LIEN SUBORDINATION AND INTERCREDITOR AGREEMENT

Exhibit 4.6

EXECUTION VERSION

 

LIEN SUBORDINATION AND INTERCREDITOR AGREEMENT

dated as of

October 1, 2009,

among

WELLS FARGO FOOTHILL, LLC,

as ABL Agent,

WILMINGTON TRUST FSB,

as Noteholder Collateral Trustee,

STREAM GLOBAL SERVICES, INC.

as Parent

and

the Subsidiaries of Parent named herein

 

LIEN SUBORDINATION AND INTERCREDITOR AGREEMENT, dated as of October 1, 2009 (as amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “ Agreement ”), among WELLS FARGO FOOTHILL, LLC, a Delaware limited liability company, as agent for the ABL Secured Parties referred to herein (in such capacity, and together with its successors in such capacity, the “ Original ABL Agent ”), WILMINGTON TRUST FSB, as Collateral Trustee for the Priority Lien Secured Parties referred to herein (in such capacity, and together with its successors in such capacity, the “ Noteholder Collateral Trustee ”) pursuant to the Collateral Trust Agreement dated as of the date hereof among the grantors party thereto and the Noteholder Collateral Trustee, STREAM GLOBAL SERVICES, INC., a Delaware corporation (“ Stream ”) and the subsidiaries of Stream named herein.

Reference is made to (a) the ABL Credit Agreement, and (b) the Indenture governing the Indenture Notes.

In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the ABL Agent (for itself and on behalf of the ABL Secured Parties), the Noteholder Collateral Trustee (for itself and on behalf of the Indenture Priority Lien Secured Parties, the Additional Priority Lien Secured Parties, if any, and the Subordinated Lien Secured Parties, if any), Stream and the subsidiaries of Stream party hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.01.     Construction; Certain Defined Terms . (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such subsidiaries, (iii) 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, (iv) all references herein to Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein, 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 and (vi) the term “or” is not exclusive.

(b)    All terms used in this Agreement that are defined in Article 1, 8 or 9 of the New York UCC (whether capitalized herein or not) and not otherwise defined herein have the

meanings assigned to them in Article 1, 8 or 9 of the New York UCC. If a term is defined in Article 9 of the New York UCC and another Article of the UCC, such term shall have the meaning assigned to it in Article 9 of the New York UCC.

(c)    Unless otherwise set forth herein, all references herein to the Noteholder Collateral Trustee shall be deemed to refer to the Noteholder Collateral Trustee in its capacity as collateral trustee under the Noteholder Collateral Trust Agreement.

(d)    As used in this Agreement, the following terms have the meanings specified below:

“ ABL Agent ” means the Original ABL Agent, and, from and after the date of execution and delivery of an ABL Substitute Facility, the agent, collateral agent, trustee or other representative of the lenders or holders of the ABL Debt Obligations evidenced thereunder or governed thereby, in each case, together with its successors in such capacity.

“ ABL Credit Agreement ” means the Credit Agreement, dated as of October 1, 2009, among Stream, its subsidiaries named therein, the ABL Agent, the lenders party thereto from time to time and the other agents named therein, as amended, restated, adjusted, waived, renewed, extended, supplemented or otherwise modified from time to time and any credit agreement, loan agreement, note agreement, promissory note, indenture or any other agreement or instrument evidencing or governing the terms of any ABL Substitute Facility.

“ ABL Debt” means indebtedness for borrowed money and letters of credit incurred under the ABL Debt Documents in an aggregate principal amount (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of Stream and its Subsidiaries thereunder) not to exceed, as of any date of incurrence, the ABL Debt Cap as of such date of incurrence; provided that Banking Product Obligations will not be treated as ABL Debt.

“ ABL Debt Cap ” means as of any date of incurrence of any ABL Debt, an aggregate principal amount not to exceed the greatest of (i) $115,000,000, and (ii) the amount of the Borrowing Base as of such date of incurrence; provided that (x) the ABL Debt Cap may be reduced at any time by an amendment to this Agreement executed by the ABL Agent and Stream without the consent of the Noteholder Collateral Trustee and (y) the ABL Agent and the holders of ABL Debt Obligations shall be entitled to rely conclusively on an Officer’s Certificate of Stream representing that any incurrence of any ABL Debt does not exceed the ABL Debt Cap.

“ ABL Debt Documents ” means the ABL Credit Agreement, the ABL Security Documents, the other “Loan Documents” (as defined in the ABL Credit Agreement) and all other loan documents, notes, guarantees, instruments and agreements governing or evidencing, or executed or delivered in connection with, any ABL Substitute Facility.

“ ABL Debt Obligations ” means ABL Debt incurred or arising under the ABL Debt Documents and all other “Obligations,” as defined in the ABL Credit Agreement (excluding any such obligations that would constitute ABL Debt), together with Banking Product Obligations of Stream, any other Grantor or any of their respective subsidiaries relating to services, provided to

 

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any of Stream, any other Grantor or any of their respective subsidiaries, that are secured, or intended to be secured, by the ABL Debt Documents if the provider of such Banking Product Obligations has agreed to be bound by the terms of this Agreement or its interest in the ABL First Lien Collateral is subject to the terms of this Agreement.

