Exhibit 10.14
EXECUTION VERSION
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT , is entered into as a deed and
dated as of May 11, 2007 (as amended, restated, renewed,
extended, supplemented or otherwise modified from time to time this
“ Agreement ”), is entered into by and among
(1) EDGEN MERGER CO., a Nevada corporation (the “ US
Term Borrower ”) which will be merged with and into the
US Borrower (as defined below) upon closing of the transactions
contemplated by the Term Loan Credit Agreements (as defined below),
(2) EDGEN MURRAY CAYMAN CORPORATION, a Cayman Islands exempted
company (the “ Cayman Term Borrower ”),
(3) EDGEN MURRAY CANADA INC., an Alberta company (the “
Canadian Revolving Borrower ”), (4) EDGEN MURRAY
CORPORATION, a Nevada corporation (the “ US Borrower
”), (5) EDGEN MURRAY EUROPE LIMITED, a company organized
under the laws of England and Wales, (the “ UK Revolving
Borrower ” and together with the US Borrower, the US Term
Borrower, the Cayman Term Borrower and the Canadian Revolving
Borrower, collectively, the “ Borrowers ”),
(6) EDGEN MURRAY II, L.P., a Delaware limited partnership
(“ Holdings ”), (7) Holdings and certain
subsidiaries of Holdings as guarantors pursuant to the First Lien
Term Loan Credit Agreement (as defined below), which subsidiaries
include the U.K. Revolving Borrower in its capacity as a guarantor
of the Term Loan Obligations (as defined below) (the “
First Lien Term Guarantors ”) and the Second Lien Term
Loan Credit Agreement (as defined below) (the “ Second
Lien Term Guarantors ” together with the First Lien Term
Guarantors, the “ Term Guarantors ”),
(8) Holdings and certain subsidiaries of Holdings as
guarantors pursuant to the Revolving Credit Agreement (as defined
below), which subsidiaries include the Cayman Term Borrower in its
capacity as a guarantor of the Revolving Credit Obligations (as
defined below) (the “ Revolving Guarantors ”,
together with the Term Guarantors, the “ Subsidiary
Guarantors ”, and, together with Holdings, the “
Guarantors ”), (9) JPMORGAN CHASE BANK, N.A., in
its capacity as collateral agent for the Revolving Credit
Obligations (“ U.S. Revolving Collateral Agent
”), (10) JPMORGAN CHASE BANK, N.A., TORONTO BRANCH as
Canadian collateral agent for the Revolving Credit Obligations
(“ Canadian Revolving Collateral Agent ”),
(11) J.P. MORGAN EUROPE LIMITED, as U.K. collateral agent for
the Revolving Credit Obligations (“ U.K. Revolving
Collateral Agent ”, and together with U.S. Revolving
Collateral Agent, Canadian Revolving Collateral Agent, and any
other agents appointed under the Revolving Credit Agreement that
bind themselves to the terms of this agreement in a writing
reasonably acceptable to the other parties to this agreement and
delivered to such other parties and, in each case, their respective
successors and assigns from time to time, the “ Revolving
Credit Collateral Agents ”), (12) JPMORGAN CHASE
BANK, N.A., in its capacity as U.S. administrative agent for the
Revolving Credit Obligations (“ U.S. Revolving
Administrative Agent ”), (13) JPMORGAN CHASE BANK,
N.A., TORONTO BRANCH as Canadian administrative agent for the
Revolving Credit Obligations (“ Canadian Revolving
Administrative Agent ”), (14) J.P. MORGAN EUROPE
LIMITED, as U.K. administrative agent for the Revolving Credit
Obligations (“ U.K. Revolving Administrative Agent
”, and together with U.S. Revolving Administrative Agent and
Canadian Revolving Administrative Agent and their respective
successors and assigns from time to time, the “ Revolving
Credit Administrative Agents ”), (15) LEHMAN
COMMERCIAL PAPER INC., in its capacity as collateral agent
(including, in its capacity as UK security trustee and agent) for
the First Lien Term Loan Obligations (as defined below) (including
its successors and assigns from time to time, the “ First
Lien Term Loan Collateral Agent ”), (16) LEHMAN
COMMERCIAL PAPER INC., in its capacity as administrative agent for
the First Lien Term Loan Obligations (including its successors and
assigns from time to time, the “ First Lien Term Loan
Administrative Agent ”), (17) LEHMAN COMMERCIAL
PAPER INC., in its capacity as collateral agent for the Second Lien
Term Loan Obligations (as defined below) (including its successors
and assigns from time to time, the “ Second Lien Term Loan
Collateral Agent ,” and together with the First Lien Term
Loan Collateral Agent, collectively, the “ Term Loan
Collateral
Agent ”)
and (18) LEHMAN COMMERCIAL PAPER INC., in its capacity as
administrative agent for the Second Lien Term Loan Obligations
(including its successors and assigns from time to time, the
“ Second Lien Term Loan Administrative Agent ,”
and together with the First Lien Term Loan Administrative Agent,
collectively, the “ Term Loan Administrative Agent
”). Capitalized terms used in this Agreement have the
meanings assigned to them in Section 1 below.
