exv10w3






Exhibit 10.3




 

 






INTERCREDITOR AGREEMENT




among




NCI BUILDING SYSTEMS, INC.,

as a Borrower or Guarantor,




CERTAIN DOMESTIC SUBSIDIARIES OF NCI BUILDING SYSTEMS, INC.,

as Borrowers or Guarantors




and




WELLS FARGO FOOTHILL, LLC

as the Working Capital Agent and the Working Capital Administrative Agent




and




WACHOVIA BANK, NATIONAL ASSOCIATION,

as the Term Loan Agent and the Term Loan Administrative Agent




and




WELLS FARGO BANK, NATIONAL ASSOCIATION

as the Control Agent




Dated as of October 20, 2009




 

 






 









 












Execution Copy




TABLE OF CONTENTS




	 	 	 	 	 	 	 
	SECTION 1
	 	Definitions	 	 	3	 
	1.1
	 	Defined Terms	 	 	3	 
	1.2
	 	Terms Generally	 	 	18	 
	 
	 	 	 	 	 	 
	SECTION 2
	 	Lien Priorities	 	 	19	 
	2.1
	 	Scope of Collateral	 	 	19	 
	2.2
	 	Priority	 	 	19	 
	2.3
	 	Failure to Perfect	 	 	21	 
	2.4
	 	Prohibition on Contesting Liens	 	 	22	 
	2.5
	 	No New Liens	 	 	22	 
	2.6
	 	Similar Liens and Agreements	 	 	23	 
	 
	 	 	 	 	 	 
	SECTION 3
	 	Enforcement	 	 	24	 
	3.1
	 	Enforcement	 	 	24	 
	3.2
	 	Actions Upon Breach	 	 	30	 
	 
	 	 	 	 	 	 
	SECTION 4
	 	Payments	 	 	30	 
	4.1
	 	Application of Proceeds	 	 	30	 
	4.2
	 	Payment Turnover	 	 	32	 
	 
	 	 	 	 	 	 
	SECTION 5
	 	Other Agreements	 	 	32	 
	5.1
	 	Releases	 	 	32	 
	5.2
	 	Insurance	 	 	37	 
	5.3
	 	Control Agent for Perfection	 	 	38	 
	5.4
	 	Access to Term Loan Priority Collateral	 	 	40	 
	5.5
	 	Consent to Limited License	 	 	41	 
	 
	 	 	 	 	 	 
	SECTION 6
	 	Insolvency or Liquidation Proceedings	 	 	42	 
	6.1
	 	Use of Cash Collateral and Financing Issues	 	 	42	 
	6.2
	 	Sale Issues	 	 	43	 
	6.3
	 	Relief from the Automatic Stay	 	 	43	 
	6.4
	 	Adequate Protection	 	 	43	 
	6.5
	 	Separate Grants of Security and Separate Classification	 	 	44	 
	6.6
	 	Post-Petition Claims	 	 	45	 
	6.7
	 	Avoidance Issues	 	 	45	 
	6.8
	 	Expense Claims	 	 	45	 
	6.9
	 	Effectiveness in Insolvency or Liquidation Proceedings	 	 	45	 
	 
	 	 	 	 	 	 
	SECTION 7
	 	Reliance; Waivers; Etc.	 	 	46	 
	7.1
	 	Non-Reliance	 	 	46	 
	7.2
	 	No Warranties or Liability	 	 	47	 
	7.3
	 	No Waiver of Lien Priorities	 	 	48	 
	7.4
	 	Obligations Unconditional	 	 	50	 
	7.5
	 	Certain Notices	 	 	50	 
	 
	 	 	 	 	 	 
	SECTION 8
	 	Miscellaneous	 	 	51	 
	8.1
	 	Conflicts	 	 	51	 






 









 






	 	 	 	 	 	 	 
	8.2
	 	Effectiveness; Continuing Nature of this Agreement; Severability	 	 	51	 
	8.3
	 	Amendments; Waivers	 	 	51	 
	8.4
	 	Information Concerning Financial Condition of Company and its Subsidiaries	 	 	52	 
	8.5
	 	Subrogation	 	 	52	 
	8.6
	 	[Reserved]	 	 	52	 
	8.7
	 	SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL	 	 	53	 
	8.8
	 	Notices	 	 	54	 
	8.9
	 	Further Assurances	 	 	54	 
	8.10
	 	Designation of Additional Indebtedness; Joinder of Additional Agents	 	 	54	 
	8.11
	 	Binding on Successors and Assigns	 	 	55	 
	8.12
	 	Specific Performance	 	 	55	 
	8.13
	 	Headings	 	 	55	 
	8.14
	 	Counterparts	 	 	56	 
	8.15
	 	Authorization	 	 	56	 
	8.16
	 	No Third Party Beneficiaries	 	 	56	 
	8.17
	 	Provisions Solely to Define Relative Rights	 	 	56	 






 









 






     THIS INTERCREDITOR AGREEMENT (the “Agreement”), dated as of October 20, 2009, is
entered into by and among NCI BUILDING SYSTEMS, INC., a Delaware corporation (the
“Company”), those certain Domestic Subsidiaries of the Company from time to time party to
the Working Capital Credit Documents, the Term Loan Credit Documents or any Additional Documents as
borrowers or guarantors (together, with the Company, the “Grantors”), WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity as administrative agent for the Term Loan Lenders referenced
below (in such capacity, together with its successors and assigns in such capacity, the “Term
Loan Administrative Agent”) and its capacity as collateral agent for the Term Loan Lenders
referenced below (in such capacity, together with its successors and assigns in such capacity, the
“Term Loan Agent”), WELLS FARGO FOOTHILL, LLC, in its capacity as administrative agent for
the Working Capital Lenders referenced below (in such capacity, the “Working Capital
Administrative Agent”) and its capacity as collateral agent for the Working Capital Lenders
referenced below (in such capacity, together with its successors and assigns in such capacity, the
“Working Capital Agent”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, in its capacity as
control agent for the Working Capital Agent, the Term Loan Agent and any Additional Agent (in such
capacity, together with its successors and assigns in such capacity, the “Control Agent”).



RECITALS:




     WHEREAS, certain of the Grantors, the financial institutions from time to time party thereto
as lenders (collectively, the “Term Loan Lenders”), the Term Loan Administrative Agent and
the Term Loan Agent are parties to that certain Amended and Restated Credit Agreement dated as of
the date hereof (as amended, restated, supplemented or modified from time to time, the “Initial
Term Loan Credit Agreement”), pursuant to which the Term Loan Lenders shall make a term loan
credit facility available to the Company secured by a first priority security interest in certain
assets of the Grantors and a second priority security interest in certain other assets of such
Grantors;



     WHEREAS, the Grantors, the financial institutions from time to time party thereto as lenders
(collectively, the “Working Capital Lenders”), the Working Capital Administrative Agent and
the Working Capital Agent are parties to that certain Loan and Security Agreement, dated as of the
date hereof (as amended, restated, supplemented or modified from time to time, the “Initial
Working Capital Credit Agreement”), pursuant to which the Working Capital Lenders shall make a
revolving credit facility available to the Grantors that are borrowers thereunder secured by a
first priority security interest in certain assets of the Grantors and a second priority security
interest in certain other assets of the Grantors;



     WHEREAS, pursuant to this Agreement, the Company may, from time to time, designate certain
additional Indebtedness as “Additional Indebtedness” by executing and delivering the Additional
Indebtedness Designation and by complying with the procedures set forth in Section 8.10 hereof, and
the holders of such Additional Indebtedness and any other applicable Additional Claimholder shall
thereafter constitute Additional Claimholder, and any Additional Agent (as hereinafter defined) for
any such Additional Claimholder shall thereafter constitute an Additional Agent, for all purposes
under this Agreement; and



     WHEREAS, the Working Capital Agent, for and on behalf of the Working Capital Claimholders, and
the Term Loan Agent, for and on behalf of the Term Loan Claimholders, desire to enter into this
Agreement to (i) confirm the relative priorities of their respective security interests in the
assets and properties of the Grantors, and (ii) provide for the orderly sharing among them, in
accordance with such priorities, of the proceeds of such assets and properties upon any foreclosure
thereon or other disposition thereof.



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     NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and
other good and valuable consideration, the existence and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:



SECTION 1




DEFINITIONS




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



     “Account” means, as to each Grantor, all present and future rights of such Person to payment
of a monetary obligation, whether or not earned by performance, which is not evidenced by chattel
paper or an instrument, (a) for property that has been or is to be sold, leased, licensed,
assigned, or otherwise disposed of, (b) for services rendered or to be rendered, (c) for a
secondary obligation incurred or to be incurred, or (d) arising out of the use of a credit or
charge card or information contained on or for use with the card.



     “Additional Agent” means any one or more agents, trustees or other representatives for or of
any one or more Additional Credit Facility Creditors, and shall include any replacement thereof or
successor thereto, as well as any Person designated as an “Agent” under any Additional Credit
Facility.



     “Additional Bank Products Affiliate” means any Additional Credit Facility Creditor or any
Affiliate of any Additional Credit Facility Creditor that has entered into a Bank Products
Agreement with a Grantor with the obligations of such Grantor thereunder being secured by one or
more Additional Collateral Documents.



     “Additional Borrower” means any Grantor that incurs or issues Additional Indebtedness.



     “Additional Cap Amount” has the meaning set forth in the definition of Additional Obligations.



     “Additional Claimholders” means, at any relevant time, the holder or holders of Additional
Obligations at such time, including without limitation any Additional Credit Facility Creditors,
any Additional Bank Products Affiliate and each Additional Agent, and all successors, assigns,
transferees and replacements thereof, as well as any Person designated as an “Additional
Claimholder” under any Additional Credit Facility; and with respect to any Additional Agent, shall
mean the Additional Claimholders for which such Additional Agent acts as Additional Agent.



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



     “Additional Collateral Disposition” has the meaning set forth in Section 5.1(b)(ii).



     “Additional Collateral Documents” means all “Security Documents” as defined in any Additional
Credit Facility, and in any event shall include all security agreements, mortgages, deeds of trust,
pledges and other collateral documents executed and delivered in connection with any Additional
Credit Facility, and any other agreement, document or instrument pursuant to which a Lien is
granted securing any Additional Obligations or under which rights or remedies with respect to such
Liens are governed, in each case as the same may be amended, restated, modified or supplemented
from time to time.



3









 





     “Additional Collateral Exercise of Remedies” has the meaning set forth in Section
5.1(b)(i).



     “Additional Credit Facilities” means any one or more agreements, instruments and documents
under which any Additional Indebtedness is or may be incurred, including without limitation any
credit agreements, loan agreements, indentures or other financing agreements, in each case as the
same may be amended, modified or supplemented from time to time, together with any other agreement
extending the maturity of, consolidating, restructuring, refunding, replacing or refinancing all or
any portion of the Additional Obligations, whether by the same or any other lender, debtholder or
group of lenders or debtholders, or the same or any other agent, trustee or representative
therefor, and whether or not increasing the amount of any Indebtedness that may be incurred
thereunder.



     “Additional Credit Facility Creditors” means one or more holders of Additional Indebtedness
(or commitments therefor) that is or may be incurred under one or more Additional Credit
Facilities.



     “Additional Documents” means any Additional Credit Facilities, any Additional Guarantees, any
Additional Collateral Documents, any Bank Products Agreements between any Grantor and any
Additional Bank Products Affiliate, those other ancillary agreements as to which any Additional
Claimholder is a party or a beneficiary and all other agreements, instruments, documents and
certificates, now or hereafter executed by or on behalf of any Grantor or any of its respective
Subsidiaries or Affiliates and delivered to any Additional Agent in connection with any of the
foregoing or any Additional Credit Facility, and any other document or instrument executed or
delivered at any time in connection with any Additional Obligations, including any intercreditor or
joinder agreement among holders of Additional Obligations or among holders of Term Loan Obligations
and Additional Obligations, in each case as the same may be amended, modified or supplemented from
time to time.



     “Additional Effective Date” has the meaning set forth in Section 8.10(b).



     “Additional Guarantees” means any one or more guarantees of any Additional Obligations of any
Grantor by any other Grantor in favor of any Additional Claimholder.



     “Additional Indebtedness” means any Additional Specified Indebtedness that (1) is permitted to
be secured by a Lien (as defined below) on Collateral by




	(a)	 	prior to the Discharge of Working Capital Obligations, Section 10.2 of the Initial Working
Capital Credit Agreement (if the Initial Working Capital Credit Agreement is then in effect)
or the corresponding negative covenant restricting Liens contained in any other Working
Capital Credit Agreement then in effect if the Initial Working Capital Credit Agreement is not
then in effect (which covenant is designated in such Working Capital Credit Agreement as
applicable for purposes of this definition),






	(b)	 	prior to the Discharge of Term Loan Obligations, Section 7.3 of the Initial Term Loan Credit
Agreement (if the Initial Term Loan Credit Agreement is then in effect) or the corresponding
negative covenant restricting Liens contained in any other Term Loan Credit Agreement then in
effect (which covenant is designated in such Term Loan Credit Agreement as applicable for
purposes of this definition) and






	(c)	 	prior to the Discharge of Additional Obligations, any negative covenant restricting Liens
contained in any applicable Additional Credit Facility then in effect (which covenant is
designated in such Additional Credit Facility as applicable for purposes of this definition)
and





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(2) is designated as “Additional Indebtedness” by the Company pursuant to an Additional
Indebtedness Designation and in compliance with the procedures set forth in Section 8.10.



As used in this definition of “Additional Indebtedness”, the term “Lien” shall have the meaning set
forth (x) for purposes of the preceding clause (1)(a), prior to the Discharge of Working Capital
Obligations, in Section 1 of the Initial Working Capital Credit Agreement (if the Initial Working
Capital Credit Agreement is then in effect), or in any other Working Capital Credit Agreement then
in effect (if the Initial Working Capital Credit Agreement is not then in effect), (y) for purposes
of the preceding clause (1)(b), prior to the Discharge of Term Loan Obligations, in Section 1.1 of
the Initial Term Loan Credit Agreement (if the Initial Term Loan Credit Agreement is then in
effect), or in any other Term Loan Credit Agreement then in effect, and (z) for purposes of the
preceding clause (1)(c), prior to the Discharge of Additional Obligations, in the applicable
Additional Credit Facility then in effect.




     “Additional Indebtedness Designation” means a certificate of the Company with respect to
Additional Indebtedness substantially in the form of Exhibit A attached hereto



     “Additional Indebtedness Joinder” means a joinder agreement executed by one or more Additional
Agents in respect of the Additional Indebtedness subject to an Additional Indebtedness Designation,
on behalf of one or more Additional Creditors in respect of such Additional Indebtedness,
substantially in the form of Exhibit B attached hereto



     “Additional Specified Indebtedness” means any Indebtedness that is or may from time to time be
incurred by any Grantor in compliance with:




	(a)	 	prior to the Discharge of Working Capital Obligations, Section 10.3 of the Initial Working
Capital Credit Agreement (if the Initial Working Capital Credit Agreement is then in effect)
or the corresponding negative covenant restricting Indebtedness contained in any other Working
Capital Credit Agreement then in effect if the Initial Working Capital Credit Agreement is not
then in effect (which covenant is designated in such Working Capital Credit Agreement as
applicable for purposes of this definition),






	(b)	 	prior to the Discharge of Term Loan Obligations, Section 7.2 of the Term Credit Agreement (if
the Initial Term Loan Credit Agreement is then in effect) or the corresponding negative
covenant restricting Indebtedness contained in any other Term Loan Credit Agreement then in
effect (which covenant is designated in such Term Loan Credit Agreement as applicable for
purposes of this definition) and






	(c)	 	any negative covenant restricting Indebtedness contained in any Additional Credit Facility
then in effect (which covenant is designated in such Additional Credit Facility as applicable
for purposes of this definition).




As used in this definition of “Additional Specified Indebtedness”, the term “Indebtedness” shall
have the meaning set forth (x) for purposes of the preceding clause (a), prior to the Discharge of
Working Capital Obligations, in Section 1 of the Initial Working Capital Credit Agreement (if the
Initial Working Capital Credit Agreement is then in effect), or in any other Working Capital Credit
Agreement then in effect (if the Initial Working Capital Credit Agreement is not then in effect),
(y) for purposes of the preceding clause (b), prior to the Discharge of Term Loan Obligations, in
Section 1.1 of the Initial Term Loan Credit Agreement (if the Initial Term Loan Credit Agreement is
then in effect), or in any other Term Loan Credit Agreement then in effect, and (z) for purposes of
the preceding clause (c), prior to the Discharge of Additional Obligations, in the applicable
Additional Credit Facility then in effect.




5









 








     “Additional Obligations” means any and all loans and all other obligations, liabilities and
indebtedness of every kind, nature and description owing by any Grantor whether now existing or
hereafter arising, whether arising before, during or after the commencement of any case with
respect to any Grantor under the Bankruptcy Code or any other Insolvency or Liquidation Proceeding
under (i) any Additional Credit Facilities, (ii) any other Additional Documents and (iii) any Bank
Products Agreements with any Additional Agent, any Additional Credit Facility Creditor or any
Affiliate of any Additional Credit Facility Creditor; provided that the aggregate principal
amount of, without duplication, any term loans, bonds, debentures, notes or similar instruments
(excluding, in any event, any Bank Product Debt) issued under any Additional Credit Facility in
excess of the amount thereof constituting Additional Specified Indebtedness (the “Additional Debt
Cap Amount”), shall not constitute Additional Obligations for purposes of this Agreement.
“Additional Obligations” shall include (x) all interest accrued or accruing (or which would, absent
commencement of an Insolvency or Liquidation Proceeding, accrue) in accordance with the rate
specified in the relevant Additional Document and (y) all fees, costs and charges incurred in
connection with the Additional Documents and provided for thereunder, in the case of each of clause
(x) and clause (y) whether before or after commencement of an Insolvency or Liquidation Proceeding
and irrespective of whether any claim for such interest, fees, costs or charges is allowed as a
claim in such Insolvency or Liquidation Proceeding.



     “Affiliate” means, with respect to a specified Person, any other Person which directly or
indirectly, through one or more intermediaries, controls or is controlled by or is under common
control with such Person, and without limiting the generality of the foregoing, includes (a) any
Person which beneficially owns or holds ten (10%) percent or more of any class of Voting Stock of
such Person or other equity interests in such Person, (b) any Person of which such Person
beneficially owns or holds ten (10%) percent or more of any class of Voting Stock or in which such
Person beneficially owns or holds ten (10%) percent or more of the equity interests and (c) any
director or executive officer of such Person. For the purposes of this definition, the term
“control” (including with correlative meanings, the terms “controlled by” and “under common control
with”), 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 and policies of such Person, whether
through the ownership of Voting Stock, by agreement or otherwise.



     “Agent” means the Working Capital Agent, the Term Loan Agent or any Additional Agent, as
applicable.



     “Agent Parties” means (i) prior to the Discharge of Term Loan Obligations, the Term Loan
Agent, (ii) prior to the Discharge of Working Capital Obligations, the Working Capital Agent and
(iii) prior to the Discharge of Additional Obligations, any Additional Agent.



     “Aggregate Principal Exposure” means the aggregate principal amount of, without duplication,
any issued but undrawn letters of credit, any reimbursement obligations for drawn letters of
credit, term loans, revolving loans, bonds, debentures, notes or similar instruments (excluding, in
any event, Bank Product Debt) issued under the Working Capital Credit Documents, the Term Loan
Credit Documents, or any Additional Credit Facility and related applicable Additional Documents, as
applicable.



     “Agreement” means this Agreement, as amended, renewed, extended, supplemented or otherwise
modified from time to time in accordance with the terms hereof.



     “Bank Products Agreement” means (x) any agreement pursuant to which a bank or other financial
institution agrees to provide any of the following products, services or facilities extended to any
Grantor by any Claimholder or any of its Affiliates: (a) Cash Management Services; (b) commercial



6









 







credit card and merchant card services; and (c) other banking products or services as may be
requested by any Grantor, other than letters of credit, and (y) any interest rate, foreign
currency, commodity or equity swap, collar, cap, floor or forward rate agreement, or other
agreement or arrangement designed to protect against fluctuations in interest rates or currency,
commodity or equity values (including, without limitation, any option with respect to any of the
foregoing and any combination of the foregoing agreements or arrangements), entered into between
any Grantor and any Claimholder or any of its Affiliates, and any confirmation executed in
connection with any such agreement or arrangement.



     “Bank Product Debt” of any Person means any obligation of such Person pursuant to any Bank
Products Agreement.



     “Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as amended,
modified, succeeded or replaced from time to time.



     “Bankruptcy Law” means the Bankruptcy Code, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors generally.



     “Business Day” means any day other than a Saturday, Sunday, or other day on which commercial
banks are authorized or required to close under the laws of the State of New York, and a day on
which the Control Agent is open for the transaction of business.



     “Capital Lease” means, as applied to any Person, any lease of (or any agreement conveying the
right to use) any property (whether real, personal or mixed) by such Person as lessee which in
accordance with GAAP, is required to be reflected as a liability on the balance sheet of such
Person.



     “Capital Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated) of such Person’s capital stock or
partnership, limited liability company or other equity interests at any time outstanding, and any
and all rights, warrants or options exchangeable for or convertible into such capital stock or
other interests (but excluding any debt security that is exchangeable for or convertible into such
capital stock).



     “Cash Management Services” means any services provided from time to time to the Grantors in
connection with operating, collections, payroll, trust, or other depository or disbursement
accounts or otherwise consisting of treasury or cash management services, including automated
clearinghouse, controlled disbursement, depository, electronic funds transfer, information
reporting, lockbox, stop payment, return item, netting, overdraft and/or wire transfer services.



