EXHIBIT 10.2
INTERCREDITOR AGREEMENT
THIS
INTERCREDITOR AGREEMENT (this “Agreement”), dated as of
August 1, 2003, is among COURT SQUARE CAPITAL LIMITED, a
Delaware corporation, solely in its capacity as the lender under
that certain Third Secured Term Loan Agreement described below
(“CSCL”), CITICORP MEZZANINE III, L.P., a Delaware
limited partnership (“CMP”), BNY MIDWEST TRUST COMPANY,
in its capacity as collateral agent and trustee for the holders of
the Second Secured Notes described below (the “Second Lien
Agent”) and BANK ONE, NA, in its capacity as agent for the
lenders party to the Credit Agreement described below (the
“First Lien Agent”).
RECITALS
A. Contemporaneously
herewith, MSX International, Inc. (the “Company”), each
of the Foreign Borrowing Subsidiaries of the Company party thereto
from time to time (the “Foreign Borrowing
Subsidiaries”, and the Company and the Foreign Borrowing
Subsidiaries, the “Borrowers”), the lenders party
thereto from time to time (the “First Secured Lenders”)
and Bank One, NA, as agent, are parties to an Amended and Restated
Credit Agreement dated as of the date hereof (as amended, restated,
refinanced, replaced or otherwise modified from time to time, and
including without limitation any agreement executed in substitution
or replacement thereof or otherwise refinancing such Amended and
Restated Credit Agreement, the “First Secured Credit
Agreement”).
B. Contemporaneously
herewith, the Company, each domestic restricted subsidiary of the
Company, MSX International Limited (the “UK Borrower”)
and the Second Lien Agent have entered into a certain indenture,
dated as of the date hereof (as amended, restated, refinanced,
replaced or otherwise modified from time to time, and including
without limitation any agreement executed in substitution or
replacement thereof or otherwise refinancing such indenture, the
“Second Secured Indenture”), pursuant to which the
Company has issued 75,500 units consisting of its senior secured
notes due October 15, 2007 (including any Additional Notes
(defined therein) or Exchange Notes (defined therein) the
“Second Secured Notes”) in the original principal
amount of $75,500,000 on the date hereof.
C. Contemporaneously
herewith, the Company, the UK Borrower and CMP have entered into a
Third Secured Term Loan Agreement dated as of the date hereof (as
amended, restated, refinanced, replaced or otherwise modified from
time to time, and including without limitation any agreement
executed in substitution or replacement thereof or otherwise
refinancing such Third Secured Term Loan Agreement, the
“Third Secured Term Loan Agreement”).
D. The
Company, the UK Borrower and CSCL are parties to an Amended and
Restated Fourth Secured Term Loan Agreement dated as of the date
hereof (as so amended and as further amended, restated, refinanced,
replaced or otherwise modified from time to time, and including
without limitation any agreement executed in substitution or
replacement thereof or otherwise refinancing such Amended and
Restated Fourth Secured Term Loan Agreement, the “Fourth
Secured Term Loan Agreement”).
E. The
parties to the First Secured Credit Agreement, the Second Secured
Indenture and the Third Secured Term Loan Agreement are willing to
enter into those agreements only if this Agreement is executed by
all parties hereto specifying the relative lien priorities, rights
and other terms described herein.
AGREEMENT
In
consideration of the mutual agreements herein contained, the
parties agree as follows:
1.
Definitions . The following terms shall have the following
respective meanings:
“Assets”
means all present and future assets of the Company and each of its
Subsidiaries, including without limitation all accounts, inventory,
equipment, general intangibles, chattel paper, capital stock and
other investment property, instruments, deposit accounts, fixtures,
supporting obligations, real property and any other asset of any
type, whether real, personal or otherwise, and wherever
located.
“Borrowers”
is defined in the recitals hereto.
“Company”
is defined in the recitals hereto.
“Collateral”
means all Assets on which any First Lien, Second Lien, Third Lien
or Fourth Lien exists at any time.
“CMP”
is defined in the preamble hereto.
“CSCL”
is defined in the preamble hereto.
“First
Lien Agent” is defined in the preamble hereto.
“First
Liens” means all Liens in favor of the First Lien Agent, for
the benefit of the First Secured Creditors, on any Assets, whether
such Liens are now in existence or arise hereafter, up to the
amount of the permitted First Secured Obligations.
