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INTERCREDITOR AGREEMENT
This
Intercreditor Agreement (as amended, supplemented, waived or
otherwise modified pursuant to the terms hereof, this “
Agreement ”) dated as of July 31, 2007, among
CITICORP NORTH AMERICA, INC., in its capacities as administrative
agent and collateral agent (together with its successors and
assigns in such capacities, the “ Revolving Credit
Agent ”) for the financial institutions party from time
to time to the Revolving Credit Agreement referred to below (such
financial institutions, together with their successors, assigns and
transferees, the “ Revolving Lenders ” and,
together with affiliates thereof in their capacity as Revolving
Credit Cash Management Affiliates or Revolving Credit Hedging
Affiliates (in each case, as hereinafter defined), the “
Revolving Creditors ”), CITICORP NORTH AMERICA, INC.,
in its capacities as administrative agent and collateral agent
(together with its successors and assigns in such capacities, the
“ First Lien Term Loan Agent ”) for the
financial institutions party from time to time to the First Lien
Term Loan Credit Agreement referred to below (such financial
institutions, together with their successors, assigns and
transferees, the “ First Lien Term Loan Lenders
” and, together with affiliates thereof in their capacity as
First Lien Term Loan Cash Management Affiliates or First Lien Term
Loan Hedging Affiliates (in each case, as hereinafter defined), the
“ First Lien Term Loan Creditors ”) and CITICORP
NORTH AMERICA, INC., in its capacities as administrative agent and
collateral agent (together with its successors and assigns in such
capacities, the “ Second Lien Term Loan Agent ”)
for the financial institutions party from time to time to the
Second Lien Term Loan Credit Agreement referred to below (such
financial institutions, together with their successors, assigns and
transferees, the “ Second Lien Term Loan Lenders
”). Capitalized terms used herein without other definition
are used as defined in Article I hereof.
RECITALS
A. Pursuant to that certain Second Amended and Restated
Revolving Credit Agreement dated as of the date hereof by and among
TOUSA, Inc., a Delaware corporation (together with its successors
and assigns, the “ Administrative Borrower ”),
the subsidiaries of the Administrative Borrower party thereto from
time to time as borrowers (together with their respective
successors and assigns, the “ Subsidiary Borrowers
” and, together with the Administrative Borrower, the “
Borrowers ”), the Revolving Lenders, and the Revolving
Credit Agent (as such agreement may be amended, supplemented,
restated or otherwise modified from time to time, and as more
particularly defined herein, the “ Revolving Credit
Agreement ”), the Revolving Lenders have agreed to amend
and restate the First Amended and Restated Credit Agreement dated
as of January 30, 2007 to modify certain provisions thereof
and to permit the entry into and borrowing under the First Lien
Term Loan Credit Agreement and the Second Lien Term Loan Credit
Agreement, and to continue to make certain loans and other
financial accommodations to or for the benefit of the
Borrowers.
B. As
a condition to the effectiveness of the amendment and restatement
of the Revolving Credit Agreement and to secure the obligations of
the Borrowers (the Borrowers and each other Subsidiary of the
Administrative Borrower that is now or hereafter becomes a party to
any Revolving Credit Document, together, the “ Revolving
Credit Parties ”) under and in connection with the
Revolving Credit Documents, the Revolving Credit Parties have
granted to the Revolving Credit Agent (for the benefit of the
Revolving Creditors) Liens on the Collateral, as more particularly
provided therein.
C. Pursuant to that certain first lien term loan credit
agreement dated as of the date hereof by and among the
Administrative Borrower and the other Borrowers, the First Lien
Term Loan Lenders and the First Lien Term Loan Agent (as such
agreement may be amended, supplemented, restated or otherwise
modified from time to time, and as more particularly defined
herein, the “ First Lien Term Loan Agreement ”),
the First Lien Term Loan Creditors have agreed to make certain
loans and other financial accommodations to or for the benefit of
the Borrowers, as more particularly provided therein.
D. As
a condition to the effectiveness of the First Lien Term Loan
Agreement and to secure the obligations of the Borrowers (the
Borrowers and each other Subsidiary of the Administrative Borrower
that is now or hereafter becomes a party to any First Lien Term
Loan Document, together, the “ First Lien Term Loan Credit
Parties ”) under and in connection with the First Lien
Term Loan Documents, the First Lien Term Loan Credit Parties have
granted to the First Lien Term Loan Agent (for the benefit of the
First Lien Term Loan Creditors) Liens on the Collateral, as more
particularly provided therein.
