INTERCREDITOR AGREEMENT
Exhibit 10.9
This INTERCREDITOR AGREEMENT is dated as of October 13, 2010, and entered into by and between
UBS AG, Stamford Branch, in its capacity as collateral agent under the Revolving Loan Documents (as
defined below), including its successors and assigns in such capacity from time to time
(“Revolving Collateral Agent”), and Xxxxx Fargo Bank, National Association, in its capacity
as collateral agent under the Indenture and Notes Collateral Documents (as defined below),
including its successors and assigns in such capacity from time to time (“Notes Collateral
Agent”).
RECITALS
Xxxxx Intermediate Holdings Corp., a Delaware corporation (“Holdings”), Associated
Materials, LLC, a Delaware limited liability company (“AMLLC”), Gentek Holdings, LLC
(“GHLLC”) and Gentek Building Products, Inc. (“GBPI”, and, collectively with AMLLC
and GHLLC, the “US Borrowers”, and each, a “US Borrower”), Associated Material
Canada Limited (“AMCL”), Gentek Canada Holdings Limited (“GCHL”) and Gentek
Building Products Limited Partnership (“GBPLP” and collectively with AMCL, GCHL and the US
Borrowers, the “Revolving Borrowers”, and each, a “Revolving Borrower”), the banks,
financial institutions and other institutional lenders and investors from time to time parties
thereto, UBS AG, Stamford Branch, as US Administrative Agent, US Collateral Agent and Letter of
Credit Issuer, UBS AG, Canada Branch, as Canadian Administrative Agent and Canadian Collateral
Agent, Xxxxx Fargo Capital Finance, LLC, as Co-Collateral Agent and UBS Loan Finance LLC, as
Swingline Lender and Deutsche Bank Trust Company Americas, as Letter of Credit Issuer have entered
into that certain Revolving Credit Agreement dated as of the date hereof (the “Revolving Credit
Agreement”);
AMLLC, Xxxxx Acquisition Corp. (“Xxxxx”), Xxxxx New Finance, Inc. (“Finance
Sub”), certain other Subsidiaries of AMLLC (such Subsidiaries, each a “Notes Guarantor”
and collectively, jointly and severally, the “Notes Guarantors”) and Xxxxx Fargo Bank,
National Association, as Trustee (the “Trustee”) and Notes Collateral Agent, have entered
into that certain Indenture dated as of the date hereof (the “Indenture”), pursuant to
which Xxxxx’x and Finance Sub’s 9.125% senior secured notes due 2017 (the “Notes”) were
issued;
Pursuant to that certain Notes Security Agreement dated as of the date hereof (the “Notes
Security Agreement”), AMLLC and each of the Subsidiaries listed on Annex A thereto (together
with AMLLC, collectively, the “Notes Grantors”) and pursuant to that certain Notes Pledge
Agreement dated as of the date hereof (the “Notes Pledge Agreement”), AMLLC and each of the
Subsidiaries listed on Schedule 1 thereto (together with AMLLC, collectively, the “Notes
Pledgors”) have granted security interests in the Notes Collateral to the Notes Collateral
Agent to secure the Notes Obligations;
Pursuant to that certain US Security Agreement dated as of the date hereof (the “US
Revolving Security Agreement”), Holdings, AMLLC and each of the Subsidiaries listed on Annex A
thereto together with Holdings and AMLLC, collectively, the “US Revolving Grantors”) and
pursuant to that certain U.S. Revolving Pledge Agreement dated as of the date hereof (the
“Revolving Pledge Agreement”), Holdings, AMLLC and each of the Subsidiaries listed on
Schedule 1 thereto (together with AMLLC, collectively, the “US Revolving Pledgors”) have
granted security interests in the Revolving Collateral to the Revolving Collateral Agent to secure
the Revolving Obligations;
Pursuant to that certain US Guarantee dated as of the date hereof, Holdings, AMLLC and each of
the Subsidiaries listed on Annex A thereto have guaranteed certain of the Revolving Obligations;
The Revolving Obligations are to be secured (i) on a first priority basis by Liens on the
Revolving Priority Collateral and (ii) on a second priority basis by Liens on the Notes Priority
Collateral;
The Notes Obligations are to be secured (i) on a first priority basis by Liens on the Notes
Priority Collateral and (ii) on a second priority basis by Liens on the Revolving Priority
Collateral;
The Revolving Loan Documents and the Notes Documents provide, among other things, that the
parties thereto shall set forth in this Agreement their respective rights and remedies with respect
to the Collateral and certain other matters; and
Revolving Collateral Agent and Notes Collateral Agent have agreed to the intercreditor and
other provisions set forth in this Agreement.
AGREEMENT
In consideration of the foregoing, the mutual covenants and obligations herein set forth and
for other good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions.
1.1 UCC Terms. The following terms have the meanings given to them in the UCC and
terms used herein without definition that are defined in the UCC have the meanings given to them in
the UCC (such meanings to be equally applicable to both the singular and plural forms of the terms
defined): “account”, “account debtor”, “chattel paper”, “commercial
tort claim”, “deposit account”, “equipment”, “fixture”, “general
intangible”, “goods”, “instruments”, “inventory”, “letter-of-credit
right”, “proceeds”, “record”, “securities account”, “security”
and “supporting obligation”.
1.2 Defined Terms. As used in the Agreement, the following terms shall have the
following meanings:
“Agreement” means this Intercreditor Agreement.
“AMLLC” has the meaning set forth in the recitals to this Agreement.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as
now and hereafter in effect, or any successor statute.
“Bankruptcy Law” means the Bankruptcy Code and any other federal, state, or foreign
law for the relief of debtors.
“Business Day” means any day other than a Saturday, Sunday, or day on which commercial
banks in the state of New York are authorized or required by law to remain closed.
“Cash Collateral” has the meaning set forth in Section 6.2.
“Claimholders” means, with respect to the Revolving Obligations, all Revolving
Claimholders and with respect to the Notes Obligations, all Notes Claimholders.
“Collateral” means any and all of the assets and property of any Grantor, whether
real, personal or mixed, which constitute Revolving Collateral or Notes Collateral.
“Default Disposition” means any private or public Disposition of (i) all or any
material portion of the Revolving Priority Collateral by one or more Grantors with the consent of
Revolving Collateral Agent after the occurrence and during the continuance of a Revolving Default
(and prior to the Discharge of Revolving Obligations) or (ii) all or any material portion of the
Notes Priority Collateral by one or more Grantors with the consent of Notes Collateral Agent after
the occurrence and during the continuance of a Notes Default (and prior to the Discharge of Notes
Obligations), which Disposition is conducted by such Grantors with the consent of Revolving
Collateral Agent in the case of the former, or Notes Collateral Agent in the case of the latter, in
connection with good faith efforts by Revolving Collateral Agent or Notes Collateral Agent, as the
case may be, to collect the Revolving Obligations through the Disposition of Revolving Priority Collateral or the Notes Obligations
through the Disposition of Notes Priority Collateral.
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“DIP Financing” has the meaning set forth in Section 6.2.
“Discharge of Notes Obligations” means, except to the extent otherwise expressly
provided in Section 5.5(b), all Notes Obligations (other than contingent indemnification
obligations for which no underlying claim has been asserted) have been indefeasibly paid, performed
or discharged in full (with all such Notes Obligations consisting of monetary or payment
obligations having been paid in full in cash).
“Discharge of Revolving Obligations” means, except to the extent otherwise expressly
provided in Section 5.5(a): (a) all Revolving Obligations (other than contingent
indemnification obligations for which no underlying claim has been asserted) have been indefeasibly
paid, performed or discharged in full (with all such Revolving Obligations consisting of monetary
or payment obligations having been paid in full in cash), (b) no Person has any further right to
obtain any loans, letters of credit, bankers’ acceptances, or other extensions of credit under the
documents relating to such Revolving Obligations, and (c) any and all letters of credit, bankers’
acceptances or similar instruments issued under such documents have been cancelled and returned (or
backed by stand-by guarantees or cash collateralized) in accordance with the terms of such
documents.
“Disposition” or “Dispose” means the sale, assignment, transfer, license,
lease (as lessor), exchange, or other disposition (including any sale and leaseback transaction) of
any property by any person (or the granting of any option or other right to do any of the
foregoing).
“Enforcement Notice” shall mean a written notice delivered by either the Revolving
Collateral Agent or the Notes Collateral Agent to the other stating that a Revolving Default or
Notes Default, as applicable, has occurred and is continuing under the Revolving Credit Agreement
or the Indenture, as applicable, and that an Enforcement Period has commenced with respect to the
Revolving Priority Collateral or Notes Priority Collateral, as applicable, specifying the relevant
event of default, stating the current balance of the Revolving Obligations or the Note Obligations,
as applicable, and requesting the current balance of the Revolving Obligations or Note Obligations,
as applicable, owing to the noticed party.
“Enforcement Period” shall mean the period of time following the receipt by either the
Revolving Collateral Agent or the Notes Collateral Agent of an Enforcement Notice from the other
and continuing until the earliest of (a) in case of an Enforcement Period commenced by the Notes
Collateral Agent, the Discharge of Notes Obligations, (b) in the case of an Enforcement Period
commenced by the Revolving Collateral Agent, the Discharge of Revolving Obligations, or (c) the
Revolving Collateral Agent or the Notes Collateral Agent (as applicable) terminate, or agree in
writing to terminate, the Enforcement Period (including in connection with a waiver or cure of the
default that gave rise to such Enforcement Notice).
“Excluded Foreign Collateral” means (a) any Capital Stock of a Canadian Subsidiary (as
defined in the Revolving Credit Agreement) that is a Subsidiary of a AMLCC and (b) all assets and
property owned by the Excluded Foreign Grantors and subject to the Revolving Loan Documents,
including, without limitation, (x) all “Collateral” (as defined in the Canadian Security Agreement)
(as defined in the Revolving Credit Agreement)) and (y) all “Collateral” (as defined in the
Canadian Pledge Agreement (as defined in the Revolving Credit Agreement)).
“Excluded Foreign Grantors” means, collectively, all borrowers, guarantors and
grantors under the Revolving Loan Documents not organized under the laws of any state of the United
States or the District of Columbia, including, without limitation, the “Canadian Credit Parties”
(as defined in the Revolving Credit Agreement).
“Excluded Holdings Collateral” means (a) all assets and property owned by Holdings and
subject to the Revolving Loan Documents and (b) all “Collateral” (as defined in the US Revolving
Pledge Agreement) of Holdings.
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“Exercise any Secured Creditor Remedies” or “Exercise of Secured Creditor
Remedies” means (a) the taking of any action to enforce any Lien in respect 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, the Collateral, including the institution of any judicial or nonjudicial
foreclosure proceedings or having or seeking to have a trustee, receiver, liquidator or similar
official appointed for or over the Collateral or taking any action to take possession of the
Collateral, the noticing of any public or private sale or other Disposition pursuant to Article 9
of the UCC or any diligently pursued in good faith attempt to vacate or obtain relief from a stay
or other injunction restricting any other action described in this definition, (b) the exercise of
any right or remedy provided to a secured creditor under the Revolving Loan Documents or the Notes
Documents (including, in either case, any delivery of any notice to otherwise seek to obtain
payment directly from any account debtor of any Grantor or the taking of any action or the exercise
of any right or remedy in respect of the setoff or recoupment against the Collateral or proceeds of
Collateral), under applicable law, at equity, in an Insolvency Proceeding or otherwise, including
credit bidding or otherwise the acceptance of Collateral in full or partial satisfaction of a Lien,
(c) the sale, assignment, transfer, lease, license, or other Disposition of all or any portion of
the Collateral, by private or public sale or any other means, (d) the solicitation of bids from
third parties to conduct the liquidation of all or a material portion of Collateral to the extent
undertaken and being diligently pursued in good faith to consummate the Disposition of such
Collateral within a commercially reasonable time, (e) the engagement or retention of sales brokers,
marketing agents, investment bankers, accountants, appraisers, auctioneers, or other third parties
for the purposes of valuing, marketing, or Disposing of, all or a material portion of the
Collateral to the extent undertaken and being diligently pursued in good faith to consummate the
Disposition of such Collateral within a commercially reasonable time, (f) the exercise of any other
enforcement right relating to the Collateral (including the exercise of any voting rights relating
to any capital stock composing a portion of the Collateral or seeking relief from the automatic
stay) whether under the Revolving Loan Documents, the Notes Documents, under applicable law of any
jurisdiction, in equity, in an Insolvency Proceeding, or otherwise, or (g) the pursuit of Default
Dispositions relative to all or a material portion of the Collateral to the extent undertaken and
being diligently pursued in good faith to consummate the Disposition of such Collateral within a
commercially reasonable time but in all cases excluding (i) the establishment of borrowing base
reserves, collateral ineligibles, or other conditions for advances, (ii) the changing of advance
rates or advance sublimits, (iii) the imposition of a default rate or late fee, (iv) the collection
and application of accounts or other monies deposited from time to time in deposit accounts or
securities accounts, in each case, to the extent constituting Revolving Priority Collateral,
against the Revolving Obligations pursuant to the provisions of the Revolving Loan Documents
(including, without limitation, the notification of account debtors, depositary institutions or any
other Person to deliver proceeds of Collateral to the Revolving Collateral Agent), (v) the
cessation of lending pursuant to the provisions of the Revolving Loan Documents, including upon the
occurrence of a default on the existence of an overadvance, (vi) the filing of a proof of claim in
any Insolvency, (vii) the consent by the Revolving Collateral Agent to disposition by any Grantor
of any of the Revolving Priority Collateral (other than in connection with liquidation of the
Revolving Priority Collateral at the request of the Revolving Collateral Agent), and (viii) the
acceleration of the Notes Obligations or the Revolving Obligations.
“Finance Sub” has the meaning set forth in the recitals to this Agreement.
“Governmental Authority” means the government of the United States of America or any
other nation, any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank, or other entity exercising executive,
legislative, judicial, taxing, regulatory, or administrative powers or functions of or pertaining
to government.
“Grantors” means the US Revolving Grantors, the US Revolving Pledgors, the Notes
Grantors, the Notes Pledgors and each other person (other than the Excluded Foreign Grantors) that
may from time to time execute and deliver a Revolving Collateral Document or a Notes Collateral
Document as a “debtor,” “grantor,” or “pledgor” (or the equivalent thereof); provided that
Holdings is a “Grantor” solely with respect to the Revolving Collateral Documents and not with
respect to the Notes Collateral Documents.
“Holdings” has the meaning set forth in the recitals to this Agreement.
“Indenture” has the meaning set forth in the recitals to this Agreement.
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“Insolvency Proceeding” means:
(a) any voluntary or involuntary case or proceeding under any Bankruptcy Law with
respect to any Grantor;
(b) any other voluntary or involuntary insolvency or bankruptcy case or proceeding, or
any receivership, liquidation or other similar case or proceeding with respect to any
Grantor or with respect to a material portion of its assets;
(c) any liquidation, dissolution, or winding up of any Grantor (other than as permitted
by the Notes Documents and the Revolving Loan Documents) whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy; or
(d) any assignment for the benefit of creditors or any other marshaling of assets for
creditors of any Grantor or other similar arrangement in respect of such Grantor’s creditors
generally.
“Intellectual Property” means the “Intellectual Property” as that term is defined in
the Notes Security Agreement as in effect on the date hereof.
“Letters of Credit” means the “Letters of Credit,” as that term is defined in the
Revolving Credit Agreement.
“Lien” means any lien, mortgage, pledge, assignment, security interest, charge, or
encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement, and any lease in the nature thereof) and any option, trust, or
other preferential arrangement having the practical effect of any of the foregoing.
“Mortgage” means each mortgage, deed of trust or deed to secure debt pursuant to which
a Grantor grants to the (a) Revolving Collateral Agent, for the benefit of the Revolving
Claimholders, Liens upon the real estate Collateral owned by such Grantor, as security for the
Revolving Obligations or (b) Notes Collateral Agent, for the benefit of the Notes Claimholders,
Liens upon the real estate Collateral owned by such Grantor, as security for the Notes Obligations.
“Notes Claimholders” means holders of Notes, the Trustee, the Notes Collateral Agent
and any holders of, or trustees, collateral agents or other representatives with respect to, Other
Pari Passu Lien Obligations.
“Notes Collateral Agent” has the meaning set forth in the preamble to this Agreement.
“Notes Collateral” means any and all of the assets and property of any Grantor,
whether real, personal or mixed, with respect to which a Lien is granted as security for any Notes
Obligations. For the avoidance of doubt, the Notes Collateral shall not include any Excluded
Foreign Collateral or Excluded Holdings Collateral.
“Notes Collateral Documents” means the Notes Security Agreement, the Notes Pledge
Agreement and any other agreement pursuant to which a Lien is granted securing any Notes
Obligations or under which rights or remedies with respect to such Liens are governed.
“Notes Default” means any “Event of Default,” as such term is defined in the
Indenture, or any event of default under any other Notes Document.
“Notes Documents” means the Indenture, the Notes and the Notes Collateral Documents.
“Notes Grantors” has the meaning set forth in the recitals to this Agreement.
“Notes Guarantor” has the meaning set forth in the recitals to this Agreement.
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“Notes Obligations” means all obligations and all amounts owing, due, or secured under
the Notes Documents, and all Other Pari Passu Lien Obligations, whether now existing or arising
hereafter, including all principal,
premium, interest, fees, attorneys fees, costs, charges, expenses, reimbursement obligations,
indemnities, guarantees, and all other amounts payable under or secured by any Notes Document or
Other Pari Passu Lien Obligations Agreement (including, in each case, all amounts accruing on or
after the commencement of any Insolvency Proceeding relating to AMLLC).
“Notes Pledge Agreement” has the meaning set forth in the recitals to this Agreement.
“Notes Pledged Shares” means the “Pledged Shares” as defined in the Notes Pledge
Agreement.
