EXHIBIT 10.21
AMENDED AND RESTATED
INTERCREDITOR AGREEMENT
AMENDED AND RESTATED INTERCREDITOR
AGREEMENT, dated as of February 17, 2004, among DEUTSCHE BANK
TRUST COMPANY AMERICAS, as Credit Agent, WILMINGTON TRUST COMPANY,
as Second Priority Noteholder Agent and as 2004 Noteholder Agent,
and PLIANT CORPORATION.
W I T N E S S E T H :
WHEREAS, the Company (such term and
each other capitalized term used herein having the meanings set
forth in Section 1 below), Deutsche Bank Trust Company
Americas, in its capacity as collateral agent under the Existing
Credit Agreement, and Wilmington Trust Company, in its capacity as
trustee under the 2003 Indenture, are parties to the Intercreditor
Agreement dated as of May 30, 2003 (the “Existing
Intercreditor Agreement”);
WHEREAS, the Company, certain
Subsidiaries of the Company, certain lenders, Credit Suisse First
Boston, acting through its Cayman Islands Branch, as administrative
agent and documentation agent, Deutsche Bank Trust Company
Americas, as collateral agent, General Electric Capital
Corporation, as co-collateral agent, and JPMorgan Chase Bank, as
syndication agent, are parties to the Credit Agreement dated as of
February 17, 2004 (as amended, supplemented or otherwise
modified from time to time, the “ New Credit Agreement
”);
WHEREAS, the Company, certain
Subsidiaries of the Company and the 2004 Trustee have entered into
the Indenture dated as of February 17, 2004 (as amended,
supplemented or otherwise modified from time to time, the “
2004 Indenture ”), pursuant to which the 2004 Notes
are governed;
WHEREAS, the New Credit Agreement
and the 2004 Notes Indenture, and the Indebtedness incurred in
respect thereof, have refinanced and replaced the Existing Credit
Agreement in its entirety, and each of the New Credit Agreement and
the 2004 Notes Indenture constitutes a Future First-Lien Credit
Facility designated by the Company as a “Senior Credit
Agreement” pursuant to Section 5.6 of the Existing
Intercreditor Agreement;
WHEREAS, the Obligations of the
Company under the New Credit Agreement, the 2003 Indenture and the
2004 Indenture are secured (together with certain other
obligations) by various assets of the Company and certain
Subsidiaries thereof and, pursuant to Section 5.6 of the
Existing Intercreditor Agreement, the Company, the Second Priority
Noteholder Agent and the 2004 Noteholder Agent desire to amend and
restate the Existing Intercreditor Agreement to provide for the
relative priority of their respective Liens on and security
interests in the Common Collateral and certain other rights,
priorities and limitations in connection with the exercise of
remedies in respect of the Common Collateral; and
WHEREAS, it is a condition precedent
to the making of loans and the issuance of letters of credit under
the New Credit Agreement and to the issuance of the 2004 Notes that
the parties hereto enter into this Agreement;
NOW, THEREFORE, in consideration of
the foregoing, the mutual covenants and obligations herein set
forth and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree to
amend and restate the Existing Intercreditor Agreement in its
entirety as follows:
Section 1.
Definitions.
As used in
this Agreement, the following terms have the meanings specified
below:
“ 2003 Indenture
” means the Indenture dated as of May 30, 2003 (as
amended, supplemented or otherwise modified from time to time),
pursuant to which the 2003 Notes are governed.
“ 2003 Notes ”
means (a) the initial $250,000,000 in principal amount of 11
1 / 8 % Senior Secured Notes due 2009 issued
by the Company under the 2003 Indenture, (b) the exchange notes
issued in exchange therefor as contemplated by the Registration
Rights Agreement dated as of May 30, 2003, between the Company and
the Initial Purchasers (as defined therein) and (c) any additional
notes issued under the 2003 Indenture by the Company, to the extent
permitted by the Indentures and the Senior Credit
Agreement.
“ 2003 Trustee ”
means Wilmington Trust Company, in its capacity as trustee under
the 2003 Indenture and collateral agent under the Security
Documents (as defined in the 2003 Indenture), and any successor
trustee and collateral agent thereunder.
“ 2004 Indenture
” has the meaning set forth in the recitals
hereto.
“ 2004 Noteholder Agent
” means the 2004 Trustee and also includes its successors
hereunder as agent for the 2004 Noteholders (or if there is more
than one such successor agent, such agents representing the 2004
Noteholders holding a majority of the 2004 Noteholder Claims) under
the 2004 Noteholder Documents in accordance with
Section 5.8(b), exercising substantially the same rights and
powers, or if there is no acting 2004 Noteholder Agent under the
Senior Indenture, the Required Lenders with respect
thereto.
“ 2004 Noteholder
Claims ” means all Obligations in respect of the 2004
Notes or arising under the 2004 Noteholder Documents or any of
them.
“ 2004 Noteholder
Collateral ” means all of the assets of any Grantor,
whether real, personal or mixed, with respect to which a Lien is
granted as security for any 2004 Noteholder Claim.
“ 2004 Noteholder
Collateral Documents ” means the Security Documents (as
defined in the 2004 Indenture) and any other document or instrument
pursuant to which a Lien is granted by any Grantor to secure any
2004 Noteholder Claims or under which rights or remedies with
respect to any such Lien are governed.
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“ 2004 Noteholder
Documents ” means (a) the 2004 Indenture, the 2004
Notes, the 2004 Noteholder Collateral Documents and any document or
instrument evidencing or governing any Other First-Priority
Obligations (as defined in the 2004 Indenture) and (b) any
other related document or instrument executed and delivered
pursuant to any 2004 Noteholder Document described in
clause (a) above evidencing or governing any Obligations
thereunder.
