INTERCREDITOR AGREEMENT
Exhibit 4.3
Intercreditor Agreement (this “Agreement”), dated as of December 21, 2010, among XXXXXX
XXXXXXX SENIOR FUNDING INC., as 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 (as defined below), U.S. BANK NATIONAL ASSOCIATION, as Collateral 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 (as defined below), Swift
Transportation Co., LLC, a Delaware limited liability company (the “Borrower”) and each of the
other Loan Parties (as defined below) party hereto.
WHEREAS, the Borrower, the First Priority Representative and certain financial institutions
and other entities are parties to the Credit Agreement, dated as the date hereof, among Swift
Transportation Company, a Delaware corporation (“Parent”), the Borrower, the lenders named therein,
Bank of America, N.A., as administrative agent and the other agents named therein (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 Borrower; and
WHEREAS, Swift Services Holdings, Inc, a Delaware corporation (the “Issuer”), the Second
Priority Representative, Parent and certain Subsidiaries of Parent are parties to the Indenture
dated as of the date hereof (the “Existing Second Priority Agreement”), pursuant to which the
Issuer has issued senior secured second lien notes (the “Second Lien Notes”); and
WHEREAS, the Borrower 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; and
WHEREAS, the Issuer and the other Loan Parties have granted to the Second Priority
Representative junior security interests in the Common Collateral as security for payment and
performance of the Second Priority Obligations;
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 are 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 First Priority Agreement” means any agreement permitted to be designated as such
by the First Priority Agreement and the Second Priority Agreement.
“Additional First Priority Debt” has the meaning set forth in Section 9.3(b).
“Additional Second Priority Agreement” means any agreement permitted to be designated as such
by the First Priority Agreement and the Second Priority Agreement.
“Additional Second Priority Debt” has the meaning set forth in Section 9.3(b).
“Agreement” has the meaning set forth in the introductory paragraph hereof.
“Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended
from time to time.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close.
“Borrower” has the meaning set forth in the introductory paragraph hereof.
“Cash Collateral” has the meaning set forth in Section 3.7.
“Common Collateral” means all assets that are both First Priority Collateral and Second
Priority Collateral.
“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 set forth in Section 5.2.
“Enforcement Action” means, with respect to the First Priority Obligations or the Second
Priority Obligations, 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 with respect to the Common Collateral under, 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 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.
“Enforcement Notice” has the meaning set forth in Section 3.7.
“Existing First Priority Agreement” has the meaning set forth in the first WHEREAS clause of
this Agreement.
“Existing Second Priority Agreement” has the meaning set forth in the second WHEREAS clause of
this Agreement.
“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, increase, renew, refund, replace (whether upon or after termination or otherwise) or
refinance (including by means of sales of debt securities to institutional investors) in whole or
in part from time to time 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
Borrower 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.
“First Priority Creditors” means each “Secured Party” as defined in the First Priority
Agreement, or any Persons that are designated under the First Priority Agreement as the “First
Priority Creditors” for purposes of this Agreement.
“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) with respect to the Existing First Priority Agreement,
all “Obligations” of each Loan Party as defined in the Existing First Priority Agreement and (b)
with respect to each other First Priority Agreement, all “Obligations” of each Loan Party as
defined in such First Priority Agreement, and shall in any event include (i) all principal of and
interest (including without limitation any Post-Petition Interest) and premium (if any) on all
loans made or other indebtedness issued or incurred pursuant to such First Priority Agreement, (ii)
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 such First Priority Agreement, (iii) all Specified Swap Agreements, (iv) all Specified Cash
Management Agreements and (v) all guarantee obligations, fees, expenses and other amounts payable
from time to time pursuant to the applicable First Priority Documents, in each case whether or not
allowed or allowable in an Insolvency Proceeding. 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) all of the First
Priority Liens have been released in accordance with the terms of the First Priority Documents and
(b) the First Priority Representative has delivered a written notice to the Second Priority
Representative stating that the event described in clause (a) has occurred to the satisfaction of
the First Priority Secured Parties, which notice shall be delivered by the First Priority
Representative promptly after the occurrence of the event described in clause (a).
“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 Agreement.
“First Priority Secured Parties” means the First Priority Representative, the First Priority
Creditors and any other holders of the First Priority Obligations.
“First Priority Security Documents” means the “Collateral Documents” as defined in the 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.
“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 similar federal, state or foreign bankruptcy,
insolvency, reorganization, receivership or similar law. Insolvency Proceeding shall not include
any dissolution of a Loan Party that is permitted under, and effected in compliance with any
covenants under, the First Priority Documents and the Second Priority Documents.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
“Loan Party” means the Borrower, Parent, and each direct or indirect subsidiary, affiliate or
shareholder (or equivalent) of the Borrower or any of its affiliates that is now or hereafter
becomes a party to any First Priority Document or Second Priority 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.
“Parent” has the meaning set forth in the first WHEREAS clause of this Agreement.
“Person” means any person, individual, sole proprietorship, partnership, joint venture,
corporation, limited liability company, unincorporated organization, association, institution,
entity, party, including any government and any political subdivision, agency or instrumentality
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 in any such Insolvency Proceeding.
“Purchase” has the meaning set forth in Section 3.7.
“Purchase Notice” has the meaning set forth in Section 3.7.
“Purchase Price” has the meaning set forth in Section 3.7.