     “Certificated Security” has the meaning set forth in the UCC.



     “Chattel Paper” has the meaning set forth in the UCC.



     “Claimholders” means the Term Loan Claimholders, the Working Capital Claimholders and any
Additional Claimholders.



     “Collateral” means all of the assets and property of any Grantor, whether tangible or
intangible, constituting both Working Capital Collateral and Term Loan Collateral.



     “Commercial Tort Claim” has the meaning set forth in the UCC.



7









 





     “Company” has the meaning set forth in the introductory paragraph of this Agreement.



     “Control Collateral” means any Collateral consisting of any Certificated Security, Instrument,
Investment Property, Deposit Accounts and cash.



     “Controlled Account” means those certain Deposit Accounts of any Grantor subject to Liens
under the terms of the Working Capital Collateral Documents and the Term Loan Collateral Documents.



     “Credit Agreement” means the Term Loan Credit Agreement, the Working Capital Credit Agreement
or any Additional Credit Facility, as applicable.



     “Credit Documents” means the Term Loan Credit Documents, the Working Capital Credit Documents
and any Additional Documents.



     “Customer Contracts” means all contracts for the provision of goods or services by any Grantor
to any Person or by any Person to any Grantor.



     “Deposit Accounts” has the meaning set forth in the UCC.



     “DIP Financing” has the meaning set forth in Section 6.1.



     “Discharge of Additional Obligations” means, if any Indebtedness shall at any time have been
incurred under any Additional Credit Facility, (i) 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 a claim for such interest is, or would be, allowed in whole or in part
in such Insolvency or Liquidation Proceeding) and premium, if any, on all Indebtedness outstanding
under all Additional Credit Facilities and any other Additional Documents and termination of all
commitments to lend or otherwise extend credit (if any) under all Additional Credit Facilities and
other Additional Documents, other than pursuant to any Refinancing through the incurrence of
Indebtedness designated as Additional Indebtedness by the Company, and (ii) payment in full in cash
of all other Additional Obligations that are due and payable or otherwise accrued and owing at or
prior to the time such principal and interest are paid (including legal fees and other expenses,
costs or charges accruing on or after the commencement of any Insolvency or Liquidation Proceeding,
whether or not a claim for such fees, expenses, costs or charges is, or would be, allowed in such
Insolvency or Liquidation Proceeding), and (iii) termination or cash collateralization (in an
amount reasonably satisfactory to the Term Loan Administrative Agent) of any Bank Products
Agreement (to the extent obligations under such Bank Products Agreement constitute applicable
Additional Obligations) and the payment in full in cash of all Bank Product Debt (to the extent
such Bank Product Debt constitutes Additional Obligations), subject, with respect to the aggregate
principal amount of the relevant items set forth in the foregoing clauses (i) and (ii), to the
limitations set forth in the definition of Additional Cap Amount.



     “Discharge of Obligations” means a Discharge of Term Loan Obligations, a Discharge of Working
Capital Obligations, or a Discharge of Additional Obligations, as applicable.



     “Discharge of Term Loan Obligations” means (i) 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 a claim for such interest is, or would be, allowed in whole or in part
in such Insolvency or Liquidation Proceeding) and premium, if any, on all Indebtedness outstanding
under the Term Loan Credit Documents and termination of all commitments to lend or otherwise extend
credit (if



8









 







any) under the Term Loan Credit Documents, other than pursuant to any Refinancing under a Term
Loan Credit Agreement designated as a Term Loan Credit Agreement by the Company, and (ii) payment
in full in cash of all other Term Loan Obligations that are due and payable or otherwise accrued
and owing at or prior to the time such principal and interest are paid (including legal fees and
other expenses, costs or charges accruing on or after the commencement of any Insolvency or
Liquidation Proceeding, whether or not a claim for such fees, expenses, costs or charges is, or
would be, allowed in such Insolvency or Liquidation Proceeding), and (iii) termination or cash
collateralization (in an amount reasonably satisfactory to the Term Loan Administrative Agent) of
any Bank Products Agreement (to the extent obligations under such Bank Products Agreement
constitute Term Loan Obligations) and the payment in full in cash of all Bank Product Debt (to the
extent such Bank Product Debt constitutes Term Loan Obligations), subject, with respect to the
aggregate principal amount of the relevant items set forth in the foregoing clauses (i) and (ii),
to the limitations set forth in the definition of TL Cap Amount.



     “Discharge of Working Capital Obligations” means (i) 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 a claim for such interest is, or would be, allowed in whole
or in part in such Insolvency or Liquidation Proceeding) and premium, if any, on all Indebtedness
outstanding under the Working Capital Credit Documents and termination of all commitments to lend
or otherwise extend credit under the Working Capital Credit Documents, other than pursuant to any
Refinancing under a Working Capital Credit Agreement designated as a Working Capital Credit
Agreement by the Company, (ii) payment in full in cash of all other Working Capital Obligations
that are due and payable or otherwise accrued and owing at or prior to the time such principal and
interest are paid (including legal fees and other expenses, costs or charges accruing on or after
the commencement of any Insolvency or Liquidation Proceeding, whether or not a claim for such fees,
expenses, costs or charges is, or would be, allowed in whole or in part in such Insolvency or
Liquidation Proceeding), (iii) the payment in full in cash of cash collateral, or at Working
Capital Agent’s option, the delivery to Working Capital Agent of a letter of credit payable to
Working Capital Agent, in either case in accordance with the terms of the Working Capital Credit
Documents in respect of (A) letters of credit, banker’s acceptances or similar instruments issued
under the Working Capital Credit Documents (in an amount equal to one hundred three (103%) percent
of the amount of such letters of credit, banker’s acceptance or similar instruments) and (B)
continuing obligations of Working Capital Agent and Working Capital Lenders under control
agreements and other contingent Working Capital Obligations for which a claim or demand for payment
has been made at such time (including attorneys’ fees and legal expenses) to any Working Capital
Claimholders for which such Working Capital Claimholder is entitled to indemnification by any
Grantor, (iv) termination or cash collateralization (in an amount reasonably satisfactory to the
Working Capital Administrative Agent) of any Bank Products Agreement (to the extent that the
obligations under such Bank Products Agreement constitutes Working Capital Obligations) and the
payment in full in cash of all Bank Product Debt (to the extent such Bank Product Debt constitutes
Working Capital Obligations), subject, with respect to the aggregate principal amount of the
relevant items set forth in the foregoing clauses (i), (ii) and (iii)(A), to the limitations set
forth in the definition of Maximum Working Capital Obligations.



     “Documents” has the meaning set forth in the UCC.



     “Domestic Subsidiaries” shall mean, with respect to any Person, any Subsidiary of such Person
which is incorporated or organized under the laws of any state of the United States or the District
of Columbia.



     “Equipment” has the meaning set forth in the UCC, including all machinery, apparatus,
equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal property
(other than



9









 







Inventory), and all parts, accessories and special tools therefor, and accessions thereto.



     “Event of Default” has the meaning set forth in (a) prior to the Discharge of Working Capital
Obligations, the Working Capital Credit Agreement, (b) prior to the Discharge of Term Loan
Obligations, the Term Loan Credit Agreement and (c) prior to the Discharge of Additional
Obligations, any applicable Additional Credit Facility then in effect.



     “Excess Additional Obligations Principal Exposure” has the meaning set forth in Section
2.2(e).



     “Excess Term Loan Principal Exposure” has the meaning set forth in Section 2.2(d).



     “Excess Working Capital Principal Exposure” has the meaning set forth in Section 2.2(c).



     “Financial Asset” has the meaning set forth in the UCC.



     “Fixture” has the meaning set forth in the UCC.



     “GAAP” means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “General Intangible” has the meaning set forth in the UCC.



     “Goods” has the meaning set forth in the UCC.



     “Grantors” has the meaning set forth in the introductory paragraph of this Agreement.



     “Indebtedness” means, with respect to any Person, any liability, whether or not contingent,
(a) in respect of borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof) or evidenced by bonds, notes, debentures or
similar instruments; (b) representing the balance deferred and unpaid of the purchase price of any
property or services (other than an account payable to a trade creditor (whether or not an
Affiliate) incurred in the ordinary course of business of such Person); (c) all obligations as
lessee under leases which have been, or should be, in accordance with GAAP recorded as Capital
Leases; (d) any contractual obligation, contingent or otherwise, of such Person to pay or be liable
for the payment of any indebtedness described in this definition of another Person, including,
without limitation, any such indebtedness, directly or indirectly guaranteed, or any agreement to
purchase, repurchase, or otherwise acquire such indebtedness, obligation or liability or any
security therefor, or to provide funds for the payment or discharge thereof, or to maintain
solvency, assets, level of income, or other financial condition; (e) all obligations with respect
to redeemable stock and redemption or repurchase obligations under any Capital Stock or other
equity securities issued by such Person; (f) all reimbursement obligations and other liabilities of
such Person with respect to surety bonds (whether bid, performance or otherwise), letters of
credit, banker’s acceptances, drafts or similar documents or instruments issued for such Person’s
account; (g) all indebtedness of such Person in respect of indebtedness of another Person for
borrowed money or indebtedness of another Person otherwise described in this definition which is
secured by any consensual lien, security interest, collateral assignment, conditional sale,
mortgage, deed of trust, or other



10









 







encumbrance on any asset of such Person, whether or not such obligations, liabilities or
indebtedness are assumed by or are a personal liability of such Person, all as of such time; (h)
all obligations, liabilities and indebtedness of such Person (marked to market) arising under swap
agreements, cap agreements and collar agreements and other agreements or arrangements designed to
protect such person against fluctuations in interest rates or currency or commodity values; (i) all
obligations owed by such Person under license agreements with respect to non-refundable, advance or
minimum guarantee royalty payments; (j) indebtedness of any partnership or joint venture in which
such Person is a general partner or a joint venturer to the extent such Person is liable therefor
as a result of such Person’s ownership interest in such entity, except to the extent that the terms
of such indebtedness expressly provide that such Person is not liable therefor or such Person has
no liability therefor as a matter of law and (k) the principal and interest portions of all rental
obligations of such Person under any synthetic lease or similar off-balance sheet financing where
such transaction is considered to be borrowed money for tax purposes but is classified as an
operating lease in accordance with GAAP.



     “Initial Working Capital Credit Agreement” has the meaning set forth in the recitals hereto.



     “Initial Term Loan Credit Agreement” has the meaning set forth in the recitals hereto.



     “Insolvency or Liquidation Proceeding” means any case or proceeding commenced by or against a
Person under any state, federal or foreign law for, or any agreement of such Person to, (a) the
entry of an order for relief under the Bankruptcy Code, or any other Bankruptcy Law or insolvency,
debtor relief or debt adjustment law; (b) the appointment of a receiver, trustee, liquidator,
administrator, conservator or other custodian for such Person or any part of its Property; or (c)
an assignment or trust mortgage for the benefit of creditors.



     “Instrument” has the meaning set forth in the UCC.



     “Investment Property” has the meaning set forth in the UCC.



     “Inventory” has the meaning set forth in the UCC, including all goods intended for sale,
lease, display or demonstration; all work in process; and all raw materials, and other materials
and supplies of any kind that are or could be used in connection with the manufacture, printing,
packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or
consumed in the Company’s business (but excluding Equipment).



     “Letter of Credit Rights” has the meaning set forth in the UCC.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Limited License” has the meaning set forth in Section 5.5.



     “Maximum Working Capital Obligations” has the meaning set forth in the definition of Working
Capital Obligations.



     “Non-Priority Agent” means, with respect to the Working Capital Priority Collateral, the Term



11









 







Loan Agent and any Additional Agent, as applicable, and, with respect to the Term Loan
Priority Collateral, the Working Capital Agent.



     “Non-Priority Claimholders” means, with respect to the Working Capital Priority Collateral,
the Term Loan Claimholders or the applicable Additional Claimholders, as applicable, and, with
respect to the Term Loan Priority Collateral, the Working Capital Claimholders.



     “Obligations” means Term Loan Obligations, the Working Capital Obligations or any Additional
Obligations, as applicable.



     “Ordinary Course of Business” means the ordinary course of business of the Company or
Subsidiaries, consistent with past practices and undertaken in good faith (and not for the purpose
of evading any provision of a Credit Document).



     “Payment Intangibles” has the meaning set forth in the UCC.



     “Person” means any individual, sole proprietorship, partnership, corporation (including any
corporation which elects subchapter S status under the Internal Revenue Code of 1986), limited
liability company, limited liability partnership, business trust, unincorporated association, joint
stock corporation, trust, joint venture or other entity or any government or any agency or
instrumentality or political subdivision thereof.



     “Priority Agent” means, with respect to the Working Capital Priority Collateral, the Working
Capital Agent, and, with respect to the Term Loan Priority Collateral, the Term Loan
Representative. The Term Loan Representative’s constituents (for purposes of Section 5.3,
Section 5.4 and Section 6.1) shall be all Claimholders who are Priority
Claimholders with respect to the Term Loan Priority Collateral or (after the Discharge of Working
Capital Obligations) the Collateral.



     “Priority Claimholders” means, with respect to the Working Capital Priority Collateral, the
Working Capital Claimholders, and, with respect to the Term Loan Priority Collateral, the Term Loan
Claimholders and any Additional Claimholders, as applicable.



     “Priority Collateral” means, with respect to the Working Capital Agent and the other Working
Capital Claimholders, the Working Capital Priority Collateral, and, with respect to the Term Loan
Agent and the other Term Loan Claimholders and any Additional Agent and any other Additional
Claimholders, the Term Loan Priority Collateral, as applicable.



     “Proceeds” has the meaning set forth in the UCC.



     “Property” means any interest in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible.



     “Protective Advances” means loans made under the Working Capital Credit Agreement by the
Working Capital Agent, that, in the exercise of its reasonable business judgment, the Working
Capital Agent deems the funding of such loan to be necessary (i) to preserve or protect the Working
Capital Priority Collateral or any portion thereof, (ii) to enhance the likelihood, or increase the
amount, of repayment of the Working Capital Obligations or (iii) to pay any other amount chargeable
to Grantors pursuant to the terms of the Working Capital Credit Agreement, including costs, fees
and expenses, all of which loans shall be deemed part of the Working Capital Obligations and
secured by the Collateral.



12









 





     “Recovery” has the meaning set forth in Section 6.7.



     “Refinance” means, in respect of any Indebtedness, to refinance, replace or repay, or to issue
other Indebtedness, in exchange or replacement for, such Indebtedness (whether such refinancing,
replacement or repayment or issuance occurs concurrently with the repayment of such Indebtedness or
after any lapse of time during which there may not exist any such Indebtedness). “Refinanced” and
“Refinancing” shall have correlative meanings.



     “Requisite Lenders” means Additional Claimholders and/or Term Loan Claimholders holding, in
the aggregate, in excess of 50% of the aggregate principal amount of the Additional Obligations and
the Term Loan Obligations; provided that, if the matter being consented to or the action being
taken by the Term Loan Representative is the subordination of Liens to other Liens, the consent to
DIP Financing, or the consent to a sale of all or substantially all of the Term Loan Priority
Collateral or (after the Discharge of Working Capital Obligations) all or substantially all of the
Collateral, then “Requisite Lenders” means those Claimholders necessary to validly consent to the
requested action in accordance with the applicable Term Loan Documents and Additional Loan
Documents.



     “Subsidiary” means, with respect to any Person, any corporation, limited liability company,
limited liability partnership or other limited or general partnership, trust, association or other
business entity of which an aggregate of at least a majority of the outstanding Capital Stock or
other interests entitled to vote in the election of the board of directors of such corporation
(irrespective of whether, at the time, Capital Stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of any contingency),
managers, trustees or other controlling persons, or an equivalent controlling interest therein, of
such Person is, at the time, directly or indirectly, owned by such Person and/or one or more
subsidiaries of such Person.



     “Supporting Obligations” has the meaning set forth in the UCC.



     “Term Loan Administrative Agent” has the meaning set forth in the introductory paragraph of
this Agreement and including any replacement or successor agent whether under the Initial Term Loan
Credit Agreement or any subsequent Term Loan Credit Agreement.



     “Term Loan Agent” has the meaning set forth in the introductory paragraph of this Agreement
and including any replacement or successor agent whether under the Initial Term Loan Credit
Agreement or any subsequent Term Loan Credit Agreement.



     “Term Loan Claimholders” means, at any relevant time, the holders of Term Loan Obligations at
such time, including without limitation the Term Loan Lenders and any agent under the Term Loan
Credit Agreement.



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



     “Term Loan Collateral Disposition” has the meaning set forth in Section 5.1(a)(ii).



     “Term Loan Collateral Documents” means the Security Documents (as defined in the Term Loan
Credit Agreement as amended from time to time) and any other agreement, document or instrument
pursuant to which a Lien is granted securing any Term Loan Obligations or under which rights or
remedies with respect to such Liens are governed.



13









 





     “Term Loan Collateral Exercise of Remedies” has the meaning set forth in Section
5.1(a)(i).



     “Term Loan Credit Agreement” means (i) the Initial Term Loan Credit Agreement and (ii) if
designated by the Company, any other credit agreement, loan agreement, note agreement, promissory
note, indenture or other agreement or instrument evidencing or governing the terms of any
indebtedness or other financial accommodation that has been incurred to extend, increase (subject
to the limitations set forth herein), or Refinance in whole or in part the indebtedness and other
obligations outstanding under the (x) Initial Term Loan Credit Agreement or (y) any subsequent Term
Loan Credit Agreement (as amended, restated, supplemented or modified from time to time);
provided, that the lenders party to such Term Loan Credit Agreement shall agree, by a
joinder agreement substantially in the form of Exhibit C hereto or otherwise in form and substance
reasonably satisfactory to the Working Capital Agent, that the obligations under such Term Loan
Credit Agreement are subject to the terms and provisions of this Agreement. Any reference to the
Term Loan Credit Agreement hereunder shall be deemed a reference to any Term Loan Credit Agreement
then in existence.



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



     “Term Loan Lenders” means any “Lender”, as defined in the Term Loan Credit Agreement, and
including, in the case of Bank Products Agreements, Affiliates of Term Loan Lenders who are parties
to Bank Products Agreements with any Grantor.



     “Term Loan Obligations” means any and all loans and all other obligations, liabilities and
indebtedness of every kind, nature and description owing by any Grantor whether now existing or
hereafter arising, whether arising before, during or after the commencement of any case with
respect to any Grantor under the Bankruptcy Code or any other Insolvency or Liquidation Proceeding
under (i) the Term Loan Credit Agreement, (ii) the other Term Loan Credit Documents and (iii) any
Bank Products Agreement entered into with any Person who at the time of entry into such agreement
is either the Term Loan Agent, the Term Loan Administrative Agent, any Term Loan Lender or any
Affiliate of a Term Loan Lender; provided that the aggregate principal amount of, without
duplication, any term loans, bonds, debentures, notes or similar instruments (excluding, in any
event, any Bank Product Debt) issued under the Term Loan Credit Agreement or any other Term Loan
Credit Document (or any Refinancing thereof) in excess of (x) at all times prior to the funding of
the Additional Term Loans (as such term is defined in the Term Loan Credit Agreement in effect as
of the date hereof), $171,000,000, and (y) at all times after the funding of the Additional Term
Loans, the sum of $171,000,000 plus the product of (i) 114% times (ii) the amount
actually funded under the Additional Term Loans in an amount not to exceed the maximum amount of
Incremental Term Loans permitted by the Term Loan Credit Agreement in effect as of the date hereof
(the “TL Cap Amount”), shall not constitute Term Loan Obligations for purposes of this Agreement.
“Term Loan Obligations” shall include (x) all interest accrued or accruing (or which would, absent
commencement of an Insolvency or Liquidation Proceeding, accrue) in accordance with the rate
specified in the relevant Term Loan Credit Document and (y) all fees, costs and charges incurred in
connection with the Term Loan Credit Documents and provided for thereunder, in the case of each of
clause (x) and clause (y) whether before or after commencement of an Insolvency or Liquidation
Proceeding and irrespective of whether any claim for such interest, fees, costs or charges is
allowed as a claim in such Insolvency or Liquidation Proceeding. To the extent that the principal
balance of



14









 







obligations owing under the Term Loan Credit Agreement or any other Term Loan Credit Document
exceeds the TL Cap Amount, the excess shall be attributed entirely to the portion of Term Loan
Obligations that causes the TL Cap Amount to be exceeded.



     “Term Loan Priority Collateral” means all of the present and future assets and Property of the
Company and any other Grantor, whether real, personal or mixed, with respect to which a Lien is
granted as security for any Term Loan Obligations, that do not constitute Working Capital Priority
Collateral, including without limitation:



     (a) all of the Capital Stock of each of the present and future Subsidiaries of the Company;



     (b) all of the following present and future Property of the Company and each other Grantor:




     (i) all present and future patents and patent license rights, trademarks and trademark
license rights, copyrights and copyright license rights, trade secrets and processes and
other intellectual property;




     (ii) all present and future machinery and other Equipment, real Property (whether owned
or leased), Fixtures, Financial Assets, Investment Property and Commercial Tort Claims;




     (iii) the TL Deposit Account (to the extent any Grantor has rights therein) and all
cash from time to time on deposit in the TL Deposit Account (to the extent any Grantor has
rights therein);




     (iv) Chattel Paper, Documents and Instruments; and




     (v) General Intangibles and other contract rights, including any indemnification
rights; and



     (c) all Proceeds (including, without limitation, insurance proceeds) and products of the
Property and assets described in the foregoing clauses (a) and (b).