“ 2004 Noteholder Liens
” means Liens on the Common Collateral created under the 2004
Noteholder Collateral Documents to secure the 2004 Noteholder
Claims.
“ 2004 Noteholder Pledge
Agreement ” means the Pledge Agreement, dated as of
February 17, 2004, among the Company, the other Grantors and
the 2004 Trustee.
“ 2004 Noteholders
” means the Persons holding 2004 Noteholder Claims, including
the 2004 Noteholder Agent.
“ 2004 Notes ”
means (a) the $306,000,000 principal amount at maturity of 11
1 / 8 % Senior Secured Discount Notes due
2009 to be issued by the Company, (b) the exchange notes issued in
exchange therefor as contemplated by the Registration Rights
Agreement dated as of February 17, 2004, between the Company
and the Initial Purchasers (as defined therein) and (c) any
additional notes issued under the 2004 Indenture by the Company, to
the extent permitted by the Indentures and the Senior Credit
Agreement.
“ 2004 Notes First Lien
Collateral ” means, at all times prior to (but not on or
after) the 2004 Notes First Lien Transition Date, the 2004
Noteholder Collateral (other than the Senior Lender First Lien
Collateral).
“ 2004 Notes First Lien
Transition Date ” means the earlier of (a) the date
of the Discharge of 2004 Noteholder Claims and (b) the date on
which (i) the 2004 Notes First Lien Collateral shall have been
released from all Liens created under the 2004 Noteholder Documents
and (ii) the 2004 Noteholder Documents do not require the
release of the Senior Lender Liens on the 2004 Notes First Lien
Collateral or otherwise prohibit such Liens; provided ,
however , that if on the earlier of the dates referred to in
clauses (a) and (b) above (i) any Insolvency or Liquidation
Proceeding is proceeding or (ii) any action has been taken by
the 2004 Trustee or the 2004 Noteholders to enforce the 2004
Noteholder Liens in respect of the 2004 Notes First Lien
Collateral, then such date shall not be the 2004 Notes First Lien
Transition Date.
“ 2004 Notes Second
Priority Claims ” means the Senior Lender Claims, the
Noteholder Claims (other than the 2004 Noteholder Claims) and any
other Second-Priority Obligations (as defined in the 2004
Indenture).
“ 2004 Notes Second
Priority Collateral Documents ” means the Senior Lender
Collateral Documents, the Noteholder Collateral Documents (other
than the 2004 Noteholder Collateral Documents) and the Other Second
Priority Collateral Documents.
“ 2004 Notes Second
Priority Secured Parties ” means the Persons holding 2004
Notes Second Priority Claims.
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“ 2004 Trustee ”
means Wilmington Trust Company, in its capacity as trustee under
the 2004 Indenture and collateral agent under the Security
Documents (as defined in the 2004 Indenture), and any successor
trustee and collateral agent thereunder.
“ Affiliate ”
means any Person that would be an “Affiliate” under the
Indentures or the Senior Credit Agreement.
“ Agreement ”
means this Agreement, as amended, renewed, extended, supplemented
or otherwise modified from time to time in accordance with the
terms hereof.
“ Bank Indebtedness
” means any and all amounts payable under or in respect of
the Credit Agreement, including principal, premium (if any),
interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the
Company or any Subsidiary whether or not a claim for
post-filing interest is allowed in such proceedings), fees,
charges, expenses, reimbursement obligations, guarantees and all
other amounts payable thereunder or in respect thereof.
“ Bankruptcy Law
” means Title 11 of the United States Code and any similar
Federal, state or foreign law for the relief of debtors.
“ Business Day ”
means any day other than a Saturday, a Sunday or a day that is a
legal holiday under the laws of the State of New York or on which
banking institutions in the State of New York are required or
authorized by law or other governmental action to close.
“ Cash Management
Arrangement ” means any arrangement pursuant to which any
financial institution provides treasury, depositary or cash
management services or automated clearinghouse transfers of
funds.
“ Cash Management
Obligations ” means, with respect to any Person, all
obligations of such Person in respect of overdrafts and related
liabilities owed to any other Person that arise from treasury,
depositary or cash management services or in connection with any
automated clearing house transfers of funds or any similar
transactions.
“ Common Collateral
” means all of the assets of any Grantor, whether real,
personal or mixed, that are subject to both Senior Liens and Junior
Liens.
“ Company ” means
Pliant Corporation, a Utah corporation.
“ Comparable Obligations
Collateral Document ” means, in relation to any Common
Collateral subject to any Senior Lien created under any Senior
Obligations Collateral Document, that Junior Obligations Collateral
Document that creates a Lien on the same Common Collateral, granted
by the same Grantor.
“ Credit Agent ”
means the Credit Agreement Collateral Agent and also includes its
successors hereunder as collateral agent for the Senior Lenders (or
if there is more than one such successor agent, such agents
representing the Senior Lenders holding a majority of the Senior
Lender Claims) under the Senior Credit Agreement in accordance with
Section 5.8(a),
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exercising substantially the same rights and
powers, or if there is no acting Credit Agent under the Senior
Credit Agreement, the Required Lenders.
