I.
DEFINITIONS

 

1.1.          Defined Terms .  As used in this Agreement, the following terms shall have the following meanings:

 

“ ABL Agent ” means the Initial ABL Agent and any successor or other agent under the ABL Loan Agreement.

 

“ ABL Claimholders ” means, at any relevant time, the holders of ABL Obligations at that time, including, without limitation, the ABL Lenders and the ABL Agent under the ABL Loan Agreement, in each case solely in their capacities as such and not in any other capacity (except to the extent that such ABL Claimholder is acting in such other capacity for the primary purpose of benefiting its ABL Obligations).

 

“ ABL 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 ABL Obligations.

 

“ ABL Default ” means an “Event of Default” (as defined in the ABL Loan Agreement).

 

“ ABL Lenders ” means the “Lenders” under and as defined in the ABL Loan Agreement or any other Person which extends credit under the ABL Loan Agreement in each case solely in their capacities as such and not in any other capacity (except to the extent that such ABL Lender is acting in such other capacity for the primary purpose of benefiting its ABL Obligations).

 

“ ABL Loan Agreement ” means collectively, (a) the Initial ABL Loan Agreement and (b) any other credit agreement or credit agreements, one or more debt facilities, and/or commercial paper facilities, in each case, with banks or other institutional or commercial lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from (or sell such receivables to) such lenders against such receivables), letters of credit, bankers’ acceptances, or other borrowings, that has been incurred to increase, replace (whether upon or after termination or otherwise), Refinance or refund in whole or in part from time to time the Obligations outstanding under the Initial ABL Loan Agreement or any other agreement or instrument referred to in this clause which (I) is designated to each ABL Agent as an “ABL Loan Agreement” by (x) if any other ABL Loan Agreement is then in effect, the ABL Agent (and, so long as an ABL Default has not occurred and is continuing at the time of such designation, the Company) or (y) if no other ABL Loan Agreement is then in effect, the Company, and (II) the ABL Agent for such agreement shall have executed a supplement to this Agreement agreeing to be bound hereby on the same terms applicable to the Initial ABL Agent, whether or not such increase, replacement, refinancing or refunding occurs (i) with the original parties thereto, (ii) on one or more separate occasions or (iii) simultaneously or not with the termination or repayment of the Initial ABL Loan Agreement or any other agreement or instrument referred to in this clause, unless such agreement or instrument is not a Permitted Refinancing Agreement.  Any reference to the ABL Loan Agreement hereunder shall be deemed a reference to any ABL Loan Agreement then in existence.

 

“ ABL Loan Documents ” means the ABL Loan Agreement and the “ Loan Documents ” (as defined in the ABL Loan Agreement), and each of the other agreements, documents and instruments executed pursuant thereto, and any other document or instrument executed or delivered at any time in connection with the ABL Loan Agreement, including any intercreditor or joinder agreement among holders of ABL Obligations, to the extent such are effective at the relevant time, as each may be amended, restated,

 

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supplemented, modified, renewed, extended or Refinanced from time to time in accordance with the provisions of this Agreement.

 

“ ABL Obligations ” means all advances to, and Indebtedness, liabilities, obligations, covenants and duties of the Company and the Company Subsidiaries (whether for principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing such Indebtedness, liabilities, obligations, covenants and duties) arising under (i) the ABL Loan Agreement or otherwise with respect to any loans or letters of credit issued or borrowed pursuant to the ABL Loan Agreement, (ii) any Secured Cash Management Agreement or (iii) any Secured Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Company or any Company Subsidiary or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

“ ABL Priority Collateral ” means all now-owned or hereafter acquired ABL Collateral that constitutes:

 

(a)           Accounts, other than Accounts which arise from the sale, license, assignment or other Disposition of Senior Secured Notes Priority Collateral;

 

(b)           Deposit Accounts and Securities Accounts (including all cash, cash equivalents, Money, checks, Instruments, funds, ACH transfers, wired funds, Investment Property, and other funds and property held in or on deposit in any of the foregoing, but excluding any identifiable Proceeds of Senior Secured Notes Priority Collateral held in any of the foregoing), in each case, to the extent arising out of, or related to, or derivative of the foregoing;

 

(c)           Letter of Credit Rights arising out of, or related to, or derivative of any of the property or interests in property described in this definition;

 

(d)           Supporting Obligations and Commercial Tort Claims, in each case, to the extent arising out of, or related to, or derivative of, the property or interests described in this definition;

 

(e)           all contracts, contract rights and other General Intangibles (other than any Intellectual Property and the Senior Secured Notes Priority Collateral), all Documents, Chattel Paper, and Instruments (including promissory notes), in each case, to the extent arising out of, or related to, or derivative of the property or interests in property described in this definition;

 

(f)            all books and Records relating to the items referred to in the preceding clauses (a) through (e) (including all books, databases, data processing software, customer lists, engineer drawings, and Records, whether tangible or electronic, which contain any information relating to any of the items referred to in the preceding clauses (a) through (e)); and

 

(g)           all collateral security and guarantees with respect to any of the foregoing and, subject to Section 3.5 , all proceeds, products, substitutions, replacements, accessions, cash, Money, insurance proceeds, Instruments, Securities, Security Entitlements, Financial Assets and Deposit Accounts (excluding any identifiable Proceeds of Senior Secured Notes Priority Collateral held in any of the foregoing) received as proceeds of any of the foregoing, but excluding proceeds of Senior Secured Notes Priority Collateral.

 

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 “ ABL Security Documents ” means any agreement, document or instrument pursuant to which a Lien is granted securing any ABL Obligations or under which rights or remedies with respect to such Liens are governed.

 

“ Account Agreements ” means any lockbox account agreement, pledged account agreement, blocked account agreement, securities account control agreement, or any similar deposit or securities account agreements among the Senior Secured Notes Agent and the ABL Agent, one or more Grantors and the relevant financial institution depository or securities intermediary.

 

“ Accounts ” means all present and future “accounts” (as defined in Article 9 of the UCC).

 

“ Additional Joinder Agreement ” shall mean a joinder agreement in the form of Exhibit B hereto.

 

“ Additional Pari Passu Senior Secured Notes Agent ” means the Person appointed to act as trustee, agent or representative for the holders of Additional Pari Passu Senior Secured Notes Obligations pursuant to any Additional Pari Passu Senior Secured Notes Agreement.

