INTERCREDITOR AGREEMENT

 

 

from time to time, the “10% Senior Secured Notes Trustee” and, together with the Floating Rate Notes Trustee, the “Trustees”);

 

The obligations of the Company to (i) the Revolving Credit Agent and Revolving Credit Claimholders and (ii) the Secured Debt Representatives and the Secured Debt Claimholders are each secured by Liens on certain of the assets of the Company and the Guarantors; and

 

As a condition to the closing of each of the “Financing Transactions”, each of the Revolving Credit Agent, the Collateral Trustee, the Secured Debt Representatives and the various Claimholders have agreed to the relative priority of their respective Liens on the Collateral and certain other rights, priorities and interests as set forth in this Agreement.

 

AGREEMENT

 

In consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

I.                                         DEFINITIONS.

 

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

 

“10% Senior Secured Notes” has the meaning assigned to that term in the recitals to this Agreement.

 

“10% Senior Secured Notes Indenture” has the meaning assigned to that term in the recitals to this Agreement.

 

“10% Senior Secured Notes Trustee” has the meaning assigned to that term in the recitals to this Agreement.

 

“Access Period” means for each parcel of Mortgaged Premises the period, after the commencement of an Enforcement Period, which begins on the day that Revolving Credit Agent (or, following the Discharge of Revolving Credit Obligations, a Priority Lien Representative) provides Collateral Trustee with the notice of its election to request access pursuant to Section 3.3(b) below and ends on the earlier of (i) the 180^th day after Revolving Credit Agent obtains the ability to use, take physical possession of, remove or otherwise control the use or access to the Revolving Credit Collateral located on such Mortgaged Premises following Enforcement plus such number of days, if any, after Revolving Credit Agent (or, following the Discharge of Revolving Credit Obligations, the Collateral Trustee acting upon direction of the Priority Lien Claimholders or a Priority Lien Representative acting on behalf of the Collateral Trustee) obtains access to such Revolving Credit Collateral that it is stayed or otherwise prohibited by law or court order from exercising remedies with respect to Revolving Credit Collateral located on such Mortgaged Premises or (ii) the date on which all or substantially all of the Revolving Credit Collateral located on such Mortgaged Premises is sold,

 

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collected or liquidated or (iii) the date on which the Discharge of Revolving Credit Obligations and the Discharge of Priority Lien Obligations occurs.

 

“Accounts” means all now present and future “accounts” and “payment intangibles” (in each case, as defined in Article 9 of the UCC).

 

“Account Agreements” means any lockbox account agreement, pledged account agreement, blocked account agreement, securities account control agreement, or any similar deposit or securities account agreements among the Collateral Trustee and/or Revolving Credit Agent and the Company and/or a Guarantor and the relevant financial institution depository or securities intermediary.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

 

“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, state or foreign law for the relief of debtors.

 

“Board of Directors” means (1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (2) with respect to a partnership, the Board of Directors of the general partner of the partnership, (3) with respect to a limited liability company, the managing member or members or any controlling committee or board of directors of such company or of the sole member or of the managing member thereof and (4) with respect to any other Person, the board or committee of such Person serving a similar function.

 

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

 

“Capital Stock” means:

 

(1)                                  in the case of a corporation, corporate stock;

 

(2)                                  in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

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(3)                                  in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

 

(4)                                  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, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

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

 

“Claimholders” means the Revolving Credit Claimholders and each of the Parity Lien Claimholders and Priority Lien Claimholders.

 

“Class” means (i) in the case of Parity Lien Debt, all Series of Parity Lien Debt, taken together and (ii) in the case of Priority Lien Debt, all Series of Priority Lien Debt, taken together.

 

“Collateral” means all of the assets and property of any Grantor, whether real, personal or mixed, constituting either Revolving Credit Collateral, Shared Collateral or Separate Collateral.

 

“Collateral Trust Agreement” means that certain Collateral Trust Agreement dated as of May 2, 2005 (as the same may be amended from time to time) by and among the First Lien Term Loan Agent, the Trustees and the Collateral Trustee, as amended, restated, modified or replaced from time to time.