“ Credit Agreement
” means the credit agreement dated as of February 17,
2004, among the Company, the subsidiaries of the Company party
thereto, the financial institutions party thereto as lenders,
Credit Suisse First Boston, acting through its Cayman Islands
Branch, as administrative agent and documentation agent, Deutsche
Bank Trust Company Americas, as collateral agent, General Electric
Capital Corporation, as co-collateral agent, and JPMorgan Chase
Bank, as syndication agent, together with related documents thereto
including any guarantee agreements and security documents, as
further amended, modified, supplemented, restated, renewed,
refunded, replaced, restructured, repaid or refinanced from time to
time (including any agreement extending the maturity thereof or
increasing the amount of available borrowings thereunder or adding
Restricted Subsidiaries (as defined in the Indentures) of the
Company as additional borrowers or guarantors thereunder) whether
with the original agents and lenders or otherwise and whether
provided under the original credit agreement or other credit
agreements or otherwise.
“ Credit Agreement
Collateral Agent ” means Deutsche Bank Trust Company
Americas, in its capacity as collateral agent under the New Credit
Agreement and the Security Documents (as defined in the New Credit
Agreement), and any successor collateral agent
thereunder.
“ Credit Facilities
” means one or more (a) debt facilities (including the
Credit Agreement) or commercial paper facilities providing for
revolving credit loans, term loans, receivables financing
(including through the sale of receivables to lenders or to special
purpose entities formed to borrow from lenders against such
receivables) or letters of credit, (b) debt securities,
indentures or other forms of debt financing (including convertible
or exchangeable debt instruments) or (c) instruments or
agreements evidencing any other Indebtedness, in each case, as
amended, supplemented, modified, extended, renewed, restated or
refunded in whole or in part from time to time.
“ Discharge of 2004
Noteholder Claims ” means, except to the extent otherwise
provided in Section 5.8(b), payment in full in cash of (a) the
principal of and interest and premium, if any, on all Indebtedness
outstanding under the 2004 Noteholder Documents or, with respect to
letters of credit outstanding thereunder, delivery of cash
collateral or backstop letters of credit in respect thereof in
compliance with the 2004 Noteholder Documents, as applicable, in
each case after or concurrently with termination of all commitments
to extend credit thereunder and (b) any other 2004 Noteholder
Claims that are due and payable or otherwise accrued and owing at
or prior to the time such principal, interest and premium are
paid.
“ Discharge of Senior
Lender Claims ” means, except to the extent otherwise
provided in Section 5.8(a), payment in full in cash of (a) the
principal of and interest and premium, if any, on all Indebtedness
outstanding under the First-Lien Credit Facilities or, with respect
to letters of credit outstanding thereunder, delivery of cash
collateral or backstop letters of credit in respect thereof in
compliance with such First-Lien Credit Facilities, as applicable,
in each case after or concurrently with termination of all
commitments to extend credit thereunder
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and (b) any other Senior Lender Claims that are
due and payable or otherwise accrued and owing at or prior to the
time such principal, interest and premium are paid.
“ Discharge of Senior
Obligations ” means (a) with respect to the Senior
Lender Claims and the Senior Lender First Lien Collateral, the
Discharge of Senior Lender Claims, and (b) with respect to the
2004 Noteholder Claims and the 2004 Notes First Lien Collateral,
the Discharge of 2004 Noteholder Claims.
“ Existing Credit
Agreement ” means the Credit Agreement dated as of
September 30, 1997, as amended and restated as of May 31,
2000, among the Company, Aspen Industrial, S.A. de C.V., the
lenders party thereto, Deutsche Bank Trust Company Americas (f/k/a
Bankers Trust Company), as administrative agent and collateral
agent, JPMorgan Chase Bank (f/k/a The Chase Manhattan Bank), as
syndication agent, and The Bank of Nova Scotia, as documentation
agent, as amended to the date hereof.
“ Existing Intercreditor
Agreement ” has the meaning set forth in the recitals
hereto.
“ Fair Market Value
” means, with respect to any asset or property, the price
which would be negotiated in an arm’s-length, free market
transaction, for cash, between a willing seller and a willing and
able buyer, neither of whom is under undue pressure or compulsion
to complete the transaction. In connection with any sale or
disposition of any Common Collateral, or the receipt of any
proceeds in respect of any insurance policy covering any Common
Collateral, the Fair Market Value of the Senior Lender First Lien
Collateral and 2004 Notes First Lien Collateral the subject of such
sale, disposition or insurance award shall be determined in good
faith by the Board of Directors of the Company; provided ,
however , that if the aggregate amount of gross proceeds
received in connection with such sale, disposition or insurance
award exceeds $20.0 million, the Fair Market Value of such Senior
Lender First Lien Collateral and 2004 Notes First Lien Collateral
shall be determined by an investment banking firm, accounting firm
or appraisal firm of national standing selected by the Company that
is not an Affiliate of the Company; and provided further ,
however , that in connection with any Insolvency or
Liquidation Proceeding, such Fair Market Value shall be determined
by the court or other body with jurisdiction over such
proceeding.
“ First-Lien Credit
Facilities ” means (a) the Credit Facilities provided
pursuant to the Credit Agreement and (b) any other Credit Facility,
that, in the case of both clauses (a) and (b), is secured by a
Permitted Lien (as defined in the applicable Indenture) described
in clause (a) of the definition thereof (in the case of the
2003 Indenture) and clause (a)(2) of the definition thereof
(in the case of the 2004 Indenture) and (except for the Credit
Facilities provided pursuant to the New Credit Agreement) is
designated by the Company as a “First-Lien Credit
Facility” for purposes of the applicable
Indenture.
“ Future First-Lien Credit
Facility ” means any First-Lien Credit Facility (other
than the New Credit Agreement).
“ Future Other First-Lien
Obligations ” means all Obligations of the Company or any
other Grantor in respect of Cash Management Obligations or Hedging
Obligations that are
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designated by the Company as “Credit
Agreement Obligations” for purposes of the applicable
Indenture (other than any Senior Lender Cash Management Obligations
and Senior Lender Hedging Obligations).