“ ABL Facility Collateral ” means all assets and properties of the Grantors subject to Liens created by the ABL Security Documents to secure the ABL Debt Obligations.

“ ABL Foreign Collateral ” means all assets and properties of the Foreign Subsidiaries of Stream (other than Stream International Europe B.V.) which are subject to Liens securing the ABL Debt Obligations.

“ ABL First Lien Collateral ” means all present and future right, title and interest of Stream and the other Grantors in and to the following, whether now owned or hereafter acquired, existing or arising, and wherever located:

(a)    accounts and payment intangibles, including tax refunds, but excluding accounts and payment intangibles that constitute identifiable proceeds of Noteholder First Lien Collateral;

(b)    deposit accounts, commodity accounts, securities accounts and lock-boxes, including all money and certificated securities, uncertificated securities, securities entitlements and investment property credited thereto or deposited therein (including all cash, marketable securities and other funds held in or on deposit in any deposit account, commodity account or securities account), instruments, including intercompany notes, chattel paper and all cash and cash equivalents, including cash and cash equivalents securing reimbursement obligations in respect of letters of credit or other ABL Debt Obligations;

(c)    general intangibles pertaining to the other items of property included within clauses (a), (b), (d) and (e) of this definition;

(d)    books and records (including all books, databases, data processing software, customer lists and other tangible or electronic records), supporting obligations, documents and related letters of credit, commercial tort claims or other claims and causes of action, in each case, to the extent related to, or containing any information relating to, any of the foregoing; and

(e)    all substitutions, replacements, accessions, products and proceeds (including, without limitation, insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) of all or any of the foregoing;

except to the extent that any item of property included in clauses (a) through (e) constitutes an Excluded Asset; provided that in no case shall ABL First Lien Collateral include any identifiable cash proceeds from a sale, lease, conveyance or other disposition of any Noteholder First Lien Collateral that has been deposited in the Collateral Proceeds Account in accordance with the terms of the Indenture, until such time as such cash proceeds are released therefrom in accordance with the terms of the Indenture; provided further that in the case of any Grantor that

 

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is organized under the laws of any part of the Netherlands or any other jurisdiction outside the United States, the description of items of property referred to in clauses (a) through (e) above shall be subject to adjustment to reflect the classification of assets used under the laws of the applicable part of such jurisdiction and to reflect the categories of assets that are subject to the security documents governing such Grantors.

“ ABL Liens ” means Liens on the ABL Facility Collateral created under the ABL Security Documents to secure the ABL Debt Obligations (including Liens on such Collateral under the security documents associated with any ABL Substitute Facility).

“ ABL Secured Parties ” means, at any time, the ABL Agent, each lender or issuing bank under the ABL Credit Agreement, each holder, provider or obligee of any Banking Product Obligations that is a lender under the ABL Credit Agreement or an Affiliate (as defined herein or in the ABL Credit Agreement) thereof and is a secured party (or a party entitled to the benefits of the security) under any ABL Debt Document, the beneficiaries of each indemnification obligation undertaken by any Grantor under any ABL Debt Document, each other Person that provides letters of credit, guarantees or other credit support related thereto under any ABL Debt Document and each other holder of, or obligee in respect of, any ABL Debt Obligations (including pursuant to an ABL Substitute Facility), in each case to the extent designated as a secured party (or a party entitled to the benefits of the security) under any ABL Debt Document outstanding at such time.

“ ABL Security Documents ” means the ABL Credit Agreement (insofar as the same grants a Lien on the Collateral), each agreement listed in part A of Exhibit C hereto, and any other security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, control agreements, guarantees, notes or any other documents or instruments now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor or any of its subsidiaries to secure any ABL Debt Obligations (including any such agreements, assignments, mortgages, deeds of trust and other documents or instruments associated with any ABL Substitute Facility).

“ ABL Substitute Facility ” means any facility with respect to which the requirements contained in Section 2.10(a) of this Agreement have been satisfied and that Replaces the ABL Credit Agreement then in existence. For the avoidance of doubt, no ABL Substitute Facility shall be required to be a revolving or asset-based loan facility and may be a facility evidenced or governed by a credit agreement, loan agreement, note agreement, promissory note, indenture or any other agreement or instrument; provided that any ABL Lien securing such ABL Substitute Facility shall be subject to the terms of this Agreement for all purposes (including the lien priorities as set forth herein as of the date hereof).

“ Additional Priority Lien Debt Documents ” means the Additional Priority Lien Debt Facility and the Additional Priority Lien Security Documents.

“ Additional Priority Lien Security Documents ” means the Additional Priority Lien Debt Facility (insofar as the same grants a Lien on the Collateral) and all collateral trust agreements, security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, control agreements, guarantees, notes and any other documents or instruments now existing or

 

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entered into after the date hereof that create Liens on any assets or properties of any Grantor or any of its subsidiaries to secure any Obligations of the Grantors owed thereunder to any Additional Priority Lien Secured Parties.

