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Exhibit
10.3
EXECUTION
VERSION
I
NTERCREDITOR A
GREEMENT
INTERCREDITOR AGREEMENT (this
“ Agreement ”) dated as of February 13,
2008, between GENERAL ELECTRIC CAPITAL CORPORATION (“
GECC ”), as collateral agent for the Term Loan Secured
Parties referred to herein, and GECC, as collateral agent for the
Revolving Secured Parties referred to herein, and acknowledged by
CHILL HOLDINGS, INC., a Delaware corporation (“
Holdings ”), CHILL ACQUISITION, INC., a Delaware
corporation (which on the Closing Date (as such term is defined in
the Term Loan Credit Agreement) shall be merged with and into
GOODMAN GLOBAL, INC., a Delaware corporation (the “
Company ”), with the Company surviving such merger as
the borrower) (the “ Borrower ”), and certain
other subsidiaries of the Borrower.
W I
T N E S
S E T H
:
W HEREAS ,
reference is made to the Credit Agreements (such term, and each
other capitalized term used and not otherwise defined herein,
having the meaning assigned to it in Section 1), under which
the lenders referred to therein have extended and agreed to extend
credit to the Borrower; and
W HEREAS , it
is a condition to the initial extensions of credit under the Credit
Agreements that the parties hereto execute and deliver this
Agreement;
N OW , T
HEREFORE , in consideration of the mutual agreements
herein contained and other good and valuable consideration, the
receipt of which is hereby acknowledged, the Term Loan Collateral
Agent (for itself and on behalf of the Term Loan Secured Parties)
and the Revolving Collateral Agent (for itself and on behalf of the
Revolving Secured Parties) agree as follows:
Section 1 .
Definitions
1.1 Definitions
.
(a) As used in this
Agreement, the following terms have the meanings specified
below:
“ Administrative
Agent ” shall mean, collectively, the Revolving
Administrative Agent and the Term Loan Administrative
Agent.
“ Agents ”
shall mean the Revolving Administrative Agent, the Term Loan
Administrative Agent and the Collateral Agents.
“ Agreement
” shall mean this Intercreditor Agreement, as amended,
restated, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
“ Applicable
Administrative Agent ” shall mean (a) with respect
to the Revolving Collateral Agent, the Revolving Administrative
Agent and (b) with respect to the Term Loan Collateral Agent,
the Term Loan Administrative Agent.
“ Applicable
Collateral ” shall mean (a) with respect to the
Revolving Collateral Agent, the Revolving Collateral and
(b) with respect to the Term Loan Collateral Agent, the Term
Loan Collateral.
“ Applicable
Collateral Agent ” shall mean (a) with respect to
any “Lender” under and as defined in the Revolving
Credit Agreement, the Revolving Collateral Agent and (b) with
respect to any “Lender” under and as defined in the
Term Loan Credit Agreement, the Term Loan Collateral
Agent.
“ Applicable Credit
Documents ” shall mean (a) with respect to the
Revolving Collateral, the Revolving Credit Documents and
(b) with respect to the Term Loan Collateral, the Term Loan
Credit Documents.
“ Applicable
Required Lenders ” shall mean (a) with respect to
the Revolving Collateral Agent, the Revolving Required Lenders and
(b) with respect to the Term Loan Collateral Agent, the Term
Loan Required Lenders.
“ Applicable Secured
Parties ” shall mean (a) with respect to the
Revolving Collateral, the Revolving Secured Parties and
(b) with respect to the Term Loan Collateral, the Term Loan
Secured Parties.
“ Applicable
Security Documents ” shall mean (a) with respect to
the Revolving Collateral, the Revolving Security Documents and
(b) with respect to the Term Loan Collateral, the Term Loan
Security Documents.
“ Bankruptcy
Code ” shall mean title 11, United States
Code.
“ Bankruptcy Law
” shall mean the Bankruptcy Code, or any similar federal,
state or foreign Applicable Law for the relief of debtors or any
arrangement, reorganization, insolvency, moratorium, assignment for
the benefit of creditors, any other marshalling of the assets and
liabilities of the Borrower or any other Credit Party or any
similar law relating to or affecting the enforcement of
creditors’ rights generally.