RECITALS
A. The US
Borrower, the Canadian Revolving Borrower, the U.K. Revolving
Borrower, the Revolving Guarantors, the Revolving Credit Lenders,
the Revolving Credit Collateral Agents and the Revolving Credit
Administrative Agents have entered into a Credit Agreement, dated
as of the date hereof, providing for revolving credit facilities
(as amended, restated, supplemented, modified, replaced or
refinanced from time to time, the “ Revolving Credit
Agreement ”);
B. The US
Term Borrower, the Cayman Borrower, Holdings, the First Lien Term
Loan Lenders, the agents from time to time party thereto and the
First Lien Term Loan Collateral Agent have entered into a First
Lien Term Loan Credit Agreement dated as of the date hereof
providing for a first lien term loan facility (as amended,
restated, supplemented, modified, replaced or refinanced from time
to time, the “ First Lien Term Loan Credit Agreement
”);
C. The US
Term Borrower, Holdings, the Second Lien Term Loan Lenders, the
agents from time to time party thereto and the Second Lien Term
Loan Collateral Agent have entered into a Second Lien Term Loan
Credit Agreement dated as of the date hereof providing for a second
lien term loan facility (as amended, restated, supplemented,
modified, replaced or refinanced from time to time, the “
Second Lien Term Loan Credit Agreement ”, together
with the First Lien Term Loan Credit Agreement, the “ Term
Loan Credit Agreements ”);
D. The
obligations of (i) the US Borrower, the Canadian Revolving
Borrower, the UK Revolving Borrower and each Revolving Guarantor
under the Revolving Credit Agreement, any Banking Services
Agreements and any Revolving Credit Hedge Agreements to the
Revolving Credit Claimholders are secured by Liens (as defined
below) on the Revolving Credit Primary Collateral (as defined
below) of the US Borrower, the Canadian Revolving Borrower, the UK
Revolving Borrower and the Revolving Guarantors, (ii) the US
Borrower, Holdings and each Term Guarantor under the First Lien
Term Loan Credit Agreement and any First Lien Term Loan Hedge
Agreements to the First Lien Term Loan Claimholders are secured by
Liens (as defined below) on substantially all the assets of the US
Borrower, Holdings and each Term Guarantor, and (iii) the US
Borrower and each Second Lien Term Guarantor under the Second Lien
Term Loan Credit Agreement and any Second Lien Term Loan Hedge
Agreements to the Second Lien Term Loan Claimholders are secured by
Liens (as defined below) on substantially all the assets of the US
Borrower and the Second Lien Term Guarantors;
E. Pursuant
to (i) the Revolving Credit Agreement, the Revolving
Guarantors have agreed to guaranty all or portions of the Revolving
Credit Obligations (the “ Revolving Credit Guaranty
”); (ii) the Revolving Credit Agreement, the US
Borrower, the Canadian Revolving Borrower, the U.K. Revolving
Borrower and the Revolving Guarantors have agreed to cause certain
current and future Subsidiaries to agree to guaranty the Revolving
Credit Obligations pursuant to the Revolving Credit Guaranty;
(iii) each Term Loan Credit Agreement, the applicable Term
Guarantors have agreed to guaranty all or portions of the Term Loan
Obligations (the “ Term Loan Guarantees ”); and
(iv) each Term Loan Credit Agreement, the US Borrower and the
applicable
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Term Guarantors have
agreed to cause certain current and future Subsidiaries to agree to
guaranty the Term Loan Obligations pursuant to the Term Loan
Guarantees;
F. In order
to induce (i) the Revolving Credit Collateral Agents and the
Revolving Credit Claimholders to enter into the Revolving Credit
Agreement, to provide Banking Services and to enter into the
Revolving Credit Hedge Agreements, (ii) the First Lien Term
Loan Collateral Agent and the First Lien Term Loan Claimholders to
enter into the First Lien Term Loan Credit Agreement and to enter
into First Lien Term Loan Hedge Agreements, and (iii) the
Second Lien Term Loan Collateral Agent and the Second Lien Term
Loan Claimholders to enter into the Second Lien Term Loan Credit
Agreement and to enter into Second Lien Term Loan Hedge Agreements,
the Revolving Credit Collateral Agents and the Revolving Credit
Administrative Agents, each on behalf of the Revolving Credit
Claimholders, and the Term Loan Collateral Agent and the Term Loan
Administrative Agent, each on behalf of the Term Loan Claimholders,
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; and
G. This
Agreement is intended to allocate certain rights, benefits and
priorities in the Revolving Credit Primary Collateral or any other
Collateral between the Revolving Credit Collateral Agents and the
Revolving Credit Claimholders on the one hand and the Term Loan
Collateral Agent and the Term Claimholders on the other hand. It is
understood and agreed that the relative rights, benefits and
priorities in the Revolving Credit Primary Collateral or any other
Collateral as between the First Lien Term Collateral Agent and the
First Lien Term Loan Claimholders and the Second Lien Term
Collateral Agent and the Second Lien Term Loan Claimholders are
governed by that certain Term Intercreditor Agreement dated as of
May 11, 2007 as the same may be amended, modified, supplement
or restated from time to time.
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:
SECTION 1. Definitions .
1.1
Defined Terms . As used in the
Agreement, the following terms shall have the following
meanings:
“ Access Period ” means with respect to each
parcel of Real Estate Assets, the period, after the commencement of
an Enforcement Period, which begins, with respect to such parcel of
Real Estate Assets, on the day that a Revolving Credit Collateral
Agent provides the Term Loan Collateral Agent with the notice of
its election to request access with respect to such parcel of Real
Estate Assets pursuant to Section 3.2(b) below and ends on the
earliest of (i) the 180th day after such Revolving Credit
Collateral Agent obtains the ability to use, take physical
possession of, remove or otherwise control the use or access to the
Revolving Credit Primary Collateral located on such Real Estate
Asset following Enforcement plus such number of days, if
any, after a Revolving Credit Collateral Agent obtains access to
such Revolving Credit Primary Collateral that it is stayed or
otherwise prohibited by law or court order from exercising remedies
with respect to Revolving Credit Primary Collateral located on such
Real Estate Asset or (ii) the date on which all or
substantially all of the Revolving Credit Primary Collateral
located on such Real Estate Asset is sold or liquidated, or
(iii) the date on which the Discharge of Revolving Credit
Obligations occurs.
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“ 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, armored car agreement, credit
card processing agreement or any similar deposit or securities
account agreements among the Term Loan Collateral Agent and/or the
Revolving Credit Collateral Agent and a Grantor and the relevant
service provider, 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 under common
control with such specified Person. For purposes of this
definition, “control,” as used with respect to any
Person, means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise, and the terms “controlling,”
“controlled by” and “under common control
with” have correlative meanings.
“ Agents ” means the Revolving Credit Collateral
Agents and the Term Loan Collateral Agent.
“ Agreement ” has the meaning assigned to such
term in the Preamble to this Agreement.
“ Banking Services ” means each and any of the
following bank services provided to any Grantor by any Revolving
Credit Lender or any of its Affiliates:
(a) commercial
credit cards;
(b) stored value
cards; and
(c) treasury
management services (including, without limitation, controlled
disbursement, automated clearinghouse transactions, return items,
overdrafts, and interstate or foreign depository network
services).
“ Banking Services Agreement ” means any
agreement that evidences any Banking Services Obligations.
“ Banking Services Obligations ” means any and
all obligations of the Grantors, whether absolute or contingent and
howsoever and whensoever created, rising, evidenced, or acquired
(including all renewals, extensions, modifications thereof, and
substitutions therefore) in connection with Banking Services.
“ 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
in any applicable jurisdiction.
