Exhibit 4.8
EXECUTION COPY
INTERCREDITOR
AGREEMENT
This INTERCREDITOR AGREEMENT
(this “ Agreement ”), is dated as of
May 26, 2006, and entered into by and among Unifi, Inc. (the
“ Company ”), the domestic subsidiaries of the
Company listed on the signature pages hereof (together with any
subsidiary that becomes a party hereto after the date hereof, the
“ Company Subsidiaries ”), Bank of America,
N.A., in its capacity as administrative agent under the SCF Credit
Agreement, including its successors and assigns from time to time
(the “ SCF Agent ”), and U.S. Bank National
Association, in its capacity as trustee and collateral agent under
the Indenture, including its successors and assigns from time to
time (in such capacities, the “ Notes Agent ”).
Capitalized terms used in this Agreement have the meanings assigned
to them in Section 1 below.
RECITALS
The Company, the Company
Subsidiaries, the SCF Lenders, and the SCF Agent have entered into
that certain Amended and Restated Credit Agreement, dated as of
May 26, 2006 (as amended, restated, supplemented, modified,
replaced, or refinanced from time to time, the “ Initial
SCF Credit Agreement ”) in favor of the
Company;
The Company has issued, or will
issue, $190,000,000 11.50% senior secured notes due 2014 (the
“Initial Notes ”) under an indenture, dated as
of May 26, 2006 (as amended, restated, supplemented, modified,
replaced, or refinanced from time to time, the “
Indenture ”) among the Company, each Guarantor (as
defined in the Indenture), and the Notes Agent;
In order to induce the SCF Agent and
the SCF Lenders to consent to the Grantors incurring the Note
Obligations and granting the Liens to the Notes Agent and in order
to induce the Notes Agent and the Noteholders to consent to the
Grantors incurring the SCF Obligations and granting the Liens to
SCF Agent, the SCF Agent, on behalf of the SCF Lenders, and the
Notes Agent, on behalf of the Noteholders, have agreed to the
relative priority of their respective Liens on the Collateral and
certain other rights, priorities and interests as set forth in this
Agreement.
AGREEMENT
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:
1.1 Defined Terms . As used
in this Agreement, the following terms shall have the following
meanings:
“ Access Period ”
means for each parcel of Mortgaged Premises, the period, after the
commencement of an Enforcement Period, which begins on the earlier
of (a) the day on which the SCF Agent provides the Notes Agent
with the notice of its election to request access pursuant to
Section 3.3(b) below and (b) the fifth Business Day after
the
Notes Agent provides the SCF Agent
with notice that the Notes Agent (or its agent) has obtained
possession or control of such parcel and ends on the earliest of
(i) the 120 th day after the date (the “
Initial Access Date ”) on which the SCF Agent
initially obtains the ability to take physical possession of,
remove, or otherwise control physical access to, or actually uses,
the SCF Collateral located on such Mortgaged Premises plus such
number of days, if any, after the Initial Access Date that it is
stayed or otherwise prohibited by law or court order from
exercising remedies with respect to Collateral located on such
Mortgaged Premises, (ii) the date on which all or
substantially all of the SCF Primary Collateral located on such
Mortgaged Premises is sold, collected or liquidated, (iii) the
date on which the Discharge of SCF Obligations occurs, and
(iv) the date on which the SCF Default or the Note Default
that was the subject of the Enforcement Notice relating to such
Enforcement Period has been cured to the satisfaction of the SCF
Agent or the Notes Agent, as applicable, or waived in
writing.
“ Accounts ”
means all now present and future “accounts” and
“payment intangibles” (in each case, as defined in
Article 9 of the UCC).
“ Account Agreements
” means any lockbox account agreement, pledged account
agreement, blocked account agreement, securities account control
agreement, or any similar deposit or securities account agreements
among the Notes Agent and/or the SCF Agent, one or more Grantors
and the relevant financial institution depository or securities
intermediary.
“ Affiliate ”
means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the
Person specified, or which owns, directly or indirectly, ten
percent (10%) or more of the outstanding equity interest of
such Person. For purposes of this definition, a Person shall be
deemed to “ control ” or be “
controlled by ” a Person if such Person possesses,
directly or indirectly, power to direct or cause the direction of
the management or policies of such Person whether through ownership
of equity interests, by contract or otherwise.
“ Agents ” means
the SCF Agent and the Notes Agent.
“ Agreement ”
means this Intercreditor Agreement, as amended, restated, renewed,
extended, supplemented or otherwise modified from time to
time.
“Bank
Products” means any
one or more of the following types of services or facilities
extended to any Grantor by any SCF Lender or any Affiliate of a SCF
Lender in reliance on such SCF Lender’s agreement to
indemnify such Affiliate: (i) any cash management or related
services (including, without limitation, automated clearinghouse
transactions, return items, overdrafts and interstate depository
network services); (ii) cash management, including controlled
disbursement services; (iii) commercial credit card and
merchant card services; (iv) products under Hedge Agreements;
and (v) such other banking products or services provided by
any SCF Lender or any Affiliate of any SCF Lender
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as may be requested by any Grantor,
excluding Letters of Credit (as defined in the SCF Credit
Agreement).
“ Bankruptcy Code
” means Title 11 of the United States Code entitled
“Bankruptcy,” as now and hereafter in effect, or any
successor statute.
“ Bankruptcy Law
” means the Bankruptcy Code and any similar federal, state or
foreign law for the relief of debtors.
“ Business Day ”
means a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law
to close.
“Capital
Stock” means
(i) in the case of a corporation, capital stock, (ii) in
the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of capital stock, (iii) in the case of a
partnership, partnership interests (whether general or limited),
(iv) in the case of a limited liability company, membership
interests and (v) any other interest or participation that
confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person;
provided that with respect to the foregoing, Capital Stock
shall exclude any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of vote or
participation with Capital Stock.
“ Chattel Paper ”
means all present and future “chattel paper” (as
defined in Article 9 of the UCC).
“ Claimholder ”
means any Note Claimholder or SCF Claimholder, as
applicable.
“ Collateral ”
means any and all of the assets and property of any Grantor,
whether real, personal or mixed, constituting either SCF Primary
Collateral or Note Primary Collateral.
“ Company ” has
the meaning assigned to that term in the Preamble to this
Agreement.
“ Company Subsidiary
” has the meaning assigned to that term in the Preamble to
this Agreement.
“ Conforming Plan of
Reorganization ” means any Plan of Reorganization whose
provisions are consistent with the provisions of this
Agreement.
