EXHIBIT 10.4
INTERCREDITOR AGREEMENT
This INTERCREDITOR
AGREEMENT is dated as of November 24, 2004, and entered into
by and among COINMACH LAUNDRY CORPORATION, a Delaware corporation
(the “ Guarantor ”), DEUTSCHE BANK TRUST COMPANY
AMERICAS, in its capacity as the collateral agent for the First
Lien Creditors (including its successors and assigns from time to
time, the “ First Lien Collateral Agent ”) and
THE BANK OF NEW YORK, in its capacity as collateral agent for the
Noteholders (including its successors and assigns from time to
time, the “ Second Lien Collateral Agent ”).
Capitalized terms used herein shall have the meanings set forth in
Section 1 below; provided that capitalized terms
defined in the Credit Agreement used (but not otherwise defined)
herein shall have the meanings ascribed to them in the Credit
Agreement as in effect on the date hereof.
W I T N E S S E T H:
WHEREAS, Borrower,
the Guarantor, the subsidiary guarantors from time to time party
thereto, the various financial institutions from time to time party
thereto, the First Lien Collateral Agent, as Administrative Agent
and Collateral Agent, Deutsche Bank Securities Inc. (f/k/a Deutsche
Banc Alex. Brown Inc.), as Lead Arranger and Book Manager, J.P.
Morgan Securities Inc. and Wachovia Capital Markets, LLC (f/k/a
First Union Securities, Inc.) as Syndication Agents and Credit
Lyonnais New York Branch, as Documentation Agent, are parties to
the Credit Agreement, dated as of January 25, 2002 (as further
amended, supplemented, amended and restated or otherwise modified
from time to time (including pursuant to the Limited Waiver and
Amendment No. 1 and Agreement dated as of November 15,
2004 (the “ First Amendment ”)) the “
Credit Agreement ”);
WHEREAS, CSC, the
Guarantor, the other guarantors from time to time party thereto and
the Second Lien Collateral Agent, as collateral agent and trustee,
entered into an Indenture, dated as of November 24, 2004 (as
amended, supplemented, amended and restated or otherwise modified
from time to time, the “ Indenture ”), governing
the rights and duties of CSC under its 11% Senior Secured Notes due
2024 in an aggregate principal amount on the date thereof of
$132,556,665 (together with any such notes subsequently issued not
in violation of the Indenture, the “ Senior Secured
Notes ”);
WHEREAS, the
obligations of Borrower under the Credit Agreement and any Interest
Rate Protection Agreements or Other Hedging Agreements entered into
with a counterparty who was a Secured Party (or affiliate thereof)
at the time such Interest Rate Protection Agreement or Other
Hedging Agreement was entered into will be secured by, among other
things, a first priority security interest in the Common Collateral
pursuant to the terms of the Holdings Pledge Agreement;
WHEREAS, the
obligations of the Guarantor under the Indenture will be secured
by, among other things, a second priority security interest in the
Common Collateral pursuant to the terms of the Noteholder
Collateral Documents and this Agreement;
WHEREAS, the
Holdings Pledge Agreement, the Indenture and the Noteholder
Collateral Documents provide, among other things, that the parties
thereto shall set forth in this
Agreement their respective rights
and remedies with respect to the Common Collateral (including the
Pledged Collateral) owned by the Guarantor; and
WHEREAS, it is a
condition precedent to the effectiveness of the First Amendment
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 adequacy and receipt of which are hereby
acknowledged, and in reliance upon the representations, warranties
and covenants herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:
Section 1.
Definitions . As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally
applicable to both the singular and the plural form of the terms
indicated):
“
Agreement ” means this Intercreditor Agreement, as
amended, supplemented, amended and restated or otherwise modified
from time to time in accordance with the terms hereof.
“
Borrower ” means Coinmach Corporation, a Delaware
corporation.
“ Common
Collateral ” means the Collateral, as such term is
defined in the Holdings Pledge Agreement.
“
Comparable Noteholder Collateral Document ” means, in
relation to any Common Collateral subject to any Security Document,
that Noteholder Collateral Document which creates a security
interest in the same Common Collateral, granted by the
Guarantor.