“ Board of Directors ” shall mean, with respect
to any Person, (i) in the case of any corporation, the board
of directors of such Person, (ii) in the case of any limited
liability company, the board of managers of such Person,
(iii) in the case of any partnership, the board of directors
of
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the general partner of
such Person and (iv) in any other case, the functional
equivalent of the foregoing.
“ Borrowers ” has the meaning assigned to such
term in the Preamble to this Agreement.
“ Business Day ” means a day other than a
Saturday, Sunday or other day on which banks in New York City are
authorized or required by law to close.
“ Canadian Revolving Borrower ” has the meaning
assigned to such term in the Preamble to this Agreement.
“ Capital Stock ” means:
(a) in the case of a
corporation, corporate stock;
(b) in the case of
an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of
corporate stock;
(c) in the case of a
partnership or limited liability company, partnership interests
(whether general or limited) or membership interests;
(d) any other
interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of
assets or, the issuing Person; and
(e) any warrants,
options or other rights to acquire any of the foregoing; but
excluding from all of the foregoing interests any
debt securities which are convertible into or exchangeable for any
of the foregoing equity interests, whether or not such debt
securities include any right of participation with Capital
Stock.
“ Capital Stock Collateral ” means:
(a) all of the
Capital Stock in any Borrower;
(b) all of the
Capital Stock in any Subsidiary which is directly or indirectly
owned by Holdings, any Borrower or any Subsidiary Guarantor;
(c) Records,
“supporting obligations” (as defined in Article 9 of
the UCC) and related Letters of Credit, commercial tort claims or
other claims and causes of action, in each case, to the extent
directly related to the foregoing; provided however ,
in the event that any such Records, “supporting
obligations” and related Letters of Credit, commercial tort
claims or other claims and causes of action directly relate to both
the Revolving Credit Primary Collateral and the Term Loan
Collateral, then only those which primarily relate to the Term Loan
Collateral, shall be included in this definition; and
(d) 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.
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“ Chattel Paper ” means all now present and
future “chattel paper” (as defined in Article 9 of the
UCC).
“ Claimholders ” means the Revolving Credit
Claimholders and the Term Loan Claimholders.
“ Collateral ” means all of the assets and
property of any Grantor, whether real, personal or mixed,
constituting either Revolving Credit Collateral or Term Loan
Collateral.
“ Copyright Licenses ” means any and all present
and future agreements (whether or not in writing) providing for the
granting of any right in, to or under Copyrights (whether the
applicable Grantor is licensee or licensor thereunder).
“ Copyrights ” means, collectively, with respect
to each Grantor, all copyrights (whether statutory or common law,
whether established or registered in the United States or any other
country or any political subdivision thereof, whether registered or
unregistered, whether published or unpublished and, in each case,
whether owned by or licensed to such Grantor) and all copyright
registrations and applications made by such Grantor, in each case,
whether now owned or hereafter created or acquired by or assigned
to such Grantor, and all goodwill associated therewith, now
existing or hereafter adopted or acquired, together with any and
all (i) rights and privileges arising under applicable law
with respect to such Grantor’s use of such copyrights,
(ii) reissues, renewals, continuations and extensions thereof
and amendments thereto, (iii) income, fees, royalties,
damages, claims and payments now or hereafter due and/or payable
with respect thereto, including damages and payments for past,
present or future infringements thereof, (iv) rights
corresponding thereto throughout the world and (v) rights to
sue for past, present or future infringements thereof.
“ Deposit Accounts ” means all now 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.
“ DIP Financing Cap Amount ” means an aggregate
amount of $25,000,000.
“ Discharge of Revolving Credit Obligations ”
means, except to the extent otherwise expressly provided in
Section 5.5:
(a) termination or
expiration of all commitments, if any, to extend credit that would
constitute Revolving Credit Obligations;
(b) 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 Documents and
constituting Revolving Credit Obligations;
(c) payment in full
in cash of all Hedging Obligations and all Banking Services
Obligations constituting Revolving Credit Obligations and the
expiration or termination of all Revolving Credit Hedge Agreements
and all Banking Services Agreements included in the Revolving
Credit Obligations or the cash collateralization of all such
Hedging Obligations and Banking Services Obligations on terms
satisfactory to each applicable counterparty;
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(d) termination or
cash collateralization (in an amount and manner reasonably
satisfactory to the Revolving Credit Collateral Agent, but in no
event greater than 105% of the aggregate undrawn face amount plus a
reasonable reserve amount to protect the Revolving Credit
Collateral Agent for potential expenses in respect of any letters
of credit that are not terminated) of all letters of credit issued
under the Revolving Credit Documents and constituting Revolving
Credit Obligations; and
(e) payment in full
in cash of all other Revolving Credit Obligations that are
outstanding and unpaid at the time the Indebtedness constituting
the Revolving Credit Obligations is paid in full in cash (other
than any obligations for taxes, costs, indemnifications,
reimbursements, damages and other liabilities in respect of which
no claim or demand for payment has been made at such time).
If a Discharge of Revolving Credit Obligations occurs prior to the
termination of this Agreement in accordance with Section 8.2,
to the extent that additional Revolving Credit Obligations are
incurred or Revolving Credit Obligations are reinstated in
accordance with Section 6.4, the Discharge of Revolving Credit
Obligations shall (effective upon the incurrence of such additional
Revolving Credit Obligations or reinstatement of the Revolving
Credit Obligations, as applicable) be deemed to no longer be
effective.
“Discharge of Term Loan Obligations” means,
except to the extent otherwise expressly provided in
Section 5.5:
(a) termination or
expiration of all commitments, if any, to extend credit that would
constitute Term Loan Obligations;
(b) 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 Term Loan Documents and
constituting Term Loan Obligations;
(c) payment in full
in cash of all Hedging Obligations constituting Term Loan
Obligations and the expiration or termination of all Term Loan
Hedge Agreements included in the Term Loan Obligations or the cash
collateralization of all such Hedging Obligations on terms
satisfactory to each applicable counterparty; and
(d) payment in full
in cash of all other Term Loan Obligations that are outstanding and
unpaid at the time the Indebtedness constituting such Term Loan
Obligations is paid in full in cash (other than any obligations for
taxes, costs, indemnifications, reimbursements, damages and other
liabilities in respect of which no claim or demand for payment has
been made at such time).