“ Collateral
Agents ” shall mean the Revolving Collateral Agent and
the Term Loan Collateral Agent.
“ Collateral
Documents ” shall mean this Agreement, the Senior
Documents, the Junior Documents and all other security agreements,
pledge agreements, mortgages, guaranties and other documents
executed and/or delivered by the Credit Parties and accepted by any
Agent.
“ Collateral
Enforcement Action ” means, with respect to any Secured
Party, for such Secured Party, whether or not in consultation with
any other Secured Party, but in any case after the occurrence of
and during the continuance of an Event of
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Default, to exercise, seek to exercise,
join any Person in exercising or institute or maintain or
participate in any action or proceeding (whether judicial or
non-judicial) with respect to, any rights or remedies under the
related Collateral Documents or Applicable Law with respect to any
Collateral, including (a) instituting or maintaining, or
joining any Person in instituting or maintaining, any enforcement,
contest, protest, attachment, collection, execution, levy or
foreclosure action or proceeding with respect to any Collateral,
whether under any Credit Document or otherwise, (b) exercising
any right of set-off with respect to any Credit Party,
(c) exercising any right or remedy under any Deposit Account
control agreement, Securities Account control agreement, landlord
waiver, bailee’s letter or similar agreement or arrangement
or (d) causing (or, after the occurrence and during the
continuance of any Event of Default, consenting to or requesting)
any asset sale or other sale of any Collateral.
“ Credit
Agreements ” shall mean the Revolving Credit Agreement
and the Term Loan Credit Agreement.
“ Credit
Documents ” shall mean, collectively, the Revolving
Credit Documents and the Term Loan Credit Documents.
“ Credit Facility
Claims ” shall mean, collectively, the Revolving Claims
and the Term Loan Claims.
“ Insolvency or
Liquidation Proceeding ” shall mean, collectively,
(a) any voluntary or involuntary case or proceeding under the
Bankruptcy Law with respect to the Borrower or any other Credit
Party, (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 the Borrower or any other Credit Party
or with respect to a material portion of their respective assets,
(c) any liquidation, dissolution, reorganization or winding up
of the Borrower or any Credit Party, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy,
(except as permitted by the Credit Agreements), and (d) any
assignment for the benefit of creditors or any other marshaling of
assets and liabilities of the Borrower or any other Credit
Party.
“ Junior
Administrative Agent ” shall mean (a) with respect
to any Revolving Claim or any Revolving Collateral, the Term Loan
Administrative Agent and (b) with respect to any Term Loan
Claim or any Term Loan Collateral, the Revolving Administrative
Agent.
“ Junior Agents
” shall mean, collectively, the Junior Administrative Agent
and the Junior Collateral Agent.
“ Junior Claims
” shall mean (a) with respect to any Revolving
Collateral, all Term Loan Claims and (b) with respect to any
Term Loan Collateral, all Revolving Claims.
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“ Junior Collateral
Agent ” shall mean (a) with respect to any Revolving
Claim or any Revolving Collateral, the Term Loan Collateral Agent
and (b) with respect to any Term Loan Claim or any Term Loan
Collateral, the Revolving Collateral Agent.
“ Junior
Documents ” shall mean, collectively, with respect to any
Junior Claim, any provision pertaining to such Junior Claim in any
Credit Document or any other document, instrument or certificate
evidencing or delivered in connection with such Junior
Claim.
“ Junior Liens
” shall mean (a) with respect to the Revolving
Collateral, the Term Loan Liens and (b) with respect to the
Term Loan Collateral, the Revolving Liens.
“ Junior Secured
Parties ” shall mean (a) with respect to the
Revolving Collateral, all Term Loan Secured Parties and
(b) with respect to the Term Loan Collateral, all Revolving
Secured Parties.
“ Maximum Revolving
Amount ” shall mean the principal amount of
$330,000,000.
“ Maximum Term Loan
Amount ” shall mean the principal amount of
$880,000,000.
