Exhibit 4.7
INTERCREDITOR
AGREEMENT
Intercreditor Agreement (this
“ Agreement ”), dated as of July 2, 2009,
among JPMorgan Chase Bank, N.A., as Administrative Agent (in such
capacity, with its successors and assigns, and as more specifically
defined below, the “ ABL Representative ”) for
the ABL Secured Parties (as defined below), U.S. Bank National
Association, (“ U.S. Bank ”), as collateral
agent (in such capacity, with its successors and assigns, and as
more specifically defined below, the “ Term Debt
Representative ”) for the Term Debt Secured Parties (as
defined below) and each of the Loan Parties (as defined below)
party hereto.
WHEREAS, Smithfield Foods, Inc., a
Virginia corporation (“ Borrower ”), the
subsidiary guarantors, the ABL Representative and certain financial
institutions and other entities are parties to the Amended and
Restated Credit Agreement dated as of the date hereof (the “
Existing ABL Agreement ”), pursuant to which such
financial institutions and other entities have agreed to make loans
and extend other financial accommodations to the Loan
Parties;
WHEREAS, Borrower, Coöperatieve
Centrale Raiffeisen-Boerenleenbank B.A. “Rabobank
Nederland”, New York Branch and certain financial
institutions and other entities are parties to the Term Loan
Agreement dated as of the date hereof (as amended, the “
Existing Term Loan Agreement ”), pursuant to which
such financial institutions and other entities have agreed to make
term loans to Borrower, and such term loans are guaranteed by
certain of the Loan Parties;
WHEREAS, Borrower, U.S. Bank, as
trustee, the guarantors and other entities are parties to the
Indenture dated as of the date hereof (the “ Existing
Senior Secured Notes Agreement ”), pursuant to which the
Borrower has issued senior secured notes;
WHEREAS, Borrower has granted to the
ABL Representative security interests and liens in the Collateral
(as defined below) as security for payment and performance of the
ABL Obligations; and
WHEREAS, Borrower has granted to the
Term Debt Representative security interests and liens in the
Collateral as security for payment and performance of the Term Debt
Obligations (as defined below).
NOW THEREFORE, in consideration of
the foregoing and the mutual covenants herein contained and other
good and valuable consideration, the existence and sufficiency of
which is expressly recognized by all of the parties hereto, the
parties agree as follows:
SECTION 1
. Definitions; Rules of
Construction.
1.1 UCC Definitions . The
following terms which are defined in the Uniform Commercial Code
are used herein as so defined: Accounts, Chattel Paper, Commercial
Tort Claims, Deposit Accounts, Documents, Equipment, General
Intangibles, Goods, Instruments, Inventory, Investment Property,
Letter of Credit, Letter of Credit Rights, Records, Securities
Account and Supporting Obligations.
1.2. Defined Terms . The
following terms, as used herein, have the following
meanings:
“ ABL Agreement ”
means the collective reference to (a) the Existing ABL
Agreement, (b) any Additional ABL Agreement and (c) any
other credit agreement, loan agreement, note agreement, promissory
note, indenture or other agreement or instrument evidencing or
governing the terms of any indebtedness or other financial
accommodation that has at any time been incurred to extend,
replace, refinance or refund in whole or in part the indebtedness
and other obligations outstanding under the
Existing ABL Agreement (regardless of whether
such replacement, refunding or refinancing (i) is a
“working capital” facility, asset-based facility,
revolving loan facility, term loan facility or otherwise or
(ii) was entered into after the ABL Obligations Payment Date),
any Additional ABL Agreement or any other agreement or instrument
referred to in this clause (c) unless such agreement or
instrument expressly provides that it is not intended to be and is
not an ABL Agreement hereunder (a “ Replacement ABL
Agreement ”). Any reference to the ABL Agreement
hereunder shall be deemed a reference to any ABL Agreement then
extant.
“ ABL Creditors ”
means, collectively, the “Lenders” and the
“Secured Parties”, each as defined in the ABL
Agreement.
“ ABL DIP Financing
” has the meaning set forth in Section 5.2(a)
.
“ ABL Documents ”
means the ABL Agreement, each ABL Security Document, each ABL
Guarantee and each other “Loan Document” as defined in
the ABL Agreement.
“ ABL Guarantee ”
means any guarantee by any Loan Party of any or all of the ABL
Obligations.
“ ABL Lien ”
means any Lien created by the ABL Security Documents.
“ ABL Obligations
” means (a) all principal of and interest (including
without limitation any Post-Petition Interest) and premium (if any)
on all loans made pursuant to the ABL Agreement or any ABL DIP
Financing by the ABL Creditors, (b) all reimbursement
obligations (if any) and interest thereon (including without
limitation any Post-Petition Interest) with respect to any letter
of credit or similar instruments issued pursuant to the ABL
Agreement, (c) all Swap Obligations, (d) all Banking
Services Obligations and (e) all guarantee obligations,
indemnities, fees, expenses and other amounts payable from time to
time pursuant to the ABL Documents, in each case whether or not
allowed or allowable in an Insolvency Proceeding. To the extent any
payment with respect to any ABL Obligation (whether by or on behalf
of any Loan Party, as Proceeds of security, enforcement of any
right of setoff or otherwise) is declared to be a fraudulent
conveyance or a preference in any respect, set aside or required to
be paid to a debtor in possession, any Term Debt Secured Party,
receiver or similar Person, then the obligation or part thereof
originally intended to be satisfied shall, for the purposes of this
Agreement and the rights and obligations of the ABL Secured Parties
and the Term Debt Secured Parties, be deemed to be reinstated and
outstanding as if such payment had not occurred.
