Exhibit 4.6
EXECUTION COPY
LIEN SUBORDINATION AND INTERCREDITOR
AGREEMENT
dated as of
August 13, 2009,
among
BANK OF AMERICA, N.A.,
as Collateral Agent,
WILMINGTON TRUST FSB,
as Trustee and Noteholder Collateral
Agent,
AFFINIA GROUP INC.,
AFFINIA GROUP INTERMEDIATE HOLDINGS
INC.,
and
the Subsidiaries of Affinia Group
Inc. listed on Schedule I hereto
LIEN SUBORDINATION AND INTERCREDITOR
AGREEMENT dated as of August 13, 2009 among BANK OF AMERICA,
N.A., as collateral agent for the Revolving Facility Secured
Parties referred to herein, WILMINGTON TRUST FSB, as trustee under
the Indenture referred to herein and as collateral agent for the
Noteholder Secured Parties referred to herein, AFFINIA GROUP INC,
AFFINIA GROUP INTERMEDIATE HOLDINGS INC and the subsidiaries of
Affinia Group Inc. listed on Schedule I hereto (as well as each
future Domestic Subsidiary of Affinia Group Inc. that becomes a
party hereto pursuant to the terms hereof).
Reference is made to (a) the
Credit Agreement (such term and each other capitalized term used
and not otherwise defined herein having the meaning assigned to it
in Article I), under which the Revolving Facility Lenders have
extended and agreed to extend credit to the Borrowers, and
(b) the Indenture governing the Notes. In consideration of the
mutual agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Collateral Agent (for itself and on behalf of the
Revolving Facility Secured Parties), the Trustee (for itself and on
behalf of the Noteholders), the Noteholder Collateral Agent (for
itself and on behalf of the Noteholder Secured Parties), the
Company, Affinia Group Intermediate Holdings Inc. (“
Holdings ”) and the subsidiaries of the Company
party hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Construction;
Certain Defined Terms. (a) 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, other document, statute or regulation herein
shall be construed as referring to such agreement, instrument,
other document, statute or regulation as from time to time amended,
supplemented or otherwise modified, (ii) any reference herein
to any Person shall be construed to include such Person’s
successors and assigns, but shall not be deemed to include the
subsidiaries of such Person unless express reference is made to
such subsidiaries, (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 Articles, Sections and Annexes shall be
construed to refer to Articles, Sections and Annexes of this
Agreement, (v) unless otherwise expressly qualified herein,
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 (vi) the
term “or” is not exclusive.
(b) As used in this Agreement, the
following terms have the meanings specified below:
“ Administrative
Agent ” means Bank of America, N.A., acting through
one or more of its branches or affiliates, in its capacity as
Administrative Agent under the Credit Agreement, and its successors
in such capacity.
“ Agent ”
means the Collateral Agent or the Noteholder Collateral Agent, as
the context may require, and “ Agents ”
means the Collateral Agent and the Noteholder Collateral
Agent.
“ Asset Sale Proceeds
Account ” means one or more deposit accounts or
securities accounts holding the proceeds of any Disposition of any
Noteholder First Lien Collateral that are required to be held in
such account or accounts pursuant to the terms of the Indenture as
in effect on the date hereof (or as modified from time to time to
the extent such modifications, taken as a whole, are not adverse to
the Revolving Facility Secured Parties in any material
respect).
“ Bankruptcy
Code ” means Title 11 of the United States
Code.
“ Borrowers
” means the Company and the subsidiaries of the Company that
are borrowers under the Credit Agreement.
“ Capital Stock
” means (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (c) in
the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited), and
(d) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
“ Collateral
” means the Revolving Facility Collateral and the Noteholder
Collateral.
“ Collateral Access
Agreement ” shall have the collective meaning of such
term set forth in the Security Documents.
“ Collateral
Agent ” means Bank of America, N.A., in its capacity
as Collateral Agent under the Revolving Facility Documents, and its
successors in such capacity.
“ Company
” means Affinia Group Inc., a Delaware
corporation.
“ Computer
Software ” shall have the collective meaning of such
term set forth in the Security Documents.
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“ Copyrights
” shall have the collective meaning of such term set forth in
the Security Documents.
“ Credit
Agreement ” means the ABL Credit Agreement dated as
of August 13, 2009, among Holdings, the Borrowers from time to
time party thereto, the Guarantors from time to time party thereto,
the Revolving Facility Lenders and the Administrative Agent, as
amended, extended, renewed, restated, supplemented, waived,
replaced, restructured, repaid, refunded, refinanced or otherwise
modified from time to time, in each case with the same or different
lenders and agents.
“ Disposition
” shall mean any sale, lease, sale and leaseback, assignment,
conveyance, exchange, transfer or other disposition. “
Dispose ” shall have a correlative
meaning.
“ Domestic
Subsidiary ” of any Person shall mean any subsidiary
of such Person incorporated or organized in the United States or
any State thereof or the District of Columbia.
