AMENDED AND RESTATED INTERCREDITOR AGREEMENT
Exhibit
10.1(d)
AMENDED
AND RESTATED INTERCREDITOR AGREEMENT
THIS
AMENDED AND RESTATED INTERCREDITOR AGREEMENT is amended and restated as of
April
3, 2007, among CREDIT SUISSE, CAYMAN ISLANDS BRANCH (“Credit
Suisse”)
and
BANK OF AMERICA, N.A., each in their capacity as First Lien Agent, ▇▇▇▇▇ FARGO
BANK, N.A., as Trustee, ▇▇▇▇▇ PLASTICS GROUP, INC., a Delaware corporation
(“Holdings”),
COVALENCE SPECIALTY MATERIALS CORP., a Delaware corporation, which on the
Closing Date shall be merged (the “Merger”)
with
and into ▇▇▇▇▇ PLASTICS HOLDING CORPORATION (“▇▇▇▇▇”),
with
▇▇▇▇▇ PLASTICS HOLDING CORPORATION surviving such Merger as a borrower under
the
Term Credit Agreement (as defined below), a borrower under the Revolving Credit
Agreement (as defined below), and the obligor under the Notes (as defined below)
(the “Company”),
and
each Subsidiary of the Company listed on Schedule I hereto or that becomes
a
party hereto pursuant to Section 8.21 below.
A.
WHEREAS, ▇▇▇▇▇ Plastics Group Inc., BPC Acquisition Corp., which was merged
with
and into ▇▇▇▇▇ (formerly known as BPC Holding Corporation), the lenders and
agents named therein, and Credit Suisse, Cayman Islands Branch, as
administrative agent and collateral agent for such lenders, are parties to
that
certain Credit Agreement dated as of September 20, 2006 (as amended, amended
and
restated, replaced, refinanced, supplemented or otherwise modified from time
to
time, the “Existing
Credit Agreement”);
B.
WHEREAS, contemporaneously with the execution and delivery of this Amended
and
Restated Intercreditor Agreement, the Existing Credit Agreement will be
refinanced with: i) the Second Amended and Restated Term Loan Credit Agreement
dated as of April 3, 2007 (as amended, amended and restated, replaced,
refinanced, supplemented or otherwise modified from time to time, the
“Term Credit
Agreement”)
among
Holdings, the Company, the lenders party thereto from time to time, Credit
Suisse, Cayman Islands Branch, as administrative agent, Deutsche Bank Securities
Inc., as syndication agent, and Banc of America, Securities LLC, Citigroup
Global Markets Inc., ▇▇▇▇▇▇▇ Sachs Credit Partners L.P., ▇.▇. ▇▇▇▇▇▇ Securities
Inc. and ▇▇▇▇▇▇ Brothers Inc., as co-documentation agents and ii) the Second
Amended and Restated Revolving Credit Agreement dated as of April 3, 2007 (as
amended, amended and restated, replaced, refinanced, supplemented or otherwise
modified from time to time, the “Revolving Credit
Agreement”
and
together with the Term Credit Agreement individually and collectively referred
to as the “Credit
Agreement”)
among
Holdings, the Company, the lenders party thereto from time to time, Bank of
America, N.A., as administrative agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P,
as
syndication agent and Credit Suisse Securities (USA) LLC, Citigroup Global
Markets Inc., Deutsche Bank AG New York Branch, ▇.▇. ▇▇▇▇▇▇ Securities Inc.
and
▇▇▇▇▇▇ Brothers Inc., as co-documentation agents;
C.
WHEREAS, the Company is party to the Indenture dated as of September 20, 2006
(as amended, amended and restated, replaced, refinanced, supplemented or
otherwise modified from time to time, the “Second
Priority Senior Secured Notes Indenture”),
under
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which
the
Second Lien Fixed Rate Notes and the Second Lien Floating Rate Notes were
issued, among ▇▇▇▇▇, as obligor, the note guarantors as set forth therein (the
“Note
Guarantors”)
and
▇▇▇▇▇ Fargo Bank, N.A., as Trustee. The Obligations of the Company and the
Note
Guarantors under the Second Priority Senior Secured Notes Indenture, the Notes,
and the other Noteholder Documents constitute Second Priority Claims;
and
D.
WHEREAS, it is the intent of the parties hereto that this Agreement not
constitute a novation of the obligations and liabilities of the parties
hereunder and that this Agreement be amended and restated in its entirety on
the
date hereof.
Accordingly,
in consideration of the foregoing, the mutual covenants and obligations herein
set forth and for other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto, intending to
be
legally bound, hereby agree as follows:
Section
1. Definitions.
1.1.
Defined
Terms.
As used
in this Agreement, the following terms have the meanings specified
below:
“Affiliate”
shall
mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the person specified.
“Agreement”
shall
mean this Agreement, as amended, renewed, extended, supplemented or otherwise
modified from time to time in accordance with the terms hereof.
“Bankruptcy
Law”
shall
mean Title 11 of the United States Code and any similar Federal, state or
foreign law for the relief of debtors.
“Closing
Date”
shall
have the meaning set forth in the Term Credit Agreement.
“Common
Collateral”
shall
mean all of the assets of any Grantor, whether real, personal or mixed,
constituting both Senior Lender Collateral and Second Priority Collateral,
including without limitation any assets in which the First Lien Agents are
automatically deemed to have a Lien pursuant to the provisions of Section
2.3.
“Company”
shall
have the meaning set forth in the preamble.
“Comparable
Second Priority Collateral Document”
shall
mean, in relation to any Common Collateral subject to any Lien created under
any
Senior Collateral Document, those Second Priority Collateral Documents that
create a Lien on the same Common Collateral, granted by the same
Grantor.
“Credit
Agreement”
shall
have the meaning set forth in the recitals.
“Domestic
Subsidiary”
shall
have the meaning set forth in the Term Credit Agreement.
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“DIP
Financing”
shall
have the meaning set forth in Section 6.1.
“Discharge
of Senior Lender Claims”
shall
mean, except to the extent otherwise provided in Section 5.7 below, payment
in
full in cash (except for contingent indemnities and cost and reimbursement
obligations to the extent no claim has been made) of (a) all Obligations in
respect of all outstanding Senior Lender Claims and, with respect to letters
of
credit or letter of credit guaranties outstanding thereunder, delivery of cash
collateral or backstop letters of credit in respect thereof in compliance with
the Revolving Credit Agreement, in each case after or concurrently with the
termination of all commitments to extend credit thereunder and (b) any other
Senior Lender Claims that are due and payable or otherwise accrued and owing
at
or prior to the time such principal and interest are paid; provided that the
Discharge of Senior Lender Claims shall not be deemed to have occurred if such
payments are made with the proceeds of other Senior Lender Claims that
constitute an exchange or replacement for or a refinancing of such Obligations
or Senior Lender Claims. In the event the Senior Lender Claims are modified
and
the Obligations are paid over time or otherwise modified pursuant to Section
1129 of the Bankruptcy Code, the Senior Lender Claims shall be deemed to be
discharged when the final payment is made, in cash, in respect of such
indebtedness and any obligations pursuant to such new indebtedness shall have
been satisfied.
“First
Lien Agent”
shall
mean each of Credit Suisse, Cayman Islands Branch, and Bank of America, N.A.
(or
either of them as applicable) in their capacities as administrative agents
and
collateral agents for the Senior Lenders under the Term Credit Agreement and
the
Revolving Credit Agreement, respectively, and the other Senior Lender Documents
entered into pursuant to the Credit Agreement, together with their respective
successors and permitted assigns under the respective Credit Agreement
exercising substantially the same rights and powers.
“Future
Second Lien Indebtedness”
shall
mean Indebtedness or Obligations (other than Noteholder Claims) of the Company
and its Subsidiaries that are to be equally and ratably secured with the
Noteholder Claims and are so designated by the Company as Future Second Lien
Indebtedness; provided, however, that such Future Second Lien Indebtedness
is
permitted to be so incurred in accordance with any Senior Lender Documents
and
any Second Priority Documents, as applicable.
“Grantors”
shall
mean the Company, Holdings and each of the Company’s Subsidiaries that has
executed and delivered a Second Priority Collateral Document or a Senior
Collateral Document.
“Indebtedness”
shall
mean and include all obligations that constitute “Indebtedness” within the
meaning of the Second Priority Senior Secured Notes Indenture or the Credit
Agreement.
“Indenture
Secured Parties”
shall
mean the Persons holding Noteholder Claims, including the Trustee.
“Insolvency
or Liquidation Proceeding”
shall
mean (a) any voluntary or involuntary case or proceeding under any Bankruptcy
Law with respect to any Grantor, (b) any other voluntary or involuntary
insolvency, reorganization or bankruptcy case or proceeding, or
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any
receivership, liquidation, reorganization or other similar case or proceeding
with respect to any Grantor or with respect to any of its assets, (c) any
liquidation, dissolution, reorganization or winding up of any Grantor whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy
or (d) any assignment for the benefit of creditors or any other marshalling
of
assets and liabilities of any Grantor.
“Lien”
shall
mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, charge, security interest or similar encumbrance in
or on
such asset and (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or an financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset.
“Loan
Parties”
shall
mean Holdings, the Company and the Subsidiary Loan Parties.
“Note
Guarantors”
shall
have the meaning set forth in the recitals.
“Noteholder
Claims”
shall
mean all Obligations in respect of the Notes or arising under the Noteholder
Documents or any of them, including all fees and expenses of the Trustee
thereunder.
“Noteholder
Collateral”
shall
mean all of the assets of any Grantor, whether real, personal or mixed, with
respect to which a Lien is granted as security for any Noteholder
Claim.
“Noteholder
Collateral Agreement”
shall
mean the Collateral Agreement dated as of September 20, 2006, among the Company,
certain other Grantors and the Trustee in respect of the Second Priority Senior
Secured Notes Indenture.
“Noteholder
Collateral Documents”
shall
mean the Noteholder Collateral Agreement and any other document or instrument
pursuant to which a Lien is granted by any Grantor to secure any Noteholder
Claims or under which rights or remedies with respect to any such Lien are
governed.
“Noteholder
Documents”
shall
mean (a) the Second Priority Senior Secured Notes Indenture, the Notes, the
Noteholder Collateral Documents and (b) any other related document or instrument
executed and delivered pursuant to any Noteholder Document described in clause
(a) above evidencing or governing any Obligations thereunder.
