Exhibit 10.6
INTERCREDITOR
AGREEMENT
This INTERCREDITOR AGREEMENT
(this “ Agreement ”), is dated as of
August 25, 2005, and entered into by and among CitiSteel USA,
Inc. (the “ Company ”), H.I.G. Steelco Holdings,
Inc. (“ Holdings ”), the subsidiaries of the
Company listed on the signature pages hereof (the “
Company Subsidiaries ”), U.S. Bank National
Association, in its capacity as agent, including its successors and
assigns from time to time (the “ Revolving Credit
Agent ”) under the Revolving Credit Agreement, and The
Bank of New York, in its capacity as trustee under the Indenture,
including its successors and assigns from time to time (in such
capacity, the “ Trustee ”) and as collateral
agent under the Indenture, including its successors and assigns
from time to time (in such capacity, the “ Collateral
Agent ”) under the Indenture. Capitalized terms used in
this Agreement have the meanings assigned to them in Section 1
below.
RECITALS
The Company, the Revolving Credit
Lenders, and the Revolving Credit Agent have entered into that
certain Financing Agreement, dated as of August 25, 2005,
providing for a revolving credit facility (as amended, restated,
supplemented or otherwise modified, from time to time, the “
Initial Revolving Credit Agreement ”) in favor of the
Company;
The Company has issued, or will
issue, senior secured floating rate notes due 2010 (the “
Initial Notes ”) under an indenture dated as of
August 25, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the “ Indenture
”) among the Company, each Guarantor (as defined in the
Indenture), the Trustee and the Collateral Agent;
In order to induce the Revolving
Credit Agent and the Revolving Credit Lenders to consent to the
Grantors incurring the Note Obligations and granting the Liens to
the Collateral Agent and in order to induce the Trustee, the
Collateral Agent and the Noteholders to consent to the Grantors
incurring the Revolving Credit Obligations and granting the Liens
to Revolving Credit Agent, the Revolving Credit Agent, on behalf of
the Revolving Credit Lenders, and the Trustee and the Collateral
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:
I. DEFINITIONS.
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 day that
the Revolving Credit Agent provides the Collateral Agent with the
notice of its election to request access pursuant to
Section 3.3(b) below and ends on the earliest of (i) the
120 th day after the Revolving Credit Agent
obtains the ability to take physical possession of, remove, or
otherwise control physical access to, or actually uses, the
Collateral located on such Mortgaged Premises following Enforcement
plus such number of days, if any, after the Revolving Credit Agent
obtains such access to such Collateral 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
Revolving Credit Primary Collateral located on such Mortgaged
Premises is sold, collected or liquidated, (iii) the date on
which the Discharge of Revolving Credit Obligations occurs, or
(iv) the date on which the Revolving Credit 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 Revolving Credit Agent or the Collateral 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 Collateral Agent and/or the Revolving Credit 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. 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 Revolving Credit Agent and the Collateral Agent.
“ Agreement ”
means this Intercreditor Agreement, as amended, restated, renewed,
extended, supplemented or otherwise modified from time to
time.
“ 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.
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“ Business Day ”
means a day other than a Saturday, Sunday or other day on which
commercial banks in New York City or Cincinnati, Ohio are
authorized or required by law to close.
“ Chattel Paper ”
means all present and future “chattel paper” (as
defined in Article 9 of the UCC).
“ Collateral ”
means any and all of the assets and property of any Grantor,
whether real, personal or mixed, constituting either Revolving
Credit Primary Collateral or Note Primary Collateral.
“ Collateral Agent
” has the meaning assigned to that term in the Preamble of
this Agreement.
“ Commodities Agreement
” means any present or future futures contract, option
contract or similar agreement or arrangement, each of which is for
the purpose of hedging the commodity risk associated with one or
more Grantor’s operations.
“ 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.
“ Copyright Licenses
” means any and all present and future agreements providing
for the granting of any right in or to Copyrights (whether such
Grantor is licensee or licensor thereunder).
“ Copyrights ”
means all present and future United States and foreign copyrights
(including Community designs), including but not limited to
copyrights in software and databases, and all Mask Works (as
defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether
registered or unregistered, and, with respect to any and all of the
foregoing: (i) all registrations and applications therefore,
(ii) all rights corresponding thereto throughout the world,
and (iii) all rights to sue for past, present and future
infringements thereof.