 

“ Additional Pari Passu Senior Secured Notes Agreement ” means the indenture, credit agreement or other agreement under which any Additional Pari Passu Senior Secured Notes Obligations are incurred.

 

“ Additional Pari Passu Senior Secured Notes Obligations ” means Indebtedness of the Grantors issued following the date of this Agreement to the extent (a) such Indebtedness is not prohibited by the terms of the ABL Loan Agreement, the Senior Secured Notes Indenture, the Junior Secured Notes Agreement (if any) from being secured by Liens on the Collateral ranking pari passu with the Liens securing the Senior Secured Notes Obligations, (b) the Grantors have granted Liens, consistent with clause (a), on the Collateral to secure the Obligations in respect of such Indebtedness, and (c) the Additional Pari Passu Senior Secured Notes Agent, for the holders of such Indebtedness, has entered into an Additional Joinder Agreement on behalf of the Senior Secured Notes Claimholders under such agreement acknowledging that such holders shall be bound by the terms hereof applicable to Senior Secured Notes Claimholders.

 

“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified.  For purposes of this definition, a Person shall be deemed to “ control ” or be “ controlled by ” a Person if such Person possesses, directly or indirectly, power to direct or cause the direction of the management or policies of such Person whether through ownership of equity interests, by contract or otherwise.

 

“ Agents ” means the ABL Agent, the Senior Secured Notes Agent and the Junior Secured Notes Agent.

 

“ Agreement ” means this Intercreditor Agreement, as amended, restated, renewed, extended, supplemented or otherwise modified from time to time.

 

“ Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

 

“ Bankruptcy Law ” means the Bankruptcy Code and any similar federal or state law for the relief of debtors.

 

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“ Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banks in Boston, Massachusetts, New York, New York or Wilmington, Delaware are authorized or required by law to close.

 

“ Capital Stock ” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests and (e) 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 of, the issuing Person and all rights, warrants or options exchangeable for or convertible into any of the items described in clauses (a) through (e) above; provided that with respect to the foregoing, Capital Stock shall exclude any debt securities convertible into Capital Stock, whether or not such debt securities include any right of vote or participation with Capital Stock.

 

“ Cash Management Agreement ” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

 

“ Cash Management Bank ” means any Person that, at the time it enters into a Cash Management Agreement, is a lender under the ABL Loan Agreement or an Affiliate of a lender under the ABL Loan Agreement, in such Person’s capacity as a party to such Cash Management Agreement.

 

“ Chattel Paper ” means all present and future “chattel paper” (as defined in Article 9 of the UCC).

 

“ Claimholder ” means any Senior Secured Notes Claimholder, Junior Secured Notes Claimholder or ABL Claimholder, as applicable.

 

“ Collateral ” means any and all of the assets and property of any Grantor, whether real, personal or mixed, which constitute ABL Collateral, Senior Secured Notes Collateral or Junior Secured Notes Collateral.

 

“ Commercial Tort Claims ” means all present and future “commercial tort claims” (as defined in Article 9 of the UCC).

 

“ Company ” has the meaning assigned to that term in the Preamble to this Agreement.

 

“ Company Subsidiary ” has the meaning assigned to that term in the Preamble to this Agreement.

 

“ Conforming Plan of Reorganization ” means any Plan of Reorganization whose provisions are consistent with the provisions of this Agreement.

 

“ Copyrights ” means (a) all registered United States copyrights in any works which are subject to copyright protection pursuant to Title 17 of the United States Code, now existing or hereafter created or acquired, all registrations and recordings thereof, and all applications in connection therewith, including, without limitation, registrations, recordings and applications in the United States Copyright Office and (b) all renewals thereof.

 

“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership,

 

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insolvency, reorganization, or similar debtor relief laws or regulations of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

“ Deposit Accounts ” means all present and future “deposit accounts” (as defined in Article 9 of the UCC).

 

“ DIP Financing ” has the meaning assigned to that term in Section 6.1 .

 

“ Discharge of ABL Obligations ” means, except to the extent otherwise expressly provided in Section 5.5 :

 

(a)           payment in full in cash of all ABL Obligations (other than contingent obligations or contingent indemnification obligations except as provided in clause (d) below);

 

(b)           termination or expiration of all commitments, if any, to extend credit under the ABL Loan Documents;

 

(c)           termination, cash collateralization (in an amount and manner reasonably satisfactory to the ABL Agent, but in no event greater than 105% of the aggregate undrawn face amount, plus commissions, fees, and expenses) or backstop of all letters of credit issued under the ABL Loan Agreement in compliance with the terms of the ABL Loan Agreement; and

 

(d)           cash collateralization (or support by a letter of credit) for any costs, expenses and contingent indemnification obligations consisting of ABL Obligations not yet due and payable but with respect to which a claim has been asserted in writing under any ABL Loan Documents (in an amount and manner reasonably satisfactory to the ABL Agent).

 

“ Discharge of Junior Secured Notes Obligations ” means, except to the extent otherwise expressly provided in Section 5.5 , (x) payment in full in cash (or, to the extent provided in the applicable Junior Secured Notes Documents, other property) of all Junior Secured Notes Obligations (other than contingent obligations or indemnification obligations, in each case for which no claim has been asserted) or (y) any discharge or legal defeasance of the Junior Secured Notes Agreement in accordance with the express terms thereof.

 

“ Discharge of Prior Lien Obligations ” means:

 

(a)           with respect to the Junior Secured Notes Claimholders, the Discharge of ABL Obligations and the Discharge of Senior Secured Notes Obligations;

 

(b)           with respect to the ABL Priority Collateral as it relates to the Senior Secured Notes Claimholders, the Discharge of ABL Obligations; and

 

(c)           with respect to the Senior Secured Notes Priority Collateral as it relates to the ABL Claimholders, the Discharge of Senior Secured Notes Obligations.

 

“ Discharge of Senior Secured Notes Obligations ” means, except to the extent otherwise expressly provided in Section 5.5 , (x) payment in full in cash of all Senior Secured Notes Obligations (other than contingent obligations or indemnification obligations, in each case for which no claim has been asserted in writing) or (y) any discharge or legal defeasance of the Senior Secured Notes Indenture and each Additional Pari Passu Senior Secured Notes Agreement in accordance with the express terms thereof.

 

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“ Disposition ” means any sale, lease, exchange, transfer or other disposition of any Collateral.

 

“ Documents ” means all present and future “documents” (as defined in Article 9 of the UCC).

