|
Exhibit 10.13
AMENDED AND RESTATED INTERCREDITOR
AGREEMENT
Amended and Restated Intercreditor
Agreement (this “ Agreement ”) dated as of April 13, 2007, among
JPMorgan Chase Bank, N.A. as administrative agent and collateral
agent (in such capacity, with its successors and assigns, the
“ First Priority
Representative ”) for
the First Priority Secured Parties (as defined below), JPMorgan
Chase Bank, N.A., as administrative and collateral agent (in such
capacity, with its successors and assigns, the “
Second Priority
Representative ”) for
the Second Priority Secured Parties (as defined below), RHI
Entertainment, LLC, a limited liability company organized under the
Delaware Limited Liability Company Act (the “
Borrower ”, and collectively with the Guarantors
defined herein and each direct or indirect affiliate or shareholder
(or equivalent) of the Borrower or any of its affiliates that is
now, or hereafter becomes a party to, any First Priority Document
or Second Priority Document as a “borrower” or a
“guarantor”, the “ Credit Parties ”) and RHI Entertainment Holdings, LLC, a
limited liability company organized under the Delaware Limited
Liability Company Act (the “Parent” ).
WHEREAS, the Borrower, certain
subsidiaries thereof (the “ Guarantors ”), the First Priority Representative, the
Parent and certain financial institutions (with their respective
successors and assigns, the “ First Priority Lenders ”) are parties to an Amended and Restated
Credit, Security, Guaranty and Pledge Agreement dated as January
12, 2006, as amended and restated as of April 13, 2007 (as amended,
supplemented, restated or otherwise modified from time to time
(subject to the limitations on such amendments, supplements,
restatements or modifications contained herein), the “
Existing First Priority
Agreement ”),
pursuant to which the First Priority Lenders have agreed to make
loans and extend other financial accommodations to the Borrower;
and
WHEREAS, the Credit Parties, the
Parent, the Second Priority Representative and certain financial
institutions and other entities (with their respective successors
and assigns, the “ Second Priority Lenders ”) are parties to a Credit, Security,
Guaranty and Pledge Agreement dated as of January 12, 2006, as
amended and restated as of April 13, 2007 (as the same may be
amended, supplemented, restated or otherwise modified from time to
time (subject to the limitations on such amendments, supplements,
restatements or modifications contained herein), the “
Existing Second Priority
Agreement ”),
pursuant to which the Second Priority Lenders have agreed to make
term loans to the Borrower in an aggregate principal amount of
$260,000,000 (the “ Second Priority Loans ”); and
WHEREAS, the Credit Parties and the
Parent have granted to the First Priority Representative first
priority liens and security interests in the Common Collateral (as
defined below) as security for payment and performance of the First
Priority Obligations (as defined below); and
WHEREAS, the Credit Parties and the
Parent have granted to the Second Priority Representative junior
liens and security interests in the Common Collateral as security
for payment and performance of the Second Priority Obligations (as
defined below); and
WHEREAS, the First Priority
Representative, the Second Priority Representative, the Credit
Parties and the Parent are parties to the Intercreditor Agreement
dated as of January 12, 2006 (the “Original
Intercreditor Agreement”) relating to the Credit Agreements
which are being amended and restated as the Existing First Priority
Agreement and the Existing Second Priority Agreement, respectively,
and are executing this Amended and Restated Intercreditor Agreement
to amend and restate and replace in its entirety the Original
Intercreditor Agreement;
WHEREAS, the obligations of the First
Priority Secured Parties and the Second Priority Secured Parties to
make loans and other financial accommodations to the Borrower under
the Existing First Priority Agreement and the Existing Second
Priority Agreement are subject to the conditions, among others,
that the First Priority Representative, the Second Priority
Representative, the Parent and the Credit Parties execute and
deliver this Agreement (i) to amend and restate the Original
Intercreditor Agreement in its entirety, (ii) to set forth the
relative priorities of the interests of the First Priority Secured
Parties and the Second Priority Secured Parties in the Common
Collateral, (iii) to provide for the orderly realization,
collection, liquidation and disposition of the Common Collateral
and (iv) to agree upon various matters related thereto;
NOW THEREFORE, in consideration of the
foregoing and the mutual covenants herein contained and other good
and valuable consideration, the existence and sufficiency of which
is expressly recognized by all of the parties hereto, the parties
agree as follows:
SECTION 1.
Definitions .
1.1 Defined Terms . The following terms, as used herein, have the
following meanings:
“ Additional First Priority Agreement
” means any agreement approved
for designation as such by the First Priority Representative and
the Second Priority Representative (at the direction of the Second
Priority Required Lenders).
“ Additional Second Priority Agreement
” means any agreement approved
for designation as such by the First Priority Representative and
the Second Priority Representative (at the direction of the Second
Priority Required Lenders).