“Notes Pledgors” has the meaning set forth in the recitals to this Agreement.
“Notes Priority Collateral” means all now owned or hereafter acquired Notes Collateral
that constitutes:
(i) all Notes Pledged Shares;
(ii) all equipment;
(iii) all Intellectual Property;
(iv) all Pledged Debt (as defined in the Notes Pledge Agreement);
(v) all Real Estate Assets;
(vi) all general intangibles, instruments, books and records and supporting obligations
related to the foregoing and proceeds of the foregoing (except to the extent any of the
foregoing constitute Revolving Priority Collateral; and
(viii) all other goods (including but not limited to fixtures) and assets of each Notes
Grantor not constituting Revolving Priority Collateral, Excluded Foreign Collateral or
Excluded Holdings Collateral, whether tangible or intangible and wherever located.
Notwithstanding the foregoing, the Notes Priority Collateral shall not include any Excluded
Foreign Collateral or Excluded Holdings Collateral.
“Notes Security Agreement” has the meaning set forth in the recitals to this
Agreement.
“Obligations” shall mean, as applicable, (a) all Revolving Obligations and (b) all
Notes Obligations.
“Other Pari Passu Lien Obligations” means indebtedness or other obligations of AMLLC,
Finance Sub or the Notes Guarantors issued following the date of this Agreement to the extent (a)
such indebtedness is not prohibited by the terms of the Revolving Credit Agreement, the Indenture
and each then extant Other Pari Passu Lien Obligations Agreement from being secured by Liens on the
Notes Collateral ranking pari passu with the Liens securing the Notes, (b) the Notes Grantors and
Notes Pledgors have granted Liens, consistent with clause (a), on the Notes Collateral to secure
the obligations in respect of such indebtedness, (c) such indebtedness or other obligations
constitute “Other Pari Passu Lien Obligations” as defined in the Indenture, and (d) the Other Pari
Passu Lien Obligations Agent, for the holders of such indebtedness has entered into a joinder
agreement on behalf of the holders under such agreement acknowledging that such holders shall be
bound by the terms hereof applicable to Notes Claimholders.
“Other Pari Passu Lien Obligations Agent” means the Person appointed to act as
trustee, agent or representative for the holders of Other Pari Passu Lien Obligations pursuant to
any Other Pari Passu Lien Obligations Agreement.
“Other Pari Passu Lien Obligations Agreement” means the indenture, credit agreement or
other agreement under which any Other Pari Passu Lien Obligations are incurred.
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“Person” means any natural person, corporation, trust, business trust, joint venture,
joint stock company, association, company, limited liability company, partnership, Governmental
Authority, or other entity.
“Pledged Collateral” has the meaning set forth in Section 5.4(a).
“Priority Collateral” with respect to the Revolving Claimholders, all Revolving
Priority Collateral, and with respect to the Notes Claimholders, all Notes Priority Collateral.
“Real Estate Asset” means, at any time of determination, any fee interest of AMLLC,
Finance Sub or any Notes Guarantor; in owned real property; provided that such asset has a
fair market value in excess of $5.0 million.
“Recovery” has the meaning set forth in Section 6.7.
“Refinance” means, in respect of any indebtedness, to refinance, modify, extend,
renew, defease, supplement, restructure, replace, refund or repay, or to issue other indebtedness
in exchange or replacement for such indebtedness, in whole or in part, whether with the same or
different lenders, arrangers and/or agents. “Refinanced” and “Refinancing” shall
have correlative meanings.
“Revolving Borrower” and “Revolving Borrowers” have the meanings set forth in
the recitals to this Agreement.
“Revolving Claimholders” means, at any relevant time, the holders of Revolving
Obligations at that time, including Revolving Lenders, Letter of Credit Issuers (as defined in the
Revolving Credit Agreement), Cash Management Banks (as defined in the Revolving Credit Agreement),
Hedge Banks (as defined in the Revolving Credit Agreement) and the Agents (as defined in the
Revolving Credit Agreement) and any lender, or duly appointed trustee or collateral agent or other
duly appointed agent with respect to any Revolving Obligations described in clause (ii) of the
definition thereof.
“Revolving Collateral” means all of the assets and property of any Grantor, whether
real, personal or mixed, with respect to which a Lien is granted as security for any Revolving
Obligations (but excluding, for purposes hereof, all Excluded Foreign Collateral and Excluded
Holdings Collateral).
“Revolving Collateral Agent” has the meaning set forth in the preamble to this
Agreement.
“Revolving Collateral Documents” means the US Revolving Security Agreement, the US
Revolving Pledge Agreement and any other agreement, document, or instrument pursuant to which a
Lien is granted securing any Revolving Obligation or under which rights or remedies with respect to
such Liens are governed.
“Revolving Credit Agreement” has the meaning set forth in the recitals to this
Agreement.
“Revolving Default” means any “Event of Default”, as such term is defined in the
Revolving Credit Agreement, or any event of default under any other Revolving Loan Document.
“Revolving Lenders” means the “Lenders” as defined in the Revolving Credit Agreement
and any lenders with respect to any Revolving Obligations described in clause (ii) of the
definition thereof.
“Revolving Loan Documents” means the Revolving Credit Agreement, the Revolving
Collateral Documents and each of the other Credit Documents (as defined in the Revolving Credit
Agreement) and any agreements under which any Revolving Obligations described in clause (ii) of the
definition thereof are incurred.
“Revolving Obligations” means (i) the “Obligations” as that term is defined in the
Revolving Credit Agreement and (ii) any other “Lenders Debt” as defined in the Indenture)
(including, in each case, all amounts accruing on or after the commencement of any Insolvency
Proceeding relating to any Grantor and all amounts that would have accrued or become due under the
terms of the Revolving Loan Documents but for the effect of the Insolvency Proceeding and irrespective of whether a claim for all or any portion of such amounts
is allowable or allowed in such Insolvency Proceeding).
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“Revolving Priority Collateral” means all now owned or hereafter acquired Revolving
Collateral that constitutes:
(i) all Accounts (except to the extent such accounts constitute proceeds of the Notes
Priority Collateral);
(ii) all Instruments, Chattel Paper and other contracts, in each case, evidencing or
substituted for any Accounts described in clause (i);
(iii) all Deposit Accounts and Securities Accounts into which any proceeds of Accounts
or Inventory are deposited (including all cash and other funds or other property held in or
on deposit therein, except to the extent constituting identifiable proceeds of the Notes
Priority Collateral or constituting Excluded Accounts (as defined in the US Revolving
Security Agreement));
(iv) all documents of title for any Inventory;
(v) all tax refunds;
(vi) all Inventory;
(vii) all guarantees, letters of credit, Letter -of -Credit Rights, security and other
credit enhancement, in each case, for the Accounts;
(viii) all commercial tort claims and general intangibles (other than Intellectual
Property) to the extent relating to any Accounts or Inventory;
(ix) all books and records pertaining to the foregoing; and
(x) all substitutions, replacements, accessions, products or proceeds (including,
without limitation, insurance proceeds) of any of the forgoing.
“Subsidiary” of a person means a corporation, partnership, limited liability company,
or other entity in which that person directly or indirectly owns or controls at least 50% of the
shares of capital stock having ordinary voting power to vote in the election of directors (or
appoint other comparable managers) of such corporation, partnership, limited liability company, or
other entity.
“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as
in effect in any applicable jurisdiction.
“US Revolving Grantors” has the meaning set forth in the recitals to this Agreement.
“US Revolving Pledge Agreement” has the meaning set forth in the recitals to this
Agreement.
“US Revolving Pledgors” has the meaning set forth in the recitals to this Agreement.
“US Revolving Security Agreement” has the meaning set forth in the recitals to this
Agreement.
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“Use Period” means the period commencing on the date that the Revolving Collateral
Agent (or any Revolving Claimholder acting with the consent of the Revolving Collateral Agent)
commences the Exercise of Secured Creditor Remedies in connection with any Revolving Priority
Collateral in a manner as provided in Section 3.8 (having theretofore furnished the Notes
Collateral Agent with an Enforcement Notice) and ending on the earlier to occur of (i) 180 days
thereafter and (ii) the Discharge of Revolving Obligations. If any stay or other order that prohibits
any of the Revolving Collateral Agent or the other Revolving Claimholders from
commencing and continuing to Exercise any Secured Creditor Remedies or to liquidate and sell the
Revolving Priority Collateral has occurred by operation of law or 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 and the Use Period shall be so extended and upon lifting of the automatic stay, if
there are fewer than 90 days remaining in such 180 day period, than such 180 day period shall be
extended so that the Revolving Collateral Agent and the Revolving Claimholders have 90 days upon
lifting of the automatic stay.
1.3 Construction. The definitions of terms in this Agreement 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.” The term
“or” shall be construed to have, except where otherwise indicated, the inclusive meaning
represented by the phrase “and/or.” Unless the context requires otherwise:
(a) except as otherwise provided herein, any definition of or reference to any
agreement, instrument, or other document herein shall be construed as referring to such
agreement, instrument, or other document as from time to time amended, restated,
supplemented, modified, renewed, extended, Refinanced, refunded, or replaced;
(b) any reference to any agreement, instrument, or other document herein “as in effect
on the date hereof” shall be construed as referring to such agreement, instrument, or other
document without giving effect to any amendment, restatement, supplement, modification, or
Refinance after the date hereof;
(c) any definition of or reference to Revolving Obligations or Notes Obligations herein
shall be construed as referring to the Revolving Obligations or Notes Obligations (as
applicable) as from time to time amended, restated, supplemented, modified, renewed,
extended, Refinanced, refunded, or replaced;
(d) any reference herein to any person shall be construed to include such person’s
successors and assigns;
(e) 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;
(f) all references herein to Sections shall be construed to refer to Sections of this
Agreement; and
(g) the words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts, and contract rights.
SECTION 2. Lien Priorities.
2.1 Relative Priorities. Notwithstanding the date, time, method, manner, or order of
grant, attachment, or perfection of any Liens securing (or purportedly securing) the Revolving
Obligations with respect to the Collateral or of any Liens securing (or purportedly securing) the
Notes Obligations with respect to the Collateral (including, in each case, irrespective of whether
any such Lien is granted (or secures Obligations relating to the period) before or after the
commencement of any Insolvency Proceeding) and notwithstanding any contrary provision of the UCC or
any other applicable law or the Revolving Loan Documents or the Notes Documents, as applicable, or
any defect or deficiencies in, or failure to attach or perfect, the Liens securing (or purportedly
securing) any of the Obligations, or any other circumstance whatsoever, the Notes Collateral Agent
and the Revolving Collateral Agent hereby agree that:
(a) any Lien with respect to the Revolving Priority Collateral securing any Revolving
Obligations now or hereafter held by or on behalf of, or created for the benefit of,
Revolving Collateral Agent
or any Revolving Claimholders or any agent or trustee therefor, regardless of how or
when acquired, whether by grant, possession, statute, operation of law, subrogation or
otherwise, shall be senior in all respects and prior to any Lien with respect to the
Revolving Priority Collateral securing any Notes Obligations;
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(b) any Lien with respect to the Notes Priority Collateral securing any Notes
Obligations now or hereafter held by or on behalf of, or created for the benefit of, Notes
Collateral Agent or any Notes Claimholders or any agent or trustee therefor, regardless of
how or when acquired, whether by grant, possession, statute, operation of law, subrogation
or otherwise, shall be senior in all respects and prior to any Lien with respect to the
Notes Priority Collateral securing any Revolving Obligations;
(c) any Lien with respect to the Revolving Priority Collateral securing any Notes
Obligations now or hereafter held by or on behalf of, or created for the benefit of, Notes
Collateral Agent, any Notes Claimholders or any agent or trustee therefor, regardless of how
or when acquired, whether by grant, possession, statute, operation of law, subrogation or
otherwise, shall be junior and subordinate in all respects to all Liens with respect to the
Revolving Priority Collateral securing any Revolving Obligations; and
(d) any Lien with respect to the Notes Priority Collateral securing any Revolving
Obligations now or hereafter held by or on behalf of, or created for the benefit of,
Revolving Collateral Agent, any Revolving Claimholders or any agent or trustee therefor,
regardless of how or when acquired, whether by grant, possession, statute, operation of law,
subrogation or otherwise, shall be junior and subordinate in all respects to all Liens with
respect to the Notes Priority Collateral securing any Notes Obligations.
The subordination of Liens provided for in this Agreement shall continue to be effective with
respect to any part of the Collateral from and after the date hereof whether such Liens are
declared, or ruled to be, invalid, unenforceable, void or not allowed by a court of competent
jurisdiction, as a result of any action taken by the Notes Collateral Agent or the Revolving
Collateral Agent, as applicable, or any failure by such person to take any action, with respect to
any financing statement (including any amendment to or continuation thereof), mortgage or other
perfection document.
2.2 Prohibition on Contesting Liens. Each of Notes Collateral Agent, for itself and
on behalf of each Notes Claimholder, and Revolving Collateral Agent, for itself and on behalf of
each Revolving Claimholder, agrees that it will not (and hereby waives any right to), directly or
indirectly, contest, or support any other person in contesting, in any proceeding (including any
Insolvency Proceeding): (a) the priority, validity, attachment, perfection or enforceability of a
Lien in the Collateral, held by or on behalf of Revolving Collateral Agent or any other Revolving
Claimholders or by or on behalf of the Notes Collateral Agent or any other Notes Claimholders, (b)
the priority, validity, perfection, or enforceability of any Obligations, including the
allowability or priority of any Obligations in any Insolvency Proceeding, or (c) the priorities,
rights or duties established by, or other provisions of this Agreement; provided,
however that nothing in this Agreement shall be construed to prevent or impair the rights
of Revolving Collateral Agent, any Revolving Claimholder, Notes Collateral Agent or any Notes
Claimholder to enforce the terms of this Agreement, including the provisions of this Agreement
relating to the priority of the Liens in the Collateral securing the Revolving Obligations and the
Notes Obligations, as applicable, as provided in Section 3.
2.3 New Liens. During the term of this Agreement, whether or not any Insolvency
Proceeding has been commenced by or against any Grantor, the parties hereto agree, subject to
Section 6, that no Grantor shall:
(a) grant or suffer to exist any Liens on any asset to secure any Notes Obligation
unless such Grantor also offers to grant, and, at the option of the Revolving Collateral
Agent, grants a Lien on such asset to secure the Revolving Obligations concurrently with the
grant of a Lien thereon in favor of Notes Collateral Agent in accordance with the priorities
set forth in this Agreement; or
(b) grant or suffer to exist any Liens on any asset (other than Excluded Foreign
Collateral and Excluded Holdings Collateral) to secure any Revolving Obligations unless such
Grantor grants, a Lien on such asset to secure the Notes Obligations concurrently with the
grant of a Lien thereon in favor of Revolving Collateral Agent in accordance with the
priorities set forth in this Agreement.
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To the extent that the foregoing provisions are not complied with for any reason, without
limiting any other rights and remedies available to Revolving Collateral Agent or Revolving
Claimholders, the Notes Collateral Agent, on behalf of the Notes Claimholders, agrees that any
amounts received by or distributed to any of them pursuant to or as a result of Liens granted in
contravention of this Section 2.3 shall be subject to Section 4.2, and without
limiting any other rights and remedies available to Notes Collateral Agent or Notes Claimholders,
the Revolving Collateral Agent, on behalf of the Revolving Claimholders, agrees that any amounts
received by or distributed to any of them pursuant to or as a result of Liens granted in
contravention of this Section 2.3 shall be subject to Section 4.2.
2.4 Cooperation in Designating Collateral. In furtherance of Section 9.8, the
parties hereto agree to and the Grantors shall, in each case subject to the other provisions of
this Agreement upon request by Revolving Collateral Agent or Notes Collateral Agent, cooperate in
good faith (and direct their counsel to cooperate in good faith) from time to time in order to
determine the specific items included in the Revolving Priority Collateral and the Notes Priority
Collateral and the steps taken or to be taken to perfect their respective Liens thereon and the
identity of the respective parties obligated under the Revolving Loan Documents and the Notes
Documents.
SECTION 3. Exercise of Remedies.
3.1 Exercise of Remedies by Notes Collateral Agent. Until the Discharge of Revolving
Obligations has occurred, whether or not any Insolvency Proceeding has been commenced by or against
any Grantor, Notes Collateral Agent and Notes Claimholders:
(a) will not exercise or seek to exercise any rights or remedies with respect to any
Revolving Priority Collateral (including any Exercise of Secured Creditor Remedies with
respect to any Revolving Priority Collateral);
(b) subject to Section 3.4 and Section 3.7, will not directly or indirectly
contest, protest, or object to or hinder any Exercise of Secured Creditor Remedies by
Revolving Collateral Agent or any Revolving Claimholder with respect to any Revolving
Priority Collateral and have no right to direct Revolving Collateral Agent to Exercise any
Secured Creditor Remedies with respect to any Revolving Priority Collateral or take any
other action under the Revolving Loan Documents with respect to any Revolving Priority
Collateral;
(c) will not object to (and waive any and all claims with respect to) the forbearance
by Revolving Collateral Agent or Revolving Claimholders from Exercising any Secured Creditor
Remedies with respect to any Revolving Priority Collateral;
(d) will not take or cause to be taken any action the purpose or effect of which is, or
could be, to make any Lien that the Notes Claimholders have on Revolving Priority Collateral
equal with, or to give the Notes Claimholders any preference or priority relative to, any
Lien that the Revolving Claimholders have with respect to such Revolving Priority
Collateral;
(e) will have no right to (i) direct the Revolving Collateral Agent or any Revolving
Claimholder to exercise any right, remedy or power with respect to such Revolving Priority
Collateral or (ii) consent to the exercise by the Revolving Collateral Agent or any
Revolving Claimholder of any right, remedy or power with respect to such Revolving Priority
Collateral; and
(f) will not attempt, directly or indirectly, whether by judicial proceedings or
otherwise, to challenge the enforceability of any provision of this Agreement.