“ Currency Agreement
” means any present or future foreign exchange contract,
currency swap agreement, futures contract, option contract,
synthetic cap or other similar agreement or arrangement, each of
which is for the purpose of hedging the foreign currency risk
associated with one or more Grantor’s operations.
“ 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.
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“ Discharge of Note
Obligations ” means, except to the extent otherwise
expressly provided in Section 5.5:
(a) 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
Note Documents and constituting Note Obligations (other than
contingent obligations or indemnification obligations, in each case
for which no claim has been asserted); and
(b) payment in full in cash of all
other Note 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.
“ Discharge of Revolving
Credit Obligations ” means, except to the extent
otherwise expressly provided in Section 5.5:
(a) 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
Revolving Credit Loan Documents and constituting Revolving Credit
Obligations (other than contingent obligations or indemnification
obligations, in each case for which no claim has been
asserted);
(b) payment in full in cash of all
other Revolving Credit 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
Revolving Credit Obligations; and
(d) termination or cash
collateralization (in an amount and manner reasonably satisfactory
to the Revolving Credit Agent, but in no event greater than 105% of
the aggregate undrawn face amount) of all letters of credit issued
under the Revolving Credit Loan Documents and constituting
Revolving Credit 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
Revolving Credit Agent and the Collateral Agent, when a Revolving
Credit Default or Note Default, as the case may be, has occurred
and is continuing, to enforce or attempt to enforce any right to
repossess, replevy, attach, garnish, levy upon, collect the
proceeds of, foreclose
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or realize 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 under the Revolving
Credit Loan Documents, the Note Documents or under any applicable
law, by self-help repossession, by set-off, by notification to
account obligors of any Grantor, or otherwise but in all cases
excluding (i) the establishment of borrowing base reserves or
collateral ineligibles, (ii) the changing of advance rates or
advance sublimits, (iii) the imposition of a default rate or
late fee, and (iv) the collection and application of Accounts
or other monies deposited from time to time in Deposit Accounts or
Securities Accounts against the Revolving Credit Obligations
pursuant to the Revolving Credit Loan Documents; provided ,
however , the foregoing exclusion set forth in clause
(ii) shall immediately cease to apply upon the earliest of
(x) the Revolving Credit Agent’s delivery of written
notice to the Company that such exclusion no longer applies,
(y) the lapse of ten (10) consecutive Business Days in
which no “Revolving Loans” are made and no
“Letters of Credit” are issued (in each case, as
defined in the Revolving Credit Agreement) during such time period
a Revolving Credit Default has occurred and is continuing, and
(z) the termination of the Revolving Credit Commitments
pursuant to the Revolving Credit Agreement.
“ Enforcement Notice
” means a written notice delivered, at a time when a
Revolving Credit Default or Note Default has occurred and is
continuing, by either Revolving Credit Agent or the Collateral
Agent to the other announcing that an Enforcement Period has
commenced, specifying the relevant event of default, stating the
current balance of the Revolving Credit Obligations or the Note
Obligations, as the case may be, and requesting the current balance
of the Revolving Credit Obligations or Note Obligations, as the
case may be, owing to the noticed party.
“ Enforcement Period
” means the period of time following the receipt by either
the Revolving Credit Agent or the Collateral Agent of an
Enforcement Notice from the other until the earliest of (i) in
the case of an Enforcement Period commenced by the Collateral
Agent, the Discharge of Note Obligations, (ii) in the case of
an Enforcement Period commenced by Revolving Credit Agent, the
Discharge of Revolving Credit Obligations, (iii) the Revolving
Credit Agent or the Collateral Agent (as applicable) agree in
writing to terminate the Enforcement Period, or (iv) the date
on which the Revolving Credit 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 Revolving Credit
Agent or the Collateral 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.
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“ 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.
“ 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, Holdings, each Company Subsidiary and each other
Person that has or may from time to time hereafter execute and
deliver a Revolving Credit Security Document or a Note Security
Document as a grantor of a security interest (or the equivalent
thereof).