If a Discharge of Term Loan Obligations occurs prior to the
termination of this Agreement in accordance with Section 8.2,
to the extent that additional Term Loan Obligations are incurred or
Term Loan Obligations are reinstated in accordance with
Section 6.4, the Discharge of Term Loan Obligations shall
(effective upon the incurrence of such additional Term Loan
Obligations or reinstatement of such Term Loan Obligations, as
applicable) be deemed to no longer be effective.
“ Disposition ” has the meaning assigned to that
term in Section 5.1(b).
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“ Domestic ” means, as to any Person, a Person
which is created or organized under the laws of the United States
of America, any of its states or the District of Columbia.
“ Enforcement ” means, collectively or
individually for any one or more of the Revolving Credit Collateral
Agents and the Term Loan Collateral Agent, when a Revolving Credit
Default or a Term Loan Default, as the case may be, has occurred
and is continuing, any action taken by such Person to repossess, or
exercise any remedies with respect to, any material amount of
Collateral or commence the judicial enforcement of any of the
rights and remedies with respect to any Collateral under the
Revolving Credit Documents, the Term Loan Documents or under any
applicable law, but in all cases excluding (i) the demand of
the repayment of all the principal amount of any of the
Obligations, (ii) the imposition of a default rate or late fee
and (iii) the collection and application of, or the delivery
of any activation notice with respect to, Accounts or other monies
deposited from time to time in Deposit Accounts or Securities
Accounts, in each case other than the Net Cash Proceeds Account,
against the Revolving Credit Obligations pursuant to the Revolving
Credit Documents; provided , however , the foregoing
exclusion set forth in this clause (iii) shall immediately
cease to apply upon the earlier of (x) a Revolving Credit
Collateral Agent’s delivery of written notice to any of the
US Borrower, the Canadian Revolving Borrower and the U.K. Revolving
Borrower that such exclusion no longer applies, (y) the lapse
of fifteen (15) consecutive Business Days after a Revolving
Credit Default in which no “Revolving Loans” are made
and no “Letters of Credit” are issued (in each case, as
defined in the Revolving Credit Agreement), and (z) the
termination of the Revolving Commitments pursuant to Article VII
(or any other applicable provision) of the Revolving Credit
Agreement.
“ Enforcement Notice ” means a written notice
delivered, at a time when a Revolving Credit Default or Term Loan
Default, as the case may be, has occurred and is continuing, by a
Revolving Credit Collateral Agent or the Term Loan Collateral Agent
to the other Agent announcing that an Enforcement Period has
commenced and specifying the relevant event of default.
“ Enforcement Period ” means the period of time
following the receipt by either a Revolving Credit Collateral Agent
or the Term Loan Collateral Agent, as applicable, of an Enforcement
Notice from the other Agent until the first to occur of (i) in
the case of an Enforcement Period commenced by a Revolving Credit
Collateral Agent, the Discharge of Revolving Credit Obligations,
or, in the case of an Enforcement Period commenced by the Term Loan
Collateral Agent, the Discharge of Term Loan Obligations,
(ii) such Revolving Credit Collateral Agent or the Term Loan
Collateral Agent (as applicable) agrees in writing to terminate the
Enforcement Period or (iii) the date on which the Revolving
Credit Default or the Term Loan Default that was the subject of the
Enforcement Notice relating to such Enforcement Period has been
cured to the satisfaction of the Revolving Credit Collateral Agent
or the Term Loan Collateral Agent, as applicable, or waived in
writing in accordance with the terms of the Revolving Credit
Agreement or the Term Loan Credit Agreement, as applicable.
“ Equipment ” means: (i) all
“equipment” (as defined in Article 9 of the UCC),
(ii) all trade-fixtures, sales displays, lighting, shelving,
signage and “fixtures” (as defined in Article 9 of 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 and whether now or hereafter
existing.
“ First Lien Term Loan Administrative Agent ”
has the meaning assigned to such term in the Preamble to this
Agreement.
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“ First Lien Term Loan Claimholders ” means, at
any relevant time, the holders of First Lien Term Loan Obligations
at that time, including the First Lien Term Loan Lenders, the First
Lien Term Loan Administrative Agent and the First Lien Term Loan
Collateral Agent, under the First Lien Term Loan Documents.
“ First Lien Term Loan Collateral Agent ” has
the meaning assigned to such term in the Preamble to this
Agreement.
“ First Lien Term Loan Collateral Documents ”
means the “Security Documents” as such term is defined
in the First Lien Term Loan Credit Agreement, and any other
agreement, document or instrument pursuant to which a Lien is
granted securing any First Lien Term Loan Obligations or under
which rights or remedies with respect to such Liens are
governed.
“ First Lien Term Loan Credit Agreement ” has
the meaning assigned to such term in the Recitals to this
Agreement.
“ First Lien Term Loan Documents ” means the
First Lien Term Loan Credit Agreement and the “Loan
Documents” as such term is defined in the First Lien Term
Loan Credit Agreement (excluding the Second Lien Intercreditor
Agreement listed therein), and each of the other agreements,
documents and instruments providing for or evidencing any other
First Lien Term Loan Obligation, and any other document or
instrument executed or delivered at any time in connection with any
First Lien Term Loan Obligations, including any intercreditor or
joinder agreement among holders of First Lien Term Loan
Obligations, to the extent such are effective at the relevant time,
as each may be amended, supplemented, refunded, deferred,
restructured, replaced or refinanced from time to time in whole or
in part (whether with the First Lien Term Loan Collateral Agent and
the First Lien Term Loan Lenders or other agents and lenders or
otherwise), in each case in accordance with the provisions of this
Agreement.
“ First Lien Term Loan Hedge Agreement ” means
any Hedge Agreement entered into with a Term Loan Lender
Counterparty evidencing Hedging Obligations which constitute First
Lien Term Loan Obligations.
“ First Lien Term Loan Lenders ” means the
“Lenders” under and as defined in the First Lien Term
Loan Documents.
“ First Lien Term Loan Obligations ” means the
following:
(a) All Obligations
and Hedging Obligations outstanding under the First Lien Term Loan
Credit Agreement and the other Term Loan Documents, including First
Lien Term Loan Hedge Agreements. “First Lien Term Loan
Obligations” shall include all Post-Petition Interest.