E. Pursuant to that certain second lien term loan credit
agreement dated as of the date hereof by and among the
Administrative Borrower and the other Borrowers, the Second Lien
Term Loan Lenders and the Second Lien Term Loan Agent (as such
agreement may be amended, supplemented, restated or otherwise
modified from time to time, and as more particularly defined
herein, the “ Second Lien Term Loan Agreement
”), the Second Lien Term Loan Lenders have agreed to make
certain loans to or for the benefit of the Borrowers, as more
particularly provided therein.
F. As
a condition to the effectiveness of the Second Lien Term Loan
Agreement and to secure the obligations of the Borrowers (the
Borrowers and each other Subsidiary of the Administrative Borrower
that is now or hereafter becomes a party to any Second Lien Term
Loan Document, together, the “ Second Lien Term Loan
Credit Parties ”) under and in connection with the Second
Lien Term Loan Documents, the Second Lien Term Loan Credit Parties
have granted to the Second Lien Term Loan Agent (for the benefit of
the Second Lien Term Loan Lenders) Liens on the Collateral, as more
particularly provided therein.
G. Each of the Revolving Credit Agent (on behalf of the
Revolving Creditors), the First Lien Term Loan Agent (on behalf of
the First Lien Term Loan Creditors) and the Second Lien Term Loan
Agent (on behalf of the Second Lien Term Loan Lenders) and, by
their acknowledgment hereof, the Revolving Credit Parties, the
First Lien Term Loan Credit Parties and the Second Lien Term Loan
Credit Parties, desire to agree to the relative priority of Liens
on the Collateral and certain other rights, priorities and
interests as provided herein.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained and other good and valuable
consideration, the existence and sufficiency of which is expressly
recognized by all of the parties hereto, the parties agree as
follows:
SECTION
1. Definitions .
The
following terms, as used herein, have the following meanings:
“
Administrative Borrower ” has the meaning set forth in
the recitals.
“
Agent ” means any First Priority Agent or the Second
Lien Term Loan Agent.
“
Agreement ” has the meaning set forth in the
preamble.
“
Bankruptcy Code ” means the United States Bankruptcy
Code (11 U.S.C. §101 et seq.), as amended from time to
time.
“
Borrowers ” has the meaning set forth in the
recitals.
“
Cash Management Obligations ” means any agreement or
arrangement to provide cash management services, including
treasury, depository, overdraft, credit or debit card, electronic
funds transfer and other cash management arrangements.
“
Collateral ” means all property and assets that is or
is intended to be subject to any Lien in favor of any Agent for the
benefit of any Secured Party.
“
Credit Parties ” means the Revolving Credit Parties,
the First Lien Term Loan Credit Parties and the Second Lien Term
Loan Credit Parties, and “ Credit Party ” means
any of them.
“
Enforcement Action ” means, with respect to the First
Priority Obligations or the Second Priority Obligations, any demand
for payment or acceleration thereof, the exercise of any rights and
remedies with respect to any Collateral securing such obligations
or the commencement or prosecution of enforcement of any of the
rights and remedies under, as applicable, the First Priority
Documents or the Second Priority Documents, or applicable law,
including without limitation the exercise of any rights of set-off
or recoupment, and the exercise of any rights or remedies of a
secured creditor under the Uniform Commercial Code of any
applicable jurisdiction or under the Bankruptcy Code.
“
First Lien Term Loan Agent ” has the meaning set forth
in the preamble.
“
First Lien Term Loan Agreement ” has the meaning set
forth in the recitals.
“
First Lien Term Loan Cash Management Affiliate ” means
any First Lien Term Loan Lender or any affiliate of any First Lien
Term Loan Lender that provides services associated with Cash
Management Obligations to any Credit Party with the obligations of
such Credit Party thereunder being secured by one or more First
Lien Term Loan Collateral Documents.