“ Adequate Protection Lien ” has
the meaning set forth in Section 5.2(a).
“ Allowable Dividends ” shall mean the dividends and/or
distributions allowed pursuant to Section 6.5 of the Existing
First Priority Agreement as in effect as of the date
hereof.
2
“ Applicable Library Percentage
” shall be as defined in the
Existing First Priority Agreement as in effect as of the date
hereof or as amended with the consent of the Second Priority
Required Lenders.
“ Bankruptcy Code ” means the United States Bankruptcy Code
(11 U.S.C. §101 et seq.), as amended from time to
time.
“ Borrower ” has the meaning set forth in the
introductory paragraph hereof.
“ Borrowing Base ” shall be as defined in the Existing First
Priority Agreement as in effect on the date hereof.
“ Business Day ” means any day other than a Saturday,
Sunday or other day on which banks are required or permitted to
close in the State of New York.
“ Cap Amount ” means as of any date of determination $450
million plus an amount not in excess of $45 million in the
aggregate advanced in the context of a workout and/or a
debtor-in-possession financing, less an
amount equal to the sum, without duplication, of (i) the aggregate
amount of all principal payments and prepayments of the Term Loans
under the Existing First Priority Agreement as in effect on the
date hereof (other than any principal payments made on account or
as a result of a Permitted First Lien Refinancing), (ii) the
amount of all Proceeds of Common Collateral received after the date
hereof by the First Priority Representative, which pursuant to the
provisions of Section 2.10(f) of the Existing First Priority
Agreement as in effect on the date hereof, are to be applied to pay
First Priority Obligations and which are not so applied and (iii)
the aggregate amount of all permanent reductions of the Revolving
Credit Commitments (as such term (or any term comparable to such
term) is defined in the Existing First Priority Agreement) other
than a reduction on account of or as a result of a Permitted First
Lien Refinancing.
“Cash Management
Obligations” means,
with respect to any Credit Party, any obligations of such Credit
Party for fees or reimbursement of overdrafts that are owed to the
First Priority Representative (or any of its affiliates) or to a
First Priority Lender (or any of its affiliates) in respect of
treasury management arrangements, depositary or other cash
management services.
“ Closing Date ” means April 13, 2007.
“ Common Collateral ” means all assets that are both First
Priority Collateral and Second Priority Collateral at the time of
determination.
“ Credit Parties ” has the meaning set forth in the
introductory paragraph hereof.
“ DIP Financing ” has the meaning set forth in Section
5.2(a).
“Distribution” means, with respect to any indebtedness or
obligation of a Person, (a) any payment or distribution by such
Person of cash, securities, or other property, by set-off
or
3
otherwise, on account of such
indebtedness or obligation or (b) any redemption, purchase, or
other acquisition of such indebtedness or obligation by such
Person.
“ Eligible Library Amount ” shall be as defined in the Existing First
Priority Agreement as in effect as of the date hereof.
“ Enforcement Action ” or “ Exercise of Secured Creditor Remedies
” means, with respect to the
First Priority Obligations or the Second Priority Obligations, the
exercise of any rights and remedies provided to a secured creditor
with respect to any Common Collateral or Proceeds of Common
Collateral securing such obligations or the commencement or
prosecution of enforcement of any of the rights and remedies under,
as applicable, the First Priority Documents or the Second Priority
Documents or any law applicable to the exercise of rights or
remedies with respect to any Common Collateral, including without
limitation, the exercise of any rights or remedies of a secured
creditor with respect to the Common Collateral or Proceeds of
Common Collateral under the Uniform Commercial Code of any
applicable jurisdiction or under the Bankruptcy Code, or taking of
any action to initiate the dissolution, winding-up, liquidation or
reorganization of a Credit Party (whether voluntary or involuntary,
whether in bankruptcy, insolvency or receivership proceedings, or
for the assignment for the benefit of creditors or proceedings for
voluntary or involuntary liquidation, dissolution or other
winding-up of a Credit Party, whether or not involving insolvency
or bankruptcy or any marshalling of the assets and liabilities of a
Credit Party).
“ Equity Interests ” shall be as defined in the Existing First
Priority Agreement as in effect as of the date hereof.
“ Existing First Priority Agreement
” has the meaning set forth in
the first WHEREAS clause of this Agreement.
“ Existing Second Priority Agreement
” has the meaning set forth in
the second WHEREAS clause of this Agreement.