“ Credit
Agreement ” is defined in the first recital ;
provided that (i) the term Credit Agreement shall
(x) also include any renewal, extension, refunding,
restructuring, replacement or refinancing thereof (whether with the
original collateral agent and lenders or another collateral agent
or agents or other lenders, whether provided under the original
Credit Agreement or any other credit or other agreement or
indenture and whether entered into concurrently with or subsequent
to the termination of the prior Credit Agreement); provided
that any such renewal, extension, refunding, restructuring,
replacement or refinancing does not increase the principal amount
thereof beyond in violation of the restrictions in the Indenture
and (y) exclude the Senior Secured Notes and other Noteholder
Documents and (ii) if at any time a Discharge of Lender Claims
occurs with respect to the Credit Agreement (without giving effect
to Section 5.5 ), then, to the extent provided in
Section 5.5 , the term “Credit Agreement”
shall mean the Future First-Lien Credit Facility designated by
Borrower in accordance with the terms of such section.
“ CSC
” means Coinmach Service Corp., a Delaware
corporation.
“ DIP
Financing ” is defined in Section 6.1
.
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“
Discharge of Lender Claims ” means, except to the
extent otherwise provided in Sections 5.5 and 6.5 ,
the payment in full in cash of all Obligations, the expiration,
termination or cash collateralization of all Letters of Credit,
pursuant (for purposes of cash collateralization) to the terms
thereof and the Credit Agreement, the termination of all
commitments to extend credit under the Credit Agreement and the
payment in full in cash of all other Lender Claims (other than
Obligations for indemnification in respect of which no claim or
demand for payment has been made and no notice for indemnification
has been issued by the indemnitee at such time), as may be
evidenced by a “pay-off” letter signed by an agent for
the Lenders under the Credit Agreement.
“
Disposition ” is defined in
Section 5.1(a)(i) .
“ First
Amendment ” is defined in the first recital
.
“ First
Lien Collateral Agent ” means, in addition to the First
Lien Collateral Agent as defined in the preamble , the then
acting agent for the First Lien Creditors under the Loan Documents
and any successor or assign thereto exercising substantially the
same rights and powers.
“ First
Lien Creditors ” shall mean the “Secured
Creditors” (as defined in the Credit Agreement) and any other
Persons holding Lender Claims, including the First Lien Collateral
Agent.
“ Future
First-Lien Credit Facility ” shall mean the Credit
Agreement and any Credit Agreement (as defined in the Indenture)
that is designated by Borrower as a “First-Lien Credit
Facility” for purposes of the Indenture; provided that
the First Lien Creditors under any Credit Agreement then in effect
have consented to such designation.
“
Guarantor ” is defined in the preamble
.
“
Holdings Pledge Agreement ” is defined in the Credit
Agreement, provided that the term “Holdings Pledge
Agreement” shall include any amendment (including Amendment
No. 1 thereto dated as of the date hereof), amendment and
restatement, supplement or other modification thereto and any other
document or instrument evidencing the Guarantor’s pledge of
Common Collateral under any Future First-Lien Credit Facility as
any such document or instrument may from time to time be amended,
supplemented, amended and restated or otherwise modified in a
manner not inconsistent with this Agreement.
“
Indenture ” is defined in the second recital
.
“
Insolvency or Liquidation Proceeding ” means with
respect to any Person (a) any voluntary or involuntary case or
proceeding under the Bankruptcy Code with respect to such Person or
any of its subsidiaries as a debtor, (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 such Person or any
of its subsidiaries as a debtor or with respect to any substantial
part of their respective assets,
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(c) any liquidation, dissolution,
reorganization or winding up of such Person or any of its
subsidiaries 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 such Person or any of its subsidiaries.
“ Lender
Claims ” means all Obligations outstanding under one or
more of the Loan Documents. Lender Claims shall include all
interest accrued or accruing (or which 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 Credit
Agreement whether or not the claim for such interest is allowed as
a claim in such Insolvency or Liquidation Proceeding. To the extent
any payment with respect to the Lender Claims (whether by or on
behalf of any Obligor, as proceeds of security, enforcement of any
right of setoff or otherwise) is declared to be fraudulent or
preferential in any respect, set aside or required to be paid to a
debtor in possession, trustee, receiver or similar Person, then the
Obligations or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
“ Lender
Collateral ” means any of the assets of the Obligors,
whether real, personal or mixed, on which the First Lien Creditors
or any of them now or hereafter holds a Lien as security for any
Lender Claim (regardless of the effect of the application of any
laws relating to fraudulent transfers or conveyances).
