LIEN SUBORDINATION AND INTERCREDITOR AGREEMENT dated as of January 28, 2011, among CITIBANK, N.A., as ABL Agent, WILMINGTON TRUST COMPANY, as Noteholder Collateral Agent, SCORPIO ACQUISITION CORPORATION, POLYMER GROUP, INC. and the Subsidiaries of...
Exhibit 10.4
EXECUTION VERSION
dated as of
January 28, 2011,
among
CITIBANK, N.A.,
as ABL Agent,
as ABL Agent,
WILMINGTON TRUST COMPANY,
as Noteholder Collateral Agent,
as Noteholder Collateral Agent,
SCORPIO ACQUISITION CORPORATION,
POLYMER GROUP, INC.
and
the Subsidiaries of Polymer Group, Inc. named herein
LIEN SUBORDINATION AND INTERCREDITOR AGREEMENT, dated as of January 28, 2011 (as amended,
supplemented or otherwise modified from time to time in accordance with the terms hereof, this
“Agreement”), among CITIBANK, N.A., as agent for the ABL Secured Parties referred to herein (in
such capacity, and together with its successors in such capacity, the “Original ABL Agent”),
WILMINGTON TRUST COMPANY, as collateral agent for the Noteholder Lien Secured Parties referred to
herein (in such capacity, and together with its successors in such capacity, the “Original
Noteholder Collateral Agent”), SCORPIO ACQUISITION CORPORATION (“Parent”), POLYMER GROUP, INC.
(“PGI”) and the subsidiaries of PGI named herein (the “Guarantors” and together with Parent and
PGI, the “Initial Grantors”).
Reference is made to (a) the ABL Credit Agreement (such term and each other capitalized term
used and not otherwise defined herein having the meaning assigned to it in Article I), and (b) the
Indenture governing the Indenture Notes.
In consideration of the mutual agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the ABL Agent (for
itself and on behalf of the ABL Secured Parties), the Noteholder Collateral Agent (for itself and
on behalf of the Indenture Noteholder Lien Secured Parties and the Additional Noteholder Lien
Secured Parties, if any), and the Grantors agree as follows:
ARTICLE I
Definitions
Definitions
SECTION 1.01. Construction; Certain Defined Terms.
(a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to
have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i)
any definition of or reference to any agreement, instrument, other document, statute or regulation
herein or in any Annex or Exhibit of this Agreement shall be construed as referring to such
agreement, instrument, other document, statute or regulation as from time to time amended,
restated, amended and restated, renewed, extended, supplemented or otherwise modified from time to
time, (ii) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, but shall not be deemed to include the Subsidiaries of such Person unless
express reference is made to such Subsidiaries, (iii) the words “herein,” “hereof and “hereunder,”
and words of similar import, shall be construed to refer to this Agreement in its entirety and not
to any particular provision hereof, (iv) all references herein to Articles, Sections, Exhibits and
Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless
otherwise expressly qualified herein, the words “asset” and “property” shall be construed to have
the same
meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights and (vi) the term “or” is not exclusive.
(b) All terms used in this Agreement that are defined in Article 1, 8 or 9 of the New York
UCC (whether capitalized herein or not) and not otherwise defined herein have the meanings assigned
to them in Article 1, 8 or 9 of the New York UCC. If a term is defined in Article 9 of the New
York UCC and another Article of the UCC, such term shall have the meaning assigned to it in Article
9 of the New York UCC.
(c) Unless otherwise set forth herein, all references herein to the Noteholder Collateral
Agent shall be deemed to refer to the Noteholder Collateral Agent in its capacity as collateral
agent under the Noteholder Collateral Agency Agreement.
(d) As used in this Agreement, the following terms have the meanings specified below:
“ABL Agent” means the Original ABL Agent, and, from and after the date of execution and
delivery of an ABL Substitute Facility, the agent, collateral agent, trustee or other
representative of the lenders or holders of the ABL Debt Obligations evidenced thereunder or
governed thereby, in each case, together with its successors in such capacity.
“ABL Credit Agreement” means the Credit Agreement, dated as of the date hereof, among each
Borrower named therein, the ABL Agent, the lenders party thereto from time to time and the other
agents named therein, and any credit agreement, loan agreement, note agreement, promissory note,
indenture or any other agreement or instrument evidencing or governing the terms of any ABL
Substitute Facility.
“ABL Debt Documents” means the ABL Credit Agreement, the ABL Security Documents, the other
“Loan Documents” (as defined in the ABL Credit Agreement) and all other loan documents, notes,
guarantees, instruments and agreements governing or evidencing, or executed or delivered in
connection with, any ABL Substitute Facility.
“ABL Debt Obligations” means the “Finance Obligations” as defined in the ABL Credit Agreement
(or any similar term of any ABL Substitute Facility) from time to time outstanding and, in any
event, ABL Debt Obligations shall expressly include any and all interest accruing and fees, costs
and charges incurred after the date of any filing by or against any Grantor of any petition or
complaint initiating any Insolvency or Liquidation Proceeding, regardless of whether any ABL
Secured Party’s claim therefor is enforceable, allowable or allowed as a claim in the Insolvency or
Liquidation Proceeding commenced by the filing of such petition or complaint.
“ABL Facility Collateral” means all assets and properties subject to Liens created by the ABL
Security Documents to secure the ABL Debt Obligations.
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“ABL First Lien Collateral” means all present and future right, title and interest of the
Grantors in and to the following, whether now owned or hereafter acquired, existing or arising, and
wherever located:
(a) Accounts (as defined in the ABL Credit Agreement as in effect on the date hereof);
(b) inventory and indebtedness owed to any Grantor that arises from cash advances to enable
the obligor thereof to acquire inventory;
(c) all rights of an unpaid vendor with respect to inventory;
(d) deposit accounts, commodity accounts, securities accounts and lock-boxes, including all
money and certificated securities, uncertificated securities (other than as each may relate to
Equity Interests of the Grantors), securities entitlements and investment property credited thereto
or deposited therein (including all cash, marketable securities and other funds held in or on
deposit in any deposit account, commodity account or securities account), instruments, including
intercompany notes, chattel paper and all cash and cash equivalents, including cash and cash
equivalents securing reimbursement obligations in respect of letters of credit or other ABL Debt
Obligations;
(e) general intangibles (other than any patents, trademarks, copyrights and other
intellectual property or any Equity Interests of Subsidiaries) pertaining to the other items of
property included within clauses (a), (b), (c) and (d) of this definition and all tax refunds and
rights to receive tax refunds (other than tax refunds in respect of or otherwise related to real
property, Equipment or fixtures);
(f) books and records, supporting obligations, documents and related letters of credit,
letter-of-credit rights, commercial tort claims or other claims and causes of action, in each case,
to the extent arising out of, related to or given in exchange or settlement of any of the
foregoing;
(g) the proceeds of any business interruption insurance policy, including, without
limitation, all rights to payment thereunder; and
(h) all substitutions, replacements, accessions, products and proceeds (including, without
limitation, insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds
of suit) of all or any of the foregoing;
except to the extent that any item of property included in clauses (a) through (h)
constitutes an Excluded Asset; provided that in no case shall ABL First Lien Collateral
include (a) any identifiable cash proceeds from a sale, lease, conveyance or other
disposition of any Noteholder First Lien Collateral that has been deposited in a Collateral
Proceeds Account in accordance with the terms of the Indenture, until such time as such
cash proceeds are released therefrom in accordance with the terms of the Indenture and (b)
any real property, equipment, fixtures, intellectual property or Equity Interests of
Subsidiaries.
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“ABL Lender” means a “Lender” under (and as defined in) the ABL Credit Agreement (or under any
ABL Substitute Facility).
“ABL Liens” means Liens on the ABL Facility Collateral created under the ABL Security
Documents to secure the ABL Debt Obligations (including Liens on such Collateral under the security
documents associated with any ABL Substitute Facility).
“ABL Loan” means a “Loan” as defined in the ABL Credit Agreement (or any similar term of any
ABL Substitute Facility).
“ABL Secured Parties” means, at any time, the “Secured Parties” as defined in the ABL Security
Documents (or any similar term of any ABL Substitute Facility).
“ABL Security Documents” means any security agreements, pledge agreements, collateral
assignments, mortgages, deeds of trust, control agreements, guarantees, notes or any other
documents or instruments now existing or entered into after the date hereof that create Liens on
any assets or properties of any Grantor to secure any ABL Debt Obligations (including any such
agreements, assignments, mortgages, deeds of trust and other documents or instruments associated
with any ABL Substitute Facility).
“ABL Substitute Facility” means any facility with respect to which the requirements contained
in Section 2.10(a) of this Agreement have been satisfied and that Replaces the ABL Credit
Agreement then in existence. For the avoidance of doubt, no ABL Substitute Facility shall be
required to be a revolving or asset-based loan facility and may be a facility evidenced or governed
by a credit agreement, loan agreement, note agreement, promissory note, indenture or any other
agreement or instrument; provided that any ABL Lien securing such ABL Substitute Facility shall be
subject to the terms of this Agreement for all purposes (including the lien priorities as set forth
herein as of the date hereof).
“Additional Noteholder Lien Debt Documents” means the Additional Noteholder Lien Debt Facility
and the Additional Noteholder Lien Security Documents.
“Additional Noteholder Lien Debt Facility” means one or more debt facilities, commercial paper
facilities, indentures or other agreements for which the requirements of Section 2.10(b) of
this Agreement have been satisfied, in each case with banks, other lenders or trustees, providing
for revolving credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from such lenders
against such receivables), letters of credit, notes or other borrowings, in each case, as amended,
restated, modified, renewed, refunded, restated, restructured, increased, supplemented, replaced or
refinanced in whole or in part from time to time in accordance with each applicable Secured
Document; provided that any Noteholder Lien securing such Additional
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Noteholder Lien Debt Facility shall be subject to the terms of this Agreement for all purposes
(including the lien priorities as set forth herein as of the date hereof).
“Additional Noteholder Lien Debt Obligations” means, with respect to any Grantor, any
obligations of such Grantor owed to any Additional Noteholder Lien Secured Party (or any of its
Affiliates) under the Additional Noteholder Lien Debt Documents and any Secured Notes Swap
Obligations.
“Additional Noteholder Lien Secured Parties” means, at any time, the Noteholder Collateral
Agent, the trustee, agent or other representative of the holders of any Series of Noteholder Lien
Debt who maintains the transfer register for such Series of Noteholder Lien Debt, counterparties
holding Secured Notes Swap Obligations, the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Additional Noteholder Lien Debt Document and each other holder
of, obligee in respect of, or lender pursuant to, any Series of Noteholder Lien Debt outstanding at
such time; provided that the Indenture Noteholder Lien Secured Parties shall not be deemed
Additional Noteholder Lien Secured Parties.
“Additional Noteholder Lien Security Documents” means the Additional Noteholder Lien Debt
Facility (insofar as the same grants a Lien on any collateral) and all collateral trust agreements,
security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, control
agreements, guarantees, notes and any other documents or instruments now existing or entered into
after the date hereof that create Liens on any assets or properties of any Grantor to secure any
Additional Noteholder Lien Debt Obligations of the Grantors owed thereunder to any Additional
Noteholder Lien Secured Parties.
“Additional Secured Debt” has the meaning assigned to that term in Section 2.10(b).
“Affiliate” of any specified Person means any other Person directly or indirectly through one
or more intermediaries, controlling or controlled by or under direct or indirect common control
with such specified Person. For purposes of this definition, “control,” as used with respect to
any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” shall have correlative meanings.
“Bank Product” has the meaning assigned to that term in the ABL Credit Agreement (or any
similar term of any ABL Substitute Facility).
“Bankruptcy Code” means Title 11 of the United States Code, or any similar foreign, federal or
state law for relief of debtors as now or hereinafter in effect.
“Board of Directors” means (a) with respect to a corporation, the board of directors of the
corporation; (b) with respect to a partnership, the board of directors of the
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general partner of the partnership; and (c) with respect to any other Person, the board or
committee of such Person serving a similar function.
“Borrower” means, collectively, each of PGI and any domestic Subsidiaries that are borrowers
under the ABL Credit Agreement.
“Capital Stock” means (a) in the case of a corporation, corporate stock, (b) in the case of an
association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (c) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or limited), and (d) any
other interest or participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
“Class” means, in the case of Noteholder Lien Debt, every Series of Noteholder Lien Debt,
taken together.
“Collateral” means all of the assets and property of any Grantor, whether real, personal or
mixed, constituting the ABL Facility Collateral and the Noteholder Collateral.
“Collateral Proceeds Account” means one or more deposit accounts or securities accounts
established or maintained by any Grantor or the Noteholder Collateral Agent or its agent for the
sole purpose of holding the proceeds of any sale or other disposition of any Noteholder First Lien
Collateral that are segregated in such account or accounts.
“Covered Action” has the meaning assigned to that term in the Noteholder Collateral Agency
Agreement as in effect on the date hereof.
“Discharge of Senior Secured Debt Obligations” means, with respect to any particular Senior
Secured Obligations, the occurrence of all of the following:
(a) termination or expiration of all commitments to extend credit (or, in the case of Bank
Products and Secured Hedge Agreements, termination of arrangements giving rise to such debt) that
would constitute such Senior Secured Obligations;
(b) payment in full in cash of the principal of, interest and premium (if any) on, fees and
other charges comprising such Senior Secured Obligations (other than any undrawn letters of credit)
(including, in any event, all such interest fees and other charges regardless of whether such
interest, fees and other charges are allowed or recoverable in any Insolvency and Liquidation
Proceeding under Section 506 of the Bankruptcy Code or otherwise);
(c) discharge or cash collateralization (at the lower of (i) 101.5% of the aggregate undrawn
amount, and (ii) the percentage of the aggregate undrawn amount
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required for release of liens under the terms of the applicable Senior Documents) of all
outstanding letters of credit constituting such Senior Secured Obligations; and
(d) payment in full in cash of all other such Senior Secured Obligations that are outstanding
and unpaid at the time the principal of and interest and premium on all such Senior Secured
Obligations are paid in full in cash (other than any obligations for taxes, costs,
indemnifications, reimbursements, damages and other liabilities in respect of which no claim or
demand for payment has been made at such time); provided that the Discharge of Senior Secured Debt
Obligations shall not be deemed to have occurred in connection with a Replacement as contemplated
by Section 2.10(a).