“Purchasing Parties” has the meaning set forth in Section 3.7.
“Real Property” means any right, title or interest in and to real property, including any fee
interest, leasehold interest, easement, or license and any other right to use or occupy real
property, including any right arising by contract.
“Recovery” has the meaning set forth in Section 5.5.
“Replacement First Priority Agreement” has the meaning set forth in the definition of “First
Priority Agreement.”
“Second Lien Notes” has the meaning set forth in the second “WHEREAS” clause of this
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, increase, renew, refund, replace (whether upon or after termination or
otherwise) or refinance (including by means of sales of debt securities to institutional investors)
in whole or in part from time to time 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
Borrower 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 Creditors” means the “Holders” as defined in the Second Priority Agreement
and any holder of a Second Lien Note, the Second Priority Representatives or any Persons that are
designated under the Second Priority Agreement as the “Second Priority Creditors” for purposes of
this Agreement.
“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 (a) with respect to the Existing Second Priority
Agreement, all “Secured Obligations” of each Loan Party as defined in the “Security Agreement”
referred to in the Existing Second Priority Agreement and (b) with respect to each other Second
Priority Agreement, (i) all principal of and interest (including without limitation any
Post-Petition Interest) and premium (if any) on all indebtedness under such Second Priority
Agreement, and (ii) all guarantee obligations, fees, expenses and other amounts payable from time
to time pursuant to the applicable 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 any respect, set aside or required to be paid to a debtor in possession, any First
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 hereunder, be deemed
to be reinstated and outstanding as if such payment had not occurred.
“Second Priority Representative” has the meaning set forth in the introductory paragraph
hereof, 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 Parties” means the Second Priority Representative, the Second
Priority Creditors and any other holders of the Second Priority Obligations.
“Second Priority Security Documents” means the “Collateral Documents” as defined in the 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.
“Specified Cash Management Agreement”: any agreement providing for treasury, depositary,
overdraft, credit, purchase or debit card, electronic funds transfer or cash management services,
including in connection with any automated clearing house transfers of funds or any similar
transactions between any Loan Party and a Person who is (or was at the time such cash management
agreement was entered into) a holder of First Priority Obligations (other than under the Specified
Cash Management Agreement), or an affiliate thereof.
“Specified Swap Agreement”: means any Swap Agreement in respect of interest rates, currency
exchange rates or commodity prices entered into by any Loan Party and any Person that is (or was at
the time such Swap Agreement was entered into) a holder of First Priority Obligations (other than
under the Specified Swap Agreement) or an affiliate thereof, at the time such Swap Agreement is
entered into.
“Standstill Period” has the meaning set forth in Section 3.2.
“Surviving Obligations” has the meaning set forth in Section 3.7.
“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative
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 the Borrower or any of its subsidiaries shall be a
“Swap Agreement”.
“Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect from time to
time in the applicable jurisdiction.
1.2 Terms Generally. The definitions of terms herein shall apply equally to
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, restated, supplemented or otherwise modified, (ii) any reference herein
to any Person shall be construed to include such Person’s successors or permitted assigns, (iii)
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, (iv) all
references herein to Sections shall be construed to refer to Sections of this Agreement and (v) 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.
SECTION 2. Lien Priorities.
2.1 Subordination of Liens. (a) Any and all Liens on the 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, subrogation or otherwise are expressly junior in priority, operation and effect to any and all
Liens on the Common Collateral 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, 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
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 First Priority Secured Party or Second Priority Secured Party shall object to or
contest, or support any other Person in contesting or objecting to, in any proceeding (including
without limitation, any Insolvency Proceeding), the validity, extent, perfection, priority or
enforceability of any security interest in the Common Collateral granted to the other.
Notwithstanding any failure by any First Priority Secured Party or Second Priority Secured Party to
perfect its security interests in the Common Collateral or any avoidance, invalidation or
subordination by any third party or court of competent jurisdiction of the security interests in
the Common Collateral granted to the First Priority Secured Parties or the Second Priority Secured
Parties, the priority and rights as between the First Priority Secured Parties and the Second
Priority Secured Parties 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 the First Priority
Obligations may represent 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, but only so long as, except
in the case of any DIP Financing, any such obligations are permitted to be incurred pursuant to the
Second Priority Documents as in effect on the date of this Agreement. 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 either the First Priority Obligations or 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 with respect to the Common
Collateral 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 mortgages, deeds of trust, deeds and similar instruments
(collectively, “mortgages”) now or hereafter filed against Real Property that constitutes Common
Collateral in favor of or for the benefit of the Second Priority Representative and the other
Second Priority Secured Parties shall
be in form satisfactory to the First Priority Representative and shall contain the following
notation: “The lien created by this mortgage on the property described herein is junior and
subordinate to the lien on such property created by any mortgage, deed of trust or similar
instrument now or hereafter granted to the First Priority Representative, and its successors and
assigns, in such property, in accordance with the provisions of the Intercreditor Agreement dated
as of December __, 2010 among Xxxxxx Xxxxxxx Senior Funding Inc., as Collateral Agent for the First
Priority Secured Parties, U.S. Bank, National Association, as Collateral Agent for the Second
Priority Secured Parties, Swift Transportation Co., LLC, a Delaware limited liability company, as
Borrower, and the other Loan Parties referred to therein, as amended, modified or supplemented from
time to time.”