“ Additional Priority Lien Debt Facility ” means one or more debt facilities, commercial paper facilities or indentures for which the requirements of Section 2.10(b) of this Agreement have been satisfied, in each case with banks, other lenders or trustees, 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 such lenders against such receivables), letters of credit, notes or other borrowings, in each case, as amended, restated, modified, renewed, refunded, restated, restructured, increased, supplemented, replaced or refinanced in whole or in part from time to time in accordance with each applicable Secured Document; provided that neither the ABL Credit Agreement, any ABL Substitute Facility, the Subordinated Lien Documents, nor any Subordinated Lien Debt shall constitute an Additional Priority Lien Debt Facility at any time.

“ Additional Priority Lien Debt Obligations ” means, with respect to any Grantor, any obligations of such Grantor owed to any Additional Priority Lien Secured Party (or any of its Affiliates) in respect of the Additional Priority Lien Debt Documents.

“ Additional Priority Lien Secured Parties ” means, at any time, the Noteholder Collateral Trustee, the trustee, agent or other representative of the holders of any Series of Priority Lien Debt who maintains the transfer register for such Series of Priority Lien Debt, the beneficiaries of each indemnification obligation undertaken by any Grantor under any Additional Priority Lien Debt Document and each other holder of, or obligee in respect of, any holder or lender pursuant to any Series of Priority Lien Debt outstanding at such time; provided that the Indenture Priority Lien Secured Parties shall not be deemed Additional Priority Lien Secured Parties.

“ Additional Secured Debt ” has the meaning assigned to that term in Section 2.10(b).

“ 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, shall mean 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 ” shall have correlative meanings.

“ Banking Product Obligations ” means, with respect to any Grantor or subsidiary thereof, any obligations of such Grantor or subsidiary (a) owed to any holder of ABL Debt Obligations or an affiliate thereof in respect of any financial accommodation extended to such Grantor by such Person (other than ABL Debt Obligations arising pursuant to the ABL Credit Agreement) including: (i) credit cards, (ii) credit card processing services, (iii) debit cards, (iv) purchase cards (including so-called “procurement cards” or “P-cards”), (v) cash management or related services (including the Automated Clearing House processing of electronic fund transfers

 

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through the direct Federal Reserve Fedline system), (vi) cash management, including controlled disbursement, accounts or services, or (vii) transactions under agreements that provide for an interest rate, credit, commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging such Grantor’s or subsidiary’s exposure to fluctuations in interest or exchange rates, loan, credit exchange, security, or currency valuations or commodity prices and (b) in respect of any other treasury management services (including, without limitation, services in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depositary, information reporting, lock-box and stop payment services), commercial credit card and merchant card services, stored valued card services, other cash management services, or lock-box leases and other bank products or services related to any of the foregoing.

“ Bankruptcy Code ” means Title 11 of the United States Code.

“ Board of Directors ” means (a) 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; (b) with respect to a partnership, the Board of Directors of the general partner of the partnership; (c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

“ Borrowing Base ” means, as of any date, an amount equal to 85% of the face amount of all accounts receivable (whether billed or unbilled) that were not more than 90 days past due owned by Stream and its Subsidiaries as of the end of the most recent month preceding such date for which internal financial statements are available.

“ Capital Stock ” means (a) in the case of a corporation, corporate stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, (c) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited), and (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets 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.

“ Class ” means (a) in the case of Subordinated Lien Debt, every Series of Subordinated Lien Debt, taken together, and (b) in the case of Priority Lien Debt, every Series of Priority Lien Debt, taken together.

“ Collateral ” means all of the assets and property of any Grantor, whether real, personal or mixed, constituting the ABL Facility Collateral and the Noteholder Collateral (it being understood and agreed that, for purposes of this Agreement, Collateral does not include the ABL Foreign Collateral unless the Priority Lien Secured Parties shall acquire a valid and perfected Lien on such assets).

 

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“ Collateral Proceeds Account ” means one or more deposit accounts or securities accounts established or maintained by Stream or the Noteholder Collateral Trustee or its agent for the sole purpose of holding the proceeds of any sale or other disposition of any Noteholder First Lien Collateral that are required to be held in trust in such account or accounts pursuant to the terms of the Indenture as in effect on the date hereof (or as modified from time to time to the extent such modifications, taken as a whole, are not materially adverse to the ABL Secured Parties) or pursuant to the documentation governing any other Priority Lien Document that contains comparable provisions that are not materially adverse to the ABL Secured Parties.

“ Deposit Accounts ” has the meaning set forth in Section 3.02 hereof.

“ Discharge of ABL Debt Obligations ” means:

(a)    termination or expiration of all commitments to extend credit that would constitute ABL Debt;

(b)    payment in full in cash of the principal of and interest and premium, if any on all ABL Debt (other than any undrawn letters of credit), other than from the proceeds of an incurrence of ABL Debt;

(c)    discharge or cash collateralization (at the lower of (i) 105% of the aggregate undrawn amount, and (ii) the percentage of the aggregate undrawn amount required for release of liens under the terms of the ABL Debt Documents) of all outstanding letters of credit constituting ABL Debt; and

(d)    payment in full in cash of all other ABL Debt Obligations that are outstanding and unpaid at the time the ABL 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 by the Person entitled thereto); provided that the Discharge of ABL Debt Obligations shall not be deemed to have occurred in connection with a Replacement as contemplated by Section 2.10(a).

