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Exhibit
4.13(a)
GENERAL INTERCREDITOR
AGREEMENT
GENERAL INTERCREDITOR
AGREEMENT dated as of November 17, 2006, between BANK OF AMERICA,
N.A. (“ Bank of America ”), in its capacity as
collateral agent for the First Lien Obligations (as defined below),
including its successors and assigns from time to time, and THE
BANK OF NEW YORK, in its capacity as collateral agent for the
Junior Lien Obligations (as defined below), including its
successors and assigns from time to time. Capitalized terms used
herein but not otherwise defined herein have the meanings set forth
in Section 1 below.
A. HCA INC., a Delaware
corporation (the “ Company ”), is party to the
Credit Agreement dated as of November 17, 2006 (as 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 “
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, 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 Credit
Agreement is designated by the Company to be included in the
definition of “General Credit Facility” under the
Indenture and the Obligations thereunder constitute First Lien
Obligations within the meaning of the Indenture.
B. The Company is party to an
Indenture dated as of November 17, 2006 (as amended, restated,
supplemented, waived, Refinanced or otherwise modified from time to
time, the “ Indenture ”), among the Company, the
Guarantors identified therein and The Bank of New York, as Trustee.
The Indenture Obligations constitute Junior 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:
SECTION 1.
Definitions .
1.1. Defined Terms .
As used in this Agreement, the following terms have the meanings
specified below:
“ ABL Credit
Agreement ” shall mean 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)), 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.
“ 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” as such terms are defined in the
UCC 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 Receivables Collateral Agent (it being understood
that no such account or funds shall be deemed to be an “ABL
Controlled Account” at any time that such account or funds
are not subject to a control agreement in favor of the Receivables
Collateral Agent unless an Event of Default (as defined in the
Credit Agreement or the Indenture) has occurred and is continuing
on the date such account or funds would have otherwise ceased to
constitute an ABL Controlled Account ).
“ ABL Facility
Documents ” means the credit, guarantee and security
documents governing the ABL Facility Obligations, including,
without limitation, the ABL Credit Agreement and the ABL Facility
Security Documents.
“ ABL Facility
Obligations ” shall mean all “Obligations” as
defined in the ABL Credit Agreement. For the avoidance of doubt,
Obligations with respect to the First Lien Credit Agreement and the
other First Lien Documents shall not constitute ABL Facility
Obligations.
“ ABL Facility
Security Agreement ” means the Security Agreement (as
defined in the ABL Credit Agreement).
“ ABL Facility
Security Documents ” means the ABL Facility 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 Facility Obligations or under which rights or remedies
with respect to such Liens are governed.
“ Agreement
” shall mean this Agreement, as amended, renewed, extended,
supplemented or otherwise modified from time to time in accordance
with the terms hereof.
“ Bank of
America ” shall have the meaning set forth in the
preamble.
“ Bankruptcy
Code ” means Title 11 of the United States Code, as
amended.
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“ Bankruptcy Law
” shall mean the Bankruptcy Code and any similar Federal,
state or foreign law for the relief of debtors.
“ Business Day
” shall mean 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.
“ Common
Collateral ” shall mean all of the assets of any Grantor,
whether real, personal or mixed, constituting both First Lien
Collateral and Junior Lien Collateral including without limitation
(a) any assets in which the First Lien Collateral Agent is
automatically deemed to have a Lien pursuant to the provisions of
Section 2.3 and (b) Shared Receivables Collateral.
For the avoidance of doubt, none of the European Collateral (as
defined in the Credit Agreement), the Principal Properties (as
defined in the Credit Agreement) or the Separate Receivables
Collateral shall constitute Common Collateral.
“ Company
” shall have the meaning set forth in the
recitals.
“ Comparable Junior
Lien Security Document ” shall mean, in relation to any
Common Collateral subject to any Lien created under any First Lien
Document, those Junior Lien Security Documents that create a Lien
on the same Common Collateral, granted by the same
Grantor.
