ADDITIONAL RECEIVABLES INTERCREDITOR AGREEMENT by and between BANK OF AMERICA, N.A., as ABL Collateral Agent, and BANK OF AMERICA, N.A., as New First Lien Collateral Agent Dated as of August 1, 2011
Exhibit 4.10
by and between
BANK OF AMERICA, N.A.,
as ABL Collateral Agent,
as ABL Collateral Agent,
and
BANK OF AMERICA, N.A.,
as New First Lien Collateral Agent
as New First Lien Collateral Agent
Dated as of August 1, 2011
TABLE OF CONTENTS
| Page No. | ||||
| ARTICLE 1 |
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| DEFINITIONS |
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Section 1.1 Definitions |
2 | |||
Section 1.2 Rules of Construction |
10 | |||
| ARTICLE 2 |
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| LIEN PRIORITY |
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Section 2.1 Priority of Liens |
11 | |||
Section 2.2 Waiver of Right to Contest Liens |
12 | |||
Section 2.3 Remedies Standstill |
13 | |||
Section 2.4 Exercise of Rights |
14 | |||
Section 2.5 No New Liens |
15 | |||
Section 2.6 Waiver of Marshaling |
16 | |||
| ARTICLE 3 |
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| ACTIONS OF THE PARTIES |
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Section 3.1 Certain Actions Permitted |
16 | |||
Section 3.2 Agent for Perfection |
16 | |||
Section 3.3 Inspection and Access Rights |
17 | |||
Section 3.4 Insurance |
17 | |||
Section 3.5 Exercise of Remedies—Set-off and Tracing of and Priorities in Proceeds |
18 | |||
| ARTICLE 4 |
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| APPLICATION OF PROCEEDS |
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Section 4.1 Application of Proceeds |
18 | |||
Section 4.2 Specific Performance |
20 | |||
| ARTICLE 5 |
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| INTERCREDITOR ACKNOWLEDGMENTS AND WAIVERS |
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Section 5.1 Notice of Acceptance and Other Waivers |
20 | |||
Section 5.2 Modifications to ABL Documents and New First Lien Documents |
21 | |||
Section 5.3 Reinstatement and Continuation of Agreement |
22 | |||
| ARTICLE 6 |
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| INSOLVENCY PROCEEDINGS |
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Section 6.1 DIP Financing |
23 | |||
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| Page No. | ||||
Section 6.2 Relief from Stay |
24 | |||
Section 6.3 No Contest; Adequate Protection |
24 | |||
Section 6.4 Asset Sales |
25 | |||
Section 6.5 Separate Grants of Security and Separate Classification |
25 | |||
Section 6.6 Enforceability |
26 | |||
Section 6.7 ABL Obligations Unconditional |
26 | |||
| ARTICLE 7 |
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| MISCELLANEOUS |
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Section 7.1 Rights of Subrogation |
26 | |||
Section 7.2 Further Assurances |
26 | |||
Section 7.3 Representations |
27 | |||
Section 7.4 Amendments |
27 | |||
Section 7.5 Addresses for Notices |
28 | |||
Section 7.6 No Waiver; Remedies |
28 | |||
Section 7.7 Continuing Agreement; Transfer of Secured Obligations |
28 | |||
Section 7.8 Governing Law; Entire Agreement |
28 | |||
Section 7.9 Counterparts |
29 | |||
Section 7.10 No Third Party Beneficiaries |
29 | |||
Section 7.11 Headings |
29 | |||
Section 7.12 Severability |
29 | |||
Section 7.13 Attorneys Fees |
29 | |||
Section 7.14 VENUE; JURY TRIAL WAIVER |
29 | |||
Section 7.15 Intercreditor Agreement |
30 | |||
Section 7.16 Effectiveness |
30 | |||
Section 7.17 Collateral Agents |
30 | |||
Section 7.18 No Warranties or Liability |
30 | |||
Section 7.19 Conflicts |
31 | |||
Section 7.20 Information Concerning Financial Condition of the Credit Parties |
31 | |||
Section 7.21 Acknowledgement |
31 | |||
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THIS ADDITIONAL RECEIVABLES INTERCREDITOR AGREEMENT (as amended, supplemented, restated or
otherwise modified from time to time pursuant to the terms hereof, this “Agreement”) is entered
into as of August 1, 0000 xxxxxxx XXXX XX XXXXXXX, N.A. (“Bank of America”), in its
capacity as collateral agent for the ABL Obligations (as defined below), and Bank of America, in
its capacity as collateral agent for the New First Lien Obligations (as defined below).
RECITALS
A. HCA INC., a Delaware corporation (the “Company”), is party to the Credit Agreement
dated as of November 17, 2006, as amended and restated as of May 4, 2011 (as may be further
amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time
(including without limitation to add new loans thereunder or increase the amount of loans
thereunder), the “ABL Credit Agreement”), among the Company, the several Subsidiary
Borrowers party thereto, the Lenders party thereto from time to time, BANK OF AMERICA, N.A., as
Administrative Agent, Swingline Lender and Letter of Credit Issuer, JPMORGAN CHASE BANK, N.A. and
CITICORP NORTH AMERICA, INC., as Co-Syndication Agents, XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED, X.X. XXXXXX SECURITIES LLC and CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arrangers
and Bookrunners, DEUTSCHE BANK SECURITIES INC. and XXXXX FARGO CAPITAL FINANCE, LLC, as Joint
Bookrunners, and XXXXXXX XXXXX CAPITAL CORPORATION, as Documentation Agent. The ABL Credit
Agreement is designated by the Company to be included in the definition of “ABL Facility” under the
New First Lien Agreement (as defined below) and the Obligations thereunder constitute ABL
Obligations within the meaning of the New First Lien Agreement.
B. The Company is party to the Indenture, dated as of August 1, 2011 (the “Base
Indenture”) among the Company, HCA Holdings, Inc., the (“Parent Guarantor”), Law
Debenture Trust Company of New York, as trustee (in such capacity, the “Trustee”) and
Deutsche Bank Trust Company Americas, as registrar, paying agent and transfer agent (in each such
capacity, the “Registrar”), as supplemented by the Supplemental Indenture No. 2 for the
6.50% Senior Secured Notes due 2020, dated as of August 1, 2011 (together with the Base Indenture,
the “New First Lien Agreement”), among the Company, the Parent Guarantor, the other
Subsidiary Guarantors party thereto, the Trustee (in such capacity, “New First Lien
Trustee”) and the Registrar.
C. Bank of America, N.A., as ABL collateral agent, Bank of America, as collateral agent for
the holders of Obligations under the CF Credit Agreement, and The Bank of New York, as collateral
agent for the holders of notes issued under the Second Lien Notes Indentures, are party to that
certain Receivables Intercreditor Agreement (the “Original Receivables Intercreditor
Agreement”) dated as of November 17, 2006, which sets forth and governs the relative rights,
privileges and obligations with respect to the Common Collateral as between the ABL Collateral
Agent, on the one hand, and the Subordinated Lien Collateral Agent and Subordinated Lien Secured
Parties (each as defined therein), on the other hand.
D. Bank of America, N.A., as collateral agent for the lenders and other secured parties under
the CF Credit Agreement, and The Bank of New York Mellon, as collateral agent for the noteholders
and other secured parties pursuant to the Second Lien Notes Indentures, are party to that certain
General Intercreditor Agreement (the “Original General Intercreditor Agreement”), dated as
of November 17, 2006, which sets forth and governs the relative rights, privileges and obligations
with respect to the collateral described therein (including, without limitation, the Shared
Receivables Collateral) as between the First Lien Secured Parties (as defined therein), on the one
hand, and the Junior Lien Secured Parties (as defined therein), on the other hand.
E. Bank of America, N.A., as first lien collateral agent, The Bank of New York Mellon, as
junior lien collateral agent and as trustee under the 2006 Indenture, and The Bank of New York
Mellon Trust Company, N.A., as trustee under the 2009 Indenture, are party to that certain
Additional General Intercreditor Agreement (the “Additional General Intercreditor
Agreement”), dated as of August 1, 2011, which sets forth and governs the relative rights,
privileges and obligations with respect to the collateral described therein (including without
limitation, the Shared Receivables Collateral) as between the New First Lien Secured Parties (as
defined therein), on the one hand, and the Junior Lien Secured Parties, on the other hand.
F. Bank of America, N.A., as collateral agent for the holders of Obligations under the CF
Credit Agreement, the New First Lien Agreement and the Existing First Lien Indentures (as defined
below) and as authorized representative for the holders of Obligations under the CF Credit
Agreement, and Law Debenture Trust Company of New York, as authorized representative for the
holders of the Obligations under the Existing First Lien Indentures, are party to that certain
First Lien Intercreditor Agreement (the “First Lien Intercreditor Agreement”), dated as of
April 22, 2009, which sets forth and governs the relative rights, privileges and obligations with
respect to the collateral described therein (including, without limitation, the Shared Receivables
Collateral) as among the holders of Obligations under the CF Credit Agreement, the New First Lien
Secured Parties and any series of Additional First Lien Secured Parties (as defined therein) and to
which the New First Lien Secured Parties have joined by virtue of the Additional First Lien Secured
Party Consent, dated as of August 1, 2011.
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:
ARTICLE 1
DEFINITIONS
DEFINITIONS
Section 1.1 Definitions. Unless the context otherwise requires, all capitalized terms
used but not defined herein shall have the meanings set forth in the ABL Credit Agreement and the
New First Lien Agreement, in each case as in effect on August 1, 2011. In addition, as used in
this Agreement, the following terms shall have the meanings set forth below:
“ABL Collateral Agent” shall mean Bank of America, in its capacity as collateral agent
for the lenders and other secured parties under the ABL Credit Agreement and the other ABL
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Documents entered into pursuant to the ABL Credit Agreement, together with its successors and
permitted assigns under the ABL Credit Agreement exercising substantially the same rights and
powers; and in each case provided that if such ABL Collateral Agent is not Bank of America, such
ABL Collateral Agent shall have become a party to this Agreement and the other applicable ABL
Security Documents.
“ABL Controlled Accounts” shall mean, collectively, with respect to each Grantor, (i)
all Deposit Accounts and all Securities Accounts and all accounts and sub-accounts relating to any
of the foregoing accounts and (ii) all cash, funds, checks, notes, “securities entitlements” (as
such terms are defined in the UCC) and instruments from time to time on deposit in any of the
accounts or sub-accounts described in clause (i) of this definition, in each case, which are
subject to a control agreement in favor of the ABL Collateral Agent.
“ABL Documents” means the credit, guarantee and security documents governing the ABL
Obligations, including, without limitation, the ABL Credit Agreement and the ABL Security Documents
and Secured Cash Management Agreements (as defined in the ABL Credit Agreement as in effect on the
date hereof) and Secured Hedge Agreements (as defined in the ABL Credit Agreement as in effect on
the date hereof).
“ABL Entity” shall mean a direct Subsidiary of a 1993 Indenture Restricted Subsidiary,
substantially all of the business of which consists of financing of accounts receivable and related
assets.
“ABL Obligations” shall mean all “Obligations” as defined in the ABL Credit Agreement.
For the avoidance of doubt, Obligations with respect to the New First Lien Agreement and the other
New First Lien Documents shall not constitute ABL Obligations.
“ABL Recovery” shall have the meaning set forth in Section 5.3.
“ABL Secured Parties” means “Secured Parties” as defined in the ABL Credit Agreement.
“ABL Security Agreement” means the Security Agreement (as defined in the ABL Credit
Agreement).
