ex10-4.htm


    Exhibit
10.4


    
      EXECUTION
VERSION



    
      


       

        
          

        

      

      


    

    DEPOSITARY
AGREEMENT

     

    Dated
as of May 12, 2009

     

    among

     

    HLI
OPERATING COMPANY, INC.,

    


    HAYES
LEMMERZ FINANCE LLC – LUXEMBOURG S.C.A.,

    


    DEUTSCHE
BANK AG NEW YORK BRANCH,

    as
DIP Administrative Agent

    


    


    and

    


    


    DEUTSCHE
BANK TRUST COMPANY AMERICAS,

    as
Depositary

    


     

    


     

    


     

      
        

      

    

    
      


       

      


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     



    Table
of Contents

     

    
      
        	 
      	
                Page

              
	 
      	 
      
	
                ARTICLE
      I DEFINITIONS

              	
                2

              
	
                    
      Section 1.1

              	
                Capitalized
      Terms

              	
                2

              
	
                    
      Section 1.2

              	
                Construction

              	
                2

              
	
                    
      Section 1.3

              	
                Definitions

              	
                2

              
	
                    
      Section 1.4

              	
                Uniform
      Commercial Code

              	
                5

              
	 
      	 
      	 
      
	
                ARTICLE II
      THE DEPOSITARY; ESTABLISHMENT OF COLLATERAL ACCOUNTS

              	
                5

              
	
                    
      Section 2.1

              	
                The
      Depositary

              	
                5

              
	
                    
      Section 2.2

              	
                Establishment
      of Collateral Accounts

              	
                5

              
	
                    
      Section 2.3

              	
                Security
      Interests

              	
                6

              
	
                    
      Section 2.4

              	
                Collateral
      Accounts Maintained as UCC “Securities Accounts”

              	
                6

              
	
                    
      Section 2.5

              	
                Jurisdiction
      of Depositary

              	
                7

              
	
                    
      Section 2.6

              	
                Degree
      of Care; Liens

              	
                7

              
	
                    
      Section 2.7

              	
                Subordination
      of Lien; Waiver of Set-Off

              	
                7

              
	
                    
      Section 2.8

              	
                No
      Other Agreements

              	
                7

              
	
                    
      Section 2.9

              	
                Notice
      of Adverse Claims

              	
                8

              
	
                    
      Section 2.10

              	
                Rights
      and Powers of the DIP Administrative Agent

              	
                8

              
	
                    
      Section 2.11

              	
                Termination

              	
                8

              
	 
      	 
      	 
      
	
                ARTICLE
      III THE COLLATERAL ACCOUNTS

              	
                8

              
	
                    
      Section 3.1

              	
                The
      Collateral Accounts

              	
                8

              
	
                    
      Section 3.2

              	
                U.S.
      Borrower Dollar Collateral Account

              	
                8

              
	
                    
      Section 3.3

              	
                Luxembourg
      Borrower Dollar Collateral Account

              	
                9

              
	
                    
      Section 3.4

              	
                Luxembourg
      Borrower Euro Collateral Account

              	
                10

              
	
                    
      Section 3.5

              	
                Permitted
      Investments

              	
                11

              
	
                    
      Section 3.6

              	
                Disposition
      of Collateral Accounts Upon the Debt Termination Date

              	
                11

              
	
                    
      Section 3.7

              	
                Collateral
      Account Balance Statements

              	
                12

              
	
                    
      Section 3.8

              	
                Default
      Events and DIP Loan Maturity Date

              	
                12

              
	 
      	 
      	 
      
	
                ARTICLE
      IV DEPOSITARY

              	
                12

              
	
                    
      Section 4.1

              	
                Powers
      and Immunities

              	
                12

              
	
                    
      Section 4.2

              	
                Reliance
      by Depositary

              	
                13

              
	
                    
      Section 4.3

              	
                Court
      Orders

              	
                13

              
	
                    
      Section 4.4

              	
                Resignation
      or Removal

              	
                13

              
	 
      	 
      	 
      
	
                ARTICLE
      V EXPENSES; INDEMNIFICATION; FEES

              	
                14

              
	
                    
      Section 5.1

              	
                Expenses

              	
                14

              
	
                    
      Section 5.2

              	
                Indemnification

              	
                14

              
	
                    
      Section 5.3

              	
                Fees

              	
                14

              


      

    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    Table
of Contents

    (continued)

     

    
      
        	 	 	
                 Page

              
	 
      	 
      	 
      
	
                ARTICLE
      VI MISCELLANEOUS

              	
                15

              
	
                    
      Section 6.1

              	
                Amendments;
      Etc.

              	
                15

              
	
                    
      Section 6.2

              	
                Addresses
      for Notices

              	
                15

              
	
                    
      Section 6.3

              	
                Governing
      Law

              	
                16

              
	
                    
      Section 6.4

              	
                Headings

              	
                16

              
	
                    
      Section 6.5

              	
                No
      Third Party Beneficiaries

              	
                16

              
	
                    
      Section 6.6

              	
                No
      Waiver

              	
                16

              
	
                    
      Section 6.7

              	
                Severability

              	
                16

              
	
                    
      Section 6.8

              	
                Successors
      and Assigns

              	
                16

              
	
                    
      Section 6.9

              	
                Execution
      in Counterparts

              	
                16

              
	
                    
      Section 6.10

              	
                Force
      Majeure

              	
                16

              
	
                    
      Section 6.11

              	
                Patriot
      Act

              	
                17

              
	
                    
      Section 6.12

              	
                Effect
      of this Depositary Agreement

              	
                17

              
	 
      	 
      	 
      


      

    

     

    SCHEDULE

     

    Schedule
I    -    Payment
Instructions

     

    EXHIBIT

     

    Exhibit
A      -    Form Of Withdrawal
Certificate

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    This
DEPOSITARY AGREEMENT (this
“Depositary
Agreement”) dated as of May 12, 2009, among HLI Operating Company, Inc.,
a Delaware corporation (the “U.S. Borrower”), and
Hayes Lemmerz Finance LLC - Luxembourg S.C.A., a société en commandite par
actions organized under the laws of the Grand Duchy of Luxembourg (the “Luxembourg Borrower”
and, together with the U.S. Borrower, the “Borrowers”), Deutsche
Bank AG New York Branch in its capacity as DIP Administrative Agent for the DIP
Lenders (together with its successors and permitted assigns in such capacity,
the “DIP
Administrative Agent”), and Deutsche Bank Trust Company Americas, in its
capacity as bank and as securities intermediary (together with its successors
and permitted assigns in such capacity, the “Depositary”).

    


    RECITALS

     

    WHEREAS,
the Borrowers entered into the Second Amended and Restated Credit Agreement,
dated as of May 30, 2007 (the “Second Amended and Restated
Credit Agreement”), among the Borrowers, Hayes Lemmerz International,
Inc., a Delaware corporation (“Holdings”), the
Lenders and Issuers (in each case as defined therein) party thereto, Citicorp
North America, Inc. (“CNAI”), as administrative
agent for the Lenders and the Issuers (in such capacity, and as agent for the
Secured Parties under the other Loan Documents, the “Prepetition Administrative
Agent”), Deutsche Bank Securities Inc., as Syndication Agent, CNAI, as
Documentation Agent, and Citigroup Global Markets Inc. and Deutsche Bank
Securities Inc., as Joint Book-Running Lead Managers and Joint Lead Arrangers,
as amended by Amendment No. 1, dated as of January 30, 2009 (“Amendment No. 1”), among the
Borrowers, Holdings and the Prepetition Administrative Agent on behalf of each
Lender executing a Lender Consent (as defined therein); and

     

    WHEREAS,
contemporaneously with the execution and delivery of this Depositary Agreement,
the Borrowers and Holdings entered into an Amendment No. 2 to the Second Amended
and Restated Credit Agreement, dated as of May 12, 2009 (“Amendment No. 2”,
together with Amendment No.1 and the Second Amended and Restated Credit
Agreement, the “Amended Credit
Agreement”), among the Borrowers, Holdings, each Lender (as defined in
the Existing Credit Agreement referred to therein) party thereto, each DIP
Lender (as defined therein), Deutsche Bank AG New York Branch, as administrative
agent for the DIP Lenders and Deutsche Bank Securities Inc. and General Electric
Capital Corporation, as Joint Book-Running Lead Managers, Joint Lead Arrangers
and Joint Syndication Agents with respect to the DIP Facilities referred to
therein and Deutsche Bank Securities Inc., as Documentation Agent with respect
to the DIP Facilities referred to therein;

     

    WHEREAS,
the DIP Administrative Agent desires the Depositary to hold and administer the
various accounts established pursuant to this Depositary Agreement and moneys
deposited and Permitted Investments held therein in accordance with the terms of
this Depositary Agreement;

     

    WHEREAS,
it is a condition precedent to the incurrence of the DIP Effective Date that
this Depositary Agreement shall have been executed and delivered by each of the
parties hereto;

     

    WHEREAS,
this is the Depositary Agreement referred to in Amended Credit Agreement and the
Interim Order;

     

    NOW
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



    ARTICLE
I

     

    DEFINITIONS

     

    Section
1.1       Capitalized
Terms.  Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
them in the Amended Credit Agreement.