“ Credit
Agreement ” shall have the meaning set forth in the
recitals.
“ DIP Financing
” shall have the meaning set forth in Section 6.1
.
“ Discharge of First
Lien Obligations ” shall mean, except to the extent
otherwise provided in Section 5.7 , payment in full in
cash (except for contingent indemnities and cost and reimbursement
obligations to the extent no claim has been made) of all First Lien
Obligations and, with respect to letters of credit or letter of
credit guaranties outstanding under the First Lien Documents,
delivery of cash collateral or backstop letters of credit in
respect thereof in a manner consistent with the 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 the First Lien Secured Parties under the First Lien
Documents; provided that the Discharge of First Lien
Obligations shall not be deemed to have occurred if such payments
are made with the proceeds of other First Lien Obligations that
constitute an exchange or replacement for or a Refinancing of such
Obligations or First Lien Obligations. In the event the First Lien
Obligations are modified and the Obligations are paid over time or
otherwise modified pursuant to Section 1129 of the Bankruptcy
Code, the First Lien Obligations shall be deemed to be discharged
when the final payment is made, in cash, in respect of such
indebtedness and any obligations pursuant to such new indebtedness
shall have been satisfied.
“ First Lien
Collateral ” shall mean all of the assets of any Grantor,
whether real, personal or mixed, with respect to which a Lien is
granted or purported to be granted as security for any First Lien
Obligations pursuant to a First Lien Security Document.
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“ First Lien
Collateral Agent ” shall mean Bank of America, in its
capacity as administrative agent and collateral agent for the
lenders and other secured parties under the Credit Agreement and
the other First Lien Documents entered into pursuant to the Credit
Agreement, together with its successors and permitted assigns under
the Credit Agreement exercising substantially the same rights and
powers; and in each case provided that if such First Lien
Collateral Agent is not Bank of America, such First Lien Collateral
Agent shall have become a party to this Agreement and the other
applicable First Lien Security Documents.
“ First Lien
Documents ” means the credit, guarantee and security
documents governing the First Lien Obligations, including, without
limitation, the Credit Agreement, each Secured Hedge Agreement (as
defined in the Credit Agreement), each Secured Cash Management
Agreement (as defined in the Credit Agreement) and the First Lien
Security Documents.
“ First Lien
Obligations ” shall mean all “Obligations” as
defined in the Credit Agreement. For the avoidance of doubt,
Obligations with respect to the ABL Credit Agreement and the other
ABL Facility Documents shall not constitute First Lien
Obligations.
“ First Lien Secured
Parties ” means, at any relevant time, the holders of
First Lien Obligations at such time, including without limitation
the lenders and agents under the Credit Agreement, the First Lien
Collateral Agent, each Cash Management Bank in respect of the
Secured Cash Management Agreement (each as defined in the Credit
Agreement) and each Hedge Bank in respect of a Secured Hedge
Agreement (each as defined in the Credit Agreement).
“ First Lien
Security Documents ” means the U.S. Security Documents
(as defined in the Credit Agreement) and any other agreement,
document or instrument pursuant to which a Lien is granted or
purported to be granted securing First Lien Obligations or under
which rights or remedies with respect to such Liens are governed,
in each case to the extent relating to Common
Collateral.
“ First Priority
Liens ” means Liens securing the First Lien Obligations,
which Liens are superior and prior in priority to the Liens
securing the Junior Lien Obligations.
“ Grantors
” shall mean the Company and each other U.S. Credit Party (as
defined in the Credit Agreement) that has executed and delivered a
First Lien Document or a Junior Lien Document.
“ Indebtedness
” shall mean and include all obligations that constitute
“Indebtedness” within the meaning of the Indenture or
the Credit Agreement.
“ Indenture
” shall have the meaning set forth in the
recitals.
“ Indenture
Documents ” means the indenture, guarantee and security
documents governing the Indenture Obligations, including without
limitation the Indenture and the Indenture Security
Documents.