(b) To the extent
any payment with respect to any First Lien Term Loan Obligation
(whether by or on behalf of any Grantor, 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 Revolving
Credit Claimholders, 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 Lien Term Loan Claimholders and the
Revolving Credit Claimholders, be deemed to be reinstated and
outstanding as if such payment had not occurred. To the extent that
any interest, fees, expenses or other charges (including, without
limitation, Post-Petition Interest) to be paid pursuant to the Term
Loan Documents are disallowed by order of any court, including,
without limitation, by order of a
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court in any Insolvency
or Liquidation Proceeding, such interest, fees, expenses and
charges (including, without limitation, Post-Petition Interest)
shall, as between the First Lien Term Loan Claimholders and the
Revolving Credit Claimholders, be deemed to continue to accrue and
be added to the amount to be calculated as the “First Lien
Term Loan Obligations”.
“ 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.
“ Grantors ” means any Borrower, Holdings, each
Subsidiary Guarantor and each other Person that has or may from
time to time hereafter execute and deliver a Security Document as a
Person granting a Lien or other interest in its property to secure
any of the Obligations.
“ Guarantors ” has the meaning assigned to such
term in the Preamble to this Agreement.
“ Hedge Agreement ” means any swap, cap, collar,
forward purchase or similar agreements or arrangements dealing with
interest rates, currency exchange rates or commodity prices, either
generally or under specific contingencies entered into for the
purposes of hedging the Borrowers’ exposure to interest or
exchange rates, loan credit exchanges, security or currency
valuations or commodity prices not for speculative purposes, in
each case entered into with a Lender Counterparty.
“ Hedging Obligation ” of any Person means any
Obligation of such Person pursuant to any Hedge Agreement.
“ Holdings ” has the meaning assigned to such
term in the Preamble to this Agreement.
“ Indebtedness ” means and includes all
Obligations that constitute “Loans” within the meaning
of any of the Term Loan Credit Agreements or the Revolving Credit
Agreement, as applicable.
“ 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 its
assets;
(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 assignment
for the benefit of creditors or any other marshalling of assets and
liabilities of any Grantor.
“ Instruments ” means all now present and future
“instruments” (as defined in Article 9 of the UCC).
10
“ Intellectual Property ” means, collectively,
the Copyrights, the Copyright Licenses, the Patents, the Patent
Licenses, the Trademarks and the Trademark Licenses.
“ Inventory ” means all present and future
“inventory” (as defined in Article 9 of the UCC) and,
in any event, includes, 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 or otherwise used or consumed in any
Grantor’s business; the purchaser’s interest in any
goods being manufactured pursuant to any contract or other
arrangement with a supplier, all goods in transit from suppliers
(whether or not evidenced by a document of title) and all goods in
which any Grantor has an interest in mass or a joint or other
interest or right of any kind; and all goods which are returned to
or repossessed by any Grantor, all computer programs embedded in
any goods and all accessions thereto and products thereof (in each
case, regardless of whether characterized as inventory under the
UCC).
“ Investment Property ” means all
“investment property” (as such term is defined in
Section 9-102(a)(49) of the New York UCC).
“ Lender ” means each Term Loan Lender and each
Revolving Credit Lender.
“ Lender Counterparty ” means either a Revolving
Credit Lender Counterparty or a Term Loan Lender Counterparty, as
applicable.
“ Letter of Credit ” means any present and
future “letter of credit” (as defined in Article 5 of
the UCC).
“ Letter of Credit Rights ” means any
“letter-of-credit right” (as defined in Article 9 of
the UCC).
“ Lien ” means, with respect to any property,
(a) any mortgage, deed of trust, lien, pledge, claim, charge,
assignment, hypothecation, security interest or encumbrance of any
kind or any arrangement to provide priority or preference or any
filing of any financing statement or any financing change statement
under the UCC or any other similar notice of lien under any similar
notice or recording statute of any governmental authority,
including any easement, right-of-way or other encumbrance on title
to real property, in each of the foregoing cases whether voluntary
or imposed by law, and any agreement to give any of the foregoing;
(b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as
any of the foregoing) relating to such property; and (c) in
the case of securities, any purchase option, call or similar right
of a third party with respect to such securities.
“ Mortgaged Premises ” means any real property
which shall now or hereafter be subject to a Term Loan
Mortgage.
“ Net Cash Proceeds Account ” means any Deposit
Account or Securities Account established by any Grantor which
contains only proceeds of the sale of any Term Loan Collateral and
which has been identified in writing to the Revolving Credit
Collateral Agents as such at the time the proceeds from any such
sale of Term Loan Collateral shall be deposited in any such
account.
“ New Agent ” has the meaning assigned to that
term in Section 5.5.
11
“ New Debt Notice ” has the meaning assigned to
that term in Section 5.5.
“ Non-Voting Stock ” means, with respect to any
Person, all Capital Stock in such Person other than Voting
Stock.
“ Obligations ” means all obligations of every
nature of each Grantor from time to time owed to any agent or
trustee, the Term Loan Claimholders, the Revolving Credit
Claimholders or any of them or their respective Affiliates, in each
case under the Term Loan Documents or the Revolving Credit
Documents, whether for principal, interest or payments for early
termination of Hedge Agreements, fees, expenses, indemnification or
otherwise and all guarantees of any of the foregoing.
“ Patent Licenses ” means all present and future
agreements providing for the granting of any right in or to Patents
(whether the applicable Grantor is licensee or licensor
thereunder).
“ Patents ” means, collectively, with respect to
each Grantor, all letters patent issued or assigned to, and all
patent applications and registrations made by, such Grantor
(whether established or registered or recorded in the United States
or any other country or any political subdivision thereof and, in
each case, whether owned by or licensed to such Grantor), and all
goodwill associated therewith, now existing or hereafter adopted or
acquired, together with any and all (i) rights and privileges
arising under applicable law with respect to such Grantor’s
use of any patents, (ii) inventions and improvements described
and claimed therein, (iii) reissues, divisions, continuations,
renewals, extensions and continuations-in-part thereof and
amendments thereto, and rights to obtain any of the foregoing,
(iv) income, fees, royalties, damages, claims and payments now
or hereafter due and/or payable thereunder and with respect thereto
including damages and payments for past, present or future
infringements thereof, (v) rights corresponding thereto
throughout the world and (vi) rights to sue for past, present
or future infringements thereof.
“ 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.
“ Post-Petition Interest ” means all interest,
fees, expenses and other charges that, pursuant to any of the Term
Loan Credit Agreements or the Revolving Credit Agreement, as
applicable, continue to accrue after the commencement of any
Insolvency or Liquidation Proceeding, whether or not such interest,
fees, expenses and other charges are allowed or allowable under
Bankruptcy Law or in any such Insolvency or Liquidation
Proceeding.
