Exhibit 4.13(b)

RECEIVABLES INTERCREDITOR AGREEMENT

by and among

BANK OF AMERICA, N.A.,

as ABL Collateral Agent,

BANK OF AMERICA, N.A.,

as CF Collateral Agent,

and

THE BANK OF NEW YORK,

as Bonds Collateral Agent

Dated as of November 17, 2006

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TABLE OF CONTENTS

 

				Page No.
ARTICLE 1
DEFINITIONS
Section 1.1		Definitions		2
Section 1.2		Rules of Construction		11
ARTICLE 2
LIEN PRIORITY
Section 2.1		Priority of Liens		11
Section 2.2		Waiver of Right to Contest Liens		12
Section 2.3		Remedies Standstill		13
Section 2.4		Exercise of Rights		14
Section 2.5		No New Liens		16
Section 2.6		Waiver of Marshalling		16
ARTICLE 3
ACTIONS OF THE PARTIES
Section 3.1		Certain Actions Permitted		16
Section 3.2		Agent for Perfection		17
Section 3.3		Inspection and Access Rights		17
Section 3.5		Exercise of Remedies – Set Off and Tracing of and Priorities in Proceeds		18
ARTICLE 4
APPLICATION OF PROCEEDS
Section 4.1		Application of Proceeds		18
Section 4.2		Specific Performance		20
ARTICLE 5
INTERCREDITOR ACKNOWLEDGEMENTS AND WAIVERS
Section 5.1		Notice of Acceptance and Other Waivers		20
Section 5.2		Modifications to ABL Documents and Subordinated Lien Documents		22
Section 5.3		Reinstatement and Continuation of Agreement		23
ARTICLE 6
INSOLVENCY PROCEEDINGS
Section 6.1		DIP Financing		24
Section 6.2		Relief from Stay		24

 

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				Page No.
Section 6.3		No Contest; Adequate Protection		25
Section 6.4		Asset Sales		25
Section 6.5		Separate Grants of Security and Separate Classification		25
Section 6.6		Enforceability		26
Section 6.7		ABL Obligations Unconditional		26
ARTICLE 7
MISCELLANEOUS
Section 7.1		Rights of Subrogation		27
Section 7.2		Further Assurances		27
Section 7.3		Representations		27
Section 7.4		Amendments		28
Section 7.5		Addresses for Notices		28
Section 7.6		No Waiver, Remedies		28
Section 7.7		Continuing Agreement, Transfer of Secured Obligations		29
Section 7.8		Governing Law; Entire Agreement		29
Section 7.9		Counterparts		29
Section 7.10		No Third Party Beneficiaries		29
Section 7.11		Headings		29
Section 7.12		Severability		30
Section 7.13		Attorneys Fees		30
Section 7.14		VENUE; JURY TRIAL WAIVER		30
Section 7.15		Intercreditor Agreement		30
Section 7.16		Effectiveness		31
Section 7.17		Collateral Agents		31
Section 7.18		No Warranties or Liability		31
Section 7.19		Conflicts		31
Section 7.20		Information Concerning Financial Condition of the Credit Parties		31
Section 7.21		Acknowledgement		32

 

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RECEIVABLES INTERCREDITOR AGREEMENT

THIS RECEIVABLES INTERCREDITOR AGREEMENT (as amended, supplemented, restated or otherwise modified from time to time pursuant to the terms hereof, this “Agreement”) is entered into as of November 17, 2006 among BANK OF AMERICA, N.A. (“Bank of America”), in its capacity as collateral agent for the ABL Obligations (as defined below), Bank of America, in its capacity as and collateral agent for the CF Obligations (as defined below), and THE BANK OF NEW YORK (“Bank of New York”), in its capacity as collateral agent for the Bonds Obligations (as defined below).

RECITALS

A. HCA INC., a Delaware corporation (the “Company”), is party to the Credit Agreement dated as of November 17, 2006 (as may be amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time (including without limitation to add new loans thereunder or increase the amount of loans thereunder), the “ABL Credit Agreement”), among the Company, the several Subsidiary Borrowers party thereto, the Lenders party thereto from time to time, BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and Letter of Credit Issuer, JPMORGAN CHASE BANK, N.A. and CITIGROUP GLOBAL MARKETS INC., as Co-Syndication Agents, BANC OF AMERICA SECURITIES LLC, J.P. MORGAN SECURITIES INC., CITIGROUP GLOBAL MARKETS INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Joint Lead Arrangers and Bookrunners, DEUTSCHE BANK SECURITIES INC. and WACHOVIA CAPITAL MARKETS LLC, as Joint Bookrunners, and MERRILL LYNCH CAPITAL CORPORATION, as Documentation Agent. The ABL Credit Agreement is designated by the Company to be included in the definition of “ABL Facility” under the Indenture and the Obligations thereunder constitute ABL Obligations and Priority Lien Obligations within the meaning of the Indenture.

