EXHIBIT 4.25
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (as amended, restated,
supplemented or otherwise modified from time to time in accordance with the
terms hereof, herein called this "AGREEMENT") is dated as of March 10, 2004 and
entered into by and among COVANTA ENERGY CORPORATION, a Delaware corporation
("COVANTA" or "COMPANY"), and THE SUBSIDIARIES OF COVANTA LISTED ON THE
SIGNATURE PAGES HEREOF AS DETROIT L/C BORROWERS (together with Company and any
Additional Detroit L/C Borrowers (as hereinafter defined; this and other
capitalized terms used herein without definition being used as defined in
subsection 1.1), collectively, "DETROIT L/C Borrowers" and each a "DETROIT L/C
BORROWER") and THE SUBSIDIARIES OF COVANTA LISTED ON THE SIGNATURE PAGES HEREOF
AS NEW L/C BORROWERS (together with Company and any Additional New L/C
Borrowers, collectively, "NEW L/C BORROWERS" and each a "NEW L/C Borrower"; the
Detroit L/C Borrowers together with the New L/C Borrowers, collectively,
"BORROWERS" and each a "BORROWER"); THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF AS DETROIT L/C LENDERS (each, in its capacity as a
Detroit L/C Lender, together with any other Person that become a party hereto as
a Detroit L/C Lender pursuant to subsection 6.1(f), individually referred to
herein as a "DETROIT L/C LENDER" and collectively as "DETROIT L/C LENDERS"); THE
ENTITIES LISTED ON THE SIGNATURE PAGES HEREOF AS NEW L/C LENDERS (each, in its
capacity as a New L/C Lender, together with any other Person that becomes a
party hereto as a New L/C Lender pursuant to subsection 6.1(f), individually
referred to herein as "NEW L/C LENDER" and collectively as "NEW L/C LENDERS");
BANK OF AMERICA, N.A. ("BANK OF AMERICA"), as administrative agent for Detroit
L/C Lenders (and any successor administrative agent for Detroit L/C Lenders
pursuant to the Detroit L/C Agreement, in such capacity "DETROIT L/C FACILITY
AGENT"), as Collateral Agent and Cash Management Bank, BANK ONE, NA, as
administrative agent for New L/C Lenders (and any successor administrative agent
for New L/C Lenders pursuant to the New L/C Facility Agreement, in such capacity
"NEW L/C AGENT"); DEUTSCHE BANK SECURITIES, INC. ("DEUTSCHE BANK"), as
Documentation Agent for Detroit L/C Lenders (and any successor documentation
agent for Detroit L/C Lenders pursuant to the Detroit L/C Agreement in such
capacity "DETROIT L/C DOCUMENTATION AGENT"); ▇▇▇▇▇▇▇▇▇ HOLDING CORPORATION, a
Delaware corporation ("DHC"); U.S. BANK NATIONAL ASSOCIATION, in its capacity as
trustee under the High Yield Indenture (in such capacity, the "HIGH YIELD
TRUSTEE"); THE COMPANIES LISTED ON THE SIGNATURE PAGES HEREOF AS MANAGEMENT
SERVICES AND REIMBURSEMENT AGREEMENT BENEFICIARIES (the "MANAGEMENT SERVICES AND
REIMBURSEMENT AGREEMENT BENEFICIARIES"); and the other Persons who may become
parties to this Agreement from time to time pursuant to and in accordance with
subsections 6.1(f) and 6.1(l) of this Agreement.
Domestic Intercreditor Agreement
R E C I T A L S
WHEREAS, the Borrowers have proposed, their creditors have
approved, and the Bankruptcy Court has confirmed, the Plan of Reorganization;
WHEREAS, in connection with the Plan of Reorganization,
simultaneously herewith the Borrowers have received financing pursuant to the
Detroit L/C Facility Agreement, New L/C Facility Agreement and High Yield
Indenture;
WHEREAS, it is a condition precedent to (i) the obligations of
the Detroit L/C Lenders to enter into and extend credit under the Detroit L/C
Facility Agreement, (ii) the obligations of the New L/C Lenders to enter into
and extend credit under the New L/C Facility Agreement, (iii) the obligations of
the holders of the High Yield Notes to accept the High Yield Notes in exchange
for certain pre-existing claims against Loan Parties (other than DHC) and (iv)
the effectiveness of the Plan of Reorganization, as applicable, that each
Creditor Party, High Yield Trustee and each Borrower shall have executed and
delivered this Agreement to the Collateral Agent;
WHEREAS, on the date hereof Loan Parties have executed and
delivered to Collateral Agent the Collateral Documents pursuant to which Loan
Parties granted a security interest in the Collateral as security for (i) in the
case of Detroit L/C Borrowers, all Obligations of Detroit L/C Borrowers under
and in respect of the Detroit L/C Facility Agreement and all other Detroit L/C
Facility Documents to which Detroit L/C Borrowers are a party to from time to
time, in each case as described therein, (ii) in the case of New L/C Borrowers,
all Obligations of New L/C Borrowers under and in respect of the New L/C
Facility Agreement and all other New L/C Facility Documents to which New L/C
Borrowers are party to from time to time, in each case as described therein, and
(iii) in the case of Company and High Yield Guarantors, all Obligations of
Company and High Yield Guarantors under and in respect of the High Yield Notes
and High Yield Indenture;
WHEREAS, Creditor Parties and High Yield Trustee desire to set
forth certain provisions regarding the appointment, duties and responsibilities
of Collateral Agent and to set forth certain other provisions concerning the
obligations of Loan Parties to Creditor Parties and High Yield Noteholders under
the agreements referred to in the foregoing recitals; and
WHEREAS, Creditor Parties and High Yield Trustee wish to set
forth their mutual intentions as to certain matters relating to the exercise of
remedies with respect to the Collateral and payments made by or for the account
of the applicable Loan Parties under the Credit Documents as more fully set
forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION I
1.1 DEFINITIONS. Terms used in the Agreement have the meanings
set forth in the introduction and recitals hereto. In addition, the following
terms shall have the following meanings:
2
"ADDITIONAL DETROIT L/C BORROWER" means any Person that
becomes an "Additional Subsidiary Borrower" after the date hereof pursuant to
and as such term is defined in the Detroit L/C Facility Agreement.
"ADDITIONAL NEW L/C BORROWER" means any Person that becomes an
"Additional Subsidiary Borrower" after the date hereof pursuant to and as such
term is defined in the New L/C Facility Agreement.
"AGENTS" means Collateral Agent, Detroit L/C Agents and New
L/C Agent.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person (other than exclusively as a result of such Person's
role as a senior executive of that Person or Project manager or operator),
whether through the ownership of voting securities or by contract or otherwise.
"ANNUAL FREE CASH FLOW" shall have the meaning assigned to
that term in the each Facility Agreement as in effect on the Closing Date.
"BANK OF AMERICA" shall have the meaning assigned to that term
in the introduction to this Agreement.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute.
"BANKRUPTCY COURT" means the United States Bankruptcy Court
for the Southern District of New York and any other court properly exercising
jurisdiction over any relevant Chapter 11 Case.
"BANKRUPTCY EVENT" means any of one or more of the following
events regardless of the reason therefor:
(a) (i) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of any Loan Party in an
involuntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
which decree or order is not stayed; or any other similar relief shall
be granted under any applicable federal, or state law; or (ii) an
involuntary case shall be commenced against any Loan Party under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over any Loan
Party, or over all or a substantial part of its property, shall have
been entered; or the involuntary appointment of an interim receiver,
trustee or other custodian of any Loan Party for all or a substantial
part of its property; or the issuance of a warrant of attachment,
execution or similar process against
Domestic Intercreditor Agreement
3
any substantial part of the property of any Loan Party, and the
continuance of any such event in clause (ii) for 60 days unless
dismissed, bonded or discharged; or
(b) (i) any Loan Party shall have an order for relief entered
with respect to it or commence a voluntary case under the Bankruptcy
Code or any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property, or shall make
any assignment for the benefit of creditors; or
(ii) the inability or failure of any Loan Party, or the
admission by any Loan Party in writing of its inability, to pay its
debts as such debts become due; or the Governing Body (or any committee
thereof) of any Loan Party adopts any resolution or otherwise
authorizes action to approve any of the actions referred to in clause
(i) or this clause (ii); or
(c) any order, judgment or decree shall be entered against any
Loan Party decreeing the dissolution, winding up or split up of that
Loan Party and such order shall remain undischarged or unstayed for a
period in excess of 30 days.
"BANKRUPTCY PROCEEDING" means any case or proceeding of the
type described in the definition of "Bankruptcy Event" with respect to any Loan
Party.
"BORROWER" and BORROWERS" shall have the meaning assigned to
such terms in the introduction to this Agreement.
"BUSINESS DAY" means any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of New York, the
State of Texas or the State of California or is a day on which banking
institutions located in any such state are authorized or required by law or
other governmental action to close.
"CAPITAL STOCK" means the capital stock or other equity
interests of a Person.
"CASH COLLATERAL ACCOUNTS" means the Detroit L/C Cash
Collateral Account and the New L/C Cash Collateral Account.
"CASH MANAGEMENT BANK" shall have the meaning assigned to that
term in the definition of "Cash Management System".
"CASH MANAGEMENT OBLIGATIONS" means the obligations of
Borrowers to the Cash Management Bank arising from or relating to the Cash
Management System, including any liability of Borrower on any claim arising out
of or relating to the Cash Management System, whether or not the right to
payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed or contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any bankruptcy, insolvency, reorganization or
other similar proceeding.
Domestic Intercreditor Agreement
4
"CASH MANAGEMENT SYSTEM" means the cash management system of
Company and its Subsidiaries in the United States maintained with Bank of
America (in such capacity, "CASH MANAGEMENT BANK") as described in Schedule 4.1P
annexed to the Detroit L/C Facility Agreement and the New L/C Facility
Agreement, as such Cash Management System may be modified pursuant to subsection
6.10 of the Detroit L/C Facility Agreement and the New L/C Facility Agreement,
and any other related services provided by Cash Management Bank to Company and
its Subsidiaries, including treasury, depositary and cash management services or
in connection with automated clearing house transfers of funds.
"CHAPTER 11 CASE" means the chapter 11 cases of Covanta Energy
Corporation, a Delaware corporation, and certain of its Subsidiaries, including
Borrowers, jointly administered under Case Nos. 02-40826 through 02-40949,
02-16322, 03-13679 through 03-13685, and 03-13687 through 03-13709.
"CLOSING DATE" means March 10, 2004.
"COLLATERAL" means, collectively, all of the real, personal
and mixed property (including Capital Stock) and interests in property now owned
or hereafter acquired by any Loan Party in or upon which a security interest,
Lien or mortgage is granted or purported to be granted to Collateral Agent
pursuant to the Collateral Documents, including all Proceeds thereof, but in no
event shall Collateral include the Capital Stock of CPIH pledged pursuant to the
CPIH Stock Pledge Agreement (as defined in the Facility Agreements). For the
avoidance of doubt, "Collateral" shall not include any New Investor Assurances.
"COLLATERAL AGENT" shall have the meaning assigned to that
term in subsection 2.1.
"COLLATERAL DOCUMENTS" means the Security Agreement, DHC
Pledge Agreement, Control Agreements, Mortgages (as defined in the Facility
Agreements) and all other instruments or documents (pursuant to which a Lien to
secure all or any portion of the Obligations is purported or intended to be
created, granted, evidenced or perfected) delivered from time to time by any
Loan Party pursuant to the Detroit L/C Facility Documents, New L/C Facility
Documents or the High Yield Indenture in each case in order to grant to
Collateral Agent a Lien on any real, personal or mixed property as security for
any or all of the Obligations, as such instruments and documents may be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted pursuant to subsection 2.4.
"COMPANY" shall have the meaning assigned to that term in the
introduction to this Agreement.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CONTROL AGREEMENT" means an agreement, satisfactory in form
and substance to Detroit L/C Facility Agent and New L/C Agent and executed by
the financial institution or securities intermediary at which a Deposit Account
or a Securities Account, as the case may be,
Domestic Intercreditor Agreement
5
is maintained, pursuant to which such financial institution or securities
intermediary confirms and acknowledges Collateral Agent's security interest in
such account, and agrees that the financial institution or securities
intermediary, as the case may be, will comply with instructions originated by
Collateral Agent as to disposition of funds in such account, without further
consent by Company or any Subsidiary, as such agreement may be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted pursuant to subsection 2.4.
"COUNTERPART" shall have the meaning assigned to that term in
subsection 6.1(l).
"COVANTA" shall have the meaning assigned to that term in the
introduction to this Agreement.
"CPIH" means Covanta Power International Holdings, Inc., a
Delaware corporation, and its successors and assigns.
"CPIH SUBSIDIARIES" means, on and after the Closing Date, CPIH
and its Subsidiaries.
"CREDIT DOCUMENTS" means, collectively, (i) the New L/C
Facility Agreement and the other New L/C Facility Documents, (ii) the Detroit
L/C Facility Agreement and the other Detroit L/C Facility Documents, and (iii)
the High Yield Notes and the High Yield Indenture, in each case as they may be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted thereunder and pursuant to subsection 2.5.
"CREDITOR PARTIES" means Detroit L/C Lenders, New L/C Lenders,
Detroit L/C Agents, New L/C Agent, Cash Management Bank and Collateral Agent.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
similar account maintained with a Person engaged in the business of banking,
including a savings bank, savings and loan association, credit union or trust
company.
"DETROIT L/C" or "DETROIT L/CS" means letters of credit issued
or to be issued from time to time under the Detroit L/C Facility Agreement,
including amendments thereto.
"DETROIT L/C AGENTS" means the Detroit L/C Facility Agent and
Detroit L/C Documentation Agent.
"DETROIT L/C BORROWER" shall have the meaning assigned to that
term in the introduction to this Agreement.
"DETROIT L/C CASH COLLATERAL ACCOUNT" means the cash
collateral account maintained with Collateral Agent pursuant to the Security
Agreement to secure the obligations of Detroit L/C Borrowers with respect to
Detroit L/C Exposure.
"DETROIT L/C COMMITMENT" means the commitment of a Detroit L/C
Lender to purchase and fund participations in Detroit L/Cs pursuant to the
Detroit L/C Facility Agreement.
Domestic Intercreditor Agreement
6
"DETROIT L/C DOCUMENTATION AGENT" shall have the meaning
assigned to that term in the introduction to this Agreement.
"DETROIT L/C EVENT OF DEFAULT" means an "Event of Default"
under and as defined in the Detroit L/C Facility Agreement.