“Equally and Ratably” means, in reference to sharing of Liens or proceeds thereof as between
holders of any Noteholder Lien Obligations within the same Class, that such Liens or proceeds after
payment of all expenses in connection with the exercise of any remedies with respect to Collateral
subject to such Liens and fees and expenses of any Noteholder Collateral Agent and any trustee
thereunder.
(a) will be allocated and distributed first to the Noteholder Collateral Agent or Secured Debt
Representative, as the case may be, for each outstanding Series of Noteholder Lien Debt within that
Class, for the account of the holders of such Series of Noteholder Lien Debt, ratably in proportion
to the principal of, and interest and premium (if any) and reimbursement
obligations (contingent or otherwise) with respect to letters of credit, if any, outstanding
(whether or not drawings have been made on such letters of credit) on, each outstanding Series of
Noteholder Lien Debt within that Class when the allocation or distribution is made, and thereafter;
and
(b) will be allocated and distributed (if any remain after payment in full of all of the
principal of, and interest and premium (if any) and reimbursement obligations (contingent or
otherwise) with respect to letters of credit, if any, outstanding (whether or not drawings have
been made on such letters of credit), on all outstanding Noteholder Lien Obligations within that
Class) to the Noteholder Collateral Agent or Secured Debt Representative, as the case may be, for
each outstanding Series of Noteholder Lien Debt within that Class, for the account of the holders
of any remaining Noteholder Lien Obligations within that Class, ratably in proportion to the
aggregate unpaid amount of such remaining Noteholder Lien Obligations within that Class due and
demanded (with written notice to the Noteholder Collateral Agent or the Secured Debt
Representative, as the case may be) prior to the date such distribution is made.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock, but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock.
“Event of Default” means an “Event of Default” under and as defined in the ABL Credit
Agreement, the Indenture or any Additional Noteholder Lien Debt Documents, as the context may
require.
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“Excluded Assets” (i) with respect to the ABL Liens, has the meaning given to such term in the
ABL Security Documents, and (ii) with respect to the Noteholder Liens, has the meaning given such
term in the Noteholder Lien Security Documents.
“Grantor” means Parent, PGI and each direct or indirect Subsidiary of PGI that shall have
granted any Lien in favor of the ABL Agent and the Noteholder Collateral Agent on any of its assets
or properties to secure any of the Secured Debt Obligations.
“Guarantors” has the meaning assigned to that term in the preamble hereto.
“Holders of Noteholder Lien Debt” means (a) the Holders under and as defined in the Indenture,
(b) the holders or lenders pursuant to any Series of Noteholder Lien Debt, and (c) the holders or
lenders of any indebtedness under any Noteholder Substitute Facility.
“Indenture” means the Indenture, dated as of the date hereof, among PGI, the other Grantors
party thereto from time to time, the Noteholder Collateral Agent and the Trustee, and any credit
agreement, loan agreement, note agreement, promissory note, indenture or any other agreement or
instrument evidencing or governing the terms of any Noteholder Substitute Facility.
“Indenture Noteholder Security Documents” means the Noteholder Collateral Agency Agreement,
and any other security agreements, pledge agreements, collateral assignments, mortgages, deeds of
trust, control agreements, guarantees, notes or any other documents or instruments now existing or
entered into after the date hereof that create Liens on any assets or properties of any Grantor or
any of its Subsidiaries to secure any Indenture Noteholder Lien Obligations (including any such
agreements, assignments, mortgages, deeds of trust and other documents or instruments associated
with any Noteholder Substitute Facility).
“Indenture Noteholder Lien Documents” means the Indenture, the Indenture Notes, the Indenture
Noteholder Security Documents and all other loan documents, notes, guarantees, instruments and
agreements governing or evidencing any Noteholder Substitute Facility.
“Indenture Noteholder Lien Obligations” means, with respect to any Grantor, all “Secured
Obligations” as such term is defined in the Indenture, Noteholder Security Documents, any other
obligations of such Grantor owed to any Indenture Noteholder Lien Secured Party (or any of its
Affiliates) under the Indenture Noteholder Lien Documents and any Secured Notes Swap Obligations.
“Indenture Noteholder Lien Secured Parties” means, at any time, the “Secured Parties” as
defined in the Indenture Noteholder Security Documents (or any similar term of any Noteholder
Substitute Facility).
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“Indenture Notes” means the 7.75% Senior Secured Notes due 2019 issued under the Indenture.
“Initial Grantors”has the meaning assigned to such term in the preamble hereto.
“Insolvency or Liquidation Proceeding” means:
(a) any case commenced by or against Parent, PGI or any other Grantor under the Bankruptcy
Code, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of
the assets or liabilities of Parent, PGI or any other Grantor, any receivership or assignment for
the benefit of creditors relating to Parent, PGI or any other Grantor or any similar case or
proceeding relative to Parent, PGI or any other Grantor or its creditors, as such, in each case
whether or not voluntary;
(b) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of
or relating to Parent, PGI or any other Grantor, in each case whether or not voluntary and whether
or not involving bankruptcy or insolvency, in each case to the extent not permitted under the
Senior Documents;
(c) any proceeding seeking the appointment of any trustee, receiver, liquidator, custodian or
other insolvency official with similar powers with respect to Parent, PGI or any other Grantor or
any of its assets; or
(d) any other proceeding of any type or nature in which substantially all claims of creditors
of Parent, PGI or any other Grantor are determined and any payment or distribution is or may be
made on account of such claims.
“Intercreditor Agreement Joinder” means an agreement substantially in the form of Exhibit
A.
“Junior Documents” means (a) in respect of the Noteholder First Lien Collateral, the ABL Debt
Documents and (b) in respect of the ABL First Lien Collateral, the Noteholder Lien Documents.
“Junior Liens” means (a) in respect of the ABL First Lien Collateral, the Noteholder Liens on
such Collateral, and (b) in respect of the Noteholder First Lien Collateral, the ABL Liens on such
Collateral (other than the ABL Liens in respect of the Tranche 2 Sub-Facility Obligations).
“Junior Representative” means (a) with respect to the Noteholder First Lien Collateral, the
ABL Agent and (b) with respect to the ABL First Lien Collateral, the Noteholder Collateral Agent.
“Junior Secured Obligations” means (a) with respect to the Noteholder Lien Obligations (to the
extent such Obligations are secured, or intended to be secured, by the Noteholder First Lien
Collateral), the ABL Debt Obligations and (b) with respect
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to ABL Debt Obligations (to the extent such Obligations are secured, or intended to be
secured, by the ABL First Lien Collateral), the Noteholder Lien Obligations.
“Junior Secured Obligations Collateral” means the Collateral in respect of which the Junior
Representative (on behalf of itself and the Junior Secured Obligations Secured Parties) holds a
Junior Lien.
“Junior Secured Obligations Secured Parties” means (a) with respect to the Noteholder First
Lien Collateral, the ABL Secured Parties and (b) with respect to the ABL First Lien Collateral, the
Noteholder Lien Secured Parties.
“Junior Secured Obligations Security Documents” means (a) with respect to the ABL First Lien
Collateral, the Noteholder Lien Security Documents, and (b) with respect to the Noteholder First
Lien Collateral, the ABL Security Documents.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any agreement to give a security interest therein and any filing
of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent
statutes of any jurisdiction).
“Lien Sharing and Priority Confirmation Joinder” means an agreement substantially in the form
of Exhibit B.
“New York UCC” means the Uniform Commercial Code as from time to time in effect in the State
of New York.
“Noteholder Collateral” means all assets and properties subject to Liens created by the
Noteholder Lien Security Documents to secure the Noteholder Lien Obligations.
“Noteholder Collateral Agency Agreement” means the Intercreditor and Collateral Agency
Agreement, dated as of the date hereof, among the Initial Grantors, the direct or indirect
Subsidiaries of the Grantors from time to time party thereto, the Trustee, the other Secured Debt
Representatives from time to time party thereto, the Noteholder Collateral Agent and the ABL Agent,
as amended, restated, adjusted, waived, renewed, extended, supplemented or otherwise modified from
time to time, in accordance with each applicable Secured Document.
“Noteholder Collateral Agent” means the Original Noteholder Collateral Agent, and, from and
after the date of execution and delivery of an Noteholder Substitute Facility, the agent,
collateral agent, trustee or other representative of the lenders or other holders of the
indebtedness and other obligations evidence thereunder or governed thereby, in each case, together
with its successors in such capacity.
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“Noteholder First Lien Collateral” means all present and future right, title and interest of
the Grantors, whether now owned or hereafter acquired, existing or arising, and wherever located,
in all of the assets and property of any Grantor, whether real, personal or mixed (other than in
the Excluded Assets and the ABL First Lien Collateral), including, without limitation, all: (a)
equipment; (b) Real Estate Assets; (c) intellectual property; (d) all general intangibles that do
not constitute ABL First Lien Collateral; (e) documents of title related to equipment; (f) Equity
Interests of the Company and Subsidiaries; (g) books and records, supporting obligations and
related letters of credit, commercial tort claims or other claims and causes of action, in each
case, to the extent related primarily to the foregoing; and (h) substitutions, replacements,
accessions, products and proceeds (including, without limitation, insurance proceeds, licenses,
royalties, income, payments, claims, damages and proceeds of suit) of any or all of the foregoing.
“Noteholder Lien” means a Lien granted by the Noteholder Lien Security Documents to the
Noteholder Collateral Agent at any time upon any property of any other Grantor to secure Noteholder
Lien Obligations.
“Noteholder Lien Debt” means the Indenture Notes, all additional notes, loans or other
indebtedness issued or incurred under any Additional Noteholder Lien Debt Documents and, with
respect to which the requirements of Section 2.10(b) have been satisfied, and all notes,
loans or other indebtedness issued or incurred under any Noteholder Substitute Facility.
Noteholder Lien Debt shall expressly include any and all interest accruing and fees, costs and
charges incurred after the date of any filing by or against any Grantor of any petition or
complaint initiating any Insolvency or Liquidation Proceeding, regardless of whether any Noteholder
Lien Secured Party’s claim therefor is enforceable, allowable or allowed as a claim in the
Insolvency or Liquidation Proceeding commenced by the filing of such petition or complaint.
“Noteholder Lien Documents” means the Indenture Noteholder Lien Documents and the Additional
Noteholder Lien Debt Documents.
“Noteholder Lien Obligations” means the “Secured Obligations” as defined in the Noteholder
Lien Security Documents, the Noteholder Lien Debt and all other Obligations owed to any Noteholder
Lien Secured Party from time to time.
“Noteholder Lien Secured Parties” means the Indenture Noteholder Lien Secured Parties and the
Additional Noteholder Lien Secured Parties.
“Noteholder Lien Security Documents” means the Indenture Noteholder Security Documents and the
Additional Noteholder Lien Security Documents.
“Noteholder Substitute Facility” means any facility with respect to which the requirements
contained in Section 2.10(a) of this Agreement have been satisfied and that is permitted to
be incurred pursuant to the ABL Debt Documents, the proceeds of which are used to, among other
things, Replace the Indenture and/or any Additional Noteholder Lien Debt Facility then in
existence. For the avoidance of doubt, no
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Noteholder Substitute Facility shall be required to be evidenced by notes or other instruments
and may be a facility evidenced or governed by a credit agreement, loan agreement, note agreement,
promissory note, indenture or any other agreement or instrument; provided that any such Noteholder
Substitute Facility shall be subject to the terms of this Agreement for all purposes (including the
lien priority as set forth herein as of the date hereof) as the other Liens securing the Noteholder
Lien Obligations are subject to under this Agreement.
“Obligations” means, with respect to any Secured Parties, any principal, interest, penalties,
fees, expenses, indemnifications, reimbursements, damages and other liabilities (including all
interest, fees and expenses accruing after the commencement of any Insolvency or Liquidation
Proceeding, even if such interest, fees and expenses are not enforceable, allowable or allowed as a
claim in such proceeding) under the Secured Documents of such Secured Party.
“Officer” means the chief executive officer, the president, any vice president, the chief
operating officer or any chief financial officer, treasurer or controller of such Person and any
other officer or similar official thereof responsible for the administration of the obligations of
such Person in respect of this Agreement. Any document delivered hereunder that is signed by an
Officer of a Grantor shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Grantor and such Officer shall be
conclusively presumed to have acted on behalf of such Grantor.
“Officer’s Certificate” means a certificate signed on behalf of applicable Grantor by an
Officer of such Grantor, who must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of such Grantor.
“Original ABL Agent” has the meaning assigned to that term in the preamble hereto.
“Original Noteholder Collateral Agent” has the meaning assigned to that term in the preamble
hereto.
“Original Trustee” means Wilmington Trust Company, in its capacity as trustee under the
Indenture, and together with its successors in such capacity.
“Parent” has the meaning assigned to that term in the preamble hereto.
“Person” means any individual, sole proprietorship, partnership, limited liability company,
joint venture, joint-stock company, trust, unincorporated organization, association, corporation,
government or any agency or political subdivision thereof or any other entity.
“PGI” has the meaning assigned to that term in the preamble hereto.
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“Real Estate Asset” means, at any time of determination, any fee interest then owned by any
Grantor in any real property.
“Replaces” means, (a) in respect of any agreement with reference to the ABL Credit Agreement
or the ABL Debt Obligations or any ABL Substitute Facility, that such agreement refinances,
replaces, exchanges or refunds the ABL Credit Agreement or such ABL Substitute Facility in whole
(in a transaction that is in compliance with Section 2.10(a)) and that all commitments
thereunder are terminated, or, to the extent permitted by the terms of the ABL Credit Agreement or
such ABL Substitute Facility, in part, and (b) in respect of any indebtedness with reference to the
Noteholder Lien Documents or the Noteholder Lien Obligations or any Noteholder Substitute Facility,
that such indebtedness refinances, replaces, exchanges or refunds the Noteholder Lien Documents or
such Noteholder Substitute Facility in whole (in a transaction that is in compliance with
Section 2.10(a)) and that all commitments thereunder are terminated, or, to the extent
permitted by the terms of the Noteholder Lien Documents or such Noteholder Substitute Facility, in
part. “Replace,” “Replaced” and “Replacement” shall have correlative meanings.
“Representative” means (a) in the case of any Noteholder Lien Obligations, the Noteholder
Collateral Agent, and (b) in the case of any ABL Debt Obligations, the ABL Agent.