     

    Section
1.2       Construction.  For
all purposes of this Depositary Agreement, except as otherwise expressly
provided or unless the context otherwise requires:

     

    (a)           all terms defined in this Article have
the meanings assigned to them in this Article, and include the plural as well as
the singular;

     

    (b)           all references in this Depositary
Agreement to designated “Articles,” “Sections,” “Schedules”, “Exhibits” and
other subdivisions are to the designated Articles, Sections, Schedules, Exhibits
and other subdivisions of this Depositary Agreement;

     

    (c)           the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Depositary Agreement
as a whole and not to any particular Article, Section or other
subdivision;

     

    (d)           unless otherwise expressly specified,
any agreement, contract or document defined or referred to herein shall mean
such agreement, contract or document as in effect as of the date hereof, as the
same may thereafter be amended, restated, supplemented or otherwise modified
from time to time in accordance with the terms thereof and of the DIP Loan
Documents and including any agreement, contract or document in substitution or
replacement of any of the foregoing;

     

    (e)           unless the context clearly intends to
the contrary, pronouns having a masculine or feminine gender shall be deemed to
include the other;

     

    (f)           any reference to any Person shall
include its successors and assigns;

     

    (g)           any reference to a “written
instruction”, “written direction”, “written consent”, “written notice” or other
similar phrases requiring a writing shall mean a written instruction, written
direction, written consent, written notice or other writing meeting the
requirements of Section 6.2; and

     

    (h)           all
references herein to “include” or “including” shall be deemed to be followed by
the words “without limitation”

     

    Section
1.3       Definitions.  As
used in this Depositary Agreement, the following terms shall have the following
meanings:

     

    “Account Collateral”
means U.S. Borrower Account Collateral and Luxembourg Borrower Account
Collateral.

     

    “Adjusted Budget”
shall mean, on any date, the then-applicable 13-Week Budget, as adjusted (on a
reasonable basis and in good faith) to permit a cumulative adverse deviation of
no greater than 10%, and as further adjusted with the consent of the Requisite
DIP Lenders.

     

     

    
      
        
        

      

      
        - 2
-

        
          

        

      

      
        
        

      

    

     

    “Available Cash”
means, on any date of determination, cash on hand of the Obligors available for
the payment of expenses of the Obligors included in the Adjusted Budget (for
purposes of clarity, it is understood and agreed that "Trapped Cash" as set
forth in the 13-Week Budget shall not be included in determining Available
Cash).

     

    “Collateral Accounts”
has the meaning set forth in Section 2.2.

     

    “Debt Termination
Date” means the date on which (i) all Secured DIP Obligations, other
than contingent liabilities and obligations which are unasserted at such date,
have been paid and satisfied in full (or legally defeased in full in accordance
with the express terms and conditions of the related DIP Loan Documents and
other governing documentation) and (ii) all commitments to extend credit of
the DIP Lenders under the DIP Loan Documents have been terminated.

     

    “Default Event” means
a Default or an Event of Default.

     

    “DIP Administrative Agent
Payment Account” means the account specified on Schedule I under the
caption “DIP Administrative Agent Payment Account”, or such other account as may
be specified by the DIP Administrative Agent in a written notice to the
Depositary.

     

    “Financial Assets” has
the meaning set forth in Section 2.4.

     

    “Indemnified Depositary
Party” has the meaning set forth in Section 5.2.

     

    “Lien” means any
mortgage, lien, pledge, charge, encumbrance or other security interest or any
preferential arrangement that has the practical effect of creating a security
interest.

     

    “Luxembourg Borrower Account
Collateral” has the meaning set forth in Section 2.3(b).

     

    “Luxembourg Borrower Dollar
Collateral Account” has the meaning set forth in Section
2.2(b).

     

    “Luxembourg Borrower Dollar
Payment Account” means the account specified on Schedule I under the
caption “Luxembourg Borrower Dollar Payment Account”, or such other account as
may be specified by the Luxembourg Borrower in a written notice to the
Depositary.

     

    “Luxembourg Borrower Euro
Collateral Account” has the meaning set forth in Section
2.2(c).

     

    “Luxembourg Borrower Euro
Payment Account” means the account specified on Schedule I under the
caption “Luxembourg Borrower Euro Payment Account”, or such other account as may
be specified by the Luxembourg Borrower in a written notice to the
Depositary.

     

    “Luxembourg Borrower
Permitted Expenses” means, with respect to the Luxembourg Borrower and
its Subsidiaries (a) transactions costs, fees and expenses with respect to the
DIP Loan Documents (to the extent payment thereof is not otherwise made in
accordance with Section 3.2(c)(first), 3.3(c)(first) or 3.4(c)(first)); (b) Specified
Expenses in accordance with the Adjusted Budget, the DIP Loan
Documents and the Orders and (c) to the extent not included in clause (b),
administrative costs of the Cases and claims or amounts approved by the
Bankruptcy Court.

    


    “Moody’s” means
Moody’s Investors Service, a division of Dun & Bradstreet
Corporation.

     

     

    
      
        
        

      

      
        - 3
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    “New York UCC” means
the Uniform Commercial Code as in effect from time to time in the State of New
York.

     

    “Permitted
Investments” of any Person means:

     

    (a) securities issued or fully
guaranteed or insured by the United States government or any agency
thereof;

     

    (b) certificates of deposit,
eurodollar time deposits, overnight bank deposits and bankers’ acceptances of
any DIP Lender or any commercial bank organized under the laws of the United
States, any state thereof, the District of Columbia, any foreign bank, or its
branches or agencies (fully protected against currency fluctuations) that, at
the time of acquisition, are rated at least “A-1” by S&P or “P-1” by
Moody’s;

     

    (c) commercial paper of an issuer
rated at least “A-1” by S&P or “P-1” by Moody’s; and

     

    (d) shares of any money market
fund that (i) has at least 95% of its assets invested continuously in the
types of investments referred to in clauses (a), (b) and (c) above,
(ii) has net assets of not less than $500,000,000 and (iii) is rated
at least “A-1” by S&P or “P-1” by Moody’s;

     

    provided, however,
that the maturities of all obligations of the type specified in clauses (i)
through (iv) above shall not exceed 90 days.

     

    “S&P” means
Standard & Poor’s Ratings Services.

     

    “Secured DIP
Obligations” means the Domestic DIP Obligations and the Foreign DIP
Obligations.

     

    “Specified Expenses”
of either Borrower, on any date of determination,  means expenses of
the Obligors of the type that would be included (reasonably and in good faith)
in the following line items of the Adjusted Budget: (a) “Total Disbursements”
and (b) “Total Restructuring Costs”. Specified Expenses shall exclude (to the
extent included) any payments with respect to Indebtedness outstanding prior to
the Petition Date (including Prepetition Obligations) except to the extent
expressly permitted by the Orders.

     

    “Subject Transfer
Date” means any Business Day of a week in respect of which a Withdrawal
Certificate is delivered in accordance with this Depositary Agreement as
specified in such Withdrawal Certificate.

     

    “Trigger Event Date”
has the meaning set forth in Section 3.8(a).

     

    “U.S. Borrower Account
Collateral” has the meaning set forth in Section 2.3(a).

     

    “U.S. Borrower Dollar
Collateral Account” has the meaning set forth in Section
2.2(a).


    “U.S. Borrower Payment
Account” means the account specified on Schedule I under the caption
“U.S. Borrower Payment Account”, or such other account as may be specified by
the U.S. Borrower in a written notice to the Depositary.

     

    “U.S. Borrower Permitted
Expenses” means, with respect to the U.S. Borrower and its Subsidiaries
(a) transactions costs, fees and expenses with respect to the DIP Loan Documents
(to the 

     

     

    
      
        
        

      

      
        - 4
-

        
          

        

      

      
        
        

      

    

     

    extent
payment thereof is not otherwise made in accordance with Section 3.2(c)(first), 3.3(c)(first) or 3.4(c)(first)); (b) Specified
Expenses in accordance with the Adjusted Budget, the DIP Loan Documents and the
Orders and (c) to extent not included in clause (b), administrative costs of the
Cases and claims or amounts approved by the Bankruptcy Court.

     

    “Withdrawal
Certificate” means a certificate in the form of Exhibit A signed by
an Authorized Officer of each of the Borrowers which satisfies, when applicable,
the express requirements of this Depositary Agreement.