“
First Lien Term Loan Collateral Documents ” means the
“Collateral Documents” as defined in the First Lien
Term Loan Agreement, and any other document designated under the
First Lien Term Loan Agreement as a “First Lien Term Loan
Collateral Document” for purposes of this Agreement.
“
First Lien Term Loan Credit Parties ” has the meaning
set forth in the recitals.
“
First Lien Term Loan Creditors ” has the meaning set
forth in the preamble.
“
First Lien Term Loan Documents ” means the First Lien
Term Loan Agreement and the First Lien Term Loan Collateral
Documents.
“
First Lien Term Loan Hedging Affiliate ” means any
First Lien Term Loan Lender or any affiliate of any First Lien Term
Loan Lender that is party to a Hedging Contract with any Credit
Party with the obligations of such Credit Party thereunder being
secured by one or more First Lien Term Loan Collateral
Documents.
“
First Lien Term Loan Lenders ” has the meaning set
forth in the preamble.
“
First Lien Term Loan Obligations ” means (i) all
principal of and interest (including without limitation any
Post-Petition Interest) and premium (if any) on all loans made
pursuant to the First Lien Term Loan Agreement, (ii) all
reimbursement obligations (if any) and interest thereon (including
without limitation any Post-Petition Interest) with respect to any
letter of credit or similar instruments issued pursuant to the
First Lien Term Loan Agreement, (iii) all Hedging Obligations
of any Credit Party owed to a First Lien Term Loan Creditor (or any
of its affiliates), (iv) all Cash Management Obligations of
any Credit Party owed to a First Lien Term Loan Creditor (or any of
its affiliates) and (v) all fees, expenses and other amounts
payable from time to time pursuant to the First Lien Term Loan
Documents, in each of the foregoing cases whether or not allowed or
allowable against any Credit Party or its estate in an Insolvency
Proceeding. To the extent any payment with respect to any First
Lien Term Loan Obligation (whether by or on behalf of any Credit
Party, as proceeds of security, enforcement of any right of setoff
or otherwise) is declared to be a fraudulent conveyance or a
preference in any respect, set aside or required to be paid to a
debtor in possession, any Second Priority Secured Party, receiver
or similar Person, then the obligation or part thereof originally
intended to be satisfied shall, for the purposes of this Agreement
and the rights and obligations of the First Priority Secured
Parties and the Second Priority Secured Parties, be deemed to be
reinstated and outstanding as if such payment had not occurred.
“
First Priority Agent ” means either of the Revolving
Credit Agent or the First Lien Term Loan Agent.
“
First Priority Collateral Documents ” means the First
Lien Term Loan Collateral Documents and the Revolving Credit
Collateral Documents.
“
First Priority Documents ” means the First Lien Term
Loan Documents and the Revolving Credit Documents.
“
First Priority Obligations ” means the First Lien Term
Loan Obligations and the Revolving Credit Obligations.
“
First Priority Obligations Payment Date ” means the
first date on which (i) all First Priority Obligations (other
than those that constitute Unasserted Contingent Obligations) have
been indefeasibly paid in cash in full (or cash collateralized or
defeased in accordance with the terms of the First Priority
Documents), (ii) all commitments to extend credit under all
First Priority Documents have been terminated, (iii) there are
no outstanding letters of credit or similar instruments issued
under the First Priority Documents (other than such as have been
cash collateralized or defeased in accordance with the terms of the
First Priority Collateral Documents), and (iv) each First
Priority Agent has delivered a written notice to the Second Lien
Term Loan Agent stating that the events described in clauses (i),
(ii) and (iii) have occurred to the satisfaction of the
First Priority Secured Parties represented thereby.
“
First Priority Representative ” means any First
Priority Agent or another Person designated by the Revolving
Creditors to act on behalf of the First Priority Secured Parties
hereunder, acting in such capacity and to act on behalf of the
First Priority Agents as mortgagee, beneficiary or similar capacity
under any First Priority Security Document. The First Priority
Representative shall be the Revolving Credit Agent at all times
unless another Person is designated by the Revolving Creditors to
act as the First Priority Representative. The First Priority
Representative shall constitute an agent of each First Priority
Agent for purposes of Section 9.1(c) of the First Lien Term
Loan Agreement, Section 9.1(c) of the Revolving Credit
Agreement and any corresponding provision of any other First
Priority Document. The First Priority Representative shall act at
the direction of the Requisite First Priority Secured Parties.
