EXHIBIT 10.4
INTERCREDITOR
AGREEMENT
This INTERCREDITOR AGREEMENT is dated
as of November 24, 2004, and entered into by and among
COINMACH LAUNDRY CORPORATION, a Delaware corporation (the “
Guarantor ”), DEUTSCHE BANK TRUST COMPANY AMERICAS, in
its capacity as the collateral agent for the First Lien Creditors
(including its successors and assigns from time to time, the
“ First Lien Collateral Agent ”) and THE BANK OF
NEW YORK, in its capacity as collateral agent for the Noteholders
(including its successors and assigns from time to time, the
“ Second Lien Collateral Agent ”). Capitalized
terms used herein shall have the meanings set forth in
Section 1 below; provided that capitalized terms
defined in the Credit Agreement used (but not otherwise defined)
herein shall have the meanings ascribed to them in the Credit
Agreement as in effect on the date hereof.
W I T N E S S E T
H:
WHEREAS, Borrower, the Guarantor, the
subsidiary guarantors from time to time party thereto, the various
financial institutions from time to time party thereto, the First
Lien Collateral Agent, as Administrative Agent and Collateral
Agent, Deutsche Bank Securities Inc. (f/k/a Deutsche Banc Alex.
Brown Inc.), as Lead Arranger and Book Manager, J.P. Morgan
Securities Inc. and Wachovia Capital Markets, LLC (f/k/a First
Union Securities, Inc.) as Syndication Agents and Credit Lyonnais
New York Branch, as Documentation Agent, are parties to the Credit
Agreement, dated as of January 25, 2002 (as further amended,
supplemented, amended and restated or otherwise modified from time
to time (including pursuant to the Limited Waiver and Amendment
No. 1 and Agreement dated as of November 15, 2004 (the
“ First Amendment ”)) the “ Credit
Agreement ”);
WHEREAS, CSC, the Guarantor, the
other guarantors from time to time party thereto and the Second
Lien Collateral Agent, as collateral agent and trustee, entered
into an Indenture, dated as of November 24, 2004 (as amended,
supplemented, amended and restated or otherwise modified from time
to time, the “ Indenture ”), governing the
rights and duties of CSC under its 11% Senior Secured Notes due
2024 in an aggregate principal amount on the date thereof of
$132,556,665 (together with any such notes subsequently issued not
in violation of the Indenture, the “ Senior Secured
Notes ”);
WHEREAS, the obligations of Borrower
under the Credit Agreement and any Interest Rate Protection
Agreements or Other Hedging Agreements entered into with a
counterparty who was a Secured Party (or affiliate thereof) at the
time such Interest Rate Protection Agreement or Other Hedging
Agreement was entered into will be secured by, among other things,
a first priority security interest in the Common Collateral
pursuant to the terms of the Holdings Pledge Agreement;
WHEREAS, the obligations of the
Guarantor under the Indenture will be secured by, among other
things, a second priority security interest in the Common
Collateral pursuant to the terms of the Noteholder Collateral
Documents and this Agreement;
WHEREAS, the Holdings Pledge
Agreement, the Indenture and the Noteholder Collateral Documents
provide, among other things, that the parties thereto shall set
forth in this
Agreement their respective
rights and remedies with respect to the Common Collateral
(including the Pledged Collateral) owned by the Guarantor; and
WHEREAS, it is a condition precedent
to the effectiveness of the First Amendment that the parties hereto
enter into this Agreement;
NOW, THEREFORE, in consideration of
the foregoing, the mutual covenants and obligations herein set
forth and for other good and valuable consideration, the adequacy
and receipt of which are hereby acknowledged, and in reliance upon
the representations, warranties and covenants herein contained, the
parties hereto, intending to be legally bound, hereby agree as
follows:
Section 1. Definitions .
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both
the singular and the plural form of the terms indicated):
“ Agreement ”
means this Intercreditor Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time in
accordance with the terms hereof.
“ Borrower ” means
Coinmach Corporation, a Delaware corporation.
“ Common Collateral
” means the Collateral, as such term is defined in the
Holdings Pledge Agreement.
“ Comparable Noteholder
Collateral Document ” means, in relation to any Common
Collateral subject to any Security Document, that Noteholder
Collateral Document which creates a security interest in the same
Common Collateral, granted by the Guarantor.