B. The Company is party to the Credit Agreement dated as of November 17, 2006 (as may be amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time (including without limitation to add new loans thereunder or increase the amount of loans thereunder), the “CF Credit Agreement”), among the Company, HCA UK CAPITAL LIMITED, a limited liability company (company no. 04779021) formed under the laws of England and Wales, as the European Subsidiary Borrower thereunder, the Lenders party thereto from time to time, BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and Letter of Credit Issuer, JPMORGAN CHASE BANK, N.A. and CITIGROUP GLOBAL MARKETS INC., as Co-Syndication Agents, BANC OF AMERICA SECURITIES LLC, J.P. MORGAN SECURITIES INC., CITIGROUP GLOBAL MARKETS INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Joint Lead Arrangers and Bookrunners, DEUTSCHE BANK SECURITIES INC. and WACHOVIA CAPITAL MARKETS LLC, as Joint Bookrunners, and MERRILL LYNCH CAPITAL CORPORATION, as Documentation Agent. The CF Credit Agreement is designated by the Company to be included in the definition of “General Credit Facility” under the Indenture. The CF Obligations constitute Subordinated Lien Obligations hereunder.

C. The Company is party to the Indenture dated as of November 17, 2006 (as may be amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time,

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the “Indenture”), among the Company, the Guarantors identified therein and Bank of New York, as Trustee. The Bonds Obligations constitute Subordinated Lien Obligations hereunder.

Accordingly, 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 as follows:

ARTICLE 1

DEFINITIONS

Section 1.1 Definitions. Unless the context otherwise requires, all capitalized terms used but not defined herein shall have the meanings set forth in the ABL Credit Agreement, the CF Credit Agreement and the Indenture, in each case as in effect on the Closing Date. In addition, as used in this Agreement, the following terms shall have the meanings set forth below:

“ABL Collateral Agent” shall mean Bank of America, in its capacity as collateral agent for the lenders and other secured parties under the ABL Credit Agreement and the other ABL Documents entered into pursuant to the ABL Credit Agreement, together with its successors and permitted assigns under the ABL Credit Agreement exercising substantially the same rights and powers; and in each case provided that if such ABL Collateral Agent is not Bank of America, such ABL Collateral Agent shall have become a party to this Agreement and the other applicable ABL Security Documents.

“ABL Entity” shall mean a direct Subsidiary of a 1993 Indenture Restricted Subsidiary, substantially all of the business of which consists of financing of accounts receivable and related assets.

“ABL Controlled Accounts” shall mean, collectively, with respect to each Grantor, (i) all Deposit Accounts and all Securities Accounts and all accounts and sub-accounts relating to any of the foregoing accounts and (ii) all cash, funds, checks, notes, “securities entitlements” (as such terms are defined in the UCC) and instruments from time to time on deposit in any of the accounts or sub-accounts described in clause (i) of this definition, in each case, which are subject to a control agreement in favor of the ABL Collateral Agent.

“ABL Documents” means the credit, guarantee and security documents governing the ABL Obligations, including, without limitation, the ABL Credit Agreement and the ABL Security Documents and Secured Cash Management Agreements (as defined in the ABL Credit Agreement as in effect on the date hereof) and Secured Hedge Agreements (as defined in the ABL Credit Agreement as in effect on the date hereof).

“ABL Obligations” shall mean all “Obligations” as defined in the ABL Credit Agreement. For the avoidance of doubt, Obligations with respect to the CF Credit Agreement and the other CF Documents and Obligations with respect to the Indenture and the other Bonds Documents shall not constitute ABL Obligations.

“ABL Recovery” shall have the meaning set forth in Section 5.3.

 

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“ABL Security Agreement” means the Security Agreement (as defined in the ABL Credit Agreement).

“ABL Security Documents” means the ABL Security Agreement and the other Security Documents (as defined in the ABL Credit Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted or purported to be granted securing ABL Obligations or under which rights or remedies with respect to such Liens are governed.

“ABL Secured Parties” means “Secured Parties” as defined in the ABL Credit Agreement.

“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person. A Person shall be deemed to control a corporation if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such corporation, whether through the ownership of voting securities, by contract or otherwise.