“ Copyright Licenses
” means any present or future written agreement, naming any
Grantor as licensor or licensee, granting any right under any
Copyright.
“ Copyrights ”
means (a) all registered United States copyrights in any works
which are subject to copyright protection pursuant to Title 17 of
the United States Code, now existing or hereafter created or
acquired, all registrations and recordings thereof, and all
applications
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in connection therewith, including,
without limitation, registrations, recordings and applications in
the United States Copyright Office and (b) all renewals
thereof.
“ Deposit Accounts
” means all present and future “deposit accounts”
(as defined in Article 9 of the UCC).
“ DIP Financing ”
has the meaning assigned to that term in
Section 6.1.
“ Discharge of Note
Obligations ” means, except to the extent otherwise
expressly provided in Section 5.5, discharge of the Notes as
provided for in Section 11.01 of the Indenture.
“ Discharge of SCF
Obligations ” means, except to the extent otherwise
expressly provided in Section 5.5:
(a) indefeasible payment in full in
cash of the principal of and interest (including interest accruing
on or after the commencement of any Insolvency or Liquidation
Proceeding, whether or not such interest would be allowed in such
Insolvency or Liquidation Proceeding), on all Indebtedness
outstanding under the SCF Loan Documents and constituting SCF
Obligations (other than contingent obligations or indemnification
obligations, in each case for which no claim has been
asserted);
(b) indefeasible payment in full in
cash of all other SCF Obligations (other than contingent
obligations or indemnification obligations, in each case for which
no claim has been asserted) that are due and payable or otherwise
accrued and owing at or prior to the time such principal and
interest are paid;
(c) termination or expiration of all
commitments, if any, to extend credit that would constitute SCF
Obligations; and
(d) termination or cash
collateralization (in an amount and manner reasonably satisfactory
to the SCF Agent, but in no event greater than 100% of the
aggregate undrawn face amount, plus commissions, fees, and
expenses) of all letters of credit issued under the SCF Loan
Documents and constituting SCF Obligations.
“ Disposition ”
has the meaning assigned to that term in
Section 5.1(b).
“ Enforcement ”
means, collectively or individually for one or both of the SCF
Agent and the Notes Agent, when a SCF Default or Note Default, as
applicable, has occurred and is continuing, to enforce or attempt
to enforce any right or power to repossess, replevy, attach,
garnish, levy upon, collect the proceeds of, foreclose or realize
in any manner whatsoever its Lien upon, sell, liquidate or
otherwise dispose of, or otherwise restrict or interfere with the
use of, or exercise any remedies with respect to, any material
amount of Collateral, whether by judicial enforcement of any of the
rights and remedies
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under the SCF Loan Documents, the
Note Documents and/or under any applicable law, by self-help
repossession, by non-judicial foreclosure sale, lease, or other
disposition, by set-off, by notification to account obligors of any
Grantor, by any sale, lease, or other disposition implemented by
any Grantor following a SCF Default or a Note Default, as
applicable, in connection with which the SCF Agent or the Note
Agent, as applicable, has agreed to release its Liens on the
subject property, or otherwise, but in all cases excluding
(i) the establishment of borrowing base reserves, collateral
ineligibles, or other conditions for advances, (ii) the
changing of advance rates or advance sublimits, (iii) the
imposition of a default rate or late fee, (iv) the collection
and application of Accounts or other monies deposited from time to
time in Deposit Accounts or Securities Accounts, in each case, to
the extent constituting SCF Primary Collateral, against the SCF
Obligations pursuant to the provisions of the SCF Loan Documents,
and (v) the cessation of lending pursuant to the provisions of
the SCF Loan Documents, including upon the occurrence of a default
on the existence of an overadvance.
“ Enforcement Notice
” means a written notice delivered, at a time when a SCF
Default or Note Default has occurred and is continuing, by either
SCF Agent or the Notes Agent to the other announcing that an
Enforcement Period has commenced, specifying the relevant event of
default, stating the current balance of the SCF Obligations or the
Note Obligations, as applicable, and requesting the current balance
of the SCF Obligations or Note Obligations, as applicable, owing to
the noticed party.
“ Enforcement Period
” means the period of time following the receipt by either
the SCF Agent or the Notes Agent of an Enforcement Notice from the
other until the earliest of (i) in the case of an Enforcement
Period commenced by the Notes Agent, the Discharge of Note
Obligations, (ii) in the case of an Enforcement Period
commenced by SCF Agent, the Discharge of SCF Obligations,
(iii) the SCF Agent or the Notes Agent (as applicable) agrees
in writing to terminate the Enforcement Period, or (iv) the
date on which the SCF Default or the Note Default that was the
subject of the Enforcement Notice relating to such Enforcement
Period has been cured to the satisfaction of the SCF Agent or the
Notes Agent, as applicable, or waived in writing.
“ Equipment ”
means: (i) all “equipment” (as defined in Article
9 of the UCC), (ii) all machinery, manufacturing equipment,
data processing equipment, computers, office equipment,
furnishings, furniture, appliances, “fixtures” (as
defined in the UCC) and tools (in each case, regardless of whether
characterized as equipment under the UCC) and (iii) all
accessions or additions thereto, all parts thereof, whether or not
at any time of determination incorporated or installed therein or
attached thereto, and all replacements therefore, wherever located,
now or hereafter existing, including any fixtures.
“ General Intangibles
” means all present and future “general
intangibles” (as defined in Article 9 of the UCC), but
excluding “payment intangibles” (as defined in Article
9 of the UCC), Hedge Agreements and Intellectual Property and any
rights thereunder.
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“ Governmental
Authority ” means any federal, state, municipal, national
or other government, governmental department, commission, board,
bureau, court, agency or instrumentality or political subdivision
thereof or any entity or officer exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining
to any government or any court, in each case whether associated
with a state of the United States, the United States, or a foreign
entity or government.
“ Grantors ”
means the Company, each Company Subsidiary and each other Person
that has or may from time to time hereafter execute and deliver a
SCF Security Document or a Note Security Document as a grantor of a
security interest (or the equivalent thereof).
“ Hedge Agreements
” means any and all transactions, agreements or documents now
existing or hereafter entered into, which provides for an interest
rate, credit, commodity or equity swap, cap, floor, collar, forward
foreign exchange transaction, currency swap, cross currency rate
swap, currency option, or any combination of, or option with
respect to, these or similar transactions, entered into with a
Lender Counterparty for the purpose of hedging the Grantors’
exposure to fluctuations in interest or exchange rates, loan,
credit exchange, security or currency valuations or commodity
prices.