“ Lender
Liens ” means Liens on Common Collateral or Lender
Collateral in favor of the First Lien Collateral Agent on behalf of
the First Lien Creditors created as collateral security for the
Lender Claims.
“ Loan
Documents ” means the Credit Agreement, the Credit
Documents, and all documents and instruments evidencing any
obligation under any Future First-Lien Credit Facility, and any
other related document or instrument executed or delivered pursuant
to any Loan Document or Future First-Lien Credit Facility at any
time or otherwise evidencing Lender Claims, as any such document or
instrument from time to time may be amended, supplemented, amended
and restated or otherwise modified from time to time;
provided that any such modification does not increase the
principal amount thereof beyond the limit set forth in the
Indenture.
“
Noteholder Claims ” means all indebtedness,
obligations and other liabilities (contingent or otherwise) arising
under or with respect to the Noteholder Documents or any of
them.
“
Noteholder Collateral ” means any assets of CSC and
its subsidiaries other than Borrower and its subsidiaries, whether
real, personal or mixed, on which the Noteholders or any of them
now or hereafter holds a Lien as security for any Noteholder Claim
(regardless of the effect of the application of any laws relating
to fraudulent transfers or conveyances).
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“
Noteholder Collateral Documents ” means, collectively,
the Noteholder Security Agreements, and any document or instrument
executed and delivered pursuant to any Noteholder Document at any
time or otherwise pursuant to which a Lien is granted by an obligor
under the Indenture to secure the Noteholder Claims or under which
rights or remedies with respect to any such Lien are governed, as
the same may be amended, supplemented, amended and restated or
otherwise modified from time to time.
“
Noteholder Documents ” means, collectively, the
Indenture, the Senior Secured Notes, the Noteholder Collateral
Documents and any other related document or instrument executed and
delivered pursuant to any Noteholder Document at any time or
otherwise evidencing any Noteholder Claims, as the same may be
amended, supplemented, amended and restated or otherwise modified
from time to time.
“
Noteholders ” means the Persons holding Noteholder
Claims, including the trustee under the Indenture and the Second
Lien Collateral Agent, in each case, in their capacity as
such.
“
Noteholder Security Agreements ” means (i) the
Security Agreement, dated as of November 24, 2004 among CSC, the
Guarantor and the Second Lien Collateral Agent, as collateral agent
and (ii) the Pledge Agreement dated as of November 24,
2004 among CSC, the Guarantor and the Second Lien Collateral Agent,
as collateral agent, in each case as the same may be amended,
supplemented, amended and restated or otherwise modified from time
to time.
“
Obligors ” means Borrower, the Guarantor and each of
the Subsidiary Guarantors.
“ Pledged
Collateral ” means the certificated securities
constituting Common Collateral in the possession or under the
control (as defined in Section 8-106 of the UCC) of the First
Lien Collateral Agent (or its agents or bailees) in which a
security interest is perfected by such possession or
control.
“
Recovery ” shall have the meaning set forth in
Section 6.5 hereof.
“
Required Lenders ” shall mean, with respect to any
amendment or modification of the Credit Agreement or Future
First-Lien Facility, or any termination or waiver of any provision
of the Credit Agreement or Future First-Lien Facility, or any
consent or departure by Borrower therefrom, those First Lien
Creditors, the approval of which is required by the Credit
Agreement or such Future First-Lien Facility, as the case may be,
to approve such amendment or modification, termination or waiver or
consent or departure.
“ Second
Lien Collateral Agent ” shall include, in addition to the
Second Lien Collateral Agent defined in the preamble , the
then acting collateral agent under the Indenture and any successor
thereto exercising substantially the same rights and
powers.
“ Senior
Secured Notes ” is defined in the second recital
.
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Section 2.
Lien Priorities .