“ Credit Agreement
” is defined in the first recital ; provided
that (i) the term Credit Agreement shall (x) also include
any renewal, extension, refunding, restructuring, replacement or
refinancing thereof (whether with the original collateral agent and
lenders or another collateral agent or agents or other lenders,
whether provided under the original Credit Agreement or any other
credit or other agreement or indenture and whether entered into
concurrently with or subsequent to the termination of the prior
Credit Agreement); provided that any such renewal,
extension, refunding, restructuring, replacement or refinancing
does not increase the principal amount thereof beyond in violation
of the restrictions in the Indenture and (y) exclude the
Senior Secured Notes and other Noteholder Documents and
(ii) if at any time a Discharge of Lender Claims occurs with
respect to the Credit Agreement (without giving effect to
Section 5.5 ), then, to the extent provided in
Section 5.5 , the term “Credit Agreement”
shall mean the Future First-Lien Credit Facility designated by
Borrower in accordance with the terms of such section.
“ CSC ” means
Coinmach Service Corp., a Delaware corporation.
“ DIP Financing ”
is defined in Section 6.1 .
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“ Discharge of Lender
Claims ” means, except to the extent otherwise provided
in Sections 5.5 and 6.5 , the payment in full in cash
of all Obligations, the expiration, termination or cash
collateralization of all Letters of Credit, pursuant (for purposes
of cash collateralization) to the terms thereof and the Credit
Agreement, the termination of all commitments to extend credit
under the Credit Agreement and the payment in full in cash of all
other Lender Claims (other than Obligations for indemnification in
respect of which no claim or demand for payment has been made and
no notice for indemnification has been issued by the indemnitee at
such time), as may be evidenced by a “pay-off” letter
signed by an agent for the Lenders under the Credit Agreement.
“ Disposition ” is
defined in Section 5. 1(a)(i) .
“ First Amendment
” is defined in the first recital .
“ First Lien Collateral
Agent ” means, in addition to the First Lien Collateral
Agent as defined in the preamble , the then acting agent for
the First Lien Creditors under the Loan Documents and any successor
or assign thereto exercising substantially the same rights and
powers.
“ First Lien Creditors
” shall mean the “Secured Creditors” (as defined
in the Credit Agreement) and any other Persons holding Lender
Claims, including the First Lien Collateral Agent.
“ Future First-Lien Credit
Facility ” shall mean the Credit Agreement and any Credit
Agreement (as defined in the Indenture) that is designated by
Borrower as a “First-Lien Credit Facility” for purposes
of the Indenture; provided that the First Lien Creditors
under any Credit Agreement then in effect have consented to such
designation.
“ Guarantor ” is
defined in the preamble .
“ Holdings Pledge
Agreement ” is defined in the Credit Agreement,
provided that the term “Holdings Pledge
Agreement” shall include any amendment (including Amendment
No. 1 thereto dated as of the date hereof), amendment and
restatement, supplement or other modification thereto and any other
document or instrument evidencing the Guarantor’s pledge of
Common Collateral under any Future First-Lien Credit Facility as
any such document or instrument may from time to time be amended,
supplemented, amended and restated or otherwise modified in a
manner not inconsistent with this Agreement.
“ Indenture ” is
defined in the second recital .
“ Insolvency or Liquidation
Proceeding ” means with respect to any Person
(a) any voluntary or involuntary case or proceeding under the
Bankruptcy Code with respect to such Person or any of its
subsidiaries as a debtor, (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 such Person or any
of its subsidiaries as a debtor or with respect to any substantial
part of their respective assets,
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(c) any liquidation, dissolution, reorganization or winding up
of such Person or any of its subsidiaries whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy
or (d) any assignment for the benefit of creditors or any
other marshalling of assets and liabilities of such Person or any
of its subsidiaries.
“ Lender Claims ”
means all Obligations outstanding under one or more of the Loan
Documents. Lender Claims shall include all interest accrued or
accruing (or which would, absent the commencement of an Insolvency
or Liquidation Proceeding, accrue) after the commencement of an
Insolvency or Liquidation Proceeding in accordance with and at the
rate specified in the Credit Agreement whether or not the claim for
such interest is allowed as a claim in such Insolvency or
Liquidation Proceeding. To the extent any payment with respect to
the Lender Claims (whether by or on behalf of any Obligor, as
proceeds of security, enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential in any
respect, set aside or required to be paid to a debtor in
possession, trustee, receiver or similar Person, then the
Obligations or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
“ Lender Collateral
” means any of the assets of the Obligors, whether real,
personal or mixed, on which the First Lien Creditors or any of them
now or hereafter holds a Lien as security for any Lender Claim
(regardless of the effect of the application of any laws relating
to fraudulent transfers or conveyances).