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“ Indenture
Obligations ” means “Obligations” (as defined
in the Indenture) of the Company and the Guarantors identified in
the Indenture with respect to Notes and the Guarantees under the
Indenture, the Notes and the other Indenture Security
Documents.
“ Indenture Secured
Parties ” means the Trustee and the holders of the Notes
(including any additional Notes subsequently issued under and in
compliance with the terms of the Indenture).
“ Indenture Security
Documents ” means the Security Documents (as defined in
the Indenture) and any other agreement, document or instrument
pursuant to which Liens are granted or purported to be granted
securing Indenture Obligations or under which rights or remedies
with respect to such Liens are governed.
“ Insolvency or
Liquidation Proceeding ” means:
(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.
“ Junior Lien
Collateral ” shall mean all of the assets of any Grantor,
whether real, personal or mixed, with respect to which a Lien is
granted or purported to be granted as security for any Junior Lien
Obligations pursuant to a Junior Lien Security Document.
“ Junior Lien
Collateral Agent ” shall mean (i) so long as the
Indenture Obligations are outstanding, the Trustee, in its capacity
as collateral agent for the noteholders and other secured parties
under the Indenture and the other Indenture Documents, and
(ii) at any time thereafter, such agent or trustee as is
designated “Junior Lien Collateral Agent” by Junior
Lien Secured Parties holding a majority in principal amount of the
Junior Lien Obligations then outstanding or pursuant to such other
arrangements as agreed to among the holders of the Junior Lien
Obligations; it being understood that as of the date of this
Agreement, the Trustee shall be so designated Junior Lien
Collateral Agent.
“ Junior Lien
Documents ” means the credit and security documents
governing the Junior Lien Obligations, including, without
limitation, the Indenture Documents and the related Junior Lien
Security Documents.
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“ Junior Lien
Obligations ” means Indenture Obligations and Obligations
with respect to other Indebtedness permitted to be incurred under
the Indenture and the 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 and the Credit
Agreement); provided that the holders of such Indebtedness
or their Junior Lien Representative is a party to the Junior Lien
Security Documents in accordance with the terms thereof and has
appointed the Junior Lien Collateral Agent as collateral agent for
such holders of Junior Lien Obligations with respect to all or a
portion of the Common Collateral.
“ Junior Lien
Representative ” means any duly authorized representative
of any holders of Junior Lien Obligations which representative is a
party to the Junior Lien Security Documents.
“ Junior Lien
Secured Parties ” means (i) Indenture Secured
Parties, (ii) the Junior Lien Collateral Agent and
(iii) the holders from time to time of any other Junior Lien
Obligations, and each Junior Lien Representative.
“ Junior Lien
Security Documents ” means (a) so long as the
Indenture Obligations are outstanding, the Indenture Security
Documents and (b) thereafter any agreement, document or
instrument pursuant to which a Lien is granted or purported to be
granted securing Junior Lien 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 Junior Lien Secured Parties.
“ Junior Liens
” means the Liens securing the Junior Lien
Obligations.
“ Lien ”
shall mean, with respect to any asset, any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset.
“ 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.
“ Non-Conforming
Plan of Reorganization ” any Plan of Reorganization which
grants the Junior Lien Collateral Agent or any Junior Lien Secured
Party any right or benefit, directly or indirectly, which right or
benefit is expressly prohibited at such time by the provisions of
this Agreement.
“ 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
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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 and the Credit
Agreement.
“ 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.
“ Officers’
Certificate ” shall have the meaning set forth in the
Indenture.
“ Payment
Discharge ” shall have the meaning set forth in
Section 5.1(a) .
“ Person ”
shall mean 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.
“Plan of
Reorganization ” means any plan of reorganization, plan
of liquidation, agreement for composition, or other type of plan of
arrangement proposed in or in connection with any Insolvency or
Liquidation Proceeding.
“ Pledged
Collateral ” shall mean the Common Collateral in the
possession or control of the First Lien Collateral Agent (or its
agents or bailees), to the extent that possession or control
thereof perfects a Lien thereon under the UCC.