“ pay in full
”, “ paid in full ” or “ payment
in full ” shall mean with respect to any Secured Claims,
the payment in full in cash of the principal of, accrued (but
unpaid) interest and premium, if any, on all such Secured Claims
and, with respect to letters of credit outstanding thereunder,
delivery of cash collateral or backstop letters of credit in
respect thereof in compliance with the relevant Collateral
Documents, in each case, after or concurrently with termination of
all Commitments thereunder and payment in full in cash of any other
such Secured Claims that are due and payable at or prior to the
time such principal and interest are paid.
“ Post-Petition
Financing ” shall mean any financing obtained by any
Credit Party during any Insolvency or Liquidation Proceeding or
otherwise pursuant to any Bankruptcy Law on terms and conditions
reasonably acceptable to the Senior Administrative Agent, including
any such financing obtained by any Credit Party under
Section 364 of the Bankruptcy Code or consisting of any
arrangement for use of cash collateral held in respect of any
Revolving Obligation or Term Loan Obligation under Section 363
of the Bankruptcy Code, in each case or any similar provision of
any Bankruptcy Law.
“ Required Revolving
Lenders ” shall mean “Required Lenders” (as
such term is defined in the Revolving Credit Agreement).
“ Required Term Loan
Lenders ” shall mean “Required Lenders” (as
such term is defined in the Term Loan Credit Agreement).
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“ Revolving
Administrative Agent ” shall mean GECC, in its capacity
as administrative agent (or such similar role) under the Revolving
Credit Agreement, and its successors and assigns.
“ Revolving
Agents ” shall mean the Revolving Administrative Agent
and the Revolving Collateral Agent.
“ Revolving
Claims ” shall mean (a) all Revolving Obligations,
(b) all extensions of credit under any Post-Petition Financing
by the Revolving Lenders and (c) all interest accrued or
accruing (or which would, absent the commencement of an Insolvency
or Liquidation Proceeding, accrue) after the commencement of an
Insolvency or Liquidation Proceeding in accordance with and at the
rate specified in the Revolving Credit Documents whether or not the
claim for such interest is allowed as a claim in such Insolvency or
Liquidation Proceeding. To the extent any payment with respect to
the Revolving Claims (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 fraudulent or preferential in any
respect, set aside or required to be paid to a debtor in
possession, trustee, receiver or similar person, then the
obligation or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment
had not occurred; provided , however , that
(x) to the extent at any time, the principal amount of
Revolving Claims (excluding the Cash Management Obligations and the
Hedging Obligations) shall exceed the Maximum Revolving Amount,
then obligations in respect of the principal amount of Revolving
Claims set forth in clauses (b) and (a) above (in that
order) shall be excluded from the definition of “
Revolving Claims ” in an amount equal to the amount of
such excess.
“ Revolving
Collateral ” shall mean (a) all cash (other than
cash consisting solely of Proceeds of Term Loan Collateral),
(b) all Accounts, (c) all Inventory, (d) all
Instruments, Chattel Paper and other contracts evidencing, or
substituted for, any Account or Inventory, (e) all Deposit
Accounts and Securities Accounts (other than designated Deposit
Accounts and Securities Accounts solely containing Proceeds of Term
Loan Collateral), (f) all claims and causes of action in any
way relating to any Account or Inventory, all Letter-of-Credit
Rights, (g) all guarantees, security, credit enhancements,
Instruments, Promissory Notes, drafts, Documents and Chattel Paper
(including Electronic Chattel Paper and Tangible Chattel Paper)
evidencing, relating to or pertaining to any of the foregoing,
(h) all Supporting Obligations with respect to any of the
foregoing, (i) all software relating to any of the foregoing,
for any Account or Inventory, (j) all books and Records
relating to any of the foregoing and (k) all substitutions,
replacements, accessions, products or proceeds (including, without
limitation, insurance proceeds) of any of the foregoing.
“ Revolving
Collateral Agent ” shall mean GECC, in its capacity as
collateral agent (or such similar role) under the Revolving Credit
Documents, and its successors in such capacity.