“
First Priority Secured Parties ” means the First
Priority Agents and all of the holders of First Priority
Obligations.
“
First Priority Secured Party Exposures ” means, with
respect to the First Priority Secured Parties that are First Lien
Term Loan Lenders or Revolving Lenders, the sum of the commitments
of such Persons thereunder to make loans or issue (or participate
in) letters of credit thereunder (or, in the case of the
termination or expiration of such commitments, the sum of the
aggregate principal amount of loans and face amount of letters of
credit outstanding thereunder).
“
Hedging Contracts ” means all Interest Rate Contracts,
foreign exchange contracts, currency swap or option agreements,
forward contracts, commodity swap, purchase or option agreements,
other commodity price hedging arrangements, and all other similar
agreements or arrangements designed to alter the risks of any
Person arising from fluctuations in interest rates, currency values
or commodity prices.
“
Hedging Obligations ” means any obligations under or
with respect to Hedging Contracts.
“
Insolvency Proceeding ” means any proceeding in
respect of bankruptcy, insolvency, winding up, receivership,
dissolution or assignment for the benefit of creditors, in each of
the foregoing events whether under the Bankruptcy Code or any
similar federal, state or foreign bankruptcy, insolvency,
reorganization, receivership or similar law.
“
Interest Rate Contracts ” means all interest rate swap
agreements, interest rate cap agreements, interest rate collar
agreements and interest rate insurance.
“
Lien ” means, with respect to any property, asset or
right, any mortgage, lien, pledge, collateral assignment, charge,
security interest, levy, execution, seizure, attachment,
garnishment, or other encumbrance of any kind in the nature of the
foregoing in respect of such property, asset or right, whether or
not choate, vested or perfected.
“
Person ” means any person, individual, sole
proprietorship, partnership, joint venture, corporation, limited
liability company, unincorporated organization, association,
institution, entity, party, including any government and any
political subdivision, agency or instrumentality thereof.
“
Post-Petition Interest ” means any interest, fees,
expenses or other amount, including without limitation default
interest, that accrues or would have accrued after the commencement
of any Insolvency Proceeding, whether or not allowed or allowable
in any such Insolvency Proceeding.
“
Purchase Event ” has the meaning set forth in
Section 5.12.
“
Requisite First Priority Secured Parties ” means the
First Priority Secured Parties whose First Priority Secured Party
Exposures represent at least a majority of the outstanding First
Priority Secured Party Exposures of all First Priority Secured
Parties acting as one class.
“
Revolving Credit Agent ” has the meaning set forth in
the preamble.
“
Revolving Credit Agreement ” has the meaning set forth
in the recitals.
“
Revolving Credit Cash Management Affiliate ” means any
Revolving Lender or any affiliate of any Revolving Lender that
provides services associated with Cash Management Obligations to
any Credit Party with the obligations of such Credit Party
thereunder being secured by one or more Revolving Credit Collateral
Documents.
“
Revolving Credit Collateral Documents ” means the
“Collateral Documents” as defined in the Revolving
Credit Agreement, and any other document designated under the
Revolving Credit Agreement as a “Revolving Collateral
Document” for purposes of this Agreement.
“
Revolving Credit Documents ” means the Revolving
Credit Agreement and the Revolving Credit Collateral Documents.
“
Revolving Credit Hedging Affiliate ” means any
Revolving Lender or any affiliate of any Revolving Lender that is
party to a Hedging Contract with any Credit Party with the
obligations of such Credit Party thereunder being secured by one or
more Revolving Credit Collateral Documents.