“ ABL Obligations Payment
Date ” means the first date on which (a) the ABL
Obligations (other than those that constitute Unasserted Contingent
Obligations) have been indefeasibly paid in cash in full (or cash
collateralized or defeased in accordance with the terms of the ABL
Documents), (b) all commitments to extend credit under the ABL
Documents have been terminated, (c) there are no outstanding
letters of credit or similar instruments issued under the ABL
Documents (other than such as have been cash collateralized or
defeased in accordance with the terms of the ABL Documents), and
(d) so long as the Term Debt Obligations Payment Date shall
not have occurred, the ABL Representative has delivered a written
notice to the Term Debt Representative stating that the events
described in clauses (a), (b) and (c) have occurred to
the satisfaction of the ABL Secured Parties.
“ ABL Post-Petition
Assets ” has the meaning set forth in
Section 5.2(b) .
“ ABL Priority
Collateral ” means all Collateral consisting of the
following:
(1) all Accounts;
2
(2) all Inventory;
(3) all Capital Stock;
(4) all Intellectual
Property;
(5) all Deposit Accounts (other than
the Non-ABL Collateral Account);
(6) all cash and cash equivalents
(except to the extent held or required to be held in the Non-ABL
Collateral Account);
(7) all intercompany
notes;
(8) to the extent evidencing or
governing any of the items referred to in the preceding
clauses (1) , (2) , (3) , (4) ,
(5) , (6) and (7) all Chattel
Paper, Documents, Instruments, General Intangibles and Securities
Accounts related thereto; provided that to the extent any of
the foregoing also relates to Term Debt Priority Collateral only
that portion related to the items referred to in the preceding
clauses (1) , (2) , (3) , (4) ,
(5) , (6) and (7) shall be
included in the ABL Priority Collateral;
(9) all books and records relating
to the foregoing (including without limitation all books,
databases, customer lists and records, whether tangible or
electronic which contain any information relating to any of the
foregoing); and
(10) all Proceeds of and Supporting
Obligations, including, without limitation, Letter of Credit
Rights, with respect to any of the foregoing and all collateral
security and guarantees given by any Person with respect to any of
the foregoing.
“ ABL Representative
” has the meaning set forth in the introductory paragraph
hereof. In the case of any Replacement ABL Agreement, the ABL
Representative shall be the Person identified as such in such
Agreement.
“ ABL Secured Parties
” means the ABL Representative, the ABL Creditors and any
other holders of the ABL Obligations.
“ ABL Security
Documents ” means the “Collateral Documents”
as defined in the ABL Agreement, and any other documents that are
designated under the ABL Agreement as “ABL Security
Documents” for purposes of this Agreement.
“ Access Period ”
means, with respect to each parcel or item of Term Debt Priority
Collateral, the period, following the commencement of any
Enforcement Action, which begins on the earlier of (a) the day
on which the ABL Representative provides the Term Debt
Representative with the notice of its election to request access to
such parcel or item of Term Debt Priority Collateral pursuant to
Section 3.4(c) and (b) the fifth Business Day
after the Term Debt Representative provides the ABL Representative
with notice that the Term Debt Representative (or its agent) has
obtained possession or control of such parcel or item of Term Debt
Priority Collateral and ends on the earliest of (i) the day
which is 180 days after the date (the “ Initial Access
Date ”) on which the ABL Representative initially obtains
the ability to take physical possession of, remove or otherwise
control physical access to, or actually uses, such parcel or item
of Term Debt Priority Collateral plus such number of days, if any,
after the Initial Access Date that it is stayed or otherwise
prohibited by law or court order from exercising
3
remedies with respect to associated ABL Priority
Collateral, (ii) the date on which all or substantially all of
the ABL Priority Collateral associated with such parcel or item of
Term Debt Priority Collateral is sold, collected or liquidated,
(iii) the ABL Obligations Payment Date and (iv) the date
on which the default which resulted in such Enforcement Action has
been cured or waived in writing.
“ Additional ABL
Agreement ” means any agreement for the incurrence of
additional indebtedness that is permitted to be secured by the ABL
Priority Collateral pursuant to the Term Loan Agreement and the
Senior Secured Notes Agreement and any agreement approved for
designation as such by the ABL Representative and the Term Debt
Representative.
“ Additional Debt
” has the meaning set forth in Section 10.5(b)
.
“ Additional Senior Secured
Notes Agreement ” means any agreement for the issuance of
senior secured notes that is permitted by Sections 6.01(b), 6.01(g)
(to the extent that such issuance is to refinance debt incurred
pursuant to Section 6.01(b) (or to subsequently refinance any
such Section 6.01(b) refinanced debt)) or 6.01(r) of the
Existing ABL Agreement (and any equivalent section of another ABL
Agreement), Sections 6.08 and 6.13 of the Existing Term Loan
Agreement (and any equivalent section of another Term Loan
Agreement) and Sections 2.1 and 3.3 of the Existing Senior Secured
Notes Agreement (and any equivalent section of another Senior
Secured Notes Agreement), and any agreement approved for
designation as such by the ABL Representative and the Term Debt
Representative.
“ Additional Term Loan
Agreement ” means any agreement for the incurrence of
incremental term loans that is permitted by the ABL Agreement, the
Term Loan Agreement and the Senior Secured Notes Agreement, and any
agreement approved for designation as such by the ABL
Representative and the Term Debt Representative.