"DETROIT L/C EXPOSURE" means, with respect to any Detroit L/C
Lender as of any date of determination, the sum of (a) in the event that Detroit
L/C Lender is a Detroit L/C Issuing Lender, the aggregate Detroit L/C Usage in
respect of all Detroit L/Cs issued by that Detroit L/C Lender (in each case net
of any participations purchased by other Detroit L/C Lenders in such Detroit
L/Cs or in any drawings thereunder not theretofore reimbursed by Detroit L/C
Borrowers) plus (b) the aggregate amount of all participations purchased by that
Detroit L/C Lender in any other outstanding Detroit L/Cs or any drawings under
any such other Detroit L/Cs not theretofore reimbursed by Detroit L/C Borrowers.
"DETROIT L/C FACILITY AGENT" shall have the meaning assigned
to that term in the introduction to this Agreement.
"DETROIT L/C FACILITY AGREEMENT" means (i) that certain credit
agreement dated as of the date hereof by and among Covanta and the other Detroit
L/C Borrowers, as borrowers, the Detroit L/C Lenders and Detroit L/C Agents, and
(ii) any credit agreement entered into by Detroit L/C Borrowers to refinance,
replace, renew or extend, in whole or in part, the credit agreement referenced
in clause (i) and the indebtedness and letters of credit issued thereunder to
the extent permitted pursuant to the New L/C Facility Agreement and the High
Yield Indenture, in the case of clause (i) or (ii), as such credit agreement may
be amended, restated, supplemented or otherwise modified from time to time to
the extent permitted under subsection 2.5.
"DETROIT L/C FACILITY DOCUMENTS" means the "Credit Documents"
as defined in the Detroit L/C Facility Agreement (or any comparable term with
respect to any replacement Detroit L/C Facility Agreement not prohibited
hereunder).
"DETROIT L/C ISSUING LENDER" means, with respect to any
Detroit L/C, the Detroit L/C Lender that has issued such Detroit L/C pursuant to
the Detroit L/C Facility Agreement.
"DETROIT L/C LENDER" shall have the meaning assigned to that
term in the introduction to this Agreement.
"DETROIT L/C OBLIGATIONS" means any and all Obligations to the
extent arising under or with respect to the Detroit L/C Commitments or the
Detroit L/Cs, including fees and other amounts accruing or otherwise owed with
respect to the Detroit L/C Exposure, and any drawings (and interest accrued
thereon) under Detroit L/Cs not reimbursed by Detroit L/C Borrowers; provided,
however, that Obligations of any Loan Party (other than DHC) for interest or
letter of credit fees with respect to Detroit L/Cs and Detroit L/C Commitments
that accrue or may be incurred under any Detroit L/C Facility Document after the
commencement by or against any Loan Party of a Bankruptcy Proceeding shall be
included in Detroit L/C Obligations solely to the extent recoverable from such
Loan Party or its estate in such proceeding.
Domestic Intercreditor Agreement
7
"DETROIT L/C USAGE" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is or at any time thereafter
may become available for drawing under all Detroit L/Cs then outstanding plus
(ii) the aggregate amount of all drawings under Detroit L/Cs honored by the
applicable Detroit L/C Issuing Lender and not theretofore reimbursed by Detroit
L/C Borrowers.
"DEUTSCHE BANK" shall have the meaning assigned to that term
in the introduction to this Agreement.
"DHC" shall have the meaning assigned to that term in the
introduction to this Agreement.
"DHC PLEDGE AGREEMENT" means the pledge agreement executed and
delivered by DHC on the Closing Date, substantially in the form of Exhibit XI
annexed to the Detroit L/C Facility Agreement, as such pledge agreement may
thereafter be amended, restated, supplemented or otherwise modified from time to
time to the extent permitted pursuant to subsection 2.4.
"DISTRIBUTION" means, with respect to any Secured Obligation,
(a) any payment or distribution by Company or any of its Subsidiaries (including
CPIH Subsidiaries) of cash, securities or other assets and properties of any
kind whatsoever, real or personal, tangible or intangible, or mixed, whether now
owned or existing or hereafter acquired or arising and wheresoever located, by
set-off or otherwise, on account of such Secured Obligation, (b) any redemption,
purchase or other acquisition of such Secured Obligation by Company or any of
its Subsidiaries (including CPIH Subsidiaries) or (c) the granting of any Lien
to or for the benefit of the holders of such Secured Obligation in or upon any
or all assets and properties of any kind whatsoever, real or personal, tangible
or intangible, or mixed, whether now owned or existing or hereafter acquired or
arising and wheresoever located of Company or any of its Subsidiaries (including
CPIH Subsidiaries).
"ENFORCEMENT ACTION" shall mean the exercise by any Secured
Party of any of the enforcement rights and remedies under, and subject to the
provisions of, the Collateral Documents at any time on or after an Event of
Default, including any or all of the following: any motion to vacate any stay on
enforcement of the Liens on the Collateral, solicitation of bids from third
parties to conduct the liquidation of Collateral, the engagement or retention of
third parties for the purposes of marketing, promoting or selling all or any
Collateral, the commencement of any action to foreclose on the Liens on any of
the Collateral, notification of account debtors to make payments to any Secured
Party or its agents, any action to take possession of any Collateral or the
commencement of any legal proceedings or actions seeking payment of any Secured
Obligations or otherwise in connection with the preservation or protection of
any of the Collateral, its value or any rights or remedies therein or otherwise
or as may be deemed necessary or appropriate to enhance the likelihood or
maximize the repayment of the Secured Obligations.
"EVENT OF DEFAULT" means a Detroit L/C Event of Default and/or
a New L/C Event of Default and/or a High Yield Event of Default.
Domestic Intercreditor Agreement
8
"FACILITY AGREEMENTS" means the New L/C Facility Agreement and
Detroit L/C Facility Agreement.
"FISCAL YEAR" means the fiscal year of the Company and its
Subsidiaries ending on December 31st of each calendar year.
"GOVERNING BODY" means the board of directors or other body
having the power to direct or cause the direction of the management and policies
of a Person that is a corporation, partnership, trust or limited liability
company.
"HIGH YIELD EVENT OF DEFAULT" means an "Event of Default"
under and as defined in the High Yield Indenture.
"HIGH YIELD GUARANTORS" means the Subsidiaries of Company
party from time to time to the High Yield Indenture as guarantors thereunder.
"HIGH YIELD INDENTURE" means (i) the indenture pursuant to
which the High Yield Notes are issued and (ii) any replacement indenture entered
into in connection with a refinancing, defeasance, renewal, replacement or
extension of the High Yield Notes permitted under the Facility Agreements, in
the case of clause (i) or (ii), as such indenture or replacement indenture may
be amended, supplemented or otherwise modified from time to time to the extent
permitted under the Facility Agreements.
"HIGH YIELD NOTEHOLDERS" means the holders from time to time
of the High Yield Notes.
"HIGH YIELD NOTES" means (i) the $230,000,000 in aggregate
principal amount at maturity of 8.25% Senior Notes due 2010 of Company issued
pursuant to the High Yield Indenture, and (ii) any indebtedness incurred to
refinance, renew, replace or extend the High Yield Notes permitted to be
incurred under the Facility Agreements; provided, that the initial principal
amount (and issue price) of such High Yield Notes on the Closing Date shall be
$205,000,000.
"HIGH YIELD OBLIGATIONS" means the obligations of Company and
High Yield Guarantors under the High Yield Indenture and the High Yield Notes,
as applicable.
"HIGH YIELD TRUSTEE" shall have the meaning assigned to that
term in the introduction to this Agreement.
"IPP INTERNATIONAL SALES" means one or more sales or
dispositions of (i) the assets and/or operations of CPIH and its Subsidiaries
and/or (ii) the Capital Stock of CPIH or any of its Subsidiaries.
"JUNIOR CREDITOR" shall have the meaning assigned to that term
in subsection 4.2(f).
"LENDERS" means New L/C Lenders and Detroit L/C Lenders.
Domestic Intercreditor Agreement
9
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LOAN PARTIES" means Company, the other Borrowers, DHC, and
High Yield Guarantors.
"MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT" means the
management services and reimbursement agreement entered into by CPIH, Company
and certain of their respective Subsidiaries on the Closing Date, in form and
substance satisfactory to the Detroit L/C Agents and New L/C Agent as such
agreement may be amended, restated, supplemented or otherwise modified from time
to time to the extent permitted thereunder and pursuant to subsection 2.5(c).
"MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT
BENEFICIARIES" shall have the meaning assigned to that term in the introduction
to this Agreement.
"MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT OBLIGORS"
means the "CPIH Entities" as such term is defined in the Management Services and
Reimbursement Agreement.
"MANDATORY PAYMENTS" means any amount described in subsections
2.3A(i)(a)-(f) of the Detroit L/C Facility Agreement or 2.4A(iii)(a)-(g) of the
New L/C Facility Agreement to be applied as a Mandatory Payment (as such term is
defined in each Facility Agreement).
"NET INSURANCE/CONDEMNATION PROCEEDS" means any cash payments
or Proceeds received by Company or any of its Subsidiaries (i) under any
business interruption or casualty insurance policy in respect of a covered loss
thereunder or (ii) as a result of the taking of any assets of Company or any of
its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, in each case net of (a)
income taxes reasonably estimated to be actually payable prior to the earlier of
(1) the date which is eighteen months from the date of such receipt and (2)
March 10, 2009 as a result of the receipt of such payments of proceeds and (b)
any actual, reasonable and documented out-of-pocket fees and expenses (including
reasonable legal fees, reasonable fees to advisors and severance costs that are
due (pursuant to a Contractual Obligation, or written employment policy
applicable to terminated employees generally, of Company or any of its
Subsidiaries in effect prior to the event causing or relating to the payment
referred to in clause (i) or (ii) hereof or pursuant to applicable law) and
payable on or prior to the receipt of such payment or proceeds to employees of
Company and its Subsidiaries that have been terminated as a result of the
relevant loss, taking or sale) paid to Persons other than Company and its
Subsidiaries and their respective Affiliates in connection with the relevant
loss, taking or sale or the adjustment or settlement of any claims of Company or
such Subsidiary in respect thereof; provided, however, that Net
Insurance/Condemnation Proceeds shall be reduced in an amount equal to the
amount of proceeds Subsidiaries of Company are legally bound or required,
pursuant to Contractual Obligations in effect on the
Domestic Intercreditor Agreement
10
Closing Date, or which were entered into after the Closing Date with respect to
the financing or acquisition of a Project, to use for purposes other than a
Mandatory Payment.
"NEW INVESTOR ASSURANCES" means any collateral, insurance
policy, letter of credit or other financial assurances provided by any New
Investor or any of its Affiliates (other than Company or any of its Subsidiaries
(including CPIH Subsidiaries)) to New L/C Lenders in connection with the New L/C
Facility Agreement.
"NEW INVESTORS" means ▇.▇. ▇▇▇▇ Laminar Portfolios, L.L.C., a
Delaware limited liability company, SZ Investments, L.L.C., a Delaware limited
liability company, and Third Avenue Trust, on behalf of Third Avenue Value Fund
Series.
"NEW L/C" or "NEW L/CS" means letters of credit issued or to
be issued (or deemed issued) by New L/C Issuing Lender pursuant to the New L/C
Facility Agreement, including amendments thereto.
"NEW L/C AGENT" shall have the meaning assigned to that term
in the introduction to this Agreement.
"NEW L/C AGGREGATE COMMITMENT" means one or more of the New
Revolving Loan Commitment or the New L/C Commitment or any combination thereof.
"NEW L/C AGGREGATE EXPOSURE" means, with respect to any New
L/C Lender as of any date of determination, the sum of (i) that New L/C Lenders'
New Revolving Loan Exposure and (ii) that New L/C Lender's New L/C Exposure.
"NEW L/C BORROWERS" shall have the meaning assigned to that
term in the introduction to this Agreement.
"NEW L/C CASH COLLATERAL ACCOUNT" means the cash collateral
account maintained with Collateral Agent pursuant to the Security Agreement to
secure the obligations of New L/C Borrowers with respect to New L/C Exposure.
"NEW L/C COMMITMENT" means the commitment of a New L/C Lender
to purchase and fund participations in New L/Cs pursuant to the New L/C Facility
Agreement.
"NEW L/C EVENT OF DEFAULT" means an "Event of Default" under
and as defined in the New L/C Facility Agreement.
"NEW L/C EXPOSURE" with respect to any New L/C Lender, means,
as of any date of determination, the sum of (a) in the event that New L/C Lender
is a New L/C Issuing Lender, the aggregate New L/C Usage in respect of all New
L/Cs issued by that New L/C Lender (in each case net of any participations
purchased by other New L/C Lenders in such New L/Cs or in any drawings
thereunder not theretofore reimbursed by New L/C Borrowers) plus (b) the
aggregate amount of all participations purchased by that New L/C Lender in any
other outstanding New L/Cs or any drawings under any such other New L/Cs not
theretofore reimbursed by New L/C Borrowers.
Domestic Intercreditor Agreement
11
"NEW L/C FACILITY AGREEMENT" means (i) that certain credit
agreement dated as of the date hereof by and among New L/C Borrowers, New L/C
Lenders and New L/C Agent, and (ii) any credit agreement entered into by New L/C
Borrowers to refinance, replace, renew or extend, in whole or in part, the
credit agreement referenced in clause (i) and the indebtedness and letters of
credit issued thereunder to the extent permitted pursuant to the Detroit L/C
Facility Agreement and the High Yield Indenture, in the case of clause (i) or
(ii), as such credit agreement may be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under subsection
2.5.
"NEW L/C FACILITY DOCUMENTS" means the "Credit Documents" as
defined in the New L/C Facility Agreement (or any comparable term with respect
to any replacement New L/C Facility Agreement not prohibited hereunder).
"NEW L/C ISSUING LENDER" means, with respect to any New L/C,
the New L/C Lender that agrees or is otherwise obligated to issue such New L/C,
determined as provided in the New L/C Facility Agreement.
"NEW L/C LENDER" shall have the meaning assigned to that term
in the introduction to this Agreement.
"NEW L/C OBLIGATIONS" means any and all Obligations to the
extent arising under or with respect to the New L/C Aggregate Commitments, New
Revolving Loans or the New L/Cs, including principal and interest on any New
Revolving Loans and the fees and other amounts accruing or otherwise owed with
respect to the New L/C Aggregate Exposure, and any drawings (and interest
accrued thereon) under New L/Cs not reimbursed by New L/C Borrowers; provided,
however, that Obligations of any Loan Party (other than DHC) for interest,
commitment fees or letter of credit fees with respect to the New L/Cs, New
Revolving Loans or New L/C Aggregate Commitments and that accrue or may be
incurred under any New L/C Facility Document after the commencement by or
against any Loan Party (other than DHC) of a Bankruptcy Proceeding shall be
included in New L/C Obligations solely to the extent recoverable from such Loan
Party or its estate in such proceeding.
"NEW L/C USAGE" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is or at any time thereafter may
become available for drawing under all New L/Cs then outstanding plus (ii) the
aggregate amount of all drawings under New L/Cs honored by Issuing Lenders and
not theretofore reimbursed by New L/C Borrowers.