“Notes”
shall
mean (a) (i) the initial $525,000,000 in aggregate principal amount of 8⅞%
second priority senior secured fixed rate notes due 2014 and (ii) the initial
$225,000,000 in aggregate principal amount of second priority senior secured
floating rate notes due 2014, each issued by the Company pursuant to the Second
Priority Senior Secured Notes Indenture, (b) the exchange notes issued in
exchange therefor as contemplated by the Registration Rights Agreement dated
as
of September 20, 2006, among the Company, certain of the Company's Subsidiaries
and the initial purchasers party thereto and (c) any additional notes issued
under the Second Priority Senior Secured Notes Indenture by the Company, to
the
extent permitted by the Second Priority Senior Secured Notes Indenture, the
Credit Agreement, any other Senior Lender Documents and any Second Priority
Document, as applicable.
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“Obligations”
shall
mean, with respect to any Person, any payment, performance or other obligations
of such Person of any kind, including, without limitation, any liability of
such
Person on any claim, whether or not the right of any creditor to payment in
respect of such claim is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any Insolvency or Liquidation Proceeding. Without limiting the
generality of the foregoing, the Obligations of any Grantor under any Senior
Lender Document or Second Priority Document include the obligations to pay
principal, interest (including interest accrued on or accruing after the
commencement of any Insolvency or Liquidation Proceeding, whether or not a
claim
for post-filing interest is allowed in such proceeding) or premium on any
Indebtedness, letter of credit commissions (if applicable), charges, expenses,
fees, attorneys’ fees and disbursements, indemnities and other amounts payable
by such Grantor to reimburse any amount in respect of any of the foregoing
that
any Senior Lender or Second Priority Secured Party, in its sole discretion,
many
elect to pay or advance on behalf of such Grantor.
“Officers’
Certificate”
shall
have the meaning set forth in the Second Priority Senior Secured Notes
Indenture.
“Person”
shall
mean an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.
“Pledged
Collateral”
shall
mean the Common Collateral in the possession of any First Lien Agent (or its
agents or bailees), to the extent that possession thereof perfects a Lien
thereon under the Uniform Commercial Code.
“Recovery”
shall
have the meaning set forth in Section 6.4.
“Required
Lenders”
shall
mean, with respect to any Credit Agreement, those Senior Lenders the approval
of
which is required to approve an amendment or modification of, termination or
waiver of any provision of or consent to any departure from such Credit
Agreement (or would be required to effect such consent under this Agreement
if
such consent were treated as an amendment of the Credit Agreement). Unless
the
context otherwise requires, the term “Required Lenders” when used herein shall
mean the Required Lenders with respect to each of the Credit
Agreements.
“Second
Lien Fixed Rate Notes”
shall
mean the Borrower’s 8⅞% Second Priority Senior Secured Notes due 2014, issued
pursuant to the Second Lien Notes Indenture and any notes issued by the Company
in exchange for, and as contemplated by, the Second Lien Fixed Rate Notes and
the related registration rights agreement with substantially identical terms
as
the Second Lien Fixed Rate Notes.
“Second
Lien Floating Rate Notes”
shall
mean the Borrower’s floating rate Second Priority Senior Secured Notes due 2014,
issued pursuant to the Second Lien Notes Indenture and any notes issued by
the
Company in exchange for, and as contemplated by, the Second Lien Floating Rate
Notes and the related registration rights agreement with substantially identical
terms as the Second Lien Floating Rate Notes.
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“Second
Priority Agents”
shall
mean (a) the Trustee as agent for the Indenture Secured Parties and (b) the
collateral agent for any Future Second Lien Indebtedness (including the
Trustee).
“Second
Priority Claims”
shall
mean the Noteholder Claims and all other Obligations in respect of, or arising
under, the Second Priority Documents, including all fees and expenses of the
collateral agent for any Future Second Lien Indebtedness.
“Second
Priority Collateral”
shall
mean the Noteholder Collateral and all of the assets of any Grantor, whether
real, personal or mixed, with respect to which a Lien is granted as security
for
any Future Second Lien Indebtedness.
“Second
Priority Collateral Agreements”
shall
mean the Noteholder Collateral Agreement and any comparable agreement with
respect to any Future Second Lien Indebtedness.
“Second
Priority Collateral Documents”
shall
mean the Noteholder Collateral Documents and any other agreement, document
or
instrument pursuant to which a Lien is now or hereafter granted securing any
Second Priority Claims or under which rights or remedies with respect to such
Liens are at any time governed.
“Second
Priority Designated Agent”
shall
mean such agent or trustee as is designated “Second Priority Designated Agent”
by Second Priority Secured Parties holding a majority in principal amount of
the
Second Priority Claims then outstanding; it being understood that as of the
date
of this Agreement and for so long as any Obligations under the Second Priority
Secured Notes Indenture remain outstanding, the Trustee shall be so designated
Second Priority Designated Agent.
“Second
Priority Documents”
shall
mean the Noteholder Documents and any other document or instrument evidencing
or
governing any Future Second Lien Indebtedness.
“Second
Priority Lien”
shall
mean any Lien on any assets of the Company or any other Grantor securing any
Second Priority Claims.
“Second
Priority Secured Parties”
shall
mean the Indenture Secured Parties and all other Persons holding any Second
Priority Claims, including the collateral agent for any Future Second Lien
Indebtedness.
“Second
Priority Senior Secured Notes Indenture”
shall
have the meaning set forth in the recitals.
“Secured
Hedge Agreements”
shall
mean each Swap Agreement that (i) is in effect on the Closing Date with a
counterparty that is a Senior Lender or an Affiliate of a Senior Lender as
of
the Closing Date or (ii) is entered into after the Closing Date with any
counterparty that is a Senior Lender or an Affiliate of a Senior Lender at
the
time such Swap Agreement is entered into.
“Securities
Account”
shall
have the meaning set forth in the Uniform Commercial Code.
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“Senior
Collateral Agreement”
shall
mean the Guarantee and Collateral Agreement dated as of April 3, 2007, among
the
Company, the other Grantors, Holdings and Credit Suisse, Cayman Islands Branch,
and Bank of America, N.A. as collateral agents for the secured parties referred
to therein.
“Senior
Collateral Documents”
shall
mean the Senior Collateral Agreement and any security agreement, mortgage or
other agreement, document or instrument pursuant to which a Lien is now or
hereafter granted securing any Senior Lender Claims or under which rights or
remedies with respect to such Lien are at any time governed.
“Senior
Intercreditor Agreement”
shall
mean the Amended and Restated Senior Lender Priority and Intercreditor Agreement
dated as of April 3, 2007 among Credit Suisse, Cayman Islands Branch, Bank
of
America, N.A., Holdings and the Company.
“Senior
Lender Cash Management Obligations”
shall
mean, with respect to any Grantor, the due and punctual payment and performance
of all obligations of such Grantor in respect of overdrafts and related
liabilities owed to a Senior Lender under the Revolving Credit Agreement or
any
of its Affiliates (or any other Person designated by the Company as a provider
of cash management services and entitled to the benefit of the Senior Collateral
Agreement) and arising from cash management services (including treasury,
depository, overdraft, credit or debit card, electronic funds transfer,
Automated Clearing House services and other cash management
arrangements).
“Senior
Lender Claims”
shall
mean all Obligations arising under the Credit Agreement or any other Senior
Lender Document, whether or not such Obligations constitute Indebtedness,
including, without limitation, (a) Obligations arising under Secured Hedge
Agreements, (b) Senior Lender Cash Management Obligations and (c) Obligations
under any credit agreement that is an exchange or replacement for or an
extension, increase or refinancing of any other Senior Lender Claims. Senior
Lender Claims shall include all interest and expenses accrued or accruing (or
that would, absent the commencement of an Insolvency or Liquidation Proceeding,
accrue) after the commencement of an Insolvency or Liquidation Proceeding in
accordance with and at the rate specified in the relevant Senior Lender
Documents whether or not the claim for such interest or expenses is allowed
or
allowable as a claim in such Insolvency or Liquidation Proceeding.
“Senior
Lender Collateral”
shall
mean all of the assets of any Grantor, whether real, personal or mixed, with
respect to which a Lien is granted as security for any Senior Lender
Claim.
“Senior
Lender Documents”
shall
mean the Credit Agreement, the Senior Collateral Documents, the Senior
Intercreditor Agreement and each of the other agreements, documents and
instruments (including each agreement, document or instrument providing for
or
evidencing a Senior Lender Hedging Obligation or Senior Lender Cash Management
Obligation) providing for, evidencing or securing any Senior Lender Claim,
including, without limitation, any Obligation under the Credit Agreement and
any
other related document or instrument executed or delivered pursuant to any
such
document at any time or otherwise evidencing or securing any Indebtedness
arising under any such document.
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“Senior
Lender Hedging Obligations”
shall
mean any Obligations under Secured Hedge Agreements.
“Senior
Lenders”
shall
mean the Persons holding Senior Lender Claims, including the First Lien
Agents.
“Subsidiary”
shall
mean any “Subsidiary” of the Company as defined in the Credit Agreement.
“Subsidiary
Loan Party”
shall
mean (a) each Domestic Subsidiary of the Company on the Closing Date and (b)
each Domestic Subsidiary of the Company that becomes, or is required to become,
a party to the Collateral Agreement and this Agreement after the Closing
Date.
“Trustee”
shall
mean ▇▇▇▇▇ Fargo Bank, N.A., in its capacity as trustee under the Second
Priority Senior Secured Notes Indenture and as collateral agent under the
Noteholder Collateral Documents, and its permitted successors.
“Swap
Agreement”
shall
mean any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities (including, for the avoidance
of
doubt, resin), equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or value
or any similar transaction or any combination of these transactions;
provided,
that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants
of
Holdings, the Company or any of the Subsidiaries shall be a Swap
Agreement.
“Uniform
Commercial Code”
or
“UCC”
shall
mean the Uniform Commercial Code as from time to time in effect in the State
of
New York.
1.2.
Terms
Generally.
The
definitions of terms herein shall apply equally to the singular and plural
forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
“include,” “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or
other document as from time to time amended, supplemented or otherwise modified
in accordance with this Agreement, (b) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, (c) the words
“herein,” “hereof” and “hereunder,” and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Sections shall be construed
to
refer to Sections of this Agreement and (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any
and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
Section
2. Lien Priorities.
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2.1.
Subordination
of Liens.