“ Banking Services
Obligations ” means, with respect to any Loan Party, any
obligations of such Loan Party, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), owed to any ABL Secured Party (or any of
its affiliates) in respect of the following bank services:
(a) credit cards for commercial customers (including, without
limitation, “commercial credit cards” and purchasing
cards), (b) stored value cards and (c) treasury
management services (including, without limitation, controlled
disbursement, automated clearinghouse transactions, return items,
overdrafts and interstate depository network services).
“ Bankruptcy Code
” means the United States Bankruptcy Code (11 U.S.C.
§101 et seq.), as amended from time to time.
“ Borrower ” has
the meaning set forth in the first WHEREAS clause above.
“ Business Day ”
means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law
to remain closed.
“ Capital Stock ”
means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to
purchase any of the foregoing.
“ Collateral ”
means, collectively, all property upon which a Lien is granted
pursuant to the Security Documents.
4
“ Comparable Security
Document ” means, in relation to any Senior Collateral
subject to any Senior Security Document, that Junior Security
Document that creates a security interest in the same Senior
Collateral, granted by the same Loan Party, as
applicable.
“ Copyrights ”
means, with respect to any Person, all of such Person’s
right, title, and interest in and to the following: (a) all
copyrights, rights and interests in copyrights, works protectable
by copyright, copyright registrations, and copyright applications;
(b) all renewals of any of the foregoing; (c) all income,
royalties, damages, and payments now or hereafter due and/or
payable under any of the foregoing, including, without limitation,
damages or payments for past or future infringements for any of the
foregoing; (d) the right to sue for past, present, and future
infringements of any of the foregoing; and (e) all rights
corresponding to any of the foregoing throughout the
world.
“ Enforcement Action
” means, with respect to the ABL Obligations or the Term Debt
Obligations, the exercise of any rights and remedies with respect
to any Collateral securing such obligations or the commencement or
prosecution of enforcement of any of the rights and remedies under,
as applicable, the ABL Documents or the Term Debt Documents, or
applicable law, including without limitation the exercise of any
rights of set-off or recoupment, and the exercise of any rights or
remedies of a secured creditor under the Uniform Commercial Code of
any applicable jurisdiction or under the Bankruptcy
Code.
“ Existing ABL
Agreement ” has the meaning set forth in the first
WHEREAS clause of this Agreement.
“ Existing Senior Secured
Notes Agreement ” has the meaning set forth in the third
WHEREAS clause of this Agreement.
“ Existing Term Loan
Agreement ” has the meaning set forth in the second
WHEREAS clause of this Agreement.
“ Insolvency Proceeding
” means any proceeding in respect of bankruptcy, insolvency,
winding up, receivership, dissolution or assignment for the benefit
of creditors, in each of the foregoing events whether under the
Bankruptcy Code or any similar federal, state or foreign
bankruptcy, insolvency, reorganization, receivership or similar
law.
“ Intellectual Property
” means, the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Patents, the
Trademarks and the Licenses, and all rights to sue at law or in
equity for any Infringement thereof, including the right to receive
all proceeds and damages therefrom.
“ Junior Collateral
” shall mean with respect to any Junior Secured Party, any
Collateral on which it has a Junior Lien.
“ Junior Documents
” shall mean, collectively, with respect to any Junior
Obligations, any provision pertaining to such Junior Obligation in
any Loan Document or any other document, instrument or certificate
evidencing or delivered in connection with such Junior
Obligation.
“ Junior Liens ”
shall mean (a) with respect to any ABL Priority Collateral,
all Liens securing the Term Debt Obligations and (b) with
respect to any Term Debt Priority Collateral, all Liens securing
the ABL Obligations.
5
“ Junior Obligations
” shall mean (a) with respect to any ABL Priority
Collateral, all Term Debt Obligations and (b) with respect to
any Term Debt Priority Collateral, all ABL Obligations.
“ Junior Representative
” shall mean (a) with respect to any ABL Obligations or
any ABL Priority Collateral, the Term Debt Representative and
(b) with respect to any Term Debt Obligations or any Term Debt
Priority Collateral, the ABL Representative.
“ Junior Secured
Parties ” shall mean (a) with respect to the ABL
Priority Collateral, all Term Debt Secured Parties and
(b) with respect to the Term Debt Priority Collateral, all ABL
Secured Parties.
“ Junior Security
Documents ” shall mean with respect to any Junior Secured
Party, the Security Documents that secure the Junior
Obligations.
“ Lien ” means,
with respect to any asset, (a) any mortgage, deed of trust,
deed to secure debt, lien, pledge, hypothecation, assignment,
assignation, debenture, encumbrance, charge or security interest
in, on or of such asset, (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
asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such
securities.
“ Licenses ”
means, with respect to any Person, all of such Person’s
right, title, and interest in and to (a) any and all licensing
agreements or similar arrangements in and to its Patents,
Copyrights, or Trademarks, (b) all income, royalties, damages,
claims, and payments now or hereafter due or payable under and with
respect thereto, including, without limitation, damages and
payments for past and future breaches thereof, and (c) all
rights to sue for past, present, and future breaches
thereof.
“ Lien Priority ”
means with respect to any Lien of the ABL Representative or Term
Debt Representative in the Collateral, the order of priority of
such Lien specified in Section 2.1 .
“ Loan Documents
” shall mean, collectively, the ABL Documents and the Term
Debt Documents.