“Agreement” shall have the meaning assigned to that term in the introduction to this Agreement.

“Bank of America” shall have the meaning assigned to that term in the introduction to this Agreement.

“Bankruptcy Code” shall mean Title 11 of the United States Code.

“Bonds Collateral Agent” shall mean (i) so long as obligations are outstanding under the Indenture, the Trustee, in its capacity as collateral agent for the noteholders and other secured parties under the Indenture and the other security documents thereunder, and (ii) at any time thereafter, such agent or trustee as is designated “Bonds Collateral Agent” by Bonds Secured Parties holding a majority in principal amount of the Bonds Obligations then outstanding or pursuant to such other arrangements as agreed to among the holders of the Bonds Obligations; it being understood that as of the date of this Agreement, the Trustee shall be so Bonds Collateral Agent.

“Bonds Documents” means the indenture, credit documents and security documents governing the Bonds Obligations, including, without limitation, the Indenture and the related Bonds Security Documents.

“Bonds Obligations” means Obligations under the Indenture and Obligations with respect to other Indebtedness permitted to be incurred under the Indenture, the CF Credit Agreement and the ABL Credit Agreement which is by its terms intended to be secured equally and ratably with the Notes or on a basis junior to the Liens securing the Notes (provided such Lien is permitted to be incurred under the Indenture, the CF Credit Agreement and the ABL Credit Agreement); provided that the holders of such Indebtedness or their Bonds Representative is a party to the Bonds Security Documents in accordance with the terms thereof and has appointed the Bonds Collateral Agent as collateral agent for such holders of Bonds Obligations with respect to all or a portion of the Common Collateral.

 

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“Bonds Representative” means any duly authorized representative of any holders of Bonds Obligations which representative is a party to the Bonds Documents.

“Bonds Secured Parties” means (i) so long as the Notes are outstanding, the Trustee and the holders of the Notes (including any additional Notes subsequently issued under and in compliance with the terms of the Indenture), (ii) the Bonds Collateral Agent and (iii) the holders from time to time of any other Bonds Obligations, and (iv) each Bonds Representative.

“Bonds Security Documents” means (a) so long as the Notes are outstanding, the Security Documents (as defined in the Indenture) and (b) thereafter any agreement, document or instrument pursuant to which a Lien is granted or purported to be granted securing Bonds Obligations or under which rights or remedies with respect to such Liens are governed, which in each case may include intercreditor and/or subordination agreements or arrangements among various Bonds Secured Parties.

“Capital Stock” shall mean, as to any Person that is a corporation, the authorized shares of such Person’s capital stock, including all classes of common, preferred, voting and nonvoting capital stock, and, as to any Person that is not a corporation or an individual, the membership or other ownership interests in such Person, including the right to share in profits and losses, the right to receive distributions of cash and other property, and the right to receive allocations of items of income, gain, loss, deduction and credit and similar items from such Person, whether or not such interests include voting or similar rights entitling the holder thereof to exercise Control over such Person, collectively with, in any such case, all warrants, options and other rights to purchase or otherwise acquire, and all other instruments convertible into or exchangeable for, any of the foregoing.

“CF Collateral Agent” shall mean Bank of America, in its capacity as collateral agent for the lenders and other secured parties under the CF Credit Agreement and the other CF Documents entered into pursuant to the CF Credit Agreement, together with its successors and permitted assigns under the CF Credit Agreement exercising substantially the same rights and powers; and in each case provided that if such CF Collateral Agent is not Bank of America, such CF Collateral Agent shall have become a party to this Agreement and the other applicable CF Security Documents.

“CF Documents” means the credit, guarantee and security documents governing the CF Obligations, including, without limitation, the CF Credit Agreement, each Secured Hedge Agreement (as defined in the CF Credit Agreement), each Secured Cash Management Agreement (as defined in the CF Credit Agreement) and the CF Security Documents.

“CF Enforcement Date” means the date which is 180 days after the occurrence of both (i) a continuing Event of Default (under and as defined in the CF Credit Agreement) and (ii) the ABL Collateral Agent’s receipt of an Enforcement Notice from the CF Collateral Agent, provided that the CF Enforcement Date shall be stayed and shall not occur (or be deemed to have occurred) (A) at any time the ABL Collateral Agent or the ABL Secured Parties have commenced and are diligently pursuing enforcement action against the Common Collateral, (B) at any time that any Grantor is then a debtor under or with respect to (or otherwise subject to any

 

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Insolvency Proceeding), or (C) if the Event of Default under the CF Credit Agreement is waived or cured in accordance with the terms of the CF Credit Agreement.