“ Discharge of Senior Secured Debt Obligations ” means (x) with respect to the ABL Debt Obligations, the Discharge of the ABL Debt Obligations and (y) with respect to any other specified Senior Secured Obligations, the occurrence of all of the following:

(a)    termination or expiration of all commitments to extend credit that would constitute such Senior Secured Obligations;

(b)    payment in full in cash of the principal of and interest and premium (if any) on all such Senior Secured Obligations other than from the proceeds of an incurrence of such Senior Secured Obligations; and

(c)    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 Senior Secured Obligation Security Document) of all outstanding letters of credit constituting Senior Secured Obligations; and

 

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(d)    payment in full in cash of all other such Senior Secured Obligations that are outstanding and unpaid at the time the principal of and interest and premium on all such Senior Secured Obligations are 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); provided that the Discharge of Senior Secured Debt Obligations shall not be deemed to have occurred in connection with a Replacement as contemplated by Section 2.10(a).

“ Domestic Subsidiary ” means any subsidiary of Stream other than a subsidiary that is (a) a “controlled foreign corporation” under Section 957 of the Internal Revenue Code or (b) a subsidiary of any such controlled foreign corporation, so long as such subsidiary does not guarantee or otherwise provide direct credit support for any Indebtedness of Stream.

“ Equally and Ratably ” means, in reference to sharing of Liens or proceeds thereof as between holders of any Priority Lien Obligations or Subordinated Lien Obligations within the same Class, that such Liens or proceeds:

(a)    will be allocated and distributed first to the Secured Debt Representative for each outstanding Series of Secured Debt within that Class, for the account of the holders of such Series of Secured Debt, ratably in proportion to the principal of, and interest and premium (if any) and Special Interest (if any) and reimbursement obligations (contingent or otherwise) with respect to letters of credit, if any, outstanding (whether or not drawings have been made on such letters of credit) on, each outstanding Series of Secured Debt within that Class when the allocation or distribution is made, and thereafter; and

(b)    will be allocated and distributed (if any remain after payment in full of all of the principal of, and interest and premium (if any) and reimbursement obligations (contingent or otherwise) with respect to letters of credit, if any, outstanding (whether or not drawings have been made on such letters of credit), on all outstanding Priority Lien Obligations or Subordinated Lien Obligations within that Class) to the Secured Debt Representative for each outstanding Series of Secured Debt within that Class, for the account of the holders of any remaining Priority Lien Obligations or Subordinated Lien Obligations, as the case may be, within that Class, ratably in proportion to the aggregate unpaid amount of such remaining Priority Lien Obligations or Subordinated Lien Obligations within that Class due and demanded (with written notice to the Secured Debt Representative or the Noteholder Collateral Trustee, as the case may be) prior to the date such distribution is made.

“ 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).

“ Event of Default ” means an “Event of Default” under and as defined in the ABL Credit Agreement, the Indenture or any Additional Priority Lien Debt Documents or any Subordinated Lien Documents, as the context may require.

 

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“ Excluded Assets ” means each of the following:

(a)    all interests in real property other than fee interests and other interests appurtenant thereto;

(b)    fee interests (and other interests appurtenant thereto) in real property if the greater of the cost or the book value of such fee interest is less than $500,000 (determined on a per property basis);

(c)    any property or asset to the extent that the grant of a Priority Lien, Subordinated Lien or ABL Lien in such property or asset is prohibited by applicable law or requires any consent of any governmental authority not obtained pursuant to applicable law; provided that such property or asset will be an Excluded Asset only to the extent and for so long as the consequences specified above will result and will cease to be an Excluded Asset and will become subject to the Lien granted under the security documents, immediately and automatically, at such time as such consequences will no longer result;

(d)    any lease, license, contract, property right or agreement to which Stream or any other Grantor is a party or any of its rights or interests thereunder only to the extent and only for so long as (but only to the extent that) the grant of a Lien under the security documents will constitute or result in a breach, termination or default under or requires any consent not obtained under any such lease, license, contract, agreement or property right (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided that such lease, license, contract, property right or agreement will be an Excluded Asset only to the extent and for so long as the consequences specified above will result and will cease to be an Excluded Asset and will become subject to the Lien granted under the security documents, immediately and automatically, at such time as such consequences will no longer result;

(e)    any motor vehicles, vessels and aircraft, or other property subject to a certificate of title statute of any jurisdiction;

(f)    assets or property subject to purchase money liens or capital leases permitted to be incurred under the Secured Documents, to the extent a lien on such assets or property is not permitted under the terms of the documents governing such purchase money liens, purchase money indebtedness or capital leases to be created to secure any Secured Debt Obligations;

(g)    any trademark or service mark consisting of and “intent to use” application until such time as an amendment to allege use in respect thereof has been accepted by the United States Patent and Trademark Office, at which time such trademark or service mark shall cease to be an Excluded Asset;

(h)    all “securities” (including without limitation any Equity Interests) of any of Stream’s “affiliates” (as the terms “securities” and “affiliates” are used in Rule 3-16 of

 

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Regulation S-X under the Securities Act of 1933, as amended); provided that, with respect to Collateral securing the ABL Debt Obligations, such assets shall cease to be Excluded Assets under this clause (h) if such assets constitute Collateral for the Priority Lien Obligations;

(i)    Equity Interests in any joint venture with a third party that is not an Affiliate, to the extent a pledge of such equity interests is prohibited by the documents governing such joint venture; and

(j)    in the case of Noteholder First Lien Collateral only, ABL Foreign Collateral.