“ Receivables
Collateral ” means “Collateral” as defined in
the ABL Facility Security Agreement, as in effect on the date
hereof.
“ Receivables
Collateral Agent ” means the Collateral Agent as defined
in the ABL Credit Agreement.
“ Receivables
Intercreditor Agreement ” means that certain Receivables
Intercreditor Agreement dated the date hereof among the Receivables
Collateral Agent, the First Lien Collateral Agent and the Junior
Lien Collateral Agent, as the same may be amended, restated,
modified or waived from time to time.
“ Recovery
” shall have the meaning set forth in Section 6.3
.
“ 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
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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.
“ Separate
Receivables Collateral ” means Receivables Collateral
owned or held by an ABL Entity and Proceeds (as defined in the ABL
Security Agreement) thereon.
“ Shared Receivables
Collateral ” means Receivables Collateral other than
Separate Receivables Collateral.
“ Subsidiary
” shall mean any “Subsidiary” of the Company as
defined in the Credit Agreement or the Indenture.
“ Trustee
” shall mean The Bank of New York, in its capacity as
collateral agent under the Indenture Security Documents, and its
permitted successors.
“ UCC ”
shall mean the Uniform Commercial Code as from time to time in
effect in the State of New York.
1.2. Terms Generally .
The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed
to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context
requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed
as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified in
accordance with this Agreement, (b) any reference herein to
any Person shall be construed to include such Person’s
successors and assigns, (c) the words “herein,”
“hereof” and “hereunder,” and words of
similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof,
(d) all references herein to Sections shall be construed to
refer to Sections of this Agreement and (e) the words
“asset” and “property” shall be construed
to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
SECTION 2. Lien
Priorities .
2.1. Subordination of
Liens . Notwithstanding (i) the date, time, manner or
order of filing or recordation of any document or instrument or
grant, attachment or perfection (including any defect or deficiency
or alleged defect or deficiency in any of the foregoing) of any
Liens granted to the Junior Lien Collateral Agent or the Junior
Lien Secured Parties on the Common Collateral or of any Liens
granted to the First Lien Collateral Agent or the First Lien
Secured Parties on the Common Collateral, (ii) any provision
of the UCC, the Bankruptcy Code, any applicable law, the Junior
Lien Documents or the First Lien Documents, (iii) whether the
First Lien Collateral Agent, either directly or through agents,
holds possession of, or has control over, all or any part of the
Common Collateral, (iv) the fact that any such Liens may
be
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subordinated, voided, avoided,
invalidated or lapsed or (v) any other circumstance of any
kind or nature whatsoever, the Junior Lien Collateral Agent and
each Junior Lien Representative, on behalf of itself and each
applicable Junior Lien Secured Party, hereby agree that:
(a) any Lien on the Common Collateral securing any First Lien
Obligations now or hereafter held by or on behalf of the First Lien
Collateral Agent or any First Lien Secured Parties or any agent or
trustee therefor regardless of how acquired, whether by grant,
statute, operation of law, subrogation or otherwise, shall have
priority over and be senior in all respects and prior to any Lien
on the Common Collateral securing any Junior Lien Obligations,
(b) any Lien on the Common Collateral securing any Junior Lien
Obligations now or hereafter held by or on behalf of the Junior
Lien Collateral Agent or any Junior Lien Secured Party or any agent
or trustee therefor regardless of how acquired, whether by grant,
statute, operation of law, subrogation or otherwise, shall be
junior and subordinate in all respects to all Liens on the Common
Collateral securing any First Lien Obligations and (c) with
respect to any Junior Lien Obligations other than the Indenture
Obligations (and as between the Trustee, the Junior Lien Collateral
Agent, the other Junior Lien Representatives, the Indenture Secured
Parties and the other Junior Lien Secured Parties), the Liens on
the Common Collateral securing such Junior Lien Obligations now or
hereafter held by or on behalf of the Trustee, the Junior Lien
Collateral Agent, any Junior Lien Representatives, any Indenture
Secured Party or any Junior Lien Secured Party or any agent or
trustee therefor regardless of how acquired, whether by grant,
statute, operation of law, subrogation or otherwise, shall rank in
