INTERCREDITOR AGREEMENT dated as of March 29, 2007 among STERLING CHEMICALS, INC., as Borrower, and Each of its Subsidiaries Parties Hereto From Time to Time The CIT Group/Business Credit, Inc. as First Lien Collateral Agent and U. S. Bank National...
EXECUTION COPY
EXHIBIT 10.4
dated as of
March 29, 2007
among
STERLING CHEMICALS, INC.,
as Borrower,
as Borrower,
and
Each of its Subsidiaries
Parties Hereto From Time to Time
Parties Hereto From Time to Time
The CIT Group/Business Credit, Inc.
as First Lien Collateral Agent
as First Lien Collateral Agent
and
U. S. Bank National Association
as Second Lien Collateral Agent
as Second Lien Collateral Agent
THIS IS THE INTERCREDITOR AGREEMENT REFERRED TO IN THE COLLATERAL DOCUMENTS REFERRED TO IN THE
CREDIT AGREEMENT AND INDENTURE REFERRED TO HEREIN.
TABLE OF CONTENTS
ARTICLE I Definitions |
2 | |||
SECTION 1.01. Certain Defined Terms |
2 | |||
SECTION 1.02. Other Defined Terms |
2 | |||
SECTION 1.03. Terms Generally |
6 | |||
ARTICLE II Lien Priorities |
7 | |||
SECTION 2.01. Relative Priorities |
7 | |||
SECTION 2.02. Prohibition on Contesting Liens |
7 | |||
SECTION 2.03. Intentionally Deleted. |
7 | |||
SECTION 2.04. Similar Liens and Agreements |
8 | |||
ARTICLE III Enforcement of Rights; Matters Relating to Collateral |
8 | |||
SECTION 3.01. Exercise of Rights and Remedies |
8 | |||
SECTION 3.02. No Interference |
10 | |||
SECTION 3.03. Rights as Unsecured Creditors |
12 | |||
SECTION 3.04. Automatic Release of Second-Priority Liens |
13 | |||
SECTION 3.05. Insurance and Condemnation Awards |
13 | |||
ARTICLE IV Payments |
14 | |||
SECTION 4.01. Application of Proceeds |
14 | |||
SECTION 4.02. Payment Over |
15 | |||
SECTION 4.03. Certain Agreements with Respect to Unenforceable Collateral |
16 | |||
ARTICLE V Bailment and Sub-Agency for Perfection of Certain Security Interests |
17 | |||
ARTICLE VI Insolvency or Liquidation Proceedings |
18 | |||
SECTION 6.01. Finance and Sale Matters |
18 | |||
SECTION 6.02. Relief from the Automatic Stay |
19 | |||
SECTION 6.03. Reorganization Securities |
19 | |||
SECTION 6.04. Post-Petition Interest |
19 | |||
SECTION 6.05. Certain Waivers by the Second Lien Secured Parties |
20 | |||
SECTION 6.06. Certain Voting Matters |
20 | |||
ARTICLE VII Other Agreements |
20 | |||
SECTION 7.01. Matters Relating to Loan Documents |
20 | |||
SECTION 7.02. Effect of Refinancing of Indebtedness under First Lien Loan Documents |
20 | |||
SECTION 7.03. No Waiver by First Lien Secured Parties |
21 |
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SECTION 7.04. Reinstatement |
21 | |||
SECTION 7.05. Further Assurances |
21 | |||
ARTICLE VIII Representations and Warranties |
22 | |||
SECTION 8.01. Representations and Warranties of Each Party |
22 | |||
SECTION 8.02. Representations and Warranties of Each Collateral Agent |
22 | |||
ARTICLE IX No Reliance; No Liability; Obligations Absolute |
22 | |||
SECTION 9.01. No Reliance; Information |
22 | |||
SECTION 9.02. No Warranties or Liability |
23 | |||
SECTION 9.03. Obligations Absolute |
24 | |||
ARTICLE X Miscellaneous |
24 | |||
SECTION 10.01. Notices |
24 | |||
SECTION 10.02. Conflicts |
25 | |||
SECTION 10.03. Effectiveness; Survival |
25 | |||
SECTION 10.04. Severability |
25 | |||
SECTION 10.05. Amendments; Waivers |
25 | |||
SECTION 10.06. Subrogation |
25 | |||
SECTION 10.07. Applicable Law; Jurisdiction; Consent to Service of Process |
26 | |||
SECTION 10.08. Waiver of Jury Trial |
26 | |||
SECTION 10.09. Parties in Interest |
27 | |||
SECTION 10.10. Specific Performance |
27 | |||
SECTION 10.11. Headings |
27 | |||
SECTION 10.12. Counterparts |
27 | |||
SECTION 10.13. Provisions Solely to Define Relative Rights |
27 |
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INTERCREDITOR AGREEMENT dated as of March 29, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, this “Agreement”), among Sterling Chemicals, Inc., a Delaware
corporation (the “Company”), and each of its Subsidiaries, parties hereto from time to time
(together with the Company, being hereafter collectively referred to as the “Borrowers”), The CIT
Group/Business Credit, Inc. (“CIT”), as collateral agent for the First Lien Lenders (as defined
below) (in such capacity, the “First Lien Collateral Agent”), and U. S. Bank National Association
(“U.S. Bank”), as collateral agent for the Second Lien Lenders (as defined below) (in such
capacity, the “Second Lien Collateral Agent”).
PRELIMINARY STATEMENT
Reference is made to (a) the Amended and Restated Credit Agreement dated as of March 29, 2007
(as amended, restated, supplemented, otherwise modified or Refinanced from time to time, the
“Credit Agreement”), among the Borrowers, the lenders from time to time parties thereto (the “First
Lien Lenders”), CIT, as Administrative Agent and First Lien Collateral Agent, (b) the First Lien
Collateral Documents (such term and each other capitalized term used but not defined in this
Preliminary Statement or the Recitals having the meaning given it in Article I), (c) the Indenture
dated as of March 29, 2007 (as amended, restated, supplemented or otherwise modified from time to
time, the “Indenture” and, together with the Credit Agreement, the “Financing Agreements”), among
the Company, certain subsidiaries of the Company from time to time guarantors thereunder, and U. S.
Bank, as indenture trustee (together with its successors and assigns in such capacity, the
“Indenture Trustee”) and collateral agent on behalf of the holders from time to time of the Notes
described below (collectively with the Indenture Trustee and such holders, the “Second Lien
Lenders”) and (d) the Second Lien Collateral Documents.
RECITALS
A. The First Lien Lenders have made and have agreed to make loans and other extensions of
credit to the Borrowers pursuant to the Credit Agreement, upon, among other terms and conditions,
the condition that the First Lien Obligations shall be secured by first-priority Liens on, and
security interests in, all of the assets of any Grantor that is described in Annex I hereto (the
“First Lien Collateral”).
B. The Company has issued $150,000,000 aggregate principal amount of its 101/4% Senior Secured
Notes due 2015 (together with any 101/4% Senior Secured Notes due 2015 issued in replacement or
exchange therefor, collectively, the “Notes”) upon, among other terms and conditions, the condition
that the Indenture Obligations shall be secured by Liens on, and security interests in, the Second
Lien Collateral.
C. The Financing Agreements require, among other things, that the parties thereto set forth in
this Agreement, among other things, their respective rights, obligations and remedies with respect
to the Collateral.
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Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Certain Defined Terms. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings set forth in the Credit Agreement.
SECTION 1.02. Other Defined Terms. As used in this Agreement, the following terms shall have
the meanings specified below:
“Agreement” shall have the meaning assigned to such term in the Preamble to this Agreement.
“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now
and hereinafter in effect, or any successor statute.
“Bankruptcy Law” shall mean the Bankruptcy Code and any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law.
“Borrowers” shall have the meaning assigned to such term in the Preamble to this Agreement.
“CIT” shall have the meaning assigned to such term in the Preamble to this Agreement
“Collateral” shall mean, collectively, the First Lien Collateral and the Second Lien
Collateral.
“Collateral Agents” shall mean the First Lien Collateral Agent and the Second Lien Collateral
Agent.
“Collateral Documents” shall mean the First Lien Collateral Documents and the Second Lien
Collateral Documents.
“Company” shall have the meaning assigned to such term in the Preamble of this Agreement.
“Credit Agreement” shall have the meaning assigned to such term in the Preliminary Statement
of this Agreement.
“DIP Financing” shall have the meaning assigned to such term in Section 6.01(a).
“DIP Financing Liens” shall have the meaning assigned to such term in Section 6.01(a).
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“Discharge of First Lien Obligations” shall mean, subject to Sections 7.02 and 7.04, (a)
payment in full in cash of the principal of and interest (including interest accruing during the
pendency of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in
such Insolvency or Liquidation Proceeding) and premium, if any, on all Indebtedness outstanding
under the First Lien Loan Documents to the extent constituting First Lien Obligations, (b) payment
in full of all other First Lien Obligations that are due and payable or otherwise accrued and owing
at or prior to the time such principal and interest are paid, (c) cancellation of or the entry into
arrangements satisfactory to the First Lien Collateral Agent with respect to all letters of credit
issued and outstanding under the Credit Agreement (it being understood and agreed that the cash
collateralization of all such letters of credit with cash in an amount equal to 105% of the
aggregate stated amount thereof shall be deemed an arrangement that is satisfactory to the First
Lien Collateral Agent) and (d) termination or expiration of all commitments to lend and all
obligations to issue letters of credit under the Credit Agreement.
“Disposition” shall mean any sale, lease, exchange, transfer or other disposition. “Dispose”
shall have a correlative meaning.