“ Grantors ”
means the Company and each of the Subsidiaries that has executed
and delivered a Senior Obligations Collateral Document or a Junior
Obligations Collateral Document.
“ Hedging Obligations
” means, with respect to any Person, all obligations and
liabilities of such Person in respect of any Swap
Agreement.
“ Indebtedness ”
means and includes all obligations that constitute
“Indebtedness” within the meaning of the Indentures or
the Senior Credit Agreement.
“ Indentures ”
means the 2003 Indenture and the 2004 Indenture.
“ Insolvency or Liquidation
Proceeding ” means (a) any voluntary or involuntary case
or proceeding under any Bankruptcy Law with respect to any Grantor,
(b) any other voluntary or involuntary insolvency,
reorganization or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding with respect to any Grantor or with respect to any of
their respective assets, (c) any liquidation, dissolution,
reorganization or winding up of any Grantor whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy
or (d) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of any Grantor.
“ Junior Collateral
Agent ” means (a) with respect to the Senior Lender
First Lien Collateral, the Second Priority Noteholder Agent and the
2004 Noteholder Agent, and (b) at all times prior to (but not
on or after) the 2004 Notes First Lien Transition Date, with
respect to the 2004 Notes First Lien Collateral, the Credit Agent
and the Second Priority Noteholder Agent.
“ Junior Liens ”
means (a) in respect of the Senior Lender First Lien Collateral,
the Noteholder Liens on such Common Collateral, and (b) at all
times prior to (but not on or after) the 2004 Notes First Lien
Transition Date, in respect of the 2004 Notes First Lien
Collateral, the Senior Lender Liens on such Common Collateral and
the Noteholder Liens (other than the 2004 Noteholder Liens) on such
Common Collateral.
“ Junior Obligations
” means (a) with respect to the Senior Lender Claims (to the
extent such Senior Lender Claims are secured by the Senior Lender
First Lien Collateral), the Noteholder Claims, and (b) at all times
prior to (but not on or after) the 2004 Notes First Lien Transition
Date, with respect to the 2004 Noteholder Claims (to the extent
such 2004 Noteholder Claims are secured by the 2004 Notes First
Lien Collateral), the 2004 Notes Second Priority Claims.
“ Junior Obligations
Collateral Documents ” means (a) with respect to the
Senior Lender First Lien Collateral, the Noteholder Collateral
Documents, and (b) at all times prior to (but not on or after) the
2004 Notes First Lien Transition Date, with respect to the 2004
Notes First Lien Collateral, the 2004 Notes Second Priority
Collateral Documents.
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“ Junior Obligations
Documents ” means (a) with respect to the Noteholder
Claims (as Junior Obligations), the Noteholder Documents, and
(b) at all times prior to (but not on or after) the 2004 Notes
First Lien Transition Date, with respect to the 2004 Notes Second
Priority Claims (as Junior Obligations), the Senior Lender
Documents, the Noteholder Documents (other than the 2004 Noteholder
Documents) and the Other Second Priority Documents.
“ Junior Obligations
Secured Parties ” means (a) with respect to the Senior
Lender First Lien Collateral, the Noteholders, and (b) at all times
prior to (but not on or after) the 2004 Notes First Lien Transition
Date, with respect to the 2004 Notes First Lien Collateral, the
2004 Notes Second Priority Secured Parties.
“ Lien ” means,
with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset and
(c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
“ Mark-to-Market Value
” means, with respect to any Swap Agreement under which any
Hedging Obligations were incurred at any time, the maximum
aggregate amount (giving effect to any netting agreements) that the
Company and the Subsidiaries would be required to pay if such Swap
Agreement were terminated at such time by reason of a default on
the part of the Company.
“ New Credit Agreement
” has the meaning set forth in the recitals
hereto.
“ Noteholder Claims
” means all Obligations in respect of the Notes or arising
under the Noteholder Documents or any of them.
“ Noteholder Collateral
Documents ” means the Second Priority Noteholder
Collateral Documents, the 2004 Noteholder Collateral Documents and
the Other Noteholder Collateral Documents.
“ Noteholder Documents
” means the Second Priority Noteholder Documents, the 2004
Noteholder Documents and the Other Noteholder Documents.
“ Noteholder Liens
” means Liens on the Common Collateral created under the
Noteholder Collateral Documents to secure the Noteholder
Claims.
“ Noteholders ”
means the Persons holding Noteholder Claims.
“ Notes ” means
the 2003 Notes and the 2004 Notes.
“ Obligations ”
means any and all obligations with respect to the payment of
(a) any principal of or interest (including interest accruing
on or after the commencement of any Insolvency or Liquidation
Proceeding, whether or not a claim for post-filing interest is
allowed in such proceeding) or premium on any Indebtedness,
including any reimbursement obligation in respect of any letter of
credit, (b) any fees, indemnification obligations, expense
reimbursement
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obligations or other liabilities payable under
the documentation governing any Indebtedness, (c) any
obligation to post cash collateral in respect of letters of credit
and any other obligations or (d) any Cash Management Obligations or
Hedging Obligations.
“ Other Noteholder
Collateral Documents ” means any document or instrument
pursuant to which a Lien is granted by any Grantor to secure any
Secondary Collateral Obligations (other than Noteholder
Claims).
“ Other Noteholder
Documents ” means (a) any document or instrument
evidencing or governing any Secondary Collateral Obligations (as
defined in the 2004 Indenture) (other than Noteholder Claims) and
(b) any other related document or instrument executed and
delivered pursuant to any Other Noteholder Document described in
clause (a) above evidencing or governing any Obligations
thereunder.