“ABL Security Documents” means the ABL Security Agreement and the other Security
Documents (as defined in the ABL Credit Agreement) and any other agreement, document or instrument
pursuant to which a Lien is granted or purported to be granted securing ABL Obligations or under
which rights or remedies with respect to such Liens are governed.
“Affiliate” shall mean, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common control with such Person.
A Person shall be deemed to control a corporation if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and policies of such
corporation, whether through the ownership of voting securities, by contract or otherwise.
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“Agreement” shall have the meaning assigned to that term in the introduction to this
Agreement.
“Bank of America” shall have the meaning assigned to that term in the introduction to
this Agreement.
“Bankruptcy Code” shall mean Title 11 of the United States Code.
“Capital Stock” shall mean, as to any Person that is a corporation, the authorized
shares of such Person’s capital stock, including all classes of common, preferred, voting and
nonvoting capital stock, and, as to any Person that is not a corporation or an individual, the
membership or other ownership interests in such Person, including the right to share in profits and
losses, the right to receive distributions of cash and other property, and the right to receive
allocations of items of income, gain, loss, deduction and credit and similar items from such
Person, whether or not such interests include voting or similar rights entitling the holder thereof
to exercise Control over such Person, collectively with, in any such case, all warrants, options
and other rights to purchase or otherwise acquire, and all other instruments convertible into or
exchangeable for, any of the foregoing.
“CF Credit Agreement” shall mean that certain credit agreement dated as of November
17, 2006 among the Company, HCA UK Capital Limited, a limited liability company (company no.
04779021) formed under the laws of England and Wales, as the European Subsidiary Borrower
thereunder, the Lenders party thereto from time to time, Bank of America, N.A., as administrative
agent, swingline lender and letter of credit issuer, JPMorgan Chase Bank, N.A. and Citicorp North
America, Inc., as co-syndication agents, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X.
Xxxxxx Securities LLC and Citigroup Global Markets Inc., as joint lead arrangers and bookrunners,
Deutsche Bank Securities Inc. and Wachovia Capital Markets LLC, as joint bookrunners, and Xxxxxxx
Xxxxx Capital Corporation, as documentation agent, as amended and restated on May 9, 2011 and as
further amended, restated, supplemented, waived, refinanced or otherwise modified from time to
time.
“Collateral Agent(s)” means individually the ABL Collateral Agent or the New First
Lien Collateral Agent and collectively means the ABL Collateral Agent and the New First Lien
Collateral Agent.
“Common Collateral” means Receivables Collateral other than Separate Receivables
Collateral.
“Comparable New First Lien Security Document” shall mean, in relation to any Common
Collateral subject to any Lien created under any ABL Document, those New First Lien Security
Documents that create a Lien on the same Common Collateral (but only to the extent relating to such
Common Collateral), granted by the same Grantor.
“Control” shall mean the possession, directly or indirectly, of the power (a) to vote 50% or
more of the securities having ordinary voting power for the election of directors (or any similar
governing body) of a Person, or (b) to direct or cause the direction of the management or
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policies of a Person, whether through the ability to exercise voting power, by contract or
otherwise. The terms “Controlling” and “Controlled” have meanings correlative thereto.
“Credit Documents” shall mean the ABL Documents and the New First Lien Documents.
“Deposit Account” shall have the meaning set forth in the UCC.
“Designated Non-Receivables Accounts” means Deposit Accounts containing exclusively
cash consisting of proceeds from the sale of Non-Receivables Collateral.
“DIP Financing” shall have the meaning set forth in Section 6.1(a).
“Discharge of ABL Obligations” shall mean, except to the extent otherwise provided in
Section 5.3, payment in full in cash (except for contingent indemnities and cost and reimbursement
obligations to the extent no claim has been made) of all ABL Obligations and, with respect to
letters of credit or letter of credit guaranties outstanding under the ABL Documents, delivery of
cash collateral or backstop letters of credit in respect thereof in a manner consistent with the
ABL Credit Agreement, in each case after or concurrently with the termination of all commitments to
extend credit thereunder, and the termination of all commitments of ABL Secured Parties under ABL
Documents; provided that the Discharge of ABL Obligations shall not be deemed to have
occurred if such payments are made with the proceeds of other ABL Obligations that constitute an
exchange or replacement for or a Refinancing of such ABL Obligations (unless in connection with
such exchange, replacement or Refinancing all the ABL Obligations are repaid in full in cash (and
the other conditions set forth in this definition prior to the proviso are satisfied) with the
proceeds of a Permitted Receivables Financing (as defined in the ABL Credit Agreement), in which
case a Discharge of ABL Obligations shall be deemed to have occurred). In the event the ABL
Obligations are modified and the ABL Obligations are paid over time or otherwise modified pursuant
to Section 1129 of the Bankruptcy Code, the ABL Obligations 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.
“Disposition” has the meaning set forth in Section 2.4(b).
“Enforcement Notice” shall mean a written notice delivered by the New First Lien
Collateral Agent to the ABL Collateral Agent announcing the commencement of an Exercise of Secured
Creditor Remedies.
“Exercise Any Secured Creditor Remedies” or “Exercise of Secured Creditor
Remedies” shall mean, except as otherwise provided in the final sentence of this definition:
(a) the taking by any Secured Party of any action to enforce or realize upon any Lien
on Common Collateral, including the institution of any foreclosure proceedings or the
noticing of any public or private sale pursuant to Article 9 of the Uniform Commercial Code;
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(b) the exercise by any Secured Party of any right or remedy provided to a secured
creditor on account of a Lien on Common Collateral under any of the Credit Documents, under
applicable law, in an Insolvency Proceeding or otherwise, including the election to retain
any of the Common Collateral in satisfaction of a Lien;
(c) the taking of any action by any Secured Party or the exercise of any right or
remedy by any Secured Party in respect of the collection on, set off against, marshaling of,
injunction respecting or foreclosure on the Common Collateral or the Proceeds thereof;
(d) the appointment on the application of a Secured Party, of a receiver, receiver and
manager or interim receiver of all or part of the Common Collateral;
(e) the sale, lease, license, or other disposition of all or any portion of the Common
Collateral by private or public sale conducted by a Secured Party or any other means at the
direction of a Secured Party permissible under applicable law; or
(f) the exercise of any other right of a secured creditor under Part 6 of Article 9 of
the Uniform Commercial Code in respect of Common Collateral.
For the avoidance of doubt, none of the following shall be deemed to constitute an Exercise of
Secured Creditor Remedies: (i) the filing a proof of claim in bankruptcy court or seeking adequate
protection, (ii) the exercise of rights by the ABL Collateral Agent upon the occurrence of a Cash
Dominion Event (as defined in the ABL Credit Agreement), including, without limitation, the
notification of account debtors, depository institutions or any other Person to deliver proceeds of
Receivables Collateral to the ABL Collateral Agent (unless and until the Lenders under the ABL
Credit Agreement cease to extend credit to the Borrowers thereunder, in which event an Exercise of
Secured Creditor Remedies shall be deemed to have occurred), (iii) the consent by a Secured Party
to a sale or other disposition by any Grantor of any of its assets or properties, (iv) the
acceleration of all or a portion of the ABL Obligations or any New First Lien Obligations, (v) the
reduction of the borrowing base, advance rates or sub-limits by the Administrative Agent under the
ABL Credit Agreement, the ABL Collateral Agent and the Lenders under the ABL Credit Agreement, (vi)
the imposition of reserves by the ABL Collateral Agent, (vii) an account ceasing to be an “eligible
account” under the ABL Credit Agreement or (viii) any action taken by any ABL Secured Party in
respect of Separate Receivables Collateral. For the avoidance of doubt, the actions permitted by
Sections 2.3(b), 2.4(a) and 3.1 shall not be deemed to be an Exercise of Secured Creditor Remedies.
“Existing First Lien Indentures” shall mean collectively, (i) that certain Indenture,
dated as of April 22, 2009, among the Company, the guarantors named on Schedule I thereto, Law
Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as
paying agent, registrar and transfer agent, (ii) that certain Indenture dated as of August 11, 2009
among the Company, the guarantors named on Schedule I thereto, Law Debenture Trust Company of New
York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer
agent, and (iii) that certain Indenture dated as of March 10, 2010 among the Company, the
guarantors named on Schedule I thereto, Law Debenture Trust
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Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent,
registrar and transfer agent.
“Governmental Authority” shall mean any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
“Grantors” shall mean the Company and each Subsidiary that has executed and delivered an ABL
Security Document or a New First Lien Security Document.
“Indebtedness” shall have the meaning provided in the ABL Credit Agreement and the New First
Lien Agreement as in effect on the date hereof.
“Insolvency Proceeding” shall mean:
(1) any case commenced by or against the Company or any other Grantor under any
Bankruptcy Law, any other proceeding for the reorganization, recapitalization or adjustment
or marshaling of the assets or liabilities of the Company or any other Grantor, any
receivership or assignment for the benefit of creditors relating to the Company or any other
Grantor or any similar case or proceeding relative to the Company or any other Grantor or
its creditors, as such, in each case whether or not voluntary;
(2) any liquidation, dissolution, marshaling of assets or liabilities or other winding
up of or relating to the Company or any other Grantor, in each case whether or not voluntary
and whether or not involving bankruptcy or insolvency; or
(3) any other proceeding of any type or nature in which substantially all claims of
creditors of the Company or any other Grantor are determined and any payment or distribution
is or may be made on account of such claims.
“Lien” shall mean any mortgage, pledge, security interest, hypothecation, assignment,
lien (statutory or other) or similar encumbrance (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement or any lease in the nature
thereof).
“Lien Priority” shall mean with respect to any Lien of the ABL Collateral Agent, the
ABL Secured Parties, the New First Lien Collateral Agent or the New First Lien Secured Parties on
the Common Collateral, the order of priority of such Lien as specified in Section 2.1.
“New First Lien Agreement” shall have the meaning set forth in the recitals.
“New First Lien Collateral Agent” shall mean (i) so long as obligations are
outstanding under the New First Lien Agreement, Bank of America, N.A., in its capacity as
collateral agent for the noteholders and other secured parties under the New First Lien Agreement
and the other security documents thereunder, and (ii) at any time thereafter, such agent or trustee
as is designated “New First Lien Collateral Agent” by the New First Lien Secured Parties holding a
majority in principal amount of the New First Lien Obligations then outstanding or pursuant to such
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other arrangements as agreed to among the holders of the New First Lien Obligations; it being
understood that as of the date of this Agreement, Bank of America, N.A. shall be such New First
Lien Collateral Agent.
“New First Lien Documents” means the indenture, credit documents and security
documents governing the New First Lien Obligations, including, without limitation, the New First
Lien Agreement and the New First Lien Security Documents.
“New First Lien Enforcement Date” means the date which is 180 days after the
occurrence of both (i) a continuing Event of Default (under and as defined in the New First Lien
Agreement) and (ii) the ABL Collateral Agent’s receipt of an Enforcement Notice from the New First
Lien Collateral Agent; provided that the New First Lien Enforcement Date shall be stayed
and shall not occur (or be deemed to have occurred) (A) at any time the ABL Collateral Agent or the
ABL Secured Parties have commenced and are diligently pursuing enforcement action against the
Common Collateral, (B) at any time that any Grantor is then a debtor under or with respect to (or
otherwise subject to) any Insolvency Proceeding, or (C) if the Event of Default under the New First
Lien Agreement is waived or cured in accordance with the terms of the New First Lien Agreement.