all respects equally and ratably to or junior to the Liens securing
the Indenture Obligations. All Liens on the Common Collateral
securing any First Lien Obligations shall be and remain senior in
all respects and prior to all Liens on the Common Collateral
securing any Junior Lien Obligations for all purposes, whether or
not such Liens securing any First Lien Obligations are subordinated
to any Lien securing any other obligation of the Company, any other
Grantor or any other Person (including for the avoidance of doubt,
with respect to Shared Receivables Collateral, the Liens thereon
securing ABL Facility Obligtions). The Junior Lien Collateral Agent
and each Junior Lien Representative, for itself and on behalf of
the Junior Lien Secured Parties, expressly agree that any Lien
purported to be granted on any Common Collateral as security for
the First Lien Obligations shall be deemed to be, and shall be
deemed to remain, senior in all respects and prior to all Liens on
the Common Collateral securing any Junior Lien Obligations for all
purposes regardless of whether the Lien purported to be granted is
found to be improperly granted, improperly perfected, preferential,
a fraudulent conveyance or legally or otherwise deficient in any
manner.
2.2. Prohibition on
Contesting Liens . The Junior Lien Collateral Agent and each
other Junior Lien Representative, for itself and on behalf of each
applicable Junior Lien Secured Party, agrees that (a) it shall
not (and hereby waives any right to) take any action to challenge,
contest or support any other Person in contesting or challenging,
directly or indirectly, in any proceeding (including any Insolvency
or Liquidation Proceeding), the validity, perfection, priority or
enforceability of a Lien securing any First Lien Obligations held
(or purported to be held) by or on behalf of the First Lien
Collateral Agent or any of the First Lien Secured Parties or any
agent or trustee therefor in any First Lien Collateral or Common
Collateral and (b) none of them will oppose or otherwise
contest (or support any Person contesting) any other request for
judicial relief made in any court by the First Lien Collateral
Agent or any First Lien Secured Parties relating to the lawful
enforcement of any First Priority Lien on Common Collateral or
First Lien Collateral. The First Lien Collateral Agent, for itself
and on behalf of each First Lien
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Secured Party, agrees that it shall not
(and hereby waives any right to) take any action to challenge,
contest or support any other Person in contesting or challenging,
directly or indirectly, in any proceeding (including any Insolvency
or Liquidation Proceeding), the validity, perfection, priority or
enforceability of a Lien securing any Junior Lien Obligations held
(or purported to be held) by or on behalf of the Junior Lien
Collateral Agent or any Junior Lien Secured Party on the Common
Collateral; provided , however , that nothing in this
Agreement shall be construed to prevent or impair the rights of the
First Lien Collateral Agent or any First Lien Secured Parties to
enforce this Agreement (including the priority of the Liens
securing the First Lien Obligations as provided in
Section 2.1 ) or any of the First Lien
Documents.
2.3. No New Liens . So
long as the Discharge of First Lien Obligations has not occurred,
the parties hereto agree that, after the date hereof, neither the
Junior Lien Collateral Agent nor any Junior Lien Representative
shall acquire or hold any Lien on any assets of the Company or any
other Subsidiary (and neither the Company nor any Subsidiary shall
grant such Lien) securing any Junior Lien Obligations that are not
also subject to a First Priority Lien in respect of the First Lien
Obligations under the First Lien Documents. If the Junior Lien
Collateral Agent or any Junior Lien Representative shall
(nonetheless and in breach hereof) acquire or hold any Lien on any
assets of the Company or any other Subsidiary that is not also
subject to the First Priority Lien in respect of the First Lien
Obligations under the First Lien Documents, then such Junior Lien
Collateral Agent or other Junior Lien Representative shall, without
the need for any further consent of any party and notwithstanding
anything to the contrary in any other document, be deemed to also
hold and have held such Lien for the benefit of the First Lien
Collateral Agent as security for the First Lien Obligations
(subject to the lien priority and other terms hereof) and shall use
its best efforts to promptly notify the First Lien Collateral Agent
in writing of such Lien and in any event take such actions as may
be requested by the First Lien Collateral Agent to assign or
release such Lien to the First Lien Collateral Agent (and/or its
designee) as security for the applicable First Lien
Obligations.