“ Loan Party ”
means Borrower and each direct or indirect affiliate or shareholder
(or equivalent) of Borrower or any of its affiliates that is now or
hereafter becomes a party to any ABL Document or any Term Debt
Document. All references in this Agreement to any Loan Party shall
include such Loan Party as a debtor-in-possession and any receiver
or trustee for such Loan Party in any Insolvency
Proceeding.
“ Non-ABL Collateral
Account ” means the “Non-ABL Collateral
Account” as defined in the Senior Secured Notes Security
Documents.
“ Patents ” means
with respect to any Person, all of such Person’s right,
title, and interest in and to: (a) any and all patents and
patent applications; (b) all inventions and improvements
described and claimed therein; (c) all reissues, divisions,
continuations, renewals, extensions, and continuations-in-part
thereof; (d) all income, royalties, damages, claims, and
payments now or hereafter due or payable under and with respect
thereto, including, without limitation, damages and payments for
past and future infringements thereof; (e) all rights to sue
for past, present, and future infringements thereof; and
(f) all rights corresponding to any of the foregoing
throughout the world.
“ Person ” means
any person, individual, sole proprietorship, partnership, joint
venture, corporation, limited liability company, unincorporated
organization, association, institution, entity, party, including
any government and any political subdivision, agency or
instrumentality thereof.
6
“ Post-Petition
Interest ” means any interest or entitlement to fees or
expenses or other charges that accrues after the commencement of
any Insolvency Proceeding (or would accrue but for the commencement
of an Insolvency Proceeding), whether or not allowed or allowable
in any such Insolvency Proceeding.
“ Priority Collateral
” means the ABL Priority Collateral or the Term Debt Priority
Collateral.
“ Proceeds ”
means (a) all “proceeds,” as defined in Article 9
of the Uniform Commercial Code, with respect to the Collateral, and
(b) whatever is recoverable or recovered when any Collateral
is sold, exchanged, collected, or disposed of, whether voluntarily
or involuntarily, including, without limitation, all proceeds of
any insurance policy covering the Collateral.
“ Real Property ”
means any right, title or interest in and to real property,
including any fee interest, leasehold interest, easement, or
license and any other right to use or occupy real property,
including any right arising by contract.
“ Replacement ABL
Agreement ” has the meaning set forth in the definition
of “ABL Agreement.”
“ Replacement Senior
Secured Notes Agreement ” has the meaning set forth in
the definition of “Senior Secured Notes
Agreement.”
“ Replacement Term Loan
Agreement ” has the meaning set forth in the definition
of “Term Loan Agreement.”
“ Secured Obligations
” shall mean the ABL Obligations and the Term Debt
Obligations.
“ Secured Parties
” means the ABL Secured Parties and the Term Debt Secured
Parties.
“ Security Documents
” means, collectively, the ABL Security Documents and the
Term Debt Security Documents.
“ Senior Collateral
” shall mean with respect to any Senior Secured Party, any
Collateral on which it has a Senior Lien.
“ Senior Documents
” shall mean, collectively, with respect to any Senior
Obligation, any provision pertaining to such Senior Obligation in
any Loan Document or any other document, instrument or certificate
evidencing or delivered in connection with such Senior
Obligation.
“ Senior Liens ”
shall mean (a) with respect to the ABL Priority Collateral,
all Liens securing the ABL Obligations and (b) with respect to
the Term Debt Priority Collateral, all Liens securing the Term Debt
Obligations.
“ Senior Obligations
” shall mean (a) with respect to any ABL Priority
Collateral, all ABL Obligations and (b) with respect to any
Term Debt Priority Collateral, all Term Debt
Obligations.
“ Senior Obligations
Payment Date ” shall mean (a) with respect to ABL
Obligations, the ABL Obligations Payment Date and (b) with
respect to any Term Debt Obligations, the Term Debt Obligations
Payment Date.
7
“ Senior Representative
” shall mean (a) with respect to any ABL Priority
Collateral, the ABL Representative and (b) with respect to any
Term Debt Priority Collateral, the Term Debt
Representative.
“ Senior Secured Notes
” means the senior secured notes of the Borrower issued and
sold on or after the “Issue Date” (as defined in the
Senior Secured Notes Agreement) pursuant to the Senior Secured
Notes Documents and any exchange notes issued in exchange therefor,
in each case, pursuant to the Senior Secured Notes
Agreement.
“ Senior Secured Notes
Agreement ” means the collective reference to
(a) the Existing Senior Secured Notes Agreement, (b) any
Additional Senior Secured Notes Agreement and (c) any other
credit agreement, loan agreement, note agreement, promissory note,
indenture or other agreement or instrument evidencing or governing
the terms of any indebtedness or other financial accommodation that
has at any time been incurred to extend, replace, refinance or
refund in whole or in part the indebtedness and other obligations
outstanding under the Existing Senior Secured Notes Agreement, any
Additional Senior Secured Notes Agreement or any other agreement or
instrument referred to in this clause (c) unless such
agreement or instrument expressly provides that it is not intended
to be and is not a Senior Secured Notes Agreement hereunder (a
“ Replacement Senior Secured Notes Agreement
”). Any reference to the Senior Secured Notes Agreement
hereunder shall be deemed a reference to any Senior Secured Notes
Agreement then extant.
“ Senior Secured Notes
Documents ” means the Senior Secured Notes Agreement, the
Senior Secured Notes Security Documents, the purchase agreement
among the Borrower, the guarantors party thereto, and the initial
purchasers thereunder with respect to the Senior Secured Notes and
all other agreements, instruments and other documents (including
collateral documents with respect thereto) pursuant to which the
Senior Secured Notes have been or will be issued or otherwise
setting forth the terms of the Senior Secured Notes.