“First
Secured Collateral” means all Assets of the Company and each
of its Subsidiaries on which any First Lien exists.
“First
Secured Credit Agreement” is defined in the recitals
hereto.
“First
Secured Creditors” means the First Lien Agent and the First
Secured Lenders.
“First
Secured Lenders” is defined in the recitals
hereto.
“First
Secured Loan Documents” means the First Secured Credit
Agreement and all other agreements, instruments and documents
executed in connection therewith at any time, as amended or
modified form time to time.
“First
Secured Obligations” means all Obligations outstanding at any
time under any of the First Secured Loan Documents (provided that
the principal amount of such Obligations shall not exceed the
amount permitted under the Second Secured Indenture as in effect on
the date hereof without any modification) and all Obligations of
the Company or it Subsidiaries to any of the First Secured
Creditors or any of their Affiliates with respect to any
overdrafts, returned items and other liabilities that arises from
treasury, depository, foreign exchange (including without
limitation foreign currency hedging obligations) or cash management
services, including without limitation in connection with any
automated clearing house transfers of funds, wire transfer
services, controlled disbursement accounts or similar transactions,
and all Obligations in connection with any commercial credit cards
or stored value cards.
“Foreign
Borrowing Subsidiaries” is defined in the recitals
hereto.
“Foreign
Subsidiary” means any present and future Subsidiary of the
Company that is not organized under the laws of the United States
of America or any state thereof.
“Fourth
Liens” means all Liens in favor of the Fourth Secured
Creditors with respect to any Assets, whether such Liens are now in
existence or arise hereafter, up to the amount of the permitted
Fourth Secured Obligations.
“Fourth
Secured Collateral” means all Assets of the Company and each
of its Subsidiaries on which any Fourth Lien exists, provided that
(a) no Fourth Lien may exist on any such Asset on which an
enforceable, perfected First Lien (if the First Secured Obligations
have not been Paid in Full), Second Lien (if the Second Secured
Obligations have not been Paid in Full) and Third Lien (if the
Third Secured Obligations have not been Paid in Full) does not
exist and (b) all Assets of any Foreign Subsidiary (other than
the accounts receivable of the UK Borrower) and all Capital Stock
held by a Foreign Subsidiary shall be excluded from Fourth Secured
Collateral.
“Fourth
Secured Creditors” means CSCL and any other holders of the
Fourth Secured Obligations.
“Fourth
Secured Loan Documents” means the Fourth Secured Term Loan
Agreement and all other agreements, instruments and documents
executed in connection therewith at any time, as amended or
modified form time to time.
“Fourth
Secured Obligations” means all Obligations outstanding at any
time under any of the Fourth Secured Loan Documents.
“Fourth
Secured Term Loan Agreement” is defined in the recitals
hereto.
“Fourth
Secured Term Loan” means the loans made under the Fourth
Secured Term Loan Agreement.
“Insolvency
Proceeding” is defined in Section 5(a).
“Junior
Liens” means the Second Liens, the Third Liens and the Fourth
Liens, until the First Secured Obligations are Paid in Full, and
thereafter means the Third Liens and the Fourth Liens until the
Second Secured Obligations are Paid in Full, and thereafter means
the Fourth Liens.
“Junior
Secured Creditors” means the Second Secured Creditors, the
Third Secured Creditors and the Fourth Secured Creditors until the
First Secured Obligations are Paid in Full, and thereafter means
the Third Secured Creditors and the Fourth Secured Creditors until
the Second Secured Obligations are Paid in Full, and thereafter
means the Fourth Secured Creditors.
“Junior
Secured Obligations” means the Second Secured Obligations and
the Third Secured Obligations, until the First Secured Obligations
are Paid in Full, and thereafter means the Third Secured
Obligations and Fourth Secured Obligations until the Second Secured
Obligations are Paid in Full, and thereafter means the Fourth
Secured Obligations.
“Lien”
means any pledge, assignment, hypothecation, mortgage, security
interest, deposit arrangement, option, conditional sale or title
retaining contract, sale and leaseback transaction, financing
statement filing, lessor’s or lessee’s interest under
any lease, or any other type of lien, charge, encumbrance,
preferential arrangement or other claim or right.