     

    Section
1.4       Uniform
Commercial Code.  All
terms defined in the New York UCC shall have the respective meanings given to
those terms in the New York UCC.

     

    ARTICLE
II


     

    THE
DEPOSITARY; ESTABLISHMENT OF COLLATERAL ACCOUNTS

     

    Section
2.1       The
Depositary.  (a)  The Depositary hereby agrees to act as a bank
(within the meaning of Section 9-102(a)(8) of the New York UCC) and as a
securities intermediary (within the meaning of Section 8-102(1)(14) of the New
York UCC) and to accept all cash, payments, other amounts and Permitted
Investments to be delivered to or held by the Depositary pursuant to the terms
of this Depositary Agreement and the other DIP Loan Documents.  The
Depositary shall hold and maintain the Collateral Accounts during the term of
this Depositary Agreement and shall treat the Collateral Accounts and the cash,
instruments and Permitted Investments in the Collateral Accounts as monies,
instruments and securities pledged by each of the Borrowers to the DIP
Administrative Agent for the benefit of the DIP Lenders, in accordance with the
provisions of this Depositary Agreement.  The Depositary does not
assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for either of the
Borrowers.

     

    (b)           Neither Borrower shall assert any claims
against or to monies held in the Collateral Accounts, as third party
beneficiaries or otherwise, except the right of such Borrower to receive or make
requisitions of monies held in the Collateral Accounts, as permitted by this
Depositary Agreement, and the right of the Borrowers to direct the investment of
monies held in the Collateral Accounts as permitted by Section
3.5.

     

    Section
2.2       Establishment
of Collateral Accounts.  The
Depositary hereby agrees and confirms that it has established the following
accounts (the “Collateral Accounts”)
in the name of the U.S. Borrower (in the case of the U.S. Borrower Dollar
Collateral Account) and the Luxembourg Borrower (in the case of the Luxembourg
Borrower Dollar Collateral Account and the Luxembourg Borrower Euro Collateral
Account) as special, segregated accounts, which shall be maintained at all times
until the termination of this Depositary Agreement:


     

    (a)           a
Collateral Account (account no. 01419647 FCT: PORT S42528.1) entitled “U.S.
Borrower Dollar Collateral Account” (the “U.S. Borrower Dollar
Collateral Account”);

     

    (b)           a Collateral Account (account no.
01419647 FCT: PORT S42528.2) entitled “Luxembourg Borrower Dollar Collateral
Account” (the “Luxembourg
Borrower Dollar Collateral Account”); and

     

    (c)           a Collateral Account (account no.
959104100) entitled “Luxembourg Borrower Euro Collateral Account” (the
“Luxembourg
Borrower Euro Collateral Account”).

     

     

    
      
        
        

      

      
        - 5
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    For administrative purposes, additional
accounts within the Collateral Accounts may be established and created by the
Depositary from time to time in accordance with this Depositary Agreement, each
of which shall be, and be treated as, a Collateral Account.

     

    Section
2.3       Security
Interests.  (a)   As
collateral security for the prompt and complete payment and performance when due
of all Secured DIP Obligations, the U.S. Borrower hereby pledges, assigns,
hypothecates and transfers to the DIP Administrative Agent for the benefit of
the DIP Lenders and grants to the DIP Administrative Agent for the benefit of
the DIP Lenders a Lien on and security interest in and to all of such Borrower’s
right, title and interest in (i) the U.S. Borrower Dollar Collateral
Account and (ii) all cash, instruments, investment property, securities,
“security entitlements” (as defined in Section 8-102(a)(14) of the New York UCC)
and Financial Assets at any time on deposit in or credited to such Collateral
Account, including all income, earnings and distributions thereon and all
proceeds, products and accessions of and to any and all of the foregoing,
including whatever is received or receivable upon any collection, exchange, sale
or other disposition of any of the foregoing and any property into which any of
the foregoing is converted, whether cash or non-cash proceeds, and any and all
other amounts paid or payable under or in connection with any of the foregoing
(collectively, the “U.S. Borrower Account
Collateral”).

     

    (b)           As collateral security for the prompt
and complete payment and performance when due of all Foreign Secured DIP
Obligations, the Luxembourg  Borrower hereby pledges, assigns,
hypothecates and transfers to the DIP Administrative Agent for the benefit of
the DIP Lenders and grants to the DIP Administrative Agent for the benefit of
the DIP Lenders a Lien on and security interest in and to all of such Borrower’s
right, title and interest in (i) the Luxembourg Borrower Dollar Collateral
Account and the Luxembourg Borrower Euro Collateral Account and (ii) all
cash, instruments, investment property, securities, “security entitlements” (as
defined in Section 8-102(a)(14) of the New York UCC) and Financial Assets at any
time on deposit in or credited to such Collateral Accounts, including all
income, earnings and distributions thereon and all proceeds, products and
accessions of and to any and all of the foregoing, including whatever is
received or receivable upon any collection, exchange, sale or other disposition
of any of the foregoing and any property into which any of the foregoing is
converted, whether cash or non-cash proceeds, and any and all other amounts paid
or payable under or in connection with any of the foregoing (collectively, the
“Luxembourg
Borrower Account Collateral”).

     

    (c)           The Depositary shall not be responsible
to take any action to perfect the Lien of the DIP Administrative Agent for the
benefit of the DIP Lenders in and to the Collateral Accounts and the other
Account Collateral except through the performance of its express obligations
hereunder or upon the written direction of the DIP Administrative
Agent.

    
 

    Section
2.4      Collateral
Accounts Maintained as UCC “Securities Accounts”.  The
Depositary and the Borrowers agree that (i) each Collateral Account is and
will be maintained as a “securities account” (within the meaning of Section
8-501 of the New York UCC); (ii) the U.S. Borrower (in the case of the U.S.
Borrower Dollar Collateral Account) and the Luxembourg Borrower (in the case of
the Luxembourg Borrower Dollar Collateral Account and the Luxembourg Borrower
Euro Collateral Account) is the “entitlement holder” (within the meaning of
Section 8-102(a)(7) of the New York UCC) in respect of the “financial assets”
(within the meaning of Section 8-102(a)(9) of the New York UCC, the “Financial Assets”)
credited to such Collateral Accounts; (iii) each item of property
(including a security, security entitlement, investment property, instrument or
obligation, share, participation, interest or other property whatsoever)
credited to any Collateral Account shall be treated as a Financial Asset and
(iv) all Financial Assets in registered form or payable to or to the order
of and credited to any Collateral Account shall be registered in the name of,
payable to or to the order of, or specially endorsed to, the Depositary or in
blank, or credited to another securities account maintained in the name of the
Depositary, and in no 

     

     

    
      
        
        

      

      
        - 6
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    case
will any Financial Asset credited to any Collateral Account be registered in the
name of, payable to or to the order of, or endorsed to, either Borrower except
to the extent the foregoing have been subsequently endorsed by such Borrower to
the Depositary or in blank.  Until this Agreement shall terminate in
accordance with the terms hereof, the DIP Administrative Agent shall have
“control” (within the meaning of Section 8-106(d)(2) of the New York UCC) of the
Collateral Accounts and the Borrowers’ “security entitlements” (within the
meaning of Section 8-102(a)(17) of the New York UCC) with respect to the
Financial Assets credited to the relevant Collateral Account, to the exclusion
of the Borrowers.  All property delivered to the Depositary pursuant
to this Depositary Agreement will be promptly credited to the Collateral
Accounts.  Each Borrower hereby irrevocably directs, and the
Depositary hereby agrees, that the Depositary will comply with all “entitlement
orders” within the meaning of Section 8-102(a)(8) of the New York UCC originated
by the DIP Administrative Agent regarding each Collateral Account and any
Financial Asset therein without the further consent of either Borrower or any
other Person.  In the case of a conflict between any instruction or
order originated by the DIP Administrative Agent and any instruction or order
originated by any other Person, the instruction or order originated by the DIP
Administrative Agent shall prevail.  The Depositary shall not change
the name or account number of any Collateral Account without the prior written
consent of the DIP Administrative Agent.

     

    Section
2.5       Jurisdiction
of Depositary.  The
parties hereto agree that, for purposes of the New York UCC, notwithstanding
anything to the contrary contained in any other agreement relating to the
establishment and operation of the Collateral Accounts, the jurisdiction of the
Depositary is the State of New York and the laws of the State of New York govern
the establishment and operation of the Collateral Accounts.