“Excess Claims” shall have the meaning assigned to such term in the definition of the term
“First Lien Obligations”.
“Financing Agreements” shall have the meaning assigned to such term in the Preliminary
Statement of this Agreement.
“First Lien Collateral” shall have the meaning assigned to such term in Recital A.
“First Lien Collateral Agent” shall have the meaning assigned to such term in the Preamble to
this Agreement.
“First Lien Collateral Documents” shall mean the “Security Documents” as defined in the Credit
Agreement, and any other agreement, document or instrument pursuant to which a Lien is granted to
secure any First Lien Obligations or under which rights or remedies with respect to any such Lien
are governed.
“First Lien Lenders” shall have the meaning assigned to such term in the Preliminary Statement
of this Agreement.
“First Lien Loan Documents” shall mean the “Loan Documents” as defined in the Credit
Agreement.
“First Lien Obligations” shall mean the “Obligations” as defined in the Credit Agreement
secured by the First Lien Collateral pursuant to the First Lien Collateral Documents;
provided, that the aggregate principal amount (including, without limitation, for the
avoidance of doubt, the undrawn and unreimbursed amount of any letter of credit) of all such
“Obligations” that exceed the Maximum Priority Debt Amount shall not constitute First Lien
Obligations but shall be deemed to constitute “Excess Claims”.
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“First Lien Required Lenders” shall mean the “Required Lenders” as defined in the Credit
Agreement.
“First Lien Secured Parties” shall mean, at any time, (a) the First Lien Lenders, (b) the
First Lien Collateral Agent, (c) each other Person to whom any of the First Lien Obligations
(including First Lien Obligations incurred in connection with any hedging agreement entered into
with any First Lien Lender or any affiliate of such First Lien Lender and indemnification
obligations) is owed and (d) the successors and assigns of each of the foregoing.
“First-Priority Liens” shall mean all Liens on the First Lien Collateral to secure the First
Lien Obligations, whether created under the First Lien Collateral Documents or acquired by
possession, statute, operation of law, subrogation or otherwise.
“Grantors” shall mean the Company and each Subsidiary that shall have created or purported to
create any First-Priority Lien or Second-Priority Lien on all or any part of its assets to secure
any First Lien Obligations or any Indenture Obligations.
“Guarantors” shall mean, collectively, each Subsidiary that has guaranteed, or that may from
time to time hereafter guarantee, the First Lien Obligations or the Indenture Obligations.
“Indebtedness” shall mean and includes all obligations that constitute Indebtedness as defined
in the Credit Agreement or the Indenture, as applicable.
“Indenture” shall have the meaning assigned to such term in the Preliminary Statement of this
Agreement.
“Indenture Exclusive Collateral” shall mean all of the assets of any Grantor with respect to
which a Lien is granted as security for any Indenture Obligations; provided that “Indenture
Exclusive Collateral” shall not include any assets constituting Second Lien Collateral or any First
Lien Collateral.
“Indenture Exclusive Collateral Liens” shall mean all Liens on the Indenture Exclusive
Collateral to secure the Indenture Obligations, whether created under the Second Lien Collateral
Documents or acquired by possession, statute, operation of law, subrogation or otherwise.
“Indenture Obligations” shall mean the “Obligations” (as defined in the Indenture) under the
Second Lien Loan Documents that are secured by the Second Lien Collateral and Indenture Exclusive
Collateral pursuant to the Second Lien Collateral Documents.
“Indenture Trustee” shall have the meaning assigned to such term in the Preliminary Statement
of this Agreement.
“Insolvency or Liquidation Proceeding” shall mean (a) any voluntary or involuntary proceeding
under the Bankruptcy Code or any other Bankruptcy Law with respect to any Grantor, (b) any
voluntary or involuntary appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for any Grantor or for a substantial part of the
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property or assets of any Grantor, (c) any voluntary or involuntary winding-up or liquidation
of any Grantor, or (d) a general assignment for the benefit of creditors by any Grantor.
“Lien” shall mean any interest in property securing an obligation owed to, or a claim by, a
Person other than the owner of the property, whether such interest is based on common law, statute
or contract. The term “Lien” shall also include reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases and other title exceptions
and encumbrances affecting property. For the purpose of this Agreement, the Grantors shall be
deemed to be the owners of any property which they have acquired or hold subject to a conditional
sale agreement or other arrangements pursuant to which title to the property has been retained by
or vested in some other Person for security purposes; provided, however, that the term “Lien” shall
not include a trust or similar arrangement established for the purpose of defeasing any
indebtedness pursuant to the terms evidencing or providing for the issuance of such indebtedness
but only to the extent that such defeasance is permitted under this Agreement.
“Loan Documents” shall mean the First Lien Loan Documents and the Second Lien Loan Documents.
“Maximum Priority Debt Amount” means $55,000,000.
“New First Lien Collateral Agent” shall have the meaning assigned to such term in Section
7.02.
“New First Lien Loan Documents” shall have the meaning assigned to such term in Section 7.02.
“New First Lien Obligations” shall have the meaning assigned to such term in Section 7.02.
“Notes” shall have the meaning assigned to such term in Recital B.
“Pledged or Controlled Collateral” shall have the meaning assigned to such term in Article V.
“Refinance” shall mean, in respect of any Indebtedness, to refinance, extend, renew,
restructure or replace or to issue other Indebtedness in exchange or replacement for, such
Indebtedness, in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.
“Refinancing Notice” shall have the meaning assigned to such term in Section 7.02.
“Release” shall have the meaning assigned to such term in Section 3.04.
“Second Lien Collateral” shall mean all of the assets of any Grantor that is described in
Annex I hereto with respect to which a Lien is granted as security for any Indenture Obligations.
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“Second Lien Collateral Agent” shall have the meaning assigned to such term in the Preamble to
this Agreement.
“Second Lien Collateral Documents” shall mean the “Collateral Documents” as defined in the
Indenture, and any agreement, pursuant to which a Lien is granted on Second Lien Collateral to
secure any Indenture Obligations or under which rights or remedies with respect to any such Lien
are governed.
“Second Lien Lenders” shall have the meaning assigned to such term in the Preliminary
Statement of this Agreement.
“Second Lien Loan Documents” shall mean the Indenture and the Indenture Documents as defined
therein.
“Second Lien Permitted Actions” shall have the meaning assigned to such term in Section
3.01(a).
“Second Lien Required Lenders” shall mean, subject to Section 2.09 of the Indenture, the
holders of the Notes who hold a majority in aggregate principal amount thereof.
“Second Lien Secured Parties” shall mean, at any time, (a) the Second Lien Lenders, (b) the
Second Lien Collateral Agent, (c) each other Person to whom any of the Indenture Obligations is
owed and (d) the successors and assigns of each of the foregoing.
“Second-Priority Liens” shall mean all Liens on the Second Lien Collateral to secure the
Indenture Obligations, whether created under the Second Lien Collateral Documents or acquired by
possession, statute, operation of law, subrogation or otherwise.
“Secured Parties” shall mean the First Lien Secured Parties and the Second Lien Secured
Parties.
“Standstill Period” shall have the meaning assigned to such term in Section 3.02(a).
“U.S. Bank” shall have the meaning assigned to such term in the Preamble to this Agreement
“Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect from time to time in any applicable jurisdiction.
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such
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agreement, instrument or other document as from time to time amended, restated, supplemented
or otherwise modified, (b) any reference herein (i) to any Person shall be construed to include
such Person’s successors and assigns and (ii) to the Company or any other Grantor shall be
construed to include the Company or such Grantor as debtor and debtor-in-possession and any
receiver or trustee for the Company or any other Grantor, as the case may be, in any Insolvency or
Liquidation Proceeding, (c) the words “herein”, “hereof” and “hereunder”, and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles or Sections shall be construed to refer to
Articles or Sections of this Agreement and (e) the words “asset” and “property” shall be construed
to have the same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
ARTICLE II
Lien Priorities
SECTION 2.01. Relative Priorities. Notwithstanding the date, manner or order of grant,
attachment or perfection of any Second-Priority Lien or any First-Priority Lien, and
notwithstanding any provision of the UCC or any other applicable law or the provisions of any
Collateral Document or any other Loan Document or any other circumstance whatsoever, the Second
Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby
agrees that, so long as the Discharge of First Lien Obligations has not occurred, (a) any
First-Priority Lien now or hereafter held by or for the benefit of any First Lien Secured Party
shall be senior in right, priority, operation, effect and all other respects to any and all
Second-Priority Liens and (b) any Second-Priority Lien now or hereafter held by or for the benefit
of any Second Lien Secured Party shall be junior and subordinate in right, priority, operation,
effect and all other respects to any and all First-Priority Liens. The First-Priority Liens shall
be and remain senior in right, priority, operation, effect and all other respects to any
Second-Priority Liens for all purposes, whether or not any First-Priority Liens are subordinated in
any respect to any other Lien securing any other obligation of the Company, any other Grantor or
any other Person.
SECTION 2.02. Prohibition on Contesting Liens. Each of the First Lien Collateral Agent, for
itself and on behalf of the other First Lien Secured Parties, and the Second Lien Collateral Agent,
for itself and on behalf of the other Second Lien Secured Parties, agrees that it will not, and
hereby waives any right to, contest or support any other Person in contesting, in any proceeding
(including any Insolvency or Liquidation Proceeding), the priority, validity or enforceability of
any Second-Priority Lien (or Indenture Exclusive Collateral Lien) or any First-Priority Lien, as
the case may be; provided that nothing in this Agreement shall be construed to prevent or
impair the rights of the First Lien Collateral Agent or any other First Lien Secured Party to
enforce this Agreement.