“ Senior Secured Notes
Obligations ” means (a) all principal of and
interest (including without limitation any Post-Petition Interest)
and premium (if any) on all indebtedness under the Senior Secured
Notes Agreement or any Term Debt DIP Financing by the Senior
Secured Notes Secured Parties, and (b) all guarantee
obligations, indemnities, fees, expenses and other amounts payable
from time to time pursuant to the Senior Secured Notes Documents,
in each case whether or not allowed or allowable in an Insolvency
Proceeding. To the extent any payment with respect to any Senior
Secured Notes Obligation (whether by or on behalf of any Loan
Party, as Proceeds of security, enforcement of any right of setoff
or otherwise) is declared to be a fraudulent conveyance or a
preference in any respect, set aside or required to be paid to a
debtor in possession, any ABL Secured Party, receiver or similar
Person, then the obligation or part thereof originally intended to
be satisfied shall, for the purposes of this Agreement and the
rights and obligations of the ABL Secured Parties and the Senior
Secured Notes Secured Parties, be deemed to be reinstated and
outstanding as if such payment had not occurred.
“ Senior Secured Notes
Obligations Payment Date ” means the first date on which
(a) the Senior Secured Notes Obligations (other than those
that constitute Unasserted Contingent Obligations) have been
indefeasibly paid in cash in full, (b) all commitments to
extend credit under the Senior Secured Notes Documents have been
terminated, and (c) so long as the ABL Obligations Payment
Date shall not have occurred, the Term Debt Representative has
delivered a written notice to the ABL Representative stating that
the events described in clauses (a) and (b) have occurred
to the satisfaction of the Senior Secured Notes Secured
Parties.
“ Senior Secured Notes
Secured Parties ” means the Term Debt Secured Parties
holding Senior Secured Notes Obligations.
8
“ Senior Secured Notes
Security Documents ” means the “Collateral
Documents” as defined in the Senior Secured Notes Agreements
and any documents that are designated under the Senior Secured
Notes Agreement as “Collateral Documents” for purposes
of this Agreement.
“ Senior Secured
Parties ” shall mean (a) with respect to the ABL
Priority Collateral, all ABL Secured Parties and (b) with
respect to the Term Debt Priority Collateral, all Term Debt Secured
Parties.
“ Senior Security
Documents ” shall mean with respect to any Senior Secured
Party, the Security Documents that secure the Senior
Obligations.
“ Swap Obligations
” means, with respect to any Loan Party, any obligations of
such Loan Party owed to any ABL Creditor (or any of its affiliates)
in respect of any swap, forward, future or derivative transaction
or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt
instruments or securities, or economic, financial or pricing
indices or measures of economic, financial or pricing risk or value
or any similar transaction or any combination of these transactions
or any and all cancellations, buy backs, reversals, terminations or
assignments of any these transactions.
“ Term Debt Agreement
” means the collective reference to (a) the Term Loan
Agreement and (b) the Senior Secured Notes
Agreement.
“ Term Debt Creditors
” means Term Debt Secured Parties.
“ Term Debt DIP
Financing ” has the meaning set forth in
Section 5.2(b) .
“ Term Debt Documents
” means each Senior Secured Notes Document and Term Loan
Document.
“ Term Debt Intercreditor
Agreement ” means the Intercreditor and Collateral Agency
Agreement dated the date hereof among the Loan Parties, U.S Bank,
as collateral agent, U.S. Bank as trustee for the Senior Secured
Notes and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.
“Rabobank Nederland”, New York Branch, as
administrative agent under the Existing Term Loan
Agreement.
“
Term Debt Lien
” means any Lien created by
the Term Debt Security Documents.
“ Term Debt Obligations
” means the Senior Secured Notes Obligations and the Term
Loan Obligations.
“ Term Debt Obligations
Payment Date ” means the first date on which
(a) Senior Secured Notes Obligations Payment Date and
(b) the Term Debt Obligations Payment Date have
occurred.
“ Term Debt Priority
Collateral ” means all Collateral other than the ABL
Priority Collateral; provided , however , “Term
Debt Priority Collateral” shall not include Proceeds from the
disposition of any Term Debt Priority Collateral to the extent such
Proceeds are not required to be deposited in the Non-ABL Collateral
Account or not required to be applied to the mandatory prepayment
or repurchase of the Term Debt Obligations pursuant to the Term
Debt Documents, unless such Proceeds arise from a disposition of
Term Debt Priority Collateral resulting from Enforcement Action
taken by the Term Debt Secured Parties permitted by this Agreement.
If such Proceeds are required to be deposited in the Non-ABL
Collateral Account or are required to be applied to the mandatory
prepayment or repurchase of the Term Debt Obligations or arise from
a disposition of Term Debt Priority Collateral resulting from
an
9
Enforcement Action, such Proceeds shall not be
included in the ABL Priority Collateral (not withstanding anything
in the definition thereof to the contrary, including anything in
the definition of Accounts to the contrary) and shall be Term Debt
Priority Collateral. With respect to Proceeds deposited in the
Non-ABL Collateral Account only, such Proceeds shall be Term Debt
Priority Collateral until such time as the use of such Proceeds is
no longer restricted by the Term Debt Documents unless they have
been applied to the payment of the Term Debt
Obligations.