“ Foreign Subsidiary ” means any subsidiary of Stream other than a Domestic Subsidiary.

“ Grantor ” means Stream and each subsidiary of Stream that shall have granted any Lien in favor of the ABL Agent and the Noteholder Collateral Trustee on any of its assets or properties to secure any of the Secured Debt Obligations.

“ Holders of Priority Lien Debt ” means (a) the Holders under and as defined in the Indenture, (b) the holders or lenders pursuant to any Series of Priority Lien Debt and (c) the holders or lenders of any indebtedness under any Noteholder Substitute Facility.

“ Indenture ” means the Indenture, dated as of October      , 2009, among Stream, the Grantors party thereto from time to time, the Noteholder Collateral Trustee and the Trustee, as amended, restated, adjusted, waived, renewed, extended, supplemented or otherwise modified from time to time (including any supplements executed in connection with the issuance of any Series of Priority Lien Debt under the Indenture), and any credit agreement, loan agreement, note agreement, promissory note, indenture or any other agreement or instrument evidencing or governing the terms of any Noteholder Substitute Facility.

“ Indenture Noteholder Security Documents ” means the Indenture (insofar as the same grants a Lien on the Collateral), the Noteholder Collateral Trust Agreement, each agreement listed in Part B of Exhibit C hereto and any other security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, control agreements, guarantees, notes or any other documents or instruments now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor or any of its subsidiaries to secure any Priority Lien Obligations (including any such agreements, assignments, mortgages, deeds of trust and other documents or instruments associated with any Noteholder Substitute Facility).

“ Indenture Notes ” means the 11.25% Senior Secured Notes due 2014 issued under the Indenture, in an aggregate principal amount of $200,000,000 and any other senior secured notes issued thereunder.

“ Indenture Priority Lien Documents ” means the Indenture, the Indenture Noteholder Security Documents and all other loan documents, notes, guarantees, instruments and agreements governing or evidencing any Noteholder Substitute Facility.

 

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“ Indenture Priority Lien Obligations ” means, with respect to any Grantor, any obligations of such Grantor owed to any Indenture Priority Lien Secured Party (or any of its Affiliates) in respect of the Indenture Priority Lien Documents.

“ Indenture Priority Lien Secured Parties ” means, at any time, the Trustee, the Noteholder Collateral Trustee, the trustees, agents and other representatives of the holders of the Indenture Notes (including any holders of notes pursuant to supplements executed in connection with the issuance of Series of Priority Lien Debt under the Indenture) who maintains the transfer register for such Indenture Notes or such Series of Priority Lien Debt, the beneficiaries of each indemnification obligation undertaken by any Grantor under any Indenture Priority Lien Document and each other holder of, or obligee in respect of, any holder or lender pursuant to any Indenture Priority Lien Document outstanding at such time; provided that the Additional Priority Lien Secured Parties shall not be deemed Indenture Priority Lien Secured Parties.

“ Insolvency or Liquidation Proceeding ” means:

(a)    any case commenced by or against Stream or any other Grantor under the Bankruptcy Code or any similar federal or state law for the relief of debtors, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of Stream or any other Grantor, any receivership or assignment for the benefit of creditors relating to Stream or any other Grantor or any similar case or proceeding relative to Stream or any other Grantor or its creditors, as such, in each case whether or not voluntary;

(b)    any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to Stream or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency, unless otherwise permitted by the Indenture and the Security Documents (other than the ABL Security Documents);

(c)    any proceeding seeking the appointment of any trustee, receiver, liquidator, custodian or other insolvency official with respect to Stream or any other Grantor or any of its assets;

(d)    any other proceeding of any type or nature in which substantially all claims of creditors of Stream or any other Grantor are determined and any payment or distribution is or may be made on account of such claims; or

(e)    an analogous procedure or step in any jurisdiction.

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

“ Junior Documents ” means (a) in respect of the Noteholder First Lien Collateral, the ABL Debt Documents and (b) in respect of the ABL First Lien Collateral, the Priority Lien Documents and the Subordinated Lien Documents.

“ Junior Liens ” means (a) in respect of the ABL First Lien Collateral, the Priority Liens and the Subordinated Liens on such Collateral, and (b) in respect of the Noteholder First Lien

 

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Collateral, the ABL Liens. The Subordinated Liens shall be subordinate and junior in all respects to all Liens granted under the Priority Lien Documents in respect of the Noteholder First Lien Collateral to secure the Priority Lien Obligations on the terms set forth in the Noteholder Collateral Trust Agreement. For the avoidance of doubt, the Subordinated Liens shall also be subordinate and junior in all respect to the ABL Liens.