(c) The First Priority Representative hereby acknowledges 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) over, or has a notation of its lien on any certificate of title with
respect to, Common Collateral pursuant to the First Priority Security Documents, such possession,
control or notation of title is also for the benefit of and on behalf of, and the First Priority
Representative or such third party holds such possession, control or the benefit of such notation
of title as bailee and agent for, 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 and agency for perfection 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 Borrower’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 (and to the extent not so required, such delivery shall be made to the
Borrower) or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction
otherwise directs, and 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 (a) there shall be no Lien, and no Loan Party shall have
any right to create any Lien, on any assets of any Loan Party securing any Second Priority
Obligation if these same assets are not subject to, and do not become subject to, a Lien securing
the First Priority Obligations and (b) 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
not also subject to the first-priority Lien of the First Priority Representative under the First
Priority Documents, then the Second Priority Representative, 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 either (i)
release such Lien or (ii) 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.
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 with respect to the Common Collateral, without any consultation with or consent
of any Second Priority Secured Party, but subject to the provisos set forth in Sections 3.2 and
5.1. Upon the occurrence and during the continuance of a default or an event of default under 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 such order and manner as they may determine in their sole discretion.
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 with respect to the
Common Collateral;
(b) they will not take or cause to be taken any action, 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 without limitation the filing of an
Insolvency Proceeding) or otherwise, any foreclosure, sale, lease, exchange, transfer or
other disposition of the Common Collateral by any First Priority Secured Party or any other
Enforcement Action taken with respect to the Common Collateral (or any forbearance from
taking any Enforcement Action with respect to the Common Collateral) 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 (d), whether as a junior lien creditor or otherwise, they hereby
irrevocably waive such right);
(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, injunction 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; and
(f) 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.
provided that, notwithstanding the foregoing, any Second Priority Secured Party may
exercise its rights and remedies in respect of the Common Collateral under the Second Priority
Security Documents or applicable law after the passage of a period of 270 days (the “Standstill
Period”) from the date of delivery of a notice in writing by the Second Priority Representative 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 Priority Agreement; provided,
further, however, that, notwithstanding the foregoing, in no event shall any Second
Priority 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
Priority 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 Priority Representative and the Second Priority Secured
Parties may take any action expressly permitted by Section 5.
3.3 Judgment Creditors. In the event that any Second Priority Secured Party becomes a
judgment lien creditor as a result of its enforcement of its rights as an unsecured creditor, any
such judgment lien on the Common Collateral 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 other Liens on the Common Collateral securing the Second Priority Obligations
are subject to the terms of this Agreement.
3.4 Cooperation. Subject to Section 9.15, the Second Priority Representative, 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 reasonably 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, nor 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;
provided, that it is acknowledged by the First Priority Secured Parties and the Second
Priority Secured Parties that indemnification by the Loan Parties may be limited to the extent set
forth in the First Priority Agreement or the Second Priority Agreement, as the case may be.
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 Secured
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 or threaten to take any action with respect to the Common Collateral (including, without
limitation, any attempt to realize upon or enforce any remedy with respect to this Agreement), or
fail to take any action required by this Agreement, 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 its actions may at that time be difficult to ascertain and may be irreparable, and
(ii) each Second Priority Secured Party waives (to the extent it may lawfully do so) any defense it
may have 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 Option to Purchase. (a) The First Priority Representative agrees that it will
give the Second Priority Representative written notice (the “Enforcement Notice”) within five
Business Days after commencing any Enforcement Action with respect to Common Collateral (which
notice shall be effective for all Enforcement Actions taken after the date of such notice so long
as the First Priority Representative is diligently pursuing in good faith the exercise of its
default or enforcement rights or remedies against, or diligently attempting in good faith to vacate
any stay of enforcement rights of its senior Liens on a material portion of the Common Collateral,
including, without limitation, all Enforcement Actions identified in such notice). Any Second
Priority Secured Party shall have the option upon receipt of the Enforcement Notice by the Second
Priority Representative, by irrevocable written notice (the “Purchase Notice”) delivered by the
Second Priority Representative to the First Priority Representative no later than five Business
Days after receipt by the Second Priority Representative of the Enforcement Notice, to purchase all
(but not less than all) of the First Priority Obligations from the First Priority Secured Parties.
If the Second Priority Representative so delivers the Purchase Notice, the First Priority
Representative shall terminate any existing Enforcement Actions and shall not take any further
Enforcement Actions, provided, that the Purchase (as defined below) shall have been
consummated on the date specified in the Purchase Notice in accordance with this Section 3.7.
(b) On the date specified by the Second Priority Representative in the Purchase Notice (which
shall be a Business Day not less than five Business Days, nor more than ten Business Days, after
receipt by the First Priority Representative of the Purchase Notice), the First Priority Secured
Parties shall, subject to any required approval of any court or other governmental authority then
in effect, sell to the Second Priority Secured Parties electing to purchase pursuant to Section
3.7(a) (the “Purchasing Parties”), and the Purchasing Parties shall purchase (the “Purchase”) from
the First Priority Secured Parties, the First Priority Obligations; provided, that the
First Priority Obligations purchased shall not include any rights of First Priority Secured Parties
with respect to indemnification and other obligations of the Loan Parties under the First Priority
Documents that are expressly stated to survive the termination of the First Priority Documents (the
“Surviving Obligations”).