 

“Collateral Trustee” has the meaning assigned to that term in the preamble to this Agreement.

 

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

 

“Copyright Licenses” means any and all present and future agreements providing for the granting of any right in or to Copyrights (whether such Grantor is licensee or licensor thereunder).

 

“Copyrights” means all present and future United States, and foreign copyrights (including Community designs), including but not limited to copyrights in software and databases, and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered, and, with respect to any and all of the foregoing: (i) all registrations and applications therefore, (iii) all rights corresponding thereto throughout the world, and (iv) all rights to sue for past, present and future infringements thereof.

 

“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.

 

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

 

(1)                                  termination or expiration of all commitments to extend credit that would constitute Parity Lien Debt;

 

(2)                                  payment in full in cash of the principal of and interest (including interest accruing on or after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest would be allowed in such Insolvency or Liquidation Proceeding), on all Indebtedness outstanding under the Parity Lien Documents and constituting Parity Lien Debt;

 

(3)                                  discharge or cash collateralization (at the lower of (A) 105% of the aggregate undrawn amount and (b) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Parity Lien Document) of all outstanding letters of credit constituting Parity Lien Debt; and

 

(4)                                  payment in full in cash of all other Parity Lien Obligations that are outstanding and unpaid at the time the Parity Lien Debt is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time).

 

If a Discharge of Parity Lien Obligations occurs prior to the termination of this Agreement in accordance with Section 8.2, to the extent that additional Parity Lien Obligations are incurred or Parity Lien Obligations are reinstated in accordance with Section 6.4, the Discharge of Parity Lien Obligations shall (effective upon the incurrence of such additional Parity Lien Obligations or reinstatement of such Parity Lien Obligations, as applicable) be deemed to no longer be effective.

 

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

 

(1)                                  termination or expiration of all commitments to extend credit that would constitute Priority Lien Debt;

 

(2)                                  payment in full in cash of the principal of and interest (including interest accruing on or after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest would be allowed in such Insolvency or Liquidation Proceeding), on all Indebtedness outstanding under the Priority Lien Documents and constituting Priority Lien Obligations;

 

(3)                                  discharge or cash collateralization (at the lower of (A) 105% of the aggregate undrawn amount and (b) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Priority Lien Document) of all outstanding letters of credit constituting Priority Lien Debt; and

 

(4)                                  payment in full in cash of all other Priority Lien Obligations that are outstanding and unpaid at the time the Priority Lien Debt is paid in full in cash (other than any

 

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obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time).

 

If a Discharge of Priority Lien Obligations occurs prior to the termination of this Agreement in accordance with Section 8.2, to the extent that additional Priority Lien Obligations are incurred or Priority Lien Obligations are reinstated in accordance with Section 6.4, the Discharge of Priority Lien Obligations shall (effective upon the incurrence of such additional Priority Lien Obligations or reinstatement of such Priority Lien Obligations, as applicable) be deemed to no longer be effective.

 

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

 

(1)                                  termination or expiration of all commitments, if any, to extend credit that would constitute Revolving Credit Obligations;

 

(2)                                  payment in full in cash of the principal of and interest (including interest accruing on or after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest would be allowed in such Insolvency or Liquidation Proceeding), on all Indebtedness outstanding under the Revolving Credit Loan Documents and constituting Revolving Credit Obligations;

 

(3)                                  termination or cash collateralization (in an amount and manner reasonably satisfactory to the Revolving Credit Agent, but in no event greater than 105% of the aggregate undrawn face amount) of all letters of credit issued under the Revolving Credit Loan Documents and constituting Revolving Credit Obligations; and

 

(4)                                  payment in full in cash of all other Revolving Credit Obligations that are outstanding and unpaid at the time the Indebtedness constituting such Revolving Credit Obligations is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time).

