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Exhibit 10.13
Execution Version
INTERCREDITOR AGREEMENT
INTERCREDITOR
AGREEMENT, made this 11 th day of February, 2005, by and
among:
PRUDENTIAL
INVESTMENT MANAGEMENT, INC. , having an office at c/o
Prudential Capital Group, 1114 Avenue of the Americas, 30
th Floor, New York, New York 10036 (“
Prudential ”) and each Prudential Affiliate (as
hereinafter defined) that hereafter purchases any Senior Notes (as
hereinafter defined) and has executed a joinder hereto in
accordance with Section 12(e) hereof (together with Prudential,
their respective successors and assigns that execute a joinder
hereto and future holders from time to time of the Senior Notes ,
collectively, the “ Holders ”) (provided,
however that any such Prudential Affiliate shall in any event be
deemed for the purposes hereof to have executed such joinder upon
becoming such a holder and shall be subject to and entitled to the
benefits of the terms hereof);
JPMORGAN
CHASE BANK, N.A., in its capacity as a lender under the Credit
Agreement (as hereinafter defined), having an office at 106
Corporate Park Drive, White Plains, New York 10604, Attention:
Florence Reap, KEYBANK, NATIONAL ASSOCIATION, having an office at
711 Westchester Avenue, White Plains, New York 10604, HSBC BANK
USA, NATIONAL ASSOCIATION, having an office at 250 North Aveneu,
2nd Floor, New Rochelle, NY 10801, Attn: Robert H. Rogers, Jr., and
each other financial institution which from time to time may become
a lender under the Credit Agreement (as hereinafter defined) and
has executed a joinder hereto in accordance with Section 12(e)
hereof (collectively, together with their respective successors and
assigns that execute a joinder hereto, the “ Lenders
”) (provided, however that any such financial institution
shall in any event be deemed for the purposes hereof to have
executed such joinder upon becoming such a lender and shall be
subject to and entitled to the benefits of the terms hereof);
and
JPMORGAN CHASE BANK, N.A. having
an office at JPMorgan Chase Bank, N.A., 4 New York Plaza, 15th
Floor, New York, New York 10004, Attn: Institutional Trust
Services, (i) in its capacity as administrative agent for each of
the Lenders (in such capacity, together with its successors and
assigns in such capacity, the “ Administrative Agent
”), (ii) in its capacity as collateral agent (in such
capacity, together with its successors and assigns in such
capacity, the “ Collateral Agent ”) for the
benefit of the Secured Parties (as defined in the Credit Agreement
referred to below) and (iii) in its capacity as security trustee
for the benefit of the Holders (in such capacity, together with its
successors and assigns in such capacity, the “ Trustee
”; the Trustee and the Collateral Agent are hereinafter
collectively referred to as the “ Creditors
”).
WITNESSETH
WHEREAS
:
A.
Kinro, Inc., an Ohio corporation (“ Kinro ”),
and Lippert Components, Inc., a Delaware corporation (“
Lippert Components ” and together with Kinro,
collectively, the
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“ Borrowers
”), have entered into an Amended and Restated Credit
Agreement, dated as of February 11, 2005 (the “ Credit
Agreement ”), with the Lenders and the Administrative
Agent, pursuant to which the Lenders have agreed to make loans and
issue letters of credit to the Borrowers in an aggregate principal
amount not to exceed $60,000,000 (subject, however, to further
increase in an amount of up to $30,000,000 pursuant to Section
2.06A of the Credit Agreement) (the outstanding loans and the
amount drawn under the letters of credit and not reimbursed are
hereinafter referred to collectively as the “ Loans
”);
B.
The Borrowers’ parent, Drew Industries Incorporated (“
Drew ”), and certain subsidiaries of Drew and the
Borrowers (collectively, the “ Subsidiary Guarantors
”) have agreed to jointly and severally guarantee the
obligations of the Borrowers under the Credit Agreement;
C.