(c) Without limiting the obligations of the Loan Parties under the First Priority Documents
to the First Priority Secured Parties with respect to the Surviving Obligations (which shall not be
transferred in connection with the Purchase), on the date of the Purchase, the Purchasing Parties
shall (i) pay to the First Priority Secured Parties as the purchase price (the “Purchase Price”)
therefor the full amount of all First Priority Obligations then outstanding and unpaid (including
principal, accrued and unpaid interest at the contract rate, fees, breakage costs, attorneys’ fees
and expenses, and, in the case of any Specified Swap Agreements, the amount that would be payable
by the relevant Loan Party thereunder if it were to terminate such Specified Swap Agreements on the
date of the Purchase or, if not terminated, an amount determined by the relevant First Priority
Secured Party to be necessary to collateralize its credit risk arising out of such Specified Swap
Agreements), (ii) furnish cash collateral (the “Cash Collateral”) to
the First Priority Secured Parties in such amounts as the relevant First Priority Secured
Parties determine is reasonably necessary to secure such First Priority Secured Parties in
connection with any outstanding letters of credit (not to exceed 103% of the aggregate undrawn face
amount of such letters of credit), (iii) agree to reimburse the First Priority Secured Parties for
any loss, cost, damage or expense (including attorneys’ fees and expenses) in connection with any
fees, costs or expenses related to any checks or other payments provisionally credited to the First
Priority Obligations or as to which the First Priority Secured Parties have not yet received final
payment and (iv) agree, after written request from the First Priority Representative, to reimburse
the First Priority Secured Parties in respect of indemnification obligations of the Loan Parties
under the First Priority Documents as to matters or circumstances known to the Purchasing Parties
at the time of the Purchase which could reasonably be expected to result in any loss, cost, damage
or expense to any of the First Priority Secured Parties, provided that, in no event shall
any Purchasing Party have any liability for such amounts in excess of proceeds of Common Collateral
received by the Purchasing Parties.
(d) The Purchase Price and Cash Collateral shall be remitted by wire transfer in immediately
available funds to such account of the First Priority Representative as it shall designate to the
Purchasing Parties. The First Priority Representative shall, promptly following its receipt
thereof, distribute the amounts received by it in respect of the Purchase Price to the First
Priority Secured Parties in accordance with the First Priority Agreement. Interest shall be
calculated to but excluding the day on which the Purchase occurs if the amounts so paid by the
Purchasing Parties to the account designated by the First Priority Representative are received in
such account prior to 12:00 noon, New York City time, and interest shall be calculated to and
including such day if the amounts so paid by the Purchasing Parties to the account designated by
the First Priority Representative are received in such account later than 12:00 noon, New York City
time.
(e) The Purchase shall be made without representation or warranty of any kind by the First
Priority Secured Parties as to the First Priority Obligations, the Common Collateral or otherwise
and without recourse to the First Priority Secured Parties, except that the First Priority Secured
Parties shall represent and warrant: (i) the amount of the First Priority Obligations being
purchased, (ii) that the First Priority Secured Parties own the First Priority Obligations free and
clear of any Liens and (iii) that the First Priority Secured Parties have the right to assign the
First Priority Obligations and the assignment is duly authorized.
(f) For the avoidance of doubt, the parties hereto hereby acknowledge and agree that in no
event shall the Second Priority Representative (i) be deemed to be a Purchasing Party for purposes
of this Section 3.7, (ii) be subject to or liable for any obligations of a Purchasing Party
pursuant to this Section 3.7 or (iii) incur any liability to any First Priority Secured Party or
any other Person in connection with any Purchase pursuant to this Section 3.7.
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 without limitation any interest earned thereon) resulting from the sale, collection or
other disposition of Common Collateral in connection with an Enforcement Action, whether or not
pursuant to an Insolvency Proceeding, shall, subject to Section 9.14 hereof, 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 Second Priority Documents. Until the occurrence of the
First Priority Obligations Payment Date, any Common Collateral, including
without limitation 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 any release, sale or disposition of
all or any portion of the Common Collateral permitted pursuant to the terms of the First Priority
Documents (including pursuant to any waiver, consent, amendment or other modifications thereto)
that results in the release of the First Priority Lien on any Common Collateral (excluding the
release of all First Priority Liens in connection with the payment in full of all First Priority
Obligations), 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 with no further consent or action of
any Person.
(b) The Second Priority Representative shall promptly execute and deliver such release
documents and instruments (which shall be prepared by the First Priority Representative) at the
expense of the Borrower and shall take such further actions as the First Priority Representative
shall request to evidence any release 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, without limitation, 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 may at any time inspect, repossess, remove and otherwise deal with the Common
Collateral, 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) Proceeds of Common Collateral include insurance proceeds in respect of such
Common Collateral and therefore the lien priorities provided in Section 2.1 shall govern the
ultimate disposition of casualty insurance proceeds. The First Priority Representative and Second
Priority Representative are to be named as additional insureds and loss payees with respect to all
insurance policies relating to Common Collateral. Until the First Priority Obligations Payment
Date has occurred, the First Priority Representative shall have the sole and exclusive right, as
against the Second Priority Representative, to adjust or settle any insurance claims in the event
of any covered loss, theft or destruction of Common Collateral to the extent provided for, and in
accordance with, the First Priority Agreements. All proceeds of such insurance shall be remitted
to the First Priority Representative or the Second Priority Representative, as the case may be, and
each of the Second Priority Representative and First Priority Representative shall cooperate (if
necessary) in a reasonable manner in effecting the payment of insurance proceeds in accordance with
Section 4.1.