 

“ Enforcement ” means, collectively or individually for one or more of the ABL Agent, the Senior Secured Notes Agent or the Junior Secured Notes Agent to enforce or attempt to enforce any right or power to repossess, replevy, attach, garnish, levy upon, collect the Proceeds of, foreclose or realize in any manner whatsoever its Lien upon, sell, liquidate or otherwise dispose of, or otherwise restrict or interfere with the use of, or exercise any remedies with respect to, any Collateral, whether by judicial enforcement of any of the rights and remedies under the ABL Loan Documents, the Senior Secured Notes Documents, the Junior Secured Notes Documents and/or under any applicable law, by self-help repossession, by non-judicial foreclosure sale, lease, or other Disposition, by set-off, by notification to account obligors of any Grantor, by any sale, lease, or other Disposition implemented by any Grantor at the direction of the ABL Agent, the Senior Secured Notes Agent or the Junior Secured Notes Agent, or otherwise, but in all cases excluding (i) the establishment of borrowing base reserves, collateral ineligibles, or other conditions for advances, (ii) the changing of advance rates or advance sublimits, (iii) the imposition of a default rate or late fee, (iv) the collection and application (including pursuant to “cash dominion” provisions) of Accounts or other monies deposited from time to time in Deposit Accounts or Securities Accounts, in each case, against the ABL Obligations pursuant to the provisions of the ABL Loan Documents (including, without limitation, the notification of account debtors, depositary institutions or any other Person to deliver proceeds of Collateral to the ABL Agent), (v) the cessation of lending pursuant to the provisions of the ABL Loan Documents, including upon the occurrence of a default on the existence of an over-advance, (vi) the filing of a proof of claim in any Insolvency or Liquidation Proceeding, (vii) the consent by the ABL Agent to Disposition by any Grantor of any of the ABL Priority Collateral, and (viii) the acceleration of the Senior Secured Notes Obligations, the ABL Obligations or the Junior Secured Notes Obligations.

 

“ Enforcement Notice ” means a written notice delivered, at a time when an ABL Default or Senior Secured Notes Default has occurred and is continuing, by either the ABL Agent or the Senior Secured Notes Agent to the other announcing that such party intends to commence Enforcement against its Priority Collateral and specifying the relevant event of default.

 

“ Equipment ” means, as to each Grantor, all of such Grantor’s now owned and hereafter acquired equipment, as defined in Article 9 of the UCC, wherever located.

 

“ Financial Assets ” means all present and future “financial assets” (as defined in Article 9 of the UCC).

 

“ General Intangibles ” means all present and future “general intangibles” (as defined in Article 9 of the UCC), but excluding (a) Hedge Agreements and (b) Intellectual Property and any rights thereunder.

 

“ Governmental Authority ” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.

 

“ Grantors ” means Holdings, the Company, each Company Subsidiary and each other Person that has or may from time to time hereafter execute and deliver an ABL Security Document, a Senior Secured

 

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Notes Security Document or a Junior Secured Notes Security Document, as a grantor of a security interest (or the equivalent thereof).

 

“ Hedge Bank ” means any Person that, at the time it enters into a Swap Contract permitted under the indenture, is a lender under the ABL Loan Agreement or an Affiliate of a lender under the ABL Loan Agreement, in such Person’s capacity as a party to such Swap Contract.

 

“ Indebtedness ” means and includes all “Indebtedness,” or any similar term within the meaning of the ABL Loan Agreement, the Senior Secured Notes Indenture or the Junior Secured Notes Agreement, as applicable.

 

“ Initial ABL Loan Agreement ” has the meaning assigned to that term in the Recitals.

 

“ Initial Senior Secured Notes ” has the meaning assigned to that term in the Recitals.

 

“ Insolvency or Liquidation Proceeding ” means:

 

(a)           any voluntary or involuntary case or proceeding under the Bankruptcy Code or other applicable bankruptcy or insolvency laws of another jurisdiction with respect to any Grantor;

 

(b)           any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Grantor or with respect to a material portion of their respective assets;

 

(c)           any composition of liabilities or similar arrangement relating to any Grantor, whether or not under a court’s jurisdiction or supervision;

 

(d)           any liquidation, dissolution, reorganization or winding up of any Grantor, whether voluntary or involuntary, whether or not under a court’s jurisdiction or supervision, and whether or not involving insolvency or bankruptcy; or

 

(e)           any general assignment for the benefit of creditors or any other marshalling of assets and liabilities of any Grantor.

 

“ Instruments ” means all present and future “instruments” (as defined in Article 9 of the UCC).

 

“ Intellectual Property ” means, all of the following in any jurisdiction throughout the world:  (a) patents, patent applications and inventions, including all renewals, extensions, combinations, divisions, or reissues thereof (“ Patents ”); (b) trademarks, service marks, trade names, trade dress, logos, internet domain names and other business identifiers, together with the goodwill symbolized by any of the foregoing, and all applications, registrations, renewals and extensions thereof (“ Trademarks ”); (c) copyrights and all works of authorship including all registrations, applications, renewals, extensions and reversions thereof (“ Copyrights ”); (d) all computer software, source code, executable code, data, databases and documentation thereof; (e) all trade secret rights in information, including trade secret rights in any formula, pattern, compilation, program, device, method, technique, or process, that (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons who can obtain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; (f) all other intellectual property or proprietary rights in any discoveries, concepts, ideas, research and development,

 

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know-how, formulae, patterns, inventions, compilations, compositions, manufacturing and production processes and techniques, program, device, method, technique, technical data, procedures, designs, recordings, graphs, drawings, reports, analyses, specifications, databases, and other proprietary or confidential information, including customer lists, supplier lists, pricing and cost information, business and marketing plans and proposals and advertising and promotional materials; and (g) all rights to sue at law or in equity for any infringement or other impairment or violation thereof and all products and proceeds of the foregoing.

 

“ Inventory ” means as to each Grantor, all of such Grantor’s now owned and hereafter existing or acquired inventory, as defined in Article 9 of the UCC, wherever located.

 

“ Investment Property ” means all present and future “investment property” (as defined in Article 9 of the UCC), including, without limitation, all Capital Stock of Subsidiaries of the Grantors.

 

 “ Junior Secured Noteholders ” means the holders of the Junior Secured Notes, solely in their capacities as such and not in any other capacity (except to the extent that such Junior Secured Noteholder is acting in such other capacity for the primary purpose of benefiting its Junior Secured Notes Obligations).