     

    Section
2.6       Degree of
Care; Liens.  The
Depositary shall exercise the same degree of care in administering the funds
held in the Collateral Accounts and the investments purchased with such funds in
accordance with the terms of this Agreement as the Depositary exercises in the
ordinary course of its day-to-day business in administering other funds and
investments for its own account and as required by applicable
law.  The Depositary is not party to and shall not execute and
deliver, or otherwise become bound by, any agreement under which the Depositary
agrees with any Person other than the DIP Administrative Agent to comply with
entitlement orders or instructions originated by such Person relating to any of
the Collateral Accounts or the security entitlements that are the subject of
this Depositary Agreement.  The Depositary shall not grant any lien,
pledge or security interest in any Financial Asset that is the subject of any
security entitlement that is the subject of this Depositary
Agreement.


    Section
2.7       Subordination of Lien;
Waiver of Set-Off.  In
the event that the Depositary has or subsequently obtains by agreement,
operation of law or otherwise a Lien in any Collateral Account, any security
entitlement carried therein or credited thereto or any Financial Asset that is
the subject of any such security entitlement, the Depositary agrees that such
Lien shall (except to the extent provided in the last sentence of this Section
2.7) be subordinate to the Lien of the DIP Administrative Agent.  The
Financial Assets standing to the credit of the Collateral Accounts will not be
subject to deduction, set-off, banker’s lien, or any other right in favor of any
Person other than the DIP Administrative Agent (except to the extent of returned
items and chargebacks either for uncollected checks or other items of payment
and transfers previously credited to one or more of the Collateral Accounts, and
each Borrower and the DIP Administrative Agent hereby authorize the Depositary
to debit the relevant Collateral Account(s) for such amounts).

     

    Section
2.8       No Other
Agreements.  None
of the Depositary, the DIP Administrative Agent or either of the Borrowers has
entered or will enter into any agreement with respect to any Collateral Account
or any security entitlements or any Financial Assets carried in or credited to
any Collateral Account, other than this Depositary Agreement, the other DIP Loan
Documents and customary agreements required to establish the Collateral Accounts
that are not inconsistent with this Depositary Agreement.

     

    
      
        
        

      

      
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    Section
2.9       Notice of
Adverse Claims.  The
Depositary hereby represents that, except for the claims and interests of the
DIP Administrative Agent and the relevant Borrower in each of the Collateral
Accounts, the Depositary (a) as of the date of this Depositary Agreement,
has no knowledge of, and has received no notice of, and (b) as of each date
on which any Collateral Account is established pursuant to this Depositary
Agreement, has received no notice of, any claim to, or interest in, any
Collateral Account or in any security entitlement or Financial Asset carried
therein or credited thereto.  If any Person asserts any Lien
(including any writ, garnishment, judgment, warrant of attachment, execution or
similar process) against any Collateral Account or in any security entitlement
or Financial Asset carried therein or credited thereto, the Depositary will
promptly notify the DIP Administrative Agent and the Borrowers
thereof.

     

    Section
2.10     Rights and
Powers of the DIP Administrative Agent.  The
rights and powers granted to the DIP Administrative Agent by the DIP Lenders
have been granted in order to perfect their Lien in the Collateral Accounts and
the security entitlements and financial assets carried therein or credited
thereto.

     

    Section
2.11      Termination.  This
Depositary Agreement shall remain in full force and effect until and shall
terminate on the Debt Termination Date.

     

    ARTICLE
III


     

    THE
COLLATERAL ACCOUNTS

     

    Section
3.1       The
Collateral Accounts.  Deposits
to and transfers from the Collateral Accounts shall be made in accordance with
the provisions of Sections 3.2., 3.2 and 3.4.  Transfers from each
Collateral Account (or certain of them as elected by the relevant Borrowers) on
each Subject Transfer Date in accordance with a duly completed Withdrawal
Certificate relating to such Subject Transfer Date delivered on or prior to
5:00p.m. (New York time) two (2) Business Days prior to such Subject Transfer
Date.  There shall be no more than two (2) Subject Transfer Dates in
any week.

    


    Section
3.2       U.S. Borrower
Dollar Collateral Account.

     

    (a)  The
following amounts shall be deposited in the U.S. Borrower Dollar Collateral
Account directly, or if received by the U.S. Borrower, as soon as practicable
upon receipt:

     

    (i)           all proceeds of New Money DIP Term Loans
borrowed by the U.S. Borrower under the Amended Credit Agreement except as
otherwise provided in clause (A) or clause (B) of the immediately succeeding
sentence; and

     

    (ii)           all interest income on Permitted
Investments attributable to the U.S. Borrower Dollar Collateral
Account.

     

    The proceeds of New Money DIP Term Loans
borrowed by the U.S. Borrower and applied to the payment of fees, costs and
expenses of the DIP Administrative Agent, the Depositary and the DIP Lenders or
other costs and expenses attributable to the Amended Credit Agreement on the DIP
Effective Date in accordance with the Amended Credit Agreement shall not be
deposited into the U.S. Borrower Dollar Collateral Account

     

     

    
      
        
        

      

      
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    (b)  If
any of the foregoing amounts required to be deposited with the Depositary in
accordance with the terms of this Depositary Agreement are received by the U.S.
Borrower (or any Subsidiary of the U.S. Borrower), such Borrower shall (or shall
cause any such Subsidiary to) hold such payments in trust for the DIP
Administrative Agent and shall promptly remit such payments to the Depositary
for deposit in the U.S. Borrower Dollar Collateral Account, in the form
received, with any necessary endorsements.

     

    (c)  The U.S. Borrower hereby
irrevocably authorizes the Depositary to make withdrawals and transfers of
monies on each Subject Transfer Date (via wire transfer) to the extent then
available in the U.S. Borrower Dollar Collateral Account, upon the receipt of a
Withdrawal Certificate of the U.S. Borrower by the Depositary in accordance with
Section 3.1 setting forth the amounts to be withdrawn from the U.S. Borrower
Dollar Collateral Account and the amounts to be transferred pursuant to this
clause (c) in accordance with the terms of this Depositary Agreement in the
following order of priority, all as set forth in such Withdrawal
Certificate:

     

    first, on each Subject Transfer Date, to the
DIP Administrative Agent by wire transfer to the DIP Administrative Agent
Payment Account, any amounts (including interest, fees, expense payments,
indemnity payments or otherwise) due and payable to the DIP Administrative
Agent, the Depositary and the DIP Lenders within the next five (5) Business Days
in respect of or in connection with the Amended Credit Agreement and any other
DIP Loan Document, respectively (without duplication of amounts transferred in
accordance with Section 3.3(c) and 3.4(c) in respect thereof);
and

    
 

    second, on each Subject Transfer Date, to the
U.S. Borrower by wire transfer to the U.S. Borrower Payment Account, the U.S.
Borrower Permitted Expenses due and payable within the next five (5) Business
Days (less the aggregate amount of transfers from the U.S. Borrower Dollar
Collateral Account theretofore transferred in respect of such U.S. Borrower
Permitted Expenses).

     

    Section
3.3       Luxembourg Borrower
Dollar Collateral Account.

     

    (a)  The
following amounts shall be deposited in the Luxembourg Borrower Dollar
Collateral Account directly, or if received by the Luxembourg Borrower, as soon
as practicable upon receipt:

     

    (i)           all proceeds of New Money Dollar DIP
Term Loans borrowed by the Luxembourg Borrower under the Amended Credit
Agreement except as otherwise provided in clause (A) or clause (B) of the
immediately succeeding sentence; and

     

    (ii)           all interest income on Permitted
Investments attributable to the Luxembourg Borrower Dollar Collateral
Account.

     

    The proceeds of New Money Dollar DIP
Term Loans borrowed by the Luxembourg Borrower and applied to the payment of
fees, costs and expenses of the DIP Administrative Agent, the Depositary and the
DIP Lenders or other costs and expenses attributable to the Amended Credit
Agreement on the DIP Effective Date in accordance with the Amended Credit
Agreement shall not be deposited into the Luxembourg Borrower Dollar Collateral
Account.

     

     (b)  If
any of the foregoing amounts required to be deposited with the Depositary in
accordance with the terms of this Depositary Agreement are received by the
Luxembourg Borrower (or any Subsidiary of the Luxembourg Borrower), such
Borrower shall (or shall cause any such Subsidiary to) hold such payments in
trust for the DIP Administrative Agent and shall promptly remit such payments to
the Depositary for deposit in the Luxembourg Borrower Dollar Collateral Account,
in the form received, with any necessary endorsements.