“Secured Debt Obligations” means the Noteholder Lien Obligations (including the Obligations
incurred under each Series of Noteholder Lien Debt) and the ABL Debt Obligations.
“Secured Debt Representative” means (a) in the case of the Indenture Notes, Noteholder
Collateral Agent, and (b) in the case of any other Series of Noteholder Lien Debt, the trustee,
agent or representative of the holders of such Series of Noteholder Lien Debt who maintains the
transfer register for such Series of Noteholder Lien Debt and is appointed as a representative of
such Series of Noteholder Lien Debt (for purposes related to the administration of the security
documents) pursuant to the indenture, credit agreement or other agreement governing such Series of
Noteholder Lien Debt.
“Secured Documents” means the Noteholder Lien Documents and the ABL Debt Documents.
“Secured Hedge Agreements” shall have the meaning ascribed to “Secured Hedge Agreements” in
the ABL Credit Agreement (or any similar term of any ABL Substitute Facility).
“Secured Parties” means the Noteholder Lien Secured Parties and the ABL Secured Parties.
“Secured Notes Swap Obligations” means, with respect to any Grantor, the obligations of such
Grantor under any interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign
exchange contract, currency swap
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agreement or similar agreement (including equity derivative agreements) providing for the
transfer or mitigation of interest rate, currency, commodity or equity risks generally or under
specific contingencies, in each case, to the extent secured under any Noteholder Lien Security
Document (but, for the avoidance of doubt, no Secured Obligations shall also constitute Secured
Hedge Agreements).
“Security Documents” means the Indenture Noteholder Security Documents, the Additional
Noteholder Lien Security Documents and the ABL Security Documents.
“Senior Documents” means (a) in respect of the Noteholder First Lien Collateral, the
Noteholder Lien Documents, and (b) in respect of the ABL First Lien Collateral, the ABL Debt
Documents.
“Senior Liens” means (a) in respect of the ABL First Lien Collateral, the ABL Liens on such
Collateral, and (b) in respect of the Noteholder First Lien Collateral, the Noteholder Liens on
such Collateral.
“Senior Representative” means (a) with respect to the Noteholder First Lien Collateral, the
Noteholder Collateral Agent, and (b) with respect to the ABL First Lien Collateral, the ABL Agent.
“Senior Secured Obligations” means (a) with respect to the ABL Debt Obligations (to the extent
such obligations are secured, or are intended to be secured, by the Noteholder First Lien
Collateral), the Noteholder Lien Obligations and (b) with respect to Noteholder Lien Obligations
(to the extent such obligations are secured, or are intended to be secured, by the ABL First Lien
Collateral), the ABL Debt Obligations.
“Senior Secured Obligations Collateral” means the Collateral in respect of which the Senior
Representative (on behalf of itself and the applicable Senior Secured Obligations Secured Parties)
holds a Senior Lien.
“Senior Secured Obligations Secured Parties” means (a) with respect to the Noteholder First
Lien Collateral, the Noteholder Lien Secured Parties, and (b) with respect to the ABL First Lien
Collateral, the ABL Secured Parties.
“Senior Secured Obligations Security Documents” means (a) with respect to the ABL First Lien
Collateral, the ABL Security Documents, and (b) with respect to the Noteholder First Lien
Collateral, the Indenture Noteholder Security Documents and the Additional Noteholder Lien Security
Documents.
“Series of Noteholder Lien Debt” means, severally, the Indenture Notes and any additional
notes, any Additional Noteholder Lien Debt Facility and other indebtedness that constitutes
Noteholder Lien Debt.
“Subsidiary” means, with respect to any specified Person (a) any corporation, association or
other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any
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contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or more of the other
subsidiaries of that Person (or a combination thereof); and (b) any partnership (i) the sole
general partner or the managing general partner of which is such Person or a subsidiary of such
Person or (ii) the only general partners of which are such Person or one or more subsidiaries of
such Person (or any combination thereof). Unless otherwise specified, a “Subsidiary” shall be a
Subsidiary of PGI.
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect on
the date hereof.
“Tranche 2 Sub-Facility Loans” means (i) “Tranche 2 Revolving Credit Loans” as defined in the
ABL Credit Agreement, (ii) “Swing Line Loans,” as defined in the ABL Credit Agreement, to the
extent “Tranche 2 Revolving Credit Lenders,” as defined in the ABL Credit Agreement, hold “Tranche
2 Swing Line Participations,” as defined in the ABL Credit Agreement, in such Swing Line Loans in
their capacities as such, (iii) “Protective Advances,” as defined in the ABL Credit Agreement, to
the extent Tranche 2 Revolving Credit Lenders hold “Tranche 2 Protective Advance Participations,”
in such Protective Advances in their capacities as such, (iv) “L/C Advances”, as defined in the ABL
Credit Agreement, to the extent made by a Tranche 2 Revolving Credit Lender to fund its “Tranche 2
L/C Participation”, as defined in the ABL Credit Agreement, (v) “Tranche 2 L/C Borrowings,” as
defined in the ABL Credit Agreement, (vi) any “Unpaid L/C Lender Amount,” as defined in the ABL
Credit Agreement, resulting from a failure by a Tranche 2 Revolving Credit Lender in its capacity
as such to fund pursuant to Section 2.03(c) (or any similar provision of an ABL Substitute
Facility) of the ABL Credit Agreement, (vii) “Unpaid Swing Line Loan Amount,” as defined in the ABL
Credit Agreement, resulting from a failure by a Tranche 2 Revolving Credit Lender in its capacity
as such to fund pursuant to Section 2.04(c), (viii) “Tranche 2 Letter of Credit Fees”, as defined
in the ABL Credit Agreement and (ix) “Tranche 2 Commitment Fees”, as defined in the ABL Credit
Agreement.
“Tranche 2 Sub-Facility Obligations” means the Tranche 2 Sub-Facility Loans from time to time
outstanding and, in any event, Tranche 2 Sub-Facility Obligations shall expressly include any and
all interest accruing and fees, costs and charges incurred with respect to the Tranche 2
Sub-Facility Loans, whether before or after the date of any filing by or against any Grantor of any
petition or complaint initiating any Insolvency or Liquidation Proceeding, regardless of whether
any ABL Secured Party’s claim therefor is enforceable, allowable or allowed as a claim in the
Insolvency or Liquidation Proceeding commenced by the filing of such petition or complaint;
provided, however, that the aggregate principal amount of, without duplication, any revolving
credit commitments, advances, revolving credit loans, letters of credit, term loans, bonds,
debentures, notes or similar instruments which constitute “Tranche 2 Sub-Facility Obligations”
hereunder shall not exceed $7,500,000.
“Trustee” means the Original Trustee, and, from and after the date of execution and delivery
of the Noteholder Substitute Facility, the agent, collateral agent, trustee or other representative
of the lenders or other holders of the indebtedness and
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other obligations evidenced thereunder or governed thereby, together with its successors in
such capacity.
ARTICLE II
Subordination of Junior Liens; Certain Agreements
Subordination of Junior Liens; Certain Agreements
SECTION 2.01. Subordination of Junior Liens.
(a) The grant of the ABL Liens pursuant to the ABL Security Documents and the grant of the
Noteholder Liens pursuant to the Indenture Noteholder Security Documents and the Additional
Noteholder Lien Security Documents create two separate and distinct Liens on the Collateral.
(b) Except as provided in Section 2.01(e), all Junior Liens in respect of any
Collateral are expressly subordinated and made junior in right, priority, operation and effect to
any and all Senior Liens in respect of such Collateral, notwithstanding anything contained in this
Agreement, the Noteholder Lien Documents, the ABL Debt Documents, or any other agreement or
instrument or operation of law to the contrary, and irrespective of the time, order or method of
creation, attachment or perfection of such Junior Liens and Senior Liens or any failure, defect or
deficiency or alleged failure, defect or deficiency in any of the foregoing.
(c) It is acknowledged that (i) the aggregate amount of the Senior Secured Obligations may,
subject to the limitations set forth in the Senior Documents, be increased from time to time, (ii)
a portion of the Senior Secured Obligations consists or may consist of indebtedness that is
revolving in nature, and the amount thereof that may be outstanding at any time or from time to
time may be increased or reduced and subsequently reborrowed, and (iii) the Senior Secured
Obligations may, subject to the limitations set forth in the Senior Documents, be increased,
extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, refinanced or
otherwise amended or modified from time to time, all without affecting the subordination of the
Junior Liens hereunder or the provisions of this Agreement defining the relative rights of the ABL
Secured Parties and the Noteholder Lien Secured Parties. The lien priorities provided for herein
shall not be altered or otherwise affected by any amendment, modification, supplement, extension,
increase, renewal, restatement or Replacement of either the Junior Secured Obligations (or any part
thereof) or the Senior Secured Obligations (or any part thereof), by the release of any Collateral
or of any guarantees for any Senior Secured Obligations or by any action that any Representative or
Secured Party may take or fail to take in respect of any Collateral.
(d) If at any time ABL Agent shall make a Permitted Subordination (as defined below) with
respect to any ABL First Lien Collateral or Noteholder Collateral Agent shall make a Permitted
Subordination with respect to Noteholder First Lien Collateral, in each case, to or in favor of any
Person, the priority of such Representative’s Liens vis-à-vis the Liens therein of the other
Representative shall not be affected thereby and the subordinating Representative’s Liens shall
continue to be senior in priority to the
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other Representative’s Liens in the affected Collateral as and to the extent provided in this
Section 2. As used herein, the term “Permitted Subordination” shall mean a
voluntary subordination by ABL Agent of its Liens with respect to any or all ABL First Lien
Collateral, or by Noteholder Collateral Agent of its Liens with respect to any or all Noteholder
First Lien Collateral, in favor of depository banks, securities or commodities intermediaries,
landlords, mortgagees, custom brokers, freight forwarders, carriers, warehousemen, factors, Persons
who provide DIP Financing and other Persons who provide goods or services to a Grantor in the
ordinary course of business.
(e) Notwithstanding anything to the contrary herein or in any of the Secured Documents or in
the Noteholder Collateral Agency Agreement, the Representatives and the holders of ABL Debt
Obligations and Noteholder Lien Obligations agree that subject to the provisions of Section 7.04
(A) the Tranche 2 Sub-Facility Obligations relative to the remaining ABL Debt Obligations, hereby
are secured Equally and Ratably with the Noteholder Lien Obligations with respect to the Noteholder
First Lien Collateral; provided however that the Tranche 2 Sub-Facility Obligations shall not also
be entitled to a Junior Lien on the ABL First Lien Collateral (for the avoidance of doubt, the
foregoing shall not alter or affect the Lien on the ABL First Lien Collateral granted under the ABL
Security Documents for any the Tranche 2 Sub-Facility Obligations and the application of proceeds
from collateral set forth in Section 8.04 of the ABL Credit Agreement, and a “Junior Lien” for the
purposes of the Tranche 2 Sub-Facility Obligations means a Lien other than one granted pursuant to
the ABL Security Documents) and (B) with respect to the Tranche 2 Sub-Facility Obligations,
notwithstanding this clause (e), the ABL Agent shall continue to be a Junior Representative with
respect to the Noteholder First Lien Collateral and the Noteholder Collateral Agent shall continue
to be a Senior Representative with respect to the Noteholder First Lien Collateral and the sole
obligation of the Noteholder Collateral Agent with respect to the Tranche 2 Sub-Facility Obligation
shall be to give effect to the provisions of Section 7.01; provided that notwithstanding the
foregoing provisions of this clause (e), the sole right of a holder of Tranche 2 Sub-Facility
Obligations to receive Noteholder First Lien Collateral or proceeds thereof prior to the Discharge
of the Senior Secured Debt Obligations in respect of Noteholder Lien Obligations shall be as
provided in Section 7.04 hereof and (ii) the Noteholder Lien Secured Parties agree that, without
the prior written consent of the ABL Agent (x) the Noteholder Lien Security Documents and the
Noteholder Collateral Agency Agreement shall not be amended, waived or modified, (y) no Noteholder
Lien Security Documents shall be entered into after the date hereof and (z) no replacement or
substitute of the Noteholder Collateral Agency Agreement may be entered into, in each case, to the
extent it would have the effect of disproportionately affecting the rights of the holders of the
Tranche 2 Sub-Facility Obligations (as such rights are in effect as of the date hereof hereunder or
under the Noteholder Lien Security Documents in existence on the date hereof) as compared to the
other Noteholder Lien Secured Parties.
(f) Notwithstanding anything contained herein, any difference in the Noteholder Collateral
and the ABL Collateral arising from (x) any variance between the definition of “Excluded Assets” in
the Security Agreement (as defined in the ABL Credit Agreement, the “ABL Security Agreement”)) or
any definition of similar import in any
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ABL Security Document (as any such definition is in effect on the date hereof), on the one
hand, and the definition of “Excluded Assets” in the Security Agreement (as defined in the
Indenture, the “Noteholder Security Agreement”) or any definition of similar import in any
Noteholder Lien Security Document (as any such definition is in effect on the date hereof), on the
other hand or (y) the lack of a provision similar to Section 2.01(b) of the Noteholder Security
Agreement (as such provision is in effect on the date hereof) in the ABL Security Agreement, in
each case shall not be deemed prohibited hereby and no party hereto shall be required to take, or
refrain from taking, any action to address such difference.
SECTION 2.02. No Action With Respect to Junior Secured Obligations Collateral Subject to
Senior Liens. Subject to Sections 2.04 and 2.13, no Junior Representative or
other Junior Secured Obligations Secured Party shall commence or instruct any Junior Representative
to commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a
trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take
possession of, exercise any right, remedy or power with respect to, or otherwise take any action to
enforce its interest in or realize upon, or take any other action available to it in respect of,
any Junior Secured Obligations Collateral under any Junior Secured Obligations Security Document,
applicable law or otherwise until the associated Discharge of Senior Secured Debt Obligations
(including, without limitation, exercising any rights under any deposit account control agreement
constituting Junior Secured Obligations Collateral), it being agreed that only the Senior
Representative, acting in accordance with the applicable Senior Secured Obligations Security
Documents, shall be entitled to take any such actions or exercise any such remedies prior to the
associated Discharge of Senior Secured Debt Obligations. Notwithstanding the foregoing, any Junior
Representative may, but shall have no obligation to, subject to Section 2.05, take all such
actions as it shall deem necessary to perfect or continue the perfection of its Junior Liens.