“ First Priority Agreement ” means, collectively, (i) the Existing
First Priority Agreement, (ii) any Additional First Priority
Agreement, so long as any such Additional First Priority Agreement
is not inconsistent with or in violation of any of the terms of
this Agreement, and (iii) any other credit agreement, loan
agreement, note agreement, promissory note, indenture or other
agreement or instrument evidencing or governing the terms of any
indebtedness or other financial accommodation that has been
incurred in connection with a Permitted First Lien Refinancing to
extend, renew, restructure, replace, refinance or refund in whole
or in part the indebtedness and other obligations outstanding under
the Existing First Priority Agreement, any Additional First
Priority Agreement or any other agreement or instrument referred to
in this clause (iii), unless such agreement or instrument expressly
provides that it is not intended to be and is not a First Priority
Agreement hereunder, so long as any such credit agreement, loan
agreement, note agreement, promissory note, indenture or other
agreement or instrument is not materially inconsistent with the
terms of this Agreement or in violation of any of the terms of this
Agreement.
4
“ First Priority Collateral ” means all assets, whether now owned or
hereafter acquired by any Credit Party, in which a Lien is granted
or purported to be granted to any First Priority Secured Party as
security for any First Priority Obligation pursuant to a First
Priority Security Document.
“ First Priority Creditors ” means the “Lenders” as defined
in the First Priority Agreement, or any Persons that are designated
under the First Priority Agreement as the “First Priority
Creditors” for purposes of this Agreement and notice of which
designation is given in writing to the Second Priority
Representative promptly after such designation.
“ First Priority Default ” shall mean an “Event of
Default” as that term is defined in the First Priority
Agreement.
“ First Priority Documents ” means the First Priority Agreement, each
First Priority Security Document and each First Priority
Guarantee.
“ First Priority Guarantee ” means any guarantee by any Credit Party of
any or all of the First Priority Obligations.
“ First Priority Lenders ” has the meaning set forth in the first
WHEREAS clause of this Agreement.
“ First Priority Lien ” means any Lien created by the First
Priority Security Documents.
“ First Priority Majority Lenders ” means the “Required Lenders”,
as such term is defined in the Existing First Priority Agreement as
in effect as of the date hereof.
“ First Priority Obligations ” means the sum, without duplication, of the
following: (i) the outstanding principal amount of all loans made
pursuant to the First Priority Agreement to the extent it does not
exceed the Cap Amount plus amounts added to the principal amount of
such loans as a result of capitalizing other First Priority
Obligations not paid in cash, (ii) all interest (including without
limitation any Post-Petition Interest) and premium (if any) on all
loans made pursuant to the First Priority Agreement, (iii) all L/C
Exposure (as defined in the First Priority Agreement in existence
on the date hereof) and other reimbursement obligations (if any)
and interest thereon (including, without limitation, any
post-petition interest) with respect to any letter of credit or
similar instrument issued pursuant to the First Priority Agreement,
(iv) all obligations of any Credit Party in respect of any
Swap Agreement, which such Credit Party may enter into from time to
time with any Person who was either a First Priority Secured Party
(or an affiliate of a First Priority Secured Party) or any other
Person who issued a Swap Agreement to the Borrower, in either case,
under which the amounts payable constitute
“Obligations” under the Existing First Priority
Agreement, (v) all Cash Management Obligations and (vi) all
guarantee obligations, fees, charges, expenses, indemnities,
reasonable attorney’s fees and other amounts due and payable
from time to time pursuant to the First Priority Documents, in each
case whether direct or indirect, absolute or contingent, joint or
several, primary or secondary and whether or not allowed or
allowable in an Insolvency Proceeding; provided ,
that First Priority Obligations shall also include any other
obligations that the Second Priority Required Lenders agree shall
constitute “First Priority Obligations” hereunder in
accordance with the applicable provisions of
5
the Existing Second Priority Agreement
or any comparable provision of any Additional Second Priority
Agreement.
“ First Priority Obligations Payment Date
” means the first date on which
(i) the outstanding First Priority Obligations (other than
Unasserted Contingent Obligations and those obligations described
in clauses (iii) and (iv) of this definition) have been paid in
cash in full (or secured or reserved for in another manner
reasonably acceptable to the First Priority Representative), (ii)
all commitments to extend credit under the First Priority Documents
have expired or been terminated, (iii) all First Priority
Obligations then due and outstanding at the time of the occurrence
of clause (i) above or which can be reasonably quantified at such
time in respect of all Swap Agreements have been paid in full or
the Credit Parties shall have entered into such other arrangements
reasonably acceptable to the counterparties of such Swap Agreements
to provide cash collateral or other reasonably acceptable security
for such First Priority Obligations in respect of such Swap
Agreements, and (iv) all Cash Management Obligations then due and
outstanding at the time of the occurrence of clause (i) above or
which can be reasonably quantified at such time have been paid in
full or otherwise cash collateralized or secured in a manner
reasonably acceptable to the First Priority Representative or the
Credit Parties have entered into such other arrangements reasonably
acceptable to the obligees of such Cash Management
Obligations.
“ First Priority Representative
” has the meaning set forth in
the introductory paragraph hereof. In the case of any new First
Priority Agreement that replaces a First Priority Agreement in
accordance with the terms hereof or the First Priority
Representative is changed pursuant to a First Priority Agreement,
the First Priority Representative shall be such replacement or the
Person identified as such in such new Agreement.