“ Revolving Credit
Agreement ” means the Revolving Credit Agreement, dated
as of the date hereof, among Holdings, the Borrower, the lenders
from time to time
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party thereto, GECC, as Administrative
Agent and Collateral Agent, GECC as Letter of Credit Issuer,
Barclays Capital, the investment banking division of Barclays Bank
PLC, and GECC, as joint lead arrangers, and Barclays Capital, the
investment banking division of Barclays Bank PLC, Calyon New York
Branch and GECC, as joint bookrunners, as such agreement may be
amended, restated, waived, replaced.
“ Revolving Credit
Documents ” shall mean “Credit Documents” (as
such term is defined in the Revolving Credit Agreement).
“ Revolving
Lenders ” shall mean “Lenders” (as such term
is defined in the Revolving Credit Agreement).
“ Revolving
Liens ” shall mean Liens securing the Revolving
Claims.
“ Revolving
Obligations ” shall mean “Obligations” (as
such term is defined in the Revolving Credit Agreement).
“ Revolving Required
Lenders ” shall mean “Required Lenders” (as
such term is defined in the Revolving Credit Agreement).
“ Revolving Secured
Parties ” shall mean “Secured Parties” (as
such term is defined in the Revolving Credit Agreement).
“ Revolving Security
Documents ” shall mean the “Security
Documents”, as such term is defined in the Revolving Credit
Agreement.
“ Secured Claims
” shall mean, collectively, the Revolving Claims and the Term
Loan Claims.
“ Secured Hedging
Agreements ” shall mean “Secured Hedging
Agreements” (as such term is defined in the Term Loan Credit
Agreement).
“ Secured
Parties ” shall mean, collectively, the Senior Secured
Parties and the Junior Secured Parties.
“ Senior
Administrative Agent ” shall mean (a) with respect
to any Revolving Claim or any Revolving Collateral, the Revolving
Administrative Agent and (b) with respect to any Term Loan
Claim or any Term Loan Collateral, the Term Loan Administrative
Agent.
“ Senior Agents
” shall mean, collectively, the Senior Administrative Agent
and the Senior Collateral Agent.
“ Senior Claims
” shall mean (a) with respect to any Revolving
Collateral, all Revolving Claims and (b) with respect to any
Term Loan Collateral, all Term Loan Claims. “ Senior
Claims ” shall include all interest accrued or accruing
(or which would, absent the commencement of an Insolvency or
Liquidation Proceeding, accrue) after the commencement of an
Insolvency or Liquidation Proceeding in accordance with and at
the
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rate specified in the Senior Documents
whether or not the claim for such interest is allowed as a claim in
such Insolvency or Liquidation Proceeding. To the extent any
payment with respect to the Senior Claims (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 fraudulent or
preferential in any respect, set aside or required to be paid to a
debtor in possession, trustee, receiver or similar Person, then the
obligation or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
“ Senior
Collateral ” shall mean (a) with respect to any
Junior Secured Party, any Collateral on which it has a Junior Lien
and (b) with respect to any Senior Secured Party, any
Collateral on which it has a Senior Lien.
“ Senior Collateral
Agent ” shall mean (a) with respect to any Revolving
Claim or any Revolving Collateral, the Revolving Collateral Agent
and (b) with respect to any Term Loan Claim or any Term Loan
Collateral, the Term Loan Collateral Agent.
“ Senior
Documents ” shall mean, collectively, with respect to any
Senior Claim, any provision pertaining to such Senior Claim in any
Credit Document or any other document, instrument or certificate
evidencing or delivered in connection with such Senior
Claim.
“ Senior Liens
” shall mean (a) with respect to the Revolving
Collateral, the Revolving Liens and (b) with respect to the
Term Loan Collateral, the Term Loan Liens.
“ Senior Secured
Parties ” shall mean (a) with respect to the
Revolving Collateral, all Revolving Secured Parties and
(b) with respect to the Term Loan Collateral, all Term Loan
Secured Parties.
“ Swingline
Loans ” shall mean “Swingline Loans” (as such
term is defined in the Revolving Credit Agreement).