“ Term Debt
Representative ” has the meaning set forth in the
introductory paragraph hereof. The Term Debt Representative shall
be the Person identified as the “Collateral Agent” in
the Term Debt Intercreditor Agreement.
“ Term Debt Secured
Parties ” means the “Secured Parties” as
defined under the Term Debt Security Agreement.
“ Term Debt Security
Agreement ” means the Pledge and Security Agreement
entered into as of July 2, 2009 by and between the Borrower,
and the other Persons listed on the signature pages thereof, as
guarantors, and U.S. Bank, in its capacity as collateral agent for
the secured parties.
“ Term Debt Security
Documents ” means the Senior Secured Notes Security
Documents and the Term Loan Security Documents.
“ Term Loan Agreement
” means the collective reference to (a) the Existing
Term Loan Agreement, (b) any Additional Term Loan Agreement
and (c) any other credit agreement, loan agreement, note
agreement, promissory note, indenture or other agreement or
instrument evidencing or governing the terms of any indebtedness or
other financial accommodation that has at any time been incurred to
extend, replace, refinance or refund in whole or in part the
indebtedness and other obligations outstanding under the Existing
Term Loan Agreement, any Additional Term Loan Agreement or any
other agreement or instrument referred to in this clause
(c) unless such agreement or instrument expressly provides
that it is not intended to be and is not a Term Loan Agreement
hereunder (a “ Replacement Term Loan Agreement
”). Any reference to the Term Loan Agreement hereunder shall
be deemed a reference to any Term Loan Agreement then
extant.
“ Term Loan Documents
” means each Term Loan Agreement, each Term Loan Security
Document, each Term Loan Guarantee and each other “Loan
Document” as defined in the Term Loan Agreement.
“ Term Loan Guarantee
” means any guarantee by any Loan Party of any or all of the
Term Loan Obligations.
“ Term Loan Obligations
” means (a) all principal of and interest (including
without limitation any Post-Petition Interest), prepayment penalty
and premium (if any) on all indebtedness under the Term Loan
Agreement or any Term Debt DIP Financing by the Term Loan Secured
Parties, and (b) all guarantee obligations, indemnities, fees,
expenses and other amounts payable from time to time pursuant to
the Term Loan Documents, in each case whether or not allowed or
allowable in an Insolvency Proceeding. To the extent any payment
with respect to any Term Loan Obligation (whether by or on behalf
of any Loan Party, as Proceeds of security, enforcement of any
right of setoff or otherwise) is declared to be a fraudulent
conveyance or a preference in any respect, set aside or required to
be paid to a debtor in possession, any ABL Secured Party, receiver
or similar Person, then the obligation or part thereof originally
intended to be satisfied shall, for the purposes of this Agreement
and the rights and obligations of the ABL Secured Parties and the
Term Loan Secured Parties, be deemed to be reinstated and
outstanding as if such payment had not occurred.
10
“ Term Loan Obligations
Payment Date ” means the first date on which (a) the
Term Loan Obligations (other than those that constitute Unasserted
Contingent Obligations) have been indefeasibly paid in cash or cash
collateralized in full, (b) all commitments to extend credit
under the Term Loan Documents have been terminated, and (c) so
long as the ABL Obligations Payment Date shall not have occurred,
the Term Debt Representative has delivered a written notice to the
ABL Representative stating that the events described in clauses
(a) and (b) have occurred to the satisfaction of the Term
Loan Secured Parties.
“ Term Loan Secured
Parties ” means the Term Debt Secured Parties holding
Term Loan Obligations.
“ Term Loan Security
Documents ” means the “Collateral Documents”
as defined in the Term Loan Agreement and any documents that are
designated under the Term Loan Agreement as “Term Loan
Security Documents” for purposes of this
Agreement.
“ Term Post-Petition
Assets ” has the meaning set forth in
Section 5.2(a) .
“ Trademarks ”
means with respect to any Person, all of such Person’s right,
title, and interest in and to the following: (a) all
trademarks (including service marks), trade names, trade dress,
trade styles, brand names, corporate names, business names, domain
names, logos and other source or business identifiers and the
registrations and applications for registration thereof, all
common-law rights related thereto, and the goodwill of the business
symbolized by the foregoing; (b) all renewals of the
foregoing; (c) all income, royalties, damages, and payments
now or hereafter due or payable with respect thereto, including,
without limitation, damages, claims, and payments for past and
future infringements thereof; (d) all rights to sue for past,
present, and future infringements of the foregoing, including the
right to settle suits involving claims and demands for royalties
owing; and (e) all rights corresponding to any of the
foregoing throughout the world.
“ Unasserted Contingent
Obligations ” shall mean, at any time, ABL Obligations or
Term Debt Obligations, as applicable, for taxes, costs,
indemnifications, reimbursements, damages and other liabilities
(excluding (a) the principal of, and interest and premium (if
any) on, and fees and expenses relating to, any ABL Obligation or
Term Debt Obligation, as applicable, and (b) with respect to
ABL Obligations contingent reimbursement obligations in respect of
amounts that may be drawn under outstanding letters of credit) in
respect of which no assertion of liability (whether oral or
written) and no claim or demand for payment (whether oral or
written) has been made (and, in the case of ABL Obligations or Term
Debt Obligations, as applicable, for indemnification, no notice for
indemnification has been issued by the indemnitee) at such
time.
“ Uniform Commercial
Code ” shall mean the Uniform Commercial Code as in
effect from time to time in the applicable jurisdiction.
1.3 Rules of Construction .
The definitions of terms herein 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
11
referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any
reference herein to any Person shall be construed to include such
Person’s 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
Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) 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.