SECTION 2.03. Indenture Exclusive Collateral. The First Lien Collateral Agent, for itself
and on behalf of the other First Lien Secured Parties, agrees that neither it nor any of them shall
request or accept the benefit of any Lien on any Indenture Exclusive Collateral to secure any
Obligations under and as defined in the First Lien Loan Documents.
7
SECTION 2.04. Limit on Second Liens. The parties hereto acknowledge and agree that it is
their intention that the First Lien Collateral and the Second Lien Collateral be identical. In
furtherance of the foregoing, the Second Lien Collateral Agent agrees to cooperate in good faith in
order to determine, upon any reasonable request by the First Lien Collateral Agent, the specific
assets included in the Second Lien Collateral, the steps taken to perfect the Second-Priority Liens
thereon and the identity of the respective parties obligated under the Second Lien Loan Documents.
ARTICLE III
Enforcement of Rights; Matters Relating to Collateral
SECTION 3.01. Exercise of Rights and Remedies. (a) So long as the Discharge of First Lien
Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced, the First Lien Collateral Agent and the other First Lien Secured Parties shall have the
exclusive right to enforce rights and exercise remedies (including any right of setoff) with
respect to the First Lien Collateral (including making determinations regarding the release,
Disposition or restrictions with respect to the First Lien Collateral), or to commence or seek to
commence any action or proceeding with respect to such rights or remedies (including any
foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), in each case,
without any consultation with or the consent of the Second Lien Collateral Agent or any other
Second Lien Secured Party; provided that, notwithstanding the foregoing, (i) in any Insolvency or
Liquidation Proceeding, the Second Lien Collateral Agent may file a proof of claim or statement of
interest with respect to the Indenture Obligations, (ii) the Second Lien Collateral Agent may take
any action to preserve or protect the validity and enforceability of the Second-Priority Liens
(provided that no such action is, or could reasonably be expected to be, (A) adverse to the
First-Priority Liens or the rights of the First Lien Collateral Agent or any other First Lien
Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms
of this Agreement, including the automatic release of Second-Priority Liens provided in Section
3.04), (iii) the Second Lien Collateral Agent may 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 of the claims of the Second Lien Secured
Parties, including any claims secured by the Second Lien Collateral or otherwise make any
agreements or file any motions pertaining to the Indenture Obligations, in each case, to the extent
not inconsistent with the terms of this Agreement, (iv) the Second Lien Collateral Agent may
exercise rights and remedies as an unsecured creditor, as provided in Section 3.03, and (v) subject
to Section 3.02(a), the Second Lien Collateral Agent and the other Second Lien Secured Parties may
enforce any of their rights and exercise any of their remedies with respect to the Second Lien
Collateral after the termination of the Standstill Period (the actions described in this proviso
being referred to herein as the “Second Lien Permitted Actions”). Except for the Second Lien
Permitted Actions, unless and until the Discharge of First Lien Obligations has occurred, the sole
right of the Second Lien Collateral Agent and the other Second Lien Secured Parties with respect to
the Collateral shall be to receive a share of the proceeds of the Second Lien Collateral, if any,
after the Discharge of First Lien Obligations has occurred and in accordance with the Second Lien
Loan Documents and applicable law.
8
(b) In exercising rights and remedies with respect to the Collateral, the First Lien
Collateral Agent and the other First Lien Secured Parties may enforce the provisions of the First
Lien Loan Documents and exercise remedies thereunder, all in such order and in such manner as they
may determine in their sole discretion. Such exercise and enforcement shall include the rights of
an agent appointed by them to Dispose of First Lien Collateral upon foreclosure, to incur expenses
in connection with any such Disposition and to exercise all the rights and remedies of a secured
creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law. The
First Lien Collateral Agent agrees to provide at least five Business Days’ prior written notice to
the Second Lien Collateral Agent of its intention to foreclose upon or Dispose of any First Lien
Collateral.
(c) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien
Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction
contained in any Second Lien Collateral Document or any other Second Lien Loan Document shall be
deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the
other First Lien Secured Parties with respect to the First Lien Collateral as set forth in this
Agreement and the other First Lien Loan Documents.
(d) Notwithstanding anything in this Agreement to the contrary, following the occurrence of an
acceleration of any First Lien Obligations, the Second Lien Secured Parties may, at their sole
expense and effort, upon irrevocable notice to the Company and the First Lien Collateral Agent,
require the First Lien Secured Parties to transfer and assign to the Second Lien Secured Parties,
without warranty or representation or recourse, all (but not less than all) of the First Lien
Obligations; provided that (x) such assignment shall not conflict with any law, rule or
regulation or order of any court or other governmental authority having jurisdiction, and (y) the
Second Lien Secured Parties shall have paid to the First Lien Collateral Agent, for the account of
the First Lien Secured Parties, in immediately available funds, an amount equal to 100% of the
principal amount of the First Lien Obligations that constitute loans or advances plus all accrued
and unpaid interest thereon plus all accrued and unpaid fees (other than any fees that become due
as a result of the prepayment of the loans and other advances under, or early termination of, the
Credit Agreement (such fees are referred to hereinafter as “Termination Fees”)) plus all the other
First Lien Obligations then outstanding (which shall include, with respect to (i) the aggregate
face amount of the letters of credit outstanding under the Credit Agreement, an amount in cash
equal to 105% thereof, and (ii) each interest rate hedging, cap, collar, swap or other similar
agreements that evidence any First Lien Obligations, 100% of the aggregate amount of such First
Lien Obligations, after giving effect to any netting arrangements, that the applicable Grantor
would be required to pay if such interest rate hedging, cap, collar, swap or other similar
agreements were terminated at such time). In order to effectuate the foregoing, the First Lien
Collateral Agent shall calculate, upon the written request of the Second Lien Collateral Agent from
time to time, the amount in cash that would be necessary so to purchase the First Lien Obligations.
If the right set forth in this Section 3.01(d) is exercised, the parties shall endeavor to close
promptly thereafter but in any event within ten Business Days of the request set forth in the first
sentence of this Section 3.01(d). If the Second Lien Secured Parties exercise the right set forth
in this Section 3.01(d), it shall be exercised pursuant to documentation mutually acceptable to
each of the First Lien Collateral Agent and the Second Lien Collateral Agent. Notwithstanding
anything to the contrary herein, upon the consummation of such transfer and
9
assignment, Termination Fees shall no longer constitute First Lien Obligations but shall
instead be deemed to constitute Excess Claims.
SECTION 3.02. No Interference. (a) The Second Lien Collateral Agent, for itself and on
behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or
Liquidation Proceeding has been commenced, the Second Lien Secured Parties:
(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of
First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or
exercise, any rights or remedies (including any right of setoff) with respect to any
Collateral (including the enforcement of any right under any account control agreement,
landlord waiver or bailee’s letter or any similar agreement or arrangement to which the
Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (B)
commence or join with any Person (other than the First Lien Collateral Agent) in commencing,
or petition for or vote in favor of any resolution for, any action or proceeding with
respect to such rights or remedies (including any foreclosure action); provided, however,
that the Second Lien Collateral Agent may enforce or exercise any or all such rights and
remedies, or commence, join with any Person in commencing, or petition for or vote in favor
of any resolution for, any such action or proceeding, after a period of 180 days has elapsed
since the date on which the Second Lien Collateral Agent has delivered to the First Lien
Collateral Agent written notice of the acceleration of all or any portion of the Notes (the
“Standstill Period”); provided further, however (A) that notwithstanding the expiration of
the Standstill Period or anything herein to the contrary, in no event shall the Second Lien
Collateral Agent or any other Second Lien Secured Party enforce or exercise any rights or
remedies with respect to any Collateral, or commence, join with any Person in commencing, or
petition for or vote in favor of any resolution for, any such action or proceeding, if the
First Lien Collateral Agent or any other First Lien Secured Party shall have commenced, and
shall be diligently pursuing, the enforcement or exercise of any rights or remedies with
respect to such Collateral or any such action or proceeding and (B) that after the
expiration of the Standstill Period, so long as neither the First Lien Collateral Agent nor
the First Lien Secured Parties have commenced any action to enforce the First-Priority Liens
on any material portion of the Collateral, in the event that and for so long as the Second
Lien Secured Parties (or the Second Lien Collateral Agent on their behalf) have commenced
any actions to enforce the Second-Priority Liens with respect to any Collateral to the
extent permitted hereunder and are diligently pursuing such actions, neither the First Lien
Secured Parties nor the First Lien Collateral Agent shall take any action of a similar
nature with respect to such Collateral; provided that all other provisions of this
Intercreditor Agreement (including the turnover provisions of Article IV) are complied with;
(ii) will not contest, protest or object to any foreclosure action or proceeding
brought by the First Lien Collateral Agent or any other First Lien Secured Party, or any
other enforcement or exercise by any First Lien Secured Party of any rights or remedies
relating to the Collateral under the First Lien Loan Documents or otherwise, so long as
Second-Priority Liens attach to the proceeds thereof subject to the relative priorities set
forth in Section 2.01;
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(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above,
will not object to the forbearance by the First Lien Collateral Agent or any other First
Lien Secured Party from commencing or pursuing any foreclosure action or proceeding or any
other enforcement or exercise of any rights or remedies with respect to the Collateral;
(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and
except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds
thereof or payment with respect thereto, in connection with the exercise of any right or
enforcement of any remedy (including any right of setoff) with respect to any Collateral or
in connection with any insurance policy award under a policy of insurance relating to any
Collateral or any condemnation award (or deed in lieu of condemnation) relating to any
Collateral;
(v) will not, except for Second Lien Permitted Actions, take any action that would, or
could reasonably be expected to, hinder, in any manner, any exercise of remedies under the
First Lien Loan Documents, including any Disposition of any Collateral, whether by
foreclosure or otherwise;
(vi) will not, except for Second Lien Permitted Actions, object to the manner in which
the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or
collect the First Lien Obligations or the First-Priority Liens, regardless of whether any
action or failure to act by or on behalf of the First Lien Collateral Agent or any other
First Lien Secured Party is, or could be, adverse to the interests of the Second Lien
Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by
law, any right to demand, request, plead or otherwise assert or claim the benefit of any
marshalling, appraisal, valuation or other similar right that may be available under
applicable law with respect to the Collateral or any similar rights a junior secured
creditor may have under applicable law; and
(vii) will not attempt, directly or indirectly, whether by judicial proceeding or
otherwise, to challenge or question the validity or enforceability of any First Lien
Obligation or any First Lien Collateral Document, including this Agreement, or the validity
or enforceability of the priorities, rights or obligations established by this Agreement.