“CF Obligations” shall mean all “Obligations” as defined in the CF Credit Agreement. For the avoidance of doubt, Obligations with respect to the ABL Credit Agreement and the other ABL Documents shall not constitute CF Obligations.

“CF Secured Parties” means, at any relevant time, the holders of CF Obligations at such time, including without limitation the lenders and agents under the CF Credit Agreement, the CF Collateral Agent, each Cash Management Bank in respect of the Secured Cash Management Agreement (each as defined in the CF Credit Agreement) and each Hedge Bank in respect of a Secured Hedge Agreement (each as defined in the CF Credit Agreement).

“CF Security Documents” means the U.S. Security Documents (as defined in the CF Credit Agreement) and any other agreement, document or instrument pursuant to which a lien on Common Collateral is granted or purported to be granted securing CF Obligations or under which rights or remedies with respect to such liens are governed, but in each case only to the extent relating to Common Collateral.

“Collateral Agent(s)” means individually the ABL Collateral Agent, the CF Collateral Agent or the Bonds Collateral Agent and collectively means the ABL Collateral Agent, the CF Collateral Agent and the Bonds Collateral Agent.

“Common Collateral” means Receivables Collateral other than Separate Receivables Collateral.

“Comparable Subordinated Lien Security Document” shall mean, in relation to any Common Collateral subject to any Lien created under any ABL Document, those Subordinated Lien Security Documents that create a Lien on the same Common Collateral (but only to the extent relating to such Common Collateral), granted by the same Grantor.

“Control” shall mean the possession, directly or indirectly, of the power (a) to vote 50% or more of the securities having ordinary voting power for the election of directors (or any similar governing body) of a Person, or (b) to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “Controlling” and “Controlled” have meanings correlative thereto.

“Credit Documents” shall mean the ABL Documents, the CF Documents and the Bonds Documents.

“Debtor Relief Laws” shall mean the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect affecting the rights of creditors generally.

“Designated Non-Receivables Accounts” means Deposit Accounts containing exclusively cash consisting of proceeds from the sale of Non-Receivables Collateral.

 

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“Deposit Account” has the meaning set forth in the UCC.

“DIP Financing” shall have the meaning set forth in Section 6.1(a).

“Discharge of ABL Obligations” shall mean, except to the extent otherwise provided in Section 5.3, payment in full in cash (except for contingent indemnities and cost and reimbursement obligations to the extent no claim has been made) of all ABL Obligations and, with respect to letters of credit or letter of credit guaranties outstanding under the ABL Documents, delivery of cash collateral or backstop letters of credit in respect thereof in a manner consistent with the ABL Credit Agreement, in each case after or concurrently with the termination of all commitments to extend credit thereunder, and the termination of all commitments of ABL Secured Parties under ABL Documents; provided that the Discharge of ABL Obligations shall not be deemed to have occurred if such payments are made with the proceeds of other ABL Obligations that constitute an exchange or replacement for or a Refinancing of such ABL Obligations (unless in connection with such exchange, replacement or Refinancing all the ABL Obligations are repaid in full in cash (and the other conditions set forth in this definition prior to the proviso are satisfied) with the proceeds of a Permitted Receivables Financing (as defined in the ABL Credit Agreement), in which case a Discharge of ABL Obligations shall be deemed to have occurred). In the event the ABL Obligations are modified and the ABL Obligations are paid over time or otherwise modified pursuant to Section 1129 of the Bankruptcy Code, the ABL Obligations shall be deemed to be discharged when the final payment is made, in cash, in respect of such indebtedness and any obligations pursuant to such new indebtedness shall have been satisfied.

“Discharge of CF Obligations” means “Discharge of First Lien Obligations,” as defined in the General Intercreditor Agreement, as in effect on the date hereof.

“Disposition” has the meaning set forth in Section 2.4(b).

“Enforcement Notice” shall mean a written notice delivered by the CF Collateral Agent to the ABL Collateral Agent announcing the commencement of an Exercise of Secured Creditor Remedies.

“Event of Default” shall mean an Event of Default under the ABL Credit Agreement, the CF Credit Agreement or the Indenture.