     

     

     

    
      
        
        

      

      
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    (c)  The Luxembourg Borrower
hereby irrevocably authorizes the Depositary to make withdrawals and transfers
of monies on each Subject Transfer Date (via wire transfer) to the extent then
available in the Luxembourg Borrower Dollar Collateral Account, upon the receipt
of a Withdrawal Certificate of the Luxembourg Borrower by the Depositary in
accordance with Section 3.1 setting forth the amounts to be withdrawn from the
Luxembourg Borrower Dollar Collateral Account and the amounts to be transferred
pursuant to this clause (c) in accordance with the terms of this Depositary
Agreement in the following order of priority, all as set forth in such
Withdrawal Certificate:

     

    first, on each Subject Transfer Date, to the
DIP Administrative Agent by wire transfer to the DIP Administrative Agent
Payment Account, any amounts (including interest, fees, expense payments,
indemnity payments or otherwise) due and payable to the DIP Administrative
Agent, the Depositary and the DIP Lenders within the next five (5) Business Days
in respect of or in connection with the Amended Credit Agreement and any other
DIP Loan Document, respectively (without duplication of amounts transferred in
accordance with Section 3.2(c) and 3.4(c) in respect thereof);
and

     

    second, on each Subject Transfer Date, to the
Luxembourg Borrower by wire transfer to the Luxembourg Borrower Dollar Payment
Account, the Luxembourg Borrower Permitted Expenses due and payable within the
next five (5) Business Days (less the aggregate amount of transfers from the
Luxembourg Borrower Dollar Collateral Account and the Luxembourg Borrower Euro
Collateral Account theretofore transferred in respect of such Luxembourg
Borrower Permitted Expenses).

    


    Section
3.4       Luxembourg Borrower
Euro Collateral Account.

     

    (a)  The
following amounts shall be deposited in the Luxembourg Borrower Euro Collateral
Account directly, or if received by the Luxembourg Borrower, as soon as
practicable upon receipt:

     

    (i)           all proceeds of New Money Euro DIP Term
Loans borrowed by the Luxembourg Borrower under the Amended Credit Agreement
except as otherwise provided in clause (A) or clause (B) of the immediately
succeeding sentence; and

     

    (ii)           all interest income on Permitted
Investments attributable to the Luxembourg Borrower Euro Collateral
Account.

     

    The proceeds of New Money Euro DIP Term
Loans borrowed by the Luxembourg Borrower and applied to the payment of fees,
costs and expenses of the DIP Administrative Agent, the Depositary and the DIP
Lenders or other costs and expenses attributable to the Amended Credit Agreement
on the DIP Effective Date in accordance with the Amended Credit Agreement shall
not be deposited into the Luxembourg Borrower Euro Collateral
Account.

     

     (b)  The Luxembourg
Borrower hereby irrevocably authorizes the Depositary to make withdrawals and
transfers of monies on each Subject Transfer Date (via wire transfer) to the
extent then available in the Luxembourg Borrower Euro Collateral Account, upon
the receipt of a Withdrawal Certificate of the Luxembourg Borrower by the
Depositary in accordance with Section 3.1 setting forth the amounts to be
withdrawn from the Luxembourg Borrower Euro Collateral Account and the amounts
to be transferred pursuant to this clause (c) in accordance with the terms
of this Depositary Agreement in the following order of priority, all as set
forth in such Withdrawal Certificate:

     

     

    
      
        
        

      

      
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    first, on each Subject Transfer Date, to the
DIP Administrative Agent by wire transfer to the DIP Administrative Agent
Payment Account, any amounts (including interest, fees, expense payments,
indemnity payments or otherwise) due and payable to the DIP Administrative
Agent, the Depositary and the DIP Lenders within the next five (5) Business Days
in respect of or in connection with the Amended Credit Agreement and any other
DIP Loan Document, respectively (without duplication of amounts transferred in
accordance with Section 3.2(c) and 3.3(c) in respect thereof);
and

     

    second, on each Subject
Transfer Date, to the Luxembourg Borrower by wire transfer to the Luxembourg
Borrower Euro Payment Account, the Luxembourg Borrower Permitted Expenses due
and payable within the next five (5) Business Days (less the aggregate amount of
transfers from the Luxembourg Borrower Dollar Collateral Account and the
Luxembourg Borrower Euro Collateral Account theretofore transferred in respect
of such Luxembourg Borrower Permitted Expenses).


    


    Section
3.5       Permitted
Investments.  Amounts
deposited in the Collateral Accounts under this Depositary Agreement shall, at
the relevant Borrower’s written request and direction, be invested by the
Depositary in Permitted Investments.  Except as otherwise provided
herein, net interest or gain received, if any, from such investments shall be
deposited into the U.S. Borrower Dollar Collateral Account, the Luxembourg
Borrower Dollar Collateral Account or the Luxembourg Borrower Euro Collateral
Account, as the case may be, to the extent attributable thereto.  Any
loss shall be charged to the applicable Collateral Account.  Absent
written instructions from the relevant Borrower, the Depositary shall not invest
the amounts held in the Collateral Accounts under this Depositary Agreement in
Permitted Investments, until written instructions regarding investments are
received by the Depositary.  The Depositary may make any and all such
investments through its own trust department.  The Depositary shall
not be liable for any depreciation of the value of any investment made pursuant
to this Section 3.5 or for any loss or penalty resulting from any such
investment on the redemption, sale and maturity thereof.  So long as
an outstanding balance remains in any of the Collateral Accounts under this
Depositary Agreement, the Depositary will provide the relevant Borrower with
monthly statements showing the amount of all receipts, the net investment income
or gain received and collected, all disbursements and the amount then available
in each such Collateral Account.  The Depositary shall have no
obligation to invest or reinvest the amounts deposited in the Collateral
Accounts if deposited with the Depositary after 11:00 a.m. (New York time) on
such day of deposit.  Instructions received after 11:00 a.m. (New York
time) will be treated as if received on the following Business Day. In no event
shall the Depositary be deemed an investment manager or adviser in respect of
any selection of investments hereunder.  It is understood and agreed
that the Depositary or its affiliates are permitted to receive additional
compensation that could be deemed to be in the Depositary’s economic
self-interest for (i) serving as investment adviser, administrator, shareholder
servicing agent, custodian or sub-custodian with respect to certain of the
investments, (ii) using affiliates to effect transactions in certain investments
and (iii) effecting transactions in investments.

     

    Section
3.6       Disposition
of Collateral Accounts Upon the Debt Termination Date.  In
the event that the Depositary shall have received a certificate from the DIP
Administrative Agent stating that the Debt Termination Date shall have occurred,
all transfers contemplated by Section 3.8(c) have been made and all other
amounts required to be paid hereunder and under the other DIP Loan Documents of
which the DIP Administrative Agent is aware shall have been paid in full, all
amounts remaining in the Collateral Accounts (if any) shall, upon receipt of a
certificate from the DIP Administrative Agent authorizing such payments from the
Collateral Accounts, be remitted to or as directed by the Borrowers, and the
Collateral Accounts closed.

     

     

    
      
        
        

      

      
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    Section
3.7       Collateral
Account Balance Statements.  The
Depositary shall at such times as the DIP Administrative Agent or either
Borrower may from time to time reasonably request in writing, provide to the DIP
Administrative Agent and such Borrower, the ability to view online fund balance
statements in respect of each of the Collateral Accounts.

     

    Section
3.8       Default
Events and DIP Loan Maturity Date.

     

    (a)           On
and after any date on which the Depositary receives written notice from the Dip
Administrative Agent that a Default Event has occurred and is continuing and the
DIP Administrative Agent so directs the Depositary (the date of receipt of such
notice, the “Trigger
Event Date”), notwithstanding
anything to the contrary contained herein, the Depositary shall thereafter
accept all notices and instructions required to be given to the Depositary
pursuant to the terms of this Depositary Agreement only from the DIP
Administrative Agent and not from any other Person and the Depositary shall not
withdraw, transfer, pay or otherwise distribute any monies in any of the
Collateral Accounts except pursuant to such notices and instructions from the
DIP Administrative Agent unless such Default Event has been waived or cured, in
which event the terms of this provision will be inapplicable to such Default
Event.

    


    (b)           On the Trigger Event Date, the
Depositary shall render an accounting of all monies in the Collateral Accounts
as of the Trigger Event Date to the DIP Administrative
Agent.

     

    (c)           On the DIP Loan Maturity Date, the
Depositary shall sell or otherwise liquidate all Permitted Investments and remit
to the DIP Administrative Agent all monies in the Collateral Accounts for
application in accordance with Section 2.10.A(a)(iv) of the Amended Credit
Agreement.

     

    (d)           The proceeds of any sale, disposition or
other realization with respect to Collateral shall be applied to the payment of
obligations owed to the parties for whose benefit the specific Collateral was
held in accordance with provisions of the Amended Credit
Agreement.