“ Enforcement
Action ” means (a) the taking of any action to
enforce or realize upon any Lien on the Collateral, including the
institution of any foreclosure proceedings or the noticing of any
public or private sale or other Disposition pursuant to
Article 8 or Article 9 of the New York UCC or other applicable
law, (b) the exercise of any right or remedy provided to a
secured creditor or otherwise on account of a Lien on the
Collateral under the Revolving Facility Documents, the Noteholder
Documents, or applicable law, including the election to retain any
Collateral in satisfaction of a Lien or credit bid, (c) the
taking of any action or the exercise of any right or remedy in
respect of the collection on, set off against, marshaling of, or
foreclosure on the Collateral or the proceeds of Collateral,
(d) the sale, lease, license, or other Disposition of all or
any portion of the Collateral, at a private or public sale, other
Disposition or any other means permissible under applicable law at
any time that an event of default shall have occurred which is
continuing, and (e) the exercise of any other right of
liquidation against any Collateral (including the exercise of any
right of recoupment or set-off or any rights against Collateral
obtained pursuant to or by foreclosure of a judgment Lien obtained
against any Grantor) whether under the Revolving Facility
Documents, the Noteholder Documents, applicable law, in a
proceeding or otherwise, it being acknowledged and agreed that the
exercise of cash dominion over the Deposit Accounts of any Grantor
and application of funds in connection therewith will not
constitute an Enforcement Action for purposes of this
Agreement.
“ Event of
Default ” means an “Event of Default”
under and as defined in the Credit Agreement or the Indenture, as
the context may require.
“ Grantor
” means Holdings, the Company and each wholly-owned Domestic
Subsidiary of the Company that shall have granted any Lien in favor
of the Collateral Agent or the Noteholder Collateral Agent on any
of its assets or properties to secure any of the
Obligations.
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“ Indenture
” means the Indenture dated as of August 13, 2009, among
the Company, the other Grantors named therein and the Trustee, as
amended, extended, renewed, restated, supplemented, waived,
replaced, restructured, repaid, refunded, refinanced or otherwise
modified from time to time, in each case with the same or different
Trustee.
“ Independent Qualified
Party ” shall have the meaning of such term set forth
in the Indenture.
“ Insolvency
Proceeding ” means any voluntary or involuntary
insolvency, bankruptcy, receivership, custodianship, liquidation,
dissolution, reorganization, assignment for the benefit of
creditors, appointment of a custodian, receiver, trustee or other
officer with similar powers or any other proceeding for the
liquidation, dissolution or other winding up of any Grantor under
the Bankruptcy Code or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law.
“ IP Agreements
” shall have the collective meaning of such term set forth in
the Security Documents.
“ Junior
Documents ” means (a) in respect of the
Noteholder First Lien Collateral, the Revolving Facility Documents,
and (b) in respect of the Revolving Facility First Lien
Collateral, the Noteholder Documents.
“ Junior Liens
” means (a) in respect of the Revolving Facility First
Lien Collateral, the Noteholder Liens on such Collateral, and
(b) in respect of the Noteholder First Lien Collateral, the
Revolving Facility Liens on such Collateral.
“ Junior
Representative ” means (a) with respect to the
Noteholder First Lien Collateral, the Collateral Agent, and
(b) with respect to the Revolving Facility First Lien
Collateral, the Noteholder Collateral Agent.
“ Junior Secured
Obligations ” means (a) with respect to the
Noteholder Obligations (to the extent such Obligations are secured
by the Noteholder First Lien Collateral), the Revolving Facility
Obligations, and (b) with respect to Revolving Facility
Obligations (to the extent such Obligations are secured by the
Revolving Facility First Lien Collateral), the Noteholder
Obligations.
“ Junior Secured
Obligations Collateral ” means the Collateral in
respect of which the Junior Representative (on behalf of itself and
the Junior Secured Obligations Secured Parties) holds a Junior
Lien.
“ Junior Secured
Obligations Secured Parties ” means (a) with
respect to the Noteholder First Lien Collateral, the Revolving
Facility Secured Parties, and (b) with respect to the
Revolving Facility First Lien Collateral, the Noteholder Secured
Parties.
“ Junior Secured
Obligations Security Documents ” means (a) with
respect to the Revolving Facility First Lien Collateral, the
Noteholder Security Documents, and (b) with respect to the
Noteholder First Lien Collateral, the Revolving Facility Security
Documents.
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“ Lien ”
means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any other
agreement to give a security interest therein and any filing of or
agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes of any jurisdiction) with
respect thereto; provided , however , that in no
event shall an operating lease be deemed to constitute a
Lien.
“ New York UCC
” means the Uniform Commercial Code as from time to time in
effect in the State of New York.
“ Noteholder
Collateral ” means all assets and properties of the
Grantors subject to Liens created by the Noteholder Security
Documents to secure the Noteholder Obligations.
“ Noteholder Collateral
Agent ” means Wilmington Trust FSB, in its capacity
as noteholder collateral agent under the Noteholder Security
Documents, and its successors in such capacity.
“ Noteholder
Documents ” means the Indenture, the Notes and
guarantees issued thereunder or pursuant thereto and the Noteholder
Security Documents.
“ Noteholder First Lien
Collateral ” means any and all Noteholder Collateral
other than the Revolving Facility First Lien Collateral.