“ Hedge Agreements
” means any Interest Rate Agreement, Commodities Agreement or
a Currency Agreement entered into with a Lender Counterparty in
order to satisfy the requirements of the Revolving Credit Agreement
or otherwise in the ordinary course of one or more Grantor’s
businesses.
“ Holdings ” has
the meaning assigned to that term in the Recitals to this
Agreement.
“ Indebtedness ”
means and includes all Obligations that constitute
“Indebtedness” within the meaning of the Revolving
Credit Agreement or the Indenture, as applicable.
“ Indenture ” has
the meaning assigned to that term in the Recitals to this
Agreement.
“ Initial Notes ”
has the meaning assigned to that term in the Recitals to this
Agreement.
“ Initial Revolving Credit
Agreement ” has the meaning assigned to that term in the
Recitals to this Agreement.
“ 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
other similar case or proceeding with respect to any Grantor or
with respect to a material portion of their respective
assets;
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(c) any liquidation, dissolution,
reorganization or winding up of any Grantor, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy;
or
(d) any 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, the Copyrights, the Copyright
Licenses, the Patents, the Patent Licenses, the Trademarks, the
Trademark Licenses, the Trade Secrets, and the Trade Secret
Licenses.
“ Interest Rate
Agreement ” means any present or future interest rate
swap agreement (whether from fixed to floating or from floating to
fixed), interest rate cap agreement, interest rate collar
agreement, interest rate hedging agreement or other similar
agreement or arrangement each of which is for the purpose of
hedging the interest rate exposure associated with one or more
Grantor’s operations.
“ 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; all goods constituting inventory in
which any Grantor has an interest in mass or a joint or other
interest or right of any kind; 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 Subsidiary Stock.
“ Lender Counterparty
” means each Revolving Credit Lender or any Affiliate of a
Revolving Credit Lender counterparty to a Hedge Agreement
(including any Person who is a Revolving Credit Lender (and any
Affiliate thereof) but subsequently, after entering into a Hedge
Agreement, ceases to be a Revolving Credit Lender), including,
without limitation, each such Affiliate that enters into a joinder
agreement with the Revolving Credit 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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“ Maximum Note Debt
Amount ” is defined in the definition of Note
Obligations.
“ Maximum Revolving Credit
Debt Amount ” is defined in the definition of Revolving
Credit Obligations.
“ Mortgaged Premises
” means any real property which shall now or hereafter be
subject to a Note Mortgage and/or a Revolving Credit
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.
“ Note Claimholders
” means, at any relevant time, the holders of Note
Obligations at that time, including the Noteholders, the Trustee
and the Collateral 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
Revolving Credit General Intangibles.
“ 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.
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“ Note Obligations
” means all Obligations outstanding under the Notes and the
other Note Documents; provided that the principal amount and
stated amount of loans and letters of credit under the Notes shall
not, at the time incurred, exceed (a) $172,000,000 minus
(b) the amount of any mandatory payments of the principal
amount of the Note Obligations, including as a result of any
mandatory redemptions, repurchases, defeasance or reacquisitions of
the Note Obligations, exclusive of interest, fees, reasonable
expenses, Protective Advances, and indemnity obligations (the
“ Maximum Note Debt Amount ”). “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
Collateral other than the Revolving Credit Primary Collateral,
including, without limitation all: (a) Equipment;
(b) Real Estate Assets; (c) Intellectual Property;
(d) Note General Intangibles; (e) Investment Property
other than Investment Property constituting Revolving Credit
Primary Collateral pursuant to clause (d) of the definition of
Revolving Credit Primary Collateral; (f) documents of title
related to Equipment; (g) all letter-of-credit rights arising
out of or related to any of the property or interests in property
described in this definition; (h) letters of credit
transferred to the Collateral Agent or any Noteholder, or with
respect to which the proceeds thereof have been assigned to the
Collateral Agent or any Noteholder, or on which the Collateral
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; (i) Records, “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; 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.
“ Notes ” means,
collectively, (a) the Initial Notes and (b) 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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“ Note Standstill
Period ” has the meaning set forth in
Section 3.1(a)(1).