“New First Lien Obligations” shall mean Obligations under the New First Lien Documents
and Obligations with respect to other Indebtedness permitted to be incurred under the New First
Lien Documents and the ABL Credit Agreement which is by its terms intended to be secured equally
and ratably with the Obligations under the New First Lien Documents or on a basis junior to the
Liens securing the New First Lien Obligations (provided such Lien is permitted to be
incurred under the New First Lien Documents and the ABL Credit Agreement); provided that
the holders of such Indebtedness or their New First Lien Representative is a party to the New First
Lien Security Documents in accordance with the terms thereof and has appointed the New First Lien
Collateral Agent as collateral agent for such holders of New First Lien Obligations with respect to
all or a portion of the Common Collateral.
“New First Lien Representative” shall mean any duly authorized representative of any
holders of New First Lien Obligations, which representative is a party to the New First Lien
Documents.
“New First Lien Secured Parties” shall mean (i) so long as the New First Lien
Obligations are outstanding, the New First Lien Trustee and the holders of the New First Lien
Obligations (including any New First Lien Obligations subsequently issued under and in compliance
with the New First Lien Agreement), (ii) the New First Lien Collateral Agent, (iii) the holders
from time to time of any other New First Lien Obligations and (iv) each New First Lien
Representative.
“New First Lien Security Documents” shall mean (a) so long as the New First Lien
Obligations are outstanding, the Security Documents (as defined in the New First Lien Agreement)
and (b) thereafter, any agreement, document or instrument pursuant to which a Lien is granted or
purported to be granted securing New First Lien Obligations or under which rights or remedies with
respect to such Liens are governed, which in each case may include intercreditor and/or
subordination agreements or arrangements among various New First Lien Secured Parties.
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“1993 Indenture” shall mean the Indenture dated as of December 16, 1993 between the
Company and First National Bank of Chicago, as trustee, as amended, and as may be further amended,
supplemented or modified from time to time.
“1993 Indenture Restricted Subsidiary” shall mean any Subsidiary that on the date
hereof constitutes a Restricted Subsidiary under (and as defined in) the 1993 Indenture, as in
effect on the date hereof.
“Non-Receivables Collateral” shall mean all “Collateral” as defined in any New First
Lien Security Document, but excluding all Receivables Collateral.
“Obligations” means any principal, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the
rate provided for in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign law), premium, penalties, fees,
indemnifications, reimbursements (including reimbursement obligations with respect to letters of
credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such
principal, interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities, payable under the documentation governing any Indebtedness.
“Party” shall mean the ABL Collateral Agent or the New First Lien Collateral Agent, and
“Parties” shall mean collectively the ABL Collateral Agent and the New First Lien Collateral Agent.
“Person” shall mean an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
“Proceeds” shall mean (a) all “proceeds,” as defined in Article 9 of the Uniform Commercial
Code, with respect to the Common Collateral, and (b) whatever is recoverable or recovered when any
Common Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or
involuntarily.
“Receivables Collateral” means Collateral as defined in the ABL Security Agreement as
in effect on the date hereof. Without expanding the foregoing, for the avoidance of doubt, neither
European Collateral (as defined in the CF Credit Agreement) (whether in the form of accounts
receivable or otherwise), Principal Properties (as defined in the New First Lien Agreement), any
capital stock (or capital stock equivalents) pledged pursuant to any New First Lien Security
Documents, Designated Non-Receivables Accounts nor Mortgaged Properties (as defined in the CF
Credit Agreement) shall constitute Receivables Collateral.
“Refinance” means, in respect of any indebtedness, to refinance, extend, renew,
defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue
other indebtedness or enter alternative financing arrangements, in exchange or replacement for such
indebtedness, including by adding or replacing lenders, creditors, agents, borrowers and/or
guarantors, and including in each case, but not limited to, after the original instrument giving
rise to
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such indebtedness has been terminated. “Refinanced” and “Refinancing” have
correlative meanings.
“Second Lien Notes Indentures” means the 2006 Indenture and the 2009 Indenture.
“Secured Parties” shall mean the ABL Secured Parties and the New First Lien Secured
Parties.
“Securities Account” has the meaning set forth in the UCC.
“Separate Receivables Collateral” means Receivables Collateral owned or held by an ABL
Entity and Proceeds (as defined in the ABL Security Agreement) thereof.
“Shared Receivables Collateral” means Common Collateral.
“Subsidiary” shall mean with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity (a) of which
Capital Stock representing more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such date, owned,
Controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
“2006 Indenture” means the Indenture, dated as of November 17, 2006, among the
Company, the guarantors identified therein and The Bank of New York Mellon, as trustee, as amended,
restated, supplemented, waived, Refinanced or otherwise modified from time to time.
“2009 Indenture” means the Indenture, dated as of February 19, 2009, among the
Company, the guarantors identified therein, The Bank of New York Trust Company, N.A., as trustee,
and The Bank of New York Mellon, as collateral agent, as amended, restated, supplemented, waived,
Refinanced or otherwise modified from time to time.
“Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code as
the same may, from time to time, be in effect in the State of New York; provided that to the extent
that the Uniform Commercial Code is used to define any term in any security document and such term
is defined differently in differing Articles of the Uniform Commercial Code, the definition of such
term contained in Article 9 shall govern; provided, further, that in the event that, by reason of
mandatory provisions of law, any or all of the attachment, perfection, publication or priority of,
or remedies with respect to, Liens of any Party is governed by the Uniform Commercial Code or
foreign personal property security laws as enacted and in effect in a jurisdiction other than the
State of New York, the term “Uniform Commercial Code” will mean the Uniform Commercial Code or such
foreign personal property security laws as enacted and in effect in such other jurisdiction solely
for purposes of the provisions thereof relating to such attachment, perfection, priority or
remedies and for purposes of definitions related to such provisions.
Section 1.2 Rules of Construction. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, references to the singular
include the plural, the term “including” is not limiting and shall be deemed to be followed by the
phrase
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“without limitation,” and the term “or” has, except where otherwise indicated, the inclusive
meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,”
and similar terms in this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement. Article, section, subsection, clause, schedule and exhibit references
herein are to this Agreement unless otherwise specified. Any reference in this Agreement to any
agreement, instrument, or document shall include all alterations, amendments, changes,
restatements, extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements thereto and thereof, as applicable (subject to any restrictions on such alterations,
amendments, changes, restatements, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements set forth herein). Any reference herein to any Person
shall be construed to include such Person’s successors and assigns. Any reference herein to the
repayment in full of an obligation shall mean the payment in full in cash of such obligation, or in
such other manner as may be approved in writing by the requisite holders or representatives in
respect of such obligation, or in such other manner as may be approved by the requisite holders or
representatives in respect of such obligation.
ARTICLE 2
LIEN PRIORITY
LIEN PRIORITY
Section 2.1 Priority of Liens.
(a) Notwithstanding (i) the date, time, method, manner, or order of grant, attachment, or
perfection of any Liens granted to the ABL Collateral Agent or the ABL Secured Parties in respect
of all or any portion of the Common Collateral or of any Liens granted to any New First Lien
Collateral Agent or any New First Lien Secured Parties in respect of all or any portion of the
Common Collateral, and regardless of how any such Lien was acquired (whether by grant, statute,
operation of law, subrogation or otherwise), (ii) the order or time of filing or recordation of any
document or instrument for perfecting the Liens in favor of the ABL Collateral Agent or any New
First Lien Collateral Agent (or the ABL Secured Parties or any of the New First Lien Secured
Parties) on any Common Collateral, (iii) any provision of the Uniform Commercial Code, the
Bankruptcy Code or any other applicable law, or of any of the ABL Documents or any of the New First
Lien Documents, or (iv) whether the ABL Collateral Agent or any New First Lien Collateral Agent, in
each case, either directly or through agents, holds possession of, or has control over, all or any
part of the Common Collateral, the ABL Collateral Agent, on behalf of itself and the ABL Secured
Parties, and the New First Lien Collateral Agent, on behalf of itself and the New First Lien
Secured Parties, hereby agree that:
(1) any Lien in respect of all or any portion of the Common Collateral now or hereafter
held by or on behalf of the New First Lien Collateral Agent or the New First Lien Secured
Parties that secures all or any portion of the New First Lien Obligations shall in all
respects be junior and subordinate to all Liens granted to the ABL Collateral Agent and the
ABL Secured Parties on the Common Collateral; and
(2) any Lien in respect of all or any portion of the Common Collateral now or hereafter
held by or on behalf of the ABL Collateral Agent or any ABL Secured Party that secures all
or any portion of the ABL Obligations shall in all respects be senior and
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prior to all Liens granted to the New First Lien Collateral Agent or the New First Lien
Secured Parties on the Common Collateral.
The New First Lien Collateral Agent, for and on behalf of itself and each New First Lien Secured
Party, expressly agrees that any Lien purported to be granted on any Common Collateral as security
for the ABL Obligations shall be deemed to be and shall be deemed to remain senior in all respects
and prior to all Liens on the Common Collateral securing any New First Lien Obligations for all
purposes regardless of whether the Lien purported to be granted is found to be improperly granted,
improperly perfected, preferential, a fraudulent conveyance or legally or otherwise deficient in
any manner.
(b) The ABL Collateral Agent, for and on behalf of itself and the ABL Secured Parties,
acknowledges and agrees that, concurrently herewith, the New First Lien Collateral Agent, for the
benefit of itself and the New First Lien Secured Parties, has been granted Liens upon all of the
Common Collateral in which the ABL Collateral Agent has been granted Liens and the ABL Collateral
Agent hereby consents thereto. The subordination of Liens by the New First Lien Collateral Agent
in favor of the ABL Collateral Agent as set forth herein shall not be deemed to subordinate the
respective Liens of the New First Lien Collateral Agent or the New First Lien Secured Parties to
Liens securing any other Obligations other than the ABL Obligations (subject to the First Lien
Intercreditor Agreement and the Additional General Intercreditor Agreement).
Section 2.2 Waiver of Right to Contest Liens.
(a) The New First Lien Collateral Agent, for and on behalf of itself and the New First Lien
Secured Parties, agrees that it shall not (and hereby waives any right to) take any action to
contest or challenge (or assist or support any other Person in contesting or challenging), directly
or indirectly, whether or not in any proceeding (including in any Insolvency Proceeding), the
validity, priority, enforceability, or perfection of the Liens of the ABL Collateral Agent and the
ABL Secured Parties in respect of Receivables Collateral or the provisions of this Agreement.
Except to the extent expressly set forth in this Agreement, the New First Lien Collateral Agent,
for itself and on behalf of the New First Lien Secured Parties, agrees that it will not take any
action that would interfere with any Exercise of Secured Creditor Remedies undertaken by the ABL
Collateral Agent or any ABL Secured Party under the ABL Documents with respect to the Common
Collateral. Except to the extent expressly set forth in this Agreement, the New First Lien
Collateral Agent, for itself and on behalf of the New First Lien Secured Parties, hereby waives any
and all rights it may have as a junior lien creditor or otherwise to contest, protest, object to,
or interfere with the manner in which the ABL Collateral Agent or any ABL Secured Party seeks to
enforce its Liens in any Common Collateral.
(b) The ABL Collateral Agent, for and on behalf of itself and the ABL Secured Parties, agrees
that it and they shall not (and hereby waives any right to) take any action to contest or challenge
(or assist or support any other Person in contesting or challenging), directly or indirectly,
whether or not in any proceeding (including in any Insolvency Proceeding), the validity, priority,
enforceability, or perfection of the respective Liens of the New First Lien Collateral Agent or the
New First Lien Secured Parties in respect of the Common Collateral or the provisions of this
Agreement.
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Section 2.3 Remedies Standstill.