     “Term Loan Representative” means the Term Loan Agent acting at the direction of the Requisite
Lenders, unless the principal amount of Additional Obligations under any Additional Credit Facility
exceeds the principal amount of Term Loan Obligations under the Term Loan Facility, and in such
case, the Additional Agent under such Additional Credit Facility (or, if there is more than one
such Additional Credit Facility, the Additional Credit Facility under which the greatest principal
amount of Additional Obligations is outstanding at the time) acting at the direction of the
Requisite Lenders.



     “TL Cap Amount” has the meaning set forth in the definition of Term Loan Obligations.



     “TL Deposit Account” means that certain segregated Deposit Account of the Company created on
or after the date hereof to hold the proceeds of Term Loan Priority Collateral, together with any
replacement or similar deposit account created to serve such purpose.



     “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.



     “Voting Stock” means, with respect to any Person, (a) one (1) or more classes of Capital Stock
of such Person having general voting powers to elect at least a majority of the board of directors,
managers



15









 







or trustees of such Person, irrespective of whether at the time Capital Stock of any other
class or classes have or might have voting power by reason of the happening of any contingency, and
(b) any Capital Stock of such Person convertible or exchangeable without restriction at the option
of the holder thereof into Capital Stock of such Person described in clause (a) of this definition.



     “Working Capital Administrative Agent” has the meaning set forth in the introductory paragraph
of this Agreement and including any replacement or successor agent whether under the Initial
Working Capital Credit Agreement or any subsequent Working Capital Credit Agreement.



     “Working Capital Agent” has the meaning set forth in the introductory paragraph of this
Agreement and including any replacement or successor agent whether under the Initial Working
Capital Credit Agreement or any subsequent Working Capital Credit Agreement.



     “Working Capital Claimholders” means, at any relevant time, the holders of Working Capital
Obligations at such time, including without limitation the Working Capital Lenders and any agent
under the Working Capital Credit Agreement, and including, in the case of Bank Products Agreements,
Affiliates of Working Capital Lenders who are parties to Bank Products Agreements with any Grantor.



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



     “Working Capital Collateral Disposition” has the meaning set forth in Section
5.1(d)(ii).



     “Working Capital Collateral Documents” means the Security Documents (as defined in the Working
Capital Credit Agreement as amended from time to time) and any other agreement, document or
instrument pursuant to which a Lien is granted securing any Working Capital Obligations or under
which rights or remedies with respect to such Liens are governed.



     “Working Capital Collateral Exercise of Remedies” has the meaning set forth in Section
5.1(d)(i).



     “Working Capital Credit Agreement” means (i) the Initial Working Capital Credit Agreement and
(ii) if designated by the Company, any other credit agreement, loan agreement, note agreement,
promissory note, indenture or other agreement or instrument evidencing or governing the terms of
any indebtedness or other financial accommodation that has been incurred to extend, increase
(subject to the limitations set forth herein), or Refinance in whole or in part the indebtedness
and other obligations outstanding under the (x) Initial Working Capital Credit Agreement or (y) any
subsequent Working Capital Credit Agreement (as amended, restated, supplemented or modified from
time to time); provided, that the lenders party to such Working Capital Credit Agreement
shall agree, by a joinder agreement substantially in the form of Exhibit C hereto or otherwise in
form and substance reasonably satisfactory to the Term Loan Agent, that the obligations under such
Working Capital Credit Agreement are subject to the terms and provisions of this Agreement.. Any
reference to the Working Capital Credit Agreement hereunder shall be deemed a reference to any
Working Capital Credit Agreement then in existence.



     “Working Capital Credit Documents” means the Working Capital Credit Agreement and the other
Financing Agreements (as defined in the Working Capital Credit Agreement as amended from time to
time) and each of the other agreements, documents and instruments providing for or evidencing any
other Working Capital Obligation, and any other document or instrument executed or delivered at any
time in connection with any Working Capital Obligations, including any intercreditor or joinder



16









 







agreement among holders of Working Capital Obligations, to the extent such are effective at
the relevant time, as each may be modified from time to time.



     “Working Capital General Intangibles” means all General Intangibles (including, without
limitation, (i) payment intangibles, (ii) all interest, fees, late charges, penalties, collection
fees and other amounts due or to become due or otherwise payable in connection with any Account,
(iii) choses in action, causes of action, or other rights and claims against carriers, shippers,
processors, warehouses, bailees, custom brokers, freight forwarders, or other third parties at any
time in possession of, or using, any of the other Working Capital Priority Collateral or any
sellers of any other Working Capital Priority Collateral, (iv) rights of stoppage in transit,
replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or
secured party, (v) agreements or arrangements with sales agents, distributors or the like and/or
consignees, warehouses or other third persons in possession of Inventory, (vi) guaranty or warranty
claims with respect to Accounts or Inventory, (vii) rights to indemnification and proceeds thereof,
and (viii) commercial tort claims) of a Grantor that arise from, in respect of or constitute
proceeds of, any of the Accounts or other specifically enumerated types of Working Capital Priority
Collateral.



     “Working Capital Lenders” means any “Lender” as such term is defined in the Working Capital
Credit Agreement.



     “Working Capital Obligations” means any and all loans, letter of credit obligations and all
other obligations, liabilities and indebtedness of every kind, nature and description owing by any
Grantor whether now existing or hereafter arising, whether arising before, during or after the
commencement of any case with respect to any Grantor under the Bankruptcy Code or any other
Insolvency or Liquidation Proceeding under (i) the Working Capital Credit Agreement, (ii) the other
Working Capital Credit Documents and (iii) any Bank Products Agreement entered into with any Person
who at the time of entry into such agreement is either the Working Capital Agent, the Working
Capital Administrative Agent, the Working Capital Lenders or any Affiliate of the Working Capital
Lenders; provided that, the aggregate principal amount of, without duplication, any
revolving credit commitments, revolving credit loans, letters of credit, term loans, bonds,
debentures, notes or similar instruments (excluding, in any event, Bank Product Debt and Protective
Advances) issued under the Working Capital Credit Agreement or any other Working Capital Credit
Document (or any Refinancing thereof) in excess of the lesser of (x) the sum of the Maximum Credit
(as such term is defined in the Working Capital Credit Agreement in effect as of the date hereof)
as then in effect in accordance with the terms of the Working Capital Credit Agreement plus
fourteen (14%) percent thereof or (y) $200,000,000 (the “Maximum Working Capital Obligations”),
shall not constitute Working Capital Obligations for purposes of this Agreement. “Working Capital
Obligations” shall include (x) all interest accrued or accruing (or which would, absent
commencement of an Insolvency or Liquidation Proceeding, accrue) in accordance with the rate
specified in the relevant Working Capital Credit Document and (y) all fees, costs and charges
incurred in connection with the Working Capital Credit Documents and provided for thereunder, in
the case of each of clause (x) and clause (y) whether before or after commencement of an Insolvency
or Liquidation Proceeding and irrespective of whether any claim for such interest, fees, costs or
charges is allowed as a claim in such Insolvency or Liquidation Proceeding.



     “Working Capital Priority Collateral” means all of the following present and future assets and
Property of the Company and any other Grantor with respect to which a Lien is granted as security
for any Working Capital Obligations:




     (a) (i) Accounts (other than Accounts or other payment obligations constituting the
proceeds of Term Loan Priority Collateral);



17









 






     (ii) Inventory;




     (iii) Chattel Paper, Instruments, Documents, in each case only to the extent relating
to Accounts (other than Accounts or other payment obligations constituting the proceeds of
Term Loan Priority Collateral), Inventory or other specifically enumerated types of Working
Capital Priority Collateral;




     (iv) Working Capital General Intangibles;




     (v) Deposit Accounts (other than the TL Deposit Account);




     (vi) cash and investment property (other than the TL Deposit Account, the stock of
subsidiaries or Proceeds of the Term Loan Priority Collateral), including all monies,
deposits and balances held in or for deposit in or otherwise attributable to any lockboxes
or deposit accounts established or used by any Grantor in connection with the financing
arrangements with Working Capital Agent and Working Capital Lenders for the handling of
collections of any of the Accounts or any of the other Working Capital Priority Collateral
of Borrower, or any other deposit account, investment account or other account at any
depository or other institution and including any investment property (including securities,
whether certificated or uncertificated, securities accounts, security entitlements,
commodity contracts or commodity accounts), other than the TL Deposit Account or any of the
same held in the TL Deposit Account or constituting the stock of subsidiaries of a Grantor;




     (vii) Letter-of-Credit Rights and Supporting Obligations in respect of Inventory,
Accounts (other than Accounts or other payment obligations constituting the proceeds of Term
Loan Priority Collateral) or other specifically enumerated types of Working Capital Priority
Collateral;




     (viii) books and records and accounting systems relating to Accounts, Inventory or
other specifically enumerated types of Working Capital Priority Collateral including,
without limitation, invoices, purchase order, ledger cards, shipping evidence, statements,
correspondence, memoranda, customer lists, credit files and other data, in each case
relating to any of the other Working Capital Priority Collateral or any account debtor,
together with the tapes, software, disks, diskettes and other data and media storage
devices;




     (ix) Customer Contracts;




     (x) tax refunds (other than any 2009 Tax Refunds (as defined in the Term Loan Credit
Agreement));




     (xi) any Bank Products Agreements consisting of hedge agreements; and



     (b) all Proceeds (including, without limitation, insurance proceeds) and products of the
Property described in the foregoing clause (a).



     1.2 Terms Generally. 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



18









 







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 or other document herein shall be
construed as referring to such agreement, instrument or other document 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, (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 Exhibits or
Sections shall be construed to refer to Exhibits or Sections of this Agreement and (v) the words
“asset” and “property” shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.



SECTION 2




LIEN PRIORITIES




     2.1 Scope of Collateral. The Working Capital Agent, for and on behalf of the Working Capital
Claimholders, hereby acknowledges that (a) the Term Loan Agent, for and on behalf of the Term Loan
Claimholders, has been granted Liens upon all of the Collateral pursuant to the Term Loan Credit
Documents to secure the Term Loan Obligations and (b) upon compliance with Section 8.10 of
this Agreement, any Additional Agent, for and on behalf of the applicable Additional Claimholders,
will have been granted Liens upon all of the Collateral pursuant to the applicable Additional
Documents to secure the applicable Additional Obligations. The Term Loan Agent, for and on behalf
of the Term Loan Claimholders, hereby acknowledges that (a) the Working Capital Agent, for and on
behalf of the Working Capital Claimholders, has been granted Liens upon all of the Collateral
pursuant to the Working Capital Credit Documents to secure the Working Capital Obligations and (b)
upon compliance with Section 8.10 of this Agreement, any Additional Agent, for and on
behalf of the applicable Additional Claimholders, will have been granted Liens upon all of the
Collateral pursuant to the applicable Additional Documents to secure the applicable Additional
Obligations. Each Additional Agent, for and on behalf of the applicable Additional Claimholders,
hereby acknowledges that (a) the Working Capital Agent, for and on behalf of the Working Capital
Claimholders, has been granted Liens upon all of the Collateral pursuant to the Working Capital
Credit Documents to secure the Working Capital Obligations, (b) the Term Loan Agent, for and on
behalf of the Term Loan Claimholders, has been granted Liens upon all of the Collateral pursuant to
the Term Loan Credit Documents to secure the Term Loan Obligations and (c) any other Additional
Agent, for and on behalf of the applicable Additional Claimholders, will have been granted Liens
upon all of the Collateral pursuant to the applicable Additional Documents to secure the applicable
Additional Obligations



     2.2 Priority.




     (a) Notwithstanding the order or time of attachment, or the order, time or manner of
perfection, or the order or time of filing or recordation of any document or instrument, or
other method of perfecting a Lien in favor of any Claimholder in any Working Capital
Priority Collateral, and notwithstanding any conflicting terms or conditions which may be
contained in any of the Credit Documents, subject to Section 2.2(c), (x) the Liens
upon the Working Capital Priority Collateral securing the Working Capital Obligations shall
have priority over the Liens upon the Working Capital Priority Collateral securing the Term
Loan Obligations and any Additional Obligations and such Liens upon the Working Capital
Priority Collateral securing the Term Loan Obligations and any Additional Obligations are
and shall be junior and subordinate to the Liens upon the Working Capital Priority
Collateral securing the Working Capital Obligations in all respects, (y) the Liens upon the
Working Capital Priority Collateral securing the Term Loan



19









 







Obligations shall in all respects be pari passu and equal in priority with any Liens
upon the Working Capital Priority Collateral securing any Additional Obligations and (z)
except as may be separately otherwise agreed by and between or among any applicable
Additional Agents, any Liens upon the Working Capital Priority Collateral securing any
applicable Additional Obligations shall in all respects be pari passu and equal in priority
with any Liens upon the Working Capital Collateral securing any other Additional
Obligations.




     (b) Notwithstanding the order or time of attachment, or the order, time or manner of
perfection, or the order or time of filing or recordation of any document or instrument, or
other method of perfecting a Lien in favor of any Claimholder in any Term Loan Priority
Collateral, and notwithstanding any conflicting terms or conditions which may be contained
in any of the Credit Documents, subject to Section 2.2(d), (x) the Liens upon the
Term Loan Priority Collateral securing the Term Loan Obligations and any Additional
Obligations shall have priority over the Liens upon the Term Loan Priority Collateral
securing the Working Capital Obligations and such Liens upon the Term Loan Priority
Collateral securing the Working Capital Obligations are and shall be junior and subordinate
to the Liens upon the Term Loan Priority Collateral securing the Term Loan Obligations and
any Additional Obligations in all respects, (y) the Liens upon the Term Loan Priority
Collateral securing the Term Loan Obligations shall in all respects be pari passu and equal
in priority with any Liens upon the Term Loan Priority Collateral securing any Additional
Obligations and (z) except as may be separately otherwise agreed by and between or among any
applicable Additional Agents, any Liens upon the Term Loan Priority Collateral securing any
applicable Additional Obligations shall in all respects be pari passu and equal in priority
with any Liens upon the Term Loan Priority Collateral securing any other Additional
Obligations.




     (c) Notwithstanding the foregoing clauses (a) and (b) or anything else in this
Agreement to the contrary, the Aggregate Principal Exposure of extensions of credit made by
the Working Capital Lenders to any of the Grantors that exceed the Maximum Working Capital
Obligations (such excess amount, the “Excess Working Capital Principal Exposure”) shall not
be considered Working Capital Obligations for purposes of the Lien priority set forth in
Section 2.2(a) above with respect to the Working Capital Priority Collateral. To
the extent provided under the Working Capital Credit Documents, all such Excess Working
Capital Principal Exposure shall continue to be secured by the Collateral (including without
limitation the Working Capital Priority Collateral); provided, that to the extent
that the Liens on the Working Capital Priority Collateral secure such Excess Working Capital
Principal Exposure, such Liens shall be junior and subordinate to the Liens on the Working
Capital Priority Collateral securing the Term Loan Obligations (other than any Excess Term
Loan Principal Exposure) and any Additional Obligations (other than any Excess Additional
Obligations Principal Exposure).




     (d) Notwithstanding the foregoing clauses (a) and (b) or anything else in this
Agreement to the contrary, the Aggregate Principal Exposure of extensions of credit made by
Term Loan Lenders to any of the Grantors that exceed the TL Cap Amount (such excess amount,
the “Excess Term Loan Principal Exposure”) shall not be considered Term Loan Obligations for
purposes of the Lien priority set forth in Section 2.2(b) above with respect to the
Term Loan Priority Collateral and Section 2.2(a)(y) above with respect to the
Working Capital Priority Collateral. To the extent provided under the Term Loan Credit
Documents, all such Excess Term Loan Principal Exposure shall continue to be secured by the
Collateral (including without limitation the Term Loan Priority Collateral);
provided, that (x) to the extent that the Liens on the Term Loan Priority Collateral
secure such Excess Term Loan Principal Exposure, such Liens shall be junior and subordinate
to the Liens on the Term Loan Priority Collateral securing the



20









 







Working Capital Obligations (other than any Excess Working Capital Principal Exposure)
and any Additional Obligations (other than any Excess Additional Obligations Principal
Exposure) and (y) to the extent that the Liens on the Working Capital Priority Collateral
secure such Excess Term Loan Principal Exposure, such Liens shall be junior and subordinate
to the Liens on the Working Capital Priority Collateral securing any Additional Obligations
(other than any Excess Additional Obligations Principal Exposure) and any Excess Working
Capital Principal Exposure




     (e) Notwithstanding the foregoing clauses (a) and (b) or anything else in this
Agreement to the contrary, the Aggregate Principal Exposure of extensions of credit made by
any applicable Additional Credit Facility Creditors to any of the Grantors under the
applicable Additional Credit Facility and other related applicable Additional Documents that
exceed the Additional Cap Amount (such excess amount, the “Excess Additional Obligations
Principal Exposure”) shall not be considered Additional Obligations for purposes of the Lien
priority set forth in Section 2.2(b) above with respect to the Term Loan Priority
Collateral and Sections 2.2(a)(y) and 2.2(a)(z) above with respect to the Working
Capital Priority Collateral. To the extent provided under such Additional Credit Facility
and other related applicable Additional Documents, all such Excess Additional Obligations
Principal Exposure shall continue to be secured by the Collateral (including without
limitation the Term Loan Priority Collateral); provided, that (x) to the extent that
the Liens on the Term Loan Priority Collateral secure such Excess Additional Obligations
Principal Exposure, such Liens shall be junior and subordinate to the Liens on the Term Loan
Priority Collateral securing the Working Capital Obligations (other than any Excess Working
Capital Principal Exposure), the Term Loan Obligations (other than any Excess Term Loan
Principal Exposure) and any other Additional Obligations (other than any applicable Excess
Additional Obligations Principal Exposure in respect of such other Additional Obligations)
and (y) to the extent that the Liens on the Working Capital Priority Collateral secure such
Excess Additional Obligations Principal Exposure, such Liens shall be junior and subordinate
to the Liens on the Working Capital Priority Collateral securing the Term Loan Obligations
(other than any Excess Term Loan Principal Exposure) and any other Additional Obligations
(other than any applicable Excess Additional Obligations Principal Exposure in respect of
such other Additional Obligations) and any Excess Working Capital Principal Exposure.



     2.3 Failure to Perfect. Notwithstanding any failure of any Claimholder to perfect its
security interest in its respective Priority Collateral, the subordination of its Lien on such
Priority Collateral to any Lien securing any other obligation of any Grantor, or the avoidance,
invalidation or lapse of its Lien on such Priority Collateral:




	(a)	 	subject to Section 2.2(c), the Liens upon the Working Capital Priority Collateral securing
the Working Capital Obligations shall be and remain senior in all respects and prior to the
Liens on the Working Capital Priority Collateral securing the Term Loan Obligations and any
Additional Obligations,






	(b)	 	subject to Section 2.2(d), the Liens on the Term Loan Priority Collateral securing the Term
Loan Obligations shall be and remain senior in all respects and prior to the Liens on the Term
Loan Priority Collateral securing the Working Capital Obligations, and the Liens on any
Collateral securing the Term Loan Obligations shall be pari passu and equal in priority in all
respects with any Liens on such Collateral securing any Additional Obligations, and






	(c)	 	subject to Section 2.2(e), the Liens on the Term Loan Priority Collateral securing any
Additional Obligations shall be and remain senior in all respects and prior to the Liens on
the Term Loan




21









 






	 	 	Priority Collateral securing the Working Capital Obligations, and the Liens on any
Collateral securing any Additional Obligations shall be pari passu and equal in priority in
all respects with any Liens on such Collateral securing the Term Loan Obligations and any
other Additional Obligations.





     2.4 Prohibition on Contesting Liens. Each of the Working Capital Agent, for itself and on
behalf of each Working Capital Claimholder, the Term Loan Agent, for itself and on behalf of each
Term Loan Claimholder, and each Additional Agent, for itself and on behalf of each applicable
Additional Claimholder, 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), the priority, validity or enforceability of a Lien held by or on behalf of any of the
Term Loan Claimholders in any Collateral, or by or on behalf of any of the Working Capital
Claimholders in any Collateral, or by or on behalf of any of the Additional Claimholders in any
Collateral, as the case may be; provided that nothing in this Agreement shall be
construed to prevent or impair the rights of any such party to enforce this Agreement, including
the priority of the Lien held by it or for its benefit on its respective Priority Collateral as
provided in Sections 2.2 and 3.1.



     2.5 No New Liens.




     (a) Limitation on Collateral for Working Capital Claimholders. Until the
Discharge of Term Loan Obligations shall have occurred, if any Working Capital Claimholder
shall (nonetheless and in breach hereof) acquire any Lien on any assets of any Grantor or
any of its Subsidiaries to secure the Working Capital Obligations, which assets are not also
subject to a Lien in favor of the Term Loan Agent to secure the Term Loan Obligations, then
such Working Capital Claimholder shall, without the need for any further consent of any
other Person and notwithstanding anything to the contrary in any Working Capital Credit
Document (x) also hold and be deemed to have held such Lien and security interest for the
benefit of the Term Loan Agent as security for the Term Loan Obligations subject to the
priorities set forth herein, with any amounts received in respect thereof subject to
distribution and turnover under Section 4, or (y) release such Lien. Until any
applicable Discharge of Additional Obligations shall have occurred, if any Working Capital
Claimholder shall (nonetheless and in breach hereof) acquire any Lien on any assets of any
Grantor or any of its Subsidiaries to secure the Working Capital Obligations, which assets
are not also subject to a Lien in favor of the applicable Additional Agent to secure the
applicable Additional Obligations, then such Working Capital Claimholder shall, without the
need for any further consent of any other Person and notwithstanding anything to the
contrary in any Working Capital Credit Document (x) also hold and be deemed to have held
such Lien and security interest for the benefit of such Additional Agent as security for
such Additional Obligations subject to the priorities set forth herein, with any amounts
received in respect thereof subject to distribution and turnover under Section 4, or
(y) release such Lien.