“
Revolving Credit Obligations ” means (i) all
principal of and interest (including without limitation any
Post-Petition Interest) and premium (if any) on all loans made
pursuant to the Revolving Credit Agreement, (ii) all
reimbursement obligations (if any) and interest thereon (including
without limitation any Post-Petition Interest) with respect to any
letter of credit or similar instruments issued pursuant to the
Revolving Credit Agreement, (iii) all Hedging Obligations of
any Credit Party owed to a Revolving Creditor (or any of its
affiliates), (iv) all Cash Management Obligations of any
Credit Party owed to a Revolving Creditor (or any of its
affiliates) and (v) all fees, expenses and other amounts
payable from time to time pursuant to the Revolving Credit
Documents, in each of the foregoing cases whether or not allowed or
allowable against any Credit Party or its estate in an Insolvency
Proceeding. To the extent any payment with respect to any Revolving
Credit Obligation (whether by or on behalf of any Credit Party, as
proceeds of security, enforcement of any right of setoff or
otherwise) is declared to be a fraudulent conveyance or a
preference in any respect, set aside or required to be paid to a
debtor in possession, any Second Priority Secured Party, receiver
or similar Person, then the obligation or part thereof originally
intended to be satisfied shall, for the purposes of this Agreement
and the rights and obligations of the First Priority Secured
Parties and the Second Priority Secured Parties, be deemed to be
reinstated and outstanding as if such payment had not occurred.
“
Revolving Credit Parties ” has the meaning set forth
in the recitals.
“
Revolving Creditors ” has the meaning set forth in the
preamble.
“
Revolving Lenders ” has the meaning set forth in the
preamble.
“
Second Lien Collateral Document ” means
“Collateral Documents” as defined in the Second Lien
Term Loan Agreement and any document designated under the Second
Lien Term Loan Agreement as a “Second Priority Collateral
Document” for purposes of this Agreement.
“
Second Lien Term Loan Agent ” has the meaning set
forth in the preamble.
“
Second Lien Term Loan Agreement ” has the meaning set
forth in the recitals.
“
Second Lien Term Loan Credit Parties ” has the meaning
set forth in the recitals.
“
Second Lien Term Loan Lenders ” has the meaning set
forth in the preamble.
“
Second Priority Documents ” means the Second Lien Term
Loan Agreement and each Second Lien Loan Document.
“
Second Priority Obligations ” means (i) all
principal of and interest (including without limitation any
Post-Petition Interest) and premium (if any) on all indebtedness
under the Second Lien Term Loan Agreement, and (ii) all fees,
expenses and other amounts payable from time to time pursuant to
the Second Priority Documents, in each case whether or not allowed
or allowable in an Insolvency Proceeding. To the extent any payment
with respect to any Second Priority Obligation (whether by or on
behalf of any Credit Party, as proceeds of security, enforcement of
any right of setoff or otherwise) is declared to be a fraudulent
conveyance or a preference in any respect, set aside or required to
be paid to a debtor in possession, any First Priority Secured
Party, receiver or similar Person, then the obligation or part
thereof originally intended to be satisfied shall, for the purposes
of this Agreement and the rights and obligations of the First
Priority Secured Parties and the Second Priority Secured Parties,
be deemed to be reinstated and outstanding as if such payment had
not occurred.
“
Second Priority Obligations Payment Date ” means the
first date on which (i) the Second Priority Obligations (other
than those that constitute Unasserted Contingent Obligations) have
been indefeasibly paid in cash in full (or cash collateralized or
defeased in accordance with the terms of the Second Priority
Documents and (ii) all commitments to extend credit under the
Second Priority Documents have been terminated.
“
Second Priority Secured Parties ” means the Second
Lien Term Loan Agent and all holders of Second Priority
Obligations.
“
Secured Parties ” means the First Priority Secured
Parties and the Second Priority Secured Parties.
“
Standstill Period ” has the meaning set forth in
Section 3.2.
“
Subsidiary Borrowers ” has the meaning set forth in
the recitals.
“
Unasserted Contingent Obligations ” shall mean, at any
time, obligations for taxes, costs, indemnifications,
reimbursements, damages and other liabilities (excluding
(i) the principal of, and interest and premium (if any) on,
and fees and expenses relating to, any obligation and
(ii) contingent reimbursement obligations in respect of
amounts that may be drawn under outstanding letters of credit) in
respect of which no written assertion of liability and no written
claim or demand for payment has been made (and, in the case of
obligations for indemnification, no notice for indemnification has
been issued by the indemnitee) at such time.
“
Uniform Commercial Code ” or “ UCC
” means the Uniform Commercial Code as in effect from time to
time in the State of New York.