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3.2 Exercise of Remedies by Revolving Collateral Agent. Until the Discharge of Notes
Obligations has occurred, whether or not any Insolvency Proceeding has been commenced by or against
any Grantor, Revolving Collateral Agent and Revolving Claimholders:
(a) will not exercise or seek to exercise any rights or remedies with respect to any
Notes Priority Collateral (including any Exercise of Secured Creditor Remedies with respect
to any Notes Priority Collateral);
(b) subject to Section 3.4 and Section 3.7, will not directly or indirectly
contest, protest, or object to or hinder any Exercise of Secured Creditor Remedies by Notes
Collateral Agent or any Notes Claimholder with respect to any Notes Priority Collateral and
has no right to direct Notes Collateral Agent to Exercise any Secured Creditor Remedies with
respect to any Notes Priority Collateral or take any other action under the Notes Documents
with respect to any Notes Priority Collateral;
(c) will not object to (and waives any and all claims with respect to) the forbearance
by Notes Collateral Agent or any Notes Claimholder from Exercising any Secured Creditor
Remedies with respect to any Notes Priority Collateral;
(d) will not take or cause to be taken any action the purpose or effect of which is, or
could be, to make any Lien that the Revolving Claimholders have on Notes Priority Collateral
equal with, or to give the Revolving Claimholders any preference or priority relative to,
any Lien that the Notes Claimholders have with respect to such Notes Priority Collateral;
(e) will have no right to (i) direct the Notes Collateral Agent or any Notes
Claimholder to exercise any right, remedy or power with respect to such Notes Priority
Collateral or (ii) consent to the exercise by the Notes Collateral Agent or any Notes
Claimholder of any right, remedy or power with respect to such Notes Priority Collateral;
and
(f) will not attempt, directly or indirectly, whether by judicial proceedings or
otherwise, to challenge the enforceability of any provision of this Agreement.
3.3 Exclusive Enforcement Rights. (a) Until the Discharge of Revolving Obligations
has occurred, whether or not any Insolvency Proceeding has been commenced by or against any
Grantor, the Revolving Collateral Agent shall have the exclusive right to Exercise any Secured
Creditor Remedies with respect to the Revolving Priority Collateral without any consultation with
or the consent of Notes Collateral Agent or any Notes Claimholder and (b) until the Discharge of
Notes Obligations has occurred, whether or not any Insolvency Proceeding has been commenced by or
against any Grantor, Notes Collateral Agent shall have the exclusive right to Exercise any Secured
Creditor Remedies with respect to the Notes Priority Collateral without any consultation with or
the consent of the Revolving Collateral Agent or any Revolving Claimholder. In connection with any
Exercise of Secured Creditor Remedies, each of Notes Collateral Agent, the Notes Claimholders,
Revolving Collateral Agent and the Revolving Claimholders may enforce the provisions of the Notes
Collateral Documents or Revolving Collateral Documents, as applicable, and exercise rights, powers
and remedies thereunder, all in such order and in such manner as they may determine in the exercise
of their sole discretion. Such exercise and enforcement shall include the rights of an agent
appointed by them to Dispose of its Collateral, to incur expenses in connection with such
Disposition, and to exercise all the rights and remedies of a secured creditor under applicable
law.
3.4 Claimholders Permitted Actions. Anything to the contrary in Sections 3.1
and 3.2 notwithstanding, each of the Notes Collateral Agent and the Revolving Collateral
Agent may:
(a) if an Insolvency Proceeding has been commenced by or against any Grantor, file a
proof of claim or statement of interest with respect to its Collateral or otherwise with
respect to the Notes Obligations or the Revolving Obligations, as the case may be, or
otherwise file any pleadings, objections, motions or agreements which assert rights or
interests available to unsecured creditors of such Grantor arising under any Insolvency
Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of
this Agreement or applicable law (including the Bankruptcy Code or other comparable laws of
any applicable jurisdiction);
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(b) take any action (not adverse to the priority status of the Liens on the Collateral
of the other, or the rights of the other or any Claimholders to Exercise any Secured
Creditor Remedies) in order to create, perfect, preserve or protect (but not enforce) its
Lien in and to its Collateral;
(c) file any necessary responsive or defensive pleadings in opposition to any motion,
claim, adversary proceeding, or other pleading made by any person objecting to or otherwise
seeking the disallowance or subordination of its claims or its Claimholders or the avoidance
of its Liens;
(d) make any arguments and motions that are, in each case, in accordance with, the
terms of this Agreement;
(e) join (but not exercise any control with respect to) any judicial foreclosure
proceeding or other judicial lien enforcement proceeding with respect to the Priority
Collateral of the other party initiated by such other party to the extent that any such
action could not reasonably be expected, in any material respect, to restrain, hinder,
limit, delay or otherwise interfere with the Exercise of Secured Creditor Remedies by such
other party (it being understood that, (a) with respect to Revolving Priority Collateral,
neither Notes Collateral Agent nor any Notes Claimholder shall be entitled to receive any
proceeds thereof unless otherwise expressly permitted herein and (b) with respect to Notes
Priority Collateral, neither Revolving Collateral Agent nor any Revolving Claimholder shall
be entitled to receive any proceeds thereof unless otherwise expressly permitted herein);
and
(f) take any action described in clauses (i) through (viii) of the definition of
Exercise of Secured Creditor Remedies.
Anything to the contrary in Sections 3.1 and 3.2 notwithstanding, each Notes
Claimholder and each Revolving Claimholder may vote on any plan of reorganization.
Except as expressly set forth in this Agreement, each Notes Claimholder and each Revolving
Claimholder shall have any and all rights and remedies it may have as a creditor under any
applicable law, including the right to the Exercise of Secured Creditor Remedies; provided,
however, that the Exercise of Secured Creditor Remedies with respect to the Collateral (and
any judgment Lien obtained in connection therewith) shall be subject to the Lien priorities set
forth herein and to the provisions of this Agreement. Subject to Section 3.7, the
Revolving Collateral Agent may enforce the provisions of the Revolving Loan Documents, the Notes
Collateral Agent may enforce the provisions of the Notes Documents and each may Exercise any
Secured Creditor Remedies, all in such order and in such manner as each may determine in the
exercise of its sole discretion, consistent with the terms of this Agreement and mandatory
provisions of applicable law; provided, however, that each of the Revolving
Collateral Agent and the Notes Collateral Agent agrees to provide to the other (x) an Enforcement
Notice prior to its Exercise of Secured Creditor Remedies and (y) copies of any notices that it is
required under applicable law to deliver to any Grantor; provided further,
however, that the Revolving Collateral Agent’s failure to provide copies of any such
notices to the Notes Collateral Agent shall not impair any of the Revolving Collateral Agent’s
rights hereunder or under any of the Revolving Loan Documents and the Notes Collateral Agent’s
failure to provide copies of any such notices to the Revolving Collateral Agent shall not impair
any of the Notes Collateral Agent’s rights hereunder or under any of the Notes Documents. Each of
the Notes Collateral Agent, each Notes Claimholder, the Revolving Collateral Agent and each
Revolving Claimholder agrees that it will not institute any suit or other proceeding or assert in
any suit, Insolvency Proceeding or other proceeding any claim, in the case of the Notes Collateral
Agent and each Notes Claimholder, against either the Revolving Collateral Agent or any other
Revolving Claimholder, and in the case of the Revolving Collateral Agent and each other Revolving
Claimholder, against either the Notes Collateral Agent or any other Notes Claimholder, seeking
damages from or other relief by way of specific performance, instructions or otherwise, with
respect to, any action taken or omitted to be taken by such person with respect to the Collateral
which is consistent with the terms of this Agreement, and none of such parties shall be liable for
any such action taken or omitted to be taken.
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3.5 Retention of Proceeds.
(a) Notes Collateral Agent agrees that prior to the Discharge of the Revolving Obligations,
Notes Claimholders will only be entitled to retain proceeds of Notes Priority Collateral in
connection with an Exercise of Secured Creditor Remedies that are not prohibited under Section 3.1 above.
Notes Claimholders shall not be permitted to retain any proceeds of Revolving Priority Collateral
in connection with any Exercise of Secured Creditor Remedies in any circumstance unless and until
the Discharge of the Revolving Obligations has occurred, and any such proceeds received or retained
in any other circumstance will be subject to Section 4.2.
(b) Revolving Collateral Agent agrees that prior to the Discharge of the Notes Obligations,
Revolving Claimholders will only be entitled to retain proceeds of Revolving Priority Collateral in
connection with an Exercise of Secured Creditor Remedies that are not prohibited under Section
3.2 above. Revolving Claimholders shall not be permitted to retain any proceeds of Notes
Priority Collateral in connection with any Exercise of Secured Creditor Remedies in any
circumstance unless and until the Discharge of the Notes Obligations has occurred, and any such
proceeds received or retained in any other circumstance will be subject to Section 4.2.
(c) Notwithstanding anything contained in this Agreement to the contrary, in the event of any
Disposition or series of related Dispositions that includes Revolving Priority Collateral and Notes
Priority Collateral where the aggregate sales price is not allocated between the Revolving Priority
Collateral and Notes Priority Collateral being sold (including in connection with or as a result of
the sale of the capital stock of a Grantor), then solely for purposes of this Agreement, the
allocation of proceeds of such Disposition to the Revolving Priority Collateral shall be based
upon, in the case of (i) any Revolving Priority Collateral consisting of inventory, at book value
as assessed on the date of such Disposition, (ii) any Revolving Priority Collateral consisting of
accounts receivable, at book value as assessed on the date of such Disposition and (iii) all other
Revolving Priority Collateral and Notes Priority Collateral, at fair market value of such Revolving
Priority Collateral and Notes Priority Collateral sold, as determined by AMLLC in its reasonable
judgment or, if the aggregate amount of such other Revolving Priority Collateral and Notes Priority
Collateral sold is greater than $20,000,000, an independent appraiser.
3.6 Non-Interference. Subject to Sections 3.1, 3.2, 3.3,
3.4, and 6.5(b), each of Notes Collateral Agent, for itself and on behalf of the
Notes Claimholders, and the Revolving Collateral Agent, for itself and on behalf of the Revolving
Claimholders, hereby:
(a) subject to Section 3.7, agrees that it will not, directly or indirectly,
take any action that would restrain, hinder, limit, delay, or otherwise interfere with any
Exercise of Secured Creditor Remedies by the other with respect to such other party’s
Priority Collateral, or that is otherwise prohibited hereunder, including any Disposition of
such other person’s Priority Collateral, whether by foreclosure or otherwise; and
(b) subject to Section 3.7, waives any and all rights it or its Claimholders
may have as a junior lien creditor or otherwise to object to the manner in which such other
party seeks to enforce or collect such other party’s respective Obligations or the Liens
securing such Obligations granted in any of such other party’s Priority Collateral,
regardless of whether any action or failure to act by or on behalf of such other person is
adverse to the interest of it or its Claimholder.
3.7 Commercially Reasonable Dispositions. The Notes Collateral Agent, for itself and
on behalf of the Notes Claimholders, hereby irrevocably, absolutely, and unconditionally waives any
right to object (and seek or be awarded any relief of any nature whatsoever based on any such
objection), at any time prior or subsequent to any disposition of any of the Revolving Priority
Collateral, on the ground(s) that any such disposition of Revolving Priority Collateral (a) would
not be or was not “commercially reasonable” within the meaning of any applicable UCC and/or (b)
would not or did not comply with any other requirement under any applicable UCC or under any other
applicable law governing the manner in which a secured creditor (including one with a Lien on real
property) is to realize on its collateral. The Revolving Collateral Agent, for itself and on
behalf of the Revolving Claimholders, hereby irrevocably, absolutely and unconditionally waives any
right to object (and seek or be awarded any relief of any nature whatsoever based on any such
objection), at any time prior to or subsequent to any disposition of any Notes Priority Collateral,
on the ground(s) that any such disposition of Notes Priority Collateral (a) would not be or was not
“commercially reasonable” within the meaning of any applicable UCC and/or (b) would not or did not
comply with any other requirement under any applicable UCC or under any other applicable law
governing the manner in which a secured creditor (including one with a Lien on real property) is to
realize on its collateral.
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3.8 Inspection and Access Rights.
(a) If the Notes Collateral Agent, or any agent or representative of the Notes Collateral
Agent, or any receiver, shall, after any Notes Default, obtain possession or physical control of
any of the real properties subject to a Mortgage, the Notes Collateral Agent shall promptly notify
the Revolving Collateral Agent in writing of that fact, and the Revolving Collateral Agent shall,
within fifteen (15) Business Days thereafter, notify the Notes Collateral Agent in writing as to
whether the Revolving Collateral Agent desires to exercise access rights under this Section
3.8. In addition, if the Revolving Collateral Agent, or any agent or representative or the
Revolving Collateral Agent, or any receiver, shall obtain possession or physical control of any of
the real properties subject to a Mortgage or any of the tangible Notes Priority Collateral located
on any premises other than real properties subject to a Mortgage or control over any intangible
Notes Priority Collateral, following the delivery to the Notes Collateral Agent of an Enforcement
Notice, then the Revolving Collateral Agent shall promptly notify the Notes Collateral Agent in
writing that the Revolving Collateral Agent is exercising its access rights under this Agreement
and its rights under Section 3.9 under either circumstance. Upon delivery of such notice
by the Revolving Collateral Agent to the Notes Collateral Agent, the parties shall confer in good
faith to coordinate with respect to the Revolving Collateral Agent’s exercise of such access
rights. Consistent with the definition of “Use Period,” access rights may apply to differing
parcels of real properties subject to a Mortgage at differing times, in which case, a differing Use
Period will apply to each such property.
(b) Without limiting any rights the Revolving Collateral Agent or any other Revolving
Claimholder may otherwise have under applicable law or by agreement and whether or not the Notes
Collateral Agent or any other Notes Claimholder has commenced and is continuing to Exercise any
Secured Creditor Remedies of the Notes Collateral Agent, the Revolving Collateral Agent or any
other Person (including any Revolving Claimholder) acting with the consent, or on behalf, of the
Revolving Collateral Agent, shall have the right during the Use Period, (a) during normal business
hours on any Business Day, to access Revolving Priority Collateral that (i) is stored or located in
or on, (ii) has become an accession with respect to (within the meaning of Section 9-335 of the
UCC), or (iii) has been commingled with (within the meaning of Section 9-336 of the UCC), Notes
Priority Collateral, and (b) access the Notes Priority Collateral (including, without limitation,
equipment, fixtures, Intellectual Property, general intangibles and real property and equipment,
processors, computers and other machinery related to the storage or processing of records,
documents or files), each of the foregoing in order to assemble, inspect, copy or download
information stored on, take actions to perfect its Lien on, complete a production run of Inventory
involving, take possession of, move, prepare and advertise for sale, sell (by public auction,
private sale or a “store closing,” “going out of business” or similar sale, whether in bulk, in
lots or to customers in the ordinary course of business or otherwise and which sale may include
augmented Inventory of the same type sold in AMLLC’s business), store, take reasonable actions to
protect, secure and otherwise enforce the rights of the Revolving Collateral Agent in and to the
Revolving Priority Collateral, or otherwise deal with the Revolving Priority Collateral, in each
case without the involvement of or interference by any Notes Claimholder or liability to any Notes
Claimholder. In the event that any Revolving Claimholder has commenced and is continuing the
Exercise of any Secured Creditor Remedies with respect to any Revolving Priority Collateral, this
Agreement will not restrict the rights of the Notes Collateral Agent to sell, assign or otherwise
transfer the related Notes Priority Collateral prior to the expiration of the Use Period if the
purchaser, assignee or transferee thereof agrees to be bound by the provisions of this Section
3.8.
(c) During the period of actual occupation, use and/or control by the Revolving Claimholders
and/or the Revolving Collateral Agent (or their respective employees, agents, advisers and
representatives) of any Notes Priority Collateral or other assets or property, the Revolving
Claimholders and the Revolving Collateral Agent shall be obligated to repair at their expense any
physical damage to such Notes Priority Collateral or other assets or property resulting from such
occupancy, use or control, and to leave such Notes Priority 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. Notwithstanding the foregoing, in no event shall the
Revolving Claimholders or the Revolving Collateral Agent have any liability to the Notes
Claimholders and/or to the Notes Collateral Agent pursuant to this Section 3.8 as a result
of any condition (including any environmental condition, claim or liability) on or with respect to
the Notes Priority Collateral existing prior to the date of the exercise by the Revolving
Claimholders (or the Revolving Collateral Agent, as the case may be) of their rights under this
Section 3.8 and the Revolving Claimholders shall have no duty or liability to maintain the
Notes Priority Collateral in a condition or manner better than that in which it was maintained
prior to the use thereof by the Revolving Claimholders, or for any diminution in the value of the
Notes Priority Collateral that results solely from ordinary wear and tear resulting from the use of
the Notes Priority Collateral by the Revolving Claimholders in the manner and for the time periods
specified under this Section 3.8. Without limiting the rights granted in this Section
3.8, the Revolving Claimholders and the Revolving
Collateral Agent shall cooperate with the Notes Claimholders and/or the Notes Collateral Agent
in connection with any efforts made by the Notes Claimholders and/or the Notes Collateral Agent to
sell the Notes Priority Collateral.
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(d) The Revolving Collateral Agent and the Revolving Claimholders shall not be obligated to
pay any amounts to the Notes Collateral Agent or the Notes Claimholders (or any person claiming by,
through or under the Notes Claimholders, including any purchaser of the Notes Priority Collateral)
or to any Grantor, for or in respect of the use by the Revolving Collateral Agent and the Revolving
Claimholders of the Notes Priority Collateral; provided that Revolving Collateral Agent and
the other Revolving Claimholders shall be obligated to pay any third-party expenses related
thereto, including costs with respect to heat, light, electricity and water with respect to that
portion of any premises so used or occupied, or that arise as a result of such use. In the event,
and only in the event, that in connection with its use of some or all of the premises constituting
Notes Priority Collateral, the Revolving Collateral Agent requires the services of any employees of
AMLLC or any of its Subsidiaries, the Revolving Collateral Agent shall pay directly to any such
employees the appropriate, allocated wages of such employees, if any, during the time periods that
the Revolving Collateral Agent requires their services.