“ Obligations ”
means all obligations of every nature of each Grantor from time to
time owed to any agent or trustee, the Revolving Credit
Claimholders, the Note Claimholders or any of them or their
respective Affiliates, in each case under the Revolving Credit Loan
Documents, the Note Documents or Hedge Agreements, whether for
principal, interest or payments for early termination of Interest
Rate Agreements, fees, expenses, indemnification or otherwise and
all guarantees of any of the foregoing, including, without
limitation, the “Obligations”, as defined in the
Revolving Credit Agreement, and the “Indebtedness”, as
defined in the Indenture, under the Notes.
“ Patents ” shall
mean all United States and foreign patents and certificates of
invention, or similar industrial property rights, and applications
for any of the foregoing, including, but not limited to:
(i) each patent and patent application referred to from time
to time on schedules to Revolving Credit Security Documents or Note
Security Documents, (ii) all reissues, divisions,
continuations, continuations-in-part, extensions, renewals, and
reexaminations thereof, (iii) all rights corresponding thereto
throughout the world, (iv) all inventions and improvements
described therein, and (v) all rights to sue for past, present
and future infringements thereof.
“ Patent Licenses
” means all present and future agreements providing for the
granting of any right in or to Patents (whether such Grantor is
licensee or licensor thereunder).
“ Permitted Refinancing
” means any Refinancing the governing documentation of which
constitutes Permitted Refinancing Agreements.
“ Permitted Refinancing
Agreements ” means, with respect to either the Revolving
Credit Agreement or the Notes, as the case may be, 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 Revolving
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 not permitted
by Sections 5.3(a), (c) and (d).
“ Person ” means
any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental
Authority or other entity.
“ Pledged Collateral
” has the meaning set forth in
Section 5.4(a).
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“ Protective Advances
” means amounts expended by the Revolving Credit Claimholders
or the Note Claimholders 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.
“ Required Revolving
Lenders ” means the “Required Lenders” (as
defined in the Revolving Credit Agreement).
“ Revolving Credit
Agent ” has the meaning assigned to that term in the
Recitals to this Agreement.
“ Revolving Credit
Agreement ” means collectively, (a) the Initial
Revolving Credit Agreement and (b) 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 Revolving 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 Revolving Credit Agreement,
or such agreement or instrument is not a Permitted Refinancing
Agreement. Any reference to the Revolving Credit Agreement
hereunder shall be deemed a reference to any Revolving Credit
Agreement then in existence.
“ Revolving Credit
Claimholders ” means, at any relevant time, the holders
of Revolving Credit Obligations at that time, including the
Revolving Credit Lenders and the Revolving Credit Agent under the
Revolving Credit Loan Documents.
“ Revolving Credit
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 Revolving Credit
Obligations.
“ Revolving Credit
Commitments ” means the “Commitments” (as
defined in the Revolving Credit Agreement).
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“ Revolving Credit
Default ” means an “Event of Default” (as
defined in the Revolving Credit Agreement).
“ Revolving Credit General
Intangibles ” means all General Intangibles (other than
Intellectual Property) pertaining to the other items of property
included within clauses (a), (b), (c), (d), (f) and
(g) of the definition of Revolving Credit Primary Collateral,
including, without limitation, all contingent rights with respect
to warranties on Inventory or Accounts which are not yet
“payment intangibles” (as defined in Article 9 of the
UCC).
“ Revolving Credit
Lenders ” means the “Lenders” under and as
defined in the Revolving Credit Loan Documents.
“ Revolving Credit Loan
Documents ” means the Revolving Credit Agreement and the
Loan Documents (as defined in the Revolving Credit Agreement),
including Hedge Agreements entered into with a Lender Counterparty,
and each of the other agreements, documents and instruments
providing for or evidencing any other Revolving Credit Obligation,
and any other document or instrument executed or delivered at any
time in connection with any Revolving Credit Obligations, including
any intercreditor or joinder agreement among holders of Revolving
Credit 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.
“ Revolving Credit
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 Revolving Credit Obligations or under which
rights or remedies with respect to any such Liens are
governed.