“ Noteholder
Liens ” means Liens on the Noteholder Collateral
created under the Noteholder Security Documents to secure the
Noteholder Obligations.
“ Noteholder
Mortgages ” means the mortgages, deeds of trust,
leasehold mortgages, assignments of leases and rents, modifications
and other security documents that convey or evidence a Lien in
favor of the Trustee or the Noteholder Collateral Agent (in each
case on behalf of the Noteholder Secured Parties) on fee or
leasehold interests in real property of a Grantor to secure
Noteholder Obligations, as amended, supplemented, restated,
renewed, refunded, replaced, restructured, repaid, refinanced or
otherwise modified from time to time.
“ Noteholder
Obligations ” means all obligations under the
Noteholder Documents.
“ Noteholder Secured
Parties ” means, at any time, the Trustee, the
Noteholder Collateral Agent, each Noteholder, the beneficiaries of
each indemnification obligation undertaken by any Grantor under any
Noteholder Document and each other holder of, or obligee in respect
of, any Noteholder Obligations outstanding at such time.
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“ Noteholder Security
Agreement ” means the Collateral Agreement dated as
of August 13, 2009, among Holdings, the Company, the
subsidiaries of the Company party thereto and the Noteholder
Collateral Agent, as amended, supplemented, restated, renewed,
refunded, replaced, restructured, repaid, refinanced or otherwise
modified from time to time.
“ Noteholder Security
Documents ” means the Noteholder Security Agreement,
the Noteholder Mortgages, the Intellectual Property Security
Agreements (as defined in the Noteholder Security Agreement) and
any other documents now existing or entered into after the date
hereof that create (or purport to create) Liens on any assets or
properties of any Grantor to secure any Noteholder
Obligations.
“Noteholder UK Mortgage
of Shares” means the mortgage of shares dated
August 13, 2009, between Brake Parts Inc. and Wilmington Trust
FSB.
“ Noteholders
” means the Holders under and as defined in the
Indenture.
“ Notes ”
means the 10.75% Senior Secured Notes due 2016 issued under the
Indenture.
“ Obligations
” means the Noteholder Obligations and the Revolving Facility
Obligations.
“ Paid In Full
” and “ Payment In Full ” shall
mean, with respect to the Revolving Facility Obligations, payment
in full in cash of all of the Revolving Facility Obligations
(except for contingent indemnity obligations to the extent no claim
therefor has been made) or, in each case, cash collateralization
thereof (including through a satisfactory supporting letter of
credit) on terms satisfactory to the holders thereof and
termination of all commitments to extend credit under the Credit
Agreement and, with respect to the Noteholder Obligations, payment
in full in cash of all of the Noteholder Obligations (except for
contingent indemnity obligations to the extent no claim therefor
has been made).
“ Patents
” shall have the collective meaning of such term set forth in
the Security Documents.
“ Person ”
means any individual, sole proprietorship, partnership, limited
liability company, joint venture, joint-stock company, trust,
unincorporated organization, association, corporation, government
or any agency or political subdivision thereof or any other
entity.
“ Representative
” means (a) in the case of any Noteholder Obligations,
the Noteholder Collateral Agent, and (b) in the case of any
Revolving Facility Obligations, the Collateral Agent.
“ Revolving Facility
Collateral ” means all assets and properties of the
Grantors subject to Liens created by the Revolving Facility
Security Documents to secure the Revolving Facility
Obligations.
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“ Revolving Facility
Documents ” means the “Credit Documents”
as defined in the Credit Agreement, as amended, extended, renewed,
restated, supplemented, waived, replaced, restructured, repaid,
refunded, refinanced or otherwise modified from time to time in
connection with refinancing, refunding or replacement of the Credit
Agreement, including with different lenders or agents.
“ Revolving Facility
First Lien Collateral ” means any and all of the
following Revolving Facility Collateral now owned or at any time
hereafter acquired by the Company or any other Grantor or in which
any such Person may have now or in the future any right, title or
interest:
(a) all Accounts and all rights to
receive payments, indebtedness and other obligations (whether
constituting an Account, Chattel Paper (including Electronic
Chattel Paper), Instrument, Document or General Intangible) which
arise as a result of the sale or lease of Inventory, Goods or
merchandise or provision of services, including the right to
payment of any interest or finance charges,
(b) all Inventory;
(c) all Payment Intangibles
(including corporate and other tax refunds), other than any Payment
Intangibles that represent tax refunds in respect of or otherwise
relate to real property, Fixtures or Equipment;
(d) all collection accounts, Deposit
Accounts, disbursement accounts, lock-boxes, Securities Accounts
and Commodity Accounts (excluding the Asset Sales Proceeds Account)
and any cash or other assets including all “Cash
Equivalents” as defined in the Credit Agreement on the date
hereof (or as modified from time to time to the extent such
modifications, taken as a whole, are not materially adverse to the
Noteholder Secured Parties) in, or credited to, any such accounts
(other than (i) identifiable cash proceeds in respect of real
estate, Fixtures or Equipment and (ii) the Asset Sale Proceeds
Account and all cash, checks or other property properly held
therein or properly credited thereto in accordance with the
Indenture (as in effect on the date hereof) and any other
identifiable cash proceeds in respect of Noteholder First Lien
Collateral plus interest, dividends, earnings and other
proceeds thereof, and minus withdrawals thereof that are
applied as provided in the Indenture);
(e) to the extent evidencing,
governing, securing or otherwise related to the items referred to
in the preceding clauses, all Documents, Letter-of-Credit Rights
and Supporting Obligations;
(f) all Liens purporting to secure
any of the foregoing;
(g) all books and records related to
the foregoing;
(h) all collateral and guarantees
given by any other Person with respect to any of the foregoing;
and
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(i) all products, proceeds and
Supporting Obligations of any and all of the foregoing in whatever
form received, including proceeds of insurance policies related to
Inventory and accounts of any Grantor and business interruption
insurance; provided , however , that proceeds of
Revolving First Lien Collateral described in clause (e) above
shall not constitute Revolving First Lien Collateral unless such
proceeds would otherwise constitute Revolving First Lien Collateral
in any of the foregoing clauses (a) - (h).