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 that no Second Priority Secured Party shall, in or in connection with any
Insolvency Proceeding, file any pleadings or motions, take any position at any hearing or
proceeding of any nature, or otherwise take any action whatsoever, in each case that (a) violates,
or is prohibited by, this Section 5 (or, in the absence of an Insolvency Proceeding, otherwise
would violate or be prohibited by this Agreement), (b) asserts any right, benefit or privilege that
arises in favor of the Second Priority Secured Parties, in whole or in part, as a result of their
interest in the Common Collateral (unless the assertion of such right is expressly permitted by
this Agreement) or (c) challenges the validity, priority, enforceability or voidability of any
Liens or claims held by the First Priority Representative or any other First Priority Secured Party
with respect to the Common Collateral, or the extent to which the First Priority Obligations
constitute secured claims or the value thereof under Section 506(a) of the Bankruptcy Code or
otherwise; provided that the Second Priority Representative may (i) file a proof of claim
in an Insolvency Proceeding and (ii) file any necessary responsive or defensive pleadings in
opposition to any motion or other pleadings made by any Person objecting to or otherwise seeking
the disallowance of any claims of the Second Priority Secured Parties on the Common Collateral,
subject to the limitations contained in this Agreement and only if consistent with the terms and
the limitations on the Second Priority Representative imposed hereby.
5.2 Financing Matters. If any Loan Party becomes subject to any Insolvency Proceeding
at any time prior to the First Priority Obligations Payment Date, and if the First Priority
Representative or the other First Priority Secured Parties desire to consent (or not object) to the
use of cash collateral under the Bankruptcy Code or to provide financing to any Loan Party under
the Bankruptcy Code or to consent (or not object) to the provision of such financing 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,
nor 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 below, (c) will subordinate (and will be deemed hereunder to have subordinated) the Second
Priority Liens on any Common Collateral (i) to 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), (ii) to any adequate protection provided to the First Priority Secured
Parties and (iii) to any “carve-out” agreed to by the First Priority Representative or the other
First Priority Secured Parties, and (d) agrees that notice received two calendar days prior to the
entry of an order approving such usage of cash collateral or approving such financing shall be
adequate notice so long as (A) the Second Priority Representative retains its Lien on the Common
Collateral to secure the Second Priority Obligations (in each case, including proceeds thereof
arising after the commencement of the case under the Bankruptcy Code) and (B) all Liens on Common
Collateral securing any such DIP Financing shall be senior to or on a parity with the Liens of the
First Priority Representative and the First Priority Creditors on Common Collateral securing the
First Priority Obligations.
5.3 Relief From the Automatic Stay. 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, 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 case in
respect of any Common Collateral, without the prior written consent of the First Priority
Representative.
5.4 Adequate Protection. The Second Priority Representative, on behalf of itself and
the other Second Priority Secured Parties, agrees that, prior to the First Priority Obligations
Payment Date, none of them shall object, contest, or support any other Person objecting to or
contesting, (a) any request by the First Priority Representative or the other First Priority
Secured Parties for adequate protection of its interest in the Common Collateral or any adequate
protection provided to the First Priority Representative or the other First Priority Secured
Parties, (b) 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 in the Common Collateral or (c) the payment of interest, fees, expenses 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. The Second Priority Representative, on behalf of
itself and the other Second Priority Secured Parties, further agrees that, prior to the First
Priority Obligations Payment Date, none of them shall assert or enforce any claim under Section
506(b) or 506(c) of the Bankruptcy Code or otherwise that is senior to or on a parity with the
First Priority Liens for costs or expenses of preserving or disposing of any Common Collateral.
Notwithstanding anything to the contrary set forth in this Section and in Section
5.2(c)(ii), but subject to all other provisions of this Agreement (including, without
limitation, Section 5.2(c)(i) and Section 5.3), in any Insolvency Proceeding, (i)
if the First Priority Secured Parties (or any subset thereof) are granted adequate protection
consisting of additional collateral (with replacement Liens on such additional collateral) and
superpriority claims in connection with any DIP Financing or use of cash collateral with respect to
the Common Collateral, and the First Priority Secured Parties do not object to the adequate
protection being provided to them, 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 Second Priority
Secured Parties, may, as adequate protection of their interests in the Common Collateral, seek or
accept (and the First Priority Representative and the First Priority Secured Parties shall not
object to) adequate protection consisting solely of (x) a replacement Lien on the same additional
collateral, subordinated to the Liens securing the First Priority Obligations and such DIP
Financing on the same basis as the other Second Priority Liens on the Common Collateral 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 the Second Priority Representative shall have irrevocably agreed, pursuant
to Section 1129(a)(9) of the Bankruptcy Code, on behalf of itself and the Second Priority Secured
Parties, in any stipulation and/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 Second Priority Secured Parties, seeks or accepts adequate protection in accordance with
clause (i) above and such adequate protection is granted in the form of additional collateral, then
the Second Priority Representative, on behalf of itself or any of the 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 the Liens on such collateral securing the First Priority Obligations and any such
DIP Financing (and all Obligations relating thereto) and any other Liens granted to the First
Priority Secured Parties as adequate protection, with such subordination to be on the same terms
that the other Liens securing the Second Priority Obligations are subordinated to such First
Priority Obligations under 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 none of them shall seek or accept adequate protection with respect to their interests in
the Common Collateral without the prior written consent of the First Priority Representative.