(b) The First Lien Collateral Agent, for itself and on behalf of the other First Lien Secured
Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced,
the First Lien Secured Parties:
(i) will not contest, protest or object to any foreclosure action or proceeding brought
by the Second Lien Collateral Agent or any other Second Lien Secured Party, or any other
enforcement or exercise by any Second Lien Secured Party of any rights or remedies relating
to the Indenture Exclusive Collateral under the Second Lien Loan Documents or otherwise;
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(ii) will not object to the forbearance by the Second Lien Collateral Agent or any
other Second Lien Secured Party from commencing or pursuing any foreclosure action or
proceeding or any other enforcement or exercise of any rights or remedies with respect to
the Indenture Exclusive Collateral;
(iii) will not, so long as the Indenture Obligations have not been paid in full, take
or receive any Indenture Exclusive Collateral, or any proceeds thereof or payment with
respect thereto, in connection with the exercise of any right or enforcement of any remedy
(including any right of setoff) with respect to any Indenture Exclusive Collateral or in
connection with any insurance policy award under a policy of insurance relating to any
Indenture Exclusive Collateral or any condemnation award (or deed in lieu of condemnation)
relating to any Indenture Exclusive Collateral;
(iv) will not, except in the course of taking any remedy or action against any First
Lien Collateral (but, in any event, not against any Indenture Exclusive Collateral), take
any action that would, or could reasonably be expected to, hinder, in any manner, any
exercise of remedies under the Second Lien Loan Documents, including any Disposition of any
Indenture Exclusive Collateral, whether by foreclosure or otherwise;
(v) will not object to the manner in which the Second Lien Collateral Agent or any
other Second Lien Secured Party may seek to enforce or collect the Indenture Obligations or
the Indenture Exclusive Collateral Liens, regardless of whether any action or failure to act
by or on behalf of the Second Lien Collateral Agent or any other Second Lien Secured Party
is, or could be, adverse to the interests of the First Lien Secured Parties, and will not
assert, and hereby waive, to the fullest extent permitted by law, any right to demand,
request, plead or otherwise assert or claim the benefit of any marshalling, appraisal,
valuation or other similar right that may be available under applicable law with respect to
the Indenture Exclusive Collateral or any similar rights a junior secured creditor may have
under applicable law; and
(vi) will not attempt, directly or indirectly, whether by judicial proceeding or
otherwise, to challenge or question the validity or enforceability of any Indenture
Obligation or any Second Lien Collateral Document, including this Agreement, or the validity
or enforceability of the priorities, rights or obligations established by this Agreement.
SECTION 3.03. Rights as Unsecured Creditors. Except to the extent it would contravene the
express provisions hereof, the Second Lien Collateral Agent and the other Second Lien Secured
Parties may, in accordance with the terms of the Second Lien Loan Documents and applicable law,
enforce rights and exercise remedies against the Company and any Guarantor as unsecured creditors.
Nothing in this Agreement shall prohibit the receipt by the Second Lien Collateral Agent or any
other Second Lien Secured Party of the required payments of principal, premium, interest, fees and
other amounts due under the Indenture so long as such receipt is not the direct or indirect result
of the enforcement of, the exercise by the Second Lien Collateral Agent or any other Second Lien
Secured Party of rights or remedies as a secured creditor (including any right of setoff) in
respect of, or any enforcement in contravention of this Agreement of, any Second-Priority Lien.
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SECTION 3.04. Automatic Release of Second-Priority Liens. (a) If, in connection with (i) any
Disposition of any Collateral permitted under the terms of the First Lien Loan Documents or (ii)
the enforcement or exercise of any rights or remedies with respect to the Collateral, including any
Disposition of Collateral, the First Lien Collateral Agent, for itself and on behalf of the other
First Lien Secured Parties, releases any of the First-Priority Liens, (in each case, a “Release”),
other than any such Release granted in connection with the Discharge of First Lien Obligations
then, subject to Sections 3.04(b) and (c), the Second-Priority Liens on such Collateral shall be
automatically, unconditionally and simultaneously released, and the Second Lien Collateral Agent
shall, for itself and on behalf of the other Second Lien Secured Parties, promptly execute and
deliver to the First Lien Collateral Agent and the relevant Grantor such termination statements,
releases and other documents as the First Lien Collateral Agent or the relevant Grantor may
reasonably request to effectively confirm such Release.
(b) Notwithstanding the foregoing, in the event that a Release is of all or substantially all
of the First Lien Collateral, then such Release (other than a Release in connection with the
enforcement or exercise of any rights or remedies with respect to the Collateral permitted
hereunder) shall require the consent of the Second Lien Collateral Agent.
(c) Until the Discharge of First Lien Obligations occurs, the Second Lien Collateral Agent,
for itself and on behalf of each other Second Lien Secured Party, hereby appoints the First Lien
Collateral Agent, and any officer or agent of the First Lien Collateral Agent, with full power of
substitution, as the attorney-in-fact of each Second Lien Secured Party for the limited purpose of
carrying out the provisions of this Section 3.04 and taking any action and executing any instrument
that the First Lien Collateral Agent may reasonably deem necessary or advisable to accomplish the
purposes of this Section 3.04 (including any endorsements or other instruments of transfer or
release), which appointment is irrevocable and coupled with an interest.
SECTION 3.05. Insurance and Condemnation Awards. (a) So long as the Discharge of First Lien
Obligations has not occurred, the First Lien Collateral Agent and the other First Lien Secured
Parties shall have the exclusive right, subject to the rights of the Grantors under the First Lien
Loan Documents, to settle and adjust claims in respect of First Lien Collateral under policies of
insurance covering First Lien Collateral and to approve any award granted in any condemnation or
similar proceeding, or any deed in lieu of condemnation, in respect of the Collateral. All
proceeds of any such policy and any such award, or any payments with respect to a deed in lieu of
condemnation, in each case, in respect of First Lien Collateral, shall (a) first, prior to the
Discharge of First Lien Obligations and subject to the rights of the Grantors under the First Lien
Loan Documents, be paid to the First Lien Collateral Agent for the benefit of First Lien Secured
Parties for application against the First Lien Obligations pursuant to the terms of the First Lien
Loan Documents, (b) second, after the Discharge of First Lien Obligations and subject to the rights
of the Grantors under the Second Lien Loan Documents, be paid to the Second Lien Collateral Agent
for the benefit of the Second Lien Secured Parties for application against the Indenture
Obligations pursuant to the terms of the Second Lien Loan Documents, (c) third, if all Indenture
Obligations have been paid in full in cash, be paid to the First Lien Collateral Agent for the
benefit of First Lien Secured Parties for application against any Excess Claims pursuant to the
terms of the First Lien Loan Documents and (d) fourth, if no Indenture Obligations are outstanding,
be paid to the owner of the subject property, such other
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Person as may be entitled thereto or as a court of competent jurisdiction may otherwise
direct. Until the Discharge of First Lien Obligations has occurred, if the Second Lien Collateral
Agent or any other Second Lien Secured Party shall, at any time, receive any proceeds of any such
insurance policy or any such award or payment, in each case, in respect of First Lien Collateral,
it shall transfer and pay over such proceeds to the First Lien Collateral Agent in accordance with
Section 4.02(a).
(b) Subject to the terms of the Indenture, the Second Lien Collateral Agent and the other
Second Lien Secured Parties shall have the exclusive right to settle and adjust claims in respect
of Indenture Exclusive Collateral under policies of insurance covering Indenture Exclusive
Collateral and to approve any award granted in any condemnation or similar proceeding, or any deed
in lieu of condemnation, in respect of the Indenture Exclusive Collateral. Subject to the terms of
the Indenture, all proceeds of any such policy and any such award, or any payments with respect to
a deed in lieu of condemnation, in each case, in respect of Indenture Exclusive Collateral, shall
(a) first, prior to the payment in full in cash of all Indenture Obligations and subject to the
rights of the Grantors under the Second Lien Loan Documents, be paid to the Second Lien Collateral
Agent for the benefit of Second Lien Secured Parties for application against the Indenture
Obligations pursuant to the terms of the Second Lien Loan Documents, and (b) second, if all
Indenture Obligations have been paid in full in cash, be paid 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 First Lien Collateral Agent or any other First Lien Secured Party shall, at any
time, receive any proceeds of any such insurance policy or any such award or payment, in each case,
in respect of Indenture Exclusive Collateral, it shall transfer and pay over such proceeds to the
Second Lien Collateral Agent in accordance with Section 4.02(b).