Notwithstanding (i) the date, time, method, manner or order of filing or
recordation of any document or instrument or grant, attachment or perfection
(including any defect or deficiency or alleged defect or deficiency in any
of
the foregoing) of any Liens granted to the Second Priority Secured Parties
on
the Common Collateral or of any Liens granted to any First Lien Agent or Senior
Lenders on the Common Collateral, (ii) any provision of the UCC, the Bankruptcy
Code, or any applicable law or the Second Priority Documents or the Senior
Lender Documents, (iii) whether any First Lien Agent, either directly or through
agents, holds possession of, or has control over, all or any part of the Common
Collateral, (iv) the fact that any such Liens may be subordinated, voided,
avoided, invalidated or lapsed or (v) any other circumstance of any kind or
nature whatsoever, each Second Priority Agent, on behalf of itself and each
applicable Second Priority Secured Party, hereby agrees that: (a) any Lien
on
the Common Collateral securing any Senior Lender Claims now or hereafter held
by
or on behalf of any First Lien Agent or any Senior Lenders or any agent or
trustee therefor regardless of how acquired, whether by grant, statute,
operation of law, subrogation or otherwise, shall have priority over and be
senior in all respects and prior to any Lien on the Common Collateral securing
any Second Priority Claims and (b) any Lien on the Common Collateral securing
any Second Priority Claims now or hereafter held by or on behalf of the Trustee
or any Second Priority Secured Parties or any agent or trustee therefor
regardless of how acquired, whether by grant, statute, operation of law,
subrogation or otherwise, shall be junior and subordinate in all respects to
all
Liens on the Common Collateral securing any Senior Lender Claims. All Liens
on
the Common Collateral securing any Senior Lender Claims shall be and remain
senior in all respects and prior to all Liens on the Common Collateral securing
any Second Priority Claims for all purposes, whether or not such Liens securing
any Senior Lender Claims are subordinated to any Lien securing any other
obligation of the Company, any other Grantor or any other Person.
2.2.
Prohibition
on Contesting Liens.
Each
Second Priority Agent, for itself and on behalf of each applicable Second
Priority Secured Party, and each First Lien Agent, for itself and on behalf
of
each Senior Lender, agrees that it shall not (and hereby waives any right to)
take any action to challenge, contest or support any other Person in contesting
or challenging, directly or indirectly, in any proceeding (including any
Insolvency or Liquidation Proceeding), the validity, perfection, priority or
enforceability of (a) a Lien securing any Senior Lender Claims held (or
purported to be held) by or on behalf of any First Lien Agent or any of the
Senior Lenders or any agent or trustee therefor in any Senior Lender Collateral
or (b) a Lien securing any Second Priority Claims held (or purported to be
held)
by or on behalf of any Second Priority Secured Party in the Common Collateral,
as the case may be; provided, however, that nothing in this Agreement shall
be
construed to prevent or impair the rights of any First Lien Agent or any Senior
Lender to enforce this Agreement (including the priority of the Liens securing
the Senior Lender Claims as provided in Section 2.1) or any of the Senior Lender
Documents.
2.3.
No
New
Liens.
So long
as the Discharge of Senior Lender Claims has not occurred, each Second Priority
Agent agrees, for itself and on behalf of each applicable Second Priority
Secured Party, whether or not any Insolvency or Liquidation Proceeding has
been
commenced by or against the Company or any other Grantor, that it shall not
acquire or hold any Lien on any assets of the Company or any other Grantor
securing any Second Priority Claims that are not also subject to the
first-priority Lien in respect of the Senior Lender Claims under
the
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Senior
Lender Documents. If any Second Priority Agent or any Second Priority Secured
Party shall (nonetheless and in breach hereof) acquire or hold any Lien on
any
collateral that is not also subject to the first-priority Lien in respect of
the
Senior Lender Claims under the Senior Lender Documents, then such Second
Priority Agent shall, without the need for any further consent of any party
and
notwithstanding anything to the contrary in any other document, be deemed to
also hold and have held such lien for the benefit of the First Lien Agents
as
security for the Senior Lender Claims (subject to the lien priority and other
terms hereof) and shall promptly notify each First Lien Agent in writing of
the
existence of such Lien and in any event take such actions as may be requested
by
any First Lien Agent to assign or release such Liens to the First Lien Agents
(and/or each of its designee) as security for the applicable Senior Lender
Claims.
2.4.
Perfection
of Liens.
Neither
the First Lien Agents nor the Senior Lenders shall be responsible for perfecting
and maintaining the perfection of Liens with respect to the Common Collateral
for the benefit of the Second Priority Agents and the Second Priority Secured
Parties. The provisions of this Agreement are intended solely to govern the
respective Lien priorities as between the Senior Lenders and the Second Priority
Secured Parties and shall not impose on the First Lien Agents, the Second
Priority Agents, the Second Priority Secured Parties or the Senior Lenders
or
any agent or trustee therefor any obligations in respect of the disposition
of
proceeds of any Common Collateral which would conflict with prior perfected
claims therein in favor of any other Person or any order or decree of any court
or governmental authority or any applicable law.
2.5.
Waiver
of Marshalling.
Until
the Discharge of the Senior Lender Claims, the Second Priority Agent, on behalf
of itself and the Second Priority Secured Parties, agrees not to assert and
hereby waives, to the fullest extent permitted by law, any right to demand,
request, plead or otherwise assert or otherwise claim the benefit of, any
marshalling, appraisal, valuation or other similar right that may otherwise
be
available under applicable law with respect to the Common Collateral or any
other similar rights a junior secured creditor may have under applicable
law.
Section
3. Enforcement.
3.1.
Exercise
of Remedies.
(a)
So
long as the Discharge of Senior Lender Claims has not occurred, whether or
not
any Insolvency or Liquidation Proceeding has been commenced by or against the
Company or any other Grantor, (i) no Second Priority Agent or any Second
Priority Secured Party will (x) exercise or seek to exercise any rights or
remedies (including setoff or recoupment) with respect to any Common Collateral
or any other security in respect of any applicable Second Priority Claims,
or
exercise any right under any lockbox agreement, control agreement, landlord
waiver or bailee’s letter or similar agreement or arrangement, or institute any
action or proceeding with respect to such rights or remedies (including any
action of foreclosure), (y) contest, protest or object to any foreclosure
proceeding or action brought with respect to the Common Collateral or any other
collateral by any First Lien Agent or any Senior Lender in respect of the Senior
Lender Claims, the exercise of any right by any First Lien Agent or any Senior
Lender (or any agent or sub-agent on their behalf) in respect of the Senior
Lender Claims
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under
any
lockbox agreement, control agreement, landlord waiver or bailee’s letter or
similar agreement or arrangement to which any Second Priority Agent or any
Second Priority Secured Party either is a party or may have rights as a third
party beneficiary, or any other exercise by any such party, of any rights and
remedies relating to the Common Collateral or any other collateral under the
Senior Lender Documents or otherwise in respect of Senior Lender Claims, or
(z)
object to the forbearance by the Senior Lenders from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any rights or remedies
relating to the Common Collateral or any other collateral in respect of Senior
Lender Claims and (ii) except as otherwise provided herein, each First Lien
Agent and the Senior Lenders shall have the exclusive right to enforce rights,
exercise remedies (including setoff and the right to credit bid their debt)
and
make determinations regarding the release, disposition or restrictions with
respect to the Common Collateral without any consultation with or the consent
of
any Second Priority Agent or any Second Priority Secured Party; provided,
however, that (A) in any Insolvency or Liquidation Proceeding commenced by
or
against the Company or any other Grantor, each Second Priority Agent may file
a
proof of claim or statement of interest with respect to the applicable Second
Priority Claims and (B) each Second Priority Agent may take any action (not
adverse to the prior Liens on the Common Collateral securing the Senior Lender
Claims, or the rights of either First Lien Agent or the Senior Lenders to
exercise remedies in respect thereof) in order to create, prove, perfect,
preserve or protect (but not enforce) its rights in, and perfection and priority
of its Lien on, the Common Collateral. In exercising rights and remedies with
respect to the Senior Lender Collateral, each First Lien Agent and the Senior
Lenders may enforce the provisions of the Senior Lender Documents and exercise
remedies thereunder, all in such order and in such manner as they may determine
in the exercise of their sole discretion. Such exercise and enforcement shall
include the rights of an agent appointed by them to sell or otherwise dispose
of
Common Collateral or other collateral upon foreclosure, to incur expenses in
connection with such sale or disposition, and to exercise all the rights and
remedies of a secured lender under the uniform commercial code of any applicable
jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable
jurisdiction.
(b)
So
long as the Discharge of Senior Lender Claims has not occurred, each Second
Priority Agent, on behalf of itself and each applicable Second Priority Secured
Party, agrees that it will not take or receive any Common Collateral or other
collateral or any proceeds of Common Collateral or other collateral in
connection with the exercise of any right or remedy (including setoff or
recoupment) with respect to any Common Collateral or other collateral in respect
of the applicable Second Priority Claims. Without limiting the generality of
the
foregoing, unless and until the Discharge of Senior Lender Claims has occurred,
except as expressly provided in the proviso in clause (ii) of Section 3.1(a),
the sole right of the Second Priority Agents and the Second Priority Secured
Parties with respect to the Common Collateral or any other collateral is to
hold
a Lien on the Common Collateral or such other collateral in respect of the
applicable Second Priority Claims pursuant to the Second Priority Documents,
as
applicable, for the period and to the extent granted therein and to receive
a
share of the proceeds thereof, if any, after the Discharge of Senior Lender
Claims has occurred.
(c)
Subject to the proviso in clause (ii) of Section 3.1(a) above, (i) each Second
Priority Agent, for itself and on behalf of each applicable Second Priority
Secured Party, agrees that no Second Priority Agent or any Second Priority
Secured Party will take any action that would
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hinder
any exercise of remedies undertaken by any First Lien Agent or the Senior
Lenders with respect to the Common Collateral or any other collateral under
the
Senior Loan Documents, including any sale, lease, exchange, transfer or other
disposition of the Common Collateral or such other collateral, whether by
foreclosure or otherwise, and (ii) each Second Priority Agent, for itself and
on
behalf of each applicable Second Priority Secured Party, hereby waives any
and
all rights it or any Second Priority Secured Party may have as a junior lien
creditor or otherwise to object to the manner in which any First Lien Agent
or
the Senior Lenders seek to enforce or collect the Senior Lender Claims or the
Liens granted in any of the Senior Lender Collateral, regardless of whether
any
action or failure to act by or on behalf of any First Lien Agent or Senior
Lenders is adverse to the interests of the Second Priority Secured
Parties.
(d)
Each
Second Priority Agent hereby acknowledges and agrees that no covenant, agreement
or restriction contained in any applicable Second Priority Document shall be
deemed to restrict in any way the rights and remedies of any First Lien Agent
or
the Senior Lenders with respect to the Senior Lender Collateral as set forth
in
this Agreement and the Senior Lender Documents.
3.2.
Cooperation.