“ Other Second Priority
Collateral Documents ” means, at all times prior to (but
not on or after) the 2004 Notes First Lien Transition Date, any
document or instrument pursuant to which a Lien is granted by any
Grantor to secure any Second-Priority Obligations (as defined in
the 2004 Indenture) other than Senior Lender Claims and Second
Priority Noteholder Claims.
“ Other Second Priority
Documents ” means, at all times prior to (but not on or
after) the 2004 Notes First Lien Transition Date, (a) any
document or instrument evidencing or governing any Second-Priority
Obligations (as defined in the 2004 Indenture) (other than Senior
Lender Claims and Second Priority Noteholder Claims) and
(b) any other related document or instrument executed and
delivered pursuant to any Other Second Priority Document described
in clause (a) above evidencing or governing any Obligations
thereunder.
“ Person ” means
any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, entity or other
party, including any government and any political subdivision,
agency or instrumentality thereof.
“ Pledged Collateral
” means (a) the Common Collateral in the possession or under
the control of the Credit Agent (or its agents or bailees), to the
extent that possession or control thereof is necessary to perfect a
Lien thereon under the Uniform Commercial Code (or equivalent
legislation of other jurisdictions), and (b) the “Pledged
Securities” under, and as defined in, the 2004 Noteholder
Pledge Agreement. The Pledged Collateral shall include (a)
the Collection Deposit Accounts, Cash Concentration Accounts and
General Funds Account (each as defined in the Senior Lender
Collateral Documents) required to be maintained pursuant to the
Senior Lender Collateral Documents, and each other deposit account
of any Grantor that is subject to a control agreement for the
benefit of the Credit Agent pursuant to the Senior Lender
Collateral Documents, and (b) the Notes Collateral Account (as
defined in the 2004 Indenture) required to be maintained pursuant
to the 2004 Noteholder Documents.
“ Recovery ” has
the meaning set forth in Section 6.5.
“ Required Lenders
” means, (a) with respect to any amendment or
modification of the Senior Credit Agreement, or any termination or
waiver of any provision of the Senior Credit Agreement, or any
consent or departure by the Company or any of the Subsidiaries
therefrom, or consent of the Required Lenders required under this
Agreement, those Senior Lenders the
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approval of which is required to approve such
amendment or modification of, termination or waiver of any
provision of or consent or departure from the Senior Credit
Agreement (or would be required to effect such consent under this
Agreement if such consent were treated as an amendment of the
Senior Credit Agreement) and (b) with respect to any amendment
or modification of the Senior Indenture, or any termination or
waiver of any provision of the Senior Indenture, or any consent or
departure by the Company or any of the Subsidiaries therefrom, or
consent of the Required Lenders required under this Agreement,
those 2004 Noteholders the approval of which is required to approve
such amendment or modification of, termination or waiver of any
provision of or consent or departure from the Senior Indenture (or
would be required to effect such consent under this Agreement if
such consent were treated as an amendment of the Senior
Indenture).
“ Secondary Collateral
Obligations ” has the meaning assigned to such term in
the 2004 Indenture.
“ Second Priority
Noteholder Agent ” means the 2003 Trustee or, following
the payment in full of the principal of and interest and premium,
if any, on all Indebtedness under the 2003 Indenture, the agent
representing the Second Priority Noteholders holding a majority of
the Second Priority Noteholder Claims, exercising substantially the
same rights and powers.
“ Second Priority
Noteholder Claims ” means all Obligations in respect of
the 2003 Notes or arising under the Second Priority Noteholder
Documents or any of them.
“ Second Priority
Noteholder Collateral ” means all the assets of any
Grantor, whether real, personal or mixed, with respect to which a
Lien is granted as security for any Second Priority Noteholder
Claim.
“ Second Priority
Noteholder Collateral Documents ” means the Security
Documents (as defined in the 2003 Indenture) and any other document
or instrument pursuant to which a Lien is granted by any Grantor to
secure any Second Priority Noteholder Claims or under which rights
or remedies with respect to any such Lien are governed.
“ Second Priority
Noteholder Documents ” means (a) the 2003 Indenture,
the 2003 Notes, the Second Priority Noteholder Collateral Documents
and any document or instrument evidencing or governing any Other
Second-Lien Obligations (as defined in the 2003 Indenture) other
than 2004 Noteholder Claims and the Senior Lender Claims and
(b) any other related document or instrument executed and
delivered pursuant to any Second Priority Noteholder Document
described in clause (a) above evidencing or governing any
Obligations thereunder.
“ Second Priority
Noteholder Mortgages ” means a collective reference to
each mortgage, deed of trust and any other document or instrument
under which any Lien on real property owned by any Grantor is
granted to secure any Second Priority Noteholder Claims or under
which rights or remedies with respect to any such Liens are
governed.
“ Second Priority
Noteholders ” means the Persons holding Second Priority
Noteholder Claims.
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“ Senior Agreement
” means (a) with respect to the Senior Lender Claims,
the Senior Credit Agreement, and (b) with respect to the 2004
Noteholder Claims, the Senior Indenture.
“ Senior Collateral
Agent ” means (a) with respect to the Senior Lender First
Lien Collateral, the Credit Agent, and (b) with respect to the 2004
Notes First Lien Collateral, the 2004 Noteholder Agent.