 

If a Discharge of Revolving Credit Obligations occurs prior to the termination of this Agreement in accordance with Section 8.2, to the extent that additional Revolving Credit Obligations are incurred or Revolving Credit Obligations are reinstated in accordance with Section 6.4, the Discharge of Revolving Credit Obligations shall (effective upon the incurrence of such additional Revolving Credit Obligations or reinstatement of such Revolving Credit Obligations, as applicable) be deemed to no longer be effective.

 

“Discharge of Secured Debt Obligations” means the occurrence of both the Discharge of Parity Lien Obligations and the Discharge of Priority Lien Obligations.

 

“Disposition” has the meaning assigned to that term in Section 5.l(b).

 

“Enforcement” means, collectively or individually for any one of the Revolving Credit Agent, the Collateral Trustee, or any Secured Debt Representative when a Revolving Credit Default or a Secured Debt Default, as the case may be, has occurred and is continuing,

 

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any action taken by such Person to repossess, or exercise any remedies with respect to, any material amount of Collateral or commence the judicial enforcement of any of the rights and remedies under the Revolving Credit Loan Documents or the Secured Debt Documents or under any applicable law, but in all cases excluding (i) the imposition of a default rate or late fee and (ii) the collection and application of Accounts or other monies deposited from time to time in Bank Accounts or Securities Accounts against the Revolving Credit Obligations pursuant to the Revolving Credit Loan Documents; provided, however, the foregoing exclusion set forth in clause (ii) shall immediately cease to apply upon the earlier of (x) the Revolving Credit Agent’s delivery of written notice to the Borrowers that such exclusion no longer applies, (y) the lapse of ten (10) consecutive Business Days after a Revolving Credit Default in which no “Revolving Loans” or “Special Agent Advances” are made and no “Letters of Credit” are issued (in each case, as defined in the Revolving Credit Agreement), and (z) the termination of the Revolving Commitments pursuant to Section 8.1 (or any other applicable provision) of the Revolving Credit Agreement.

 

“Enforcement Notice” means a written notice delivered, at a time when a Revolving Credit Default or Secured Debt Default has occurred and is continuing, by either Revolving Credit Agent or Collateral Trustee to the other such Person announcing that an Enforcement Period has commenced, specifying the relevant event of default, stating the current balance of the Revolving Credit Obligations or the current balances owing with respect to Parity Lien Obligations and Priority Lien Obligations, as the case may be, and requesting the current balance owing of the Revolving Credit Obligations or Parity Lien Obligations and Priority Lien Obligations, as the case may be.

 

“Enforcement Period” means the period of time following the receipt by either Revolving Credit Agent or Collateral Trustee of an Enforcement Notice from the other until either (i) in the case of an Enforcement Period commenced by Collateral Trustee, the Discharge of Secured Debt Obligations, or (ii) in the case of an Enforcement Period commenced by Revolving Credit Agent, the Discharge of Revolving Credit Obligations, or (iii) Revolving Credit Agent or Collateral Trustee (as applicable) agree in writing to terminate the Enforcement Period.

 

“Equally and Ratably” means, in reference to sharing of Liens or proceeds thereof as between holders of Secured Obligations within the same Class, “equally and ratably” as defined in the Collateral Trust Agreement.

 

“Equipment” means: (i) all “equipment” (as defined in Article 9 of the UCC), (ii) all machinery, manufacturing equipment, data processing equipment, computers, office equipment, furnishings, furniture, appliances, “fixtures” (as defined in the UCC) and tools (in each case, regardless of whether characterized as equipment under the UCC) and (iii) all accessions or additions thereto, all parts thereof, whether or not at any time of determination incorporated or installed therein or attached thereto, and all replacements therefore, wherever located, now or hereafter existing, including any fixtures.

 

“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

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“Financing Transactions” means the execution, delivery and initial funding under the Revolving Credit Agreement and the First Lien Term Loan Agreement and the issuance of the Notes.

 

“First Lien Term Loan Agent” has the meaning assigned to that term in the preamble of this Agreement.