ARTICLE IV
Payments
SECTION 4.01. Application of Proceeds. Any Collateral or proceeds thereof received by any
Secured Party or any Person that holds Excess Claims in connection with any Disposition of, or
collection on, such Collateral upon the enforcement or exercise of any right or remedy (including
any right of setoff) shall be applied as follows:
first, to the payment of costs and expenses of the First Lien Collateral Agent
or (subject to Section 3.02) the Second Lien Collateral Agent, as the case may be, in
connection with such enforcement or exercise,
second, after all such costs and expenses have been paid in full, to the
payment of the First Lien Obligations,
third, after all such costs and expenses have been paid in full and the
Discharge of First Lien Obligations has occurred, to the payment of the Indenture
Obligations,
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fourth, after all such costs and expenses have been paid in full, the Discharge
of First Lien Obligations has occurred and all Indenture Obligations have been paid in full
in cash, to the payment of any Excess Claims, and
fifth, after all such costs and expenses have been paid in full, the Discharge
of First Lien Obligations has occurred, all Indenture Obligations have been paid in full in
cash and all Excess Claims have been paid in full in cash, any surplus Collateral or
proceeds then remaining shall be returned to the applicable Grantor or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
SECTION 4.02. Payment Over. (a) So long as the Discharge of First Lien Obligations has not
occurred, any Collateral or any proceeds thereof, received by the Second Lien Collateral Agent or
any other Second Lien Secured Party in connection with any Disposition of, or collection on, such
Collateral upon the enforcement or the exercise of any right or remedy (including any right of
setoff) with respect to the Collateral, or in connection with any insurance policy claim or any
condemnation award (or deed in lieu of condemnation), in each case, in respect of any Collateral in
contravention of this Agreement shall be segregated and held in trust and forthwith transferred or
paid over to the First Lien Collateral Agent for the benefit of the First Lien Secured Parties for
application against the First Lien Obligations in the same form as received, together with any
necessary endorsements, or as a court of competent jurisdiction may otherwise direct. Until the
Discharge of First Lien Obligations occurs, the Second Lien Collateral Agent, for itself and on
behalf of each other Second Lien Secured Party, hereby appoints the First Lien Collateral Agent,
and any officer or agent of the First Lien Collateral Agent, with full power of substitution, the
attorney-in-fact of each Second Lien Secured Party for the limited purpose of carrying out the
provisions of this Section 4.02(a) and taking any action and executing any instrument that the
First Lien Collateral Agent may reasonably deem necessary or advisable to accomplish the purposes
of this Section 4.02(a), which appointment is irrevocable and coupled with an interest.
(b) Any Indenture Exclusive Collateral or any proceeds thereof (together with assets or
proceeds subject to Liens referred to Section 2.03), received by the First Lien Collateral Agent or
any other First Lien Secured Party in connection with any Disposition of, or collection on, such
Indenture Exclusive Collateral upon the enforcement or the exercise of any right or remedy
(including any right of setoff) with respect to the Indenture Exclusive Collateral, or in
connection with any insurance policy claim or any condemnation award (or deed in lieu of
condemnation), in each case, in respect of any Indenture Exclusive Collateral in contravention of
this Agreement shall be segregated and held in trust and forthwith transferred or paid over to the
Second Lien Collateral Agent for the benefit of the Second Lien Secured Parties for application
against the Indenture Obligations in the same form as received, together with any necessary
endorsements, or as a court of competent jurisdiction may otherwise direct. Until the Indenture
Obligations have been paid in full in cash, the First Lien Collateral Agent, for itself and on
behalf of each other First Lien Secured Party, hereby appoints the Second Lien Collateral Agent,
and any officer or agent of the Second Lien Collateral Agent, with full power of substitution, the
attorney-in-fact of each First Lien Secured Party for the limited purpose of carrying out the
provisions of this Section 4.02(b) and taking any action and executing any instrument that the
Second Lien Collateral Agent may reasonably deem necessary or advisable to accomplish the purposes
of this Section 4.02(b), which appointment is irrevocable and coupled with an interest.
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SECTION 4.03. Certain Agreements with Respect to Unenforceable Collateral. (a)
Notwithstanding anything to the contrary contained herein, if in any Insolvency or Liquidation
Proceeding a determination is made that any First-Priority Lien of the First Lien Secured Parties
encumbering any Collateral is not enforceable for any reason, then the Second Lien Collateral Agent
and the Second Lien Secured Parties agree that, any distribution or recovery they may receive with
respect to, or allocable to, the value of such First Lien Collateral or any proceeds thereof shall
be segregated and held in trust and forthwith paid over to the First Lien Collateral Agent for the
benefit of the First Lien Secured Parties in the same form as received without recourse,
representation or warranty (other than a representation of the Second Lien Collateral Agent that it
has not otherwise sold, assigned, transferred or pledged any right, title or interest in and to
such distribution or recovery) but with any necessary endorsements or as a court of competent
jurisdiction may otherwise direct until such time as the Discharge of First Lien Obligations has
occurred. Until the Discharge of First Lien Obligations occurs, the Second Lien Collateral Agent,
for itself and on behalf of each other Second Lien Secured Party, hereby appoints the First Lien
Collateral Agent, and any officer or agent of the First Lien Collateral Agent, with full power of
substitution, the attorney-in-fact of each Second Lien Secured Party for the limited purpose of
carrying out the provisions of this Section 4.03(a) and taking any action and executing any
instrument that the First Lien Collateral Agent may reasonably deem necessary or advisable to
accomplish the purposes of this Section 4.03(a), which appointment is irrevocable and coupled with
an interest.
(b) Notwithstanding anything to the contrary contained herein, if in any Insolvency or
Liquidation Proceeding a determination is made that any Indenture Exclusive Collateral Lien of the
Second Lien Secured Parties encumbering any Indenture Exclusive Collateral is not enforceable for
any reason, then the First Lien Collateral Agent and the First Lien Secured Parties agree that, any
distribution or recovery they may receive with respect to, or allocable to, the value of such
Indenture Exclusive Collateral or any proceeds thereof shall be segregated and held in trust and
forthwith paid over to the Second Lien Collateral Agent for the benefit of the Second Lien Secured
Parties in the same form as received without recourse, representation or warranty (other than a
representation of the First Lien Collateral Agent that it has not otherwise sold, assigned,
transferred or pledged any right, title or interest in and to such distribution or recovery) but
with any necessary endorsements or as a court of competent jurisdiction may otherwise direct until
such time as the Indenture Obligations have been paid in full in cash. Until the Indenture
Obligations have been paid in full in cash, the First Lien Collateral Agent, for itself and on
behalf of each other First Lien Secured Party, hereby appoints the Second Lien Collateral Agent,
and any officer or agent of the Second Lien Collateral Agent, with full power of substitution, the
attorney-in-fact of each First Lien Secured Party for the limited purpose of carrying out the
provisions of this Section 4.03(b) and taking any action and executing any instrument that the
Second Lien Collateral Agent may reasonably deem necessary or advisable to accomplish the purposes
of this Section 4.03(b), which appointment is irrevocable and coupled with an interest.
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ARTICLE V
Bailment and Sub-Agency for Perfection of Certain Security Interests
(a) The First Lien Collateral Agent agrees that, if it shall at any time hold a First-Priority
Lien on any Second Lien Collateral that can be perfected or the priority of which can be enhanced
by the possession or control of such Second Lien Collateral or of any account in which such Second
Lien Collateral is held, and if such Second Lien Collateral or any such account is in fact in the
possession or under the control of the First Lien Collateral Agent, or of agents or bailees of the
First Lien Collateral Agent (such Collateral being referred to herein as the “Pledged or Controlled
Collateral”), the First Lien Collateral Agent shall, solely for the purpose of perfecting the
Second-Priority Liens granted under the Second Lien Loan Documents and subject to the terms and
conditions of this Article V, also (i) hold and/or maintain control of such Pledged or Controlled
Collateral as gratuitous bailee of and representative (as defined in Section 1-201(35) of the
Uniform Commercial Code) for the Second Lien Collateral Agent, including for the benefit of the
Second Lien Collateral Agent for purposes of Section 9-313 and 8-301 of the Uniform Commercial
Code.
(b) So long as the Discharge of First Lien Obligations has not occurred, the First Lien
Collateral Agent shall be entitled to deal with the Pledged or Controlled Collateral in accordance
with the terms of this Agreement and the other First Lien Loan Documents as if the Second-Priority
Liens did not exist. The obligations and responsibilities of the First Lien Collateral Agent to
the Second Lien Collateral Agent and the other Second Lien Secured Parties under this Article V
shall be limited solely to holding or controlling the Pledged or Controlled Collateral as
gratuitous bailee and representative (as defined in Section 1-201(35) of the Uniform Commercial
Code) in accordance with this Article V. Without limiting the foregoing, the First Lien Collateral
Agent shall have no obligation or responsibility to ensure that any Pledged or Controlled
Collateral is genuine or owned by any of the Grantors. The First Lien Collateral Agent acting
pursuant to this Article V shall not, by reason of this Agreement, any other Collateral Document or
any other document, have a fiduciary relationship in respect of any other First Lien Secured Party,
the Second Lien Collateral Agent or any other Second Lien Secured Party.