All capitalized terms used in this
definition and not defined elsewhere in this Agreement have the
meanings assigned to them in the New York UCC.
“ Revolving Facility
First Lien Collateral Transition Date ” means the
earlier of (a) the date on which all the Revolving Facility
Obligations shall have been Paid in Full and (b) the date on
which all Senior Liens on the Revolving Facility First Lien
Collateral shall have been released from the Liens created under
the Revolving Facility Documents in accordance with the terms of
the Revolving Facility Documents.
“ Revolving Facility
Lenders ” means the Lenders under and as defined in
the Credit Agreement.
“ Revolving Facility
Liens ” means Liens on the Revolving Facility
Collateral created under Revolving Facility Security Documents to
secure the Revolving Facility Obligations.
“ Revolving Facility
Mortgages ” means the mortgages, deeds of trust,
leasehold mortgages, assignments of leases and rents, modifications
and other security documents that convey or evidence a Lien in
favor of the Collateral Agent or any trustee on its behalf (in
either case, on behalf of the Revolving Facility Secured Parties)
on fee or leasehold interests in real property of a Grantor to
secure the Revolving Facility Obligations, as amended, extended,
renewed, restated, supplemented, waived, replaced, restructured,
repaid, refunded, refinanced or otherwise modified from time to
time, including with different lenders or agents.
“ Revolving Facility
Obligations ” means, collectively, (i) all
“Obligations” (as such term is defined in the Credit
Agreement) under the Revolving Facility Documents and (ii) all
amounts owing to each Revolving Facility Secured Party pursuant to
the terms of any Qualified Secured Hedging Agreement or Qualified
Secured Cash Management Agreement (as such terms are defined in the
Credit Agreement), including all amounts in respect of any
principal, premium (if any), interest (including any interest
accruing subsequent to the filing of a petition in bankruptcy,
reorganization or similar proceeding at the rate provided for in
the respective Qualified Secured Hedging Agreement or Qualified
Secured Cash Management Agreement, whether or not such interest is
an allowed claim under any such proceeding or under applicable
state, federal or foreign law), penalties, fees, expenses,
indemnifications, reimbursements, damages or other liabilities and
guarantees of the foregoing amounts.
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“ Revolving Facility
Secured Parties ” means, at any time, the Collateral
Agent, the Administrative Agent, each Revolving Facility Lender,
each Issuing Lender (as defined in the Credit Agreement), each
counterparty under any Qualified Secured Hedging Agreements and
Qualified Secured Cash Management Agreements (each as defined in
the Credit Agreement), the beneficiaries of each indemnification
obligation undertaken by any Grantor under any Revolving Facility
Document and each other holder of, or obligee in respect of, any
Revolving Facility Obligations outstanding at such time.
“ Revolving Facility
Security Documents ” means the Credit Agreement
(insofar as the same grants a Lien on Collateral), the U.S.
Security Agreement (as defined in the Credit Agreement), the
Revolving Facility Mortgages, the Intellectual Property Security
Agreements (as defined in the U.S. Security Agreement) and any
other documents now existing or entered into after the date hereof
that create (or purport to create) Liens on any assets or
properties of any Grantor to secure any Revolving Facility
Obligations, as amended, extended, renewed, restated, supplemented,
waived, replaced, restructured, repaid, refunded, refinanced or
otherwise modified from time to time, including with different
lenders or agents.
“ Secured
Parties ” means the Noteholder Secured Parties and
the Revolving Facility Secured Parties.
“ Security
Documents ” means the Noteholder Security Documents
and the Revolving Facility Security Documents.
“ Senior
Documents ” means (a) in respect of the
Noteholder First Lien Collateral, the Noteholder Documents, and
(b) in respect of the Revolving Facility First Lien
Collateral, the Revolving Facility Documents.
“ Senior Liens
” means (a) in respect of the Revolving Facility First
Lien Collateral, the Revolving Facility Liens on such Collateral,
and (b) in respect of the Noteholder First Lien Collateral,
the Noteholder Liens on such Collateral.
“ Senior
Representative ” means (a) with respect to the
Noteholder First Lien Collateral, the Noteholder Collateral Agent,
and (b) with respect to the Revolving Facility First Lien
Collateral, the Collateral Agent.