“ Real Estate Asset ” means, at any time of
determination, any interest (fee, leasehold or otherwise) then
owned by any Grantor in any real property, including, without
limitation, Mortgaged Premises, distribution centers and warehouses
and corporate headquarters and administrative offices.
“ Records ” means all now present and future
“records” (as defined in Article 9 of the UCC).
“ Recovery ” has the meaning set forth in
Section 6.4.
12
“ 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 whole or in part. “ Refinanced ”
and “ Refinancing ” shall have correlative
meanings.
“ Revolving Commitments ” means the
“Revolving Commitments” as such term is defined in the
Revolving Credit Agreement.
“ Revolving Credit Administrative Agents ” has
the meaning assigned to such term in the Preamble to this
Agreement.
“ Revolving Credit Agreement ” has the meaning
assigned to such term in the Recitals to this Agreement.
“ Revolving Credit Cap Amount ” means the sum of
$165,000,000 plus an aggregate amount of $25,000,000 which shall be
used exclusively for Letters of Credit (as defined in the Revolving
Credit Agreement) issued pursuant to Section 2.22(a) of the
Revolving Credit Agreement, less the amount of all mandatory
prepayments and scheduled repayments of any loans to the extent
accompanied by a corresponding reduction in the applicable
Revolving Commitments (excluding reductions in sub-facility
commitments not accompanied by a corresponding reduction in the
applicable Revolving Commitments).
“ Revolving Credit Claimholders ” means, at any
relevant time, the holders of Revolving Credit Obligations at that
time, including the Revolving Credit Lenders, the Revolving Credit
Administrative Agents and the Revolving Credit Collateral Agents,
under the Revolving Credit 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 Collateral Agents ” has the
meaning assigned to such term in the Preamble of this
Agreement.
“ Revolving Credit Collateral Documents ” means
“Security Agreements” as such term is defined in the
Revolving Credit Agreement, and any other 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.
“ Revolving Credit Default ” means an
“Event of Default” as such term is defined in the
Revolving Credit Agreement.
“ Revolving Credit Documents ” means
(a) the Revolving Credit Agreement and the “Loan
Documents” as such term is defined in the Revolving Credit
Agreement and (b) 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,
supplemented, refunded, deferred, restructured, replaced or
refinanced from time to time in whole or in part (whether with any
Revolving Credit Collateral Agent and the
13
Revolving Credit
Lenders or other agents and lenders or otherwise), in each case in
accordance with the provisions of this Agreement.
“ Revolving Credit Guaranty ” has the meaning
assigned to such term in the Recitals to this Agreement.
“ Revolving Credit Hedge Agreement ” means any
Hedge Agreement entered into with a Revolving Credit Lender
Counterparty evidencing Hedging Obligations which constitute
Revolving Credit Obligations.
“ Revolving Credit Lender Counterparty ” means
any Person who at the time such Hedge Agreement was entered into
was a Revolving Credit Administrative Agent, a Revolving Credit
Lender or an Affiliate of any of the foregoing Persons.
“ Revolving Credit Lenders ” means the
“Lenders” under and as defined in the Revolving Credit
Documents.
“ Revolving Credit Obligations ” means the
following:
(a) All Obligations,
Hedging Obligations and Banking Services Obligations outstanding
under the Revolving Credit Agreement and the other Revolving Credit
Documents, including Revolving Credit Hedge Agreements and Banking
Services Agreements. “Revolving Credit Obligations”
shall include all Post-Petition Interest.
(b) To the extent
any payment with respect to any Revolving Credit Obligation
(whether by or on behalf of any Grantor, 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 Term Loan
Claimholders, 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
Revolving Credit Claimholders and the Term Loan Claimholders, be
deemed to be reinstated and outstanding as if such payment had not
occurred. To the extent that any interest, fees, expenses or other
charges (including, without limitation, Post-Petition Interest) to
be paid pursuant to the Revolving Credit Documents are disallowed
by order of any court, including, without limitation, by order of a
court in any Insolvency or Liquidation Proceeding, such interest,
fees, expenses and charges (including, without limitation,
Post-Petition Interest) shall, as between the Revolving Credit
Claimholders and the Term Loan Claimholders, be deemed to continue
to accrue and be added to the amount to be calculated as the
“Revolving Credit Obligations.”
(c) Notwithstanding
the foregoing, if the sum of: (1) Loans (as defined in the
Revolving Credit Agreement) constituting principal outstanding
under the Revolving Credit Agreement and the other Revolving Credit
Documents; plus (2) the aggregate face amount of any
outstanding letters of credit issued under the Revolving Credit
Agreement, is in excess of the Revolving Credit Cap Amount, then
only that portion of such Loans (as defined in the Revolving Credit
Agreement) and such aggregate face amount of letters of credit
equal to the Revolving Credit Cap Amount shall be included in
Revolving Credit Obligations and interest, fees and expenses with
respect to such Loans (as defined in the Revolving Credit
Agreement) and letters of credit shall only constitute Revolving
Credit Obligations to the extent related to Indebtedness (as
defined in the Revolving Credit Agreement) and face amounts of
letters of credit so included in the Revolving Credit
Obligations.
14
“ Revolving Credit Primary Collateral ” means
all now owned or hereafter acquired:
(a) Accounts (except
to the extent relating to the sale of Term Loan Collateral);
(b) Chattel Paper
(except to the extent relating to the sale of Term Loan
Collateral);
(c) Instruments
(except: (i) to the extent relating to the sale of Term Loan
Collateral and (ii) the Subordinated Intercompany Note as
defined in the Term Loan Credit Agreements as in effect on the date
of this Agreement);
(d) Letter of Credit
Rights;
(e) Deposit Accounts
and Securities Accounts, in each case other than the Net Cash
Proceeds Account, and all other Investment Property (other than
Capital Stock Collateral), including all cash, checks and other
evidences of payments, marketable securities, securities
entitlements, financial assets and other funds held in or on
deposit in any of the foregoing;
(f) Inventory or
documents of title, customs receipts, insurance certificates,
shipping documents and other written materials related to the
purchase or import of any Inventory;
(g) General
Intangibles (other than Intellectual Property and Term Loan General
Intangibles) and all rights under Revolving Credit Hedge Agreements
and Banking Services Agreements;
(h) Records,
“supporting obligations” (as defined in Article 9 of
the UCC) and related Letters of Credit, commercial tort claims or
other claims and causes of action, in each case, to the extent
directly related to the foregoing; provided however ,
in the event that any such Records, “supporting
obligations” and related Letters of Credit, commercial tort
claims or other claims and causes of action directly relate to both
the Revolving Credit Primary Collateral and the Term Loan
Collateral, then only those which primarily relate to the Revolving
Credit Primary Collateral shall be included in this definition;
and
(i) 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;
provided , however , that to the extent that
identifiable proceeds (including lease payments under leases of
Equipment) of Term Loan Collateral are deposited or held in any
such Deposit Accounts or Securities Accounts, in each case other
than the Net Cash Proceeds Account, after an Enforcement Notice,
then (as provided in Section 3.4 below) such identifiable
proceeds shall be treated as Term Loan Collateral.