(c) Upon the Discharge of First Lien Obligations, the First Lien Collateral Agent shall
transfer the possession and control of the Pledged or Controlled Collateral, together with any
necessary endorsements but without recourse or warranty, (i) if the Indenture Obligations are
outstanding at such time, to the Second Lien Collateral Agent, and (ii) if no Indenture Obligations
are outstanding at such time, to the applicable Grantor, in each case so as to allow such person to
obtain possession and control of such Pledged or Controlled Collateral. In connection with any
transfer under clause (i) of the immediately preceding sentence, the First Lien Collateral Agent
agrees to take all actions in its power as shall be reasonably requested by the Second Lien
Collateral Agent to permit the Second Lien Collateral Agent to obtain, for the benefit of the
Second Lien Secured Parties, a first-priority security interest in the Pledged or Controlled
Collateral.
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ARTICLE VI
Insolvency or Liquidation Proceedings
SECTION 6.01. Finance and Sale Matters. (a) Until the Discharge of First Lien Obligations
has occurred, the Second Lien Collateral Agent, for itself and on behalf of the other Second Lien
Secured Parties, agrees that, in the event of any Insolvency or Liquidation Proceeding, the Second
Lien Secured Parties:
(i) except to the extent permitted by paragraph (b) of this Section 6.01, will not
oppose or object to the use of any First Lien Collateral constituting cash collateral under
Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law,
unless the First Lien Secured Parties, or a representative authorized by the First Lien
Secured Parties, shall oppose or object to such use of cash collateral;
(ii) will not oppose or object to any post-petition financing, whether provided by the
First Lien Secured Parties or any other Person, under Section 364 of the Bankruptcy Code, or
any comparable provision of any other Bankruptcy Law (a “DIP Financing”), or the Liens on
assets that constitute First Lien Collateral to secure any DIP Financing (“DIP Financing
Liens”), unless the First Lien Secured Parties, or a representative authorized by the First
Lien Secured Parties, shall then oppose or object to such DIP Financing or such DIP
Financing Liens, and, to the extent that such DIP Financing Liens are senior to, or rank
pari passu with, the First-Priority Liens, the Second Lien Collateral Agent will, for itself
and on behalf of the other Second Lien Secured Parties, subordinate the Second-Priority
Liens on assets constituting the Second Lien Collataral to the First-Priority Liens and the
DIP Financing Liens thereon on the terms of this Agreement;
(iii) except to the extent permitted by paragraph (b) of this Section 6.01, in
connection with the use of cash collateral as described in clause (i) above or a DIP
Financing, will not request adequate protection or any other relief in connection with such
use of cash collateral, DIP Financing or DIP Financing Liens; and
(iv) will not oppose or object to any Disposition of any First Lien Collateral free and
clear of the Second-Priority Liens or other claims under Section 363 of the Bankruptcy Code,
or any comparable provision of any other Bankruptcy Law, if the First Lien Secured Parties,
or a representative authorized by the First Lien Secured Parties, shall consent to such
Disposition.
(b) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien
Secured Parties, agrees that no Second Lien Secured Party shall contest, or support any other
person in contesting, (i) any request by the First Lien Collateral Agent or any other First Lien
Secured Party for adequate protection or (ii) any objection, based on a claim of a lack of adequate
protection in respect of any First Lien Obligations, by the First Lien Collateral Agent or any
other First Lien Secured Party to any motion, relief, action or proceeding. Notwithstanding the
immediately preceding sentence, if, in connection with any DIP Financing
18
or use of cash collateral, any First Lien Secured Party is granted adequate protection in the
form of a Lien on additional collateral, the Second Lien Collateral Agent may, for itself and on
behalf of the other Second Lien Secured Parties, seek or request adequate protection in the form of
a Lien on such additional collateral, which Lien will be subordinated to the First-Priority Liens
and DIP Financing Liens on the same basis as the other Second-Priority Liens are subordinated to
the First-Priority Liens under this Agreement.
(c) Notwithstanding the foregoing, the applicable provisions of Section 6.01(a) and (b) shall
only be binding on the Second Lien Secured Parties with respect to any DIP Financing so long as (i)
the principal amount of such DIP Financing, when taken together with the aggregate principal amount
of the First Lien Obligations, does not exceed the Maximum Priority Debt Amount and (ii) such DIP
Financing is not secured by any Indenture Exclusive Collateral.
SECTION 6.02. Relief from the Automatic Stay. The Second Lien Collateral Agent, for itself
and on behalf of the other Second Lien Secured Parties, agrees that, so long as the Discharge of
First Lien Obligations has not occurred, no Second Lien Secured Party shall, without the prior
written consent of the First Lien Collateral Agent, seek or request relief from or modification of
the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of any
part of the Collateral, any proceeds thereof or any Second-Priority Lien.
SECTION 6.03. Reorganization Securities. If, in any Insolvency or Liquidation Proceeding,
debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized
debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring
plan, on account of both the First Lien Obligations and the Indenture Obligations, then, to the
extent the debt obligations distributed on account of the First Lien Obligations and on account of
the Indenture Obligations are secured by Liens upon some of the same assets or 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.
SECTION 6.04. Post-Petition Interest. (a) The Second Lien Collateral Agent, for itself and
on behalf of the other Second Lien Secured Parties, agrees that no Second Lien Secured Party shall
oppose or seek to challenge any claim by the First Lien Collateral Agent or any other First Lien
Secured Party for allowance in any Insolvency or Liquidation Proceeding of First Lien Obligations
consisting of post-petition interest, fees or expenses to the extent of the value of the
First-Priority Liens (it being understood and agreed that such value shall be determined without
regard to the existence of the Second-Priority Liens on the Collateral).
(b) The First Lien Collateral Agent, for itself and on behalf of the other First Lien Secured
Parties, agrees that the Second Lien Collateral Agent or any other Second Lien Secured Party may
make a claim for allowance in any Insolvency or Liquidation Proceeding of Indenture Obligations
consisting of post-petition interest, fees or expenses to the extent of the value of (i) the
Second-Priority Liens (provided, however, that that if the First Lien Secured
Parties shall have made any such claim, such claim shall have been approved prior to, or will be
approved contemporaneous with, the approval of any such claim by any Second Lien Secured Party) and
(ii) the Indenture Exclusive Collateral Liens.
19
SECTION 6.05. Certain Waivers by the Second Lien Secured Parties. The Second Lien Collateral
Agent, for itself and on behalf of the other Second Lien Secured Parties, waives any claim any
Second Lien Secured Party may hereafter have against any First Lien Secured Party arising out of
(a) the election by any First Lien Secured Party of the application of Section 1111(b)(2) of the
Bankruptcy Code, or any comparable provision of any other Bankruptcy Law, or (b) any cash
collateral or financing arrangement, or any grant of a security interest in the Collateral, in any
Insolvency or Liquidation Proceeding, in each case, with respect to the Collateral.
SECTION 6.06. Certain Voting Matters. Each of the First Lien Collateral Agent, on behalf of
the First Lien Secured Parties, and the Second Lien Collateral Agent, on behalf of the Second Lien
Secured Parties, agrees that, without the consent of the other, it will not seek to vote with the
other as a single class in connection with any plan of reorganization in any Insolvency or
Liquidation Proceeding.
ARTICLE VII
Other Agreements
SECTION 7.01. Matters Relating to Loan Documents. (a) Subject to Section 2.03, the First
Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with
their terms, and the Indebtedness under the Credit Agreement may be Refinanced or replaced, in each
case, without the consent of any Second Lien Secured Party; provided, however, that
without the consent of the Second Lien Required Lenders, no such amendment, restatement,
supplement, modification, Refinancing or replacement shall contravene any provision of this
Agreement or provide that the aggregate principal amount of Indebtedness that may be incurred
thereunder may exceed the Maximum Priority Debt Amount; provided further that the holders of the
Indebtedness resulting from such Refinancing or replacement (or a duly authorized agent on their
behalf) agree in writing to be bound by the terms of this Agreement.
(b) Without the prior written consent of the First Lien Required Lenders, no Second Lien Loan
Document may be amended, restated, supplemented or otherwise modified, or entered into, to the
extent such amendment, restatement, supplement or modification, or the terms of such new Second
Lien Loan Document, would contravene the provisions of this Agreement. As an intercreditor
agreement only and without prejudice to any rights of the First Lien Lenders under the Credit
Agreement, Indebtedness under the Second Lien Loan Documents may be Refinanced if a duly authorized
agent, on their behalf, agrees in writing to be bound by the terms of this Agreement.
(c) Each of Company and the Second Lien Collateral Agent agrees that the Indenture and each
Second Lien Collateral Document shall contain the applicable provisions set forth on Annex II
hereto, or similar provisions approved by the First Lien Collateral Agent.
SECTION 7.02. Effect of Refinancing of Indebtedness under First Lien Loan Documents. If,
within 90 days of the Discharge of First Lien Obligations, the Borrowers Refinance Indebtedness
outstanding under the First Lien Loan Documents and provided that (a)
20
such Refinancing is permitted hereby and (b) the Company gives to the Second Lien Collateral
Agent, at least ten Business Days prior to such Refinancing, written notice (the “Refinancing
Notice”) electing the application of the provisions of this Section 7.02 to such Refinancing
Indebtedness, then (i) such Discharge of First Lien Obligations shall automatically be deemed not
to have occurred for all purposes of this Agreement, (ii) such Refinancing Indebtedness and all
other obligations under the loan documents evidencing such Indebtedness (the “New First Lien
Obligations”) shall automatically be treated as First Lien Obligations for all purposes of this
Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set
forth herein, (iii) the credit agreement and the other loan documents evidencing such Refinancing
Indebtedness (the “New First Lien Loan Documents”) shall automatically be treated as the Credit
Agreement and the First Lien Loan Documents and, in the case of New First Lien Loan Documents that
are security documents, as the First Lien Collateral Documents for all purposes of this Agreement,
(iv) the collateral agent under the New First Lien Loan Documents (the “New First Lien Collateral
Agent”) shall be deemed to be the First Lien Collateral Agent for all purposes of this Agreement
and (v) the lenders under the New First Lien Loan Documents shall be deemed to be the First Lien
Lenders. Upon receipt of a Refinancing Notice, which notice shall include the identity of the New
First Lien Collateral Agent, the Second Lien Collateral Agent shall promptly enter into such
documents and agreements (including amendments or supplements to this Agreement) as the Company or
such New First Lien Collateral Agent may reasonably request in order to provide to the New First
Lien Collateral Agent the rights and powers contemplated hereby, in each case consistent in all
material respects with the terms of this Agreement. The Company shall cause the agreement,
document or instrument pursuant to which the New First Lien Collateral Agent is appointed to
provide that the New First Lien Collateral Agent agrees to be bound by the terms of this Agreement.