     (b) Limitation on Collateral for Term Loan Claimholders. Until the Discharge
of Working Capital Obligations shall have occurred, if any Term Loan Claimholder shall
(nonetheless and in breach hereof) acquire any Lien on any assets of any Grantor or any of
its Subsidiaries to secure any Term Loan Obligations, which assets are not also subject to a
Lien of the Working Capital Agent to secure the Working Capital Obligations, then such Term
Loan Claimholder, shall, without the need for any further consent of any other Person and
notwithstanding anything to the contrary in any Term Loan Credit Document (x) also hold and
be deemed to have held such Lien and security interest for the benefit of the Working
Capital Agent as security for the Working Capital Obligations subject to the priorities set
forth herein, with any amounts received in respect thereof subject to distribution and
turnover under Section 4, or 


22









 








(y) release such Lien. Until any applicable Discharge of Additional Obligations shall have
occurred, if any Term Loan Claimholder shall (nonetheless and in breach hereof) acquire any
Lien on any assets of any Grantor or any of its Subsidiaries to secure any Term Loan
Obligations, which assets are not also subject to a Lien of the applicable Additional Agent
to secure the applicable Additional Obligations, then such Term Loan Claimholder, shall,
without the need for any further consent of any other Person and notwithstanding anything to
the contrary in any Term Loan Credit Document (x) also hold and be deemed to have held such
Lien and security interest for the benefit of such Additional Agent as security for such
Additional Obligations subject to the priorities set forth herein, with any amounts received
in respect thereof subject to distribution and turnover under Section 4, or (y)
release such Lien.




     (c) Limitation on Collateral for Additional Claimholders. Until the Discharge
of Working Capital Obligations shall have occurred, if any Additional Claimholder shall
(nonetheless and in breach hereof) acquire any Lien on any assets of any Grantor or any of
its Subsidiaries to secure any Additional Obligations, which assets are not also subject to
a Lien of the Working Capital Agent to secure the Working Capital Obligations, then such
Additional Claimholder, shall, without the need for any further consent of any other Person
and notwithstanding anything to the contrary in any Additional Document (x) also hold and be
deemed to have held such Lien and security interest for the benefit of the Working Capital
Agent as security for the Working Capital Obligations subject to the priorities set forth
herein, with any amounts received in respect thereof subject to distribution and turnover
under Section 4, or (y) release such Lien. Until the Discharge of Term Loan
Obligations shall have occurred, if any Additional Claimholder shall (nonetheless and in
breach hereof) acquire any Lien on any assets of any Grantor or any of its Subsidiaries to
secure any Additional Obligations, which assets are not also subject to a Lien of the Term
Loan Agent to secure the Term Loan Obligations, then such Additional Claimholder, shall,
without the need for any further consent of any other Person and notwithstanding anything to
the contrary in any Additional Document (x) also hold and be deemed to have held such Lien
and security interest for the benefit of the Term Loan Agent as security for the Term Loan
Obligations subject to the priorities set forth herein, with any amounts received in respect
thereof subject to distribution and turnover under Section 4, or (y) release such
Lien. Until any applicable Discharge of Additional Obligations shall have occurred , if any
Additional Agent or other applicable Additional Claimholder shall (nonetheless and in breach
hereof) acquire any Lien on any assets of any Grantor or any of its Subsidiaries to secure
any Additional Obligations, which assets are not also subject to a Lien of any other
Additional Agent to secure any other Additional Obligations, then such Additional Agent or
other applicable Additional Claimholder, shall, without the need for any further consent of
any other Person and notwithstanding anything to the contrary in any applicable Additional
Document (x) also hold and be deemed to have held such Lien and security interest for the
benefit of such other Additional Agent as security for such other Additional Obligations
subject to the priorities set forth herein, with any amounts received in respect thereof
subject to distribution and turnover under Section 4, or (y) release such Lien.



     2.6 Similar Liens and Agreements. The parties hereto agree that it is their intention that
the Working Capital Collateral, the Term Loan Collateral and the Additional Collateral be
identical. In furtherance of the foregoing and of Section 8.9, the parties hereto agree,
subject to the other provisions of this Agreement, that upon request by the Working Capital Agent,
the Term Loan Agent or any Additional Agent, to cooperate in good faith (and to direct their
counsel to cooperate in good faith) from time to time in order to determine the specific items
included in the Working Capital Collateral, the Term Loan Collateral and the Additional Collateral
and the steps taken to perfect their respective Liens thereon and the identity of the respective
parties obligated under the Working Capital Credit Documents, the Term



23









 







Loan Credit Documents and the Additional Documents.



SECTION 3




ENFORCEMENT




     3.1 Enforcement.




     (a) So long as the Discharge of Working Capital Obligations has not occurred, whether
or not any Insolvency or Liquidation Proceeding has been commenced by or against Company or
any other Grantor:




     (i) the Term Loan Agent and the Term Loan Claimholders:




     (A) will not exercise or seek to exercise any rights or remedies
(including any right of set-off or recoupment) with respect to any Working
Capital Priority Collateral (including, without limitation, the exercise of
any right under any lockbox agreement, account control agreement, landlord
waiver or bailee’s letter or similar agreement or arrangement to which the
Term Loan Agent or any Term Loan Claimholder is a party) or institute or
commence (or join with any other Person in commencing) any enforcement,
collection, execution, levy or foreclosure action or proceeding with respect
to any Lien on the Working Capital Priority Collateral held by it under the
Term Loan Credit Documents or otherwise; and




     (B) will not contest, protest or object to any foreclosure proceeding
or action brought by the Working Capital Agent or any Working Claimholder
with respect to the Working Capital Priority Collateral, or any other
exercise by the Working Capital Agent or any other Working Capital
Claimholder, of any rights and remedies relating to the Working Capital
Priority Collateral under the Working Capital Credit Documents or otherwise;
provided that the respective interests of the Term Loan Claimholders attach
to the proceeds thereof, subject to the relative priorities described in
Section 2 and Section 4; and




     (C) will not object to the forbearance by the Working Capital Agent or
the other Working Capital Claimholders from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any rights or
remedies relating to the Working Capital Priority Collateral; and




     (ii) subject to Section 5.1, the Working Capital Agent and the other
Working Capital Claimholders shall have the exclusive right to enforce rights,
exercise remedies (including set-off and the right to credit bid their debt) and
make determinations regarding the release, disposition, or restrictions with respect
to the Working Capital Priority Collateral without any consultation with or the
consent of the Term Loan Agent or any other Term Loan Claimholder; provided,
that




     (A) in any Insolvency or Liquidation Proceeding commenced by or against
Company or any other Grantor, the Term Loan Administrative Agent or the Term
Loan Agent may file a claim or statement of interest with respect to the
Term Loan Obligations,



24









 






     (B) the Term Loan Agent may take any action (not adverse to the Liens
on the Working Capital Priority Collateral securing the Working Capital
Obligations, or the rights of the Working Capital Agent or the other Working
Capital Claimholders to exercise remedies in respect thereof) in order to
preserve or protect its Lien on the Working Capital Priority Collateral,




     (C) the Term Loan Claimholders shall be entitled to file any necessary
responsive or defensive pleadings in opposition to any motion, claim,
adversary proceeding or other pleading made by any person objecting to or
otherwise seeking the disallowance of the claims of the Term Loan
Claimholders, including without limitation any claims secured by the Working
Capital Priority Collateral, if any, in each case in accordance with the
terms of this Agreement,




     (D) in any Insolvency or Liquidation Proceeding, the Term Loan
Claimholders shall be entitled to file any pleadings, objections, motions or
agreements which assert rights or interests available to unsecured creditors
of the Grantors arising under either Bankruptcy Law or applicable
non-bankruptcy law, in each case in accordance with the terms of this
Agreement (including subject to the terms of Section 5.1 and Section 6.2),




     (E) in any Insolvency or Liquidation Proceeding, the Term Loan
Claimholders shall be entitled to vote on any plan of reorganization, except
to the extent inconsistent with the provisions hereof, and




     (F) the Term Loan Agent or any Term Loan Claimholder may exercise any
of its rights or remedies with respect to the Term Loan Priority Collateral
consistent with the terms of this Agreement.




     (b) So long as the Discharge of Term Loan Obligations has not occurred, whether or not
any Insolvency or Liquidation Proceeding has been commenced by or against Company or any
other Grantor:




     (i) the Working Capital Agent and the Working Capital Claimholders:




     (A) will not exercise or seek to exercise any rights or remedies
(including any right of set-off or recoupment) with respect to any Term Loan
Priority Collateral (including, without limitation, the exercise of any
right under any lockbox agreement, account control agreement, landlord
waiver or bailee’s letter or similar agreement or arrangement to which the
Working Capital Agent or any Working Capital Claimholder is a party) or
institute or commence (or join with any other Person in commencing) any
enforcement, collection, execution, levy or foreclosure action or proceeding
with respect to any Lien on the Term Loan Priority Collateral held by it
under the Working Capital Credit Documents or otherwise; and




     (B) will not contest, protest or object to any foreclosure proceeding
or action brought by the Term Loan Agent or any Term Loan Claimholder with
respect to the Term Loan Priority Collateral, or any other exercise by the
Term Loan Agent or any other Term Loan Claimholder, of any rights and
remedies



25









 







relating to the Term Loan Priority Collateral under the Term Loan
Credit Documents or otherwise; provided that the respective interests of the
Working Capital Claimholders attach to the proceeds thereof, subject to the
relative priorities described in Section 2 and Section 4;
and




     (C) will not object to the forbearance by the Term Loan Agent or the
other Term Loan Claimholders from bringing or pursuing any foreclosure
proceeding or action or any other exercise of any rights or remedies
relating to the Term Loan Priority Collateral; and




     (ii) subject to Section 5.1, the Term Loan Representative shall have
the exclusive right to enforce rights, exercise remedies (including set-off and the
right to credit bid their debt) and make determinations regarding the release,
disposition, or restrictions with respect to the Term Loan Priority Collateral
without any consultation with or the consent of the Working Capital Agent or any
other Working Capital Claimholder; provided, that




     (A) in any Insolvency or Liquidation Proceeding commenced by or against
Company or any other Grantor, the Working Capital Administrative Agent or
the Working Capital Agent may file a claim or statement of interest with
respect to the Working Capital Obligations,




     (B) the Working Capital Agent may take any action (not adverse to the
Liens on the Term Loan Priority Collateral securing the Term Loan
Obligations, or the rights of the Term Loan Agent, the other Term Loan
Claimholders, any Additional Agent or any Additional Claimholders to
exercise remedies in respect thereof) in order to preserve or protect its
Lien on the Term Loan Priority Collateral,




     (C) the Working Capital Claimholders shall be entitled to file any
necessary responsive or defensive pleadings in opposition to any motion,
claim, adversary proceeding or other pleading made by any person objecting
to or otherwise seeking the disallowance of the claims of the Working
Capital Claimholders, including without limitation any claims secured by the
Term Loan Priority Collateral, if any, in each case in accordance with the
terms of this Agreement,




     (D) in any Insolvency or Liquidation Proceeding, the Working Capital
Claimholders shall be entitled to file any pleadings, objections, motions or
agreements which assert rights or interests available to unsecured creditors
of the Grantors arising under either Bankruptcy Law or applicable
non-bankruptcy law, in each case in accordance with the terms of this
Agreement (including subject to the terms of Section 5.1 and Section 6.2),




     (E) in any Insolvency or Liquidation Proceeding, the Working Capital
Claimholders shall be entitled to vote on any plan of reorganization, except
to the extent inconsistent with the provisions hereof, and




     (F) the Working Capital Agent or any Working Capital Claimholder may
exercise any of its rights or remedies with respect to the Working Capital



26









 







Priority Collateral consistent with the terms of this Agreement.




     (c) So long as the Discharge of Working Capital Obligations has not occurred, whether
or not any Insolvency or Liquidation Proceeding has been commenced by or against Company or
any other Grantor:




     (i) any Additional Agent and the applicable Additional Claimholders:




     (A) will not exercise or seek to exercise any rights or remedies
(including any right of set-off or recoupment) with respect to any Working
Capital Priority Collateral (including, without limitation, the exercise of
any right under any lockbox agreement, account control agreement, landlord
waiver or bailee’s letter or similar agreement or arrangement to which such
Additional Agent or any such Additional Claimholder is a party) or institute
or commence (or join with any other Person in commencing) any enforcement,
collection, execution, levy or foreclosure action or proceeding with respect
to any Lien on the Working Capital Priority Collateral held by it under the
Additional Documents or otherwise; and




     (B) will not contest, protest or object to any foreclosure proceeding
or action brought by the Working Capital Agent or any Working Claimholder
with respect to the Working Capital Priority Collateral, or any other
exercise by the Working Capital Agent or any other Working Capital
Claimholder, of any rights and remedies relating to the Working Capital
Priority Collateral under the Working Capital Credit Documents or otherwise;
provided that the respective interests of such Additional Agent and other
Additional Claimholders attach to the proceeds thereof, subject to the
relative priorities described in Section 2 and Section 4;
and




     (C) will not object to the forbearance by the Working Capital Agent or
the other Working Capital Claimholders from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any rights or
remedies relating to the Working Capital Priority Collateral; and




     (ii) subject to Section 5.1, the Working Capital Agent and the other
Working Capital Claimholders shall have the exclusive right to enforce rights,
exercise remedies (including set-off and the right to credit bid their debt) and
make determinations regarding the release, disposition, or restrictions with respect
to the Working Capital Priority Collateral without any consultation with or the
consent of such Additional Agent or any such other Additional Claimholder;
provided, that




     (A) in any Insolvency or Liquidation Proceeding commenced by or against
Company or any other Grantor, such Additional Agent may file a claim or
statement of interest with respect to the applicable Additional Obligations,




     (B) such Additional Agent may take any action (not adverse to the Liens
on the Working Capital Priority Collateral securing the Working Capital
Obligations, or the rights of the Working Capital Agent or the other Working
Capital Claimholders to exercise remedies in respect thereof) in order to
preserve or protect its Lien on the Working Capital Priority Collateral,



27









 






     (C) such Additional Agent and other Additional Claimholders shall be
entitled to file any necessary responsive or defensive pleadings in
opposition to any motion, claim, adversary proceeding or other pleading made
by any person objecting to or otherwise seeking the disallowance of the
claims of any of such Additional Agent and other Additional Claimholders,
including without limitation any claims secured by the Working Capital
Priority Collateral, if any, in each case in accordance with the terms of
this Agreement,




     (D) in any Insolvency or Liquidation Proceeding, such Additional Agent
and other Additional Claimholders shall be entitled to file any pleadings,
objections, motions or agreements which assert rights or interests available
to unsecured creditors of the Grantors arising under either Bankruptcy Law
or applicable non-bankruptcy law, in each case in accordance with the terms
of this Agreement (including subject to the terms of Section 5.1 and Section
6.2),




     (E) in any Insolvency or Liquidation Proceeding, such Additional Agent
and other Additional Claimholders shall be entitled to vote on any plan of
reorganization, except to the extent inconsistent with the provisions
hereof, and




     (F) such Additional Agent and other Additional Claimholders may
exercise any of its rights or remedies with respect to the Term Loan
Priority Collateral consistent with the terms of this Agreement.




     (d) So long as any Discharge of Additional Obligations has not occurred, whether or not
any Insolvency or Liquidation Proceeding has been commenced by or against Company or any
other Grantor:




     (i) the Working Capital Agent and the Working Capital Claimholders:




     (A) will not exercise or seek to exercise any rights or remedies
(including any right of set-off or recoupment) with respect to any Term Loan
Priority Collateral (including, without limitation, the exercise of any
right under any lockbox agreement, account control agreement, landlord
waiver or bailee’s letter or similar agreement or arrangement to which the
Working Capital Agent or any Working Capital Claimholder is a party) or
institute or commence (or join with any other Person in commencing) any
enforcement, collection, execution, levy or foreclosure action or proceeding
with respect to any Lien on the Term Loan Priority Collateral held by it
under the Working Capital Credit Documents or otherwise; and




     (B) will not contest, protest or object to any foreclosure proceeding
or action brought by any Additional Agent or any Additional Claimholder with
respect to the Term Loan Priority Collateral, or any other exercise by any
Additional Agent or any other Additional Claimholder, of any rights and
remedies relating to the Term Loan Priority Collateral under the Additional
Documents or otherwise; provided that the respective interests of the
Working Capital Claimholders attach to the proceeds thereof, subject to the
relative priorities described in Section 2 and Section 4;
and



28









 






     (C) will not object to the forbearance by any Additional Agent or any
other Additional Claimholder from bringing or pursuing any foreclosure
proceeding or action or any other exercise of any rights or remedies
relating to the Term Loan Priority Collateral.




     (e) In exercising rights and remedies with respect to its or their Priority Collateral,
the applicable Priority Agent and the applicable Priority Claimholders may enforce the
provisions of their respective Credit Documents and exercise Collateral remedies thereunder,
all in such order and in such manner as they may determine in the exercise of their sole
discretion. Such exercise and enforcement shall include the rights of an agent appointed by
the applicable Priority Agent and Priority Claimholders to sell or otherwise dispose of such
Priority Collateral upon foreclosure, to incur expenses in connection with such sale or
disposition, and to exercise all the rights and remedies of a secured creditor under the UCC
of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any
applicable jurisdiction. For the avoidance of doubt, the Term Loan Representative shall
enforce rights against Collateral but shall not be entitled (in such capacity), unless
specifically authorized by the applicable Term Loan Agent or Additional Agent, to pursue any
remedy against the Company or a Grantor which is not a Collateral remedy.




     (f) Each Agent, on behalf of itself and Claimholders for which it acts as Agent, agrees
that it will not take or receive any Collateral or any proceeds of Collateral in connection
with the exercise of any right or remedy (including set-off or recoupment) with respect to
any Collateral, except to the extent such Collateral, or proceeds thereof, constitutes its
Priority Collateral, and that any such Collateral or proceeds thereof taken or received by
it that does not constitute its Priority Collateral will be paid over to the applicable
Priority Agent pursuant to Section 4.2, unless and until the relevant Discharge of
Obligations of the Priority Claimholders has occurred, except as expressly provided in
Section 6.4. Without limiting the generality of the foregoing, (i) unless and until
the Discharge of Working Capital Obligations has occurred, (x) the sole right of the Term
Loan Agent and the Term Loan Claimholders with respect to the Working Capital Priority
Collateral is to hold a Lien on the Working Capital Priority Collateral pursuant to the Term
Loan Credit 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 Working Capital Obligations
has occurred in accordance with the terms of the Working Capital Credit Documents and
applicable law and (y) the sole right of any Additional Agent and the other applicable
Additional Claimholders with respect to the Working Capital Priority Collateral is to hold a
Lien on the Working Capital Priority Collateral pursuant to the Additional 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 Working Capital Obligations has occurred in accordance with the
terms of the Working Capital Credit Documents and applicable law, and (ii) unless and until
the Discharge of Term Loan Obligations and any Discharge of Additional Obligations has
occurred, the sole right of the Working Capital Agent and the Working Capital Claimholders
with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan
Priority Collateral pursuant to the Working Capital Credit Documents for the period and to
the extent granted therein and to receive a share of the proceeds thereof, if any, after (x)
the Discharge of Term Loan Obligations has occurred in accordance with the terms of the Term
Loan Credit Documents and applicable law and (y) any Discharge of Additional Obligations has
occurred in accordance with the terms of the Additional Documents and applicable law.




     (g) Subject to the proviso in clause (ii) of Section 3.1(a), Section
3.1(b), Section 3.1(c) or Section 3.1(d), as applicable, (i) the Working
Capital Agent, for itself and on behalf of



29









 







the Claimholders for which it acts as Agent, (x) agrees that neither it nor such
Claimholders for which it acts as Agent will take any action that would hinder, delay or
impede any exercise of remedies by the Term Loan Agent and other Term Loan Claimholders or
any Additional Agent and other Additional Claimholders under the other Agreements with
respect to such Claimholders’ respective Priority Collateral, including any sale, lease,
exchange, transfer or other disposition of such Priority Collateral, whether by foreclosure
or otherwise, and (y) hereby waives any and all rights it or the Claimholders for which it
acts as Agent may have as a junior lien creditor or otherwise to object to the manner or
order in which the Term Loan Agent or the other Term Loan Claimholders, any Additional Agent
or any Additional Claimholders seek to enforce the Liens granted in their respective
Priority Collateral, and (ii) each of the Term Loan Agent and any Additional Agent, for
itself and on behalf of the Claimholders for which it acts as Agent, (x) agrees that neither
it nor such Claimholders for which it acts as Agent will take any action that would hinder,
delay or impede any exercise of remedies by the Working Capital Agent and other Working
Capital Claimholders under the other Agreements with respect to such Claimholders’
respective Priority Collateral, including any sale, lease, exchange, transfer or other
disposition of such Priority Collateral, whether by foreclosure or otherwise, and (y) hereby
waives any and all rights it or the Claimholders for which it acts as Agent may have as a
junior lien creditor or otherwise to object to the manner or order in which the Working
Capital Agent or the other Working Capital Claimholders seek to enforce the Liens granted in
their respective Priority Collateral.



     3.2 Actions Upon Breach.




     (a) If any Claimholder commences or participates in any action or proceeding against
Company, any other Grantor or the Collateral in violation of this Agreement, any Agent for
any other Claimholders may interpose in the name of such Claimholders or in the name of
Company or such Grantor the making of this Agreement as a defense or dilatory plea.