“ Indebtedness ”
means and includes all Obligations that constitute
“Debt,” “Indebtedness,”
“Obligations,” “Liabilities” or any similar
term within the meaning of the SCF Credit Agreement or the
Indenture, as applicable.
“ Indenture ” has
the meaning assigned to that term in the Recitals to this
Agreement.
“ Initial Access Date
” has the meaning assigned to that term in the definition of
the term “Access Period.”
“ Initial Notes ”
has the meaning assigned to that term in the Recitals.
“ Initial SCF Credit
Agreement ” has the meaning assigned to that term in the
Recitals.
“ Initial Use Date
” has the meaning assigned to that term in the definition of
the term “Use Period.”
“ Insolvency or Liquidation
Proceeding ” means:
(a) any voluntary or involuntary
case or proceeding under the Bankruptcy Code with respect to any
Grantor;
(b) any other voluntary or
involuntary insolvency, reorganization or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization
or
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other similar case or proceeding
with respect to any Grantor or with respect to a material portion
of their respective assets;
(c) any composition of liabilities
or similar arrangement relating to any Grantor, whether or not
under a court’s jurisdiction or supervision;
(d) any liquidation, dissolution,
reorganization or winding up of any Grantor, whether voluntary or
involuntary, whether or not under a court’s jurisdiction or
supervision, and whether or not involving insolvency or bankruptcy;
or
(e) any general assignment for the
benefit of creditors or any other marshalling of assets and
liabilities of any Grantor.
“ Instruments ”
means all present and future “instruments” (as defined
in Article 9 of the UCC).
“ Intellectual Property
” means, collectively, all the Copyrights, the Copyright
Licenses, the Patents, the Patent Licenses, the Trademarks, the
Trademark Licenses and all other intellectual property of the
Grantors.
“ Inventory ”
means all present and future “inventory” (as defined in
Article 9 of the UCC) including, without limitation, all goods held
for sale or lease or to be furnished under contracts of service or
so leased or furnished, all raw materials, work in process,
finished goods, and materials used or consumed in the manufacture,
packing, shipping, advertising, selling, leasing, furnishing or
production of such inventory; and all such goods which are returned
to or repossessed by any Grantor, all computer programs embedded in
any such goods and all accessions thereto and products thereof (in
each case, regardless of whether characterized as inventory under
the UCC).
“ Investment Property
” means all present and future “investment
property” (as defined in Article 9 of the UCC), including,
without limitation, all Capital Stock of Subsidiaries of the
Company.
“ Lender Counterparty
” means each SCF Lender or any Affiliate of a SCF Lender
counterparty to a Hedge Agreement (including any Person who is a
SCF Lender (and any Affiliate thereof) as of the date hereof but
subsequently, after entering into a Hedge Agreement, ceases to be a
SCF Lender), including, without limitation, each such Affiliate
that enters into a joinder agreement with the SCF Agent.
“ Lien ” means
any lien, mortgage, pledge, assignment, security interest, charge
or encumbrance of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention
agreement, and any lease in the nature thereof) and any option,
trust, UCC financing statement or other preferential arrangement
having the practical effect of any of the foregoing.
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“ Maintenance
Covenant” any maintenance or other financial covenant
that is tested on an “at all times” basis in relation
to the then-financial condition of the Company and/or the Company
Subsidiaries.
“ Majority SCF Lenders
” means the “Majority Lenders” (as defined in the
SCF Credit Agreement).
“ Mortgaged Premises
” means any real property which shall now or hereafter be
subject to a Note Mortgage and/or a SCF Mortgage.
“ New Agent ” has
the meaning assigned to that term in Section 5.5.
“ New Debt Notice
” has the meaning assigned to that term in
Section 5.5.
“ Non-Conforming Plan of
Reorganization ” any Plan of Reorganization whose
provisions are inconsistent with the provisions of this Agreement,
including any plan of reorganization that purports to re-order
(whether by subordination, invalidation, or otherwise) or otherwise
disregard, in whole or part, the provisions of Article II
(including the Lien priorities of Section 2.1), the provisions
of Article IV, or the provisions of Article VI.
“ Note Claimholders
” means, at any relevant time, the holders of Note
Obligations at that time, including the Noteholders and the Notes
Agent under the Note Documents.
“ Note Collateral
” means any and all of the assets and property of any
Grantor, whether real, personal or mixed, with respect to which a
Lien is granted as security for any Note Obligations.
“ Note Default ”
means an “Event of Default” as defined in the
Indenture.
“ Note Documents
” means the Indenture, the Notes, the purchase agreements
entered thereunder with respect to issuance of the Notes, and the
Collateral Agreements (as defined in the Indenture) and each of the
other agreements, documents and instruments providing for or
evidencing any other Note Obligation, and any other document or
instrument executed or delivered at any time in connection with any
Note Obligations, including any intercreditor or joinder agreement
among holders of Note Obligations to the extent such are effective
at the relevant time, as each may be amended, restated,
supplemented, modified, renewed, extended or Refinanced from time
to time in accordance with the provisions of this
Agreement.
“ Note General
Intangibles ” means all General Intangibles which are not
SCF General Intangibles.
“Note Investment
Property” means all
Investment Property which is not SCF Investment
Property.
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“ Noteholders ”
means the “Holders” under and as defined in the
Indenture.
“ Note Mortgages
” means a collective reference to each mortgage, deed of
trust and any other document or instrument under which any Lien on
real property owned or leased by any Grantor is granted to secure
any Note Obligations or under which rights or remedies with respect
to any such Liens are governed.
“ Note Obligations
” means all Obligations outstanding under the Notes and the
other Note Documents. “Note Obligations” shall include
all interest accrued or accruing (or which would, absent
commencement of an Insolvency or Liquidation Proceeding, accrue)
after commencement of an Insolvency or Liquidation Proceeding in
accordance with the rate specified in the relevant Note Document,
whether or not the claim for such interest is allowed as a claim in
such Insolvency or Liquidation Proceeding.