“ Lender Liens ”
means Liens on Common Collateral or Lender Collateral in favor of
the First Lien Collateral Agent on behalf of the First Lien
Creditors created as collateral security for the Lender Claims.
“ Loan Documents ”
means the Credit Agreement, the Credit Documents, and all documents
and instruments evidencing any obligation under any Future
First-Lien Credit Facility, and any other related document or
instrument executed or delivered pursuant to any Loan Document or
Future First-Lien Credit Facility at any time or otherwise
evidencing Lender Claims, as any such document or instrument from
time to time may be amended, supplemented, amended and restated or
otherwise modified from time to time; provided that any such
modification does not increase the principal amount thereof beyond
the limit set forth in the Indenture.
“ Noteholder Claims
” means all indebtedness, obligations and other liabilities
(contingent or otherwise) arising under or with respect to the
Noteholder Documents or any of them.
“ Noteholder Collateral
” means any assets of CSC and its subsidiaries other than
Borrower and its subsidiaries, whether real, personal or mixed, on
which the Noteholders or any of them now or hereafter holds a Lien
as security for any Noteholder Claim (regardless of the effect of
the application of any laws relating to fraudulent transfers or
conveyances).
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“ Noteholder Collateral
Documents ” means, collectively, the Noteholder Security
Agreements, and any document or instrument executed and delivered
pursuant to any Noteholder Document at any time or otherwise
pursuant to which a Lien is granted by an obligor under the
Indenture to secure the Noteholder Claims or under which rights or
remedies with respect to any such Lien are governed, as the same
may be amended, supplemented, amended and restated or otherwise
modified from time to time.
“ Noteholder Documents
” means, collectively, the Indenture, the Senior Secured
Notes, the Noteholder Collateral Documents and any other related
document or instrument executed and delivered pursuant to any
Noteholder Document at any time or otherwise evidencing any
Noteholder Claims, as the same may be amended, supplemented,
amended and restated or otherwise modified from time to time.
“ Noteholders ”
means the Persons holding Noteholder Claims, including the trustee
under the Indenture and the Second Lien Collateral Agent, in each
case, in their capacity as such.
“ Noteholder Security
Agreements ” means (i) the Security Agreement, dated
as of November 24, 2004 among CSC, the Guarantor and the Second
Lien Collateral Agent, as collateral agent and (ii) the Pledge
Agreement dated as of November 24, 2004 among CSC, the
Guarantor and the Second Lien Collateral Agent, as collateral
agent, in each case as the same may be amended, supplemented,
amended and restated or otherwise modified from time to time.
“ Obligors ” means
Borrower, the Guarantor and each of the Subsidiary Guarantors.
“ Pledged Collateral
” means the certificated securities constituting Common
Collateral in the possession or under the control (as defined in
Section 8-106 of the UCC) of the First Lien Collateral Agent
(or its agents or bailees) in which a security interest is
perfected by such possession or control.
“ Recovery ” shall
have the meaning set forth in Section 6.5 hereof.
“ Required Lenders
” shall mean, with respect to any amendment or modification
of the Credit Agreement or Future First-Lien Facility, or any
termination or waiver of any provision of the Credit Agreement or
Future First-Lien Facility, or any consent or departure by Borrower
therefrom, those First Lien Creditors, the approval of which is
required by the Credit Agreement or such Future First-Lien
Facility, as the case may be, to approve such amendment or
modification, termination or waiver or consent or departure.
“ Second Lien Collateral
Agent ” shall include, in addition to the Second Lien
Collateral Agent defined in the preamble , the then acting
collateral agent under the Indenture and any successor thereto
exercising substantially the same rights and powers.
“ Senior Secured Notes
” is defined in the second recital .
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Section 2. Lien
Priorities .