     (b) Should any Claimholder in any way take, or attempt or threaten to take, contrary
to this Agreement, any action with respect to Collateral, or fail to take any action
required by this Agreement, any Agent for any other Claimholders (in its own name or in the
name of a Grantor) may obtain relief against such offending Claimholder by injunction,
specific performance and/or other appropriate equitable relief, it being understood and
agreed by all of the Claimholders that (i) the damages from such actions may be difficult to
ascertain and may be irreparable, and (ii) the offending Claimholder waives any defense that
such other Claimholders cannot demonstrate damage or be made whole by the awarding of
damages.



SECTION 4




PAYMENTS




     4.1 Application of Proceeds.




     (a) So long as the Discharge of Term Loan Obligations and the Discharge of Additional
Obligations have not occurred, any proceeds of Term Loan Priority Collateral received in
connection with the sale or other disposition of such Collateral, or collection on such
Collateral upon the exercise of remedies, shall be applied as follows:




     first, to the payment of costs and expenses of the Term Loan Agent or
any Additional Agent, as applicable, in connection with such sale or disposition of
or



30









 







collection on such Collateral, and




     second, to the payment, on a pro rata basis, of (x) the Term Loan Obligations
in accordance with the relevant Term Loan Credit Documents until the Discharge of
Term Loan Obligations shall have occurred and (y) any Additional Obligations in
accordance with the applicable Additional Documents until the Discharge of
Additional Obligations shall have occurred.




Upon the Discharge of Term Loan Obligations, the Term Loan Agent shall deliver to any
Additional Agent or (if there is no Additional Agent) the Working Capital Agent any proceeds
of Term Loan Priority Collateral held by it in the same form as received, with any necessary
endorsements or, as a court of competent jurisdiction may otherwise direct. Upon the
Discharge of Additional Obligations, the applicable Additional Agent shall deliver to the
Term Loan Agent or any Additional Agent or (if there is no Term Loan Agent or Additional
Agent) the Working Capital Agent any proceeds of Term Loan Priority Collateral held by it in
the same form as received, with any necessary endorsements or, as a court of competent
jurisdiction may otherwise direct. Any such proceeds of Term Loan Priority Collateral so
received by the Working Capital Agent shall be applied by the Working Capital Agent to the
Working Capital Obligations in such order as specified in the Working Capital Credit
Documents and otherwise in accordance with the Working Capital Documents. Any proceeds of
Term Loan Priority Collateral not otherwise applied in accordance with this Section
4.1(a) shall be delivered to the relevant Grantor or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdictions may direct. The
foregoing provisions of this Section 4.1(a) shall not impose on Term Loan Agent or
any other Term Loan Claimholder, or any Additional Agent or any other Additional
Claimholder, any obligations which would conflict with prior perfected claims therein in
favor of any other person or any order or decree of any court or other governmental
authority or any applicable law.




     (b) So long as the Discharge of Working Capital Obligations has not occurred, any
proceeds of Working Capital Priority Collateral received in connection with the sale or
other disposition of such Collateral, or collection on such Collateral upon the exercise of
remedies, shall be applied by the Working Capital Agent to the Working Capital Obligations
in such order as specified in the relevant Working Capital Credit Documents. Upon the
Discharge of Working Capital Obligations, the Working Capital Agent shall deliver to the
Term Loan Representative any proceeds of Working Capital Priority Collateral held by it in
the same form as received for application in accordance with Section 4.1(a), with
any necessary endorsements or, as a court of competent jurisdiction may otherwise direct.
Upon the Discharge of Term Loan Obligations and the Discharge of the Working Capital
Obligations, the Term Loan Agent shall deliver to any Additional Agent any proceeds of
Working Capital Priority Collateral held by it in the same form as received, with any
necessary endorsements or, as a court of competent jurisdiction may otherwise direct. Upon
the Discharge of Additional Obligations related to a particular Additional Credit Facility
and the Discharge of the Working Capital Obligations, the applicable Additional Agent shall
deliver to the Term Loan Agent or any other Additional Agent any proceeds of Working Capital
Priority Collateral held by it in the same form as received, with any necessary endorsements
or, as a court of competent jurisdiction may otherwise direct. Any proceeds of Working
Capital Priority Collateral not otherwise applied in accordance with this Section
4.1(b) shall be delivered to the relevant Grantor or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdictions may direct. The
foregoing provisions of this Section 4.1(b) shall not impose on Working Capital
Agent or any other Working Capital Claimholder any obligations which would conflict with
prior perfected claims therein in favor of



31









 







any other person or any order or decree of any court or other governmental authority or
any applicable law.




     (c) Except as set forth in this Section 4.1(c), nothing in this Agreement shall
require any Agent or any Claimholder to determine the source or priority of funds received
by it and applied to its Obligations. In the absence of fraudulent conduct, willful
misconduct or gross negligence, the sole remedy of any Agent or Claimholder for the tender
and application of proceeds of its Priority Collateral to the Obligations of the
Non-Priority Claimholders shall be to proceed directly against the Grantors unless, prior to
the application of such proceeds to the Obligations of the Non-Priority Claimholders, the
applicable Agent for the applicable Non-Priority Claimholders shall have a received a
written notice that such proceeds are (or will be) the proceeds of the Priority
Claimholders’ Priority Collateral with such notice to contain the following information: (i)
a description of the Priority Claimholders’ Priority Collateral that is being sold,
transferred or otherwise disposed of to generate the proceeds, (ii) a description of the
transaction generating the proceeds and (iii) the actual or anticipated date of such
transaction.



     4.2 Payment Turnover.




     (a) So long as the Discharge of Working Capital Obligations has not occurred, any
Working Capital Priority Collateral or proceeds thereof (together with assets or proceeds
subject to Liens referred to in Section 6.4) received by the Term Loan Agent or any
other Term Loan Claimholders, or by any Additional Agent or any other applicable Additional
Claimholders, in connection with the exercise of any right or remedy (including set-off or
recoupment) in respect of the Working Capital Priority Collateral shall be segregated and
held in trust and forthwith paid over to the Working Capital Agent in the same form as
received, with any necessary endorsements or as a court of competent jurisdiction may
otherwise direct. The Working Capital Agent is hereby authorized to make any such
endorsements as agent for the Term Loan Agent or any such Term Loan Claimholders, or such
Additional Agent or any such Additional Claimholders. This authorization is coupled with an
interest and is irrevocable until such time as this Agreement is terminated in accordance
with its terms.




     (b) So long as the Discharge of Term Loan Obligations and the Discharge of Additional
Obligations have not occurred, any Term Loan Priority Collateral or proceeds thereof
(together with assets or proceeds subject to Liens referred to in Section 6.4)
received by the Working Capital Agent or any other Working Capital Claimholders in
connection with the exercise of any right or remedy (including set-off or recoupment) in
respect of the Term Loan Priority Collateral shall be segregated and held in trust and
forthwith paid over to the Term Loan Representative for application in accordance with
Section 4.1(a) in the same form as received, with any necessary endorsements or as a
court of competent jurisdiction may otherwise direct. Each of the Term Loan Agent and any
Additional Agent is hereby authorized to make any such endorsements as agent for the Working
Capital Agent or any such Working Capital Claimholders. This authorization is coupled with
an interest and is irrevocable until such time as this Agreement is terminated in accordance
with its terms.



SECTION 5




OTHER AGREEMENTS




     5.1 Releases.



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     (a) If, in connection with:




     (i) the exercise of any Term Loan Agent’s remedies in respect of the Term Loan
Priority Collateral, including any sale, lease, exchange, transfer or other
disposition of any such Collateral after an event of default under the terms of the
Term Loan Credit Documents, and as defined therein, has occurred and is continuing
by or on behalf of Term Loan Agent or a Grantor with the approval of Term Loan Agent
(a “Term Loan Collateral Exercise of Remedies”); or




     (ii) any sale, lease, exchange, transfer or other disposition of any Term Loan
Priority Collateral permitted or otherwise consented to under the terms of the Term
Loan Credit Documents (whether or not an event of default thereunder, and as defined
therein, has occurred and is continuing) (a “Term Loan Collateral Disposition”);




     the Term Loan Agent, for itself or on behalf of any of the Term Loan Claimholders,
releases any of its Liens on any part of the Term Loan Priority Collateral, then the Liens,
if any, of the Working Capital Agent, for itself or for the benefit of the Working Capital
Claimholders, on such Term Loan Priority Collateral, shall be automatically, unconditionally
and simultaneously released (the “Term Collateral Second Lien Release”) and the Working
Capital Agent, for itself and the Working Capital Claimholders shall be deemed to have
authorized the Term Loan Agent to file UCC amendments and terminations covering the Term
Loan Priority Collateral so sold or otherwise disposed of with respect to the UCC financing
statements between any Grantor and the Working Capital Agent to evidence such release and
termination and promptly upon the request of the Term Loan Agent execute and deliver such
other release documents and confirmations of the authorization to file UCC amendments and
terminations provided for herein, in each case as the Term Loan Agent may require in
connection with such sale or other disposition by the Term Loan Agent, the Term Loan Agent’s
agents or any Grantor with the consent of the Term Loan Agent to evidence and effectuate
such termination and release; provided, that, (A) any such release or UCC
amendment or termination by or on behalf of the Working Capital Agent shall not extend to or
otherwise affect any of the rights, if any, of the Working Capital Agent to the proceeds
from any such sale or other disposition of Term Loan Priority Collateral upon the Discharge
of Term Loan Obligations and the Discharge of Additional Obligations and (B) the Term
Collateral Second Lien Release shall not occur without the consent of the Working Capital
Agent (x) in the case of a Term Loan Collateral Exercise of Remedies, as to any Term Loan
Priority Collateral the net proceeds of the disposition of which will not be applied to
repay the Term Loan Obligations or Additional Obligations or (y) in the case of a Term Loan
Collateral Disposition, if the Term Loan Collateral Disposition is prohibited by any
provision of the Working Capital Credit Agreement.




     (b) If, in connection with:




     (i) the exercise of any Additional Agent’s remedies in respect of the Term Loan
Priority Collateral, including any sale, lease, exchange, transfer or other
disposition of any such Collateral after an event of default under the terms of the
applicable Additional Documents, and as defined therein, has occurred and is
continuing by or on behalf of such Additional Agent or a Grantor with the approval
of such Additional Agent (a “Additional Collateral Exercise of Remedies”); or




     (ii) any sale, lease, exchange, transfer or other disposition of any Term Loan
Priority Collateral permitted or otherwise consented to under the terms of the
applicable



33









 







Additional Documents (whether or not an event of default thereunder, and as
defined therein, has occurred and is continuing) (a “Additional Collateral
Disposition”);




     such Additional Agent, for itself or on behalf of any of the applicable Additional
Claimholders, releases any of its Liens on any part of the Term Loan Priority Collateral,
then the Liens, if any, of the Working Capital Agent, for itself or for the benefit of the
Working Capital Claimholders, on such Term Loan Priority Collateral, shall be automatically,
unconditionally and simultaneously released (the “Additional Collateral Second Lien
Release”) and the Working Capital Agent, for itself and the Working Capital Claimholders
shall be deemed to have authorized such Additional Agent to file UCC amendments and
terminations covering the Term Loan Priority Collateral so sold or otherwise disposed of
with respect to the UCC financing statements between any Grantor and the Working Capital
Agent to evidence such release and termination and promptly upon the request of such
Additional Agent execute and deliver such other release documents and confirmations of the
authorization to file UCC amendments and terminations provided for herein, in each case as
such Additional Agent may require in connection with such sale or other disposition by such
Additional Agent, such Additional Agent’s agents or any Grantor with the consent of such
Additional Agent to evidence and effectuate such termination and release; provided,
that, (A) any such release or UCC amendment or termination by or on behalf of the
Working Capital Agent shall not extend to or otherwise affect any of the rights, if any, of
the Working Capital Agent to the proceeds from any such sale or other disposition of Term
Loan Priority Collateral upon the Discharge of Term Loan Obligations and the Discharge of
Additional Obligations and (B) the Additional Collateral Second Lien Release shall not occur
without the consent of the Working Capital Agent (x) in the case of an Additional Collateral
Exercise of Remedies, as to any Term Loan Priority Collateral the net proceeds of the
disposition of which will not be applied to repay the Term Loan Obligations or Additional
Obligations or (y) in the case of a Additional Collateral Disposition, if the Additional
Collateral Disposition is prohibited by any provision of the Working Capital Credit
Agreement.




     (c) Until the Discharge of Term Loan Obligations and the Discharge of Additional
Obligations occurs, the Working Capital Agent, for itself and on behalf of the Working
Capital Claimholders, hereby irrevocably constitutes and appoints the Term Loan
Representative and any officer or agent of the Term Loan Representative, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the Working Capital Agent or any such Claimholder or in
the Term Loan Representative’s own name, from time to time in the Term Loan Representative’s
discretion, for the purpose of carrying out the terms of Section 5.1(a), to take any
and all appropriate action and to execute any and all documents and instruments which may be
necessary to accomplish the purposes of Section 5.1(a), including any endorsements
or other instruments of transfer or release.




     (d) Until the Discharge of Term Loan Obligations occurs, to the extent that the Term
Loan Agent for itself and on behalf of the Term Loan Claimholders has released any Lien on
Term Loan Priority Collateral and any such Liens are later reinstated or the Term Loan
Agent, on behalf of the Term Loan Claimholders, obtain any new Liens from Grantors on Term
Loan Priority Collateral, then the Working Capital Agent for itself and on behalf of the
Working Capital Claimholders shall be granted a Lien on any such Term Loan Priority
Collateral or have its Lien reinstated, as the case may be, subject to the priorities set
forth in Section 2. Until the Discharge of Additional Obligations occurs, to the
extent that the applicable Additional Agent for itself and on behalf of the applicable
Additional Claimholders has released any Lien on Term Loan Priority Collateral and any such
Liens are later reinstated or such Additional Agent, on behalf of such Additional
Claimholders, obtain any new Liens from Grantors, then the Working



34









 







Capital Agent for itself and on behalf of the Working Capital Claimholders shall be
granted a Lien on any such Term Loan Priority Collateral or have its Lien reinstated, as the
case may be, subject to the priorities set forth in Section 2.




     (e) If, in connection with:




     (i) the exercise of any Working Capital Agent’s remedies in respect of the
Working Capital Priority Collateral, including any sale, lease, exchange, transfer
or other disposition of any such Collateral after an event of default under the
terms of the Working Capital Credit Documents, and as defined therein, has occurred
and is continuing by or on behalf of Working Capital Agent or a Grantor with the
approval of Working Capital Agent (a “Working Capital Collateral Exercise of
Remedies”); or




     (ii) any sale, lease, exchange, transfer or other disposition of any Working
Capital Priority Collateral permitted or otherwise consented to under the terms of
the Working Capital Credit Documents (whether or not an event of default thereunder,
and as defined therein, has occurred and is continuing) (a “Working Capital
Collateral Disposition”);




     the Working Capital Agent, for itself or on behalf of any of the Working Capital
Claimholders, releases any of its Liens on any part of the Working Capital Priority
Collateral, then the Liens, if any, of the Term Loan Agent, for itself or for the benefit of
the Term Loan Claimholders, and of any Additional Agent, for itself or for the benefit of
the applicable Additional Claimholders, on such Working Capital Priority Collateral, shall
be automatically, unconditionally and simultaneously released (the “Working Capital
Collateral Second Lien Release”) and




     (1) the Term Loan Agent, for itself and the Term Loan Claimholders shall be
deemed to have authorized the Working Capital Agent to file UCC amendments and
terminations covering the Working Capital Priority Collateral so sold or otherwise
disposed of with respect to the UCC financing statements between any Grantor and the
Term Loan Agent to evidence such release and termination and promptly upon the
request of the Working Capital Agent execute and deliver such other release
documents and confirmations of the authorization to file UCC amendments and
terminations provided for herein, in each case as the Working Capital Agent may
require in connection with such sale or other disposition by the Working Capital
Agent, the Working Capital Agent’s agents or any Grantor with the consent of the
Working Capital Agent to evidence and effectuate such termination and release;
provided, that, (A) any such release or UCC amendment or termination
by or on behalf of the Term Loan Agent shall not extend to or otherwise affect any
of the rights, if any, of the Term Loan Agent to the proceeds from any such sale or
other disposition of Working Capital Priority Collateral upon the Discharge of
Working Capital Obligations and (B) the Working Capital Second Lien Release shall
not occur without the consent of the Term Loan Agent (x) in the case of a Working
Capital Collateral Exercise of Remedies, as to any Working Capital Priority
Collateral the net proceeds of the disposition of which will not be applied to repay
the Working Capital Obligations or (y) in the case of a Working Capital Collateral
Disposition, if the Working Capital Collateral Disposition is prohibited by any
provision of the Term Loan Credit Agreement, and




     (2) any Additional Agent, for itself and the applicable Additional



35









 







Claimholders shall be deemed to have authorized the Working Capital Agent to
file UCC amendments and terminations covering the Working Capital Priority
Collateral so sold or otherwise disposed of with respect to the UCC financing
statements between any Grantor and such Additional Agent to evidence such release
and termination and promptly upon the request of the Working Capital Agent execute
and deliver such other release documents and confirmations of the authorization to
file UCC amendments and terminations provided for herein, in each case as the
Working Capital Agent may require in connection with such sale or other disposition
by the Working Capital Agent, the Working Capital Agent’s agents or any Grantor with
the consent of the Working Capital Agent to evidence and effectuate such termination
and release; provided, that, (A) any such release or UCC amendment
or termination by or on behalf of such Additional Agent shall not extend to or
otherwise affect any of the rights, if any, of such Additional Agent to the proceeds
from any such sale or other disposition of Working Capital Priority Collateral upon
the Discharge of Working Capital Obligations and (B) the Working Capital Second Lien
Release shall not occur without the consent of such Additional Agent (x) in the case
of a Working Capital Collateral Exercise of Remedies, as to any Working Capital
Priority Collateral the net proceeds of the disposition of which will not be applied
to repay the Working Capital Obligations or (y) in the case of a Working Capital
Collateral Disposition, if the Working Capital Collateral Disposition is prohibited
by any provision of the applicable Additional Credit Facility.




     (f) In the event that Proceeds of Collateral are received in connection with any sale,
lease, exchange, transfer or other disposition of any such Collateral that directly or
indirectly involves a combination of Working Capital Priority Collateral or Term Loan
Priority Collateral, the Working Capital Agent, the Term Loan Agent and any Additional Agent
shall use commercially reasonable efforts in good faith to allocate the Proceeds received in
connection with such any sale, lease, exchange, transfer or other disposition of any such
Collateral to the Working Capital Priority Collateral and the Term Loan Priority Collateral.
If the Working Capital Agent, the Term Loan Agent and any Additional Agent are unable to
agree on such allocation within ten (10) days (or such other period of time to which the
Working Capital Agent, the Term Loan Agent and any Additional Agent mutually agree) of the
consummation of such sale, lease, exchange, transfer or other disposition, the portion of
such Proceeds that shall be allocated as Proceeds of Working Capital Priority Collateral for
purposes of this Agreement shall be an amount equal to the sum of the net book value of the
Accounts and Inventory included in the Collateral so disposed of (determined at the time of
such sale, lease, exchange, transfer or other disposition) with the balance of the Proceeds
to be allocated to the Term Loan Priority Collateral; provided however, this Section
5.1(f) shall not apply in the event that the Term Loan Agent or the other Term Loan
Claimholders, the Working Capital Agent or the other Working Capital Claimholders or any
Additional Agent or the other applicable Additional Claimholders did not consent to the
sale, lease, exchange, transfer or other disposition.




     (g) Until the Discharge of Working Capital Obligations occurs, the Term Loan Agent, for
itself and on behalf of the Term Loan Claimholders, hereby irrevocably constitutes and
appoints the Working Capital Agent and any officer or agent of the Working Capital Agent,
with full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Term Loan Agent or any such
Claimholder or in the Working Capital Agent’s own name, from time to time in the Working
Capital Agent’s discretion, for the purpose of carrying out the terms of Section
5.1(e), to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary to accomplish the purposes of Section 5.1(e),
including any endorsements or other instruments of transfer or release.



36









 







Until the Discharge of Working Capital Obligations occurs, each Additional Agent, for
itself and on behalf of the applicable Additional Claimholders, hereby irrevocably
constitutes and appoints the Working Capital Agent and any officer or agent of the Working
Capital Agent, with full power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of such Additional Agent or any
such Claimholder or in the Working Capital Agent’s own name, from time to time in the
Working Capital Agent’s discretion, for the purpose of carrying out the terms of Section
5.1(e), to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary to accomplish the purposes of Section 5.1(e),
including any endorsements or other instruments of transfer or release. Each authorization
under this Section 5.1(g) is coupled with an interest and is irrevocable until such
time as this Agreement is terminated in accordance with its terms.




     (h) Until the Discharge of Working Capital Obligations occurs, to the extent that the
Working Capital Agent for itself and on behalf of the Working Capital Claimholders has
released any Lien on Working Capital Priority Collateral and any such Liens are later
reinstated or the Working Capital Agent, on behalf of the Working Capital Claimholders,
obtain any new Liens from Grantors on any Working Capital Priority Collateral, then the Term
Loan Agent for itself and on behalf of the Term Loan Claimholders shall be granted a Lien on
any such Working Capital Priority Collateral or have its Lien reinstated, as the case may
be, and each Additional Agent for itself and on behalf of the applicable Additional
Claimholders shall be granted a Lien on any such Working Capital Priority Collateral or have
its Lien reinstated, as the case may be, in each case subject to the priorities set forth in
Section 2.