“ Note Primary
Collateral ” means all now owned or hereafter acquired
Note Collateral that constitutes: (a) Equipment; (b) Real
Estate Assets; (c) Note General Intangibles; (d) Note
Investment Property ; (e) documents of title related to
Equipment; (f) all letter-of-credit rights arising out of or
related to any of the property or interests in property described
in this definition; (g) letters of credit transferred to the
Notes Agent or any Noteholder, or with respect to which the
proceeds thereof have been assigned to the Notes Agent or any
Noteholder, or on which the Notes Agent or any Noteholder is named
as beneficiary, in each case arising out of or related to the
property or interests in property described in this definition;
(h) ”supporting obligations” (as defined in
Article 9 of the UCC), commercial tort claims or other claims and
causes of action, in each case, to the extent related primarily to
the foregoing; (i) Note Cash Collateral Account; and
(j) substitutions, replacements, accessions, products and
proceeds (including, without limitation, insurance proceeds,
licenses, royalties, income, payments, claims, damages and proceeds
of suit) of any or all of the foregoing.
“ Note Security
Documents ” means any agreement, document or instrument
pursuant to which a Lien is granted securing any Note Obligations
or under which rights or remedies with respect to such Liens are
governed.
“ Note Standstill
Period ” has the meaning set forth in
Section 3.1(a)(1).
“ Notes ” means,
collectively, (a) the Initial Notes, (b) the Exchange
Notes and the Additional Notes (as such terms are defined in the
Indenture), and (c) any other credit agreement, loan
agreement, note agreement, promissory note, indenture or other
agreement or instrument evidencing or governing the terms of any
indebtedness or other financial accommodation that has been
incurred to increase, replace, refinance or refund in whole or in
part the Obligations outstanding under the Initial Notes or any
other agreement or instrument referred to in this clause, unless
such agreement or instrument expressly provides that it is not
intended to be and is not a Note, or such agreement or instrument
is not a Permitted Refinancing Agreement. Any reference to the
Notes hereunder shall be deemed a reference to any Notes then in
existence.
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“ Notes Agent ”
has the meaning assigned to that term in the Preamble of this
Agreement.
“ Obligations ”
means all present and future loans, advances, liabilities,
obligations, covenants, duties, and debts from time to time owing
by any Grantor to any agent or trustee (including either Agent),
the SCF Claimholders, the Note Claimholders or any of them or their
respective Affiliates, arising from or in connection with the SCF
Loan Documents, the Note Documents or Bank Products, whether for
principal, interest or payments for early termination, whether or
not evidenced by any note, or other instrument or document, whether
arising from an extension of credit, opening of a letter of credit,
acceptance, loan, guaranty, indemnification or otherwise, whether
direct or indirect, absolute or contingent, due or to become due,
primary or secondary, as principal or guarantor, and including all
principal, interest, charges, expenses, fees, attorneys’
fees, filing fees and any other sums chargeable to the Grantors,
including, without limitation, the “Obligations”, as
defined in the SCF Credit Agreement, and the
“Indebtedness”, as defined in the Indenture, under the
Notes.
“ Patent Licenses
” means all present and future agreements, whether written or
oral, providing for the grant by or to a Grantor of any right to
manufacture, use or sell any invention covered by a
Patent.
“ Patents ” means
(a) all letters patent of the United States or any other
country and all reissues and extensions thereof and (b) all
applications for letters patent of the United States or any other
country and all divisions, continuations and continuations-in-part
thereof.
“ Permitted Refinancing
” means any Refinancing the governing documentation of which
constitutes Permitted Refinancing Agreements.
“ Permitted Refinancing
Agreements ” means, with respect to either the SCF Credit
Agreement or the Notes, as applicable, any credit agreement, loan
agreement, note agreement, promissory note, indenture or other
agreement or instrument evidencing or governing the terms of any
indebtedness or other financial accommodation that has been
incurred to increase, replace, refinance or refund in whole or in
part the Obligations outstanding under the SCF Credit Agreement or
the Notes, as such financing documentation may be amended,
restated, supplemented or otherwise modified from time to time in
compliance with this Agreement, but specifically excluding any such
financing documentation to the extent that it contains, either
initially or by amendment or other modification, any material
terms, conditions, covenants or defaults other than those that
(a) are permitted to exist at the time of the Permitted
Refinancing in the SCF Loan Documents or the Note Documents, as
applicable; or (b) could be included in the SCF Documents or
the Note Documents, as applicable, by an amendment or other
modification that would not be prohibited by Section 5.3(c) or
Section 5.3(d), as applicable.
“ Person ” means
any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental
Authority or other entity.
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“ 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
” has the meaning set forth in
Section 5.4(a).
“ Protective Advances
” means amounts expended by the SCF Agent or the Notes Agent
to protect or enforce rights in the Collateral.
“ Real Estate Asset
” means, at any time of determination, any interest (fee,
leasehold or otherwise) then owned by the Company or any Grantor in
any real property.
“ Records ” means
all present and future “records” (as defined in Article
9 of the UCC).
“ Recovery ” has
the meaning set forth in Section 6.4.
“ Refinance ”
means, in respect of any Indebtedness, to refinance, extend, renew,
defease, amend, modify, supplement, restructure, replace, refund or
repay, or to issue other indebtedness, in exchange or replacement
for, such Indebtedness, in any case in whole or in part. “
Refinanced ” and “ Refinancing ”
shall have correlative meanings.
“ SCF Agent ” has
the meaning assigned to that term in the Recitals to this
Agreement.
“ SCF Claimholders
” means, at any relevant time, the holders of SCF Obligations
at that time, including the SCF Lenders and the SCF Agent under the
SCF Loan Documents.
“ SCF Collateral
” means all of the assets and property of any Grantor,
whether real, personal or mixed, with respect to which a Lien is
granted as security for any SCF Obligations.
“ SCF Commitments
” means the “Commitments” (as defined in the SCF
Credit Agreement).
“ SCF Credit Agreement
” means collectively, (a) the Initial SCF Credit
Agreement and (b) any other credit agreement or credit
agreements, one or more debt facilities, and/or commercial paper
facilities, in each case, with banks or other institutional lenders
providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from (or
sell such receivables to) such lenders against such receivables),
letters of credit, bankers’ acceptances, or other borrowings,
that has been incurred to increase, replace (whether upon or after
termination or otherwise), refinance or refund in whole or in part
from time to time the Obligations outstanding under the Initial SCF
Credit Agreement or any other agreement or instrument referred to
in this clause, whether or not such increase,
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replacement, refinancing or
refunding occurs (i) with the original parties thereto,
(ii) on one or more separate occasions or
(iii) simultaneously or not with the termination or repayment
of the Initial SCF Credit Agreement or any other agreement or
instrument referred to in this clause, unless such agreement or
instrument expressly provides that it is not intended to be and is
not a SCF Credit Agreement, or such agreement or instrument is not
a Permitted Refinancing Agreement. Any reference to the SCF Credit
Agreement hereunder shall be deemed a reference to any SCF Credit
Agreement then in existence.
