Exhibit 10.4
July 10, 2009
Bank of America, N.A., as Collateral Agent
Mail Code: TX1-492-14-11
901 Main Street
Dallas, Texas 75202
Attention: Ronaldo Naval
Mail Code: TX1-492-14-11
901 Main Street
Dallas, Texas 75202
Attention: Ronaldo Naval
Re: | Intercreditor and Collateral Agency Agreement, dated as of September 10, 2008 among Bank of America, N.A., as Collateral Agent, Bank of America, N.A., as Administrative Agent on behalf of the Lenders, the Noteholders party thereto and the Term Loan Lender party thereto (the “Intercreditor Agreement”; capitalized terms used in this letter and not defined herein shall have the meaning given to them in the Intercreditor Agreement) |
Gentlemen:
This letter is given to you pursuant to Section 5.7 of the Intercreditor Agreement and evidences the consent of the undersigned Creditors for the Collateral Agent to release the Collateral Agent’s security interest in all assets of certain Subsidiaries of the Borrower and any equity interests owned by the Borrower or other Debtors in such Subsidiaries in connection with the sale of such assets and equity interests upon the sale of such assets as previously disclosed to the Creditors in the Company’s Second Quarter 2009 Update to the Lenders and Noteholders dated June 15, 2009 and June 19, 2009, respectively, and in connection with proposed amendments to the Bank Credit Agreement, the Note Agreements and the Term Loan Agreement to be dated on or about the date of this letter.
Sincerely yours, | ||||||
BANK OF AMERICA, N.A., as Administrative Agent | ||||||
Bartenstein, Irene Bertozzi [irene.bertozzi.bartenstein@bankofamerica.com] | ||||||
By: | /s/ Irene Bertozzi Bartenstein | |||||
Name: Irene Bertozzi Bartenstein | ||||||
Title: SVP | ||||||
BANK OF AMERICA, N.A. | ||||||
By: | /s/ Irene Bertozzi Bartenstein | |||||
Name: Irene Bertozzi Bartenstein | ||||||
Title: SVP |
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. | ||||||
By: | /s/ Victor Pierzchalski | |||||
Name: Victor Pierzchalski | ||||||
Title: Authorized Signatory | ||||||
KEYBANK, NATIONAL ASSOCIATION | ||||||
By: | /s/ Brian P. Fox | |||||
Name: Brian P. Fox | ||||||
Title: Vice President | ||||||
NATIONAL CITY BANK OF PENNSYLVANIA | ||||||
By: | /s/ Thomas S. Sherman | |||||
Name: Thomas S. Sherman | ||||||
Title: SVP |
CALYON NEW YORK BRANCH, in its capacity as a Lender and the Term Loan Lender | ||||||
By: | /s/ Joseph Philbin | |||||
Title: Director | ||||||
By: | /s/ Blake Wright | |||||
Name: Blake Wright | ||||||
Title: Managing Director | ||||||
SUNTRUST BANK | ||||||
By: | /s/ Robert M. Sander | |||||
Name: Robert M. Sander | ||||||
Title: Vice President |
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FIFTH THIRD BANK | ||||||
By: | /s/ Robert M. Sander | |||||
Title: Vice President | ||||||
COMERICA BANK | ||||||
By: | /s/ Mark J. Leveille | |||||
Title: Vice President Comerica Bank | ||||||
METROPOLITAN LIFE INSURANCE COMPANY | ||||||
METLIFE INSURANCE COMPANY OF CONNECTICUT | ||||||
By: | METROPOLITAN LIFE INSURANCE COMPANY, ITS INVESTMENT MANAGER | |||||
By: | /s/ Judith A. Gulotta | |||||
Title: Managing Director | ||||||
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA | ||||||
By: | /s/ Roi G. Chandy | |||||
Title: Director | ||||||
AXA EQUITABLE LIFE INSURANCE COMPANY | ||||||
By: | /s/ Amy Judd | |||||
Title: Investment Officer |
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MONY LIFE INSURANCE COMPANY | ||||||
By: | /s/ Amy Judd | |||||
Name: Amy Judd | ||||||
Title: Investment Officer | ||||||
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY | ||||||
By: | AIG Global Investment Corp., investment advisor | |||||
By: | /s/ Victoria Y. Chin | |||||
Name: Victoria Y. Chin | ||||||
Title: Vice President | ||||||
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA | ||||||
By: | /s/ Thomas M. Donohue | |||||
Name: Thomas M. Donohue | ||||||
Title: Managing Director | ||||||
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY | ||||||
By: | Babson Capital Management LLC as Investment Adviser | |||||
By: | /s/ Emeka O. Onukwugha | |||||
Name: Emeka O. Onukwugha | ||||||
Title: Managing Director |
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C.M. LIFE INSURANCE COMPANY | ||||||
By: | Babson Capital Management LLC as Investment Adviser | |||||
By: | /s/ Emeka O. Onukwugha | |||||
Name: Emeka O. Onukwugha | ||||||
Title: Managing Director | ||||||
PRIMERICA LIFE INSURANCE COMPANY | ||||||
By: | Conning Asset Management Company, as Investment Manager | |||||
By: | /s/ Samuel Otchere | |||||
Name: Samuel Otchere | ||||||
Title: Vice President | ||||||
CUNA MUTUAL INSURANCE SOCIETY | ||||||
By: | MEMBERS Capital Advisors, Inc., acting as Investment Advisor | |||||
By: | /s/ John W. Petchler | |||||
Name: John W. Petchler | ||||||
Title: Managing Director, Private Placements | ||||||
CUMIS INSURANCE SOCIETY, INC. | ||||||
By: | MEMBERS Capital Advisors, Inc., acting as Investment Advisor | |||||
By: | /s/ John W. Petchler | |||||
Name: John W. Petchler | ||||||
Title: Managing Director, Private Placements |
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THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY | ||||||
By: | /s/ Richard A Strait | |||||
Name: Richard A Strait | ||||||
Title: Its Authorized Representative | ||||||
DEUTSCHE BANK TRUST COMPANY AMERICAS | ||||||
By: | /s/ Erin Morrissey | |||||
Name: Erin Morrissey | ||||||
Title: Vice President | ||||||
By: | /s/ Evelyn Thierry | |||||
Name: Evelyn Thierry | ||||||
Title: Vice President |
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