“ First Priority Restricted Provisions
” means, collectively, (i)
Allowable Dividends, (ii) Applicable Library Percentage, and (iii)
Eligible Library Amount.
“ First Priority Secured Parties
” means the First Priority
Representative, the First Priority Creditors and any other holders
of the First Priority Obligations.
“ First Priority Security Documents
” means the First Priority
Agreement, the Pledgeholder Agreements, the Copyright Security
Agreement, each Copyright Security Agreement Supplement, if any,
the Trademark Security Agreement, if any (in each case as defined
in the Existing First Priority Agreement), UCC financing
statements, and any other security documentation delivered to the
First Priority Representative granting or perfecting a lien on any
property of any Credit Party to secure First Priority
Obligations.
“ Insolvency Proceeding ” means any proceeding in respect of
bankruptcy, insolvency, winding up, receivership, dissolution or
assignment for the benefit of creditors, in each of the foregoing
events whether under the Bankruptcy Code or any similar federal,
state or foreign bankruptcy, insolvency, reorganization,
receivership or similar law.
“ Lien ” shall mean any mortgage, copyright
mortgage, pledge, security interest, encumbrance, lien or charge of
any kind whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any agreement to grant a
security interest at a
6
future date, any lease in the nature
of security, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code of any
jurisdiction); provided, however ,
that this term shall not include contractual encumbrances which do
not afford security of the type described in this definition or the
rights of a licensee as a licensee.
“ Notice of Intent to Exercise
” has the meaning set forth in
Section 3.2.
“ Overadvance ” has the meaning set for in Section
3.1.
“Parent
” has the meaning set forth in
the introductory paragraph hereof.
“ Payoff Letter ” has the meaning set forth in Section
8.3(b).
“Permitted First Lien
Refinancing” means a
refinancing of the outstanding principal amount of the loans made
under the First Priority Agreement, so long as (i) the Applicable
Library Percentage is not increased in connection therewith to a
percentage greater than 55% and any larger percentage theretofore
agreed by the Second Priority Required Lenders, (ii) the definition
of Eligible Library Amount is not modified in a manner materially
adverse to the interests of the Second Priority Lenders, (iii) the
principal amount of the Loans under such refinancing shall not be
increased above the Cap Amount then in effect and (iv) the
final maturity thereof is not extended beyond the sixth anniversary
of the Closing Date, in each case without the consent of the Second
Priority Required Lenders.
“ Permitted Refinancing ” means a refinancing of the outstanding
principal amount of the loans made under the Second Priority
Agreement, so long as (i) the terms of such refinancing do not
provide for an interest rate margin and/or fees such that the cash
portion of the net effective interest rate margin on the loans made
under such refinancing facility (after taking into account any
prepayment premium payable under Section 2.9(a) of the
Existing Second Priority Agreement) is more than two percent
(2.00%) per annum in cash pay above the interest rate margin on the
existing Second Priority Loans, (ii) the principal amount of Second
Priority Obligations is not increased above the principal amount
thereof outstanding immediately prior to such refinancing except to
the extent permitted under the Existing First Priority Agreement or
as the result of the payment of in kind interest, (iii) the
maturity of all or any portion of the Second Priority Obligations
is not shortened as a result of such refinancing or replacement,
(iv) the direct and contingent obligors therefore are not changed
as a result of such refinancing or replacement and (v) the relevant
Second Priority Document does not modify or add or make more
restrictive or onerous any covenant or event of default under the
Second Priority Documents, in each case without the consent of the
First Priority Majority Lenders.
“Permitted Replacement
Lien” has the meaning
set forth in Section 5.2(a).
“ Person ” means any person, individual, sole
proprietorship, partnership, joint venture, corporation, limited
liability company, unincorporated organization, association,
institution, entity, party, including any government and any
political subdivision, agency or instrumentality
thereof.
7
“ Post-Petition Interest ” means any interest, fees, expenses and
other charges that pursuant to the First Priority Agreement or the
Second Priority Agreement, continue to accrue after the
commencement of any Insolvency Proceeding, to the extent such
interest, fees, expenses and other charges are allowed or allowable
in any such Insolvency Proceeding.
“ Proceeds ” means, without duplication, (i) any
“proceeds” as defined in Article 9 of the UCC, with
respect to the Common Collateral and (ii) the amount of any sale,
exchange or other disposal of Common Collateral, whether voluntary
or involuntary, net of all reasonable cash expenses of such sale,
exchange or other disposal.
“Prohibited Plan
Distribution” has the
meaning set forth in Section 5.11.