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 estate of any
Loan Party any
amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of
set-off or otherwise, 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, 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 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 Representative, on behalf of itself and each of the other
Second Priority Secured Parties, agrees 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. In an Insolvency Proceeding or
otherwise, neither the Second Priority Representative nor any other Second Priority Secured Party
shall oppose any sale or disposition of any Common Collateral 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 sale supported by the First Priority Secured Parties and to have released their
Liens on such assets.
5.7 Separate Grants of Security and Separate Classification. Each 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
First Priority Obligations and the Second Priority Obligations are fundamentally different from
each other and must be separately classified in any plan of reorganization proposed or adopted in
an Insolvency Proceeding. To further 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 secured
claim (rather than separate classes of senior and junior secured claims), then the Second Priority
Representative, on behalf of itself and the other Second Priority Secured Parties, hereby
acknowledges and agrees 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. The Second Priority Representative, on behalf of itself and the
other Second Priority Secured Parties, hereby acknowledges and agrees to turn over to the First
Priority Representative amounts otherwise received or receivable by them to the extent necessary to
effectuate the intent of the preceding sentence, even if such turnover has the effect of reducing
the claim or recovery of the Second 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 with respect to its interests in the Common
Collateral (except as provided in Section 5.4).
5.9 Other Matters. To the extent that the Second Priority Representative or any
Second Priority Secured Party has or acquires rights under Section 363 or Section 364 of the
Bankruptcy Code with respect to any of the Common Collateral, the Second Priority Representative
agrees, on behalf of itself and the other Second Priority Secured Parties not to assert any of such
rights without the prior written consent of the First Priority Representative unless expressly
permitted to do so hereunder.
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.
SECTION 6. Security Documents.
(a) Each Loan Party and the Second Priority Representative, on behalf of itself and the
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 in violation of this
Agreement.
(b) Each Loan Party and the First Priority Representative, on behalf of itself and the 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 in violation of this Agreement.
(c) In the event the First Priority Representative enters into any amendment, waiver, consent
or release 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, in each
case solely with respect to any Common Collateral, then such amendment, waiver, consent or release
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, modifications and releases 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, consent or release shall have the
effect of removing 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, (ii) any such amendment,
waiver, consent or release that adversely affects the rights of the Second Priority Secured Parties
and does not affect the First Priority Secured Parties in a like or similar manner shall not apply
to the Second Priority Security Documents without the consent of the Second Priority
Representative, (iii) no such amendment, waiver, consent or release with respect to any provision
applicable to the Second Priority Representative under the Second Priority Documents shall be made
without the prior written consent of such Second Priority Representative and (iv) notice of such
amendment, waiver, consent or release shall be given to the Second Priority Representative no later
than 30 days after its effectiveness, provided that the failure to give such notice shall
not affect the effectiveness and validity thereof.
(d) The First Priority Obligations and the Second Priority Obligations may be refinanced or
replaced (and may be increased in connection therewith), in whole or in part, in each case, without
notice to, or the consent (except to the extent a consent is otherwise required to permit the
refinancing transaction under any First Priority Agreement or any Second Priority Agreement) of any
First Priority Secured Party or any Second Priority Secured Party, all without affecting the Lien
priorities provided for herein or the other provisions hereof; provided, however,
that the holders of any such refinancing or replacement indebtedness (or an authorized agent or
trustee on their behalf) bind themselves in writing to the terms of this Agreement pursuant to such
documents or agreements (including amendments or
supplements to this Agreement) as the First Priority Representative or the Second Priority
Representative, as the case may be, shall reasonably request and in form and substance reasonably
acceptable to the First Priority Representative or the Second Priority Representative, as the case
may be; provided that such documents or agreements shall comply with Section 6(a) and
Section 6(b).
(e) If at any time in connection with or after the discharge of all First Priority
Obligations, the Borrower enters into any replacement First Priority Agreement (which may include
an increase in the amount of the First Priority Obligations) secured by all or a portion of the
First Priority Collateral on a first-priority basis, then such prior discharge of First Priority
Obligations shall automatically be deemed not to have occurred for the purposes of this Agreement,
and the obligations under such replacement First Priority Agreement 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 the First Priority Collateral (or such portion thereof)
set forth therein. The termination of the Existing First Priority Agreement in connection with any
such replacement shall not be deemed to be the First Priority Obligations Payment Date.
(f) In connection with any refinancing or replacement contemplated by Section 6(d) or 6(e),
this Agreement may be amended at the request and sole expense of the Borrower, and without the
consent of the First Priority Representative, the First Priority Secured Parties, or the Second
Priority Representative or the Second Priority Secured Parties (a) to add parties (or any
authorized agent or trustee therefor) providing any such refinancing or replacement indebtedness,
(b) to establish that Liens on any First Priority Collateral securing such refinancing or
replacement indebtedness shall have the same priority (or junior priority) as the Liens on any
First Priority Collateral securing the indebtedness being refinanced or replaced and (c) to
establish that Liens on any Second Priority Collateral securing such refinancing or replacement
indebtedness shall have the same priority as the Liens on any Second Priority Collateral securing
the indebtedness being refinanced or replaced, all on the terms provided for immediately prior to
such refinancing or replacement.