(a) The New First Lien Collateral Agent, on behalf of itself and the New First Lien Secured
Parties, agrees that, from the date hereof until the date upon which the Discharge of ABL
Obligations shall have occurred, neither the New First Lien Collateral Agent nor any New First Lien
Secured Party will Exercise Any Secured Creditor Remedies with respect to any Common Collateral
without the written consent of the ABL Collateral Agent, and will not take, receive or accept any
Proceeds of Common Collateral, it being understood and agreed that the temporary deposit of
Proceeds of Common Collateral in a Deposit Account controlled by the New First Lien Collateral
Agent shall not constitute a breach of this Agreement so long as such Proceeds are promptly
remitted to the ABL Collateral Agent; provided that, subject to Section 4.1(b) and the
provisions of the First Lien Intercreditor Agreement, upon the occurrence of the New First Lien
Enforcement Date, the New First Lien Collateral Agent acting on behalf of itself and the New First
Lien Secured Parties may exercise such remedies without such prior written consent of the other
Collateral Agent. Subject to the First Lien Intercreditor Agreement, from and after the date upon
which the Discharge of ABL Obligations shall have occurred (or prior thereto upon the occurrence of
the New First Lien Enforcement Date), the New First Lien Collateral Agent or any New First Lien
Secured Party may Exercise Any Secured Creditor Remedies under the New First Lien Documents or
applicable law as to any Common Collateral.
(b) Notwithstanding the provisions of Section 2.3(a) or any other provision of this Agreement
but subject to the First Lien Intercreditor Agreement, nothing contained herein shall be construed
to prevent any Collateral Agent or any Secured Party from (i) filing a claim or statement of
interest with respect to the ABL Obligations or New First Lien Obligations owed to it in any
Insolvency Proceeding commenced by or against any Grantor, (ii) taking any action (not adverse to
the priority status of the Liens of the other Collateral Agent or other Secured Parties on the
Common Collateral in which such other Collateral Agent or other Secured Parties has a priority Lien
or the rights of the other Collateral Agent or any of the other Secured Parties to exercise
remedies in respect thereof) in order to create, perfect, preserve or protect (but not enforce) its
Lien on any Common Collateral, (iii) filing any necessary or responsive pleadings in opposition to
any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise
seeking disallowance of the claim or Lien of such Collateral Agent or Secured Party, (iv) filing
any pleadings, objections, motions, or agreements which assert rights available to unsecured
creditors of the Grantors arising under any Insolvency Proceeding or applicable non-bankruptcy law,
(vi) voting on any plan of reorganization or file any proof of claim in any Insolvency Proceeding
of any Grantor, or (vii) objecting to the proposed retention of collateral by any other Collateral
Agent or any other Secured Party in full or partial satisfaction of any ABL Obligations or New
First Lien Obligations due to such other Collateral Agent or Secured Party, in each case (i)
through (vii) above to the extent not inconsistent with, or could not result in a resolution
inconsistent with, the terms of this Agreement.
(c) Subject to Section 2.3(b), (i) the New First Lien Collateral Agent, for itself and on
behalf of the New First Lien Secured Parties, agrees that neither it nor any such New First Lien
Secured Party will take any action that would hinder any exercise of remedies undertaken by the ABL
Collateral Agent or the ABL Secured Parties with respect to the Receivables Collateral, including
any sale, lease, exchange, transfer or other disposition of Receivables Collateral,
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whether by foreclosure or otherwise, and (ii) the New First Lien Collateral Agent, for itself
and on behalf of the New First Lien Secured Parties, hereby waives any and all rights it or any
such New First Lien Secured Party may have as a junior lien creditor or otherwise to object to the
manner in which the ABL Collateral Agent or the ABL Secured Parties seek to enforce or collect the
ABL Obligations or the Liens granted in any of the Receivables Collateral, regardless of whether
any action or failure to act by or on behalf of the ABL Collateral Agent or ABL Secured Parties is
adverse to the interests of the New First Lien Secured Parties.
(d) The New First Lien Collateral Agent, for itself and on behalf of the New First Lien
Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction
contained in any New First Lien Document shall be deemed to restrict in any way the rights and
remedies of the ABL Collateral Agent or the ABL Secured Parties with respect to the Receivables
Collateral as set forth in this Agreement and the ABL Documents.
(e) Subject to Section 2.3(b), the New First Lien Collateral Agent, for itself and on behalf
of the New First Lien Secured Parties, agrees that, unless and until the Discharge of ABL
Obligations has occurred, it will not commence, or join with any Person (other than the ABL Secured
Parties and the ABL Collateral 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.
(f) Notwithstanding the foregoing, clauses (c), (d) and (e) of this Section 2.3 shall not
apply from and after the occurrence of the New First Lien Enforcement Date, subject to the First
Lien Intercreditor Agreement.
Section 2.4 Exercise of Rights.
(a) No Other Restrictions. Except as otherwise expressly set forth in Section 2.1(a),
Section 2.2(a), Section 2.3, Section 3.5 and Article 6 of this Agreement and subject to the First
Lien Intercreditor Agreement, the New First Lien Collateral Agent and each New First Lien Secured
Party may exercise rights and remedies as an unsecured creditor against the Company or any
Subsidiary that has guaranteed the New First Lien Obligations in accordance with the terms of the
New First Lien Documents and applicable law. Nothing in this Agreement shall prohibit the receipt
by the New First Lien Collateral Agent or any New First Lien Secured Party of the required payments
of interest and principal so long as such receipt is not the direct or indirect result of the
exercise by the New First Lien Collateral Agent or any New First Lien Secured Party of rights or
remedies as a secured creditor in respect of Common Collateral or enforcement in contravention of
this Agreement of any Lien in respect of New First Lien Obligations held by any of them or in any
Insolvency Proceeding. In the event the New First Lien Collateral Agent or any New First Lien
Secured Party becomes a judgment lien creditor or other secured creditor in respect of Common
Collateral as a result of its enforcement of its rights as an unsecured creditor in respect of New
First Lien Obligations or otherwise, such judgment or other lien shall be subordinated to the Liens
securing ABL Obligations on the same basis as the other Liens securing the New First Lien
Obligations are so subordinated to such Liens securing ABL Obligations under this Agreement.
Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the ABL
Collateral Agent or the ABL Secured Parties may have with respect to the Receivables Collateral.
Furthermore, subject to Section 3.3 hereof, for the
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avoidance of doubt, nothing in this Agreement shall restrict any right any New First Lien Secured Party may have
(secured or otherwise) in any property or asset of any Grantor that does not constitute Common
Collateral.
(b) Release of Liens. If at any time any Grantor or any ABL Secured Party delivers
notice to the New First Lien Collateral Agent with respect to any specified Common Collateral that:
(A) such specified Common Collateral is sold, transferred or otherwise disposed of (a
“Disposition”) by the owner of such Common Collateral in a transaction permitted
under the ABL Credit Agreement and the New First Lien Agreement; or
(B) the ABL Secured Parties are releasing or have released their Liens on such Common
Collateral in connection with a Disposition in connection with an Exercise of Secured
Creditor Remedies with respect to such Common Collateral,
then the Liens upon such Common Collateral securing New First Lien Obligations will automatically
be released and discharged as and when, but only to the extent, such Liens on such Common
Collateral securing ABL Obligations are released and discharged (provided that in the case
of clause (B) of this Section 2.4(b), the Liens on any Common Collateral disposed of in connection
with an Exercise of Secured Creditor Remedies shall be automatically released but any proceeds
thereof not applied to repay ABL Obligations shall be subject to the respective Liens securing New
First Lien Obligations and shall be applied pursuant to Section 4.1). Upon delivery to the New
First Lien Collateral Agent of a notice from the ABL Collateral Agent stating that any such release
of Liens securing or supporting the ABL Obligations has become effective (or shall become effective
upon the New First Lien Collateral Agent’s receipt of such notice), the New First Lien Collateral
Agent shall, at the Company’s expense, promptly execute and deliver such instruments, releases,
termination statements or other documents confirming such release on customary terms, which
instruments, releases and termination statements shall be substantially identical to the comparable
instruments, releases and termination statements executed by the ABL Collateral Agent in connection
with such release. The New First Lien Collateral Agent hereby appoints the ABL Collateral Agent
and any officer or duly authorized person of the ABL Collateral Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in
the place and stead of the New First Lien Collateral Agent and in the name of the New First Lien
Collateral Agent or in the ABL Collateral Agent’s own name, from time to time, in the ABL
Collateral Agent’s sole discretion, for the purposes of carrying out the terms of this paragraph,
to take any and all appropriate action and to execute and deliver any and all documents and
instruments as may be necessary or desirable to accomplish the purposes of this paragraph,
including any financing statements, endorsements, assignments, releases or other documents or
instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
Section 2.5 No New Liens. Until the date upon which the Discharge of ABL Obligations
shall have occurred, the parties hereto agree that no New First Lien Secured Party shall acquire or
hold any Lien on any accounts receivable of any Grantor, the proceeds thereof or any deposit or
other accounts of any Grantor in which accounts receivable or proceeds thereof are held or
deposited, in each case of the type that would constitute Receivables Collateral as
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described in the definition thereof (but for the avoidance of doubt, excluding any European
Collateral (as defined in the CF Credit Agreement), whether in the form of accounts receivable or
otherwise), securing any New First Lien Obligation, if such accounts and proceeds are not also
subject to the Lien of the ABL Collateral Agent under the ABL Documents (and subject to the Lien
Priorities contemplated herein). If any New First Lien Secured Party shall (nonetheless and in
breach hereof) acquire or hold any Lien on any such accounts or proceeds securing any New First
Lien Obligation, which accounts and proceeds are not also subject to the Lien of the ABL Collateral
Agent under the ABL Documents, subject to the Lien Priority set forth herein, then the New First
Lien Collateral Agent (or the applicable New First Lien Secured Party) shall, without the need for
any further consent of any other New First Lien Secured Party and notwithstanding anything to the
contrary in any other New First Lien Document, be deemed to also hold and have held such Lien as
agent or bailee for the benefit of the ABL Collateral Agent as security for the ABL Obligations
(subject to the Lien Priority and other terms hereof) and shall use its best efforts to promptly
notify the ABL Collateral Agent in writing of the existence of such Lien.
Section 2.6 Waiver of Marshaling. Until the Discharge of the ABL Obligations, the New
First Lien Collateral Agent, on behalf of itself and the New First Lien 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 marshaling, 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.
ARTICLE 3
ACTIONS OF THE PARTIES
ACTIONS OF THE PARTIES
Section 3.1 Certain Actions Permitted. The New First Lien Collateral Agent and the
ABL Collateral Agent may make such demands or file such claims in respect of the New First Lien
Obligations or the ABL Obligations, as applicable, as are necessary to prevent the waiver or bar of
such claims under applicable statutes of limitations or other statutes, court orders, or rules of
procedure at any time. Except as provided in Section 5.2, nothing in this Agreement shall prohibit
the receipt by the New First Lien Collateral Agent or the New First Lien Secured Parties of the
required payments of interest, principal and other amounts owed in respect of the New First Lien
Obligations so long as such receipt is not the direct or indirect result of the exercise by the New
First Lien Collateral Agent or the New First Lien Secured Parties of rights or remedies as a
secured creditor (including set-off with respect to the Receivables Collateral) or enforcement in
contravention of this Agreement of any Lien held by any of them.