“ SCF Default ”
means an “Event of Default” (as defined in the SCF
Credit Agreement).
“ SCF General
Intangibles ” means all General Intangibles other than
any uncertificated securities representing Capital Stock of any
Subsidiary of the Company or the Guarantors (as defined in the
Indenture) and each Person in which the Company or a Guarantor has
a direct interest.
“ SCF Investment
Property ” means all Investment Property other than
Capital Stock of any Subsidiary of the Company or the Guarantors
(as defined in the Indenture) and each Person in which the Company
or a Guarantor has a direct interest.
“ SCF Lenders ”
means the “Lenders” under and as defined in the SCF
Loan Documents.
“ SCF Loan Documents
” means the SCF Credit Agreement and the Loan Documents (as
defined in the SCF Credit Agreement), including Hedge Agreements
and other Bank Products, and each of the other agreements,
documents and instruments providing for or evidencing any other SCF
Obligation, and any other document or instrument executed or
delivered at any time in connection with any SCF Obligations,
including any intercreditor or joinder agreement among holders of
SCF Obligations, to the extent such are effective at the relevant
time, as each may be amended, restated, supplemented, modified,
renewed, extended or Refinanced from time to time in accordance
with the provisions of this Agreement.
“ SCF Mortgages ”
means a collective reference to each mortgage, deed of trust and
other document or instrument under which any Lien on real property
owned or leased by any Grantor is granted to secure any SCF
Obligations or under which rights or remedies with respect to any
such Liens are governed.
“ SCF Obligations
” means all Obligations outstanding under the SCF Credit
Agreement and the other SCF Loan Documents, including any Bank
Products. “SCF Obligations” shall include all interest
accrued or accruing (or which would, absent commencement of an
Insolvency or Liquidation Proceeding, accrue) after commencement of
an Insolvency or Liquidation Proceeding in accordance with the rate
specified in the relevant SCF Loan Document whether or not the
claim for such interest is allowed as a claim in such Insolvency or
Liquidation Proceeding.
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“ SCF Primary
Collateral ” means all now owned or hereafter acquired
SCF Collateral that constitutes: (a) Accounts, other than
“payment intangibles” (as defined in Article 9 of the
UCC) which constitute identifiable proceeds of Note Primary
Collateral; (b) all Inventory or documents of title for any
Inventory; (c) Deposit Accounts, Securities Accounts
(including all cash, marketable securities and other funds held in
or on deposit in either of the foregoing), Instruments and Chattel
Paper; provided , however , that to the extent that
Instruments or Chattel Paper constitute identifiable proceeds of
Note Primary Collateral or other identifiable proceeds of Note
Primary Collateral are deposited or held in any such Deposit
Accounts or Securities Accounts, then (as provided in
Section 3.5 below) such Instruments, Chattel Paper or other
identifiable proceeds shall be treated as Note Primary Collateral;
(d) Intellectual Property; (e) SCF Investment Property;
(f) all letter-of-credit rights arising out of or related to
any of the property or interests in property described in this
definition or which are otherwise included in the Borrowing Base
(as defined in the SCF Credit Agreement); (g) letters of
credit transferred to the SCF Agent or any SCF Lender, or with
respect to which the proceeds thereof have been assigned to the SCF
Agent or any SCF Lender, or on which the SCF Agent or any SCF
Lender is named as beneficiary, in each case arising out of or
related to the property or interests in property described in this
definition or which are otherwise included in the Borrowing Base
(as defined in the SCF Credit Agreement); (h) credit insurance
with respect to any Accounts; (i) Records and related data
processing software (owned by any Grantor or in which it has an
interest); (j) “supporting obligations” (as
defined in Article 9 of the UCC), commercial tort claims or other
claims and causes of action, in each case, to the extent related
primarily to any of the foregoing; (k) other SCF General
Intangibles; and (l) substitutions, replacements, accessions,
products and proceeds (including, without limitation, insurance
proceeds, licenses, royalties, income, payments, claims, damages
and proceeds of suit) of any or all of the foregoing.
“ SCF Security
Documents ” means any agreement, document or instrument
pursuant to which a Lien is granted securing any SCF Obligations or
under which rights or remedies with respect to such Liens are
governed.
“ SCF Standstill Period
” has the meaning set forth in
Section 3.2(a)(1).
“ Secured Parties
” means the SCF Claimholders and the Note
Claimholders.
“ Securities Accounts
” means all present and future “securities
accounts” (as defined in Article 8 of the UCC), including all
monies, “uncertificated securities,” and
“securities entitlements” (as defined in Article 8 of
the UCC) contained therein.
“ Subsidiary ”
means, with respect to any Person, any corporation, partnership,
limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of
shares of stock or other ownership interests entitled (without
regard to the occurrence of any contingency) to vote in the
election of the Person or Persons (whether directors, managers,
trustees or other Persons performing similar functions) having the
power to direct or cause the direction of the management
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and policies thereof is at the time
owned or controlled, directly or indirectly, by that Person or one
or more of the other Subsidiaries of that Person or a combination
thereof.
“ Trademark License
” means any present or future agreement, written or oral,
providing for the grant by or to a grantor of any right to use any
Trademark.
“ Trademarks ”
means (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business
identifiers, and the goodwill associated therewith, now existing or
hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether in
the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State thereof or any
other country or any political subdivision thereof, or otherwise
and (b) all renewals thereof.
“ UCC ” means the
Uniform Commercial Code (or any similar or equivalent legislation)
as in effect in any applicable jurisdiction.
“ Use Period ”
means, with respect to the Note Primary Collateral (exclusive of
Note Primary Collateral located on each parcel of the Mortgaged
Premises), the period, after the commencement of an Enforcement
Period by the SCF Agent, which begins on the earlier of
(a) the day on which the SCF Agent provides the Notes Agent
with an Enforcement Notice and (b) the fifth Business Day
after the Notes Agent provides the SCF Agent with notice that the
Notes Agent (or its agent) has obtained possession or control of
such Collateral and ends on the earliest of (i) the 120
th
day after the date (the
“ Initial Use Date ”) on which the SCF Agent
initially obtains the ability to take physical possession of,
remove, or otherwise control physical access to, or actually uses,
such Note Primary Collateral plus such number of days, if any,
after the Initial Use Date that it is stayed or otherwise
prohibited by law or court order from exercising remedies with
respect to such Note Primary Collateral, (ii) the date on
which all or substantially all of the SCF Primary Collateral is
sold, collected or liquidated, (iii) the date on which the
Discharge of SCF Obligations occurs, and (iv) the date on
which the SCF Default that was the subject of the Enforcement
Notice relating to such Enforcement Period has been cured to the
satisfaction of the SCF Agent or waived in writing.