SECTION 7. Reliance; Waivers; etc.
7.1 Reliance. All extensions of credit under the First Priority Documents made after
the date hereof are deemed to have been made or incurred, in reliance upon this Agreement. The
Second Priority Representative, on behalf of itself and the 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
delivered and all extensions of credit thereunder are deemed to have been made or incurred, in
reliance upon this Agreement. The First Priority Representative, on behalf of itself and the other
First Priority Secured Parties, expressly waives all notices of the acceptance of and reliance on
this Agreement 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 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;
(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 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 of
the Second Priority Representative or any other Second Priority Secured Party, or any Loan
Party, to the extent applicable, in respect of this Agreement (other than the occurrence of
the First Priority Obligations Payment Date).
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:
(a) any lack of validity or enforceability of any Second Priority Document;
(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 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 any First
Priority Secured Party 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. Notwithstanding the foregoing, the parties hereto acknowledge that
the terms of this Agreement are not intended to and shall not, as between the Loan Parties and the
Secured Parties, negate, impair, waive or cancel any rights granted to, or carry liability or
obligation of, any Loan Party in the First Priority Documents and the Second Priority Documents or
impose any additional obligations on the Loan Parties (other than as expressly set forth herein).
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 Obligation Payment Date
shall have occurred subject to the reinstatement as expressly set forth herein. 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,
Borrower 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 (in accordance with the First Priority Agreement) and the Second Priority
Representative (in accordance with the Second Priority Agreement), and, in the case of amendments
or modifications of Sections 3.5, 3.6, 4.2, 5.2, 5.4, 6(c), 6(d), 6(e), 6(f), 9.3, 9.5 or 9.6, the
Loan Parties, and each waiver, if any, shall be a waiver only with respect to the specific instance
involved and shall in no way impair the rights of the parties making such waiver or the obligations
of the other parties to such party in any other respect or at any other time. Anything herein to
the contrary notwithstanding, no consent of any Loan Party shall be required for amendments,
modifications or waivers of any other provisions of this Agreement other than those that (i) affect
any obligation or right of the Loan Parties hereunder or under the First Priority Documents or the
Second Priority Documents or that would impose any additional obligations on the Loan Parties or
(ii) change the rights of the Loan Parties to refinance the First Priority Obligations or the
Second Priority Obligations.
(b) It is understood that this Agreement may be amended from time to time at the request of
the Borrower, at the Borrower’s sole expense, and without the consent of the First Priority
Representative, Second Priority Representative, any other First Priority Secured Party or any other
Second Priority Secured Party to (i) add other parties holding additional Indebtedness or
obligations that constitute First Priority Obligations (“Additional First Priority Debt”) or Second
Priority Obligations (“Additional Second Priority Debt”) (or any agent or trustee thereof) in each
case to the extent such Indebtedness or obligation is permitted to be incurred by the First
Priority Agreement and Second Priority Agreement then extant, (ii) in the case of Additional Second
Priority Debt, (1) establish that the Lien on the Common Collateral securing such Additional Second
Priority Debt shall be junior and subordinate in all respects to all Liens on the Common Collateral
securing any First Priority Obligations and shall share in the benefits of the Common Collateral
equally and ratably with all Liens on the Common Collateral securing any Second Priority
Obligations, and (2) provide to the holders of such Additional Second Priority Debt (or any agent
or trustee thereof) the comparable rights and benefits (including any improved rights and benefits
that have been consented to by the First Priority Representative for the benefit of all Second
Priority Debt) as are provided to the holders of Second Priority Obligations under this Agreement,
and (iii) in the case of Additional First Priority Debt, (1) establish that the Lien on the Common
Collateral securing such Additional First Priority Debt shall be superior in all respects to all
Liens on the Common Collateral securing any Second Priority Obligations and shall share in the
benefits of the Common
Collateral equally and ratably with all Liens on the Common Collateral securing any First
Priority Lien Obligations, and (2) provide to the holders of such Additional First Priority Debt
(or any agent or trustee thereof) the comparable rights and benefits as are provided to the holders
of First Priority Lien Obligations under this Agreement, in each case so long as such modifications
do not expressly violate the provisions of any First Priority Agreement or Second Priority
Agreement. Any such additional party and each First Priority Representative and Second Priority
Representative shall be entitled to rely on the determination of the Borrower that such
modifications do not violate any First Priority Agreement or Second Priority Agreement if such
determination is set forth in an Officers’ Certificate and an opinion of counsel delivered to such
party, the First Priority Representative and the Second Priority Representative. Any amendment to
this Agreement that is proposed to be effected without the consent of any First Priority
Representative shall be submitted to such First Priority Representative reasonably promptly after
the effectiveness of such amendment, and no such First Priority Representative shall be deemed to
have knowledge of any such amendment until it receives a copy of such amendment. Any amendment to
this Agreement that is proposed to be effected without the consent of any Second Priority
Representative shall be submitted to such Second Priority Representative reasonably promptly after
the effectiveness of such amendment, and no such Second Priority Representative shall be deemed to
have knowledge of any such amendment until it receives a copy of such amendment.