SECTION
2. Lien Priorities .
2.1
Subordination of Liens as Between First Priority Secured Parties
and Second Priority Secured Parties . Any and all Liens now
existing or hereafter created or arising in favor of any Second
Priority Secured Party securing any Second Priority Obligations,
regardless of how acquired, whether by grant, statute, operation of
law, subrogation or otherwise, are expressly junior in priority,
operation and effect to any and all Liens now existing or hereafter
created or arising in favor of the First Priority Secured Parties
securing all or a portion of the First Priority Obligations,
notwithstanding (i) anything to the contrary contained in any
agreement or filing to which any Second Priority Secured Party may
now or hereafter be a party, and regardless of the time, order or
method of grant, attachment, recording or perfection (or
non-perfection) of any financing statements or other security
interests, assignments, pledges, deeds, mortgages and other liens,
charges or encumbrances or any defect or deficiency or alleged
defect or deficiency in any of the foregoing, (ii) any
provision of the UCC or any applicable law or any First Priority
Document or Second Priority Document or any other circumstance
whatsoever and (iii) the fact that any such Liens in favor of
any First Priority Secured Party securing any of the First Priority
Obligations are (x) subordinated to any Lien securing any
obligation of any Credit Party other than the Second Priority
Obligations or (y) otherwise subordinated, voided, avoided,
invalidated or lapsed.
2.2
Equal Priority of Liens Among First Priority Secured Parties
. Except as may be separately otherwise agreed in writing by and
between the First Priority Agents (each acting on its own behalf
and on behalf of the other First Priority Secured Parties
represented thereby), any and all Liens now existing or hereafter
created or arising in favor of any First Priority Secured Party
securing any First Priority Obligations, regardless of how
acquired, whether by grant, statute, operation of law, subrogation
or otherwise, are expressly pari passu with and equal in
priority, operation and effect to any and all Liens now existing or
hereafter created or arising in favor of any other First Priority
Secured Party securing all or a portion of the First Priority
Obligations, notwithstanding (i) anything to the contrary
contained in any agreement or filing to which any First Priority
Secured Party may now or hereafter be a party, and regardless of
the time, order or method of grant, attachment, recording or
perfection (or non-perfection) of any financing statements or other
security interests, assignments, pledges, deeds, mortgages and
other liens, charges or encumbrances or any defect or deficiency or
alleged defect or deficiency in any of the foregoing, (ii) any
provision of the UCC or any applicable law or any First Priority
Document or any other circumstance whatsoever and (iii) the
fact that any such Liens in favor of any First Priority Secured
Party securing any of the First Priority Obligations are
(x) subordinated to any Lien securing any obligation of any
Credit Party or (y) otherwise subordinated, voided, avoided,
invalidated or lapsed.
2.3
Acknowledgement of Liens .
(a) The First Lien Term Loan Agent, for and on behalf of
itself and the First Lien Term Loan Creditors, acknowledges and
agrees that (i) concurrently herewith, the Revolving Credit
Agent, for the benefit of itself and the Revolving Creditors, has
been granted first priority Liens upon all of the Collateral in
which the First Lien Term Loan Agent has been granted first
priority Liens, and the First Lien Term Loan Agent hereby consents
thereto, and (ii) concurrently herewith, the Second Lien Term
Loan Agent, for the benefit of itself and the Second Lien Term Loan
Lenders, has been granted second priority Liens upon all of the
Collateral in which the First Lien Term Loan Agent has been granted
first priority Liens, and the First Lien Term Loan Agent hereby
consents thereto.
(b) The Revolving Credit Agent, for and on behalf of itself
and the Revolving Creditors, acknowledges and agrees that
(i) concurrently herewith, the First Lien Term Loan Agent, for
the benefit of itself and the First Lien Term Loan Creditors, has
been granted first priority Liens upon all of the Collateral in
which the Revolving Credit Agent has been granted first priority
Liens, and the Revolving Credit Agent hereby consents thereto, and
(ii) concurrently herewith, the Second Lien Term Loan Agent,
for the benefit of itself and the Second Lien Term Loan Lenders,
has been granted second priority Liens upon all of the Collateral
in which the Revolving Credit Agent has been granted first priority
Liens, and the Revolving Credit Agent hereby consents thereto.