“ Term Loan
Administrative Agent ” shall mean GECC, in its capacity
as administrative agent (or such similar role) under the Term Loan
Credit Agreement, and its successors and assigns.
“ Term Loan
Agents ” shall mean the Term Loan Administrative Agent
and the Term Loan Collateral Agent.
“ Term Loan
Claims ” shall mean (a) all Term Loan Obligations
and (b) all extensions of credit under any Post-Petition
Financing by the Term Loan Lenders and (c) all interest
accrued or accruing (or which would, absent the commencement of an
Insolvency or Liquidation Proceeding, accrue) after the
commencement of an Insolvency or Liquidation Proceeding in
accordance with and at the rate specified in the Term Loan Credit
Documents whether or not the claim for such interest is allowed as
a claim in such Insolvency or Liquidation Proceeding. To the extent
any payment with respect to the Term Loan Claims (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 fraudulent
or
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preferential in any respect, set aside
or required to be paid to a debtor in possession, trustee, receiver
or similar Person, then the obligation or part thereof originally
intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred; provided ,
however , that (x) to the extent at any time, the Term
Loan Claims (excluding the Cash Management Obligations) shall
exceed the Maximum Term Loan Amount, then obligations in respect of
the principal amount of Term Loan Claims set forth in clauses
(b) and (a) above (in that order) shall be excluded from
the definition of “ Term Loan Claims ” in an
amount equal to the amount of such excess.
“ Term Loan
Collateral ” shall mean all Collateral other than the
Revolving Collateral.
“ Term Loan
Collateral Agent ” shall mean GECC, in its capacity as
collateral agent (or such similar role) under the Term Loan Credit
Documents, and its successors in such capacity.
“ Term Loan Credit
Agreement ” shall mean the Term Loan Credit Agreement,
dated as of the date hereof, among Holdings, the Borrower, the
lenders from time to time party thereto, GECC, as Administrative
Agent and Collateral Agent, Barclays Capital, the investment
banking division of Barclays Bank PLC, and Calyon New York Branch,
as joint lead arrangers, and Barclays Capital, the investment
banking division of Barclays Bank PLC, Calyon New York Branch and
GECC, as joint bookrunners.
“ Term Loan Credit
Documents ” shall mean “Credit Documents” (as
such term is defined in the Term Loan Credit Agreement) and the
Secured Hedging Agreements.
“ Term Loan
Lenders ” shall mean “Lenders” (as such term
is defined in the Term Loan Credit Agreement).
“ Term Loan
Liens ” shall mean Liens securing the Term Loan
Claims.
“ Term Loan
Obligations ” shall mean “Obligations” (as
such term is defined in the Term Loan Credit Agreement).
“ Term Loan Required
Lenders ” shall mean “Required Lenders” (as
such term is defined in the Term Loan Credit Agreement).
“ Term Loan Secured
Parties ” shall mean “Secured Parties” (as
such term is defined in the Term Loan Credit Agreement).
“ Term Loan Security
Documents ” shall mean the “Security
Documents”, as such term is defined in the Term Loan Credit
Agreement.
“ Uniform Commercial
Code ” or “ UCC ” shall mean the
Uniform Commercial Code as from time to time in effect in the State
of New York; provided , however , that, in the event
that, by reason of mandatory provisions of law, any of
the
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attachment, perfection or priority of
any Administrative Agent’s and the Secured Parties’
security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State
of New York, the term “ UCC ” shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment,
perfection or priority and for purposes of definitions related to
such provisions.
1.2 Certain Other
Terms .
(a) Where the context
requires, provisions relating to any Collateral, when used in
relation to any Credit Party, shall refer to such Credit
Party’s Collateral or any relevant part thereof.
(b) Any reference in this
Agreement to a Credit Document shall include all appendices,
exhibits and schedules thereto.
(c) The rules of construction
specified in Sections 1.2, 1.5, 1.6 and 1.7 of each of the Credit
Agreements shall apply to this Agreement, including terms defined
in the preamble hereto.