“ Senior Credit
Agreement ” means the New Credit Agreement;
provided that if at any time a Discharge of Senior Lender
Claims occurs with respect to the New Credit Agreement (without
giving effect to Section 5.8(a)), then, to the extent provided
in Section 5.8(a), the term “Senior Credit
Agreement” means the Future First Lien Credit Facility
designated by the Company as the “Senior Credit
Agreement” in accordance with such Section.
“ Senior Indenture
” means the 2004 Indenture; provided that if, at any
time a Discharge of 2004 Noteholder Claims occurs with respect to
the 2004 Indenture (without giving effect to Section 5.8(b)),
then, to the extent provided in Section 5.8(b), the term
“Senior Indenture” means the 2004 Noteholder Document
designated by the Company as the “Senior Indenture” in
accordance with such Section.
“ Senior Lender Cash
Management Obligations ” means any Cash Management
Obligations secured by any Common Collateral under the same Senior
Lender Collateral Documents that secure Obligations under the
Senior Credit Agreement.
“ Senior Lender Claims
” means (a) all Bank Indebtedness and all other Indebtedness
outstanding under one or more of any other First-Lien Credit
Facilities, including any Future First-Lien Credit Facilities, the
Indebtedness under each of which (i) constitutes Permitted
Debt (as defined in the applicable Indenture) or is otherwise
permitted by the applicable Indenture, (ii) is designated by the
Company as “Credit Agreement Obligations” for purposes
of the applicable Indenture and (iii) is secured by a Permitted
Lien (as defined in the applicable Indenture) described in clause
(a) of the definition thereof (in the case of the 2003 Indenture)
or clause (a)(2) of the definition thereof (in the case of the
2004 Indenture), (b) all other Obligations (not constituting
Indebtedness) of the Company or any Grantor under the Credit
Agreement or any such other First-Lien Credit Facility, including
all Senior Lender Hedging Obligations and Senior Lender Cash
Management Obligations, and (c) all Future Other First-Lien
Obligations. Senior Lender Claims shall include all interest
accrued or accruing (or that would, absent the commencement of an
Insolvency or Liquidation Proceeding, accrue) after the
commencement of an Insolvency or Liquidation Proceeding in
accordance with and at the rate specified in the relevant Senior
Lender Document whether or not the claim for such interest is
allowed as a claim in such Insolvency or Liquidation
Proceeding. Notwithstanding anything to the contrary
contained in the first sentence of this definition, any Obligation
under the Senior Lender Documents or any Future First-Lien Credit
Facility (including any Cash Management Obligations or Hedging
Obligations) shall constitute a “Senior Lender Claim”
if the Credit Agent or the relevant Senior Lender or Senior Lenders
shall have received a written representation from the Company in or
in connection with the Senior Lender Documents evidencing such
Obligation that such Obligation constitutes a “Credit
Agreement Obligation” under and as defined in the applicable
Indenture (whether or not such Obligation is at any time determined
not to have been
11
permitted to be incurred under the applicable
Indenture). Notwithstanding the foregoing, (a) not more
than $8,500,000, in the aggregate, of the amount of Senior Lender
Cash Management Obligations and the Mark-to-Market Value of Senior
Lender Hedging Obligations will be included as Senior Lender Claims
at any time (it being understood and agreed that (i) the
aggregate amount of Senior Lender Cash Management Obligations and
Mark-to-Market Value of Senior Hedging Obligations to be included
as Senior Lender Claims at any time will be allocated (A) first, to
the Senior Lender Cash Management Obligations arising out of Cash
Management Arrangements with Wachovia Bank N.A. (or any of its
affiliates); provided that the amount allocated pursuant to
this clause (A) shall not exceed $5,000,000; (B) second, to the
Senior Hedging Obligations arising out of Swap Agreements with
JPMorgan Chase Bank (or any of its affiliates) in effect on the
date hereof; provided that the amount allocated pursuant to
this clause (B) shall not exceed $8,500,000 minus the amount
allocated pursuant to clause (A); and (C) third, pro rata among the
remaining Senior Lender Cash Management Obligations and Senior
Lender Hedging Obligations (based on the respective amounts (or
Mark-to-Market Values, as applicable) of such Obligations) at such
time and (ii) any portion of any Senior Lender Cash Management
Obligations or Senior Lender Hedging Obligations excluded from
being Senior Lender Claims pursuant to this sentence will, with
respect to the Senior Lender Claims, be treated as Noteholder
Claims and, therefore, Junior Obligations with respect to the
Senior Lender Claims for purposes of this Agreement) and
(b) each reference in this definition to any term defined in
(or by reference to a term defined in) both Indentures shall have
the meaning assigned to such term in the (i) 2003 Indenture
for purposes of determining the Senior Obligations with respect to
the Second Priority Noteholder Claims and (ii) the 2004
Indenture for purposes of defining the Senior Obligations with
respect to the 2004 Noteholder Claims.
“ Senior Lender
Collateral ” means all of the assets of any Grantor,
whether real, personal or mixed, with respect to which a Lien is
granted as security for any Senior Lender Claim.
“ Senior Lender Collateral
Documents ” means the Security Documents (as defined in
the New Credit Agreement) and any other agreement, document or
instrument pursuant to which a Lien is granted securing any Senior
Lender Claims or under which rights or remedies with respect to
such Liens are governed.
“ Senior Lender
Documents ” means the Senior Credit Agreement, the Senior
Lender Collateral Documents, and each of the other agreements,
documents and instruments (including each agreement, document or
instrument providing for or evidencing a Senior Lender Hedging
Obligation or Senior Lender Cash Management Obligation) providing
for or evidencing any other Obligation under the Credit Agreement
or any Future First-Lien Credit Facility or any Future Other
First-Lien Obligations, and any other related document or
instrument executed or delivered pursuant to any Senior Lender
Document at any time or otherwise evidencing any Indebtedness
arising under any Senior Lender Document.