Section 3.2 Agent for Perfection. The New First Lien Collateral Agent appoints the
ABL Collateral Agent, and the ABL Collateral Agent expressly accepts such appointment, to act as
agent of the New First Lien Collateral Agent and the New First Lien Secured Parties under each
control agreement with respect to all ABL Controlled Accounts for the purpose of perfecting the
respective security interests granted under the New First Lien Security Documents. None of the ABL
Collateral Agent, any ABL Secured Party, the New First Lien Collateral Agent or any New First Lien
Secured Party, as applicable, shall have any obligation whatsoever to the others to assure that the
Common Collateral is genuine or owned by the Company, any Grantor
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or any other Person or to preserve rights or benefits of any Person. The duties or
responsibilities of the ABL Collateral Agent under this Section 3.2 are and shall be limited solely
to holding or maintaining control of the Common Collateral as agent for the New First Lien Secured
Parties for purposes of perfecting the respective Liens held by the New First Lien Secured Parties.
The ABL Collateral Agent is not and shall not be deemed to be a fiduciary of any kind for the New
First Lien Collateral Agent or the New First Lien Secured Parties, or any other Person. The New
First Lien Collateral Agent is not nor shall it be deemed to be a fiduciary of any kind for any
other Collateral Agent or Secured Party, or any other Person. Prior to the Discharge of ABL
Obligations, in the event that the New First Lien Collateral Agent or any New First Lien Secured
Party receives any Common Collateral or Proceeds of Common Collateral in violation of the terms of
this Agreement, then the New First Lien Collateral Agent or such New First Lien Secured Party, as
the case may be, shall promptly pay over such Proceeds or Common Collateral to the ABL Collateral
Agent in the same form as received with any necessary endorsements, for application in accordance
with the provisions of Section 4.1 of this Agreement.
Section 3.3 Inspection and Access Rights. Without limiting any rights the ABL
Collateral Agent or any other ABL Secured Party may otherwise have under applicable law or by
agreement, in the event of any liquidation of any Receivables Collateral (or any other Exercise of
Secured Creditor Remedies by the ABL Collateral Agent) and whether or not the New First Lien
Collateral Agent or any New First Lien Secured Party has commenced and is continuing to Exercise
Any Secured Creditor Remedies of any New First Lien Secured Party, the ABL Collateral Agent shall
have the right (a) during normal business hours on any business day, to access Receivables
Collateral that is stored or located in or on Non-Receivables Collateral, and (b) shall have the
right to reasonably use the Non-Receivables Collateral (including, without limitation, equipment,
computers, software, intellectual property, real property and books and records) in order to
inspect, copy or download information stored on, take actions to perfect its Lien on, or otherwise
deal with the Receivables Collateral, in each case without notice to, the involvement of or
interference by the New First Lien Collateral Agent or any New First Lien Secured Party and without
liability to any New First Lien Secured Party; provided, however, if the New First
Lien Collateral Agent takes actual possession of any Non-Receivables Collateral in contemplation of
a sale of such Non-Receivables Collateral or is otherwise exercising a remedy with respect to
Non-Receivables Collateral, the New First Lien Collateral Agent shall give the ABL Collateral Agent
reasonable opportunity (of reasonable duration and with reasonable advance notice) prior to the New
First Lien Collateral Agent’s sale of any such Non-Receivables Collateral to access Receivables
Collateral as contemplated in (a) and (b) above. For the avoidance of doubt, this Section 3.3
governs the rights of access and inspection as between the ABL Secured Parties on the one hand and
the New First Lien Secured Parties on the other (and not as between the Secured Parties and the
Grantors, which rights are set forth in and governed by the applicable Credit Documents and are not
affected by this Section 3.3).
Section 3.4 Insurance. Proceeds of Common Collateral include insurance proceeds and,
therefore, the Lien Priority shall govern the ultimate disposition of insurance proceeds to the
extent such insurance insures Receivables Collateral. Prior to the Discharge of ABL Obligations,
the ABL Collateral Agent shall have the sole and exclusive right, as against the New First Lien
Collateral Agent, to the extent permitted by the ABL Documents and subject to the rights of the
Grantors thereunder, to adjust settlement of insurance claims to the extent such insurance
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insures Receivables Collateral in the event of any covered loss, theft or destruction of
Receivables Collateral. Prior to the Discharge of ABL Obligations, all proceeds of such insurance
with respect to Receivables Collateral shall be remitted for application in accordance with Section
4.1 hereof.
Section 3.5 Exercise of Remedies—Set-off and Tracing of and Priorities in Proceeds.
The New First Lien Collateral Agent, for itself and on behalf of the New First Lien Secured
Parties, acknowledges and agrees that, to the extent the New First Lien Collateral Agent or the New
First Lien Secured Parties exercise their rights of set-off against any Grantor’s Deposit Accounts
or Securities Accounts to the extent constituting or containing Receivables Collateral or proceeds
thereof, the amount of such set-off shall be deemed to be Receivables Collateral to be held and
distributed pursuant to Section 4.1. In addition, unless and until the Discharge of ABL
Obligations occurs, the New First Lien Collateral Agent and the New First Lien Secured Parties
hereby consent to the application of cash or other proceeds of Receivables Collateral deposited
under control agreements to the repayment of ABL Obligations pursuant to the ABL Documents.
ARTICLE 4
APPLICATION OF PROCEEDS
APPLICATION OF PROCEEDS
Section 4.1 Application of Proceeds.
(a) Revolving Nature of ABL Obligations. The New First Lien Collateral Agent, for and
on behalf of itself and the New First Lien Secured Parties, expressly acknowledges and agrees that
(i) the ABL Credit Agreement includes a revolving commitment, that in the ordinary course of
business the ABL Collateral Agent and the ABL Secured Parties will apply payments and make advances
thereunder, and that no application of any Receivables Collateral or the release of any Lien by the
ABL Collateral Agent upon any portion of the Receivables Collateral in connection with a permitted
disposition by the Grantors under the ABL Credit Agreement shall constitute an Exercise of Secured
Creditor Remedies under this Agreement; (ii) subject to the limitations set forth in Section
4.10(b)(1) of the New First Lien Agreement (as in effect on the date hereof) or such additional
amounts as consented to by the holders of New First Lien Obligations (in accordance with the
provisions of the New First Lien Agreement), the amount of the ABL Obligations that may be
outstanding at any time or from time to time may be increased or reduced and subsequently
reborrowed, and that the terms of the ABL Obligations may be modified, extended or amended from
time to time, and that the aggregate amount of the ABL Obligations may be increased, replaced or
Refinanced, in each event, without notice to or consent by the New First Lien Secured Parties and
without affecting the provisions hereof; and (iii) all Receivables Collateral received by the ABL
Collateral Agent may be applied, reversed, reapplied, credited, or reborrowed, in whole or in part,
to the ABL Obligations at any time. The Lien Priority shall not be altered or otherwise affected
by any such amendment, modification, supplement, extension, repayment, reborrowing, increase,
replacement, renewal, restatement or Refinancing of either the ABL Obligations or any New First
Lien Obligations, or any portion thereof.
(b) Application of Proceeds of Common Collateral. The ABL Collateral Agent and the
New First Lien Collateral Agent hereby agree that all Common Collateral and all
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Proceeds thereof, received by any of them in connection with any Exercise of Secured Creditor
Remedies with respect to the Common Collateral shall be applied, first, to the payment of costs and
expenses of the ABL Collateral Agent in connection with such Exercise of Secured Creditor Remedies,
and second, to the payment of the ABL Obligations in accordance with the ABL Documents until the
Discharge of ABL Obligations shall have occurred.
(c) Payments Over. Any Common Collateral or Receivables Collateral or proceeds
thereof received by the New First Lien Collateral Agent or any New First Lien Secured Party in
connection with the exercise of any right or remedy (including set-off or credit bid) or in any
Insolvency Proceeding relating to the Common Collateral not expressly permitted by this Agreement
or prior to the Discharge of ABL Obligations shall be segregated and held in trust for the benefit
of and forthwith paid over to the ABL Collateral Agent (and/or its designees) for the benefit of
the ABL Secured Parties in the same form as received, with any necessary endorsements or as a court
of competent jurisdiction may otherwise direct. The ABL Collateral Agent is hereby authorized to
make any such endorsements as agent for the New First Lien Collateral Agent or the New First Lien
Secured Parties. This authorization is coupled with an interest and is irrevocable.
(d) Limited Obligation or Liability. In exercising remedies, whether as a secured
creditor or otherwise, the ABL Collateral Agent shall have no obligation or liability to the New
First Lien Collateral Agent or any New First Lien Secured Party regarding the adequacy of any
proceeds realized on any collateral or for any action or omission, save and except solely for an
action or omission that breaches the express obligations undertaken by each Party under the terms
of this Agreement. Notwithstanding anything to the contrary herein contained, none of the Parties
hereto waives any claim that it may have against a Secured Party on the grounds that and sale,
transfer or other disposition by the Secured Party was not commercially reasonable in every respect
as required by the UCC.
(e) Turnover of Collateral After Discharge. Upon the Discharge of ABL Obligations,
the ABL Collateral Agent shall (a) notify the New First Lien Collateral Agent in writing of the
occurrence of such Discharge of ABL Obligations and (b) subject to the First Lien Intercreditor
Agreement, at the Company’s expense, deliver to the New First Lien Collateral Agent or execute such
documents as the New First Lien Collateral Agent may reasonably request (including assignment of
control agreements with respect to ABL Controlled Accounts) in order to effect a transfer of
control to the New First Lien Collateral Agent over any and all ABL Controlled Accounts in the same
form as received with any necessary endorsements, or as a court of competent jurisdiction may
otherwise direct; provided, however, that the ABL Collateral Agent shall not be
required hereunder to deliver such instruments or documents relating to the control agreements with
respect to ABL Collateral Agreements if, as of the time of such Discharge of ABL Obligations, no
Event of Default (as defined in the New First Lien Agreement) has occurred or is then continuing.
The ABL Collateral Agent shall presume that an Event of Default has occurred and is continuing
under the New First Lien Agreement unless at the time of such Discharge of ABL Obligations the
Company shall have delivered to each of the Collateral Agents an officer’s certificate executed by
an Authorized Officer (as defined in the ABL Credit Agreement) certifying that no such Event of
Default has occurred and is then continuing (and the New First Lien Collateral Agent shall have
confirmed in writing to the ABL Collateral Agent
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that it has no actual knowledge of the continuance of an Event of Default under the New First
Lien Agreement), upon which the ABL Collateral Agent may conclusively rely (it being understood
that neither such officer’s certificate nor Collateral Agent’s confirmation will effect whether or
not such Event of Default has in fact occurred or is then in fact continuing).
Section 4.2 Specific Performance. Each of the ABL Collateral Agent and the New First
Lien Collateral Agent is hereby authorized to demand specific performance of this Agreement,
whether or not the Company or any Grantor shall have complied with any of the provisions of any of
the Credit Documents, at any time when the other Party shall have failed to comply with any of the
provisions of this Agreement applicable to it. Each of the ABL Collateral Agent, for and on behalf
of itself and the ABL Secured Parties, and the New First Lien Collateral Agent, for and on behalf
of itself and the New First Lien Secured Parties, hereby irrevocably waives any defense based on
the adequacy of a remedy at law that might be asserted as a bar to such remedy of specific
performance.
ARTICLE 5
INTERCREDITOR ACKNOWLEDGMENTS AND WAIVERS
INTERCREDITOR ACKNOWLEDGMENTS AND WAIVERS
Section 5.1 Notice of Acceptance and Other Waivers.