2.4. Perfection of
Liens . Except as expressly set forth in Section 5.5
hereof, neither the First Lien Collateral Agent nor any First Lien
Secured Party shall be responsible for perfecting and maintaining
the perfection of Liens with respect to the Common Collateral for
the benefit of the Junior Lien Collateral Agent, the other Junior
Lien Representatives or any other Junior Lien Secured Parties. None
of the Junior Lien Collateral Agent, any Junior Lien Representative
or any Junior Lien Secured Party shall be responsible for
perfecting and maintaining the perfection of Liens with respect to
the Common Collateral for the benefit of the First Lien Collateral
Agent or any other First Lien Secured Parties. The provisions of
this Agreement are intended solely to govern the respective Lien
priorities as between the First Lien Secured Parties and the Junior
Lien Secured Parties and shall not impose on the First Lien
Collateral Agent, the Junior Lien Collateral Agent, any other
Junior Lien Representative, the Junior Lien Secured Parties or the
First Lien Secured Parties or any agent or trustee therefor any
obligations in respect of the disposition of proceeds of any Common
Collateral which would conflict with prior perfected claims therein
in favor of any other Person or any order or decree of any court or
governmental authority or any applicable law.
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SECTION 3.
Enforcement .
3.1. Exercise of
Remedies .
(a) So long as the Discharge
of First Lien Objections has not occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or
against the Company or any other Grantor, (i) none of the
Junior Lien Collateral Agent, any Junior Lien Representative or any
Junior Lien Secured Party will (x) exercise or seek to
exercise any rights or remedies (including setoff and the right to
credit bid debt (except as set forth in Section 3.1(f)
below)) with respect to any Common Collateral in respect of any
applicable Junior Lien Obligations, or institute any action or
proceeding with respect to such rights or remedies (including any
action of foreclosure), (y) contest, protest or otherwise
object to any foreclosure or enforcement proceeding or action
brought with respect to the Common Collateral or any other
collateral by the First Lien Collateral Agent or any First Lien
Secured Party in respect of the First Lien Obligations, the
exercise of any right by the First Lien Collateral Agent or any
First Lien Secured Party (or any agent or sub-agent on their
behalf) in respect of the First Lien Obligations under any control
agreement, lockbox agreement, landlord waiver or bailee’s
letter or similar agreement or arrangement to which the Junior Lien
Collateral Agent, any Junior Lien Representative or any Junior Lien
Secured Party either is a party or may have rights as a third party
beneficiary, or any other exercise by any such party, of any rights
and remedies as a secured party relating to the Common Collateral
or any other collateral under the First Lien Documents or otherwise
in respect of First Lien Obligations, or (z) object to any
waiver or forbearance by the First Lien Secured Parties from or in
respect of bringing or pursuing any foreclosure proceeding or
action or any other exercise of any rights or remedies relating to
the Common Collateral or any other collateral in respect of First
Lien Obligations and (ii) except as otherwise provided herein,
the First Lien Collateral Agent and the First Lien Secured Parties
shall have the sole and exclusive right to enforce rights, exercise
remedies (including setoff and the right to credit bid their debt),
marshal, process and make determinations regarding the release,
disposition or restrictions, or waiver or forbearance of rights or
remedies with respect to the Common Collateral without any
consultation with or the consent of the Junior Lien Collateral
Agent, any Junior Lien Representative or any Junior Lien Secured
Party; provided , however , that (A) in any
Insolvency or Liquidation Proceeding commenced by or against the
Company or any other Grantor, the Junior Lien Collateral Agent may
file a proof of claim or statement of interest with respect to the
Junior Lien Obligations and (B) the Junior Lien Collateral
Agent may take any action (not adverse to the prior Liens on the
Common Collateral securing the First Lien Obligations, or the
rights of the First Lien Collateral Agent or the First Lien Secured
Parties to exercise remedies in respect thereof) in order to prove,
preserve or protect (but not enforce) its rights in, and perfection
and priority of its Lien on, the Common Collateral. In exercising
rights and remedies with respect to the First Lien Collateral or
Common Collateral, the First Lien Collateral Agent and the First
Lien Secured Parties may enforce the provisions of the First Lien
Documents and exercise remedies thereunder, all in such order and
in such manner as they may determine in the exercise of their sole
discretion. Such exercise and enforcement shall include the rights
of an agent appointed by them to sell or otherwise dispose of
Common Collateral or other collateral upon foreclosure, to incur
expenses in connection with such sale or disposition, and to
exercise all the rights and remedies of a secured lender under the
Uniform Commercial Code of any applicable jurisdiction and of a
secured creditor under Bankruptcy Laws of any applicable
jurisdiction.