“ Revolving Guarantors ” has the meaning
assigned to such term in the Preamble to this Agreement.
“ Second Lien Term Loan Administrative Agent ”
has the meaning assigned to such term in the Preamble to this
Agreement.
15
“ Second Lien Term Loan Claimholders ” means, at
any relevant time, the holders of Second Lien Term Loan Obligations
at that time, including the Second Lien Term Loan Lenders, the
Second Lien Term Loan Administrative Agent and the Second Lien Term
Loan Collateral Agent, under the Second Lien Term Loan
Documents.
“ Second Lien Term Loan Collateral Agent ” has
the meaning assigned to such term in the Preamble to this
Agreement.
“ Second Lien Term Loan Collateral Documents ”
means the “Security Documents” as such term is defined
in the Second Lien Term Loan Credit Agreement, and any other
agreement, document or instrument pursuant to which a Lien is
granted securing any Second Lien Term Loan Obligations or under
which rights or remedies with respect to such Liens are
governed.
“ Second Lien Term Loan Credit Agreement ” has
the meaning assigned to such term in the Recitals to this
Agreement.
“ Second Lien Term Loan Documents ” means the
Second Lien Term Loan Credit Agreement and the “Loan
Documents” as such term is defined in the Second Lien Term
Loan Credit Agreement, and each of the other agreements, documents
and instruments providing for or evidencing any other Second Lien
Term Loan Obligation, and any other document or instrument executed
or delivered at any time in connection with any Second Lien Term
Loan Obligations, including any intercreditor or joinder agreement
among holders of Second Lien Term Loan Obligations, to the extent
such are effective at the relevant time, as each may be amended,
supplemented, refunded, deferred, restructured, replaced or
refinanced from time to time in whole or in part (whether with the
Second Term Loan Collateral Agent and the Second Term Loan Lenders
or other agents and lenders or otherwise), in each case in
accordance with the provisions of this Agreement.
“ Second Lien Term Loan Hedge Agreement ” means
any Hedge Agreement entered into with a Term Loan Lender
Counterparty evidencing Hedging Obligations which constitute Second
Lien Term Loan Obligations.
“ Second Lien Term Loan Lenders ” means the
“Lenders” under and as defined in the Second Lien Term
Loan Documents.
“ Second Lien Term Loan Obligations ” means the
following:
(a) All Obligations and Hedging Obligations
outstanding under the Second Lien Term Loan Credit Agreements and
the other Term Loan Documents, including Second Lien Term Loan
Hedge Agreements. “Second Lien Term Loan Obligations”
shall include all Post-Petition Interest.
(b) To the extent any payment with respect
to any Second Lien Term Loan Obligation (whether by or on behalf of
any Grantor, 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 Revolving Credit Claimholders, 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 Second Lien Term Loan
Claimholders and the Revolving Credit Claimholders, be deemed to be
reinstated and outstanding as if such payment had not occurred. To
the extent that any interest, fees, expenses
16
or other charges
(including, without limitation, Post-Petition Interest) to be paid
pursuant to the Term Loan Documents are disallowed by order of any
court, including, without limitation, by order of a court in any
Insolvency or Liquidation Proceeding, such interest, fees, expenses
and charges (including, without limitation, Post-Petition Interest)
shall, as between the Second Lien Term Loan Claimholders and the
Revolving Credit Claimholders, be deemed to continue to accrue and
be added to the amount to be calculated as the “Second Lien
Term Loan Obligations.”
“ 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.
“Security Documents ” means this Agreement, and
all security agreements, pledge agreements, collateral assignments,
mortgages, deeds of trust, collateral agency agreements, control
agreements or other grants or transfers for security executed and
delivered by any Borrower or any other Grantor creating (or
purporting to create) a Lien upon Collateral in favor of any
Revolving Credit Collateral Agent or the Term Loan Collateral
Agent, as the case may be, as each may be amended, supplemented,
refunded, deferred, restructured, replaced or refinanced from time
to time in whole or in part (whether with the Term Loan
Administrative Agent, the Term Loan Collateral Agent or the Term
Loan Claimholders or any Revolving Credit Administrative Agent, any
Revolving Credit Collateral Agent or the Revolving Credit
Claimholders, as applicable), in each case in accordance with the
provisions of this Agreement.
“ Subsidiary ” means, with respect to any Person
(the “ parent ”) at any date, (a) any
Person the accounts of which would be consolidated with those of
the parent in the parent’s consolidated financial statements
if such financial statements were prepared in accordance with GAAP
as of such date, (b) any other corporation, limited liability
company, association or other business entity of which securities
or other ownership interests representing more than 50% of the
voting power of all equity interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the
Board of Directors thereof are, as of such date, owned, controlled
or held by the parent and/or one or more subsidiaries of the
parent, (c) any partnership (i) the sole general partner
or the managing general partner of which is the parent and/or one
or more subsidiaries of the parent or (ii) the only general
partners of which are the parent and/or one or more subsidiaries of
the parent and (d) any other Person that is otherwise
controlled by the parent and/or one or more subsidiaries of the
parent.
“ Subsidiary Guarantors ” has the meaning
assigned to such term in the Preamble to this Agreement.
“ Term Guarantors ” has the meaning assigned to
such term in the Preamble to this Agreement.
“ Term Loan Administrative Agent ” has the
meaning assigned to such term in the Preamble to this
Agreement.
“ Term Loan Claimholders ” means the First Lien
Term Loan Claimholders and the Second Lien Term Loan
Claimholders.