SECTION 2.03. No Duties of Senior Representative. Each Junior Secured Obligations
Secured Party acknowledges and agrees that neither the Senior Representative nor any other Senior
Secured Obligations Secured Party shall have any duties or other obligations to such Junior Secured
Obligations Secured Party with respect to any Senior Secured Obligations Collateral, other than to
transfer to the Junior Representative proceeds of any such Collateral that constitutes Junior
Secured Obligations Collateral remaining in its possession following any sale, transfer or other
disposition of such Collateral (in each case, unless the Junior Liens on all such Junior Secured
Obligations Collateral are terminated and released prior to or concurrently with such sale,
transfer, disposition, payment or satisfaction), or the Discharge of Senior Secured Debt
Obligations or if the Senior Representative is in possession of all or any part of any such
Collateral after the Discharge of Senior Secured Debt Obligations, such Collateral or any part
thereof remaining, in each case without representation or warranty on the part of the Senior
Representative or any Senior Secured Obligations Secured Party. In furtherance of the foregoing,
each Junior Secured Obligations Secured Party acknowledges and agrees that until the associated
Discharge of Senior Secured Debt Obligations secured by any Collateral on which such Junior Secured
Obligations Secured Party holds a Junior Lien, the Senior Representative shall be entitled, for the
benefit of
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the holders of such Senior Secured Obligations, to sell, transfer or otherwise dispose of or
deal with such Collateral, as provided herein and in the Senior Secured Obligations Security
Documents, without regard to any Junior Lien or any rights to which the holders of the Junior
Secured Obligations would otherwise be entitled as a result of such Junior Lien. Without limiting
the foregoing, each Junior Secured Obligations Secured Party agrees that neither the Senior
Representative nor any other Senior Secured Obligations Secured Party shall have any duty or
obligation first to marshal or realize upon any type of Senior Secured Obligations Collateral (or
any other collateral securing the Senior Secured Obligations), or to sell, dispose of or otherwise
liquidate all or any portion of such Collateral (or any other collateral securing the Senior
Secured Obligations), in any manner that would maximize the return to the Junior Secured
Obligations Secured Parties, notwithstanding that the order and timing of any such realization,
sale, disposition or liquidation may affect the amount of proceeds actually received by the Junior
Secured Obligations Secured Parties from such realization, sale, disposition or liquidation. Each
of the Junior Secured Obligations Secured Parties waives any claim such Junior Secured Obligations
Secured Party may now or hereafter have against the Senior Representative or any other Senior
Secured Obligations Secured Party (or their representatives) arising out of (i) any actions which
the Senior Representative or the Senior Secured Obligations Secured Parties take or omit to take
(including actions with respect to the creation, perfection or continuation of Liens on any
Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or
failure to realize upon, any of the Collateral, and actions with respect to the collection of any
claim for all or any part of the Senior Secured Obligations from any account debtor, guarantor or
any other party) in accordance with the Senior Secured Obligations Security Documents or any other
agreement related thereto or to the collection of the Senior Secured Obligations or the valuation,
use, protection or release of any security for the Senior Secured Obligations, (ii) any election by
the Senior Representative or any Senior Secured Obligations Secured Parties, in any proceeding
instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code
or (iii) subject to Section 2.06, any borrowing by, or grant of a security interest or
administrative expense priority under Section 364 of the Bankruptcy Code by, the Company or any of
its subsidiaries, as debtor-in-possession. Notwithstanding the foregoing, each Grantor agrees that
(a) in the event any Grantor takes any action to grant or perfect a Lien in favor of the ABL Agent
in any assets constituting ABL First Lien Collateral, such Grantor shall also take such action to
grant or perfect a Lien (subject to this Agreement) in favor of the Noteholder Collateral Agent to
secure the Noteholder Lien Obligations without request of the Noteholder Collateral Agent and (b)
in the event any Grantor takes any action to grant or perfect a Lien in favor of the Noteholder
Collateral Agent in any assets constituting Noteholder First Lien Collateral, such Grantor shall
also take such action to grant or perfect a Lien (subject to this Agreement) in favor of the ABL
Agent to secure the ABL Lien Obligations without request of the ABL Agent.
SECTION 2.04. No Interference; Payment Over; Reinstatement.
(a) Each Junior Secured Obligations Secured Party agrees that (i) it will not take or cause to
be taken any action the purpose or effect of which is, or could be,
to make any Junior Lien pari
passu with, or to give such Junior Secured Obligations
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Secured Party any preference or priority relative to, any Senior Lien with respect to the
Collateral subject to such Senior Lien and Junior Lien or any part thereof (except in each case, as
provided in Section 7.01 with respect to the Tranche 2 Sub-Facility Obligations), (ii) it will not
challenge or question in any proceeding the validity or enforceability of any Senior Secured
Obligations or Senior Secured Obligations Security Document, or the validity, attachment,
perfection or priority of any Senior Lien, or the validity or enforceability of the priorities,
rights or duties established by or other provisions of this Agreement, (iii) it will not take or
cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder
or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other
disposition of the Collateral subject to any Junior Lien by any Senior Secured Obligations Secured
Parties secured by Senior Liens on such Collateral or any Senior Representative acting on their
behalf, (iv) it shall have no right to (A) direct any Senior Representative or any holder of Senior
Secured Obligations to exercise any right, remedy or power with respect to the Collateral subject
to any Junior Lien or (B) consent to the exercise by any Senior Representative or any other Senior
Secured Obligations Secured Party of any right, remedy or power with respect to the Collateral
subject to any Junior Lien, (v) it will not institute any suit or assert in any suit or Insolvency
or Liquidation Proceeding any claim against any Senior Representative or other Senior Secured
Obligations Secured Party seeking damages from or other relief by way of specific performance,
instructions or otherwise with respect to, and neither any Senior Representative nor any other
Senior Secured Obligations Secured Party shall be liable for, any action taken or omitted to be
taken by such Senior Representative or other Senior Secured Obligations Secured Party with respect
to any Collateral securing such Senior Secured Obligations that is subject to any Junior Lien, (vi)
it will not seek, and hereby waives any right, to have any Senior Secured Obligations Collateral
subject to any Junior Lien or any part thereof marshaled upon any foreclosure or other disposition
of such Collateral and (vii) it will not attempt, directly or indirectly, whether by judicial
proceedings or otherwise, to challenge the enforceability of any provision of this Agreement.
(b) The Junior Representative and each other Junior Secured Obligations Secured Party hereby
agrees that if it shall obtain possession of any Senior Secured Obligations Collateral or shall
realize any proceeds or payment in respect of any such Collateral, pursuant to any Junior Secured
Obligations Security Document or by the exercise of any rights available to it under applicable law
or in any Insolvency or Liquidation Proceeding or through any other exercise of remedies, at any
time prior to the Discharge of the Secured Debt Obligations, then it shall hold such Collateral,
proceeds or payment in trust for the Senior Secured Obligations Secured Parties and transfer such
Collateral, proceeds or payment, as the case may be, to the Senior Representative reasonably
promptly after obtaining actual knowledge or notice from the Senior Secured Obligations Secured
Parties that it has possession of such Senior Secured Obligations Collateral or proceeds or
payments in respect thereof. Each Junior Secured Obligations Secured Party agrees that if, at any
time, it receives notice or obtains actual knowledge that all or part of any payment with respect
to any Senior Secured Obligations previously made shall be rescinded for any reason whatsoever,
such Junior Secured Obligations Secured Party shall promptly pay over to the Senior Representative
any payment received by it and then in its possession or under its control in respect of any
Collateral subject to
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any Senior Lien securing such Senior Secured Obligations and shall promptly turn any
Collateral subject to any such Senior Lien then held by it over to the Senior Representative, and
the provisions set forth in this Agreement shall be reinstated as if such payment had not been
made, until the payment and satisfaction in full of the Senior Secured Obligations. Anything
contained herein to the contrary notwithstanding, this Section 2.04(b) shall not apply to any
proceeds of Senior Secured Obligations Collateral realized in a transaction not prohibited by the
Senior Documents and as to which the possession or receipt thereof by the Junior Representative or
other Junior Secured Obligations Secured Party is otherwise permitted by the Senior Documents.
SECTION 2.05. Release of Liens; Automatic Release of Junior Liens.
(a) The Junior Representative and each other Junior Secured Obligations Secured Party agree
that (i) in the event the Senior Secured Obligations Secured Parties release their Lien on any
Senior Secured Obligations Collateral subject to any Junior Lien pursuant to the terms contained in
this Agreement (other than a release in connection with a sale, transfer or other disposition of
Senior Secured Obligations Collateral, which shall be governed by clause (a)(ii) below), such
Junior Lien on such Collateral shall terminate and be released automatically and without further
action unless, at the time of such release by the Senior Secured Obligations Secured Parties, an
Event of Default shall then have occurred and be continuing under the Junior Documents (provided
that any Junior Lien that would have otherwise been released and terminated pursuant to this clause
(a)(i) in the absence of such an Event of Default under the Junior Documents shall terminate and be
released automatically and without further action when such Event of Default (and all other Events
of Default under the Junior Documents) cease to exist); and (ii) in the event of a sale, transfer
or other disposition of Senior Secured Obligations Collateral subject to any Junior Lien
(regardless of whether or not an Event of Default has occurred and is continuing under the Junior
Documents at the time of such sale, transfer or other disposition), such Junior Lien on such
Collateral shall terminate and be released automatically and without further action if the
applicable Senior Liens on such Collateral are released and if such sale, transfer or other
disposition either (A) is then not prohibited by the Junior Documents (either pursuant to the terms
of the Junior Documents or pursuant to a consent issued thereunder) or (B) occurs in connection
with the foreclosure upon or other exercise of rights and remedies with respect to such Senior
Secured Obligations Collateral; provided that such Junior Lien shall remain in place with respect
to any proceeds of a sale, transfer or other disposition under this clause (a)(ii) that remain
after the associated Discharge of Senior Secured Debt Obligations. In addition, for the avoidance
of doubt, the Junior Representative and each Junior Secured Obligations Secured Party agree that,
with respect to any property or assets that would otherwise constitute Senior Secured Obligations
Collateral, the requirement that a Junior Lien attach to, or be perfected with respect to, such
property or assets shall be waived automatically and without further action so long as the
requirement that a Senior Lien attach to, or be perfected with respect to, such property or assets
is waived by the Senior Secured Obligations Secured Parties (or the Senior Representative) in
accordance with the Senior Documents and so long as no Event of Default under the Junior Documents
shall have occurred, be continuing or would result therefrom at such time. Notwithstanding the
foregoing, in the event of release of Liens by the Senior Secured
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Obligations Secured Parties on all or substantially all of the Senior Secured Obligations
Collateral (other than when such release occurs in connection with the Senior Secured Obligations
Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such
Collateral), no release of the Junior Lien on such Senior Secured Obligations Collateral under this
Section 2.05 shall be made unless (A) consent to the release of such Junior Liens has been
given by the requisite percentage or number of the Junior Secured Obligations Secured Parties at
the time outstanding as provided for in the applicable Junior Documents and (B) PGI has delivered
an Officer’s Certificate to the ABL Agent, the Noteholder Collateral Agent and the Secured Debt
Representatives (if any) certifying that all such consents have been obtained.
(b) The ABL Agent and the Noteholder Collateral Agent agree for the benefit of the Grantors
that, with respect to the release of any Collateral, if the ABL Agent or Noteholder Collateral
Agent, as applicable, at any time receives:
(i) an Officer’s Certificate stating that (A) the signing officer has read Article
2 of this Agreement and understands the provisions and the definitions relating hereto, (B)
such officer has made such examination or investigation as is necessary to enable such Persons
to express an informed opinion as to whether or not the conditions precedent in this Agreement
and all other Secured Documents, if any, relating to the release of such Collateral have been
complied with and (C) in the opinion of such officer, such conditions precedent, if any, have
been complied with;
(ii) prior to the associated Discharge of Senior Secured Debt Obligations, the written
confirmation of the applicable Senior Representative (or, at any time after the associated
Discharge of Senior Secured Debt Obligations, the Junior Representative) (such confirmation to
be given promptly following receipt of, and based solely on, the Officer’s Certificate
described in clause (i) above), in its view, such release is permitted by Section
2.05(a) and the respective Secured Documents governing the Noteholder Lien Obligations or
the ABL Debt Obligations, as applicable, the holders of which such Representative represents;
then the ABL Agent or Noteholder Collateral Agent, as applicable, will execute
(with such acknowledgements and/or notarizations as are required) and deliver such
release to the applicable Grantor on or before the later of (x) the date specified
in such request for such release and (y) the fifth business day (or such shorter
period as shall be acceptable to the Representative) after the date of receipt of
the items required by this Section 2.05(b) by the applicable
Representative.
(c) The Junior Representative agrees to execute and deliver (at the sole cost and expense of
the Grantors) all such releases and other instruments as shall reasonably be requested by the
Senior Representative to evidence and confirm any release of Junior Secured Obligations Collateral
provided for in this Section 2.05.
SECTION 2.06. Certain Agreements With Respect to Insolvency or Liquidation
Proceedings.
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(a) This Agreement shall continue in full force and effect, notwithstanding the commencement
of any Insolvency or Liquidation Proceeding by or against Parent, PGI or any of PGI’s Subsidiaries.