“ Revolving Credit
Obligations ” means all Obligations outstanding under the
Revolving Credit Agreement and the other Revolving Credit Loan
Documents, including Hedge Agreements entered into with any Lender
Counterparty; provided that the principal amount and stated
amount of loans and letters of credit under the Revolving Credit
Agreement shall not, at the time incurred, exceed
(a) $20,000,000 minus (b) the amount of any mandatory
permanent reductions in the Revolving Commitments exclusive of
interest, fees, reasonable expenses, Protective Advances, indemnity
obligations and obligations under Hedge Agreements (the “
Maximum Revolving Credit Debt Amount ”).
“Revolving Credit 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 Revolving Credit
Loan Document whether or not the claim for such interest is allowed
as a claim in such Insolvency or Liquidation Proceeding.
“ Revolving Credit Primary
Collateral ” means all now owned or hereafter acquired
Revolving Credit Collateral which constitutes: (a) Accounts,
other than “payment
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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) Hedge Agreements;
(d) Deposit Accounts, Investment Property constituting
(i) proceeds of Revolving Credit Primary Collateral,
(ii) Securities Accounts (including all cash, marketable
securities and other funds held in or on deposit in either of the
foregoing) and (iii) the stock of the Company, 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 after an Enforcement
Notice, then (as provided in Section 3.5 below) such
Instruments, Chattel Paper or other identifiable proceeds shall be
treated as Note Primary Collateral; (e) Revolving Credit
General Intangibles; (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 Revolving Credit Agreement);
(g) letters of credit transferred to the Revolving Credit
Agent or any Revolving Credit Lender, or with respect to which the
proceeds thereof have been assigned to the Revolving Credit Agent
or any Revolving Credit Lender, or on which the Revolving Credit
Agent or any Revolving Credit 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 Revolving Credit
Agreement); (h) credit insurance with respect to any Accounts;
(i) Records, “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; 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.
“ Revolving Credit Security
Documents ” means any agreement, document or instrument
pursuant to which a Lien is granted securing any Revolving Credit
Obligations or under which rights or remedies with respect to such
Liens are governed.
“ Secured Parties
” means the Revolving Credit 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 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.
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“ Subsidiary Stock
” means all present and future equity securities of
Subsidiaries of the Company and Holdings which are
Subsidiaries.
“ Trademark Licenses
” means any and all present and future agreements providing
for the granting of any right in or to Trademarks (whether such
Grantor is licensee or licensor thereunder).
“ Trademarks ”
means all present and future United States, and foreign trademarks,
trade names, corporate names, company names, business names,
fictitious business names, Internet domain names, service marks,
certification marks, collective marks, logos, other source or
business identifiers, designs and general intangibles of a like
nature, all registrations and applications for any of the foregoing
including, but not limited to: (i) all extensions or renewals
of any of the foregoing, (ii) all of the goodwill of the
business connected with the use of and symbolized by the foregoing,
and (iii) the right to sue for past, present and future
infringement or dilution of any of the foregoing or for any injury
to goodwill.
“ Trade Secret Licenses
” means any and all present and future agreements providing
for the granting of any right in or to Trade Secrets (whether such
Grantor is licensee or licensor thereunder).
“ Trade Secrets ”
means all present and future trade secrets and other confidential
or proprietary information and know-how, regardless of whether such
Trade Secret has been reduced to a writing or other tangible form,
including all documents and things embodying, incorporating, or
referring in any way to such Trade Secret, including but not
limited to the right to sue for past, present and future
misappropriation or other violation of any Trade Secret.
“ Trustee ” has
the meaning assigned to that term in the Recitals to this
Agreement.
“ 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: (a) the Note Primary Collateral
(exclusive of the Note Primary Collateral located on each
applicable parcel of the Mortgaged Premises for which an Access
Period has commenced under Section 3.3), the period, after the
commencement of an Enforcement Period by the Revolving Credit
Agent, which begins on the day that the Revolving Credit Agent
provides the Collateral Agent with an Enforcement Notice and ends
on the earliest of (i) the 120 th day after the Revolving Credit Agent
obtains the ability to take physical possession of, remove, or
otherwise control physical access to, or actually uses, such Note
Primary Collateral following Enforcement
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plus such number of days, if any,
after the Revolving Credit Agent obtains physical access to such
Note Primary Collateral 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 Revolving Credit Primary Collateral is
sold, collected or liquidated, (iii) the date on which the
Discharge of Revolving Credit Obligations occurs, or (iv) the
date on which the Revolving Credit Default that was the subject of
the Enforcement Notice relating to such Enforcement Period has been
cured to the satisfaction of the Revolving Credit 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;
(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 shall be construed to refer to Sections 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 Ohio (unless otherwise specifically defined
herein); and
(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.