"NEW REVOLVING LOAN COMMITMENT" means the commitment of a New
L/C Lender to make New Revolving Loans to the New L/C Borrowers pursuant to the
New L/C Facility Agreement.
"NEW REVOLVING LOAN EXPOSURE" with respect to any New L/C
Lender, means, as of any date of determination (i) prior to the termination of
the New Revolving Loan Commitments, that New L/C Lender's Revolving Loan
Commitment, and (ii) after the termination of the New Revolving Loan
Commitments, the aggregate outstanding principal amount of the New Revolving
Loans of that New L/C Lender.
Domestic Intercreditor Agreement
12
"NEW REVOLVING LOANS" means loans made from time to time by
New L/C Lenders to New L/C Borrowers as "Revolving Loans" under and as defined
in the New L/C Facility Agreement.
"OBLIGATIONS" means all obligations of every nature of Loan
Parties under the Credit Documents, including any liability of such Loan Party
on any claim arising out of or relating to the Credit Documents, whether or not
the right to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed or contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any bankruptcy, insolvency,
reorganization or other similar proceeding. Without limiting the generality of
the foregoing, the Obligations of the Loan Parties under the Credit Documents
include (a) the obligation to pay principal, interest (including all interest
which accrues after the commencement of any case or proceeding in bankruptcy
after the insolvency of, or for the reorganization of, any Loan Party, whether
or not allowed in such case or proceeding), charges, expenses, fees, attorneys'
fees and disbursements, indemnities and other amounts payable by any Borrower
and any other Loan Party under any Credit Document and (b) the obligation to
reimburse any amount in respect of any of the foregoing that any Agent or any
Lender, in its sole discretion, may elect to pay or advance on behalf of such
Borrower or other Loan Party; provided, that nothing in this definition shall be
construed as creating any obligations of DHC under the Credit Documents that are
not expressly set forth in such Credit Documents.
"OFFICER'S CERTIFICATE" means, as applied to any Person that
is a corporation, partnership, trust or limited liability company, a certificate
executed on behalf of such Person by one or more Officers of such Person or one
or more Officers of a general partner or a managing member if such general
partner or managing member is a corporation, partnership, trust or limited
liability company.
"PAYMENT IN FULL" and "PAID IN FULL" means (a) as to the
Detroit L/C Obligations, the payment and satisfaction in full in immediately
available funds of all of such funded Detroit L/C Obligations and either (i) the
termination of the Detroit L/C Commitments and the receipt by Collateral Agent
of cash collateral in the Detroit L/C Cash Collateral Account in an amount equal
to one hundred five (105%) percent of the aggregate Detroit L/C Usage then
outstanding or (ii) if the Detroit L/C Commitments have not been terminated, the
receipt by Collateral Agent of cash collateral in the Detroit L/C Cash
Collateral Account in an amount equal to 105% of the Detroit L/C Commitments of
all Detroit L/C Lenders, (b) as to the New L/C Obligations, the payment and
satisfaction in full in immediately available funds of all of such funded New
L/C Obligations and either (i) the termination of the New L/C Aggregate
Commitments and the receipt by Collateral Agent of cash collateral in the New
L/C Cash Collateral Account in an amount equal to one hundred five (105%)
percent of the aggregate New L/C Usage then outstanding or (ii) if the New L/C
Aggregate Commitments have not been terminated, the receipt by Collateral Agent
of cash collateral in the New L/C Cash Collateral Account in an amount equal to
105% of the New L/C Commitments of all New L/C Lenders, (c) as to the High Yield
Obligations, the payment and satisfaction in full in immediately available funds
of all of such High Yield Obligations and the termination or defeasance (whether
legally or as to covenants only) of the financing arrangements provided by any
High Yield Noteholder to the Loan Parties (other than DHC) with respect thereto,
and (d) as to any other Secured
Domestic Intercreditor Agreement
13
Obligations, the payment and satisfaction in full in immediately available funds
of all such Secured Obligations then due and payable. If after receipt of any
payment of, or Proceeds of Collateral applied to the payment of, any of the
Secured Obligations, Collateral Agent or any other Secured Party, as applicable,
is required to surrender or return such payment or Proceeds to any Person for
any reason, then the Secured Obligations intended to be satisfied by such
payment or Proceeds shall be reinstated and continue and this Agreement shall
continue in full force and effect as if such payment or Proceeds had not been
received by Collateral Agent or such other Secured Party, as the case may be.
"PARTIES" means the High Yield Trustee, Loan Parties, and the
Creditor Parties from time to time party to this Agreement.
"PERSON" or "PERSONS" means and include natural persons,
corporations, limited partnerships, general partnerships, limited liability
companies, limited liability partnerships, joint stock companies, Joint Ventures
(as defined in the Facility Agreements), associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other organizations, whether or
not legal entities, and governments (whether federal, state or local, domestic
or foreign, and including political subdivisions thereof) and agencies or other
administrative or regulatory bodies thereof.
"PLAN OF REORGANIZATION" means the Debtors' Second Joint Plan
of Reorganization under Chapter 11 of the Bankruptcy Code as filed with the
Bankruptcy Court on January 14, 2004 (and as revised and amended through March
2, 2004), together with the Reorganization Plan Supplement to Debtors' Second
Joint Plan of Reorganization filed with the Bankruptcy Court on February 18,
2004 in connection therewith.
"POTENTIAL EVENT OF DEFAULT" means a "Potential Event of
Default" under and as defined in the Detroit L/C Facility Agreement, a
"Potential Event of Default" under and as defined in the New L/C Facility
Agreement or a "Default" under and as defined in the High Yield Indenture.
"PROCEEDS" means "proceeds", as such term is defined in the
UCC and, in any event, shall include (i) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to any of the Loan Parties or Collateral
Agent from time to time with respect to any of the Collateral, (ii) any and all
payments (in any form whatsoever) made or due and payable to any of the Loan
Parties from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral, by any
governmental body, authority, bureau or agency (or any person acting under color
of governmental authority), and (iii) any and all other consideration (in any
form whatsoever) or other amounts from time to time paid or payable under or in
connection with any of the Collateral upon disposition or otherwise.
"PROJECT" means any waste-to-energy facility, electrical
generation plant, cogeneration plant, water treatment facility or other facility
for the generation of electricity or engaged in another line of business in
which Company and its Subsidiaries are permitted to be engaged hereunder for
which a Subsidiary or Subsidiaries of Company (including CPIH Subsidiaries) was,
is or will be (as the case may be) an owner, operator, manager or builder, and
Domestic Intercreditor Agreement
14
shall also mean any two or more of such plants or facilities in which an
interest has been acquired in a single transaction, so long as such interest
constitutes an existing Investment on the Closing Date permitted under this
Agreement; provided, however, that a Project shall cease to be a Project of
Company and its Subsidiaries at such time that Company or any of its
Subsidiaries ceases to have any existing or future rights or obligations
(whether direct or indirect, contingent or matured) associated therewith.
"REQUISITE DETROIT L/C LENDERS" means Detroit L/C Lenders
having or holding more than 50% of the Detroit L/C Exposure of all Detroit L/C
Lenders; provided, however, that prior to the Closing Date, for purposes of this
definition the Detroit L/C Exposure of each Detroit L/C Lender shall equal the
original Detroit L/C Commitment of such Detroit L/C Lender on the Closing Date.
"REQUISITE NEW L/C LENDERS" means New L/C Lenders having or
holding more than 50% of the New L/C Aggregate Exposure of all New L/C Lenders;
provided, however, that prior to the Closing Date, for purposes of this
definition the New L/C Aggregate Exposure of each New L/C Lender shall equal the
original New L/C Commitment of such New L/C Lender on the Closing Date.
"REQUISITE OBLIGEES" means,
(i) until such time as all Detroit L/C Obligations are Paid in
Full under clause (a)(i) of the definition thereof and no Detroit L/Cs or other
Detroit L/C Obligations are outstanding, for purposes of any exercise of any
Enforcement Action or other rights with respect to the Detroit L/C Cash
Collateral Account and any Collateral from time to time on deposit therein
(including any application thereof), Requisite Detroit L/C Lenders;
(ii) until such time as all New L/C Obligations are Paid in
Full and no New L/Cs or other New L/C Obligations are outstanding, for purposes
of any exercise of any Enforcement Action or other rights with respect to the
New L/C Cash Collateral Account and any Collateral from time to time on deposit
therein (including any application thereof), Requisite New L/C Lenders;
(iii) subject to clauses (i) and (ii) above, until Payment in
Full of all Detroit L/C Obligations, (a) for so long as no drawing has occurred
under any Detroit L/C, no Event of Default has occurred and is continuing under
subsection 8.1 of the Detroit L/C Facility Agreement and no Bankruptcy
Proceeding has been commenced by or against any Loan Party, Lenders having or
holding of more than 50% of the sum of (1) the aggregate Detroit L/C Exposure of
all Detroit L/C Lenders and (2) the aggregate New L/C Aggregate Exposure of all
New L/C Lenders, and (b) from and after the occurrence of any drawing under any
Detroit L/C which is not reimbursed in full by Detroit L/C Borrowers, the
occurrence and continuance of a Detroit L/C Event of Default under subsection
8.1 of the Detroit L/C Facility Agreement or the commencement of a Bankruptcy
Proceeding by or against any Loan Party, Requisite Detroit L/C Lenders;
Domestic Intercreditor Agreement
15
(iv) subject to clauses (i) and (ii) above, from and after
Payment in Full of all Detroit L/C Obligations and until Payment in Full of all
New L/C Obligations, Requisite New L/C Lenders; and
(v) subject to clauses (i) and (ii) above, from and after
Payment in Full of all Detroit L/C Obligations and New L/C Obligations, holders
of more than 50% of the aggregate outstanding principal amount of the High Yield
Notes.
"SECURED PARTIES" means the Creditor Parties, the High Yield
Noteholders and the High Yield Trustee.
"SECURED OBLIGATIONS" means the collective reference to all
Detroit L/C Obligations, all New L/C Obligations, all High Yield Obligations and
all Obligations owing to Collateral Agent hereunder or under any Collateral
Document, and all Cash Management Obligations.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated, certificated or uncertificated, or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"SECURITIES ACCOUNT" means an account to which a financial
asset is or may be credited in accordance with an agreement under which the
Person maintaining the account undertakes to treat the Person for whom the
account is maintained as entitled to exercise the rights that comprise the
financial asset.
"SECURITY AGREEMENT" means the Security Agreement executed and
delivered by Borrowers on the Closing Date pursuant to the Detroit L/C Facility
Agreement, New L/C Facility Agreement and High Yield Indenture, as such
agreement may from time to time hereafter be amended, restated, supplemented or
otherwise modified to the extent permitted pursuant to subsection 2.4.
"SENIOR AGENT" means, (i) until Payment in Full of all Detroit
L/C Obligations, Detroit L/C Facility Agent and (ii) from and after Payment in
Full of all Detroit L/C Obligations and until Payment in Full of all New L/C
Obligations, New L/C Agent, and (iii) after Payment in Full of all Detroit L/C
Obligations and New L/C Obligations, High Yield Trustee.
"SENIOR CREDITOR" shall have the meaning assigned to that term
in subsection 4.2(f).
"SUBJECT FISCAL YEAR" shall have the meaning assigned to that
term in subsection 4.1(b).
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, trust, limited liability company, association, joint
venture or other business entity of which more
Domestic Intercreditor Agreement
16
than 50% of the total voting power of shares of stock or other ownership
interests entitled (without regard to the occurrence of any contingency) to vote
in the election of the members of the Governing Body is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof. Any reference contained
herein to one or more Subsidiaries of Company shall, unless otherwise expressly
indicated, not include CPIH or any of its Subsidiaries.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to
that term in subsection 6.1(c).
"THIRD-PARTY GUARANTY" shall have the meaning assigned to that
term in subsection 4.2(i).
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of New York; provided, however, in the
event that, by reason of mandatory provisions of law, the priority of any
Secured Party's security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of New York,
the term "UCC" means the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such priority and
for purposes of definitions related to such provisions.
"UNITED STATES" means the United States of America.
1.2 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
(a) Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on
the reference.
(b) References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless
otherwise specifically provided.
(c) The use of the word "include" or "including", when
following any general statement, term or matter, shall not be construed
to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items
or matters, whether or not nonlimiting language (such as "without
limitation" or "but not limited to" or words of similar import) is used
with reference thereto, but rather shall be deemed to refer to all
other items or matters that fall within the broadest possible scope of
such general statement, term or matter.
(d) In the event of any refinancing, replacement or extension
of any Facility Agreement, references in this Agreement to sections or
subsections of such Facility Agreement shall refer to the functionally
equivalent sections or subsections in such refinanced, replaced or
extended agreement as the context requires.
SECTION II
2.1 APPOINTMENT AS COLLATERAL AGENT. Each Creditor Party
executing this Agreement, and High Yield Trustee and each High Yield Noteholder,
by its acceptance of the
Domestic Intercreditor Agreement
17
benefits of the Collateral Documents and of this Agreement, (i) appoints Bank of
America to serve as collateral agent and representative of each such Secured
Party (to the extent applicable) under this Agreement and each of the Collateral
Documents (in such capacity, together with its successors in such capacity, the
"COLLATERAL AGENT") and (ii) irrevocably authorizes Collateral Agent to act as
agent for the Secured Parties for the purpose of executing and delivering, on
behalf of all such Secured Parties, the Collateral Documents and, subject to the
provisions of this Agreement, for the purpose of exercising such powers, rights
and remedies hereunder and under the other Collateral Documents as are
specifically delegated or granted to Collateral Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably
incidental thereto. For the avoidance of doubt, it is understood and agreed that
the Collateral Agent is the "Secured Party" or, as the case may be, the
"Mortgagee" referred to in the Collateral Documents. Each Creditor Party and
Collateral Agent, and High Yield Trustee and each High Yield Noteholder, by its
acceptance of the benefits of the Collateral Documents and this Agreement,
hereby appoint each other Secured Party as agent for the purpose of perfecting
Collateral Agent's security interest in Collateral that, in accordance with the
UCC, can be perfected by possession or control.
2.2 DECISIONS RELATING TO ENFORCEMENT ACTIONS AND OTHER
MATTERS VESTED IN REQUISITE OBLIGEES.