“Reorganization
Securities” means any
debt or equity securities which are distributed to the Second
Priority Lenders in an Insolvency Proceeding which are, as to any
liens securing such securities, subordinated to the liens securing
the First Priority Obligations (or any debt or equity securities
issued in substitution of all or any portion of the First Priority
Obligations) on terms no less favorable to the First Priority
Lenders than the terms hereof.
“ Revolving Credit Loans ” shall be as defined in the Existing First
Priority Agreement as in effect as of the date hereof.
“ Second Priority Agreement ” means, collectively, (i) the Existing
Second Priority Agreement, (ii) any Additional Second Priority
Agreement, so long as any such Additional Second Priority Agreement
is not materially inconsistent with the terms of this Agreement, or
in violation of, any of the terms of this Agreement, and (iii) any
other credit agreement, loan agreement, note agreement, promissory
note, indenture, or other agreement or instrument evidencing or
governing the terms of any indebtedness or other financial
accommodation that has been incurred in connection with a Permitted
Refinancing to extend, renew, restructure, replace, refinance or
refund in whole or in part the indebtedness and other obligations
outstanding under the Existing Second Priority Agreement, any
Additional Second Priority Agreement or any other agreement or
instrument referred to in this clause (iii) so long as any such
credit agreement, loan agreement, note agreement, promissory note,
indenture or other agreement or instrument is not materially
inconsistent with the terms of this Agreement or in violation of
any of the terms of this Agreement.
“ Second Priority Collateral ” means all assets, whether now owned or
hereafter acquired by any Credit Party, in which a Lien is granted
or purported to be granted to any Second Priority Secured Party as
security for any Second Priority Obligation pursuant to a Second
Priority Security Document.
“ Second Priority Creditors ” means the Second Priority Representative
and the “Lenders” as defined in the Second Priority
Agreement, or any Persons that are designated under the Second
Priority Agreement as the “Second Priority Creditors”
for purposes of this Agreement and notice of which designation is
given in writing to the First Priority Representative promptly
after such designation.
8
“ Second Priority Documents ” means the Second Priority Agreement, each
Second Priority Security Document and each Second Priority
Guarantee.
“ Second Priority Guarantee ” means any guarantee by a Credit Party of
any or all of the Second Priority Obligations.
“ Second Priority Lenders ” has the meaning set forth in the second
WHEREAS clause of this Agreement.
“ Second Priority Lien ” means any Lien created by the Second
Priority Security Documents.
“ Second Priority Loans ” has the meaning set forth in the second
WHEREAS clause of this Agreement.
“ Second Priority Obligations
” means (i) all principal of and
interest (including without limitation any Post-Petition Interest)
and premium (if any) on the Second Priority Loans and (ii) all
guarantee obligations, fees, expenses, indemnities,
attorney’s fees, charges and other amounts payable from time
to time pursuant to the Second Priority Documents, in each case
whether direct or indirect, absolute or contingent, joint or
several, primary or secondary and whether or not allowed or
allowable in an Insolvency Proceeding; provided ,
the Second Priority Obligations shall also include any other
obligations that the First Priority Representative agrees shall
constitute “Second Priority Obligations” hereunder in
accordance with the applicable provisions of the Existing First
Priority Agreement or any comparable provisions of any Additional
First Priority Agreement. To the extent any payment with respect to
any Second Priority Obligation (whether by or on behalf of any
Credit Party, as proceeds of security, enforcement of any right of
setoff or otherwise) is declared to be a fraudulent conveyance or a
preference in any respect, set aside or required to be paid to a
debtor in possession, any First Priority Secured Party, receiver or
similar Person, then the obligation or part thereof originally
intended to be satisfied shall, for the purposes of this Agreement
and the rights and obligations of the First Priority Secured
Parties and the Second Priority Secured Parties, be deemed to be
reinstated and outstanding as if such payment had not
occurred.
“ Second Priority Representative
” has the meaning set forth in
the introductory paragraph hereof. In the case of any Second
Priority Agreement that replaces a Second Priority Agreement in
accordance with the terms hereof or the Second Priority
Representative is changed pursuant to a Second Priority Agreement,
the Second Priority Representative shall be such replacement or the
Person identified as such in such new Agreement.
“ Second Priority Required Lenders
” shall mean the Second Priority
Lenders holding more than 50% of the outstanding Second Priority
Loans
“ Second Priority Secured Parties
” means the Second Priority
Representative, the Second Priority Creditors and any other holders
of the Second Priority Obligations.
“ Second Priority Security Documents
” means the Second Priority
Agreement, the Pledgeholder Agreements, the Copyright Security
Agreement, the Copyright Security Agreement
9
Supplement, the Copyright Security
Agreement Supplement, if any, the Trademark Security Agreement, if
any (in each case as defined in the Existing Second Priority
Agreement), UCC financing statements and any other security
documentation delivered to the First Priority Representative or the
Second Priority Representative granting or perfecting a lien on any
property of any Credit Party securing the Second Priority
Obligations.