     

    ARTICLE
IV


     

    DEPOSITARY

     

    Section
4.1       Powers and
Immunities.  The
Depositary shall not have any duties or responsibilities except those expressly
set forth in this Depositary Agreement and no implied duties or covenants shall
be read against the Depositary.  The Depositary shall not be a trustee
or fiduciary to any DIP Lender.  Without limiting the generality of
the foregoing, the Depositary shall take all actions as the DIP Administrative
Agent shall direct it to perform in accordance with the express provisions of
this Depositary Agreement.  Notwithstanding anything to the contrary
contained herein, the Depositary shall not be required to take any action which
is contrary to this Depositary Agreement or applicable law.  Neither
the Depositary nor any of its affiliates shall be responsible to the DIP Lenders
for any recitals, statements, representations or warranties made by either
Borrower contained in this Depositary Agreement or any other DIP Loan Document
or in any certificate or other document referred to or provided for in, or
received by any DIP Lender under any DIP Loan Document for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Depositary
Agreement or any other DIP Loan Document or any other document referred to or
provided for herein or therein or for any failure by either Borrower to perform
its obligations hereunder or thereunder.  The Depositary shall not be
required to ascertain or inquire as to the performance by either Borrower of any
of its obligations under any DIP Loan Document or any other document or
agreement contemplated hereby or thereby.  Except as otherwise
provided under this Depositary Agreement, the Depositary shall take action under
this Depositary Agreement only as it shall be directed in
writing.  Whenever in the administration of this Depositary Agreement
the Depositary shall deem it necessary or desirable that a factual matter be
proved or established in connection with the Depositary taking, suffering or
omitting to take any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may be deemed to be
conclusively proved or established by a certificate of an Authorized Officer of
the relevant Borrower or the DIP Administrative Agent, if
appropriate.  The Depositary shall have the right at any time to seek
instructions concerning the administration of this Depositary Agreement from the
DIP Administrative Agent, either Borrower or any court of competent
jurisdiction.  The Depositary shall have no obligation to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder.  The

     

    
      
        
        

      

      
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    Depositary
may execute any of the powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, custodians or nominees appointed
with due care.  Neither the Depositary nor any of its officers,
directors, employees or agents shall be liable for any action taken or omitted
under this Depositary Agreement or in connection therewith except to the extent
caused by the Depositary’s gross negligence or willful misconduct.

    


    Section
4.2       Reliance by
Depositary.  The
Depositary shall be entitled to conclusively rely upon and shall not be bound to
make any investigation into the facts or matters stated in any certificate of an
Authorized Officer of either Borrower, DIP Administrative Agent’s certificate or
any other notice or other document believed by it to be genuine and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statement of legal counsel, independent accountants and other experts
selected by the Depositary and shall have no liability for its actions taken
thereupon, unless due to the Depositary’s willful misconduct or gross
negligence.  The Depositary shall be fully justified in failing or
refusing to take any action under this Depositary Agreement (i) if such
action would, in the reasonable opinion of the Depositary, be contrary to
applicable law or the terms of this Depositary Agreement, (ii) if such action is
not specifically provided for in this Depositary Agreement, it shall not have
received any such advice or concurrence of the DIP Administrative Agent as it
deems appropriate or (iii) if, in connection with the taking of any such action
that would constitute an exercise of remedies under this Depositary Agreement
(whether such action is or is intended to be an action of the Depositary or the
DIP Administrative Agent), it shall not first be indemnified to its satisfaction
by the DIP Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such
action.  The Depositary shall in all cases be fully protected in
acting, or in refraining from acting, under this Depositary Agreement in
accordance with a request of the DIP Administrative Agent, and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the DIP Lenders.

     

    Section
4.3       Court
Orders.  The
Depositary is hereby authorized, in its exclusive discretion, to obey and comply
with all writs, orders, judgments or decrees issued by any court or
administrative agency affecting any money, documents or things held by the
Depositary.  The Depositary shall not be liable to any of the parties
hereto or any of the DIP Lenders or their successors, heirs or personal
representatives by reason of the Depositary’s compliance with such writs,
orders, judgments or decrees, notwithstanding such writ, order, judgment or
decree is later reversed, modified, set aside or vacated.

     

    Section
4.4       Resignation
or Removal.  Subject
to the appointment and acceptance of a successor Depositary as provided below,
the Depositary may resign at any time by giving thirty (30) days’ written notice
thereof to the DIP Administrative Agent and the Borrowers, provided that in the
event the Depositary is also the DIP Administrative Agent, it must also at the
same time resign as the DIP Administrative Agent.  The Depositary may
be removed at any time with or without cause by the DIP Administrative
Agent.  Notwithstanding anything to the contrary, no resignation or
removal of the Depositary shall be effective until: (i) a successor
Depositary is appointed in accordance with this Section 4.4, (ii) the
resigning or removed Depositary has transferred to its successor all of its
rights and obligations in its capacity as the Depositary under this Depositary
Agreement, and (iii) the successor Depositary has executed and delivered an
agreement to be bound by the terms hereof and perform all duties required of the
Depositary hereunder.  Within thirty (30) days of receipt of a written
notice of any resignation or removal of the Depositary, the DIP Administrative
Agent (acting on the instruction of Requisite DIP Lenders) shall appoint a
successor Depositary.  If no successor Depositary shall have been
appointed by the DIP

     

    
      
        
        

      

      
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    Administrative
Agent and shall have accepted such appointment within thirty (30) days after the
retiring Depositary’s giving of notice of resignation or the removal of the
retiring Depositary, then the retiring Depositary may apply to a court of
competent jurisdiction to appoint a successor Depositary, which shall be a bank
or trust company which has an office in New York, New York and that has a
combined capital surplus of at least $500,000,000.  Upon the
acceptance of any appointment as Depositary hereunder by the successor
Depositary, (a) such successor Depositary shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Depositary, and the retiring Depositary shall be discharged from its duties and
obligations hereunder and (b) the retiring Depositary shall promptly
transfer all monies and Permitted Investments within its possession or control
to the possession or control of the successor Depositary and shall execute and
deliver such notices, instructions and assignments as may be necessary or
desirable to transfer the rights of the Depositary with respect to the monies
and Permitted Investments to the successor Depositary.  After the
retiring Depositary’s resignation or removal hereunder as Depositary, the
provisions of this Article IV and of Article V 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 Depositary.  Any corporation into which the
Depositary may be merged or converted or with which it may be consolidated or
any corporation resulting from any merger, conversion or consolidation to which
the Depositary shall be a party, or any corporation succeeding to the business
of the Depositary or its corporate trust operations shall be the successor of
the Depositary hereunder without the execution or filing of any paper with any
party hereto or any further act on the part of any of the parties hereto except
where an instrument of transfer or assignment is required by law to effect such
succession, anything herein to the contrary notwithstanding.

    


    ARTICLE
V


     

    EXPENSES;
INDEMNIFICATION; FEES

     

    Section
5.1       Expenses.  Subject
to the terms of the agreement referenced in Section 5.3, the Borrowers, jointly
and severally, agree to pay or reimburse all reasonable out-of-pocket expenses
of the Depositary (including reasonable fees and expenses of counsel) in respect
of, or incident to, the administration or enforcement of any of the provisions
of this Depositary Agreement or in connection with any amendment, waiver or
consent relating to this Depositary Agreement.

     

    Section
5.2       Indemnification.  The
Borrowers, jointly and severally, agree to indemnify the Depositary in its
capacity as such and, in their capacity as such, its officers, directors,
shareholders, controlling persons, employees, agents and servants (each, an
“Indemnified
Depositary Party”) from and against any and all claims, losses,
liabilities and expenses (including the reasonable fees and expenses of counsel)
growing out of or resulting from this Depositary Agreement (including, without
limitation, performance under or enforcement of this Depositary Agreement, but
excluding any such claims, losses or liabilities resulting from the Indemnified
Depositary Party’s gross negligence or willful misconduct).  This
indemnity shall survive the termination of this Depositary Agreement, and the
resignation or removal of the Depositary.

     

    Section
5.3       Fees.  On
the DIP Effective Date, and on each anniversary of the DIP Effective Date up to
and including the Debt Termination Date, the Borrowers, jointly and severally,
agree to pay the Depositary an annual fee in an amount mutually agreed on in a
separate agreement between the Borrowers and the Depositary.

     

    
      
        
        

      

      
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    ARTICLE
VI

    


    MISCELLANEOUS

    


    Section
6.1       Amendments;
Etc.  No
amendment or waiver of any provision of this Depositary Agreement nor consent to
any departure by either Borrower herefrom shall in any event be effective unless
the same shall be in writing and signed by the Dip Administrative Agent (acting
at the instruction of the Requisite DIP Lenders), the Depositary (acting on the
instruction of the DIP Administrative Agent) and the Borrowers.  Any
such amendment, waiver or consent shall be effective only in the specific
instance and for the specified purpose for which given.