II. LIEN
PRIORITIES.
2.1 Relative Priorities .
Notwithstanding 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 Revolving
Credit Obligations granted on the Collateral and notwithstanding
any provision of any UCC, or any other applicable law, or the
Revolving Credit Loan Documents or the Note Documents or any defect
or deficiencies in, or failure to perfect,
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the Liens securing the Revolving Credit
Obligations or Note Obligations or any other circumstance
whatsoever, the Revolving Credit Agent, on behalf of itself and the
Revolving Credit Claimholders and the Collateral Agent, on behalf
of itself and the Note Claimholders hereby agree that:
(a) any Lien of the Revolving Credit
Agent on the Revolving Credit Primary Collateral securing the
Revolving Credit Obligations up to the Maximum Revolving Credit
Debt Amount, whether such Lien is now or hereafter held by or on
behalf of the Revolving Credit Agent or any Revolving Credit
Claimholders or any agent or trustee therefor, regardless of how
acquired, whether by grant, possession, statute, operation of law,
subrogation or otherwise, shall be senior in all respects and prior
to any Lien on the Revolving Credit Primary Collateral securing any
Note Obligations; and
(b) any Lien of the Collateral Agent
on the Note Primary Collateral securing the Note Obligations up to
the Maximum Note Debt Amount, whether such Lien is now or hereafter
held by or on behalf of the Collateral Agent, any Note Claimholders
or any agent or trustee therefor regardless of how 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 Revolving Credit
Obligations.
2.2 Prohibition on Contesting
Liens . Each of the Collateral Agent, for itself and on behalf
of each Note Claimholder, and the Revolving Credit Agent, for
itself and on behalf of each Revolving Credit Claimholder, agrees
that it will not (and hereby waives any right to) contest or
support any other Person in contesting, in any proceeding
(including any Insolvency or Liquidation Proceeding), the
perfection, priority, validity or enforceability of a Lien held by
or on behalf of any of the Revolving Credit Claimholders or any of
the Note Claimholders in the Collateral, or the provisions of this
Agreement; provided that nothing in this Agreement shall be
construed to prevent or impair the rights of either Agent or any
Revolving Credit Claimholder or Note Claimholder 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 and 3.2.
2.3 No New Liens . So long as
neither the Discharge of Revolving Credit Obligations nor the
Discharge of Note Obligations has occurred, subject to Article VI
hereof, 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 that the Company shall not,
and shall not permit any other Grantor to:
(a) grant or permit any additional
Liens on any asset or property to secure any Note Obligation unless
it has granted or concurrently grants a Lien on such asset or
property to secure the Revolving Credit Obligations; or
(b) grant or permit any additional
Liens on any asset or property to secure any Revolving Credit
Obligations 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
Revolving Credit Agent on behalf of the Revolving Credit
Claimholders and the Collateral 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 Revolving Credit Collateral and the Note
Collateral be identical. 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 Revolving
Credit Agent or the Collateral 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
Revolving Credit 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 Revolving Credit Loan
Documents and the Note Documents; and
(b) that the Revolving Credit
Security Documents and the Note Security Documents and guarantees
for the Revolving Credit 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.
III. ENFORCEMENT.
3.1 Exercise of Remedies —
Restrictions on the Collateral Agent and the Note Claimholders
.