(e) The Revolving Claimholders shall use the Notes Priority Collateral in accordance with
applicable law.
(f) Subject to Section 3.7, the Notes Collateral Agent and the other Notes
Claimholders (i) will cooperate with the Revolving Collateral Agent in its efforts pursuant to
Section 3.8(b) to enforce its security interest in the Revolving Priority Collateral and to finish
any work-in-process and assemble the Revolving Priority Collateral, (ii) will not hinder or
restrict in any respect the Revolving Collateral Agent from enforcing its security interest in the
Revolving Priority Collateral or from finishing any work-in-process or assembling the Revolving
Priority Collateral pursuant to Section 3.8(b), and (iii) will, subject to the rights of any
landlords under real estate leases, permit the Revolving Collateral Agent, its employees, agents,
advisers and representatives to exercise the rights described in Section 3.8(b).
(g) Subject to the terms hereof, the Notes Collateral Agent may advertise and conduct public
auctions or private sales of the Notes Priority Collateral, without the involvement of or
interference by any Revolving Claimholder or liability to any Revolving Claimholder as long as, in
the case of an actual sale, the respective purchaser assumes and agrees in advance in writing to
the obligations of the Notes Collateral Agent and the Notes Claimholders under this Section
3.8. If the Revolving Collateral Agent conducts a public auction or private sale of the
Revolving Priority Collateral at any of the real property included within the Notes Collateral, the
Revolving Collateral Agent shall provide the Notes Collateral Agent with reasonable notice and use
reasonable efforts to hold such auction or sale in a manner which would not unduly disrupt the
Notes Collateral Agent’s use of such real property.
3.9 Sharing of Information and Access. In the event that the Revolving Collateral
Agent shall, in the exercise of its rights under the Revolving Collateral Documents or otherwise,
receive possession or control of any books and records of any Grantor which contain information
identifying or pertaining to the Notes Priority Collateral, the Revolving Collateral Agent shall,
upon request from the Notes Collateral Agent and as promptly as practicable thereafter, either make
available to the Notes Collateral Agent such books and records for inspection and duplication or
provide to the Notes Collateral Agent copies thereof. In the event that the Notes Collateral Agent
shall, in the exercise of its rights under the Notes Collateral Documents or otherwise, receive
possession or control of any books and records of any Grantor which contain information identifying
or pertaining to any of the Revolving Priority Collateral, the Notes Collateral Agent shall, upon
request from the Revolving Collateral Agent and as promptly as practicable thereafter, either make
available to the Revolving Collateral Agent such books and records for inspection and duplication
or provide the Revolving Collateral Agent copies thereof.
3.10 Tracing of and Priorities in Proceeds. The Revolving Collateral Agent, for
itself and on behalf of the Revolving Claimholders, and the Notes Collateral Agent, for itself and
on behalf of the Notes Claimholders, further agree that prior to an issuance of any Enforcement
Notice by such Claimholder (unless a bankruptcy or insolvency Revolving Default or Notes Default
then exists), any proceeds of Collateral obtained in accordance with the terms of the Revolving
Loan Documents and the Notes Documents, whether or not deposited under control agreements, which
are used by any Grantor to acquire other property which is Collateral shall not (solely as between
the Claimholders) be treated as Proceeds of Collateral for purposes of determining the relative
priorities in the Collateral which was so acquired. In addition, unless and until the Discharge of
Revolving Obligations occurs, the
Notes Collateral Agent, for itself and on behalf of the Notes Claimholders, each hereby
consents to the application, prior to the receipt by the Revolving Collateral Agent of an
Enforcement Notice issued by the Notes Collateral Agent, of cash or other proceeds of Collateral,
deposited under deposit account control agreements to the repayment of Revolving Obligations
pursuant to the Revolving Loan Documents.
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SECTION 4. Proceeds.
4.1 Application of Proceeds.
(a) Prior to the Discharge of Revolving Obligations, whether or not any Insolvency Proceeding
has been commenced by or against any Grantor, except as otherwise provided in Section 3.5,
any Revolving Priority Collateral or proceeds thereof received in connection with any Exercise of
Secured Creditor Remedies shall (at such time as such Collateral or proceeds has been monetized) be
applied: (i) first, to the payment in full in cash or cash collateralization of the
Revolving Obligations in accordance with the Revolving Loan Documents, and in the case of payment
of any revolving loans following any acceleration of the Revolving Obligations and resulting from a
foreclosure or a “store closing,” “going out of business” or similar sale of Revolving Priority
Collateral, together with the concurrent permanent reduction of any revolving loan commitment
thereunder in an amount equal to the amount of such payment and (ii) second, to the payment in full
in cash of the Notes Obligations in accordance with the Notes Documents.
(b) Prior to the Discharge of Notes Obligations, whether or not any Insolvency Proceeding has
been commenced by or against any Grantor, except as otherwise provided in Section 3.5, any
Notes Priority Collateral or proceeds thereof received in connection with any Exercise of Secured
Creditor Remedies shall (at such time as such Collateral or proceeds has been monetized) be
applied: (i) first, to the payment in full in cash or cash collateralization of the Notes
Obligations in accordance with the Notes Documents and (ii) second, to the payment in full
in cash or cash collateralization of the Revolving Obligations in accordance with the Revolving
Loan Documents.
(c) If any Exercise of Secured Creditor Remedies with respect to the Collateral produces
non-cash proceeds, then such non-cash proceeds shall be held by the agent that conducted the
Exercise of Secured Creditor Remedies as additional Collateral and, at such time as such non-cash
proceeds are monetized, shall be applied as set forth above.
4.2 Turnover. Unless and until the earlier of the Discharge of Revolving Obligations
or the Discharge of the Notes Obligations has occurred, whether or not any Insolvency Proceeding
has been commenced by or against any Grantor, except as otherwise provided in Section 3.5,
(a) any Revolving Priority Collateral, proceeds thereof (including assets or proceeds subject to
Liens referred to in the final sentence of Section 2.3) or any insurance proceeds described
in Section 5.2(a) received by Notes Collateral Agent or any Notes Claimholder, pursuant to
any Notes Collateral Document or by the exercise of any rights available to it under applicable law
or in any bankruptcy, insolvency or similar proceeding or through any other exercise of remedies,
after Notes Collateral Agent or such Notes Claimholder obtains actual knowledge or notice from the
Revolving Collateral Agent that it has possession of such Revolving Priority Collateral and/or such
proceeds, shall be segregated and held in trust and shall reasonably promptly be paid over to the
Revolving Collateral Agent for the benefit of the Revolving Claimholders in the same form as
received, with any necessary endorsements or as a court of competent jurisdiction may otherwise
direct and (b) any Notes Priority Collateral, proceeds thereof (including assets or proceeds
subject to Liens referred to in the final sentence of Section 2.3) or any insurance
proceeds described in Section 5.2(b) received by the Revolving Collateral Agent or any
Revolving Claimholder, pursuant to any Revolving Collateral Document or by the exercise of any
rights available to it under applicable law or in any bankruptcy, insolvency or similar proceeding
or through any other exercise of remedies, after Revolving Collateral Agent or such revolving
Claimholder obtains actual knowledge or notice from the Notes Collateral Agent that it has
possession of such Notes Priority Collateral and/or such proceeds, shall be segregated and held in
trust and shall reasonably promptly be paid over to the Notes Collateral Agent for the benefit of
the Notes Claimholders in the same form as received, with any necessary endorsements or as a court
of competent jurisdiction may otherwise direct; provided, however, in the case of
any proceeds of Notes Priority Collateral received by Revolving Collateral Agent or any Revolving
Claimholder in connection with a Disposition of Notes Priority Collateral by any Grantor, if a
Grantor does not provide prior written notice of such Disposition to Revolving Collateral Agent
specifying the amount and source of such proceeds, neither Revolving
Collateral Agent nor any Revolving Claimholder shall have any obligation to pay over any
proceeds of such Disposition to Notes Collateral Agent. Each of Notes Collateral Agent and the
Revolving Collateral Agent is hereby authorized to make any such endorsements as agent for the
other or any Claimholders. This authorization is coupled with an interest and is irrevocable until
the earlier of the Discharge of Revolving Obligations or the Notes Obligations.
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The Notes Collateral Agent for itself and each Notes Claimholder agrees that if, at any time,
all or part of any payment with respect to any Revolving Obligations secured by any Revolving
Priority Collateral previously made shall be rescinded for any reason whatsoever, it will upon
request promptly pay over to the Revolving Collateral Agent any payment received by it in respect
of any such Revolving Priority Collateral and shall promptly turn any such Revolving Priority
Collateral then held by it over to the Revolving Collateral Agent, and the provisions set forth in
this Agreement will be reinstated as if such payment had not been made, until the payment and
satisfaction in full of such Revolving Obligations.
The Revolving Collateral Agent for itself and each Revolving Claimholder agrees that if, at
any time, all or part of any payment with respect to any Notes Obligations secured by any Notes
Priority Collateral previously made shall be rescinded for any reason whatsoever, it will promptly
pay over to the Notes Collateral Agent any payment received by it in respect of any such Notes
Priority Collateral and shall promptly turn any such Notes Priority Collateral then held by it over
to the Notes Collateral Agent, and the provisions set forth in this Agreement will be reinstated as
if such payment had not been made, until the payment and satisfaction in full of such Notes
Obligations.
4.3 No Subordination of the Relative Priority of Claims. Anything to the contrary
contained herein notwithstanding, the subordination of the Liens of Notes Claimholders to the Liens
of Revolving Claimholders and of the Liens of Revolving Claimholders to the Liens of Notes
Claimholders as set forth herein is with respect to the priority of the respective Liens held by or
on behalf of them only and shall not constitute a subordination of the Notes Obligations to the
Revolving Obligations or the Revolving Obligations to the Notes Obligations.
4.4 Application of Payments. Subject to the other terms of this Agreement, all
payments received (not in violation of this Agreement) by (a) the Revolving Collateral Agent or the
Revolving Claimholders may be applied, reversed and reapplied, in whole or in part, to the
Revolving Obligations to the extent provided for in the Revolving Loan Documents and (b) the Notes
Collateral Agent or the Note Claimholders may be applied, reversed and reapplied, in whole or in
part, to the Note Obligations to the extent provided for in the Note Documents.
4.5 Revolving Nature of Revolving Obligations. The Notes Collateral Agent, on behalf
of the Notes Claimholders, acknowledges and agrees that the Revolving Credit Agreement includes a
revolving commitment and that the amount of the Revolving Obligations that may be outstanding at
any time or from time to time may be increased or reduced and subsequently reborrowed.
SECTION 5. Releases; Dispositions; Other Agreements.
5.1 Releases.
(a) If, in connection with the Exercise of Secured Creditor Remedies by Revolving Collateral
Agent as provided for in Section 3, irrespective of whether a Revolving Default or a Notes
Default has occurred and is continuing, Revolving Collateral Agent releases any of its Liens on any
part of the Revolving Priority Collateral, then the Liens of Notes Collateral Agent on such
Revolving Priority Collateral shall be automatically, unconditionally, and simultaneously released
so long as all proceeds therefrom are applied to permanently repay the Revolving Obligations;
provided, however, that any proceeds remaining after the Discharge of Revolving
Obligations shall be subject to the Liens of the Notes Claimholders. Notes Collateral Agent, for
itself or on behalf of any such Notes Claimholders, promptly shall execute and deliver to Revolving
Collateral Agent such termination or amendment statements, releases, and other documents as
Revolving Collateral Agent may request to effectively confirm such release, at the cost and expense
of AMLLC and without the consent or direction of any other Notes Claimholders.
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(b) If, in connection with the Exercise of Secured Creditor Remedies by Notes Collateral Agent
as provided for in Section 3, irrespective of whether a Revolving Default or a Notes
Default has occurred and
is continuing, Notes Collateral Agent releases any of its Liens on any part of the Notes
Priority Collateral, then the Liens of Revolving Collateral Agent on such Notes Priority Collateral
shall be automatically, unconditionally, and simultaneously released so long as all proceeds
therefrom are applied to permanently repay, repurchase or otherwise retire Notes Obligations;
provided, however, that any proceeds remaining after the Discharge of Notes
Obligations shall be subject to the Liens of the Revolving Claimholders. Revolving Collateral
Agent, for itself or on behalf of any such Revolving Claimholders, promptly shall execute and
deliver to Notes Collateral Agent such termination or amendment statements, releases, and other
documents as Notes Collateral Agent may request to effectively confirm such release, at the cost
and expense of AMLLC and without the consent or direction of any other Revolving Claimholders.
(c) If, in connection with any Disposition of any Revolving Priority Collateral permitted
under the terms of the Revolving Loan Documents and the Notes Documents as in effect at the time of
such Disposition, Revolving Collateral Agent, for itself or on behalf of any Revolving
Claimholders, releases any of its Liens on the portion of the Revolving Priority Collateral that is
the subject of such Disposition, other than (i) in connection with the Discharge of Revolving
Obligations, or (ii) after the occurrence and during the continuance of any Notes Default, then the
Liens of Notes Collateral Agent on such Collateral shall be automatically, unconditionally, and
simultaneously released. Notes Collateral Agent, for itself or on behalf of any such Notes
Claimholders, promptly shall execute and deliver to Revolving Collateral Agent such termination or
amendment statements, releases, and other documents as Revolving Collateral Agent may request to
effectively confirm such release, at the cost and expense of AMLLC and without the consent or
direction of any other Notes Claimholders.
(d) If, in connection with any Disposition of any Notes Priority Collateral permitted under
the terms of the Notes Documents and the Revolving Loan Documents as in effect at the date of such
Disposition, Notes Collateral Agent, for itself or on behalf of any Notes Claimholders, releases
any of its Liens on the portion of the Notes Priority Collateral that is the subject of such
Disposition, other than (i) in connection with the Discharge of Notes Obligations, or (ii) after
the occurrence and during the continuance of any Revolving Default, then the Liens of Revolving
Collateral Agent on such Collateral shall be automatically, unconditionally, and simultaneously
released. Revolving Collateral Agent, for itself or on behalf of any such Revolving Claimholders,
promptly shall execute and deliver to Notes Collateral Agent such termination or amendment
statements, releases, and other documents as Notes Collateral Agent may request to effectively
confirm such release, at the cost and expense of AMLLC and without the consent or direction of any
other Revolving Claimholders.
(e) In the event that any Collateral that would be Revolving Priority Collateral is no longer
Collateral pursuant to the effects of clause (10) of the definition of “Excluded Assets” in the
Indenture (or any comparable provision in any successor Notes Document), such Collateral shall
automatically be deemed not to be Notes Collateral under the Notes Collateral Documents. Notes
Collateral Agent, for itself or on behalf of any such Notes Claimholders, promptly shall execute
and deliver to AMLLC such termination or amendment statements, releases, and other documents as
AMLLC may request to effectively confirm such release, at the cost and expense of AMLLC and without
the consent or direction of any other Notes Claimholders.
5.2 Insurance.
(a) Unless and until written notice by the Revolving Collateral Agent to the Notes Collateral
Agent that the Discharge of Revolving Obligations has occurred: (i) the Revolving Collateral Agent
and the Revolving Claimholders shall have the sole and exclusive right, subject to the rights of
Grantors under the Revolving Loan Documents, to adjust and settle any claim under any insurance
policy covering the Revolving Priority Collateral in the event of any loss thereunder and to
approve any award granted in any condemnation or similar proceeding (or any deed in lieu of
condemnation) affecting the Revolving Priority Collateral; and (ii) all proceeds of any such
insurance policy and any such award (or any payments with respect to a deed in lieu of
condemnation) if in respect of Revolving Priority Collateral, shall be paid, subject to the rights
of Grantors under the Revolving Loan Documents, first, to the Revolving Claimholders, until
the Discharge of Revolving Obligations, second, to the Notes Claimholders, until the
Discharge of Notes Obligations, and third, to the owner of the subject property, such other
person as may be entitled thereto, or as a court of competent jurisdiction may otherwise direct.
If the Notes Collateral Agent receives any proceeds of any insurance policy in contravention of
this Agreement, it shall hold such proceeds in trust and upon request pay over such proceeds to the
Revolving Collateral Agent.
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(b) Unless and until written notice by the Notes Collateral Agent to the Revolving Collateral
Agent that the Discharge of Notes Obligations has occurred: (i) the Notes Collateral Agent and the
Notes Claimholders shall have the sole and exclusive right, subject to the rights of Grantors under
the Notes Documents, to adjust and settle any claim under any insurance policy covering the Notes
Priority Collateral in the event of any loss thereunder and to approve any award granted in any
condemnation or similar proceeding (or any deed in lieu of condemnation) affecting the Notes
Priority Collateral; and (ii) all proceeds of any such insurance policy and any such award (or any
payments with respect to a deed in lieu of condemnation) if in respect of Notes Priority
Collateral, shall be paid, subject to the rights of Grantors under the Notes Documents,
first, to Notes Claimholders, until the Discharge of Notes Obligations, second, to
the Revolving Claimholders, until the Discharge of Revolving Obligations, and third, to the
owner of the subject property, such other person as may be entitled thereto, or as a court of
competent jurisdiction may otherwise direct. If the Revolving Collateral Agent receives any
proceeds of any insurance policy in contravention of this Agreement, it shall hold such proceeds in
trust and pay over such proceeds to the Notes Collateral Agent.
In the event that any proceeds are derived from any insurance policy that covers Revolving
Priority Collateral and Notes Priority Collateral, the Revolving Collateral Agent and the Notes
Collateral Agent at the direction of the Notes Claimholders will work jointly and in good faith to
collect, adjust or settle (subject to the rights of the Grantors under the Revolving Loan Documents
and the Notes Documents) any claim under the relevant insurance policy.