1.2 Terms Generally . The
definitions of terms in this Agreement 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, restated, supplemented,
modified, renewed or extended;
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(b) any reference herein to any
Person shall be construed to include such Person’s permitted
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 or Articles shall be construed to refer to Sections or
Articles of this Agreement;
(e) all uncapitalized terms have the
meanings, if any, given to them in the UCC, as now or hereafter
enacted in the State of New York (unless otherwise specifically
defined herein);
(f) 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;
(g) any reference herein to a Person
in a particular capacity or capacities excludes such Person in any
other capacity or individually;
(h) any reference herein to any law
shall be construed to refer to such law as amended, modified,
codified, replaced, or re-enacted, in while or part, and in effect
on the pertinent date; and
(i) in the compilation of periods of
time hereunder from a specified date to a later specified date, the
word “from” means “from and including” and
the words “to” and “until” each means
“to, but not through.”
2.1 Relative Priorities .
Irrespective of the date, time, method, manner or order of grant,
attachment or perfection of any Liens securing the Note Obligations
granted on the Collateral or of any Liens securing the SCF
Obligations granted on the Collateral (including, in each case,
irrespective of whether any such Lien is granted (or secures
Obligations relating to the period) before or after the
commencement of any Insolvency or Liquidation Proceeding) and
notwithstanding any provision of any UCC, or any other applicable
law, or the SCF Loan Documents or the Note Documents or any defect
or deficiencies in, or failure to attach or perfect, the Liens
securing the SCF Obligations or the Note Obligations or any other
circumstance whatsoever, the SCF Agent, on behalf of the SCF
Claimholders, and the Notes Agent, on behalf of the Note
Claimholders, hereby agree that:
(a) any Lien of the SCF Agent on the
SCF Primary Collateral securing the SCF Obligations, whether such
Lien is now or hereafter held by or on behalf of the SCF Agent or
any other SCF Claimholder or any other agent or trustee therefor,
regardless of how or when acquired, whether by grant, possession,
statute, operation of law, subrogation
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or otherwise, shall be senior in all
respects and prior to any Lien on the SCF Primary Collateral
securing any Note Obligations or any other Obligations owing to or
otherwise in favor of the Note Claimholders; and
(b) any Lien of the Notes Agent on
the Note Primary Collateral securing the Note Obligations, whether
such Lien is now or hereafter held by or on behalf of the Notes
Agent, any other Note Claimholder or any other agent or trustee
therefor, regardless of how or when acquired, whether by grant,
possession, statute, operation of law, subrogation or otherwise,
shall be senior in all respects to all Liens on the Note Primary
Collateral securing any SCF Obligations or any other Obligations
owing to or otherwise in favor of the SCF Claimholders.
2.2 Prohibition on Contesting
Liens . Each of the Notes Agent, on behalf of each Note
Claimholder, and the SCF Agent, on behalf of each SCF Claimholder,
consents to the granting of Liens in favor of the other to secure
the SCF Obligations and the Note Obligations, as applicable, and
agrees that no Claimholder will be entitled to, and it will not
(and shall be deemed to have irrevocably, absolutely, and
unconditionally waived any right to), contest (directly or
indirectly) or support (directly or indirectly) any other Person in
contesting, in any proceeding (including any Insolvency or
Liquidation Proceeding): (a) the attachment, perfection,
priority, validity or enforceability of any Lien in the Collateral
held by or on behalf of any of the SCF Claimholders to secure the
payment of the SCF Obligations or any of the Note Claimholders to
secure the payment of the Note Obligations, (b) the priority,
validity or enforceability of the SCF Obligations or the Note
Obligations, including the allowability or priority of the Note
Obligations or the SCF Obligations, as applicable, in any
Insolvency or Liquidation Proceeding, or (c) the validity or
enforceability of the provisions of this Agreement; provided
that nothing in this Agreement shall be construed to prevent or
impair the rights of the SCF Agent, on behalf of the SCF
Claimholders, or the Notes Agent, on behalf of the Note
Claimholders, to enforce this Agreement, including the provisions
of this Agreement relating to the priority of the Liens securing
the Obligations as provided in Sections 2.1, 3.1, 3.2 and
6.1.
2.3 No New Liens . So long as
neither the Discharge of SCF Obligations nor the Discharge of Note
Obligations has occurred, whether or not any Insolvency or
Liquidation Proceeding has been commenced by or against one or more
of the Company or any other Grantor, the parties hereto agree,
subject to Article VI hereof, that the Company shall not, and shall
not permit any other Grantor to:
(a) other than in connection with a
satisfaction and discharge or defeasance of the Note Obligations
pursuant to Section 8.02 or Section 11.01 of the
Indenture in effect as of the date hereof, grant or permit any
additional Liens on any asset or property to secure any Obligations
owing to or otherwise in favor of the Note Claimholders unless it
has granted or concurrently grants a Lien on such asset or property
to secure the SCF Obligations; or
(b) grant or permit any additional
Liens on any asset or property to secure any SCF Obligations owing
to or otherwise in favor of the SCF Claimholders unless it has
granted or concurrently grants a Lien on such asset or property to
secure the Note Obligations.
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To the extent any additional Liens are granted
on any asset or property pursuant to this Section 2.3, the
priority of such additional Liens shall be determined in accordance
with Section 2.1. In addition, to the extent that the
foregoing provisions are not complied with for any reason, without
limiting any other rights and remedies available hereunder, the SCF
Agent on behalf of the SCF Claimholders and the Notes Agent, on
behalf of Note Claimholders, agree that any amounts received by or
distributed to any of them pursuant to or as a result of Liens
granted in contravention of this Section 2.3 shall be subject
to Section 4.2.