(a) Until the Discharge of Revolving
Credit Obligations has occurred, whether or not any Insolvency or
Liquidation Proceeding has been commenced by or against any
Grantor, subject to Article VI hereof, the Collateral Agent and the
Note Claimholders:
(1) will not exercise or seek to
exercise any rights or remedies with respect to any Revolving
Credit Primary Collateral (including the exercise of 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 Collateral Agent or any Note Claimholder is a party) or
institute any action or proceeding with respect to such rights or
remedies (including any action of foreclosure); provided ,
however , that the Collateral Agent may exercise any or all
such rights or remedies after the passage of a period of at least
180 days has elapsed since the later of: (i) the date on which
the Collateral Agent declared the existence of a Note Default and
demanded the repayment of all the principal amount of any Note
Obligations; and (ii) the date on which the Revolving Credit
Agent received notice
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from the Collateral Agent of such
declarations of a Note Default; provided , further ,
however , that notwithstanding anything herein to the
contrary, in no event shall the Collateral Agent or any Note
Claimholder exercise any rights or remedies with respect to the
Revolving Credit Primary Collateral if, notwithstanding the
expiration of the 180 day period, the Revolving Credit Agent or
Revolving Credit Claimholders shall have, within such 180 day
period, commenced and be diligently pursuing the exercise of their
rights or remedies with respect to all or any material portion of
such Collateral (prompt notice of such exercise to be given to the
Collateral Agent) (the period during which the Collateral Agent and
the Note Claimholders may not pursuant to this
Section 3.1(a)(1) exercise or seek to exercise any rights or
remedies with respect to any Revolving Credit Primary Collateral,
the “ Note Standstill Period ”);
(2) will not contest, protest,
object to or hinder any foreclosure proceeding or action brought by
the Revolving Credit Agent or any Revolving Credit Claimholder or
any other exercise by the Revolving Credit Agent or any Revolving
Credit Claimholder of any rights and remedies relating to the
Revolving Credit Primary Collateral, including any sale, lease,
exchange, transfer or other disposition of the Revolving Credit
Primary Collateral, whether under the Revolving Credit Loan
Documents or otherwise;
(3) subject to their rights under
clause (a)(1) above and except as may be permitted in
Section 3.1(c), will not object to the forbearance by the
Revolving Credit Agent or the Revolving Credit Claimholders from
bringing or pursuing any Enforcement with respect to the Revolving
Credit Primary Collateral;
(4) subject to their rights under
clause (a)(1) above and except as may be permitted in
Section 3.1(c) and 6.3(c)(1), waive any and all rights the
Note Claimholders may have as a junior lien creditor or otherwise
to object to the manner in which the Revolving Credit Agent or the
Revolving Credit Claimholders seek to enforce or collect the
Revolving Credit Obligations or the Liens securing the Revolving
Credit Obligations granted in any of the Revolving Credit Loan
Documents or undertaken in accordance with this Agreement,
regardless of whether any action or failure to act by or on behalf
of the Revolving Credit Agent or Revolving Credit Claimholders is
adverse to the interest of the Note Claimholders; and
(5) subject to their rights under
clause (a)(1) above and except as may be permitted in
Section 3.1(c) and 6.3(c)(1), 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 Revolving Credit Agent or the Revolving Credit Claimholders
with respect to the Revolving Credit Primary Collateral as set
forth in this Agreement and the Revolving Credit 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 Revolving Credit Agent or any
Revolving Credit Claimholder with respect to the
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Revolving Credit Primary Collateral in
accordance with this Agreement after application of such proceeds
to the extent necessary to meet the requirements of a Discharge of
Revolving Credit Obligations.