“Obligations”
means all present and future obligations for principal, premium,
interest, make whole payments, penalties, fees, indemnifications
(other than wholly contingent indemnification obligations that are
not due or payable), reimbursements (under letters of credit or
otherwise, and contingent or otherwise), termination payments,
damages and other indebtedness, liabilities and obligations of any
kind (including without limitation all interest and fees and other
amounts accruing after commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency or
reorganization, whether or not an allowed claim).
“Paid
in Full” means, with respect to any Secured Obligations, the
irrevocable payment in full in cash of such Secured Obligations
(including without limitation providing cash collateral for any
outstanding letters of credit included in such Secured Obligations)
and the expiry or termination of any commitment to lend or make
other advances under the agreements relating to such Secured
Obligations.
“Person”
shall include an individual, a corporation, an association, a
partnership, a trust or estate, a joint stock company, an
unincorporated organization, a joint venture, a trade or business
(whether or not incorporated), a government (foreign or domestic)
and any agency or political subdivision thereof, or any other
entity.
“Pledged
Collateral” shall mean any tangible property in the
possession of any Secured Creditor (or its agents or bailees) in
which a security interest is perfected by such
possession.
“Priority
Secured Creditors” means the First Secured Creditors until
the First Secured Obligations are Paid in Full, and thereafter
means the Second Secured Creditors until the Second Secured
Obligations are Paid in Full, and thereafter means the Third
Secured Creditors.
“Priority
Secured Obligations” means the First Secured Obligations
until the First Secured Obligations are Paid in Full, and
thereafter means the Second Secured Obligations until the Second
Secured Obligations are Paid in Full, and thereafter means the
Third Secured Obligations.
“Second
Lien Agent” is defined in the preamble hereto.
“Second
Liens” means all Liens in favor of the Second Lien Agent, for
the benefit of the Second Secured Creditors, on any Assets, whether
such Liens are now in existence or arise hereafter, up to the
amount of the permitted Second Secured Obligations.
“Second
Secured Collateral” means all Assets of the Company and each
of its Subsidiaries on which any Second Lien exists, provided that
(a) no Second Lien may exist on any such Asset on which an
enforceable, perfected First Lien (if the First Secured Obligations
have not been Paid in Full) does not exist and (b) all Assets
of any Foreign Subsidiary (other than the accounts receivable of
the UK Borrower) and all Capital Stock held by a Foreign Subsidiary
shall be excluded from Second Secured Collateral.
“Second
Secured Creditors” means the Second Lien Agent and all
present and future holders of the Second Secured Notes.
“Second
Secured Indenture” is defined in the recitals
hereto.
“Second
Secured Loan Documents” means the Second Secured Indenture,
the Second Secured Notes and all other agreements, instruments and
documents executed in connection therewith at any time, as amended
or modified form time to time.
“Second
Secured Notes” is defined in the recitals hereto.
“Second
Secured Obligations” means all Obligations outstanding at any
time under any of the Second Secured Loan Documents.
“Secured
Creditors” means the First Secured Creditors, the Second
Secured Creditors and the Third Secured Creditors.
“Secured
Loan Documents” means the First Secured Loan Documents, the
Second Secured Loan Documents and the Third Secured Loan
Documents.
“Secured
Obligations” means the First Secured Obligations, the Second
Secured Obligations and the Third Secured Obligations.
“Senior
Subordinated Note Indenture” means the Senior Subordinated
Indenture between the Company, the UK Borrower, the subsidiary
guarantors named therein and IBJ Schroder Bank & Trust Company,
as trustee, dated as of January 15, 1998, as amended or
modified from time to time.
“Subsidiary”
of a Person means, any corporation, partnership, limited liability
company, association, joint venture or similar business
organization more than 50% of the outstanding capital stock,
membership interest, partnership interest or other ownership
interest having ordinary voting power (other than securities or
other ownership interests which have such power or right only by
reason of the happening of a contingency) of which shall at the
time be owned beneficially and of record, by such Person or by one
or more of the other Subsidiaries of such Person or by any
combination thereof. Any reference in this Agreement to a
Subsidiary shall be deemed reference to a Subsidiary of the Company
unless otherwise indicated.
“Third
Liens” means all Liens in favor of the Third Secured
Creditors with respect to any Assets, whether such Liens are now in
existence or arise hereafter, up to the amount of the permitted
Third Secured Obligations.