(d) Unless otherwise defined
herein, all terms defined in one or both of the Credit Agreements
and not defined herein shall have the meanings specified in such
Credit Agreement or, if applicable, each Credit
Agreement.
(e) The following terms have
the meanings given to them in the UCC and terms used herein without
definition that are defined in the UCC have the meanings given to
them in the UCC (such meanings to be equally applicable to both the
singular and plural forms of the terms defined): “
Account ”, “ Account Debtor ”,
“ Chattel Paper ”, “ Deposit
Account ”, “ Electronic Chattel Paper
”, “ Equipment ”, “ Goods
”, “ Instruments ”, “
Inventory ”, “ Letter-of-Credit Right
”, “ Proceeds ”, “ Promissory
Note ”, “ Record ”, “
Securities Account ”, “ security ”,
“ Supporting Obligation ” and “
Tangible Chattel Paper ”.
Section 2. Priority
of Liens
2.1 Lien Subordination
. Notwithstanding the date, manner or order of grant, attachment or
perfection of any Junior Lien in respect of any Collateral or of
any Senior Lien in respect of any Collateral and notwithstanding
any provision of the UCC, any Applicable Law, any Collateral
Document, any alleged or actual defect or deficiency in any of the
foregoing or any other circumstance whatsoever, each Junior Agent,
on behalf of each Junior Secured Party, in respect of such
Collateral hereby agrees that:
(a) any Senior Lien in
respect of such Collateral, regardless of how acquired, whether by
grant, statute, operation of law, subrogation or otherwise, shall
be and shall remain senior and prior to any Junior Lien in respect
of such Collateral (whether or not such Senior Lien is subordinated
to any Lien securing any other obligation); and
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(b) any Junior Lien in
respect of such Collateral, regardless of how acquired, whether by
grant, statute, operation of law, subrogation or otherwise, shall
be junior and subordinate in all respects to any Senior Lien in
respect of such Collateral.
2.2 Prohibition on
Contesting Liens . In respect of any Collateral, each Junior
Agent, on behalf of each Junior Secured Party, in respect of such
Collateral agrees that it shall not, and hereby waives any right
to:
(a) contest, or support any
other Person in contesting, in any proceeding (including any
Insolvency or Liquidation Proceeding), the priority, validity or
enforceability of any Senior Lien on such Collateral; or
(b) demand, request, plead or
otherwise assert or claim the benefit of any marshalling,
appraisal, valuation or similar right which it may have in respect
of such Collateral or the Senior Liens on such Collateral, except
to the extent that such rights are expressly granted in this
Agreement.
2.3 New Liens
.
The parties hereto agree
that, prior to the payment in full of the Secured Claims, any Lien
on any Collateral securing any Secured Claim (and which asset is
not also subject to a Lien securing all of the Secured Claims in
accordance with the priorities set forth herein) shall immediately
be released upon demand by any Agent or assigned to the respective
Agent on behalf of the Secured Parties, subject to the priorities
set forth in Section 2.1 , and, at all times prior to
such release or assignment, the Secured Party to whom such Lien was
granted shall be acting as a sub-agent of the Agent for the sole
purpose of perfecting the Lien on such asset.
2.4 Separate Liens .
Each of the parties hereto acknowledges and agrees that
(i) the grants of Liens pursuant to the Collateral Documents
constitute separate and distinct grants of Liens and
(ii) because of, among other things, their differing rights in
the Collateral, the Junior Claims in respect of any Collateral are
fundamentally different from the Senior Claims in respect of such
Collateral, and the Junior Claims and Senior Claims in respect of
any Collateral must be separately classified in any Insolvency or
Liquidity Proceeding. To further effectuate the intent of the
parties as provided in the immediately preceding sentence, if it is
held that, in respect of any Collateral, the Junior Claims and the
Senior Claims in respect of such Collateral constitute only one
secured claim (rather than separate classes of senior and junior
secured claims), then the Junior Secured Parties hereby acknowledge
and agree that all distributions shall be made as if there were
separate classes of senior and junior secured claims against the
Credit Parties in respect of any Collateral (with the effect that,
to the extent that the aggregate value of the Senior Collateral is
sufficient (for this purpose ignoring all claims held by the Junior
Secured Parties), the Senior Secured Parties shall be entitled to
receive, in addition to amounts distributed to them in respect of
principal, pre-petition interest and other claims, all amounts
owing in respect of post-petition interest before any distribution
is made in respect of the claims held by the Junior Secured Parties
with respect to the Senior Collateral, with the Junior Secured
Parties
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hereby acknowledging and agreeing to
turn over to the Senior Secured Parties amounts otherwise received
or receivable by them to the extent necessary to effectuate the
intent of this sentence, even if such turnover has the effect of
reducing the claim or recovery of the Junior Secured
Parties).