9.4 Information Concerning Financial Condition of the Borrower and the other Loan
Parties. Neither the Second Priority Representative nor the First Priority Representative
hereby assumes responsibility for keeping each other informed of the financial condition of the
Borrower 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 or
update any such information to such other party or any other party on any subsequent occasion, (b)
to undertake any investigation not a part of its regular business routine, or (c) to disclose any
other information. Neither the First Priority Representative nor the Second Priority
Representative shall have any responsibility to monitor or verify the financial condition of the
Borrower or other Loan Parties.
9.5 Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
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 nonexclusive jurisdiction of the courts of the State of New York
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 with respect to this Agreement, 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 (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 the first
sentence of 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 shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile.
All such notices and other communications (i) sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when received or (ii) sent by
facsimile shall be deemed to have been given when sent, provided that if not given during
normal business hours for the recipient, shall be deemed to have been given at the opening of
business on the next Business Day for the recipient. For the purposes hereof, the addresses of the
parties hereto (until notice of a change thereof is delivered as provided in this Section) shall be
as set forth below each party’s name on the signature pages hereof, 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 permitted 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 email or telecopy
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.
9.13 Additional Loan Parties. Each Person that becomes a Loan Party after the date
hereof shall become a party to this Agreement upon execution and delivery by such Person of an
Assumption Agreement in the form of Annex 1 to the Guarantee and Collateral Agreement referred to
in the First Priority Agreement.
9.14 Termination. This Agreement shall automatically terminate with no further action
required on the part of any Person upon the occurrence of any of the following: (a) the First
Priority Obligations Payment Date shall have occurred, or all of the First Priority Liens on all
Common Collateral have otherwise been released in accordance with the terms of the First Priority
Documents; (b) all Second Priority Obligations shall have been paid and discharged in full or have
been legally defeased, or all of the Second Priority Liens on all Common Collateral have otherwise
been released in accordance with the terms of the Second Priority Documents; or (c) each First
Priority Representative and Second Priority Representative party to this Agreement and the Grantors
shall have agreed to terminate this Agreement in writing; provided, however, in
case of any such termination under clause (a) above, upon the occurrence of any event described in
the last sentence of the definition of “First Priority Obligations”, such termination will be
deemed not to have occurred, and in case of any such termination under clause (b) above, upon the
occurrence of any event described in the last sentence of the definition of “Second Priority
Obligations”, such termination will be deemed not to have occurred
9.15 Concerning the Second Priority Representative. Each of the parties hereto
acknowledges that U.S. Bank, National Association is entering into this Agreement upon direction of
the Second Priority Creditors and solely in its capacity as Collateral Agent under the Second
Priority Security Documents and not in its individual capacity and in no event shall U.S. Bank,
National Association incur any liability in connection with this Agreement or be personally liable
for or on account of the statements, representations, warranties, covenants or obligations stated
to be those of the Second Priority Representative or the Second Priority Secured Parties hereunder
(including action taken on its behalf pursuant to Section 4.2(b)), all such liability, if any,
being expressly waived by the parties hereto and any Person claiming by, though or under such
party. Each party hereto hereby acknowledges and agrees that all of the rights, privileges,
protections, indemnities and immunities afforded U.S. Bank, National Association as Collateral
Agent under the Existing Second Priority Agreement and the Second Priority Security Documents are
hereby incorporated herein as if set forth herein in full. Notwithstanding anything to the
contrary herein, the fees, expenses and indemnities owing to U.S. Bank, National Association as
Collateral Agent, by any Loan Party, shall not be subordinated to any First Priority Obligation.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| XXXXXX XXXXXXX SENIOR FUNDING INC., as First Priority Representative for and on behalf of the First Priority Secured Parties |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | VP | |||
| Address for Notices: Xxxxxx Xxxxxxx Senior Funding, Inc. Attn: Loan Operations Address: 0 XXXXXXXXXX XXXXX, 0xx XXXXX XXXXXXXX, XX 00000 Telephone: 000-000-0000 Telecopy: 000-000-0000 |
||||
Intercreditor Agreement Signature Page
| U.S. BANK NATIONAL ASSOCIATION, as Second Priority Representative for and on behalf of the Second Priority Secured Parties |
||||
| By: | /s/ Xxxxxxx X.Xxxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxxx | |||
| Address for Notices: 00 Xxxxxxxxxx Xxx. XX-XX-XX0X Xx. Xxxx, XX 00000 Telephone: 000-000-0000 Telecopy: 000-000-0000 |
||||
Intercreditor Agreement Signature Page
| SWIFT TRANSPORTATION CO., LLC SWIFT TRANSPORTATION COMPANY SWIFT TRANSPORTATION CO. OF ARIZONA, LLC SWIFT LEASING CO., LLC SWIFT TRANSPORTATION SERVICES, LLC SWIFT TRANSPORTATION CO. OF VIRGINIA, LLC SWIFT INTERMODAL, LLC COMMON MARKET EQUIPMENT CO., LLC M.S. CARRIERS, LLC SPARKS FINANCE LLC XXXXXXXX DISTRIBUTING, LLC |
||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxx | |||
| Title: | Chief Financial Officer, Executive Vice President and Treasurer |
|||
| SWIFT SERVICES HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxx | |||
| Title: | Treasurer | |||
| INTERSTATE EQUIPMENT LEASING, LLC |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | ||||
| Title: | ||||
Intercreditor Agreement Signature Page