“Third
Secured Collateral” means all Assets of the Company and each
of its Subsidiaries on which any Third Lien exists, provided that
(a) no Third Lien may exist on any such Asset on which an
enforceable, perfected First Lien (if the First Secured Obligations
have not been Paid in Full) and Second Lien (if the Second Secured
Obligations have not been Paid in Full) does not exist and
(b) all Assets of any Foreign Subsidiary (other than the
accounts receivable of the UK Borrower) and all Capital Stock held
by a Foreign Subsidiary shall be excluded from Third Secured
Collateral.
“Third
Secured Creditors” means CMP and any other holders of the
Third Secured Obligations.
“Third
Secured Loan Documents” means the Third Secured Term Loan
Agreement and all other agreements, instruments and documents
executed in connection therewith at any time, as amended or
modified form time to time.
“Third
Secured Term Loan Agreement” is defined in the recitals
hereto.
“Third
Secured Term Loan” means the loans made under the Third
Secured Term Loan Agreement.
“Third
Secured Obligations” means all Obligations outstanding at any
time under any of the Third Secured Loan Documents.
“UK
Borrower” is defined in the recitals hereto.
All defined terms shall include both the singular and the plural
forms thereof and shall be construed accordingly. Use of the terms
“herein”, “hereof”, and
“hereunder” shall be deemed references to this
Agreement in its entirety and not to the Section or clause in which
such term appears.
2.
Lien Priority .
(a) The
Fourth Secured Creditors shall be allowed to be granted Fourth
Liens only on the Fourth Secured Collateral and any Liens in favor
of the Fourth Secured Creditors on any other Assets shall be null
and void. All Fourth Liens are hereby made junior and inferior in
priority, operation and effect to the priority, operation and
effect of all First Liens, Second Liens and
Third Liens, and all First Liens,
Second Liens and Third Liens are superior and prior in priority,
operation and effect to the priority, operation and effect of all
Fourth Liens. The Fourth Secured Creditors hereby agree to note on
all financing statements naming the Company or any of its
Subsidiaries as debtor, in the Fourth Secured Term Loan Agreement
and in such other Fourth Secured Loan Documents that grant a Lien
as requested by the First Lien Agent, that all Fourth Liens are
subject to this Agreement, in form and substance reasonably
satisfactory to the First Lien Agent and the Second Lien Agent and
the Third Secured Creditors, and authorize the First Lien Agent,
the Second Lien Agent and the Third Secured Creditors to amend any
financing statements filed by or on behalf of the Fourth Secured
Creditors to note that they are subject to this
Agreement.
(b) The
Third Secured Creditors shall be allowed to be granted Third Liens
only on the Third Secured Collateral and any Liens in favor of the
Third Secured Creditors on any other Assets shall be null and void.
All Third Liens are hereby made junior and inferior in priority,
operation and effect to the priority, operation and effect of all
First Liens and Second Liens, and all First Liens and Second Liens
are superior and prior in priority, operation and effect to the
priority, operation and effect of all Third Liens. The Third
Secured Creditors hereby agree to note on all financing statements
naming the Company or any of its Subsidiaries as debtor, in the
Third Secured Term Loan Agreement, the Third Secured Term Loan
Agreement and in such other Third Secured Loan Documents that grant
a Lien as requested by the First Lien Agent, that all Third Liens
are subject to this Agreement, in form and substance reasonably
satisfactory to the First Lien Agent and the Second Lien Agent, and
authorize the First Lien Agent and the Second Lien Agent to amend
any financing statements filed by or on behalf of the Third Secured
Creditors to note that they are subject to this
Agreement.
(c) The
Second Secured Creditors shall be allowed to be granted Second
Liens only on the Second Lien Collateral and any Liens in favor of
the Second Secured Creditors on any other Assets shall be null and
void. All Second Liens are hereby made junior and inferior in
priority, operation and effect to the priority, operation and
effect of all First Liens up to the amount of the First Secured
Obligations, and all First Liens (up to the amount of the First
Secured Obligations) are superior and prior in priority, operation
and effect to the priority, operation and effect of all Second
Liens. The Second Secured Creditors hereby agree to note on all
financing statements naming the Company or any of its Subsidiaries
as debtor, in the Second Secured Indenture and in such other Second
Secured Loan Documents that grant a Lien as requested by the First
Lien Agent, that all Second Liens are subject to this Agreement, in
form and substance reasonably satisfactory to the First Lien Agent,
and authorize the First Lien Agent to amend any financing
statements filed by or on behalf of the Second Secured Creditors to
note that they are subject to this Agreement.