“ Senior Lender First Lien
Collateral ” means, (a) at all times prior to the
2004 Notes First Lien Transition Date, any and all of the following
assets and properties now owned or at any time hereafter acquired
by any Grantor that constitute Senior Lender
Collateral: (i) all Accounts Receivable;
(ii) all Inventory; (iii) all Payment Intangibles
(including corporate tax refunds and payments made by distributors
and wholesalers to whom loans have been made by
12
the Company or any of the Subsidiaries), other
than any Payment Intangibles that represent tax refunds in respect
of or otherwise relate to real property, Fixtures, Equipment or
Intellectual Property; (iv) all Investment Property (including
capital stock of subsidiaries), marketable securities and other
Financial Assets; (v) all indebtedness owed to the Company or
any of its subsidiaries that arises from cash advances made after
the date hereof to enable the obligor or obligors thereon to
acquire Inventory; (vi) all credit card proceeds of the
Company and the Subsidiaries, all collection accounts, Deposit
Accounts, commodity accounts and securities accounts and any cash
or other assets (including Investment Property, marketable
securities and other Financial Assets) in any such accounts (other
than the Notes Collateral Account (as defined in the 2004
Indenture) and any cash or other assets deposited in the Notes
Collateral Account pursuant to the terms of the 2004 Indenture);
(vii) all hedging, commodity or other derivative contracts
(and any cash and other deposits securing the same);
(viii) all permits and licenses related to any of the
foregoing (excluding any permits or licenses related to the
ownership or operation of real property, Fixtures, Equipment or
Intellectual Property); (ix) all books and records related to
the foregoing; (x) to the extent evidencing, governing,
securing or otherwise related to the preceding clauses (i) through
(x), all (A) General Intangibles, (B) Chattel Paper,
(C) Instruments and (D) Documents; and (xi) all
Products and Proceeds of any and all of the foregoing in whatever
form received, including proceeds of insurance policies related to
Inventory of the Company and the Subsidiaries and including
proceeds of business interruption insurance to the extent related
to the first 45 days of the covered period with respect to any
business interruption; and (b) at all times on and after the
2004 Notes First Lien Transition Date, any and all the Common
Collateral. All capitalized terms used in this definition and
not defined elsewhere in this Agreement have the meanings assigned
to them in the UCC.
“ Senior Lender Hedging
Obligations ” means any Hedging Obligations secured by
any Common Collateral under the same Senior Lender Collateral
Documents that secure Obligations under the Senior Credit
Agreement.
“ Senior Lender Liens
” means Liens on the Common Collateral created under the
Senior Lender Collateral Documents to secure the Senior Lender
Claims.
“ Senior Lenders
” means the Persons holding Senior Lender Claims, including
the Credit Agent.
“ Senior Liens ”
means (a) in respect of the Senior Lender First Lien Collateral,
the Senior Lender Liens on such Common Collateral, and (b) at all
times prior to (but not on or after) the 2004 Notes First Lien
Transition Date, in respect of the 2004 Notes First Lien
Collateral, the 2004 Noteholder Liens on such Common
Collateral.
“ Senior Obligations
” means (a) with respect to the Noteholder Claims (to the
extent such Noteholder Claims are secured by the Senior Lender
First Lien Collateral), the Senior Lender Claims, and (b) at
all times prior to (but not on or after) the 2004 Notes First Lien
Transition Date, with respect to the 2004 Notes Second Priority
Claims (to the extent such 2004 Notes Second Priority Claims are
secured by the 2004 Notes First Lien Collateral), the 2004
Noteholder Claims.
13
“ Senior Obligations
Collateral ” means (a) at all times prior to (but
not on or after) the 2004 Notes First Lien Transition Date, with
respect to the 2004 Notes Second Priority Claims and the 2004 Notes
Second Priority Secured Parties, the 2004 Notes First Lien
Collateral, and (b) with respect to the Noteholder Claims and the
Noteholders, the Senior Lender First Lien Collateral.
“ Senior Obligations
Collateral Documents ” means (a) with respect to the
Senior Lender First Lien Collateral, the Senior Lender Collateral
Documents, and (b) at all times prior to (but not on or after) the
2004 Notes First Lien Transition Date, with respect to the 2004
Notes First Lien Collateral, the 2004 Notes Collateral
Documents.
“ Senior Obligations
Documents ” means (a) with respect to the Senior
Lender Claims, the Senior Lender Documents, and (b) at all times
prior to (but not on or after) the 2004 Notes First Lien Transition
Date, with respect to the 2004 Noteholder Claims, the 2004
Noteholder Documents.
“ Senior Obligations
Secured Parties ” means (a) with respect to the Senior
Lender First Lien Collateral, the Senior Lenders, and (b) at all
times prior to (but not on or after) the 2004 Notes First Lien
Transition Date, with respect to the 2004 Notes First Lien
Collateral, the 2004 Noteholders.
“ Subsidiary ”
means any “Subsidiary” of the Company, as defined in
the Indentures or the Senior Credit Agreement.
“ Swap Agreement
” means any agreement with respect to any swap, spot,
forward, future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or
any combination of these transactions.
“ Uniform Commercial
Code ” or “ UCC ” means the Uniform
Commercial Code as from time to time in effect in the State of New
York.
(a)
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
14
tangible and intangible assets and properties,
including cash, securities, accounts and contract rights. Any
reference to any Person as a “Senior Collateral Agent”,
“Senior Obligations Secured Party”, “Junior
Collateral Agent” or “Junior Obligations Secured
Party” shall be deemed to refer to such Person only in its
capacity as a Senior Collateral Agent, Senior Obligations Secured
Party, Junior Collateral Agent or Junior Obligations Secured Party,
as the case may be, and not in any other capacity under this
Agreement.