(a) All ABL Obligations at any time made or incurred by the Company or any Grantor shall be
deemed to have been made or incurred in reliance upon this Agreement, and the New First Lien
Collateral Agent, on behalf of itself and the New First Lien Secured Parties, hereby waives notice
of acceptance, or proof of reliance by the ABL Collateral Agent or any ABL Secured Party of this
Agreement, and notice of the existence, increase, renewal, extension, accrual, creation, or
non-payment of all or any part of the ABL Obligations. All New First Lien Obligations at any time
made or incurred by the Company or any Grantor shall be deemed to have been made or incurred in
reliance upon this Agreement, and the New First Lien Collateral Agent, on behalf of itself and the
New First Lien Secured Parties, hereby waives notice of acceptance, or proof of reliance, by the
New First Lien Collateral Agent or the New First Lien Secured Parties of this Agreement, and notice
of the existence, increase, renewal, extension, accrual, creation, or non-payment of all or any
part of the New First Lien Obligations.
(b) None of the ABL Collateral Agent, any ABL Secured Party or any of their respective
Affiliates, directors, officers, employees, or agents shall be liable for failure to demand,
collect or realize upon any of the Common Collateral or any Proceeds thereof, or for any delay in
doing so, or shall be under any obligation to sell or otherwise dispose of any Common Collateral or
Proceeds thereof or to take any other action whatsoever with regard to the Common Collateral or any
part or Proceeds thereof, except as specifically provided in this Agreement. If the ABL Collateral
Agent or any ABL Secured Party honors (or fails to honor) a request by any Borrower under the ABL
Credit Agreement for an extension of credit pursuant to any ABL Credit Agreement or any of the
other ABL Documents, whether the ABL Collateral Agent or any ABL Secured Party has knowledge that
the honoring of (or failure to honor) any such request would constitute a default under the terms
of any New First Lien Document (but not a default under this Agreement) or an act, condition, or
event that, with the giving of notice or the passage of time, or both, would constitute such a
default, or if the ABL Collateral Agent or any ABL Secured Party otherwise should exercise any of
its contractual rights or remedies under any ABL
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Documents (subject to the express terms and conditions hereof), neither the ABL Collateral
Agent nor any ABL Secured Party shall have any liability whatsoever to the New First Lien
Collateral Agent or any New First Lien Secured Party as a result of such action, omission, or
exercise (so long as any such exercise does not breach the express terms and provisions of this
Agreement). The ABL Collateral Agent and the ABL Secured Parties shall be entitled to manage and
supervise their loans and extensions of credit under any ABL Credit Agreement and any of the other
ABL Documents as they may, in their sole discretion, deem appropriate, and may manage their loans
and extensions of credit without regard to any rights or interests that the New First Lien
Collateral Agent or any New First Lien Secured Party have in the Common Collateral, except as
otherwise expressly set forth in this Agreement. The New First Lien Collateral Agent, on behalf of
itself and the New First Lien Secured Parties, agrees that neither the ABL Collateral Agent nor any
ABL Secured Party shall incur any liability as a result of a sale, lease, license, application, or
other disposition of all or any portion of the Common Collateral or Proceeds thereof, pursuant to
the ABL Documents, so long as such disposition is conducted in accordance with mandatory provisions
of applicable law and does not breach the provisions of this Agreement. The New First Lien
Collateral Agent and the New First Lien Secured Parties shall be entitled to manage and supervise
their loans and extensions of credit under any New First Lien Document as they may, in their sole
discretion, deem appropriate, and may manage their loans and extensions of credit without regard to
any rights or interests of the ABL Collateral Agent or any ABL Secured Parties, except as otherwise
expressly set forth in this Agreement.
Section 5.2 Modifications to ABL Documents and New First Lien Documents.
(a) In the event that the ABL Collateral Agent or the ABL Secured Parties enter into any
amendment, waiver or consent in respect of or replace any of the ABL Security Documents for the
purpose of adding to, or deleting from, or waiving or consenting to any departures from any
provisions of, any ABL Security Document or changing in any manner the rights of the ABL Collateral
Agent, the ABL Secured Parties, the Company or any other Grantor thereunder (including the release
of any Liens in Common Collateral in accordance with Section 2.4(b)), then such amendment, waiver
or consent, to the extent related to Common Collateral, shall apply automatically to any comparable
provision (but only to the extent as such provision relates to Common Collateral) of each
Comparable New First Lien Security Document without the consent of the New First Lien Collateral
Agent or any New First Lien Secured Party and without any action by the New First Lien Collateral
Agent, any New First Lien Secured Party, the Company or any other Grantor; provided,
however, that such amendment, waiver or consent does not materially adversely affect the
rights of the New First Lien Secured Parties or the interests of the New First Lien Secured Parties
in the Common Collateral in a manner materially different from that affecting the rights of the ABL
Secured Parties thereunder or therein. The ABL Collateral Agent shall give written notice of such
amendment, waiver or consent (along with a copy thereof) to the New First Lien Collateral Agent;
provided, however, that the failure to give such notice shall not affect the
effectiveness of such amendment with respect to the provisions of any New First Lien Security
Document as set forth in this Section 5.2(a). For the avoidance of doubt, no such amendment,
modification or waiver shall apply to or otherwise affect (a) any Non-Receivables Collateral or (b)
any document, agreement or instrument which neither grants nor purports to xxxxx x Xxxx on, nor
governs nor purports to govern any rights or remedies in respect of, Common Collateral.
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(b) So long as the Discharge of ABL Obligations has not occurred, without the prior written
consent of the ABL Collateral Agent, the New First Lien Collateral Agent shall not consent to
amend, supplement or otherwise modify any, or enter into any new, New First Lien Security Document
relating to Common Collateral to the extent such amendment, supplement or modification, or the
terms of such New First Lien Security Document, would be prohibited by or inconsistent with any of
the terms of this Agreement. The New First Lien Collateral Agent agrees that each New First Lien
Security Document relating to Common Collateral shall include the following language (or language
to similar effect approved by the ABL Collateral Agent):
“Notwithstanding anything herein to the contrary, the liens and security interests
granted to [the New First Lien Collateral Agent] pursuant to this Agreement and the
exercise of any right or remedy by [the New First Lien Collateral Agent] hereunder
are subject to the limitations and provisions of the Additional Receivables
Intercreditor Agreement, dated as of [ ], 2011 (as amended, restated,
supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”), among Bank of America, N.A., as ABL Collateral Agent, Bank of
America, N.A., as New First Lien Collateral Agent, and certain other persons party
or that may become party thereto from time to time, and consented to by HCA INC. and
the Grantors identified therein. 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 and control.”
The ABL Collateral Agent hereby approves the language set forth in Section 8.15 of the
Amended and Restated Security Agreement, dated as of March 2, 2009, among the Company, the
grantors party thereto and Bank of America as collateral agent, for purposes of this Section
5.2(b). For purposes of this 5.2(b), the reference to the Additional Receivables Intercreditor
Agreement, dated as of April 22, 2009, set forth on the cover page of the First Lien Intercreditor
Agreement shall be deemed to be a reference to this Agreement.
(c) No consent furnished by the ABL Collateral Agent or the New First Lien Collateral Agent
pursuant to Section 5.2(a) or 5.2(b) hereof shall be deemed to constitute the modification or
waiver of any provisions of the ABL Documents or any of the New First Lien Documents, each of which
remain in full force and effect as written.
(d) The ABL Obligations and the several New First Lien Obligations may be Refinanced, in whole
or in part, in each case, without notice to, or the consent (except to the extent a consent is
required to permit the refinancing transaction under any ABL Document or any New First Lien
Document) of, the ABL Collateral Agent, the ABL Secured Parties, the New First Lien Collateral
Agent or the New First Lien Secured Parties, as the case may be; provided such Refinancing
does not affect the relative Lien Priorities provided for herein or directly alter the other
provisions hereof to the extent relating to the relative rights, obligations and priorities of the
ABL Secured Parties on the one hand and the New First Lien Secured Parties on the other.
Section 5.3 Reinstatement and Continuation of Agreement. If the ABL Collateral Agent
or any ABL Secured Party is required in any Insolvency Proceeding or otherwise to turn over or
otherwise pay to the estate of the Company, any Grantor, or any other Person any
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payment made in satisfaction of all or any portion of the ABL Obligations (an “ABL
Recovery”), then the ABL Obligations shall be reinstated to the extent of such ABL Recovery.
If this Agreement shall have been terminated prior to such ABL Recovery, this Agreement shall be
reinstated in full force and effect in the event of such ABL Recovery, and such prior termination
shall not diminish, release, discharge, impair, or otherwise affect the obligations of the Parties
from such date of reinstatement. The ABL Collateral Agent shall use commercially reasonable
efforts to give written notice to the New First Lien Collateral Agent of the occurrence of any such
ABL Recovery (provided that the failure to give such notice shall not affect the ABL
Collateral Agent’s rights hereunder, except it being understood that the New First Lien Collateral
Agent shall not be charged with knowledge of such ABL Recovery or required to take any actions
based on such ABL Recovery until it has received such written notice of the occurrence of such ABL
Recovery).
All rights, interests, agreements, and obligations of the ABL Collateral Agent, the New First
Lien Collateral Agent, the ABL Secured Parties and the New First Lien Secured Parties under this
Agreement shall remain in full force and effect and shall continue irrespective of the commencement
of, or any discharge, confirmation, conversion, or dismissal of, any Insolvency Proceeding by or
against the Company or any Grantor or any other circumstance which otherwise might constitute a
defense (other than a defense that such obligations have in fact been repaid) available to, or a
discharge of the Company or any Grantor in respect of the ABL Obligations or the New First Lien
Obligations. No priority or right of the ABL Collateral Agent or any ABL Secured Party shall at
any time be prejudiced or impaired in any way by any act or failure to act on the part of the
Company or any Grantor or by the noncompliance by any Person with the terms, provisions, or
covenants of any of the ABL Documents, regardless of any knowledge thereof which the ABL Collateral
Agent or any ABL Secured Party may have.
ARTICLE 6
INSOLVENCY PROCEEDINGS
INSOLVENCY PROCEEDINGS
Section 6.1 DIP Financing.
(a) If the Company or any Grantor shall be subject to any Insolvency Proceeding at any time
prior to the Discharge of ABL Obligations, and the ABL Collateral Agent or the ABL Secured Parties
shall seek to provide the Company or any Grantor with, or consent to a third party providing, any
financing under Section 364 of the Bankruptcy Code or consent to any order for the use of cash
collateral constituting Receivables Collateral under Section 363 of the Bankruptcy Code (each, a
“DIP Financing”), with such DIP Financing to be secured by all or any portion of the
Receivables Collateral (including assets that, but for the application of Section 552 of the
Bankruptcy Code would be Receivables Collateral) but not any other asset or any Non-Receivables
Collateral, then the New First Lien Collateral Agent, on behalf of itself and the New First Lien
Secured Parties, agrees that it will raise no objection and will not support any objection to such
DIP Financing or use of cash collateral or to the Liens securing the same on the grounds of a
failure to provide “adequate protection” for the Liens of the New First Lien Collateral Agent
securing the New First Lien Obligations or on any other grounds (and will not request any adequate
protection solely as a result of such DIP Financing or use of cash collateral that is Receivables
Collateral, except as permitted by Section 6.3(b)), so long as (i) the New First
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Lien Collateral Agent retains its Lien on the Common Collateral to secure the New First Lien
Obligations (in each case, including Proceeds thereof arising after the commencement of the case
under the Bankruptcy Code); (ii) the terms of the DIP Financing do not compel the applicable
Grantor to seek confirmation of a specific plan of reorganization for which all or substantially
all of the material terms of such plan are set forth in the DIP Financing documentation or related
document; and (iii) all Liens on Common Collateral securing any such DIP Financing shall be senior
to or on a parity with the Liens of the ABL Collateral Agent and the ABL Secured Parties securing
the ABL Obligations on Common Collateral; provided, however, that nothing contained
in this Agreement shall prohibit or restrict the New First Lien Collateral Agent or any New First
Lien Secured Party from raising any objection or supporting any objection to such DIP Financing or
use of cash collateral or to the Liens securing the same on the grounds of a failure to provide
“adequate protection” for the Liens of the New First Lien Collateral Agent on Non-Receivables
Collateral securing the New First Lien Obligations.