(c) The Second Lien Term Loan Agent, for and on behalf of
itself and the Second Lien Term Loan Lenders, acknowledges and
agrees that concurrently herewith, each of the Revolving Credit
Agent, for the benefit of itself and the Revolving Creditors, and
the First Lien Term Loan Agent, for the benefit of itself and the
First Lien Term Loan Creditors, have been granted first priority
Liens upon all of the Collateral in which the Second Lien Term Loan
Agent has been granted second priority Liens, and the Second Lien
Term Loan Agent hereby consents thereto.
(d) The subordination of Liens by the Second Lien Term Loan
Agent in favor of the First Priority Agents shall not be deemed to
subordinate the Liens of the Second Lien Term Loan Agent to the
Liens of any other Person. The provision of pari passu
status and equal priority as between Liens of each First Priority
Agent and the Liens of each other First Priority Agent, in each
case as set forth herein, shall not be deemed to provide that the
Liens of the First Priority Agent will be pari passu or of
equal priority with the Liens of any other Person, or to
subordinate any Liens of any First Priority Agent to the Liens of
any Person.
2.4
Waiver of Right to Contest Liens . No First Priority Secured
Party or Second Priority Secured Party shall object to or contest,
or support any other Person in contesting or objecting to, in any
proceeding (including without limitation, any Insolvency
Proceeding), the validity, extent, perfection, priority (as between
the First Priority Secured Parties and the Second Priority Secured
Parties), parity (as among the First Priorities Secured Parties) or
enforceability of any security interest in the Collateral granted
to any other First Priority Secured Party or Second Priority
Secured Party. Notwithstanding any failure by any First Priority
Secured Party or Second Priority Secured Party to perfect its
security interests in the Collateral or any avoidance, invalidation
or subordination by any third party or court of competent
jurisdiction of the security interests in the Collateral granted to
the First Priority Secured Parties or the Second Priority Secured
Parties, the priority and rights as between the First Priority
Secured Parties and the Second Priority Secured Parties, and as
among the First Priority Secured Parties, with respect to the
Collateral shall be as set forth herein.
2.5
Nature of Revolving Credit Obligations; Refinancing .
(a) Each of the First Lien Term Loan Agent, on behalf of
itself and the other First Lien Term Loan Creditors, and the Second
Lien Term Loan Agent, on behalf of itself and the other Second
Priority Secured Parties, acknowledges that the Revolving Credit
Obligations are revolving in nature and that the amount thereof
that may be outstanding at any time or from time to time may be
increased or reduced and subsequently reborrowed, and that the
terms of the Revolving Credit Obligations may be modified, extended
or amended from time to time, and that the aggregate amount of the
Revolving Credit Obligations may be increased, replaced or
refinanced in accordance with Section 6.1 hereof, in each case
without notice to or consent by the First Lien Term Loan Creditors
or the Second Priority Secured Parties and without affecting the
provisions hereof.
(b) The lien priorities and sharing provided in
Sections 2.1 and 2.2 hereof shall not be altered or otherwise
affected by any amendment, modification, supplement, extension,
repayment, reborrowing, increase, replacement, renewal, restatement
or refinancing of any of the First Priority Obligations or the
Second Priority Obligations, or any portion thereof in accordance
with Sections 6.1 and 6.2 hereof, as applicable.
2.6
Agreements Regarding Actions To Perfect Liens; Agent for
Perfection .
(a) The Second Lien Term Loan Agent, on behalf of itself and
the other Second Priority Secured Parties, agrees that all UCC-1
financing statements, patent, trademark or copyright filings or
other filings or recordings filed or recorded by or on behalf of
the Second Lien Term Loan Agent or any other Second Priority
Secured Party shall be in form satisfactory to each First Priority
Agent and that all Second Lien Collateral Documents (other than any
UCC-1 financing statements or as provided in clause (b)) shall
contain the following notation (or language to similar effect):
“The lien
granted to Citicorp North America, Inc. as Second Lien Term Loan
Agent under this Agreement, and the exercise of remedies hereunder
by the Second Lien Term Loan Agent, are subject to the provisions
of the Intercreditor Agreement dated as of July 31, 2007 among
Citicorp North America, Inc. as First Lien Term Loan Agent,
Citicorp North America, Inc. as Revolving Credit Agent and Citicorp
North America, Inc., as Second Lien Term Agent, as amended from
time to time. In the event of any conflict between the terms of the
Intercreditor Agreement and this Agreement, the terms of the
Intercreditor Agreement shall govern and control.”