“ Secured Parties ” means the First Priority Secured Parties
and the Second Priority Secured Parties.
“ Standstill Notice ” means a written notice from First Priority
Representative to Second Priority Representative stating that it is
a “Standstill Notice” and stating that a First Priority
Default has occurred and is continuing or that it has received a
Notice of Intent to Exercise.
“ Standstill Period ” means the period beginning on the date
that a Standstill Notice is received by Second Priority
Representative (but no earlier than 180 days subsequent to the end
of any preceding Standstill Period) through and including the first
to occur of (a) the date upon which the First Priority Obligations
Payment Date shall have occurred, (b) the date upon which First
Priority Representative shall have waived or acknowledged in
writing the termination of the First Priority Default that gave
rise to such Standstill Period, (c) the date that is 180
consecutive days after the receipt of such Standstill Notice by
Second Priority Representative or (d) the commencement of an
Insolvency Proceeding.
“ Swap Agreement ” means, as the context so requires, an
“Interest Rate Protection Agreement” or a
“Currency Agreement”, each as defined in the Existing
First Priority Agreement as in effect as of the date
hereof.
“ Term Loans ” shall be as defined in the Existing First
Priority Agreement as in effect as of the date hereof.
“ UCC ” means the Uniform Commercial Code as in
effect from time to time in the State of New York.
“ Unasserted Contingent Obligations
” means, at any time, First
Priority Obligations for taxes, costs, indemnifications,
reimbursements, damages and other liabilities (excluding (i) the
principal of, and interest and premium (if any) on, and fees and
expenses relating to, any First Priority Obligation and (ii)
contingent reimbursement obligations in respect of amounts that may
be drawn under outstanding letters of credit) in respect of which
no assertion of liability (whether oral or written) and no claim or
demand for payment (whether oral or written) has been made (and, in
the case of First Priority Obligations for indemnification, no
notice for indemnification has been issued by the indemnitee) at
such time.
1.2 Amended Agreements . All references in this Agreement to agreements
or other contractual obligations shall, unless otherwise specified,
be deemed to refer to such agreements or contractual obligations as
amended, supplemented, restated or otherwise modified from time to
time, so long as any such amendment, supplement, restatement or
modification is not materially inconsistent with the terms of this
Agreement or in violation of any of the terms of this
Agreement.
10
SECTION 2.
Lien Priorities
.
2.1 Subordination of Liens . (a) Any and all Liens in respect of all or any
of the Common Collateral now existing or hereafter created or
arising in favor of any Second Priority Secured Party securing the
Second Priority Obligations, regardless of how acquired, whether by
grant, statute, operation of law, subrogation or otherwise are
expressly junior in priority, operation and effect to any and all
Liens now existing or hereafter created or arising in favor of the
First Priority Secured Parties securing the First Priority
Obligations, notwithstanding (i) anything to the contrary contained
in any agreement or filing to which any Second Priority Secured
Party may now or hereafter be a party, and regardless of the time,
order or method of grant, attachment, recording or perfection of
any financing statements or other security interests, assignments,
pledges, deeds, mortgages and other liens, charges or encumbrances
or any defect or deficiency or alleged defect or deficiency in any
of the foregoing, (ii) any provision of the UCC or any applicable
law or any First Priority Document or Second Priority Document or
any other circumstance whatsoever and (iii) the fact that any such
Liens in favor of any First Priority Secured Party securing any of
the First Priority Obligations are (x) subordinated to any Lien
securing any obligation of any Credit Party other than the Second
Priority Obligations or (y) otherwise subordinated, voided,
avoided, invalidated or lapsed.
(b) No First Priority Secured Party or
Second Priority Secured Party shall object to or contest, or
support any other Person in contesting or objecting to, in any
proceeding (including without limitation, any Insolvency
Proceeding), the validity, extent, perfection, priority or
enforceability of any security interest in the Common Collateral
granted to the other, and each First Priority Secured Party and
each Second Priority Secured Party hereby waives its right to do
so.
(c) The Second Priority Representative
on behalf of itself and the other Second Priority Secured Parties
waives, to the fullest extent permitted by law, any right to
request marshalling of assets.
2.2 Nature of First Priority Obligations
. The Second Priority Representative
on behalf of itself and the other Second Priority Secured Parties
acknowledges that a portion of First Priority Obligations is
revolving in nature and that the amount of the Revolving Credit
Loans that may be outstanding at any time or from time to time may
be increased or reduced and subsequently reborrowed and that,
subject to the terms hereof, the terms of the First Priority
Obligations may be modified, extended or amended from time to time,
and that the aggregate amount of the First Priority Obligations
(subject to the limitations contained in the definition thereof)
may be increased, replaced or refinanced, in each event, without
notice to or consent by the Second Priority Secured Parties and
without affecting the provisions hereof so long as any such
modification, extension or amendment does not violate the
restrictions applicable to a Permitted First Lien Refinancing.