 

“First Lien Term Loan Agreement” has the meaning assigned to that term in the recitals to this Agreement.

 

“First Lien Term Loan Documents” means the First Lien Term Loan Agreement, the First Lien Term Loan Mortgages and the other Credit Documents (as defined in the First Lien Term Loan Agreement) and each of the other agreements, documents and instruments providing for or evidencing any other First Lien Term Loan Obligation, and any other document or instrument executed or delivered at any time in connection with any First Lien Term Loan Obligations, including any intercreditor or joinder agreement among holders of First Lien Term Loan Obligations to the extent such are effective at the relevant time, as each may be amended, restated, supplemented, modified, renewed or extended from time to time in accordance with the provisions of this Agreement.

 

“First Lien Term Loan Lenders” has the meaning assigned to that term in the recitals to this Agreement.

 

“First Lien Term Loan Mortgages” means a collective reference to each mortgage, deed of trust and any other document or instrument under which any Lien on real property owned or leased by any Grantor is granted to secure any First Lien Term Loan Obligations or (except for this Agreement and the Collateral Trust Agreement) under which rights or remedies with respect to any such Liens are governed.

 

“First Lien Term Loan Obligations” means all Obligations with respect to principal of and interest and premium (if any) on Indebtedness incurred and outstanding under the First Lien Term Loan Agreement and the other First Term Loan Documents. “First Lien Term Loan 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 First Lien Term Loan Document whether or not the claim for such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.

 

“Floating Rate Notes” has the meaning assigned to that term in the recitals to this Agreement.

 

“Floating Rate Notes Indenture” has the meaning assigned to that term in the recitals to this Agreement.

 

“Floating Rate Notes Trustee” has the meaning assigned to that term in the recitals to this Agreement.

 

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

 

“Grantors” means the Company, each Guarantor and each other Person that has or may from time to time hereafter execute and deliver a Revolving Credit Collateral Document, Parity Lien Collateral Document or Priority Lien Collateral Document as a “Grantor” (or the equivalent thereof).

 

“Guarantor” has the meaning set forth in the preamble to this Agreement.

 

“Hedge Agreements” means any (i) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements, interest rate collar agreements and other agreements or arrangements designed for the purpose of fixing, hedging or swapping interest rate risk; (ii) other agreements or arrangements designed to manage interest rates or interest rate risk; and (iii) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

 

“Hedging Obligation” of any Person means any Obligation of such Person pursuant to any Hedge Agreement.

 

“Holdings” has the meaning set forth in the recitals to this Agreement.

 

“Indebtedness” means and includes all Obligations that constitute “Indebtedness” within the meaning of the Revolving Credit Agreement or the Parity Lien Documents or the Priority Lien Documents, as applicable.

 

“Insolvency or Liquidation Proceeding” means:

 

(1)                                  any voluntary or involuntary case or proceeding under the Bankruptcy Code with respect to any Grantor;

 

(2)                                  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;

 

(3)                                  any liquidation, dissolution, reorganization or winding up of any Grantor whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or

 

(4)                                  any 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).

 

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“Intellectual Property” means, collectively, the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets, and the Trade Secret Licenses.

 

“Intercompany Notes of Subsidiaries” means all indebtedness owing by any of the Company’s Subsidiaries to the Company or any of the Company’s other Subsidiaries, whether or not represented by a note or agreement.

 

“Intercreditor Agreement Joinder” means an agreement substantially in the form of Exhibit A.

 

“Inventory” mean all present and future “inventory” (as defined in Article 9 of the UCC) including, without limitation, all goods held for sale or lease or to be furnished under contracts of service or so leased or furnished, all raw materials, work in process, finished goods, and materials used or consumed in the manufacture, packing, shipping, advertising, selling, leasing, furnishing or production of such inventory or otherwise used or consumed in any Grantor’s business; all goods in which any Grantor has an interest in mass or a joint or other interest or right of any kind; and all goods which are returned to or repossessed by any Grantor, all computer programs embedded in any goods and all accessions thereto and products thereof (in each case, regardless of whether characterized as inventory under the UCC).