Subject
to the proviso in clause (ii) of Section 3.1(a), each Second Priority Agent,
on
behalf of itself and each applicable Second Priority Secured Party, agrees
that,
unless and until the Discharge of Senior Lender Claims has occurred, it will
not
commence, or join with any Person (other than the Senior Lenders and any First
Lien Agent upon the request thereof) in commencing, any enforcement, collection,
execution, levy or foreclosure action or proceeding with respect to any Lien
held by it in the Common Collateral or any other collateral under any of the
applicable Second Priority Documents or otherwise in respect of the applicable
Second Priority Claims relating to the Common Collateral.
3.3
Actions
Upon Breach.
If any
Second Priority Secured Party, in contravention of the terms of this Agreement,
in any way take, attempt to or threaten to take any action with respect to
the
Common Collateral (including, without limitation, any attempt to realize upon
or
enforce any remedy with respect to this Agreement), this Agreement shall create
an irrebutable presumption and admission by such Second Party Secured Party
that
relief against such Second Priority Secured Party by injunction, specific
performance and/or other appropriate equitable relief is necessary to prevent
irreparable harm to the Senior Lenders, it being understood and agreed by the
Trustee on behalf of each Second Priority Secured Party that (i) the Senior
Lenders’ damages from its actions may at that time be difficult to ascertain and
may be irreparable, and (ii) each Second Priority Secured Party waives any
defense that the Grantors and/or the Senior Lenders cannot demonstrate damage
and/or be made whole by the awarding of damages.
Section
4. Payments.
4.1.
Application
of Proceeds.
So long
as the Discharge of Senior Lender Claims has not occurred, the Common Collateral
and any other collateral in respect of the Second Priority Claims or proceeds
thereof received in connection with the sale or other disposition of, or
collection on, such Common Collateral or other collateral upon the exercise
of
remedies as a secured party, shall be applied by the First Lien Agents to the
Senior Lender Claims in such order as specified in the relevant Senior Lender
Documents until the Discharge of Senior Lender
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Claims
has occurred. Upon the Discharge of Senior Lender Claims, subject to Section
5.7
hereof, each of the First Lien Agents shall deliver promptly to the Second
Priority Designated Agent any Common Collateral or proceeds thereof held by
it
in the same form as received, with any necessary endorsements or as a court
of
competent jurisdiction may otherwise direct to be applied by the Second Priority
Designated Agent ratably to the Second Priority Claims in such order as
specified in the Second Priority Documents.
4.2.
Payments
Over.
Any
Common Collateral or other collateral in respect of the Second Priority Claims
or proceeds thereof received by any Second Priority Agent or any Second Priority
Secured Party in connection with the exercise of any right or remedy (including
setoff or recoupment) relating to the Common Collateral or such other collateral
prior to the Discharge of Senior Lender Claims shall be segregated and held
in
trust for the benefit of and forthwith paid over to any First Lien Agent (and/or
its designees) for the benefit of the Senior Lenders in the same form as
received, with any necessary endorsements or as a court of competent
jurisdiction may otherwise direct. The First Lien Agents are each hereby
individually authorized to make any such endorsements as agent for any Second
Priority Agent or any such Second Priority Secured Party. This authorization
is
coupled with an interest and is irrevocable.
Section
5. Other Agreements.
5.1.
Releases.
(a)
If,
at any time any Grantor or the holder of any Senior Lender Claim delivers notice
to each Second Priority Agent that any specified Common Collateral (including
all or substantially all of the equity interests of a Grantor or any of its
Subsidiaries) (including for such purpose, in the case of the sale of equity
interests in any Subsidiary, any Common Collateral held by such Subsidiary
or
any direct or indirect Subsidiary thereof) is (A) sold, transferred or otherwise
disposed of:
(i)
by
the owner of such Common Collateral in a transaction permitted under each Credit
Agreement, the Second Priority Senior Secured Notes Indenture and each other
Second Priority Document (if any); or
(ii)
during the existence of any Event of Default under (and as defined in) any
Credit Agreement to the extent that either of the First Lien Agents has
consented to such sale, transfer or disposition; or
(B)
is
otherwise released as permitted by each Credit Agreement,
then
(whether or not any Insolvency or Liquidation Proceeding is pending at the
time)
the Liens in favor of the Second Priority Secured Parties upon such Collateral
will automatically be released and discharged as and when, but only to the
extent, such Liens on such Collateral securing Senior Lender Claims are released
and discharged. Upon delivery to each Second Priority Agent of a notice from
any
First Lien Agent stating that any release of Liens securing or supporting the
Senior Lender Claims has become effective (or shall become effective upon each
Second Priority Agent’s release) (whether in connection with a sale of such
assets by the relevant Grantor pursuant to the preceding sentence or otherwise),
each Second Priority Agent will
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promptly
execute and deliver such instruments, releases, termination statements or other
documents confirming such release on customary terms at the expense of the
Company. In the case of the sale of all or substantially all of the capital
stock of a Grantor or any of its Subsidiaries, the guarantee in favor of the
Second Priority Secured Parties, if any, made by such Grantor or Subsidiary
will
automatically be released and discharged as and when, but only to the extent,
the guarantee by such Grantor or Subsidiary of Senior Lender Claims is released
and discharged.
(b)
Each
Second Priority Agent, for itself and on behalf of each applicable Second
Priority Secured Party, hereby irrevocably constitutes and appoints each First
Lien Agent and any officer or agent of such First Lien Agent, with full power
of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of each Second Priority Agent or
such
holder or in such First Lien Agent’s own name, from time to time in such First
Lien Agent’s discretion, for the purpose of carrying out the terms of this
Section 5.1, to take any and all appropriate action and to execute any and
all
documents and instruments that may be necessary or desirable to accomplish
the
purposes of this Section 5.1, including any termination statements, endorsements
or other instruments of transfer or release.
(c)
Unless and until the Discharge of Senior Lender Claims has occurred, each Second
Priority Agent, for itself and on behalf of each applicable Second Priority
Secured Party, hereby consents to the application, whether prior to or after
a
default, of proceeds of Common Collateral or other collateral to the repayment
of Senior Lender Claims pursuant to the Credit Agreement; provided that nothing
in this Section 5.1(c) shall be construed to prevent or impair the rights of
the
Second Priority Agents or the Second Priority Secured Parties to receive
proceeds in connection with the Second Priority Claims not otherwise in
contravention of this Agreement.
5.2.
Insurance.
Unless
and until the Discharge of Senior Lender Claims has occurred, each First Lien
Agent and the Senior Lenders shall have the sole and exclusive right, subject
to
the rights of the Grantors under the Senior Lender Documents, to adjust
settlement for any insurance policy covering the Common Collateral or any other
collateral in respect of the Second Priority Claims in the event of any loss
thereunder and to approve any award granted in any condemnation or similar
proceeding affecting the Common Collateral or such other collateral. Unless
and
until the Discharge of Senior Lender Claims has occurred, all proceeds of any
such policy and any such award if in respect of the Common Collateral or such
other collateral shall be paid (a) first, prior to the occurrence of the
Discharge of Senior Lender Claims, to the First Lien Agents for the benefit
of
Senior Lenders pursuant to the terms of the Senior Lender Documents and the
Senior Intercreditor Agreement, (b) second, after the occurrence of the
Discharge of Senior Lender Claims, to the Second Priority Agents for the benefit
of the Second Priority Secured Parties pursuant to the terms of the applicable
Second Priority Documents and (c) third, if no Second Priority Obligations
are
outstanding, to the owner of the subject property, such other person as may
be
entitled thereto or as a court of competent jurisdiction may otherwise direct.
If any Second Priority Agent or any Second Priority Secured Party shall, at
any
time, receive any proceeds of any such insurance policy or any such award in
contravention of this Agreement, it shall pay such proceeds over to any First
Lien Agent in accordance with the terms of Section 4.2.
5.3.
Amendments
to Second Priority Collateral Documents.
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(a)
So
long as the Discharge of Senior Lender Claims has not occurred, without the
prior written consent of the First Lien Agents and the Required Lenders, no
Second Priority Collateral Document may be amended, supplemented or otherwise
modified or entered into to the extent such amendment, supplement or
modification, or the terms of any new Second Priority Collateral Document,
would
be prohibited by or inconsistent with any of the terms of this Agreement. Each
Second Priority Agent agrees that each applicable Second Priority Collateral
Document shall include the following language (or language to similar effect
approved by the First Lien Agents):
“Notwithstanding
anything herein to the contrary, (i) the liens and security interests granted
to
the [applicable Second Priority Agent] pursuant to this agreement are expressly
subject and subordinate to the liens and security interests granted to Bank
of
America, N.A. and Credit Suisse, Cayman Islands Branch, as collateral agents
(and their respective permitted successors), for the benefit of the lenders
referred to below, pursuant to the Guarantee and Collateral Agreement dated
as
of April 3, 2007 (as amended, amended and restated, supplemented or otherwise
modified from time to time), from the Company and the other “Pledgors” referred
to therein, in favor of Bank of America, N.A. and Credit Suisse, Cayman Islands
Branch, as collateral agents, and (ii) the exercise of any right or remedy
by
the [applicable Second Priority Agent] hereunder is subject to the limitations
and provisions of the Intercreditor Agreement dated as of April 3, 2007 (as
amended, restated, supplemented or otherwise modified from time to time, the
“Intercreditor Agreement”), by and among Credit Suisse, Cayman Islands Branch,
and Bank of America, N.A., in their capacities as First Lien Agents, Holdings,
the Company and the subsidiaries party thereto. In the event of any conflict
between the terms of the Intercreditor Agreement and the terms of this
agreement, the terms of the Intercreditor Agreement shall govern.”
(b)
In
the event that the First Lien Agents or the Senior Lenders under the Credit
Agreement or, if there is no Credit Agreement, any other Senior Lenders, enter
into any amendment, waiver or consent in respect of or replace any of the Senior
Collateral Document for the purpose of adding to, or deleting from, or waiving
or consenting to any departures from any provisions of, any Senior Collateral
Document or changing in any manner the rights of the First Lien Agents, the
Senior Lenders, the Company or any other Grantor thereunder (including the
release of any Liens in Senior Lender Collateral), then such amendment, waiver
or consent shall apply automatically to any comparable provision of each
Comparable Second Priority Collateral Document without the consent of any Second
Priority Agent or any Second Priority Secured Party and without any action
by
any Second Priority Agent, the Company or any other Grantor; provided, that
such
amendment, waiver or consent does not materially adversely affect the rights
of
the Second Priority Secured Parties or the interests of the Second Priority
Secured Parties in the Second Priority Collateral and not the other creditors
of
the Company or such Grantor, as the case may be, that have a security interest
in the affected collateral in a like or similar manner (without regard to the
fact that the Lien of such Senior Collateral Document is senior to the Lien
of
the Comparable Second Priority Collateral Document). Either First Lien Agent
may
give written notice of such amendment, waiver or consent to each Second Priority
Agent; provided that the failure to give such notice shall not affect the
effectiveness of such amendment, waiver or consent with respect to the
provisions of any Second Priority Collateral Document as set forth in this
Section 5.3(b).