(a) Collateral Agent agrees to take such Enforcement Actions
and all such actions with respect to Collateral which is perfected only
by control of such Collateral, in each case as may be directed by
Requisite Obligees (it being understood and agreed that if at any time
Collateral Agent determines that the requisite percentages constituting
Requisite Obligees shall have been obtained, the Collateral Agent may
and shall be fully authorized, as of such time and without the need for
further direction from any Secured Party, to take or not take such
action as the Requisite Obligees direct); provided, however, that
notwithstanding anything in this Agreement to the contrary, Collateral
Agent shall not be required to take any action that is in its judgment
contrary to law or to the terms of this Agreement or any or all of the
Collateral Documents or which would in its opinion subject it or any of
its officers, employees or directors to liability, and Collateral Agent
shall not be required to take any action under this Agreement or any or
all of the Collateral Documents unless and until Collateral Agent shall
be indemnified to its satisfaction by the relevant Parties against any
and all losses, costs, expenses or liabilities in connection therewith.
(b) Each Creditor Party executing this Agreement or an
acknowledgment hereto, and the High Yield Trustee and each holder of a
High Yield Note, by its acceptance of the benefits hereof and of the
Collateral Documents, agree that Collateral Agent may act as Requisite
Obligees may request (regardless of whether any individual Party or any
other Secured Party (including the holders of the High Yield Notes)
agrees, disagrees or abstains with respect to such request), that
Collateral Agent shall have no liability for acting in accordance with
such request (provided such action does not conflict with the express
terms of this Agreement) and that no Secured Party shall have any
liability to any other Secured Party for any such request, except, in
each case, liability arising from the gross negligence or willful
misconduct of such Person. Collateral Agent shall give prompt notice to
all Creditor Parties and the High Yield
Domestic Intercreditor Agreement
18
Trustee of actions taken pursuant to the instructions of Requisite
Obligees; provided, however, that the failure to give any such notice
shall not impair the right of Collateral Agent to take any such action
or the validity or enforceability under this Agreement and the
applicable Collateral Documents of the action so taken.
(c) Collateral Agent may at any time request directions from
the Requisite Obligees with respect to the Collateral Documents as to
any course of action or other matter relating hereto or to the
Collateral Documents. Except as otherwise provided in the Collateral
Documents, directions given by Requisite Obligees to Collateral Agent
with respect to the Collateral and Collateral Documents shall be
binding on all Secured Parties for all purposes (provided such
directions do not conflict with the express terms of this Agreement).
(d) Each Creditor Party, the High Yield Trustee, and each
holder of a High Yield Note, by accepting the benefits hereof and of
the Collateral Documents, agrees not to take any Enforcement Action
whatsoever, in each case except through Collateral Agent in accordance
with this Agreement; provided, however, that (i) Detroit L/C Agents and
Detroit L/C Lenders may apply Collateral on deposit in the Detroit L/C
Cash Collateral Account to the payment of the Detroit L/C Obligations
and otherwise exercise rights of setoff with respect thereto, in each
case in accordance with the terms of the Detroit L/C Facility Agreement
and the Security Agreement and (ii) New L/C Agent and New L/C Lenders
may apply Collateral on deposit in the New L/C Cash Collateral Account
to the payment of the New L/C Obligations and otherwise exercise rights
of setoff with respect thereto, in each case in accordance with the
terms of the New L/C Facility Agreement and the Security Agreement.
2.3 NET INSURANCE/CONDEMNATION PROCEEDS.
(a) Unless prohibited by contractual or other legal
requirement, all policies of insurance required to be maintained under
any Credit Document shall (a) name Collateral Agent, for the benefit of
Secured Parties, as an additional insured thereunder as its interests
may appear and (b) in the case of each business interruption and
casualty insurance policy, contain a loss payable clause or
endorsement, satisfactory in form and substance to Detroit L/C Facility
Agent and New L/C Agent, that names Collateral Agent for the benefit of
Secured Parties as the loss payee thereunder for any covered loss in
excess of $1,000,000 and provides for at least 30 days prior written
notice to Collateral Agent of any modification or cancellation of such
policy. As soon as practicable after the Closing Date, Company shall
deliver to Agents a certificate from Borrowers' insurance broker(s) or
other evidence satisfactory to it that all insurance required to be
maintained pursuant to this subsection 2.3 is in full force and effect
and that Collateral Agent on behalf of Secured Parties has been named
as additional insured and/or loss payee thereunder to the extent
required under this subsection 2.3.
(b) Upon receipt by Collateral Agent of any Net
Insurance/Condemnation Proceeds as loss payee, (a) if and to the extent
Company would have been required to apply such Net
Insurance/Condemnation Proceeds (if it had received them directly)
pursuant to the Detroit L/C Facility Agreement (or, if the Detroit L/C
Obligations have
Domestic Intercreditor Agreement
19
been Paid in Full, the New L/C Facility Agreement), Collateral Agent
shall, and Company hereby authorizes Collateral Agent to, apply such
Net Insurance/Condemnation Proceeds as provided in subsection 4.1(a)
or, to the extent applicable, subsection 4.2 and (b) to the extent the
foregoing clause (a) does not apply, Collateral Agent shall deliver
such Net Insurance/Condemnation Proceeds to Company, and (1) Company
and its Subsidiaries may retain and apply any portion thereof that is
business interruption insurance proceeds for working capital purposes
or any other purposes not prohibited under the Facility Agreements and
(2) Company shall, or shall cause one or more of its Subsidiaries to,
promptly apply such Net Insurance/Condemnation Proceeds that are not
business interruption insurance proceeds to the costs of repairing,
restoring, or replacing the assets in respect of which such Net
Insurance/Condemnation Proceeds were received; provided, however that
if at any time Senior Agent reasonably determines (A) that Company or
such Subsidiary is not proceeding diligently with such repair,
restoration or replacement or that such repair, restoration or
replacement cannot be completed within 180 days after the receipt by
Collateral Agent of such Net Insurance/Condemnation Proceeds, Senior
Agent may direct Collateral Agent, and Company hereby authorizes Senior
Agent and Collateral Agent to apply such Net Insurance/Condemnation
Proceeds as provided in subsection 4.1(a).
2.4 AMENDMENTS, MODIFICATIONS, WAIVERS AND RELEASES.
Notwithstanding anything in the Facility Agreements, High Yield Indenture,
Collateral Documents and other Credit Documents to the contrary:
(a) except in connection with any Enforcement Action or the
release of any cash on deposit in any Cash Collateral Account, the
release of the Lien granted in favor of Collateral Agent on all or
substantially all of the Collateral under the Collateral Documents
shall require the prior written consent of, until Payment in Full of
all Detroit L/C Obligations, each Detroit L/C Lender and, until Payment
if Full of all New L/C Obligations, each New L/C Lender; provided that
no such consent shall be required in connection with any IPP
International Sale provided that the consideration received for the
assets subject to such IPP International Sale shall be in an amount at
least equal to the fair market value thereof; and
(b) except as set forth in subsection 2.4(a), any amendment,
modification, termination or waiver of, any Collateral Documents shall
require the prior written consent of (i) until Payment in Full of all
Detroit L/C Obligations, Requisite Detroit L/C Lenders, (ii) until
Payment in Full of all New L/C Obligations, Requisite New L/C Lenders,
and (iii) upon Payment in Full of all Detroit L/C Obligations and New
L/C Obligations, holders of more than 50% of the principal amount of
the High Yield Notes; provided, however, that (i) no such amendment,
modification, termination or waiver shall, without the consent of
Requisite Detroit L/C Lenders, amend, modify, terminate or waive, or
have the effect of amending, modifying, terminating or waiving, Section
12 (Detroit L/C Cash Collateral Account) of the Security Agreement or
the rights of Collateral Agent and Detroit L/C Lenders under such
Section or otherwise with respect to the Detroit L/C Cash Collateral
Account or the Collateral on deposit therein from time to time, and
(ii) no such amendment, modification, termination or waiver shall,
without the consent of Requisite New L/C Lenders, amend, modify,
terminate or waive, or have the effect of amending,
Domestic Intercreditor Agreement
20
modifying, terminating or waiving, Section 13 (New L/C Cash Collateral
Account) of the Security Agreement or the rights of Collateral Agent
and New L/C Lenders under such Section or otherwise with respect to the
New L/C Cash Collateral Account or the Collateral on deposit therein
from time to time.
2.5 AMENDMENTS, MODIFICATIONS AND WAIVERS WITH RESPECT TO
CREDIT DOCUMENTS. Any amendment or modification of, or waiver of compliance with
the terms of any Credit Document shall be subject to the following requirements:
(a) Subject to the provisions of subsection 2.4, and until the
termination of the Detroit L/C Facility Agreement and the Payment in
Full of all Detroit L/C Obligations, without the prior written consent
of Requisite Detroit L/C Lenders, New L/C Lenders may not amend,
restate, modify or waive (or receive any payment consistent with an
amendment, restatement, modification or waiver of) any material
provision of any of the New L/C Facility Documents, unless (i) the
terms of the New L/C Facility Documents as so amended, restated,
modified or waived are not more disadvantageous to Company and its
Subsidiaries and the Detroit L/C Lenders (in a manner deemed material
by Detroit L/C Agents) than the New L/C Facility Documents in effect on
the Closing Date (it being understood and agreed that any amendment,
restatement, modification or waiver having the effect of (1) increasing
the maximum amount of any commitment to extend loans (as opposed to
letters of credit) under the New L/C Facility Documents, or (2)
reducing, delaying or waiving any otherwise required reduction in the
amount of any commitment to extend loans or letters of credit under the
New L/C Facility Documents, shall be deemed to be more disadvantageous
for purposes of this clause (i) without further notice or other action
by Detroit L/C Agents), (ii) the aggregate amount of indebtedness and
letters of credit outstanding, and additional commitments to extend
credit, if any, under the New L/C Facility Documents as so amended,
restated, modified or waived, do not exceed the aggregate amount of the
commitments to extend credit in effect under the New L/C Facility
Documents on the Closing Date plus $5,000,000, (iii) the obligations
under (and the Liens securing) such New L/C Facility Documents as so
amended, restated, modified or waived are subject to this Agreement on
terms substantively identical to the terms applicable to the
obligations in effect under the New L/C Facility Documents on the
Closing Date , and (iv) Company provides to Detroit L/C Agents
reasonable prior advance written notice of such proposed amendment,
restatement, modification or waiver and copies of all material
contracts or other agreements being entered into in connection
therewith.
(b) Subject to the provisions of subsection 2.4, and until the
termination of the New L/C Facility Agreement and the Payment in Full
of all New L/C Obligations, without the prior written consent of
Requisite New L/C Lenders, Detroit L/C Lenders may not amend, restate,
modify or waive (or receive any payment consistent with an amendment,
restatement, modification or waiver of) any material provision of any
of the Detroit L/C Facility Documents, unless (i) the terms of the
Detroit L/C Facility Documents as so amended, restated, modified or
waived are not more disadvantageous to Company and its Subsidiaries and
the New L/C Lenders (in a manner deemed material by New L/C Agent) than
the Detroit L/C Facility Documents in effect on the Closing Date (it
being understood and agreed that any amendment, restatement,
modification or waiver
Domestic Intercreditor Agreement
21
having the effect of (1) increasing the maximum amount of any
commitment to extend loans (as opposed to letters of credit) under the
Detroit L/C Facility Documents, or (2) reducing, delaying or waiving
any otherwise required reduction in the amount of any commitment to
extend loans or letters of credit under the Detroit L/C Facility
Documents, shall be deemed to be more disadvantageous for purposes of
this clause (i) without further notice or other action by New L/C
Agent), (ii) the aggregate amount of indebtedness and letters of credit
outstanding, and additional commitments to extend credit, if any, under
the Detroit L/C Facility Documents as so amended, restated, modified or
waived, do not exceed the aggregate amount of the commitments to extend
credit in effect under the Detroit L/C Facility Documents on the
Closing Date plus $5,000,000, (iii) the obligations under (and the
Liens securing) such Detroit L/C Facility Documents as so amended,
restated, modified or waived are subject to this Agreement on terms
substantively identical to the terms applicable to the obligations in
effect under the Detroit L/C Facility Documents on the Closing Date,
and (iv) Company provides to New L/C Agent reasonable prior advance
written notice of such proposed amendment, restatement, modification or
waiver and copies of all material contracts or other agreements being
entered into in connection therewith.
(c) Until (i) the termination of the Detroit L/C Facility
Agreement and the Payment in Full of all Detroit L/C Obligations,
without the prior written consent of Requisite Detroit L/C Lenders and
(ii) the termination of the New L/C Facility Agreement and the Payment
in Full of all New L/C Obligations, without the prior written consent
of Requisite New L/C Lenders, Company shall not, and shall not permit
any of its Subsidiaries (including CPIH Subsidiaries) to amend,
restate, modify or waive (or make any payment consistent with an
amendment, restatement, modification or waiver of) any material
provision of the Management Services and Reimbursement Agreement if the
effect of such amendment, restatement, modification or waiver, together
with all other amendments, restatements, modifications or waivers made,
(a) is to impose additional material obligations on, or confer material
additional rights to the holders thereof (or to other obligees with
respect thereto) against, Company or any of its Subsidiaries, (b) is
otherwise adverse to the interests of the Detroit L/C Lenders in a
manner deemed material in the judgment of Detroit L/C Agents or
Requisite Detroit L/C Lenders so notifying Detroit L/C Agents or
Company, or (c) is otherwise adverse to the interests of the New L/C
Lenders in a manner deemed material in the judgment of New L/C Agent or
Requisite New L/C Lenders so notifying New L/C Agents or Company.
(d) Each Lender acknowledges and agrees that Borrowers have
agreed to and are bound by the provisions of subsection 6.13 (Most
Favored Nations Payments) of each Facility Agreement.
SECTION III
3.1 PRIORITY OF LIENS.
(a) Notwithstanding the order or time of attachment, or the
order, time or manner of perfection, or the order or time of filing or
recordation of any document or instrument, or other method of
perfecting a security interest in favor of Collateral Agent
Domestic Intercreditor Agreement
22
in any Collateral, and notwithstanding any conflicting terms or
conditions which may be contained in any of the Credit Document, the
Secured Parties agree that, as among the Secured Parties the following
Lien priorities shall strictly apply in defining the respective Lien
priorities of each Secured Party in the Collateral (provided, however
that, in the case of the Collateral held as cash collateral in the
Detroit L/C Cash Collateral Account for the Detroit L/C Obligations and
in the New L/C Cash Collateral Account for New L/C Obligations, such
cash collateral shall have the priorities set forth in subsection
3.1(b) and 3.1(c), respectively, until released pursuant to subsection
4.2(c), in which case the following priorities apply):
(1) first, the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the Secured Obligations owing
from time to time to the Collateral Agent, in its capacity as
Collateral Agent, to the full extent thereof;
(2) second: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing, on a pari passu basis, the
Secured Obligations owing from time to time to the Detroit L/C Agents
and New L/C Agent, in their capacities as Detroit L/C Agents and New
L/C Agent, respectively, to the full extent thereof;
(3) third: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing, on a pari passu basis, (i) the
remaining Detroit L/C Obligations, and (ii) the Cash Management
Obligations, in each case to the full extent thereof;
(4) fourth: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the remaining New L/C
Obligations to the full extent thereof; and
(5) fifth: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the High Yield Obligations to
the full extent thereof.