Subject to the provisions of this Agreement (including but not
limited to the limitations contained in the definition of First
Priority Obligations and those applicable to a Permitted First Lien
Refinancing), the lien priorities provided in Section 2.1 shall not
be altered or otherwise affected by any such amendment,
modification, supplement, extension, repayment, reborrowing,
increase, replacement, renewal, restatement or refinancing of
either the First Priority Obligations or the Second Priority
Obligations, or any portion thereof.
11
2.3 Agreements Regarding Actions to Perfect
Liens . (a) The Second
Priority Representative on behalf of itself and the other Second
Priority Secured Parties agrees that (i) all UCC-1 financing
statements, patent, trademark or copyright filings or other filings
or recordings filed or recorded by or on behalf of the Second
Priority Representative shall be in form reasonably satisfactory to
the First Priority Representative, (ii) all such perfection
instruments filed by the Second Priority Representative on or prior
to the Closing Date shall be substantially identical to, and shall
be filed after, those filed by the First Priority Representative on
or prior to the Closing Date and (iii) it shall provide the First
Priority Representative with copies of any subsequent perfection
instrument filed or recorded within five (5) Business Days of such
filing or recordation.
(b) The Second Priority Representative
agrees on behalf of itself and the other Second Priority Secured
Parties that all mortgages, deeds of trust, deeds and similar
instruments (collectively, “ mortgages ”) now or thereafter filed against any
tangible or intangible Common Collateral in favor of or for the
benefit of the Second Priority Representative shall be in form
reasonably satisfactory to the First Priority Representative and
shall contain the following notation: “The lien created by
this mortgage on the property described herein is junior and
subordinate to the lien on such property created by any mortgage,
deed of trust or similar instrument now or hereafter granted to
JPMorgan Chase Bank, N.A., as Administrative Agent for certain
First Priority Secured Parties, and its successors and assigns, in
such property, in accordance with the provisions of the
Intercreditor Agreement dated as of April __, 2007 among JPMorgan
Chase Bank, N.A., as First Priority Representative, JPMorgan Chase
Bank ,
N.A., as Second Priority Representative, and the Credit
Parties referred to therein, as amended from time to
time.”
(c) The First Priority Representative
hereby acknowledges that, to the extent that it holds, or a third
party holds on its behalf, physical possession of or
“control” (as defined in the Uniform Commercial Code
including, without limitation, control or possession of money or
deposit accounts pursuant to Section 9-313 or 9-314 of the UCC) or
as bailee (such bailment, intended among other things to satisfy
the requirements of Section 8-106(d)3, 8-301(a)(2) and 9-313(c) of
the UCC), over Common Collateral pursuant to the First Priority
Security Documents, such possession, control or bailment is also
for the benefit of the Second Priority Representative and the other
Second Priority Secured Parties solely to the extent required to
perfect their security interest in such Common Collateral. Nothing
in the preceding sentence shall be construed to impose any duty on
the First Priority Representative (or any third party acting on its
behalf) with respect to such Common Collateral or provide the
Second Priority Representative or any other Second Priority Secured
Party with any rights with respect to such Common Collateral beyond
those specified in this Agreement and the Second Priority Security
Documents, provided that subsequent to the occurrence of the First
Priority Obligations Payment Date, the First Priority
Representative shall, unless otherwise directed by a court of
competent jurisdiction, deliver to the Second Priority
Representative, at the Credit Parties’ sole cost and expense,
the Common Collateral in its possession or control together with
any necessary endorsements to the extent required by the Second
Priority Documents, and provided , further ,
that the provisions of this Agreement are intended solely to govern
the respective Lien priorities as between the First Priority
Secured Parties and the Second Priority Secured Parties and shall
not impose on the First Priority Secured Parties any obligations in
respect of the disposition of any Common Collateral
12
(or any Proceeds thereof) that would
conflict with prior perfected Liens or any claims thereon in favor
of any other Person that is not a Secured Party.