(b) Until the Discharge of Revolving
Credit Obligations has occurred, whether or not any Insolvency or
Liquidation Proceeding has been commenced by or against any
Grantor, the Revolving Credit Agent and the Revolving Credit
Claimholders shall have the right to enforce rights, exercise
remedies (including set-off and the right to credit bid their debt)
and, in connection therewith (including voluntary Dispositions of
Revolving Credit Primary Collateral by the respective Grantors
after a Revolving Credit Default) make determinations regarding the
release, disposition, or restrictions with respect to the Revolving
Credit Primary Collateral without any consultation with or the
consent of the Collateral 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 Revolving Credit Obligations in accordance with the
Revolving Credit Loan Documents) of such Collateral released or
disposed of subject to the relative priorities described in
Section 2. In exercising rights and remedies with respect to
the Revolving Credit Primary Collateral, the Revolving Credit Agent
and the Revolving Credit Claimholders may enforce the provisions of
the Revolving Credit Loan 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 the Revolving Credit 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 Collateral 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;
(2) take any action (not adverse to
the priority status of the Liens on the Revolving Credit Primary
Collateral, or the rights of the Revolving Credit Agent or any of
the Revolving Credit Claimholders to exercise remedies in respect
thereof) in order to create, perfect, preserve or protect (but,
prior to the expiration of the Note Standstill Period, not enforce)
its Lien on any of the Revolving Credit 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 Revolving Credit
Primary Collateral, if any, in each case in accordance with the
terms of this Agreement;
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(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;
(5) vote on any plan of
reorganization, file any proof of claim, make other filings and
make any arguments and motions that are, in each case, in
accordance with the terms of this Agreement, with respect to the
Note Obligations and the Note Primary Collateral; 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 Collateral Agent, on behalf of
itself and the Note Claimholders, agrees that it will not take or
receive any Revolving Credit Primary Collateral or any proceeds of
such Collateral in connection with the exercise of any right 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 Revolving Credit Obligations has occurred, except as
expressly provided in Sections 3.1(a), 6.3(c)(1) and this
Section 3.1(c), the sole right of the Collateral Agent and the
Note Claimholders with respect to the Revolving Credit Primary
Collateral is to hold a Lien on such Collateral pursuant to the
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 Revolving Credit Obligations has
occurred.
(d) [Reserved.]
(e) Except as otherwise specifically
set forth in Sections 3.1(a) and (d) and 3.5 and Article 6,
the Collateral 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 any Note Claimholder becomes a judgment Lien
creditor in respect of Revolving Credit Primary Collateral as a
result of its enforcement of its rights as an unsecured creditor
with respect to the Note Obligations, such judgment Lien shall be
subject to the terms of this Agreement for all purposes (including
in relation to the Revolving Credit Obligations) as the other Liens
securing the Note Obligations are subject to this
Agreement.
(f) Except as provided in
Section 5.3(d), nothing in this Agreement shall prohibit the
receipt by the Collateral Agent or any 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 Collateral Agent
or any Note Claimholders of rights or remedies as a secured
creditor (including set-off with respect to Revolving Credit
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 Revolving Credit Agent or the Revolving Credit
Claimholders may have against the Grantors under the Revolving
Credit Loan Documents.
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3.2 Exercise of Remedies —
Restrictions on the Revolving Credit Agent and Revolving Credit
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 Article VI hereof, the Revolving Credit Agent
and the Revolving Credit Claimholders:
(1) will not exercise or seek to
exercise any rights or remedies with respect to any Note Primary
Collateral (including the exercise of 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 Revolving Credit Agent or any Revolving Credit Claimholder is a
party) or institute any action or proceeding with respect to such
rights or remedies (including any action of foreclosure);
provided , however , that the Revolving Credit Agent
may exercise the rights provided for in Section 3.3 (with
respect to any Access Period) and Section 3.4 (with respect
any Access Period or Use Period);
(2) will not contest, protest,
object to or hinder any foreclosure proceeding or action brought by
the Collateral Agent or any Note Claimholder or any other exercise
by the Collateral Agent or any Note Claimholder of any rights and
remedies relating to the Note Primary Collateral, including any
sale, lease, exchange, transfer or other disposition of the Note
Primary Collateral, whether under the Note Documents or otherwise
subject to the Collateral Agent’s and the Note
Claimholders’ obligations under Sections 3.3 and 3.4;
and
(3) subject to their rights under
clause (a)(1) above and except as may be permitted in
Section 3.2(c), will not object to the forbearance by the
Collateral Agent or the Note Claimholders from bringing or pursuing
any Enforcement with respect to the Noteholder Primary
Collateral;
(4) Subject to Sections 3.2(a) and
(c) and Sections 3.3, 3.4, 3.5, and 6.3(c)(2), waive any and
all rights the Revolving Credit Claimholders may have as a junior
lien creditor or otherwise to object to the manner in which the
Collateral Agent or the Note Claimholders seek to enforce or
collect the Note Obligations or the Liens securing the Note
Obligations granted in any of the Note Documents or undertaken in
accordance with this Agreement, regardless of whether any
action