 

“Letter of Credit” means any present and future “letter of credit” (as defined in Article 5 of the UCC).

 

“Lien” means any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust, UCC financing statement or other preferential arrangement having the practical effect of any of the foregoing.

 

“Lien Sharing and Priority Confirmation” means:

 

(1)                                  as to any Series of Parity Lien Debt, the written agreement of the holders of such Series of Parity Lien Debt, as set forth in the indentures, credit agreement or other agreement governing such Series of Parity Lien Debt, for the enforceable benefit of all holders of each existing and future Series of Priority Lien Debt and Parity Lien Debt, each existing and future Priority Lien Representative and Parity Lien Representative and each existing and future holder of “Permitted Liens” (as defined in the Senior Secured Notes Indentures):

 

(a)                                  that all Parity Lien Obligations will be and are secured Equally and Ratably by all Parity Liens at any time granted by the Company or any other Guarantor to secure any Obligations in respect of such Series of Parity Lien Debt, whether or not upon property otherwise constituting collateral for such Series of Parity Lien Debt, and that all such Parity Liens will be enforceable by the Collateral Trustee for the benefit of all holders of Parity Lien Obligations Equally and Ratably; provided that holders of any future Parity Lien Debt that constitutes a “security” for purposes of the Securities Act of 1933 will not be entitled to be secured by any Separate Collateral;

 

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(b)                                 that the holders of Obligations in respect of such Series of Parity Lien Debt are bound by the provisions of this Agreement and the Collateral Trust Agreement, including the provisions relating to the ranking of Parity Liens and the order of application of proceeds from the enforcement of Parity Liens;

 

(c)                                  consenting to and directing the Collateral Trustee to perform its obligations under the Collateral Trust Agreement and the other Security Documents; and

 

(d)                                 consenting to the terms of this Agreement; and

 

(2)                                  as to any Series of Priority Lien Debt, the written agreement of the holders of such Series of Priority Lien Debt, as set forth in the credit agreement, indenture or other agreement governing such Series of Priority Lien Debt, for the enforceable benefit of all holders of each existing and future Series of Parity Lien Debt, each existing and future Parity Lien Representative and each existing and future holder of “Permitted Liens” (as defined in the Senior Secured Notes Indentures):

 

(a)                                  that all Priority Lien Obligations will be and are secured Equally and Ratably by all Priority Liens at any time granted by the Company or any other Grantor to secure any Obligations in respect of such Series of Priority Lien Debt, whether or not upon property otherwise constituting collateral for such Series of Priority Lien Debt, and that all such Priority Liens will be enforceable by the Collateral Trustee for the benefit of all holders of Priority Lien Obligations Equally and Ratably; provided that the holders of any future Priority Lien Debt that constitutes a “security” for purposes of the Security Act of 1933, as amended, will be entitled to be secured by any Separate Collateral;

 

(b)                                 that the holders of Obligations in respect of such Series of Priority Lien Debt are bound by the provisions of this Agreement and the Collateral Trust Agreement, including the provisions relating to the ranking of Priority Liens and the order of application of proceeds from enforcement of Priority Liens;

 

(c)                                  consenting to and directing the Collateral Trustee to perform its obligations under the Collateral Trust Agreement and the other Security Documents; and

 

(d)                                 consenting to the terms of this Agreement.

 

“Mortgaged Premises” means any real property which shall now or hereafter be subject to a Parity Lien Mortgage or Priority Lien Mortgage, as applicable.

 

“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.

 

“Note Claimholders” means, at any relevant time, the holders of the Note Obligations, including the Noteholders and the Trustees.

 

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“Noteholder” means, at any relevant time, a Person in whose name a Note is registered.

 

“Note Obligations” means all Obligations with respect to Notes outstanding under the Senior Secured Note Indentures and the other applicable Security Documents. “Note 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 Note Indenture whether or not the claim for such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.