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(b) So long as the Discharge
of First Lien Obligations has not occurred, each of the Junior Lien
Collateral Agent and each Junior Lien Representative, on behalf of
itself and each applicable Junior Lien Secured Party, agrees that
it will not, in the context of its role as secured lender, take or
receive any Common Collateral or any proceeds of Common Collateral
in connection with the exercise of any right or remedy or otherwise
in an Insolvency or Liquidation Proceeding (including set off or
the right to credit bid debt (except as set forth in
Section 3.1(f) below)) with respect to any Common
Collateral in respect of the applicable Junior Lien Obligations.
Without limiting the generality of the foregoing, unless and until
the Discharge of First Lien Obligations has occurred, except as
expressly provided in the proviso in clause (ii) of
Section 3.1(a) , the sole right of the Junior Lien
Collateral Agent, the Junior Lien Representatives and the Junior
Lien Secured Parties with respect to the Common Collateral is to
hold a Lien on the Common Collateral in respect of the applicable
Junior Lien Obligations pursuant to the Junior Lien Documents, as
applicable, for the period and to the extent granted therein and to
receive a share of the proceeds thereof, if any, after the
Discharge of First Lien Obligations has occurred.
(c) Subject to the proviso in
clause (ii) of Section 3.1(a) ,
(i) the Junior Lien Collateral Agent, for itself and on behalf
of each Junior Lien Secured Party, agrees that none of the Junior
Lien Collateral Agent, any Junior Lien Representative or any Junior
Lien Secured Party will take any action that would hinder any
exercise of remedies undertaken by the First Lien Collateral Agent
or the First Lien Secured Parties with respect to the Common
Collateral, the First Lien Collateral or any other collateral under
the First Lien Documents, including any sale, lease, exchange,
transfer or other disposition of the Common Collateral, the First
Lien Collateral or such other collateral, whether by foreclosure or
otherwise, and (ii) the Junior Lien Collateral Agent and each
Junior Lien Representative, for itself and on behalf of each
applicable Junior Lien Secured Party, hereby waives any and all
rights it or any Junior Lien Secured Party may have as a junior
lien creditor or otherwise to object to the manner in which the
First Lien Collateral Agent or the First Lien Secured Parties seek
to enforce or collect the First Lien Obligations or the Liens
granted in any of the First Lien Collateral or Common Collateral,
regardless of whether any action or failure to act by or on behalf
of the First Lien Collateral Agent or First Lien Secured Parties is
adverse to the interests of the Junior Lien Secured
Parties.
(d) The Junior Lien
Collateral Agent, each Junior Lien Representative and each Junior
Lien Secured Party hereby acknowledge and agree that no covenant,
agreement or restriction contained in any applicable Junior Lien
Document shall be deemed to restrict in any way the rights and
remedies of the First Lien Collateral Agent or the First Lien
Secured Parties with respect to the First Lien Collateral or Common
Collateral as set forth in this Agreement and the First Lien
Documents.