2.1 Priority. Notwithstanding
the date, manner or order of grant, attachment or perfection of any
Liens granted to the Second Lien Collateral Agent for the benefit
of the Noteholders or to the Noteholders on the Common Collateral
or of any Liens granted to the First Lien Creditors on the Common
Collateral and notwithstanding any provision of the UCC, or any
applicable law, the avoidance or setting aside of any Lien granted
to the First Lien Creditors on the Common Collateral, or the
Noteholder Documents or the Loan Documents or any other
circumstance whatsoever, the Second Lien Collateral Agent, on
behalf of itself and the Noteholders, hereby agrees that: (i) any
Lien on the Common Collateral securing the Lender Claims now or
hereafter held by the First Lien Collateral Agent or the First Lien
Creditors shall be first in priority to any Lien on the Common
Collateral securing the Noteholder Claims and (ii) any Lien on
the Common Collateral now or hereafter held by the Second Lien
Collateral Agent or the Noteholders regardless of how acquired,
whether by grant, statute, operation of law, subrogation or
otherwise, shall be second in priority in all respects to all Liens
on the Common Collateral securing the Lender Claims. All Liens on
the Common Collateral securing the Lender Claims shall be and
remain first in priority to all Liens on the Common Collateral
securing the Noteholder Claims for all purposes, whether or not
such Lender Liens are subordinated to any Lien securing any other
obligation of the Guarantor or any of its subsidiaries.
2.2 Prohibition on Contesting
Liens. Each of the Second Lien Collateral Agent, for itself and
on behalf of each Noteholder, and the First Lien Collateral Agent,
for itself and on behalf of each other First Lien Creditor, agrees
that it shall not (and hereby waives any right to) contest or
support any other Person in contesting, in any proceeding
(including any Insolvency or Liquidation Proceeding with respect to
CSC or any of its subsidiaries), the priority, validity or
enforceability of a Lien held by the First Lien Creditors on the
Lender Collateral or by the Noteholders on the Common Collateral,
as the case may be; provided that nothing in this Agreement
shall be construed to prevent or impair the rights of the First
Lien Collateral Agent or any of the First Lien Creditors to enforce
this Agreement, including the priority of the Liens securing the
Lender Claims as provided in Sections 2.1 and
3.1 of this Agreement.
2.3 No New Liens. So long as
the Discharge of Lender Claims has not occurred, (a) the
parties hereto agree that (i) neither the Second Lien
Collateral Agent nor any Noteholder shall acquire any security
interest in or shall have any interest in (including following
avoidance of any Lender Liens) any property, real or otherwise
(other than the Common Collateral), of any of Borrower or any of
its subsidiaries or any proceeds thereof and (ii) after the
date hereof, if the Second Lien Collateral Agent on behalf of the
Noteholders, shall hold (to its actual knowledge), any Lien on any
assets of Borrower or any of its subsidiaries securing the
Noteholder Claims that are not also subject to the prior Lien of
the First Lien Creditors under the Loan Documents, the Second Lien
Collateral Agent will notify the First Lien Collateral Agent in
writing and, upon demand by the First Lien Collateral Agent, shall
either release such Lien or assign it to the First Lien Creditors
as security for the Lender Claims (unless the applicable Obligor
shall promptly grant a similar Lien on such assets in favor of the
First Lien Creditors and such Lien shall be prior to the Lien of
the Second Lien Collateral Agent on such assets) and (b) each
of Borrower and its subsidiaries agrees it will not grant, and the
Guarantor agrees it will not permit its Subsidiaries to grant, any
Lien on any of its assets in favor of the Second Lien Collateral
Agent or
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the Noteholders unless
Borrower or such subsidiary has granted a similar perfected prior
Lien on such assets in favor of the First Lien Creditors.
Section 3. Enforcement
.