All of the indebtedness, liabilities and obligations of the
Borrowers under the Credit Agreement and the other Loan Documents
(as defined in the Credit Agreement) and of Drew and the Subsidiary
Guarantors under each of the Loan Documents to which they are
parties, whether now existing or hereafter arising (“
Lender Indebtedness ”), is secured by the grant by
each of Drew, the Borrowers, Kinro Holding, Inc., Lippert
Components Holding, Inc., Lippert Tire & Axle Holding, Inc.,
and Lippert Tire & Axle, Inc. (collectively, the “
Pledgors ”) to the Collateral Agent, for the ratable
benefit of the Secured Parties, of liens on and security interests
in all of the capital stock, partnership interests, membership
interests and other equity ownership interests in each of its
Subsidiaries owned by it and all proceeds thereof (all such
collateral is more specifically described on Exhibit A
hereto and is hereinafter referred to as the “ Common
Collateral ”);
D.
Pursuant to a Note Purchase and Private Shelf Agreement, dated as
of February 11, 2005 (the “ Note Purchase Agreement
”), by and among Drew and the Borrowers, on the one hand, and
Prudential and each of the holders from time to time of the Senior
Notes, on the other hand, certain affiliates of Prudential
(collectively, the “ Prudential Affiliates ”)
may, in their sole discretion and within limits which may be
prescribed for purchase by Prudential and the Prudential Affiliates
from time to time, purchase senior secured promissory notes issued
by the Borrowers in an aggregate principal amount of up to
$60,000,000 (the “ Senior Notes ”), upon the
terms and subject to the conditions set forth therein;
E.
Drew and certain of the Subsidiary Guarantors have agreed to
jointly and severally guarantee the obligations of the Borrowers
under the Note Purchase Agreement and the Senior Notes;
F.
All of the indebtedness, liabilities and obligations (including,
without limitation, any Yield-Maintenance Amount (as defined in the
Note Purchase Agreement)) of the Borrowers to the Holders and the
Trustee under the Note Purchase Agreement, the Senior Notes and the
other Transaction Documents (as defined in the Note Purchase
Agreement) and of Drew and the Subsidiary Guarantors under each of
the Transaction Documents to which they are parties, whether now
existing or hereafter arising (the “ Senior Note
Obligations ”), are or will be secured by the grant by
each of the Pledgors to the Trustee, for the ratable benefit of the
Holders, of liens on and security interests in the Common
Collateral; and
G.
The parties desire to confirm, as among themselves, their relative
rights and priorities with respect to the Common
Collateral.
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NOW,
THEREFORE, in consideration for the mutual covenants set forth
herein and intending to be legally bound hereby the parties hereto
agree as follows:
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1
Priorities Regarding Common Collateral.
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Notwithstanding
anything to the contrary contained in or arising from any note,
agreement, instrument or document now or hereafter executed and
delivered by the Lenders, the Administrative Agent, the Collateral
Agent, the Trustee, the Holders or the Pledgors in connection with
any of the Credit Agreement, the Loans, the Lender Indebtedness,
the Senior Note Obligations, the Note Purchase Agreement or the
Senior Notes, including, without limitation, the terms and
conditions of any promissory note, security agreement or pledge
agreements executed and delivered by the Pledgors to the Lenders,
the Administrative Agent, the Collateral Agent, the Trustee or the
Holders, or any instrument or document executed and delivered in
connection therewith, or otherwise, and irrespective of (a) the
time, order or method of any attachment, perfection, filing or
recording of any security interest in, or lien upon, the Common
Collateral, including, without limitation, any prior perfection of
a security interest or lien by the Lenders, the Collateral Agent or
the Administrative Agent or the existence of any present or future
filing of financing statements under the Uniform Commercial Code or
other filings or recordings under any other law of any
jurisdictions which is applicable or in which such filing or
recording has been made, or (b) the provisions of the Uniform
Commercial Code or any other law of any jurisdiction which is
applicable:
(a)
the priorities of the liens and security interests of the
Collateral Agent and the Trustee in the Common Collateral shall
rank first and equal to each other, and shall be senior and prior
to any other liens and security interests in the Common Collateral;
and
(b)
Until (i) payment in full in cash of all of the Lender Indebtedness
(and the termination of the Revolving Credit Commitments (as
defined in the Credit Agreement) and the LC Exposure (as defined in
the Credit Agreement) being zero) or (ii) payment in full in cash
of all of the Senior Note Obligations (and the termination of the
Facility (as defined in the Note Purchase Agreement)), whichever of
(i) or (ii) shall occur first, all of the Common Collateral shall
be held for the mutual benefit of the Collateral Agent, for the
benefit of the Secured Parties, and the Trustee, for the benefit of
the Holders, and all of the proceeds of the Common Collateral
(including, without limitation, any net proceeds received by any
Creditor in connection with any sale, exchange, foreclosure or
other disposition of the Common Collateral) shall be allocated to
the Collateral Agent and the Trustee and applied against the Lender
Indebtedness and the Senior Note Obligations on a pro rata basis
based upon the aggregate principal amount of the then outstanding
Loans and the aggregate principal amount of the then outstanding
indebtedness evidenced by the Senior Notes (such proportionate
allocation is hereafter referred to as the “ Pro Rata
Allocation ”). The Trustee shall then allocate such
proceeds to the Holders on a pro rata basis based upon the
aggregate principal amount of outstanding Senior Notes held by the
Holders.
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2
Provisions Relating to Bankruptcy of Pledgors and
Subsidiaries;
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Foreclosure on Common Collateral and
Set-Offs.
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(a)
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, assignment for the benefit of
creditors or other similar proceeding relative to any of
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the Pledgors or any of their
respective Subsidiaries (as defined in the Note Purchase Agreement
and the Credit Agreement), whether voluntary or involuntary, under
any law now or hereafter in effect (ii) any proceeding for the
voluntary liquidation, dissolution or other winding-up of any of
the Pledgors or any of their respective Subsidiaries and whether or
not involving insolvency or bankruptcy proceedings, or (iii) any
foreclosure on or other similar action with respect to all or any
portion of the Common Collateral, then, and in any such event, any
payment or other distribution of any character, whether in cash,
securities or other property out of or in respect of the Common
Collateral or any proceeds thereof shall be shared by the
Collateral Agent, for the benefit of the Secured Parties, and the
Trustee, for the benefit of the Holders, and applied against the
Lender Indebtedness and the Senior Note Obligations in accordance
with the Pro Rata Allocation. This Agreement shall continue in full
force and effect notwithstanding the commencement of any action,
event or proceeding described in clauses (i) or (ii) of the
preceding sentence.
(b)
If either of the Creditors shall have received any payment or
distribution out of any of the assets of the Pledgors or their
respective Subsidiaries constituting a part of the Common
Collateral, whether arising out of or as a result of any event
described in subparagraph (a) above or otherwise, such Creditor
shall hold such payment or distribution in trust as trustee of an
express trust, for the benefit of itself and the other Creditor,
shall not commingle such payment or distribution with its other
assets, and shall promptly take all action necessary to cause such
payment or distribution to be distributed (i) first , to the
payment or reimbursement of any expenses and fees of the Creditors
hereunder or under any Loan Document (as defined in the Credit
Agreement) or Transaction Document (as defined in the Note Purchase
Agreement), whether such amounts are payable to indemnify the
Creditors, to pay the fees of the Creditors, to reimburse the
Creditors for any expenses incurred in connection with the
maintenance, protection, enforcement, sale or realization of any of
the Common Collateral or otherwise, and (ii) second , in
accordance with the Pro Rata Allocation as provided in subparagraph
(a) above.
(c)
If any amounts received by any Creditor and distributed pursuant to
Section 1 or 2(a) above subsequently are required to be repaid by
one or more, but less than all, of the Secured Parties or the
Holders which received such distribution to a trustee, receiver or
any other party under any bankruptcy law, state, provincial or
Federal law, common law or in equity, then each other Secured Party
and Holder which received a distribution but was not required to
repay the same shall, upon receipt of written notice from any such
Secured Party or Holder which was required to repay such amount,
pay to such party (or parties) a pro rata share of the distribution
received by it and necessary to result in the aggregate amount not
repaid being distributed in the manner contemplated by Section 1 or
Section 2(a) above, as applicable.
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3
Additional Provisions Regarding Common
Collateral.
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