“ Senior Secured
Obligations ” means (a) with respect to the
Revolving Facility Obligations (to the extent such Obligations are
secured by the Noteholder First Lien Collateral), the Noteholder
Obligations, and (b) with respect to the Noteholder
Obligations (to the extent such Obligations are secured by the
Revolving Facility First Lien Collateral), the Revolving Facility
Obligations.
“ Senior Secured
Obligations Collateral ” means the Collateral in
respect of which the Senior Representative (on behalf of itself and
the applicable Senior Secured Obligations Secured Parties) holds a
Senior Lien.
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“ Senior Secured
Obligations Secured Parties ” means (a) with
respect to the Noteholder First Lien Collateral, the Noteholder
Secured Parties, and (b) with respect to the Revolving
Facility First Lien Collateral, the Revolving Facility Secured
Parties.
“ Senior Secured
Obligations Security Documents ” means (a) with
respect to the Revolving Facility First Lien Collateral, the
Revolving Facility Security Documents, and (b) with respect to
the Noteholder First Lien Collateral, the Noteholder Security
Documents.
“ subsidiary
” means, with respect to any Person, (a) any
corporation, association or other business entity (other than a
partnership, joint venture or limited liability company) of which
more than 50% of the total voting power of the Capital Stock
entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is
at the time of determination owned or controlled, directly or
indirectly, by such Person or one or more of the other subsidiaries
of that Person or a combination thereof, and (b) any
partnership, joint venture or limited liability company of which
(i) more than 50% of the capital accounts, distribution
rights, total equity and voting interests or general and limited
partnership interests, as applicable, are owned or controlled,
directly or indirectly, by such Person or one or more of the other
subsidiaries of that Person or a combination thereof, whether in
the form of membership, general, special or limited partnership
interests or otherwise, and (ii) such Person or any subsidiary
of such person is a controlling general partner or otherwise
controls such entity.
“ TIA ”
means the Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date
hereof.
“ Trademarks
” shall have the collective meaning of such term set forth in
the Security Documents.
“ Trade Secrets
” shall mean all confidential and proprietary information of
any Grantor, including know-how, trade secrets, manufacturing and
production processes and techniques, inventions, research and
development information, databases and data, including technical
data, financial, marketing and business data, pricing and cost
information, business and marketing plans and customer and supplier
lists and information.
“ Trustee
” means Wilmington Trust FSB, in its capacity as trustee
under the Indenture, and its successors in such
capacity.
ARTICLE II
Subordination of Junior Liens;
Certain Agreements
SECTION 2.01. Subordination of
Junior Liens. (a) Notwithstanding the date, manner or
order of creation, attachment, or perfection of the security
interests and Liens granted to the Collateral Agent and the
Noteholder Collateral Agent, and notwithstanding any provisions of
the Uniform Commercial Code, or any applicable law
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or decision or this Agreement, the Noteholder
Documents, the Revolving Facility Documents or any other agreement
or instrument to the contrary, or whether and irrespective of
whether any Senior Secured Obligations Secured Party hold
possession of all or any part of the Collateral or of the time or
any failure, defect or deficiency or alleged failure, defect or
deficiency in any of the foregoing or of any avoidance,
invalidation or subordination by any third party or court of
competent jurisdiction of the Senior Liens, all Junior Liens in
respect of any Collateral are expressly subordinated and made
junior in right, priority, operation and effect to any and all
Senior Liens in respect of such Collateral. The following, as
between the Collateral Agent, on the one hand, and the Noteholder
Collateral Agent, on the other hand, shall be the relative priority
of the security interests and Liens of the Collateral Agent, on the
one hand, and the Noteholder Collateral Agent, on the other hand,
in the Collateral:
(A) The Collateral Agent shall have
a first priority Lien on the Revolving Facility First Lien
Collateral and the Noteholder Collateral Agent shall have a second
priority Lien on the Revolving Facility First Lien Collateral;
and
(B) The Noteholder Collateral Agent
shall have a first priority Lien on the Noteholder First Lien
Collateral and the Collateral Agent shall have a second priority
Lien on the Noteholder First Lien Collateral.
Notwithstanding anything to the
foregoing, with respect to any security interest or Lien on the
collateral pledged pursuant to the Noteholder UK Mortgage of
Shares, the Collateral Agent shall not file or register its
security interest or Lien in the United Kingdom until after the
Noteholder Collateral Agent has filed or registered its security
interest or Lien in the United Kingdom; provided ,
however , that upon the fifteenth calendar day after the
date hereof, the Collateral Agent my file or register its security
interest or Lien in the United Kingdom at any time.