2.5 Rights to Utilize
Intellectual Property and Permits . Each Term Loan Agent agrees
that if any Revolving Agent shall require the use of rights under
or in any (i) Trademarks, tradenames, Copyrights or other
Intellectual Property that constitutes Term Loan Collateral or
(ii) permits in respect of the Term Loan Collateral, in each
case, in order to realize on any Revolving Collateral after the
occurrence and during the continuation of an Event of Default, such
Term Loan Agent shall take all such actions as shall be available
to it (at no cost to such Revolving Agent and at the sole expense
of the Credit Parties), consistent with Applicable Law and the
Security Documents and reasonably requested by such Revolving Agent
to make such rights available to such Revolving Agent subject to
the Term Loan Liens and this Agreement.
Section 3. Exercise
of Remedies
3.1 Remedies
.
(a) Prior to the payment in
full of the Senior Claims in respect of any Collateral, whether or
not any Insolvency or Liquidation Proceeding has been commenced by
or against any Credit Party, with respect to such
Collateral:
(i) no Junior Secured Party
shall (or shall direct any Junior Agent to) (A) take or cause
to be taken any Collateral Enforcement Action, (B) object to
any Collateral Enforcement Action brought by the Senior Collateral
Agent or any Senior Secured Party or any other exercise of any
rights and remedies relating to such Collateral under the Senior
Documents or otherwise, or (C) object to the forbearance by
the Senior Secured Parties from bringing or pursuing any Collateral
Enforcement Action; and
(ii) the Senior Agents, on
behalf of the Senior Secured Parties, shall have the exclusive
right to take or cause to be taken any Collateral Enforcement
Action and make determinations regarding release, disposition
(including under §363(f) of the Bankruptcy Code) or
restrictions with respect to such Collateral without any
consultation with, or the consent of, any Junior Secured
Party.
(b) In exercising rights and
remedies with respect to any Collateral pursuant to the Security
Documents or Applicable Law after the occurrence and during the
continuance of an Event of Default, the Senior Collateral Agent, on
behalf of the Senior Secured Parties, in respect of such Collateral
may enforce the provisions of the Senior Documents and exercise
remedies thereunder, all in such order and in such manner as the
Senior Administrative Agent may determine in the exercise of its
sole discretion. Such exercise and enforcement shall include,
without limitation, the rights of an agent appointed by them to
sell or otherwise dispose of such Collateral upon
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foreclosure, to incur expenses in
connection with such sale or disposition, and to exercise all the
rights and remedies of a secured lender under the UCC of any
applicable jurisdiction and of a secured creditor under any
Bankruptcy Law.
(c) The Junior Agents, on
behalf of each Junior Secured Party, in respect of any Collateral
agree that, prior to the payment in full of the Senior Claims in
respect of such Collateral, they will not take or receive any such
Collateral or any Proceeds of such Collateral in connection with
the exercise of any right or remedy (including setoff) with respect
to such Collateral. Without limiting the generality of the
foregoing, prior to the payment in full of the Senior Claims in
respect of any Collateral, the sole right of the Junior Agents and
the Junior Secured Parties with respect to such Collateral shall be
the right to receive a share of the Proceeds thereof pursuant to
Section 4.1 .
(d) The Junior Agents, on
behalf of each Junior Secured Party, in respect of any Collateral
(i) agree that neither they nor any
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