 

“ Junior Secured Notes ” any indebtedness that has been incurred after the date hereof which is designated to each Agent as “Junior Secured Notes” by the Junior Secured Notes Agent; provided that (a) the Junior Secured Notes Agent under the Junior Secured Notes Agreement under which such indebtedness has been incurred shall have executed a supplement to this Agreement agreeing to bound hereby, (b) the Indebtedness represented by such Junior Secured Notes is not prohibited by the terms of the ABL Loan Documents or the Senior Secured Notes Documents and (c) the Grantors have granted Liens on all or a portion of the Collateral to secure the Obligations in respect of such Indebtedness.

 

“ Junior Secured Notes Agent ” means the Person appointed to act as trustee, agent or representative for the holders of Junior Secured Notes Obligations pursuant to any Junior Secured Notes Agreement.

 

“ Junior Secured Notes Agreement ” means the indenture, credit agreement or other agreement under which any Junior Notes Obligations are incurred pursuant to the issuance and sale of the Junior Secured Notes.

 

 “ Junior Secured Notes Claimholders ” means, at any relevant time, the holders of Junior Secured Notes Obligations at that time, including the Junior Secured Noteholders and the Junior Secured Notes Agent, in each case solely in their capacities as such and not in any other capacity (except to the extent that such Junior Secured Notes Claimholder is acting in such other capacity for the primary purpose of benefiting its Junior Secured Notes Obligations).

 

“ Junior Secured Notes Collateral ” means any and all of the assets and property of any Grantor, whether real, personal or mixed, with respect to which a Lien is granted as security for any Junior Secured Notes Obligations.

 

“ Junior Secured Notes Default ” means an “Event of Default” as defined in the Junior Secured Notes Agreement.

 

“ Junior Secured Notes Documents ” means the Junior Secured Notes Agreement, the Junior Secured Notes, the Junior Secured Notes Security Documents and each of the other agreements, documents and instruments executed pursuant thereto, and any other document or instrument executed or delivered at

 

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any time in connection with any Junior Secured Notes Obligations, including any intercreditor or joinder agreement among holders of Junior Secured Notes Obligations to the extent such are effective at the relevant time, as each may be amended, restated, supplemented, modified, renewed, extended or Refinanced from time to time in accordance with the provisions of this Agreement.

 

“ Junior Secured Notes Joinder Agreement ” means a joinder agreement in the form of Exhibit A hereto.

 

“ Junior Secured Notes Obligations ” means all Obligations outstanding under the Junior Secured Notes and the other Junior Secured Notes Documents.  “Junior Secured Notes Obligations” shall include all interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant Junior Secured Notes Document, whether or not the claim for such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.

 

“ Junior Secured Notes Security Documents ” means any agreement, document or instrument pursuant to which a Lien is granted securing any Junior Secured Notes Obligations or under which rights or remedies with respect to such Liens are governed.

 

“ Letter of Credit Rights ” means all present and future “letter of credit rights” (as defined in Article 9 of the UCC).

 

“ Lien ” means any mortgage, pledge, hypothec, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any other security agreement (including, without limitation, any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).

 

“ Money ” means all present and future “money” (as defined in Article 9 of the UCC).

 

“ New Agent ” has the meaning assigned to that term in Section 5.5 .

 

“ New Debt Notice ” has the meaning assigned to that term in Section 5.5 .

 

“ Non-Conforming Plan of Reorganization ” means any Plan of Reorganization whose provisions are inconsistent with the provisions of this Agreement, including any plan of reorganization that purports to re-order (whether by subordination, invalidation, or otherwise) or otherwise disregard, in whole or part, the provisions of Article II (including the Lien priorities of Section 2.1 ), the provisions of Article IV , or the provisions of Article VI , unless such Plan of Reorganization has been accepted by the voluntary required vote of each class of Priority Claimholders for such class to have approved such Plan of Reorganization.

 

“ Obligations ” means all present and future loans, advances, liabilities, obligations, covenants, duties, and debts from time to time owing by any Grantor to any agent or trustee (including any Agent), the ABL Claimholders, the Senior Secured Notes Claimholders, the Junior Secured Notes Claimholders or any of them or their respective Affiliates, arising from or in connection with the ABL Loan Documents, the Senior Secured Notes Documents or the Junior Secured Notes Documents, whether for principal, interest or payments for early termination, whether or not evidenced by any note, or other instrument or document, whether arising from an extension of credit, opening of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, as principal or guarantor, and including all principal, interest, charges,

 

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expenses, fees, attorneys’ fees, filing fees and any other sums chargeable to the Grantors, including, without limitation, the “Obligations” as defined in the ABL Loan Agreement and any corresponding term used in the Senior Secured Notes Indenture or the Junior Secured Notes Agreement.

 

“ Permitted Refinancing ” means any Refinancing the governing documentation of which constitutes Permitted Refinancing Agreements.

 

“ Permitted Refinancing Agreements ” means, with respect to either the ABL Loan Agreement, the Senior Secured Notes, any Additional Pari Passu Senior Secured Notes Obligations or the Junior Secured Notes, as applicable, any credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any indebtedness or other financial accommodation that has been incurred to increase, replace, (whether upon or after termination or otherwise) Refinance or refund in whole or in part the Obligations outstanding under the ABL Loan Agreement, the Senior Secured Notes, any Additional Pari Passu Senior Secured Notes Obligations or the Junior Secured Notes, whether or not such increase, replacement, refinancing or refunding occurs (i) with the original parties thereto, (ii) on one or more separate occasions or (iii) simultaneously or not with the termination or repayment of the ABL Loan Agreement, the Senior Secured Notes, any Additional Pari Passu Senior Secured Notes Obligations or the Junior Secured Notes or any other agreement or instrument referred to in this clause, unless such agreement or instrument expressly provides that it is not intended to be and is not a Permitted Refinancing Agreement, as such financing documentation may be amended, restated, supplemented or otherwise modified from time to time and that, in each case, would not be prohibited by Section 5.3(a) .

 

“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

“ Plan of Reorganization ” means any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding.

 

“ Pledged Collateral ” has the meaning set forth in Section 5.4(a) .