 

“Notes” has the meaning assigned to that term in the recitals to this Agreement.

 

“Obligations” means all obligations of every nature of each Grantor from time to time owed to any agent or trustee, the Revolving Credit Claimholders, the Secured Debt Claimholders or any of them or their respective Affiliates, in each case under the Revolving Credit Loan Documents or the Secured Debt Documents, whether for principal, interest or payments for early termination of Hedge Agreements, fees, expenses, indemnification or otherwise and all guarantees of any of the foregoing.

 

“Parity Lien” means a Lien granted by a security document to the Collateral Trustee, at any time, upon any property of the Company or any other Guarantor to secure Parity Lien Obligations.

 

“Parity Lien Claimholder” means the holders of any Parity Lien Obligation at that time, including the Parity Lien Representatives.

 

“Parity Lien Debt” means:

 

(1)                                  the Notes issued and the related guarantees by the Guarantors incurred on the date of the Senior Secured Note Indentures (including any related exchange notes); and

 

(2)                                  any other Indebtedness of the Company (including additional notes), which may be guaranteed by the Guarantors, that is secured Equally and Ratably with the Notes by a Parity Lien that was permitted to be incurred and so secured under each applicable Secured Debt Document; provided that:

 

(a)                                  the net proceeds are used to refund, refinance, replace, defease, discharge or otherwise acquire or retire Priority Lien Debt or other Parity Lien Debt; or

 

(b)                                 on the date of incurrence of such Indebtedness, after giving pro forma effect to the incurrence thereof and the application of the proceeds therefrom, the Secured Leverage Ratio would not be greater than 4.0 to 1.0;

 

provided, further, in the case of any Indebtedness referred to in clause (3) of this definition:

 

(a)                                  on or before the date on which such Indebtedness is incurred by the Company, such Indebtedness is designated by the Company, in an officers’ certificate

 

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delivered to each Parity Lien Representative and the Collateral Trustee, as “Parity Lien Debt” for the purposes of the Senior Secured Note Indentures and the Collateral Trust Agreement; provided that no Series of Secured Debt may be designated as both Parity Lien Debt and Priority Lien Debt;

 

(b)                                 such Indebtedness is governed by an indenture, credit agreement or other agreement that includes a Lien Sharing and Priority Confirmation; and

 

(c)                                  all requirements set forth in the Collateral Trust Agreement as to the confirmation, grant or perfection of the Collateral Trustee’s Liens to secure such Indebtedness or Obligations in respect thereof are satisfied (and the satisfaction of such requirements and the other provisions of this clause (c) will be conclusively established if the Company delivers to the Collateral Trustee an officers’ certificate stating that such requirements and other provisions have been satisfied and that such Indebtedness is “Parity Lien Debt”).

 

“Parity Lien Default” means an “Event of Default” (as defined in any of the Parity Lien Documents), which is no longer subject to any applicable cure or notice period.

 

“Parity Lien Documents” means, collectively, the Senior Secured Note Indentures and the indenture, credit agreement or other agreement governing each other Series of Parity Lien Debt and the related Security Documents (other than any Security Documents that do not secure Parity Lien Obligations).

 

“Parity Lien Mortgages” means a collective reference to each mortgage, deed of trust and other document or instrument under which any Lien on real property owned or leased by any Grantor is granted to secure any Parity Lien Obligations or (except for this Agreement and the Collateral Trust Agreement) under which rights or remedies with respect to any such Liens are governed.

 

“Parity Lien Obligations” means Parity Lien Debt and all other Obligations in respect thereof (including, without limitation, all Note Obligations).

 

“Parity Lien Representative” means:

 

(1)                                  in the case of each Series of the Notes, the applicable Trustee; or

 

(2)                                  in the case of any other Series of Parity Debt, the trustee, agent or representative of the holders of such Series of Parity Lien Debt who maintains the transfer register for such Series of Parity Lien Debt and (a) is appointed as a Parity Lien Representative (for purposes relate