ADDITIONAL GENERAL INTERCREDITOR
AGREEMENT
ADDITIONAL GENERAL
INTERCREDITOR AGREEMENT (this “ Agreement ”),
dated as of August 11, 2009, by and among BANK OF AMERICA,
N.A., in its capacity as First Lien Collateral Agent, including its
successors and assigns from time to time, THE BANK OF NEW YORK
MELLON, in its capacity as Junior Lien Collateral Agent and in its
capacity as 2006 Second Lien Trustee, including its successors and
assigns from time to time, and THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., in its capacity as 2009 Second Lien Trustee,
including its successors and assigns from time to time.
A. Reference
is made to (i) the General Intercreditor Agreement dated as of
November 17, 2006 (as may be amended or modified from time to
time, the “ Intercreditor Agreement ”;
capitalized terms used herein without definition have the meanings
given such terms by the Intercreditor Agreement) by and between
Bank of America, N.A. as First Lien Collateral Agent and The Bank
of New York Mellon, as Junior Lien Collateral Agent, and
(ii) the Indenture (the “ New First Lien
Agreement ”), dated as of August 11, 2009, by and
among the Company and the other Grantors, Law Debenture Trust
Company of New York, as trustee (including its successors and
assigns from time to time, the “ New First Lien
Trustee ”), and Deutsche Bank Trust Company Americas, as
registrar, paying agent and transfer agent.
B. Pursuant
to the terms of the Junior Lien Documents, the Junior Lien
Collateral Agent is permitted to enter into this
Agreement.
C. Pursuant
to the First Lien Security Documents, the Grantors have granted
Liens in the Common Collateral to the First Lien Collateral Agent
to secure the payment and performance of the New First Lien
Obligations.
D In order to
induce the holders of New First Lien Obligations to extend credit
to the Grantors, the First Lien Collateral Agent, the Junior Lien
Collateral Agent and the New First Lien Trustee hereby agree as
follows:
1.1. Defined
Terms . As used in this Agreement, the following terms have the
meanings specified below:
“Agreement ” shall mean this Agreement, as
amended, renewed, extended, supplemented or otherwise modified from
time to time in accordance with the terms hereof.
“ Common
Collateral ” shall mean all of the assets of any Grantor,
whether real, personal or mixed, constituting both New First Lien
Collateral and Junior Lien Collateral including without limitation
(a) any assets in which the First Lien Collateral Agent is
automatically deemed to have a Lien pursuant to the provisions of
Section 2.3 of the Intercreditor Agreement (as
incorporated into this Agreement pursuant to
Section 2.1 hereof) and (b) Shared Receivables
Collateral.
“
Discharge of New First Lien Obligations ” shall mean,
except to the extent otherwise provided in Section 5.7
of the Intercreditor Agreement, the discharge or legal
defeasance
or covenant
defeasance of the New First Lien Agreement in accordance with its
terms; provided that the Discharge of New First Lien
Obligations shall not be deemed to have occurred if such payments
are made with the proceeds of other New First Lien Obligations that
constitute an exchange or replacement for or a Refinancing, in
whole or in part, of such New First Lien Obligations. In the event
the New First Lien Obligations are modified and such Obligations
are paid over time or otherwise modified pursuant to
Section 1129 of the Bankruptcy Code, the New First Lien
Obligations shall be deemed to be discharged when the final payment
is made, in cash, in respect of such indebtedness and any
obligations pursuant to such new indebtedness shall have been
satisfied.
“ First
Lien Collateral Agent ” means Bank of America, N.A., in
its capacity as administrative agent and collateral agent for the
lenders and other secured parties under the Credit Agreement, in
its capacity as collateral agent for the secured parties under any
Additional First Lien Obligations (as defined in the New First Lien
Agreement) in existence from time to time and in its capacity as
collateral agent for the New First Lien Secured Parties, together
with its successors and permitted assigns under the Credit
Agreement, any agreement governing any Additional First Lien
Obligations, the New First Lien Agreement and the First Lien
Documents exercising substantially the same rights and powers; and
in each case provided that if such First Lien Collateral Agent is
not Bank of America, N.A., such First Lien Collateral Agent shall
have become a party to the Intercreditor Agreement, this Agreement
and the other applicable First Lien Security Documents.
“ First
Lien Documents ” means the credit, guarantee and security
documents governing the New First Lien Obligations, including,
without limitation, the New First Lien Agreement and the First Lien
Security Documents.
“ First
Lien Security Documents ” means the Security Documents
(as defined in the New First Lien Agreement) and any other
agreement, document or instrument pursuant to which a Lien is
granted or purported to be granted securing New First Lien
Obligations or under which rights or remedies with respect to such
Liens are governed, in each case to the extent relating to Common
Collateral.
“ New
First Lien Agreement ” shall have the meaning set forth
in the recitals.
“ New
First Lien Collateral ” shall mean all of the assets of
any Grantor, whether real, personal or mixed, with respect to which
a Lien is granted or purported to be granted as security for any
New First Lien Obligations pursuant to a First Lien Security
Document.
“ New
First Lien Obligations ” shall mean all advances to, and
debts, liabilities, obligations, covenants and duties of, any
Grantor arising under the New First Lien Agreement and any other
First Lien Documents, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become
due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Grantor
or any Affiliate thereof of any proceeding under any bankruptcy or
insolvency law naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in
such proceeding, in each case, that have been designated as
“Additional First Lien Obliga-
tions”
pursuant to and in accordance with Section 8.17 of the
Security Agreement (as defined in the New First Lien
Agreement).
