. No person other than the parties hereto, the Senior Creditors from
time to time and their successors and assigns as holders of the Senior
Indebtedness and the Subordinated Debt shall have any rights under this
Agreement.
15. This Agreement may be executed in any number of counterparts each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
16. No amendment, supplement, modification, waiver or termination of
this Agreement shall be effective against a party against whom the enforcement
of such amendment, supplement, modification, waiver or termination would be
asserted, unless such amendment, supplement, modification, waiver or termination
was made in a writing signed by such party, provided that amendments hereto
shall be effective as against the Senior Creditors if executed and delivered by
the Required Senior Creditors at such time.
17. In case any one or more of the provisions confined in this
Agreement, or any application thereof, shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein, and any other application thereof, shall
not in any way be affected or impaired thereby.
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18. (a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this Agreement or
any other Credit Document to which any Party is a party may be brought in the
courts of the State of New York or of the United States of America for the
Southern District of New York in each case which are located in the City of New
York, and, by execution and delivery of this Agreement, each Party hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each Party hereby
further irrevocably waives any claim that any such court lacks personal
jurisdiction over such Party, and agrees not to plead or claim in any legal
action or proceeding with respect to this Agreement or any other Credit Document
to which such Party is a party brought in any of the aforesaid courts that any
such court lacks personal jurisdiction over such Party. Each Party further
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such Party at its address set
forth opposite is signature below, such service to become effective 30 days
after such mailing. Each Party hereby irrevocably waives any objection to such
service of process and further irrevocably waives and agrees not to plead or
claim in any action or proceeding commenced hereunder or under any other Credit
Document to which such Party is a party that such service of process was in any
way invalid or ineffective. Nothing herein shall affect the right of any of the
Senior Creditors to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against each Party in any other
jurisdiction.
(c) EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT TO WHICH IT IS A PARTY BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (B) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(d) EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER CREDIT DOCUMENT TO WHICH IT IS A PARTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
19. This Agreement shall bind and inure to the benefit of the
Collateral Agent, the other Senior Creditors and each Party and their respective
successors, permitted transferees and assigns.
[THE REMAINDER OF THIS PAGE INTENTIONALLY BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
CSA ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX-STANDARD AUTOMOTIVE INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX-STANDARD AUTOMOTIVE CANADA LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Director
XXXXXX-STANDARD AUTOMOTIVE FLUID SYSTEMS
MEXICO HOLDING LLC
By: XXXXXX-STANDARD AUTOMOTIVE INC.,
as Sole Member
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to Intercompany Subordination Agreement
XXXXXX-STANDARD AUTOMOTIVE NC L.L.C.
By: XXXXXX-STANDARD AUTOMOTIVE INC.,
as Sole Member
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX-STANDARD AUTOMOTIVE OH, LLC
By: XXXXXX-STANDARD AUTOMOTIVE INC.,
as Sole Member
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
CSA SERVICES INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXX HOLDING COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to Intercompany Subordination Agreement
NORTH AMERICAN RUBBER,
INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
STANTECH, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
STERLING INVESTMENTS COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
WESTBORN SERVICE CENTER, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to Intercompany Subordination Agreement
XXXXXX-STANDARD AUTOMOTIVE UK FLUID SYSTEMS
LIMITED
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
XXXXXX-STANDARD AUTOMOTIVE (DEUTSCHLAND)
GMBH
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President/Managing Director
XXXXXX-STANDARD AUTOMOTIVE ESPANA, S.A.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX-STANDARD AUTOMOTIVE CESKA REPUBLIKA
S.R.O.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to Intercompany Subordination Agreement
XXXXXX-STANDARD AUTOMOTIVE BRASIL FLUID
SYSTEMS LTDA.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director Presidente
XXXXXX-STANDARD AUTOMOTIVE INDIA PRIVATE
LIMITED
By: /s/ X.X. Xxxxxx
---------------------------------------
Name: X.X. Xxxxxx
Title: Managing Director
XXXXXX-STANDARD SERVICES KOREA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary
XXXXXX-STANDARD AUTOMOTIVE FRANCE S.A.S.