     5.2 Insurance. The Working Capital Agent, the Term Loan Agent and any Additional Agent shall
be named as additional insureds with respect to liability insurance policies maintained from time
to time by any Grantor, and the Working Capital Agent, the Term Loan Agent, each Additional Agent
or the Control Agent (on behalf of the Agent Parties and Claimholders), as their interests may
appear, shall be named as a loss payee under any casualty insurance policies maintained from time
to time by any Grantor, in each case as and to the extent required in the applicable Credit
Documents. As between the applicable Priority Agent and the applicable Priority Claimholders, on
the one hand, and the applicable Non-Priority Agent and the applicable Non-Priority Claimholders on
the other hand, the applicable Priority Agent and the applicable Priority Claimholders shall have
the sole and exclusive right, in accordance with and subject to the terms of the applicable Credit
Documents, (a) to adjust or settle any insurance policy or claim in the event of any loss with
respect to their respective Priority Collateral and (b) to approve any award granted in any
condemnation or similar proceeding affecting their respective Priority Collateral. All proceeds of
any such policy and any such award in respect of any such Priority Collateral that are payable to
the Agents shall be paid to the applicable Priority Agent (on a ratable basis or as may be
otherwise agreed as between the Term Loan Agent and any Additional Agent, in the case of Term Loan
Priority Collateral) for the benefit of the applicable Priority Claimholders to the extent required
under their respective Credit Documents, and thereafter to the applicable Non-Priority Agent (on a
ratable basis or as may be otherwise agreed as between the Term Loan Agent and any Additional
Agent, in the case of Term Loan Priority Collateral) for the benefit of the applicable Non-Priority
Claimholders to the extent required under their respective Credit Documents, and then to the owner
of the subject property or as a court of competent jurisdiction may otherwise direct. If any
Claimholder shall, at any time, receive any proceeds of any such insurance policy or any such award
in contravention of this Agreement, it shall pay such proceeds over to the Priority Agent in
accordance with the terms of Section 4.2. In the event that an Agent is named as loss
payee on property which is not its Priority Collateral, such Agent agrees to comply with the
instructions of the Priority Agent with respect to such collateral (a) in adjusting or settling any
insurance policy or claim in the event of any loss with respect to such Priority Collateral and (b)
to approving any award granted in any condemnation or similar proceeding affecting such Priority



37









 







Collateral.



     5.3 Control Agent for Perfection.




     (a) The Term Loan Agent, on behalf of itself and the Term Loan Claimholders, and the
Working Capital Agent, on behalf of itself and the Working Capital Claimholders, and any
Additional Agent, on behalf of itself and the applicable Additional Claimholders, each
hereby appoint Wells Fargo Bank, National Association as its collateral agent (in such
capacity, together with any successor in such capacity appointed by the Term Loan Agent, the
Working Capital Agent and any Additional Agent, the “Control Agent”) for the limited purpose
of acting as the agent on behalf of the Term Loan Agent (on behalf of itself and the Term
Loan Claimholders), the Working Capital Agent (on behalf of itself and the Working Capital
Claimholders) and any Additional Agent (on behalf of itself and the applicable Additional
Claimholders) with respect to the Control Collateral. The Control Agent accepts such
appointment and agrees to hold the Control Collateral in its possession or control (or in
the possession or control of its agents or bailees) as Control Agent for the benefit of the
Term Loan Agent (on behalf of itself and the Term Loan Claimholders) and the Working Capital
Agent (on behalf of itself and the Working Capital Claimholders) and any Additional Agent
(on behalf of itself and the applicable Additional Claimholders) and any permitted assignee
of any thereof solely for the purpose of perfecting the security interest granted to such
parties in such Control Collateral, subject to the terms and conditions of this Section
5.3. The Term Loan Agent, the Working Capital Agent and any Additional Agent hereby
acknowledge that the Control Agent shall obtain “control” under the UCC over each Controlled
Account as contemplated by the Term Loan Collateral Documents, the Working Capital
Collateral Documents and the applicable Additional Collateral Documents for the benefit of
both the Term Loan Agent (on behalf of itself and the Term Loan Claimholders) and the
Working Capital Agent (on behalf of itself and the Working Capital Claimholders) and any
Additional Agent (on behalf of itself and the applicable Additional Claimholders) pursuant
to a control agreements relating to a Controlled Account if requested by the Working Capital
Agent, the Term Loan Agent and any Additional Agent to act in such capacity.




     (b) The Control Agent, the Term Loan Agent, on behalf of itself and the Term Loan
Claimholders, and the Working Capital Agent, on behalf of itself and the Working Capital
Claimholders, and any Additional Agent, on behalf of itself and the applicable Additional
Claimholders, each hereby agrees that the applicable Priority Agent shall have the sole and
exclusive right and authority to give instructions to, and otherwise direct, the Control
Agent in respect of the Control Collateral constituting such Priority Agent’s constituents’
Priority Collateral or any control agreement with respect to any Control Collateral until
the date upon which the Discharge of Obligations shall have occurred with respect to the
Obligations owed to Claimholders for whom the applicable Priority Agent acts as Agent, and
none of the Non-Priority Claimholders will impede, hinder, delay or interfere with the
exercise of such rights by the Priority Agent in any respect. The Grantors hereby jointly
and severally agree to pay, reimburse, indemnify and hold harmless the Control Agent to the
same extent and on the same terms that the Grantors are required to do so for the Working
Capital Agent in accordance with the Working Capital Credit Agreement (if the Control Agent
is the Working Capital Agent) or for the Term Loan Agent in accordance with the Term Loan
Credit Agreement (if the Control Agent is the Term Loan Agent) or for any Additional Agent
in accordance with the applicable Additional Credit Facility (if the Control Agent is such
Additional Agent). The Working Capital Claimholders hereby jointly and severally agree to
pay, reimburse, indemnify and hold harmless the Control Agent to the same extent and on the
same terms that the Working Capital Claimholders are required to do so for the Working
Capital Agent in accordance with the



38









 







Working Capital Credit Agreement. The Term Loan Claimholders hereby jointly and
severally agree to pay, reimburse, indemnify and hold harmless the Control Agent to the same
extent and on the same terms that the Term Loan Claimholders are required to do so for the
Term Loan Agent in accordance with the Term Loan Credit Agreement. The applicable
Additional Claimholders hereby jointly and severally agree to pay, reimburse, indemnify and
hold harmless the Control Agent to the same extent and on the same terms that the such
Additional Claimholders are required to do so for the applicable Additional Agent in
accordance with the applicable Additional Credit Facility.




     (c) Except as set forth below, the Control Agent shall have no obligation whatsoever to
the Agents or any other Claimholder including, without limitation, any obligation to assure
that the Control Collateral is genuine or owned by any Grantor or one of their respective
Subsidiaries or to preserve rights or benefits of any Person except as expressly set forth
in this Section 5.3. In acting on behalf of the Agents and other Claimholders, the
duties or responsibilities of the Control Agent under this Section 5.3 shall be
limited solely (i) to physically holding the Control Collateral delivered to the Control
Agent by any Grantor as agent for the Term Loan Agent (on behalf of itself and the Term Loan
Claimholders), the Working Capital Agent (on behalf of itself and the Working Capital
Claimholders) and any Additional Agent (on behalf of itself and the applicable Additional
Claimholders), in each case for purposes of perfecting the Lien held by the Term Loan Agent,
the Working Capital Agent and each Additional Agent, (ii) exercising control of Deposit
Accounts on which it has control and forwarding the funds on deposit therein to the Agent
for the applicable Priority Claimholders, in each case as and to the extent provided in the
Credit Documents and (iii) delivering such collateral as set forth in Section
5.3(e).




     (d) The Control Agent shall not have, by reason of this Agreement or any other document
a fiduciary relationship in respect of the Term Loan Agent or any Term Loan Claimholder, the
Working Capital Agent or any Working Capital Claimholder, or any Additional Agent or any
Additional Claimholder.




     (e) (i) Upon the Discharge of Term Loan Obligations and the Discharge of Additional
Obligations, the Control Agent shall deliver any Control Collateral in the possession of the
Control Agent to the Working Capital Agent together with any necessary endorsements (or
otherwise allow the Working Capital Agent to obtain control of such Control Collateral) or
as a court of competent jurisdiction may otherwise direct and the Working Capital Agent
shall accept and succeed to the role of the Control Agent as the agent for perfection on
such Control Collateral.




     (ii) Upon the Discharge of Working Capital Obligations and the Discharge of
Additional Obligations, the Control Agent shall deliver any Control Collateral in
the possession of the Control Agent to the Term Loan Agent together with any
necessary endorsements (or otherwise allow the Term Loan Agent to obtain control of
such Control Collateral) or as a court of competent jurisdiction may otherwise
direct and the Term Loan Agent shall accept and succeed to the role of the Control
Agent as the agent for perfection on such Control Collateral.




     (iii) Upon the Discharge of Working Capital Obligations and the Discharge of
Term Loan Obligations, if there is at the time any Additional Agent, the Control
Agent shall deliver any Control Collateral in the possession of the Control Agent to
such Additional Agent (or otherwise allow such Additional Agent for such Additional
Claimholders to obtain control of such Control Collateral) or as a court of
competent



39









 







jurisdiction may otherwise direct and such Additional Agent shall accept and
succeed to the role of the Control Agent as the agent for perfection on such Control
Collateral, provided that if there is at the time more than one Additional
Agent, the Control Agent shall retain such Control Collateral. 




     (f) The Control Agent shall have an unfettered right to resign as Control Agent upon 30
days notice to each Agent Party. If upon the effective date of such resignation no
successor to the Control Agent has been appointed by the Agent Parties, the Control Agent
shall deliver to the Working Capital Agent (if then an Agent Party) or to another Agent (if
the Working Capital Agent is not then an Agent Party) the Control Collateral together with
any necessary endorsements (or otherwise allow such Agent to obtain control of such Control
Collateral) or as a court of competent jurisdiction may otherwise direct and such Agent
shall accept and succeed to the role of the Control Agent as the agent for perfection on the
Control Collateral.




     (g) Notwithstanding the foregoing, each Agent, for and on behalf of itself and the
Claimholders represented thereby, agrees to hold all Control Collateral in its possession,
custody, or control (or in the possession, custody, or control of agents or bailees
therefor) as agent for the other Claimholders solely for the purpose of perfecting the
security interest granted to each other Agent Party or Claimholder in such Control
Collateral, subject to the terms and conditions of this Section. Such Agent shall not have
any obligation whatsoever to the other Claimholders to assure that such Control Collateral
is genuine or owned by any Grantor or any other Person or to preserve rights or benefits of
any Person therein. The duties or responsibilities of such Agent under this Section 5.3(g)
are and shall be limited solely to holding or maintaining control of such Control Collateral
as agent for the other Claimholders for purposes of perfecting the Lien held by the
Claimholders. Such Agent is not and shall not be deemed to be a fiduciary of any kind for
any Claimholder or any other Person.



     5.4 Access to Term Loan Priority Collateral.




     (a) In the event the Term Loan Representative shall acquire control or possession of
any of the Term Loan Priority Collateral or shall, through the exercise of remedies under
the Term Loan Credit Documents or any Additional Documents or otherwise, sell any of the
Term Loan Priority Collateral to any third party (a “Third Party Purchaser”), such
Agent shall, to the extent permitted by law, permit the Working Capital Agent (or shall
require as a condition of such sale to the Third Party Purchaser that the Third Party
Purchaser agree to permit the Working Capital Agent), at the Working Capital Agent’s option:
(i) to enter any of the premises of any Grantor (or Third Party Purchaser) constituting
such Term Loan Priority Collateral under such control or possession (or sold to a Third
Party Purchaser) in order to inspect, remove or take any action with respect to the Working
Capital Priority Collateral or to enforce the Working Capital Agent’s rights with respect
thereto, including, but not limited to, the examination and removal of Working Capital
Priority Collateral and the examination and duplication of any Collateral (to the extent not
Working Capital Priority Collateral) under such control or possession (or sold to a Third
Party Purchaser) consisting of books and records of any Grantor related to the Working
Capital Priority Collateral; (ii) to use the Collateral for the purpose of manufacturing or
processing raw materials or work-in-process into finished inventory; (iii) to use any of the
Collateral under such control or possession (or sold to a Third Party Purchaser) consisting
of computers or other data processing equipment related to the storage or processing of
records, documents or files pertaining to the Working Capital Priority Collateral and use
any Collateral under such control or possession (or sold to a Third Party Purchaser)
consisting of other equipment to handle, deal with or dispose of any Working Capital
Priority Collateral pursuant to



40









 







the Working Capital Agent’s rights as set forth in the Working Capital Credit
Documents, the UCC of any applicable jurisdiction and other applicable law, and (iv) to use
any of the Collateral consisting of intellectual property rights owned or controlled by (x)
the Term Loan Agent or the other Term Loan Claimholders or (y) such Additional Agent or the
other applicable Additional Claimholders, as applicable, as is or may be necessary for the
Working Capital Agent to deal with the Working Capital Priority Collateral (including the
sale or other disposition thereof). Such use by Working Capital Agent of the Collateral
shall not be on an exclusive basis.




     (b) The Working Capital Agent hereby acknowledges, for itself and on behalf of the
other Working Capital Claimholders that, during the period any Working Capital Priority
Collateral shall be under control or possession of the Term Loan Agent or any Additional
Agent, such Agent shall not be obligated to take any action to protect or to procure
insurance with respect to such Working Capital Priority Collateral, it being understood that
such Agent shall have no responsibility for loss or damage to the Working Capital Priority
Collateral (other than as a result of the gross negligence or willful misconduct of such
Agent or its agents, as determined by a final non-appealable judgment of a court of
competent jurisdiction) and that all the risk of loss or damage to the Working Capital
Priority Collateral shall remain with the Working Capital Claimholders; provided,
that to the extent insurance obtained by such Agent provides coverage for risks relating to
access to or use of Working Capital Priority Collateral, the Working Capital Agent will be
made an additional named insured thereunder.




     (c) The rights of Working Capital Agent set forth in Section 5.4(a)(i)-(iii)
above shall continue until the later of (i) 180 days after the date Working Capital Agent
first receives written notice from the Term Loan Representative that it has control or
possession of the Term Loan Priority Collateral at issue and (ii) the sale or other
disposition of such Priority Collateral by the Term Loan Representative or its constituents.
Such time period shall be tolled during the pendency of any Insolvency Proceeding of any
Grantor or other proceedings pursuant to which the Working Capital Claimholders, the Term
Loan Claimholders and any Additional Claimholders are effectively stayed from enforcing
their rights against the Working Capital Priority Collateral. In no event shall any Term
Loan Claimholder or any Additional Claimholder take any action to interfere, limit or
restrict the rights of Working Capital Agent or the exercise of such rights by Working
Capital Agent to have access to or to use any of such Collateral pursuant to Section
5.4(a) prior to the expiration of such period.




     (d) During the actual occupation by the Working Capital Agent or its agents or
representatives, of any real property constituting Term Loan Priority Collateral during the
access and use period permitted by Section 5.4(a) above, the Working Capital
Claimholders shall be obligated to pay to the Term Loan Claimholders and any Additional
Claimholders any rent payable to third parties and all utilities, taxes and other
maintenance and operating costs of such real property during any such period of actual
occupation by the Working Capital Agent or its agents or representatives, but only to the
extent the Term Loan Claimholders or such Additional Claimholders are required to pay or are
otherwise paying any such rent, utilities, taxes or other maintenance and operating costs
during the actual occupation of such real property by the Working Capital Agent or its
agents or representatives.



     5.5 Consent to Limited License. The Term Loan Agent, for itself and on behalf of the other
Term Loan Claimholders, and any Additional Agent, for itself and on behalf of the applicable other
Additional Claimholders, (i) acknowledges and consents to the grant to the Working Capital Agent by
the Company (and the other Grantors, as applicable) of a limited, non-exclusive royalty-free
license on the terms set forth in Section 12.2(e) of the Initial Working Capital Credit Agreement
in effect as of the date



41









 







hereof or on substantially equivalent terms in the case of any Working Capital Credit
Agreement other than the Initial Working Capital Credit Agreement (the “Limited License”) and (ii)
agrees that its Liens in the Term Loan Priority Collateral shall be subject to the Limited License.
The Term Loan Agent further agrees that, in connection with any foreclosure sale conducted by the
Term Loan Agent in respect of Term Loan Priority Collateral of the type described in the Limited
License (the “IP Collateral”), (x) any notice required to be given by the Term Loan Agent in
connection with such foreclosure shall contain an acknowledgement that the Term Loan Agent’s Lien
is subject to the Limited License, (y) the Term Loan Agent shall deliver a copy of the Limited
License to any purchaser at such foreclosure and provide written notice to such purchaser that the
Term Loan Agent’s Lien and the purchaser’s rights in the transferred IP Collateral are subject to
the Limited License and (z) the purchaser shall acknowledge in writing that it purchased the IP
Collateral subject to the Limited License. Each Additional Agent further agrees that, in
connection with any foreclosure sale conducted by such Additional Agent in respect of IP
Collateral, (x) any notice required to be given by such Additional Agent in connection with such
foreclosure shall contain an acknowledgement that such Additional Agent’s Lien is subject to the
Limited License, (y) such Additional Agent shall deliver a copy of the Limited License to any
purchaser at such foreclosure and provide written notice to such purchaser that such Additional
Agent’s Lien and the purchaser’s rights in the transferred IP Collateral are subject to the Limited
License and (z) the purchaser shall acknowledge in writing that it purchased the IP Collateral
subject to the Limited License.



SECTION 6




INSOLVENCY OR LIQUIDATION PROCEEDINGS




     6.1 Use of Cash Collateral and Financing Issues. If Company or any other Grantor shall be
subject to any Insolvency or Liquidation Proceeding and the Priority Agent shall desire to permit
the use of cash collateral which constitutes such Priority Agent’s constituents’ Priority
Collateral or to permit Company or any other Grantor to obtain financing secured by such Priority
Collateral (and not by any Collateral which does not constitute such Priority Agent’s Priority
Collateral), from one or more of the Claimholders for whom such Priority Agent acts as Agent, under
Section 363 or Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (such financing, a
“DIP Financing”), then each Non-Priority Agent, on behalf of itself and the Non-Priority
Claimholders, (A) agrees that it will raise no objection to such use of cash collateral or DIP
Financing nor support any other Person objecting to, such sale, use, or lease of cash collateral or
DIP Financing and will not request any form of adequate protection or any other relief in
connection therewith (except as agreed by the Priority Agent or to the extent expressly permitted
by Section 6.4) and, to the extent the Liens securing the Priority Obligations are
subordinated to or pari passu with the Liens securing such DIP Financing, each Non-Priority
Agent will subordinate its Liens in such Priority Collateral to (x) the Liens securing such DIP
Financing (and all Obligations relating thereto), (y) any adequate protection Liens provided to the
Priority Claimholders and (z) any “carve-out” for professional or United States Trustee fees agreed
to by the Priority Agent; (B) agrees that, at the option of the Priority Agent, an order approving
such DIP Financing or cash collateral usage may be entered even if the order provides that any
claim arising under section 507(b) of the Bankruptcy Code as a result of a failure of adequate
protection of the liens of the Non-Priority Claimholders in Collateral which is not its Priority
Collateral may not be paid from the proceeds of claims arising under sections 544, 546, 547, 548 or
550 of the Bankruptcy Code; and (C) agree that notice received two (2) calendar days prior to the
entry of an order approving such usage of cash collateral or approving such DIP Financing shall be
adequate notice; provided that the foregoing shall not prohibit any Non-Priority Agent or
the Non-Priority Claimholders from objecting solely to any provisions in any agreement regarding
the use of cash collateral or any DIP Financing relating to, describing or requiring any provision
or content of a plan of reorganization other than any provisions requiring that the DIP Financing
be paid in full in cash. The Term Loan Agent and Term Loan Claimholders and any



42









 







Additional Agent and any Additional Claimholders shall not, directly or indirectly, offer to
provide, support any other Person in providing, provide or seek to provide DIP Financing secured by
Liens equal or senior to the Liens on the Working Capital Priority Collateral, without the prior
written consent of the Working Capital Agent. The Working Capital Agent and Working Capital
Claimholders shall not, directly or indirectly, offer to provide, support any other Person in
providing, provide or seek to provide DIP Financing secured by Liens equal or senior to the Liens
on the Term Loan Priority Collateral, without the prior written consent of the Term Loan Agent and
any Additional Agent. The Term Loan Agent and the Term Loan Claimholders shall not, directly or
indirectly, offer to provide, support any other Person in providing, provide or seek to provide DIP
Financing secured by Liens equal or senior to the Liens on the Term Loan Priority Collateral,
without the prior written consent of any Additional Agent. Any Additional Agent and such other
applicable Additional Claimholders shall not, directly or indirectly, offer to provide, support any
other Person in providing, provide or seek to provide DIP Financing secured by Liens equal or
senior to the Liens on the Term Loan Priority Collateral, without the prior written consent of the
Term Loan Agent and any other Additional Agent. All references to any Collateral hereunder shall
be construed to include any assets arising after the commencement of the case under the Bankruptcy
Code of the same type or category as such Collateral.



     6.2 Sale Issues. Each Agent, on behalf of itself and the Claimholders for whom it acts as
Agent, agrees that it will raise no objection to or oppose a sale or other disposition of any
Collateral which does not constitute its Priority Collateral free and clear of its Liens or other
claims under Section 363 of the Bankruptcy Code if the Priority Agent has consented to such sale or
disposition of such assets so long as the interests of such Agent and the Claimholders for whom it
acts as Agent in such Collateral attach to the proceeds thereof, subject to the terms of this
Agreement. If requested by any Priority Agent in connection therewith, each Non-Priority Agent
shall affirmatively consent to such a sale or disposition.