Notwithstanding anything contained in this Agreement to the contrary, in the event that any
proceeds are derived from any insurance policy that covers Revolving Priority Collateral and Notes
Priority Collateral where the allocation of proceeds is not stipulated between Revolving Priority
Collateral and Notes Priority Collateral, then the allocation of proceeds of such insurance policy
to the Revolving Priority Collateral shall be based upon, in the case of (A) any Revolving Priority
Collateral consisting of inventory, at book value as assessed on the date of such loss, (B) any
Revolving Priority Collateral consisting of accounts receivable, at book value as assessed on the
date of such loss and (C) all other Revolving Priority Collateral and Notes Priority Collateral, at
fair market value of such Revolving Priority Collateral and Notes Priority Collateral lost, as
determined by AMLLC in its reasonable judgment or, if the aggregate amount of such other Revolving
Priority Collateral and Notes Priority Collateral sold is greater than $20,000,000, an independent
appraiser.
(c) To effectuate the foregoing, AMLLC shall provide Revolving Collateral Agent and Notes
Collateral Agent with separate lender’s loss payable endorsements naming themselves as loss payee
and additional insured, as their interests may appear, with respect to policies which insure
Collateral hereunder.
5.3 Amendments; Refinancings.
(a) The Revolving Loan Documents may be amended, supplemented, or otherwise modified in
accordance with their terms and the Revolving Obligations may be Refinanced in accordance with the
terms of the Revolving Loan Documents, in each case without notice to, or the consent of, Notes
Collateral Agent or the Notes Claimholders, all without affecting the lien subordination or other
provisions of this Agreement; provided, however, that, in the case of a Refinancing
secured by the Collateral, the holders of such Refinancing debt (or an authorized representative or
their behalf) bind themselves (in a writing addressed to Notes Collateral Agent for the benefit of
itself and the Notes Claimholders in a form reasonably acceptable to the Notes Collateral Agent) to
the terms of this Agreement; provided further, that any such amendment, supplement,
modification, or Refinancing shall not result in a Notes Default under the Indenture;
provided further, however, that, if such Refinancing debt is secured by a
Lien on any Collateral the holders of such Refinancing debt shall be deemed bound by the terms
hereof regardless of whether or not such writing is provided. For the avoidance of doubt, the sale
or other transfer of indebtedness is not restricted by this Agreement but the provisions of this
Agreement shall be binding on all holders of Revolving Obligations and Notes Obligations.
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(b) The Notes Documents may be amended, supplemented, or otherwise modified in accordance with
their terms and the Notes Obligations may be Refinanced in accordance with the terms of the Notes
Documents, in each case without notice to, or the consent of, Revolving Collateral Agent or the
Revolving Claimholders, all without affecting the lien subordination or other provisions of this
Agreement; provided, however, that, in the case of a Refinancing secured by the
Collateral, the holders of such Refinancing debt (or an authorized representative
or their behalf) bind themselves (in a writing addressed to Revolving Collateral
Agent for the benefit of itself and the Revolving Claimholders as the Revolving Collateral Agent
shall reasonably request) to the terms of this Agreement; provided further, that
any such amendment, supplement, modification, or Refinancing shall not, result in a Revolving
Default under the Revolving Credit Agreement; provided further, however, that, if such Refinancing
debt is secured by a Lien on any Collateral the holders of such Refinancing debt shall be deemed
bound by the terms hereof regardless of whether or not such writing is provided. For the avoidance
of doubt, the sale or other transfer of indebtedness is not restricted by this Agreement but the
provisions of this Agreement shall be binding on all holders of Revolving Obligations and Notes
Obligations.
(c) So long as the Discharge of Revolving Obligations has not occurred, the Notes Collateral
Agent agrees that each Notes Collateral Document shall include the following language (or similar
language acceptable to the Revolving Collateral Agent): “Notwithstanding anything herein to the
contrary, the liens and security interests granted to Xxxxx Fargo Bank, National Association, as
Notes Collateral Agent, pursuant to this Agreement and the exercise of any right or remedy by Xxxxx
Fargo Bank, National Association, as Notes Collateral Agent hereunder, are subject to the
provisions of the Intercreditor Agreement dated as of October 13, 2010 (as amended, restated,
supplemented or otherwise modified from time to time, the “Intercreditor Agreement”),
between UBS AG, Stamford Branch, as Revolving Collateral Agent and Xxxxx Fargo Bank, National
Association, as Notes Collateral Agent. In the event of any conflict between the terms of the
Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement
shall govern and control.”
(d) So long as the Discharge of Notes Obligations has not occurred, the Revolving Collateral
Agent agrees that each Revolving Collateral Document shall include the following language (or
similar language acceptable to the Notes Collateral Agent): “Notwithstanding anything herein to
the contrary, the liens and security interests granted to UBS AG, Stamford Branch, as Revolving
Collateral Agent, pursuant to this Agreement and the exercise of any right or remedy by UBS AG,
Stamford, as Revolving Collateral Agent, hereunder, are subject to the provisions of the
Intercreditor Agreement dated as of October 13, 2010 (as amended, restated, supplemented or
otherwise modified from time to time, the “Intercreditor Agreement”), between UBS AG,
Stamford Branch, as Revolving Collateral Agent and Xxxxx Fargo Bank, National Association, as Notes
Collateral Agent. In the event of any conflict between the terms of the Intercreditor Agreement
and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern and
control.” The parties hereto hereby acknowledge that Section 26 of the Notes Pledge Agreement,
Section 7.15 of the Notes Security Agreement, Section 26 of the US Revolving Pledge Agreement and
Section 7.15 of the US Revolving Security Agreement, each as in effect as of the date hereof,
comply with the requirements of this Section 5.3(d).
5.4 Bailee for Perfection.
(a) Revolving Collateral Agent and Notes Collateral Agent each agree to hold or control that
part of the Collateral that is in its possession or control (or in the possession or control of its
agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien
thereon under the UCC or other applicable law (such Collateral, the “Pledged Collateral”),
as gratuitous bailee and as a non-fiduciary agent for the benefit of and on behalf of the Notes
Collateral Agent or Revolving Collateral Agent, as applicable (such bailment and agency being
intended, among other things, to satisfy the requirements of Sections 8-301(a)(2), 9-313(c), 9-104,
9-105, 9-106, and 9-107 of the UCC), solely for the purpose of perfecting the security interest
granted under the Notes Documents or the Revolving Loan Documents, as applicable, subject to the
terms and conditions of this Section 5.4. The Notes Collateral Agent and the Notes
Claimholders hereby appoint the Revolving Collateral Agent as their gratuitous bailee for the
purposes of perfecting their security interest in all Pledged Collateral in which the Revolving
Collateral Agent has a perfected security interest under the UCC. The Revolving Collateral Agent
and the Revolving Claimholders hereby appoint the Notes Collateral Agent as their gratuitous bailee
for the purposes of perfecting their security interest in all Pledged Collateral in which the Notes
Collateral Agent has a perfected security interest under the UCC. Each of the Revolving Collateral
Agent and Notes Collateral Agent hereby accept such appointments pursuant to this Section
5.4(a) and acknowledge and agree that it shall act for the benefit of and on behalf of the
other Claimholders with respect to any Pledged Collateral and that any Proceeds received by the
Revolving Collateral Agent or Notes Collateral Agent, as the case may be, under any Pledged
Collateral shall be applied in accordance with Section 4. Unless and until the Discharge
of the Revolving Obligations, Notes Collateral Agent agrees to promptly notify Revolving Collateral
Agent of any Pledged Collateral constituting Revolving Priority Collateral held by it or known by
it to be held by any other Notes Claimholders, and, immediately
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upon the request of
Revolving Collateral Agent at any time prior to the Discharge of the Revolving Obligations, Notes
Collateral Agent agrees to deliver to Revolving Collateral Agent any such Pledged Collateral held
by it or by any Notes Claimholders, together with any necessary endorsements (or otherwise allow
Revolving Collateral Agent to obtain control of such Pledged Collateral). Until the Discharge of
Revolving Obligations, the Revolving Collateral Agent will Control (as defined in Sections 8-106,
9-104 and 9-106 of the UCC, as applicable) any Collateral constituting Deposit Accounts, Securities
Accounts or Commodity Accounts and Controlled by the Revolving Collateral Agent as gratuitous
bailee and as a non-fiduciary agent for the benefit of and on behalf of the Notes Collateral Agent
as secured party and Notes Claimholders solely for the purpose of perfecting the security interest
granted under the Notes Documents and subject to the terms and conditions of this Section
5.4; provided, that upon the Discharge of Revolving Obligations, the Revolving Collateral Agent
shall cooperate to have any control agreements with respect to such Collateral assigned to the
Notes Collateral Agent and continue to hold such Collateral pursuant to this clause until the
earlier of the date (i) on which the Notes Collateral Agent has obtained control thereof for the
purpose of perfecting its security interest, and (ii) which is sixty (60) days after the Discharge
of Revolving Obligations.
(b) Revolving Collateral Agent and the Revolving Claimholders shall have no obligation
whatsoever to Notes Collateral Agent or any Notes Claimholder to ensure that the Pledged Collateral
is genuine or owned by any of Grantors or to preserve rights or benefits of any person except as
expressly set forth in this Section 5.4. Notes Collateral Agent and the Notes Claimholders
shall have no obligation whatsoever to Revolving Collateral Agent or any Revolving Claimholder to
ensure that the Pledged Collateral is genuine or owned by any of Grantors or to preserve rights or
benefits of any person except as expressly set forth in this Section 5.4. The duties or
responsibilities of Revolving Collateral Agent under this Section 5.4 shall be limited
solely to holding or controlling the Pledged Collateral as bailee and agent in accordance with this
Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Obligations
as provided in paragraph (d) of this Section 5.4. The duties or responsibilities of Notes
Collateral Agent under this Section 5.4 shall be limited solely to holding or controlling
the Pledged Collateral as bailee and agent in accordance with this Section 5.4 and
delivering the Pledged Collateral upon Discharge of Notes Obligations pursuant to Section
5.4(e).
(c) Revolving Collateral Agent acting pursuant to this Section 5.4 shall not have by
reason of the Revolving Collateral Documents, the Notes Collateral Documents, or this Agreement a
fiduciary relationship in respect of Notes Collateral Agent or any Notes Claimholder. Notes
Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the
Revolving Collateral Documents, the Notes Collateral Documents, or this Agreement a fiduciary
relationship in respect of Revolving Collateral Agent or any Revolving Claimholder.
(d) The Revolving Collateral Agent shall transfer to the Notes Collateral Agent (i) any
proceeds of any Revolving Priority Collateral in which the Notes Collateral Agent continues to hold
a security interest remaining following any sale, transfer or other disposition of such Revolving
Priority Collateral (in each case, unless the Notes Collateral Agent’s Lien on all such Revolving
Priority Collateral is terminated and released prior to or concurrently with such sale, transfer,
disposition, payment or satisfaction), following the Discharge of Revolving Obligations, or (ii) if
the Revolving Collateral Agent is in possession of all or any part of such Revolving Priority
Collateral after the Discharge of Revolving Obligations, such Revolving Priority Collateral or any
part thereof remaining, in each case without representation or warranty on the part of the
Revolving Collateral Agent or any Revolving Claimholder. At such time, Revolving Collateral Agent
further agrees to take all other action reasonably requested by Notes Collateral Agent at the
expense of AMLLC to enable Notes Collateral Agent to obtain a first priority security interest in
the Collateral. To the extent no Notes Obligations that are secured by such Pledged Collateral
remain outstanding as confirmed in writing by Notes Collateral Agent (so as to allow such person to
obtain possession or control of such Pledged Collateral), Revolving Collateral Agent shall deliver
the remaining Pledged Collateral (if any) together with any necessary endorsements to AMLLC.
Without limiting the foregoing, the Notes Collateral Agent agrees for itself and each Notes
Claimholder that neither the Revolving Collateral Agent nor any Revolving Claimholder will have any
duty or obligation first to marshal or realize upon the Revolving Priority Collateral, or to sell,
dispose of or otherwise liquidate all or any portion of the Revolving Priority Collateral, in any
manner that would maximize the return to the Notes Claimholders, notwithstanding that the order and
timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds
actually received by the Notes Claimholders from such realization, sale, disposition or
liquidation.
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(e) The Notes Collateral Agent shall transfer to the Revolving Collateral Agent (i) any
proceeds of any Notes Priority Collateral in which the Revolving Collateral Agent continues to hold
a security interest
remaining following any sale, transfer or other disposition of such Notes Priority Collateral
in each case, unless the Revolving Collateral Agent’s Lien on all such Notes Priority Collateral is
terminated and released prior to or concurrently with such sale, transfer, disposition, payment or
satisfaction), following the Discharge of Notes Obligations, or (ii) if the Notes Collateral Agent
is in possession of all or any part of such Notes Priority Collateral after the Discharge of Notes
Obligations, such Notes Priority Collateral or any part thereof remaining, in each case without
representation or warranty on the part of the Notes Collateral Agent or any Notes Claimholder. At
such time, Notes Collateral Agent further agrees to take all other action reasonably requested by
Revolving Collateral Agent at the expense of AMLLC to enable Revolving Collateral Agent to obtain a
first priority security interest in the Collateral. To the extent no Revolving Obligations that
are secured by such Pledged Collateral remain outstanding as confirmed in writing by Revolving
Collateral Agent (so as to allow such person to obtain possession or control of such Pledged
Collateral), Notes Collateral Agent shall deliver the remaining Pledged Collateral (if any)
together with any necessary endorsements to AMLLC. Without limiting the foregoing, the Revolving
Collateral Agent agrees for itself and each Revolving Claimholder that neither the Notes Collateral
Agent nor any Notes Claimholder will have any duty or obligation first to marshal or realize upon
the Notes Priority Collateral, or to sell, dispose of or otherwise liquidate all or any portion of
the Notes Priority Collateral, in any manner that would maximize the return to the Revolving
Claimholders, notwithstanding that the order and timing of any such realization, sale, disposition
or liquidation may affect the amount of proceeds actually received by the Revolving Claimholders
from such realization, sale, disposition or liquidation.
5.5 When Discharge of Obligations Deemed to Not Have Occurred.
(a) If Revolving Borrowers enter into any Refinancing of the Revolving Obligations that is
intended to be secured by the Revolving Priority Collateral on a first-priority basis, then a
Discharge of Revolving Obligations shall be deemed not to have occurred for all purposes of this
Agreement, and the obligations under such Refinancing of such Revolving Obligations shall be
treated as Revolving Obligations for all purposes of this Agreement, including for purposes of the
Lien priorities and rights in respect of Collateral set forth herein, and Revolving Collateral
Agent under the Revolving Loan Documents effecting such Refinancing shall be Revolving Collateral
Agent for all purposes of this Agreement. Revolving Collateral Agent under such Revolving Loan
Documents shall agree (in a writing addressed to Notes Collateral Agent) to be bound by the terms
of this Agreement.
(b) If AMLLC and Finance Sub enter into any Refinancing of the Notes Obligations that is
intended to be secured by the Notes Priority Collateral on a first-priority basis, then a Discharge
of Notes Obligations shall be deemed not to have occurred for all purposes of this Agreement, and
the obligations under such Refinancing of such Notes Obligations shall be treated as Notes
Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and
rights in respect of Collateral set forth herein, and the lender or group of lenders or any of
their designees under the Notes Documents effecting such Refinancing shall be Notes Collateral
Agent for all purposes of this Agreement. The lender or group of lenders or any of their designees
under such Notes Documents shall agree (in a writing addressed to Notes Collateral Agent) to be
bound by the terms of this Agreement.
5.6 Injunctive Relief. Should any Claimholder in any way take, attempt to, or
threaten to take any action contrary to terms of this Agreement with respect to the Collateral, or
fail to take any action required by this Agreement, the Notes Collateral Agent, the Revolving
Collateral Agent or any other Claimholder, as the case may be, may obtain relief against such
Claimholder by injunction, specific performance, or other appropriate equitable relief, it being
understood and agreed by each of the Notes Collateral Agent, the Revolving Collateral Agent and
each Claimholder that (a) non-breaching Claimholders’ damages from such actions may at that time be
difficult to ascertain and may be irreparable, and (b) each Claimholder waives any defense that
such Claimholder can demonstrate damages and/or be made whole by the awarding of damages.
Revolving Collateral Agent, Notes Collateral Agent and each Claimholder hereby irrevocably waive
any defense based on the adequacy of a remedy at law and any other defense which might be asserted
to bar the remedy of specific performance in any action which may be brought by Revolving
Collateral Agent or Revolving Claimholders or Notes Collateral Agent or Notes Claimholders, as the
case may be.
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SECTION 6. Insolvency Proceedings.
6.1 Enforceability and Continuing Priority. This Agreement shall be applicable both
before and after the commencement of any Insolvency Proceeding and all converted or succeeding
cases in respect thereof. The relative rights of Claimholders in or to any distributions from or
in respect of any Collateral or Proceeds of Collateral shall continue after the commencement of any
Insolvency Proceeding. Accordingly, the provisions of this Agreement (including, without
limitation, Section 2.1 hereof) are intended to be and shall be enforceable as a
subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code.