 

“ Prior Lien Agent ” means:

 

(a)           as it relates to the Junior Secured Notes Agent and the Junior Secured Notes Claimholders for all purposes of this Agreement, each of the ABL Agent and the Senior Secured Notes Agent;

 

(b)           as it relates to the ABL Agent and the ABL Claimholders with respect to all matters relating to the Senior Secured Notes Priority Collateral (but not the ABL Priority Collateral) prior to the Discharge of Senior Secured Notes Obligations, the Senior Secured Notes Agent; and

 

(c)           as it relates to the Senior Secured Notes Agent and the Senior Secured Notes Claimholders with respect to all matters relating to the ABL Priority Collateral (but not the Senior Secured Notes Priority Collateral) prior to the Discharge of ABL Obligations, the ABL Agent.

 

“ Prior Lien Claimholders ” mean:

 

(a)           as it relates to the Junior Secured Notes Claimholders for all purposes of this Agreement, the ABL Claimholders and the Senior Secured Notes Claimholders;

 

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(b)           as it relates to the ABL Claimholders with respect to all matters relating to the Senior Secured Notes Priority Collateral (but not the ABL Priority Collateral) prior to the Discharge of Senior Secured Notes Obligations, the Senior Secured Notes Claimholders; and

 

(c)           as it relates to the Senior Secured Notes Claimholders with respect to all matters relating to the ABL Priority Collateral (but not the Senior Secured Notes Priority Collateral) prior to the Discharge of ABL Obligations, the ABL Claimholders.

 

“ Prior Lien Collateral ” means with respect to any Person, all Collateral with respect to which (and only for so long as) such Person is a “Prior Lien Claimholder” as provided in the definition thereof.

 

“ Prior Lien Documents ” mean:

 

(a)           as it relates to the Junior Secured Notes Claimholders for all purposes of this Agreement, the ABL Loan Documents and the Senior Secured Notes Documents;

 

(b)           as it relates to the ABL Claimholders with respect to all matters relating to the Senior Secured Notes Priority Collateral (but not the ABL Priority Collateral) prior to the Discharge of Senior Secured Notes Obligations, the Senior Secured Notes Documents; and

 

(c)           as it relates to the Senior Secured Notes Claimholders with respect to all matters relating to the ABL Priority Collateral (but not the Senior Secured Notes Priority Collateral) prior to the Discharge of ABL Obligations, the ABL Loan Documents.

 

“ Prior Lien Obligations ” mean:

 

(a)           as it relates to the Junior Secured Notes Obligations for all purposes of this Agreement, the ABL Obligations and the Senior Secured Notes Obligations;

 

(b)           as it relates to the ABL Obligations with respect to all matters relating to the Senior Secured Notes Priority Collateral (but not the ABL Priority Collateral) prior to the Discharge of Senior Secured Notes Obligations, the Senior Secured Notes Obligations; and

 

(c)           as it relates to the Senior Secured Notes Obligations with respect to all matters relating to the ABL Priority Collateral (but not the Senior Secured Notes Priority Collateral) prior to the Discharge of ABL Obligations, the ABL Obligations.

 

“ Proceeds ” means all “proceeds” (as defined in Article 9 of the UCC), including any payment or property received on account of any claim secured by Collateral in any Insolvency or Liquidation Proceeding.

 

“ Real Estate Asset ” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by the Company or any Grantor in any real property.

 

“ Records ” means all present and future “records” (as defined in Article 9 of the UCC).

 

“ Recovery ” has the meaning set forth in Section 6.4 .

 

“ Refinance ” means, in respect of any Indebtedness, to refinance, extend, renew, defease, amend, modify, supplement, restructure, replace, refund or repay, or to issue other indebtedness, in exchange or

 

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replacement for, such Indebtedness, in any case in whole or in part.  “ Refinanced ” and “ Refinancing ” shall have correlative meanings.

 

“ Secured Cash Management Agreement ” means any Cash Management Agreement that is entered into by and between the Company or any Company Subsidiary and any Cash Management Bank.

 

“ Secured Hedge Agreement ” means any Swap Contract permitted under the ABL Loan Documents, the Senior Secured Notes Dcouments and the Junior Secured Notes Documents that is entered into by and between the Company or any Company Subsidiary and any Hedge Bank.

 

“ Securities ” means all present and future “Securities” (as defined in Article 9 of the UCC).

 

“ 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 Entitlements ” means all present and future “security entitlements” (as defined in Article 9 of the UCC).

 

“ Senior Secured Noteholders ” means the “Holders” as defined in the Senior Secured Notes Indenture and any holders of Additional Pari Passu Senior Secured Notes Obligations in each case solely in their capacities as such and not in any other capacity (except to the extent that such Senior Secured Noteholder is acting in such other capacity for the primary purpose of benefiting its Senior Secured Notes Obligations).

 

“ Senior Secured Notes ” means, collectively, (a) the Initial Senior Secured Notes and (b) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any indebtedness or other financial accommodation (other than ABL Obligations) that has been incurred to increase, replace, Refinance or refund in whole or in part the Obligations outstanding under the Initial Senior Secured Notes or any other agreement or instrument referred to in this clause which (I) is designated as “Senior Secured Notes” by (x) so long as the Senior Secured Notes Indenture or any Additional Pari Passu Senior Secured Notes Agreement is in effect, the Senior Secured Notes Agent (and, so long as a Senior Secured Notes Default has not occurred and is continuing at the time of such designation, the Company) or (y) otherwise, the Company, and (II) the Senior Secured Notes Agent for such agreement shall have executed a supplement to this Agreement agreeing to be bound hereby on the same terms applicable to the Initial Senior Secured Notes Agent whether or not such increase, replacement, refinancing or refunding occurs (i) with the original parties thereto, (ii) on one or more separate occasions or (iii) simultaneously or not with the termination or repayment of the Initial Senior Secured Notes, unless such agreement or instrument is not a Permitted Refinancing Agreement.  Any reference to the Senior Secured Notes hereunder shall be deemed a reference to any Senior Secured Notes then in existence.

 

“ Senior Secured Notes Agent ” means (i) the Senior Secured Notes Trustee, including its successors and assigns from time to time, for so long as any Initial Senior Secured Notes are outstanding and (ii) thereafter, any Additional Pari Passu Senior Secured Notes Agent.

 

“ Senior Secured Notes Claimholders ” means, at any relevant time, the holders of Senior Secured Notes Obligations at that time, including the Senior Secured Noteholders, each Additional Pari Passu Senior Secured Notes Agent and the Senior Secured Notes Agent in each case solely in their capacities as

 

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such and not in any other capacity (except to the extent that such Senior Secured Notes Claimholder is acting in such other capacity for the primary purpose of benefiting its Senior Secured Notes Obligations).