2.1
Priority. Notwithstanding the date, manner or order of
grant, attachment or perfection of any Liens granted to the Second
Lien Collateral Agent for the benefit of the Noteholders or to the
Noteholders on the Common Collateral or of any Liens granted to the
First Lien Creditors on the Common Collateral and notwithstanding
any provision of the UCC, or any applicable law, the avoidance or
setting aside of any Lien granted to the First Lien Creditors on
the Common Collateral, or the Noteholder Documents or the Loan
Documents or any other circumstance whatsoever, the Second Lien
Collateral Agent, on behalf of itself and the Noteholders, hereby
agrees that: (i) any Lien on the Common Collateral securing the
Lender Claims now or hereafter held by the First Lien Collateral
Agent or the First Lien Creditors shall be first in priority to any
Lien on the Common Collateral securing the Noteholder Claims and
(ii) any Lien on the Common Collateral now or hereafter held
by the Second Lien Collateral Agent or the Noteholders regardless
of how acquired, whether by grant, statute, operation of law,
subrogation or otherwise, shall be second in priority in all
respects to all Liens on the Common Collateral securing the Lender
Claims. All Liens on the Common Collateral securing the Lender
Claims shall be and remain first in priority to all Liens on the
Common Collateral securing the Noteholder Claims for all purposes,
whether or not such Lender Liens are subordinated to any Lien
securing any other obligation of the Guarantor or any of its
subsidiaries.
2.2
Prohibition on Contesting Liens. Each of the Second Lien
Collateral Agent, for itself and on behalf of each Noteholder, and
the First Lien Collateral Agent, for itself and on behalf of each
other First Lien Creditor, 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 with respect to CSC or any of its
subsidiaries), the priority, validity or enforceability of a Lien
held by the First Lien Creditors on the Lender Collateral or by the
Noteholders on the Common Collateral, as the case may be;
provided that nothing in this Agreement shall be construed
to prevent or impair the rights of the First Lien Collateral Agent
or any of the First Lien Creditors to enforce this Agreement,
including the priority of the Liens securing the Lender Claims as
provided in Sections 2.1 and 3.1 of this
Agreement.
2.3
No New Liens. So long as the Discharge of Lender Claims has
not occurred, (a) the parties hereto agree that
(i) neither the Second Lien Collateral Agent nor any
Noteholder shall acquire any security interest in or shall have any
interest in (including following avoidance of any Lender Liens) any
property, real or otherwise (other than the Common Collateral), of
any of Borrower or any of its subsidiaries or any proceeds thereof
and (ii) after the date hereof, if the Second Lien Collateral
Agent on behalf of the Noteholders, shall hold (to its actual
knowledge), any Lien on any assets of Borrower or any of its
subsidiaries securing the Noteholder Claims that are not also
subject to the prior Lien of the First Lien Creditors under the
Loan Documents, the Second Lien Collateral Agent will notify the
First Lien Collateral Agent in writing and, upon demand by the
First Lien Collateral Agent, shall either release such Lien or
assign it to the First Lien Creditors as security for the Lender
Claims (unless the applicable Obligor shall promptly grant a
similar Lien on such assets in favor of the First Lien Creditors
and such Lien shall be prior to the Lien of the Second Lien
Collateral Agent on such assets) and (b) each of Borrower and
its subsidiaries agrees it will not grant, and the Guarantor agrees
it will not permit its Subsidiaries to grant, any Lien on any of
its assets in favor of the Second Lien Collateral Agent
or
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the Noteholders unless Borrower
or such subsidiary has granted a similar perfected prior Lien on
such assets in favor of the First Lien Creditors.
Section 3.
Enforcement .
3.1
Exercise of Remedies.