6.2 Financing.
(a) Until the Discharge of Revolving Obligations, if any Grantor shall be subject to any
Insolvency Proceeding and Revolving Collateral Agent consents to the use of cash collateral (as
such term is defined in Section 363(a) of the Bankruptcy Code; herein, “Cash Collateral”)
constituting Revolving Priority Collateral, or to permit any Grantor to obtain financing provided
by any one or more Revolving Claimholders under Section 364 of the Bankruptcy Code or any similar
Bankruptcy Law secured by a Lien on such Revolving Priority Collateral that is (i) senior or
pari passu with the Liens on the Revolving Priority Collateral securing the Notes
Obligations and (ii) junior to the Liens on the Notes Priority Collateral securing the Notes
Obligations (such financing, a “DIP Financing”), and if the Grantors desire to obtain
authorization from the Bankruptcy Court to use such Cash Collateral or to obtain such DIP
Financing, then Notes Collateral Agent agrees that it will be deemed to have consented, will raise
no objection to, nor support any other Person objecting to, the use of such Cash Collateral or to
such DIP Financing (including, except as set forth in clause (c) below, any objection based on an
assertion that the Notes Claimholders are entitled to adequate protection of their interest in the
Collateral as a condition thereto), and the Notes Collateral Agent will subordinate its Liens in
the Revolving Priority Collateral to the Liens securing such DIP Financing, to the extent any Liens
securing the Revolving Obligations are discharged, subordinated to, or made pari
passu with any new Liens securing such DIP Financing and to any replacement or additional
Liens granted as adequate protection of the interests of the Revolving Claimholders in the
Collateral (“Revolving Lender Adequate Protection Lien”), in each case to the extent
consistent with the other provisions of this Agreement; provided that (a) the Notes
Collateral Agent retains its Lien on the Collateral to secure the Notes Obligations (in each case,
including Proceeds thereof arising after the commencement of the Insolvency Proceeding) and, as to
the Notes Priority Collateral only, such Lien has the same priority as existed prior to the
commencement of the Insolvency Proceeding and any Lien on the Notes Priority Collateral securing
such DIP Financing and any Revolving Lender Adequate Protection Lien on the Notes Priority
Collateral (and all obligations relating thereto, including any “carve-out” in favor of fees and
expenses of professionals retained by any debtor or creditors’ committee as agreed to by the
Revolving Collateral Agent and the Revolving Lenders with respect to Revolving Priority Collateral)
is junior and subordinate to the Lien of the Notes Collateral Agent on the Notes Priority
Collateral, (b) all Liens on Revolving Priority Collateral securing any such DIP Financing shall be
senior to or on a parity with the Liens of the Revolving Collateral Agent and the Revolving
Claimholders securing the Revolving Obligations on Revolving Priority Collateral, (c) to the extent
that the Revolving Collateral Agent is granted a Revolving Lender Adequate Protection Lien on
Collateral arising after the commencement of the Insolvency Proceeding or additional payments or
claims, the Notes Claimholders are granted a Lien on such additional Collateral with the relative
priority set forth in Section 2.1 (and no Revolving Collateral Agent or Revolving
Claimholder shall oppose any motion by any Notes Claimholder with respect to the granting of such a
Lien), and (d) the terms of such DIP Financing or Cash Collateral order do not either require such
Notes Claimholders to extend additional credit pursuant to such DIP Financing or authorize the use
of Cash Collateral consisting of Notes Priority Collateral. Revolving Claimholders agree not to
offer to provide any DIP Financing that does not meet the requirements set forth in clauses (a)
through (d) above in this paragraph. If the Revolving Claimholders offer to provide DIP Financing
that meets the requirements set forth in clauses (a) through (d) above in this paragraph, and if
the Grantors desire to obtain authorization from the Bankruptcy Court to obtain such DIP Financing,
Notes Collateral Agent agrees, on behalf of itself and the other Notes Claimholders, that no Notes
Claimholder shall, directly or indirectly, provide, offer to provide, or support any financing
competing with the DIP Financing to be secured by a priming lien on the Revolving Priority
Collateral. The foregoing provisions of this Section 6.2(a) shall not prevent Notes
Collateral Agent from objecting to any provision in any Cash Collateral order or DIP Financing
documentation relating to any provision or content of a plan of reorganization. The Revolving
Collateral Agent, on behalf of itself and the Revolving Claimholders, agrees that no such Person
shall provide to such Grantor any financing under Section 364 of the Bankruptcy Code to the extent
that the Revolving Collateral Agent or any Revolving Claimholder would, in connection with such
financing, be granted a Lien on the Notes Priority Collateral senior to or pari passu with any
Liens of the Notes Collateral Agent.
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(b) Until the Discharge of Notes Obligations, if any Grantor shall be subject to any
Insolvency Proceeding and Notes Collateral Agent consents to the use of Cash Collateral
constituting Notes Priority Collateral or to permit any Grantor to obtain financing provided by any
one or more Notes Claimholders under Section 364 of the Bankruptcy Code or any similar Bankruptcy
Law secured by a Lien on Notes Priority Collateral that is (i) senior or pari passu
with the Liens on the Notes Priority Collateral securing the Notes Obligations and (ii) junior to
the Liens on the Revolving Priority Collateral securing the Revolving Obligations (such financing,
a “Term DIP Financing”), and if the Grantors desire to obtain authorization from the
Bankruptcy Court to use such Cash Collateral or to obtain such Term DIP Financing, then Revolving
Collateral Agent agrees that it will be deemed to have consented, will raise no objection to, nor
support any other Person objecting to, the use of such Cash Collateral or to such Term DIP
Financing (including, except as set forth in clause (c) below, any objection based on an assertion
that the Revolving Claimholders are entitled to adequate protection of their interest in the
Collateral as a condition thereto) and, the Revolving Collateral Agent will subordinate its Liens
in the Notes Priority Collateral to the Liens securing such Term DIP Financing, to the extent any
Liens securing the Notes Obligations are discharged, subordinated to, or made pari
passu with any new Liens securing such Term DIP Financing and to any replacement or
additional Liens granted as adequate protection of the interests of the Notes Claimholders in the
Collateral (“Notes Adequate Protection Lien”), in each case to the extent consistent with
the other provisions of this Agreement; provided that (a) the Revolving Collateral Agent
retains its Lien on the Collateral to secure the Revolving Obligations (in each case, including
Proceeds thereof arising after the commencement of the Insolvency Proceeding) and, as to the
Revolving Priority Collateral only, such Lien has the same priority as existed prior to the
commencement of the Insolvency Proceeding and any Lien on the Revolving Priority Collateral
securing such Term DIP Financing and any Term Adequate Protection Lien on the Revolving Priority
Collateral (and all obligations relating thereto, including any “carve-out” in favor of fees and
expenses of professionals retained by any debtor or creditors’ committee as agreed to by the Notes
Collateral Agent and the holders of the Notes with respect to Notes Priority Collateral) is junior
and subordinate to the Lien of the Revolving Collateral Agent on the Revolving Priority Collateral,
(b) all Liens on Notes Priority Collateral securing any such Term DIP Financing shall be senior to
or on a parity with the Liens of the Notes Collateral Agent and the Notes Claimholders securing the
Notes Obligations on Notes Priority Collateral, (c) to the extent that the Notes Collateral Agent
is granted a Notes Adequate Protection Lien on Collateral arising after the commencement of the
Insolvency Proceeding or additional payments or claims, the Revolving Claimholders are granted a
Lien on such additional Collateral with the relative priority set forth in Section 2.1 (and
no Notes Collateral Agent or Notes Claimholder shall oppose any motion by any Revolving Claimholder
with respect to the granting of such a Lien), and (d) the terms of such Term DIP Financing or Cash
Collateral order do not either require such Revolving Claimholders to extend additional credit
pursuant to such Term DIP Financing or authorize the use of Cash Collateral consisting of Revolving
Priority Collateral. Notes Claimholders agree not to offer to provide any Term DIP Financing that
does not meet the requirements set forth in clauses (a) through (d) above in this paragraph. If
the Notes Claimholders offer to provide Term DIP Financing that meets the requirements set forth in
clauses (a) through (d) above in this paragraph, and if the Grantors desire to obtain authorization
from the Bankruptcy Court to obtain such Term DIP Financing, Revolving Collateral Agent agrees, on
behalf of itself and the other Revolving Claimholders, that no Revolving Claimholder shall,
directly or indirectly, provide, offer to provide, or support any financing competing with the Term
DIP Financing to be secured by a priming lien on the Notes Priority Collateral. The foregoing
provisions of this Section 6.2(b) shall not prevent Revolving Collateral Agent from
objecting to any provision in any Cash Collateral order or Term DIP Financing documentation
relating to any provision or content of a plan of reorganization. The Notes Collateral Agent, on
behalf of itself and the Notes Claimholders, agrees that no such Person shall provide to such
Grantor any financing under Section 364 of the Bankruptcy Code to the extent that the Notes
Collateral Agent or any Note Claimholder would, in connection with such financing, be granted a
Lien on the Revolving Priority Collateral senior to or pari passu with any Liens of the Revolving
Collateral Agent.
(c) All Liens granted to the Revolving Collateral Agent or the Notes Collateral Agent in any
Insolvency Proceeding, whether as adequate protection or otherwise, are intended by the parties to
be and shall be deemed to be subject to the Lien priorities in Section 2.1 and the other
terms and conditions of this Agreement.
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6.3 Sales. Subject to Sections 3.4(a) and 3.8, each of Notes
Collateral Agent and Revolving Collateral Agent agrees that it will consent, and will not object or
oppose, or support any party in opposing, a motion to Dispose of any Priority Collateral of the
other party free and clear of any Liens or other claims under Section 363 or any other provision of
the Bankruptcy Code if the requisite Revolving Claimholders under the Revolving Credit Agreement
and the Revolving Collateral Agent, or Notes Claimholders under the Indenture and the Notes
Collateral
Agent, as the case may be, have consented to such Disposition of their respective Priority
Collateral, such motion does not impair, subject to the priorities set forth in this Agreement, the
rights of such party under Section 363(k) of the Bankruptcy Code (so long as the right of any Notes
Claimholder to offset its claim against the purchase price for any Revolving Priority Collateral
exists only after the Revolving Obligations have been paid in full in cash, and so long as the
right of any Revolving Claimholder to offset its claim against the purchase price for any Notes
Priority Collateral exists only after the Notes Obligations have been paid in full in cash), and
the terms of any proposed order approving such transaction provide for the respective Liens to
attach to the proceeds of the Priority Collateral that is the subject of such Disposition, subject
to the Lien priorities in Section 2.1 and the other terms and conditions of this Agreement.
Each of Notes Collateral Agent and Revolving Collateral Agent further agrees that it will not
oppose, or support any party in opposing, the right of the other party to credit bid under Section
363(k) of the Bankruptcy Code, subject to the provision of the immediately preceding sentence.
6.4 Relief from the Automatic Stay.
(a) Until the Discharge of Revolving Obligations has occurred, the Notes Collateral Agent
agrees not to seek (or support any other person seeking) relief from the automatic stay or any
other stay in any Insolvency Proceeding in respect of the Revolving Priority Collateral, without
the prior written consent of the Revolving Collateral Agent, unless (x) the Revolving Collateral
Agent already has filed a motion (which remains pending) for such relief with respect to its
interest in such Collateral and (y) a corresponding motion, in the reasonable judgment of the Notes
Collateral Agent, should be filed for the purpose of preserving such party’s ability to receive
residual distributions pursuant to Section 4.1, although the Notes Collateral Agent and the
Notes Claimholders shall otherwise remain subject to the applicable restrictions in Section
3.1 following the granting of any such relief from the automatic stay.
(b) Until the Discharge of the Notes Obligations has occurred, the Revolving Collateral Agent
agrees not to seek (or support any other person seeking) relief from the automatic stay or any
other stay in any Insolvency Proceeding in respect of the Notes Priority Collateral, without the
prior written consent of the Notes Collateral Agent, unless (x) the Notes Collateral Agent already
has filed a motion (which remains pending) for such relief with respect to its interest in such
Collateral and (y) a corresponding motion, in the reasonable judgment of the Revolving Collateral
Agent, should be filed for the purpose of preserving such party’s ability to receive residual
distributions pursuant to Section 4.1, although the Revolving Collateral Agent and the
Revolving Claimholders shall otherwise remain subject to the applicable restrictions in Section
3.2 following the granting of any such relief from the automatic stay.
6.5 Adequate Protection.
(a) In any Insolvency Proceeding involving a Grantor, each of Revolving Collateral Agent,
Revolving Claimholders, Notes Collateral Agent and Notes Claimholders agrees that it will not
oppose (or support any other person opposing) (i) any request by Notes Collateral Agent or any
Notes Claimholder, with respect to the Notes Priority Collateral prior to the Discharge of Notes
Obligations, or Revolving Collateral Agent or any Revolving Claimholder, with respect to the
Revolving Priority Collateral prior to the Discharge of Revolving Obligations, in each case, for
adequate protection for the application of proceeds of Revolving Priority Collateral to the
Revolving Obligations, or the proceeds of Notes Priority Collateral to the Notes Obligations, as
applicable, and, with respect to Liens on the Revolving Priority Collateral or the Notes Priority
Collateral, as applicable, for replacement or additional Liens on post-petition assets of the same
type as the Revolving Priority Collateral or the Notes Priority Collateral, as applicable, or (ii)
as applicable, (A) any objection by the Revolving Collateral Agent or the Revolving Claimholders to
any motion, relief, action or proceeding based on the Revolving Collateral Agent or the Revolving
Claimholders claiming a lack of adequate protection with respect to their Liens in the Revolving
Priority Collateral, or (B) any objection by the Notes Collateral Agent or the Notes Claimholders
to any motion, relief, action or proceeding based on the Notes Collateral Agent or the Notes
Claimholders claiming a lack of adequate protection with respect to their Liens in the Notes
Priority Collateral; provided, however, that (i) Revolving Collateral Agent and
Revolving Claimholders may object to any request for adequate protection that would result in any
adequate protection payments to Notes Collateral Agent or Notes Claimholders being made with any
Revolving Priority Collateral, or with any advances made pursuant to any DIP Financing prior to the
Discharge of the Revolving Obligations and (ii) Notes Collateral Agent and Notes Claimholders may
object to any request for adequate protection that would result in any adequate protection payments
to Revolving
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Collateral Agent or Revolving Claimholders being made
with any Notes Priority Collateral, or with any advances made pursuant to any Term DIP
Financing prior to the Discharge of the Notes Obligations. If the Revolving Collateral Agent, for
itself and on behalf of the Revolving Claimholders, seeks or requires (or is otherwise granted)
adequate protection of its junior interest in the Notes Priority Collateral in the form of a
replacement or additional Lien on the post-petition assets of the same type as the Notes Priority
Collateral, then the Revolving Collateral Agent, for itself and the Revolving Claimholders, agrees
that the Notes Collateral Agent shall also be granted a replacement or additional Lien on such
post-petition assets as adequate protection of its senior interest in the Notes Priority Collateral
and that the Revolving Collateral Agent’s replacement or additional Lien shall be subordinated to
the replacement or additional Lien of the Notes Collateral Agent on the same basis as the Liens of
the Revolving Collateral Agent on the Notes Priority Collateral are subordinated to the Liens of
the Notes Collateral Agent on the Notes Collateral under this Agreement; in that regard, the
Revolving Collateral Agent, for itself and the Revolving Claimholders, further agrees that it will
not accept any such replacement or additional Liens on such post-petition assets of the same type
as the Notes Priority Collateral unless the Notes Collateral Agent shall also have received a
replacement or additional Lien thereon as adequate protection of its senior interest in the Notes
Priority Collateral that is superior to the additional or replacement Liens so granted to the
Revolving Collateral Agent. If the Notes Collateral Agent, for itself and on behalf of the Notes
Claimholders, seeks or requires (or is otherwise granted) adequate protection of its junior
interest in the Revolving Priority Collateral in the form of a replacement or additional Lien on
the post-petition assets of the same type as the Revolving Priority Collateral, then the Notes
Collateral Agent, for itself and the Notes Claimholders, agrees that the Revolving Collateral Agent
shall also be granted a replacement or additional Lien on such post-petition assets as adequate
protection of its senior interest in the Revolving Priority Collateral and that the Notes
Collateral Agent’s replacement or additional Lien shall be subordinated to the replacement or
additional Lien of the Revolving Collateral Agent on the same basis as the Liens of the Notes
Collateral Agent on the Revolving Priority Collateral are subordinated to the Liens of the
Revolving Collateral Agent on the Revolving Priority Collateral under this Agreement; in that
regard, the Notes Collateral Agent, for itself and the Notes Claimholders, further agrees that it
will not accept any such replacement or additional Liens on such post-petition assets of the same
type as the Revolving Priority Collateral unless the Revolving Collateral Agent shall also have
received a replacement or additional Lien thereon as adequate protection of its senior interest in
the Revolving Priority Collateral that is superior to the additional or replacement Liens so
granted to the Notes Collateral Agent.
(b) Subject to Sections 6.2 and 6.5(a), and other provisions hereof, in any
Insolvency Proceeding involving a Grantor, (i) Notes Collateral Agent and the Notes Claimholders
may seek, without objection from Revolving Claimholders, adequate protection with respect to their
rights in the Notes Priority Collateral, and (ii) the Revolving Collateral Agent and the Revolving
Claimholders may seek, without objection from Notes Claimholders, adequate protection with respect
to their rights in the Revolving Priority Collateral; provided that if any of Notes
Collateral Agent, the Notes Claimholders, the Revolving Collateral Agent or the Revolving
Claimholders are granted adequate protection in the form of a replacement or additional Lien (on
existing or future assets of Grantors), claim, payment or otherwise, such replacement or additional
Lien or other adequate protection shall be subject to the terms of this Agreement.
(c) Neither Notes Collateral Agent nor any other Notes Claimholder shall object to, oppose, or
challenge any claim or order by Revolving Collateral Agent or any Revolving Claimholder for
allowance or payment, including, without limitation, current payment, in any Insolvency Proceeding
of Revolving Obligations consisting of post-petition interest, fees, or expenses with the Revolving
Priority Collateral (so long as any post-petition interest paid as a result thereof is not paid
from the proceeds of Notes Priority Collateral) or with any advances made pursuant to any DIP
Financing or for relief through the automatic stay with respect to the Revolving Priority
Collateral.