(d) The Second Priority Representative
hereby acknowledges that, to the extent that it holds subsequent to
the First Priority Obligations Payment Date, or a third party then
holds on its behalf, physical possession of or
“control” (as defined in the Uniform Commercial Code
including, without limitation, control or possession of money or
deposit accounts pursuant to Section 9-313 or 9-314 of the UCC) or
as bailee (such bailment, intended among other things to satisfy
the requirements of Section 8-106(d)3, 8-301(a)(2) and 9-313(c) of
the UCC), over Common Collateral pursuant to the Second Priority
Security Documents, such possession, control or bailment is also
for the benefit of the First Priority Representative and the other
First Priority Secured Parties solely to the extent required to
perfect their security interest in such Common Collateral for
obligations, if any, under the First Priority Documents in excess
of the First Priority Obligations. Nothing in the preceding
sentence shall be construed to impose any duty on the Second
Priority Representative (or any third party acting on its behalf)
with respect to such Common Collateral or provide the First
Priority Representative or any other First Priority Secured Party
with any rights with respect to such Common Collateral beyond those
specified in this Agreement and the First Priority Security
Documents, provided that subsequent to the satisfaction of the
obligations under the Second Priority Documents, the Second
Priority Representative shall, unless otherwise directed by a court
of competent jurisdiction, deliver to the First Priority
Representative, at the Credit Parties’ sole cost and expense,
the Common Collateral in its possession or control together with
any necessary endorsements to the extent required by the First
Priority Documents, and provided , further ,
that the provisions of this section are intended solely to govern
the respective Lien priorities as between the First Priority
Secured Parties and the Second Priority Secured Parties subsequent
to the satisfaction of the obligations under the Second Priority
Documents and shall not impose on the Second Priority Secured
Parties any obligations in respect of the disposition of any Common
Collateral (or any Proceeds thereof) that would conflict with prior
perfected Liens or any claims thereon in favor of any other Person
that is not a Secured Party.
2.4 No New Liens . Second Priority Representative, for itself and
on behalf of the Second Priority Lenders, acknowledges and agrees
that First Priority Representative has been granted senior Liens
upon all of the Common Collateral in which Second Priority
Representative has been granted Liens, and Second Priority
Representative hereby consents thereto. If (i) any Credit Party
grants in favor of Second Priority Representative or any other
Second Priority Secured Party a Lien on any asset of such Credit
Party not constituting Common Collateral as of the date hereof (or
subsequent thereto as a post-closing item set forth in the Existing
Second Priority Agreement as in effect as of the date hereof) or
(ii) Second Priority Representative or any other Second Priority
Secured Party otherwise obtains a non-consensual lien (including a
judgment lien, writ of attachment or writ of execution) on any
asset of any Credit Party not constituting Common Collateral as of
the date hereof, Second Priority Representative agrees that it
shall give First Priority Representative prompt written notice
thereof (and in no event later than five (5) Business Days after
the date Second Priority Representative has actual knowledge of
such grant), containing a detailed description of such asset (it
being understood and agreed that the failure by Second Priority
Representative to give such notice to First Priority Representative
shall not affect the validity, perfection or enforceability of such
Lien, and that any amounts distributable to or received by or
distributed to any of the Second Priority Secured
Parties
13
pursuant to or as a result of such
Liens shall in any event be subject to Section 4.1), and Second
Priority Representative acknowledges that if First Priority
Representative obtains a Lien on such asset, whether prior to or
after the time that Second Priority Representative obtains a Lien
on such asset, then the priority of such Lien will be subject to
the terms and provisions of this Agreement. First Priority
Representative, for itself and on behalf of the First Priority
Lenders, acknowledges and agrees that Second Priority
Representative has been granted Liens upon all of the Common
Collateral in which First Priority Representative has been granted
Liens and First Priority Representative hereby consents thereto. If
(i) any Credit Party grants in favor of First Priority
Representative or any other First Priority Secured Party a Lien on
any asset of such Credit Party not constituting Common Collateral
on the date hereof (or subsequent thereto as a post-closing item
set forth in the Existing Second Priority Agreement as in effect as
of the date hereof) or (ii) First Priority Representative or any
other First Priority Secured Party otherwise obtains a
non-consensual lien (including a judgment lien, writ of attachment
or writ of execution) on any asset of any Credit Party not
constituting Common Collateral on the date hereof, First Priority
Representative agrees that it shall give Second Priority
Representative prompt written notice thereof (and in no event later
than five (5) Business Days after the date First Priority
Representative has actual knowledge of such grant), containing a
detailed description of such asset (it being understood and agreed
that the failure by First Priority Representative to give such
notice to Second Priority Representative shall not affect the
validity, perfection or enforceability of such Lien), and First
Priority Representative acknowledges that if Second Priority
Representative obtains a Lien on such asset, whether prior to or
after the time that First Priority Representative obtains a Lien on
such asset, then the priority of such Lien will be subject to the
terms and provisions of this Agreement.
SECTION 3.
Enforcement Rights
.
3.1 Exclusive Enforcement . Until the earlier of the occurrence of the First
Priority Obligations Payment Date or the expiration or other
termination of the then current Standstill Period, whether or not
an Insolvency Proceeding has been commenced by or against any
Credit Party, the First Priority Secured Parties shall have the
exclusive right to take, continue, oppose, or otherwise prosecute,
defend, settle or consent to any Enforcement Action, without any
consultation with or consent of any Second Priority Secured Party,
and the Second Priority Secured Parties shall not take any position
contrary to the First Priority Secured Parties, or support any
other Person who takes any position contrary to the First Priority
Secured Parties, with respect to
|