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(c)
Anything contained herein to the contrary notwithstanding, until the Discharge
of Senior Lender Claims has occurred, no Second Priority Collateral Document
may
be amended, supplemented or otherwise modified or entered into without the
prior
written consent of the First Lien Agents and, without limitation on the
foregoing, no Second Priority Collateral Document shall be entered into unless
the collateral covered thereby is also subject to a perfected first-priority
interest in favor of the First Lien Agents for the benefit of the Senior Lenders
pursuant to the Senior Collateral Documents.
5.4.
Rights
As Unsecured Creditors.
Notwithstanding anything to the contrary in this Agreement, the Second Priority
Agents and the Second Priority Secured Parties may exercise rights and remedies
as an unsecured creditor against the Company or any Subsidiary that has
guaranteed the Second Priority Claims in accordance with the terms of the
applicable Second Priority Documents and applicable law, in each case to the
extent not inconsistent with the provisions of this Agreement. Nothing in this
Agreement shall prohibit the receipt by any Second Priority Agent or any Second
Priority Secured Party of the required payments of interest and principal so
long as such receipt is not the direct or indirect result of (a) the exercise
by
any Second Priority Agent or any Second Priority Secured Party of rights or
remedies as a secured creditor in respect of Common Collateral or other
collateral or (b) enforcement in contravention of this Agreement of any Lien
in
respect of Second Priority Claims held by any of them. In the event any Second
Priority Agent or any Second Priority Secured Party becomes a judgment lien
creditor or other secured creditor in respect of Common Collateral or other
collateral as a result of its enforcement of its rights as an unsecured creditor
in respect of Second Priority Claims or otherwise, such judgment or other lien
shall be subordinated to the Liens securing Senior Lender Claims on the same
basis as the other Liens securing the Second Priority Claims are so subordinated
to such Liens securing Senior Lender Claims under this Agreement. Nothing in
this Agreement impairs or otherwise adversely affects any rights or remedies
the
First Lien Agents or the Senior Lenders may have with respect to the Senior
Lender Collateral.
5.5.
First
Lien Agents as Gratuitous Bailees for Perfection.
(a)
Each
First Lien Agent agree to hold the Pledged Collateral that is part of the Common
Collateral that is in its possession or control (or in the possession or control
of its agents or bailees) as gratuitous bailee for each Second Priority Agent
and any assignee solely for the purpose of perfecting the security interest
granted in such Pledged Collateral pursuant to the Second Priority Collateral
Agreements, subject to the terms and conditions of this Section 5.5 (such
bailment being intended, among other things, to satisfy the requirements of
Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC).
(b)
In
the event that any First Lien Agent (or its agent or bailees) has Lien filings
against Intellectual Property that is part of the Common Collateral that are
necessary for the perfection of Liens in such Common Collateral, such First
Lien
Agent agrees to hold such Liens as gratuitous bailee for each Second Priority
Agent and any assignee solely for the purpose of perfecting the security
interest granted in such Liens pursuant to the Second Priority Collateral
Agreements, subject to the terms and conditions of this Section
5.5.
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(c)
Except as otherwise specifically provided herein (including Sections 3.1 and
4.1), until the Discharge of Senior Lender Claims has occurred, any First Lien
Agent shall be entitled to deal with the Pledged Collateral in accordance with
the terms of the Senior Lender Documents as if the Liens under the Second
Priority Collateral Documents did not exist. The rights of the Second Priority
Agents and the Second Priority Secured Parties with respect to such Pledged
Collateral shall at all times be subject to the terms of this
Agreement.
(d)
The
First Lien Agents shall have no obligation whatsoever to any Second Priority
Agent or any Second Priority Secured Party to assure that the Pledged Collateral
is genuine or owned by the Grantors or to protect or preserve rights or benefits
of any Person or any rights pertaining to the Common Collateral except as
expressly set forth in this Section 5.5. The duties or responsibilities of
the
First Lien Agents under this Section 5.5 shall be limited solely to holding
the
Pledged Collateral as gratuitous bailee for each Second Priority Agent for
purposes of perfecting the Lien held by the Second Priority Secured
Parties.
(e)
The
First Lien Agents shall not have by reason of the Second Priority Collateral
Documents or this Agreement or any other document a fiduciary relationship
in
respect of any Second Priority Agent or any Second Priority Secured Party and
the Second Priority Agents and the Second Priority Secured Parties hereby waive
and release the First Lien Agents from all claims and liabilities arising
pursuant to the First Lien Agents’ role under this Section 5.5, as agent and
gratuitous bailee with respect to the Common Collateral.
(f)
Upon
the Discharge of Senior Lender Claims, the First Lien Agents shall deliver
to
the Second Priority Designated Agent, to the extent that it is legally permitted
to do so, the remaining Pledged Collateral (if any) together with any necessary
endorsements (or otherwise allow the Second Priority Designated Agent to obtain
control of such Pledged Collateral) or as a court of competent jurisdiction
may
otherwise direct. The Company shall take such further action as is required
to
effectuate the transfer contemplated hereby and shall indemnify the First Lien
Agents for loss or damage suffered by any First Lien Agent as a result of such
transfer except for loss or damage suffered by any First Lien Agent as a result
of its own willful misconduct, gross negligence or bad faith. The First Lien
Agents have no obligation to follow instructions from any Second Priority Agent
in contravention of this Agreement.
(g)
Neither the First Lien Agents nor the Senior Lenders shall be required to
marshal any present or future collateral security for the Company’s or its
Subsidiaries’ obligations to the First Lien Agents or the Senior Lenders under
the Credit Agreement, the Senior Collateral Documents or the Senior
Intercreditor Agreement or any assurance of payment in respect thereof or to
resort to such collateral security or other assurances of payment in any
particular order, and all of their rights in respect of such collateral security
or any assurance of payment in respect thereof shall be cumulative and in
addition to all other rights, however existing or arising.
5.6.
Second
Priority Designated Agent as Gratuitous Bailee for Perfection.
(a)
Upon
the Discharge of Senior Lender Claims, the Second Priority Designated Agent
agrees to hold the Pledged Collateral that is part of the Common Collateral
in
its possession or control (or in the possession or control of its agents or
bailees) as gratuitous bailee for the other
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Second
Priority Agents and any assignee solely for the purpose of perfecting the
security interest granted in such Pledged Collateral pursuant to the applicable
Second Priority Collateral Agreement, subject to the terms and conditions of
this Section 5.6.
(b)
In
the event that the Second Priority Designated Agent (or its agent or bailees)
has Lien filings against Intellectual Property that is part of the Common
Collateral that are necessary for the perfection of Liens in such Common
Collateral, upon the Discharge of Senior Lender Claims, the Second Priority
Designated Agent agrees to hold such Liens as gratuitous bailee for the other
Second Priority Agents and any assignee solely for the purpose of perfecting
the
security interest granted in such Liens pursuant to the applicable Second
Priority Collateral Agreement, subject to the terms and conditions of this
Section 5.6.
(c)
The
Second Priority Designated Agent, in its capacity as gratuitous bailee, shall
have no obligation whatsoever to the other Second Priority Agents to assure
that
the Pledged Collateral is genuine or owned by the Grantors or to protect or
preserve rights or benefits of any Person or any rights pertaining to the Common
Collateral except as expressly set forth in this Section 5.6. The duties or
responsibilities of the Second Priority Designated Agent under this Section
5.6
upon the Discharge of Senior Lender Claims shall be limited solely to holding
the Pledged Collateral as gratuitous bailee for the other Second Priority Agents
for purposes of perfecting the Lien held by the applicable Second Priority
Secured Parties.
(d)
The
Second Priority Designated Agent shall not have by reason of the Second Priority
Collateral Documents or this Agreement or any other document a fiduciary
relationship in respect of the other Second Priority Agents (or the Second
Priority Secured Parties for which such other Second Priority Agents are agents)
and the other Second Priority Agents hereby waive and release the Second
Priority Designated Agent from all claims and liabilities arising pursuant
to
the Second Priority Designated Agent’s role under this Section 5.6, as agent and
gratuitous bailee with respect to the Common Collateral.
(e)
In
the event that the Second Priority Designated Agent shall cease to be so
designated the Second Priority Designated Agent pursuant to the definition
of
such term, the then Second Priority Designated Agent shall deliver to the
successor Second Priority Designated Agent, to the extent that it is legally
permitted to do so, the remaining Pledged Collateral (if any), together with
any
necessary endorsements (or otherwise allow the successor Second Priority
Designated Agent to obtain control of such Pledged Collateral) or as a court
of
competent jurisdiction may otherwise direct, and such successor Second Priority
Designated Agent shall perform all duties of the Second Priority Designated
Agent as set forth herein. The Company shall take such further action as is
required to effectuate the transfer contemplated hereto and shall indemnify
the
Second Priority Designated Agent for loss or damage suffered by the Second
Priority Designated Agent as a result of such transfer except for loss or damage
suffered by the Second Priority Designated Agent as a result of its own willful
misconduct, gross negligence or bad faith. The Second Priority Designated Agent
has no obligation to follow instructions from the successor Second Priority
Designated Agent in contravention of this Agreement.
5.7.
Release
Upon Discharge of Senior Lender Claims; No Release If Event of Default;
Reinstatement.
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(a) Except
as
otherwise provided in clause (b) of this Section 5.7, upon the Discharge of
Senior Lender Claims and the concurrent release of the Liens securing Senior
Lender Claims, the Liens in favor of the Second Priority Secured Parties shall
automatically be released and discharged.
(b)
Notwithstanding
any other provisions contained in this Agreement, if an Event of Default (as
defined in the Second Priority Senior Secured Notes Indenture or any other
Second Priority Document, as applicable) exists on the date of Discharge of
Senior Lender Claims, the Second Priority Liens on the Second Priority
Collateral securing the Second Priority Claims relating to such Event of Default
will not be released, except to the extent such Second Priority Collateral
or
any portion thereof was disposed of in order to repay Senior Lender Claims
secured by such Second Priority Collateral, and thereafter the applicable Second
Priority Agent will have the right to foreclose upon such Second Priority
Collateral (but in such event, the Liens on such Second Priority Collateral
securing the applicable Second Priority Claims will be released when such Event
of Default and all other Events of Default under the Second Priority Senior
Secured Notes Indenture or any other Second Priority Document, as applicable,
cease to exist).