“ Junior Representative ” means (a) with respect to the Noteholder First Lien Collateral, the ABL Agent and (b) with respect to the ABL First Lien Collateral, the Noteholder Collateral Trustee.

“ Junior Secured Obligations ” means (a) with respect to the Priority Lien Obligations (to the extent such Obligations are secured, or intended to be secured, by the Noteholder First Lien Collateral), the ABL Debt Obligations and (b) with respect to ABL Debt Obligations (to the extent such Obligations are secured, or intended to be secured, by the ABL First Lien Collateral), the Priority Lien Obligations and the Subordinated Lien Obligations.

“ Junior Secured Obligations Collateral ” means the Collateral in respect of which the Junior Representative (on behalf of itself and the Junior Secured Obligations Secured Parties) holds a Junior Lien.

“ Junior Secured Obligations Secured Parties ” means (a) with respect to the Noteholder First Lien Collateral, the ABL Secured Parties and (b) with respect to the ABL First Lien Collateral, the Priority Lien Secured Parties and the Subordinated Lien Secured Parties.

“ Junior Secured Obligations Security Documents ” means (a) with respect to the ABL First Lien Collateral, the Priority Lien Security Documents and the Subordinated Lien Documents, and (b) with respect to the Noteholder First Lien Collateral, the ABL Security Documents.

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest therein and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes of any jurisdiction).

“ Lien Sharing and Priority Confirmation Joinder ” means an agreement substantially in the form of Exhibit B.

“ New York UCC ” means the Uniform Commercial Code as from time to time in effect in the State of New York.

“ Noteholder Collateral ” means all assets and properties of the Grantors subject to Liens created by the Indenture Noteholder Security Documents to secure the Indenture Priority Lien Obligations.

 

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“ Noteholder Collateral Trust Agreement ” means the Collateral Trust Agreement, dated as of October 1, 2009, among Stream, the subsidiaries of Stream from time to time party thereto, the Trustee, the other Secured Debt Representatives from time to time party thereto and the Noteholder Collateral Trustee, as amended, restated, adjusted, waived, renewed, extended, supplemented or otherwise modified from time to time, in accordance with each applicable Secured Document.

“ Noteholder Collateral Trustee ” means the Noteholder Collateral Trustee, and, from and after the date of execution and delivery of a Noteholder Substitute Facility, the agent, collateral agent, trustee or other representative of the lenders or other holders of the indebtedness and other obligations evidence thereunder or governed thereby, in each case, together with its successors in such capacity.

“ Noteholder First Lien Collateral ” means all present and future right, title and interest of Stream and the other Grantors, whether now owned or hereafter acquired, existing or arising, and wherever located, in all of the assets and property of any Grantor, whether real, personal or mixed (other than in the Excluded Assets and the ABL First Lien Collateral), including, without limitation, all: (a) equipment; (b) Real Estate Assets; (c) intellectual property; (d) all general intangibles that do not constitute ABL First Lien Collateral; (e) documents of title related to equipment; (f) records, supporting obligations and related letters of credit, commercial tort claims or other claims and causes of action, in each case, to the extent related primarily to the foregoing; and (g) substitutions, replacements, accessions, products and proceeds (including, without limitation, insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) of any or all of the foregoing.

“ Noteholder Substitute Facility ” means any facility with respect to which the requirements contained in Section 2.10(a) of this Agreement have been satisfied and that is permitted to be incurred pursuant to the ABL Debt Documents, the proceeds of which are used to, among other things, Replace the Indenture and/or any Additional Priority Lien Debt Facility then in existence. For the avoidance of doubt, no Noteholder Substitute Facility shall be required to be evidenced by notes or other instruments and may be a facility evidenced or governed by a credit agreement, loan agreement, note agreement, promissory note, indenture or any other agreement or instrument; provided that any such Noteholder Substitute Facility shall be subject to the terms of this Agreement for all purposes (including the lien priority as set forth herein as of the date hereof) as the other Liens securing the Priority Lien Obligations are subject to under this Agreement.

“ Obligations ” means any principal, interest, penalties, fees, expenses, indemnifications, reimbursements, damages and other liabilities (including all interest, Special Interest (if any), fees and expenses accruing after the commencement of any Insolvency or Liquidation Proceeding, even if such interest, fees and expenses are not enforceable, allowable or allowed as a claim in such proceeding) under any Secured Documents, and, to the extent applicable, to include Banking Product Obligations.

“ Officer ” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Accounting Officer, the Vice President of Finance, the Chief Legal Officer, the Treasurer, the Secretary and the Deputy General Counsel of such Person.

 

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“ Officers’ Certificate ” means a certificate signed on behalf of Stream by at least two Officers of Stream, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of Stream.

“ Original ABL Agent ” has the meaning assigned to that term in the preamble hereto.

“ Original Trustee ” means Wells Fargo Bank, National Association, in its capacity as trustee under the Indenture, and together with its successors in such capacity.

“ Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

“ Priority Lien ” means a Lien granted by the Priority Lien Documents to the Noteholder Collateral Trustee at any time upon any property of Stream or any other Grantor to secure Priority Lien Obligations.