     6.3 Relief from the Automatic Stay. Each Agent, on behalf of itself and the Claimholders for
whom it acts as Agent, agrees that none of them shall (i) seek relief from the automatic stay or
any other stay in any Insolvency or Liquidation Proceeding in respect of any Collateral which does
not constitute its Priority Collateral, without the prior written consent of the Priority Agent, or
(ii) oppose any request by any Priority Agent or any Priority Claimholder to seek relief from the
automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of their
respective Priority Collateral.



     6.4 Adequate Protection.




     (a) Each Agent, on behalf of itself and the Claimholders for whom it acts as Agent, may
seek adequate protection of its interest in its respective Priority Collateral and each
other Agent, on behalf of itself and the Claimholders for whom it acts as Agent, agrees that
none of them shall contest (or support any other person contesting) (i) any such request for
adequate protection by any Priority Agent with respect to its Priority Collateral or (ii)
any objection by any Priority Agent or the Priority Claimholders to any motion, relief,
action or proceeding based on any Priority Agent or the Priority Claimholders claiming a
lack of adequate protection of their interests in their respective Priority Collateral.
Each Agent acknowledges and agrees that any superpriority administrative expense claim
granted to such Agent or arising under 11 U.S.C. § 507(b) as adequate protection of its
interest in its respective Priority Collateral shall be pari passu with any superpriority
administrative expense claim granted to any other Agent as adequate protection of their
interest in its respective Priority Collateral.




     (b) Each Non-Priority Agent, on behalf of itself and the Claimholders for whom it acts
as Agent, may seek adequate protection of its junior interest in Collateral, subject to the



43









 







provisions of this Agreement, only if (A) any Priority Agent is granted adequate protection
in the

form of a replacement Lien on post-petition collateral of the same type as the Priority
Collateral, and (B) such additional protection requested by such Agent is in the form of a
replacement Lien on such post-petition collateral of the same type as the Priority
Collateral, which Lien, if granted, will be subordinated to the adequate protection Liens
granted in favor of such Priority Agent on such post-petition collateral and the Liens
securing any DIP financing (and all Obligations relating thereto) secured by such Priority
Collateral on the same basis as the Liens of such Non-Priority Agent on such Priority
Collateral are subordinated to the Liens of such Priority Agent on such Priority Collateral
under this Agreement. In the event that a Non-Priority Agent, on behalf of itself or any of
the Claimholders for whom it acts as Agent, seeks or requests (or is otherwise granted)
adequate protection of its junior interest in Collateral in the form of a replacement Lien
on additional collateral in any form, then such Agent, on behalf of itself and the
Claimholders for whom it acts as Agent, agrees that (i) any other Non-Priority Agent also
holding a junior interest in such Collateral shall also be granted a replacement lien on
such additional collateral as adequate protection of such junior interest in such Collateral
and that such Non-Priority Agent’s replacement Lien shall be pari passu to the replacement
Lien of such other Non-Priority Agent and (ii) each Priority Agent shall also be granted a
replacement Lien on such additional collateral as adequate protection of its senior interest
in Collateral and that such Agent’s replacement Lien shall be subordinated to the
replacement Lien of each such Priority Agent. If any Agent or Claimholder receives as
adequate protection a Lien on post-petition assets of the same type as its pre-petition
Priority Collateral, then such post-petition assets shall also constitute Priority
Collateral of such Person to the extent of any allowed claim secured by such adequate
protection Lien.




     (c) Each Non-Priority Agent on behalf of itself and the Non-Priority Claimholders for
whom it acts as Agent, may seek and receive additional adequate protection of its junior
interest in Collateral, subject to the provisions of this Agreement, in the form of a
superpriority administrative expense claim, including a claim arising under 11 U.S.C. §
507(b), which superpriority administrative expense claim shall be junior in all respects to
any superpriority administrative expense claim granted to the Priority Claimholders with
respect to such Collateral and pari passu in all respects with any superpriority
administrative expense claim granted to any other Non-Priority Claimholders with respect to
such Collateral. In the event that a Non-Priority Agent, on behalf of itself and the
Non-Priority Claimholders for whom it acts as Agent, seeks or receives protection of its
junior interest in Collateral and is granted a superpriority administrative expense claim,
including a claim arising under 11 U.S.C. § 507(b), then such Non-Priority Agent, on behalf
of itself and the Non-Priority Claimholders for whom it acts as Agent, agrees that (i) the
Priority Claimholders shall receive a superpriority administrative expense claim which shall
be senior in all respects to the superpriority administrative expense claim granted to such
Agent with respect to such Collateral and (ii) any other Non-Priority Claimholders shall
receive a superpriority administrative expense claim which shall be pari passu in all
respects with the superpriority administrative expense claim granted to such Agent with
respect to such Collateral.



     6.5 Separate Grants of Security and Separate Classification. Each of the Grantors and each of
the Claimholders acknowledges and agrees with respect to each class of Priority Collateral that (i)
the grants of Liens pursuant to the Working Capital Collateral Documents, on the one hand, and the
Term Loan Collateral Documents and any Additional Collateral Documents, on the other hand,
constitute separate and distinct grants of Liens and (ii) because of, among other things, their
differing rights in the Collateral, the Working Capital Obligations, on the one hand, and the Term
Loan Obligations and any Additional Obligations, on the other hand, are fundamentally different
from one another and must be separately classified in any plan of reorganization proposed or
adopted in an Insolvency or Liquidation



44









 







Proceeding. To further effectuate the intent of the
parties as provided in the immediately preceding
sentence, if it is held that the claims of (x) the Working Capital Claimholders and (y) the
Term Loan Claimholders and/or any Additional Claimholders in respect of any Priority Collateral,
constitute only one secured claim (rather than separate classes of senior and junior secured
claims), then the Priority Claimholders shall be entitled to receive, in addition to amounts
distributed to them from, or in respect of, their Priority Collateral in respect of principal,
pre-petition interest and other claims, all amounts owing in respect of post-petition interest,
fees, costs and other charges, irrespective of whether a claim for such amounts is allowed or
allowable in such Insolvency or Liquidation Proceeding, before any distribution from, or in respect
of, any such Priority Collateral is made in respect of the claims held by the Non-Priority
Claimholders, with the Non-Priority Claimholders hereby acknowledging and agreeing to turn over to
the Priority Claimholders amounts otherwise received or receivable by them to the extent necessary
to effectuate the intent of this sentence, even if such turnover has the effect of reducing the
claim or recovery of the Non-Priority Claimholders.



     6.6 Post-Petition Claims. No Agent, nor any of the Claimholders for which it acts as Agent,
shall oppose or seek to challenge (a) any claim by any Priority Agent or any Priority Claimholder
for allowance in any Insolvency or Liquidation Proceeding of Obligations consisting of
post-petition interest, fees, costs, charges or expenses to the extent of the value of the lien of
such Priority Agent in such Priority Agent’s Priority Collateral, without regard to the existence
of the Lien of any Non-Priority Agent in such Collateral, or (b) any claim by any Non-Priority
Agent or any Non-Priority Claimholder for allowance in any Insolvency or Liquidation Proceeding of
Obligations consisting of post-petition interest, fees, costs, charges or expenses to the extent of
the value of the lien of such Non-Priority Agent in such Collateral.



     6.7 Avoidance Issues. If any Priority Claimholder is required in any Insolvency or
Liquidation Proceeding, or otherwise, to turn over or otherwise pay to the estate of any Grantor
any amount in respect of any Working Capital Obligation, any Term Loan Obligation or any Additional
Obligation, as applicable (a “Recovery”), then such Claimholder shall be entitled to a
reinstatement of its Obligations with respect to all such recovered amounts. If this Agreement
shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force
and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise
affect the obligations of the parties hereto from such date of reinstatement. Priority Collateral
or proceeds thereof received by any Non-Priority Agent or any other Non-Priority Claimholder after
a Discharge of Obligations of the Priority Claimholders and prior to the reinstatement of such
Obligations shall be delivered to the Priority Agent (in the case of the Term Loan Agent and any
Additional Agent, on a ratable basis or on such other basis as such Agents may agree) upon such
reinstatement in accordance with Section 4.2.



     6.8 Expense Claims. Each Non-Priority Agent, for itself and on behalf of the Claimholders for
whom it acts as Agent, agrees that it will not (i) contest the payment of fees, expenses or other
amounts to any Priority Agent or any Priority Claimholder under Section 506(b) of the Bankruptcy
Code or otherwise to the extent of the value of the lien of such Priority Agent in such Priority
Agent’s Priority Collateral and to the extent provided for in the applicable Credit Agreement or
(ii) assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on parity
with the Lien of any Priority Agent for costs or expenses of preserving or disposing of such
Priority Agent’s Priority Collateral.



     6.9 Effectiveness in Insolvency or Liquidation Proceedings. This Agreement, which the parties
hereto expressly acknowledge is a “subordination agreement” under Section 510(a) of the Bankruptcy
Code, shall be effective before, during and after the commencement of an Insolvency or Liquidation
Proceeding. All references in this Agreement to any Grantor shall include such Person as a
debtor-in-possession and any receiver or trustee for such Person in any Insolvency or Liquidation



45









 







Proceeding.



SECTION 7




RELIANCE; WAIVERS; ETC.




     7.1 Non-Reliance




     (a) The consent by the Working Capital Claimholders to the execution and delivery of
the Term Loan Credit Documents and the grant to the Term Loan Agent on behalf of the Term
Loan Claimholders of a Lien on the Working Capital Priority Collateral, and to the execution
and delivery of any Additional Documents and the grant to any Additional Agent on behalf of
any applicable Additional Claimholders of a Lien on such Collateral, and all loans and other
extensions of credit made or deemed made on and after the date hereof by the Working Capital
Claimholders to the Grantors, shall be deemed to have been given and made in reliance upon
this Agreement. The consent by the Term Loan Claimholders to the execution and delivery of
the Working Capital Credit Documents and the grant to the Working Capital Agent on behalf of
the Working Capital Claimholders of a Lien on the Term Loan Priority Collateral, and to the
execution and delivery of any Additional Documents and the grant to any Additional Agent on
behalf of any applicable Additional Claimholders of a Lien on such Collateral, and all loans
and other extensions of credit made or deemed made on and after the date hereof by the Term
Loan Claimholders to the Grantors, shall be deemed to have been given and made in reliance
upon this Agreement. The consent by any Additional Claimholders to the execution and
delivery of any Additional Documents (other than such Additional Documents executed by or on
behalf of such Additional Claimholders) and the grant to any Additional Agent (other than
any Additional Agent that acts as Agent for such Additional Claimholders) on behalf of any
other applicable Additional Claimholders of a Lien on the Collateral, and all loans and
other extensions of credit made or deemed made on and after the date hereof by such
Additional Claimholders to the Grantors, shall be deemed to have been given and made in
reliance upon this Agreement.




     (b) The Term Loan Agent and the Term Loan Administrative Agent, on behalf of themselves
and the other Term Loan Claimholders, acknowledge that they and the Term Loan Claimholders
have, independently and without reliance on the Working Capital Agent or any other Working
Capital Claimholder, or on any Additional Agent or any other Additional Claimholder, and
based on documents and information deemed by them appropriate, made their own credit
analysis and decision to enter into the Term Loan Credit Agreement, the other Term Loan
Credit Documents, this Agreement and the transactions contemplated hereby and thereby and
they will continue to make their own credit decision in taking or not taking any action
under the Term Loan Credit Agreement, the other Term Loan Credit Documents or this
Agreement. The Working Capital Agent and the Working Capital Administrative Agent, on
behalf of themselves and the other Working Capital Claimholders, acknowledge that they and
the Working Capital Claimholders have, independently and without reliance on the Term Loan
Agent or any other Term Loan Claimholder, or on any Additional Agent or any other Additional
Claimholder, and based on documents and information deemed by them appropriate, made their
own credit analysis and decision to enter into the Working Capital Credit Agreement, the
other Working Capital Credit Documents, this Agreement and the transactions contemplated
hereby and thereby and they will continue to make their own credit decision in taking or not
taking any action under the Working Capital Credit Agreement, the other Working Capital
Credit Documents or this Agreement. Each Additional Agent, on behalf of itself and any
other applicable Additional Claimholders, acknowledges that it and the applicable Additional
Claimholders have,



46









 







independently and without reliance on the Working Capital Agent or any
Working Capital
Claimholder, or the Term Loan Agent or any Term Loan Claimholder, or any other
Additional Agent or any other applicable Additional Claimholders for which such other
Additional Agent acts as Agent, and based on documents and information deemed by them
appropriate, made their own credit analysis and decision to enter into the applicable
Additional Documents, this Agreement and the transactions contemplated hereby and thereby
and they will continue to make their own credit decision in taking or not taking any action
under the Additional Documents or this Agreement.



     7.2 No Warranties or Liability.



     (a) The Working Capital Agent, on behalf of itself and the Working Capital Claimholders,
acknowledges and agrees that (i) the Term Loan Agent and the Term Loan Claimholders have made no
express or implied representation or warranty, including with respect to the execution, validity,
legality, completeness, collectibility or enforceability of any of the Term Loan Credit Documents,
the ownership of any Collateral or the perfection or priority of any Liens thereon and (ii) any
Additional Agent and any Additional Claimholders have made no express or implied representation or
warranty, including with respect to the execution, validity, legality, completeness, collectibility
or enforceability of any of the Additional Documents, the ownership of any Collateral or the
perfection or priority of any Liens thereon.



     (b) The Term Loan Agent, on behalf of itself and the Term Loan Claimholders, acknowledges and
agrees that (i) the Working Capital Agent and the Working Capital Claimholders have made no express
or implied representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Working Capital Credit Documents, the
ownership of any Collateral or the perfection or priority of any Liens thereon and (ii) any
Additional Agent and any Additional Claimholders have made no express or implied representation or
warranty, including with respect to the execution, validity, legality, completeness, collectibility
or enforceability of any of the Additional Documents, the ownership of any Collateral or the
perfection or priority of any Liens thereon.



     (c) Each Additional Agent, on behalf of itself and the applicable Additional Claimholders,
acknowledges and agrees that (i) the Working Capital Agent and the Working Capital Claimholders
have made no express or implied representation or warranty, including with respect to the
execution, validity, legality, completeness, collectibility or enforceability of any of the Working
Capital Credit Documents, the ownership of any Collateral or the perfection or priority of any
Liens thereon, (ii) the Term Loan Agent and the Term Loan Claimholders have made no express or
implied representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Term Loan Credit Documents, the
ownership of any Collateral or the perfection or priority of any Liens thereon and (iii) any other
Additional Agent and any other applicable Additional Claimholders for which such other Additional
Agent acts as Agent have made no express or implied representation or warranty, including with
respect to the execution, validity, legality, completeness, collectibility or enforceability of any
of the Additional Documents, the ownership of any Collateral or the perfection or priority of any
Liens thereon.



     (d) The Term Loan Claimholders will be entitled to manage and supervise their respective loans
and extensions of credit under the Term Loan Credit Documents in accordance with law and as they
may otherwise, in their sole discretion, deem appropriate. The Additional Claimholders will be
entitled to manage and supervise their respective loans and extensions of credit under any
applicable Additional Documents in accordance with law and as they may otherwise, in their sole
discretion, deem appropriate. The Working Capital Claimholders will be entitled to manage and
supervise their respective loans and



47









 







extensions of credit under the Working Capital Documents in
accordance with law and as they may
otherwise, in their sole discretion, deem appropriate.



     (e) Neither any Agent nor any Claimholder for which such Agent acts as Agent shall have any
duty to any other Agent or any Claimholder for which such other Agent acts as Agent to act or
refrain from acting in a manner which allows, or results in, the occurrence or continuance of an
event of default or default under any agreements with Company or any Grantor (including the Working
Capital Credit Documents, the Term Loan Credit Documents and any Additional Documents), regardless
of any knowledge thereof which they may have or be charged with.



     7.3 No Waiver of Lien Priorities.




     (a) No right of the Working Capital Agent and the Working Capital Claimholders, the
Term Loan Agent and the Term Loan Claimholders, any Additional Agent and any Additional
Claimholders, the Control Agent or any of them to enforce any provision of this Agreement or
their respective Credit Documents shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or any other Grantor or by any act or
failure to act by such party, or by any noncompliance by any Person with the terms,
provisions and covenants of this Agreement or their respective Credit Documents, regardless
of any knowledge thereof which such party may have or be otherwise charged with.




     (b) Without in any way limiting the generality of the foregoing paragraph (but subject
to the rights of the Company and the other Grantors under the applicable Credit Documents),
the Working Capital Agent and the Working Capital Claimholders, the Term Loan Agent and the
Term Loan Claimholders, and any Additional Agent and any Additional Claimholders and any of
them may, at any time and from time to time in accordance with their respective Credit
Documents or applicable law, without the consent of, or notice to, the other Claimholders
and without incurring any liabilities to the other Claimholders and without impairing or
releasing the Lien priorities and other benefits provided in this Agreement (even if any
right of subrogation or other right or remedy of the other Claimholders is affected,
impaired or extinguished thereby) do any one or more of the following:




     (i) make loans and advances to any Grantor or issue, guaranty or obtain letters
of credit for account of any Grantor or otherwise extend credit to any Grantor, in
any amount and on any terms, whether pursuant to a commitment or as a discretionary
advance and whether or not any default or event of default or failure of condition
is then continuing (subject, in each case, to any limitations expressly set forth in
this Agreement);




     (ii) change the manner, place or terms of payment or change or extend the time
of payment of, or amend, renew, exchange, increase or alter, the terms of any of
their respective Obligations or guaranty thereof or any liability of the Company or
any other Grantor, or any liability incurred directly or indirectly in respect
thereof (including any increase in or extension of their respective Obligations,
without any restriction as to the amount, tenor or terms of any such increase or
extension, subject to any limitations expressly set forth in this Agreement) or,
subject to the provisions of this Agreement, otherwise amend, renew, exchange,
extend, modify or supplement in any manner any Liens held by such Agent or such
Claimholders, their respective Obligations or any of their respective Credit
Documents; provided, however, the foregoing shall not prohibit any other
Agent and any other Claimholders from enforcing, consistent with the other



48









 







terms of
this Agreement, any right arising under their respective Credit Agreement or
other Credit Documents as a result of any Grantor’s violation of the terms
hereof;




     (iii) subject to the provisions of this Agreement, sell, exchange, release,
surrender, realize upon, enforce or otherwise deal with in any manner and in any
order any part of the Collateral or any liability of the Company or any other
Grantor to such Claimholders or such Agent, or any liability incurred directly or
indirectly in respect thereof;




     (iv) settle or compromise their respective Obligations or any portion thereof
or any other liability of the Company or any other Grantor or any security therefor
or any liability incurred directly or indirectly in respect thereof and apply any
sums by whomsoever paid and however realized to any liability (including their
respective Obligations) in any manner or order;




     (v) subject to the restrictions set forth in this Agreement, exercise or delay
in or refrain from exercising any right or remedy against the Company or any
security or any other Grantor or any other Person, elect any remedy and otherwise
deal freely with Company, any other Grantor or any Collateral and any security and
any guarantor or any liability of the Company or any other Grantor to such
Claimholders or any liability incurred directly or indirectly in respect thereof;




     (vi) take or fail to take any Lien securing their respective Obligations or any
other collateral security for such Obligations or take or fail to take any action
which may be necessary or appropriate to ensure that any Lien securing such
Obligations or any other Lien upon any property is duly enforceable or perfected or
entitled to priority as against any other Lien, provided that Liens taken in
violation of Section 2.5 shall be subject to the provisions of Section 2.5; or




     (vii) otherwise release, discharge or permit the lapse of any or all Liens
securing their respective Obligations or any other Liens upon any property at any
time securing any such Obligations.




     (c) Each Agent, on behalf of itself and the Claimholders for which it acts as Agent,
also agrees that no Priority Agent or Priority Claimholders shall have any liability to such
Agent or the Claimholders for which it acts as Agent, and such Agent on behalf of itself and
the Claimholders for which it acts as Agent, hereby waives all claims against any Priority
Agent and any Priority Claimholders, arising out of any and all actions which such Priority
Agent or such Priority Claimholders may take or permit or omit to take with respect to their
Priority Collateral. Each Agent, on behalf of itself and the Claimholders for which it acts
as Agent, agrees that no Priority Agent or Priority Claimholders shall have any duty to them
in respect of the maintenance or preservation of any Priority Agent’s Priority Collateral.




     (d) Each Agent, on behalf of itself and the Claimholders for which it acts as Agent,
agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to
demand, request, plead or otherwise assert or otherwise claim the benefit of, any
marshalling, appraisal, valuation or other similar right that may otherwise be available
under applicable law with respect to Collateral that does not constitute its Priority
Collateral or any other similar rights a junior secured creditor may have under applicable
law.