SECTION 2.
Lien Priority .
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 Security
Document, any alleged or actual defect or deficiency in any of the
foregoing or any other circumstance whatsoever, the Junior
Representative, 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
(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, the Junior
Representative, on behalf of each Junior Secured Party, 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
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 Nature of Obligations .
The Term Debt Representative on behalf of itself and the other Term
Debt Secured Parties acknowledges that a portion of the ABL
Obligations represents debt that is revolving in nature and that
the amount thereof that may be outstanding at any time or from time
to time may be increased, reduced or repaid and subsequently
reborrowed, and that the terms of the ABL Obligations and any ABL
Agreement or any provision thereof may be waived, modified,
extended, amended, restated or supplemented from time to time, and
that the aggregate amount of the ABL Obligations may be increased,
replaced or refinanced, in each event, without notice to or consent
by the Term Debt Secured Parties and without affecting the
provisions hereof. The ABL Representative on behalf of itself and
the other ABL Secured Parties acknowledges that Term Debt
Obligations may be replaced or refinanced and the amount of any
Term Debt Obligations may be increased, reduced, or
12
repaid, and any Term Debt Document or any
provision thereof may be waived, modified, extended, amended,
restated or supplemented from time to time, and that the aggregate
amount of the Term Debt Obligations may be increased, replaced or
refinanced, in each event, without notice to or consent by the ABL
Secured Parties and without affecting the provisions hereof. The
Lien Priorities provided in Section 2.1 shall not be
altered or otherwise affected by any such amendment, modification,
supplement, extension, repayment, reborrowing, increase,
replacement, renewal, restatement or refinancing of either the ABL
Obligations or the Term Debt Obligations, or any portion
thereof.
2.4 No New Liens .
(a) Until the ABL Obligations Payment Date, no Term Debt
Secured Party shall acquire or hold any Lien on any assets of any
Loan Party securing any Term Debt Obligation which assets are not
also subject to the Lien of the ABL Representative under the ABL
Documents, subject to the Lien Priority set forth herein. If any
Term Debt Secured Party shall (nonetheless and in breach hereof)
acquire or hold any Lien on any assets of any Loan Party securing
any Term Debt Obligation which assets are not also subject to the
Lien of the ABL Representative under the ABL Documents, subject to
the Lien Priority set forth herein, then the Term Debt
Representative (or the relevant Term Debt Secured Party) shall,
without the need for any further consent of any other Term Debt
Secured Party and notwithstanding anything to the contrary in any
other Term Debt Document be deemed to also hold and have held such
lien for the benefit of the ABL Representative as security for the
ABL Obligations (subject to the Lien Priority and other terms
hereof) and shall promptly notify the ABL Representative in writing
of the existence of such Lien.
(b) Until the Term Debt Obligations
Payment Date, no ABL Secured Party shall acquire or hold any Lien
on any assets of any Loan Party securing any ABL Obligation which
assets are not also subject to a Lien under the Term Debt
Documents, subject to the Lien Priority set forth herein. If any
ABL Secured Party shall (nonetheless and in breach hereof) acquire
or hold any Lien on any assets of any Loan Party securing any ABL
Obligation which assets are not also subject to a Lien under the
Term Debt Documents, subject to the Lien Priority set forth herein,
then the ABL Representative (or the relevant ABL Secured Party)
shall, without the need for any further consent of any other ABL
Secured Party and notwithstanding anything to the contrary in any
other ABL Document be deemed to also hold and have held such lien
for the benefit of the Term Debt Representative as security for the
Term Debt Obligations (subject to the Lien Priority and other terms
hereof) and shall promptly notify the Term Debt Representative in
writing of the existence of such Lien.
2.5 Separate Grants of Security
and Separate Classification . Each Secured Party acknowledges
and agrees that (i) the grants of Liens pursuant to the ABL
Security Documents and the Term Debt Security Documents constitute
two separate and distinct grants of Liens and (ii) because of,
among other things, their differing rights in the Collateral, the
Term Debt Obligations are fundamentally different from the ABL
Obligations and should be separately classified in any plan of
reorganization proposed or adopted in an Insolvency Proceeding. To
further effectuate the intent of the parties as provided in the
immediately preceding sentence, if it is held that the claims of
the ABL Secured Parties and the Term Debt Secured Parties in
respect of the Collateral constitute claims in the same class
(rather than separate classes of senior and junior secured claims),
then the ABL Secured Parties and the Term Debt Secured Parties
hereby acknowledge and agree that all distributions shall be made
as if there were separate classes of ABL Obligation claims and Term
Debt Obligation claims against the Loan Parties (with the effect
being that, to the extent that the aggregate value of the ABL
Priority Collateral or Term Debt Priority Collateral is sufficient
(for this purpose ignoring all claims held by the other Secured
Parties), the ABL Secured Parties or the Term Debt Secured Parties,
respectively, 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 that are available from each pool of Priority Collateral
for each of the ABL Secured Parties and the Term Debt Secured
Parties, respectively, before
13
any distribution is made in respect of the
claims held by the other Secured Parties, with the other Secured
Parties hereby acknowledging and agreeing to turn over to the
respective other 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 aggregate recoveries.