(b) It is acknowledged that
(i) the aggregate amount of the Senior Secured Obligations
may, subject to the limitations set forth in the Credit Agreement
and the Indenture, be increased from time to time, (ii) all or
a portion of the Revolving Facility Obligations consists or may
consist of Indebtedness that is revolving in nature, and the amount
thereof that may be outstanding at any time or from time to time
may be increased or reduced and subsequently reborrowed, and
(iii) the Senior Secured Obligations may, subject to the
limitations set forth in the Credit Agreement and the Indenture, be
increased, extended, renewed, replaced, restated, supplemented,
restructured, repaid, refunded, refinanced or otherwise amended or
modified from time to time, all without affecting the subordination
of the Junior Liens hereunder or the provisions of this Agreement
defining the relative rights of the Revolving Facility Secured
Parties and the Noteholder Secured Parties. The lien priorities
provided for herein shall not be altered or otherwise affected by
any amendment, modification, supplement, extension, increase,
replacement, renewal, restatement or refinancing of either the
Junior Secured Obligations (or any part thereof) or the Senior
Secured Obligations (or any part thereof), by the release of any
Collateral or of any guarantees for any Senior Secured Obligations
or by any action that any Representative or Secured Party may take
or fail to take in respect of any Collateral.
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(c) The subordination of all Junior
Liens to all Senior Liens as set forth in this Agreement is with
respect to only the priority of the Liens held by or on behalf of
the Senior Secured Obligations Secured Parties and shall not
constitute a subordination of the Revolving Facility Obligations to
the Noteholder Obligations or of the Noteholder Obligations to the
Revolving Facility Obligations.
(d) The parties hereto agree that it
is their intention that the Collateral held by each Agent is
identical to the Collateral held by the other Agent. In furtherance
of the foregoing and subject to the other provisions of this
Agreement:
(1) upon request by either Agent,
such parties shall cooperate in good faith (and direct their
counsel to cooperate in good faith) from time to time in order to
determine the specific items included in the Collateral held by
each Agent, the steps taken to perfect the Liens thereon and the
identity of the Grantors; and
(2) that the Revolving Facility
Security Documents and the Noteholder Security Documents shall be
in all material respects the same forms of documents; and the
guarantees issued with respect to the Revolving Facility
Obligations and the guarantees issued with respect to the
Noteholder Obligations, shall contain the same material provisions
with respect to waivers of the guarantors’ rights, the
discharge thereof, reinstatement thereof and the release of
guarantors thereunder.
SECTION 2.02. New Liens.
Until the Senior Secured Obligations shall have been Paid in Full,
(i) each Agent agrees, on behalf of the applicable Secured
Parties, that neither Agent, on behalf of the applicable Secured
Parties, nor any other Secured Party, shall acquire or hold any
Lien on any assets of any Grantor (or any Domestic Subsidiary
thereof) which assets are not also subject to a Lien in favor of
the other Agent on behalf of the applicable Secured Parties and
(ii) each Grantor agrees not to grant any Lien on any of its
assets, or permit any of its Domestic Subsidiaries to grant a Lien
on any of its assets, in favor of any of either Agent, on behalf of
the applicable Secured Parties unless it, or such Domestic
Subsidiary, has granted a Lien on such assets in favor of the other
Agent, on behalf of the applicable Secured Parties. If any Agent
shall (nonetheless and in breach hereof) acquire any Lien on any
assets of any Grantor or any of its Domestic Subsidiaries to secure
any Obligations, which assets are not also subject to a Lien in
favor of the other Agent to secure the applicable Obligations, then
the Agent acquiring such Lien shall, without the need for any
further consent of any other Person and notwithstanding anything to
the contrary in any Security Documents, either (x) release
such Lien or (y) (1) also hold and be deemed to have held
such Lien for the benefit of the other Agent and Secured Parties
subject to the priorities set forth herein, with any amounts
received in respect thereof subject to distribution and turnover
hereunder and (2) in the case of the Junior Representative
acquiring a Lien, assign such Lien to the Senior Representative to
secure the Senior Secured Obligations (in which case
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the Junior Representative may retain a Junior
Lien on such assets subject to the terms hereof). Notwithstanding
the foregoing, the Collateral Agent may hold a Lien on assets of
any Canadian Subsidiary of the Company, which interests or assets
are not also subject to a Lien in favor of the Noteholder
Collateral Agent.
SECTION 2.03. No Action With
Respect to Junior Secured Obligations Collateral Subject to Senior
Liens. (a) Except to the extent expressly permitted by
Section 2.07 , no Junior Representative or other
Junior Secured Obligations Secured Party shall commence or instruct
any Junior Representative to commence any Enforcement Action
available to it in respect of any Junior Secured Obligations
Collateral under any Junior Secured Obligations Security Document,
applicable law or otherwise, at any time when such Junior Secured
Obligations Collateral shall be subject to any Senior Lien and any
Senior Secured Obligations secured by such Senior Lien shall remain
outstanding or any commitment to extend credit that would
constitute Senior Secured Obligations secured by such Senior Lien
shall remain in effect, it being agreed that only the Senior
Representative, acting in accordance with the applicable Senior
Secured Obligations Security Documents, shall be entitled to take
any Enforcement Actions. The Senior Representative shall provide
written notice to the Junior Representative in the event that the
Senior Representative takes any Enforcement Action; provided
, however , that failure to give such notice shall not
affect the lien subordination or other rights of the Senior
Representative under this Agreement. Notwithstanding the foregoing,
any Junior Representative may, subject to
Section 2.06 , take all such actions as it shall
reasonably deem necessary to perfect or continue the perfection of
(but not enforce) its Junior Liens.