Section 2.
Lien
Priorities.
2.1
Subordination.
Notwithstanding the date, manner or order of grant, attachment or
perfection of any Liens on the Common Collateral granted to the
Second Priority Noteholder Agent, the 2004 Noteholder Agent, the
Credit Agent, the Junior Obligations Secured Parties or the Senior
Obligations Secured Parties and notwithstanding any provision of
the UCC (or equivalent legislature of other jurisdictions), or any
applicable law or the Noteholder Documents, the Senior Lender
Documents or the Other Second Priority Documents or any other
circumstance whatsoever, each of (a) the Second Priority
Noteholder Agent, on behalf of itself and the Second Priority
Noteholders, (b) the 2004 Noteholder Agent, on behalf of
itself and the 2004 Noteholders, and (c) the Credit Agent, on
behalf of itself and the Senior Lenders under the New Credit
Agreement, hereby agrees that: (i) any Senior Lien on any
Common Collateral securing any Senior Obligations now or hereafter
held by or on behalf of the Senior Collateral Agent or any Senior
Obligations Secured Parties or any agent or trustee therefor shall
be senior in all respects and prior to any Junior Lien or other
Lien on such Common Collateral securing the corresponding Junior
Obligations; and (ii) any Junior Lien or other Lien on any Common
Collateral now or hereafter held by or on behalf of any Junior
Collateral Agent or any Junior Obligations Secured Parties 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 Senior Liens on
such Common Collateral securing the corresponding Senior
Obligations. All Senior Liens on any Common Collateral
securing any Senior Obligations shall be and remain senior in all
respects and prior to all Junior Liens or other Liens on such
Common Collateral securing the corresponding Junior Obligations for
all purposes, whether or not such Senior Liens securing any Senior
Obligations are subordinated to any Lien securing any other
obligation of the Company, any other Grantor or any other
Person.
2.2
Prohibition on
Contesting Liens. Each of (a) the
Second Priority Noteholder Agent, on behalf of itself and the
Second Priority Noteholders, (b) the 2004 Noteholder Agent, on
behalf of itself and the 2004 Noteholders, and (c) the Credit
Agent, on behalf of itself and the Senior Lenders under the New
Credit Agreement, agrees that it shall 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 (a) a Senior Lien
held by or on behalf of any of the Senior Obligations Secured
Parties in the Common Collateral or (b) a Junior Lien held by
or on behalf of any of the Junior Obligations Secured Parties in
the Common Collateral (in the case of a Lien referred to in clause
(a) or (b) above that is held by (i) a 2004 Noteholder, solely
to secure Obligations in respect of 2004 Notes referred to in
clause (a), (b) or (c) of the definition of the term “2004
Notes” in Section 1 or (ii) a Second Priority
Noteholder, solely to secure Obligations in respect of 2003 Notes
referred to in clause (a), (b) or (c) of the definition of the
term “2003 Notes” in Section 1)), as the case may
be; provided that nothing in this Agreement shall be
construed to
15
prevent or impair the rights of the Senior
Collateral Agent or any Senior Obligations Secured Party (in their
capacities as such) to enforce this Agreement, including the
priority of the Senior Liens securing the Senior Obligations as
provided in Section 2.1.
2.3
No New
Liens. So long as the
applicable Discharge of Senior Lender Claims has not occurred, the
parties hereto agree that, after the date hereof, if the Second
Priority Noteholder Agent or the 2004 Noteholder Agent or any
Noteholder shall hold any Lien on any assets of the Company or any
other Grantor that (a) would constitute Senior Lender First
Lien Collateral if such assets were Senior Lender Collateral,
(b) secure any Noteholder Claims and (c) are not also
subject to the first-priority Lien of the Credit Agent under the
Senior Lender Documents, then the Second Priority Noteholder Agent
or the 2004 Noteholder Agent or such Noteholder, as applicable,
upon demand by the Credit Agent or the Company, will either release
such Lien or assign it to the Credit Agent as security for the
Senior Lender Claims (in which case each of the Second Priority
Noteholder Agent and the 2004 Noteholder Agent may retain a junior
lien on such assets subject to the terms hereof). So long as
the 2004 Notes First Priority Transition Date has not occurred, the
parties hereto agree that, after the date hereof, if the Second
Priority Noteholder Agent or the Credit Agent or any other 2004
Notes Second Priority Secured Party shall hold any Lien on any
assets of the Company or any Grantor that (a) would constitute
2004 Notes First Lien Collateral if such assets were 2004
Noteholder Collateral, (b) secure any 2004 Notes Second
Priority Claims and (c) are not also subject to the
first-priority Lien of the 2004 Trustee under the 2004 Noteholder
Documents, then the Second Priority Noteholder Agent or the Credit
Agent or such 2004 Notes Second Priority Secured Party, as
applicable, upon demand by the 2004 Noteholder Agent or the
Company, will either release such Lien or assign it to the 2004
Noteholder Agent as security for the 2004 Noteholder Claims (in
which case each of the Second Priority Noteholder Agent and the
Credit Agent may retain a junior lien on such assets subject to the
terms hereof).
Section 3.
Enforcement.
3.1
Exercise of
Remedies.
(a)
So long as the
applicable Discharge of Senior Obligations has not occurred,
whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against the Company or any other Grantor,
(i) each Junior Collateral Agent and the Junior Obligations
Secured Parties will not (