2.6 Agreements Regarding Actions
to Perfect Liens . (a) The ABL Representative agrees on
behalf of itself and the other ABL Secured Parties that all
mortgages, deeds of trust, deeds and similar instruments
(collectively, “ mortgages ”) now or hereafter
filed against Real Property in favor of or for the benefit of the
ABL Representative shall contain the following notation: “The
lien created by this mortgage on the property described herein is
junior and subordinate to the lien on such property created by any
mortgage, deed of trust or similar instrument now or hereafter
granted to U.S. Bank National Association, as Term Debt
Representative, in accordance with the provisions of the
Intercreditor Agreement dated as of July 2, 2009, as amended
from time to time.”
(b) Each of the ABL Representative
and the Term Debt Representative hereby acknowledges that, to the
extent that it holds, or a third party holds on its behalf,
physical possession of or “control” (as defined in the
Uniform Commercial Code) over Collateral pursuant to the ABL
Security Documents or the Term Debt Security Documents, as
applicable, such possession or control is also for the benefit of
the Term Debt Representative and the other Term Debt Secured
Parties or the ABL Representative and the other ABL Secured
Parties, as applicable, solely to the extent required to perfect
their security interest in such Collateral. Nothing in the
preceding sentence shall be construed to impose any duty on the ABL
Representative or the Term Debt Representative (or any third party
acting on either such Person’s behalf) with respect to such
Collateral or provide the Term Debt Representative, any other Term
Debt Secured Party, the ABL Representative or any other ABL Secured
Party, as applicable, with any rights with respect to such
Collateral beyond those specified in this Agreement, the ABL
Security Documents and the Term Debt Security Documents, as
applicable, provided that subsequent to the occurrence of
the ABL Obligations Payment Date (so long as the Term Debt
Obligations Payment Date shall not have occurred), the ABL
Representative shall (i) deliver to the Term Debt
Representative, at the Loan Parties’ sole cost and expense,
the Collateral in its possession or control together with any
necessary endorsements to the extent required by the Term Debt
Documents or (ii) direct and deliver such Collateral as a
court of competent jurisdiction otherwise directs; provided
, further , that subsequent to the occurrence of the Term
Debt Obligations Payment Date (so long as the ABL Obligations
Payment Date shall not have occurred), the Term Debt Representative
shall (i) deliver to the ABL Loan Representative, at the Loan
Parties’ sole cost and expense, the Collateral in its
possession or control together with any necessary endorsements to
the extent required by the ABL Documents or (ii) direct and
deliver such Collateral as a court of competent jurisdiction
otherwise directs; provided , further , that
(i) prior to the occurrence of the Term Obligations Payment
Date, upon the request of the Term Debt Representative or the
Company, the ABL Loan Representative shall turn over to the Term
Debt Representative any Term Debt Priority Collateral of which it
has physical possession, and (ii) prior to the occurrence of
the ABL Obligations Payment Date, upon the request of the ABL
Representative or the Company, the Term Debt Representative shall
turn over to the ABL Representative any ABL Priority Collateral of
which it has physical possession. The provisions of this Agreement
are intended solely to govern the respective Lien priorities as
between the ABL Secured Parties and the Term Debt Secured Parties
and shall not impose on the ABL Secured Parties or the Term Debt
Secured Parties any obligations in respect of the disposition of
any Collateral (or any proceeds thereof) that would conflict with
prior perfected Liens or any claims thereon in favor of any other
Person that is not a Secured Party.
14
SECTION 3 . Enforcement Rights.
3.1 Exclusive Enforcement .
Until the Senior Obligations Payment Date has occurred, whether or
not an Insolvency Proceeding has been commenced by or against any
Loan Party, the Senior Secured Parties shall have the exclusive
right to take and continue any Enforcement Action (including the
right to credit bid their debt) with respect to the Senior
Collateral, without any consultation with or consent of any Junior
Secured Party, but subject to the proviso set forth in
Section 5.1 . Upon the occurrence and during the
continuance of a default or an event of default under the Senior
Documents, the Senior Representative and the other Senior Secured
Parties may take and continue any Enforcement Action with respect
to the Senior Obligations and the Senior Collateral in such order
and manner as they may determine in their sole discretion in
accordance with the terms and conditions of the Senior
Documents.
3.2 Standstill and Waivers .
Each Junior Representative, on behalf of itself and the other
Junior Secured Parties, agrees that, until the Senior Obligations
Payment Date has occurred, but subject to the proviso set forth in
Section 5.1 :
(i) they will not take or cause to
be taken any action, the purpose or effect of which is to make any
Lien on any Senior Collateral that secures any Junior Obligation
pari passu with or senior to, or to give any Junior Secured Party
any preference or priority relative to, the Liens on the Senior
Collateral securing the Senior Obligations;
(ii) they will not contest, oppose,
object to, interfere with, hinder or delay, in any manner, whether
by judicial proceedings (including without limitation the filing of
an Insolvency Proceeding) or otherwise, any foreclosure, sale,
lease, exchange, transfer or other disposition of the Senior
Collateral by any Senior Secured Party or any other Enforcement
Action taken (or any forbearance from taking any Enforcement
Action) in respect of the Senior Collateral by or on behalf of any
Senior Secured Party;
(iii) they have no right to
(x) direct either the Senior Representative or any other
Senior Secured Party to exercise any right, remedy or power with
respect to the Senior Collateral or pursuant to the Senior Security
Documents in respect of the Senior Collateral or (y) consent
or object to the exercise by the Senior Representative or any other
Senior Secured Party of any right, remedy or power with respect to
the Senior Collateral or pursuant to the Senior Security Documents
with respect to the Senior Collateral or to the timing or manner in
which any such right is exercised or not exercised (or, to the
extent they may have any su