(b) Notwithstanding anything
contained herein to the contrary, each of the Agents retains the
right to:
(A) file a proof of claim or
statement of interest with respect to the Revolving Facility
Obligations or Noteholder Obligations, as applicable,
(B) take any action in order to
preserve or protect its Lien on its Junior Secured Obligations
Collateral not adverse to the other Agent’s rights to
exercise any Enforcement Action against its Senior Secured
Obligations Collateral, except to the extent inconsistent with the
provisions hereof,
(C) file any necessary responsive or
defensive pleadings in opposition to any motion, claim, adversary
proceeding or other pleading made by any person objecting to or
otherwise seeking the disallowance of the claims or Liens of such
Agent or any of the Secured Parties for whom it acts as
Agent,
(D) in any Insolvency Proceeding,
file any pleadings, objections, motions or agreements which assert
rights or interests available to unsecured creditors of the
Holdings, the Company or any of its Domestic Subsidiaries, except
to the extent inconsistent with the provisions hereof,
and
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(E) in any Insolvency Proceeding,
vote on any plan of reorganization, except to the extent
inconsistent with the provisions hereof.
SECTION 2.04. No Duties of Senior
Representative. (a) Following Dispositions and Payment
In Full. Each Junior Secured Obligations Secured Party
acknowledges and agrees that neither the Senior Representative nor
any other Senior Secured Obligations Secured Party shall have any
duties or other obligations to such Junior Secured Obligations
Secured Party with respect to any Senior Secured Obligations
Collateral, other than to transfer to the Junior Representative
(i) any proceeds of any such Collateral that constitutes
Junior Secured Obligations Collateral remaining in its possession
following any Disposition of such Collateral and the Payment in
Full of the Senior Secured Obligations secured thereby (in each
case, unless the Junior Liens on all such Junior Secured
Obligations Collateral are terminated and released prior to or
concurrently with such Disposition and Payment In Full) or
(ii) if the Senior Representative shall be in possession of
all or any part of such Collateral after such Payment in Full, such
Collateral or any part thereof remaining, in each case without
representation or warranty on the part of the Senior Representative
or any Senior Secured Obligations Secured Party.
(b) Prior to Payment In Full.
In furtherance of the foregoing, each Junior Secured Obligations
Secured Party acknowledges and agrees that until the Senior Secured
Obligations secured by any Collateral in respect of which such
Junior Secured Obligations Secured Party holds a Junior Lien shall
have been Paid In Full, the Senior Representative shall be
entitled, for the benefit of the holders of such Senior Secured
Obligations, to Dispose of or deal with such Collateral as provided
herein and in the Senior Secured Obligations Security Documents
without regard to any Junior Lien or any rights to which the
holders of the Junior Secured Obligations would otherwise be
entitled as a result of such Junior Lien. Such permitted actions
shall include the rights of an agent appointed by the Senior
Representative and Senior Secured Obligations Secured Parties to
Dispose of such Senior Secured Obligations Collateral upon
foreclosure, to incur expenses in connection with such Disposition,
and to exercise all the rights and remedies of a secured creditor
under the Uniform Commercial Code of any applicable jurisdiction
and of a secured creditor under the Bankruptcy Code or the laws of
any applicable jurisdiction. Without limiting the foregoing, each
Junior Secured Obligations Secured Party agrees that neither the
Senior Representative nor any other Senior Secured Obligations
Secured Party shall have any duty or obligation first to marshal or
realize upon any type of Senior Secured Obligations Collateral (or
any other collateral securing the Senior Secured Obligations), or
to Dispose of or otherwise liquidate all or any portion of such
Collateral (or any other collateral securing the Senior Secured
Obligations), in any manner that would maximize the return to the
Junior Secured Obligations Secured Parties, notwithstanding that
the order and timing of any such Disposition or liquidation may
affect the amount of proceeds actually received by the Junior
Secured Obligations Secured Parties from such Disposition or
liquidation.
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(c) Waiver. Each of the
Junior Secured Obligations Secured Parties waives any claim such
Junior Secured Obligations Secured Party may now or hereafter have
against the Senior Representative or any other Senior Secured
Obligations Secured Party (or their representatives) arising out of
(i) any actions which the Senior Representative or the Senior
Secured Obligations Secured Parties take or omit to take (including
actions with respect to the creation, perfection or continuation of
Liens on any Collateral, actions with respect to the foreclosure
upon, sale, release or depreciation of, or failure to realize upon,
any of the Collateral and actions with respect to the collection of
any claim for all or any part of the Senior Secured Obligations
from any account debtor, guarantor or any other party) in
accordance with the Senior Secured Obligations Security Documents
or any other agreement related thereto or to the collection of the
Senior Secured Obligations or the valuation, use, protection or
release of any security for the Senior Secured Obligations,
(ii) any election by the Senior Representative or any Senior
Secured Obligations Secured Parties, in any proceeding instituted
under the Bankruptcy Code, of the application of
Section 1111(b) of the Bankruptcy Code or (iii) subject
to Section 2.07 , any borrowing by, or grant of
a security interest or administrative expense priority under
Section 364 of the Bankruptcy Code by, Holdings, the Company
or any of its Domestic Subsidiaries, as debtor-in-possession;
provided , however , that the foregoing shall not
serve as a waiver by any Secured Party of the breach by any other
Secured Party of any provision of this Agreement.