“Exercise Any Secured Creditor Remedies” or “Exercise of Secured Creditor Remedies” shall mean, except as otherwise provided in the final sentence of this definition:

(a) the taking by any Secured Party of any action to enforce or realize upon any Lien on Common Collateral, including the institution of any foreclosure proceedings or the noticing of any public or private sale pursuant to Article 9 of the Uniform Commercial Code;

(b) the exercise by any Secured Party of any right or remedy provided to a secured creditor on account of a Lien on Common Collateral under any of the Credit Documents, under applicable law, in an Insolvency Proceeding or otherwise, including the election to retain any of the Common Collateral in satisfaction of a Lien;

 

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(c) the taking of any action by any Secured Party or the exercise of any right or remedy by any Secured Party in respect of the collection on, set off against, marshaling of, injunction respecting or foreclosure on the Common Collateral or the Proceeds thereof;

(d) the appointment on the application of a Secured Party, of a receiver, receiver and manager or interim receiver of all or part of the Common Collateral;

(e) the sale, lease, license, or other disposition of all or any portion of the Common Collateral by private or public sale conducted by a Secured Party or any other means at the direction of a Secured Party permissible under applicable law; or

(f) the exercise of any other right of a secured creditor under Part 6 of Article 9 of the Uniform Commercial Code in respect of Common Collateral.

For the avoidance of doubt, none of the following shall be deemed to constitute an Exercise of Secured Creditor Remedies: (i) the filing a proof of claim in bankruptcy court or seeking adequate protection, (ii) the exercise of rights by the ABL Collateral Agent upon the occurrence of a Cash Dominion Event (as defined in the ABL Credit Agreement), including, without limitation, the notification of account debtors, depository institutions or any other Person to deliver proceeds of Receivables Collateral to the ABL Collateral Agent (unless and until the Lenders under the ABL Credit Agreement cease to extend credit to the Borrowers thereunder, in which event an Exercise of Secured Creditor Remedies shall be deemed to have occurred), (iii) the consent by a Secured Party to a sale or other disposition by any Grantor of any of its assets or properties, (iv) the acceleration of all or a portion of the ABL Obligations or any Subordinated Lien Obligations, (v) the reduction of the borrowing base, advance rates or sub-limits by the Administrative Agent under the ABL Credit Agreement, the ABL Collateral Agent and the Lenders under the ABL Credit Agreement, (vi) the imposition of reserves by the ABL Collateral Agent, (vii) an account ceasing to be an “eligible account” under the ABL Credit Agreement or (viii) any action taken by any ABL Secured Party in respect of Separate Receivables Collateral. For the avoidance of doubt, the actions permitted by Sections 2.3(b), 2.4(a) and 3.1 shall not be deemed to be an Exercise of Secured Creditor Remedies.

“General Intercreditor Agreement” means that certain General Intercreditor Agreement dated the date hereof among the CF Collateral Agent and the Bonds Collateral Agent, as the same may be amended, restated, modified or waived from time to time.

“Governmental Authority” shall mean any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

“Grantors” shall mean the Company and each Subsidiary that has executed and delivered an ABL Security Document, a CF Security Document or a Bonds Security Document.

“Indebtedness” shall have the meaning provided in the ABL Credit Agreement, the CF Credit Agreement and the Indenture as in effect on the date hereof.

 

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“Insolvency Proceeding” shall mean :

(1) any case commenced by or against the Company or any other Grantor under any Bankruptcy Law, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of the Company or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Company or any other Grantor or any similar case or proceeding relative to the Company or any other Grantor or its creditors, as such, in each case whether or not voluntary;

(2) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Company or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or

(3) any other proceeding of any type or nature in which substantially all claims of creditors of the Company or any other Grantor are determined and any payment or distribution is or may be made on account of such claims.

“Lien” shall mean any mortgage, pledge, security interest, hypothecation, assignment, lien (statutory or other) or similar encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).

“Lien Priority” shall mean with respect to any Lien of the ABL Collateral Agent, the ABL Secured Parties, the CF Collateral Agent, the CF Secured Parties, the Bonds Collateral Agent or the Bonds Secured Parties in the Common Collateral, the order of priority of such Lien as specified in Section 2.1.

“1993 Indenture” shall mean the Indenture dated as of December 16, 1993 between the Company and First National Bank of Chicago, as trustee, as amended, and as may be further amended, supplemented or modified from time to time.

“1993 Indenture Restricted Subsidiary” shall mean any Subsidiary that on the date hereof constitutes a Restricted Subsidiary under (and as defined in) the 1993 Indenture, as in effect on the date hereof.