(b) The Second Lien Term Loan Agent, on behalf of itself and
the other Second Priority Secured Parties, agrees that all
mortgages, deeds of trust, deeds and similar instruments
(collectively, “ mortgages ”) now or hereafter
filed against real property in favor of or for the benefit of the
Second Lien Term Loan Agent, shall be in form satisfactory to each
First Priority Agent and shall contain the following notation (or
language to similar effect):
“The lien
created by this mortgage on the property described herein is junior
and subordinate to the lien on such property created by any
mortgage, deed of trust or similar instrument now or hereafter
granted to Citicorp North America, Inc., as First Priority
Representative [, as Revolving Credit Agent/First Lien Term Loan
Agent], and its successors and assigns, in such property, in
accordance with the provisions of the Intercreditor Agreement dated
as of July 31, 2007 among Citicorp North America, Inc., as
First Lien Term Loan Agent, Citicorp North America, Inc., as
Revolving Credit Agent and Citicorp North America, Inc., as Second
Lien Term Loan Agent, as amended from time to time. In the event of
any conflict between the terms of the Intercreditor Agreement and
this mortgage, the terms of the Intercreditor Agreement shall
govern and control.”
(c) The First Priority Representative and each First Priority
Agent hereby acknowledges that, to the extent that it holds (or a
third party holds on its behalf) physical possession of or
“control” (as defined in the Uniform Commercial Code)
over any Collateral pursuant to the First Priority Collateral
Documents, such possession or control is also for the benefit of
(i) both of the First Priority Agents and the First Priority
Secured Parties represented thereby and (ii) the Second Lien
Term Loan Agent and the other Second Priority Secured Parties, in
each case solely to the extent required to perfect their security
interest in such Collateral. Nothing in the preceding sentence
shall be construed to impose any duty, fiduciary or otherwise, on
the First Priority Representative or any First Priority Agent (or
any third party acting on behalf of any of them) with respect to
such Collateral or provide the First Priority Representative or any
First Priority Agent, the First Priority Secured Parties
represented thereby, the Second Lien Term Loan Agent or any other
Second Priority Secured Party with any rights with respect to such
Collateral beyond those specified in this Agreement, the First
Priority Collateral Documents, the Second Lien Collateral Documents
and the UCC, each, as applicable; provided that subsequent
to the First Priority Obligations Payment Date, the First Priority
Representative and each First Priority Agent shall (x) deliver
to the Second Lien Term Loan Agent, at the Administrative
Borrower’s sole cost and expense, the Collateral in its
possession or control together with any necessary endorsements to
the extent required by the Second Lien Collateral Documents or
(y) direct and deliver such Collateral as a court of competent
jurisdiction otherwise directs, and provided further that
the provisions of this Agreement are intended solely to govern the
respective Lien priorities as among the First Priority Secured
Parties and as between the First Priority Secured Parties and the
Second Priority Secured Parties, and shall not impose on the First
Priority Secured Parties any obligations in respect of the
disposition of any Collateral (or any proceeds thereof) that would
conflict with prior perfected Liens or any claims thereon in favor
of any other Person that is not a Secured Party.
(d) In the event that any Secured Party receives any
Collateral or proceeds of the Collateral in violation of the terms
of this Agreement prior to the First Priority Obligations Payment
Date, then such Secured Party shall promptly pay over such Proceeds
or Collateral to the First Priority Representative for the benefit
of the First Priority Secured Parties in accordance with
Section 4 and the relevant First Priority Documents.
2.7 No
New Liens .
(a) So long as the First Priority Obligations Payment Date has
not occurred, no Second Priority Secured Party shall acquire or
hold any Lien on any assets of any Credit Party securing any Second
Priority Obligation which assets are not also subject to the first
priority Lien of each First Priority Agent under the First Priority
Documents. If any Second Priority Secured Party shall (nonetheless
and in breach hereof) acquire or hold any Lien on any assets of any
Credit Party securing any Second Priority Obligation which assets
are not also subject to the first priority Lien of each First
Priority Agent under the First Priority Documents, then the Second
Lien Term Loan Agent (or the relevant Second Priority Secured
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