(c) If,
at
any time after the Discharge of Senior Lender Claims has occurred, the Company
incurs and designates any Senior Lender Claims, then such Discharge of Senior
Lender Claims shall automatically be deemed not to have occurred for all
purposes of this Agreement (other than with respect to any actions taken prior
to the date of such designation as a result of the occurrence of such first
Discharge of Senior Lender Claims), and the applicable agreement governing
such
Senior Lender Claims shall automatically be treated as the Credit Agreement
for
all purposes of this Agreement, including for purposes of the Lien priorities
and rights in respect of Common Collateral set forth herein and the granting
by
the First Lien Agents of amendments, waivers and consents hereunder. Upon
receipt of notice of such designation (including the identity of any new First
Lien Agent), each Second Priority Agent shall promptly (i) enter into such
documents and agreements (at the expense of the Company), including amendments
or supplements to this Agreement, as the Company or such new First Lien Agent
shall reasonably request in writing in order to provide the new First Lien
Agent
the rights of the First Lien Agents contemplated hereby and (ii) to the extent
then held by any Second Priority Agent, deliver to either First Lien Agent
the
Pledged Collateral that is Common Collateral together with any necessary
endorsements (or otherwise allow such First Lien Agent to obtain possession
or
control of such Pledged Collateral).
Section
6. Insolvency or Liquidation Proceedings.
6.1.
Financing
Issues.
If the
Company or any other Grantor shall be subject to any Insolvency or Liquidation
Proceeding and any First Lien Agent shall desire to permit the use of cash
collateral or to permit the Company or any other Grantor to obtain financing
under Section 363 or Section 364 of Title 11 of the United States Code or any
similar provision in any Bankruptcy Law (“DIP
Financing”),
then
each Second Priority Agent, on behalf of itself and each applicable Second
Priority Secured Party, agrees that it will raise no objection to, and will
not
support any objection to, and will not otherwise contest (a) such use of cash
collateral or DIP Financing and will not request adequate protection or any
other relief in connection therewith (except to the extent permitted by Section
6.3) and, to the extent the Liens securing the Senior Lender Claims under the
Credit Agreement or, if no Credit Agreement exists, under the
other
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Senior
Lender Documents are subordinated or pari passu with such DIP Financing, will
subordinate its Liens in the Common Collateral and any other collateral to
such
DIP Financing (and all Obligations relating thereto) on the same basis as the
other Liens securing the Second Priority Claims are so subordinated to Liens
securing Senior Lender Claims under this Agreement, (b) any motion for relief
from the automatic stay or from any injunction against foreclosure or
enforcement in respect of Senior Lender Claims made by any First Lien Agent
or
any holder of Senior Lender Claims, (c) any lawful exercise by any holder of
Senior Lender Claims of the right to credit bid Senior Lender Claims at any
sale
in foreclosure of Senior Lender Collateral, (d) any other request for judicial
relief made in any court by any holder of Senior Lender Claims relating to
the
lawful enforcement of any Lien on Senior Lender Collateral or (e) any order
relating to a sale of assets of any Grantor for which any First Lien Agent
has
consented that provides, to the extent the sale is to be free and clear of
Liens, that the Liens securing the Senior Lender Claims and the Second Priority
Claims will attach to the proceeds of the sale on the same basis of priority
as
the Liens securing the Senior Lender Collateral do to the Liens securing the
Second Priority Collateral in accordance with this Agreement.
6.2.
Relief
from the Automatic Stay.
Until
the Discharge of Senior Lender Claims has occurred, each Second Priority Agent,
on behalf of itself and each applicable Second Priority Secured Party, agrees
that none of them shall seek relief from the automatic stay or any other stay
in
any Insolvency or Liquidation Proceeding in respect of the Common Collateral
or
any other collateral, without the prior written consent of the First Lien Agents
and the Required Lenders.
6.3.
Adequate
Protection.
Each
Second Priority Agent, on behalf of itself and each applicable Second Priority
Secured Party, agrees that none of them shall contest (or support any other
Person contesting) (a) any request by any First Lien Agent or the Senior Lenders
for adequate protection or (b) any objection by any First Lien Agent or the
Senior Lenders to any motion, relief, action or proceeding based on such First
Lien Agent’s or the Senior Lenders’ claiming a lack of adequate protection.
Notwithstanding the foregoing, in any Insolvency or Liquidation Proceeding,
(i)
if the Senior Lenders (or any subset thereof) are granted adequate protection
in
the form of additional collateral in connection with any DIP Financing or use
of
cash collateral under Section 363 or Section 364 of Title 11 of the United
States Code or any similar Bankruptcy Law, then each Second Priority Agent,
on
behalf of itself and any applicable Second Priority Secured Party, (A) may
seek
or request adequate protection in the form of a replacement Lien on such
additional collateral, which Lien is subordinated to the Liens securing the
Senior Lender Claims and such DIP Financing (and all Obligations relating
thereto) on the same basis as the other Liens securing the Second Priority
Claims are so subordinated to the Liens securing Senior Lender Claims under
this
Agreement and (B) agrees that it will not seek or request, and will not accept,
adequate protection in any other form, and (ii) in the event any Second Priority
Agent, on behalf of itself or any applicable Second Priority Secured Party,
seeks or requests adequate protection and such adequate protection is granted
in
the form of additional collateral, then such Second Priority Agent, on behalf
of
itself or each such Second Priority Secured Party, agrees that the First Lien
Agents shall also be granted a senior Lien on such additional collateral as
security for the applicable Senior Lender Claims and any such DIP Financing
and
that any Lien on such additional collateral securing the Second Priority Claims
shall be subordinated to the Liens on such collateral securing the Senior Lender
Claims and any such DIP Financing (and all Obligations relating thereto) and
any
other Liens granted to the
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Senior
Lenders as adequate protection on the same basis as the other Liens securing
the
Second Priority Claims are so subordinated to such Liens securing Senior Lender
Claims under this Agreement.
6.4.
Avoidance
Issues.
If any
Senior Lender is required in any Insolvency or Liquidation Proceeding or
otherwise to turn over or otherwise pay to the estate of the Company or any
other Grantor (or any trustee, receiver or similar person therefor), because
the
payment of such amount was declared to be fraudulent or preferential in any
respect or for any other reason, any amount (a “Recovery”),
whether received as proceeds of security, enforcement of any right of setoff
or
otherwise, then as among the parties hereto the Senior Lender Claims shall
be
deemed to be reinstated to the extent of such Recovery and to be outstanding
as
if such payment had not occurred and the Senior Lenders shall be entitled to
a
Discharge of Senior Lender Claims with respect to all such recovered amounts
and
shall have all rights hereunder until such time. If this Agreement shall have
been terminated prior to such Recovery, this Agreement shall be reinstated
in
full force and effect, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the obligations of the parties
hereto.
6.5.
Application.
This
Agreement shall be applicable prior to and after the commencement of any
Insolvency or Liquidation Proceeding. All references herein to any Grantor
shall
apply to any trustee for such Person and such Person as debtor in possession.
The relative rights as to the Common Collateral and other collateral and
proceeds thereof shall continue after the filing thereof on the same basis
as
prior to the date of the petition, subject to any court order approving the
financing of, or use of cash collateral by, any Grantor.
6.6.
Waivers.
Until
the Discharge of Senior Lender Claims has occurred, each Second Priority Agent,
on behalf of itself and each applicable Second Priority Secured Party,
(a) will not assert or enforce any claim under Section 506(c) of the United
States Bankruptcy Code senior to or on a parity with the Liens securing the
Senior Lender Claims for costs or expenses of preserving or disposing of any
Common Collateral or other collateral, and (b) waives any claim it may now
or hereafter have arising out of the election by any Senior Lender of the
application of Section 1111(b)(2) of the Bankruptcy Code.
Section
7. Reliance; Waivers; etc.
7.1.
Reliance.
The
consent by the Senior Lenders to the execution and delivery of the Second
Priority Documents to which the Senior Lenders have consented and all loans
and
other extensions of credit made or deemed made on and after the date hereof
by
the Senior Lenders to the Company or any Subsidiary shall be deemed to have
been
given and made in reliance upon this Agreement. Each Second Priority Agent,
on
behalf of itself and each applicable Second Priority Secured Party, acknowledges
that it and the applicable Second Priority Secured Parties is not entitled
to
rely on any credit decision or other decisions made by the First Lien Agents
or
any Senior Lender in taking or not taking any action under the applicable Second
Priority Document or this Agreement.
7.2.
No
Warranties or Liability.
Neither
the First Lien Agents nor any Senior Lender shall have been deemed to have
made
any express or implied representation or warranty upon which the Second Priority
Agent or the Second Priority Secured Parties may rely,
including
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with
respect to the execution, validity, legality, completeness, collectibility
or
enforceability of any of the Senior Lender Documents, the ownership of any
Common Collateral or the perfection or priority of any Liens thereon. The Senior
Lenders will be entitled to manage and supervise their respective loans and
extensions of credit under the Senior Lender Documents in accordance with law
and as they may otherwise, in their sole discretion, deem appropriate, and
the
Senior Lenders may manage their loans and extensions of credit without regard
to
any rights or interests that any Second Priority Agent or any of the Second
Priority Secured Parties have in the Common Collateral or otherwise, except
as
otherwise provided in this Agreement. Neither the First Lien Agents nor any
Senior Lender shall have any duty to any Second Priority Agent or any Second
Priority Secured Party to act or refrain from acting in a manner that allows,
or
results in, the occurrence or continuance of an event of default or default
under any agreements with the Company or any Subsidiary thereof (including
the
Second Priority Documents), regardless of any knowledge thereof that they may
have or be charged with. Except as expressly set forth in this Agreement, the
First Lien Agents, the Senior Lenders, the Second Priority Agents and the Second
Priority Secured Parties have not otherwise made to each other, nor do they
hereby make to each other, any warranties, express or implied, nor do they
assume any liability to each other with respect to (a) the enforceability,
validity, value or collectibility of any of the Second Priority Claims, the
Senior Lender Claims or any guarantee or security which may have been granted
to
any of them in connection therewith, (b) the Company’s title to or right to
transfer any of the Common Collateral or (c) any other matter except as
expressly set forth in this Agreement.
7.3.
Obligations
Unconditional.