(b) Notwithstanding the order or time of attachment, or the
order, time or manner of perfection, or the order or time of filing or
recordation of any document or instrument, or other method of
perfecting a security interest in favor of Collateral Agent in any
Collateral, and notwithstanding any conflicting terms or conditions
which may be contained in any of the Credit Document, the Secured
Parties agree that, as among the Secured Parties the following Lien
priorities shall strictly apply in defining the respective Lien
priorities of each Secured Party in cash collateral held in the Detroit
L/C Cash Collateral Account:
(1) first, the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the Secured Obligations owing
from time to time to the Collateral Agent, in its capacity as
Collateral Agent, to the full extent thereof;
(2) second: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the Secured Obligations owing
from time to time to the Detroit L/C Agents, in their capacities as
Detroit L/C Agents, to the full extent thereof;
(3) third: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the remaining Detroit L/C
Obligations to the full extent thereof; and
Domestic Intercreditor Agreement
23
(4) fourth: the Liens upon the Collateral in favor of
Collateral Agent in the order of priority provided for in subsection
3.1(a).
(c) Notwithstanding the order or time of attachment, or the
order, time or manner of perfection, or the order or time of filing or
recordation of any document or instrument, or other method of
perfecting a security interest in favor of Collateral Agent in any
Collateral, and notwithstanding any conflicting terms or conditions
which may be contained in any of the Credit Document, the Secured
Parties agree that, as among the Secured Parties the following Lien
priorities shall strictly apply in defining the respective Lien
priorities of each Secured Party in cash collateral held in the New L/C
Cash Collateral Account:
(1) first, the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the Secured Obligations owing
from time to time to the Collateral Agent, in its capacity as
Collateral Agent, to the full extent thereof;
(2) second: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the Secured Obligations owing
from time to time to the New L/C Agent, in their capacity as New L/C
Agent, to the full extent thereof;
(3) third: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the remaining New L/C
Obligations to the full extent thereof; and
(4) fourth: the Liens upon the Collateral in favor of
Collateral Agent in the order of priority provided for in subsection
3.1(a).
3.2 PRIORITIES UNAFFECTED BY ACTION OR INACTION. The Lien
priorities in subsection 3.1 shall not be altered or otherwise affected by any
amendment, modification, supplement, extension, renewal, restatement or
refinancing of any of the Secured Obligations, nor by any action or inaction
which Collateral Agent or any other Secured Party may take or fail to take in
respect of the Collateral.
SECTION IV
4.1 APPLICATION OF MANDATORY PREPAYMENTS UNDER FACILITY
AGREEMENTS. Notwithstanding anything in the Credit Documents to the contrary but
subject in all respects to subsection 4.2, so long as any Detroit L/C
Obligations and New L/C Obligations are outstanding any Mandatory Payments made
pursuant to subsections 2.3A(i)(a) - (g) of the Detroit L/C Facility Agreement
and subsections 2.4A(iii)(a) - (g) of the New L/C Facility Agreement shall be
applied as follows:
(a) Any Mandatory Payments made pursuant to subsections
2.3A(i)(a) - (b) of the Detroit L/C Facility Agreement and subsections
2.4A(iii)(a) - (b) of the New L/C Facility Agreement shall be applied
first, to repay funded amounts (if any) under the Detroit L/Cs and then
to cash collateralize the Detroit L/Cs and the Detroit L/C Commitments
under the Security Agreement in an amount, taken together with all then
existing cash collateral on deposit in the Detroit L/C Cash Collateral
Account for the
Domestic Intercreditor Agreement
24
Detroit L/C Commitments, equal to 105% of the Detroit L/C Commitments
and second, to reduce the New L/C Aggregate Exposure in accordance with
subsection 4.1(e).
(b) Any Mandatory Payments made pursuant to subsections
2.3A(i)(c) - (e) of the Detroit L/C Facility Agreement and subsections
2.4A(iii)(c) - (e) of the New L/C Facility Agreement shall be applied
as follows: (i) an amount equal to 50% of such Mandatory Payment shall
be applied to repay funded amounts (if any) under the Detroit L/Cs and
then to cash collateralize the Detroit L/Cs and the Detroit L/C
Commitments under the Security Agreement up to an amount, taken
together with all then existing cash collateral on deposit in the
Detroit L/C Cash Collateral Account for the Detroit L/C Commitments,
equal to 105% of the Detroit L/C Commitments, (ii) an amount equal to
50% of such Mandatory Payment shall be applied to reduce the New L/C
Aggregate Exposure in accordance with subsection 4.1(e) and (iii) if
any proceeds of a Mandatory Prepayment remain after application as set
forth in clause (i) or (ii), then such remaining proceeds shall be
applied as if it were proceeds required to be applied pursuant to the
other such clause.
(c) Any Mandatory Payments made pursuant to subsections
2.3A(i)(f) of the Detroit L/C Facility Agreement and subsections
2.4A(iii)(f) of the New L/C Facility Agreement shall be applied as
follows (i) an amount equal to 50% of such Mandatory Payment shall be
applied to repay funded amounts (if any) under the Detroit L/Cs and
then to cash collateralize the Detroit L/Cs and the Detroit L/C
Commitments under the Security Agreement up to an amount, taken
together with all then existing cash collateral on deposit in the
Detroit L/C Cash Collateral Account for the Detroit L/C Commitments,
equal to 105% of the Detroit L/C Commitments, (ii) an amount equal to
50% of such Mandatory Payment shall be applied to reduce the New L/C
Aggregate Exposure in the following manner: first, to New L/C Exposure,
with the amount applied to New L/C Exposure being applied to repay all
funded amounts, if any, under the New L/Cs and then to cash
collateralize the New L/C Exposure outstanding (after giving effect to
the foregoing repayment) in an amount, taken together with all then
existing cash collateral for such New L/C Exposure, equal to 105% of
such New L/C Exposure; and second, to repay outstanding New Revolving
Loans to the full extent thereof, and (iii) if any proceeds of a
Mandatory Prepayment remain after application as set forth in clause
(i) or (ii), then such remaining proceeds shall be applied as if it
were proceeds required to be applied pursuant to the other such clause.
Notwithstanding the foregoing, Borrowers and Lenders hereby agree that
any cash applied to cash collateralize Detroit L/C Exposure or New L/C
Exposure pursuant to this subsection 4.1(c) with respect to a cash
balance on June 30 or December 31 of any Fiscal Year (the "SUBJECT
FISCAL YEAR") shall, in the event that the amount of such cash applied
to cash collateralize Detroit L/C Exposure and New L/C Exposure exceeds
50% of the Annual Free Cash Flow for the Subject Fiscal Year, be
released to Borrowers to the extent of such excess, with the amount of
cash so released being released pro rata from the amounts on deposit in
the Detroit L/C Cash Collateral Account and New L/C Cash Collateral
Account based on the amount of such excess applied to cash
collateralize Detroit L/C Exposure and New L/C Exposure (but in no
event shall more cash be so released from any Collateral Account than
the aggregate amount applied pursuant to this subsection 4.1(c) with
respect to the Subject Fiscal Year and deposited to such Collateral
Account) after the 60th day of the following Fiscal Year,
Domestic Intercreditor Agreement
25
promptly following Borrowers' certification of such excess; provided,
however, that such release shall not be required if, at the time such
release would otherwise be required, a Detroit L/C Event of Default or
New L/C Event of Default shall have occurred and be continuing.
(d) Any Mandatory Payments made pursuant to subsection
2.3A(i)(g) of the Detroit L/C Facility Agreement and subsection
2.4A(iii)(g) of the New L/C Facility Agreement shall be applied
pursuant to subsection 4.2(a).
(e) All Mandatory Prepayments of the New L/C Aggregate
Exposure referenced in subsections 4.1(a) and 4.1(b) shall be applied
in the following manner: first, to New L/C Exposure, with the amount
applied to New L/C Exposure being applied to repay all funded amounts,
if any, under the New L/Cs and then to cash collateralize the New L/C
Exposure outstanding (after giving effect to the foregoing repayment)
in an amount, taken together with all then existing cash collateral for
such New L/C Exposure, equal to 105% of such New L/C Exposure, and,
concurrently with any such repayment or cash collateralization of New
L/C Exposure, effecting a permanent reduction in the New L/C Commitment
by the amount of such repayment or cash collateralization of New L/C
Exposure; second, to repay outstanding New Revolving Loans to the full
extent thereof and to concurrently permanently reduce (x) the New L/C
Commitments and (y) to the extent that any such reduction in New L/C
Commitments would cause the New L/C Commitments to be less than the
Revolver Loan Commitments then in effect, the Revolver Commitments by
the amount of such difference; and third, to permanently reduce the
unutilized New L/C Commitments and, to the extent that any reduction in
New L/C Commitments would cause the New L/C Commitments to be less than
the Revolver Loan Commitments then in effect, to permanently and
concurrently reduce the Revolver Commitments by the amount of such
difference.
4.2 APPLICATION OF PROCEEDS OF COLLATERAL, ETC.
(a) Except as provided in subsection 4.2(c) and 4.2(d) below,
upon the occurrence and during the continuation of an Event of Default
or upon the termination of either the Detroit L/C Commitments or the
New L/C Aggregate Commitments, if requested by Requisite Detroit L/C
Lenders with respect to any Detroit L/C Event of Default or termination
of Detroit L/C Commitments, or if requested by Requisite New L/C
Lenders with respect to any New L/C Event of Default and termination of
New L/C Aggregate Commitments, or holders of more than 50% of the High
Yield Notes with respect to a High Yield Event of Default, (1) all
Mandatory Payments or other payments received by any Agent or other
Secured Party on account of the Obligations, whether from any Loan
Party or otherwise, shall promptly be delivered to Collateral Agent and
upon receipt by Collateral Agent, applied by Collateral Agent against
the Secured Obligations and (2) all Proceeds received by Collateral
Agent in respect of any sale of, collection from, or other realization
upon all or any part of the Collateral or other Enforcement Action may,
in the discretion of Senior Agent upon written direction to Collateral
Agent, be held by Collateral Agent as Collateral for, and/or (then or
at any time thereafter) applied in full or in part by Collateral Agent
against, the applicable
Domestic Intercreditor Agreement
26
Secured Obligations, in each case under clauses (1) and (2) in the
following order of priority:
(i) First, to the payment of the costs and expenses
of the exercise of rights and remedies and such sale, collection or
other realization or Enforcement Action, including reimbursement of all
expenses, liabilities and advances made or incurred by Collateral Agent
in connection therewith (including, for reasonable cost, fees and
expenses of counsel and other professionals and agents retained by the
Collateral Agent) and all amounts for which Collateral Agent is
entitled to compensation, reimbursement and indemnification under any
Credit Document and any other amounts then owing to Collateral Agent,
in its capacity as Collateral Agent, pursuant to the Collateral
Documents;
(ii) Second, to the extent proceeds remain after
application as described in clause (i) above, pro rata among the
following, based on the amounts outstanding as of any date of
determination: all Secured Obligations owing to Detroit L/C Agents and
New L/C Agent, in their capacities as Detroit L/C Agents and New L/C
Agent, respectively;
(iii) Third, to the extent proceeds remain after
application as described in clauses (i) and (ii) above, pro rata among
the following, based on the amounts outstanding as of any date of
determination: (i) all remaining Detroit L/C Obligations, and (ii) all
Cash Management Obligations until all Detroit L/C Obligations and Cash
Management Obligations have been Paid in Full;
(iv) Fourth, to the extent proceeds remain after
application as described in clauses (i) through (iii) above, to the
payment of the remaining New L/C Obligations until all New L/C
Obligations have been Paid in Full;
(v) Fifth, to the extent proceeds remain after
application as described in clauses (i) through (iv) above, to the
payment of the High Yield Note Obligations, until all such High Yield
Note Obligations have been Paid in Full; and
(vi) Sixth, after Payment in Full of all Secured
Obligations under clauses (i) through (v) above, to Loan Parties (other
than DHC) or their successors or assigns, or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct, of any surplus then remaining from such
Proceeds.
(b) Notwithstanding anything in subsection 4.2(a) to the
contrary, (i) in the event that no Detroit L/C Event of Default has
occurred and is continuing under subsection 8.1 of the Detroit L/C
Facility Agreement and no Bankruptcy Proceeding has been commenced by
or against any Loan Party, the New L/C Lenders and New L/C Agent shall
be entitled to receive payments of current interest and fees when due
under the New L/C Facility Agreement; (ii) in the event that no Detroit
L/C Event of Default has occurred and is continuing under subsection
8.1 of the Detroit L/C Facility Agreement and no New L/C Event of
Default has occurred and is continuing under subsection 8.1 of the New
L/C Facility Agreement and no Bankruptcy Proceeding has
Domestic Intercreditor Agreement
27
been commenced by or against any Loan Party and subsection 8.1 of the
Detroit L/C Facility Agreement and New L/C Facility Agreement, the High
Yield Trustee, on behalf of the High Yield Noteholders, shall be
entitled to receive payments of current interest and fees when due
under the High Yield Indenture and High Yield Note; and (iii) in the
event any Management Services Reimbursement Agreement Beneficiary
receives any payment from any Management Services Agreement Obligors
pursuant to subsection 4(b) of the Management Services Reimbursement
Agreement with respect to any drawing of any New L/C that is honored by
the New L/C Issuing Lender, then such Management Services Agreement
Beneficiaries shall apply such payment to reimburse New L/C Issuing
Lender (and any New L/C Lender that has funded its participation
therein) for such honored drawing.
(c) Cash collateral held by Collateral Agent pursuant to the
Security Agreement shall be held for the purposes set forth therein.
Notwithstanding anything in the other Credit Documents to the Company,
if during any period in which the provisions of subsection 4.2(a) are
applicable, (i) the Detroit L/C Commitments and the obligation of the
Detroit L/C Lenders to issue and maintain Detroit L/Cs have terminated
and all Detroit L/C Obligations have been fully satisfied in cash and
no Detroit L/Cs are then outstanding, then any cash collateral held by
Collateral Agent to cash collateralize Detroit L/C Obligations shall be
applied in accordance with subsection 4.2(a); and (ii) the New L/C
Aggregate Commitments and the obligation of the Issuing Lenders to
issue or maintain New L/Cs have terminated and all New L/C Obligations
have been fully satisfied in cash and no New L/Cs are then outstanding,
then any cash collateral held by Collateral Agent to cash collateralize
New L/C Obligations shall be applied in accordance with subsection
4.2(a).
(d) Until Proceeds are applied as set forth in this subsection
4.2, Collateral Agent shall hold such Proceeds in its custody in
accordance with its regular procedures for handling deposited funds.
(e) Payments by Collateral Agent to the Detroit L/C Lenders in
respect of the Detroit L/C Obligations shall be made to the Detroit L/C
Facility Agent for distribution to the Detroit L/C Lenders in
accordance with the Detroit L/C Facility Agreement and this Agreement;
payments by Collateral Agent to the New L/C Lenders in respect of the
New L/C Obligations shall be made to the New L/C Agent for distribution
to the New L/C Lenders in accordance with the New L/C Facility
Agreement and this Agreement; payments in respect of any High Yield
Obligations shall be paid to the High Yield Trustee for the benefit of
the holders of such High Yield Obligations; and payments in respect of
the Cash Management Obligations shall be made to Cash Management Bank
for the benefit of Cash Management Bank.
(f) In the event that any Secured Party shall receive any
Distribution that such Secured Party is not entitled to receive or
retain under the provisions of this Agreement (in such capacity, each,
a "JUNIOR CREDITOR"), such Junior Creditor shall hold any such
Distribution so received in trust for the benefit of the holders of
other Secured Obligations with the right to receive such Distribution
under the provisions of this Agreement (in such capacity, each, a
"SENIOR CREDITOR") and shall segregate such
Domestic Intercreditor Agreement
28
Distribution from other assets held by such Junior Creditor; and shall
forthwith turn over such Distribution (without liability for interest
thereon, but with any appropriate endorsements or assignments, if
necessary) to the holders of, or to Collateral Agent for the benefit of
the holders of, such Secured Obligations in the form received (with any
appropriate endorsement or assignment, if necessary) to be distributed
in accordance with subsection 4.1 or 4.2, as applicable, and applied to
such Secured Obligations. In the event of a failure of any Junior
Creditor to make any such endorsement or assignment to Collateral Agent
or Senior Creditors, as the case may be, Collateral Agent and such
Senior Creditors are hereby irrevocably authorized on behalf of such
Junior Creditor to make such endorsement or assignment, as applicable.
(g) No payment or distribution to any Senior Creditor pursuant
to the provisions of this Agreement shall entitle the applicable Junior
Creditor or Junior Creditors to exercise any right of subrogation in
respect thereof until (i) all Secured Obligations of such Senior
Creditors (including with respect to any outstanding letters of credit)
shall have been indefeasibly Paid in Full, or (ii) all of such Senior
Creditors have consented in writing to the taking of such action. With
respect to any subrogation claims, each Junior Creditor hereby (to the
extent permitted by applicable law) waives, releases and discharges any
and all rights, claims, causes of action, liabilities, claims and
demands, in law or equity, which such Junior Creditor has had, now has,
or may in the future have, arising out of or relating directly or
indirectly to the taking or not taking of any act or proceeding or not
proceeding with any action which the Senior Creditors (or that
representatives) may take in an effort to collect in respect of the
Secured Obligations owed to such Senior Creditors.
(h) In furtherance of, and without limiting, the priority
provisions set forth in this subsection 4.2, but subject to the
applicable voting provisions set forth in subsection 2.2, each Creditor
Party and High Yield Trustee (and, by their acceptance of the benefits
hereof and of the Collateral Documents, each High Yield Noteholder)
agrees that, in order to enable Collateral Agent to enforce its rights
hereunder in any Bankruptcy Proceeding, Collateral Agent is hereby
irrevocably authorized and empowered in its sole and absolute
discretion to receive and collect any and all dividends or other
payments or disbursements made on account of Collateral Agent's Lien on
the Collateral in whatever form the same may be paid or issued and to
apply the same on account of any such Secured Obligations in accordance
with the provisions of the Credit Documents and this Agreement. At any
time, including but not limited to during any Bankruptcy Proceeding,
Collateral Agent and each other Secured Party will refrain from taking
any action which would contest or challenge in any administrative,
legal or equitable action or otherwise the validity or enforceability
of the terms of this Agreement, including the priority provisions
contained in this subsection 4.2 and the Lien priority provisions
contained in subsection 3.1.
(i) Each Secured Party hereby covenants and agrees that (i)
except for the guaranty of the High Yield Obligations by High Yield
Guarantors pursuant to the High Yield Indenture and any New Investor
Assurances, such Secured Party will not accept from any Person on
behalf of the Borrowers any guarantee (a "THIRD-PARTY GUARANTY") of any
Secured Obligations unless such guarantor simultaneously guarantees the
payment
Domestic Intercreditor Agreement
29
all Secured Obligations owed to each of the other Secured Parties (or,
if such Third-Party Guaranty guarantees only a portion of the
Obligations owing to such Secured Party, such Secured Party will not
accept such Third-Party Guaranty unless such guarantor simultaneously
guarantees the same proportion of Secured Obligations owing to the
other Secured Parties), and (ii) such Secured Party will not take,
accept or obtain any security interest in, or lien or encumbrance upon,
any assets of any of the Borrowers or any Subsidiary (including any
CPIH Subsidiary) or Affiliate thereof or any other Person to secure the
payment and performance of the Obligations unless the Collateral Agent,
for the benefit of all Secured Parties, is granted a pari passu
security interest in, or lien upon, such assets, in either case,
pursuant to documents in form and substance satisfactory to Detroit L/C
Facility Agent and New L/C Agent.
(j) Each Junior Creditor hereby waives any rights it may have
under applicable law to assert the doctrine of marshalling or to
otherwise require Collateral Agent or any Senior Creditors to marshal
any property of the Loan Parties or any of their respective Affiliates
for the benefit of such Junior Creditors.
SECTION V
5.1 INFORMATION. From time to time, upon the request of
Collateral Agent, each of the following Parties agrees to promptly provide to
Collateral Agent the information described below:
(a) Detroit L/C Facility Agent agrees promptly from time to
time to (i) deliver to Collateral Agent a true, correct and complete
copy of any amendment, waiver or modification of or supplement to any
Detroit L/C Facility Documents upon execution and delivery to Detroit
L/C Facility Agent thereof by the relevant parties thereto and (ii)
notify Collateral Agent of: (A) the aggregate amount of principal of
and interest on the relevant Detroit L/C Obligations (including the
aggregate Detroit L/C Usage) as at such date as Collateral Agent may
specify, (B) the current Detroit L/C Commitment under the Detroit L/C
Facility Agreement, and (C) any payment received by Detroit L/C
Facility Agent to be applied to the principal of or interest on the
Obligations and (iv) the amount of any other fees or expenses
outstanding under the Detroit L/C Facility Agreement (including fees
and expenses of Detroit L/C Agents) and, in each case, Collateral Agent
shall be entitled to rely conclusively upon such information.
(b) New L/C Agent agrees promptly from time to time to (i)
deliver to Collateral Agent a true, correct and complete copy of any
amendment, waiver or modification of or supplement to any New L/C
Facility Documents upon execution and delivery to New L/C Facility
Agent thereof by the relevant parties thereto and (ii) notify
Collateral Agent of: (A) the aggregate amount of principal of and
interest on the New L/C Obligations (including the aggregate New L/C
Usage) as at such date as Collateral Agent may specify, (B) the current
New L/C Commitment under the New L/C Facility Agreement, (C) any
payment received by New L/C Agent to be applied to the principal of or
interest on the Obligations, and (D) the amount of any other fees or
expenses outstanding under the New L/C Facility Agreement (including
fees and expenses of New
Domestic Intercreditor Agreement
30
L/C Agent) and, in each case, Collateral Agent shall be entitled to
rely conclusively upon such information.
(c) The High Yield Trustee agrees promptly from time to time
to (i) deliver to Collateral Agent a true, correct and complete copy of
any amendment, waiver or modification of or supplement to any High
Yield Note or the High Yield Indenture upon execution thereof and (ii)
notify Collateral Agent of: (A) the outstanding principal amount of the
High Yield Notes and the amount of accrued but unpaid interest thereon,
and (B) the amount of any other fees or expenses outstanding under the
High Yield Indenture (including fees and expenses of High Yield
Trustee) at such date as Collateral Agent may specify. The High Yield
Trustee shall, or shall cause the registrar for the High Yield Notes
to, provide a statement of such amount as reflected in the register
maintained for such purpose by the High Yield Trustee or such
registrar, as the case may be, and Collateral Agent shall be entitled
to rely conclusively upon such statement.
SECTION VI
6.1 DISCLAIMERS, SUPPLEMENTAL COLLATERAL AGENT, INDEMNITY,
ETC.
(a) Collateral Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement and the Collateral
Documents and Collateral Agent shall not by reason of this Agreement or
the Collateral Documents be a trustee for any Secured Party or have any
other fiduciary obligation to any Secured Party (including any
obligation under the Trust Indenture Act of 1939, as amended).
Collateral Agent shall not be responsible to any Secured Party for any
recitals, statements, representations or warranties contained in this
Agreement or any other Credit Document or in any certificate or other
document referred to or provided for in, or received by any of them
under, this Agreement or any Credit Document, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Credit Document or any other document
referred to or provided for therein or any Lien under the Collateral
Documents or the perfection or priority of any such Lien or for any
failure by any Loan Party to perform any of its respective obligations
under this Agreement or any other Credit Document. Collateral Agent may
exercise such powers, rights and remedies and perform such duties by or
through its Affiliates, agents or employees.
(b) Neither Collateral Agent nor any of its officers,
directors, employees or agents shall be liable to any Secured Parties
for any action taken or omitted by Collateral Agent under or in
connection with this Agreement or any of the Collateral Documents or
other Credit Documents except to the extent caused by Collateral
Agent's gross negligence or willful misconduct. Collateral Agent shall
be entitled to refrain from any act or the taking of any action
(including the failure to take an action) in connection with this
Agreement or any of the Collateral Documents or other Credit Documents
or from the exercise of any power, discretion or authority vested in it
hereunder or thereunder unless and until Collateral Agent shall have
received instructions in respect thereof from Requisite Obligees (or
such other Secured Parties as may be required to give such instructions
under subsection 2.4(a)) and, upon receipt of such instructions from
Requisite Obligees (or such other Secured Parties, as the case may be),
Collateral Agent
Domestic Intercreditor Agreement
31
shall be entitled to act or (where so instructed) refrain from acting,
or to exercise such power, discretion or authority, in accordance with
such instructions. Without prejudice to the generality of the
foregoing, (i) Collateral Agent shall be entitled to rely, and shall be
fully protected in relying, upon any communication, instrument or
document believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons, and shall be entitled
to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries),
accountants, experts and other professional advisors selected by it;
and (ii) no Secured Party shall have any right of action whatsoever
against an Agent as a result of Collateral Agent acting or (where so
instructed) refraining from acting under this Agreement or any of the
other Collateral Documents or other Credit Documents in accordance with
the instructions of Requisite Obligees (or such other Secured Parties
as may be required to give such instructions under subsection 2.4(a)).
(c) It is the purpose of this Agreement and the Collateral
Documents and other Credit Documents that there shall be no violation
of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or
trustee in such jurisdiction. It is recognized that in case of
litigation under this Agreement or any of the other Collateral
Documents, and in particular in case of the enforcement of any of the
Collateral Documents, or in case Collateral Agent deems that by reason
of any present or future law of any jurisdiction it may not exercise
any of the rights, powers or remedies granted herein or in any of the
Collateral Documents or other Credit Documents or take any other action
which may be desirable or necessary in connection therewith, it may be
necessary that Collateral Agent appoint an additional individual or
institution as a separate trustee, co-trustee, collateral agent or
collateral co-agent (any such additional individual or institution
being referred to herein individually as a "SUPPLEMENTAL COLLATERAL
AGENT" and collectively as "SUPPLEMENTAL COLLATERAL AGENTS").
In the event that Collateral Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every
right, power, privilege or duty expressed or intended by this Agreement
or any of the other Collateral Documents to be exercised by or vested
in or conveyed to Collateral Agent with respect to such Collateral
shall be exercisable by and vest in such Supplemental Collateral Agent
to the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and
privileges with respect to such Collateral and to perform such duties
with respect to such Collateral, and every covenant and obligation
contained in the Collateral Documents and necessary to the exercise or
performance thereof by such Supplemental Collateral Agent shall run to
and be enforceable by either Collateral Agent or such Supplemental
Collateral Agent, and (ii) the provisions of this Agreement that refer
to Collateral Agent shall inure to the benefit of such Supplemental
Collateral Agent and all references herein to Collateral Agent shall be
deemed to be references to Collateral Agent and/or such Supplemental
Collateral Agent, as the context may require.
Should any instrument in writing from any Loan Party be
required by any Supplemental Collateral Agent so appointed by
Collateral Agent for more fully and certainly vesting in and confirming
to him or it such rights, powers, privileges and duties,
Domestic Intercreditor Agreement
32
such Loan Party shall execute, acknowledge and deliver any and all such
instruments promptly upon request by Collateral Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die,
become incapable of acting, resign or be removed, all the rights,
powers, privileges and duties of such Supplemental Collateral Agent, to
the extent permitted by law, shall vest in and be exercised by
Collateral Agent until the appointment of a new Supplemental Collateral
Agent.
(d) Each Detroit L/C Lender and New L/C Lender (other than New
L/C Issuing Lender for so long as New L/C Issuing Lender does not have
any New L/C Aggregate Commitments), ratably in accordance with the
amount of the Secured Obligations of such Detroit L/C Lenders and all
New L/C Lenders, secured by the Collateral Documents, severally agrees
that it shall indemnify Collateral Agent and the officers, directors,
employees, agents, attorneys, professional advisors and affiliates of
Collateral Agent to the extent that any such Person is neither
reimbursed by any Loan Party under any Loan Document nor reimbursed out
of any Proceeds pursuant to clause First of subsection 4.2(a), for and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements and fees and fees and disbursements of
any advisor engaged by Collateral Agent) or disbursements of any kind
and nature whatsoever which may be imposed on, incurred by or asserted
against Collateral Agent or any such Person exercising the powers,
rights and remedies of a Collateral Agent or performing duties of a
Collateral Agent hereunder or under the other Collateral Documents or
in any way relating to or arising out of this Agreement, any Collateral
Document or any other Credit Document or any other documents
contemplated hereby or thereby or referred to therein or the
transactions contemplated hereby or thereby or the enforcement of any
of the terms of any thereof; provided, however, that no Detroit L/C
Lender nor New L/C Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct
of Collateral Agent as determined by a final judgment of a court of
competent jurisdiction. If for any reason a New L/C Lender shall fail
to make any payment to Collateral Agent when due hereunder, then,
without in anyway limiting any right or remedy Collateral Agent may
have against such New L/C Lender with respect thereto, such New L/C
Lender agrees that, as provided in subsection 4.2, deductions from
distributions otherwise due with respect to the New L/C Obligations
will be made so that all New L/C Lenders shall share with the Detroit
L/C Lenders, ratably in accordance with the amount (without
duplication) of such New L/C Obligations secured by the Collateral
Documents, the payment of the amounts due under the preceding sentence.
The High Yield Trustee, on behalf of the holders of the High Yield
Obligations, agrees, by its acceptance of the benefits hereof, that, as
provided in subsection 4.2, deductions from distributions otherwise due
such holders of High Yield Obligations will be made so that such
holders of High Yield Obligations shall share with the Detroit L/C
Lenders and New L/C Lenders, ratably in accordance with the amount
(without duplication) of such High Yield Obligations secured by the
Collateral Documents, the payment of the amounts due under the first
sentence of this subsection 6.1(d). No Detroit L/C Agent nor New L/C
Agent, in their respective capacities as Detroit L/C Agents and New L/C
Agent, shall have any liability to any Party under this subsection
6.1(d).
Domestic Intercreditor Agreement
33
(e) The agency hereby created shall in no way impair or affect
any of the rights and powers of, or impose any duties or obligations
upon, Collateral Agent in its individual capacity as a Detroit L/C
Agent, Detroit L/C Lender, New L/C Lender or High Yield Noteholder, as
the case may be, hereunder or under any Credit Document. With respect
to its participation in the Detroit L/C Obligations, New L/C
Obligations and High Yield Obligations, Collateral Agent shall have the
same rights and powers hereunder as any other Secured Party and may
exercise the same as though it were not performing the duties and
functions delegated to it hereunder. Collateral Agent and its
Affiliates may accept deposits from, lend money to, acquire equity
interests in and generally engage in any kind of commercial banking,
investment banking, trust, financial advisory or other business with
Company or any of its Affiliates as if it were not performing the
duties specified herein, and may accept fees and other consideration
from any Loan Party for services in connection with this Agreement and
otherwise without having to account for the same to Secured Parties.
(f) Collateral Agent may deem and treat the payee of any
promissory note or other evidence of indebtedness relating to the
Secured Obligations as the owner thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof,
signed by such payee and in form satisfactory to Collateral Agent,
shall have been filed with Collateral Agent. Any request, authority or
consent of any Person who at the time of making such request or giving
such authority or consent is the holder of any such note or other
evidence of indebtedness shall be conclusive and binding on any
subsequent holder, transferee or assignee of such note or other
evidence of indebtedness and of any note or notes or other evidences of
indebtedness issued in exchange therefor. Notwithstanding anything to
the contrary contained in the Detroit L/C Facility Documents or the New
L/C Facility Documents, (i) no assignment or transfer of any interest
of any (A) Detroit L/C Lender in the Detroit L/C Exposure or Detroit
L/Cs (including pursuant to any refinancing, restatement, replacement
or extension of the Detroit L/C Facility Agreement not prohibited
hereunder), and (B) no transfer of any interest of any New L/C Lender
in the New L/C Aggregate Exposure or the New L/Cs (including pursuant
to any refinancing, restatement, replacement or extension of the New
L/C Facility Agreement not prohibited hereunder) and (ii) no
appointment (A) of any successor Detroit L/C Facility Agent or Detroit
L/C Document Agent under the Detroit L/C Facility Agreement (including
pursuant to any refinancing, restatement, replacement or extension of
the Detroit L/C Facility Agreement not prohibited hereunder), (B) any
successor New L/C Agent under the New L/C Facility Agreement (including
pursuant to any refinancing, restatement, replacement or extension of
the New L/C Facility Agreement not prohibited hereunder); or (C) any
successor High Yield Trustee pursuant to the High Yield Indenture may
in any case be made unless such successor, transferee, assignee or any
Person who became a lender pursuant to a refinancing, restatement,
replacement or extension of the Detroit L/C Facility Agreement, New L/C
Facility Agreement, or High Yield Indenture, as the case may be,
executes an Assumption Agreement in the form of Annex 1 hereto shall be
made unless the transferee executes an Assumption Agreement in the form
of Annex 1 hereto.
(g) Except as expressly provided herein and in the Collateral
Documents, Collateral Agent shall have no duty to take any affirmative
steps with respect to the
Domestic Intercreditor Agreement
34
collection of amounts payable in respect of the Collateral. Collateral
Agent shall incur no liability to any Secured Party as a result of any
sale of any Collateral at any private sale.
(h) Collateral Agent may resign at any time by giving at least
30 days' notice thereof to the Parties and Collateral Agent may be
removed as Collateral Agent at any time by Requisite Obligees. In the
event of such resignation or removal of Collateral Agent, Requisite
Obligees shall thereupon have the right to appoint a successor
Collateral Agent. If no successor Collateral Agent shall have been so
appointed by Requisite Obligees within 30 days after the resigning
Collateral Agent's giving notice of its intention to resign, then the
resigning Collateral Agent may appoint, on behalf of Secured Parties, a
successor Collateral Agent and Company hereby agrees to pay to such
successor Collateral Agent, in addition to any other amounts payable to
Collateral Agent hereunder and under the Collateral Documents, such
reasonable annual fees in such amounts and at such times as may be
requested by such successor Collateral Agent.
(i) Upon the acceptance of any appointment as Collateral Agent
hereunder by a successor Collateral Agent, such successor Collateral
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed Collateral
Agent under this Agreement and under the Collateral Documents. After
any retiring or removed Collateral Agent's resignation or removal
hereunder as Collateral Agent, the provisions of this subsection 6.1
shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Collateral
Agent.
(j) In no event shall Collateral Agent or any Secured Party be
liable or responsible for any funds or investments of funds held by any
Loan Party.
(k) Upon the proposed sale or other disposition of any
Collateral that is permitted by the Facility Agreements and not
prohibited by subsection 2.4(a) or to which Requisite Obligees have
otherwise consented pursuant to an Enforcement Action, for which a Loan
Party desires to obtain a security interest release from Collateral
Agent, such Loan Party shall deliver an Officer's Certificate to
Collateral Agent, Detroit L/C Agent and New L/C Agent (i) stating that
the Collateral or the Capital Stock subject to such disposition is
being sold or otherwise disposed of in compliance with the terms hereof
and of the Facility Agreements and (ii) specifying the Collateral or
Capital Stock being sold or otherwise disposed of in the proposed
transaction. Upon the receipt of such Officer's Certificate, Collateral
Agent shall, at Loan Parties' (other than DHC's), joint and several
expense, so long as Senior Agent has not informed Collateral Agent that
it (a) has reason to believe that the facts stated in such Officer's
Certificate are not true and correct and (b) if the sale or other
disposition of such item of Collateral or Capital Stock constitutes an
Asset Sale (as defined in each Facility Agreement), has not received
evidence satisfactory to it that arrangements satisfactory to it have
been made for delivery of the Net Asset Sale Proceeds (as defined in
each Facility Agreement) if and as required by subsection 2.3 of the
respective Facility Agreement, execute and deliver such releases of its
security interest in such Collateral as may be reasonably requested by
such Loan Party. In the event of any conflict or inconsistency between
this subsection 6.1(k) and the terms of any other Credit Document, the
terms of this Agreement shall prevail.
Domestic Intercreditor Agreement
35
(l) Concurrently with any Subsidiary of Company becoming
Additional Detroit L/C Borrower or Additional New L/C Borrower, such
Subsidiary shall execute and deliver to Collateral Agent a counterpart
to this Agreement in the form attached hereto as Annex 2
("COUNTERPART"). Upon delivery of any such Counterpart to Collateral
Agent, each such Additional Detroit L/C Borrower or Additional New L/C
Borrower shall be a Detroit L/C Borrower or New L/C Borrower, as
applicable, and shall be as fully a party hereto as if such Additional
Detroit L/C Borrower or Additional New L/C Borrower were an original
signatory hereto. Each Borrower expressly agrees that its obligations
arising hereunder shall not be affected or diminished by the addition
or release of any other Borrower hereunder, nor by any election of
Collateral Agent or Secured Party not to cause any Subsidiary of
Company to become an Additional Detroit L/C Borrower or Additional New
L/C Borrower, as applicable, hereunder. This Agreement shall be fully
effective as to any Borrower that is or becomes a party hereto
regardless of whether any other Person becomes or fails to become or
ceases to be a Borrower hereunder.
SECTION VII
7.1 MISCELLANEOUS.
(a) All notices and other communications provided for herein
shall be in writing and may be personally served, or sent by
telefacsimile or United States mail or courier service or electronic
mail (as further provided in this clause (a)) and shall be deemed to
have been given (i) when delivered in person or by courier service,
(ii) upon receipt of telefacsimile in complete and legible form, (iii)
three Business Days after deposit in the United States mail with
postage prepaid and properly addressed, or (iv) in the case of
electronic mail to the extent provided in this clause (a); provided
that notices to Collateral Agent shall not be effective until received.
For the purposes hereof, the addresses of the parties hereto (until
notice of a change thereof is delivered as provided in this subsection
7.1(a)) shall be as set forth under each party's name on the signature
pages (including acknowledgments) hereof. Notices and other
communications to the Lenders, Detroit L/C Agents and New L/C Agent
hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to
procedures approved by Collateral Agent. Collateral Agent or any
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures
may be limited to particular notices or communications.
(b) No amendment, modification, termination or waiver of any
provision of this Agreement, and no consent to any departure by any
Party therefrom, shall in any event be effective without the written
concurrence of Requisite Detroit L/C Lenders and Requisite New L/C
Lenders; provided that (i) no such amendment, modification, termination
or waiver shall, without the consent of each Lender with Secured
Obligations directly affected thereby, amend,
Domestic Intercreditor Agreement
36
modify, terminate or waive, or have the effect of amending, modifying,
terminating or waiving, the definition of "Requisite Obligees", (ii) no
such amendment, modification, termination or waiver shall, without the
consent of each Lender and Agent with Secured Obligations directly
affected thereby, amend, modify, terminate or waive, or have the effect
of amending, modifying, terminating or waiving (A) subsection 3.1 or
4.2 or this subsection 7.1(a), or (B) any other provision of this
Agreement in a manner that would impose any additional material
obligations on any Lender or Agent or prejudice any material rights or
remedies of such Lender or Agent, (iii) no amendment, modification,
termination or waiver of any provision of subsection 2.1 or 2.2 or
Section 5 or 6 or of any other provision of this Agreement which, by
its terms, expressly requires the approval or concurrence of Collateral
Agent shall be effective without the written concurrence of Collateral
Agent; or (iv) no such amendment, modification, termination or waiver
of this Agreement shall materially increase or materially adversely
affect obligations of any Loan Party or adversely affect any rights of
Loan Party under the other Credit Documents in each case without such
loan party's prior consent; provided, further, that no amendment,
modification, termination or waiver shall (1) reduce or otherwise
adversely affect the right of the High Yield Trustee to request or
direct Collateral Agent to take action on the terms set forth in
subsection 2.1(a), or (2) subordinate in right of payment the High
Yield Obligations, or (3) modify or otherwise alter in any manner
adverse to the holders of the High Yield Notes the priority of such
holders' Lien in the Collateral as provided in subsection 3.1 as in
effect on the date hereof or the right of such holders to receive
Proceeds in the amount and order of priority and under the
circumstances described in subsections 4.1(a) and 4.2(a), as in effect
on the date hereof. To the extent (if any) the provisions of this
Agreement are inconsistent with the provisions set forth in any
Facility Agreement or the High Yield Indenture in any particular
circumstance, then the provisions set forth in this Agreement shall
prevail to the extent necessary to eliminate or avoid such
inconsistency in such circumstance.
(c) Subject to the provisions of subsection 6.1(f), this
Agreement shall be binding upon and inure to the benefit of Collateral
Agent, each other Party and each Secured Party and their respective
successors and assigns, including, subject to compliance with the
provisions of subsection 6.1(f), successors to Detroit L/C Agents, New
L/C Agent and any Lenders and High Yield Trustee under the Detroit L/C
Facility Agreement, New L/C Facility, and High Yield Indenture, as
applicable.
(d) This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this
Agreement by signing any such counterpart.
(e) This Agreement shall become effective on the Closing Date
and upon the execution of this Agreement by each Loan Party, New L/C
Lender and Detroit L/C Lender and New L/C Agent, Detroit L/C Agents,
High Yield Trustee and Collateral Agent.
(f) The Collateral Agent may deem and treat the Secured
Parties executing and delivering this Agreement and the High Yield
Noteholders as the "Secured Parties" for all purposes hereof unless and
until a notice of the assignment or transfer of any interest held by
such Party shall have been filed with the Collateral Agent in
accordance with subsection 6.1(f). The Company agrees that it will
advise the Collateral Agent of any transfer by any Creditor Party of
any Detroit L/C Exposure or New L/C Aggregate
Domestic Intercreditor Agreement
37
Exposure held by such Creditor Party and will, from time to time upon
request of the Collateral Agent, deliver a list to the Collateral Agent
(which shall be distributed by the Collateral Agent to each Creditor
Party) setting forth, for the Detroit L/C Exposure and New L/C
Aggregate Exposure, the unpaid principal amount (or outstanding undrawn
letters of credit with respect thereto) and holder thereof. The
Collateral Agent may rely on such list unless, after the distribution
thereof, the Collateral Agent is notified by a Secured Party that such
information as set forth on such list is inaccurate.
(g) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY OF THE
PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
PARTIES IRREVOCABLY (I) ACCEPTS FOR ITSELF, IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, (II) WAIVES ANY DEFENSE OF FORUM
NON CONVENIENS, (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, TO SUCH PARTY HERETO AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SUBSECTION 7.1(a) HEREOF, (IV) AGREES THAT
SERVICE OF PROCESS AS PROVIDED IN CLAUSE (III) IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER SUCH PERSON IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT, (V) AGREES THAT THE PARTIES HERETO RETAIN THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
PROCEEDINGS AGAINST SUCH PARTY IN THE COURTS OF ANY OTHER JURISDICTION,
AND (VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 7.1(g) RELATING
TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE
FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1402 OR OTHERWISE.
(h) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THE INTERCREDITOR
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this
transaction, including contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. Each party
hereto acknowledges that this waiver is a material inducement to enter
into a business relationship, that each has already relied on the
waiver in entering into this Agreement, and that each will continue to
rely on the waiver in their related future dealings. Each party hereto
further warrants and represents that each has reviewed this waiver with
its legal counsel, and that each knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel. THIS
Domestic Intercreditor Agreement
38
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, REPLACEMENTS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT. In the event of litigation, this Agreement may be filed
as a written consent to a trial by the court.
(i) NO CLAIM MAY BE MADE BY ANY SECURED PARTY OR ANY OF THEIR
RESPECTIVE AFFILIATES, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, OR
ATTORNEYS AGAINST ANY OTHER SECURED PARTY OR THEIR RESPECTIVE
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, OR ATTORNEYS FOR ANY
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES IN RESPECT OF ANY BREACH OR
WRONGFUL CONDUCT (WHETHER THE CLAIM THEREFOR IS BASED ON CONTRACT, TORT
OR DUTY IMPOSED BY LAW) IN CONNECTION WITH, ARISING OUT OF OR IN ANY
WAY RELATED TO THE TRANSACTIONS CONTEMPLATED AND RELATIONSHIP
ESTABLISHED BY THIS AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING
IN CONNECTION THEREWITH; AND EACH SECURED PARTY HEREBY WAIVES, RELEASES
AND AGREES NOT TO ▇▇▇ UPON ANY SUCH CLAIM FOR ANY SUCH DAMAGES, WHETHER
OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS
FAVOR.
(j) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER OR ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF
ANOTHER LAW.
(k) All undertakings and agreements contained in this
Agreement are solely for the benefit of the Secured Parties and there
are no other Persons (other than Loan Parties to the extent expressly
provided herein) who are intended to be benefited in any way by this
Agreement. Each Loan Party agrees that no Secured Party shall have any
liability to any of the Loan Parties for performing its obligations and
responsibilities under this Agreement with respect to the other Secured
Parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Domestic Intercreditor Agreement
39
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
LOAN PARTIES:
COVANTA ENERGY CORPORATION
By: _______________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Officer
Notice Address:
c/o Covanta Energy Corporation
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
EACH OF THE ENTITIES NAMED ON SCHEDULE A ANNEXED
HERETO, AS DETROIT L/C BORROWERS, NEW L/C
BORROWERS AND HIGH YIELD GUARANTORS
By: ____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Authorized Officer
Notice Address:
c/o Covanta Energy Corporation
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Domestic Intercreditor Agreement
Schedule A
1. AMOR 14 Corporation
2. ▇▇▇▇▇▇ Mountain Power
3. Covanta Acquisition, Inc.
4. Covanta Alexandria/Arlington, Inc.
5. Covanta Bessemer, Inc.
6. Covanta Bristol, Inc.
7. Covanta ▇▇▇▇▇▇▇▇▇▇ Environmental Support, Inc.
8. Covanta Energy Americas, Inc.
9. Covanta Energy Construction, Inc.
10. Covanta Energy Group, Inc.
11. Covanta Energy International, Inc.
12. Covanta Energy Resource Corp.
13. Covanta Energy Services, Inc.
14. Covanta Energy West, Inc.
15. Covanta Engineering Services, Inc.
16. Covanta Fairfax, Inc.
17. Covanta Geothermal Operations Holdings, Inc.
18. Covanta Geothermal Operations, Inc.
19. Covanta Haverhill Properties, Inc.
20. Covanta Haverhill, Inc.
21. Covanta Heber Field Energy, Inc.
22. Covanta Hennepin Energy Resource Co., Limited Partnership
23. Covanta Hillsborough, Inc.
24. Covanta Honolulu Resource Recovery Venture
25. Covanta Huntsville, Inc.
26. Covanta Hydro Energy, Inc.
27. Covanta Hydro Operations West, Inc.
28. Covanta Hydro Operations, Inc.
29. Covanta Imperial Power Services, Inc.
30. Covanta Indianapolis, Inc.
31. Covanta Kent, Inc.
32. Covanta Lancaster, Inc.
33. Covanta ▇▇▇, Inc.
34. Covanta Long Island, Inc.
35. Covanta ▇▇▇▇▇▇ Land Corp.
36. Covanta ▇▇▇▇▇▇, Inc.
37. Covanta Mid-Conn., Inc.
38. Covanta ▇▇▇▇▇▇▇▇▇▇, Inc.
39. Covanta New Martinsville Hydroelectric Corporation
40. Covanta New Martinsville Hydro-Operations Corporation
41. Covanta Oahu Waste Energy Recovery, Inc.
42. Covanta Omega Lease, Inc.
43. Covanta Onondaga Operations, Inc.
44. Covanta Operations of Union, LLC
Domestic Intercreditor Agreement
45. Covanta OPW Associates, Inc.
46. Covanta OPWH, Inc.
47. Covanta Pasco, Inc.
48. Covanta Plant Services of New Jersey, Inc.
49. Covanta Power Equity Corporation
50. Covanta Power Pacific, Inc.
51. Covanta Power Plant Operations
52. Covanta Projects of Hawaii, Inc.
53. Covanta Projects, Inc.
54. Covanta RRS Holdings, Inc.
55. Covanta Secure Services, Inc.
56. Covanta SIGC Energy, Inc.
57. Covanta SIGC Energy II, Inc.
58. Covanta SIGC Geothermal Operations, Inc.
59. Covanta Stanislaus, Inc.
60. Covanta Systems, LLC
61. Covanta Wallingford Associates, Inc.
62. Covanta Waste to Energy , LLC
63. Covanta Water Holdings, Inc.
64. Covanta Water Systems, Inc.
65. Covanta Water Treatment Services, Inc.
66. DSS Environmental, Inc.
67. ERC Energy II, Inc.
68. ERC Energy, Inc.
69. Haverhill Power, LLC
70. Heber Field Energy II, Inc.
71. Heber Loan Partners
72. LMI, Inc.
73. Mammoth Geothermal Company
74. Mammoth Power Company
75. Michigan Waste Energy, Inc.
76. Mt. Lassen Power
77. Pacific Geothermal Company
78. Pacific Oroville Power, Inc.
79. Pacific Wood Fuels Company
80. Pacific Wood Services Company
81. Three Mountain Operations, Inc.
82. Three Mountain Power, LLC
Domestic Intercreditor Agreement
MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT BENEFICIARIES:
COVANTA ENERGY CORPORATION
By: __________________________________________
Name:
Title:
Notice Address:
c/o Covanta Energy Group, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
EACH OF THE ENTITIES NAMED ON SCHEDULE B ANNEXED
HERETO, AS MANAGEMENT SERVICES AND REIMBURSEMENT
AGREEMENT BENEFICIARIES
By: ___________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Authorized Officer
Notice Address for each Management
Services Agreement Beneficiary:
c/o Covanta Energy Group, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Domestic Intercreditor Agreement
Schedule B
1. Covanta Energy Group, Inc.
2. Covanta Projects, Inc.
Domestic Intercreditor Agreement
▇▇▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇▇▇ HOLDING CORPORATION
By: __________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
Notice Address:
▇▇▇▇▇▇▇▇▇ Holding Corporation
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Intercreditor Agreement
AGENTS AND LENDERS:
BANK OF AMERICA, N.A.,
as Collateral Agent and Detroit L/C Facility Agent
By: ______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇
Title: Managing Director
Notice Address:
Bank of America, N.A., as Administrative Agent
555 So. Flower Street, 17th Floor
CA9-706-17-54
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Vice President
Voice: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
BANK OF AMERICA, N.A.,
as Cash Management Bank
By: ______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇
Title: Managing Director
Notice Address:
Domestic Intercreditor Agreement
DEUTSCHE BANK SECURITIES, INC.,
as Detroit L/C Documentation Agent
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
Notice Address:
Attention:
Deutsche Bank Securities, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Domestic Intercreditor Agreement
BANK ONE, NA,
as New L/C Agent and a New L/C Lender
By: ______________________________________________
Name:
Title:
Notice Address:
Domestic Intercreditor Agreement
SZ INVESTMENTS, L.L.C.,
as a New L/C Lender
By: ________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Domestic Intercreditor Agreement
THIRD AVENUE TRUST, ON BEHALF OF THIRD AVENUE
VALUE FUND SERIES,
as a New L/C Lender
By: ________________________________________
Name:
Title:
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to Pillsbury Winthrop LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Intercreditor Agreement
D.E. SHAW LAMINAR PORTFOLIOS, L.L.C.,
as a New L/C Lender
By: ______________________________________________
Name:
Title:
Notice Address:
Domestic Intercreditor Agreement
BANC OF AMERICA SECURITIES LLC,
as Agent for BANK OF AMERICA, N.A., as a Detroit
L/C Lender
By: ______________________________________________
Name:
Title:
Domestic Intercreditor Agreement
BAYERISCHE HYPO-UND VEREINSBANK AG,
as a Detroit L/C Lender
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
Domestic Intercreditor Agreement
BEAR ▇▇▇▇▇▇▇ & CO. INC.,
as a Detroit L/C Lender
By: ______________________________________________
Name:
Title:
Domestic Intercreditor Agreement
DEUTSCHE BANK AG, NEW YORK BRANCH,
as a Detroit L/C Lender
By: ______________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
By: ______________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Domestic Intercreditor Agreement
IIB BANK LIMITED,
as a Detroit L/C Lender
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
Domestic Intercreditor Agreement
KBC BANK,
as a Detroit L/C Lender
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
Notice Address:
Attention: ▇▇▇▇ ▇▇▇▇▇
KBC Bank NV, New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Intercreditor Agreement
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as a Detroit L/C Lender
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Domestic Intercreditor Agreement
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇, INCORPORATED,
as a Detroit L/C Lender
By: ______________________________________________
Name:
Title:
Domestic Intercreditor Agreement
THE BANK OF NEW YORK,
as a Detroit L/C Lender
By: ______________________________________________
Name:
Title:
Domestic Intercreditor Agreement
UBS AG, STAMFORD BRANCH,
as issuer of Detroit L/Cs
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
Domestic Intercreditor Agreement
UBS LOAN FINANCE LLC,
as a Detroit L/C Lender
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
Domestic Intercreditor Agreement
U.S. BANK NATIONAL ASSOCIATION
(FORMERLY KNOWN AS FIRSTAR BANK, N.A.),
as a Detroit L/C Lender
By: ______________________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Domestic Intercreditor Agreement
WESTLB AG (FORMERLY KNOWN AS WESTDEUTSCHE
LANDESBANK GIROZENTRALE), NEW YORK BRANCH,
as a Detroit L/C Lender
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
Domestic Intercreditor Agreement
HIGH YIELD TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: ______________________________________________
Name:
Title:
Notice Address:
Domestic Intercreditor Agreement
Annex 1 to
Intercreditor Agreement
ASSUMPTION AGREEMENT, dated as of __________, 200_, made by
_________________ (the "ADDITIONAL SECURED PARTY").
W I T N E S S E T H :
WHEREAS, Covanta Energy Corporation ("COVANTA") and the
Subsidiaries of Covanta listed on the signature pages thereof (together with any
other borrowers that subsequently become party thereto); certain entities listed
on the signature pages thereof as New L/C Lenders ("NEW L/C LENDERS"); certain
financial institutions listed on the signature pages thereof as Detroit L/C
Lenders ("DETROIT L/C LENDERS"); Bank of America, N.A., as administrative agent
for Detroit L/C Lenders and as collateral agent, and Deutsche Bank Securities,
Inc., as documentation agent for and Detroit L/C Lenders, Bank One, NA, as
administrative agent for the New L/C Lenders, ▇▇▇▇▇▇▇▇▇ Holding Corporation, the
companies listed on the signature pages thereof as Management Services and
Reimbursement Agreement Beneficiaries and U.S. Bank National Association, in its
capacity as trustee under the High Yield Indenture are parties to that certain
Intercreditor Agreement dated as of March 10, 2004 (as amended, supplemented or
otherwise modified from time to time, the "INTERCREDITOR AGREEMENT");
WHEREAS, the Loan Parties have executed the Collateral
Documents pursuant to which the Loan Parties party to each such document have
granted to the Collateral Agent, for the benefit of the Secured Parties, a
security interest in the Collateral to secure their respective obligations
arising in connection with the Credit Document;
WHEREAS, subsection 6.1(f) of the Intercreditor Agreement
requires the Additional Secured Party to become a party to the Intercreditor
Agreement; and
WHEREAS, the Additional Secured Party has agreed to execute
and deliver this Assumption Agreement in order to become a party to the
Intercreditor Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Defined Terms. Unless otherwise defined herein, terms
defined in the Intercreditor Agreement and used herein shall have the meanings
given to them in the Intercreditor Agreement.
2. Intercreditor Agreement. By executing and delivering this
Assumption Agreement, the Additional Secured Party hereby becomes a party to the
Intercreditor Agreement as [New L/C Agent] [Detroit L/C Facility Agent] [Detroit
L/C Documentation Agent] [High Yield Trustee] [a Detroit L/C Lender] [a New L/C
Lender] and Secured Party thereunder with the same force and effect as if
originally named therein as [New L/C Agent] [Detroit L/C Facility Agent]
[Detroit L/C Documentation Agent] [High Yield Trustee] [a Detroit L/C Lender]
Domestic Intercreditor Agreement
A-1-1
[a New L/C Lender] and Secured Party and, without limiting the generality of the
foregoing, hereby expressly assumes all obligations and liabilities of [New L/C
Agent] [Detroit L/C Facility Agent] [Detroit L/C Documentation Agent] [High
Yield Trustee] [a Detroit L/C Lender] [a New L/C Lender] and a Secured Party
thereunder and agrees to be bound by the terms thereof.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL SECURED PARTY]
By: ______________________________________________
Name:
Title:
Domestic Intercreditor Agreement
A-1-2
Annex 2 to
Intercreditor Agreement v1
COUNTERPART
COUNTERPART (this "COUNTERPART"), dated as of _______, is delivered
pursuant to subsection 6.1(l) of the Intercreditor Agreement referred to below.
The undersigned hereby agrees that this Counterpart may be attached to the
Intercreditor Agreement, dated as of March 10, 2004 (said Intercreditor
Agreement, as it may heretofore have been and as it may hereafter be further
amended, restated, supplemented or otherwise modified from time to time being
the "INTERCREDITOR AGREEMENT"; capitalized terms used herein not otherwise
defined herein shall have the meanings ascribed therein), among Covanta Energy
Corporation ("COVANTA") and the subsidiaries of Covanta listed on the signature
pages thereof (together with any other borrowers that subsequently become party
thereto); certain entities listed on the signature pages thereof as New L/C
Lenders ("NEW L/C LENDERS"); certain financial institutions listed on the
signature pages thereof as Detroit L/C Lenders ("DETROIT L/C LENDERS"); Bank of
America, N.A., as administrative agent for Detroit L/C Lenders and as collateral
agent, and Deutsche Bank Securities, Inc., as documentation agent for Detroit
L/C Lenders, Bank One, NA, as administrative agent for the New L/C Lenders,
▇▇▇▇▇▇▇▇▇ Holding Corporation, the companies listed on the signature pages
thereof as Management Services and Reimbursement Agreement Beneficiaries and
U.S. Bank National Association, in its capacity as trustee under the High Yield
Indenture. The undersigned by executing and delivering this Counterpart hereby
becomes a [New L/C Borrower][Detroit L/C Borrower] under the Intercreditor
Agreement in accordance with subsection 6.1(l) thereof and agrees to be bound by
all of the terms thereof.
[NAME OF ADDITIONAL DETROIT L/C BORROWER/NEW
L/C BORROWER]
By: ______________________________________________
Name:
Title:
Domestic Intercreditor Agreement
A-2-1