“ Term Loan Collateral ” means all now owned or
hereafter acquired Collateral other than the Revolving Credit
Primary Collateral, including, without limitation:
17
(a) all Accounts,
Chattel Paper and Instruments, in each case, solely to the extent
relating to the sale of Term Loan Collateral;
(b) all
Equipment;
(c) all Capital
Stock Collateral;
(d) all Real Estate
Assets;
(e) all documents of
title related to Equipment;
(f) all Intellectual
Property;
(g) all Term Loan
General Intangibles and all rights under Term Loan Hedge
Agreements;
(h) the Net Cash
Proceeds Account;
(i) all Records,
“supporting obligations” (as defined in Article 9 of
the UCC) and related Letters of Credit, commercial tort claims or
other claims and causes of action, in each case, to the extent
directly related to the foregoing; provided however ,
in the event that any such Records, “supporting
obligations” and related Letters of Credit, commercial tort
claims or other claims and causes of action directly relate to both
the Revolving Credit Primary Collateral and the Term Loan
Collateral, then only those which primarily relate to the Term Loan
Collateral shall be included in this definition; and
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;
provided , however , that the term “Term Loan
Collateral” shall include (as provided in Section 3.4
below) identifiable proceeds (including lease payments under leases
of Equipment) of Term Loan Collateral that are deposited or held in
any Deposit Accounts or Securities Accounts, in each case other
than the Net Cash Proceeds Account, after an Enforcement
Notice.
“ Term Loan Collateral Agent ” has the meaning
assigned to such term in the Preamble to this Agreement.
“ Term Loan Collateral Documents ” means the
First Lien Term Loan Collateral Documents and the Second Lien Term
Loan Collateral Documents.
“ Term Loan Credit Agreements ” has the meaning
assigned to such term in the Recitals to this Agreement.
“ Term Loan Default ” means an “Event of
Default” as such term is defined in the First Lien Term Loan
Credit Agreement and in the Second Lien Term Loan Credit Agreement,
as applicable.
“ Term Loan Documents ” means the First Lien
Term Loan Documents and the Second Lien Term Loan Documents.
18
“ Term Loan General Intangibles ” means all
General Intangibles pertaining to the other items of property
included within clauses (a), (b), (c), (d) and (f) of the
definition of Term Loan Collateral, including, without limitation,
all contingent rights with respect to warranties on Equipment.
“ Term Loan Guarantees ” has the meaning
assigned to such term in the Recitals to this Agreement.
“ Term Loan Hedge Agreement ” means any First
Lien Term Loan Hedge Agreement and any Second Lien Term Loan Hedge
Agreement.
“ Term Loan Lender Counterpart y” means any
Person who at the time such Hedge Agreement was entered into was
the administrative agent under any of the Term Loan Credit
Agreements, a Term Loan Lender or an Affiliate of any of the
foregoing Persons.
“Term Loan Lenders ” means the First Lien Term
Loan Lenders and the Second Lien Term Loan Lenders.
“ Term Loan 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 Term Loan Obligations or under
which rights or remedies with respect to any such Liens are
governed.
“ Term Loan Obligations ” means the First Lien
Term Loan Obligations and the Second Lien Term Loan
Obligations.
“ Term Loan Standstill Period ” has the meaning
set forth in Section 3.1(a)(1).
“ 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, collectively, with respect
to each Grantor, all trademarks, service marks, slogans, logos,
certification marks, trade dress, uniform resource locations
(URLs), domain names, corporate names, trade names and other source
or business identifiers, whether registered or unregistered, owned
by or assigned to such Grantor and all registrations and
applications for the foregoing (whether statutory or common law,
whether established or registered in the United States, any State
thereof, or any other country or any political subdivision thereof
and, in each case, whether owned by or licensed to such Grantor),
and all goodwill associated therewith, now existing or hereafter
adopted or acquired, together with any and all (i) rights and
privileges arising under applicable law with respect to such
Grantor’s use of any trademarks, (ii) reissues,
continuations, extensions and renewals thereof and amendments
thereto, (iii) income, fees, royalties, damages and payments
now and hereafter due and/or payable thereunder and with respect
thereto, including damages, claims and payments for past, present
or future infringements thereof, (iv) rights corresponding
thereto throughout the world and (v) rights to sue for past,
present and future infringements thereof.
“ UCC ” means the Uniform Commercial Code as in
effect from time to time (except as otherwise specified) in any
applicable state or jurisdiction.
19
“ UK Revolving Borrower ” has the meaning
assigned to such term in the Preamble to this Agreement.
“ US Borrower ” has the meaning assigned to such
term in the Preamble to this Agreement.
“ Voting Stock ” means, with respect to any
Person, any class or classes of Capital Stock pursuant to which the
holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the Board of
Directors of such Person.
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 references
to terms defined in the New York UCC shall have the meaning
ascribed to them therein (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.
1.3
Effect as a Deed . This Agreement is
intended to take effect as a deed notwithstanding the fact that a
party may only execute this Agreement under hand.
SECTION 2. Lien Priorities .
2.1
Relative Priorities . Notwithstanding
the date, time, method, manner or order of grant, attachment or
perfection of any Liens securing the Revolving Credit Obligations
granted on the Revolving Credit Primary Collateral or of any Liens
securing the Term Loan Obligations granted on the Revolving Credit
Primary Collateral and notwithstanding any provision of any UCC, or
any other applicable law or the Revolving Credit Documents or the
Term Loan Documents or any defect or deficiencies in, or failure to
perfect, such Liens securing the Revolving Credit Obligations or
the Term Loan Obligations or any other circumstance whatsoever,
each Revolving Credit Collateral Agent, on behalf of itself and the
Revolving Credit Claimholders and
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the Term Loan
Collateral Agent, on behalf of itself and the Term Loan
Claimholders, each hereby agree that any Lien of any Revolving
Credit Collateral Agent on the Revolving Credit Primary Collateral,
whether now or hereafter held by or on behalf of any Revolving
Credit Collateral Agent or any Revolving Credit Claimholder 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 all Liens
on the Revolving Credit Primary Collateral securing any Term Loan
Obligations.
2.2 Each
Revolving Credit Collateral Agent, on behalf of itself and the
Revolving Credit Claimholders, acknowledges that it does not have
and, prior to the Discharge of the Term Loan Obligations, shall not
have a Lien on the Term Loan Collateral. If for any reason any
Revolving Credit Collateral Agent, on behalf of itself and the
Revolving Credit Claimholders, obtains a Lien on the Term Loan
Collateral, any Lien of the Term Collateral Agent on the Term Loan
Collateral, whether now or hereafter held by or on behalf of the
Term Loan Collateral Agent or any Term Loan Claimholder 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 all Liens
on the