“ New
First Lien Secured Parties ” means, at any relevant time,
the holders of New First Lien Obligations at such time, including
without limitation the New First Lien Trustee and the holders of
notes issued pursuant to the New First Lien Agreement.
“ Second
Lien Trustees ” means the 2006 Second Lien Trustee, the
2009 Second Lien Trustee and any trustee that enters into a joinder
to this Agreement pursuant to Section 3.12 hereof, and any
successor trustee in accordance with the applicable Junior Lien
Document.
“2009
Second Lien Indenture” means the Indenture dated as of
February 19, 2009, among the Company, the guarantors
identified therein and the 2009 Second Lien Trustee, as amended,
restated, supplemented, waived, referenced or otherwise modified
from time to time.
“ 2006
Second Lien Trustee ” means The Bank of New York Mellon,
as trustee under the Indenture, and any successor trustee in
accordance with the Indenture.
“ 2009
Second Lien Trustee ” means The Bank of New York Mellon
Trust Company, N.A., as trustee under the 2009 Second Lien
Indenture, and any successor trustee in accordance with such
indenture.
1.2. Terms
Generally . The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words
“include,” “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation.” The word
“will” shall be construed to have the same meaning and
effect as the word “shall.” Unless the context requires
otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to
time amended, supplemented or otherwise modified in accordance with
this Agreement, (b) any reference herein to any Person shall
be construed to include such Person’s successors and assigns,
(c) the words “herein,” “hereof” and
“hereunder,” and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to
Sections shall be construed to refer to Sections of this Agreement
and (e) the words “asset” and
“property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and
contract rights.
SECTION 2.
INTERCREDITOR AGREEMENT .
2.1.
Subordination of Liens; Rights of New First Lien Secured
Parties . The First Lien Collateral Agent, on behalf of itself
and the New First Lien Secured Parties, the New First Lien Trustee,
on behalf of itself and the New First Lien Secured Parties, and the
Junior Lien Collateral Agent and the Second Lien Trustees, each on
behalf of itself and the Junior Lien Secured Parties, hereby agree
that notwithstanding (i) the date, time, manner or order of
filing or recordation of any document or instrument or grant,
attachment or perfection (including any defect or deficiency or
alleged defect or deficiency in any of the foregoing) of any Liens
granted to
the Junior Lien
Collateral Agent or the Junior Lien Secured Parties on the Common
Collateral or of any Liens granted to the First Lien Collateral
Agent or the New First Lien Secured Parties on the Common
Collateral to secure the New First Lien Obligations, (ii) any
provision of the UCC, the Bankruptcy Code, any applicable law, the
Junior Lien Documents or the First Lien Documents, (iii) whether
the First Lien Collateral Agent, either directly or through agents,
holds possession of, or has control over, all or any part of the
Common Collateral, (iv) the fact that any such Liens may be
subordinated, voided, avoided, invalidated or lapsed or
(v) any other circumstance of any kind or nature whatsoever:
(a) any Lien on the Common Collateral securing any New First
Lien Obligations now or hereafter held by or on behalf of the First
Lien Collateral Agent or any New First Lien Secured Parties or any
agent or trustee therefor regardless of how acquired, whether by
grant, statute, operation of law, subrogation or otherwise, shall
have priority over and be senior in all respects and prior to any
Lien on the Common Collateral securing any Junior Lien Obligations
and (b) any Lien on the Common Collateral securing any Junior
Lien Obligations now or hereafter held by or on behalf of the
Junior Lien Collateral Agent or any Junior Lien Secured Party or
any agent or trustee therefor regardless of how acquired, whether
by grant, statute, operation of law, subrogation or otherwise,
shall be junior and subordinate in all respects to all Liens on the
Common Collateral securing any New First Lien Obligations, in each
case, to the same extent as the Liens on the Common Collateral
securing the Junior Lien Obligations are subordinate and junior to
the Liens securing the First Lien Obligations pursuant to the terms
of the Intercreditor Agreement as in effect on the date hereof.
Prior to the Discharge of New First Lien Obligations, (x) the
New First Lien Secured Parties shall have all rights and benefits
under this Agreement as are provided to the “First Lien
Secured Parties” pursuant to the Intercreditor Agreement with
respect to the Common Collateral prior to the Discharge of First
Lien Obligations under the Intercreditor Agreement, (y) the
Junior Lien Collateral Agent and the Junior Lien Secured Parties
shall have all obligations with respect to the Common Collateral
for the benefit of the New First Lien Secured Parties as are
required pursuant to the Intercreditor Agreement for the benefit of
the First Lien Secured Parties, and the provisions of the
Intercreditor Agreement are incorporated herein mutatis
mutandis (it being understood that, prior to the Discharge
of First Lien Obligations, in the event of any conflict between
this Agreement and the Intercreditor Agreement, the Junior Lien
Collateral Obligations and the Junior Lien Secured Parties shall
comply with the provisions of the Intercreditor Agreement). For the
avoidance of doubt, in incorporating the provisions of the
Intercreditor Agreement herein mutatis mutandis ,
(A) references in the Intercreditor Agreement to “First
Priority Liens,” when incorporated herein, shall be deemed to
include Liens securing New First Lien Obligations,
(B) references in the Intercreditor Agreement to the
“Credit Agreement” in the definitions of “ABL
Controlled Accounts,” “Indebtedness,”
“Junior Lien Obligations,” “Notes&
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