(e) So long as the Discharge
of First Lien Obligations has not occurred, none of the Junior Lien
Collateral Agent, any other Junior Lien Representative or any other
Junior Lien Secured Party may assert or enforce any right of
marshalling accorded to a junior lienholder, as against the First
Lien Collateral Agent or any First Lien Secured Party (in their
capacity as priority lienholders).
(f) Section 3.1
hereof shall not be construed to in any way limit or impair the
right of any Junior Lien Secured Party from exercising a credit bid
with respect to the Junior
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Lien Obligations in a sale or other
disposition of Common Collateral under Section 363 of the
Bankruptcy Code, provided that in connection with and
immediately after giving effect to such sale and credit bid there
occurs a Discharge of First Lien Obligations.
3.2. Cooperation .
Subject to the proviso in clause (ii) of
Section 3.1(a) , each of the Junior Lien Collateral
Agent and each Junior Lien Representative, on behalf of itself and
each applicable Junior Lien Secured Party, agrees that, unless and
until the Discharge of First Lien Obligations has occurred, it will
not commence, or join with any Person (other than the First Lien
Secured Parties and the First Lien Collateral Agent upon the
request thereof) in commencing, any enforcement, collection,
execution, levy or foreclosure action or proceeding with respect to
any Lien held by it in the Common Collateral or any other
collateral under any of the applicable Junior Lien Documents or
otherwise in respect of the applicable Junior Lien
Obligations.
SECTION 4. Payments
.
4.1. Application of
Proceeds . So long as the Discharge of First Lien Obligations
has not occurred, the Common Collateral or proceeds thereof
received in connection with the sale or other disposition of, or
collection on, such Common Collateral upon the exercise of remedies
as a secured party, shall be applied by the First Lien Collateral
Agent to the First Lien Obligations in such order as specified in
the relevant First Lien Documents until the Discharge of First Lien
Obligations has occurred. Upon the Discharge of First Lien
Obligations, subject to the proviso of
Section 5.1(a)(y) and subject to
Section 5.7 hereof, the First Lien Collateral Agent
shall deliver promptly to the Junior Lien Collateral Agent any
Common Collateral or proceeds thereof 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. Payments Over .
Any Common Collateral or First Lien Collateral or proceeds thereof
received by the Junior Lien Collateral Agent or any Junior Lien
Secured Party in connection with the exercise of any right or
remedy (including set off or credit bid) or in any Insolvency or
Liquidation Proceeding relating to the Common Collateral not
expressly permitted by this Agreement or prior to the Discharge of
First Lien Obligations shall be segregated and held in trust for
the benefit of and forthwith paid over to the First Lien Collateral
Agent (and/or its designees) for the benefit of the First Lien
Secured Parties in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise
direct. The First Lien Collateral Agent is hereby authorized to
make any such endorsements as agent for the Junior Lien Collateral
Agent or any such Junior Lien Secured Party. This authorization is
coupled with an interest and is irrevocable.
SECTION 5. Other
Agreements .
5.1. Releases
.
(a)(x) If, at any time
any Grantor or any First Lien Secured Party delivers notice to the
Junior Lien Collateral Agent with respect to any specified Common
Collateral (including for such purpose, in the case of the sale or
other disposition of all or substantially all of the
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equity interests in any Subsidiary, any
Common Collateral held by such Subsidiary or any direct or indirect
Subsidiary thereof) that:
(A) such specified Common
Collateral has been or is being sold, transferred or otherwise
disposed of (a “ Disposition ”) by the owner of
such Common Collateral in a transaction permitted under the Credit
Agreement and Section 4.11 of the Indenture; or
(B) the First Priority Liens
thereon have been or are being released in connection with a
Subsidiary that is released from its guarantee under the Credit
Agreement and under the Indenture; or
(C) the First Priority Liens
thereon have been or are being otherwise released as permitted by
the Credit Agreement or by the First Lien Collateral Agent on
behalf of the
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