By: /s/ Grieto Lukje
---------------------------------------
Name: Grieto Lukje
Title: President
TECHNISTAN SNC
By: /s/ Xxxxxxx Wolfhugel Gerant
---------------------------------------
Name: Xxxxxxx Wolfhugel Gerant
Title: Authorized Secretary
Signature Page to Intercompany Subordination Agreement
XXXXXX-STANDARD AUTOMOTIVE (AUSTRALIA)
PTY. LTD.
By: /s/ Xxxxxxx Xxx
---------------------------------------
Name: Xxxxxxx Xxx
Title: Managing Director
XXXXXX-STANDARD AUTOMOTIVE UK SEALING
LIMITED
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
STANDARD PRODUCTS MOULD & TOOL CO. LIMITED
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
HUNTINGDON RUBBER COMPANY LIMITED
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
STANDARD PRODUCTS (UK) LIMITED
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
Signature Page to Intercompany Subordination Agreement
THE STANDARD PRODUCTS COMPANY (EUROPE)
LIMITED
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
BIRD MOULD AND TOOL COMPANY LIMITED
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
SILENT CHANNEL PRODUCTS LIMITED
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
XXXXXX-STANDARD AUTOMOTIVE KOREA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
COOPERMEX S.A. DE C.V.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
Signature Page to Intercompany Subordination Agreement
XXXXXX-STANDARD AUTOMOTIVE DE MEXICO S.A.
DE C.V.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX-STANDARD AUTOMOTIVE POLSKA SP.
Z.O.O.
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
ITATIAIA STANDARD INDUSTRIA E COMERCIO
LTDA.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director Presidente
XXXXXX-STANDARD AUTOMOTIVE SERVICES S.A.
DE C.V.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX-STANDARD AUTOMOTIVE SEALING DE
MEXICO, S.A. DE C.V.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to Intercompany Subordination Agreement
XXXXXX-STANDARD AUTOMOTIVE FLUID SYSTEMS
DE MEXICO, S. DE X.X. DE C.V.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX-STANDARD AUTOMOTIVE DE MEXICO FLUID
SERVICES, S. DE X.X. DE C.V.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
SPB COMERCIO E PARTICIPACOES LTDA.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director Presidente
ITATIAIA STANDARD INDUSTRIAL LTDA.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director Presidente
Signature Page to Intercompany Subordination Agreement
XXXXXX-STANDARD AUTOMOTIVE BRASIL SEALING
LTDA.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director Presidente
CSA (BARBADOS) INVESTMENT CO. LTD.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman and Vice President
XXXXXX SAIYANG WUHU AUTOMOTIVE CO., LTD.
By: /s/ Xxxxxx Xx
---------------------------------------
Name: Xxxxxx Xx
Title: Director of China Business
Development
XXXXXX-STANDARD KUNSHAN AUTOMOTIVE CO.,
LTD.
By: /s/ Xxxxxx Xx
---------------------------------------
Name: Xxxxxx Xx
Title: Director of China Business
Development
Signature Page to Intercompany Subordination Agreement
XXXXXX-STANDARD AUTOMOTIVE UK PENSION TRUST
LTD.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX-STANDARD CHONGQING AUTOMOTIVE CO.,
LTD.
By: /s/ Xxxxxx Xx
---------------------------------------
Name: Xxxxxx Xx
Title: Director of China Business
Development
CS AUTOMOTIVE LLC
By: XXXXXX-STANDARD AUTOMOTIVE CANADA
LIMITED, its Member
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
CSA HOLDING (DEUTSCHLAND) GMBH
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
Signature Page to Intercompany Subordination Agreement
CSA BETEILIGUNGEN (DEUTSCHLAND) GMBH
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
CSA HOLDING DO BRAZIL LTDA.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director Presidente
Signature Page to Intercompany Subordination Agreement
DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Collateral Agent
By: /s/ Xxxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxxxx Xxxxxx
Title: Vice President
Signature Page to Intercompany Subordination Agreement