2.4 Similar Liens and
Agreements . The parties hereto agree that it is their
intention that the SCF Collateral and the Note Collateral be
identical except as provided in Article VI. In furtherance of the
foregoing and of Section 8.8, the parties hereto agree,
subject to the other provisions of this Agreement:
(a) upon request by the SCF Agent or
the Notes Agent, to cooperate in good faith (and to direct their
counsel to cooperate in good faith) from time to time in order to
determine the specific items included in the SCF Collateral and the
Note Collateral and the steps taken to perfect their respective
Liens thereon and the identity of the respective parties obligated
under the SCF Loan Documents and the Note Documents; and
(b) that the SCF Security Documents
and the Note Security Documents and guarantees for the SCF
Obligations and the Note Obligations, subject to
Section 5.3(b), shall be in all material respects the same
forms of documents in respect of the extent of the Collateral
securing the respective Obligations (but for this Agreement) and
the remedies in respect thereof.
3.1 Exercise of Remedies —
Restrictions on the Notes Agent and the Note Claimholders
.
(a) Until the Discharge of SCF
Obligations has occurred, whether or not any Insolvency or
Liquidation Proceeding has been commenced by or against any
Grantor, subject to the limited extent provided in Article VI, the
Notes Agent and the other Note Claimholders:
(1) will not be entitled to exercise
or seek to exercise, and will not exercise or seek to exercise (but
instead shall be deemed to have hereby irrevocably, absolutely and
unconditionally waived for the duration of the Note Standstill
Period), any rights, powers, or remedies with respect to any SCF
Primary Collateral (including (A) any right of set-off or any
right under any Account Agreement, landlord waiver or
bailee’s letter or similar agreement or arrangement to which
the Notes Agent or any Note Claimholder is a party, (B) any
right to undertake self-help re-possession or non-judicial
disposition of any such
-17-
Collateral (including any partial or
complete strict foreclosure), and/or (C) any right to
institute, prosecute, or otherwise maintain any action or
proceeding with respect to such rights, powers or remedies
(including any action of foreclosure)); provided ,
however , that the Notes Agent may exercise any or all of
such rights, powers, or remedies after a period of at least 180
days has elapsed since the later of: (i) the date on which the
Notes Agent declared the existence of a Note Default, accelerated
(to the extent such amount was not already due and owing) the
payment of the principal amount of all Note Obligations, and
demanded payment thereof and (ii) the date on which the SCF
Agent received the Enforcement Notice from the Notes Agent relating
to such action; provided , further , however ,
that neither the Notes Agent nor any other Note Claimholder shall
be entitled to exercise (and shall not exercise) any rights,
powers, or remedies with respect to the SCF Primary Collateral if,
notwithstanding the expiration of such 180 day period, the SCF
Agent or the other SCF Claimholders (A) shall have commenced
and be diligently pursuing the exercise of their rights, powers, or
remedies with respect to all or any material portion of such
Collateral (prompt notice of such exercise to be given to the Notes
Agent), or (B) shall have been stayed by operation of law or
any court order from pursuing any such exercise of remedies (the
period during which the Notes Agent and the other Note Claimholders
may not pursuant to this Section 3.1(a)(1) exercise any
rights, powers, or remedies with respect to the SCF Primary
Collateral, the “ Note Standstill Period
”);
(2) will not, directly or
indirectly, contest, protest or object to or hinder any judicial or
non-judicial foreclosure proceeding or action (including any
partial or complete strict foreclosure) brought by the SCF Agent or
any other SCF Claimholder relating to the SCF Primary Collateral or
any other exercise by the SCF Agent or any other SCF Claimholder of
any other rights, powers and remedies relating to the SCF Primary
Collateral, including any sale, lease, exchange, transfer, or other
disposition of the SCF Primary Collateral, whether under the SCF
Loan Documents, applicable law, or otherwise; and
(3) subject to their rights under
clause (a)(1) above (and under clause (6) of
Section 3.1(c)), will not object to the forbearance by the SCF
Agent or the SCF Claimholders from bringing or pursuing any
Enforcement with respect to the SCF Primary Collateral;
(4) except as may be permitted in
Section 3.1(c), irrevocably, absolutely, and unconditionally
waive any and all rights the Notes Agent or the Note Claimholders
may have as a junior lien creditor or otherwise to object (and seek
or be awarded any relief of any nature whatsoever based on any such
objection) to the manner in which the SCF Agent or the SCF
Claimholders (a) enforce or collect (or attempt to collect)
the SCF Obligations or (b) realize or seek to realize upon or
otherwise enforce the Liens in and to the SCF Primary Collateral
securing the SCF Obligations, regardless of whether any action or
failure to act by or on behalf of the SCF Agent or SCF Claimholders
is adverse to the interest of the Notes Agent or the Note
Claimholders. Without limiting the generality of the foregoing, the
Note Claimholders shall be deemed to have hereby irrevocably,
absolutely, and unconditionally waived any right to object (and
seek or be awarded any relief of any nature whatsoever based on any
such objection), at any time prior or subsequent to
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any disposition of any of the SCF
Primary Collateral, on the ground(s) that any such disposition of
SCF Primary Collateral (a) would not be or was not
“commercially reasonable” within the meaning of any
applicable UCC and/or (b) would not or did not comply with any
other requirement under any applicable UCC or under any other
applicable law governing the manner in which a secured creditor
(including one with a Lien on real property) is to realize on its
collateral; and
(5) subject to their rights under
clause (a)(1) above and except as may be permitted in
Section 3.1(c), acknowledge and agree that no covenant,
agreement or restriction contained in the Note Security Documents
or any other Note Document (other than this Agreement) shall be
deemed to restrict in any way the rights and remedies of the SCF
Agent or the SCF Claimholders with respect to the SCF Primary
Collateral as set forth in this Agreement and the SCF Loan
Documents;
provided , however , that, in the case of (1),
(2) and (3) above, the Liens granted to secure the Note
Obligations of the Note Claimholders shall attach to any proceeds
resulting from actions taken by the SCF Agent or any SCF
Claimholder with respect to the SCF Primary Collateral in
accordance with this Agreement after application of such proceeds
to the extent necessary to meet the requirements of a Discharge of
SCF Obligations.
(b) Until the earlier of Discharge
of SCF Obligations, whether or not any Insolvency or Liquidation
Proceeding has been commenced by or against any Grantor, the SCF
Agent and the other SCF Claimholders shall have the right to
enforce rights, exercise powers or remedies (including set-off and
the right to credit bid their debt) and, in connection therewith
(including voluntary Dispositions of SCF Primary Collateral by the
respective Grantors after a SCF Default) make determinations
regarding the release, disposition, or restrictions with respect to
the SCF Primary Collateral without any consultation with or the
consent of the Notes Agent or any Note Claimholder; provided
, however , that the Lien securing the Note Obligations
shall remain on the proceeds (other than those properly applied to
the SCF Obligations in accordance with the SCF Loan Documents) of
such Collateral released or disposed of subject to the relative
priorities described in Section 2. In exercising rights,
powers, and remedies with respect to the SCF Primary Collateral,
the SCF Agent and the SCF Claimholders may enforce the provisions
of the SCF Loan Documents and exercise rights, powers, and/or
remedies thereunder and/or under applicable law or otherwise, 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 the SCF Primary Collateral upon foreclosure,
to incur expenses in connection with such sale or disposition, and
to exercise all the rights and remedies of a secured creditor under
the UCC and of a secured creditor under the Bankruptcy Laws of any
applicable jurisdiction.