All
rights, interests, agreements and obligations of the First Lien Agents and
the
Senior Lenders, and the Second Priority Agents and the Second Priority Secured
Parties, respectively, hereunder shall remain in full force and effect
irrespective of:
(a)
any
lack
of validity or enforceability of any Senior Lender Documents or any Second
Priority Documents;
(b)
any
change in the time, manner or place of payment of, or in any other terms of,
all
or any of the Senior Lender Claims or Second Priority Claims, or any amendment
or waiver or other modification, including any increase in the amount thereof,
whether by course of conduct or otherwise, of the terms of the Credit Agreement
or any other Senior Lender Document or of the terms of the Second Priority
Senior Secured Notes Indenture or any other Second Priority
Document;
(c)
any
exchange of any security interest in any Common Collateral or any other
collateral, or any amendment, waiver or other modification, whether in writing
or by course of conduct or otherwise, of all or any of the Senior Lender Claims
or Second Priority Claims or any guarantee thereof;
(d)
the
commencement of any Insolvency or Liquidation Proceeding in respect of the
Company or any other Grantor; or
(e)
any
other
circumstances that otherwise might constitute a defense available to, or a
discharge of, the Company or any other Grantor in respect of the Senior Lender
Claims, or of any Second Priority Agent or any Second Priority Secured Party
in
respect of this Agreement.
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Section
8. Miscellaneous.
8.1.
Conflicts.
Subject
to Section 8.19, in the event of any conflict between the provisions of this
Agreement and the provisions of any Senior Lender Document or any Second
Priority Document, the provisions of this Agreement shall govern.
8.2.
Continuing
Nature of this Agreement; Severability.
Subject
to Section 6.4, this Agreement shall continue to be effective until the
Discharge of Senior Lender Claims shall have occurred or such later time as
all
the Obligations in respect of the Second Priority Claims shall have been paid
in
full. This is a continuing agreement of lien subordination and the Senior
Lenders may continue, at any time and without notice to each Second Priority
Agent or any Second Priority Secured Party, to extend credit and other financial
accommodations and lend monies to or for the benefit of the Company or any
other
Grantor constituting Senior Lender Claims in reliance hereon. The terms of
this
Agreement shall survive, and shall continue in full force and effect, in any
Insolvency or Liquidation Proceeding. Any provision of this Agreement that
is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
8.3.
Amendments;
Waivers.
No
amendment, modification or waiver of any of the provisions of this Agreement
by
any Second Priority Agent or any First Lien Agent shall be deemed to be made
unless the same shall be in writing signed on behalf of the party making the
same or its authorized agent and each waiver, if any, shall be a waiver only
with respect to the specific instance involved and shall in no way impair the
rights of the parties making such waiver or the obligations of the other parties
to such party in any other respect or at any other time. The Company and the
other Grantors shall not have any right to consent to or approve any amendment,
modification or waiver of any provision of this Agreement except to the extent
their rights are affected. Notwithstanding anything in this Section 8.3 to
the
contrary, this Agreement may be amended from time to time at the request of
the
Company, at the Company’s expense, and without the consent of any Second
Priority Agent, the First Lien Agents, any Senior Lender or any Second Priority
Secured Party to (i) add other parties holding Future Second Lien Indebtedness
(or any agent or trustee therefor) to the extent such Indebtedness is not
prohibited by the Credit Agreement, the Second Priority Senior Secured Notes
Indenture or any other Second Priority Document governing Future Second Lien
Indebtedness and (ii) in the case of Future Second Lien Indebtedness, (a)
establish that the Lien on the Common Collateral securing such Future Second
Lien Indebtedness shall be junior and subordinate in all respects to all Liens
on the Common Collateral securing any Senior Lender Claims and shall share
in
the benefits of the Common Collateral equally and ratably with all Liens on
the
Common Collateral securing any Second Priority Claims, and (b) provide to the
holders of such Future Second Lien Indebtedness (or any agent or trustee
thereof) the comparable rights and benefits (including any improved rights
and
benefits that have been consented to by the First Lien Agents) as are provided
to the holders of Second Priority Claims under this Agreement. Any such
additional party and each Second Priority Agent shall be entitled to rely on
the
determination of officers of the Company that such modifications do not violate
the Credit Agreement, the Second Priority Senior Secured Notes Indenture or
any
other Second Priority Document governing Future Second Lien Indebtedness if
such
determination is set forth in an Officers’ Certificate delivered to such party,
the First Lien Agents and each Second Priority Agent; provided, however, that
such determination will not affect whether or not the Company has complied
with
its
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undertakings
in the Credit Agreement, the Senior Collateral Documents, the Second Priority
Senior Secured Notes Indenture, any other Second Priority Document governing
Future Second Lien Indebtedness, the Second Priority Collateral Documents or
this Agreement.
8.4.
Information
Concerning Financial Condition of the Company and the
Subsidiaries.
Neither
the First Lien Agents nor any Senior Lender shall have any obligation to
the Second Priority Agent or any Second Priority Secured Party to keep the
Second Priority Agent or any Second Priority Secured Party informed of, and
the
Second Priority Agent and the Second Priority Secured Parties shall not be
entitled to rely on the First Lien Agents or the Senior Lenders with respect
to,
(a) the financial condition of the Company and the Subsidiaries and all
endorsers and/or guarantors of the Second Priority Claims or the Senior Lender
Claims and (b) all other circumstances bearing upon the risk of nonpayment
of
the Second Priority Claims or the Senior Lender Claims. The First Lien Agents,
the Senior Lenders, each Second Priority Agent and the Second Priority Secured
Parties shall have no duty to advise any other party hereunder of information
known to it or them regarding such condition or any such circumstances or
otherwise. In the event that any First Lien Agent, any Senior Lender, any Second
Priority Agent or any Second Priority Secured Party, in its or their sole
discretion, undertakes at any time or from time to time to provide any such
information to any other party, it or they shall be under no obligation (w)
to
make, and the First Lien Agents, the Senior Lenders, the Second Priority Agents
and the Second Priority Secured Parties shall not make, any express or implied
representation or warranty, including with respect to the accuracy,
completeness, truthfulness or validity of any such information so provided,
(x)
to provide any additional information or to provide any such information on
any
subsequent occasion, (y) to undertake any investigation or (z) to disclose
any
information that, pursuant to accepted or reasonable commercial finance
practices, such party wishes to maintain confidential or is otherwise required
to maintain confidential.
8.5.
Subrogation.
Each
Second Priority Agent, on behalf of itself and each applicable Second Priority
Secured Party, hereby waives any rights of subrogation it may acquire as a
result of any payment hereunder until the Discharge of Senior Lender Claims
has
occurred.
8.6.
Application
of Payments.
Except
as otherwise provided herein, all payments received by the Senior Lenders may
be
applied, reversed and reapplied, in whole or in part, to such part of the Senior
Lender Claims as the Senior Lenders, in their sole discretion, deem appropriate,
consistent with the terms of the Senior Lender Documents. Except as otherwise
provided herein, each Second Priority Agent, on behalf of itself and each
applicable Second Priority Secured Party, assents to any such extension or
postponement of the time of payment of the Senior Lender Claims or any part
thereof and to any other indulgence with respect thereto, to any substitution,
exchange or release of any security that may at any time secure any part of
the
Senior Lender Claims and to the addition or release of any other Person
primarily or secondarily liable therefor.
8.7.
Consent
to Jurisdiction; Waivers.
The
parties hereto consent to the nonexclusive jurisdiction of any state or federal
court located in New York, New York (the “New
York Courts”),
and
consent that all service of process may be made by registered mail directed
to
such party as provided in Section 8.8 for such party. Service so made shall
be
deemed to be completed
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three
days after the same shall be posted as aforesaid. The parties hereto waive
any
objection to any action instituted hereunder in any such court based on forum
non conveniens, and any objection to the venue of any action instituted
hereunder in any such court. Each of the parties hereto waives any right it
may
have to trial by jury in respect of any litigation based on, or arising out
of,
under or in connection with this Agreement, or any course of conduct, course
of
dealing, verbal or written statement or action of any party hereto in connection
with the subject matter hereof. Nothing in this Agreement shall affect any
right
that any party may otherwise have to bring any action or proceeding relating
to
this Agreement in the courts of any jurisdiction, except that each Loan Party,
each Second Priority Secured Party and each Second Priority Agent agrees that
(a) it will not bring any such action or proceeding in any court other than
New
York Courts (it being acknowledged and agreed by the parties hereto that any
other forum would be inconvenient and inappropriate in view of the fact that
more of the holders of Senior Lender Claims and Second Priority Claims who
would
be affected by any such action or proceeding have contacts with the State of
New
York than any other jurisdiction), and (b) in any such action or proceeding
brought against any Second Priority Agent or any Loan Party or any Second
Priority Secured Party in any other court, it will not assert any cross-claim,
counterclaim or setoff, or seek any other affirmative relief, except to the
extent that the failure to assert the same will preclude such Loan Party or
such
Second Priority Secured Party from asserting or seeking the same in the New
York
Courts.
8.8.
Notices.
All
notices to the Second Priority Secured Parties and the Senior Lenders permitted
or required under this Agreement may be sent to the Trustee, the First Lien
Agents or any Second Priority Agent as provided in the Second Priority Senior
Secured Notes Indenture, the Credit Agreement, the other relevant Senior Lender
Documents or the other relevant Second Priority Documents, as applicable. Unless
otherwise specifically provided herein, any notice or other communication herein
required or permitted to be given shall be in writing and may be personally
served, telecopied, electronically mailed or sent by courier service or U.S.
mail and shall be deemed to have been given when delivered in person or by
courier service, upon receipt of a telecopy or electronic mail or upon receipt
via U.S. mail (registered or certified, with postage prepaid and properly
addressed). For the purposes hereof, the addresses of the parties hereto shall
be as set forth below each party’s name on the signature pages hereto, or, as to
each party, at such other address as may be designated by such party in a
written notice to all of the other parties. The First Lien Agents hereby agree
to promptly notify each Second Priority Agent upon payment in full in cash
of
all Indebtedness under the applicable Senior Lender Documents (except for
contingent indemnities and cost and reimbursement obligations to the extent
no
claim therefor has been made).
8.9.
Further
Assurances.
Each of
the Second Priority Agents, on behalf of itself and each applicable Second
Priority Secured Party, and each applicable First Lien Agent, on behalf of
itself and each Senior Lender, agrees that each of them shall take such further
action and shall execute and deliver to each other First Lien Agent and the
Senior Lenders such additional documents and instruments (in recordable form,
if
requested) as each other First Lien Agent or the Senior Lenders may reasonably
request, at the expense of the Company, to effectuate the terms of and the
lien
priorities contemplated by this Agreement.
8.10.
Governing
Law.
This
Agreement has been delivered and accepted in and shall be deemed to have been
made in New York, New York and shall be interpreted, and the rights and
liabilities of the parties bound hereby determined, in accordance with the
laws
of the State of New York.
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8.11.
Binding
on Successors and Assigns.
This
Agreement shall be binding upon the First Lien Agents, the Senior Lenders,
the
Second Priority Agents, the Second Priority Secured Parties, Holdings, the
Company, the Company’s Subsidiaries party hereto and their respective permitted
successors and assigns.
8.12.
Specific
Performance.