     

    Section
6.2      Addresses
for Notices.  All
notices, instructions, requests, directions and other communications provided
for hereunder shall be in writing and, except as otherwise required by the
provisions of this Depositary Agreement, shall be sufficiently given and shall
be deemed given when personally delivered or, if mailed by registered or
certified mail, postage prepaid, or sent by overnight delivery, upon receipt by
the addressee, or if by facsimile or any other telecommunications device capable
of a written record (including electronic mail), when delivered, in each case
addressed to the parties as follows (or such other address as shall be
designated by such party in a written notice to each other party):

     

    
      
        	
                The
      Borrowers:

              	
                HAYES-LEMMERZ
      INTERNATIONAL, INC.

              
	 
      	
                15300
      Centennial Drive

              
	 
      	
                Northville,
      Michigan 48168

              
	 
      	
                Attention:  General
      Counsel

              
	 
      	
                Telecopy
      no:  (734) 737-2069

              
	 
      	
                E-Mail
      Address:  pcauley@hayes-lemmerz.com

              
	 	 
	
                DIP
      Administrative Agent:

              	
                DEUTSCHE
      BANK AG NEW YORK BRANCH

              
	 
      	
                as
      DIP Administrative Agent

              
	 
      	
                60
      Wall Street

              
	 
      	
                Mailstop
      2710

              
	 
      	
                New
      York, New York 10005

              
	 
      	
                Attention:  Erin
      Morrissey

              
	 
      	
                Telephone
      no.  (212) 250-1765

              
	 
      	
                Telecopy
      no.:   (212) 797-5690

              
	 
      	
                E-Mail
      Address:  erin.morrissey@db.com

              
	 
      	
                Attention:  Michael
      Meagher

              
	 
      	
                Telephone
      no.  (212) 250-2178

              
	 
      	
                Telecopy
      no.:   (212) 797-5695

              
	 
      	
                E-Mail
      Address:  michael.meagher@db.com

              
	 
      	 
      
	
                Depositary:

              	
                DEUTSCHE
      BANK TRUST COMPANY AMERICAS

              
	 
      	
                as
      Depositary

              
	 
      	
                60
      Wall Street

              
	 
      	
                Mailstop
      2710

              


      

    

     

     

     

    
      
        
        

      

      
        - 15
-

        
          

        

      

      
        
        

      

    

    
 

    
      	 
      	
              New
      York, New York 10005

            
	 
      	
              Attention:  Erin
      Morrissey

            
	 
      	
              Telephone
      no.  (212) 250-1765

            
	 
      	
              Telecopy
      no.:   (212) 797-5690

            
	 
      	
              E-Mail
      Address:  erin.morrissey@db.com

            
	 
      	
              Attention:  Michael
      Meagher

            
	 
      	
              Telephone
      no.  (212) 250-2178

            
	 
      	
              Telecopy
      no.:   (212) 797-5695

            
	 
      	
              E-Mail
      Address:  michael.meagher@db.com

            


    

    


    Section
6.3       Governing
Law.  This
Depositary Agreement shall be governed by the laws of the State of New York,
except to the extent New York law is superseded by the Bankruptcy
Code.

     

    Section
6.4       Headings.  Headings
used in this Depositary Agreement are for convenience of reference only and do
not constitute part of this Depositary Agreement for any purpose.

     

    Section
6.5       No Third
Party Beneficiaries.  The
agreements of the parties hereto are solely for the benefit of the Borrowers and
the DIP Lenders and their respective successors and assigns and no Person (other
than the parties hereto and the DIP Lenders) shall have any rights
hereunder.

     

    Section
6.6       No
Waiver.  No
failure on the part of the Depositary, the DIP Administrative Agent or any of
the DIP Lenders or any of their nominees or representatives to exercise, and no
course of dealing with respect to, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the Depositary, the DIP Administrative Agent or any of the
DIP Lenders or any of their nominees or representatives of any right, power or
remedy hereunder preclude any other or future exercise thereof or the exercise
of any other right, power or remedy, nor shall any waiver of any single Default
Event or other breach or default be deemed a waiver of any other Default Event
or other breach or default theretofore or thereafter occurring.  All
remedies either under this Depositary Agreement or by law or otherwise afforded
to any DIP Lender shall be cumulative and not alternative.

     

    Section
6.7       Severability.  If
any provision of this Depositary Agreement or the application thereof shall be
invalid or unenforceable to any extent, (a) the remainder of this Depositary
Agreement and the application of such remaining provisions shall not be affected
thereby and (b) each such remaining provision shall be enforced to the greatest
extent permitted by law.

     

    Section
6.8       Successors
and Assigns.  All
covenants, agreements, representations and warranties in this Depositary
Agreement by each party hereto shall bind and, to the extent permitted hereby,
shall inure to the benefit of and be enforceable by their respective successors
and assigns, whether so expressed or not, provided that neither Borrower may
assign its rights or obligations hereunder without the consent of the DIP
Administrative Agent and the Depositary.

     

    Section
6.9       Execution in
Counterparts.  This
Depositary Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
instrument.

     

    Section
6.10     Force
Majeure.  The
DIP Administrative Agent and the Depositary shall not incur any liability for
not performing any act or fulfilling any duty, obligation or responsibility
hereunder by reason of any occurrence beyond the control of the DIP
Administrative Agent and Depositary (including but not limited to any act or
provision of any present or future law or regulation or governmental authority,
any act of God or war, civil unrest, local or national disturbance or disaster,
any act of terrorism, or the unavailability of the Federal Reserve Bank wire or
facsimile or other wire or communication facility).

     

     

    
      
        
        

      

      
        - 16
-

        
          

        

      

      
        
        

      

    

     

    Section
6.11     Patriot
Act.  The
parties hereto acknowledge that in accordance with Section 326 of the USA
Patriot Act the DIP Administrative Agent and Depositary, like all financial
institutions and in order to help fight the funding of terrorism and money
laundering, are required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens
an account.  The parties to this Depositary Agreement agree that they
will provide the DIP Administrative Agent and Depositary with such information
as it may request in order for the DIP Administrative Agent and Depositary to
satisfy the requirements of the USA Patriot Act.

     

    Section
6.12      Effect of
this Depositary Agreement.  Nothing
in this Depositary Agreement limits or shall be construed as a waiver of the
rights of the DIP Lenders under the Orders and in the case of any conflict
between the express terms and provisions of this Depositary Agreement and the
express terms and provisions of the Orders, unless such term or provision in the
Orders is phrased as "as defined in" or "as more fully described in" this
Depositary Agreement, the terms and provisions of the Orders shall
govern.

    


     

    [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]

    


     

    
      
        
        

      

      
        - 17
-

        
          

        

      

      
        
        

      

    



    IN
WITNESS WHEREOF, the parties hereto have caused this Depositary Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.

     

    


     

    
      	 
      	
              HLI
      OPERATING COMPANY, INC.,

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	
                   /s/ Mark A.
      Brebberman

            
	 
      	 
      	
              Name:  Mark
      A. Brebberman

            
	 
      	 
      	
              Title:  
        Chief Financial Officer

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              HAYES
      LEMMERZ FINANCE LLC – LUXEMBOURG S.C.A.,

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	
                   /s/ Mark A.
      Brebberman

            
	 
      	 
      	
              Name:  Mark
      A. Brebberman

            
	 
      	 
      	
              Title:   
       Chief Financial Officer

            


    

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



     

    


     

    
      	 
      	
              DEUTSCHE BANK AG NEW YORK
      BRANCH,

            
	 
      	
              as
      DIP Administrative Agent

            
	 
      	 
      
	 
      	
              By:

            	
                   /s/ Erin
      Morrissey

            
	 
      	 
      	
              Name:  Erin
      Morrissey

            
	 
      	 
      	
              Title:  
       Vice President

            
	 
      	 
      	 
      
	 
      	
              By:

            	
                  /s/ Michael M.
      Meagher

            
	 
      	 
      	
              Name:  Michael
      M. Meagher

            
	 
      	 
      	
              Title:   
      Vice President

            
	 
      	 
      	 
      
	 
      	
              DEUTSCHE BANK TRUST COMPANY
      AMERICAS,

            
	 
      	
              as
      Depositary

            
	 
      	 
      
	 
      	
              By:

            	
                   /s/ Erin
      Morrissey

            
	 
      	 
      	
              Name:  Erin
      Morrissey

            
	 
      	 
      	
              Title:   
      Vice President

            
	 
      	 
      	 
      
	 
      	
              By:

            	
                  /s/ Michael M.
      Meagher

            
	 
      	 
      	
              Name:  Michael
      M. Meagher

            
	 
      	 
      	
              Title:   
      Vice President

            


    

    


    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    




    EXHIBIT A

    to
Depositary Agreement

     

    FORM OF WITHDRAWAL
CERTIFICATE

     

    WITHDRAWAL
CERTIFICATE

     

    Date:  _____________
__, 20__

     

    Deutsche
Bank Trust Company Americas,

    
          
as Depositary

    

    60
Wall Street

    Mailstop
2710

    New
York, New York 10005

    Attention:  Trust
and Securities Services

    Telecopy
no.:   [_________]

    E-Mail
Address:  [___________]]

    


     

    Re:           HLI Operating Company and
Hayes Lemmerz Finance LL – Luxembourg S.C.A.