(b) All Liens granted to the ABL Collateral Agent or the New First Lien Collateral Agent in
any Insolvency Proceeding, whether as adequate protection or otherwise, are intended by the Parties
to be and shall be deemed to be subject to the Lien Priority and the other terms and conditions of
this Agreement.
Section 6.2 Relief from Stay. The New First Lien Collateral Agent, on behalf of
itself and the New First Lien Secured Parties, agrees not to seek relief from the automatic stay or
any other stay in any Insolvency Proceeding in respect of any portion of the Common Collateral
without the ABL Collateral Agent’s express written consent.
Section 6.3 No Contest; Adequate Protection.
(a) The New First Lien Collateral Agent, on behalf of itself and the New First Lien Secured
Parties, agrees that it shall not contest (or support any other Person contesting) (x) any request
by the ABL Collateral Agent or any ABL Secured Party for adequate protection of its interest in the
Common Collateral, (y) any objection by the ABL Collateral Agent or any ABL Secured Party to any
motion, relief, action, or proceeding based on a claim by the ABL Collateral Agent or any ABL
Secured Party that its interests in the Common Collateral are not adequately protected (or any
other similar request under any law applicable to an Insolvency Proceeding), so long as any Liens
granted to the ABL Collateral Agent as adequate protection of its interests are subject to this
Agreement or (z) any lawful exercise by the ABL Collateral Agent or any ABL Secured Party of the
right to credit bid ABL Obligations at any sale of Common Collateral or Receivables Collateral;
provided, however, that nothing contained in this Agreement shall prohibit or
restrict the New First Lien Collateral Agent or any New First Lien Secured Party from contesting or
challenging (or support any other Person contesting or challenging) any request by the ABL
Collateral Agent or any ABL Secured Party for “adequate protection” (or the grant of any such
“adequate protection”) to the extent such “adequate protection” is in the form of a Lien on any
Non-Receivables Collateral.
(b) Notwithstanding the foregoing provisions in this Section 6.3, in any Insolvency
Proceeding, if the ABL Secured Parties (or any subset thereof) are granted adequate protection with
respect to Common Collateral in the form of additional collateral (even if such collateral is not
of a type which would otherwise have constituted Common Collateral (unless such
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additional collateral is an asset of an ABL Entity)), then the ABL Collateral Agent, on behalf
of itself and the ABL Secured Parties, agrees that the New First Lien Collateral Agent, on behalf
of itself and/or any of the New First Lien Secured Parties, may, subject to the First Lien
Intercreditor Agreement, seek or request (and the ABL Secured Parties will not oppose such request)
adequate protection with respect to its interests in such Common Collateral in the form of a Lien
on the same additional collateral, which Lien will be subordinated to the Liens securing the ABL
Obligations on the same basis as the other Liens of the New First Lien Collateral Agent on the
Common Collateral (it being understood that to the extent that any such additional collateral
constituted Non-Receivables Collateral at the time it was granted to the ABL Secured Parties, the
Lien thereon in favor of the ABL Secured Parties shall be subordinate in all respects to the Liens
thereon in favor of the New First Lien Secured Parties).
Section 6.4 Asset Sales. The New First Lien Collateral Agent agrees, on behalf of
itself and the New First Lien Secured Parties, that it will not oppose any sale consented to by the
ABL Collateral Agent of any Common Collateral pursuant to Section 363(f) of the Bankruptcy Code (or
any similar provision under the law applicable to any Insolvency Proceeding) so long as the
proceeds of such sale are applied in accordance with this Agreement.
Section 6.5 Separate Grants of Security and Separate Classification. The New First
Lien Collateral Agent, each New First Lien Secured Party, each ABL Secured Party and the ABL
Collateral Agent each acknowledge and agree that (i) the grants of Liens pursuant to the ABL
Security Documents on the one hand and the New First Lien Security Documents on the other hand
constitute separate and distinct grants of Liens and the New First Lien Secured Parties’ claims
against the Company and/or any Grantor in respect of Common Collateral constitute junior claims
separate and apart (and of a different class) from the senior claims of the ABL Secured Parties
against the Company and the Grantors in respect of Common Collateral and (ii) because of, among
other things, their differing rights in the Common Collateral, the New First Lien Obligations are
fundamentally different from the ABL Obligations and must be separately classified in any plan of
reorganization proposed or adopted in an Insolvency Proceeding. To further effectuate the intent
of the parties as provided in the immediately preceding sentence, if it is held that the claims of
the ABL Secured Parties and any New First Lien Secured Parties in respect of the Common Collateral
constitute only one secured claim (rather than separate classes of senior and junior secured
claims), then the ABL Secured Parties and the New First Lien Secured Parties hereby acknowledge and
agree that all distributions shall be made as if there were separate classes of ABL Obligation
claims and New First Lien Obligation claims against the Grantors (with the effect being that, to
the extent that the aggregate value of the Common Collateral is sufficient (for this purpose
ignoring all claims held by the New First Lien Secured Parties), the ABL Secured Parties shall be
entitled to receive, in addition to amounts distributed to them in respect of principal,
pre-petition interest and other claims, all amounts owing in respect of post-petition interest at
the relevant contract rate, before any distribution is made in respect of the claims held by the
New First Lien Secured Parties from such Common Collateral), with the New First Lien Secured
Parties hereby acknowledging and agreeing to turn over to the ABL Secured Parties amounts otherwise
received or receivable by them to the extent necessary to effectuate the intent of this sentence,
even if such turnover has the effect of reducing the aggregate recoveries.
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Section 6.6 Enforceability. The provisions of this Agreement are intended to be and shall be
enforceable under Section 510(a) of the Bankruptcy Code.
Section 6.7 ABL Obligations Unconditional. All rights, interests, agreements and
obligations of the ABL Collateral Agent and the ABL Secured Parties, and the New First Lien
Collateral Agent and the New First Lien Secured Parties, respectively, hereunder shall remain in
full force and effect irrespective of:
(a) any lack of validity or enforceability of any ABL Documents or any New First Lien
Documents;
(b) any change in the time, manner or place of payment of, or in any other terms of,
all or any of the ABL Obligations or New First Lien Obligations, 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 ABL Credit Agreement or any other ABL Document or
of the terms of the New First Lien Agreement or any other New First Lien Document;
(c) any exchange of any security interest in any Receivables 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 ABL Obligations or New First Lien Obligations
or any guarantee thereof;
(d) the commencement of any Insolvency Proceeding in respect of the Company or any
other Grantor; or
(e) any other circumstances that otherwise might constitute a defense (other than a
defense that such obligations have in fact been repaid) available to, or a discharge of, the
Company or any other Grantor in respect of ABL Obligations or New First Lien Obligations in
respect of this Agreement.
ARTICLE 7
MISCELLANEOUS
MISCELLANEOUS
Section 7.1 Rights of Subrogation. The New First Lien Collateral Agent, for and on
behalf of itself and the New First Lien Secured Parties, agrees that no payment to the ABL
Collateral Agent or any ABL Secured Party pursuant to the provisions of this Agreement shall
entitle the New First Lien Collateral Agent or such New First Lien Secured Party to exercise any
rights of subrogation in respect thereof until the Discharge of ABL Obligations shall have
occurred. Following the Discharge of ABL Obligations, the ABL Collateral Agent agrees to execute
such documents, agreements, and instruments as the New First Lien Collateral Agent or any New First
Lien Secured Party may reasonably request, at the Company’s expense, to evidence the transfer by
subrogation to any such Person of an interest in the ABL Obligations resulting from payments to the
ABL Collateral Agent by such Person.
Section 7.2 Further Assurances. The Parties will, at their own expense and at any
time and from time to time, promptly execute and deliver all further instruments and documents,
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and take all further action, that may be necessary or desirable, or that any Party may
reasonably request, in order to protect any right or interest granted or purported to be granted
hereby or to enable the ABL Collateral Agent or the New First Lien Collateral Agent to exercise and
enforce its rights and remedies hereunder; provided, however, that no Party shall
be required to pay over any payment or distribution, execute any instruments or documents, or take
any other action referred to in this Section 7.2, to the extent that such action would contravene
any law, order or other legal requirement or any of the terms or provisions of this Agreement, and
in the event of a controversy or dispute, such Party may interplead any payment or distribution in
any court of competent jurisdiction, without further responsibility in respect of such payment or
distribution under this Section 7.2.
Section 7.3 Representations. The New First Lien Collateral Agent represents and warrants for
itself to the ABL Collateral Agent that it has the requisite power and authority under the New
First Lien Documents to enter into, execute, deliver, and carry out the terms of this Agreement on
behalf of itself and the New First Lien Secured Parties and that this Agreement shall be binding
obligations of the New First Lien Collateral Agent and the New First Lien Secured Parties,
enforceable against the New First Lien Collateral Agent and the New First Lien Secured Parties in
accordance with its terms. The ABL Collateral Agent represents and warrants to the New First Lien
Collateral Agent that it has the requisite power and authority under the ABL Documents to enter
into, execute, deliver, and carry out the terms of this Agreement on behalf of itself and the ABL
Secured Parties and that this Agreement shall be binding obligations of the ABL Collateral Agent
and the ABL Secured Parties, enforceable against the ABL Collateral Agent and the ABL Secured
Parties in accordance with its terms.
Section 7.4 Amendments. No amendment or waiver of any provision of this Agreement nor consent
to any departure by any Party hereto shall be effective unless it is in a written agreement
executed by the New First Lien Collateral Agent and the ABL Collateral Agent, and consented to in
writing by the Company, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. Notwithstanding anything in this Section
7.4 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 the ABL Collateral Agent, any ABL Secured
Party, the New First Lien Collateral Agent or any New First Lien Secured Party to (i) provide for a
replacement ABL Collateral Agent in accordance with the ABL Documents (including for the avoidance
of doubt to provide for a replacement ABL Collateral Agent assuming such role in connection with
any Refinancing of the ABL Credit Agreement not prohibited by the New First Lien Agreement),
provide for a replacement New First Lien Collateral Agent in accordance with the New First Lien
Documents (including for the avoidance of doubt to provide for a replacement New First Lien
Collateral Agent assuming such role in connection with any Refinancing of the New First Lien
Documents permitted hereunder) and/or secure additional extensions of credit or add other parties
holding ABL Obligations or New First Lien Obligations to the extent such Indebtedness does not
expressly violate the ABL Credit Agreement or the New First Lien Agreement and (ii) in the case of
such additional New First Lien Obligations, (a) establish that the Lien on the Common Collateral
securing such New First Lien Obligations shall be junior and subordinate in all respects to all
Liens on the Common Collateral securing any ABL Obligations (at least to the same extent as (taken
together as a whole) the Liens on Common Collateral in favor of the New First Lien Obligations are
junior and
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subordinate to the Liens on Common Collateral in favor of the ABL Obligations pursuant to this
Agreement immediately prior to the incurrence of such additional New First Lien Obligations) and
(b) provide to the holders of such New First Lien Obligations (or any agent or trustee thereof) the
comparable rights and benefits (including any improved rights and benefits that have been consented
to by the ABL Collateral Agent) as are provided to the New First Lien Secured Parties under this
Agreement.