Each
First Lien Agent may demand specific performance of this Agreement. Each Second
Priority Agent, on behalf of itself and each applicable Second Priority Secured
Party, hereby irrevocably waives any defense based on the adequacy of a remedy
at law and any other defense that might be asserted to bar the remedy of
specific performance in any action that may be brought by either First Lien
Agent.
8.13.
Section
Titles.
The
section titles contained in this Agreement are and shall be without substantive
meaning or content of any kind whatsoever and are not a part of this
Agreement.
8.14.
Counterparts.
This
Agreement may be executed in one or more counterparts, including by means of
facsimile, each of which shall be an original and all of which shall together
constitute one and the same document.
8.15.
Authorization.
By its
signature, each Person executing this Agreement on behalf of a party hereto
represents and warrants to the other parties hereto that it is duly authorized
to execute this Agreement. The First Lien Agents represent and warrant that
this
Agreement is binding upon the Senior Lenders. The Trustee represents and
warrants that this Agreement is binding upon the Indenture Secured
Parties.
8.16.
No
Third Party Beneficiaries; Successors and Assigns.
This
Agreement and the rights and benefits hereof shall inure to the benefit of,
and
be binding upon, each of the parties hereto and their respective successors
and
assigns and shall inure to the benefit of each of, and be binding upon, the
holders of Senior Lender Claims and Second Priority Claims. No other Person
shall have or be entitled to assert rights or benefits hereunder.
8.17.
Effectiveness.
This
Agreement shall become effective when executed and delivered by the parties
hereto. This Agreement shall be effective both before and after the commencement
of any Insolvency or Liquidation Proceeding. All references to the Company
or
any other Grantor shall include the Company or any other Grantor as debtor
and
debtor-in-possession and any receiver or trustee for the Company or any other
Grantor (as the case may be) in any Insolvency or Liquidation
Proceeding.
8.18.
First
Lien Agents and Second Priority Agents.
It is
understood and agreed that (a) Credit Suisse, Cayman Islands Branch, is entering
into this Agreement in its capacity as administrative agent under the Term
Credit Agreement and the provisions of Article VIII of the Term Credit Agreement
applicable to Credit Suisse, Cayman Islands Branch, as administrative agent
thereunder shall also apply to Credit Suisse, Cayman Islands Branch, as First
Lien Agent hereunder, (b) Bank of America, N.A. is
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entering
into this Agreement in its capacity as administrative agent under the Revolving
Credit Agreement and the provisions of Article VIII of the Revolving Credit
Agreement applicable to Bank of America, N.A. as administrative agent thereunder
shall also apply to Bank of America, N.A. as First Lien Agent hereunder and
(c)
▇▇▇▇▇ Fargo is entering in this Agreement in its capacity as Trustee, and the
provisions of Article 7 of the Second Priority Senior Secured Notes Indenture
applicable to the Trustee thereunder shall also apply to the Trustee hereunder.
8.19.
Relative
Rights.
Notwithstanding anything in this Agreement to the contrary (except to the extent
contemplated by Section 5.3(b)), nothing in this Agreement is intended to or
will (a) amend, waive or otherwise modify the provisions of the Credit
Agreement, the Second Priority Senior Secured Notes Indenture or any other
Senior Lender Documents or Second Priority Documents entered into in connection
with the Credit Agreement, the Second Priority Senior Secured Notes Indenture
or
any other Senior Lender Document or Second Priority Document or permit Holdings,
the Company or any Subsidiary to take any action, or fail to take any action,
to
the extent such action or failure would otherwise constitute a breach of, or
default under, the Credit Agreement or any other Senior Lender Documents entered
into in connection with the Credit Agreement, the Second Priority Senior Secured
Notes Indenture or any other Second Priority Documents, (b) change the relative
priorities of the Senior Lender Claims or the Liens granted under the Senior
Lender Documents on the Common Collateral (or any other assets) as among the
Senior Lenders, (c) otherwise change the relative rights of the Senior Lenders
in respect of the Common Collateral as among such Senior Lenders or (d) obligate
Holdings, the Company or any Subsidiary to take any action, or fail to take
any
action, that would otherwise constitute a breach of, or default under, the
Credit Agreement or any other Senior Lender Document entered into in connection
with the Credit Agreement, the Second Priority Senior Secured Notes Indenture
or
any other Second Priority Documents. As among the respective First Lien Agents,
nothing in this Agreement shall alter the respective rights and obligations
of
the First Lien Agents under the Senior Intercreditor Agreement.
8.20.
References.
Notwithstanding anything to the contrary in this Agreement, any references
contained herein to any Section, clause, paragraph, definition or other
provision of the Second Priority Senior Secured Notes Indenture (including
any
definition contained therein) shall be deemed to be a reference to such Section,
clause, paragraph, definition or other provision as in effect on the date of
this Agreement; provided that any reference to any such Section, clause,
paragraph or other provision shall refer to such Section, clause, paragraph
or
other provision of the Second Priority Senior Secured Notes Indenture, as
applicable (including any definition contained therein), as amended or modified
from time to time if such amendment or modification has been (1) made in
accordance with the Second Priority Senior Secured Notes Indenture, and (2)
approved in writing by, or on behalf of, the requisite Senior Lenders as are
needed under the terms of the Credit Agreement to approve such amendment or
modification.
8.21.
Supplements.
Upon
the execution by any Subsidiary of the Company of a supplement hereto in form
and substance satisfactory to the First Lien Agent, such Subsidiary shall be
a
party to this Agreement and shall be bound by the provisions hereof to the
same
extent as the Company and each other Grantor are so bound.
[Remainder
of page intentionally left blank]
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NY\1256666.8|||
038263-0065||
-27-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH,
as
First
Lien Agent
By:
__________________________________
Name:
Title:
By:
__________________________________
Name:
Title:
Address:
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Agency Group
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
Intercreditor
Agreement Signature Page
|
NY\1256666.8|||
038263-0065||
BANK
OF AMERICA, N.A.
as
First
Lien Agent
By:
__________________________________
Name:
Title:
By:
__________________________________
Name:
Title:
Address:
Attention:
Telecopier:
Intercreditor
Agreement Signature Page
|
NY\1256666.8|||
038263-0065||
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trustee
By:
__________________________________
Name:
Title:
Address:
Corporate Trust Services, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Telecopier:
▇▇▇-▇▇▇-▇▇▇▇
Intercreditor
Agreement Signature Page
|
NY\1256666.8|||
038263-0065||
▇▇▇▇▇
PLASTICS GROUP, INC.
By:
Name:
Title:
Address:
Attention:
Telecopier:
Intercreditor
Agreement Signature Page
|
NY\1256666.8|||
038263-0065||
|
▇▇▇▇▇
Plastics Holding Corporation
|
|
▇▇▇▇▇
Plastics Corporation
|
|
AeroCon,
Inc.
|
|
▇▇▇▇▇
Iowa Corporation
|
|
▇▇▇▇▇
Plastics Design Corporation
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ Corporation
|
|
▇▇▇▇▇
Plastics Technical Services, Inc.
|
|
Cardinal
Packaging, Inc.
|
|
CPI
Holding Corporation
|
|
Knight
Plastics, Inc.
|
|
▇▇▇▇▇▇
Plastics, Inc.
|
|
Packerware
Corporation
|
|
Pescor,
Inc.
|
|
Poly-Seal
Corporation
|
|
Venture
Packaging, Inc.
|
|
Venture
Packaging Midwest, Inc.
|
|
▇▇▇▇▇
Plastics Acquisition Corporation III
|
|
▇▇▇▇▇
Plastics Acquisition Corporation V
|
|
▇▇▇▇▇
Plastics Acquisition Corporation VII
|
|
▇▇▇▇▇
Plastics Acquisition Corporation VIII
|
|
▇▇▇▇▇
Plastics Acquisition Corporation IX
|
|
▇▇▇▇▇
Plastics Acquisition Corporation X
|
|
▇▇▇▇▇
Plastics Acquisition Corporation XI
|
|
▇▇▇▇▇
Plastics Acquisition Corporation XII
|
|
▇▇▇▇▇
Plastics Acquisition Corporation XIII
|
|
▇▇▇▇
Group, Inc.
|
|
Saffron
Acquisition Corp.
|
|
Sun
Coast Industries, Inc.
|
|
▇▇▇▇▇
Plastics Acquisition Corporation XV, LLC
|
|
Setco,
LLC
|
|
Tubed
Products, LLC
|
By:
__________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
44
|
NY\1256666.8|||
038263-0065||
|
Upon
consummation of the Merger:
Covalence
Specialty Coatings LLC
|
|
Covalence
Specialty Adhesives LLC
|
By: ▇▇▇▇▇
PLASTICS HOLDING CORPORATION, its sole member and manager
By
_____________________________
Name:
Title:
44
|
NY\1256666.8|||
038263-0065||
SCHEDULE
I
|
▇▇▇▇▇
Plastics Holding Corporation
|
|
▇▇▇▇▇
Plastics Corporation
|
|
AeroCon,
Inc.
|
|
▇▇▇▇▇
Iowa Corporation
|
|
▇▇▇▇▇
Plastics Design Corporation
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ Corporation
|
|
▇▇▇▇▇
Plastics Technical Services, Inc.
|
|
Cardinal
Packaging, Inc.
|
|
CPI
Holding Corporation
|
|
Knight
Plastics, Inc.
|
|
▇▇▇▇▇▇
Plastics, Inc.
|
|
Packerware
Corporation
|
|
Pescor,
Inc.
|
|
Poly-Seal
Corporation
|
|
Venture
Packaging, Inc.
|
|
Venture
Packaging Midwest, Inc.
|
|
▇▇▇▇▇
Plastics Acquisition Corporation III
|
|
▇▇▇▇▇
Plastics Acquisition Corporation V
|
|
▇▇▇▇▇
Plastics Acquisition Corporation VII
|
|
▇▇▇▇▇
Plastics Acquisition Corporation VIII
|
|
▇▇▇▇▇
Plastics Acquisition Corporation IX
|
|
▇▇▇▇▇
Plastics Acquisition Corporation X
|
|
▇▇▇▇▇
Plastics Acquisition Corporation XI
|
|
▇▇▇▇▇
Plastics Acquisition Corporation XII
|
|
▇▇▇▇▇
Plastics Acquisition Corporation XIII
|
|
▇▇▇▇
Group, Inc.
|
|
Saffron
Acquisition Corp.
|
|
Sun
Coast Industries, Inc.
|
|
▇▇▇▇▇
Plastics Acquisition Corporation XV, LLC
|
|
Setco,
LLC
|
|
Tubed
Products, LLC
|
|
Covalence
Specialty Coatings LLC
|
|
Covalence
Specialty Adhesives LLC
|