(b) If Parent, PGI or any of its Subsidiaries shall become subject to a case under the
Bankruptcy Code and shall, as debtor(s)-in-possession, move for approval of financing (“DIP
Financing”) to be provided by one or more lenders (the “DIP Lenders”) under Section 364 of the
Bankruptcy Code or the use of cash collateral with the consent of the DIP Lenders under Section 363
of the Bankruptcy Code, each Junior Secured Obligations Secured Party agrees that it will raise no
objection to any such financing or to the Liens on the Senior Secured Obligations Collateral
securing the same (“DIP Financing Liens”), or to any use of cash collateral that constitutes Senior
Secured Obligations Collateral, unless the Senior Secured Obligations Secured Parties, or Senior
Representative, shall then oppose or object to such DIP Financing in which case, each Junior
Secured Obligations Secured Party may raise an objection to such DIP Financing or such use of cash
collateral only to the extent of and consistent in all respects with the opposition or objection of
the Senior Secured Obligations Secured Parties or Senior Representative, as applicable (and, to the
extent that such DIP Financing Liens or use of such cash collateral or such DIP Financing Liens are
senior to, or rank pari passu with, the Senior Liens, the Junior Representative will, for itself
and on behalf of the other Junior Secured Obligations Secured Parties, subordinate the Junior Liens
on the Senior Secured Obligations Collateral to the Senior Liens and the DIP Financing Liens), so
long as the Junior Secured Obligations Secured Parties retain their Liens on all the Junior Secured
Obligations Collateral, including proceeds thereof arising after the commencement of any Insolvency
or Liquidation Proceeding, with the same priority as existed prior to the commencement of the case
under the Bankruptcy Code. Nothing in this Agreement shall limit (x) the right of any Senior
Secured Obligations Secured Parties to consent to the use of cash collateral or consent to or
provide any DIP Financing on terms other than the terms set forth herein or (y) the right of any
Junior Secured Obligations Secured Parties to object to such DIP Financing or use of Senior Secured
Obligations cash collateral on terms other than those set forth herein; provided that any Lien on
ABL First Lien Collateral securing any DIP Financing provided by any Noteholder Lien Secured
Parties shall be subject to the priorities set forth herein and any Lien on Noteholder First Lien
Collateral securing any DIP Financing provided by any ABL Secured Parties shall be subject to the
priorities set forth herein.
(c) Each Junior Secured Obligations Secured Party agrees that it will not object to or oppose
a sale or other disposition of any Senior Secured Obligations Collateral (or any portion thereof)
under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code if the
Senior Secured Obligations Secured Parties shall have consented to such sale or disposition of such
Senior Secured Obligations Collateral and all Senior Liens and Junior Liens will attach to the
proceeds of the sale.
(d) (i) No Noteholder Lien Secured Party shall object to or oppose (or support the objection
or opposition of any other Person) in any Insolvency or Liquidation Proceeding to (A) any motion or
other request by any ABL Secured Party for adequate protection with respect to ABL Agent’s Liens
upon the ABL First Lien Collateral,
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including any claim of any ABL Secured Party to post-petition interest as a result of the ABL
Lien on the ABL First Lien Collateral (so long as any post-petition interest paid as a result
thereof is not paid from the proceeds of Noteholder First Lien Collateral), a request for the
application of proceeds of ABL First Lien Collateral to the ABL Debt Obligations, and request for
replacement Liens on post-petition assets of the same type as the ABL First Lien Collateral, or (B)
any objection or opposition by any ABL Secured Party to any motion, relief, action or proceeding
based on such ABL Secured Party claiming a lack of adequate protection with respect to the ABL
Liens in the ABL First Lien Collateral. In addition, the ABL Agent, for itself and on behalf of
the ABL Secured Parties, may seek adequate protection of its junior interest in the Noteholder
First Lien Collateral, subject to the provisions of this Agreement; provided, that (x) the
Noteholder Collateral Agent is granted adequate protection in the form of a replacement Lien on
post-petition assets of the same type as the Noteholder First Lien Collateral, and (y) such
adequate protection required by the ABL Agent is in the form of a replacement Lien on post-petition
assets of the same type as the Noteholder First Lien Collateral. Such Lien on post-petition
assets of the same type as the Noteholder First Lien Collateral, if granted to the ABL Agent, will
be subordinated to the adequate protection Liens granted in favor of the Noteholder Collateral
Agent on such post-petition assets, and, if applicable, to the DIP Financing Liens of the
Noteholder Collateral Agent or any other Noteholder Lien Secured Party on such post-petition assets
of the same type as the Noteholder First Lien Collateral. If the ABL Agent, for itself and on
behalf of the ABL Secured Parties, seeks or requires (or is otherwise granted) adequate protection
of its junior interest in the Noteholder First Lien Collateral in the form of a replacement Lien of
the post-petition assets of the same type as the Noteholder First Lien Collateral, then the ABL
Agent, for itself and the ABL Secured Parties, agrees that the Noteholder Collateral Agent shall
also be granted a replacement Lien on such post-petition assets as adequate protection of its
senior interest in the Noteholder First Lien Collateral and that the ABL Agent’s replacement Lien
shall be subordinated to the replacement Lien of the Noteholder Collateral Agent on the same basis
as the Liens of the ABL Agent on the Noteholder First Lien Collateral are subordinated to the Liens
of the Noteholder Collateral Agent on the Noteholder First Lien Collateral under this Agreement.
If the ABL Agent or any ABL Secured Party receives as adequate protection a Lien on post-petition
assets of the same type as the ABL First Lien Collateral, then such post-petition assets shall also
constitute ABL First Lien Collateral to the extent of any allowed claim of the ABL Secured Parties
secured by such adequate protection Lien and shall be subject to this Agreement.
(ii) No ABL Secured Party shall object to or oppose (or support the objection or opposition
of any other Person) in any Insolvency or Liquidation Proceeding to (A) any motion or other request
by any Noteholder Lien Secured Party for adequate protection of the Noteholder Collateral Agent’s
Liens upon any of the Noteholder First Lien Collateral, including any claim of any Noteholder Lien
Secured Party to post-petition interest as a result of the Noteholder Lien on the Noteholder First
Lien Collateral (so long as any post-petition interest paid as a result thereof is paid solely from
the proceeds of Noteholder First Lien Collateral), a request for the application of proceeds of
Noteholder First Lien Collateral to the Noteholder Debt Obligations, and request for replacement
Liens on post-petition assets of the same type as the Noteholder First Lien Collateral or (B) any
objection or opposition by any Noteholder Lien Secured Party to
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any motion, relief, action or proceeding based on such Noteholder Lien Secured Party claiming
a lack of adequate protection with respect to Noteholder Collateral Agent’s Liens in the Noteholder
First Lien Collateral. In addition, the Noteholder Collateral Agent, for itself and on behalf of
the Noteholder Secured Parties, may seek adequate protection of its junior interest in the ABL
First Lien Collateral, subject to the provisions of this Agreement; provided, that (x) the ABL
Agent is granted adequate protection in the form of a replacement Lien on post-petition assets of
the same type as the ABL First Lien Collateral, and (y) such adequate protection required by the
Noteholder Collateral Agent is in the form of a replacement Lien on post-petition assets of the
same type as the ABL First Lien Collateral. Such Lien on post-petition assets of the same type as
the ABL First Lien Collateral, if granted to the Noteholder Collateral Agent, will be subordinated
to the adequate protection Liens granted in favor of the ABL Agent on such post-petition assets,
and, if applicable, to the DIP Financing Liens of the ABL Agent or any other ABL Secured Party on
such post-petition assets of the same type as the ABL First Lien Collateral. If the Noteholder
Collateral Agent, for itself and on behalf of the Noteholder Lien Secured Parties, seeks or
requires (or is otherwise granted) adequate protection of its junior interest in the ABL First Lien
Collateral in the form of a replacement Lien on the post-petition assets of the same type as the
ABL First Lien Collateral, then the Noteholder Collateral Agent, for itself and the Noteholder Lien
Secured Parties, agrees that the ABL Agent shall also be granted a replacement Lien on such
post-petition assets as adequate protection of its senior interest in the ABL First Lien Collateral
and that the Noteholder Collateral Agent’s replacement Lien shall be subordinated to the
replacement Lien of the ABL Agent on the same basis as the Liens of the Noteholder Collateral Agent
on the ABL First Lien Collateral are subordinated to the Liens of the ABL Agent on the ABL First
Lien Collateral under this Agreement. If the Noteholder Collateral Agent or any Noteholder Lien
Secured Party receives as adequate protection a Lien on post-petition assets of the same type as
the Noteholder First Lien Collateral, then such post-petition assets shall also constitute
Noteholder First Lien Collateral to the extent of any allowed claim of the Noteholder Lien Secured
Parties secured by such adequate protection Lien and shall be subject to this Agreement.
(e) Prior to Discharge of the Senior Secured Debt Obligations and any DIP Financing provided
by the Senior Secured Obligations Secured Parties, no Junior Secured Obligations Secured Party
shall seek relief from the automatic stay in any Insolvency or Liquidation Proceeding with respect
to any Senior Secured Obligations Collateral unless (i) otherwise consented to by the Senior
Representative or (ii) the Senior Representative or Senior Secured Obligations Secured Parties
shall have previously sought relief from the automatic stay with respect to such Collateral to
commence a lien enforcement action with respect to such Senior Secured Obligations Collateral.
SECTION 2.07. Reinstatement. In the event that any of the Senior Secured Obligations
shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason
(including an order or judgment for disgorgement of a preference under the Bankruptcy Code, or any
similar law, or the settlement of any claim in respect thereof), be required to be returned or
repaid, the terms and conditions of this Article II shall be fully applicable thereto until
all such Senior Secured Obligations shall again have been paid in full in cash.
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SECTION 2.08. Entry Upon Premises by the ABL Agent and the ABL Secured Parties.
(a) If the ABL Agent takes any enforcement action with respect to the ABL First Lien
Collateral, the Noteholder Lien Secured Parties (i) shall reasonably cooperate with the ABL Agent
(at the sole cost and expense of the ABL Agent and subject to the condition that the Noteholder
Lien Secured Parties shall have no obligation or duty to take any action or refrain from taking any
action that could reasonably be expected to result in the incurrence of any liability or damage to
the Noteholder Lien Secured Parties) in its efforts to enforce its security interest in the ABL
First Lien Collateral and to finish any work-in-process and assemble the ABL First Lien Collateral,
(ii) shall not take any action designed or intended to hinder or restrict in any respect the ABL
Agent from enforcing its security interest in the ABL First Lien Collateral or from finishing any
work-in-process or assembling the ABL First Lien Collateral, and (iii) subject to the rights of any
landlords under real estate leases, shall permit the ABL Agent, its employees, agents, advisers and
representatives, at the sole cost and expense of the ABL Secured Parties and upon reasonable
advance notice, to enter upon and use the Noteholder First Lien Collateral (including (x)
equipment, processors, computers and other machinery related to the storage or processing of
records, documents or files and (y) intellectual property), for a period not to exceed 180 days
after the taking of such enforcement action, for purposes of (1) assembling and storing the ABL
First Lien Collateral and completing the processing of and turning into finished goods of any ABL
First Lien Collateral consisting of work-in-process, (2) selling any or all of the ABL First Lien
Collateral located on such Noteholder First Lien Collateral, whether in bulk, in lots or to
customers in the ordinary course of business or otherwise, (3) removing any or all of the ABL First
Lien Collateral located on such Noteholder First Lien Collateral, or (4) taking reasonable actions
to protect, secure and otherwise enforce the rights of the ABL Secured Parties in and to the ABL
First Lien Collateral; provided, however, that nothing contained in this Agreement shall restrict
the rights of the Noteholder Collateral Agent from selling, assigning or otherwise transferring any
Noteholder First Lien Collateral prior to the expiration of such 180-day period if the purchaser,
assignee or transferee thereof agrees to be bound by the provisions of this Section. If any stay
or other order prohibiting the exercise of remedies with respect to the ABL First Lien Collateral
has been entered by a court of competent jurisdiction, such 180-day period shall be tolled during
the pendency of any such stay or other order. If the ABL Agent conducts a public auction or
private sale of the ABL First Lien Collateral at any of the real property included within the
Noteholder First Lien Collateral, the ABL Agent shall provide the Noteholder Collateral Agent with
reasonable notice and use reasonable efforts to hold such auction or sale in a manner which would
not unduly disrupt the Noteholder Collateral Agent’s use of such real property.
(b) During the period of actual occupation, use or control by the ABL Secured Parties or their
agents or representatives of any Noteholder First Lien Collateral, the ABL Secured Parties shall
(i) be responsible for the ordinary course third-party expenses related thereto, including costs
with respect to heat, light, electricity, water and real property taxes with respect to that
portion of any premises so used or occupied, and (ii) be obligated to repair at their expense any
physical damage to such Noteholder First
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Lien Collateral or other assets or property resulting from such occupancy, use or control, and
to leave such Noteholder First Lien Collateral or other assets or property in substantially the
same condition as it was at the commencement of such occupancy, use or control, ordinary wear and
tear excepted. The ABL Secured Parties agree to pay, indemnify and hold the Trustee and the
Noteholder Collateral Agent harmless from and against any third-party liability resulting from the
gross negligence or willful misconduct of the ABL Agent or any of its agents, representatives or
invitees in its or their operation of such facilities. Notwithstanding the foregoing, in no event
shall the ABL Secured Parties have any liability to the Noteholder Lien Secured Parties pursuant to
this Section as a result of any condition (including any environmental condition, claim or
liability) on or with respect to the Noteholder First Lien Collateral existing prior to the date of
the exercise by the ABL Secured Parties of their rights under this Section and the ABL Secured
Parties shall have no duty or liability to maintain the Noteholder First Lien Collateral in a
condition or manner better than that in which it was maintained prior to the use thereof by the ABL
Secured Parties, or for any diminution in the value of the Noteholder First Lien Collateral that
results solely from ordinary wear and tear resulting from the use of the Noteholder First Lien
Collateral by the ABL Secured Parties in the manner and for the time periods specified under this
Section 2.08. Without limiting the rights granted in this paragraph, the ABL Agent, to the
extent that rights have been exercised under this Section 2.08 by the ABL Agent, shall
cooperate with the Noteholder Lien Secured Parties in connection with any efforts made by the
Noteholder Lien Secured Parties to sell the Noteholder First Lien Collateral.
SECTION 2.09. Insurance. Unless and until written notice by the ABL Agent to the
Noteholder Collateral Agent that the Discharge of Senior Secured Debt Obligations in respect of the
ABL Debt Obligations has occurred, as between the ABL Agent, on the one hand, and the Noteholder
Collateral Agent, on the other hand, only the ABL Agent will have the right (subject to the rights
of the Grantors under the ABL Debt Documents and the Noteholder Lien Documents) to adjust or settle
any insurance policy or claim covering or constituting ABL First Lien Collateral in the event of
any loss thereunder and to approve any award granted in any condemnation or similar proceeding
affecting the ABL First Lien Collateral. Unless and until written notice by the Noteholder
Collateral Agent to the ABL Agent that the Noteholder Lien Obligations have been paid in full, as
between the ABL Agent, on the one hand, and the Noteholder Collateral Agent, on the other hand,
only the Noteholder Collateral Agent will have the right (subject to the rights of the Grantors
under the ABL Debt Documents and the Noteholder Lien Documents) to adjust or settle any insurance
policy covering or constituting Noteholder First Lien Collateral in the event of any loss
thereunder and to approve any award granted in any condemnation or similar proceeding solely
affecting the Noteholder First Lien Collateral. To the extent that an insured loss covers or
constitutes both ABL First Lien Collateral and Noteholder First Lien Collateral, then the ABL Agent
and the Noteholder Collateral Agent will work jointly and in good faith to collect, adjust or
settle (subject to the rights of the Grantors under the ABL Debt Documents and the Noteholder Lien
Documents) under the relevant insurance policy.