(c) Notwithstanding anything to the
contrary contained herein, the Notes Agent and any Note Claimholder
may:
(1) file a claim or statement of
interest with respect to the Note Obligations; provided that
an Insolvency or Liquidation Proceeding has been commenced by or
against any Grantor;
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(2) take any action (not adverse to
the priority status of the Liens on the SCF Primary Collateral, or
the rights of the SCF Agent or any of the SCF Claimholders to
exercise rights, powers, and/or remedies in respect thereof,
including those under Article VI) in order to create, perfect,
preserve or protect (but, subject to the provisions of
Section 3.1(a) hereof, not enforce) its Lien on any of the SCF
Primary Collateral;
(3) file any necessary responsive or
defensive pleadings in opposition to any motion, claim, adversary
proceeding or other pleading made by any person objecting to or
otherwise seeking the disallowance of the claims of the Note
Claimholders, including any claims secured by the SCF Primary
Collateral, if any, in each case in accordance with the terms of
this Agreement;
(4) file any pleadings, objections,
motions or agreements which assert rights or interests available to
unsecured creditors of the Grantors arising under either any
Insolvency or Liquidation Proceeding or applicable non-bankruptcy
law, in each case not inconsistent with the terms of this Agreement
or applicable law (including the Bankruptcy Laws of any applicable
jurisdiction);
(5) vote on any Plan of
Reorganization, file any proof of claim, make other filings and
make any arguments, obligations, and motions (including in support
of or opposition to, as applicable, the confirmation or approval of
any Plan of Reorganization) that are, in each case, in accordance
with the terms of this Agreement. Without limiting the generality
of the foregoing or of the other provisions of this Agreement, any
vote to accept, and any other act to support the confirmation or
approval of, any Non-Conforming Plan of Reorganization shall be
inconsistent with and accordingly, a violation of the terms of this
Agreement, and the SCF Agent shall be entitled to have any such
vote to accept a Non-Conforming Plan of Reorganization changed and
any such support of any Non-Conforming Plan of Reorganization
withdrawn; and
(6) exercise any of its rights or
remedies with respect to any of the Collateral after the
termination of the Note Standstill Period to the extent permitted
by Section 3.1(a)(1).
The Notes Agent, on behalf of the
Note Claimholders, agrees that any Note Claimholder will not be
entitled to, and will not, take or receive any SCF Primary
Collateral or any proceeds of such Collateral in connection with
the exercise of any right, power, or remedy (including set-off)
with respect to any such Collateral in its capacity as a creditor
in violation of this Agreement. Without limiting the generality of
the foregoing, unless and until the Discharge of SCF Obligations
has occurred, except as expressly provided in Sections 3.1(a)(1),
6.7 and clause (6) of this Section 3.1(c), the sole right
of the Notes Agent and the Note Claimholders with respect to the
SCF Primary Collateral is to hold a Lien on such Collateral
pursuant to the
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Note Security 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 SCF Obligations has
occurred.
(d) Except as otherwise specifically
set forth in Sections 3.1(a), 3.4 and 3.5 and Article 6, the Notes
Agent and the Note Claimholders may exercise rights and remedies as
unsecured creditors against any Grantor and may exercise rights and
remedies with respect to the Note Primary Collateral, in each case,
in accordance with the terms of the Note Documents and applicable
law; provided , however , that in the event that the
Notes Agent or any Note Claimholder becomes a judgment Lien
creditor in respect of SCF Primary Collateral as a result of its
enforcement of its rights as an unsecured creditor with respect to
the Note Obligations or any other Obligations, such judgment Lien
shall be subject to the terms of this Agreement for all purposes
(including in relation to the SCF Obligations) as the other Liens
securing the Note Obligations or any other Obligations are subject
to this Agreement.
(e) Except as provided in
Section 5.3(d), nothing in this Agreement shall prohibit the
receipt by the Notes Agent or any other Note Claimholders of the
required payments of interest, principal and other amounts owed in
respect of the Note Obligations so long as such receipt is not the
direct or indirect result of the exercise by the Notes Agent or any
Note Claimholders of rights or remedies as a secured creditor
(including set-off) with respect to SCF Primary Collateral or
enforcement in contravention of this Agreement of any Lien held by
any of them. Nothing in this Agreement impairs or otherwise
adversely affects any rights or remedies the SCF Agent or the SCF
Claimholders may have against the Grantors under the SCF Loan
Documents.
3.2 Exercise of Remedies —
Restrictions on the SCF Agent and SCF Claimholders .
(a) Until the Discharge of Note
Obligations has occurred, whether or not any Insolvency or
Liquidation Proceeding has been commenced by or against any
Grantor, subject to the limited extent provided in Article VI, the
SCF Agent and the other SCF Claimholders:
(1) will not exercise or seek to
exercise (but instead shall be deemed to have hereby irrevocably,
absolutely and unconditionally waived for the duration of the SCF
Standstill Period) any rights, powers, or remedies with respect to
any Note Primary Collateral (including (A) any right of
set-off or any right under any Account Agreement, landlord waiver
or bailee’s letter or similar agreement or arrangement to
which the SCF Agent or any SCF Claimholder is a party, (B) any
right to undertake self-help re-possession or nonjudicial
disposition of such Collateral (including any partial or complete
strict foreclosure), or (C) any right to institute, prosecute
or otherwise maintain any action or proceeding with respect to such
rights, powers, or remedies (including any action of foreclosure));
provided , however , that the SCF Agent may exercise
any or all of such rights, powers, or remedies after a period of at
least 180 days has elapsed since the later of: (i) the date on
which the SCF Agent declared the existence of a SCF Default,
accelerated
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(to the extent such amount was not
already due and owing) the principal amount of all SCF Obligations,
and demanded payment thereof and (ii) the date on which the
Notes Agent received the Enforcement Notice from the SCF Agent
relating