“Notes” shall mean (a) (i) the initial $1,000,000,000 in aggregate principal amount of 9-1/8%% Senior Secured Notes due 2014 (the “2014 Cash Pay Notes”), (ii) the initial $3,200,000,000 in aggregate principal amount of 9-1/4% Senior Secured Notes due 2016 (the “2016 Cash Pay Notes” and together with the 2104 Cash Pay Notes, the “Cash Pay Notes”) and (iii) the initial $1,500,000,000 in aggregate principal amount of 9-5/8%/10-3/8% Senior Secured Toggle Notes due 2016 (the “Toggle Notes”), each issued by the Company pursuant to the Indenture, (b) the exchange notes issued in exchange therefor as contemplated by the Registration Rights Agreement dated as of November 17, 2006, among the Company, the Guarantors identified therein and the initial purchasers party thereto and (c) any additional notes issued under the Indenture by the Company, to the extent permitted by the Indenture, the CF Credit Agreement and the ABL Credit Agreement.

 

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“Non-Receivables Collateral” means all “Collateral” as defined in any Security Document (as defined in the CF Credit Agreement), but excluding all Receivables Collateral.

“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.

“Party” shall mean the ABL Collateral Agent, the CF Collateral Agent or the Bonds Collateral Agent, and “Parties” shall mean collectively the ABL Collateral Agent, the CF Collateral Agent and the Bonds Collateral Agent.

“Person” shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

“Proceeds” shall mean (a) all “proceeds,” as defined in Article 9 of the Uniform Commercial Code, with respect to the Common Collateral, and (b) whatever is recoverable or recovered when any Common Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or involuntarily.

“Property” shall mean any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

“Receivables Collateral” means Collateral as defined in the ABL Security Agreement as in effect on the date hereof. Without expanding the foregoing, for the avoidance of doubt, neither European Collateral (as defined in the CF Credit Agreement) (whether in the form of accounts receivable or otherwise), Principal Properties (as defined in the CF Credit Agreement), any capital stock (or capital stock equivalents) pledged pursuant to any Pledge Agreement (as defined in the CF Credit Agreement), Designated Non-Receivables Accounts nor Mortgaged Properties (as defined in the CF Credit Agreement) shall constitute Receivables Collateral.

“Refinance” means, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness, including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated. “Refinanced” and “Refinancing” have correlative meanings.

“Securities Account” has the meaning set forth in the UCC.

 

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“Separate Receivables Collateral” means Receivables Collateral owned or held by an ABL Entity and Proceeds (as defined in the ABL Security Agreement) thereof.

“Secured Parties” shall mean the ABL Secured Parties, the CF Secured Parties and the Bonds Secured Parties.

“Shared Receivables Collateral” means Common Collateral.

“Subsidiary” shall mean with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity (a) of which Capital Stock representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

“Subordinated Lien Collateral Agents” means the CF Collateral Agent and the Bonds Collateral Agent, collectively.

“Subordinated Lien Documents” means, collectively, the CF Documents and the Bonds Documents.

“Subordinated Lien Obligations” means, collectively, the CF Obligations and the Bonds Obligations.

“Subordinated Lien Secured Parties” means, collectively, the CF Secured Parties and the Bonds Secured Parties.

“Subordinated Lien Security Documents” means, collectively, the CF Security Documents and the Bonds Security Documents.

“Trustee” shall mean The Bank of New York, in its capacity as collateral agent on behalf of the holders of Notes under the Security Documents (as defined in the Indenture), and its permitted successors.

“Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided that to the extent that the Uniform Commercial Code is used to define any term in any security document and such term is defined differently in differing Articles of the Uniform Commercial Code, the definition of such term contained in Article 9 shall govern; provided, further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, publication or priority of, or remedies with respect to, Liens of any Party is governed by the Uniform Commercial Code or foreign personal property security laws as enacted and in effect in a jurisdiction other than the State of New York, the term “Uniform Commercial Code” will mean the Uniform Commercial Code or such foreign personal property security laws as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.

 

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Section 1.2 Rules of Construction. Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the term “including” is not limiting and shall be deemed to be followed by the phrase “without limitation,” and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Article, section, subsection, clause, schedule and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement to any agreement, instrument, or document shall include all alterations, amendments, changes, restatements, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, restatements, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). Any reference herein to any Person shall be construed to include such Person’s successors and assigns. Any reference herein to the repayment in full of an obligation shall mean the payment in full in cash of such obligation, or in such other manner as may be approved in writing by the requisite holders or representatives in respect of such obligation, or in such other manner as may be approved by the requisite holders or representatives in respect of such obligation.

ARTICLE 2

LIEN PRIORITY