SECTION 2.10. Refinancings and Additional Secured Debt.
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(a) The ABL Debt Obligations and the Noteholder Lien Obligations may be Replaced, in whole or
in part, by any ABL Substitute Facility or Noteholder Substitute Facility, in each case, without
notice to, or the consent (except to the extent a consent is otherwise required to permit the
refinancing transaction under any ABL Debt Document or any Noteholder Lien Document) of any Secured
Party, all without affecting the Lien priorities provided for herein or the other provisions
hereof; provided, however, that the holders of any such ABL Substitute Facility or Noteholder
Substitute Facility (or an authorized agent or trustee on their behalf) bind themselves in writing
to the terms of this Agreement pursuant to such documents or agreements (including amendments or
supplements to this Agreement) as the Noteholder Collateral Agent or the ABL Agent, as the case may
be, shall reasonably request and in the form and substance reasonably acceptable to the Noteholder
Collateral Agent or the ABL Agent, as the case may be; it being understood that a Lien Sharing and
Priority Confirmation Joinder shall be a document reasonably acceptable to the Noteholder
Collateral Agent and ABL Collateral Agent. In connection with any Replacement contemplated by this
Section 2.10, this Agreement may be amended at the request and sole expense of the Company,
and without the consent of either Representative, (a) to add parties (or any authorized agent or
trustee therefor) providing any such ABL Substitute Facility or Noteholder Substitute Facility, (b)
to establish that Liens on any Noteholder First Lien Collateral securing such ABL Substitute
Facility or Noteholder Substitute Facility shall have the same priority as the Liens on any
Noteholder First Lien Collateral securing the indebtedness being refinanced or replaced, and (c) to
establish that the Liens on any ABL First Lien Collateral securing such ABL Substitute Facility or
Noteholder Substitute Facility shall have the same priority as the Liens on any ABL First Lien
Collateral securing the indebtedness being refinanced or replaced, all on the terms provided for
herein immediately prior to such refinancing or replacement.
(b) Each Grantor will be permitted to designate as an additional holder of Secured Debt
Obligations hereunder each Person who is, or who becomes, the registered holder of Noteholder Lien
Debt incurred by such Grantor after the date of this Agreement in accordance with the terms of all
applicable Secured Documents. Each Grantor may effect such designation by delivering to the
Noteholder Collateral Agent and the ABL Agent, each of the following:
(i) an Officer’s Certificate stating that such Grantor intends to incur Additional
Noteholder Lien Debt (“Additional Secured Debt”) which will be Noteholder Lien Debt
permitted by each applicable Secured Document to be incurred and secured by a Noteholder
Lien equally and ratably with all previously existing and future Noteholder Lien Debt;
(ii) an authorized agent, trustee or other representative on behalf of the holders or
lenders of any Additional Secured Debt must be designated as an additional holder of
Secured Debt Obligations hereunder and must, prior to such designation, sign and deliver on
behalf of the holders or lenders of such Additional Secured Debt a Lien Sharing and
Priority Confirmation Joinder, and, to the extent necessary or appropriate to facilitate
such transaction, a new
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intercreditor agreement substantially similar to this Agreement, as in effect on the
date hereof; and
(iii) evidence that Grantor has duly authorized, executed (if applicable) and recorded
(or caused to be recorded) in each appropriate governmental office all relevant filings and
recordations deemed necessary by such Grantor and the holder of such Additional Secured
Debt, or its Secured Debt Representative, to ensure that the Additional Secured Debt is
secured by the Collateral in accordance with the Noteholder Lien Security Documents.
Notwithstanding the foregoing, nothing in this Agreement will be construed to allow any Grantor to
incur additional indebtedness unless otherwise permitted by the terms of each applicable Secured
Document.
SECTION 2.11. No Interference.
(a) The ABL Secured Parties may agree to modify the terms of any of the ABL Debt Obligations
and grant extensions of the time of payment or performance to and make compromises (including
releases of Liens on the ABL First Lien Collateral or of guaranties) and settlements with any and
all Grantors and all other Persons, in each case, without the consent of the Noteholder Lien
Secured Parties and without affecting the agreements of the Noteholder Lien Secured Parties in this
Agreement. If an ABL Secured Party should amend or waive any provisions of the ABL Debt Documents,
whether or not any ABL Secured Party has knowledge that such amendment or waiver would result in a
breach of any Noteholder Lien Documents or an Event of Default under any Noteholder Lien Documents,
or knowledge of an act, condition or event which with notice or passage of time or both would
constitute an Event of Default under any Noteholder Lien Documents, in no event shall the ABL
Secured Parties have any liability to any Noteholder Lien Secured Parties as a result of such
breach and, without limiting the generality of the foregoing, the ABL Secured Parties shall not
have any liability for tortious interference with contractual relations or for inducement by the
ABL Secured Parties of any Grantor to breach any contract or otherwise. Nothing contained in this
Section 2.11(a) shall limit, impair or waive any right that the Noteholder Lien Secured Parties
have to enforce any of the provisions of the Noteholder Lien Documents against any Grantor and the
provisions of this Agreement against any ABL Secured Party.
(b) The Noteholder Lien Secured Parties may agree to modify the terms of any of the
Noteholder Lien Obligations and grant extensions of the time of payment or performance to and make
compromises (including releases of Liens on Noteholder First Lien Collateral or of guaranties) and
settlements with any and all Grantors and all other Persons, in each case, without the consent of
the ABL Secured Parties and without affecting the agreements of the ABL Secured Parties in this
Agreement. If a Noteholder Lien Secured Party should amend or waive any provisions of the
Noteholder Lien Documents, whether or not any Noteholder Lien Secured Party has knowledge that such
amendment or waiver would result in a breach of any ABL Debt Documents or an Event of Default under
any ABL Debt Documents, or knowledge of an act, condition or event
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which with notice or passage of time or both would constitute an Event of Default under any
ABL Debt Documents, in no event shall the Noteholder Lien Secured Parties have any liability to any
ABL Secured Parties as a result of such breach and, without limiting the generality of the
foregoing, the Noteholder Lien Secured Parties shall not have any liability for tortious
interference with contractual relations or for inducement by the Noteholder Lien Secured Parties of
any Grantor to breach any contract or otherwise. Nothing contained in this Section 2.11(b) shall
limit, impair or waive any right that the ABL Secured Parties have to enforce any of the provisions
of the ABL Documents against any Grantor and the provisions of this Agreement against any
Noteholder Lien Secured Party.
SECTION 2.12. Legends. The Grantors and ABL Agent acknowledge with respect to the
ABL Credit Agreement and the ABL Security Documents, on the one hand, and the Grantors and
Noteholder Collateral Agent acknowledge with respect to (a) the Indenture and the Indenture
Noteholder Security Documents and (b) the Additional Noteholder Lien Debt Facility and the
Additional Noteholder Lien Security Documents, if any, on the other hand, that the ABL Credit
Agreement, the Indenture, the Additional Noteholder Lien Debt Facility (if any) and each associated
Security Document granting any security interest in the Collateral will contain the appropriate
legend substantially in the form of Annex I. The Noteholder Collateral Agent shall have no
duty to assure that any such legend so appears, all such duties being that of Grantors.
SECTION 2.13. Junior Secured Obligations Secured Parties Rights as Unsecured
Creditors. Notwithstanding the provisions of Sections 2.02, 2.04(a) and
2.06(b), (c), (d) and (e) or otherwise, both before and during an
Insolvency or Liquidation Proceeding, any of the Junior Secured Obligations Secured Parties may
take any actions and exercise any and all rights that would be available to a holder of unsecured
claims, including, without limitation, the commencement of an Insolvency or Liquidation Proceeding
against Parent, PGI or any other Grantor in accordance with applicable law; provided, that the
Junior Secured Obligations Secured Parties may not take any of the actions prohibited by
Section 2.02, clauses (i) through (vii) of Section 2.04(a) or Section
2.06(b), (c), (d) and (e); provided, further, that in the event that
any of the Junior Secured Obligations Secured Parties becomes a judgment lien creditor in respect
of any Collateral as a result of its enforcement of its rights as an unsecured creditor with
respect to the Junior Secured Obligations, such judgment lien shall be subject to the terms of this
Agreement for all purposes (including in relation to the Senior Secured Obligations) as the other
Liens securing the Junior Secured Obligations are subject to this Agreement.
SECTION 2.14. Amendments to ABL Security Documents and Noteholder Lien Security
Documents.
(a) In the event the ABL Agent or any ABL Secured Party and the relevant Grantor enter into
any amendment, waiver or consent in respect of 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 Agent, such ABL Secured
Party, or any Grantor thereunder, then to the extent such amendment, waiver or consent applies
solely
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to ABL First Lien Collateral then such amendment, waiver or consent shall apply automatically
to any comparable provision of the comparable Noteholder Lien Security Documents without the
consent of the Noteholder Collateral Agent or the Noteholder Lien Secured Parties and without any
action by the Noteholder Collateral Agent or any Grantor, provided, that (A) no such amendment,
waiver or consent shall have the effect of (i) removing assets subject to the Lien of the
Noteholder Lien Security Documents, except to the extent that a release of such Lien is permitted
by Section 2.05 of this Agreement and provided that there is a corresponding release of the Lien
securing the ABL Debt Obligations, (ii) imposing duties on the Noteholder Collateral Agent without
its consent or (iii) permitting other Liens on the Collateral not permitted under the terms of the
Noteholder Lien Debt Documents or this Agreement and (B) notice of such amendment, waiver or
consent shall have been given to the Noteholder Collateral Agent within ten (10) Business Days
after the effective date of such amendment, waiver or consent.
(b) In the event the Noteholder Collateral Agent or any Noteholder Lien Secured Party and the
relevant Grantor enter into any amendment, waiver or consent in respect of any of the Noteholder
Lien Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to
any departures from any provisions of, any Noteholder Lien Security Document or changing in any
manner the rights of the Noteholder Collateral Agent, such Noteholder Lien Secured Party, or any
Grantor thereunder, then to the extent such amendment, waiver or consent applies solely to
Noteholder First Lien Collateral then such amendment, waiver or consent shall apply automatically
to any comparable provision of the comparable ABL Security Documents without the consent of the ABL
Agent or the ABL Secured Parties and without any action by the ABL Agent or any Grantor, provided,
that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject
to the Lien of the ABL Debt Security Documents, except to the extent that a release of such Lien is
permitted by Section 2.05 of this Agreement and provided that there is a corresponding release of
the Lien securing the Noteholder Lien Obligations, (ii) imposing duties on the ABL Agent without
its consent or (iii) permitting other Liens on the Collateral not permitted under the terms of the
ABL Debt Documents or this Agreement and (B) notice of such amendment, waiver or consent shall have
been given to the ABL Agent within ten (10) Business Days after the effective date of such
amendment, waiver or consent.
SECTION 2.15. Tracing of Proceeds.
Other than by virtue of a sale, transfer, conveyance or other disposition of Noteholder First
Lien Collateral for which the proceeds thereof have been segregated, all proceeds realized from the
sale, transfer, conveyance or other disposition of assets constituting Noteholder First Lien
Collateral shall lose their characterization as Noteholder First Lien Collateral and as “proceeds”
of Noteholder First Lien Collateral upon the receipt of such proceeds by or on behalf of PGI or any
Guarantor and application thereof to the obligations under the ABL Credit Agreement; provided that
if (i) written notice by the Noteholder Collateral Agent of an Event of Default under and as
defined in the Indenture has been delivered to the ABL Agent or (ii) an Insolvency or Liquidation
Proceeding has been initiated with respect to PGI or any Guarantor, all
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identifiable proceeds of Noteholder First Lien Collateral received by the Issuer or any
Guarantor thereafter shall constitute Noteholder First Lien Collateral.
ARTICLE III
Gratuitous Bailment for Perfection of Certain Security Interests; Rights Under Permits and Licenses
SECTION 3.01. General. The Senior Representative agrees that if it shall at any time
hold a Senior Lien on any Junior Secured Obligations Collateral that can be perfected by the
possession or control of such Collateral or of any account in which such Collateral is held, and if
such Collateral or any such account is in fact in the possession or under the control of the Senior
Representative, the Senior Representative will serve as gratuitous bailee for the Junior
Representative for the sole purpose of perfecting the Junior Lien of the Junior Representative on
such Collateral. It is agreed that the obligations of the Senior Representative and the rights of
the Junior Representative and the other Junior Secured Obligations Secured Parties in connection
with any such bailment arrangement will be in all respects subject to the provisions of Article II.
Notwithstanding anything to the contrary herein, the Senior Representative will be deemed to make
no representation as to the adequacy of the steps taken by it to perfect the Junior Lien on any
such Collateral and shall have no responsibility, duty, obligation or liability to the Junior
Representative or other Junior Secured Obligations Secured Party or any other person for such
perfection or failure to perfect, it being understood that the sole purpose of this Article is to
enable the Junior Secured Obligations Secured Parties to obtain a perfected Junior Lien in such
Collateral to the extent, if any, that such perfection results from the possession or control of
such Collateral or any such account by the Senior Representative. Subject to Section 2.07
and to the Senior Representative receiving such indemnifications as shall be required by such
Senior Representative, from and after the associated Discharge of Senior Secured Debt Obligations,
the Senior Representative shall take all such actions in its power as shall reasonably be requested
by the Junior Representative (at the sole cost and expense of the Grantors) to transfer possession
of such Collateral in its possession (in each case to the extent the Junior Representative has a
Lien on such Collateral after giving effect to any prior or concurrent releases of Liens) to the
Junior Representative (and with respect to any Collateral constituting ABL First Lien Collateral,
to the Noteholder Collateral Agent for the benefit of all applicable Junior Secured Obligations
Secured Parties).
SECTION 3.02. Deposit Accounts.