 

“ Senior Secured Notes Collateral ” means any and all of the assets and property of any Grantor, whether real, personal or mixed, with respect to which a Lien is granted as security for any Senior Secured Notes Obligations.

 

“ Senior Secured Notes Default ” means an “Event of Default” as defined in the Senior Secured Notes Indenture or in any Additional Pari Passu Senior Secured Notes Agreement.

 

“ Senior Secured Notes Documents ” means the Senior Secured Notes Indenture, the Senior Secured Notes, each Additional Pari Passu Senior Secured Notes Agreement, the Senior Secured Notes Security Documents and each of the other agreements, documents and instruments executed pursuant thereto, and any other document or instrument executed or delivered at any time in connection with any Senior Secured Notes Obligations, including any intercreditor or joinder agreement among holders of Senior Secured Notes Obligations to the extent such are effective at the relevant time, as each may be amended, restated, supplemented, modified, renewed, extended or Refinanced from time to time in accordance with the provisions of this Agreement.

 

“ Senior Secured Notes General Intangibles ” means all General Intangibles, including Intellectual Property, which are not ABL Priority Collateral.

 

“ Senior Secured Notes Indenture ” has the meaning assigned to that term in the Recitals to this Agreement.

 

“ Senior Secured Notes Obligations ” means all Obligations outstanding under the Senior Secured Notes and the other Senior Secured Notes Documents, and all Additional Pari Passu Senior Secured Notes Obligations.  “Senior Secured Notes Obligations” shall include all interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant Senior Secured Notes Document, whether or not the claim for such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.

 

“ Senior Secured Notes Pledged Collateral ” means any Collateral consisting of Capital Stock owned by any Grantor that is not Excluded Collateral (as defined in the Indenture).(1)

 

“ Senior Secured Notes Priority Collateral ” means all now owned or hereafter acquired Senior Secured Notes Collateral that constitutes:

 

(a)           Real Estate Assets;

 

(b)           Equipment;

 

(c)           Inventory;

 

(1)           These could be securities of a non-affiliate

 

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(d)           Senior Secured Notes General Intangibles;

 

(e)           Senior Secured Notes Pledged Collateral;

 

(f)            Documents related to Equipment or Inventory;

 

(g)           Deposit Accounts and Securities Accounts to the extent containing identifiable proceeds of the foregoing (including all cash, cash equivalents, Money, checks, Instruments, funds, ACH transfers, wired funds, Investment Property, and other funds and property held in or on deposit in any of the foregoing, but excluding any identifiable Proceeds of ABL Priority Collateral);

 

(h)           Letter of Credit Rights arising out of, or related to, or derivative of any of the property or interests in property described in this definition;

 

(i)            Supporting Obligations and Commercial Tort Claims, in each case, to the extent arising out of, or related to, or derivative of, the property or interests described in this definition;

 

(j)            all other Collateral other than ABL Priority Collateral and Excluded Collateral (as defined in the Indenture); and

 

(k)           all collateral security and guarantees with respect to any of the foregoing and, subject to Section 3.5 , all proceeds, products, substitutions, replacements, accessions, cash, Money, insurance proceeds, Instruments, Securities, Security Entitlements, Financial Assets and Deposit Accounts received as proceeds of any of the foregoing, but excluding proceeds of ABL Priority Collateral.

 

“ Senior Secured Notes Security Documents ” means any agreement, document or instrument pursuant to which a Lien is granted securing any Senior Secured Notes Obligations or under which rights or remedies with respect to such Liens are governed.

 

“ Subordinated Lien Agent ” means:

 

(a)           with respect to all Collateral, the Junior Secured Notes Agent;

 

(b)           with respect to all matters relating to the ABL Priority Collateral (but not the Senior Secured Notes Priority Collateral) prior to the Discharge of ABL Obligations, the Senior Secured Notes Agent; and

 

(c)           with respect to all matters relating to the Senior Secured Notes Priority Collateral (but not the ABL Priority Collateral) prior to the Discharge of Senior Secured Notes Obligations, the ABL Agent.

 

“ Subordinated Lien Claimholders ” mean:

 

(a)           with respect to all Collateral, the Junior Secured Notes Claimholders;

 

(b)           with respect to all matters relating to the ABL Priority Collateral (but not the Senior Secured Notes Priority Collateral) prior to the Discharge of ABL Obligations, the Senior Secured Notes Claimholders; and

 

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(c)           with respect to all matters relating to the Senior Secured Notes Priority Collateral (but not the ABL Priority Collateral) prior to the Discharge of Senior Secured Notes Obligations, the ABL Claimholders.

 

“ Subordinated Lien Collateral ” means with respect to any Person, all Collateral with respect to which (and only for so long as) such Person is a “Subordinated Lien Claimholder” as provided in the definition thereof.

 

“ Subordinated Lien Documents ” mean:

 

(a)           the Junior Secured Notes Documents for all purposes of this Agreement;

 

(b)           with respect to all matters relating to the ABL Priority Collateral (but not the Senior Secured Notes Priority Collateral) prior to the Discharge of ABL Obligations, the Senior Secured Notes Documents; and

 

(c)           with respect to all matters relating to the Senior Secured Notes Priority Collateral (but not the ABL Priority Collateral) prior to the Discharge of Senior Secured Notes Obligations, the ABL Loan Documents.

 

“ Subordinated Lien Obligations ” mean:

 

(a)           the Junior Secured Notes Obligations for all purposes of this Agreement;

 

(b)           with respect to all matters relating to the ABL Priority Collateral (but not the Senior Secured Notes Priority Collateral) prior to the Discharge of ABL Obligations, the Senior Secured Notes Obligations; and

 

(c)           with respect to all matters relating to the Senior Secured Notes Priority Collateral (but not the ABL Priority Collateral) prior to the Discharge of Senior Secured Notes Obligations, the ABL Obligations.

 

“ Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof.

 

“ Supporting Obligations ” mean all present and future “supporting obligations” (as defined in Article 9 of the UCC).

 

“ Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing),

 

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whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

 

“ UCC ” means the Uniform Commercial Code (or any similar equivalent legislation) as in effect from time to time in the State of New York; provided , however , that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Agents’ security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other that the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.