“ Priority Lien Debt ” means the Indenture Notes, all additional notes, loans or other indebtedness issued or incurred under any Additional Priority Lien Debt Documents and with respect to which the requirements of Section 2.10(b) have been satisfied, and all notes, loans or other indebtedness issued or incurred under any Noteholder Substitute Facility.

“ Priority Lien Documents ” means the Indenture and the Additional Priority Lien Debt Documents.

“ Priority Lien Obligations ” means Priority Lien Debt and all other Obligations in respect thereof.

“ Priority Lien Secured Parties ” means the Indenture Priority Lien Secured Parties and the Additional Priority Lien Secured Parties.

“ Priority Lien Security Documents ” means the Indenture Noteholder Security Documents and the Additional Priority Lien Security Documents.

“ Real Estate Asset ” means, at any time of determination, any fee interest then owned by Stream or any Grantor in any real property.

“ Registration Rights Agreement ” means the Registration Rights Agreement, dated as of the date hereof, among Stream, the other Grantors, Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated, Wells Fargo Securities LLC and RBC Capital Markets Corporation.

“ Replaces ” means, (a) in respect of any agreement with reference to the ABL Credit Agreement or the ABL Debt Obligations or any ABL Substitute Facility, that such agreement refunds, refinances or replaces the ABL Credit Agreement or such ABL Substitute Facility in whole (in a transaction that is in compliance with Section 2.10(a)) and that all commitments

 

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thereunder are terminated, or, to the extent permitted by the terms of the ABL Credit Agreement or such ABL Substitute Facility, and (b) in respect of any indebtedness with reference to the Priority Lien Documents or the Priority Lien Obligations or any Noteholder Substitute Facility, that such indebtedness refunds, refinances or replaces the Priority Lien Documents or such Noteholder Substitute Facility in whole (in a transaction that is in compliance with Section 2.10(a)) and that all commitments thereunder are terminated, or, to the extent permitted by the terms of the Priority Lien Documents or such Noteholder Substitute Facility, in part. “ Replace, ” “ Replaced ” and “ Replacement ” shall have correlative meanings.

“ Representative ” means (a) in the case of any Priority Lien Obligations and Subordinated Lien Obligations, the Noteholder Collateral Trustee, and (b) in the case of any ABL Debt Obligations, the ABL Agent.

“ Secured Debt Obligations ” means, the Priority Lien Obligations (including the Obligations incurred under each Series of Priority Lien Debt), the ABL Debt Obligations and the Subordinated Lien Obligations (including the Obligations incurred under each Series of Subordinated Lien Debt).

“ Secured Debt Representative ” means (a) in the case of the Indenture Notes, Noteholder Collateral Trustee, and (b) in the case of any other Series of Secured Debt, the trustee, agent or representative of the holders of such Series of Secured Debt who maintains the transfer register for such Series of Secured Debt and is appointed as a representative of such Series of Secured Debt (for purposes related to the administration of the security documents) pursuant to the indenture, credit agreement or other agreement governing such Series of Secured Debt.

“ Secured Documents ” means the Priority Lien Documents, the ABL Debt Documents and the Subordinated Lien Documents.

“ Secured Parties ” means the Priority Lien Secured Parties, the ABL Secured Parties and the Subordinated Lien Secured Parties.

“ Securities Accounts ” has the meaning set forth in Section 3.02 hereof.

“ Security Documents ” means the Indenture Noteholder Security Documents, the ABL Security Documents, the Additional Priority Lien Security Documents and the Subordinated Lien Documents.

“ Senior Documents ” means (a) in respect of the Noteholder First Lien Collateral, the Priority Lien Documents, and (b) in respect of the ABL First Lien Collateral, the ABL Debt Documents.

“ Senior Liens ” means (a) in respect of the ABL First Lien Collateral, the ABL Liens on such Collateral, and (b) in respect of the Noteholder First Lien Collateral, the Priority Liens on such Collateral. The Subordinated Liens shall be subordinate and junior in all respect to all Liens granted on the Collateral in respect of the ABL Debt Obligations and the Priority Lien Obligations; provided that there are no Subordinated Liens on the ABL Foreign Collateral.

 

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“ Senior Representative ” means (a) with respect to the Noteholder First Lien Collateral, the Noteholder Collateral Trustee, and (b) with respect to the ABL First Lien Collateral, the ABL Agent. The Noteholder Collateral Trustee, on behalf of the Subordinated Lien Secured Parties, shall at no time constitute a Senior Representative.

“ Senior Secured Obligations ” means (a) with respect to the ABL Debt Obligations (to the extent such obligations are secured, or are intended to be secured, by the Noteholder First Lien Collateral), the Priority Lien Obligations, and (b) with respect to Priority Lien Obligations and the Subordinated Lien Obligations (in each case, to the extent such obligations are secured, or are intended to be secured, by the ABL First Lien Collateral), the ABL Debt Obligations.

“ Senior Secured Obligations Collateral ” means the Collateral in respect of which the Senior Representative (on behalf of itself and the applicable Senior Secured Obligations Secured Parties) holds a Senior Lien.