(a) The Grantors, to the extent required by the ABL Credit Agreement, may from time to time
establish deposit accounts (the “Deposit Accounts”) with certain depositary banks in which
collections from Inventory and Accounts may be deposited. To the extent that any such Deposit
Account is under the control of the ABL Agent and Noteholder Lien Secured Parties at any time, the
ABL Agent will act as gratuitous bailee and agent for the Noteholder Collateral Agent for the
purpose of perfecting the Liens of the Noteholder Lien Secured Parties in such Deposit Accounts and
the cash and other
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assets therein as provided in Section 3.01 (but will have no duty, responsibility or
obligation to the Noteholder Lien Secured Parties (including, without limitation, any duty,
responsibility or obligation as to the maintenance of such control, the effect of such arrangement
or the establishment of such perfection). Unless the Junior Liens on such ABL First Lien
Collateral shall have been or concurrently are released, after the occurrence of Discharge of
Senior Secured Debt Obligations, the ABL Agent shall, to the extent that the same are then under
the sole dominion and control of the ABL Agent and that such action is otherwise within the power
and authority of the ABL Agent pursuant to the ABL Documents, at the request of the Noteholder
Collateral Agent, cooperate with the Grantors and the Noteholder Collateral Agent (at the expense
of the Grantors) in permitting control of any Deposit Accounts to be transferred to the Noteholder
Collateral Agent (or for other arrangements with respect to each such Deposit Accounts satisfactory
to the Noteholder Collateral Agent to be made).
(b) The Grantors, the Representatives, the Secured Parties and all other parties hereto agree
that only proceeds of the Noteholder First Lien Collateral may be deposited in the Collateral
Proceeds Account and the Grantors agree to so instruct each account debtor of each Grantor and each
other applicable Person and to take all other actions necessary to give effect to the intent of
this Section 3.02(b). Without limiting the generality of the foregoing, the Noteholder
Collateral Agent hereby agrees that if the Collateral Proceeds Account contains any proceeds of the
ABL First Lien Collateral, it shall hold such proceeds in trust for the ABL Secured Parties and
transfer such proceeds to the ABL Secured Parties reasonably promptly after obtaining actual
knowledge or notice from the ABL Secured Parties that it has possession of such proceeds in
accordance with Section 2.04(b).
SECTION 3.03. Rights under Permits and Licenses. The Noteholder Collateral Agent
agrees that if the ABL Agent shall require rights available under any permit or license controlled
by the Noteholder Collateral Agent (as certified to the Noteholder Collateral Agent by the ABL
Agent, upon which the Noteholder Collateral Agent may rely) in order to realize on any ABL First
Lien Collateral, the Noteholder Collateral Agent shall (subject to the terms of the Indenture,
including the Noteholder Collateral Agent’s rights to indemnification thereunder) take all such
actions as shall be available to it (at the sole expense of the Grantors), consistent with
applicable law and reasonably requested by the ABL Agent in writing, to make such rights available
to the ABL Agent, subject to the Noteholder Liens. The ABL Agent agrees that if the Noteholder
Collateral Agent shall require rights available under any permit or license controlled by the ABL
Agent (as certified to the ABL Agent by the Noteholder Collateral Agent, upon which the ABL Agent
may rely) in order to realize on any Noteholder First Lien Collateral, the ABL Agent shall (subject
to its right to receive indemnification) take all such actions as shall be available to it (at the
sole expense of the Grantors), consistent with applicable law and reasonably requested by the
Noteholder Collateral Agent in writing, to make such rights available to the Noteholder Collateral
Agent, subject to the ABL Liens.
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ARTICLE IV
Existence and Amounts of Liens and Obligations
Existence and Amounts of Liens and Obligations
Whenever a Representative shall be required, in connection with the exercise of its rights or
the performance of its obligations hereunder, to determine the existence or amount of any Senior
Secured Obligations (or the existence of any commitment to extend credit that would constitute
Senior Secured Obligations) or Junior Secured Obligations, or the existence of any Lien securing
any such obligations, or the Collateral subject to any such Lien, it may request that such
information be furnished to it in writing by the other Representative and shall be entitled to make
such determination on the basis of the information so furnished; provided, however, that if a
Representative shall fail or refuse reasonably promptly to provide the requested information, the
requesting Representative shall be entitled to make any such determination by such method as it
may, in the exercise of its good faith judgment, determine, including by reliance upon a
certificate of PGI. Each Representative may rely conclusively, and shall be fully protected in so
relying, on any determination made by it in accordance with the provisions of the preceding
sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no
liability to the Grantors or any of their Subsidiaries, any Secured Party or any other person as a
result of such determination.
ARTICLE V
Consent of Grantors
Consent of Grantors
Each Grantor hereby consents to the provisions of this Agreement and the intercreditor
arrangements provided for herein and agrees that the obligations of the Grantors under the Security
Documents will in no way be diminished or otherwise affected by such provisions or arrangements
(except as expressly provided herein).
ARTICLE VI
Representations and Warranties
Representations and Warranties
SECTION 6.01. Representations and Warranties of Each Party. Each party hereto
represents and warrants to the other parties hereto as follows:
(a) Such party is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has all requisite power and authority to enter into and
perform its obligations under this Agreement.
(b) This Agreement has been duly executed and delivered by such party.
(c) The execution, delivery and performance by such party of this Agreement (i) do not
require any consent or approval of, registration or filing with or any other action by any
governmental authority of which the failure to obtain could reasonably be expected to have a
Material Adverse Effect (as defined in the ABL Credit Agreement), (ii) will not violate any
applicable law or regulation or any order of any governmental authority or, to its knowledge, any
indenture, agreement or other
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instrument binding upon such party which could reasonably be expected to have a Material
Adverse Effect and (iii) will not violate the charter, by-laws or other organizational documents of
such party.
SECTION 6.02. Representations and Warranties of Each Representative. Each of the
Noteholder Collateral Agent and the ABL Agent represents and warrants to the other parties hereto
that it is authorized under the Noteholder Collateral Agency Agreement and the ABL Credit
Agreement, as the case may be, to enter into this Agreement.
ARTICLE VII
Payments
SECTION 7.01. Application of Proceeds.
(a) So long as the Discharge of Senior Secured Debt Obligations in respect of the ABL Debt
Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Grantor, all ABL First Lien Collateral or proceeds thereof received in
connection with the sale or other disposition of, or collection on, such ABL First Lien Collateral
upon the exercise of remedies or other enforcement action by either Representative or any ABL
Secured Party or Noteholder Lien Secured Party, shall be delivered to the ABL Agent and shall be
applied or further distributed by the ABL Agent to or on account of the ABL Debt Obligations in
such order, if any, as specified in the relevant ABL Debt Documents or as a court of competent
jurisdiction may otherwise direct. Upon the Discharge of Senior Secured Debt Obligations in
respect of ABL Debt Obligations, the ABL Agent shall deliver to the Noteholder Collateral Agent any
Collateral and proceeds of Collateral received or delivered to it pursuant to the preceding
sentence, in the same form as received, with any necessary endorsements, to be applied by the
Noteholder Collateral Agent to the Noteholder Lien Obligations in such order as specified in the
Noteholder Lien Documents (subject to Section 7.04 below) or as a court of competent jurisdiction
may otherwise direct.
(b) So long as the Discharge of Senior Secured Debt Obligations in respect of the Noteholder
Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Grantor, all Noteholder First Lien Collateral or proceeds thereof
received in connection with the sale or other disposition of, or collection on, such Noteholder
First Lien Collateral upon the exercise of remedies or other enforcement action by either
Representative or any Noteholder Lien Secured Party or ABL Secured Party, shall be delivered to the
Noteholder Collateral Agent and shall be applied by the Noteholder Collateral Agent to the
Noteholder Lien Obligations in such order as specified in the relevant Noteholder Lien Documents or
as a court of competent jurisdiction may otherwise direct provided that if at such time a Covered
Action shall have occurred and the Discharge of the Senior Secured Debt Obligations in respect of
the Tranche 2 Sub-Facility Obligations has not
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occurred, then Section 7.04 shall apply for the benefit of the Tranche 2 Sub-Facility
Obligations. Upon the Discharge of Senior Secured Debt Obligations in respect of Noteholder Lien
Obligations, the Noteholder Collateral Agent shall deliver to the ABL Agent any Collateral and
proceeds of Collateral received or delivered to it pursuant to the preceding sentence, in the same
form as received, with any necessary endorsements to be applied by the ABL Agent to the ABL Debt
Obligations in such order as specified in the ABL Debt Documents or as a court of competent
jurisdiction may otherwise direct.
SECTION 7.02. Payments Over in Violation of Agreement. So long as the Discharge of
Senior Secured Debt Obligations in respect of either the ABL Debt Obligations or the Noteholder
Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Grantor, any Collateral received by either Representative or any
Noteholder Lien Secured Party or ABL Secured Party in connection with the exercise of any right,
power, or remedy (including set-off) relating to the Collateral in contravention of this Agreement
shall be segregated and held in trust and forthwith paid over to the appropriate Senior
Representative for the benefit of the holders of the applicable Senior Secured Obligations in the
same form as received, with any necessary endorsements or as a court of competent jurisdiction may
otherwise direct. Each Representative is hereby authorized by the other Representative to make any
such endorsements as agent for the other Representative or any Noteholder Lien Secured Party or ABL
Secured Party, as applicable. This authorization is coupled with an interest and is irrevocable
until the Discharge of Senior Secured Debt Obligations in respect of both the ABL Debt Obligations
and the Noteholder Lien Obligations.
SECTION 7.03. Application of Payments. Subject to the other terms of this Agreement
including, without limitation Section 7.04, all payments received by (a) the ABL Agent or
the ABL Secured Parties may be applied, reversed and reapplied, in whole or in part, to the ABL
Debt Obligations to the extent provided for in the ABL Debt Documents and (b) the Noteholder
Collateral Agent or the Noteholder Lien Secured Parties may be applied, reversed and reapplied, in
whole or in part, to the Noteholder Lien Obligations to the extent provided for in the Noteholder
Lien Documents.
SECTION 7.04. Application of Payment in Respect of Noteholder First Lien Collateral In
Connection with Covered Actions. So long as the Discharge of the Senior Secured Debt
Obligations in respect of the Tranche 2 Sub-Facility Obligations has not occurred, the Tranche 2
Sub-Facility Obligations shall be entitled to be paid out of the proceeds of Noteholder First Lien
Collateral to the extent set forth in the Noteholder Collateral Agency Agreement. Subject to the
Discharge of the Senior Secured Debt Obligations in respect of the Tranche 2 Sub-Facility
Obligations, the Noteholder Collateral Agent and the Noteholder Lien Secured Parties shall be
subrogated to the rights of the ABL Agent to receive distributions in respect of the Noteholder
First Lien Collateral with respect to the Tranche 2 Sub-Facility Obligations until the Discharge of
the Senior Secured Oblgiations in respect of the Noteholder Lien Obligations.
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ARTICLE VIII
Miscellaneous
Miscellaneous
SECTION 8.01. Notices. All notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
(a) if to the ABL Agent, to it at Citibank, N.A., 000 Xxxxxxxxx Xxxxxx, 0/X, Xxx Xxxx, XX
00000, Attention: Xxxxxxx Xxxxxx, Telephone: (000) 000-0000, Facsimile No.: (000) 000-0000, Email:
xxxxxxx.xxxxxx@xxxx.xxx,with a copy ot Citigroup Global Loans, 0000 Xxxxx Xxxx, Xxx Xxxxxx, XX
00000, Attention: Xxxxxx Xxxxxx, Telephone: (000) 000-0000, Email: xxxxxx.x.xxxxxx@xxxx.xxx;
(b) if to the Noteholder Collateral Agent, to it at Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention Corporate Client Series — Polymer
Group, Inc., Facsimile No.: (000) 000-0000;
(c) if to the Grantors, to Polymer Group, Inc., 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: General Counsel, Facsimile No.: (000) 000-0000; and
(d) and if to any other Secured Debt Representative, to such address as specified in the Lien
Sharing and Priority Confirmation Joinder.
Any party hereto may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto (and for this purpose a notice to PGI shall be
deemed to be a notice to each Grantor). All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to have been given on
the date of receipt (if a business day) and on the next business day thereafter (in all other
cases) at the address of such party as provided in this Section 8.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this Section 8.01.
As agreed to in writing among PGI, on behalf of the Grantors, the Noteholder Collateral Agent and
the ABL Agent from time to time, notices and other communications may also be delivered by e-mail
to the e-mail address of a representative of the applicable person provided from time to time by
such person.
SECTION 8.02. Waivers; Amendment.
(a) No failure or delay on the part of any party hereto in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this Agreement or consent
to any departure by any party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in
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the specific instance and for the purpose for which given. No notice or demand on any party
hereto in any case shall entitle such party to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any provision hereof may be terminated, waived, amended or
modified except pursuant to an agreement or agreements in writing entered into by each
Representative and PGI, on behalf of the Grantors; provided, however, that this Agreement may be
amended from time to time (x) as provided in Sections 2.10 and 2.14 and (y) at the
sole request and expense of PGI, and without the consent of either Representative, to add, pursuant
to the Intercreditor Agreement Joinder, additional Grantors whereupon such Person will be bound by
the terms hereof to the same extent as if it had executed and delivered this Agreement as of the
date hereof. Any amendment of this Agreement that is proposed to be effected without the consent
of a Representative as permitted by the proviso to the preceding sentence shall be submitted to
such Representative for its review at least 5 business days (or such shorter period as shall be
acceptable to such Representative) prior to the proposed effectiveness of such amendment; provided,
that no prior review shall be required for the joinder of a Grantor pursuant to a joinder in the
form of Exhibit A.
SECTION 8.03. Parties in Interest. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns, as well as the other
Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of,
this Agreement.
SECTION 8.04. Survival of Agreement. All covenants, agreements, representations and
warranties made by any party in this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 8.05. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original but all of which when taken together shall constitute a single
contract. Delivery of an executed signature page to this Agreement by facsimile transmission (or
other electronic transmission) shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 8.06. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The
parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 8.07. Governing Law; Jurisdiction; Consent to Service of Process.
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(a) This Agreement shall be construed in accordance with and governed by the laws of the
State of New York.
(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in
New York, New York and of the United States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right
that any party hereto may otherwise have to bring any action or proceeding relating to this
Agreement in the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement in any
court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 8.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by law.