 

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 or Articles shall be construed to refer to Sections or Articles of this Agreement;

 

(e)           all uncapitalized terms have the meanings, if any, given to them in the UCC, as now or hereafter enacted in the State of New York (unless otherwise specifically defined herein);

 

(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;

 

(g)           any reference herein to a Person in a particular capacity or capacities excludes such Person in any other capacity or individually;

 

(h)           any reference herein to any law shall be construed to refer to such law as amended, modified, codified, replaced, or re-enacted, in whole or in part, and in effect on the pertinent date; and

 

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(i)            in the compilation of periods of time hereunder from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means” to, but not through.”

 

II.
LIEN PRIORITIES

 

2.1.          Relative Priorities .  Irrespective of the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the ABL Obligations, the Senior Secured Notes Obligations or the Junior Secured Notes Obligations (including, in each case, irrespective of whether any such Lien is granted (or secures Obligations relating to the period) before or after the commencement of any Insolvency or Liquidation Proceeding) and notwithstanding any provision of any UCC, or any other applicable law, or the ABL Loan Documents, the Senior Secured Notes Documents or the Junior Secured Notes Documents or any defect or deficiencies in, or failure to attach or perfect, the Liens securing the ABL Obligations, the Senior Secured Notes Obligations or the Junior Secured Notes Obligations or any other circumstance whatsoever, the ABL Agent, on behalf of the ABL Claimholders, the Senior Secured Notes Agent, on behalf of the Senior Secured Notes Claimholders and the Junior Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders, each hereby agree that:

 

(a)           any Lien of the Prior Lien Agent on the ABL Priority Collateral securing Prior Lien Obligations, whether such Lien is now or hereafter held by or on behalf of the Prior Lien Agent or any other Prior Lien Claimholder or any other agent or trustee therefor, regardless of how or when acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects and prior to any Lien on the ABL Priority Collateral securing any Subordinated Lien Obligations; and

 

(b)           any Lien of the Prior Lien Agent on the Senior Secured Notes Priority Collateral securing Prior Lien Obligations, whether such Lien is now or hereafter held by or on behalf of the Prior Lien Agent, any other Prior Lien Claimholder or any other agent or trustee therefor, regardless of how or when acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects to all Liens on the Senior Secured Notes Priority Collateral securing any Subordinated Lien Obligations.

 

2.2.          Prohibition on Contesting Liens .  Each of the Senior Secured Notes Agent, on behalf of each Senior Secured Notes Claimholder, the ABL Agent, on behalf of each ABL Claimholder, and the Junior Secured Notes Agent, on behalf of each Junior Secured Notes Claimholder, consents to the granting of Liens in favor of the other Agents to secure the ABL Obligations, the Senior Secured Notes Obligations and the Junior Secured Notes Obligations, as applicable, and agrees that no Claimholder will be entitled to, and it will not (and shall be deemed to have irrevocably, absolutely, and unconditionally waived any right to), contest (directly or indirectly) or support (directly or indirectly) any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding):  (a) the attachment, perfection, priority, validity or enforceability of any Lien in the Collateral held by or on behalf of any of the ABL Claimholders to secure the payment of the ABL Obligations, any of the Senior Secured Notes Claimholders to secure the payment of the Senior Secured Notes Obligations or any of the Junior Secured Notes Claimholders to secure the payment of the Junior Secured Notes Obligations, (b) the priority, validity or enforceability of the ABL Obligations, the Senior Secured Notes Obligations or the Junior Secured Notes Obligations, including the allowability or priority of the ABL Obligations, the Senior Secured Notes Obligations or the Junior Secured Notes Obligations, as applicable, in any Insolvency or Liquidation Proceeding, or (c) the validity or enforceability of the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of the ABL Agent, on

 

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behalf of the ABL Claimholders, the Senior Secured Notes Agent, on behalf of the Senior Secured Notes Claimholders, or the Junior Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders to enforce this Agreement, including the provisions of this Agreement relating to the priority of the Liens securing the Obligations as provided in Sections 2.1 , 3.1 , 3.2 and 6.1 .

 

2.3.          No New Liens .  During the term of this Agreement, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against one or more of the Company or any other Grantor, the parties hereto agree, subject to Article VI , that the Company shall not, and shall not permit any other Grantor to:

 

(a)           grant or permit any additional Liens on any asset or property to secure any Senior Secured Notes Obligations unless it has granted or concurrently grants a Lien on such asset or property to secure the ABL Obligations and the Junior Secured Notes Obligations (if any) with the respective priorities required by Section 2.1 ;

 

(b)           grant or permit any additional Liens on any asset or property to secure any ABL Obligations unless it has granted or concurrently grants a Lien on such asset or property to secure the Senior Secured Notes Obligations and the Junior Secured Notes Obligations (if any) with the respective priorities required by Section 2.1 ; and

 

(c)           grant or permit any additional Liens on any asset or property to secure any Junior Secured Notes Obligations unless it has granted or concurrently grants a Lien on such asset or property to secure the Senior Secured Notes Obligations and the ABL Obligations with the respective priorities required by Section 2.1 ;

 

provided that with respect to the Junior Secured Notes Obligations, clauses (a) and (b) above shall not apply to Pledged Collateral or Securities which are specifically excluded from the Junior Secured Notes Collateral pursuant to the terms of the Junior Secured Notes Security Documents.

 

To the extent any additional Liens are granted on any asset or property in contravention of this Section 2.3 for any reason, without limiting any other rights and remedies available hereunder, the ABL Agent, on behalf of the ABL Claimholders, the Senior Secured Notes Agent, on behalf of the Senior Secured Notes Claimholders and the Junior Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders, agree that any amounts received by or distributed to any of them pursuant to or as a result of Liens granted in contravention of this Section 2.3 shall be subject to Section 4.2 .

 

2.4.          Similar Liens and Agreements .  The parties hereto agree that it is their intention that the ABL Collateral, the Senior Secured Notes Collateral and the Junior Secured Notes Collateral be identical except (a) the Junior Secured Notes Collateral shall not include certain Pledged Collateral or Securities which are specifically excluded from the Junior Secured Notes Collateral pursuant to the terms of the Junior Secured Notes Security Documents and (b) as provided in Article VI and as otherwise provided herein.  In furtherance of the foregoing and of Section 8.8 , the parties hereto agree, subject to the other provisions of this Agreement, upon request by the ABL Agent, the Senior Secured Notes Agent or the Junior Secured Notes Agent, to cooperate in good faith (and to direct their counsel to cooperate in good faith) from time to time in order to determine the specific items included in the ABL Collateral, the Senior Secured Notes Collateral and the Junior Secured Notes Collateral and the steps taken to perfect their respective Liens thereon and the identity of the respective parties obligated under the ABL Loan Documents, the Senior Secured Notes Documents and the Junior Secured Notes Documents.