SECTION 7.03. No Waiver by First Lien Secured Parties. Other than with respect to the Second
Lien Permitted Actions, nothing contained herein shall prohibit or in any way limit the First Lien
Collateral Agent or any other First Lien Secured Party from opposing, challenging or objecting to,
in any Insolvency or Liquidation Proceeding or otherwise, any action taken, or any claim made, by
the Second Lien Collateral Agent or any other Second Lien Secured Party, including any request by
the Second Lien Collateral Agent or any other Second Lien Secured Party for adequate protection or
any exercise by the Second Lien Collateral Agent or any other Second Lien Secured Party of any of
its rights and remedies under the Second Lien Loan Documents or otherwise, in each case, in respect
of any Second Lien Collateral.
SECTION 7.04. Reinstatement. If, in any Insolvency or Liquidation Proceeding or otherwise,
all or part of any payment with respect to the First Lien Obligations or Indenture Obligations
previously made shall be rescinded for any reason whatsoever, then the First Lien Obligations or
Indenture Obligations, as the case may be, shall be reinstated to the extent of the amount so
rescinded and, if theretofore terminated, this Agreement shall be reinstated in full force and
effect and such prior termination shall not diminish, release, discharge, impair or otherwise
affect the Lien priorities and the relative rights and obligations of the First Lien Secured
Parties and the Second Lien Secured Parties provided for herein.
SECTION 7.05. Further Assurances. Each of the First Lien Collateral Agent, for itself and on
behalf of the other First Lien Secured Parties, and the Second Lien Collateral Agent, for itself
and on behalf of the other Second Lien Secured Parties, and each Grantor party
21
hereto, for itself and on behalf of its subsidiaries, agrees that it will execute, or will
cause to be executed, any and all further documents, agreements and instruments, and take all such
further actions, as may be required under any applicable law, or which the First Lien Collateral
Agent or the Second Lien Collateral Agent may reasonably request, to effectuate the terms of this
Agreement, including the relative Lien priorities provided for herein.
ARTICLE VIII
Representations and Warranties
SECTION 8.01. Representations and Warranties of Each Party. Each party hereto represents and
warrants to the other parties hereto as follows:
(a) Such party is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has all requisite power and authority to execute and deliver
this Agreement and perform its obligations hereunder.
(b) This Agreement has been duly executed and delivered by such party and constitutes a legal,
valid and binding obligation of such party, enforceable in accordance with its terms, except that
the enforcement hereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership,
moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to
creditors’ rights generally and (ii) general principles of equity (whether applied by a court of
law or equity) and the discretion of the court before which any proceeding therefor may be brought.
(c) The execution, delivery and performance by such party of this Agreement (i) do not require
any consent or approval of, registration or filing with or any other action by any governmental
authority and (ii) will not violate any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents or by-laws of such party
or any order of any governmental authority or any provision of any indenture, agreement or other
instrument binding upon such party.
SECTION 8.02. Representations and Warranties of Each Collateral Agent. Each Collateral Agent
represents and warrants to the other parties hereto that it has been authorized by the Lenders
under and as defined in the Credit Agreement and the holders of the Notes under the Indenture, as
applicable, to enter into this Agreement.
ARTICLE IX
No Reliance; No Liability; Obligations Absolute
SECTION 9.01. No Reliance; Information. Each Collateral Agent, for itself and on behalf of
the respective other Secured Parties, acknowledges that (a) the respective Secured Parties have,
independently and without reliance upon, in the case of the First Lien Secured Parties, any Second
Lien Secured Party and, in the case of the Second Lien Secured Parties, any First Lien Secured
Party, and based on such documents and information as they have deemed appropriate, made their own
credit analysis and decision to enter into the Loan Documents to which they are party and (b) the
respective Secured Parties will, independently
22
and without reliance upon, in the case of the First Lien Secured Parties, any Second Lien
Secured Party and, in the case of the Second Lien Secured Parties, any First Lien Secured Party,
and based on such documents and information as they shall from time to time deem appropriate,
continue to make their own credit decision in taking or not taking any action under this Agreement
or any other Loan Document to which they are party. The First Lien Secured Parties and the Second
Lien Secured Parties shall have no duty to disclose to any Second Lien Secured Party or to any
First Lien Secured Party, respectively, any information relating to the Company or any of the
Subsidiaries, or any other circumstance bearing upon the risk of nonpayment of any of the
Obligations, that is known or becomes known to any of them or any of their affiliates. In the
event any First Lien Secured Party or any Second Lien Secured Party, in its sole discretion,
undertakes at any time or from time to time to provide any such information to, respectively, any
Second Lien Secured Party or any First Lien Secured Party, it shall be under no obligation (i) to
make, and shall not make or be deemed to have made, any express or implied representation or
warranty, including with respect to the accuracy, completeness, truthfulness or validity of the
information so provided, (ii) to provide any additional information or to provide any such
information on any subsequent occasion or (iii) to undertake any investigation.
SECTION 9.02. No Warranties or Liability. (a) The First Lien Collateral Agent, for itself
and on behalf of the other First Lien Secured Parties, acknowledges and agrees that, except for the
representations and warranties set forth in Article VIII, neither the Second Lien Collateral Agent
nor any other Second Lien Secured Party has made any express or implied representation or warranty,
including with respect to the execution, validity, legality, completeness, collectibility or
enforceability of any of the Second Lien Loan Documents, the ownership of any Collateral or the
perfection or priority of any Liens thereon. The Second Lien Collateral Agent, for itself and on
behalf of the other Second Lien Secured Parties, acknowledges and agrees that, except for the
representations and warranties set forth in Article VIII, neither the First Lien Collateral Agent
nor any other First Lien Secured Party has made any express or implied representation or warranty,
including with respect to the execution, validity, legality, completeness, collectibility or
enforceability of any of the First Lien Loan Documents, the ownership of any Collateral or the
perfection or priority of any Liens thereon.
(b) The Second Lien Collateral Agent and the other Second Lien Secured Parties shall have no
express or implied duty to the First Lien Collateral Agent or any other First Lien Secured Party,
and the First Lien Collateral Agent and the other First Lien Secured Parties shall have no express
or implied duty to the Second Lien Collateral Agent or any other Second Lien Secured Party, to act
or refrain from acting in a manner which allows, or results in, the occurrence or continuance of a
default or an event of default under any First Lien Loan Document and any Second Lien Loan Document
(other than, in each case, this Agreement), regardless of any knowledge thereof which they may have
or be charged with.
(c) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien
Secured Parties, agrees that no First Lien Secured Party shall have any liability to the Second
Lien Collateral Agent or any other Second Lien Secured Party, and hereby waives any claim against
any First Lien Secured Party, arising out of any and all actions which the First Lien Collateral
Agent or the other First Lien Secured Parties may take or permit or omit to take.
23
SECTION 9.03. Obligations Absolute. The Lien priorities provided for herein and the
respective rights, interests, agreements and obligations hereunder of the First Lien Collateral
Agent and the other First Lien Secured Parties and the Second Lien Collateral Agent and the other
Second Lien Secured Parties shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Loan Document;
(b) any change in the time, place or manner of payment of, or in any other term of (including,
subject to the limitations set forth in Section 7.01(a), the Refinancing of), all or any portion of
the First Lien Obligations, it being specifically acknowledged that a portion of the First Lien
Obligations consists or may consist of Indebtedness that is revolving in nature, and the amount
thereof that may be outstanding at any time or from time to time may be increased or reduced and
subsequently reborrowed;
(c) any change in the time, place or manner of payment of, or, subject to the limitations set
forth in Section 7.01(a), in any other term of, all or any portion of the First Lien Obligations;
(d) subject to the limitations set forth in Section 7.01(a), any amendment, waiver or other
modification, whether by course of conduct or otherwise, of any Loan Document;
(e) the securing of any First Lien Obligations or Indenture Obligations with any additional
collateral or Guarantees, or any exchange, release, voiding, avoidance or non-perfection of any
security interest in any Collateral or any other collateral or any release of any Guarantee
securing any First Lien Obligations or Indenture Obligations; or
(f) any other circumstances that otherwise might constitute a defense available to, or a
discharge of, any Borrower, Grantor or any other loan party in respect of the First Lien
Obligations or this Agreement, or any of the Second Lien Secured Parties in respect of this
Agreement.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or by nationally recognized overnight courier service,
mailed by certified or registered mail or sent by fax to each party hereto at its address set forth
below its signature hereto.
All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered
by hand or by nationally recognized overnight courier service or sent by fax or on the date five
Business Days after dispatch by certified or registered mail if mailed, in each case delivered,
sent or mailed (properly addressed) to such party as provided in this Section 10.01 or in
accordance with the latest un-revoked direction from such party given in accordance with this
Section 10.01. As agreed to among the Company and any Collateral Agent from time to time,
24
notices and other communications may also be delivered by e-mail to the e-mail address of a
representative of the applicable Person provided from time to time by such Person.