SECTION 2.05. Application of
Proceeds; No Interference; Payment Over; Reinstatement.
(a) So long as the Senior Secured Obligations have not been
Paid in Full, any Senior Secured Obligations Collateral or proceeds
thereof received by the Senior Representative in connection with
any Disposition of, or collection on, such Senior Secured
Obligations Collateral upon the taking of any Enforcement Action
(including any right of setoff and including as a result of any
distribution of or in respect of any Senior Secured Obligations
Collateral (whether or not expressly characterized as such) or in
any Insolvency Proceeding) shall be applied by the Senior
Representative to the Senior Secured Obligations in accordance with
the Senior Documents. Upon the Payment in Full of the Senior
Secured Obligations, the Senior Representative shall deliver to the
Junior Representative any remaining Senior Secured Obligations
Collateral and any proceeds thereof then held by it in the same
form as received, together with any necessary endorsements, or as a
court of competent jurisdiction may otherwise direct, to be applied
by the Junior Representative to the Junior Secured Obligations in
accordance with the Junior Documents.
(b) In the event that Revolving
Facility First Lien Collateral and Noteholder First Lien Collateral
are Disposed of in a single transaction or series of related
transactions in which the aggregate sales price is not allocated
between the Revolving Facility First Lien Collateral, on the one
hand, and the Noteholder First Lien Collateral, on the other hand,
being sold, including in connection with or as a result of the sale
by a Grantor of the Capital Stock of the Company or a Domestic
Subsidiary that owns assets constituting Noteholder First Lien
Collateral or Revolving Facility First Lien Collateral , then,
solely for purposes of this Agreement, the portion of the aggregate
sales price deemed to be proceeds of the Revolving Facility First
Lien Collateral, on the one hand, and the Noteholder First Lien
Collateral, on the other hand, shall be allocated to the Noteholder
First Lien Collateral or Revolving Facility First Lien Collateral
in accordance with their respective fair market values, which shall
be determined by the Board of Directors of the Company in good
faith or, in the case of a disposition of assets involving an
amount in excess of $25.0 million, an Independent Qualified
Party.
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(c) Until the Junior Representative
has received written notice from the Senior Representative that the
Senior Secured Obligations have been Paid In Full, each Junior
Secured Obligations Secured Party agrees that (i) it will not
take, cause to be taken, or support any other Person in taking any
action the purpose or effect of which is, or could be, to make any
Junior Lien pari passu with, or to give such Junior Secured
Obligations Secured Party any preference or priority relative to,
any Senior Lien with respect to the Collateral subject to such
Senior Lien and Junior Lien or any part thereof, (ii) it will
not contest, challenge or otherwise oppose or support any other
Person in contesting, challenging or otherwise opposing in any
proceeding (including any Insolvency Proceeding) the validity,
extent, perfection, priority or enforceability of any Senior
Secured Obligations or Senior Secured Obligations Security
Document, or the validity, attachment, perfection or priority of
any Senior Lien, or the validity or enforceability of the
priorities, rights or duties established by or other provisions of
this Agreement, (iii) it will not take or cause to be taken or
support any other Person in taking any action the purpose or intent
of which is, or could be, to interfere, hinder or delay, in any
manner, whether by judicial proceedings or otherwise, any sale,
transfer or other Disposition of the Collateral subject to any
Junior Lien by any Senior Secured Obligations Secured Parties
secured by Senior Liens on such Collateral or any Senior
Representative acting on their behalf, (iv) it shall have no
right to (A) direct any Senior Representative or any holder of
Senior Secured Obligations to exercise any right, remedy or power
with respect to the Collateral subject to any Junior Lien or
(B) consent to the exercise by any Senior Representative or
any other Senior Secured Obligations Secured Party of any right,
remedy or power with respect to the Collateral subject to any
Junior Lien, (v) it will not institute or support any other
Person in instituting any suit or assert or support any other
Person in asserting in any suit, bankruptcy, insolvency or other
proceeding any claim against any Senior Representative or other
Senior Secured Obligations Secured Party seeking damages from or
other relief by way of specific performance, instructions or
otherwise with respect to, and neither any Senior Representative
nor any other Senior Secured Obligations Secured Party shall be
liable for, any action taken or omitted to be taken by such Senior
Representative or other Senior Secured Obligations Secured Party
with respect to any Collateral securing such Senior Secured
Obligations that is subject to any Junior Lien, (vi) it will
not seek, and hereby waives any right, to have any Senior Secured
Obligations Collateral subject to any Junior Lien or any part
thereof marshaled upon any foreclosure or other Disposition of such
Collateral and (vii) it will not attempt, directly or
indirectly, whether by judicial proceedings or otherwise, to
challenge the enforceability of any provision of this Agreement;
provided , however , that the foregoing provisions
shall not prevent any Secured Party from enforcing its rights or
remedies under this Agreement.
(d) The Junior Representative and
each other Junior Secured Obligations Secured Par