(d) Neither Revolving Collateral Agent nor any other Revolving Claimholder shall object to,
oppose, or challenge any claim or order by Notes Collateral Agent or any Notes Claimholder for
allowance or payment, including, without limitation, current payment, in any Insolvency Proceeding
of Notes Obligations consisting of post-petition interest, fees, or expenses with the Notes
Priority Collateral (so long as any post-petition interest paid as a result thereof is not paid
from the proceeds of Revolving Priority Collateral) or with any advances made pursuant to any Term
DIP Financing or for relief through the automatic stay with respect to the Notes Priority
Collateral.
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(e) The Notes Collateral Agent, for itself and on behalf of the Notes Claimholders, may seek
adequate protection of its junior interest in the Revolving Priority Collateral, subject to the
provisions of this Agreement; provided that (x) the Revolving Collateral Agent is granted adequate
protection in the form of a replacement or additional Lien on post-petition assets of the same type
as the Revolving Priority Collateral and (y) such adequate protection required by the Notes
Collateral Agent is in the form of a replacement or additional Lien on post-petition assets of the
same type as the Revolving Priority Collateral.
(f) The Revolving Collateral Agent, for itself and on behalf of Revolving Claimholders, may
seek adequate protection of its junior interest in the Notes Priority Collateral, subject to the
provisions of this Agreement; provided that (x) the Notes Collateral Agent is granted adequate
protection in the form of a replacement or additional Lien on post-petition assets of the same type
as the Notes Priority Collateral and (y) such adequate protection required by the Revolving
Collateral Agent is in the form of a replacement or additional Lien on post-petition assets of the
same type as the Notes Priority Collateral.
6.6 Section 1111(b) of the Bankruptcy Code. Neither Notes Collateral Agent nor the
Revolving Collateral Agent shall object to, oppose, support any objection, or take any other action
to impede, the right of any Claimholder to make an election under Section 1111(b)(2) of the
Bankruptcy Code. So long as the respective rights and remedies available to Notes Collateral Agent
and Revolving Collateral Agent hereunder are not impaired thereby, each of the Notes Collateral
Agent and the Revolving Collateral Agent waives any claim it may hereafter have against any
Claimholder arising out of the election by such Claimholder of such application of Section
1111(b)(2) and Section 364 of the Bankruptcy Code. The Notes Collateral Agent and Revolving
Collateral Agent each waive to the fullest extent permitted by law any claim it may hereafter have
against any Grantor or their respective subsidiaries arising out of any borrowing of, or grant of a
security interest or administrative expense priority under Section 364 of the Bankruptcy Code to,
Grantor or any of their respective Subsidiaries as debtor-in-possession.
6.7 Avoidance Issues. If any Claimholder is required in any Insolvency Proceeding or
otherwise to turn over, disgorge or otherwise pay to the estate of any Grantor any amount paid in
respect of Revolving Obligations or Notes Obligations, as the case may be (a “Recovery”),
then such Claimholders shall be entitled to a reinstatement of the Revolving Obligations or the
Notes Obligations, as applicable, with respect to all such recovered amounts, and all rights,
interests, priorities and privileges recognized in this Agreement shall apply with respect to any
such Recovery. If this Agreement shall have been terminated prior to such Recovery, this Agreement
shall be reinstated in full force and effect, and such prior termination shall not diminish,
release, discharge, impair, or otherwise affect the obligations of the parties hereto from such
date of reinstatement.
6.8 Plan of Reorganization. If, in any Insolvency Proceeding involving a Grantor,
debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized
debtor are distributed or reinstated (in whole or in part) pursuant to a plan of reorganization or
similar dispositive restructuring plan, both on account of Revolving Obligations and on account of
Notes Obligations, then, to the extent the debt obligations distributed on account of the Revolving
Obligations and on account of the Notes Obligations are secured by Liens upon the same property,
the provisions of this Agreement will survive the distribution of such debt obligations pursuant to
such plan and will apply with like effect to the Liens securing such debt obligations.
6.9 Separate Grants of Security and Separate Classification. The Revolving Collateral
Agent, on behalf of the Revolving Claimholders, and the Notes Collateral Agent, on behalf of the
Notes Claimholders, acknowledge and intend that: the respective grants of Liens pursuant to the
Revolving Collateral Documents and the Notes Collateral Documents constitute two separate and
distinct grants of Liens, and because of, among other things, their differing rights in the
Collateral (i) the Notes Obligations are fundamentally different from the Revolving Obligations
and, (ii) the Revolving Obligations are fundamentally different from the Notes Obligations and, in
each case, must be separately classified in any plan of reorganization proposed or confirmed (or
approved) in an Insolvency Proceeding. To further effectuate the intent of the parties as provided
in the immediately preceding sentence, if it is held that the claims of the Revolving Claimholders
and the Notes Claimholders in respect of the Collateral constitute claims in the same class (rather
than at least two separate classes of secured claims with the priorities described in Section
2.1), then the Revolving Claimholders and the Notes Claimholders hereby acknowledge and agree
that all distributions shall be made as if there were two separate classes of Revolving Obligations
and Notes Obligations (with the effect being that, to the extent that (i) the aggregate value of
the Revolving Claimholders’ Revolving Priority Collateral is sufficient (for this purpose ignoring
all claims held by the Notes
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Claimholders thereon), the
Revolving Claimholders shall be entitled to receive, in addition to amounts distributed to them in
respect of principal, pre-petition interest and other claims, all amounts owing in respect of
post-petition interest, fees or expenses that is available from their Revolving Priority Collateral
(regardless of whether any such claims may or may not be allowed or allowable in whole or in part
as against the Grantor in the respective Insolvency Proceeding pursuant to Section 506(b) of the
Bankruptcy Code or otherwise), before any distribution is made in respect of the Notes Obligations
with respect to such Collateral, with each Notes Claimholder acknowledging and agreeing to turn
over to the Revolving Collateral Agent with respect to such Collateral amounts otherwise received
or receivable by them to the extent necessary to effectuate the intent of this sentence, even if
such turnover has the effect of reducing the aggregate recoveries of the Notes Obligations and (ii)
the aggregate value of the Notes Claimholders’ Notes Priority Collateral is sufficient (for this
purpose ignoring all claims held by the Revolving Claimholders thereon), the Notes Claimholders
shall be entitled to receive, in addition to amounts distributed to them in respect of principal,
pre-petition interest and other claims, all amounts owing in respect of post-petition interest,
fees or expenses that is available from their Notes Priority Collateral (regardless of whether any
such claims may or may not be allowed or allowable in whole or in part as against the Grantor in
the respective Insolvency Proceeding pursuant to Section 506(b) of the Bankruptcy Code or
otherwise), before any distribution is made in respect of the Revolving Obligations with respect to
such Collateral, with each Revolving Claimholder acknowledging and agreeing to turn over to the
Notes Collateral Agent with respect to such Collateral amounts otherwise received or receivable by
them to the extent necessary to effectuate the intent of this sentence, even if such turnover has
the effect of reducing the aggregate recoveries of the Revolving Obligations).
SECTION 7. Reliance; Waivers; Etc.
7.1 Reliance. Other than any reliance on the terms of this Agreement, Revolving
Collateral Agent, on behalf of the Revolving Claimholders, acknowledges that it and such Revolving
Claimholders have, independently and without reliance on Notes Collateral Agent or any Notes
Claimholder, and based on documents and information deemed by them appropriate, made their own
credit analysis and decision to enter into each of the Revolving Loan Documents and be bound by the
terms of this Agreement and they will continue to make their own credit decision in taking or not
taking any action under the Revolving Loan Documents or this Agreement. Other than any reliance on
the terms of this Agreement, Notes Collateral Agent acknowledges on behalf of the Notes
Claimholders that it and such Notes Claimholders have, independently and without reliance on
Revolving Collateral Agent or any Revolving Claimholder, and based on documents and information
deemed by them appropriate, made their own credit analysis and decision to enter into each of the
Notes Documents and be bound by the terms of this Agreement and they will continue to make their
own credit decision in taking or not taking any action under the Notes Documents or this Agreement.
7.2 No Warranties or Liability. Revolving Collateral Agent, on behalf of the
Revolving Claimholders, acknowledges and agrees that Notes Collateral Agent has made no express or
implied representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility, or enforceability of any of the Notes Documents, the ownership by any
Grantor of any Collateral, or the perfection or priority of any Liens thereon. Except as otherwise
expressly provided herein, Notes Collateral Agent and the Notes Claimholders will be entitled to
manage and supervise the Notes Documents in accordance with law and as they may otherwise, in their
sole discretion, deem appropriate. Notes Collateral Agent, on behalf of the Notes Claimholders,
acknowledges and agrees that Revolving Collateral Agent and Revolving Claimholders have made no
express or implied representation or warranty, including with respect to the execution, validity,
legality, completeness, collectibility, or enforceability of any of the Revolving Loan Documents,
the ownership of any Collateral, or the perfection or priority of any Liens thereon. Except as
otherwise expressly provided herein, Revolving Claimholders will be entitled to manage and
supervise their respective loans and extensions of credit under the Revolving Loan Documents in
accordance with law and as they may otherwise, in their sole discretion, deem appropriate. Except
as expressly provided herein, the Notes Collateral Agent and Notes Claimholders shall have no duty
to Revolving Collateral Agent or any Revolving Claimholders, and Revolving Collateral Agent and
Revolving Claimholders shall have no duty to Notes Collateral Agent or any Notes Claimholders, to
act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of
an event of default or default under any agreements with any Grantor (including the Revolving Loan
Documents and the Notes Documents), regardless of any knowledge thereof which they may have or be
charged with. The Notes Collateral Agent hereby waives to the fullest extent permitted by law any
claim that may be had against the Revolving Collateral Agent or any Revolving Claimholder arising
out of any actions which the Revolving Collateral Agent or such Revolving Claimholder take or omit
to take (including,
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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
Revolving Obligations from any account debtor, guarantor or any other party), or the valuation,
use, protection or release of any security for such Revolving Obligations. The Revolving
Collateral Agent hereby waives to the fullest extent permitted by law any claim that may be had
against the Notes Collateral Agent or any Notes Claimholder arising out of any actions which the
Notes Collateral Agent or such Notes Claimholder 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 Notes Obligations from any account debtor, guarantor or any other party), or the valuation,
use, protection or release of any security for such Notes Obligations.
7.3 No Waiver of Lien Priorities.
(a) No right of Revolving Claimholders, Revolving Collateral Agent or any of them to enforce
any provision of this Agreement or any Revolving Loan Document shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of any Grantor or by any act or
failure to act by any Revolving Claimholder or Revolving Collateral Agent, or by any noncompliance
by any Person with the terms, provisions, and covenants of this Agreement, any of the Revolving
Loan Documents or any of the Notes Documents, regardless of any knowledge thereof which Revolving
Collateral Agent or Revolving Claimholders, or any of them, may have or be otherwise charged with.
No right of Notes Claimholders, Notes Collateral Agent or any of them to enforce any provision of
this Agreement or any Notes Document shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of any Grantor or by any act or failure to act by any Notes
Claimholder or Notes Collateral Agent, or by any noncompliance by any person with the terms,
provisions, and covenants of this Agreement, any of the Notes Documents or any of the Revolving
Loan Documents, regardless of any knowledge thereof which Notes Collateral Agent or Notes
Claimholders, or any of them, may have or be otherwise charged with.
(b) Subject to any rights of Grantors under the Revolving Loan Documents and the Notes
Documents and subject to the provisions of Section 5.3(a), the Revolving Collateral Agent
and Revolving Claimholders may, at any time and from time to time in accordance with the Revolving
Loan Documents and/or applicable law, without the consent of, or notice to, the Notes Collateral
Agent or any Notes Claimholders, without incurring any liabilities to Notes Collateral Agent or any
Notes Claimholders and without impairing or releasing the Lien priorities and other benefits
provided in this Agreement (even if any right of subrogation or other right or remedy of Notes
Collateral Agent or Notes Claimholders is affected, impaired, or extinguished thereby) do any one
or more of the following without the prior written consent of Notes Collateral Agent or any Notes
Claimholders:
(i) change the manner, place, or terms of payment or change or extend the time
of payment of, or amend, renew, exchange, increase, or alter, the terms of any of
the Revolving Obligations or any Lien on any Collateral or guarantee thereof or any
liability of any Grantor, or any liability incurred directly or indirectly in
respect thereof (including any increase in or extension of the Revolving
Obligations, without any restriction as to the tenor or terms of any such increase
or extension) or otherwise amend, renew, exchange, extend, modify, or supplement in
any manner any Liens held by Revolving Collateral Agent or any Revolving
Claimholders, the Revolving Obligations, or any of the Revolving Loan Documents;
(ii) sell, exchange, release, surrender, realize upon, enforce or otherwise
deal with in any manner and in any order any part of the Revolving Priority
Collateral or any liability of any Grantor to Revolving Claimholders or Revolving
Collateral Agent, or any liability incurred directly or indirectly in respect
thereof;
(iii) settle or compromise any Revolving Obligation or any other liability of
any Grantor or any security therefor or any liability incurred directly or
indirectly in respect thereof and apply any sums by whomsoever paid and however
realized to any liability (including the Revolving Obligations) in any manner or
order that is not inconsistent with the terms of this Agreement; and
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(iv) exercise or delay in or refrain from exercising any right or remedy
against any Grantor or any other person, elect any remedy and otherwise deal freely
with any Grantor or any Revolving Priority Collateral and any security and any
guarantor or any liability of any Grantor to Revolving Claimholders or any liability
incurred directly or indirectly in respect thereof.
(c) Except as otherwise provided herein, Notes Collateral Agent and Notes Claimholders also
agree that Revolving Claimholders and Revolving Collateral Agent shall have no liability to Notes
Collateral Agent and Notes Claimholders, and Notes Collateral Agent and Notes Claimholders hereby
waive any claim against any Revolving Claimholder or Revolving Collateral Agent, arising out of any
and all actions which Revolving Claimholders or Revolving Collateral Agent may, pursuant to the
terms hereof, take, permit or omit to take with respect to:
(i) the Revolving Loan Documents;
(ii) the collection of the Revolving Obligations; or
(iii) the foreclosure upon, or sale, liquidation, or other Disposition of, or
the failure to foreclose upon, or sell, liquidate, or otherwise dispose of, any
Revolving Priority Collateral. Notes Collateral Agent and Notes Claimholders agree
that Revolving Claimholders and Revolving Collateral Agent have no duty to them in
respect of the maintenance or preservation of the Revolving Priority Collateral, the
Revolving Obligations, or otherwise.
(d) Subject to any rights of Grantors under the Notes Documents and subject to the provisions
of Section 5.3(b), Notes Collateral Agent may, at any time and from time to time in
accordance with the Notes Documents and/or applicable law, without the consent of, or notice to,
Revolving Collateral Agent or the Revolving Claimholders, without incurring any liabilities to
Revolving Collateral Agent or the Revolving Claimholders and without impairing or releasing the
Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or
other right or remedy of Revolving Collateral Agent or the Revolving Claimholders is affected,
impaired, or extinguished thereby) do any one or more of the following without the prior written
consent of Revolving Collateral Agent and Revolving Claimholders:
(i) change the manner, place, or terms of payment or change or extend the time
of payment of, or amend, renew, exchange, increase, or alter, the terms of any of
the Notes Obligations or any Lien on any Collateral or guarantee thereof or any
liability of any Grantor, or any liability incurred directly or indirectly in
respect thereof (including any increase in or extension of the Notes Obligations,
without any restriction as to the tenor or terms of any such increase or extension)
or otherwise amend, renew, exchange, extend, modify, or supplement in any manner any
Liens held by Notes Collateral Agent or any Notes Claimholders, the Notes
Obligations, or any of the Notes Documents;
(ii) subject to Section 3.8, sell, exchange, release, surrender,
realize upon, enforce or otherwise deal with in any manner and in any order any part
of the Notes Priority Collateral or any liability of any Grantor to Notes
Claimholders or Notes Collateral Agent, or any liability incurred directly or
indirectly in respect thereof;
(iii) settle or compromise any Notes Obligation or any other liability of any
Grantor or any security therefor or any liability incurred directly or indirectly in
respect thereof and apply any sums by whomsoever paid and however realized to any
liability (including the Notes Obligations) in any manner or order that is not
inconsistent with this Agreement; and
(iv) exercise or delay in or refrain from exercising any right or remedy
against any Grantor or any other person, elect any remedy and otherwise deal freely
with any Grantor or any Notes Priority Collateral and any security and any guarantor
or any liability of any Grantor to Notes Collateral Agent or Notes Claimholders or
any liability incurred directly or indirectly in respect thereof.
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(e) Except as otherwise provided herein, Revolving Claimholders and Revolving Collateral Agent
also agree that Notes Collateral Agent and Notes Claimholders shall have no liability to Revolving
Claimholders and Revolving Collateral Agent, and Revolving Claimholders and Revolving Collateral
Agent hereby waive any claim against Notes Collateral Agent and Notes Claimholders, arising out of
any and all actions which Notes Collateral Agent and Notes Claimholders may, pursuant to the terms
hereof, take, permit or omit to take with respect to:
(i) the Notes Documents;
(ii) the collection of the Notes Obligations; or
(iii) the foreclosure upon, or sale, liquidation, or other Disposition of, or
the failure to foreclose upon, or sell, liquidate, or otherwise dispose of, any
Notes Priority Collateral. Revolving Claimholders and Revolving Collateral Agent
agree that Notes Collateral Agent and Notes Claimholders has no duty to them in
respect of the maintenance or preservation of the Notes Priority Collateral, the
Notes Obligations, or otherwise.
(f) Until the Discharge of Revolving Obligations and the Discharge of Notes Obligations, each
of Revolving Collateral Agent and Notes Collateral Agent agrees not to assert and hereby waives, to
the fullest extent permitted by law, any right to demand, request, plead, or otherwise assert, or
otherwise claim the benefit of, any marshaling, appraisal, valuation, or other similar right that
may otherwise be available under applicable law with respect to the other party’s Priority
Collateral or any other similar rights a junior secured creditor may have under applicable law.