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     7.4 Obligations Unconditional. All rights, interests, agreements and obligations of the
Working Capital Agent and the Working Capital Claimholders, the Term Loan Agent and the Term
Loan Claimholders, and any Additional Agent and any Additional Claimholders, respectively,
hereunder shall remain in full force and effect irrespective of:




     (a) any lack of validity or enforceability of any Working Capital Credit Documents, any
Term Loan Credit Documents or any Additional Documents or any setting aside or avoidance of
any Lien;




     (b) except as otherwise set forth in this Agreement, any change in the time, manner or
place of payment of, or in any other terms of, all or any of the Working Capital
Obligations, the Term Loan Obligations or any Additional Obligations, or any amendment or
waiver or other modification, including any increase in the amount thereof, whether by
course of conduct or otherwise, of the terms of any Working Capital Credit Document, any
Term Loan Credit Document or any Additional Document;




     (c) any exchange of any security interest in any Collateral or any other collateral, or
any amendment, waiver or other modification, whether in writing or by course of conduct or
otherwise, of all or any of the Working Capital Obligations, the Term Loan Obligations or
any Additional Obligations or any guarantee thereof;




     (d) the commencement of any Insolvency or Liquidation Proceeding in respect of the
Company or any other Grantor; or




     (e) any other circumstances which otherwise might constitute a defense available to, or
a discharge of, the Company or any other Grantor in respect of the Working Capital
Obligations, the Term Loan Obligations or the Additional Obligations.



     7.5 Certain Notices.




     (a) Promptly upon the Discharge of Working Capital Obligations, the Working Capital
Agent shall deliver written notice confirming same to the remaining Agent Parties;
provided that the failure to give any such notice shall not result in any liability
of the Working Capital Agent or the other Working Capital Claimholders hereunder or in the
modification, alteration, impairment, or waiver of the rights of any party hereunder.
Promptly upon the Discharge of Term Loan Obligations, the Term Loan Agent shall deliver
written notice confirming same to the remaining Agent Parties; provided that the
failure to give any such notice shall not result in any liability of the Term Loan Agent or
the other Term Loan Claimholders hereunder or in the modification, alteration, impairment,
or waiver of the rights of any party hereunder. Promptly upon the Discharge of Additional
Obligations, the applicable Additional Agent shall deliver written notice confirming same to
the Working Capital Agent, the Term Loan Agent and any other Additional Agent;
provided that the failure to give any such notice shall not result in any liability
of such Additional Agent or the applicable Additional Claimholders or in the modification,
alteration, impairment, or waiver of the rights of any party hereunder.




     (b) No later than five (5) days prior to the commencement by any Priority Agent of any
enforcement action or the exercise of any remedy with respect to its Priority Collateral
(including by way of a public or private sale of such Priority Collateral), such Priority
Agent shall notify the other Agent Parties of such intended action; provided that
the failure to give any such notice shall not result in any liability hereunder of such
Priority Agent or the Priority



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Claimholders for which it acts as Agent or in the
modification, alteration, impairment, or waiver
of the rights of any party hereunder.



SECTION 8




MISCELLANEOUS




     8.1 Conflicts. In the event of any conflict between the provisions of this Agreement and the
provisions of the Term Loan Credit Documents, the Working Capital Credit Documents or any
Additional Documents, the provisions of this Agreement shall govern and control. The parties
hereto acknowledge that the terms of this Agreement are not intended to negate any specific rights
granted to the Company or any other Grantor in the Term Loan Credit Documents, the Working Capital
Credit Documents or any Additional Documents.



     8.2 Effectiveness; Continuing Nature of this Agreement; Severability. This Agreement shall
become effective when executed and delivered by the parties hereto. This is a continuing agreement
of lien subordination and the Working Capital Claimholders, the Term Loan Claimholders and any
Additional Claimholders may each continue, at any time and without notice to the other
Claimholders, to extend credit and other financial accommodations and lend monies to or for the
benefit of the Company or any Grantor constituting Working Capital Obligations, Term Loan
Obligations or Additional Obligations, as applicable, in reliance hereof. The terms of this
Agreement shall survive, and shall continue in full force and effect, in any Insolvency or
Liquidation Proceeding. Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. All references to the Company or any other Grantor shall include the
Company or such Grantor as debtor and debtor-in-possession and any receiver or trustee for the
Company or any other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding.
This Agreement shall terminate and be of no further force and effect upon the Discharge of Working
Capital Obligations (in accordance with the provisions hereof), except for Section 5.3 and
the provisions of this Section 8 as they relate to Section 5.3, and subject to
reinstatement in accordance with Section 6.7.



     8.3 Amendments; Waivers. No amendment, modification or waiver of any of the provisions of
this Agreement by the Working Capital Agent, the Term Loan Agent or any Additional Agent, or
(subject to the following sentence) the Company or any other Grantor, shall be deemed to be made
unless the same shall be in writing signed on behalf of each party hereto or its authorized agent
and each waiver, if any, shall be a waiver only with respect to the specific instance involved and
shall in no way impair the rights of the parties making such waiver or the obligations of the other
parties to such party in any other respect or at any other time. Notwithstanding the foregoing,
neither the Company nor any other Grantor shall have any right to consent to or approve any
amendment, modification or waiver of any provision of this Agreement except to the extent its
rights or obligations are directly affected; provided that (x) no amendment, modification
or waiver of any provision of this Agreement, and no consent to any departure therefrom by any
party hereto, that changes, alters, modifies or otherwise affects any right or obligation of, or
otherwise adversely affects in any manner, any Additional Agent that is not then a party hereto, or
any Additional Claimholder not then represented by an Additional Agent that is then a party hereto
(including but not limited to any change, alteration, modification or other effect upon any right
or obligation of or other adverse effect upon any such Additional Agent or Additional Claimholder
that may at any subsequent time become a party hereto or beneficiary hereof) shall be effective
unless it is consented to in writing by the Company (regardless of whether any such Additional
Agent or Additional Claimholder ever becomes a party hereto or beneficiary hereof) and (y) any



51









 







amendment, modification or waiver of any provision of this Agreement that would have the effect,
directly or indirectly, through any reference in any Credit Document to this Agreement or
otherwise, of waiving, amending, supplementing or otherwise modifying any Credit Document, or any
term or provision thereof, or any right or obligation of the Company or any other Grantor
thereunder or in respect thereof, shall not be given such effect except pursuant to a written
instrument executed by the Company and each other affected Grantor.



     8.4 Information Concerning Financial Condition of Company and its Subsidiaries.




     (a) The Term Loan Agent and the Term Loan Claimholders, and the Working Capital Agent
and the Working Capital Claimholders, and each Additional Agent and applicable Additional
Claimholders, respectively, shall each be responsible for keeping themselves informed of (a)
the financial condition of Company and its Subsidiaries and all endorsers or guarantors of
the Term Loan Obligations, the Working Capital Obligations or any Additional Obligations and
(b) all other circumstances bearing upon the risk of nonpayment of the Term Loan
Obligations, the Working Capital Obligations or any Additional Obligations. Each Agent and
the Claimholders for which it acts as Agent shall have no duty to advise any other Agent or
any Claimholder for which any other Agent acts as Agent of information known to it or them
regarding such condition or any such circumstances or otherwise. In the event that any
Agent or any of the Claimholders for which it acts as Agent, in its or their sole
discretion, undertakes at any time or from time to time to provide any such information to
any other Agent or any Claimholder for which such other Agent acts as Agent, it or they
shall be under no obligation (w) to make, and such party shall not make, any express or
implied representation or warranty, including with respect to the accuracy, completeness,
truthfulness or validity of any such information so provided, (x) to provide any additional
information or to provide any such information on any subsequent occasion, (y) to undertake
any investigation or (z) to disclose any information which, pursuant to accepted or
reasonable commercial finance practices, such party wishes to maintain confidential or is
otherwise required to maintain confidential.




     (b) The Grantors agree that any information with respect to the Control Collateral
provided by any Grantor to the Control Agent expressly and solely in its capacity as Control
Agent may be shared by the Control Agent with any Claimholder upon its request therefor,
notwithstanding any request or demand by such Grantor that such information be kept
confidential; provided, that such information shall otherwise be subject to the
respective confidentiality provisions in the Working Capital Credit Agreement, the Term Loan
Credit Agreement and each Additional Credit Facility, as applicable, and to any other
confidentiality agreement or undertaking to which such Claimholder is party or otherwise
subject.



     8.5 Subrogation. Each Agent, for itself and on behalf of the Claimholders for which it acts
as Agent, hereby waives any rights of subrogation it may acquire as a result of any payment
hereunder until the Discharge of Obligations has occurred with respect to each other group of
Claimholders.



     8.6 Notice of Term Loan Representative Change. Until an Agent (other than the existing Term
Loan Representative) receives written notice from the existing Term Loan Representative, in
accordance with Section 8.8 of this Agreement, of a change in the identity of the Term Loan
Representative, such Agent shall be entitled to act as if the existing Term Loan Representative is
in fact the Term Loan Representative. Each Agent (other than the existing Term Loan
Representative) shall be entitled to rely upon any written notice of a change in the identity of
the Term Loan Representative which facially appears to be from the then existing Term Loan
Representative and is delivered in accordance with Section 8.8 and such Agent shall not be required
to inquire into the veracity or genuineness of such



52









 







notice. Each existing Term Loan
Representative from time to time agrees to give prompt written notice
to each Agent of any change in the identity of the Term Loan Representative.



     8.7 Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver.




     (a) This Agreement and the rights and obligations of the parties hereto under this
Agreement shall be governed by and construed in accordance with the internal laws of the
State of New York without giving effect to the rules or principles of conflict of laws
thereof to the extent that the same are not mandatorily applicable by statute and would
cause the application of the laws of any other jurisdiction.




     (b) The parties hereto irrevocably consent and submit to the non-exclusive jurisdiction
of the courts of the State of New York sitting in New York County, New York and the United
States District Court of the Southern District of New York, whichever the Agents may elect,
and to the fullest extent permitted by law, waive any objection based on venue or forum non
conveniens with respect to any action instituted therein arising under this Agreement or any
of the other Credit Document and agree that any dispute with respect to any such matters
shall be heard only in the courts described above (except that the Agents and the
Claimholders reserve the right to bring any action or proceeding against any Grantor or its
or their property in the courts of any other jurisdiction which such Agent or Claimholder
deems necessary or appropriate in order to realize on the Collateral or to otherwise enforce
its rights against any Grantor or its or their property).




     (c) Each Grantor to the fullest extent permitted by law hereby waives personal service
of any and all process upon it and consents that all such service of process may be made by
certified mail (return receipt requested) directed to its address set forth herein and
service so made shall be deemed to be completed five (5) days after the same shall have been
so deposited in the U.S. mails, or, at the Agents’ option, by service upon any Grantor in
any other manner provided under the rules of any such courts.




     (d) EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS
OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
IN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. EACH PARTY HERETO HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.




     (e) The Agents and Claimholders shall not have any liability to any Grantor (whether in
tort, contract, equity or otherwise) for losses suffered by such Grantor in connection with,
arising out of, or in any way related to the transactions or relationships contemplated by
this Agreement, or any act, omission or event occurring in connection herewith, except to
the extent it is determined by a final and non-appealable judgment or court order binding on
the applicable Agent and Claimholders that the losses were the result of acts or omissions
constituting gross



53









 







negligence or willful misconduct. Each Grantor: (i) certifies that
neither the Agents, the
Claimholders nor any representative, agent or attorney acting for or on behalf of the
Agents or the Claimholders has represented, expressly or otherwise, that the Agents and the
Claimholders would not, in the event of litigation, seek to enforce any of the waivers
provided for in this Agreement or any of the other Credit Documents and (ii) acknowledges
that in entering into this Agreement and the other Credit Documents, the Agents and the
Claimholders are relying upon, among other things, the waivers and certifications set forth
in this Section 8.7 and elsewhere herein and therein.



     8.8 Notices. All notices to the Control Agent, the Term Loan Claimholders, the Working
Capital Claimholders and any applicable Additional Claimholders permitted or required under this
Agreement shall also be sent to the Working Capital Agent, the Term Loan Agent and the applicable
Additional Agent, respectively. Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and may be personally
served, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have
been given when delivered in person or by courier service, upon receipt of electronic mail or four
Business Days after deposit in the U.S. mail (registered or certified, with postage prepaid and
properly addressed). For the purposes hereof, the addresses of the parties hereto shall be as set
forth below each party’s name on the signature pages hereto, or, as to each party, at such other
address as may be designated by such party in a written notice to all of the other parties.



     8.9 Further Assurances. The Working Capital Agent, on behalf of itself and the Working
Capital Claimholders, the Term Loan Agent, on behalf of itself and the Term Loan Claimholders, any
Additional Agent, on behalf of itself and the applicable Additional Claimholders, and the Company,
agree that each of them shall take such further action and shall execute and deliver such
additional documents and instruments (in recordable form, if requested) as the Working Capital
Agent, the Term Loan Agent or such Additional Agent may reasonably request to effectuate the terms
of and the lien priorities contemplated by this Agreement.



     8.10 Designation of Additional Indebtedness; Joinder of Additional Agents.



     (a) The Company may designate any Additional Indebtedness complying with the requirements of
the definition of “Additional Indebtedness” as Additional Indebtedness for purposes of this
Agreement, upon complying with the following conditions:




	(i)	 	One or more Additional Agents for one or more Additional Claimholders in respect of such
Additional Indebtedness shall have executed the Additional Indebtedness Joinder with respect
to such Additional Indebtedness, and the Company or any such Additional Agent shall have
delivered such executed Additional Indebtedness Joinder to each Agent Party;
	 
	(ii)	 	at least five Business Days prior to delivery of the Additional Indebtedness Joinder, the
Company shall have delivered to each Agent Party complete and correct copies of any Additional
Credit Facility, Additional Guarantees and Additional Collateral Documents that will govern
such Additional Indebtedness upon giving effect to such designation (which may be unexecuted
copies of Additional Documents to be executed and delivered concurrently with the
effectiveness of such designation);
	 
	(iii)	 	The Company shall have executed and delivered to each Agent Party the Additional
Indebtedness Designation with respect to such Additional Indebtedness;




54









 






	(iv)	 	all state and local stamp, recording, filing, intangible and similar taxes or fees (if any)
that are
payable in connection with the inclusion of such Additional Indebtedness under this
Agreement shall have been paid and reasonable evidence thereof shall have been given to each
Agent Party; and
	 
	(v)	 	No Event of Default shall have occurred and be continuing.





     (b) Upon satisfaction of the foregoing conditions, the designated Additional Indebtedness
shall constitute “Additional Indebtedness”, any Additional Credit Facility under which such
Additional Indebtedness is or may be incurred shall constitute an “Additional Credit Facility”, any
holder of such Additional Indebtedness or other applicable Additional Creditor shall constitute an
“Additional Creditor”, and any Additional Agent for any such Additional Creditor shall constitute
an “Additional Agent”, for all purposes under this Agreement. The date on which the foregoing
conditions shall have been satisfied with respect to such Additional Indebtedness is herein called
the “Additional Effective Date”. Prior to the Additional Effective Date with respect to such
Additional Indebtedness, all references herein to Additional Indebtedness shall be deemed not to
take into account such Additional Indebtedness, and the rights and obligations of each Agent Party
shall be determined on the basis that such Additional Indebtedness is not then designated. On and
after the Additional Effective Date with respect to such Additional Indebtedness, all references
herein to Additional Indebtedness shall be deemed to take into account such Additional
Indebtedness, and the rights and obligations of each Agent Party shall be determined on the basis
that such Additional Indebtedness is then designated.



     (c) In connection with any designation of Additional Indebtedness pursuant to this Section
8.10, each Agent Party agrees (x) to execute and deliver any amendments, amendments and
restatements, restatements or waivers of or supplements to or other modifications to, any Term
Collateral Documents, Working Capital Collateral Documents, or Additional Collateral Documents, as
applicable, and any blocked account, control or other agreements relating to any security interest
in Control Collateral, and to make or consent to any filings or take any other actions, as may be
reasonably deemed by the Company to be necessary or reasonably desirable for any Lien on any
Collateral to secure such Additional Indebtedness to become a valid and perfected Lien (with the
priority contemplated by this Agreement), and (y) otherwise to reasonably cooperate to effectuate a
designation of Additional Indebtedness pursuant to this Section 8.10 (including without limitation,
if requested, by executing an acknowledgment of any Additional Indebtedness Joinder or of the
occurrence of any Additional Effective Date), in each event at the sole costs of the Company and
the Grantors.



     8.11 Binding on Successors and Assigns. This Agreement shall be binding upon the Working
Capital Agent, the other Working Capital Claimholders, the Term Loan Agent, the other Term Loan
Claimholders, each Additional Agent and the other Additional Claimholders, the Control Agent and
their respective successors and assigns.



     8.12 Specific Performance. Each Agent may demand specific performance of this Agreement.
Each Agent, on behalf of itself and the Claimholders for which it acts as Agent, hereby irrevocably
waives any defense based on the adequacy of a remedy at law and any other defense which might be
asserted to bar the remedy of specific performance in any action which may be brought by any other
Agent.



     8.13 Headings. Section headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any other purpose or be given
any substantive effect.



55









 






     8.14 Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Agreement or any document or instrument delivered in
connection herewith by telecopy shall be effective as delivery of a manually executed counterpart
of this Agreement or such other document or instrument, as applicable.



     8.15 Authorization. By its signature, each Person executing this Agreement on behalf of a
party hereto represents and warrants to the other parties hereto that it is duly authorized to
execute this Agreement.



     8.16 No Third Party Beneficiaries. This Agreement and the rights and benefits hereof shall
inure to the benefit of each of the parties hereto and its respective successors and assigns and
shall inure to the benefit of each of the Working Capital Agent, the other Working Capital
Claimholders, the Term Loan Agent, the other Term Loan Claimholders, each Additional Agent, the
other Additional Claimholders, the Control Agent and the Company and the other Grantors. No other
Person shall have or be entitled to assert rights or benefits hereunder.



     8.17 Provisions Solely to Define Relative Rights. The provisions of this Agreement are and
are intended solely for the purpose of defining the relative rights of the Working Capital
Claimholders, the Term Loan Claimholders and any Additional Claimholders, respectively. Nothing in
this Agreement is intended to or shall impair the rights of Company or any other Grantor, or the
obligations of Company or any other Grantor to pay the Working Capital Obligations, the Term Loan
Obligations and any Additional Obligations as and when the same shall become due and payable in
accordance with their terms.



     8.18 Future Grantors. Any Domestic Subsidiary of the Company from time to time party to a
Credit Document shall become a “Grantor” hereunder for all purposes of this Agreement upon
execution and delivery by such Domestic Subsidiary of a joinder agreement substantially in the form
of Exhibit D hereto.






56











 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	WELLS FARGO FOOTHILL, LLC,

as Working Capital Agent,

 	 
	 	By:  	/s/ Kathy Plisko
 	 
	 	 	Name:  	Kathy Plisko 	 
	 	 	Title:  	SVP 	 
	 



Notice Address:




Wells Fargo Foothill, LLC, as Working Capital Agent

1100 Abernathy Road, Suite 1600

Atlanta, Georgia 30328

Attention: Business Finance Manager

Telecopier: 770-804-0551

Telephone: 770-508-1300




with a copy to:




                                        

                                        

                                        

Attention:                               

Telecopier:                               

Telephone:                               





 









 





	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

as Term Loan Agent,

 	 
	 	By:  	/s/ Jacob Petkovich
 	 
	 	 	Name:  	Jacob Petkovich 	 
	 	 	Title:  	Director 	 
	 



Notice Address:




Wachovia Bank, National Association, as Term Loan Agent

Wells Fargo Securities

One Wachovia Center

301 South College Street, 6th Floor

Charlotte, NC 28288

Attention: Patrick McKinnon

Facsimile: 704-374-3300

Telephone: 704-715-4433

Email: patrick.mckinnon@wachovia.com




with a copy to:




Wells Fargo Bank, NA

21 Waterway Avenue, Suite 600

The Woodlands, TX 77380

Attention: Janet Ritter

Facsimile: 281-362-6611

Telephone: 281-362-6635

Email: ritterj@wellsfargo.com




 









 





	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Control Agent,

 	 
	 	By:  	/s/ Janet P. Ritter
 	 
	 	 	Name:  	Janet P. Ritter 	 
	 	 	Title:  	Vice President 	 
	 



Notice Address:




Wells Fargo Bank, NA, , as Control Agent

21 Waterway Avenue, Suite 600

The Woodlands, TX 77380

Attention: Janet Ritter

Facsimile: 281-362-6611

Telephone: 281-362-6635

Email: ritterj@wellsfargo.com




with a copy to:




Wachovia Bank, National Association

Wells Fargo Securities

One Wachovia Center

301 South College Street, 6th Floor

Charlotte, NC 28288

Attention: Patrick McKinnon

Facsimile: 704-374-3300

Telephone: 704-715-4433

Email: patrick.mckinnon@wachovia.com




 









 





	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Todd R. Moore
 	 
	 	 	Name:  	Todd R. Moore 	 
	 	 	Title:  	EVP and General Counsel 	 
	 
	 	ROBERTSON-CECO II CORPORATION,

a Delaware corporation

 	 
	 	By:  	/s/ Todd R. Moore
 	 
	 	 	Name:  	Todd R. Moore 	 
	 	 	Title:  	EVP and General Counsel 	 
	 
	 	NCI GROUP, INC.,

a Nevada corporation

 	 
	 	By:  	/s/ Todd R. Moore
 	 
	 	 	Name:  	Todd R. Moore 	 
	 	 	Title:  	EVP and General Counsel 	 
	 
	 	STEELBUILDING.COM, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Todd R. Moore
 	 
	 	 	Name:  	Todd R. Moore 	 
	 	 	Title:  	EVP and General Counsel 	 
	 



Notice Address:




NCI Building Systems, Inc.

10943 N. Sam Houston Parkway W.

Houston, Texas 77064

Attention: Chief Financial Officer

Telecopier: 281-897-7658

Telephone: 281-897-7837




with a copy to:




Debevoise & Plimpton LLP

919 Third Avenue

New York, New York 10022

Telecopier: 212-909-6836

Telephone: 212-909-6000