SECTION 8.08. WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
SECTION 8.09. Headings. Article, Section and Annex headings used herein are for
convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 8.10. Conflicts. In the event of any conflict or inconsistency between the
provisions of this Agreement and the provisions of any Secured Documents, the provisions of this
Agreement shall control; provided, however, that if any of the provisions of the Noteholder Lien
Security Documents limit, qualify or conflict with the duties imposed by the provisions of the TIA,
the TIA shall control.
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SECTION 8.11. Provisions Solely to Define Relative Rights. The provisions of this Agreement
are and are intended solely for the purpose of defining the relative rights of the ABL Secured
Parties, on the one hand, and the Noteholder Lien Secured Parties, on the other hand. None of the
Grantors or any other creditor thereof shall have any rights or obligations hereunder, except as
expressly provided in this Agreement (provided that nothing in this Agreement (other than
Sections 2.05, 2.06, 2.10, 2.14 or Article VIII) is
intended to or will amend, waive or otherwise modify the provisions of the ABL Credit Agreement or
the Indenture), and no Grantor may rely on the terms hereof (other than Sections 2.05,
2.06, 2.10, 2.14 Article VI and Article VIII). Nothing in
this Agreement is intended to or shall impair the obligations of Grantors, which are absolute and
unconditional, to pay the Obligations under the Secured Documents as and when the same shall become
due and payable in accordance with their terms. Notwithstanding anything to the contrary herein or
in any Secured Document, the Grantors shall not be required to act or refrain from acting (a)
pursuant to this Agreement or any Noteholder Lien Document with respect to any ABL First Lien
Collateral in any manner that would cause a default under any ABL Debt Document, or (b) pursuant to
this Agreement or any ABL Debt Document with respect to any Noteholder First Lien Collateral in any
manner that would cause a default under any Noteholder Lien Document.
SECTION 8.12. Certain Terms Concerning the Noteholder Collateral Agent. The
Noteholder Collateral Agent is executing and delivering this Agreement solely in its capacity as
such and pursuant to direction set forth in the Noteholder Collateral Agency Agreement; and in so
doing, the Noteholder Collateral Agent shall not be responsible for the terms or sufficiency of
this Agreement for any purpose. The Noteholder Collateral Agent shall have no duties or obligations
under or pursuant to this Agreement other than such duties as may be expressly set forth in this
Agreement as duties on its part to be performed or observed. In entering into this Agreement, or
in taking (or forbearing from) any action under or pursuant to the Agreement, the Noteholder
Collateral Agent shall have and be protected by all of the rights, immunities, indemnities and
other protections granted to it under the Indenture (including without limitation Sections
7.01, 7.02, 7.07 and 10.11 thereof) and the Noteholder Lien Security
Documents.
SECTION 8.13. Certain Terms Concerning ABL Agent and Noteholder Collateral Agent; Force
Majeure. Neither the ABL Agent nor the Noteholder Collateral Agent shall have any liability or
responsibility for the actions or omissions of any other Secured Party, or for any other Secured
Party’s compliance with (or failure to comply with) the terms of this Agreement. Neither the ABL
Agent nor the Noteholder Collateral Agent shall have individual liability to any Person if it shall
mistakenly pay over or distribute to any Secured Party (or the Grantors) any amounts in violation
of the terms of this Agreement, so long as the ABL Agent or the Noteholder Collateral Agent, as the
case may be, is acting in good faith. Neither the ABL Agent nor the Noteholder Collateral Agent
shall be responsible for or liable for any failure or delay in the performance of its obligations
under this Agreement arising out of or caused by, directly or indirectly, forces beyond its
reasonable control, including without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear
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or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software or hardware) services.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
| CITIBANK, N.A., as ABL Agent |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| WILMINGTON TRUST COMPANY, as Noteholder Collateral Agent |
||||
| By | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Financial Services Officer | |||
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| SCORPIO ACQUISITION CORPORATION |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
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| POLYMER GROUP, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President, General Counsel and Secretary | |||
| PGI POLYMER, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Secretary | |||
| CHICOPEE, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Secretary | |||
| FABRENE, L.L.C. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Secretary | |||
| DOMINION TEXTILE (USA), L.L.C. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Secretary | |||
| PGI EUROPE, INC.. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Secretary | |||
-4-
ANNEX I
Provision for the ABL Credit Agreement, the Indenture and the Additional Noteholder Lien Debt
Facility
Reference is made to the Lien Subordination and Intercreditor Agreement, dated as of January 28,
2011, among CITIBANK, N.A., as ABL Agent (as defined in the Intercreditor Agreement) for the ABL
Secured Parties referred to therein; WILMINGTON TRUST COMPANY, as Noteholder Collateral Agent (as
defined in the Intercreditor Agreement); Scorpio Acquisition Corporation, Polymer Group, Inc.; and
the other Subsidiaries of Polymer Group, Inc. named therein (the “Intercreditor Agreement”). Each
[Lender hereunder] [holder of the [Indenture Notes][the notes issued under the Additional
Noteholder Lien Debt Facility]], by its acceptance of [the Indenture Notes] [the notes issued under
the Additional Noteholder Lien Debt Facility] (a) consents to the subordination of Liens provided
for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no actions
contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the
[ABL Agent] [Noteholder Collateral Agent [on behalf of each holder of Indenture Noteholder Lien
Debt Obligations][on behalf of each holder of Additional Noteholder Lien Debt Obligations] to enter
into the Intercreditor Agreement as [ABL Agent] [Noteholder Collateral Agent] on behalf of such
[holder of ABL Debt Obligations] [holder of Indenture Noteholder Lien Debt Obligations][holder of
Additional Noteholder Lien Debt Obligations]. The foregoing provisions are intended as an
inducement to the [ABL Lenders] [holders of Indenture Noteholder Lien Debt Obligations] [holders of
Additional Noteholder Lien Debt Obligations] to [extend credit to Borrowers] [to acquire the
[Indenture Notes][notes issued under the Additional Noteholder Lien Debt Facility] of PGI] and such
[ABL Lenders][holders of such [Indenture Notes][notes]] are intended third party beneficiaries of
such provisions and the provisions of the Intercreditor Agreement.
Provision for all ABL Security Documents, Indenture Noteholder Security Documents and the
Additional Noteholder Lien Security Documents that Grant a Security Interest in Collateral
Reference is made to the Lien Subordination and Intercreditor Agreement, dated as of January 28,
2011, among CITIBANK, N.A., as ABL Agent (as defined in the Intercreditor Agreement) for the ABL
Secured Parties referred to therein; WILMINGTON TRUST COMPANY, as Noteholder Collateral Agent (as
defined in the Intercreditor Agreement); Scorpio Acquisition Corporation, Polymer Group, Inc.; and
the other Subsidiaries of Polymer Group, Inc. named therein (the “Intercreditor Agreement”). Each
Person that is secured hereunder, by accepting the benefits of the security provided hereby, (i)
consents (or is deemed to consent), to the subordination of Liens provided for in the
Intercreditor Agreement, (ii) agrees (or is deemed to agree) that it will be bound by, and will
take no actions contrary to, the provisions of the Intercreditor Agreement, (iii) authorizes (or is
deemed to authorize) the [ABL Agent] [Noteholder Collateral Agent] on behalf of such Person
to enter into, and perform under, the Intercreditor Agreement and (iv) acknowledges (or is deemed
to acknowledge) that a copy of the Intercreditor Agreement was delivered, or made available, to
such Person.
Notwithstanding any other provision contained herein, this Agreement, the Liens created hereby and
the rights, remedies, duties and obligations provided for herein are subject in all respects to the
provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable
Security Documents (as defined in the Intercreditor Agreement). In the event of any conflict or
inconsistency between the provisions of this Agreement and the Intercreditor Agreement, the
provisions of the Intercreditor Agreement shall control.
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EXHIBIT A
to Intercreditor Agreement
to Intercreditor Agreement
[FORM OF]
INTERCREDITOR AGREEMENT JOINDER
INTERCREDITOR AGREEMENT JOINDER
The undersigned, _____________________, a _______________, hereby agrees to become party as a
[Grantor] under the Lien Subordination and Intercreditor Agreement dated as of January 28, 2011
(the “Intercreditor Agreement”) among Scorpio Acquisition Corporation, Polymer Group, Inc., the
Grantors from time to time party thereto, Citibank, N.A., as agent under the ABL Credit Agreement
(as defined therein) and Wilmington Trust Company, as collateral agent under the Noteholder
Collateral Agency Agreement and the Indenture (each as defined in the Intercreditor Agreement) and
the Additional Noteholder Lien Security Documents (as defined therein), if any; for all purposes
thereof on the terms set forth therein, and to be bound by the terms of the Intercreditor Agreement
as fully as if the undersigned had executed and delivered the Intercreditor Agreement as of the
date thereof.
The provisions of Article VIII of the Intercreditor Agreement will apply with like
effect to this Joinder.
IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement Joinder to be
executed by their respective officers or representatives as of ___________________, 20___.
| [___________________________] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [Notice Address] | ||||
EXHIBIT B
to Intercreditor Agreement
to Intercreditor Agreement
[FORM OF]
LIEN SHARING AND PRIORITY CONFIRMATION JOINDER
LIEN SHARING AND PRIORITY CONFIRMATION JOINDER
Reference is made to the Lien Subordination and Intercreditor Agreement, dated as of January
28, 2011 (as amended, supplemented, amended and restated or otherwise modified and in effect from
time to time, the “Intercreditor Agreement”) among Citibank, N.A., as ABL Agent for the ABL Secured
Parties (each such term as defined therein), Wilmington Trust Company, as Noteholder Collateral
Agent for the Noteholder Lien Secured Parties (each such term as defined therein), SCORPIO
ACQUISITION CORPORATION (“Parent”), POLYMER GROUP, INC. (“PGI”, together with Parent and Merger,
the “Initial Grantors”) and the Subsidiaries of PGI named therein.
Capitalized terms used but not otherwise defined herein shall have the meaning set forth in
the Intercreditor Agreement. This Lien Sharing and Priority Confirmation Joinder is being executed
and delivered pursuant to Section 2.10[a][b] of the Intercreditor Agreement as a condition
precedent to the debt for which the undersigned is acting as representative being entitled to the
rights and obligations of being additional secured debt under the Intercreditor Agreement.
1. Joinder. The undersigned, [_________________], a [_______________], (the “New
Representative”) as [trustee] [collateral trustee] [administrative agent] [collateral agent] under
that certain [described applicable indenture, credit agreement or other document governing the
additional secured debt] hereby:
(a) represents that the New Representative has been authorized to become a party to the
Intercreditor Agreement on behalf of the [ABL Secured Parties under an ABL Substitute
Facility][Indenture Noteholder Lien Secured Parties under the Noteholder Substitute
Facility][Additional Noteholder Lien Secured Parties under the Additional Noteholder Lien Debt
Facility] as [an ABL Agent under an ABL Substitute Facility] [a Noteholder Collateral Agent under a
Noteholder Substitute Facility] [a Secured Debt Representative] under the Intercreditor Agreement
for all purposes thereof on the terms set forth therein, and to be bound by the terms of the
Intercreditor Agreement as fully as if the undersigned had executed and delivered the Intercreditor
Agreement as of the date thereof; and
(b) agrees that its address for receiving notices pursuant to the Intercreditor Agreement
shall be as follows:
[Address];
2. Lien Sharing and Priority Confirmation.
[Option A: to be used if Additional Debt constitutes ABL Debt Obligations] The
undersigned New Representative, on behalf of itself and each holder of ABL Debt Obligations for
which the undersigned is acting as [collateral agent] hereby agrees, for
the benefit of all Secured Parties and each future Secured Debt Representative, and as a
condition to being treated as ABL Debt Obligations under the Intercreditor Agreement, that the New
Representative is bound by the provisions of the Intercreditor Agreement, including the provisions
relating to the ranking of ABL Liens. [or]
[Option B: to be used if Additional Debt constitutes a Series of Noteholder Lien Debt]
The undersigned New Representative, on behalf of itself and each holder of Obligations in respect
of the Series of Noteholder Lien Debt [that constitutes Noteholder Substitute Facility] for which
the undersigned is acting as [Secured Debt Representative][Noteholder Collateral Agent] hereby
agrees, for the benefit of all Secured Parties and each future Secured Debt Representative, and as
a condition to being treated as Secured Debt under the Intercreditor Agreement, that:
(a) all Noteholder Lien Obligations will be and are secured Equally and Ratably by all
Noteholder Liens at any time granted by the Initial Grantors or any other Grantor to secure any
Obligations in respect of such Series of Noteholder Lien Debt, whether or not upon property
otherwise constituting Collateral for such Series of Noteholder Lien Debt, and that all such
Noteholder Liens will be enforceable by the Noteholder Collateral Agent with respect to such Series
of Noteholder Lien Debt for the benefit of all holders of Noteholder Lien Obligations Equally and
Ratably;
(b) the New Representative and each holder of Obligations in respect of the Series of
Noteholder Lien Debt for which the undersigned is acting as [Secured Debt Representative] are bound
by the provisions of the Intercreditor Agreement, including the provisions relating to the ranking
of Noteholder Liens and the order of application of proceeds from enforcement of Noteholder Liens;
and
(c) the New Representative and each holder of Obligations in respect of the Series of
Noteholder Lien Debt for which the undersigned is acting as [Secured Debt Representative] appoints
the Noteholder Collateral Agent and consents to the terms of the Intercreditor Agreement and the
performance by the Noteholder Collateral Agent of, and directs the Noteholder Collateral Agent to
perform, its obligations under the Intercreditor Agreement and the Noteholder Collateral Agency
Agreement, together with all such powers as are reasonably incidental thereto.
3. Governing Law and Miscellaneous Provisions. The provisions of Article
VIII of the Intercreditor Agreement will apply with like effect to this Lien Sharing and
Priority Confirmation Joinder.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Lien Sharing and Priority Confirmation
Joinder to be executed by their respective officers or representatives as of [___________________,
20____].
| [insert name of New Representative] |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
The Noteholder Collateral Agent hereby acknowledges receipt of this Lien Sharing and Priority
Confirmation Joinder and agrees to act as Noteholder Collateral Agent for the New Representative
and the holders of the Obligations represented thereby:
| ____________________________, as Noteholder Collateral Agent |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
The ABL Agent hereby acknowledges receipt of this Lien Sharing and Priority Confirmation Joinder
and agrees to act as ABL Agent for the New Representative and the holders of the Obligations
represented thereby:
| ____________________________, as ABL Agent |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
-3-