7.4 Obligations Unconditional. For so long as this Agreement is in full force and
effect, all rights, interests, agreements and obligations of Revolving Collateral Agent and
Revolving Claimholders and Notes Collateral Agent and Notes Claimholders, respectively, hereunder
shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Revolving Loan Documents or any Notes
Documents;
(b) except as otherwise expressly restricted in this Agreement, any change in the time,
manner, or place of payment of, or in any other terms of, all or any of the Revolving Obligations
or Notes Obligations, or any amendment or waiver or other modification, including any increase in
the amount thereof, whether by course of conduct or otherwise, of the terms of any Revolving Loan
Document or any Notes Document;
(c) except as otherwise expressly restricted in this Agreement, any exchange of any security
interest in any Collateral or any other collateral, or any amendment, waiver or other modification,
whether in writing or by course of conduct or otherwise, of all or any of the Revolving Obligations
or Notes Obligations or any guarantee thereof;
(d) the commencement of any Insolvency Proceeding in respect of any Grantor; or
(e) any other circumstances which otherwise might constitute a defense available to, or a
discharge of, any Grantor in respect of Revolving Collateral Agent, any Revolving Claimholder, the
Revolving Obligations, Notes Collateral Agent, any Notes Claimholder, or the Notes Obligations in
respect of this Agreement.
SECTION 8. Representations and Warranties.
8.1 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 execute
and deliver this Agreement and to perform its obligations hereunder.
(b) This Agreement has been duly executed and delivered by such party.
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8.2 Representations and Warranties of Each Agent. Revolving Collateral Agent and
Notes Collateral Agent each represents and warrants to the other that it has been authorized by
Revolving Lenders or holders of Notes, as applicable, under the Revolving Credit Agreement or the
Indenture, as applicable, to enter into this Agreement.
SECTION 9. Miscellaneous.
9.1 Conflicts. Except to the extent expressly provided in Section 9.15, in
the event of any conflict between the provisions of this Agreement and the provisions of any of the
Revolving Loan Documents or any of the Notes Documents, the provisions of this Agreement shall
govern and control.
9.2 Effectiveness; Continuing Nature of this Agreement; Severability. This Agreement
shall become effective when executed and delivered by the parties hereto. This is a continuing
agreement of lien subordination (as opposed to debt or claim subordination) and Revolving
Claimholders may continue, at any time and without notice to Notes Collateral Agent or Notes
Claimholders, to extend credit and other financial accommodations to or for the benefit of any
Grantor constituting Revolving Obligations in reliance hereon. Each of Revolving Collateral Agent
and Notes Collateral Agent hereby waives any right it may have under applicable law to revoke this
Agreement or any of the provisions of this Agreement. The terms of this Agreement shall survive,
and shall continue in full force and effect, in any Insolvency Proceeding. Consistent with, but
not in limitation of, the preceding sentence, the Revolving Collateral Agent and the Notes
Collateral Agent, on behalf of the applicable Claimholders, irrevocably acknowledges that this
Agreement constitutes a “subordination agreement” within the meaning of both New York law and
Section 510(a) of the Bankruptcy Code. Any provision of this Agreement that is prohibited or
unenforceable shall not invalidate the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. All references to any Grantor shall include such Grantor as debtor and
debtor in possession and any receiver or trustee for such Grantor in any Insolvency Proceeding.
This Agreement shall terminate and be of no further force and effect:
(a) with respect to Revolving Collateral Agent, Revolving Claimholders, and the
Revolving Obligations, on the date that the Discharge of Revolving Obligations has occurred;
and
(b) with respect to Notes Collateral Agent, Notes Claimholders and the Notes
Obligations on the date that the Discharge of Notes Obligations has occurred.
9.3 Amendments; Waivers. Except as provided in the last two sentences of this
Section, no amendment, modification, or waiver of any of the provisions of this Agreement shall be
effective unless the same shall be in writing signed on behalf of each party hereto or its
authorized agent and each waiver, if any, shall be a waiver only with respect to the specific
instance involved and shall in no way impair the rights of the parties making such waiver or the
obligations of the other parties to such party in any other respect or at any other time. Any
amendments, modifications or waivers can be effected by the Revolving Collateral Agent, at the
direction of the requisite Revolving Claimholders under the Revolving Credit Agreement, and by the
Notes Collateral Agent, at the direction of the requisite Notes Claimholders under the Indenture.
Notwithstanding the foregoing, (i) no Grantor shall have any right to consent to or approve any
amendment, modification or waiver of any provision of this Agreement except to the extent its
rights are directly affected, (ii) any Other Pari Passu Obligations Agent, on behalf of itself and
such holders, may become a party to this Agreement, without any further action by any other party
hereto, upon execution and delivery by AMLLC, Finance Sub and such Other Pari Passu Obligations
Agent of a properly completed joinder agreement (in form and substance reasonably satisfactory to
each of the Revolving Collateral Agent and the Notes Collateral Agent) to each of the other parties
hereto, (iii) any duly appointed agent for the holders of Revolving Obligations described in clause
(ii) of the definition thereof, on behalf of itself and such holders, may become a party to this
Agreement, without any further action by any other party hereto, upon execution and delivery by
AMLLC, Finance Sub and such agent of a properly completed joinder agreement (in form and substance
reasonably satisfactory to each of the Revolving Collateral Agent and the Notes Collateral Agent)
to each of the other parties hereto and delivery to the Notes Collateral Agent by AMLLC of an
officer’s certificate certifying that such obligations are permitted by the Indenture to be
included hereunder as Revolving Obligations, (iv) technical modifications may be made to this
Agreement to facilitate the inclusion of Other Pari Passu Obligations without any
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further action
by any other party hereto to the extent such Other Pari Passu Obligations are permitted to be
incurred under the Revolving Loan Documents and the Notes Documents and (v) technical modifications
may be made to this Agreement to facilitate the inclusion of Revolving Obligations described in
clause (ii) of the definition thereof without any further action by any other party hereto to the
extent such Obligations are permitted to be incurred under the Revolving Loan Documents and the
Notes Documents. In connection with any Refinancing of the Notes Obligations or Revolving
Obligations pursuant to Section 5.3(a) or 5.3(b), as applicable, this Agreement may
be amended at the request and sole expense of the Grantors, and without the consent of either the
Bank Collateral Agent or the Notes Collateral Agent, (i) to add parties (or any authorized agent or
trustee therefor) providing any such Refinancing, (ii) to establish that Liens on any Notes
Priority Collateral securing such Refinanced debt shall have the same priority as the Liens on any
Notes Priority Collateral securing the debt being Refinanced and (iii) to establish that the Liens
on any Revolving Priority Collateral securing such Refinanced debt shall have the same priority as
the Liens on any Revolving Priority Collateral securing the debt being Refinanced. Notwithstanding
anything to the contrary in this Agreement, this Agreement may be amended from time to time at the
sole request and expense of the Issuers (as defined under the Indenture), (x) as set forth in the
second paragraph of Section 9.01 of the Indenture, without the consent of the Notes Collateral
Agent, and (y) as set forth in the second paragraph of such Section 9.01 as in effect on the date
hereof, without the consent of the Revolving Collateral Agent.
9.4 Information Concerning Financial Condition of AMLLC and its Subsidiaries.
Revolving Collateral Agent and Revolving Claimholders, on the one hand, and Notes Collateral Agent
and Notes Claimholders, on the other hand, shall each be responsible for keeping themselves
informed of (a) the financial condition of AMLLC and its Subsidiaries and all endorsers and/or
guarantors of the Revolving Obligations or the Notes Obligations and (b) all other circumstances
bearing upon the risk of nonpayment of the Revolving Obligations or the Notes Obligations.
Revolving Collateral Agent and Revolving Claimholders shall have no duty to advise Notes Collateral
Agent and Notes Claimholders of information known to it or them regarding such condition or any
such circumstances or otherwise. Notes Collateral Agent and Notes Claimholders shall have no duty
to advise Revolving Collateral Agent or any Revolving Claimholder of information known to it or
them regarding such condition or any such circumstances or otherwise. In the event Revolving
Collateral Agent or any Revolving Claimholders, or Notes Collateral Agent or any Notes
Claimholders, in its or their sole discretion, undertakes at any time or from time to time to
provide any such information to any other party to this Agreement, it or they shall be under no
obligation:
(a) to make, and Revolving Collateral Agent and Revolving Claimholders, or Notes
Collateral Agent and Notes Claimholders, as the case may be, shall not be required to make,
any express or implied representation or warranty, including with respect to the accuracy,
completeness, truthfulness, or validity of any such information so provided;
(b) to provide any additional information or to provide any such information on any
subsequent occasion;
(c) to undertake any investigation; or
(d) to disclose any information, which pursuant to accepted or reasonable commercial
practices, such party wishes to maintain confidential or is otherwise required to maintain
confidential.
9.5 Subrogation. (a) With respect to any payments or distributions in cash, property,
or other assets that any Notes Claimholders or Notes Collateral Agent pay over to Revolving
Collateral Agent or Revolving Claimholders under the terms of this Agreement, Notes Claimholders
and Notes Collateral Agent shall be subrogated to the rights of Revolving Collateral Agent and
Revolving Claimholders and (b) with respect to any payments or distributions in cash, property, or
other assets that any Revolving Claimholders or Revolving Collateral Agent pay over to Notes
Collateral Agent or Notes Claimholders under the terms of this Agreement, Revolving Claimholders
and Revolving Collateral Agent shall be subrogated to the rights of Notes Collateral Agent and
Notes Claimholders; provided, however, that, Revolving Collateral Agent and Notes
Collateral Agent each hereby agrees not to assert or enforce any such rights of subrogation it may
acquire as a result of any payment hereunder until the Discharge of all Revolving Obligations or
Discharge of Notes Obligations, as applicable, has occurred. Any payments or distributions in
cash, property or other assets received by Revolving Collateral Agent or Revolving Claimholders
that are paid over to Notes Collateral Agent or Notes Claimholders pursuant to this Agreement shall
not reduce any of the Revolving Obligations. Any payments or distributions in cash, property or
other assets received by Notes Collateral
Agent or Notes Claimholders that are paid over to Revolving Collateral Agent or Revolving
Claimholders pursuant to this Agreement shall not reduce any of the Notes Obligations.
Notwithstanding the foregoing provisions of this Section 9.5, none of the Revolving
Claimholders shall have any claim against any of the Notes Claimholders for any impairment of any
subrogation rights herein granted to the Notes Claimholders and none of the Notes Claimholders
shall have any claim against any of the Revolving Claimholders for any impairment of any
subrogation rights herein granted to the Revolving Claimholders.
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9.6 GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE. THIS AGREEMENT AND THE
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH OF THE PARTIES HERETO HEREBY CONSENTS AND
AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK SHALL HAVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES AMONG THE PARTIES HERETO PERTAINING TO THIS AGREEMENT OR
TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED THAT THE PARTIES HERETO
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
NEW YORK, NEW YORK. EACH OF THE PARTIES HERETO EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH OF THE PARTIES HERETO
HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OR FORUM NON CONVENIENS.
9.7 Notices. All notices to Revolving Claimholders permitted or required under this
Agreement shall also be sent to Revolving Collateral Agent. All notices to Notes Claimholders
permitted or required under this Agreement shall also be sent to Notes Collateral Agent. Unless
otherwise specifically provided herein, any notice hereunder shall be in writing and may be
personally served or sent by telefacsimile or United States mail or courier service or electronic
mail and shall be deemed to have been given when delivered in person or by courier service and
signed for against receipt thereof, upon receipt of telefacsimile or electronic mail, or 3 Business
Days after depositing it in the United States mail with postage prepaid and properly addressed.
For the purposes hereof, the addresses of the parties hereto shall be as is designated by such
party on the signature pages hereto. The Borrower shall provide written notice to the Revolving
Collateral Agent of the Discharge of Notes Obligations and shall provide written notice to the
Notes Collateral Agent of the Discharge of Revolving Obligations.
9.8 Further Assurances. Revolving Collateral Agent and Notes Collateral Agent each
agrees to take such further action and shall execute and deliver such additional documents and
instruments (in recordable form, if requested) as Revolving Collateral Agent or Notes Collateral
Agent may reasonably request to effectuate the terms of and the Lien priorities contemplated by
this Agreement, all at the expense of Grantors.
9.9 Binding on Successors and Assigns. This Agreement shall be binding upon Revolving
Collateral Agent, Revolving Claimholders, Notes Collateral Agent, Notes Claimholders, and their
respective successors and assigns.
9.10 Headings. Section headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any other purpose or be
given any substantive effect.
9.11 Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. Delivery of an executed counterpart
of a signature page of this Agreement or any document or instrument delivered in connection
herewith by telecopy shall be effective as delivery of a manually executed counterpart of this
Agreement or such other document or instrument, as applicable.
9.12 No Third Party Beneficiaries. This Agreement and the rights and benefits hereof
shall inure to the benefit of each of the parties hereto and its respective successors and assigns
and shall inure to the benefit of and bind each of Revolving Claimholders and Notes Claimholders.
In no event shall any Grantor be a third party beneficiary of this Agreement.
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9.13 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 Revolving Collateral
Agent and Revolving Claimholders on the one hand and Notes Collateral Agent and Notes Claimholders
on the other hand. No Grantor or any other creditor thereof shall have any rights hereunder and no
Grantor may rely on the terms hereof. Nothing in this Agreement shall impair, as between Grantors
and Revolving Collateral Agent and Revolving Claimholders, or as between Grantors and Notes
Collateral Agent and Notes Claimholders, the obligations of Grantors to pay principal, interest,
fees and other amounts as provided in the Revolving Loan Documents and the Notes Documents,
respectively.
9.14 Specific Performance. Each of the Revolving Collateral Agent and the Notes
Collateral Agent may demand specific performance of this Agreement. The Revolving Collateral
Agent, on behalf of itself and the Revolving Claimholders, and the Notes Collateral Agent, on
behalf of itself and the Notes Claimholders, hereby irrevocably waive any defense based on the
adequacy of a remedy at law and any other defense which might be asserted to bar the remedy of
specific performance in any action which may be brought by the Revolving Collateral Agent or the
other Revolving Claimholders or the Notes Collateral Agent or the other Notes Claimholders, as
applicable. Without limiting the generality of the foregoing or of the other provisions of this
Agreement, in seeking specific performance in any Insolvency Proceeding, Revolving Collateral Agent
or Notes Collateral Agent may seek such or any other relief as if it were the “holder” of the
claims of the other agent’s Claimholders under Section 1126(a) of the Bankruptcy Code or otherwise
had been granted an irrevocable power of attorney by the other agent’s Claimholders.
9.15 Indenture Protections. In connection with its execution and acting under this
Agreement, the Notes Collateral Agent is entitled to all rights, privileges, protections,
immunities, benefits and indemnities provided to it under the Indenture, all of which are
incorporated by reference herein mutatis mutandis.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| UBS AG, STAMFORD BRANCH, as Revolving Collateral Agent |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director Banking Products Services. US |
|||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director Banking Products Services. US |
|||
[Intercreditor Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| UBS AG, STAMFORD BRANCH, as Revolving Collateral Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Notes Collateral Agent |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
ACKNOWLEDGMENT
Each of the undersigned hereby acknowledges that it has received a copy of the foregoing
Intercreditor Agreement and consents thereto, agrees to recognize all rights granted thereby to
Revolving Collateral Agent, Revolving Claimholders, Notes Collateral Agent and Notes Claimholders,
and will not do any act or perform any obligation which is not in accordance with the agreements
set forth therein. Each of the undersigned further acknowledges and agrees that it is not an
intended beneficiary or third party beneficiary under the foregoing Intercreditor Agreement.
Acknowledged as of the date first written above:
| ASSOCIATED MATERIALS, LLC | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Vice President — Chief Financial Officer, Treasurer and Secretary | |||||
| GENTEK HOLDINGS, LLC | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Vice President — Chief Financial Officer, Treasurer and Secretary | |||||
| GENTEK BUILDING PRODUCTS, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Vice President — Chief Financial Officer, Treasurer and Secretary | |||||
[ACKNOWLEDGMENT PAGE TO INTERCREDITOR AGREEMENT]
ACKNOWLEDGMENT
Each of the undersigned hereby acknowledges that it has received a copy of the foregoing
Intercreditor Agreement and consents thereto, agrees to recognize all rights granted thereby to
Revolving Collateral Agent, Revolving Claimholders, Notes Collateral Agent and Notes Claimholders,
and will not do any act or perform any obligation which is not in accordance with the agreements
set forth therein. Each of the undersigned further acknowledges and agrees that it is not an
intended beneficiary or third party beneficiary under the foregoing Intercreditor Agreement.
Acknowledged as of the date first written above:
| XXXXX ACQUISITION CORP. | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Name: | Xxxx X. Xxxxxx | |||||
| Title: | President, Treasurer and Secretary | |||||
[ACKNOWLEDGMENT PAGE TO INTERCREDITOR AGREEMENT]
ACKNOWLEDGMENT
Each of the undersigned hereby acknowledges that it has received a copy of the foregoing
Intercreditor Agreement and consents thereto, agrees to recognize all rights granted thereby to
Revolving Collateral Agent, Revolving Claimholders, Notes Collateral Agent and Notes Claimholders,
and will not do any act or perform any obligation which is not in accordance with the agreements
set forth therein. Each of the undersigned further acknowledges and agrees that it is not an
intended beneficiary or third party beneficiary under the foregoing Intercreditor Agreement.
Acknowledged as of the date first written above:
| XXXXX NEW FINANCE, INC. | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Name: | Xxxx X. Xxxxxx | |||||
| Title: | President, Treasurer and Secretary | |||||
[ACKNOWLEDGMENT PAGE TO INTERCREDITOR AGREEMENT]