“ Senior Secured Obligations Secured Parties ” means (a) with respect to the Noteholder First Lien Collateral, the Priority Lien Secured Parties, and (b) with respect to the ABL First Lien Collateral, the ABL Secured Parties. Neither the Noteholder Collateral Trustee, on behalf of the Subordinated Lien Secured Parties, nor the Subordinated Lien Secured Parties shall, at any time, constitute Senior Secured Obligations Secured Parties.

“ Senior Secured Obligations Security Documents ” means (a) with respect to the ABL First Lien Collateral, the ABL Security Documents, and (b) with respect to the Noteholder First Lien Collateral, the Indenture Noteholder Security Documents and the Additional Priority Lien Security Documents.

“ Series of Priority Lien Debt ” means, severally, the Indenture Notes and any additional notes, any Additional Priority Lien Debt Facility and other indebtedness that constitutes Priority Lien Debt.

“ Series of Secured Debt ” means each Series of Subordinated Lien Debt and each Series of Senior Debt.

“ Series of Senior Debt ” means each Series of ABL Debt and each Series of Priority Lien Debt.

“ Series of Subordinated Lien Debt ” means, severally, each issue or series of Subordinated Lien Debt for which a single transfer register is maintained.

“ Special Interest ” means all special interest then owing pursuant to the Registration Rights Agreement.

“ Subordinated Lien ” means a Lien granted by a Security Document to the Noteholder Collateral Trustee, at any time, upon any Collateral of Stream or any other Grantor to secure Subordinated Lien Obligations.

 

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“ Subordinated Lien Debt ” means any indebtedness (including letters of credit and reimbursement obligations with respect thereto) of Stream or any other Grantor that is secured on a subordinated basis to the Priority Lien Debt by a Subordinated Lien that was permitted to be incurred and so secured under each applicable Priority Lien Document and Subordinated Lien Document and with respect to which the requirements of Section 2.10(b) have been satisfied.

“ Subordinated Lien Documents ” means, collectively, any indenture, credit agreement or other agreement governing each Series of Subordinated Lien Debt and the security documents and other agreements related thereto (other than any security documents that do not secure Subordinated Lien Obligations).

“ Subordinated Lien Obligations ” means Subordinated Lien Debt and all other Obligations in respect thereof.

“ Subordinated Lien Secured Parties ” means, at any time, the trustee, agent or representative of the holders of Series of Subordinated Lien Debt who maintains the transfer register for such Series of Subordinated Lien Debt, the beneficiaries of each indemnification obligation undertaken by any Grantor under any Subordinated Lien Document and each other holder of, or obligee in respect of, any holder or lender pursuant to any Series of Subordinated Lien Debt outstanding at such time.

“ subsidiary ” means, with respect to any specified Person (a) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of that Person (or a combination thereof); and (b) any partnership or limited liability company of which (i) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (ii) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.

“ TIA ” means the Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect on the date hereof.

“ Trustee ” means the Original Trustee, and, from and after the date of execution and delivery of the Noteholder Substitute Facility, the agent, collateral agent, trustee or other representative of the lenders or other holders of the indebtedness and other obligations evidenced thereunder or governed thereby, together with its successors in such capacity.

“ Voting Stock ” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

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ARTICLE II

Subordination of Junior Liens; Certain Agreements

SECTION 2.01.     Subordination of Junior Liens . (a) The grant of the ABL Liens pursuant to the ABL Security Documents and the grant of the Priority Liens pursuant to the Indenture Noteholder Security Documents and the Additional Priority Lien Security Documents and the grant of the Subordinated Liens pursuant to the Subordinated Lien Documents create three separate and distinct Liens on the Collateral.

(b)    All Junior Liens in respect of any Collateral are expressly subordinated and made junior in right, priority, operation and effect to any and all Senior Liens in respect of such Collateral (and all Subordinated Liens in respect of any Collateral are expressly subordinated and made junior in right, priority, operation and effect to any and all ABL Liens and Liens of the Holders of Priority Lien Debt in respect of such Collateral), notwithstanding anything contained in this Agreement, the Priority Lien Documents and the ABL Debt Documents, the Subordinated Lien Documents or any other agreement or instrument or operation of law to the contrary, and irrespective of the time, order or method of creation, attachment or perfection of such Junior Liens and Senior Liens (and Subordinated Liens) or any failure, defect or deficiency or alleged failure, defect or deficiency in any of the foregoing.

(c)    It is acknowledged that, subject, in the case of ABL Debt, to the ABL Debt Cap and in the case of the other Secured Debt Obligations, subject to any applicable restrictions in the ABL Credit Agreement, (i) the aggregate amount of the Senior Secured Obligations may be increased from time to time pursuant to the terms of the Senior Documents, (ii) a portion of the Senior Secured Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, and (iii) the Senior Secured Obligations may be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, refinanced or otherwise amended or modified from time to time, all without affecting the subordination of the Junior Liens hereunder or the provisions of this Agreement defining the relative rights of the ABL Secured Parties, the Priority Lien Secured Parties and the Subordinated Lien Secured Parties. The lien priorities pro