(a) So long
as the Discharge of Lender Claims has not occurred, whether or not
any Insolvency or Liquidation Proceeding has been commenced by or
against CSC or any of its subsidiaries, (i) the Second Lien
Collateral Agent and the Noteholders will not exercise or seek to
exercise any rights or remedies (including by way of setoff) with
respect to any Common Collateral, institute any action or
proceeding with respect to such rights or remedies, including any
action of foreclosure, or contest, protest or object to any
foreclosure proceeding or action brought by the First Lien
Collateral Agent or any other First Lien Creditor, or any other
exercise by any such party of any rights and remedies relating to
the Common Collateral under the Credit Documents or otherwise, or
object to the forbearance by the First Lien Collateral Agent or the
First Lien Creditors from bringing or pursuing any foreclosure
proceeding or action or any other exercise of any rights or
remedies relating to the Common Collateral and (ii) the First
Lien Collateral Agent and the other First Lien Creditors shall have
the exclusive right to enforce rights, exercise remedies (including
by way of setoff and the right to credit bid their debt), refrain
from enforcing or exercising remedies, and make determinations
regarding release, disposition, or restrictions with respect to the
Common Collateral without any consultation with or the consent of
the Second Lien Collateral Agent or any Noteholder, all as if the
Lien of the Second Lien Collateral Agent for the benefit of the
Noteholders on the Common Collateral under the Noteholder
Collateral Documents did not exist; provided that
(A) in any Insolvency or Liquidation Proceeding commenced by
or against the Guarantor, the Second Lien Collateral Agent or any
Noteholder may file a claim or statement of interest with respect
to the Noteholder Claims, (B) the Second Lien Collateral Agent
or any Noteholder may take any action not adverse to the Liens on
the Common Collateral securing the Lender Claims in order to
establish, preserve, perfect or protect its rights in the Common
Collateral, (C) the Second Lien Collateral Agent or any
Noteholder shall be entitled to file any pleadings, objections,
motions or agreements which assert rights or interests available to
unsecured creditors of the Guarantor arising under either the
Bankruptcy Code or applicable non-bankruptcy law, in each case not
otherwise in contravention of the terms of this Agreement and
(D) the Second Lien Collateral Agent or any Noteholder shall
be entitled to file any proof of claim and other filings and make
any arguments and motions in order to preserve or protect its Lien
on the Common Collateral that are, in each case, not otherwise in
contravention of the terms of this Agreement, with respect to the
Indenture and the Common Collateral. In exercising rights and
remedies with respect to the Common Collateral, the First Lien
Collateral Agent or any other First Lien Creditors may enforce the
provisions of the Loan Documents and exercise remedies thereunder,
all in such order and in such manner as it may determine in the
exercise of its sole discretion. Such exercise and enforcement
shall include the rights of an agent appointed by the First Lien
Collateral Agent and the other First Lien Creditors to sell or
otherwise dispose of Common Collateral upon foreclosure, to incur
expenses in connection with such sale or disposition, and to
exercise all the rights and remedies of a secured party under the
UCC of any applicable jurisdiction and of a secured creditor under
bankruptcy or similar laws of any applicable
jurisdiction.
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(b) The
Second Lien Collateral Agent, for itself and on behalf of the
Noteholders, agrees that neither the Second Lien Collateral Agent
nor the Noteholders will take any action that would hinder or cause
to delay any exercise of remedies undertaken by the First Lien
Collateral Agent or any other First Lien Creditor under the Loan
Documents as secured parties in respect of any Common Collateral,
including any sale, lease, exchange, transfer or other disposition
of the Common Collateral, whether by foreclosure or otherwise. The
Second Lien Collateral Agent, for itself and on behalf of the
Noteholders, hereby waives any and all rights it or the Noteholders
may have as a junior lien creditor or otherwise (whether arising
under the UCC or any other law) to object to the manner in which
the First Lien Collateral Agent or the other First Lien Creditors
seek to enforce the Liens granted on any of the Lender
Collateral.
(c) The
Second Lien Collateral Agent hereby acknowledges and agrees that no
covenant, agreement or restriction contained in the Noteholder
Documents shall restrict in any way the rights and remedies of the
First Lien Collateral Agent or the First Lien Creditors with
respect to the Common Collateral as set forth in this Agreement and
the Loan Documents.
3.2
Cooperation. Subject to the proviso in clause (a)(ii)
of Section 3.1 , the Second Lien Collateral Agent, on
behalf of itself and the Noteholders, agrees that, unless and until
the Discharge of Lender Claims has occurred, it will not commence,
or join with any Person (other than the First Lien Creditors upon
the request thereof) in commencing, any enforcement, collection,
execution, levy or foreclosure action or proceeding with respect to
any Lien held by it under any of the Noteholder Documents with
respect to the Common Collateral.
Section 4.
Payments .
4.1
Application of Proceeds. So long as the Discharge of Lender
Claims has not occurred, the cash proceeds of Common Collateral
received in connection with the sale, transfer or other disposition
of such Common Collateral upon the exercise of remedies shall be
applied by the First Lien Collateral Agent to the Lender Claims in
such order as specified in the Credit Agreement until the Discharge
of Lender Claims has occurred. Upon the Discharge of Lender Claims,
the First Lien Collateral Agent shall deliver to the Second Lien
Collateral Agent (for turnover to the trustee under the Indenture
for application in such order as specified in the Indenture and the
other applicable Noteholder Documents) any proceeds of Common
Collateral held by it in the same form as received, with any
necessary endorsements or as a court of competent jurisdiction may
otherwise direct.