3.1 Exercise of Remedies.
(a) So long as the Discharge of
Lender Claims has not occurred, whether or not any Insolvency or
Liquidation Proceeding has been commenced by or against CSC or any
of its subsidiaries, (i) the Second Lien Collateral Agent and
the Noteholders will not exercise or seek to exercise any rights or
remedies (including by way of setoff) with respect to any Common
Collateral, institute any action or proceeding with respect to such
rights or remedies, including any action of foreclosure, or
contest, protest or object to any foreclosure proceeding or action
brought by the First Lien Collateral Agent or any other First Lien
Creditor, or any other exercise by any such party of any rights and
remedies relating to the Common Collateral under the Credit
Documents or otherwise, or object to the forbearance by the First
Lien Collateral Agent or the First Lien Creditors from bringing or
pursuing any foreclosure proceeding or action or any other exercise
of any rights or remedies relating to the Common Collateral and
(ii) the First Lien Collateral Agent and the other First Lien
Creditors shall have the exclusive right to enforce rights,
exercise remedies (including by way of setoff and the right to
credit bid their debt), refrain from enforcing or exercising
remedies, and make determinations regarding release, disposition,
or restrictions with respect to the Common Collateral without any
consultation with or the consent of the Second Lien Collateral
Agent or any Noteholder, all as if the Lien of the Second Lien
Collateral Agent for the benefit of the Noteholders on the Common
Collateral under the Noteholder Collateral Documents did not exist;
provided that (A) in any Insolvency or Liquidation
Proceeding commenced by or against the Guarantor, the Second Lien
Collateral Agent or any Noteholder may file a claim or statement of
interest with respect to the Noteholder Claims, (B) the Second
Lien Collateral Agent or any Noteholder may take any action not
adverse to the Liens on the Common Collateral securing the Lender
Claims in order to establish, preserve, perfect or protect its
rights in the Common Collateral, (C) the Second Lien
Collateral Agent or any Noteholder shall be entitled to file any
pleadings, objections, motions or agreements which assert rights or
interests available to unsecured creditors of the Guarantor arising
under either the Bankruptcy Code or applicable non-bankruptcy law,
in each case not otherwise in contravention of the terms of this
Agreement and (D) the Second Lien Collateral Agent or any
Noteholder shall be entitled to file any proof of claim and other
filings and make any arguments and motions in order to preserve or
protect its Lien on the Common Collateral that are, in each case,
not otherwise in contravention of the terms of this Agreement, with
respect to the Indenture and the Common Collateral. In exercising
rights and remedies with respect to the Common Collateral, the
First Lien Collateral Agent or any other First Lien Creditors may
enforce the provisions of the Loan Documents and exercise remedies
thereunder, all in such order and in such manner as it may
determine in the exercise of its sole discretion. Such exercise and
enforcement shall include the rights of an agent appointed by the
First Lien Collateral Agent and the other First Lien Creditors to
sell or otherwise dispose of Common Collateral upon foreclosure, to
incur expenses in connection with such sale or disposition, and to
exercise all the rights and remedies of a secured party under the
UCC of any applicable jurisdiction and of a secured creditor under
bankruptcy or similar laws of any applicable jurisdiction.
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(b) The Second Lien Collateral
Agent, for itself and on behalf of the Noteholders, agrees that
neither the Second Lien Collateral Agent nor the Noteholders will
take any action that would hinder or cause to delay any exercise of
remedies undertaken by the First Lien Collateral Agent or any other
First Lien Creditor under the Loan Documents as secured parties in
respect of any Common Collateral, including any sale, lease,
exchange, transfer or other disposition of the Common Collateral,
whether by foreclosure or otherwise. The Second Lien Collateral
Agent, for itself and on behalf of the Noteholders, hereby waives
any and all rights it or the Noteholders may have as a junior lien
creditor or otherwise (whether arising under the UCC or any other
law) to object to the manner in which the First Lien Collateral
Agent or the other First Lien Creditors seek to enforce the Liens
granted on any of the Lender Collateral.
(c) The Second Lien Collateral
Agent hereby acknowledges and agrees that no covenant, agreement or
restriction contained in the Noteholder Documents shall restrict in
any way the rights and remedies of the First Lien Collateral Agent
or the First Lien Creditors with respect to the Common Collateral
as set forth in this Agreement and the Loan Documents.
3.2 Cooperation. Subject to
the proviso in clause (a)(ii) of Section 3.1 ,
the Second Lien Collateral Agent, on behalf of itself and the
Noteholders, agrees that, unless and until the Discharge of Lender
Claims has occurred, it will not commence, or join with any Person
(other than the First Lien Creditors upon the request thereof) in
commencing, any enforcement, collection, execution, levy or
foreclosure action or proceeding with respect to any Lien held by
it under any of the Noteholder Documents with respect to the Common
Collateral.
Section 4. Payments .
4.1 Application of Proceeds.
So long as the Discharge of Lender Claims has not occurred, the
cash proceeds of Common Collateral received in connection with the
sale, transfer or other disposition of such Common Collateral upon
the exercise of remedies shall be applied by the First Lien
Collateral Agent to the Lender Claims in such order as specified in
the Credit Agreement until the Discharge of Lender Claims has
occurred. Upon the Discharge of Lender Claims, the First Lien
Collateral Agent shall deliver to the Second Lien Collateral Agent
(for turnover to the trustee under the Indenture for application in
such order as specified in the Indenture and the other applicable
Noteholder Documents) any proceeds of Common Collateral held by it
in the same form as received, with any necessary endorsements or as
a court of competent jurisdiction may otherwise direct.