Section 7.5 Addresses for Notices. All notices to the ABL Secured Parties and the New
First Lien Secured Parties permitted or required under this Agreement may be sent to the applicable
Collateral Agent for such Secured Party, respectively, as provided in the applicable Credit
Document. 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).
Section 7.6 No Waiver; Remedies. No failure on the part of any Party to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 7.7 Continuing Agreement; Transfer of Secured Obligations. This Agreement is
a continuing agreement and shall (a) subject to Section 5.3, remain in full force and effect until
the Discharge of ABL Obligations shall have occurred, (b) be binding upon the Parties and their
successors and assigns, and (c) inure to the benefit of and be enforceable by the Parties and their
respective successors, transferees and assigns. Nothing herein is intended, or shall be construed
to give, any other Person any right, remedy or claim under, to or in respect of this Agreement or
any Common Collateral. All references to any Grantor shall include any Grantor as
debtor-in-possession and any receiver or trustee for such Grantor in any Insolvency Proceeding.
Without limiting the generality of the foregoing clause (c), the ABL Collateral Agent, any ABL
Secured Party, the New First Lien Collateral Agent and any New First Lien Secured Party may assign
or otherwise transfer all or any portion of the ABL Obligations or the New First Lien Obligations,
as applicable, to any other Person (other than the Company, any Grantor or any Affiliate of the
Company or any Grantor and any Subsidiary of the Company or any Grantor), and such other Person
shall thereupon become vested with all the rights and obligations in respect thereof granted to the
ABL Collateral Agent, the New First Lien Collateral Agent, any ABL Secured Party or any New First
Lien Secured Party, as the case may be, herein or otherwise. The ABL Secured Parties and the New
First Lien Secured Parties may continue, at any time and without notice to the other parties
hereto, to extend credit and other financial accommodations, lend monies and provide Indebtedness
to, or for the benefit of, any Grantor on the faith hereof.
Section 7.8 Governing Law; Entire Agreement. The validity, performance, and
enforcement of this Agreement shall be governed by, and construed in accordance with, the laws of
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the State of New York. This Agreement constitutes the entire agreement and understanding
among the Parties with respect to the subject matter hereof and supersedes any prior agreements,
written or oral, with respect thereto.
Section 7.9 Counterparts. This Agreement may be executed in any number of counterparts,
including by means of facsimile or “pdf” file thereof, and it is not necessary that the signatures
of all Parties be contained on any one counterpart hereof, each counterpart will be deemed to be an
original, and all together shall constitute one and the same document.
Section 7.10 No Third Party Beneficiaries. This Agreement is solely for the benefit
of the ABL Collateral Agent, the ABL Secured Parties, the New First Lien Collateral Agent and the
New First Lien Secured Parties. No other Person (including the Company, any Grantor or any
Affiliate or Subsidiary of the Company or any Grantor) shall be deemed to be a third party
beneficiary of this Agreement.
Section 7.11 Headings. The headings of the articles and sections of this Agreement are
inserted for purposes of convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof.
Section 7.12 Severability. If any of the provisions in this Agreement shall, for any reason,
be held invalid, illegal or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Agreement and shall not invalidate
the Lien Priority or the application of Proceeds and other priorities set forth in this Agreement.
Section 7.13 Attorneys’ Fees. The Parties agree that if any dispute, arbitration,
litigation, or other proceeding is brought with respect to the enforcement of this Agreement or any
provision hereof, the prevailing party in such dispute, arbitration, litigation, or other
proceeding shall be entitled to recover its reasonable attorneys’ fees and all other costs and
expenses incurred in the enforcement of this Agreement, irrespective of whether suit is brought.
Section 7.14 VENUE; JURY TRIAL WAIVER.
(a) The parties hereto consent to the jurisdiction of any state or federal court located in
New York, New York, and consent that all service of process may be made by registered mail directed
to such party as provided in Section 7.5 for such party. Service so made shall be deemed to be
completed 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.
(b) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 7.5. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY
TO
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THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Section 7.15 Intercreditor Agreement. This Agreement is the Additional Receivables
Intercreditor Agreement referred to in the New First Lien Documents. Nothing in this Agreement
shall be deemed to subordinate the obligations due to (i) any ABL Secured Party to the obligations
due to any New First Lien Secured Party or (ii) any New First Lien Secured Party to the obligations
due to any ABL Secured Party (in each case, whether before or after the occurrence of an Insolvency
Proceeding), it being the intent of the Parties that this Agreement shall effectuate a
subordination of Liens but not a subordination of Indebtedness.
Notwithstanding anything to the contrary contained in this Agreement, each party hereto agrees
that the New First Lien Secured Parties may enter into intercreditor agreements (or similar
arrangements (including without limitation the First Lien Intercreditor Agreement and the
Additional General Intercreditor Agreement)) governing the rights, benefits and privileges as among
the New First Lien Secured Parties and holders of certain other indebtedness of the Company in
respect of the Common Collateral, this Agreement and the other New First Lien Documents, including
as to application of proceeds of the Common Collateral, voting rights, control of the Common
Collateral and waivers with respect to the Common Collateral, in each case so long as the terms
thereof do not violate or conflict with the provisions of this Agreement or the New First Lien
Documents. In any event, if a respective intercreditor agreement (or similar arrangement) exists,
the provisions thereof shall not be (or be construed to be) an amendment, modification or other
change to this Agreement and the provisions of this Agreement and the other ABL Security Documents
and New First Lien Security Documents shall remain in full force and effect in accordance with the
terms hereof and thereof (as such provisions may be amended, modified or otherwise supplemented
from time to time in accordance with the terms hereof and thereof, including to give effect to any
intercreditor agreement (or similar arrangement)).
Section 7.16 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 Proceeding.
Section 7.17 Collateral Agents. It is understood and agreed that (a) Bank of America
is entering into this Agreement in its capacity as collateral agent under the ABL Credit Agreement,
and the provisions of Section 13 of the ABL Credit Agreement applicable to the administrative agent
and collateral agent thereunder shall also apply to the ABL Collateral Agent hereunder and (b) Bank
of America is entering into this Agreement in its capacity as collateral agent under the New First
Lien Agreement, and the provisions of Section 11.02 of the New First Lien Agreement applicable to
the collateral agent thereunder shall also apply to the New First Lien Collateral Agent hereunder.
Section 7.18 No Warranties or Liability. Each of the ABL Collateral Agent and the New
First Lien Collateral Agent acknowledges and agrees that neither of them has made any
representation or warranty with respect to the execution, validity, legality, completeness,
collectability or enforceability of any other ABL Document or New First Lien Document, as the case
may be.
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Section 7.19 Conflicts. In the event of any conflict between the provisions of this Agreement
and the provisions of any Credit Document, the provisions of this Agreement shall govern.
Section 7.20 Information Concerning Financial Condition of the Credit Parties. Each
of the New First Lien Collateral Agent and the ABL Collateral Agent hereby assumes responsibility
for keeping itself informed of the financial condition of the Grantors and all other circumstances
bearing upon the risk of nonpayment of the ABL Obligations or the New First Lien Obligations. The
ABL Collateral Agent and the New First Lien Collateral Agent each hereby agrees that no party shall
have any duty to advise any other party of information known to it regarding such condition or any
such circumstances. In the event either the ABL Collateral Agent or the New First Lien Collateral
Agent, in its sole discretion, undertakes at any time or from time to time to provide any
information to any other party to this Agreement, (a) it shall be under no obligation (i) to
provide any such information to any other party or any other party on any subsequent occasion, (ii)
to undertake any investigation not a part of its regular business routine, or (iii) to disclose any
other information, or (b) it makes no representation as to the accuracy or completeness of any such
information and shall not be liable for any information contained therein, and (c) the Party
receiving such information hereby to hold the other Party harmless from any action the receiving
Party may take or conclusion the receiving Party may reach or draw from any such information, as
well as from and against any and all losses, claims, damages, liabilities, and expenses to which
such receiving Party may become subject arising out of or in connection with the use of such
information.
Section 7.21 Acknowledgement. The New First Lien Collateral Agent hereby acknowledges
for itself and on behalf of each New First Lien Secured Party that there are assets of the Company
and its Subsidiaries (including Grantors) which are subject to Liens in favor of the ABL Collateral
Agent or other creditors but which do not constitute Common Collateral and nothing in this
Agreement shall grant or imply the grant of any Lien or other security interest in such assets in
favor of any New First Lien Secured Party to secure any New First Lien Obligations. The ABL
Collateral Agent hereby acknowledges for itself and on behalf of each ABL Secured Party that there
are assets of the Company and its Subsidiaries (including Grantors) which are subject to Liens in
favor of the New First Lien Collateral Agent or other creditors but which do not constitute Common
Collateral and nothing in this Agreement shall grant or imply the grant of any Lien or other
security interest in such assets in favor of the ABL Collateral Agent to secure any ABL Obligations
and nothing in this Agreement shall affect or limit the rights of the New First Lien Collateral
Agent or any New First Lien Secured Party in any Non-Receivables Collateral or any other assets of
the Company or any of its Subsidiaries (other than Receivables Collateral) securing any New First
Lien Obligations. The New First Lien Collateral Agent acknowledges and agrees that the relative
priorities, as among the New First Lien Secured Parties, the holders of Obligations under the CF
Credit Agreement and any Additional First Lien Secured Parties (as defined in the First Lien
Intercreditor Agreement), of the Liens granted on Common Collateral are governed by the First Lien
Intercreditor Agreement.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| BANK OF AMERICA, N.A., as ABL Collateral Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
| BANK OF AMERICA, N.A., as New First Lien Collateral Agent |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Vice President | |||
S-1
CONSENT OF COMPANY AND GRANTORS
Dated: August 1, 2011
Reference is made to the Additional Receivables Intercreditor Agreement dated as of the date
hereof between Bank of America, N.A., as ABL Collateral Agent, and Bank of America, N.A., as New
First Lien Collateral Agent, as the same may be amended, restated, supplemented, waived, or
otherwise modified from time to time (the “Intercreditor Agreement”). Capitalized terms
used but not defined herein shall have the meanings assigned to such terms in the Intercreditor
Agreement.
Each of the undersigned Grantors has read the foregoing Intercreditor Agreement and consents
thereto. Each of the undersigned Grantors agrees not to take any action that would be contrary to
the express provisions of the foregoing Intercreditor Agreement applicable to it, agrees to abide
by the requirements expressly applicable to it under the foregoing Intercreditor Agreement and
agrees that, except as otherwise provided therein, no ABL Secured Party or New First Lien Secured
Party shall have any liability to any Grantor for acting in accordance with the provisions of the
foregoing Intercreditor Agreement. Each Grantor understands that the foregoing Intercreditor
Agreement is for the sole benefit of the ABL Secured Parties and the New First Lien Secured Parties
and their respective successors and assigns, and that such Grantor is not an intended beneficiary
or third party beneficiary thereof except to the extent otherwise expressly provided therein.
Without limitation to the foregoing, each Grantor agrees to take such further action and shall
execute and deliver such additional documents and instruments (in recordable form, if requested) as
the ABL Collateral Agent or the New First Lien Collateral Agent (or any of their respective agents
or representatives) may reasonably request to effectuate the terms of and the lien priorities
contemplated by the Intercreditor Agreement.
This Consent shall be governed and construed in accordance with the laws of the State of New
York. Notices delivered to any Grantor pursuant to this Consent shall be delivered in accordance
with the notice provisions set forth in the ABL Credit Agreement.
IN WITNESS WHEREOF, this Consent is hereby executed by each of the Grantors as of the date
first written above.
| HCA INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President — Finance and Treasurer |
|||
| [Subsidiary Grantors Signature Blocks] |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Authorized Signatory | |||