 

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III.
EXERCISE OF REMEDIES; ENFORCEMENT

 

3.1.          Restrictions on the Subordinated Lien Agents and the Subordinated Lien Claimholders with respect to ABL Priority Collateral .

 

(a)           Until the Discharge of Prior Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the Subordinated Lien Agents and the Subordinated Lien Claimholders:

 

(i)            will not exercise or seek to exercise (but instead shall be deemed to have hereby irrevocably, absolutely and unconditionally waived), any rights, powers, or remedies with respect to any ABL Priority Collateral (including (A) any right of set-off or any right under any Account Agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Subordinated Lien Agent or any other Subordinated Lien Claimholder is a party, (B) any right to undertake self-help re-possession or non-judicial Disposition of any ABL Priority Collateral (including any partial or complete strict foreclosure), and/or (C) any right to institute, prosecute, or otherwise maintain any action or proceeding with respect to such rights, powers or remedies (including any action of foreclosure));

 

(ii)           will not, directly or indirectly, contest, protest or object to or hinder any judicial or non-judicial foreclosure proceeding or action (including any partial or complete strict foreclosure) brought by the Prior Lien Agent or any Prior Lien Claimholder relating to the ABL Priority Collateral or any other exercise by the Prior Lien Agent or any other Prior Lien Claimholder of any other rights, powers and remedies relating to the ABL Priority Collateral, including any sale, lease, exchange, transfer, or other Disposition of the ABL Priority Collateral, whether under the Prior Lien Documents, applicable law, or otherwise;

 

(iii)          will not object to the forbearance by the Prior Lien Agent or any Prior Lien Claimholders from bringing or pursuing any Enforcement action with respect to the ABL Priority Collateral;

 

(iv)          except as may be permitted by Section 3.1(c) , irrevocably, absolutely, and unconditionally waive any and all rights the Subordinated Lien Agent or the Subordinated Lien Claimholders may have as a junior lien creditor or otherwise to object (and seek or be awarded any relief of any nature whatsoever based on any such objection) to the manner in which the Prior Lien Agent or the Prior Lien Claimholders (A) enforce or collect (or attempt to collect) the Prior Lien Obligations or (B) realize or seek to realize upon or otherwise enforce the Liens in and to the ABL Priority Collateral securing the Prior Lien Obligations, regardless of whether any action or failure to act by or on behalf of the Prior Lien Agent or Prior Lien Claimholders is adverse to the interest of the Subordinated Lien Agent or the Subordinated Lien Claimholders.  Without limiting the generality of the foregoing, to the maximum extent permitted by law, the Subordinated Lien Claimholders shall be deemed to have hereby irrevocably, absolutely, and unconditionally waived any right to object (and seek or be awarded any relief of any nature whatsoever based on any such objection), at any time prior or subsequent to any Disposition of any of the ABL Priority Collateral, on the ground(s) that any such Disposition of ABL Priority Collateral (x) would not be or was not “commercially reasonable” within the meaning of any applicable UCC and/or (y) would not or did not comply with any other requirement under any applicable UCC or under any other applicable law governing the manner in which a secured creditor (including one with a Lien on real property) is to realize on its collateral; and

 

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(v)           acknowledge and agree that no covenant, agreement or restriction contained in the Subordinated Lien Documents shall be deemed to restrict in any way the rights and remedies of the Prior Lien Agent or the Prior Lien Claimholders with respect to the ABL Priority Collateral as set forth in this Agreement and the Prior Lien Documents;

 

provided , however , that, in the case of (i), (ii) and (iii) above, the Liens granted to secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders shall attach to any Proceeds resulting from actions taken by the Prior Lien Agent or any Prior Lien Claimholder with respect to the ABL Priority Collateral in accordance with the respective priorities set forth in Section 2.1 of this Agreement after application of such Proceeds to the extent necessary to meet the requirements of a Discharge of Prior Lien Obligations.

 

(b)           Until the Discharge of Prior Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the Prior Lien Agent and the other Prior Lien Claimholders shall have the right to enforce rights, exercise remedies (including set-off) and, in connection therewith (including any Enforcement) make determinations regarding the release, Disposition, or restrictions with respect to the ABL Priority Collateral without any consultation with or the consent of any Subordinated Lien Agent or any Subordinated Lien Claimholder; provided , however , that the Liens securing the Subordinated Lien Obligations shall remain on the Proceeds (other than those applied to the Prior Lien Obligations in accordance with Section 4.1 ) of such ABL Priority Collateral released or disposed of subject to the relative priorities described in Section 2.1 .  In exercising rights, powers, and remedies with respect to the ABL Priority Collateral, the Prior Lien Agent and the Prior Lien Claimholders may enforce the provisions of the Prior Lien Documents and exercise rights, powers, and/or remedies thereunder and/or under applicable law or otherwise, all in such order and in such manner as they may determine in the exercise of their sole discretion.  Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of the ABL Priority Collateral upon foreclosure, to incur expenses in connection with such sale or Disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under the Bankruptcy Laws of any applicable jurisdiction.

 

(c)           Notwithstanding anything to the contrary contained herein, any Subordinated Lien Agent or Subordinated Lien Claimholder may:

 

(i)            file a claim or statement of interest with respect to its Subordinated Lien Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor;

 

(ii)           take any action (not adverse to the priority status of the Liens on the ABL Priority Collateral, or the rights of the Prior Lien Agent or any of the Prior Lien Claimholders to exercise rights, powers, and/or remedies in respect thereof, including those under Article VI ) in order to create, perfect, preserve or protect (but not enforce) its Lien on any of the ABL Priority Collateral;

 

(iii)          file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Prior Lien Claimholders, including any claims secured by the ABL Priority Collateral, if any, in each case in accordance with the terms of this Agreement;

 

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(iv)          file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with the terms of this Agreement or applicable law (including the Bankruptcy Laws of any applicable jurisdiction) and, subject to the restrictions set forth in Section 3.2 , any pleadings, objections, motions or agreeme