     

     

    Ladies
and Gentlemen:

     

    This
Withdrawal Certificate is delivered pursuant to the Depositary Agreement dated
as of May 12, 2009 (as amended, modified and supplemented and in effect from
time to time, the “Depositary
Agreement”) among HLI Operating Company, Inc., a Delaware corporation
(the “U.S.
Borrower”), and Hayes Lemmerz Finance LLC - Luxembourg S.C.A., a société
en commandite par actions organized under the laws of the Grand Duchy of
Luxembourg (the “Luxembourg Borrower”
and, together with the U.S. Borrower, the “Borrowers”), Deutsche
Bank AG New York Branch, in its capacity as DIP Administrative Agent for the DIP
Lenders (together with its successors and permitted assigns in such capacity,
the “DIP
Administrative Agent”), and Deutsche Bank Trust Company Americas, in its
capacity as depositary and as securities intermediary (together with its
successors and permitted assigns in such capacity, the “Depositary”).  Unless
otherwise defined herein or unless the context otherwise requires, terms used in
this Withdrawal Certificate have the meanings provided in the Depositary
Agreement.  This Withdrawal Certificate is intended to implement the
provisions of the Depositary Agreement and, in the event of any inconsistency
between this Withdrawal Certificate and the provisions of the Depositary
Agreement, the provisions of the Depositary Agreement shall govern.

     

    In
this Withdrawal Certificate, Depositary is hereby directed to withdraw funds
from the following Accounts and apply such funds as provided herein (check each Account that applies and
include in the Withdrawal Certificate only the pages applicable to the
Account(s) which have been checked).

     

    This
Withdrawal Certificate relates to ________________, 20__ which is a Subject
Transfer Date.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



    


     

    
      	
              
                £

              

            	
               

            	
              U.S. BORROWER DOLLAR COLLATERAL
      ACCOUNT

            


    

     

    The
U.S. Borrower hereby directs Depositary to withdraw from the U.S. Borrower
Dollar Collateral Account the following amounts and transfer such amounts on the
Subject Transfer Date (check
each that applies):

     

    £           Transfer
$_________ to the DIP Administrative Agent by wire transfer to the DIP
Administrative Agent Payment Account for payment of the following amounts in
accordance with Section 3.2(c)(first)
of the Depositary Agreement:

     

    (i)
$___________ with respect to interest payable to the DIP Lenders with respect to
DIP Loans; and

     

    (ii)
$___________ with respect to [SPECIFY] payable to the [DIP Lenders][the DIP
Administrative Agent][the Depositary] with respect to the DIP Loan
Documents.

     

    £           Transfer
$_________ to the U.S. Borrower by wire transfer to the U.S. Borrower Payment
Account for payment of U.S. Borrower Permitted Expenses with respect to the next
succeeding five (5) Business Days.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



    


     

    
      	
              
                £

              

            	
               

            	
              LUXEMBOURG BORROWER DOLLAR
      COLLATERAL ACCOUNT

            


    

     

    The
Luxembourg Borrower hereby directs Depositary to withdraw from the Luxembourg
Borrower Dollar Collateral Account the following amounts and transfer such
amounts on the Subject Transfer Date (check each that
applies):

     

    £           Transfer
$_________ to the DIP Administrative Agent by wire transfer to the DIP
Administrative Agent Payment Account for payment of the following amounts in
accordance with Section 3.3(c)(first)
of the Depositary Agreement:

     

    (i)
$___________ with respect to interest payable to the DIP Lenders with respect to
DIP Loans; and

     

    (ii)
$___________ with respect to [SPECIFY] payable to the [DIP Lenders][the DIP
Administrative Agent][the Depositary] with respect to the DIP Loan
Documents.

     

    £           Transfer
$_________ to the Luxembourg Borrower by wire transfer to the Luxembourg
Borrower Dollar Payment Account for payment of Luxembourg Borrower Permitted
Expenses with respect to  next succeeding five (5) Business
Days.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



    


     

    
      	
              
                £

              

            	
               

            	
              LUXEMBOURG BORROWER EURO
      COLLATERAL ACCOUNT

            


    

     

    The
Luxembourg Borrower hereby directs Depositary to withdraw from the Luxembourg
Borrower Euro Collateral Account the following amounts and transfer such amounts
on the Subject Transfer Date (check each that
applies):

     

    £           Transfer
€_________ to the DIP Administrative Agent by wire transfer to the DIP
Administrative Agent Payment Account for payment of the following amounts in
accordance with Section 3.4(c)(first)
of the Depositary Agreement:

     

    (i)
€___________ with respect to interest payable to the DIP Lenders with respect to
DIP Loans; and

     

    (ii)
€___________ with respect to [SPECIFY] payable to the [DIP Lenders][the DIP
Administrative Agent][the Depositary] with respect to the DIP Loan
Documents.

     

    £           Transfer
€_________ to the Luxembourg Borrower by wire transfer to the Luxembourg
Borrower Euro Payment Account for payment of Luxembourg Borrower Permitted
Expenses with respect to the next succeeding five (5) Business
Days.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



    INSERT
THIS PAGE WITH ANY WITHDRAWAL CERTIFICATE

     

    CERTIFICATION

     

    Each
Borrower requesting a transfer under this Withdrawal Certificate hereby
certifies, represents and warrants as follows:

     

    (a)           Representations and
Warranties; No Defaults.  The following statements shall be
true on the date of this Withdrawal Certificate and on the Subject Transfer
Date, both before and after giving effect to the transfers contemplated hereby
and to the application of the proceeds of such transfers:

     

    (i)           the
representations and warranties set forth in Article IV.A of the
Amended Credit Agreement and in the other DIP Loan Documents are true and
correct in all material respects, except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects as of such earlier date;

     

    (ii)           the
transfers contemplated hereby and the application of the proceeds of such
transfers do not violate any Requirement of Law, the provisions of the Interim
Order, the Final Order (if in effect) or the provisions of any DIP Loan Document
and are not enjoined, temporarily, preliminarily or permanently;
and

     

    (iii)           no
Default or Event of Default under Section 9.1.A of the
Amended Credit Agreement  shall have occurred
and be continuing.

     

    (b)           Use of
Proceeds.

     

    (i)           The
amounts being transferred are with respect to U.S. Borrower Permitted Expenses
(in the case of the of the U.S. Borrower and its Subsidiaries) and the
Luxembourg Permitted Expenses (in the case of the Luxembourg Borrower and its
Subsidiaries)  that are due and payable within the next succeeding
five (5) Business Days, in each case consistent with the Adjusted Budget, the
Orders and the DIP Loan Documents (the amounts described above, the “Permitted
Amounts”);

     

    (ii)
Without giving effect to the transfers contemplated hereby and to the
application of the proceeds of such transfers, the excess (if any) of (A)
Available Cash of the Obligors on the date of this Withdrawal Certificate (taken
together with Available Cash of the Obligors reasonable expected to be available
within the succeeding five (5) Business Days) over (B) $12,500,000 is
insufficient to pay the Permitted Amounts.

     

    (iii)           The
Borrowers shall apply the amounts being transferred for the intended purpose of
such transfer in accordance with the DIP Loan Documents, and for no other
purposes.

     

    (c)           Interim Order or Final Order
in Effect.  The Interim
Order or Final Order (as applicable) and the Amended Credit Agreement and the
other DIP Loan Documents shall be in full force and effect, and shall not, in
whole or in part, have been reversed, modified, amended, stayed, vacated,
appealed or subject to a stay pending appeal or otherwise challenged or subject
to any pending or threatened (in writing) challenge or proceeding in any
jurisdiction in any part of the world and the Debtors shall be in compliance
with the Interim Order or Final Order, as applicable.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    

 

    IN
WITNESS WHEREOF, this Withdrawal Certificate is duly executed and delivered by a
duly authorized representative of each Person executing this Withdrawal
Certificate as of the date first above written.

     

    
      
        
          
            
              	 
      	
                      HLI
      OPERATING COMPANY, INC.,

                    
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                      By:

                    	 
      
	 
      	 
      	
                      Name:

                    
	 
      	 
      	
                      Title:

                    
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                      HAYES
      LEMMERZ FINANCE LLC – LUXEMBOURG S.C.A.,

                    
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                      By:

                    	 
      
	 
      	 
      	
                      Name:

                    
	 
      	 
      	
                      Title: