Intercreditor
Agreement (this “ Agreement ”), dated as of
August 4, 2009, among Credit Suisse, as Second Lien Collateral
Agent (in such capacity, and as more specifically defined below,
the “ Second Priority Representative ”) for the
Second Priority Secured Parties (as defined below), U.S. Bank
National Association, as Third Lien Collateral Agent (in such
capacity, and as more specifically defined below, the “
Third Priority Representative ”) for the Third
Priority Secured Parties (as defined below), COMMERCIAL VEHICLE
GROUP, INC., a Delaware corporation (the “ Company
”) and the other Loan Parties (as defined below).
WHEREAS, the
Company, the Second Priority Representative, the Second Priority
Administrative Agent and certain financial institutions and the
other entities party thereto are entering into a Second Lien Term
Loan Agreement, dated as of the date hereof (the “
Existing Second Priority Agreement ”), pursuant to
which such financial institutions and other entities have agreed to
make loans to the Company;
WHEREAS, the
Company, the subsidiary guarantors party thereto and the Third
Priority Representative are parties to a Third Lien Indenture,
dated as of the date hereof (the “ Existing Third Priority
Agreement ”), pursuant to which the Company has issued to
certain holders 11%/13% Third Lien Senior Secured Notes due
2013;
WHEREAS, the
Company and the other Loan Parties propose to grant to the Second
Priority Representative security interests in the Common Collateral
to secure the payment and performance of the Second Priority
Obligations;
WHEREAS, the
Company and the other Loan Parties propose to grant to the Third
Priority Representative security interests in the Common Collateral
to secure the payment and performance of the Third Priority
Obligations; and
WHEREAS, the
parties hereto have agreed to execute and deliver this Agreement
for the purpose of setting forth the relative priority of the Liens
created by the Second Priority Security Documents and the Third
Priority Security Documents (as such terms are hereinafter defined)
in respect of the exercise of the rights and remedies in respect of
the Common Collateral and the application of proceeds
thereof;
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 is expressly recognized by all of the
parties hereto, the parties agree as follows:
1.1. Defined
Terms . The following terms, as used herein, have the following
meanings:
“
Additional Debt ” has the meaning as set forth in
Section 9.3(b).
“
Additional Second Priority Agreement ” means any
agreement approved for designation as such by the Second Priority
Administrative Agent, the Second Priority Representative and the
Company.
“
Additional Third Priority Agreement ” means any
agreement approved for designation as such by the Second Priority
Administrative Agent, the Second Priority Representative, the Third
Party Representative and the Company.
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“
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.
“ Common
Collateral ” means all assets that are both Second
Priority Collateral and Third Priority Collateral.
“
Company ” has the meaning set forth in the
introductory paragraph hereof.
“
Comparable Third Priority Security Document ” means,
in relation to any Common Collateral subject to any Second Priority
Security Document, the Third 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 Second
Priority Obligations or the Third 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 under,
as applicable, the Second Priority Documents or the Third 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(a).
“
Existing Second Priority Agreement ” has the meaning
set forth in the second WHEREAS clause of this
Agreement.
“
Existing Third Priority Agreement ” has the meaning
set forth in the third WHEREAS clause of this Agreement.
“First
Lien Intercreditor Agreement” the Intercreditor
Agreement, dated on the date hereof, by and among the Company, the
Subsidiary Guarantors party thereto from time to time, the First
Priority Representative, Second Priority Representative and the
Third Priority Representative.
“
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.
“
Lien ” means, with respect to any asset, (a) any
mortgage, deed of trust, deed to secure debt, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or
of such asset, and (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially
the same economic effect as any of the foregoing) relating to such
asset.
“ Loan
Party ” means the Company and its Subsidiaries that are
now or hereafter become parties to any Second Priority Document or
Third 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.
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“
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.
“
Recovery ” has the meaning as set forth in
Section 5.5.
“ Second
Priority Administrative Agent ” means Credit Suisse, as
the administrative agent and collateral agent for the Second
Priority Secured Parties under the Second Priority Agreement,
together with any of its successors and assigns.
“ 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, replace, refinance or refund in whole
or in part 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 Company 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 “Lenders” as
defined in the Second Priority Agreement, 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) all principal of
and interest (including without limitation any Post-Petition
Interest) and premium (if any) on all indebtedness under the Second
Priority Agreement, and (b) all guarantee obligations, fees,
expenses (including fees and expenses of counsel to the Second
Priority Administrative Agent and the Second Priority
Representative) and other amounts payable (including any indemnity
for Claims (as defined in the Second Priority Agreement)) from time
to time pursuant to the Second Priority Documents, in each case
whether or not allowed or allowable in an Insolvency
Proceeding.
“ Second
Priority Obligations Payment Date ” means the first date
on which (a) the Second Priority Obligations (other than those
that constitute Unasserted Contingent Obligations) have been paid
in cash in full, (b) all commitments to extend credit under
the Second Priority Documents have been terminated, and
(c) the Second Priority Representative has delivered a written
notice to the Third Priority Representatives stating that the
events described in clauses (a) and (b) have occurred to
the satisfaction of the Second Priority Secured Parties.
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“ 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 “Security
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 Second Priority Secured Parties and
the Third Priority Secured Parties.
“
Standstill Period ” has the meaning as set forth in
Section 3.2.
“Surviving Obligations” has the meaning set
forth in Section 3.7(b).
“ Third
Priority Agreement ” means the collective reference to
(a) the Existing Third Priority Agreement, (b) any
Additional Third 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, replace, refinance or refund in whole
or in part the indebtedness and other obligations outstanding under
the Existing Third Priority Agreement, any Additional Third
Priority Agreement or any other agreement or instrument referred to
in this clause (c). Any reference to the Third Priority Agreement
hereunder shall be deemed a reference to any Third Priority
Agreement then extant.
“ Third
Priority Collateral ” means all assets, whether now owned
or hereafter acquired by the Company or any other Loan Party, in
which a Lien is granted or purported to be granted to any Third
Priority Secured Party as security for any Third Priority
Obligation.
“ Third
Priority Creditors ” means the “Holders” as
defined in the Third Priority Agreement, or any Persons that are
designated under the Third Priority Agreement as the “Third
Priority Creditors” for purposes of this
Agreement.
“ Third
Priority Documents ” means each Third Priority Agreement,
each Third Priority Security Document and each Third Priority
Guarantee.
“ Third
Priority Guarantee ” means any guarantee by any Loan
Party of any or all of the Third Priority Obligations.
“Third
Priority Lien” means any Lien created by the Third
Priority Security Documents.
“ Third
Priority Obligations ” means (a) all principal of
and interest (including without limitation any Post-Petition
Interest) and premium (if any) on all indebtedness under the Third
Priority Agreement, (b) the obligations of the Loan Parties to
the Third Priority Representative under Section 7.07 of the
Third Priority Agreement and (c) all guarantee obligations,
fees, expenses (including fees and expenses of counsel to the Third
Priority Representative) and other amounts payable from time to
time pursuant to the Third Priority Documents.
“ Third
Priority Representative ” has the meaning set forth in
the introductory paragraph hereof, but shall also include any
Person identified as a “Third Priority Representative”
in any Third Priority Agreement other than the Existing Third
Priority Agreement.
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“ Third
Priority Secured Parties ” means the Third Priority
Representative, the Third Priority Creditors and any other holders
of the Third Priority Obligations.
“ Third
Priority Security Documents ” means the “Security
Documents” as defined in the Third Priority Agreement and any
documents that are designated under the Third Priority Agreement as
“Third Priority Security Documents” for purposes of
this Agreement.
“
Unasserted Contingent Obligations ” means, at any
time, Second Priority Obligations for taxes, costs,
indemnifications, reimbursements, damages and other liabilities
(excluding the principal of, and interest and premium (if any) on,
and fees and expenses relating to, any Second Priority Obligation)
in respect of which no assertion of liability (whether oral or
written) and no claim or demand for payment (whether oral or
written) has been made (and, in the case of Second Priority
Obligations for indemnification, no notice for indemnification has
been issued by the indemnitee) at such time.
“ Uniform
Commercial Code ” means 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, amended and restated, restated, supplemented or
otherwise modified, renewed, extended Refinanced or replaced
(ii) any reference herein to any Person shall be construed to
include such Person’s successors or permitted assigns,
(iii) any reference herein to any Loan Party shall be
construed to include such Loan Party as debtor and
debtor-in-possession and any receiver or trustee for such Loan
Party in any Insolvency Proceeding, (iv) 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, (v) all references herein to
Sections shall be construed to refer to Exhibits or Sections of
this Agreement, (vi) 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, and (vii) references to laws or statutes
include all related rules, regulations, interpretations, amendments
and successor provisions.
SECTION 2.
LIEN PRIORITIES.
2.1
Subordination of Liens . (a) Any and all Liens now
existing or hereafter created or arising in favor of any Third
Priority Secured Party securing the Third 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 now existing or hereafter
created or arising in favor of the Second Priority Secured Parties
securing the Second 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, pledges, deeds, mortgages
and other liens, charges or encumbrances 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 Second Priority Document or Third Priority
Document or any other circumstance whatsoever and (iii) the
fact that any such Liens in favor of any Second Priority Secured
Party securing any of the Second Priority Obligations are
(x) subordinated to any Lien securing any obligation of any
Loan Party other than the Third Priority Obligations or
(y) otherwise subordinated, voided, avoided, invalidated or
lapsed.
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(b) No Third
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 (as set forth herein) or
enforceability of any security interest in the Common Collateral
granted to the Second Priority Secured Parties; provided that
nothing in this Agreement shall be construed to prevent or impair
the rights of the Second Priority Representative or the Second
Priority Secured Parties to enforce this Agreement, including the
priority of the Liens as provided in this Agreement.
Notwithstanding any failure by any 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 Second Priority Secured Parties,
the priority and rights as between the Second Priority Secured
Parties and the Third Priority Secured Parties with respect to the
Common Collateral shall be as set forth herein.
2.2 Nature of
Second Priority Obligations . Each Third Priority
Representative, on behalf of itself and the other Third Priority
Secured Parties it represents, acknowledges that the amount of
Second Priority Obligations that may be outstanding at any time or
from time to time may be increased or reduced, and that the terms
of the Second Priority Obligations may be modified, extended or
amended from time to time, and that the aggregate amount of the
Second Priority Obligations may be increased, replaced or
refinanced, in each event, without notice to or consent by the
Third Priority Secured Parties and without affecting the provisions
hereof, whether or not such obligations are permitted to be
incurred pursuant to the Third Priority Documents. 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 Second Priority
Obligations or the Third Priority Obligations, or any portion
thereof.
2.3 Agreements
Regarding Actions to Perfect Liens . (a) Each Third
Priority Representative, on behalf of itself and the other Third
Priority Secured Parties it represents, agrees that UCC-1 financing
statements, patent, trademark or copyright filings or other filings
or recordings filed or recorded on behalf of the Third Priority
Secured Parties shall be in form reasonably satisfactory to the
Second Priority Representative.
(b) Each
Third Priority Representative, on behalf of itself and the other
Third Priority Secured Parties it represents, agrees that all
mortgages, deeds of trust, deeds and similar instruments
(collectively, “ mortgages ”) now or thereafter
filed against real property in favor of and for the benefit of the
Third Secured Parties shall be in form satisfactory to the Second
Priority Representative and shall contain the following notation
(or such other notation acceptable to the Second Priority
Representative): “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 Second Priority
Representative, and its successors and assigns, in such property,
in accordance with the provisions of that certain Intercreditor
Agreement dated as of August 4, 2009 among Credit Suisse, as
Second Priority Representative, U.S. Bank National Association, as
Third Priority Representative and the Loan Parties referred to
therein, as amended, modified or supplemented from time to
time.”
(c) The
Second 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 Common Collateral pursuant to the
Second Priority Security Documents, such possession or control is
also for the benefit of the Third Priority Representatives and the
other Third Priority Secured Parties solely to the extent required
to perfect their security interest in such Common Collateral.
Nothing in the preceding sentence shall be construed to impose any
duty on the Second Priority Representative (or any third party
acting on its behalf) with respect to such Common Collateral or
provide the Third Priority Representatives or any other Third
Priority Secured Party with any rights with respect to such Common
Collateral beyond those specified in this Agreement and the Third
Priority Security Documents, provided that promptly
subsequent to the occurrence of the Second Priority Obligations
Payment Date, the Second Priority Representative shall
(i) deliver to the applicable Third Priority Representative,
at the direction of
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the Second
Priority Representative and the Third Priority Representative as is
determined between them in accordance with the this Agreement, at
the Loan Parties’ sole cost and expense, the Common
Collateral in its possession or control together with any necessary
endorsements to the extent required by the Third Priority Documents
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
Second Priority Secured Parties and the Third Priority Secured
Parties and shall not impose on the Second 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 Second Priority Obligations Payment Date
has not occurred, the parties hereto agree that (a) no Loan
Party shall create or grant, nor shall any Third Priority Secured
Party have any right to require the creation of any Lien, on any
assets of any Loan Party securing any Third Priority Obligation if
these same assets are not subject to, and do not become subject to,
a Lien securing the Second Priority Obligations and (b) if any
Third Priority Secured Party shall acquire or hold any Lien on any
assets of any Loan Party securing any Third Priority Obligation
which assets are not also subject to the Second Priority Lien of
the Second Priority Representative under the Second Priority
Documents, then such Third Priority Representative, upon demand by
the Second Priority Representative, will without the need for any
further consent of any other Third Priority Secured Party,
notwithstanding anything to the contrary in any other Third
Priority Document either (i) release such Lien or
(ii) assign it to the Second Priority Representative as
security for the Second Priority Obligations (in which case such
Third Priority Representative may retain a Third Priority 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 Second
Priority Secured Parties, the Third Priority Representatives and
the other Third 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 Second Priority Obligations Payment
Date has occurred, whether or not an Insolvency Proceeding has been
commenced by or against any Loan Party, the Second 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 Third 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 (and defined in) the Second
Priority Documents, the Second Priority Representative and the
other Second Priority Secured Parties may take and continue any
Enforcement Action with respect to the Second Priority Obligations
and the Common Collateral in accordance with the terms of the
Second Priority Documents in such order and manner as they may
determine in their sole discretion.
3.2 Standstill
and Waivers . Each Third Priority Representative, on behalf of
itself and the other Third Priority Secured Parties it represents,
agrees that, until the Second 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;
(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 Third Priority
Obligation pari passu with or senior to, or to give any Third
Priority Secured Party any preference or priority relative to, the
Liens with respect to the Second Priority Obligations or the Second
Priority Secured Parties with respect to any of the Common
Collateral;
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(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 Second Priority Secured
Party or any other Enforcement Action taken (or any forbearance
from taking any Enforcement Action) by or on behalf of any Second
Priority Secured Party;
(d) they have no
right to (i) direct either the Second Priority Representative
or any other Second Priority Secured Party to exercise any right,
remedy or power with respect to the Common Collateral or pursuant
to the Second Priority Security Documents or (ii) consent or
object to the exercise by the Second Priority Representative or any
other Second Priority Secured Party of any right, remedy or power
with respect to the Common Collateral or pursuant to the Second
Priority Security Documents or t
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