SECTION 10.02. Conflicts. In the event of any conflict or inconsistency between the
provisions of this Agreement and the provisions of the other Loan Documents, the provisions of this
Agreement shall control.
SECTION 10.03. Effectiveness; Survival. This Agreement shall become effective when executed
and delivered by the parties hereto. All covenants, agreements, representations and warranties
made by any party in this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement. The terms of this
Agreement shall survive, and shall continue in full force and effect, in any Insolvency or
Liquidation Proceeding. The Second Lien Collateral Agent, for itself and on behalf of the other
Second Lien Secured Parties, hereby waives any and all rights the Second Lien Secured Parties may
now or hereafter have under applicable law to revoke this Agreement or any of the provisions of
this Agreement.
SECTION 10.04. Severability. In the event any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a particular provision in
a particular jurisdiction shall not in and of itself affect the validity of such provision in any
other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.05. Amendments; Waivers. (a) No failure or delay on the part of any party hereto
in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the parties hereto are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by any party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the First Lien Collateral Agent
and the Second Lien Collateral Agent; provided that no such agreement shall amend, modify or
otherwise affect the rights or obligations of any Grantor without such Person’s prior written
consent.
SECTION 10.06. Subrogation. The Second Lien Collateral Agent, for itself and on behalf of
the other Second Lien Secured Parties, hereby waives any rights of subrogation it or they may
acquire as a result of any payment hereunder until the Discharge of First Lien Obligations has
occurred; provided, however, that, as between the Company and the other
25
Grantors, on the one hand, and the Second Lien Secured Parties, on the other hand, any such
payment that is paid over to the First Lien Collateral Agent pursuant to this Agreement shall be
deemed not to reduce any of the Indenture Obligations. Following the Discharge of First Lien
Obligations, each First Lien Party agrees to execute such documents, agreements, and instruments as
any Second Lien Secured Party may reasonably request to evidence the transfer by subrogation to any
such Person of an interest in the First Lien Obligations resulting from payments or distributions
to such First Lien Secured Party by such Person, so long as all costs and expenses (including all
reasonable legal fees and disbursements) incurred in connection therewith by such First Lien
Secured Party are paid by such Person upon request for payment thereof.
SECTION 10.07. Applicable Law; Jurisdiction; Consent to Service of Process. (a) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in the Borough of Manhattan of the City of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent permitted by law, in such
Federal court. Each party hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect any right that any party
hereto may otherwise have to bring any action or proceeding relating to this Agreement in the
courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement in any New
York State or Federal court. Each party hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 10.01. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
SECTION 10.08. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B)
26
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.09. Parties in Interest. This provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns, as well
as the other First Lien Secured Parties and Second Lien Secured Parties, all of whom are intended
to be bound by, and to be third party beneficiaries of, this Agreement. No other Person shall have
or be entitled to assert rights or benefits hereunder.
SECTION 10.10. Specific Performance. Each Collateral Agent may demand specific performance
of this Agreement and, on behalf of itself and the respective other Secured Parties, hereby
irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that
might be asserted to bar the remedy of specific performance in any action which may be brought by
the respective Secured Parties.
SECTION 10.11. Headings. Article and Section headings used herein and the Table of Contents
hereto are for convenience of reference only, are not part of this Agreement and are not to affect
the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 10.12. Counterparts. This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original but
all of which when taken together shall constitute a single contract, and shall become effective as
provided in Section 10.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 10.13. 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 the First Lien
Secured Parties, on the one hand, and the Second Lien Secured Parties, on the other hand. None of
the Company, any other Grantor, any Guarantor or any other creditor thereof shall have any rights
or obligations, except as expressly provided in this Agreement, hereunder and none of the Company,
any other Grantor or any Guarantor may rely on the terms hereof. Nothing in this Agreement is
intended to or shall impair the obligations of the Company or any other Grantor or any Guarantor,
which are absolute and unconditional, to pay the First Lien Obligations and the Indenture
Obligations as and when the same shall become due and payable in accordance with their terms.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
THE CIT GROUP/BUSINESS CREDIT, INC., as First Lien Collateral Agent |
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By: | ||||||||
Name: Title: |
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Address for notices: | ||||||||
Facsimile Number: | ||||||||
U. S. BANK NATIONAL ASSOCIATION, as Second Lien Collateral Agent |
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By: | ||||||||
Name: Title: |
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Address for notices: U. S. Bank National Association 00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxxxx, Xxxxxxx 00000 Attention: Corporate Trust Services Facsimile No.: 000-000-0000 |
Acknowledged as of the date first above written:
STERLING CHEMICALS, INC.
By: Name: |
|
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Title: |
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STERLING CHEMICALS ENERGY, INC. | ||||
By:
|
|
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Name: |
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Title: |
Address for Notices:
c/o Sterling Chemicals, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: General Counsel
Facsimile No.: 000-000-0000
c/o Sterling Chemicals, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: General Counsel
Facsimile No.: 000-000-0000
ANNEX I
FIRST LIEN COLLATERAL
All right, title and interest of STERLING CHEMICALS, INC., a Delaware corporation, and
STERLING CHEMICALS ENERGY, INC., a Delaware corporation (each, individually, a “Borrower” and,
collectively, the “Borrowers’’), and each other Grantor (such capitalized term and all other
capitalized terms that are used and not defined in either this ANNEX I or the Intercreditor
Agreement shall have the meanings ascribed to such terms in that certain Security Agreement dated
as of (and as in effect on) the date hereof (as referred to in this ANNEX I, the “Security
Agreement”) made by the Borrowers in favor of [NAME OF SECURED PARTY]), in and to the following,
whether now owned or hereafter existing or acquired by such Grantor (all of the following are
collectively referred to as the “[First] [Second] Lien Collateral” in this Exhibit A):
(a) all Accounts and all books, other Records and Proceeds with respect thereto;
(b) all Chattel Paper (including without limitation all Tangible Chattel Paper and
Electronic Chattel Paper) and all books, other Records and Proceeds with respect thereto;
(c) any Commercial Tort Claims;
(d) all Deposit Accounts, including without limitation each Controlled Deposit Account
(including all deposits and investments therein and all earnings thereon), and all books,
other Records and Proceeds with respect thereto;
(e) all Documents and all books, other Records and Proceeds with respect thereto;
(f) all General Intangibles (other than Excluded Contracts) and all books, other
Records and Proceeds with respect thereto;
(g) all Inventory and all books, other Records and Proceeds with respect thereto;
(h) all other Goods (including without limitation all Equipment but excluding the
Excluded Equipment) and all books, other Records and Proceeds with respect thereto;
(i) all Instruments and all books, other Records and Proceeds with respect thereto;
(j) all Intellectual Property Collateral and all books, other Records and Proceeds with
respect thereto;
1
(k) all Investment Property [(other than (x) the Escrow Account (as defined in the
Indenture as in effect on the date hereof)]1 and (y) any Proceeds with respect to
the Escrow Account) and all books, other Records and Proceeds with respect thereto;
(l) all Letter-of-Credit Rights and all books, other Records and Proceeds with respect
thereto;
(m) all Receivables not otherwise described above and all books, other Records and
Proceeds with respect thereto; and
(n) all Supporting Obligations and all books, other Records and Proceeds with respect
thereto.
Notwithstanding the foregoing, [(i) the “First Lien Collateral” shall not include any Proceeds
(other than Capital Securities of a Borrower or a Restricted Subsidiary of a Borrower (other than a
Foreign Subsidiary)) arising from a Disposition, casualty or condemnation of Second Lien
Collateral, or (ii)]2 the “[First] [Second] Lien Collateral” shall not include (A) any
General Intangibles or other rights arising under any contract, instrument, license or other
document as to which the grant of a security interest would constitute a violation of a valid and
enforceable restriction on such grant in favor of the Person(s) (other than such Grantor) obligated
on such contract, instrument, license or other document, unless and until any required consents
shall have been obtained or (B) any Capital Securities issued by any Unrestricted Subsidiary or any
Foreign Subsidiary.
1 | Only include in First Lien Collateral Document. | |
2 | Only include in First Lien Collateral Document. |
2
ANNEX II
Provision for the Indenture
“The Trustee and by its acceptance of its Note(s), each Holder (a) acknowledges that it has
received a copy of the Intercreditor Agreement, (b) consents to the subordination of Liens on the
Second Lien Collateral as defined, and provided for, in the Intercreditor Agreement, (c) agrees
that it will be bound by and will take no actions contrary to the provisions of the Intercreditor
Agreement and (d) authorizes and instructs the Collateral Agent to enter into the Intercreditor
Agreement as agent for and representative of such Secured Party. The foregoing provisions are
intended as an inducement to the lenders under the Credit Facility to extend credit to the
Borrowers and such lenders are intended third-party beneficiaries of such provisions.”
Provision for the Second Lien Collateral Documents
“Notwithstanding anything herein to the contrary, the lien and security interest granted to the
Collateral Agent, for the ratable benefit of Secured Parties, pursuant to this Agreement and the
exercise of any right or remedy by the Collateral Agent and the other Secured Parties hereunder
with respect to the Second Lien Collateral, are subject to the provisions of the Intercreditor
Agreement. In the event of any conflict or inconsistency between the provisions of the
Intercreditor Agreement and this Agreement with respect to the Second Lien Collateral, the
provisions of the Intercreditor Agreement shall control.”
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