(d) Any
distribution of any Collateral and all proceeds thereof, whether
upon any sale, dissolution, winding up, bankruptcy, foreclosure,
repossession or other Insolvency Proceeding or otherwise, shall be
applied first to the First Secured Obligations until the First
Secured Obligations are Paid in Full, second to the Second Secured
Obligations until the Second Secured Obligations are Paid in Full,
third to the Third Secured Obligations until the Third Secured
Obligations are Paid in Full and fourth, to the Fourth Secured
Obligations, until the Fourth Secured Obligations are Paid in
Full.
(e) Each
Junior Secured Creditor agrees that it will not take a Lien on any
Assets unless the First Secured Creditors (if the First Secured
Obligations have not been Paid in Full) and the Second Secured
Creditors (if the Second Secured Obligations have not been Paid in
Full) have an enforceable, perfected Lien on such Assets and, in
the case of the Fourth Secured Creditors only, the Third Secured
Creditors have an enforceable, perfected Lien on such Assets. If
any Junior Secured Creditor wants to obtain, and by the terms of
its own Secured Loan Documents to which it is a party is entitled
to obtain, a Lien on any Asset on which the First Secured Creditors
(if the First Secured Obligations have not been Paid in Full), the
Second Secured Creditors (if the Second Secured Obligations have
not been Paid in Full) and, in the case of the Fourth Secured
Creditors only, the Third Secured Creditors do not have an
enforceable, perfected Lien, such Junior Secured Creditor shall
cause the Company and its Subsidiaries to grant an enforceable,
perfected Lien on such Assets to the First Secured Creditors (if
the First Secured Obligations have not been Paid in Full), the
Second Secured Creditors (if the Second Secured Obligations have
not been Paid in Full) and, in the case of the Fourth Secured
Creditors only, the Third Secured Creditors before such Junior
Secured Creditor obtains a Lien on such Assets. The First Secured
Creditors (if the First Secured Obligations have not been Paid in
Full), the Second Secured Creditors (if the Second Secured
Obligations have not been Paid in Full) and, if applicable, the
Third Secured Creditors shall accept such Liens, provided that the
First Secured Creditors, the Second Secured Creditors and, if
applicable, the Third Secured Creditors shall not be responsible
for obtaining an enforceable, perfected Lien on such Assets or be
liable to any Junior Secured Creditors for any failure to obtain an
enforceable, perfected Lien on such Assets, and such Liens of the
Junior Secured Creditors on such Assets shall be null and void if
the First Secured Creditors (if the First Secured Obligations have
not been Paid in Full), the Second Secured Creditors (if the Second
Secured Obligations have not been Paid in Full) and, if applicable,
the Third Secured Creditors do not have an enforceable, perfected
Lien on such Assets.
(f) The
priorities of the Liens specified in this Agreement are applicable
regardless of the time or order of attachment or perfection of the
Liens. The First Liens have first priority, the Second Liens have
second priority, the Third Liens have third priority and the Fourth
Liens have fourth priority, all as described in this
Agreement.
3.
Rights and Remedies . The parties hereto agrees as
follows:
(a) until
the earlier of (i) January 15, 2008 or (ii) the date
the Priority Secured Obligations become due and payable, by
acceleration or otherwise, and after the earlier of such dates so
long as any Priority Secured Creditors are enforcing or otherwise
exercising in good faith and in a reasonably diligent manner any of
their rights or remedies (but not after the earlier of such dates
if no Priority Secured Creditor is enforcing or otherwise
exercising in good faith and in a reasonably diligent manner any of
their rights or remedies), (1) the Junior Secured Creditors
shall not exercise any right or remedy to which they may be
entitled with respect to any Lien in favor of such Secured
Creditors, including without limitation collecting or repossessing
any Collateral or notifying any account debtors or other obligors
with respect thereto; and (2) the Priority Secured Creditors
shall have the sole and exclusive right to take possession of,
commence and conduct foreclosure proceedings with respect to, or
otherwise dispose of and realize on or otherwise exercise any
rights with respect to, the Collateral, and shall direct and
control any sale or other disposition of the Collateral, whether
pursuant to any foreclosure, repossession or other judicial
proceedings or otherwise without the consent or approval of any
Junior Secured Creditor;
&nbs