4.2
The Second Lien Collateral Agent, on behalf of itself and the
Noteholders, agrees that it will not, in connection with the
exercise of any right or remedy (including by way of setoff) with
respect to any Common Collateral, take or receive any Common
Collateral or any proceeds of Common Collateral unless and until
the Discharge of Lender Claims has occurred. In the event any
Common Collateral or proceeds thereof are received by the Second
Lien Collateral Agent in violation of this Agreement, such Common
Collateral and/or proceeds shall be segregated and held in trust
for the benefit of the First Lien Creditors in the same form as
received, and shall not be applied to the satisfaction of any
Noteholder Claims. Without limiting the generality of the
foregoing, unless and until the Discharge of Lender Claims has
occurred, except as expressly provided in the proviso in clause
(a)(ii) of Section 3.1 , the sole right of the
Second Lien Collateral Agent and the Noteholders as secured parties
with respect to the Common Collateral
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is to hold a perfected Lien on
the Common Collateral pursuant to the Noteholder Documents for the
period and to the extent granted therein and to receive a share of
the proceeds thereof, if any, after the Discharge of Lender Claims
has occurred.
4.3
Each Obligor agrees that it will not, in connection with the
exercise of any right or remedy with respect to any Common
Collateral by the Second Lien Collateral Agent or the Noteholders,
transfer, deliver or pay, as applicable, to the Second Lien
Collateral Agent or any Noteholder any Common Collateral or any
proceeds of Common Collateral unless and until the Discharge of
Lender Claims has occurred.
Section 5.
Other Agreements.
5.1
Releases .
(a) If, in
connection with:
(i) the exercise
of any of the First Lien Collateral Agent’s remedies in
respect of Common Collateral provided for in
Section 3.1 , including any sale, lease, exchange,
transfer or other disposition (collectively, a “
Disposition” ) of any such Common Collateral;
or
(ii) a Disposition
of any Common Collateral permitted under the terms of the Credit
Documents (whether or not an event of default thereunder, and as
defined therein, has occurred and is occurring),
the First Lien Collateral Agent,
for itself and on behalf of any of the First Lien Creditors,
releases any of its Liens on any part of the Common Collateral, in
each case other than in connection with a Disposition under clause
(ii) above only, if such Disposition would result in an event
of default under the Noteholder Documents, then the Liens, if any,
of the Second Lien Collateral Agent, for itself or for the benefit
of the Noteholders, on such Common Collateral shall be
automatically, unconditionally and simultaneously released and the
Second Lien Collateral Agent, for itself or on behalf of any such
Noteholder, promptly shall execute and deliver to the First Lien
Collateral Agent such termination statements, releases and other
documents as the First Lien Collateral Agent may request and
provide to it to effectively confirm such release.
(b) The
Second Lien Collateral Agent, on behalf of the Noteholders, shall
promptly, at the request of the First Lien Collateral Agent or any
officer or agent of the First Lien Collateral Agent, from time to
time in the First Lien Collateral Agent’s discretion, for the
purpose of carrying out the terms of this Section 5.1 ,
take any and all appropriate action and to execute any and all
releases, documents and instruments provided to it by the First
Lien Collateral Agent which may be necessary or desirable to
accomplish the purposes of this Section 5.1 , including
any financing statements, mortgage releases, intellectual property
releases, endorsements or other instruments of transfer or
release.
5.2
Insurance. Unless and until the Discharge of Lender Claims
has occurred, the First Lien Collateral Agent and the other First
Lien Creditors shall have the sole and exclusive right, subject to
the rights of the Obligors under the Loan Documents, to adjust
settlement for
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any insurance policy covering the
Common Collateral in the event of any loss thereunder. Unless and
until the Discharge of Lender Claims has occurred (and whether or
not the Revolving Loan Maturity Date has occurred), all proceeds of
any such policy and any such award if in respect of the Common
Collateral shall be paid to the First Lien Collateral Agent for the
benefit of the First Lien Creditors to the extent r
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