4.2 The Second Lien Collateral Agent,
on behalf of itself and the Noteholders, agrees that it will not,
in connection with the exercise of any right or remedy (including
by way of setoff) with respect to any Common Collateral, take or
receive any Common Collateral or any proceeds of Common Collateral
unless and until the Discharge of Lender Claims has occurred. In
the event any Common Collateral or proceeds thereof are received by
the Second Lien Collateral Agent in violation of this Agreement,
such Common Collateral and/or proceeds shall be segregated and held
in trust for the benefit of the First Lien Creditors in the same
form as received, and shall not be applied to the satisfaction of
any Noteholder Claims. Without limiting the generality of the
foregoing, unless and until the Discharge of Lender Claims has
occurred, except as expressly provided in the proviso in clause
(a)(ii) of Section 3.1 , the sole right of the
Second Lien Collateral Agent and the Noteholders as secured parties
with respect to the Common Collateral
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is to hold a perfected Lien
on the Common Collateral pursuant to the Noteholder Documents for
the period and to the extent granted therein and to receive a share
of the proceeds thereof, if any, after the Discharge of Lender
Claims has occurred.
4.3 Each Obligor agrees that it will
not, in connection with the exercise of any right or remedy with
respect to any Common Collateral by the Second Lien Collateral
Agent or the Noteholders, transfer, deliver or pay, as applicable,
to the Second Lien Collateral Agent or any Noteholder any Common
Collateral or any proceeds of Common Collateral unless and until
the Discharge of Lender Claims has occurred.
Section 5. Other
Agreements.
5.1 Releases .
(a) If, in connection with:
(i) the exercise of any of the First
Lien Collateral Agent’s remedies in respect of Common
Collateral provided for in Section 3.1 , including any
sale, lease, exchange, transfer or other disposition (collectively,
a “ Disposition” ) of any such Common
Collateral; or
(ii) a Disposition of any Common
Collateral permitted under the terms of the Credit Documents
(whether or not an event of default thereunder, and as defined
therein, has occurred and is occurring),
the First Lien Collateral
Agent, for itself and on behalf of any of the First Lien Creditors,
releases any of its Liens on any part of the Common Collateral, in
each case other than in connection with a Disposition under clause
(ii) above only, if such Disposition would result in an event
of default under the Noteholder Documents, then the Liens, if any,
of the Second Lien Collateral Agent, for itself or for the benefit
of the Noteholders, on such Common Collateral shall be
automatically, unconditionally and simultaneously released and the
Second Lien Collateral Agent, for itself or on behalf of any such
Noteholder, promptly shall execute and deliver to the First Lien
Collateral Agent such termination statements, releases and other
documents as the First Lien Collateral Agent may request and
provide to it to effectively confirm such release.
(b) The Second Lien Collateral
Agent, on behalf of the Noteholders, shall promptly, at the request
of the First Lien Collateral Agent or any officer or agent of the
First Lien Collateral Agent, from time to time in the First Lien
Collateral Agent’s discretion, for the purpose of carrying
out the terms of this Section 5.1 , take any and all
appropriate action and to execute any and all releases, documents
and instruments provided to it by the First Lien Collateral Agent
which may be necessary or desirable to accomplish the purposes of
this Section 5.1 , including any financing statements,
mortgage releases, intellectual property releases, endorsements or
other instruments of transfer or release.
5.2 Insurance. Unless and
until the Discharge of Lender Claims has occurred, the First Lien
Collateral Agent and the other First Lien Creditors shall have the
sole and exclusive right, subject to the rights of the Obligors
under the Loan Documents, to adjust settlement for
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any insurance policy
covering the Common Collateral in the event of any loss thereunder.
Unless and until the Discharge of Lender Claims has occurred (and
whether or not the Revolving Loan Maturity Date has occurred), all
proceeds of any such policy and any such award if in respect of the
Common Collateral shall be paid to the First Lien Collateral Agent
for the benefit of the First Lien Creditors to the extent required
under the Credit Agreement and thereafter to the Second Lien
Collateral Agent for the benefit of the Noteholders to the extent
required under the applicable Noteholder Documents and then to the
owner of the subject property
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